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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 Claims 1-20 are pending in this application.
Election/Restriction Restriction to one of the following inventions is required under 35 U.S.C. 121: I. Claims 1-15, drawn to an apparatus, classified in C23C 16/45565. II. Claims 16-20, drawn to a method, classified in C23C 16/455. The inventions are independent or distinct, each from the other because: Inventions I and II are related as process and apparatus for its practice. The inventions are distinct if it can be shown that either: (1) the process as claimed can be practiced by another and materially different apparatus or by hand, or (2) the apparatus as claimed can be used to practice another and materially different process. (MPEP § 806.05(e)). In this case, the apparatus as claimed can be used to practice another and materially different process such as etching. Restriction for examination purposes as indicated is proper because all the inventions listed in this action are independent or distinct for the reasons given above 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: The search and prosecution of apparatus and method claims presents a serious burden on the examiner. Applicant is advised that the reply to this requirement to be complete must include (i) an election of a 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. Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention. A telephone call was not made to request an oral election to the above restriction requirement.
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).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRET CHEN whose telephone number is (571)272-1417. The examiner can normally be reached on M-F 7-7 MT. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Timothy Meeks can be reached on 5712721423. 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.
/BRET P CHEN/Primary Examiner, Art Unit 1715 03/12/2021 | 2021-03-16T10:29:49 | [
"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 . DETAILED ACTION Claims 1-20 are pending in this application. Election/Restriction Restriction to one of the following inventions is required under 35 U.S.C. 121: I. Claims 1-15, drawn to an apparatus, classified in C23C 16/45565. II. Claims 16-20, drawn to a method, classified in C23C 16/455. The inventions are independent or distinct, each from the other because: Inventions I and II are related as process and apparatus for its practice. The inventions are distinct if it can be shown that either: (1) the process as claimed can be practiced by another and materially different apparatus or by hand, or (2) the apparatus as claimed can be used to practice another and materially different process.",
"(MPEP § 806.05(e)). In this case, the apparatus as claimed can be used to practice another and materially different process such as etching. Restriction for examination purposes as indicated is proper because all the inventions listed in this action are independent or distinct for the reasons given above 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: The search and prosecution of apparatus and method claims presents a serious burden on the examiner.",
"Applicant is advised that the reply to this requirement to be complete must include (i) an election of a 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. Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C.",
"103 or pre-AIA 35 U.S.C. 103(a) of the other invention. A telephone call was not made to request an oral election to the above restriction requirement. 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). Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRET CHEN whose telephone number is (571)272-1417. The examiner can normally be reached on M-F 7-7 MT. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool.",
"To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Timothy Meeks can be reached on 5712721423. 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.",
"/BRET P CHEN/Primary Examiner, Art Unit 1715 03/12/2021"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-03-21.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ELEVENTH CIRCUIT JAN 04 2001 ________________________ THOMAS K. KAHN CLERK No. 00-14390 Non-Argument Calendar ________________________
D. C. Docket No. 99-02100-CIV-T-26B
TIMES PUBLISHING COMPANY, Plaintiff-Appellee,
MEDIA GENERAL OPERATIONS, INC. d.b.a. THE TAMPA TRIBUNE, Intervenor-Plaintiff-Appellee,
versus
UNITED STATES DEPARTMENT OF COMMERCE,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida _________________________ (January 4, 2001)
Before TJOFLAT, DUBINA and HULL, Circuit Judges. HULL, Circuit Judge:
The United States Department of Commerce appeals the district court’s
grant of summary judgment in favor of Appellees on their Freedom of Information
Act claims seeking the disclosure of information concerning all applications for
export licenses granted to export goods or services to Cuba from 1996-1999. For
the reasons stated below, we reverse and hold that the requested export licensing
information is protected from disclosure under the Freedom of Information Act.
I.
Appellees Times Publishing Company (“Times”) and Media General
Operations, Inc., d/b/a The Tampa Tribune (the “Tribune”) filed requests pursuant
to the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), seeking information
concerning applications for licenses granted to export goods and services to Cuba
from 1996-1999. Specifically, Appellees sought the names of all licensees and the
goods and services covered by each license during the specified time period. The
Department of Commerce denied the requests under Exemption 3 of FOIA which
protects records from disclosure which are specifically exempted from disclosure
“by statute.” In doing so, the Department of Commerce relied upon section 12(c)
of the Export Administration Act of 1979, 50 U.S.C. app. § 2411(c) (“EAA”).
2 Times filed suit in the United States District Court for the Middle District of
Florida seeking to compel the disclosure of the requested information. The
Tribune was permitted to intervene. Although Appellees did not contest the
Department of Commerce’s contention that section 12(c) of the EAA was designed
to protect the requested export licensing information from disclosure, Appellees
alleged that the withholding of the information was unjustified because section
12(c) of the EAA had lapsed on August 20, 1994 – almost five years prior to their
FOIA requests. The parties filed cross-motions for summary judgment in the
district court based upon the undisputed record and the court granted summary
judgment in favor of Times and the Tribune. The Department of Commerce timely
appealed.1
II.
A. The Freedom of Information Act
The fundamental principle underlying FOIA is public access to government
documents. John Doe Agency v. John Doe Corp., 493 U.S. 146, 151 (1989).
“Without question, the Act is broadly conceived ... to permit access to official
information long shielded unnecessarily from public view and ... to create a
1 We review the district court’s grant of summary judgment de novo. Squish La Fish, Inc. v. Thomco Specialty Prod., Inc., 149 F.3d 1288 (11th Cir. 1998).
3 judicially enforceable right to secure such information from possibly unwilling
official hands.” Id. at 151 (quoting EPA v. Mink, 410 U.S. 73, 80 (1973)). Indeed,
FOIA reflects a general philosophy of “full agency disclosure unless information is
exempted under clearly delineated statutory language.” Id. at 152 (quoting Dep’t
of the Air Force v. Rose, 425 U.S. 352, 360-61 (1976))(quotation marks omitted).
Although there are limited exemptions to the disclosure requirements of FOIA,
these exemptions “do not obscure the basic policy that disclosure, not secrecy, is
the dominant objective of the Act.” Dep’t of the Air Force v. Rose, 425 U.S. 352,
361 (1976). As a result, exemptions to FOIA disclosure are to be narrowly
construed and the burden is on the agency seeking to prevent disclosure to prove
their application. 5 U.S.C. § 552(a)(4)(B); see also John Doe Agency v. John Doe
Corp., 493 U.S. at 152. Nonetheless, the Supreme Court has made clear that
“[d]espite these pronouncements of liberal congressional purpose, ... the statutory
exemptions are intended to have meaningful reach and application.” Id.
Exemption 3, relied upon by the Department in this case, specifically
exempts from disclosure matters excepted by statute, as follows:
matters that are ... specifically exempted from disclosure by statute ..., provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld
4 5 U.S.C. § 552(b)(3). The “unmistakable thrust” of the statutory exemption
provided by Exemption 3 of FOIA is to ensure that basic policy decisions on
governmental secrecy are made by the legislative rather than by the executive
branch. American Jewish Congress v. Kreps, 574 F.2d 624, 628 & n.34 (D.C. Cir.
1978)(“A central aim of the Freedom of Information Act has been to substitute
legislative judgment for administrative discretion.”). “Nondisclosure is
countenanced by Subsection (B) [of Exemption 3] if, but only if, the enactment is
the product of congressional appreciation of the dangers inherent in airing
particular data and incorporates a formula whereby the administrator may
determine precisely whether disclosure in any instance would pose the hazard that
Congress foresaw.” Id. at 628-29.
B. Protection of Export Licensing Information Under FOIA
Section 12(c) of the EAA provides for the confidentiality of export licensing
information obtained by the government under the EAA. See 50 U.S.C. app.
§ 2411(c). Specifically, section 12(c) states that: “information obtained for the
purpose of consideration of, or concerning, license applications under this Act ...
shall be withheld from public disclosure unless the release of such information is
determined by the Secretary to be in the national interest.” 50 U.S.C. app.
§ 2411(c). The EAA also authorizes the Department of Commerce to promulgate
5 regulations implementing its provisions. 50 U.S.C. app. § 2414(b). The Export
Administration Regulations promulgated by the Department echo section 12(c) in
providing for the confidentiality of export licensing information. See 15 C.F.R.
Part 736, Supp. 2 (Administrative Order One)(2000)(“Consistent with section
12(c) of the Export Administration Act of 1979, as amended, information obtained
by the U.S. Department of Commerce for the purpose of consideration of or
concerning license applications, as well as related information, will not be publicly
disclosed without the approval of the Secretary of Commerce.”). Pursuant to this
statute and these regulations, each export license application informs applicants
that “[i]nformation furnished herewith is subject to the provisions of Section 12(c)
of the Export Administration Act of 1979, 50 U.S.C. app. 2411(c), and its
unauthorized disclosure is prohibited by law.”
Section 12(c) of the EAA clearly qualifies as an exemption statute for
purposes of FOIA Exemption 3 and protects the specific information sought by
Appellees. See Lessner v. United States Dep’t of Commerce, 827 F.2d 1333, 1337
(9th Cir. 1987)(finding that section 12(c) is a FOIA exemption statute and that
“[n]ames of applicants certainly would be ‘information ... concerning applications’
and therefore information that may be withheld under Section 12(c)(1).”); Durnan
v. United States Dep’t of Commerce, 777 F. Supp. 965, 966 (D.D.C.
6 1991)(“Because all the documents in this case were provided to the DOC in
connection with DTG’s license application, they are protected from disclosure
under Section 12(c) of the Export Administration Act and, therefore, fall within
FOIA Exemption 3.”). The current version of the EAA confidentiality provision
was enacted precisely to comply with the requirements of FOIA Exemption 3
following a finding that the predecessor confidentiality provision did not qualify to
exempt information from public disclosure. Lessner, 827 F.2d at 1337; Durnan,
777 F. Supp. at 966. The confidentiality provision was enacted to prevent the
release of information that could damage exporters and, in turn, the country’s
balance of trade. Lessner, 827 F.2d at 1339. Indeed, Appellees do not argue that
section 12(c) does not, by its plain terms, protect the export licensing information
that they seek.
The argument raised successfully by Appellees in the district court to secure
disclosure of the protected material is that the EAA, of which section 12(c) is a
part, lapsed by its own terms prior to their FOIA requests. Thus, even if the
language of section 12(c) covers the requested information, there was no “statute”
in existence at the time of their requests to protect the information from disclosure
under Exemption 3. The Department of Commerce concedes, as it must, that
section 12(c) did lapse in 1994. The Department argues, however, that the
7 statutory provision still operates to protect the export licensing information by
virtue of an Executive Order of President Clinton maintaining the effectiveness of
the EAA during periods of lapse. After review, we agree.
The purpose of the EAA is to provide a rational system for controlling
exports by balancing national security, foreign policy, and domestic supply needs
with the interest in encouraging exports to enhance U.S. economic well being. See
50 U.S.C. app. § 2410. Because “such important regulatory legislation should be
periodically reviewed,” the EAA has always been enacted as a temporary statute.
See H.R. Rep. No. 95-459, 95th Cong., 1st Sess. 13 (1977); 50 U.S.C. app. § 2419
(“The authority granted by this Act ... terminates on August 20, 1994.”). Courts
have found, however, that Congress has empowered the President to maintain the
effectiveness of the critical EAA provisions during periods of lapse through the
International Emergency Economic Powers Act, 50 U.S.C. § 1702(a)(1)(B) (the
“IEEPA”). See United States v. Mechanic, 809 F.2d 1111, 1112 (5th Cir.
1987)(noting that President may enter an executive order pursuant to special
powers granted by the IEEPA to continue operation of the provisions of the EAA
of 1979 and all rules and regulations under it); United States v. Spawr Optical
Research, Inc., 685 F.2d 1076, 1082 (9th Cir. 1982)(“It is unmistakable that
Congress intended to permit the President to use [the IEEPA’s predecessor statute]
8 to employ the same regulatory tools during a national emergency as it had
employed under the EAA.”).2
President Clinton exercised the authority given to him under the IEEPA to
issue Executive Order No. 12,924 on August 19, 1994, on the eve of the expiration
of the EAA, to allow that, “[t]o the extent permitted by law, the provisions of the
[EAA], as amended, .... shall be carried out under this order so as to continue in
full force and effect and amend, as necessary, the export control system heretofore
maintained by the Export Administration Regulations issued under the [EAA], as
amended.”
Courts addressing the continued vitality of the EAA pursuant to executive
orders have found that the Act remains effective by virtue of a presidential order
during periods of statutory lapse. See United States v. Mechanic, 809 F.2d at
1113; United States v. Spawr Optical Research, Inc., 685 F.2d at 1082.3 In
2 According to the Department, the EAA frequently lapses because the debate over reenactment of the “highly sensitive statute” often delays passage of the Act. Indeed, it appears that the current version of the EAA has lapsed five times since its passage in 1979 for periods of time ranging in length from five days to six years. See United States v. Spawr Optical Research, Inc., 685 F.2d 1076, 1081, n.12 (9th Cir. 1982)(“‘One of the reasons why the Export Administration Act has been allowed to expire so many times is because there was [IEEPA’s predecessor statute]...’”)(quoting Congressman Bingham, Emergency Controls on International Economic Transactions: Hearings on H.R. 1560 and H.R. 2382 Before the Subcommittee on International Economic Policy and Trade of the House Committee on International Relations, 95th Congress, 1st Sess. 136 (1977)). 3 We recognize that the courts in Mechanic and Spawr specifically addressed the validity of regulations adopted pursuant to the EAA during periods of statutory lapse. Although these
9 Mechanic, the Fifth Circuit upheld criminal convictions under regulations adopted
pursuant to the EAA when the criminal acts alleged in the indictment were
committed during a period in which the EAA had lapsed. Mechanic, 809 F.2d at
1113 (“Thus, at the time the offenses were committed in April 1985, the EAA of
1979 rested solely upon the President’s exercise of his powers under IEEPA.”); see
also Spawr Optical, 685 F.2d at 1082 (“We, therefore, conclude that the President
had the authority during the nine-month lapse in the EAA to maintain the export
regulations.”). Although they do not dispute the general power of the President to
continue the effectiveness of the EAA’s export control system by executive order
pursuant to the IEEPA, Appellees argue that the entry of an executive order still
cannot satisfy FOIA’s specific requirement of a statutory basis for withholding
information under Exemption 3.
Congressional intent to maintain the confidentiality of government
information is the cornerstone of Exemption 3. With respect to the export
licensing information Appellees seek, Congress has acted specifically to design a
statutory provision to maintain confidentiality. Although Congress has permitted
cases did not involve the withholding of export licensing information pursuant to a statutory FOIA exemption, these courts recognized the continued validity of the EAA by virtue of executive orders entered pursuant to the IEEPA and its predecessor statute. Further, we note the existence of a similar regulation adopted pursuant to the EAA in this case explicitly providing for the confidentiality of the export licensing information sought pursuant to section 12(c) of the EAA. See 15 C.F.R. Part 736, Supp. 2 (Administrative Order One)(2000).
10 the statute containing this provision to lapse on a number of occasions, Congress
has authorized the President, also by means of statute, to maintain the force of the
confidentiality provision by way of executive order and has acted in accordance
with the continued confidentiality of such information during those times of lapse.
Further, Congress has renewed the confidentiality provision each time it has
renewed the EAA. Finally, on November 2, 2000, Congress renewed the EAA of
1979 through August 20, 2001. In renewing the Act and ending the most recent
period of lapse, Senator Gramm, Chairman of the Senate Committee on Banking,
Housing and Urban Affairs, stated that “replacing the 1994 expiration date with a
2001 expiration date will make clear that [Commerce’s] authority to apply the
12(c) confidentiality provisions of the 1979 act is to be considered as covering any
information regarding license applications obtained during that time period, as if
there had been no interruption of authority.” 146 Cong. Rec. S11365 (Oct. 30,
2000). In signing the amendment on November 13, 2000, President Clinton also
stated: “the reauthorization confirms the Department’s ability to keep export
licensing information obtained during the lapse of the EAA from public disclosure,
which is a critical part of the Department’s export control system and protects
sensitive business information and commercial interests of U.S. exporters.”
Statement by the President, November 13, 2000. This subsequent legislative
11 history and comment by the executive branch specifically demonstrate Congress’
intent to preserve the confidentiality of the precise export license information
sought in this case pursuant to executive order during periods of lapse. See
Mechanic, 809 F.2d at 1114 (“the subsequent legislative history accompanying the
enactment of the Export Administration Amendments Act of 1985 supports the
validity of the regulation.”).
Where Congress has made plain its intention to exclude the information
sought by Appellees from public disclosure under FOIA, the purpose of Exemption
3 – to ensure that “basic policy decisions on governmental secrecy are made by the
Legislative rather than the Executive branch” – is satisfied. American Jewish
Congress, 574 F.2d at 628. In addition, where there is no dispute that Congress
granted the President authority to extend the provisions of the EAA containing the
statutory exemption and that the President has exercised this authority in signing
Executive Order 12,924, an overly technical and formalistic reading of FOIA to
disclose information clearly intended to be confidential would undermine the
Supreme Court’s direction that the FOIA exemptions are to be given meaningful
reach and application. In light of Congress’ clear expression of its intent to protect
the confidentiality of the requested export licensing information, it would be truly
nonsensical to protect such information submitted to the Department through
12 August 20, 1994, release identical information submitted between August 21, 1994
and November 13, 2000, and again protect such information from November 14,
2000 forward. The confidentiality of the export licensing information sought by
Appellees, provided by section 12(c) of the EAA, was maintained by virtue of
Executive Order 12,924.
III.
We conclude that the comprehensive legislative scheme as a whole – the
confidentiality provision of the EAA, the intended and foreseen periodic expiration
of the EAA, and the Congressional grant of power to the President to prevent the
lapse of its important provisions during such times – exempts from disclosure the
export licensing information requested by Appellees. We, therefore, reverse the
grant of summary judgment in favor of Appellees and remand to the district court
for the entry of judgment in favor of the Appellant.
REVERSED AND REMANDED
13 | 04-26-2010 | [
"[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ELEVENTH CIRCUIT JAN 04 2001 ________________________ THOMAS K. KAHN CLERK No. 00-14390 Non-Argument Calendar ________________________ D. C. Docket No. 99-02100-CIV-T-26B TIMES PUBLISHING COMPANY, Plaintiff-Appellee, MEDIA GENERAL OPERATIONS, INC. d.b.a. THE TAMPA TRIBUNE, Intervenor-Plaintiff-Appellee, versus UNITED STATES DEPARTMENT OF COMMERCE, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida _________________________ (January 4, 2001) Before TJOFLAT, DUBINA and HULL, Circuit Judges. HULL, Circuit Judge: The United States Department of Commerce appeals the district court’s grant of summary judgment in favor of Appellees on their Freedom of Information Act claims seeking the disclosure of information concerning all applications for export licenses granted to export goods or services to Cuba from 1996-1999. For the reasons stated below, we reverse and hold that the requested export licensing information is protected from disclosure under the Freedom of Information Act. I. Appellees Times Publishing Company (“Times”) and Media General Operations, Inc., d/b/a The Tampa Tribune (the “Tribune”) filed requests pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), seeking information concerning applications for licenses granted to export goods and services to Cuba from 1996-1999.",
"Specifically, Appellees sought the names of all licensees and the goods and services covered by each license during the specified time period. The Department of Commerce denied the requests under Exemption 3 of FOIA which protects records from disclosure which are specifically exempted from disclosure “by statute.” In doing so, the Department of Commerce relied upon section 12(c) of the Export Administration Act of 1979, 50 U.S.C. app. § 2411(c) (“EAA”). 2 Times filed suit in the United States District Court for the Middle District of Florida seeking to compel the disclosure of the requested information. The Tribune was permitted to intervene. Although Appellees did not contest the Department of Commerce’s contention that section 12(c) of the EAA was designed to protect the requested export licensing information from disclosure, Appellees alleged that the withholding of the information was unjustified because section 12(c) of the EAA had lapsed on August 20, 1994 – almost five years prior to their FOIA requests.",
"The parties filed cross-motions for summary judgment in the district court based upon the undisputed record and the court granted summary judgment in favor of Times and the Tribune. The Department of Commerce timely appealed.1 II. A. The Freedom of Information Act The fundamental principle underlying FOIA is public access to government documents. John Doe Agency v. John Doe Corp., 493 U.S. 146, 151 (1989). “Without question, the Act is broadly conceived ... to permit access to official information long shielded unnecessarily from public view and ... to create a 1 We review the district court’s grant of summary judgment de novo. Squish La Fish, Inc. v. Thomco Specialty Prod., Inc., 149 F.3d 1288 (11th Cir.",
"1998). 3 judicially enforceable right to secure such information from possibly unwilling official hands.” Id. at 151 (quoting EPA v. Mink, 410 U.S. 73, 80 (1973)). Indeed, FOIA reflects a general philosophy of “full agency disclosure unless information is exempted under clearly delineated statutory language.” Id. at 152 (quoting Dep’t of the Air Force v. Rose, 425 U.S. 352, 360-61 (1976))(quotation marks omitted). Although there are limited exemptions to the disclosure requirements of FOIA, these exemptions “do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976). As a result, exemptions to FOIA disclosure are to be narrowly construed and the burden is on the agency seeking to prevent disclosure to prove their application. 5 U.S.C. § 552(a)(4)(B); see also John Doe Agency v. John Doe Corp., 493 U.S. at 152.",
"Nonetheless, the Supreme Court has made clear that “[d]espite these pronouncements of liberal congressional purpose, ... the statutory exemptions are intended to have meaningful reach and application.” Id. Exemption 3, relied upon by the Department in this case, specifically exempts from disclosure matters excepted by statute, as follows: matters that are ... specifically exempted from disclosure by statute ..., provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld 4 5 U.S.C. § 552(b)(3). The “unmistakable thrust” of the statutory exemption provided by Exemption 3 of FOIA is to ensure that basic policy decisions on governmental secrecy are made by the legislative rather than by the executive branch.",
"American Jewish Congress v. Kreps, 574 F.2d 624, 628 & n.34 (D.C. Cir. 1978)(“A central aim of the Freedom of Information Act has been to substitute legislative judgment for administrative discretion.”). “Nondisclosure is countenanced by Subsection (B) [of Exemption 3] if, but only if, the enactment is the product of congressional appreciation of the dangers inherent in airing particular data and incorporates a formula whereby the administrator may determine precisely whether disclosure in any instance would pose the hazard that Congress foresaw.” Id. at 628-29. B. Protection of Export Licensing Information Under FOIA Section 12(c) of the EAA provides for the confidentiality of export licensing information obtained by the government under the EAA. See 50 U.S.C.",
"app. § 2411(c). Specifically, section 12(c) states that: “information obtained for the purpose of consideration of, or concerning, license applications under this Act ... shall be withheld from public disclosure unless the release of such information is determined by the Secretary to be in the national interest.” 50 U.S.C. app. § 2411(c). The EAA also authorizes the Department of Commerce to promulgate 5 regulations implementing its provisions. 50 U.S.C. app. § 2414(b). The Export Administration Regulations promulgated by the Department echo section 12(c) in providing for the confidentiality of export licensing information. See 15 C.F.R. Part 736, Supp. 2 (Administrative Order One)(2000)(“Consistent with section 12(c) of the Export Administration Act of 1979, as amended, information obtained by the U.S. Department of Commerce for the purpose of consideration of or concerning license applications, as well as related information, will not be publicly disclosed without the approval of the Secretary of Commerce.”). Pursuant to this statute and these regulations, each export license application informs applicants that “[i]nformation furnished herewith is subject to the provisions of Section 12(c) of the Export Administration Act of 1979, 50 U.S.C. app. 2411(c), and its unauthorized disclosure is prohibited by law.” Section 12(c) of the EAA clearly qualifies as an exemption statute for purposes of FOIA Exemption 3 and protects the specific information sought by Appellees.",
"See Lessner v. United States Dep’t of Commerce, 827 F.2d 1333, 1337 (9th Cir. 1987)(finding that section 12(c) is a FOIA exemption statute and that “[n]ames of applicants certainly would be ‘information ... concerning applications’ and therefore information that may be withheld under Section 12(c)(1).”); Durnan v. United States Dep’t of Commerce, 777 F. Supp. 965, 966 (D.D.C. 6 1991)(“Because all the documents in this case were provided to the DOC in connection with DTG’s license application, they are protected from disclosure under Section 12(c) of the Export Administration Act and, therefore, fall within FOIA Exemption 3.”). The current version of the EAA confidentiality provision was enacted precisely to comply with the requirements of FOIA Exemption 3 following a finding that the predecessor confidentiality provision did not qualify to exempt information from public disclosure.",
"Lessner, 827 F.2d at 1337; Durnan, 777 F. Supp. at 966. The confidentiality provision was enacted to prevent the release of information that could damage exporters and, in turn, the country’s balance of trade. Lessner, 827 F.2d at 1339. Indeed, Appellees do not argue that section 12(c) does not, by its plain terms, protect the export licensing information that they seek. The argument raised successfully by Appellees in the district court to secure disclosure of the protected material is that the EAA, of which section 12(c) is a part, lapsed by its own terms prior to their FOIA requests. Thus, even if the language of section 12(c) covers the requested information, there was no “statute” in existence at the time of their requests to protect the information from disclosure under Exemption 3. The Department of Commerce concedes, as it must, that section 12(c) did lapse in 1994.",
"The Department argues, however, that the 7 statutory provision still operates to protect the export licensing information by virtue of an Executive Order of President Clinton maintaining the effectiveness of the EAA during periods of lapse. After review, we agree. The purpose of the EAA is to provide a rational system for controlling exports by balancing national security, foreign policy, and domestic supply needs with the interest in encouraging exports to enhance U.S. economic well being. See 50 U.S.C. app. § 2410. Because “such important regulatory legislation should be periodically reviewed,” the EAA has always been enacted as a temporary statute. See H.R.",
"Rep. No. 95-459, 95th Cong., 1st Sess. 13 (1977); 50 U.S.C. app. § 2419 (“The authority granted by this Act ... terminates on August 20, 1994.”). Courts have found, however, that Congress has empowered the President to maintain the effectiveness of the critical EAA provisions during periods of lapse through the International Emergency Economic Powers Act, 50 U.S.C. § 1702(a)(1)(B) (the “IEEPA”). See United States v. Mechanic, 809 F.2d 1111, 1112 (5th Cir. 1987)(noting that President may enter an executive order pursuant to special powers granted by the IEEPA to continue operation of the provisions of the EAA of 1979 and all rules and regulations under it); United States v. Spawr Optical Research, Inc., 685 F.2d 1076, 1082 (9th Cir. 1982)(“It is unmistakable that Congress intended to permit the President to use [the IEEPA’s predecessor statute] 8 to employ the same regulatory tools during a national emergency as it had employed under the EAA.”).2 President Clinton exercised the authority given to him under the IEEPA to issue Executive Order No.",
"12,924 on August 19, 1994, on the eve of the expiration of the EAA, to allow that, “[t]o the extent permitted by law, the provisions of the [EAA], as amended, .... shall be carried out under this order so as to continue in full force and effect and amend, as necessary, the export control system heretofore maintained by the Export Administration Regulations issued under the [EAA], as amended.” Courts addressing the continued vitality of the EAA pursuant to executive orders have found that the Act remains effective by virtue of a presidential order during periods of statutory lapse. See United States v. Mechanic, 809 F.2d at 1113; United States v. Spawr Optical Research, Inc., 685 F.2d at 1082.3 In 2 According to the Department, the EAA frequently lapses because the debate over reenactment of the “highly sensitive statute” often delays passage of the Act.",
"Indeed, it appears that the current version of the EAA has lapsed five times since its passage in 1979 for periods of time ranging in length from five days to six years. See United States v. Spawr Optical Research, Inc., 685 F.2d 1076, 1081, n.12 (9th Cir. 1982)(“‘One of the reasons why the Export Administration Act has been allowed to expire so many times is because there was [IEEPA’s predecessor statute]...’”)(quoting Congressman Bingham, Emergency Controls on International Economic Transactions: Hearings on H.R.",
"1560 and H.R. 2382 Before the Subcommittee on International Economic Policy and Trade of the House Committee on International Relations, 95th Congress, 1st Sess. 136 (1977)). 3 We recognize that the courts in Mechanic and Spawr specifically addressed the validity of regulations adopted pursuant to the EAA during periods of statutory lapse. Although these 9 Mechanic, the Fifth Circuit upheld criminal convictions under regulations adopted pursuant to the EAA when the criminal acts alleged in the indictment were committed during a period in which the EAA had lapsed. Mechanic, 809 F.2d at 1113 (“Thus, at the time the offenses were committed in April 1985, the EAA of 1979 rested solely upon the President’s exercise of his powers under IEEPA.”); see also Spawr Optical, 685 F.2d at 1082 (“We, therefore, conclude that the President had the authority during the nine-month lapse in the EAA to maintain the export regulations.”). Although they do not dispute the general power of the President to continue the effectiveness of the EAA’s export control system by executive order pursuant to the IEEPA, Appellees argue that the entry of an executive order still cannot satisfy FOIA’s specific requirement of a statutory basis for withholding information under Exemption 3. Congressional intent to maintain the confidentiality of government information is the cornerstone of Exemption 3.",
"With respect to the export licensing information Appellees seek, Congress has acted specifically to design a statutory provision to maintain confidentiality. Although Congress has permitted cases did not involve the withholding of export licensing information pursuant to a statutory FOIA exemption, these courts recognized the continued validity of the EAA by virtue of executive orders entered pursuant to the IEEPA and its predecessor statute. Further, we note the existence of a similar regulation adopted pursuant to the EAA in this case explicitly providing for the confidentiality of the export licensing information sought pursuant to section 12(c) of the EAA. See 15 C.F.R. Part 736, Supp. 2 (Administrative Order One)(2000). 10 the statute containing this provision to lapse on a number of occasions, Congress has authorized the President, also by means of statute, to maintain the force of the confidentiality provision by way of executive order and has acted in accordance with the continued confidentiality of such information during those times of lapse.",
"Further, Congress has renewed the confidentiality provision each time it has renewed the EAA. Finally, on November 2, 2000, Congress renewed the EAA of 1979 through August 20, 2001. In renewing the Act and ending the most recent period of lapse, Senator Gramm, Chairman of the Senate Committee on Banking, Housing and Urban Affairs, stated that “replacing the 1994 expiration date with a 2001 expiration date will make clear that [Commerce’s] authority to apply the 12(c) confidentiality provisions of the 1979 act is to be considered as covering any information regarding license applications obtained during that time period, as if there had been no interruption of authority.” 146 Cong. Rec. S11365 (Oct. 30, 2000). In signing the amendment on November 13, 2000, President Clinton also stated: “the reauthorization confirms the Department’s ability to keep export licensing information obtained during the lapse of the EAA from public disclosure, which is a critical part of the Department’s export control system and protects sensitive business information and commercial interests of U.S. exporters.” Statement by the President, November 13, 2000.",
"This subsequent legislative 11 history and comment by the executive branch specifically demonstrate Congress’ intent to preserve the confidentiality of the precise export license information sought in this case pursuant to executive order during periods of lapse. See Mechanic, 809 F.2d at 1114 (“the subsequent legislative history accompanying the enactment of the Export Administration Amendments Act of 1985 supports the validity of the regulation.”). Where Congress has made plain its intention to exclude the information sought by Appellees from public disclosure under FOIA, the purpose of Exemption 3 – to ensure that “basic policy decisions on governmental secrecy are made by the Legislative rather than the Executive branch” – is satisfied. American Jewish Congress, 574 F.2d at 628. In addition, where there is no dispute that Congress granted the President authority to extend the provisions of the EAA containing the statutory exemption and that the President has exercised this authority in signing Executive Order 12,924, an overly technical and formalistic reading of FOIA to disclose information clearly intended to be confidential would undermine the Supreme Court’s direction that the FOIA exemptions are to be given meaningful reach and application. In light of Congress’ clear expression of its intent to protect the confidentiality of the requested export licensing information, it would be truly nonsensical to protect such information submitted to the Department through 12 August 20, 1994, release identical information submitted between August 21, 1994 and November 13, 2000, and again protect such information from November 14, 2000 forward. The confidentiality of the export licensing information sought by Appellees, provided by section 12(c) of the EAA, was maintained by virtue of Executive Order 12,924.",
"III. We conclude that the comprehensive legislative scheme as a whole – the confidentiality provision of the EAA, the intended and foreseen periodic expiration of the EAA, and the Congressional grant of power to the President to prevent the lapse of its important provisions during such times – exempts from disclosure the export licensing information requested by Appellees. We, therefore, reverse the grant of summary judgment in favor of Appellees and remand to the district court for the entry of judgment in favor of the Appellant. REVERSED AND REMANDED 13"
]
| https://www.courtlistener.com/api/rest/v3/opinions/75105/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
FINAL OFFICE ACTION after RCE This application has been reassigned to another examiner in Art Unit 1774 and the following will apply for this application: Please direct all written correspondence with the correct application serial number for this application to Art Unit 1774. Telephone inquiries regarding this application should be directed to the Electronic Business Center (EBC) at http://www.uspto.gov/ebc/index.html or 1-866-217-9197 or to the Examiner at (571) 272-1139. All official facsimiles should be transmitted to the centralized fax receiving number (571)-273-8300.
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 § 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.
New claims 27-28 and 36-41 are rejected under 35 U.S.C. 103 as being unpatentable over Falco (US 4913553) in view of COLIN et al. (US 5033650) and ROVELLINI (WO 2007/113627). FALCO discloses an apparatus for use with a fluid dispenser configured to dispense a mixture of multiple fluid components, the apparatus comprising a static mixer 36 or 170 including an elongate tubular body 150 defining a fluid passageway configured to receive first and second fluid components; a plurality of mixing baffles 168 located within the fluid passageway, the plurality of mixing baffles being configured to mix the first and second fluid components when received in the fluid passageway; a cartridge 20 or 130 including a first cylinder 30 or 130 defining a first chamber for holding the first fluid component and a second cylinder (another of 30 or 130) defining a second chamber for holding the second fluid component; the first and second cylinders have respective first and second fluid outlets proximate 146, 148 in fluid communication with the first and second chambers, respectively, and also in fluid communication selectively (via a seal formed from the portion of the wall 146 forming the cylinder 130, col. 7, line 61-67) with the fluid passageway of the static mixer 170; an interior wall which forms an interior volume across the chambers and the interior of the elongate tubular body when the coupling 152 of the elongate tubular body 150 is connected to the head 138 of the chambers; frangible closure members at 146; at least one fluid dispenser part includes at least one of: 1) a receptacle (112, 110) connected to the first and second cylinders of the cartridge; and 2) a handle (174, crank handle to assist in dispensing as seen fig 1) and/or the handle 154 in figure 13; the plurality of mixing baffles (helical baffles 170) includes at least two different kinds of mixing baffles that define a plurality of undercuts (see the spacing between the helical baffles 170); and the nozzle with a dispensing tip (figure 13: 156, 158) configured to receive the first and second fluid components from the static mixer. FALCO does not disclose the newly recited frangible closure members feature or the cylinders, elongate tubular body, and the baffles being an integrated unitary single piece. The newly applied reference to COLIN et al. discloses an analogous fluid dispenser configured to dispense a mixture of multiple fluid components; the dispenser apparatus comprising a static mixer 36 within an elongate tubular body 14 defining a fluid passageway 34 configured to receive first and second fluid components 15, 16 within the cylinders/chambers 15 and 16; a plurality of mixing baffles 36 located within the fluid passageway 34 extending along a longitudinal direction; the plurality of mixing baffles 36 being configured to mix the first and second fluid components 15, 16 when received in the fluid passageway; a cartridge 12 including the first cylinder at 15 defining the first chamber (defined within 15) for holding the first fluid component and a second cylinder at 16 defining the second chamber (defined within 16) for holding the second fluid component; the first and second cylinders 15, 16 have corresponding first and second fluid outlets 21, 22 in fluid communication with the first and second chambers; the fluid outlets 21, 22 having distal ends that are sealed with first and second frangible closure members 24, 25 that are positioned downstream from the first and second chambers within 15 and 16; the frangible closure members 24, 25 are initially closed in positions that block flow of the components into the fluid passageway 34; these positions being perpendicular to said longitudinal direction (Figs. 1 and 6); the first and second frangible closure members 24, 25 are integrally formed (molded therewith) with the cartridge (col. 3, lines 30-41); and the first and second frangible closure members 24, 25 are configured to open in positions parallel to said longitudinal direction via the score lines 26 to permit flow of the components into the fluid passageway 34 (col. 3, lines 34-41). It would have been obvious to one skilled in the art before the effective filing date of the invention to have substituted/modified the frangible closure members in FALCO with first and second frangible closure members that are instead positioned downstream from the chambers as taught by COLIN et al. for the purpose of closing off the distal ends of the fluid outlets (such distal ends being located far downstream from the chambers) while permitting opening of the fluid outlets in response to a driving force applied to the chambers (col. 3, lines 21-41). Furthermore, the prior art to FALCO merely differs from the now claimed device by the substitution of frangible closure members; the substituted components and their functions were known in the art as evidenced by COLIN et al.; one of ordinary skill in the art could have readily substituted known frangible closure members chosen from a finite list of such frangible closure members heating elements for another; and the results of the substitution would have been wholly predictable and obvious since the substitution of frangible closure members from the finite list of known frangible closure members for another would have yielded predictable results to one of ordinary skill in the art at the time of the invention, i.e., the predictable result of closing/sealing off the distal ends of the fluid outlets while permitting opening of the fluid outlets in response to a driving force applied to the chambers. See KSR, supra and MPEP 2143. "Having established that this knowledge was in the art, the examiner could then properly rely, as put forth by the solicitor, on a conclusion of obviousness ‘from common knowledge and common sense of the person of ordinary skill in the art without any specific hint or suggestion in a particular reference."). In re Bozek, 416 F.2d 1385 (CCPA 1969). Accordingly, providing frangible closure members that are downstream from the chambers is knowledge known in the art as exemplified by COLIN et al. and to apply such common knowledge and common sense to FALCO would have been well within the realm of obviousness to one skilled in the dispensing/mixing art. "Indeed, we have repeatedly held that an implicit motivation to combine exists not only when a suggestion may be gleaned from the prior art as a whole, but when the ‘improvement’ is technology-independent and the combination of references results in a product or process that is more desirable, for example because it is stronger, cheaper, cleaner, faster, lighter, smaller, more durable, or more efficient. Because the desire to enhance commercial opportunities by improving a product or process is universal—and even common-sensical—we have held that there exists in these situations a motivation to [employ 35 USC 103] even absent any hint of suggestion in the references themselves." Dystar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick, 464 F.3d 1356, 1368, 80 USPQ2d 1641, 1651 (Fed. Cir. 2006). Accordongly, to improve the product of FALCO by integrally forming/molding the frangible closure members at the distal ends of the fluid outlets as taught by COLIN et al. as opposed to locating the frangible closure members well upstream of said distal ends and deeply immersed in the innards of the cartridge (as in FALCO) would result in a product that is likely cheaper and more efficient to manufacture. ROVELLINI is relied upon for the same reasons expressed in the final rejection mailed 23 SEP 2019, the Examiner’s Answer of 23 JUN 2020, and the PTAB Decision of 1 OCT 2021.
Claims 29-35 are rejected under 35 U.S.C. 103 as being unpatentable over Falco (US 4913553) in view of COLIN et al. and ROVELLINI (WO 2007/1113627) as applied to claim 28 above and further in view of Gronenmeyer (US 3029987) for the same reasons expressed in the final rejection mailed 23 SEP 2019 and the Examiner’s Answer of 23 JUN 2020.
Allowable Subject Matter None.
Response to Amendment Applicant's arguments with respect to the pending claims have been considered but are deemed to be moot in view of the new grounds of rejection necessitated by amendment.
Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The cited prior art discloses dispensing devices with frangible closure members. Applicant's amendment necessitated the new grounds of rejection. Accordingly, THIS ACTION IS MADE FINAL. See M.P.E.P. § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 C.F.R. § 1.136(a). Per Rule 1.116(b)(3): “An amendment touching the merits of the application or patent under reexamination may be admitted upon a showing of good and sufficient reasons why the amendment is necessary and was not earlier presented.” Thus, an amendment after final lacking such showing will be denied entry. A SHORTENED STATUTORY PERIOD FOR RESPONSE TO THIS FINAL ACTION IS SET TO EXPIRE THREE MONTHS FROM THE DATE OF THIS ACTION. IN THE EVENT A FIRST RESPONSE 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 C.F.R. § 1.136(a) WILL BE CALCULATED FROM THE MAILING DATE OF THE ADVISORY ACTION. IN NO EVENT WILL THE STATUTORY PERIOD FOR RESPONSE EXPIRE LATER THAN SIX MONTHS FROM THE DATE OF THIS FINAL ACTION. ANY RESPONSE FILED AFTER THE MAILING DATE OF THIS FINAL REJECTION WILL BE SUBJECT TO THE PROVISIONS OF MPEP 714.12 AND 714.13 - NO EXCEPTIONS. IMPORTANT NOTE: The examiner of record follows the interview after-final policy set forth in MPEP 713.09: Normally, one interview after final rejection is permitted. However, prior to the interview, the intended purpose and content of the interview [agenda] should be presented briefly, preferably in writing. Such an interview may be granted if the examiner is convinced that disposal or clarification for appeal may be accomplished with only nominal further consideration. Interviews merely to restate arguments of record or to discuss new limitations which would require more than nominal reconsideration or new search should be denied. (emphasis added) The agenda will be made of record per PTO policy.
Moreover, any response after-final should be filed under the no-fee required AFCP 2.0 program, if meeting the program requirements, that authorizes additional time for examiners, at their discretion, to search and/or consider responses after final rejection during this late stage of the prosecution. SEE: https://www.uspto.gov/patent/initiatives/after-final-consideration-pilot-20 .
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Charles Cooley in Art Unit 1774 whose telephone number is (571) 272-1139. The examiner can normally be reached on Monday - Friday. The fax phone number for the organization where this application or proceeding is assigned is (571) 273-8300. Written or telephonic status inquiries will not be responded to - see the next section. 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://www.uspto.gov/patents/process/status/private_pair/index.jsp. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). Additional assistance can be obtained via the Ombudsman Pilot Program is designed to enhance the USPTO’s ability to assist applicants and/or their representatives with issues that arise during patent application prosecution. More specifically, if there is a breakdown in the normal prosecution process, the Ombudsman Pilot Program can assist in getting the process back on track. See http://www.uspto.gov/patents/ombudsman.jsp . 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.
/CHARLES COOLEY/Examiner, Art Unit 1774
21 July 2022 | 2022-07-26T22:07:49 | [
"FINAL OFFICE ACTION after RCE This application has been reassigned to another examiner in Art Unit 1774 and the following will apply for this application: Please direct all written correspondence with the correct application serial number for this application to Art Unit 1774. Telephone inquiries regarding this application should be directed to the Electronic Business Center (EBC) at http://www.uspto.gov/ebc/index.html or 1-866-217-9197 or to the Examiner at (571) 272-1139. All official facsimiles should be transmitted to the centralized fax receiving number (571)-273-8300. 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 § 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.",
"New claims 27-28 and 36-41 are rejected under 35 U.S.C. 103 as being unpatentable over Falco (US 4913553) in view of COLIN et al. (US 5033650) and ROVELLINI (WO 2007/113627). FALCO discloses an apparatus for use with a fluid dispenser configured to dispense a mixture of multiple fluid components, the apparatus comprising a static mixer 36 or 170 including an elongate tubular body 150 defining a fluid passageway configured to receive first and second fluid components; a plurality of mixing baffles 168 located within the fluid passageway, the plurality of mixing baffles being configured to mix the first and second fluid components when received in the fluid passageway; a cartridge 20 or 130 including a first cylinder 30 or 130 defining a first chamber for holding the first fluid component and a second cylinder (another of 30 or 130) defining a second chamber for holding the second fluid component; the first and second cylinders have respective first and second fluid outlets proximate 146, 148 in fluid communication with the first and second chambers, respectively, and also in fluid communication selectively (via a seal formed from the portion of the wall 146 forming the cylinder 130, col. 7, line 61-67) with the fluid passageway of the static mixer 170; an interior wall which forms an interior volume across the chambers and the interior of the elongate tubular body when the coupling 152 of the elongate tubular body 150 is connected to the head 138 of the chambers; frangible closure members at 146; at least one fluid dispenser part includes at least one of: 1) a receptacle (112, 110) connected to the first and second cylinders of the cartridge; and 2) a handle (174, crank handle to assist in dispensing as seen fig 1) and/or the handle 154 in figure 13; the plurality of mixing baffles (helical baffles 170) includes at least two different kinds of mixing baffles that define a plurality of undercuts (see the spacing between the helical baffles 170); and the nozzle with a dispensing tip (figure 13: 156, 158) configured to receive the first and second fluid components from the static mixer.",
"FALCO does not disclose the newly recited frangible closure members feature or the cylinders, elongate tubular body, and the baffles being an integrated unitary single piece. The newly applied reference to COLIN et al. discloses an analogous fluid dispenser configured to dispense a mixture of multiple fluid components; the dispenser apparatus comprising a static mixer 36 within an elongate tubular body 14 defining a fluid passageway 34 configured to receive first and second fluid components 15, 16 within the cylinders/chambers 15 and 16; a plurality of mixing baffles 36 located within the fluid passageway 34 extending along a longitudinal direction; the plurality of mixing baffles 36 being configured to mix the first and second fluid components 15, 16 when received in the fluid passageway; a cartridge 12 including the first cylinder at 15 defining the first chamber (defined within 15) for holding the first fluid component and a second cylinder at 16 defining the second chamber (defined within 16) for holding the second fluid component; the first and second cylinders 15, 16 have corresponding first and second fluid outlets 21, 22 in fluid communication with the first and second chambers; the fluid outlets 21, 22 having distal ends that are sealed with first and second frangible closure members 24, 25 that are positioned downstream from the first and second chambers within 15 and 16; the frangible closure members 24, 25 are initially closed in positions that block flow of the components into the fluid passageway 34; these positions being perpendicular to said longitudinal direction (Figs. 1 and 6); the first and second frangible closure members 24, 25 are integrally formed (molded therewith) with the cartridge (col. 3, lines 30-41); and the first and second frangible closure members 24, 25 are configured to open in positions parallel to said longitudinal direction via the score lines 26 to permit flow of the components into the fluid passageway 34 (col. 3, lines 34-41).",
"It would have been obvious to one skilled in the art before the effective filing date of the invention to have substituted/modified the frangible closure members in FALCO with first and second frangible closure members that are instead positioned downstream from the chambers as taught by COLIN et al. for the purpose of closing off the distal ends of the fluid outlets (such distal ends being located far downstream from the chambers) while permitting opening of the fluid outlets in response to a driving force applied to the chambers (col. 3, lines 21-41).",
"Furthermore, the prior art to FALCO merely differs from the now claimed device by the substitution of frangible closure members; the substituted components and their functions were known in the art as evidenced by COLIN et al. ; one of ordinary skill in the art could have readily substituted known frangible closure members chosen from a finite list of such frangible closure members heating elements for another; and the results of the substitution would have been wholly predictable and obvious since the substitution of frangible closure members from the finite list of known frangible closure members for another would have yielded predictable results to one of ordinary skill in the art at the time of the invention, i.e., the predictable result of closing/sealing off the distal ends of the fluid outlets while permitting opening of the fluid outlets in response to a driving force applied to the chambers. See KSR, supra and MPEP 2143.",
"\"Having established that this knowledge was in the art, the examiner could then properly rely, as put forth by the solicitor, on a conclusion of obviousness ‘from common knowledge and common sense of the person of ordinary skill in the art without any specific hint or suggestion in a particular reference.\"). In re Bozek, 416 F.2d 1385 (CCPA 1969). Accordingly, providing frangible closure members that are downstream from the chambers is knowledge known in the art as exemplified by COLIN et al.",
"and to apply such common knowledge and common sense to FALCO would have been well within the realm of obviousness to one skilled in the dispensing/mixing art. \"Indeed, we have repeatedly held that an implicit motivation to combine exists not only when a suggestion may be gleaned from the prior art as a whole, but when the ‘improvement’ is technology-independent and the combination of references results in a product or process that is more desirable, for example because it is stronger, cheaper, cleaner, faster, lighter, smaller, more durable, or more efficient. Because the desire to enhance commercial opportunities by improving a product or process is universal—and even common-sensical—we have held that there exists in these situations a motivation to [employ 35 USC 103] even absent any hint of suggestion in the references themselves.\"",
"Dystar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick, 464 F.3d 1356, 1368, 80 USPQ2d 1641, 1651 (Fed. Cir. 2006). Accordongly, to improve the product of FALCO by integrally forming/molding the frangible closure members at the distal ends of the fluid outlets as taught by COLIN et al. as opposed to locating the frangible closure members well upstream of said distal ends and deeply immersed in the innards of the cartridge (as in FALCO) would result in a product that is likely cheaper and more efficient to manufacture. ROVELLINI is relied upon for the same reasons expressed in the final rejection mailed 23 SEP 2019, the Examiner’s Answer of 23 JUN 2020, and the PTAB Decision of 1 OCT 2021. Claims 29-35 are rejected under 35 U.S.C.",
"103 as being unpatentable over Falco (US 4913553) in view of COLIN et al. and ROVELLINI (WO 2007/1113627) as applied to claim 28 above and further in view of Gronenmeyer (US 3029987) for the same reasons expressed in the final rejection mailed 23 SEP 2019 and the Examiner’s Answer of 23 JUN 2020. Allowable Subject Matter None. Response to Amendment Applicant's arguments with respect to the pending claims have been considered but are deemed to be moot in view of the new grounds of rejection necessitated by amendment. Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.",
"The cited prior art discloses dispensing devices with frangible closure members. Applicant's amendment necessitated the new grounds of rejection. Accordingly, THIS ACTION IS MADE FINAL. See M.P.E.P. § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 C.F.R. § 1.136(a). Per Rule 1.116(b)(3): “An amendment touching the merits of the application or patent under reexamination may be admitted upon a showing of good and sufficient reasons why the amendment is necessary and was not earlier presented.” Thus, an amendment after final lacking such showing will be denied entry. A SHORTENED STATUTORY PERIOD FOR RESPONSE TO THIS FINAL ACTION IS SET TO EXPIRE THREE MONTHS FROM THE DATE OF THIS ACTION.",
"IN THE EVENT A FIRST RESPONSE 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 C.F.R. § 1.136(a) WILL BE CALCULATED FROM THE MAILING DATE OF THE ADVISORY ACTION. IN NO EVENT WILL THE STATUTORY PERIOD FOR RESPONSE EXPIRE LATER THAN SIX MONTHS FROM THE DATE OF THIS FINAL ACTION.",
"ANY RESPONSE FILED AFTER THE MAILING DATE OF THIS FINAL REJECTION WILL BE SUBJECT TO THE PROVISIONS OF MPEP 714.12 AND 714.13 - NO EXCEPTIONS. IMPORTANT NOTE: The examiner of record follows the interview after-final policy set forth in MPEP 713.09: Normally, one interview after final rejection is permitted. However, prior to the interview, the intended purpose and content of the interview [agenda] should be presented briefly, preferably in writing. Such an interview may be granted if the examiner is convinced that disposal or clarification for appeal may be accomplished with only nominal further consideration. Interviews merely to restate arguments of record or to discuss new limitations which would require more than nominal reconsideration or new search should be denied.",
"(emphasis added) The agenda will be made of record per PTO policy. Moreover, any response after-final should be filed under the no-fee required AFCP 2.0 program, if meeting the program requirements, that authorizes additional time for examiners, at their discretion, to search and/or consider responses after final rejection during this late stage of the prosecution. SEE: https://www.uspto.gov/patent/initiatives/after-final-consideration-pilot-20 . Any inquiry concerning this communication or earlier communications from the examiner should be directed to Charles Cooley in Art Unit 1774 whose telephone number is (571) 272-1139. The examiner can normally be reached on Monday - Friday. The fax phone number for the organization where this application or proceeding is assigned is (571) 273-8300. Written or telephonic status inquiries will not be responded to - see the next section. 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://www.uspto.gov/patents/process/status/private_pair/index.jsp. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). Additional assistance can be obtained via the Ombudsman Pilot Program is designed to enhance the USPTO’s ability to assist applicants and/or their representatives with issues that arise during patent application prosecution. More specifically, if there is a breakdown in the normal prosecution process, the Ombudsman Pilot Program can assist in getting the process back on track. See http://www.uspto.gov/patents/ombudsman.jsp . 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.",
"/CHARLES COOLEY/Examiner, Art Unit 1774 21 July 2022"
]
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652 N.W.2d 565 (2002) 264 Neb. 801 Ivorie Pearl NEWMAN, Personal Representative of the Estate of John Henry M. Chamberlin, deceased, Appellee, v. Alfred THOMAS, Appellant. No. S-01-939. Supreme Court of Nebraska. October 25, 2002. *568 Robert C. McGowan, Jr., of McGowan & McGowan, Omaha, for appellant. Michael D. McClellan, of Nelson McClellan, Omaha, for appellee. HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ. CONNOLLY, J. In this case, we must decide whether the Nebraska Probate Code requires the owner of a non-pay-on-death, single-party account to give his or her financial institution signed written notice to add a pay-on-death (POD) beneficiary to the account. Before his death, John Henry M. Chamberlin opened a single-party certificate of deposit account (CD) with no POD beneficiary at American National Bank (American National). Although there is some evidence that Chamberlin attempted to add the appellant, Alfred Thomas, as a POD beneficiary, it is undisputed that Chamberlin did not give American National signed written notice. The district court ruled that Chamberlin's signed written notice was required and entered summary judgment for Ivorie Pearl Newman, the personal representative of Chamberlin's estate. We affirm. I. BACKGROUND In May 1997, Chamberlin opened a non-POD, single-party CD with American National. A standard form was used to open the CD. Consistent with its normal practice, American National gave Chamberlin the original form and retained two copies for its records. Chamberlin died on April 16, 1999. His will named his sister, Newman, as the personal representative. On August 31, Newman requested American National to deposit the proceeds of the CD into an estate checking account at American National. American National then deposited about $50,000, the proceeds of the CD, into the estate checking account. At the time the funds were deposited, Newman was not aware of any other claims on the CD. Thomas had been Chamberlin's friend and had helped Chamberlin with errands and household chores. After Chamberlin's death, Thomas arrived at an American National branch and claimed that before Chamberlin's death, he had made Thomas a POD beneficiary to the CD. When Thomas arrived at American National, he presented the original form issued to Chamberlin when he opened the CD. On the area of the form designated for the names of POD beneficiaries, someone had typed "POD ALFORD THOMAS [sic]." Someone had also placed a handwritten "x" in the box labeled "Single Party Account with Pay on Death." Notably, next to this box is a space for the owner's initials. This space is blank. As noted above, American National retained two copies of the form used when Chamberlin opened the CD. "POD AFORD THOMAS" and the handwritten "x" do not appear on either of these copies. No one at American National knows who made the changes. In addition, American National has no other document or record indicating that Chamberlin requested that Thomas be made a POD beneficiary to the CD. Thomas claims that an American National employee, Patrice Smith, was responsible for making the handwritten "x" and typing "POD ALFORD THOMAS." According to Thomas' deposition testimony, in January or February 1998, he drove Chamberlin to an American National branch so that Chamberlin could withdraw interest from the CD. While there, Chamberlin met with Smith. Thomas claims he *569 was present throughout this meeting and that during the meeting, Chamberlin orally requested that Thomas be added as the POD beneficiary to the CD. Thomas stated that Chamberlin then handed Smith the original form used to open the CD and that she "typed something" on it. Thomas also claimed that Chamberlin signed at least one and perhaps two documents during the meeting. Thomas admitted, however, that he did not notice what Chamberlin was signing. Chamberlin's signature appears three times on the original form used to open the CD. Two of these signatures were clearly made when the account was opened. The third signature is under a notation made on the second page. The notation refers to a withdrawal of interest made on January 7, 1998. The notation contains no reference to the addition of Thomas as a POD beneficiary. In her deposition, Smith said that she does not remember the January 1998 meeting with Chamberlin. She also testified that she does not know if she made the handwritten "x" or typed "POD AFORD THOMAS." After Thomas attempted to claim the CD, American National froze the estate checking account into which it had previously deposited the proceeds from the CD. Newman then filed this declaratory judgment action against American National and Thomas. American National filed a motion seeking leave to deposit the disputed funds into court. The court granted the motion and dismissed American National. Newman moved for summary judgment. At the summary judgment hearing, Thomas filed an affidavit under Neb.Rev.Stat. § 25-1335 (Reissue 1995) seeking a continuance so that Thomas could have an expert analyze whether Smith's typewriter had been used to type "POD ALFORD THOMAS." The court treated the affidavit as a motion to resist summary judgment. The court entered summary judgment for Newman. It held that to change Chamberlin's CD to a POD account, the Nebraska Probate Code required him to give signed written notice to American National requesting that the bank add Thomas as a POD beneficiary. Because there was no evidence that Chamberlin had given signed written notice to American National, the court granted Newman summary judgment. Thomas appealed. II. ASSIGNMENTS OF ERROR Thomas assigns, rephrased and reordered, that the district court erred in (1) interpreting and applying the applicable provisions of the Nebraska Probate Code, (2) granting Newman's motion for summary judgment, and (3) failing to order a continuance of the summary judgment hearing. III. STANDARD OF REVIEW Summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. American Fam. Mut. Ins. Co. v. Hadley, 264 Neb. 435, 648 N.W.2d 769 (2002). Statutory interpretation presents a question of law, on which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. American Bus. Info. v. Egr, ante, 264 Neb. 574, 650 N.W.2d 251 (2002); A-1 Metro Movers v. Egr, 264 Neb. 291, 647 N.W.2d 593 (2002). *570 IV. ANALYSIS 1. INTERPRETATION OF APPLICABLE PROVISIONS OF NEBRASKA PROBATE CODE Article 27 of the Nebraska Probate Code governs nonprobate transfers, including POD accounts. See Neb.Rev.Stat. §§ 30-2715 through 30-2746 (Reissue 1995). In 1993, the Legislature repealed the previous version of article 27 and replaced it with a version based on the revised article VI of the Uniform Probate Code. The revised version of article 27 governs this case. Under the revised article 27, when the owner of a POD, single-party account dies, the sums on deposit belong to the surviving beneficiary or beneficiaries. § 30-2723(b)(2). A non-POD, single-party account, however, is not affected by the death of the owner. Instead, the amount the owner was beneficially entitled to immediately before death is transferred to the estate. § 30-2723(c). If Chamberlin's CD was a POD, single-party account with Thomas as the beneficiary, Thomas is entitled to the proceeds from the CD. But, if Chamberlin never successfully added Thomas as the CD's POD beneficiary, then Chamberlin's estate is entitled to the proceeds. The district court determined that § 30-2724 governs changing a non-POD, single-party account into a POD account. Section 30-2724 provides: (a) Rights at death under section 30-2723 are determined by the type of account at the death of a party. The type of account may be altered by written notice given by a party to the financial institution to change the type of account or to stop or vary payment under the terms of the account. The notice must be signed by a party and received by the financial institution during the party's lifetime.
(Emphasis supplied.) The court interpreted the emphasized language as making the signed written notice of a party to the account a mandatory requirement for changing the type of account. Thomas claims that the court made two errors in interpreting § 30-2724. First, he claims that the language sets out a permissive rather than a mandatory method for changing the type of account. Second, he argues that even if the language of § 30-2724 is mandatory, the section applies only to the modification of an existing multiparty or POD account and not to the creation of a multiparty or POD account. We disagree with both of these arguments. (a) Is Language of § 30-2724 Mandatory? Thomas argues that the use of the word "may" in § 30-2724 sets out a permissive rather than a mandatory method for altering the type of account. See Neb.Rev.Stat. § 49-802(1) (Reissue 1998) ("[w]hen the word may appears, permissive or discretionary action is presumed"). Newman counters that "may" in § 30-2724 refers only to the ability of a party to alter the form of his or her account. She argues that § 30-2724 is permissive in the sense that a party may choose to change his or her account from one form to another. But, to put the change into effect, the party must give his or her financial institution signed written notice. In the absence of anything to the contrary, statutory language is to be given its plain and ordinary meaning; an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. Capital City Telephone v. Nebraska Dept. of Rev., 264 Neb. 515, 650 N.W.2d 467 (2002). Neither Thomas' nor Newman's construction of § 30-2724 is *571 facially unreasonable. We note that other courts are split on whether similar statutory language is permissive or mandatory. Compare Linehan v. First Nat. Bank of Gordon, 7 Neb.App. 54, 579 N.W.2d 157 (1998) (construing predecessor to § 30-2724 as mandatory), Conservatorship of Milbrath, 508 N.W.2d 360 (N.D.1993), and Estate of Wolfinger v. Wolfinger, 793 P.2d 393 (Utah App.1990), with Jampol v. Farmer, 259 Va. 53, 524 S.E.2d 436 (2000). We thus resort to statutory interpretation. Initially, we note that the Legislature has instructed us to construe the provisions of article 27 so as "to effectuate their general purpose to make uniform the law of those states which enact them." § 30-2746. Section 30-2724 corresponds to § 6-213 of the revised article VI of the Uniform Probate Code. (We note that there has been a technical amendment to § 6-213, which Nebraska has not adopted.) Nine other jurisdictions have adopted § 6-213. Unif. Multiple Person Accounts Act, Table of Jurisdictions Wherein Act Has Been Adopted, 8B U.L.A. 1 (Supp.2002) (listing jurisdictions which have enacted Multiple Person Accounts Act portion of revised article VI). None of these jurisdictions appear to have addressed whether the method set out for altering the type of account in § 6-213 is mandatory. However, § 6-105 of the prerevision version of article VI, the predecessor of§ 6-213, contained the same "may be altered" language that appears in §§ 6-213 and 30-2724: [The form of the account] may be altered by written order given by a party to the financial institution to change the form of the account.... The order or request must be signed by a party, received by the financial institution during the party's lifetime, and not countermanded by other written order of the same party during his lifetime. (Emphasis supplied.) Unif. Probate Code § 6-105, 8 U.L.A. 474 (1998). Because of the similarity between §§ 6-105 and 6-213, the manner in which courts have interpreted § 6-105 is persuasive in predicting how courts will interpret § 6-213. The majority of courts interpreting provisions based on § 6-105, including the Nebraska Court of Appeals, have determined that the language in § 6-105 sets out a mandatory method for altering the form of an account. Linehan v. First Nat. Bank of Gordon, supra; Conservatorship of Milbrath, supra; Estate of Wolfinger v. Wolfinger, supra, But see Jampol v. Farmer, supra (language is permissive). Moreover, construing § 30-2724 as setting out a mandatory notice requirement is more consistent with our standards of statutory construction and with the policies underlying article 27. In discerning the meaning of a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense. Capitol City Telephone v. Nebraska Dept. of Rev., supra. A court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless. Sydow v. City of Grand Island, 263 Neb. 389, 639 N.W.2d 913 (2002). As an aid to statutory interpretation, appellate courts must look to the statute's purpose and give to the statute a reasonable construction which best achieves that purpose, rather than a construction which would defeat it. Id.; Fontenelle Equip, v. Pattlen Enters., 262 Neb. 129, 629 N.W.2d 534 (2001). To construe § 30-2724 as permissive would be to render the statute meaningless. It would neither create new rights nor limit existing ones. Any other method for modifying a contract would remain *572 available to alter the form of an account. Signed written notice would simply be a nonbinding legislative suggestion. By contrast, to read § 30-2724 as setting out a mandatory method for altering the type of an account gives the statute a purpose consistent with the rest of article 27. Article 27 is designed to provide simple nonprobate alternatives for the disposition of assets upon death of a party to a multiparty or POD account. Accord Conservatorship of Milbrath, 508 N.W.2d 360 (N.D.1993). Requiring signed written notice to alter the type of account furthers this purpose by ensuring clear evidence of the account owner's intent, thus preventing fraud and adding certainty to nonprobate transfers. We conclude that the use of the word "may" in § 30-2724(a) grants a party the right to alter the type of account the party owns. To exercise that right, however, a party must give his or her financial institution signed written notice. (b) Does § 30-2724 Apply to Transforming Non-POD, Single-Party Account Into POD Account? Thomas argues that even if § 30-2724 sets out a mandatory method for altering the type of account, it applies only to altering an existing multiparty or POD account, not to transforming a non-POD, single-party account into a POD account. The scope of § 30-2724 is set out in the statute's first sentence: "Rights at death under section 30-2723 are determined by the type of account at the death of a party." (Emphasis supplied.) This language means that § 30-2724 applies to an account if § 30-2723 sets out what rights at death accompany that type of account. Section 30-2723(c) sets out what rights at death a non-POD, single-party account carries: "Sums on deposit in a single-party account without a POD designation... are not affected by death of a party, but the amount to which the decedent, immediately before death, was beneficially entitled under section 30-2722 is transferred as part of the decedent's estate." Thus, § 30-2724 includes within its scope non-POD, single-party accounts. Thomas' interpretation of § 30-2724 is inconsistent with the purpose underlying the revised article 27. As noted, article 27 was substantially based on the revised article VI of the Uniform Probate Code. The revised article VI has three separate parts, each of which is designed to be a free-standing uniform act. The Uniform Multiple Person Accounts Act is the second part of the Uniform Nonprobate Transfers on Death Act, which in turn corresponds to §§ 30-2716 through 30-2726 of article 27. The prefatory note to the Uniform Multiple Person Accounts Act does not draw a distinction between single and multiparty accounts. Instead, it states that the purpose of the act is to "comprehensively [cover] the problems of financial institution accounts in which one or more persons have an interest." (Emphasis supplied.) Unif. Multiple Person Accounts Act, Prefatory Note, 8B U.L.A. 4 (2001). Under Thomas' interpretation of § 30-2724, however, article 27 is not comprehensive. Rather, it leaves a potentially problematic issue-the proper method for adding a POD beneficiary to a non-POD, single-party account-completely outside the scope of article 27. Thomas relies on Linehan v. First Nat. Bank of Gordon, 7 Neb.App. 54, 579 N.W.2d 157 (1998). In Linehan, a husband and wife opened a joint bank account. Later, the wife orally requested that the bank add her daughter to the account. The bank permitted the daughter to sign the original signature card. After the wife died, the husband attempted to withdraw *573 the funds from the account and the daughter objected. The Court of Appeals ruled that to change the form of an existing joint account, the owner must give the bank a signed written order. The Linehan court went on to state that "[t]here is no statutory restriction in the Nebraska Probate Code which prohibits a party from orally instructing his or her bank to change the party's individual account into a joint account." (Emphasis in original.) 7 Neb.App. at 59, 579 N.W.2d at 160. See, also, Estate of Wolfinger v. Wolfinger, 793 P.2d 393 (Utah App.1990). Linehan, however, was governed by the pre 1993 version of article 27. See Neb.Rev.Stat. §§ 30-2701 through 30-2714 (Reissue 1989). The section of the previous article 27 that corresponds to § 30-2724 is § 30-2705. It provided in part: "The provisions of section 30-2704 as to rights of survivorship are determined by the form of the account at the death of a party." (Emphasis supplied.) § 30-2705. So, just as § 30-2724 refers to § 30-2723 to define its scope, the scope of § 30-2705 was set by reference to another section, § 30-2704. Unlike § 30-2723, § 30-2704 did not speak to what rights at death a non-POD, single-party account carried. Instead, it only addressed what survivorship rights accompany POD and multiparty accounts. Given this, the Linehan court logically concluded that the scope of § 30-2705 did not include changing a non-POD, single-party account into a multiparty or POD account. However, the inclusion of non-POD, single-party accounts in § 30-2723 expands the scope of § 30-2724 beyond that of its § 30-2705 predecessor and means that signed written notice is now required for transforming a non-POD, single party account into a multiparty or POD account. 2. SUMMARY JUDGMENT The party moving for summary judgment has the burden of showing that no genuine issue as to any material fact exists. That party must therefore produce enough evidence to demonstrate his or her entitlement to a judgment if the evidence remains uncontroverted, after which the burden of producing contrary evidence shifts to the party opposing the motion. Richmond v. Case, ante, 264 Neb. 319, 647 N.W.2d 90 (2002). In this case, it is undisputed that Chamberlin opened the CD as a single-party account with no POD beneficiary. As we have set out above, to add Thomas as a POD beneficiary, § 30-2724 required Chamberlin to give American National signed written notice of the desired change. To meet her burden on summary judgment, Newman, as the moving party, was required to present evidence that no such notice was given. She met this burden in the form of deposition and affidavit testimony from American National officers stating they had no record of signed written notice from Chamberlin requesting American National to add Thomas as the CD's POD beneficiary. The burden then switched to Thomas to present evidence that signed written notice was given. But, the record contains no evidence-and Thomas does not even attempt to arguethat Chamberlin gave the notice required by § 30-2724. Thus, Thomas failed to meet his burden and the district court properly entered summary judgment for Newman. 3. CONTINUANCE OF SUMMARY JUDGMENT HEARING Finally, Thomas assigns as error the district court's failure to continue the summary judgment hearing. A continuance authorized by § 25-1335 is within the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion. Eastroads, Inc. v. City of Omaha, 237 *574 Neb. 837, 467 N.W.2d 888 (1991). Thomas sought the continuance so that he could have an expert inspect Smith's typewriter to see if it had been used in typing "POD ALFORD THOMAS" on the original form used to open the CD. But, whether Smith typed "POD ALFORD THOMAS" is irrelevant. Even if she did type it, it would not change the answer to the determinative issue whether Chamberlin gave American National the signed written notice required by § 30-2724. As a result, this assignment of error is without merit. V. CONCLUSION We determine that to add a POD beneficiary to a non-POD, single-party account, the owner of the account must give signed written notice to his or her financial institution. Because Thomas has failed to present any evidence showing that Chamberlin gave signed written notice to American National requesting the bank to add Thomas as a POD beneficiary to Chamberlin's CD, Newman was entitled to summary judgment. AFFIRMED. | 10-30-2013 | [
"652 N.W.2d 565 (2002) 264 Neb. 801 Ivorie Pearl NEWMAN, Personal Representative of the Estate of John Henry M. Chamberlin, deceased, Appellee, v. Alfred THOMAS, Appellant. No. S-01-939. Supreme Court of Nebraska. October 25, 2002. *568 Robert C. McGowan, Jr., of McGowan & McGowan, Omaha, for appellant. Michael D. McClellan, of Nelson McClellan, Omaha, for appellee. HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ. CONNOLLY, J. In this case, we must decide whether the Nebraska Probate Code requires the owner of a non-pay-on-death, single-party account to give his or her financial institution signed written notice to add a pay-on-death (POD) beneficiary to the account. Before his death, John Henry M. Chamberlin opened a single-party certificate of deposit account (CD) with no POD beneficiary at American National Bank (American National). Although there is some evidence that Chamberlin attempted to add the appellant, Alfred Thomas, as a POD beneficiary, it is undisputed that Chamberlin did not give American National signed written notice.",
"The district court ruled that Chamberlin's signed written notice was required and entered summary judgment for Ivorie Pearl Newman, the personal representative of Chamberlin's estate. We affirm. I. BACKGROUND In May 1997, Chamberlin opened a non-POD, single-party CD with American National. A standard form was used to open the CD. Consistent with its normal practice, American National gave Chamberlin the original form and retained two copies for its records. Chamberlin died on April 16, 1999. His will named his sister, Newman, as the personal representative. On August 31, Newman requested American National to deposit the proceeds of the CD into an estate checking account at American National. American National then deposited about $50,000, the proceeds of the CD, into the estate checking account. At the time the funds were deposited, Newman was not aware of any other claims on the CD. Thomas had been Chamberlin's friend and had helped Chamberlin with errands and household chores.",
"After Chamberlin's death, Thomas arrived at an American National branch and claimed that before Chamberlin's death, he had made Thomas a POD beneficiary to the CD. When Thomas arrived at American National, he presented the original form issued to Chamberlin when he opened the CD. On the area of the form designated for the names of POD beneficiaries, someone had typed \"POD ALFORD THOMAS [sic].\" Someone had also placed a handwritten \"x\" in the box labeled \"Single Party Account with Pay on Death.\" Notably, next to this box is a space for the owner's initials. This space is blank. As noted above, American National retained two copies of the form used when Chamberlin opened the CD. \"POD AFORD THOMAS\" and the handwritten \"x\" do not appear on either of these copies.",
"No one at American National knows who made the changes. In addition, American National has no other document or record indicating that Chamberlin requested that Thomas be made a POD beneficiary to the CD. Thomas claims that an American National employee, Patrice Smith, was responsible for making the handwritten \"x\" and typing \"POD ALFORD THOMAS.\" According to Thomas' deposition testimony, in January or February 1998, he drove Chamberlin to an American National branch so that Chamberlin could withdraw interest from the CD. While there, Chamberlin met with Smith.",
"Thomas claims he *569 was present throughout this meeting and that during the meeting, Chamberlin orally requested that Thomas be added as the POD beneficiary to the CD. Thomas stated that Chamberlin then handed Smith the original form used to open the CD and that she \"typed something\" on it. Thomas also claimed that Chamberlin signed at least one and perhaps two documents during the meeting. Thomas admitted, however, that he did not notice what Chamberlin was signing. Chamberlin's signature appears three times on the original form used to open the CD.",
"Two of these signatures were clearly made when the account was opened. The third signature is under a notation made on the second page. The notation refers to a withdrawal of interest made on January 7, 1998. The notation contains no reference to the addition of Thomas as a POD beneficiary. In her deposition, Smith said that she does not remember the January 1998 meeting with Chamberlin. She also testified that she does not know if she made the handwritten \"x\" or typed \"POD AFORD THOMAS.\" After Thomas attempted to claim the CD, American National froze the estate checking account into which it had previously deposited the proceeds from the CD. Newman then filed this declaratory judgment action against American National and Thomas. American National filed a motion seeking leave to deposit the disputed funds into court. The court granted the motion and dismissed American National.",
"Newman moved for summary judgment. At the summary judgment hearing, Thomas filed an affidavit under Neb.Rev.Stat. § 25-1335 (Reissue 1995) seeking a continuance so that Thomas could have an expert analyze whether Smith's typewriter had been used to type \"POD ALFORD THOMAS.\" The court treated the affidavit as a motion to resist summary judgment. The court entered summary judgment for Newman. It held that to change Chamberlin's CD to a POD account, the Nebraska Probate Code required him to give signed written notice to American National requesting that the bank add Thomas as a POD beneficiary. Because there was no evidence that Chamberlin had given signed written notice to American National, the court granted Newman summary judgment.",
"Thomas appealed. II. ASSIGNMENTS OF ERROR Thomas assigns, rephrased and reordered, that the district court erred in (1) interpreting and applying the applicable provisions of the Nebraska Probate Code, (2) granting Newman's motion for summary judgment, and (3) failing to order a continuance of the summary judgment hearing. III. STANDARD OF REVIEW Summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. American Fam. Mut. Ins. Co. v. Hadley, 264 Neb.",
"435, 648 N.W.2d 769 (2002). Statutory interpretation presents a question of law, on which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. American Bus. Info. v. Egr, ante, 264 Neb. 574, 650 N.W.2d 251 (2002); A-1 Metro Movers v. Egr, 264 Neb. 291, 647 N.W.2d 593 (2002). *570 IV. ANALYSIS 1. INTERPRETATION OF APPLICABLE PROVISIONS OF NEBRASKA PROBATE CODE Article 27 of the Nebraska Probate Code governs nonprobate transfers, including POD accounts. See Neb.Rev.Stat. §§ 30-2715 through 30-2746 (Reissue 1995). In 1993, the Legislature repealed the previous version of article 27 and replaced it with a version based on the revised article VI of the Uniform Probate Code. The revised version of article 27 governs this case. Under the revised article 27, when the owner of a POD, single-party account dies, the sums on deposit belong to the surviving beneficiary or beneficiaries.",
"§ 30-2723(b)(2). A non-POD, single-party account, however, is not affected by the death of the owner. Instead, the amount the owner was beneficially entitled to immediately before death is transferred to the estate. § 30-2723(c). If Chamberlin's CD was a POD, single-party account with Thomas as the beneficiary, Thomas is entitled to the proceeds from the CD. But, if Chamberlin never successfully added Thomas as the CD's POD beneficiary, then Chamberlin's estate is entitled to the proceeds. The district court determined that § 30-2724 governs changing a non-POD, single-party account into a POD account. Section 30-2724 provides: (a) Rights at death under section 30-2723 are determined by the type of account at the death of a party.",
"The type of account may be altered by written notice given by a party to the financial institution to change the type of account or to stop or vary payment under the terms of the account. The notice must be signed by a party and received by the financial institution during the party's lifetime. (Emphasis supplied.) The court interpreted the emphasized language as making the signed written notice of a party to the account a mandatory requirement for changing the type of account. Thomas claims that the court made two errors in interpreting § 30-2724. First, he claims that the language sets out a permissive rather than a mandatory method for changing the type of account.",
"Second, he argues that even if the language of § 30-2724 is mandatory, the section applies only to the modification of an existing multiparty or POD account and not to the creation of a multiparty or POD account. We disagree with both of these arguments. (a) Is Language of § 30-2724 Mandatory? Thomas argues that the use of the word \"may\" in § 30-2724 sets out a permissive rather than a mandatory method for altering the type of account. See Neb.Rev.Stat. § 49-802(1) (Reissue 1998) (\"[w]hen the word may appears, permissive or discretionary action is presumed\"). Newman counters that \"may\" in § 30-2724 refers only to the ability of a party to alter the form of his or her account.",
"She argues that § 30-2724 is permissive in the sense that a party may choose to change his or her account from one form to another. But, to put the change into effect, the party must give his or her financial institution signed written notice. In the absence of anything to the contrary, statutory language is to be given its plain and ordinary meaning; an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. Capital City Telephone v. Nebraska Dept. of Rev., 264 Neb. 515, 650 N.W.2d 467 (2002). Neither Thomas' nor Newman's construction of § 30-2724 is *571 facially unreasonable. We note that other courts are split on whether similar statutory language is permissive or mandatory.",
"Compare Linehan v. First Nat. Bank of Gordon, 7 Neb.App. 54, 579 N.W.2d 157 (1998) (construing predecessor to § 30-2724 as mandatory), Conservatorship of Milbrath, 508 N.W.2d 360 (N.D.1993), and Estate of Wolfinger v. Wolfinger, 793 P.2d 393 (Utah App.1990), with Jampol v. Farmer, 259 Va. 53, 524 S.E.2d 436 (2000). We thus resort to statutory interpretation. Initially, we note that the Legislature has instructed us to construe the provisions of article 27 so as \"to effectuate their general purpose to make uniform the law of those states which enact them.\" § 30-2746. Section 30-2724 corresponds to § 6-213 of the revised article VI of the Uniform Probate Code.",
"(We note that there has been a technical amendment to § 6-213, which Nebraska has not adopted.) Nine other jurisdictions have adopted § 6-213. Unif. Multiple Person Accounts Act, Table of Jurisdictions Wherein Act Has Been Adopted, 8B U.L.A. 1 (Supp.2002) (listing jurisdictions which have enacted Multiple Person Accounts Act portion of revised article VI). None of these jurisdictions appear to have addressed whether the method set out for altering the type of account in § 6-213 is mandatory. However, § 6-105 of the prerevision version of article VI, the predecessor of§ 6-213, contained the same \"may be altered\" language that appears in §§ 6-213 and 30-2724: [The form of the account] may be altered by written order given by a party to the financial institution to change the form of the account.... The order or request must be signed by a party, received by the financial institution during the party's lifetime, and not countermanded by other written order of the same party during his lifetime. (Emphasis supplied.)",
"Unif. Probate Code § 6-105, 8 U.L.A. 474 (1998). Because of the similarity between §§ 6-105 and 6-213, the manner in which courts have interpreted § 6-105 is persuasive in predicting how courts will interpret § 6-213. The majority of courts interpreting provisions based on § 6-105, including the Nebraska Court of Appeals, have determined that the language in § 6-105 sets out a mandatory method for altering the form of an account. Linehan v. First Nat. Bank of Gordon, supra; Conservatorship of Milbrath, supra; Estate of Wolfinger v. Wolfinger, supra, But see Jampol v. Farmer, supra (language is permissive). Moreover, construing § 30-2724 as setting out a mandatory notice requirement is more consistent with our standards of statutory construction and with the policies underlying article 27. In discerning the meaning of a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.",
"Capitol City Telephone v. Nebraska Dept. of Rev., supra. A court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless. Sydow v. City of Grand Island, 263 Neb. 389, 639 N.W.2d 913 (2002). As an aid to statutory interpretation, appellate courts must look to the statute's purpose and give to the statute a reasonable construction which best achieves that purpose, rather than a construction which would defeat it. Id. ; Fontenelle Equip, v. Pattlen Enters., 262 Neb. 129, 629 N.W.2d 534 (2001).",
"To construe § 30-2724 as permissive would be to render the statute meaningless. It would neither create new rights nor limit existing ones. Any other method for modifying a contract would remain *572 available to alter the form of an account. Signed written notice would simply be a nonbinding legislative suggestion. By contrast, to read § 30-2724 as setting out a mandatory method for altering the type of an account gives the statute a purpose consistent with the rest of article 27. Article 27 is designed to provide simple nonprobate alternatives for the disposition of assets upon death of a party to a multiparty or POD account. Accord Conservatorship of Milbrath, 508 N.W.2d 360 (N.D.1993).",
"Requiring signed written notice to alter the type of account furthers this purpose by ensuring clear evidence of the account owner's intent, thus preventing fraud and adding certainty to nonprobate transfers. We conclude that the use of the word \"may\" in § 30-2724(a) grants a party the right to alter the type of account the party owns. To exercise that right, however, a party must give his or her financial institution signed written notice. (b) Does § 30-2724 Apply to Transforming Non-POD, Single-Party Account Into POD Account? Thomas argues that even if § 30-2724 sets out a mandatory method for altering the type of account, it applies only to altering an existing multiparty or POD account, not to transforming a non-POD, single-party account into a POD account.",
"The scope of § 30-2724 is set out in the statute's first sentence: \"Rights at death under section 30-2723 are determined by the type of account at the death of a party.\" (Emphasis supplied.) This language means that § 30-2724 applies to an account if § 30-2723 sets out what rights at death accompany that type of account. Section 30-2723(c) sets out what rights at death a non-POD, single-party account carries: \"Sums on deposit in a single-party account without a POD designation... are not affected by death of a party, but the amount to which the decedent, immediately before death, was beneficially entitled under section 30-2722 is transferred as part of the decedent's estate.\" Thus, § 30-2724 includes within its scope non-POD, single-party accounts. Thomas' interpretation of § 30-2724 is inconsistent with the purpose underlying the revised article 27. As noted, article 27 was substantially based on the revised article VI of the Uniform Probate Code. The revised article VI has three separate parts, each of which is designed to be a free-standing uniform act.",
"The Uniform Multiple Person Accounts Act is the second part of the Uniform Nonprobate Transfers on Death Act, which in turn corresponds to §§ 30-2716 through 30-2726 of article 27. The prefatory note to the Uniform Multiple Person Accounts Act does not draw a distinction between single and multiparty accounts. Instead, it states that the purpose of the act is to \"comprehensively [cover] the problems of financial institution accounts in which one or more persons have an interest.\" (Emphasis supplied.)",
"Unif. Multiple Person Accounts Act, Prefatory Note, 8B U.L.A. 4 (2001). Under Thomas' interpretation of § 30-2724, however, article 27 is not comprehensive. Rather, it leaves a potentially problematic issue-the proper method for adding a POD beneficiary to a non-POD, single-party account-completely outside the scope of article 27. Thomas relies on Linehan v. First Nat. Bank of Gordon, 7 Neb.App. 54, 579 N.W.2d 157 (1998). In Linehan, a husband and wife opened a joint bank account. Later, the wife orally requested that the bank add her daughter to the account. The bank permitted the daughter to sign the original signature card. After the wife died, the husband attempted to withdraw *573 the funds from the account and the daughter objected. The Court of Appeals ruled that to change the form of an existing joint account, the owner must give the bank a signed written order.",
"The Linehan court went on to state that \"[t]here is no statutory restriction in the Nebraska Probate Code which prohibits a party from orally instructing his or her bank to change the party's individual account into a joint account.\" (Emphasis in original.) 7 Neb.App. at 59, 579 N.W.2d at 160. See, also, Estate of Wolfinger v. Wolfinger, 793 P.2d 393 (Utah App.1990). Linehan, however, was governed by the pre 1993 version of article 27. See Neb.Rev.Stat. §§ 30-2701 through 30-2714 (Reissue 1989). The section of the previous article 27 that corresponds to § 30-2724 is § 30-2705.",
"It provided in part: \"The provisions of section 30-2704 as to rights of survivorship are determined by the form of the account at the death of a party.\" (Emphasis supplied.) § 30-2705. So, just as § 30-2724 refers to § 30-2723 to define its scope, the scope of § 30-2705 was set by reference to another section, § 30-2704. Unlike § 30-2723, § 30-2704 did not speak to what rights at death a non-POD, single-party account carried. Instead, it only addressed what survivorship rights accompany POD and multiparty accounts. Given this, the Linehan court logically concluded that the scope of § 30-2705 did not include changing a non-POD, single-party account into a multiparty or POD account. However, the inclusion of non-POD, single-party accounts in § 30-2723 expands the scope of § 30-2724 beyond that of its § 30-2705 predecessor and means that signed written notice is now required for transforming a non-POD, single party account into a multiparty or POD account. 2.",
"SUMMARY JUDGMENT The party moving for summary judgment has the burden of showing that no genuine issue as to any material fact exists. That party must therefore produce enough evidence to demonstrate his or her entitlement to a judgment if the evidence remains uncontroverted, after which the burden of producing contrary evidence shifts to the party opposing the motion. Richmond v. Case, ante, 264 Neb. 319, 647 N.W.2d 90 (2002). In this case, it is undisputed that Chamberlin opened the CD as a single-party account with no POD beneficiary. As we have set out above, to add Thomas as a POD beneficiary, § 30-2724 required Chamberlin to give American National signed written notice of the desired change.",
"To meet her burden on summary judgment, Newman, as the moving party, was required to present evidence that no such notice was given. She met this burden in the form of deposition and affidavit testimony from American National officers stating they had no record of signed written notice from Chamberlin requesting American National to add Thomas as the CD's POD beneficiary. The burden then switched to Thomas to present evidence that signed written notice was given. But, the record contains no evidence-and Thomas does not even attempt to arguethat Chamberlin gave the notice required by § 30-2724. Thus, Thomas failed to meet his burden and the district court properly entered summary judgment for Newman. 3. CONTINUANCE OF SUMMARY JUDGMENT HEARING Finally, Thomas assigns as error the district court's failure to continue the summary judgment hearing. A continuance authorized by § 25-1335 is within the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion. Eastroads, Inc. v. City of Omaha, 237 *574 Neb. 837, 467 N.W.2d 888 (1991).",
"Thomas sought the continuance so that he could have an expert inspect Smith's typewriter to see if it had been used in typing \"POD ALFORD THOMAS\" on the original form used to open the CD. But, whether Smith typed \"POD ALFORD THOMAS\" is irrelevant. Even if she did type it, it would not change the answer to the determinative issue whether Chamberlin gave American National the signed written notice required by § 30-2724. As a result, this assignment of error is without merit. V. CONCLUSION We determine that to add a POD beneficiary to a non-POD, single-party account, the owner of the account must give signed written notice to his or her financial institution.",
"Because Thomas has failed to present any evidence showing that Chamberlin gave signed written notice to American National requesting the bank to add Thomas as a POD beneficiary to Chamberlin's CD, Newman was entitled to summary judgment. AFFIRMED."
]
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FORM RW TOP SHIPS INC. 1 VAS. SOFIAS & MEG. ALEXANDROU STREET 151 24, MAROUSSI ATHENS, GREECE November 7, 2013 VIA EDGAR Securities and Exchange Commission treet, N.E. Washington, D.C. 20549 Attn: Mr. Justin Dobbie Re: Top Ships Inc. Rule 477 Application for Withdrawal Registration Statement on Form F-1 (File No. 333-174044) Dear Mr. Dobbie: Pursuant to Rule 477 promulgated under the Securities Act of 1933, as amended (the "Act"), the Company hereby requests that the Securities and Exchange Commission (the "Commission") consent to the withdrawal of the Registration Statement on Form F-1 (File No. 333-174044) initially filed with the Commission on May 9, 2011, together with all exhibits thereto (the "Registration has Statement").The Company determined not to pursue the contemplated public offering in the United States at this time.The Registration Statement was not declared effective by the Commission under the Act, and none of the Company's securities were sold pursuant to the Registration Statement. The Company also respectfully requests that, in accordance with Rule 457(p) of the Act, all fees paid to the Commission in connection with the filing of the Registration Statement be credited for future use. If you have any questions regarding this request for withdrawal, please contact Gary J. Wolfe of Seward & Kissel LLP, counsel to the Company, at (212) 574-1223. Sincerely, TOP SHIPS INC. By: /s/ Alexandros Tsirikos Name: Alexandros Tsirikos Title: Chief Financial Officer | [
"FORM RW TOP SHIPS INC. 1 VAS. SOFIAS & MEG. ALEXANDROU STREET 151 24, MAROUSSI ATHENS, GREECE November 7, 2013 VIA EDGAR Securities and Exchange Commission treet, N.E. Washington, D.C. 20549 Attn: Mr. Justin Dobbie Re: Top Ships Inc. Rule 477 Application for Withdrawal Registration Statement on Form F-1 (File No. 333-174044) Dear Mr. Dobbie: Pursuant to Rule 477 promulgated under the Securities Act of 1933, as amended (the \"Act\"), the Company hereby requests that the Securities and Exchange Commission (the \"Commission\") consent to the withdrawal of the Registration Statement on Form F-1 (File No. 333-174044) initially filed with the Commission on May 9, 2011, together with all exhibits thereto (the \"Registration has Statement\").The Company determined not to pursue the contemplated public offering in the United States at this time.The Registration Statement was not declared effective by the Commission under the Act, and none of the Company's securities were sold pursuant to the Registration Statement. The Company also respectfully requests that, in accordance with Rule 457(p) of the Act, all fees paid to the Commission in connection with the filing of the Registration Statement be credited for future use.",
"If you have any questions regarding this request for withdrawal, please contact Gary J. Wolfe of Seward & Kissel LLP, counsel to the Company, at (212) 574-1223. Sincerely, TOP SHIPS INC. By: /s/ Alexandros Tsirikos Name: Alexandros Tsirikos Title: Chief Financial Officer"
]
| 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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Appellant was prosecuted and convicted of keeping a disorderly or bawdy house, from which judgment she prosecutes this appeal. *Page 609 Bessie Craft, Francis Gay and other witnesses for the State were permitted to testify that appellant's husband was in the automobile business, and that he would bring men and women to the house. Appellant objected to this testimony, alleging "that defendant was the wife of Mr. Farris and that the husband could not testify directly or indirectly against the wife, and that it was an attempt to admit evidence of the acts, conduct and doings of the husband, indirectly, which could not be proven directly, and further that acts, statements and declarations of the husband could not be used against the wife; was hearsay, inadmissible for any purpose and highly prejudicial." Appellant was being prosecuted for keeping a house where prostitutes resorted and resided for the purpose of plying their vocation, and a house where men and women met by mutual appointment for the purpose of sexual intercourse, and the fact that witnesses testify that appellant's husband brought men and women there to engage in unlawful cohabitation would be admissible testimony. The husband, of course, could not be called to give such testimony, but any person who saw the husband engaged in such acts could so testify, and it would not be the husband giving testimony against the wife either directly or indirectly. Such facts were cogent circumstances tending to prove that appellant was in fact keeping a bawdy house, and the court did not err in admitting the testimony. If the husband was thus actively engaged in aiding his wife in violation of the law, his acts and conduct in so doing could be proven, not by him but by competent witnesses. This testimony went to show that the husband would get men and women in his automobile and carry them to the home kept by his wife where they would enter the house and engage in the unlawful acts. Where the husband aids the wife in the commission of a crime such fact can be shown. In a misdemeanor, all persons aiding and abetting the commission of an offense are principals and may be prosecuted as such, and the acts testified as being committed by him, if true, would render him liable as a principal offender, and under such a state of facts his acts and conduct were admissible. Branch's Crim. Law, sec. 681; Cook v. State, 22 Texas Crim. App., 511; Cox v. State, 8 Texas Crim. App., 254. The second bill of exceptions complains of the action of the court in permitting the jury to separate after they had received the charge from the court. The facts are, the case was completed late in the afternoon, and the jurymen not arriving at a verdict were permitted to go to their respective places of abode for the night. This offense is a misdemeanor, and article 746 of the Code of Criminal Procedure provides that in a case of misdemeanor, the court may, at his discretion, permit the jury to separate before verdict, after giving them proper instructions. It is not contended that the court did not properly instruct the jury or that the jury was guilty of any improper conduct, the contention being that the error consisted in permitting the jury to separate, consequently there is nothing to show that the court abused his discretion in permitting the jury to separate, and in the absence of any attempt to show *Page 610 improper conduct on the part of the jury, the bill presents no error. In bill No. 3 it is complained that the court erred in permitting the witness Bessie Craft to testify that Mr. Farris requested her to stay at the house of his wife, and told her she could make lots of money if she would stay there. Of course if the appellant was not present when this conversation took place, and it was not in furtherance of the commission of an offense in which both are principal offenders, there might be grounds of objection, but no such contention is made, the objection being that it would be the husband giving testimony against his wife, and compelling him to do so. Such objection is not sound. In Cook v. State, 22 Texas Crim. App., 511, it is held that if husband and wife act together in the commission of an offense, acts and declarations of either which are res gestae of the transaction, are admissible. And in Cole v. State, 51 Tex.Crim. Rep., and Richards v. State, 55 Tex.Crim. Rep., this court has held that even communications between husband and wife in the presence of another person may be proven by such person, and if that is true, certainly it would be admissible to show the remarks of either to a third person which tended to show that they were engaged in an unlawful undertaking. The same may be said as to the testimony of Francis Gay, who testified to acts of Mr. Farris which would tend to show that he was aiding and assisting his wife in running the disorderly house. As to the testimony of Mrs. Hayden that while she was rooming at the house of appellant men would come there and she would go to other places and have sexual intercourse with them, it certainly would be admissible as tending to show that appellant kept a house where prostitutes resided and especially is this true in the light of Mrs. Hayden's further testimony that she had sexual intercourse with men many times in the room rented by her from appellant. She testified "during the time I was rooming at the house of Mrs. Farris I had intercourse with Mr. Gay. I also had intercourse with other men while living at Mrs. Farris' house." In another bill it is shown that a Mr. Bourgeois first testified that he had improper relations with one Inez Wood, who was a roomer at Mrs. Farris' house — at defendant's house. Later he testified that the intercourse did not take place at Mrs. Farris' house, but he would call and get Inez Wood and take her to other places for that purpose. Defendant moved to exclude the testimony of the witness. The court did not err in refusing to do so, because it tended to show that one of her roomers, Inez Wood, was a prostitute, and the further testimony of this witness would tend to show that appellant was aware of that fact. Appellant complains that the court in refusing to permit her to ask Henry Wood, a witness for the State, if he had not tried to get Madge Robinson, an inmate of her house, to go around with him to other places and engage rooms for the purpose of entrapping such persons, committed error. As it is not contended that Woods had brought Madge Robinson or sought to get her to bring any other woman to her house, it would be immaterial whether or not he had sought to get her to *Page 611 assist him in catching other people at different houses for a similar offense, for if he had done so, and Madge Robinson refused, it might tend to show animosity towards Madge Robinson, but not towards this appellant. Such fact was foreign to any issue in this case. The only other bill in the record recites that while appellant's counsel was speaking he used the following language: "Gentlemen of the jury, I don't blame Gay for slipping in Mrs. Hayden's room and stealing a piece," when Madge Robinson laughed aloud. He then complains that when the prosecuting officer was replying to his speech, he said: "Look at Madge Robinson, didn't you see her laugh?" when defendant's counsel made the remark above quoted. Appellant complains that this remark was very harmful to appellant. As appellant's counsel had made the remark and elicited the laugh from Madge Robinson, the incidental reference to such proceeding by State's counsel would not be cause for reversal of the case. These are all the bills of exception in the record, and in our opinion none of them present reversible error, and the judgment is affirmed. Affirmed. [Rehearing denied November 11, 1914. — Reporter.] | 07-06-2016 | [
"Appellant was prosecuted and convicted of keeping a disorderly or bawdy house, from which judgment she prosecutes this appeal. *Page 609 Bessie Craft, Francis Gay and other witnesses for the State were permitted to testify that appellant's husband was in the automobile business, and that he would bring men and women to the house. Appellant objected to this testimony, alleging \"that defendant was the wife of Mr. Farris and that the husband could not testify directly or indirectly against the wife, and that it was an attempt to admit evidence of the acts, conduct and doings of the husband, indirectly, which could not be proven directly, and further that acts, statements and declarations of the husband could not be used against the wife; was hearsay, inadmissible for any purpose and highly prejudicial.\" Appellant was being prosecuted for keeping a house where prostitutes resorted and resided for the purpose of plying their vocation, and a house where men and women met by mutual appointment for the purpose of sexual intercourse, and the fact that witnesses testify that appellant's husband brought men and women there to engage in unlawful cohabitation would be admissible testimony.",
"The husband, of course, could not be called to give such testimony, but any person who saw the husband engaged in such acts could so testify, and it would not be the husband giving testimony against the wife either directly or indirectly. Such facts were cogent circumstances tending to prove that appellant was in fact keeping a bawdy house, and the court did not err in admitting the testimony. If the husband was thus actively engaged in aiding his wife in violation of the law, his acts and conduct in so doing could be proven, not by him but by competent witnesses.",
"This testimony went to show that the husband would get men and women in his automobile and carry them to the home kept by his wife where they would enter the house and engage in the unlawful acts. Where the husband aids the wife in the commission of a crime such fact can be shown. In a misdemeanor, all persons aiding and abetting the commission of an offense are principals and may be prosecuted as such, and the acts testified as being committed by him, if true, would render him liable as a principal offender, and under such a state of facts his acts and conduct were admissible. Branch's Crim. Law, sec.",
"681; Cook v. State, 22 Texas Crim. App., 511; Cox v. State, 8 Texas Crim. App., 254. The second bill of exceptions complains of the action of the court in permitting the jury to separate after they had received the charge from the court. The facts are, the case was completed late in the afternoon, and the jurymen not arriving at a verdict were permitted to go to their respective places of abode for the night.",
"This offense is a misdemeanor, and article 746 of the Code of Criminal Procedure provides that in a case of misdemeanor, the court may, at his discretion, permit the jury to separate before verdict, after giving them proper instructions. It is not contended that the court did not properly instruct the jury or that the jury was guilty of any improper conduct, the contention being that the error consisted in permitting the jury to separate, consequently there is nothing to show that the court abused his discretion in permitting the jury to separate, and in the absence of any attempt to show *Page 610 improper conduct on the part of the jury, the bill presents no error. In bill No. 3 it is complained that the court erred in permitting the witness Bessie Craft to testify that Mr. Farris requested her to stay at the house of his wife, and told her she could make lots of money if she would stay there. Of course if the appellant was not present when this conversation took place, and it was not in furtherance of the commission of an offense in which both are principal offenders, there might be grounds of objection, but no such contention is made, the objection being that it would be the husband giving testimony against his wife, and compelling him to do so.",
"Such objection is not sound. In Cook v. State, 22 Texas Crim. App., 511, it is held that if husband and wife act together in the commission of an offense, acts and declarations of either which are res gestae of the transaction, are admissible. And in Cole v. State, 51 Tex.Crim. Rep., and Richards v. State, 55 Tex.Crim. Rep., this court has held that even communications between husband and wife in the presence of another person may be proven by such person, and if that is true, certainly it would be admissible to show the remarks of either to a third person which tended to show that they were engaged in an unlawful undertaking. The same may be said as to the testimony of Francis Gay, who testified to acts of Mr. Farris which would tend to show that he was aiding and assisting his wife in running the disorderly house. As to the testimony of Mrs. Hayden that while she was rooming at the house of appellant men would come there and she would go to other places and have sexual intercourse with them, it certainly would be admissible as tending to show that appellant kept a house where prostitutes resided and especially is this true in the light of Mrs. Hayden's further testimony that she had sexual intercourse with men many times in the room rented by her from appellant. She testified \"during the time I was rooming at the house of Mrs. Farris I had intercourse with Mr. Gay.",
"I also had intercourse with other men while living at Mrs. Farris' house.\" In another bill it is shown that a Mr. Bourgeois first testified that he had improper relations with one Inez Wood, who was a roomer at Mrs. Farris' house — at defendant's house. Later he testified that the intercourse did not take place at Mrs. Farris' house, but he would call and get Inez Wood and take her to other places for that purpose. Defendant moved to exclude the testimony of the witness.",
"The court did not err in refusing to do so, because it tended to show that one of her roomers, Inez Wood, was a prostitute, and the further testimony of this witness would tend to show that appellant was aware of that fact. Appellant complains that the court in refusing to permit her to ask Henry Wood, a witness for the State, if he had not tried to get Madge Robinson, an inmate of her house, to go around with him to other places and engage rooms for the purpose of entrapping such persons, committed error. As it is not contended that Woods had brought Madge Robinson or sought to get her to bring any other woman to her house, it would be immaterial whether or not he had sought to get her to *Page 611 assist him in catching other people at different houses for a similar offense, for if he had done so, and Madge Robinson refused, it might tend to show animosity towards Madge Robinson, but not towards this appellant.",
"Such fact was foreign to any issue in this case. The only other bill in the record recites that while appellant's counsel was speaking he used the following language: \"Gentlemen of the jury, I don't blame Gay for slipping in Mrs. Hayden's room and stealing a piece,\" when Madge Robinson laughed aloud. He then complains that when the prosecuting officer was replying to his speech, he said: \"Look at Madge Robinson, didn't you see her laugh?\" when defendant's counsel made the remark above quoted. Appellant complains that this remark was very harmful to appellant. As appellant's counsel had made the remark and elicited the laugh from Madge Robinson, the incidental reference to such proceeding by State's counsel would not be cause for reversal of the case. These are all the bills of exception in the record, and in our opinion none of them present reversible error, and the judgment is affirmed. Affirmed.",
"[Rehearing denied November 11, 1914. — Reporter.]"
]
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397 F.2d 128 UNITED STATES of America, Appellee,v.Thomas Michael PIERCE, Appellant. No. 11706. United States Court of Appeals Fourth Circuit. Argued Feb. 6, 1968.Decided June 10, 1968.
Robert O. Ellis, Huntington, W. Va., (Court-appointed counsel) for appellant. George D. Beter, Asst. U.S. Atty., (Milton J. Ferguson, U.S. Atty., on brief) for appellee. Before HAYNSWORTH, Chief Judge, and SOBELOFF and BRYAN, Circuit judges. HAYNSWORTH, Chief Judge:
1 Defendant Thomas Michael Pierce asks this Court to reverse his conviction under the Dyer Act, 18 U.S.C. 2312 and to grant him a new trial. He contends that the testimony at his trial of law enforcement officers as to statements made by him after his being taken into custody should have been excluded because the interrogating officers failed to comply with the dictates of Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. We agree.
2 Defendant Pierce, on April 29, 1966, rented a 1966 Plymouth from Avis in Chicago under the assumed name of Robert Dean. The car was to be returned in Chicago on May 2, 1966. On May 2nd defendant wrecked the Plymouth in Wayne County, West Virginia and had it towed to Williamson, West Virginia and placed on a storage lot. When defendant returned to Chicago, he failed to notify Avis of the car's condition or whereabouts.
3 On June 20, 1966, defendant rented another car from Avis in Chicago, this time identifying himself as Philip Carlson. Though the rental slip called for a 1966 Plymouth, Avis erroneously provided defendant with a 1966 Chrysler. The car was to be returned in Chicago on June 27, 1966.
4 Alerted in the early morning hours of June 22 to the fact that three young boys driving in a particular direction were carrying a large sum of money in a paper bag and aware of the fact that a savings and loan company in the Huntington area recently had been held up, two Williamson City policemen pursued defendant and two companions and overtook them just as they were parking in front of a hotel in Williamson. One of the officers asked the defendant, the driver of the car, for some identification and when he produced a suspicious looking draft card in the name of Philip Carlson, he was asked to produce a driver's license and evidence of ownership of the 1966 Chrysler he was driving. Defendant could not produce a driver's license but did offer a rent-a-car slip showing a rental of a 1966 Plymouth. The boys were then informed that they would have to go to the police station until 'we could get some verification on it.' Defendant agreed to a search of his car, and one of the officers discovered a paper bag containing approximately $2100 in money and checks beneath the driver's seat. Defendant denied ownership of the money and the boys were taken to police headquarters.
5 At the station they were placed in the office of the Chief of Police to await his arrival. Defendant continued to conceal his true identity until Chief of Police Bucci arrived at 9:00 a.m. After thirty minutes of questioning by Bucci, defendant admitted his true identity and explained that the money and checks belonged to his father, who owned a chain of restaurants in Chicago. This explanation was verified by calls made to Chicago. A check with Avis then provided the explanation for defendant's possession of a rental slip for a Plymouth rather than a Chrysler. Having evidently grown suspicious because of defendant's use of an assumed name, however, Chief Bucci continued to probe. He inquired as to the reason for Pierce's presence in Williamson, and Pierce replied that while in Williamson two or three weeks earlier, he had met a girl and had returned to see her. Chief Bucci then asked defendant how he had made the trip the first time, and Pierce stated that he had come in a rented Plymouth. Finally, the Chief of Police inquired as to the present whereabouts of the Plymouth, and Pierce responded that he had wrecked it in Wayne County and had never reported its condition or whereabouts to Avis. At the trial, Chief Bucci testified to this admission by defendant though prior to the interrogation defendant had been warned only of his right to remain silent.
6 Sometime during the morning of Pierce's admission to Chief Bucci, the Chief summoned an FBI agent and related to him what Pierce had said about the wrecked Plymouth. The agent then proceeded to interrogate Pierce at the police station. He first identified himself as an FBI agent and then administered the four-fold warning prescribed by Miranda v. State of Arizona, supra. Defendant acknowledged his understanding of the warnings and responded to the agent's questions by relating the story of the wrecked car. He told the agent that he had not notified Avis as to the whereabouts of the car and that he did not intend to return the car to Avis. The agent testified to these admissions at the trial.
7 Count one of the indictment charged defendant with transporting the 1966 Plymouth across a state line knowing it to have been stolen. Count two charged him with the same offense with regard to the Chrysler, but that count was dismissed at the conclusion of the Government's case in chief.
8 Chief of Police Bucci's testimony as to defendant's admission that he had failed to notify Avis of the condition and whereabouts of the wrecked Plymouth and the apprehending officers' testimony as to statements made by defendant after they first informed him that he would have to go to the station house should have been excluded, for the statements were elicited in violation of defendant's Fifth Amendment privilege against self-incrimination as that privilege is defined in Miranda:
9 * * * the prosecution may not use statements whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As to the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following means are ruquired. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.1
10 Concededly, the procedural safeguards required by Miranda for custodial interrogation were not employed prior to defendant's questioning by the Williamson City police. But the Government contends that this fact is not conclusive on the ground that defendant's statements were not incriminating. If these statements had not been to some extent incriminating, however, it is difficult to see why the prosecution would have offered them. The statements had some bearing on the question of criminal intent, and this, of course, is why they were offered.
11 It is difficult to determine from the Government's argument whether or not it challenges the proposition that the interrogation in question was 'custodial' within the meaning of Miranda. At various points Government counsel has stressed that defendant was never told that he was being placed under arrest; however, we find this fact to be insignificant. Defendant was told by the officers who stopped him in front of the hotel that he would have to come down to the station until his story could be verified, and one of these officers candidly acknowledged that if defendant had attempted to walk away at that moment, he would have stopped him. Thus, it seems clear that defendant's sojourn at the police station was anything but voluntary. The questioning was custodial in nature. If the arresting officer's failure to make a formal declaration of arrest were held conclusive to the contrary, the rights afforded by Miranda would be fragile things indeed.
12 Because the statements elicited from the defendant by the Williamson City police after his being told that he would have to come down to the station were incriminating in nature and were obtained during custodial interrogation without defendant's being accorded the procedural safeguards required by Miranda, their admission in evidence was erroneous. We need not determine whether or not this error was harmless in view of the FBI agent's testifying, among other things, to the same statements, for his testimony as to defendant's admissions should also have been excluded.
13 It is true that prior to questioning defendant, the agent administered the four-fold warning prescribed by Miranda and defendant acknowledged that he understood the warning. The Government contends that these circumstances show an effective waiver by defendant of the rights conferred by Miranda, but we disagree. At page 444 of that opinion, 86 S.Ct. at page 1612, the Court states: 'The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently.' Thus, it is made clear that a waiver to be effective must be voluntary, and we find that the waiver in the instant case does not pass this test of voluntariness. The FBI agent entered the fray armed with defendant's earlier admissions to the Williamson police, and it is most probable that defendant was aware of this fact. Defendant's knowledge of this fact coupled with the agent's warning conveyed the idea that though defendant could remain silent if he wished, he might as well answer the questions put to him, since the agent was already aware of the earlier answers. The decision to respond under such circumstances hardly can be termed voluntary. The situation is not substantially different from what it would have been if Chief Bucci had administered the belated warning and, thereafter, had obtained a repetition of the earlier admissions, for the FBI agent had the advantage of all that Chief Bucci knew. Warning after the admission is too late, and the bare fact of subsequent repetition to the same or a cooperating officer cannot make the admission admissible.
14 The agent's testimony as to any statements made to him by defendant should have been excluded.
15 Because all statements elicited from defendant after he was first apprised that he would have to come down to the station were inadmissible, this case is reversed and remanded to the District Court for a new trial.
16 Reversed and remanded.
ALBERT V. BRYAN, Circuit Judge (dissenting):
17 I think the court here reverses on an attenuated reading of Miranda and overcautious application of it. This is indeed a blow to law enforcement. Without the slightest doubt of the defendant's guilt, his conviction is now set at naught. Affirmance would not invade the accused's innocence, and is demanded by the public interest.
1 Miranda v. State of Arizona, supra, p. 444, 86 S.Ct. p. 1612 | 08-23-2011 | [
"397 F.2d 128 UNITED STATES of America, Appellee,v.Thomas Michael PIERCE, Appellant. No. 11706. United States Court of Appeals Fourth Circuit. Argued Feb. 6, 1968.Decided June 10, 1968. Robert O. Ellis, Huntington, W. Va., (Court-appointed counsel) for appellant. George D. Beter, Asst. U.S. Atty., (Milton J. Ferguson, U.S. Atty., on brief) for appellee. Before HAYNSWORTH, Chief Judge, and SOBELOFF and BRYAN, Circuit judges. HAYNSWORTH, Chief Judge: 1 Defendant Thomas Michael Pierce asks this Court to reverse his conviction under the Dyer Act, 18 U.S.C.",
"2312 and to grant him a new trial. He contends that the testimony at his trial of law enforcement officers as to statements made by him after his being taken into custody should have been excluded because the interrogating officers failed to comply with the dictates of Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. We agree. 2 Defendant Pierce, on April 29, 1966, rented a 1966 Plymouth from Avis in Chicago under the assumed name of Robert Dean. The car was to be returned in Chicago on May 2, 1966.",
"On May 2nd defendant wrecked the Plymouth in Wayne County, West Virginia and had it towed to Williamson, West Virginia and placed on a storage lot. When defendant returned to Chicago, he failed to notify Avis of the car's condition or whereabouts. 3 On June 20, 1966, defendant rented another car from Avis in Chicago, this time identifying himself as Philip Carlson. Though the rental slip called for a 1966 Plymouth, Avis erroneously provided defendant with a 1966 Chrysler. The car was to be returned in Chicago on June 27, 1966. 4 Alerted in the early morning hours of June 22 to the fact that three young boys driving in a particular direction were carrying a large sum of money in a paper bag and aware of the fact that a savings and loan company in the Huntington area recently had been held up, two Williamson City policemen pursued defendant and two companions and overtook them just as they were parking in front of a hotel in Williamson.",
"One of the officers asked the defendant, the driver of the car, for some identification and when he produced a suspicious looking draft card in the name of Philip Carlson, he was asked to produce a driver's license and evidence of ownership of the 1966 Chrysler he was driving. Defendant could not produce a driver's license but did offer a rent-a-car slip showing a rental of a 1966 Plymouth. The boys were then informed that they would have to go to the police station until 'we could get some verification on it.' Defendant agreed to a search of his car, and one of the officers discovered a paper bag containing approximately $2100 in money and checks beneath the driver's seat. Defendant denied ownership of the money and the boys were taken to police headquarters. 5 At the station they were placed in the office of the Chief of Police to await his arrival. Defendant continued to conceal his true identity until Chief of Police Bucci arrived at 9:00 a.m. After thirty minutes of questioning by Bucci, defendant admitted his true identity and explained that the money and checks belonged to his father, who owned a chain of restaurants in Chicago. This explanation was verified by calls made to Chicago. A check with Avis then provided the explanation for defendant's possession of a rental slip for a Plymouth rather than a Chrysler.",
"Having evidently grown suspicious because of defendant's use of an assumed name, however, Chief Bucci continued to probe. He inquired as to the reason for Pierce's presence in Williamson, and Pierce replied that while in Williamson two or three weeks earlier, he had met a girl and had returned to see her. Chief Bucci then asked defendant how he had made the trip the first time, and Pierce stated that he had come in a rented Plymouth. Finally, the Chief of Police inquired as to the present whereabouts of the Plymouth, and Pierce responded that he had wrecked it in Wayne County and had never reported its condition or whereabouts to Avis. At the trial, Chief Bucci testified to this admission by defendant though prior to the interrogation defendant had been warned only of his right to remain silent.",
"6 Sometime during the morning of Pierce's admission to Chief Bucci, the Chief summoned an FBI agent and related to him what Pierce had said about the wrecked Plymouth. The agent then proceeded to interrogate Pierce at the police station. He first identified himself as an FBI agent and then administered the four-fold warning prescribed by Miranda v. State of Arizona, supra.",
"Defendant acknowledged his understanding of the warnings and responded to the agent's questions by relating the story of the wrecked car. He told the agent that he had not notified Avis as to the whereabouts of the car and that he did not intend to return the car to Avis. The agent testified to these admissions at the trial. 7 Count one of the indictment charged defendant with transporting the 1966 Plymouth across a state line knowing it to have been stolen. Count two charged him with the same offense with regard to the Chrysler, but that count was dismissed at the conclusion of the Government's case in chief. 8 Chief of Police Bucci's testimony as to defendant's admission that he had failed to notify Avis of the condition and whereabouts of the wrecked Plymouth and the apprehending officers' testimony as to statements made by defendant after they first informed him that he would have to go to the station house should have been excluded, for the statements were elicited in violation of defendant's Fifth Amendment privilege against self-incrimination as that privilege is defined in Miranda: 9 * * * the prosecution may not use statements whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.",
"By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As to the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following means are ruquired. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.1 10 Concededly, the procedural safeguards required by Miranda for custodial interrogation were not employed prior to defendant's questioning by the Williamson City police.",
"But the Government contends that this fact is not conclusive on the ground that defendant's statements were not incriminating. If these statements had not been to some extent incriminating, however, it is difficult to see why the prosecution would have offered them. The statements had some bearing on the question of criminal intent, and this, of course, is why they were offered. 11 It is difficult to determine from the Government's argument whether or not it challenges the proposition that the interrogation in question was 'custodial' within the meaning of Miranda. At various points Government counsel has stressed that defendant was never told that he was being placed under arrest; however, we find this fact to be insignificant. Defendant was told by the officers who stopped him in front of the hotel that he would have to come down to the station until his story could be verified, and one of these officers candidly acknowledged that if defendant had attempted to walk away at that moment, he would have stopped him.",
"Thus, it seems clear that defendant's sojourn at the police station was anything but voluntary. The questioning was custodial in nature. If the arresting officer's failure to make a formal declaration of arrest were held conclusive to the contrary, the rights afforded by Miranda would be fragile things indeed. 12 Because the statements elicited from the defendant by the Williamson City police after his being told that he would have to come down to the station were incriminating in nature and were obtained during custodial interrogation without defendant's being accorded the procedural safeguards required by Miranda, their admission in evidence was erroneous.",
"We need not determine whether or not this error was harmless in view of the FBI agent's testifying, among other things, to the same statements, for his testimony as to defendant's admissions should also have been excluded. 13 It is true that prior to questioning defendant, the agent administered the four-fold warning prescribed by Miranda and defendant acknowledged that he understood the warning. The Government contends that these circumstances show an effective waiver by defendant of the rights conferred by Miranda, but we disagree. At page 444 of that opinion, 86 S.Ct. at page 1612, the Court states: 'The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently.' Thus, it is made clear that a waiver to be effective must be voluntary, and we find that the waiver in the instant case does not pass this test of voluntariness. The FBI agent entered the fray armed with defendant's earlier admissions to the Williamson police, and it is most probable that defendant was aware of this fact. Defendant's knowledge of this fact coupled with the agent's warning conveyed the idea that though defendant could remain silent if he wished, he might as well answer the questions put to him, since the agent was already aware of the earlier answers. The decision to respond under such circumstances hardly can be termed voluntary.",
"The situation is not substantially different from what it would have been if Chief Bucci had administered the belated warning and, thereafter, had obtained a repetition of the earlier admissions, for the FBI agent had the advantage of all that Chief Bucci knew. Warning after the admission is too late, and the bare fact of subsequent repetition to the same or a cooperating officer cannot make the admission admissible. 14 The agent's testimony as to any statements made to him by defendant should have been excluded. 15 Because all statements elicited from defendant after he was first apprised that he would have to come down to the station were inadmissible, this case is reversed and remanded to the District Court for a new trial. 16 Reversed and remanded. ALBERT V. BRYAN, Circuit Judge (dissenting): 17 I think the court here reverses on an attenuated reading of Miranda and overcautious application of it.",
"This is indeed a blow to law enforcement. Without the slightest doubt of the defendant's guilt, his conviction is now set at naught. Affirmance would not invade the accused's innocence, and is demanded by the public interest. 1 Miranda v. State of Arizona, supra, p. 444, 86 S.Ct. p. 1612"
]
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This suit was instituted by appellee for damages and to recover a penalty for the violation of articles 6670 and. 6671 of the Revised Civil Statutes of 1911, in that appellant willfully, wrongfully, and maliciously refused to deliver the goods consigned to him at Matador, to the Motley County Railway Company, the connecting carrier at Matador Junction, but carried the same beyond that point to Roaring Springs, on appellant's line of road. The facts in this case sufficiently show that the shipment of goods was received by the appellant on its, line of road at Quanah, Tex., to be transported over its line of road, to the Matador Junction, and thence to Matador over the Motley County Railway Company's road to Matador, appellee's residence and place of business, to whom the consignment was made. The agent of appellant wrote to appellee at Matador with reference to the shipment: "Owing to the failure of the Motley Counts Railway Company to make satisfactory settlement for the advance charges on freight *Page 323 theretofore delivered that line, this company will only deliver this freight to the connection, when the freight to Matador Junction has been paid to us. We will deliver this freight to you at this office (Roaring Springs) on payment of freight charges or will deliver to the Motley County Railway Company at the junction on payment of freight to that point. Please advise what disposition you desire made of the freight." Upon receipt of the above letter the appellee called up the agent, and requested him to send the goods to him at Matador. The agent replied that he had instructions from his company to hold the freight until the freight charges were paid at Roaring Springs. The agent testified that he did not send out the usual card of notice, but instead thereof sent out the letter or the above notice, by direction of the officials of appellant road. This was done in an effort to have freight charges theretofore advanced and paid by appellant repaid by the Motley County Road. He, however, testified that the freight on this particular shipment was prepaid, and that he delivered it to the other road as soon as he could separate it from other shipments made to Afton. The evidence shows the shipment was held from the 24th until the 27th of August, 1914. Mr. Gaines, the superintendent of the Motley County Railway testified that his road was able to and did handle all freight delivered it by appellant at the junction; that he called up the agent at Roaring Springs about the 23d to the 26th, and asked why the freight for Matador consignees was not delivered to the Motley County Railway Company. The agent told him he was instructed to hold the freight until settlement between the two roads in the freight controversy was had; that his road ran cars every day, except one or two, and met appellant's train at the junction; that there was no depot or agent at the junction maintained by either road, but that the freight was delivered to the Motley County Railway Company from car to car, except carload lots; that since the settlement of the freight controversy all carloads and less than carload lots consigned to Matador have been stopped at the junction and not sent to Roaring Springs. Circular 2703 was introduced in evidence as the Railroad Commission's rule, governing transportation of freight less than carload shipments. This provides for such shipments legally tendered to a railroad company at its customary place of receiving such shipments, stipulating that it shall promptly receive the same, and for failure to receive and transport such shipments the company at fault shall pay to the shipper the following amounts in cents per hundred pounds (setting out a scale according to days detained or delayed, the minimum charge for any one shipment, five cents): "Provided that forty-eight hours additional time shall be allowed at junction points or division terminals when it is necessary to rehandle the shipment." The first, second, third, and fourth assignments urge that the judgment of the court is not supported by the evidence. By propositions it is urged, where there is no depot or agent at the junction, that it is not a violation of article 6670 or of the rules of the Railroad Commission to carry property beyond the station; that it was not an offense to delay 72 hours when that was the earliest delivery possible under the conditions existing at the junction. In failing to establish and maintain a depot or place for keeping and caring for goods to be delivered and transported to the connecting lines the two roads in question violated the statutes. Articles 6589 and 6608. Their violation of these statutes will not relieve the one violating the article fixing a penalty for failure or refusal to deliver the goods to its connecting carrier. The facts show, and the court was justified in finding, that the goods were not in fact held for separation from other shipments to other points, but were held under Instructions from the officials of appellant until a freight dispute could be adjusted between the two roads. This, clearly, did not excuse the failure or refusal for 72 hours, or for any time, to deliver the goods. It was no excuse for annoying the shipping public. To compel the shippers of Matador, on the Motley County Railway Company's road to go to Roaring Springs to pay the freight and get their goods would be intolerable. The letter of the agent in this case was evidently so worded as to impress the shipper such would be required of him. The idea prominent in our legislation upon receiving and transporting freight is equality. They are not permitted to exercise their charter rights in such manner as to benefit one individual, town or community, to the detriment of another. Railway Co. v. Smith, 63 Tex. 322. Even if the conditions were such that the appellant could not deliver the goods at the junction without taking them to Roaring Springs for separation, from other freight, this would not relieve it from liability to comply with the law unless such conditions were made known to the shipper before their delivery to it for transportation. Railway Co. v. Hannay, 104 Tex. 603,142 S.W. 1163. This court has held the excuse given in this case will not relieve the road from liability under the statute. Railway Co. v. Jones,178 S.W. 858; Railway Co. v. Warren, 184 S.W. 232. The Commission's rule required the delivery and receipt of this character of freight to be at the customary place. The evidence, without contradiction, both before and after the dispute, shows that the Motley County Railway Company's train met appellant's at the junction each day and received freight from it by delivering from one car to the other. This was the customary place and manner, but appellee, owing to the dispute, refused to deliver the freight as had been customary *Page 324 It is contended the rule gave appellant 48 hours. If this is true the freight was not delivered within that time under the undisputed facts in this case. Want of time for the delivery was not then urged by appellant, or that it would require the 48 hours allowed by the rule. At that time It gave no other reason than that of the dispute and unreasonably demanded that the freight must be paid and the goods received at Roaring Springs. It not only violated the statute, but the regulation of the Commission as well. It apparently is urged because the Commission fixed a different penalty to that of the statute that this necessarily repealed or superseded the statutory penalty. If these articles of the statute were not repealed by the Railroad Commission Act, by implication, then for a stronger reason a rule by the Commission will not repeal or supersede them. Railway Co. v. Hannay; Railway Co. v. Warren, supra. The Railroad Commission was granted no such power. Subdivision 2, art. 6670, provides if the carrier "shall fail or refuse, under such regulation as may be prescribed by the Commission," "to transport and deliver without delay," it will be guilty of discrimination. The right to regulate does not give the right to substitute a different penalty or substitute a rule for the statute. It may regulate the manner of doing the thing and the like, but cannot abrogate the statute. Article 1987 indicates what is meant by the term "under such regulation." "The Railroad Commission of Texas shall have the power, and authority is hereby vested in it, to make all needful rules and regulations for unloading cars at junction points," etc. Whenever a railroad fails or refuses to transport or deliver without delay such freight to the connecting carrier, it violates the statutes. If the road has complied with the regulations of the Commission, it may be excused perhaps. In this case, however, there was no pretense at the time of the refusal of conforming either to the mandates of the law or the rule; but the refusal was based on an unreasonable contention and demand by the railroad. These assignments will be overruled. The fifth assignment of error is to the action of the court in permitting appellee to testify that his profits were 15 per cent. on the amount of goods sold. Under the facts in this case we do not think this is a proper measure of damages. It is not shown these profits were lost by the refusal to deliver the goods in 72 hours. Under some conditions this may be a proper measure of damages. This assignment, however, shows no injury to have occurred, and, upon looking into the record, we find nothing to convince us that the court allowed this as part of the recovery. The case was tried by the court, and we will not presume the court allowed them, when there is no evidence to show that they were in fact lost, to appellee. There is no assignment to the effect that he did. The judgment is not for as much as he could have allowed under the statute. For the above reason the fifth assignment is overruled. The sixth and seventh assignments are overruled. The assignments are that it was error to permit the appellee to testify, as shown by the bill of exceptions. The bill of exceptions are to the effect that the court refused to permit the witness to testify and answer certain questions, not that he permitted him to testify as set out in the assignment. The rejection of the evidence, however, was not error, and no such injury to appellant, of which it could complain. The eighth and ninth assignments, to the action of the court in overruling special exceptions 2 and 3, to the plaintiff's petition, are overruled. We think the petition sufficiently definite. Our views as to the effect of the statute and regulations by the Commission are given in our consideration of the first assignment. Assignments from 8 to 14 are overruled. These assignments seek to attack the constitutionality of articles 6670 and 6671. The questions here presented have been fully answered by the Supreme Court. Railway Co. v. Hannay, 104 Tex. 603, 142 S.W. 1163. No reversible error having been assigned or pointed out, the case will be affirmed. | 07-06-2016 | [
"This suit was instituted by appellee for damages and to recover a penalty for the violation of articles 6670 and. 6671 of the Revised Civil Statutes of 1911, in that appellant willfully, wrongfully, and maliciously refused to deliver the goods consigned to him at Matador, to the Motley County Railway Company, the connecting carrier at Matador Junction, but carried the same beyond that point to Roaring Springs, on appellant's line of road. The facts in this case sufficiently show that the shipment of goods was received by the appellant on its, line of road at Quanah, Tex., to be transported over its line of road, to the Matador Junction, and thence to Matador over the Motley County Railway Company's road to Matador, appellee's residence and place of business, to whom the consignment was made. The agent of appellant wrote to appellee at Matador with reference to the shipment: \"Owing to the failure of the Motley Counts Railway Company to make satisfactory settlement for the advance charges on freight *Page 323 theretofore delivered that line, this company will only deliver this freight to the connection, when the freight to Matador Junction has been paid to us.",
"We will deliver this freight to you at this office (Roaring Springs) on payment of freight charges or will deliver to the Motley County Railway Company at the junction on payment of freight to that point. Please advise what disposition you desire made of the freight.\" Upon receipt of the above letter the appellee called up the agent, and requested him to send the goods to him at Matador. The agent replied that he had instructions from his company to hold the freight until the freight charges were paid at Roaring Springs.",
"The agent testified that he did not send out the usual card of notice, but instead thereof sent out the letter or the above notice, by direction of the officials of appellant road. This was done in an effort to have freight charges theretofore advanced and paid by appellant repaid by the Motley County Road. He, however, testified that the freight on this particular shipment was prepaid, and that he delivered it to the other road as soon as he could separate it from other shipments made to Afton.",
"The evidence shows the shipment was held from the 24th until the 27th of August, 1914. Mr. Gaines, the superintendent of the Motley County Railway testified that his road was able to and did handle all freight delivered it by appellant at the junction; that he called up the agent at Roaring Springs about the 23d to the 26th, and asked why the freight for Matador consignees was not delivered to the Motley County Railway Company. The agent told him he was instructed to hold the freight until settlement between the two roads in the freight controversy was had; that his road ran cars every day, except one or two, and met appellant's train at the junction; that there was no depot or agent at the junction maintained by either road, but that the freight was delivered to the Motley County Railway Company from car to car, except carload lots; that since the settlement of the freight controversy all carloads and less than carload lots consigned to Matador have been stopped at the junction and not sent to Roaring Springs. Circular 2703 was introduced in evidence as the Railroad Commission's rule, governing transportation of freight less than carload shipments.",
"This provides for such shipments legally tendered to a railroad company at its customary place of receiving such shipments, stipulating that it shall promptly receive the same, and for failure to receive and transport such shipments the company at fault shall pay to the shipper the following amounts in cents per hundred pounds (setting out a scale according to days detained or delayed, the minimum charge for any one shipment, five cents): \"Provided that forty-eight hours additional time shall be allowed at junction points or division terminals when it is necessary to rehandle the shipment.\" The first, second, third, and fourth assignments urge that the judgment of the court is not supported by the evidence. By propositions it is urged, where there is no depot or agent at the junction, that it is not a violation of article 6670 or of the rules of the Railroad Commission to carry property beyond the station; that it was not an offense to delay 72 hours when that was the earliest delivery possible under the conditions existing at the junction.",
"In failing to establish and maintain a depot or place for keeping and caring for goods to be delivered and transported to the connecting lines the two roads in question violated the statutes. Articles 6589 and 6608. Their violation of these statutes will not relieve the one violating the article fixing a penalty for failure or refusal to deliver the goods to its connecting carrier. The facts show, and the court was justified in finding, that the goods were not in fact held for separation from other shipments to other points, but were held under Instructions from the officials of appellant until a freight dispute could be adjusted between the two roads. This, clearly, did not excuse the failure or refusal for 72 hours, or for any time, to deliver the goods. It was no excuse for annoying the shipping public. To compel the shippers of Matador, on the Motley County Railway Company's road to go to Roaring Springs to pay the freight and get their goods would be intolerable.",
"The letter of the agent in this case was evidently so worded as to impress the shipper such would be required of him. The idea prominent in our legislation upon receiving and transporting freight is equality. They are not permitted to exercise their charter rights in such manner as to benefit one individual, town or community, to the detriment of another. Railway Co. v. Smith, 63 Tex. 322. Even if the conditions were such that the appellant could not deliver the goods at the junction without taking them to Roaring Springs for separation, from other freight, this would not relieve it from liability to comply with the law unless such conditions were made known to the shipper before their delivery to it for transportation.",
"Railway Co. v. Hannay, 104 Tex. 603,142 S.W. 1163. This court has held the excuse given in this case will not relieve the road from liability under the statute. Railway Co. v. Jones,178 S.W. 858; Railway Co. v. Warren, 184 S.W. 232. The Commission's rule required the delivery and receipt of this character of freight to be at the customary place. The evidence, without contradiction, both before and after the dispute, shows that the Motley County Railway Company's train met appellant's at the junction each day and received freight from it by delivering from one car to the other.",
"This was the customary place and manner, but appellee, owing to the dispute, refused to deliver the freight as had been customary *Page 324 It is contended the rule gave appellant 48 hours. If this is true the freight was not delivered within that time under the undisputed facts in this case. Want of time for the delivery was not then urged by appellant, or that it would require the 48 hours allowed by the rule. At that time It gave no other reason than that of the dispute and unreasonably demanded that the freight must be paid and the goods received at Roaring Springs. It not only violated the statute, but the regulation of the Commission as well.",
"It apparently is urged because the Commission fixed a different penalty to that of the statute that this necessarily repealed or superseded the statutory penalty. If these articles of the statute were not repealed by the Railroad Commission Act, by implication, then for a stronger reason a rule by the Commission will not repeal or supersede them. Railway Co. v. Hannay; Railway Co. v. Warren, supra. The Railroad Commission was granted no such power. Subdivision 2, art. 6670, provides if the carrier \"shall fail or refuse, under such regulation as may be prescribed by the Commission,\" \"to transport and deliver without delay,\" it will be guilty of discrimination.",
"The right to regulate does not give the right to substitute a different penalty or substitute a rule for the statute. It may regulate the manner of doing the thing and the like, but cannot abrogate the statute. Article 1987 indicates what is meant by the term \"under such regulation.\" \"The Railroad Commission of Texas shall have the power, and authority is hereby vested in it, to make all needful rules and regulations for unloading cars at junction points,\" etc. Whenever a railroad fails or refuses to transport or deliver without delay such freight to the connecting carrier, it violates the statutes. If the road has complied with the regulations of the Commission, it may be excused perhaps.",
"In this case, however, there was no pretense at the time of the refusal of conforming either to the mandates of the law or the rule; but the refusal was based on an unreasonable contention and demand by the railroad. These assignments will be overruled. The fifth assignment of error is to the action of the court in permitting appellee to testify that his profits were 15 per cent. on the amount of goods sold. Under the facts in this case we do not think this is a proper measure of damages. It is not shown these profits were lost by the refusal to deliver the goods in 72 hours. Under some conditions this may be a proper measure of damages. This assignment, however, shows no injury to have occurred, and, upon looking into the record, we find nothing to convince us that the court allowed this as part of the recovery. The case was tried by the court, and we will not presume the court allowed them, when there is no evidence to show that they were in fact lost, to appellee. There is no assignment to the effect that he did. The judgment is not for as much as he could have allowed under the statute. For the above reason the fifth assignment is overruled. The sixth and seventh assignments are overruled. The assignments are that it was error to permit the appellee to testify, as shown by the bill of exceptions.",
"The bill of exceptions are to the effect that the court refused to permit the witness to testify and answer certain questions, not that he permitted him to testify as set out in the assignment. The rejection of the evidence, however, was not error, and no such injury to appellant, of which it could complain. The eighth and ninth assignments, to the action of the court in overruling special exceptions 2 and 3, to the plaintiff's petition, are overruled.",
"We think the petition sufficiently definite. Our views as to the effect of the statute and regulations by the Commission are given in our consideration of the first assignment. Assignments from 8 to 14 are overruled. These assignments seek to attack the constitutionality of articles 6670 and 6671. The questions here presented have been fully answered by the Supreme Court. Railway Co. v. Hannay, 104 Tex. 603, 142 S.W. 1163. No reversible error having been assigned or pointed out, the case will be affirmed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/3920245/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
1
2
3
4
5
6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8
9 LORENA VELASQUEZ, et al., Case No. 1:17-cv-01710-SAB
10 Plaintiffs, ORDER RE NOTICE OF SETTLEMENT AND VACATING ALL PENDING 11 v. MATTERS
12 SVENHARD’S SWEDISH BAKERY, et al., (ECF No. 82)
13 Defendants. DEADLINE: MAY 24, 2019
14
15 On April 23, 2019, the parties participated in a settlement conference before United
16 States Magistrate Judge Sheila K. Oberto during which they reached an agreement to settle this
17 action. (ECF No. 81.) A minute order issued vacating all dates and requiring the parties to file a
18 notice of settlement within two days and dispositive documents within thirty days. (Id.) On
19 April 24, 2019, a notice of settlement was filed. (ECF No. 82.) 20 Accordingly, IT IS HEREBY ORDERED that:
21 1. All pending matters are VACATED; and
22 2. The parties shall file dispositive documents on or before May 24, 2019.
23 IT IS SO ORDERED. 24
25 Dated: April 25, 2019 UNITED STATES MAGISTRATE JUDGE 26 27
28
1 | 2019-04-25 | [
"1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 LORENA VELASQUEZ, et al., Case No. 1:17-cv-01710-SAB 10 Plaintiffs, ORDER RE NOTICE OF SETTLEMENT AND VACATING ALL PENDING 11 v. MATTERS 12 SVENHARD’S SWEDISH BAKERY, et al., (ECF No. 82) 13 Defendants. DEADLINE: MAY 24, 2019 14 15 On April 23, 2019, the parties participated in a settlement conference before United 16 States Magistrate Judge Sheila K. Oberto during which they reached an agreement to settle this 17 action. (ECF No. 81.) A minute order issued vacating all dates and requiring the parties to file a 18 notice of settlement within two days and dispositive documents within thirty days. (Id.) On 19 April 24, 2019, a notice of settlement was filed. (ECF No. 82.)",
"20 Accordingly, IT IS HEREBY ORDERED that: 21 1. All pending matters are VACATED; and 22 2. The parties shall file dispositive documents on or before May 24, 2019. 23 IT IS SO ORDERED. 24 25 Dated: April 25, 2019 UNITED STATES MAGISTRATE JUDGE 26 27 28 1"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/67736716/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED STATES DISTRICT COURT
for the District of New Jersey
United States of America \ (‘1ft) O’O ORDER SETTING v. CONDITIONS OF RELEASE KALEIB COX Case Number: 19-CR430(FLW) Defendant
IT IS ORDERED on this day offtf&L, 2020 that the release of the defendant is subject to the following conditions: (1) The defendant must not violate any federal, state or local law while on release. (2) The defendant must cooperate in the collecfion of a DNA sample if the collection is authorized by 42 U.S.C. § 14135a. (3) The defendant must immediately advise the court, defense counsel, and the U.S. attorney in writing before any change of address and/or telephone number. (4) The defendant must appear in court as required and must surrender to serve any sentence imposed.
Release on Bond
Bail be fixed at $ and the defendant shall be released upon:
( ) Executing an unsecured appearance bond ( ) with co-signor(s)___________________________________ ( ) Executing a secured appearance bond ( ) with co-signor(s) and ( ) depositing ,
in cash in the registry of the Court of the bail fixed; and/or ( ) execute an agreement to forfeit designated property located at Local Criminal Rule 46.l(d)(3) waived/not waived by the Court. ( ) Executing an appearance bond with approved sureties, or the deposit of cash in the full amount of the bail in lieu thereof;
Additional Conditions of Release
Upon finding that release by the above methods will not by themselves reasonably assure the appearance of the defendant and the safety of other persons and the community, it is further ordered that the release of the defendant is subject to the condition(s) listed below:
IT IS FURTHER ORDERED that, in addition to the above, the following conditions are imposed: ( ) Report to Pretrial Services (“PTS”) as directed and advise them immediately of any contact with law enforcement personnel, including but not limited to, any arrest, questioning or traffic stop. ( ) The defendant shall not attempt to influence, intimidate, or injure any juror or judicial officer; not tamper with any witness, victim, or informant; not retaliate against any witness, victim or informant in this case. ( ) The defendant shall be released into the third party custody of______________________________________
who agrees (a) to supervise the defendant in accordance with all the conditions of release, (b) to use every effort to assure the appearance of the defendant at all scheduled court proceedings, and (c) to notify the court immediately in the event the defendant violates any conditions of release or disappears.
Custodian Signature: Date: —
DN.J-CR-019ff REV. 1/09)(modifled AO-199) Page 1 ________________ ___________ —, ___________ ___________ _____
( ) The defendant’s travel is restricted to (New Jersey ( ) Other )
( ) uiiless approved by Pretrial Services (PTS). ( ) Surrender all passports and travel documents to PTS. Do not apply for new travel documents. ( ) Substance abuse testing andJor treatment as directed by PTS. Refrain from obstructing or tampering with substance abuse testing procedures/equipment. ( ) Refrain from possessing a firearm, destructive device, or other dangerous weapons. All firearms in any home in which the defendant resides shall be removed by verification provided to PTS. ( ) Mental health testing/treatment as directed by PTS. ( ) Abstain from the use of alcohol. ( ) Maintain current residence or a residence approved by PTS. ( ) Maintain or actively seek empLoyment and/or commence an education program. ( ) No contact with minors unless in the presence of a parent or guardian who is aware of the present offense. ( ) Have no contact with the following individuals:
Defendant is to particite in one of the following home confinement program components and abide by all the requirements of the program which will or ( ) will not include electronic monitoring or other location verification system. You shall pay all or part of the cost of the program based upon your ability to pay as determined by the pretrial services office or supervising officer. ( ) (i) Curfew. You are restricted to your residence every day ( ) from to or ( ) as directed by the pretrial services office or supervising officer; or ( ) (ii) Home Detention. You are restricted to your residence at all times except for the following: education; religious services; medical, substance abuse, or mental health treatment; attorney visits; court appearances; court-ordered obligations; or other activities pre-approved by the pretrial services office or j supervising officer. Additionally, employment ( ) is permitted ( ) is not permitted. i4 (iii) Home Incarceration. You are restricted to your residence under 24 hour lock-down except for medical necessities and court appearances, or other activities specifically approved by the court. ( ) Defendant is subject to the following computer/internet restrictions which may include manual inspection and/or the installation of computer monitoring software, as deemed appropriate by Pretrial Services. The defendant shall pay all or part of the cost of the monitoring software based upon their ability to pay, as determined by the pretrial services office or supervising officer. ( ) (1) No Computers defendant is prohibited from possession and/or use of computers or - connected devices. ( ) (ii) Computer No Internet Access: defendant is permitted use of computers or connected - devices, but is not permitted access to the Internet (World Wide Web, FTP Sites, IRC Servers, Instant Messaging, etc); ( ) (iii) Computer With Internet Access: defendant is permitted use of computers or connected devices, and is permitted access to the Internet (World Wide Web, FTP Sites, IRC Servers, Instant Messaging, etc.) for legitimate and necessary purposes pre-approved by Pretrial Services at [ j home [ I for employment purposes. ( ) (iv) Consent of Other Residents -by consent of other residents in the home, any computers in the home utilized by other residents shall be approved by Pretrial Services, password protected by a third party custodian approved by Pretrial Services, and subject to inspection for compliance by Pretrial Services.
Other: ky\S ce41\ç\ \c\ ( ) Other:
( ) Other:
DNJ-CR-019((REV. 1/09)(modified AO-199) Page 2 | 2020-01-13 | [
"UNITED STATES DISTRICT COURT for the District of New Jersey United States of America \\ (‘1ft) O’O ORDER SETTING v. CONDITIONS OF RELEASE KALEIB COX Case Number: 19-CR430(FLW) Defendant IT IS ORDERED on this day offtf&L, 2020 that the release of the defendant is subject to the following conditions: (1) The defendant must not violate any federal, state or local law while on release. (2) The defendant must cooperate in the collecfion of a DNA sample if the collection is authorized by 42 U.S.C. § 14135a. (3) The defendant must immediately advise the court, defense counsel, and the U.S. attorney in writing before any change of address and/or telephone number.",
"(4) The defendant must appear in court as required and must surrender to serve any sentence imposed. Release on Bond Bail be fixed at $ and the defendant shall be released upon: ( ) Executing an unsecured appearance bond ( ) with co-signor(s)___________________________________ ( ) Executing a secured appearance bond ( ) with co-signor(s) and ( ) depositing , in cash in the registry of the Court of the bail fixed; and/or ( ) execute an agreement to forfeit designated property located at Local Criminal Rule 46.l(d)(3) waived/not waived by the Court. ( ) Executing an appearance bond with approved sureties, or the deposit of cash in the full amount of the bail in lieu thereof; Additional Conditions of Release Upon finding that release by the above methods will not by themselves reasonably assure the appearance of the defendant and the safety of other persons and the community, it is further ordered that the release of the defendant is subject to the condition(s) listed below: IT IS FURTHER ORDERED that, in addition to the above, the following conditions are imposed: ( ) Report to Pretrial Services (“PTS”) as directed and advise them immediately of any contact with law enforcement personnel, including but not limited to, any arrest, questioning or traffic stop. ( ) The defendant shall not attempt to influence, intimidate, or injure any juror or judicial officer; not tamper with any witness, victim, or informant; not retaliate against any witness, victim or informant in this case.",
"( ) The defendant shall be released into the third party custody of______________________________________ who agrees (a) to supervise the defendant in accordance with all the conditions of release, (b) to use every effort to assure the appearance of the defendant at all scheduled court proceedings, and (c) to notify the court immediately in the event the defendant violates any conditions of release or disappears. Custodian Signature: Date: — DN.J-CR-019ff REV. 1/09)(modifled AO-199) Page 1 ________________ ___________ —, ___________ ___________ _____ ( ) The defendant’s travel is restricted to (New Jersey ( ) Other ) ( ) uiiless approved by Pretrial Services (PTS). ( ) Surrender all passports and travel documents to PTS. Do not apply for new travel documents.",
"( ) Substance abuse testing andJor treatment as directed by PTS. Refrain from obstructing or tampering with substance abuse testing procedures/equipment. ( ) Refrain from possessing a firearm, destructive device, or other dangerous weapons. All firearms in any home in which the defendant resides shall be removed by verification provided to PTS. ( ) Mental health testing/treatment as directed by PTS. ( ) Abstain from the use of alcohol. ( ) Maintain current residence or a residence approved by PTS.",
"( ) Maintain or actively seek empLoyment and/or commence an education program. ( ) No contact with minors unless in the presence of a parent or guardian who is aware of the present offense. ( ) Have no contact with the following individuals: Defendant is to particite in one of the following home confinement program components and abide by all the requirements of the program which will or ( ) will not include electronic monitoring or other location verification system. You shall pay all or part of the cost of the program based upon your ability to pay as determined by the pretrial services office or supervising officer. ( ) (i) Curfew. You are restricted to your residence every day ( ) from to or ( ) as directed by the pretrial services office or supervising officer; or ( ) (ii) Home Detention.",
"You are restricted to your residence at all times except for the following: education; religious services; medical, substance abuse, or mental health treatment; attorney visits; court appearances; court-ordered obligations; or other activities pre-approved by the pretrial services office or j supervising officer. Additionally, employment ( ) is permitted ( ) is not permitted. i4 (iii) Home Incarceration. You are restricted to your residence under 24 hour lock-down except for medical necessities and court appearances, or other activities specifically approved by the court. ( ) Defendant is subject to the following computer/internet restrictions which may include manual inspection and/or the installation of computer monitoring software, as deemed appropriate by Pretrial Services. The defendant shall pay all or part of the cost of the monitoring software based upon their ability to pay, as determined by the pretrial services office or supervising officer. ( ) (1) No Computers defendant is prohibited from possession and/or use of computers or - connected devices.",
"( ) (ii) Computer No Internet Access: defendant is permitted use of computers or connected - devices, but is not permitted access to the Internet (World Wide Web, FTP Sites, IRC Servers, Instant Messaging, etc); ( ) (iii) Computer With Internet Access: defendant is permitted use of computers or connected devices, and is permitted access to the Internet (World Wide Web, FTP Sites, IRC Servers, Instant Messaging, etc.) for legitimate and necessary purposes pre-approved by Pretrial Services at [ j home [ I for employment purposes. ( ) (iv) Consent of Other Residents -by consent of other residents in the home, any computers in the home utilized by other residents shall be approved by Pretrial Services, password protected by a third party custodian approved by Pretrial Services, and subject to inspection for compliance by Pretrial Services. Other: ky\\S ce41\\ç\\ \\c\\ ( ) Other: ( ) Other: DNJ-CR-019((REV. 1/09)(modified AO-199) Page 2"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/120105184/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
644 N.E.2d 546 (1994) Andrew CATE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). No. 49S00-9308-CR-920. Supreme Court of Indiana. December 14, 1994. *547 Howard Howe, Indianapolis, for appellant. Pamela Carter, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Indianapolis, for appellee. SHEPARD, Chief Justice. Appellant Andrew Cate was found guilty but mentally ill of murdering his two-year-old daughter, for which he received the maximum sixty-year prison sentence. There is no question that he committed the heinous act. He is also obviously suffering from some degree of mental incapacity. On direct appeal, Cate challenges his conviction on three grounds. First, Cate asserts that, in the face of "uncontroverted" expert testimony showing his insanity at the time of the murder, the jury's verdict is contrary to law. Second, he claims that the State did not rebut the evidence of his insanity, thereby failing to prove he had the requisite state of mind to be convicted of the offense. Finally, he challenges the introduction of his ex-wife's testimony about communications between them while they were still married. The first issue is an extension of the second, both of which constitute a challenge to the sufficiency of the evidence upon which Cate's guilty but mentally ill conviction was based.
I. Cate's Insanity Defense Persons who cannot appreciate the wrongfulness of their conduct due to some mental disease or defect cannot be held responsible when they break the law. Ind. Code Ann. § 35-41-3-6(a) (West 1986). Still, not all mental conditions are serious enough to relieve one of criminal responsibility. Lyon v. State (1993), Ind., 608 N.E.2d 1368, 1369 ("Mental disorder alone is not enough to excuse a defendant for the perpetration of a crime."). The Indiana Code defines "mental disease or defect" as "a severely abnormal mental condition that grossly and demonstrably impairs a person's perception, but the term does not include an abnormality manifested only by repeated unlawful or antisocial conduct." Ind. Code Ann. § 35-41-3-6(b) (West 1986). According to Ind. Code § 35-41-4-1, "the burden of proof is on the defendant to establish the defense of insanity (IC XX-XX-X-X) by a preponderance of the evidence." In this case, the jury was not satisfied that Cate proved his insanity. Most defendants claiming insanity attempt to satisfy their evidentiary burden by introducing expert testimony, and Cate calls our attention to the unanimous testimony of five doctors supporting his insanity defense. Indeed, each of the mental health professionals who examined Cate, including the State's expert and the court-appointed psychiatrist, agreed that Cate was legally insane at the time he killed his daughter. While such opinions provide a strong justification for raising the insanity defense, we have never held expert testimony to be conclusive. See, e.g., Mayes v. State (1982), Ind., 440 N.E.2d 678. Rather, as we observed in Turner v. State (1981), Ind., 428 N.E.2d 1244, the question is whether the jury's rejection of Cate's insanity defense "was contrary to all the evidence and hence contrary to law." Id. at 1246 (emphasis in original). While the expert testimony was unanimous, the psychiatrists' assertions about Cate's legal insanity were hardly uncontroverted. *548 The record contains evidence of his lucidity after arrest, demonstrating both an awareness of what he had just done and his deliberation in accomplishing the killing. Furthermore, despite his subsequent claims that he was mimicking the biblical story of Abraham's willingness to sacrifice his son Isaac, Cate had previously denied such a motivation when asked by a coworker within a week of the murder. Each of the psychiatrists, of course, evaluated Cate after the incident, based on his representations about his motivation on the evening in question. The jurors may have agreed with the prosecution's suggestion that Cate had a strong incentive to lie and could have told his doctors a tall tale to avoid a guilty verdict. We neither know nor can accurately reconstruct the exact reasons Cate was found to be guilty but mentally ill instead of not guilty by reason of insanity, but we find at least the minimal evidentiary justification for the jury to find him sane enough to be held legally accountable for his actions. The jury's decision to reject Cate's insanity defense was not contrary to law.
II. Sufficiency of the Evidence Unlike a defense based on a claim of the defendant's insanity, it is the State's burden in a criminal prosecution to demonstrate the defendant's culpability by proving the level of mens rea prescribed by the criminal statute. Murder convictions must be predicated on knowing or intentional conduct. Still, the State need not disprove mental illness to prove that Cate acted knowingly or intentionally. To hold otherwise would shift the burden of proof for an insanity defense. See Lyon, 608 N.E.2d at 1370. All the State need show on appeal is some evidence from which the jury could conclude beyond a reasonable doubt that Cate knowingly or intentionally killed his daughter. The evidence of Cate's intent when he fired ten bullets into Christina was sufficient to support the conviction. A jury may infer intent to kill from the deliberate act of using a deadly weapon against another in a manner likely to cause death or serious injury. Anthony v. State (1980), 274 Ind. 206, 409 N.E.2d 632. In addition, testimony at trial revealed that Cate expressed his intent to harm Christina just prior to her murder, and that he understood immediately afterwards that shooting her repeatedly as he did would likely kill her. On these facts, the jury could find incredible his assertions of having acted in accordance with an unshakable faith in divine intervention.[*]
III. Marital Privilege Finally, we turn to the claim that the admission of testimony from Lori Cate, the appellant's former wife, was error. Cate did not object to any of this testimony at trial, and thus the issue is not preserved for review. Accordingly, we affirm Cate's conviction. GIVAN, DICKSON and SULLIVAN, JJ., concur. DeBRULER, concurs in result without separate opinion. NOTES [*] According to most biblical accounts Abraham fully intended to slay his son Isaac as a demonstration of his faith. In the story God intervenes at the last moment to spare Isaac's life, but only after it was clear Abraham was going ahead with the sacrifice. | 10-30-2013 | [
"644 N.E.2d 546 (1994) Andrew CATE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). No. 49S00-9308-CR-920. Supreme Court of Indiana. December 14, 1994. *547 Howard Howe, Indianapolis, for appellant. Pamela Carter, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Indianapolis, for appellee. SHEPARD, Chief Justice. Appellant Andrew Cate was found guilty but mentally ill of murdering his two-year-old daughter, for which he received the maximum sixty-year prison sentence. There is no question that he committed the heinous act.",
"He is also obviously suffering from some degree of mental incapacity. On direct appeal, Cate challenges his conviction on three grounds. First, Cate asserts that, in the face of \"uncontroverted\" expert testimony showing his insanity at the time of the murder, the jury's verdict is contrary to law. Second, he claims that the State did not rebut the evidence of his insanity, thereby failing to prove he had the requisite state of mind to be convicted of the offense. Finally, he challenges the introduction of his ex-wife's testimony about communications between them while they were still married. The first issue is an extension of the second, both of which constitute a challenge to the sufficiency of the evidence upon which Cate's guilty but mentally ill conviction was based.",
"I. Cate's Insanity Defense Persons who cannot appreciate the wrongfulness of their conduct due to some mental disease or defect cannot be held responsible when they break the law. Ind. Code Ann. § 35-41-3-6(a) (West 1986). Still, not all mental conditions are serious enough to relieve one of criminal responsibility. Lyon v. State (1993), Ind., 608 N.E.2d 1368, 1369 (\"Mental disorder alone is not enough to excuse a defendant for the perpetration of a crime.\"). The Indiana Code defines \"mental disease or defect\" as \"a severely abnormal mental condition that grossly and demonstrably impairs a person's perception, but the term does not include an abnormality manifested only by repeated unlawful or antisocial conduct.\"",
"Ind. Code Ann. § 35-41-3-6(b) (West 1986). According to Ind. Code § 35-41-4-1, \"the burden of proof is on the defendant to establish the defense of insanity (IC XX-XX-X-X) by a preponderance of the evidence.\" In this case, the jury was not satisfied that Cate proved his insanity. Most defendants claiming insanity attempt to satisfy their evidentiary burden by introducing expert testimony, and Cate calls our attention to the unanimous testimony of five doctors supporting his insanity defense. Indeed, each of the mental health professionals who examined Cate, including the State's expert and the court-appointed psychiatrist, agreed that Cate was legally insane at the time he killed his daughter. While such opinions provide a strong justification for raising the insanity defense, we have never held expert testimony to be conclusive.",
"See, e.g., Mayes v. State (1982), Ind., 440 N.E.2d 678. Rather, as we observed in Turner v. State (1981), Ind., 428 N.E.2d 1244, the question is whether the jury's rejection of Cate's insanity defense \"was contrary to all the evidence and hence contrary to law.\" Id. at 1246 (emphasis in original). While the expert testimony was unanimous, the psychiatrists' assertions about Cate's legal insanity were hardly uncontroverted. *548 The record contains evidence of his lucidity after arrest, demonstrating both an awareness of what he had just done and his deliberation in accomplishing the killing. Furthermore, despite his subsequent claims that he was mimicking the biblical story of Abraham's willingness to sacrifice his son Isaac, Cate had previously denied such a motivation when asked by a coworker within a week of the murder. Each of the psychiatrists, of course, evaluated Cate after the incident, based on his representations about his motivation on the evening in question. The jurors may have agreed with the prosecution's suggestion that Cate had a strong incentive to lie and could have told his doctors a tall tale to avoid a guilty verdict.",
"We neither know nor can accurately reconstruct the exact reasons Cate was found to be guilty but mentally ill instead of not guilty by reason of insanity, but we find at least the minimal evidentiary justification for the jury to find him sane enough to be held legally accountable for his actions. The jury's decision to reject Cate's insanity defense was not contrary to law. II. Sufficiency of the Evidence Unlike a defense based on a claim of the defendant's insanity, it is the State's burden in a criminal prosecution to demonstrate the defendant's culpability by proving the level of mens rea prescribed by the criminal statute. Murder convictions must be predicated on knowing or intentional conduct. Still, the State need not disprove mental illness to prove that Cate acted knowingly or intentionally. To hold otherwise would shift the burden of proof for an insanity defense. See Lyon, 608 N.E.2d at 1370.",
"All the State need show on appeal is some evidence from which the jury could conclude beyond a reasonable doubt that Cate knowingly or intentionally killed his daughter. The evidence of Cate's intent when he fired ten bullets into Christina was sufficient to support the conviction. A jury may infer intent to kill from the deliberate act of using a deadly weapon against another in a manner likely to cause death or serious injury.",
"Anthony v. State (1980), 274 Ind. 206, 409 N.E.2d 632. In addition, testimony at trial revealed that Cate expressed his intent to harm Christina just prior to her murder, and that he understood immediately afterwards that shooting her repeatedly as he did would likely kill her. On these facts, the jury could find incredible his assertions of having acted in accordance with an unshakable faith in divine intervention. [*] III. Marital Privilege Finally, we turn to the claim that the admission of testimony from Lori Cate, the appellant's former wife, was error. Cate did not object to any of this testimony at trial, and thus the issue is not preserved for review. Accordingly, we affirm Cate's conviction. GIVAN, DICKSON and SULLIVAN, JJ., concur. DeBRULER, concurs in result without separate opinion. NOTES [*] According to most biblical accounts Abraham fully intended to slay his son Isaac as a demonstration of his faith.",
"In the story God intervenes at the last moment to spare Isaac's life, but only after it was clear Abraham was going ahead with the sacrifice."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2149954/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
SUMMARY ORDER
Petitioner Changming Ren, a native and citizen of the People’s Republic of China, seeks review of the October 29, 2004 order of the BIA affirming the June 30, 2003 decision of Immigration Judge (“IJ”) Michael Rocco, denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Changming Ren, No. A79 *772301 102 (B.I.A. Oct. 29, 2004), aff'g No. A79 301 102 (Immig. Ct. Buffalo June 30, 2003). We assume the parties’ familiarity with the underlying facts and procedural history of the case. When the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision as the final agency determination. See Wensheng Yan v. Mukasey, 509 F.3d 63, 66 (2d Cir.2007). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). As a preliminary matter, because Ren failed to challenge the IJ’s denial of his CAT claim in either his brief to the BIA or his brief to this Court, we deem that claim abandoned. See Gui Yin Liu v. INS, 508 F.3d 716, 723 n. 6 (2d Cir.2007) (citing Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir.2005)). Regarding the agency’s denial of asylum and withholding of removal, we deny Ren’s petition for review for the reasons explained below. It is axiomatic that the requirements of Federal Rule of Appellate Procedure 28(a) are “mandatory.” Sioson v. Knights of Columbus, 303 F.3d 458, 459 (2d Cir.2002). Petitioners seeking judicial review have an obligation to present them arguments clearly and to support them with citations to relevant legal authority and record evidence. See Fed. R.App. P. 28(a)(9)(A) (providing that a brief must contain “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies”). Moreover, issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal. See Yueqing Zhang, 426 F.3d at 541 n. 1, 545 n. 7 (citing Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998)); see also Frank v. U.S., 78 F.3d 815, 833 (2d Cir.1996) (noting that “simply stating an issue does not constitute compliance with Rule 28(a): an appellant or cross-appellant must state the issue and advance an argument”), certiorari granted and judgment vacated on other grounds by Frank v. United States, 521 U.S. 1114, 117 S.Ct. 2501, 138 L.Ed.2d 1007 (1997). While we have the power to address an argument despite a waiver of this sort, we ordinarily will not do so unless manifest injustice otherwise would result. See LNC Invs., Inc. v. Nat'l Westminster Bank, N.J., 308 F.3d 169, 176 n. 8 (2d Cir.2002) (citing Anderson v. Branen, 27 F.3d 29, 30 (2d Cir.1994)). Ren’s brief to this Court fails to comply with Rule 28(a) in multiple respects and is otherwise of poor quality. Among other deficiencies, the brief: fails to include any cites to the administrative record; includes an inadequate statement of the facts and procedural history; fails to include a summary of the arguments; includes a jurisdictional statement that is incomplete, factually inaccurate, and contains citations to sections of the United States Code and the Immigration and Nationality Act that have nothing to do with jurisdiction; is largely devoid of relevant citations to decisions of this Court; and fails to provide the relevant standard of review. Moreover, Ren challenges only two of the findings supporting the IJ’s adverse credibility determination, having abandoned any challenge to the other findings (notably the IJ’s finding that he failed to sufficiently corroborate his claims). See Gui Yin Liu, 508 F.3d at 723 n. 6. As to the findings that he does challenge, he makes no attempt to connect the facts provided to any relevant legal principle. See Sioson, 303 F.3d at 459 (observing that “[t]o make a legal argument is to advance one’s contentions by connecting law to facts” (citing Fed. R.App. P. 28(a)(9)(A))). *773Ren’s “brief is tantamount to an ‘invitation ... to scour the record, research any legal theory that comes to mind, and serve generally as [his] advocate.’ ” Id. at 460 (quoting Ernst Haas Studio, Inc. v. Palm Press, Inc., 164 F.3d 110, 112 (2d Cir. 1999)) (alterations added). This is not our function, especially in a counseled case. See id. In light of the foregoing, we find that Ren’s brief does not comply with Rule 28(a), and deem waived any challenges to the agency’s adverse credibility determination.1 See id.; see also Norton, 145 F.3d at 117. Ren’s failure to raise any adequate challenge to that determination is fatal to his petition for review. Counsel is cautioned that the future filing of such an inadequate submission will be grounds not only for rejection of the brief but a formal reprimand or other sanction, including the possible referral to the Court’s Grievance Panel. For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. In any event, a brief review of the adverse credibility determination reveals that it was supported by specific, cogent findings and was dispositive of the agency’s denial of relief. See Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir.2004), overruled in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir.2007) (en banc). | 11-24-2022 | [
"SUMMARY ORDER Petitioner Changming Ren, a native and citizen of the People’s Republic of China, seeks review of the October 29, 2004 order of the BIA affirming the June 30, 2003 decision of Immigration Judge (“IJ”) Michael Rocco, denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Changming Ren, No. A79 *772301 102 (B.I.A. Oct. 29, 2004), aff'g No. A79 301 102 (Immig. Ct. Buffalo June 30, 2003). We assume the parties’ familiarity with the underlying facts and procedural history of the case. When the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision as the final agency determination. See Wensheng Yan v. Mukasey, 509 F.3d 63, 66 (2d Cir.2007).",
"We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). As a preliminary matter, because Ren failed to challenge the IJ’s denial of his CAT claim in either his brief to the BIA or his brief to this Court, we deem that claim abandoned. See Gui Yin Liu v. INS, 508 F.3d 716, 723 n. 6 (2d Cir.2007) (citing Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir.2005)). Regarding the agency’s denial of asylum and withholding of removal, we deny Ren’s petition for review for the reasons explained below. It is axiomatic that the requirements of Federal Rule of Appellate Procedure 28(a) are “mandatory.” Sioson v. Knights of Columbus, 303 F.3d 458, 459 (2d Cir.2002). Petitioners seeking judicial review have an obligation to present them arguments clearly and to support them with citations to relevant legal authority and record evidence.",
"See Fed. R.App. P. 28(a)(9)(A) (providing that a brief must contain “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies”). Moreover, issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal. See Yueqing Zhang, 426 F.3d at 541 n. 1, 545 n. 7 (citing Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998)); see also Frank v. U.S., 78 F.3d 815, 833 (2d Cir.1996) (noting that “simply stating an issue does not constitute compliance with Rule 28(a): an appellant or cross-appellant must state the issue and advance an argument”), certiorari granted and judgment vacated on other grounds by Frank v. United States, 521 U.S. 1114, 117 S.Ct. 2501, 138 L.Ed.2d 1007 (1997). While we have the power to address an argument despite a waiver of this sort, we ordinarily will not do so unless manifest injustice otherwise would result.",
"See LNC Invs., Inc. v. Nat'l Westminster Bank, N.J., 308 F.3d 169, 176 n. 8 (2d Cir.2002) (citing Anderson v. Branen, 27 F.3d 29, 30 (2d Cir.1994)). Ren’s brief to this Court fails to comply with Rule 28(a) in multiple respects and is otherwise of poor quality. Among other deficiencies, the brief: fails to include any cites to the administrative record; includes an inadequate statement of the facts and procedural history; fails to include a summary of the arguments; includes a jurisdictional statement that is incomplete, factually inaccurate, and contains citations to sections of the United States Code and the Immigration and Nationality Act that have nothing to do with jurisdiction; is largely devoid of relevant citations to decisions of this Court; and fails to provide the relevant standard of review. Moreover, Ren challenges only two of the findings supporting the IJ’s adverse credibility determination, having abandoned any challenge to the other findings (notably the IJ’s finding that he failed to sufficiently corroborate his claims). See Gui Yin Liu, 508 F.3d at 723 n. 6.",
"As to the findings that he does challenge, he makes no attempt to connect the facts provided to any relevant legal principle. See Sioson, 303 F.3d at 459 (observing that “[t]o make a legal argument is to advance one’s contentions by connecting law to facts” (citing Fed. R.App. P. 28(a)(9)(A))). *773Ren’s “brief is tantamount to an ‘invitation ... to scour the record, research any legal theory that comes to mind, and serve generally as [his] advocate.’ ” Id. at 460 (quoting Ernst Haas Studio, Inc. v. Palm Press, Inc., 164 F.3d 110, 112 (2d Cir. 1999)) (alterations added). This is not our function, especially in a counseled case. See id.",
"In light of the foregoing, we find that Ren’s brief does not comply with Rule 28(a), and deem waived any challenges to the agency’s adverse credibility determination.1 See id. ; see also Norton, 145 F.3d at 117. Ren’s failure to raise any adequate challenge to that determination is fatal to his petition for review. Counsel is cautioned that the future filing of such an inadequate submission will be grounds not only for rejection of the brief but a formal reprimand or other sanction, including the possible referral to the Court’s Grievance Panel. For the foregoing reasons, the petition for review is DENIED.",
"As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). . In any event, a brief review of the adverse credibility determination reveals that it was supported by specific, cogent findings and was dispositive of the agency’s denial of relief. See Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir.2004), overruled in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir.2007) (en banc)."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8671559/ | 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 . Reasons for Allowance The following is an examiner’s statement of reasons for allowance: KARJALA et al., the closest prior art of record, fails to teach where the substrate composed of a composition consisting of (A) 65.2 wt% maleic anhydride functionalized ethylene/octene copolymer; (B) 21.7 wt% filler selected from the group consisting of talc, calcium carbonate, and coal fly ash; and (C) 13.1 wt% tackifier.
KARJALA teaches compositions containing at least one functionalized ethylene interpolymer (Abstract; [0031]). The functionalized ethylene interpolymer is formed form at least one unsaturated compound such as maleic anhydride [0036 and 0037]. The functionalized ethylene interpolymer has a density from 0.86 g/cm3 to 0.90 g/cm3 [0044] and has a melt viscosity at 350oF (177oC) from 2,000 to 50,000 cp, preferably 6,000 to 20,000 cP [0045]. The functionalized ethylene interpolymer is present in the amount from 15 to 50 weight percent [0053] (which reads on component A) of the present invention). The composition further comprises from 0 to 40 weight percent, preferably from 5 to 35 weight percent of at least one tackifier [0053] (which reads on component C) of the present invention). The composition further comprises filler such as talc, calcium carbonate, and etc. [0157]. The composition are useful adhesive formulations, other applications and articles made therefrom, and methods for making the same [0001]. The components of an adhesive formulation may be added to an extrusion coater for applications to the substrate [0173]. The adhesives are suited for use in the packaging industry for case and carton sealing and for tray forming [0174] and the adhesives may also be used in a variety of applications, including carton sealing, automotive, furniture adhesives, wood flooring adhesives, contact hot melt adhesives, paperboard coatings, profile wrap adhesives, and etc. [0175]. However, KARJALA does not teach the substrate composed of a composition consisting of claimed components A-C as claimed. Therefore, KARJALA fails to disclose or render obvious the present 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 Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEVE V HALL whose telephone number is (571)270-7738. The examiner can normally be reached M-F, 9 am-5 pm, EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ling-Sui Choi can be reached on (571)272-1098. 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.
DEVE V. HALL Primary Examiner Art Unit 1763
/DEVE V HALL/Primary Examiner, Art Unit 1763 | 2022-09-01T14:55:59 | [
"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 . Reasons for Allowance The following is an examiner’s statement of reasons for allowance: KARJALA et al., the closest prior art of record, fails to teach where the substrate composed of a composition consisting of (A) 65.2 wt% maleic anhydride functionalized ethylene/octene copolymer; (B) 21.7 wt% filler selected from the group consisting of talc, calcium carbonate, and coal fly ash; and (C) 13.1 wt% tackifier. KARJALA teaches compositions containing at least one functionalized ethylene interpolymer (Abstract; [0031]). The functionalized ethylene interpolymer is formed form at least one unsaturated compound such as maleic anhydride [0036 and 0037].",
"The functionalized ethylene interpolymer has a density from 0.86 g/cm3 to 0.90 g/cm3 [0044] and has a melt viscosity at 350oF (177oC) from 2,000 to 50,000 cp, preferably 6,000 to 20,000 cP [0045]. The functionalized ethylene interpolymer is present in the amount from 15 to 50 weight percent [0053] (which reads on component A) of the present invention). The composition further comprises from 0 to 40 weight percent, preferably from 5 to 35 weight percent of at least one tackifier [0053] (which reads on component C) of the present invention). The composition further comprises filler such as talc, calcium carbonate, and etc. [0157]. The composition are useful adhesive formulations, other applications and articles made therefrom, and methods for making the same [0001].",
"The components of an adhesive formulation may be added to an extrusion coater for applications to the substrate [0173]. The adhesives are suited for use in the packaging industry for case and carton sealing and for tray forming [0174] and the adhesives may also be used in a variety of applications, including carton sealing, automotive, furniture adhesives, wood flooring adhesives, contact hot melt adhesives, paperboard coatings, profile wrap adhesives, and etc. [0175]. However, KARJALA does not teach the substrate composed of a composition consisting of claimed components A-C as claimed. Therefore, KARJALA fails to disclose or render obvious the present 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 Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEVE V HALL whose telephone number is (571)270-7738. The examiner can normally be reached M-F, 9 am-5 pm, EST.",
"Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ling-Sui Choi can be reached on (571)272-1098. 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. DEVE V. HALL Primary Examiner Art Unit 1763 /DEVE V HALL/Primary Examiner, Art Unit 1763"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-09-04.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 5:18-cr-00348-LHK Document 16 Filed 10/30/18 Page 1 of 2
Ronald Gainor, Esq. 1 Florida Bar No. 0606960 3250 Mary Street, Suite 405 2 Miami, Florida 33133 Phone: (720) 201-3036 3 Fax: (305)537-2001 gainorlaw@gmail.com 4 Pro Hac Vice 5 Adam Pennella California Bar No. 246260 6 717 Washington Street Oakland, CA 94607 7 Phone: (510) 451-4600 Fax: (510) 451-3002 8 adam@wps-law.com 9 Attorneys for Defendant 10 VASILE MEREACRE
11 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 12 SAN JOSE DIVISION 13 UNITED STATES OF AMERICA, Case No. CR 18-348 LHK (NC) 14 Plaintiff, 15 v. NOTICE OF APPEARANCE 16 VASILE MEREACRE, 17 Defendant. 18 19 Ronald Gainor, Esq. does hereby enter his appearance as counsel on behalf of the 20 Defendant, Vasile Mereacre, in the above-referenced case, and request that copies of all 21 future orders, process, pleadings and other filings in this matter be served upon him 22 by facsimile, U.S. Mail or electronic transmission at the numbers and address listed 23 below. 24 25 Dated: October 30, 2018
26 Respectfully submitted,
27 /s/ Ronald Gainor
28 Page - 1 - of 2 NOTICE OF APPEARANCE Case 5:18-cr-00348-LHK Document 16 Filed 10/30/18 Page 2 of 2
Florida Bar No. 0606960 1 3250 Mary Street, Suite 405 Miami, Florida 33133 2 Phone: (720) 201-3036 Fax: (305)537-2001 3 gainorlaw@gmail.com Pro Hac Vice 4 And 5 Adam Pennella, SBN 246260 6 Wolf, Pennella & Stevens, LLP 717 Washington Street 7 Oakland, CA 94607 Phone: (510) 451-4600 8 Fax: (510) 451-3002 adam@wps-law.com 9 10 CERTIFICATE OF SERVICE 11 I hereby certify that on this 30th day of October, 2018, I electronically filed the 12 foregoing Notice with the Clerk of Court using the CM/ECF system which will 13 automatically send notification of such filing to all counsel of record. 14 15 /s/Ronald Gainor 16 17 18 19 20 21 22 23 24 25 26 27 28 Page - 2 - of 2 NOTICE OF APPEARANCE | 2018-10-30 | [
"Case 5:18-cr-00348-LHK Document 16 Filed 10/30/18 Page 1 of 2 Ronald Gainor, Esq. 1 Florida Bar No. 0606960 3250 Mary Street, Suite 405 2 Miami, Florida 33133 Phone: (720) 201-3036 3 Fax: (305)537-2001 gainorlaw@gmail.com 4 Pro Hac Vice 5 Adam Pennella California Bar No. 246260 6 717 Washington Street Oakland, CA 94607 7 Phone: (510) 451-4600 Fax: (510) 451-3002 8 adam@wps-law.com 9 Attorneys for Defendant 10 VASILE MEREACRE 11 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 12 SAN JOSE DIVISION 13 UNITED STATES OF AMERICA, Case No.",
"CR 18-348 LHK (NC) 14 Plaintiff, 15 v. NOTICE OF APPEARANCE 16 VASILE MEREACRE, 17 Defendant. 18 19 Ronald Gainor, Esq. does hereby enter his appearance as counsel on behalf of the 20 Defendant, Vasile Mereacre, in the above-referenced case, and request that copies of all 21 future orders, process, pleadings and other filings in this matter be served upon him 22 by facsimile, U.S. Mail or electronic transmission at the numbers and address listed 23 below. 24 25 Dated: October 30, 2018 26 Respectfully submitted, 27 /s/ Ronald Gainor 28 Page - 1 - of 2 NOTICE OF APPEARANCE Case 5:18-cr-00348-LHK Document 16 Filed 10/30/18 Page 2 of 2 Florida Bar No.",
"0606960 1 3250 Mary Street, Suite 405 Miami, Florida 33133 2 Phone: (720) 201-3036 Fax: (305)537-2001 3 gainorlaw@gmail.com Pro Hac Vice 4 And 5 Adam Pennella, SBN 246260 6 Wolf, Pennella & Stevens, LLP 717 Washington Street 7 Oakland, CA 94607 Phone: (510) 451-4600 8 Fax: (510) 451-3002 adam@wps-law.com 9 10 CERTIFICATE OF SERVICE 11 I hereby certify that on this 30th day of October, 2018, I electronically filed the 12 foregoing Notice with the Clerk of Court using the CM/ECF system which will 13 automatically send notification of such filing to all counsel of record. 14 15 /s/Ronald Gainor 16 17 18 19 20 21 22 23 24 25 26 27 28 Page - 2 - of 2 NOTICE OF APPEARANCE"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/46185414/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Broderick, J. Defendant Salem Farm Realty Trust (Salem Farm) appeals the Superior Court’s (Coffey, J.) ruling enforcing an oral settlement agreement involving the transfer of a leasehold interest. We conclude that the settlement is subject to the statute of frauds, RSA 506:1 (1983), and accordingly reverse and remand. I Salem Farm leases a small building on a tract of land owned by a third party. The plaintiff, the Byblos Corporation, is Salem Farm’s sublessee and runs a take-out food business on the premises. The owner of the land and building operates a large retail electronics store on the site. Prior to 1992, the building from which the plaintiff conducts its business was located inside a large supermarket operated by defendant Alexander’s Markets. When the electronics store was built, the supermarket was demolished, and the plaintiff’s store became a free-standing structure. The demolition and construction work on the site allegedly interfered with the plaintiff’s business operations, and the absence of the supermarket deprived *728the business of foot traffic. These circumstances resulted in a legal battle, in which the parties filed reciprocal claims in the superior court. On April 14, 1994, a motion hearing was held in superior court concerning storage fees charged to the plaintiff by Salem Farm. The court, after briefly hearing from both sides, urged the parties to consider some type of settlement. The parties and counsel adjourned to a conference room where they remained for the balance of the day. They discussed the pending motion but soon expanded their focus to settlement of all outstanding litigation. At day’s end each participant prepared a memorandum detailing the posture of the negotiations. The five memoranda indicated that the participants had discussed a settlement agreement whereby Salem Farm would transfer its leasehold interest to the plaintiff in exchange for $500,000. Some time later it became clear to the plaintiff that Salem Farm was balking at fulfilling the terms of the settlement, and the plaintiff filed a motion to compel enforcement. After two days of hearings, the trial court found for the plaintiff and ordered that the agreement be fully implemented. The court determined that there had been an offer of compromise and an acceptance. It pointed to the marked similarity between the parties’ memoranda, the detailed content of the writings, and the considerable time spent in negotiation as confirmation of the parties’ intent to be bound. Having found a meeting of the minds, the court ruled that the statute of frauds did not apply to the parties’ agreement, which included the transfer of an interest in land, because “[t]he statute . . . will not invalidate an agreement to settle a civil action.” Accordingly, the court did not determine whether a writing existed that would satisfy the statute of frauds. This appeal followed. Salem Farm argues that the trial court erred in several respects when it determined that the parties had entered into a binding settlement agreement. Salem Farm also asserts that the plaintiff’s conduct during the months following the negotiations estops it from arguing that a valid agreement exists. Salem Farm further argues that, assuming an agreement did exist, the terms of that agreement limit the plaintiff to reinstatement of the underlying litigation upon breach. Finally, Salem Farm contends that the trial court erred when it determined that the statute of frauds did not apply to the current case. We address each argument in turn. II The trial court’s determination that a binding settlement agreement existed, and its construction of the disputed terms of *729that agreement, are questions of fact. See Belknap Textiles, Inc. v. Belknap Industries, Inc., 121 N.H. 28, 30, 424 A.2d 1141, 1143 (1981); Harrison v. Watson, 116 N.H. 510, 511, 363 A.2d 204, 205 (1976). Similarly, “[t]he burden of proving estoppel is upon the party asserting it, and its existence is a question of fact to be resolved by the trier of fact.” Olszak v. Peerless Ins. Co., 119 N.H. 686, 690, 406 A.2d 711, 714 (1979). Absent an error of law, this court will affirm the trial court’s rulings on these issues if they are supported by the evidence. See, e.g., Guaraldi v. Trans-Lease Group, 136 N.H. 457, 461, 617 A.2d 648, 650 (1992) (existence of agreement); Olszak, 119 N.H. at 691, 406 A.2d at 714 (estoppel). The trial court’s reasons for finding that a binding settlement agreement existed are supported by ample evidence in the record. Its determination that the agreement provided for reinstatement of the underlying litigation only if Salem Farm was unable to close because of problems with title or hazardous waste is also supported by the evidence. Accordingly, its decision to enforce the terms of the sale following Salem Farm’s voluntary breach must be affirmed. Cf. Hawthorne Trust v. Maine Savings Bank, 136 N.H. 533, 539, 618 A.2d 828, 832 (1992). Similarly, the trial court could appropriately find that Salem Farm had not met its burden of establishing the basic elements of estoppel, cf. Town of Nottingham v. Lee Homes, Inc., 118 N.H. 438, 442-43, 388 A.2d 940, 942-43 (1978), as the court had already determined that the plaintiff had acted reasonably during the time period in question, suggesting that the plaintiff did not intend to mislead or induce reliance by Salem Farm. Id. at 442, 388 A.2d at 942. We therefore proceed to a consideration of Salem Farm’s remaining argument. Ill Whether the trial court correctly concluded that the statute of frauds did not apply to this settlement agreement is a question of law that we review de novo. See Tsiatsios v. Tsiatsios, 140 N.H. 173, 176, 663 A.2d 1335, 1338 (1995). The statute of frauds provides that “[n]o action shall be maintained upon a contract for the sale of land unless the agreement upon which it is brought, or some memorandum thereof, is in writing and signed by the party to be charged, or by some person authorized by him in writing.” RSA 506:1. “A parol agreement to lease land for a term of years is a contract to convey an interest in land[] within the Statute of Frauds.” Smith v. Phillips, 69 N.H. 470, 471, 43 A. 183, 183 (1898). Consequently, an agreement to transfer a leasehold interest must also be in writing to be enforceable. See Wilson v. DelPapa, 634 A.2d 1252, 1254 n.3 (Me. 1993). *730The plaintiff argues, however, that our decisions in Bock (Lundstrom) v. Lundstrom, 133 N.H. 161, 573 A.2d 882 (1990), and Halstead v. Murray, 130 N.H. 560, 547 A.2d 202 (1988), stand for the proposition that settlement agreements negotiated by counsel need not comply with the statute of frauds. Such a broad reading of these decisions overlooks the essential factual difference between those cases and the present one: while the prior cases involved the “authority” clause of the statute, the present case implicates the very heart of the statute. In both Halstead.and Bock, the court stated that “because there is such a special relationship between the attorney and his client, our Statute of Frauds does not require the client to authorize his attorney, in writing, to settle an action involving a land dispute through sale of the subject property.” Halstead, 130 N.H. at 566, 547 A.2d at 205; Bock, 133 N.H. at 165, 573 A.2d at 885 (quotation omitted); cf. Beliveau v. Amoskeag Co., 68 N.H. 225, 226, 40 A. 734, 734 (1894). By not requiring an attorney’s authority to be evidenced by a writing that complies with the statute of frauds, this court recognized the special role that an attorney plays in a client’s affairs: a role that transcends that of mere agent. See Halstead, 130 N.H. at 565-66, 547 A.2d at 205. In the present appeal, however, we must address the need for a writing between adverse parties to a settlement agreement negotiated by counsel when their agreement involves the transfer of an interest in land. The policy reasons for the statute of frauds are never more evident than when opposing litigants come together to thrash out their differences. See Weale v. Massachusetts Gen. Housing Corp., 117 N.H. 428, 431, 374 A.2d 925, 928 (1977) (stating that the statute of frauds “is intended to promote certainty and to protect from frauds and perjuries in land transactions”). Unlike the situation at issue in Bock and Halstead, in which the attorney and client enjoyed a special status underscored by a complete unity of interest, the current case involves litigants with divergent interests and incentives. In addition, the policy behind the legislature’s enactment of the statute, see Weale, 117 N.H. at 431, 374 A.2d at 928, must necessarily inform this court’s otherwise liberal policy of enforcing settlement agreements. See Halstead, 130 N.H. at 565, 547 A.2d at 205. While it is true that attorneys are deemed to be officers of the court, Welanko’s Case, 99 N.H. 413, 414, 112 A.2d 50, 51 (1955), their involvement in a transaction does not, in and of itself, eclipse the need for certainty in land titles to such an extent that the commands of the legislature can be overlooked. Cf. O’Brien v. O’Brien, 141 N.H. 435, 437, 684 A.2d 1352, 1354 (1996) (court will not create exceptions to clearly defined legislative policies). *731In light of these considerations, we hold that, when a settlement agreement includes the transfer of an interest in land, it necessarily implicates the statute of frauds. Therefore, the agreement must be in writing and signed by the party to be charged, or by some person authorized by him. RSA 506:1. We continue to adhere to the view that settlements that involve land conveyances are excepted from the statute when they are finalized under court supervision. See Perley v. Bailey, 89 N.H. 359, 360, 199 A. 570, 571 (1938); cf. Fernald v. Ladd, 4 N.H. 370, 370 (1828). Likewise, when certain factors, “such as fraud, part performance or other equitable considerations, are present,” the trial court may dispense with the need for a written agreement. Weale, 117 N.H. at 431, 374 A.2d at 928. Settlements that do not implicate the statute of frauds may also remain unwritten. Cf. Manchester Housing Auth. v. Zyla, 118 N.H. 268, 268-69, 385 A.2d 225, 226-27 (1978); Burtman v. Burtman, 94 N.H. 412, 415, 54 A.2d 367, 370 (1947). Finally, as we held in Halstead, an attorney’s authority to settle litigation for a client need not be in writing, even if the underlying settlement implicates the statute of frauds. Halstead, 130 N.H. at 566, 547 A.2d at 205. When, however, two opposing parties agree to a conveyance of an interest in land, with or without lawyer involvement, the fact that the conveyance is part of a settlement does not remove the transaction from the confines of the statute. See Omaha Nat. Bank of Omaha v. Mullenax, 320 N.W.2d 755, 758 (Neb. 1982). The trial court’s determination that the statute of frauds is inapplicable to the present case is, therefore, reversed. As the trial court never determined if a writing existed that would satisfy the statute of frauds, the matter is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
All concurred. | 09-09-2022 | [
"Broderick, J. Defendant Salem Farm Realty Trust (Salem Farm) appeals the Superior Court’s (Coffey, J.) ruling enforcing an oral settlement agreement involving the transfer of a leasehold interest. We conclude that the settlement is subject to the statute of frauds, RSA 506:1 (1983), and accordingly reverse and remand. I Salem Farm leases a small building on a tract of land owned by a third party. The plaintiff, the Byblos Corporation, is Salem Farm’s sublessee and runs a take-out food business on the premises. The owner of the land and building operates a large retail electronics store on the site. Prior to 1992, the building from which the plaintiff conducts its business was located inside a large supermarket operated by defendant Alexander’s Markets.",
"When the electronics store was built, the supermarket was demolished, and the plaintiff’s store became a free-standing structure. The demolition and construction work on the site allegedly interfered with the plaintiff’s business operations, and the absence of the supermarket deprived *728the business of foot traffic. These circumstances resulted in a legal battle, in which the parties filed reciprocal claims in the superior court. On April 14, 1994, a motion hearing was held in superior court concerning storage fees charged to the plaintiff by Salem Farm. The court, after briefly hearing from both sides, urged the parties to consider some type of settlement. The parties and counsel adjourned to a conference room where they remained for the balance of the day. They discussed the pending motion but soon expanded their focus to settlement of all outstanding litigation. At day’s end each participant prepared a memorandum detailing the posture of the negotiations. The five memoranda indicated that the participants had discussed a settlement agreement whereby Salem Farm would transfer its leasehold interest to the plaintiff in exchange for $500,000. Some time later it became clear to the plaintiff that Salem Farm was balking at fulfilling the terms of the settlement, and the plaintiff filed a motion to compel enforcement.",
"After two days of hearings, the trial court found for the plaintiff and ordered that the agreement be fully implemented. The court determined that there had been an offer of compromise and an acceptance. It pointed to the marked similarity between the parties’ memoranda, the detailed content of the writings, and the considerable time spent in negotiation as confirmation of the parties’ intent to be bound. Having found a meeting of the minds, the court ruled that the statute of frauds did not apply to the parties’ agreement, which included the transfer of an interest in land, because “[t]he statute . . . will not invalidate an agreement to settle a civil action.” Accordingly, the court did not determine whether a writing existed that would satisfy the statute of frauds. This appeal followed. Salem Farm argues that the trial court erred in several respects when it determined that the parties had entered into a binding settlement agreement.",
"Salem Farm also asserts that the plaintiff’s conduct during the months following the negotiations estops it from arguing that a valid agreement exists. Salem Farm further argues that, assuming an agreement did exist, the terms of that agreement limit the plaintiff to reinstatement of the underlying litigation upon breach. Finally, Salem Farm contends that the trial court erred when it determined that the statute of frauds did not apply to the current case. We address each argument in turn. II The trial court’s determination that a binding settlement agreement existed, and its construction of the disputed terms of *729that agreement, are questions of fact.",
"See Belknap Textiles, Inc. v. Belknap Industries, Inc., 121 N.H. 28, 30, 424 A.2d 1141, 1143 (1981); Harrison v. Watson, 116 N.H. 510, 511, 363 A.2d 204, 205 (1976). Similarly, “[t]he burden of proving estoppel is upon the party asserting it, and its existence is a question of fact to be resolved by the trier of fact.” Olszak v. Peerless Ins. Co., 119 N.H. 686, 690, 406 A.2d 711, 714 (1979). Absent an error of law, this court will affirm the trial court’s rulings on these issues if they are supported by the evidence. See, e.g., Guaraldi v. Trans-Lease Group, 136 N.H. 457, 461, 617 A.2d 648, 650 (1992) (existence of agreement); Olszak, 119 N.H. at 691, 406 A.2d at 714 (estoppel). The trial court’s reasons for finding that a binding settlement agreement existed are supported by ample evidence in the record.",
"Its determination that the agreement provided for reinstatement of the underlying litigation only if Salem Farm was unable to close because of problems with title or hazardous waste is also supported by the evidence. Accordingly, its decision to enforce the terms of the sale following Salem Farm’s voluntary breach must be affirmed. Cf. Hawthorne Trust v. Maine Savings Bank, 136 N.H. 533, 539, 618 A.2d 828, 832 (1992). Similarly, the trial court could appropriately find that Salem Farm had not met its burden of establishing the basic elements of estoppel, cf. Town of Nottingham v. Lee Homes, Inc., 118 N.H. 438, 442-43, 388 A.2d 940, 942-43 (1978), as the court had already determined that the plaintiff had acted reasonably during the time period in question, suggesting that the plaintiff did not intend to mislead or induce reliance by Salem Farm.",
"Id. at 442, 388 A.2d at 942. We therefore proceed to a consideration of Salem Farm’s remaining argument. Ill Whether the trial court correctly concluded that the statute of frauds did not apply to this settlement agreement is a question of law that we review de novo. See Tsiatsios v. Tsiatsios, 140 N.H. 173, 176, 663 A.2d 1335, 1338 (1995). The statute of frauds provides that “[n]o action shall be maintained upon a contract for the sale of land unless the agreement upon which it is brought, or some memorandum thereof, is in writing and signed by the party to be charged, or by some person authorized by him in writing.” RSA 506:1. “A parol agreement to lease land for a term of years is a contract to convey an interest in land[] within the Statute of Frauds.” Smith v. Phillips, 69 N.H. 470, 471, 43 A.",
"183, 183 (1898). Consequently, an agreement to transfer a leasehold interest must also be in writing to be enforceable. See Wilson v. DelPapa, 634 A.2d 1252, 1254 n.3 (Me. 1993). *730The plaintiff argues, however, that our decisions in Bock (Lundstrom) v. Lundstrom, 133 N.H. 161, 573 A.2d 882 (1990), and Halstead v. Murray, 130 N.H. 560, 547 A.2d 202 (1988), stand for the proposition that settlement agreements negotiated by counsel need not comply with the statute of frauds. Such a broad reading of these decisions overlooks the essential factual difference between those cases and the present one: while the prior cases involved the “authority” clause of the statute, the present case implicates the very heart of the statute. In both Halstead.and Bock, the court stated that “because there is such a special relationship between the attorney and his client, our Statute of Frauds does not require the client to authorize his attorney, in writing, to settle an action involving a land dispute through sale of the subject property.” Halstead, 130 N.H. at 566, 547 A.2d at 205; Bock, 133 N.H. at 165, 573 A.2d at 885 (quotation omitted); cf. Beliveau v. Amoskeag Co., 68 N.H. 225, 226, 40 A. 734, 734 (1894).",
"By not requiring an attorney’s authority to be evidenced by a writing that complies with the statute of frauds, this court recognized the special role that an attorney plays in a client’s affairs: a role that transcends that of mere agent. See Halstead, 130 N.H. at 565-66, 547 A.2d at 205. In the present appeal, however, we must address the need for a writing between adverse parties to a settlement agreement negotiated by counsel when their agreement involves the transfer of an interest in land.",
"The policy reasons for the statute of frauds are never more evident than when opposing litigants come together to thrash out their differences. See Weale v. Massachusetts Gen. Housing Corp., 117 N.H. 428, 431, 374 A.2d 925, 928 (1977) (stating that the statute of frauds “is intended to promote certainty and to protect from frauds and perjuries in land transactions”). Unlike the situation at issue in Bock and Halstead, in which the attorney and client enjoyed a special status underscored by a complete unity of interest, the current case involves litigants with divergent interests and incentives. In addition, the policy behind the legislature’s enactment of the statute, see Weale, 117 N.H. at 431, 374 A.2d at 928, must necessarily inform this court’s otherwise liberal policy of enforcing settlement agreements.",
"See Halstead, 130 N.H. at 565, 547 A.2d at 205. While it is true that attorneys are deemed to be officers of the court, Welanko’s Case, 99 N.H. 413, 414, 112 A.2d 50, 51 (1955), their involvement in a transaction does not, in and of itself, eclipse the need for certainty in land titles to such an extent that the commands of the legislature can be overlooked. Cf. O’Brien v. O’Brien, 141 N.H. 435, 437, 684 A.2d 1352, 1354 (1996) (court will not create exceptions to clearly defined legislative policies). *731In light of these considerations, we hold that, when a settlement agreement includes the transfer of an interest in land, it necessarily implicates the statute of frauds.",
"Therefore, the agreement must be in writing and signed by the party to be charged, or by some person authorized by him. RSA 506:1. We continue to adhere to the view that settlements that involve land conveyances are excepted from the statute when they are finalized under court supervision. See Perley v. Bailey, 89 N.H. 359, 360, 199 A. 570, 571 (1938); cf. Fernald v. Ladd, 4 N.H. 370, 370 (1828). Likewise, when certain factors, “such as fraud, part performance or other equitable considerations, are present,” the trial court may dispense with the need for a written agreement. Weale, 117 N.H. at 431, 374 A.2d at 928.",
"Settlements that do not implicate the statute of frauds may also remain unwritten. Cf. Manchester Housing Auth. v. Zyla, 118 N.H. 268, 268-69, 385 A.2d 225, 226-27 (1978); Burtman v. Burtman, 94 N.H. 412, 415, 54 A.2d 367, 370 (1947). Finally, as we held in Halstead, an attorney’s authority to settle litigation for a client need not be in writing, even if the underlying settlement implicates the statute of frauds. Halstead, 130 N.H. at 566, 547 A.2d at 205. When, however, two opposing parties agree to a conveyance of an interest in land, with or without lawyer involvement, the fact that the conveyance is part of a settlement does not remove the transaction from the confines of the statute. See Omaha Nat.",
"Bank of Omaha v. Mullenax, 320 N.W.2d 755, 758 (Neb. 1982). The trial court’s determination that the statute of frauds is inapplicable to the present case is, therefore, reversed. As the trial court never determined if a writing existed that would satisfy the statute of frauds, the matter is remanded for further proceedings consistent with this opinion. Reversed and remanded. All concurred."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8051968/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
PNG media_image1.png 172 172 media_image1.png Greyscale United States Patent and Trademark Office PNG media_image1.png 172 172 media_image1.png Greyscale
Commissioner for Patents United States Patent and Trademark Office P.O. Box 1450 Alexandria, VA 22313-1450 www.uspto.gov
BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES
Application Number 12/797, 235 Filing Date: 6/09/2010 Appellant(s): Debra Cruz, et al.
Chris L. Holm (Reg. 39,227) For Appellant
EXAMINER'S ANSWER
This is in response to the appeal brief filed on March 05, 2012.
(1) Grounds of Rejection to be reviewed on Appeal
Every ground of rejection set forth in the Office action dated Oct 01, 2020 from which the appeal is taken is being maintained by the examiner except for the grounds of rejection (if any) listed under the subheading “WITHDRAWN REJECTIONS.” New grounds of rejection (if any) are provided under the subheading “NEW GROUNDS OF REJECTION.”
(2) Response to Argument Appellant's arguments filed on Feb 25, 2021 have been fully considered but they are not persuasive. Appellant argues in substance that “claim 1 Recite a Practical Application, and is Statutory for at Least That Reason”. Claims may include additional elements that go beyond the judicial exception, and the Examiner must consider those additional elements as part of analyzing the claim as a whole, … Similarly, when additional elements apply or use the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception. Applicant submits that the claims are not directed to a judicial exception, because they reflect an improvement to the functioning of a computer system, by incorporating person-to-person interaction, in a particular way during the preparation and submission of an on-line application for life insurance. The claims are not a drafting exercise to monopolize the judicial exception. The claims as a whole provide the benefit of an automated on-line application with the attendant cost savings and prompt action available with an automated on-line application, with a personalized interaction available from person-to-person communication to resolve possible issues and close the sale that are not readily resolved with an automated process. For all of these reasons, even if claim 1 recites a judicial exception, it is not directed to a judicial exception because the claim integrates that judicial exception into a practical
In response: Examiner respectfully disagrees. Claims are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (abstract idea) without significantly more. The rejection of the previous action was a direct result of the Supreme Court’s decision in Alice Corp. Pty. Ltd v. CLS Bank I’ntl. 573 U.S. ___ (2014). Under Alice. The 35 U.S.C. 101 rejection as analyzed by Examiner is consistent with the Mayo framework. The examiner has established a prima facie case because each claim was given the proper analysis under the test set forth by the Supreme Court and the additionally recited limitation(s) fail(s) to establish that the claim(s) is/are not directed to an abstract idea. Examiner incorporates herein the final office actions mailed on October 01, 2020. What Appellant describes here is how any generic computer process data without stating how or if this transformation is intended to in some way improves the function of the computer itself. Also the use of a particular machine and transformation to a different state or thing are not relevant to the instant application. The Examiner respectfully disagrees with Appellant's assertion. As mentioned previously, The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements are generic computer components claimed to perform their basic functions. The processor is a general-purpose processor that performs general-purpose functions (see applicant’s figure 1 and related texet). The recitation of the claimed limitations amounts to mere instructions to implement the abstract idea on a computer. Taking the additional elements individually and in combination, each step of the process performs purely generic computer functions. As such, there is no inventive concept sufficient to transform the claimed subject matter into a patent-eligible application. The claim does not amount to significantly more than the abstract idea itself. The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements are simply a generic recitation of a computer processor performing its generic computer functions. Accordingly, claims are ineligible. Under the 2019 PEG, Step 2A, Prong 1, the claimed limitations are directed an abstract idea because they are business interaction/sale activity that fall within the enumerated group of “certain methods of organizing human activity in the 2019 PEG. Under the 2019 PEG, Step 2A, prong two, integration into a practical application requires an additional element(s) or a combination of additional elements in the claim to apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the exception. Limitations that are not indicative of integration into a practical application are those that are mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea.-see MPEP 2106.05(f). Examiner notes that the computer processor limitations and the claim as a whole do not add significantly more than the abstract idea itself, because the claim does not amount to an improvement to the functioning of a computer itself; and the claim does not move beyond a general link of the use of an abstract idea to a particular technological environment. A generic recitation of a device performing its generic computer functions does not make the claims less abstract. In the present case, the focus of the claims is not on such an improvement in computers as tools, but on certain independently abstract ideas that use computers as tools, such as providing an on-line computer application for submitting a life insurance application. The claims here are not directed to a specific improvement to computer functionality. Rather, they are directed to the use of conventional or generic technology in a well-known environment, without any claim that the invention reflects an inventive solution to any computer specific problem.The instant claims provide a generically computer-implemented solution to a business-related or economic problem (see brief page 12, “The claims as a whole provide the benefit of an automated on-line application with the attendant cost savings…” Appellant noted further that “The claims as a whole provide the benefit of an automated on-line application with the attendant cost savings and prompt action available with an automated on-line application, with a personalized interaction available from person-to-person communication to resolve possible issues and close the sale that are not readily resolved with an automated process”. However, Appellant’s claims do not provide any additional claim limitations that individually, or as an ordered combination, ensure that the claim amounts to significantly more than the abstract ideas. The Court gave also examples, which included an improvement to another technology or technical field; improvement to the function of the computer itself; or some other meaningful limitation beyond generally linking the use of an abstract idea to a particular technological environment. Such as in Diamond v. Diehr, the claims were found statutory in which the Arrhenius equation is used to improve a process of controlling the operation of a mold in curing rubber parts. The courts found that “… if a patent’s recitation of a computer amounts to a mere instruction to ‘implement’ an abstract idea ‘on . . . a computer,’ that addition cannot impart patent eligibility.” Alice Corp., 134 S. Ct. at 2358. The claimed invention does not indicate that specialized computer hardware is necessary to implement the claimed systems, similar to the claims at issue in Alice Corp. See Alice Corp., 134 S. Ct. at 2360 (determining that the hardware recited in the claims was “purely functional and generic,” and did not “offer a meaningful limitation beyond generally linking the use of the [method] to a particular technological environment, that is, implementation via computers”). A generic recitation of a computer processor performing its generic computer functions does not make the claims less abstract. Examiner notes that the instant claims provide a generically computer-implemented solution to a business-related or economic problem. The focus of the claimed invention in the present is not on an improvement in computers as tools, but on certain independently abstract ideas that use computers as tools. The claims here are not directed to a specific improvement to computer functionality nor an inventive solution to any computer specific problem. Also, limiting the use of an abstract idea “‘to a particular technological environment’ does not confer patent eligibility as this cannot be considered an improvement to computer or technology and so cannot be “significantly more.” Furthermore, Examiner relies on what the courts have recognized, or those of ordinary skill in the art would recognize, as elements that describe well-understood, routine, and conventional activity in particular fields. For example, receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); but see DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258, 113 USPQ2d 1097, 1106 (Fed. Cir. 2014) (“Unlike the claims in Ultramercial, the claims at issue here specify how interactions with the Internet are manipulated to yield a desired result‐‐a result that overrides the routine and conventional sequence of events ordinarily triggered by the click of a hyperlink.” (Emphasis added)). In this case, the use of a computer processor is described at a high level of generality, or as an insignificant extra-solution activity that cannot be considered as an improvement to network/computer technology. All the steps in the claimed invention simply “automates” a manually process using conventional processor. Claimed invention does not recite any elements that individually, or as an ordered combination, transform the abstract idea. “At best, the claim[] describe[s] the automation of [a] fundamental economic concept . . . through the use of generic-computer functions.” OIP Techs., 788 F.3d at 1363. It is well settled, though, that automating conventional activities using generic technology does not amount to an inventive concept. See Alice, 134 S. Ct. at 2358 (explaining that “if a patent’s recitation of a computer amounts to a mere instruction to implement an abstract idea on . . . a computer, that addition cannot impact patent eligibility”) (internal alteration, citation, and quotations omitted); Intellectual Ventures, 792 F.3d at 1367 (“claiming the improved speed or efficiency inherent with applying the abstract idea on a computer [does not] provide a sufficient inventive concept”); Bancorp Servs., L.L.C. v. Sun Life Assur. Co. of Can. (U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012) (“[T]he fact that the required calculations could be performed more efficiently via a computer does not materially alter the patent eligibility of the claimed subject matter.”). Examiner submits that under the current 35 USC 101 examining practice, the existence of such novel features would still not cure the deficiencies with respect to the abstract idea. See for example: Ultramercial, Inc. v. Hulu, LLC, 112 USPQ2d 1750, U.S. Court of Appeals Federal Circuit, No. 2010-1544, Decided November 14, 2014, 2014 BL 320546, 772 F.3d 709, Page 1754 last two ¶ : “We do not agree with Ultramercial that the addition of merely novel or non-routine components to the claimed idea necessarily turns an abstraction into something concrete”. Indeed, in this in instant case, the limitations simply narrow or limit the abstract idea without providing anything significantly more than the abstract idea itself. Dependent claims do not resolve the issues raised in the independent claims. The dependent claims do not add limitations that meaningfully limit the abstract idea. The dependent claims do not impart patent eligibility to the abstract idea of the independent claims. The claims merely amounts to the application or instructions to apply the abstract idea on a processor, and is considered to amount to nothing more than requiring a generic processor to merely carry out the abstract idea itself. Therefore none of the dependent claims alone or as an ordered combination add limitations that qualify as significantly more than the abstract idea. Accordingly, claims 1, 2, 4, 8-11, 14-16, 18, 22-25 and 31-34 are rejected as ineligible for patenting under 35 U.S.C. 101.
For the above reasons, it is believed that the rejections should be sustained.
Respectfully submitted,
/Hatem Ali/ Examiner, Art Unit 3691
Conferees: /Vincent Millin/ Appeals Conference Specialist
/ALEXANDER G KALINOWSKI/ Supervisory Patent Examiner, Art Unit 3691
Requirement to pay appeal forwarding fee. In order to avoid dismissal of the instant appeal in any application or ex parte reexamination proceeding, 37 CFR 41.45 requires payment of an appeal forwarding fee within the time permitted by 37 CFR 41.45(a), unless appellant had timely paid the fee for filing a brief required by 37 CFR 41.20(b) in effect on March 18, 2013. | 2021-09-02T16:54:34 | [
"PNG media_image1.png 172 172 media_image1.png Greyscale United States Patent and Trademark Office PNG media_image1.png 172 172 media_image1.png Greyscale Commissioner for Patents United States Patent and Trademark Office P.O. Box 1450 Alexandria, VA 22313-1450 www.uspto.gov BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES Application Number 12/797, 235 Filing Date: 6/09/2010 Appellant(s): Debra Cruz, et al. Chris L. Holm (Reg. 39,227) For Appellant EXAMINER'S ANSWER This is in response to the appeal brief filed on March 05, 2012. (1) Grounds of Rejection to be reviewed on Appeal Every ground of rejection set forth in the Office action dated Oct 01, 2020 from which the appeal is taken is being maintained by the examiner except for the grounds of rejection (if any) listed under the subheading “WITHDRAWN REJECTIONS.” New grounds of rejection (if any) are provided under the subheading “NEW GROUNDS OF REJECTION.” (2) Response to Argument Appellant's arguments filed on Feb 25, 2021 have been fully considered but they are not persuasive.",
"Appellant argues in substance that “claim 1 Recite a Practical Application, and is Statutory for at Least That Reason”. Claims may include additional elements that go beyond the judicial exception, and the Examiner must consider those additional elements as part of analyzing the claim as a whole, … Similarly, when additional elements apply or use the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception.",
"Applicant submits that the claims are not directed to a judicial exception, because they reflect an improvement to the functioning of a computer system, by incorporating person-to-person interaction, in a particular way during the preparation and submission of an on-line application for life insurance. The claims are not a drafting exercise to monopolize the judicial exception. The claims as a whole provide the benefit of an automated on-line application with the attendant cost savings and prompt action available with an automated on-line application, with a personalized interaction available from person-to-person communication to resolve possible issues and close the sale that are not readily resolved with an automated process. For all of these reasons, even if claim 1 recites a judicial exception, it is not directed to a judicial exception because the claim integrates that judicial exception into a practical In response: Examiner respectfully disagrees. Claims are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (abstract idea) without significantly more.",
"The rejection of the previous action was a direct result of the Supreme Court’s decision in Alice Corp. Pty. Ltd v. CLS Bank I’ntl. 573 U.S. ___ (2014). Under Alice. The 35 U.S.C. 101 rejection as analyzed by Examiner is consistent with the Mayo framework. The examiner has established a prima facie case because each claim was given the proper analysis under the test set forth by the Supreme Court and the additionally recited limitation(s) fail(s) to establish that the claim(s) is/are not directed to an abstract idea. Examiner incorporates herein the final office actions mailed on October 01, 2020. What Appellant describes here is how any generic computer process data without stating how or if this transformation is intended to in some way improves the function of the computer itself. Also the use of a particular machine and transformation to a different state or thing are not relevant to the instant application. The Examiner respectfully disagrees with Appellant's assertion.",
"As mentioned previously, The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements are generic computer components claimed to perform their basic functions. The processor is a general-purpose processor that performs general-purpose functions (see applicant’s figure 1 and related texet). The recitation of the claimed limitations amounts to mere instructions to implement the abstract idea on a computer. Taking the additional elements individually and in combination, each step of the process performs purely generic computer functions. As such, there is no inventive concept sufficient to transform the claimed subject matter into a patent-eligible application.",
"The claim does not amount to significantly more than the abstract idea itself. The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements are simply a generic recitation of a computer processor performing its generic computer functions. Accordingly, claims are ineligible. Under the 2019 PEG, Step 2A, Prong 1, the claimed limitations are directed an abstract idea because they are business interaction/sale activity that fall within the enumerated group of “certain methods of organizing human activity in the 2019 PEG. Under the 2019 PEG, Step 2A, prong two, integration into a practical application requires an additional element(s) or a combination of additional elements in the claim to apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the exception. Limitations that are not indicative of integration into a practical application are those that are mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea.-see MPEP 2106.05(f).",
"Examiner notes that the computer processor limitations and the claim as a whole do not add significantly more than the abstract idea itself, because the claim does not amount to an improvement to the functioning of a computer itself; and the claim does not move beyond a general link of the use of an abstract idea to a particular technological environment. A generic recitation of a device performing its generic computer functions does not make the claims less abstract. In the present case, the focus of the claims is not on such an improvement in computers as tools, but on certain independently abstract ideas that use computers as tools, such as providing an on-line computer application for submitting a life insurance application.",
"The claims here are not directed to a specific improvement to computer functionality. Rather, they are directed to the use of conventional or generic technology in a well-known environment, without any claim that the invention reflects an inventive solution to any computer specific problem.The instant claims provide a generically computer-implemented solution to a business-related or economic problem (see brief page 12, “The claims as a whole provide the benefit of an automated on-line application with the attendant cost savings…” Appellant noted further that “The claims as a whole provide the benefit of an automated on-line application with the attendant cost savings and prompt action available with an automated on-line application, with a personalized interaction available from person-to-person communication to resolve possible issues and close the sale that are not readily resolved with an automated process”. However, Appellant’s claims do not provide any additional claim limitations that individually, or as an ordered combination, ensure that the claim amounts to significantly more than the abstract ideas.",
"The Court gave also examples, which included an improvement to another technology or technical field; improvement to the function of the computer itself; or some other meaningful limitation beyond generally linking the use of an abstract idea to a particular technological environment. Such as in Diamond v. Diehr, the claims were found statutory in which the Arrhenius equation is used to improve a process of controlling the operation of a mold in curing rubber parts. The courts found that “… if a patent’s recitation of a computer amounts to a mere instruction to ‘implement’ an abstract idea ‘on . .",
". a computer,’ that addition cannot impart patent eligibility.” Alice Corp., 134 S. Ct. at 2358. The claimed invention does not indicate that specialized computer hardware is necessary to implement the claimed systems, similar to the claims at issue in Alice Corp. See Alice Corp., 134 S. Ct. at 2360 (determining that the hardware recited in the claims was “purely functional and generic,” and did not “offer a meaningful limitation beyond generally linking the use of the [method] to a particular technological environment, that is, implementation via computers”). A generic recitation of a computer processor performing its generic computer functions does not make the claims less abstract. Examiner notes that the instant claims provide a generically computer-implemented solution to a business-related or economic problem. The focus of the claimed invention in the present is not on an improvement in computers as tools, but on certain independently abstract ideas that use computers as tools. The claims here are not directed to a specific improvement to computer functionality nor an inventive solution to any computer specific problem. Also, limiting the use of an abstract idea “‘to a particular technological environment’ does not confer patent eligibility as this cannot be considered an improvement to computer or technology and so cannot be “significantly more.” Furthermore, Examiner relies on what the courts have recognized, or those of ordinary skill in the art would recognize, as elements that describe well-understood, routine, and conventional activity in particular fields. For example, receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto.",
"LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); but see DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258, 113 USPQ2d 1097, 1106 (Fed. Cir. 2014) (“Unlike the claims in Ultramercial, the claims at issue here specify how interactions with the Internet are manipulated to yield a desired result‐‐a result that overrides the routine and conventional sequence of events ordinarily triggered by the click of a hyperlink.” (Emphasis added)).",
"In this case, the use of a computer processor is described at a high level of generality, or as an insignificant extra-solution activity that cannot be considered as an improvement to network/computer technology. All the steps in the claimed invention simply “automates” a manually process using conventional processor. Claimed invention does not recite any elements that individually, or as an ordered combination, transform the abstract idea. “At best, the claim[] describe[s] the automation of [a] fundamental economic concept .",
". . through the use of generic-computer functions.” OIP Techs., 788 F.3d at 1363. It is well settled, though, that automating conventional activities using generic technology does not amount to an inventive concept. See Alice, 134 S. Ct. at 2358 (explaining that “if a patent’s recitation of a computer amounts to a mere instruction to implement an abstract idea on . . . a computer, that addition cannot impact patent eligibility”) (internal alteration, citation, and quotations omitted); Intellectual Ventures, 792 F.3d at 1367 (“claiming the improved speed or efficiency inherent with applying the abstract idea on a computer [does not] provide a sufficient inventive concept”); Bancorp Servs., L.L.C. v. Sun Life Assur. Co. of Can.",
"(U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012) (“[T]he fact that the required calculations could be performed more efficiently via a computer does not materially alter the patent eligibility of the claimed subject matter.”). Examiner submits that under the current 35 USC 101 examining practice, the existence of such novel features would still not cure the deficiencies with respect to the abstract idea. See for example: Ultramercial, Inc. v. Hulu, LLC, 112 USPQ2d 1750, U.S. Court of Appeals Federal Circuit, No. 2010-1544, Decided November 14, 2014, 2014 BL 320546, 772 F.3d 709, Page 1754 last two ¶ : “We do not agree with Ultramercial that the addition of merely novel or non-routine components to the claimed idea necessarily turns an abstraction into something concrete”. Indeed, in this in instant case, the limitations simply narrow or limit the abstract idea without providing anything significantly more than the abstract idea itself. Dependent claims do not resolve the issues raised in the independent claims. The dependent claims do not add limitations that meaningfully limit the abstract idea. The dependent claims do not impart patent eligibility to the abstract idea of the independent claims.",
"The claims merely amounts to the application or instructions to apply the abstract idea on a processor, and is considered to amount to nothing more than requiring a generic processor to merely carry out the abstract idea itself. Therefore none of the dependent claims alone or as an ordered combination add limitations that qualify as significantly more than the abstract idea. Accordingly, claims 1, 2, 4, 8-11, 14-16, 18, 22-25 and 31-34 are rejected as ineligible for patenting under 35 U.S.C. 101. For the above reasons, it is believed that the rejections should be sustained. Respectfully submitted, /Hatem Ali/ Examiner, Art Unit 3691 Conferees: /Vincent Millin/ Appeals Conference Specialist /ALEXANDER G KALINOWSKI/ Supervisory Patent Examiner, Art Unit 3691 Requirement to pay appeal forwarding fee. In order to avoid dismissal of the instant appeal in any application or ex parte reexamination proceeding, 37 CFR 41.45 requires payment of an appeal forwarding fee within the time permitted by 37 CFR 41.45(a), unless appellant had timely paid the fee for filing a brief required by 37 CFR 41.20(b) in effect on March 18, 2013."
]
| 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 |
Title: Could a bunch of people file a class action against the us govt. for something? Question:...for an ammt. more than the govt. can afford - as a sort of revolutionary tactic.
What would happen - supreme court?
(I'm not condoning revolution - I don't even know why this question popped into my head) Answer #1: > What would happen?
Sovereign immunity would happen.Answer #2: If you sued the government for more money than the government could afford, you'd become the legal owner of the government and therefore owe yourself more money than you could afford. You'd have to sell the government to pay yourself off, at which point everything would be back as it was before your lawsuit, except the lawyers would be richer and you'd be bankrupt. | 04-07-2015 | [
"Title: Could a bunch of people file a class action against the us govt. for something? Question:...for an ammt. more than the govt. can afford - as a sort of revolutionary tactic. What would happen - supreme court? (I'm not condoning revolution - I don't even know why this question popped into my head) Answer #1: > What would happen? Sovereign immunity would happen.Answer #2: If you sued the government for more money than the government could afford, you'd become the legal owner of the government and therefore owe yourself more money than you could afford. You'd have to sell the government to pay yourself off, at which point everything would be back as it was before your lawsuit, except the lawyers would be richer and you'd be bankrupt."
]
| http://www.reddit.com/r/legaladvice/comments/31tkm0/could_a_bunch_of_people_file_a_class_action/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
MARGO K. BRODIE, United States District Judge: *198Plaintiff Tour Technology Software, Inc. ("Tour Technology") commenced the above-captioned action on October 4, 2017, against Defendant RTV, Inc. ("RTV"), alleging infringement of United States Patent No. 6,754,400 (the "'400 Patent"), a system and technology for rendering an image that enables, inter alia , an individual on a computer in a remote location to explore a 360-degree virtual view of a setting as if the individual were at that setting. ( Compl., Docket Entry No. 1.) After a discussion about the appropriate venue at a pre-motion conference on February 13, 2018, Plaintiff filed an Amended Complaint on March 13, 2018, adding Defendants John Does I-X and Jane Does XI-XX, photographers and customers, respectively, of RTV, and allegedly residents of New York. (Minute Entry dated Feb. 13, 2018; Am. Compl., Docket Entry No. 18.) Currently before the Court is RTV's motion to dismiss for improper venue pursuant to 28 U.S.C. § 1406(a) and Rule 12(b)(3) of the Federal Rules of Civil Procedure, and for failure to state a claim for willful infringement pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Not. of Mot. to Dismiss, Docket Entry No. 21 ; Mem. in Supp. of Mot. to Dismiss ("Def. Mem."), Docket Entry No. 21-1.) Plaintiff opposes Defendant's motion. (Pl. Mem. in Opp'n to RTV's Mot. to Dismiss ("Pl. Mem."), Docket Entry No. 24.) For the reasons discussed below, the Court finds that venue is improper in the Eastern District of New York, and transfers this action with respect to Plaintiff's claims against RTV to the Western District of Michigan. I. Background Plaintiff Tour Technology is a New York corporation, with operations in Huntington, New York. (Am. Compl. ¶ 1.) Defendant RTV is a Michigan corporation, based in Traverse City, Michigan.1 (Id. ¶ 2.) Plaintiff owns the '400 Patent, entitled "System and Method for Creation, Processing and Visualization of Omni-Directional Images."2 (Id. ¶ 8.) The United States Patent and Trademark Office issued the '400 Patent on June 22, 2004. (Id. ¶ 24; '400 Patent, annexed to Am. Compl. as Ex. A, Docket Entry No. 18-1.)3 The *199software-based technology underlying the '400 Patent enables an individual on a computer in a remote location to explore a 360-degree virtual view of an indoor or outdoor location, for example, an apartment, hotel room, restaurant, or backyard, "in a manner ... accepted by the viewer as substantially realistic."4 (Am. Compl. ¶¶ 9-10; '400 Patent 2.) The '400 Patent generally protects a method for creating and generating photographic images that are commonly used as online virtual tour images. RTV presents, produces, and hosts 360-degree virtual tour content for clients. (Am. Compl. ¶ 32.) The clients are alleged to be individuals and businesses in New York and other states, "seeking to sell, rent, purchase, lease, and/or promote private residences, commercial real estate, hotels, sporting and recreation facilities, schools, event venues, country clubs, golf courses, upscale lodging facilities, restaurants, nightclubs, and healthcare facilities." (Id. ) On its website, RTV states that it "is a recognized leader in interactive 360 panoramic virtual tours, professional photography services, and virtual tour software." (RTV Recent Virtual Tours webpage, annexed to Am. Compl. as Ex. C, Docket Entry No. 18-3.) RTV's website also states that it is a "leading provider of virtual tour technology," and offers virtual tour software for real estate professionals and business entrepreneurs. (About Real Tour Vision webpage, annexed to Am. Compl. as Ex. D, Docket Entry No. 18-4.) Plaintiff alleges that this constitutes infringement of the '400 Patent. (Am. Compl. ¶ 33.) In support of its claims, Plaintiff contends that Defendants use the patented technology to produce photographic images for virtual tours, host those images on the Internet, and/or use those images in sales and marketing activities. (Id. ¶ 35.) In particular, Plaintiff alleges that the virtual tour images that appear on the RTV website "indicate that the images are generated by the projection of a spherical image onto faces of a cube or a process equivalent thereto,5 where the spherical image was generated by the combination of multiple images," (id. ¶ 58), and that Defendants are thus "literally and/or under the doctrine of equivalen[ts], directly infringing, and indirectly infringing by way of inducing infringement and/or contributing to the infringement of the '400 Patent in the State of New York," (id. ¶ 34). Plaintiff alleges that RTV has a "local presence" in the Eastern District of New York, and that the John Doe photographers are employee photographers of *200RTV. (Id. ¶¶ 37-41, 49-51.) Specifically, Plaintiff alleges that John Does "are photographers resident in this [d]istrict and/or working within this [d]istrict" and "employed by RTV in the business of creating images configured to be used in infringing the patent in suit and are practicing the invention which is the subject matter of the patent in suit." (Id. ¶ 3.) Plaintiff also contends that the John Doe Defendants use process steps in their photography for RTV that are covered under the claims of the '400 Patent, including "capturing images surrounding an origin point in at least two hemispheres surrounding the origin point," and "assembling the images in a digital format to create a complete spherical image surrounding the origin point." (Id. ¶ 47.) In addition, Plaintiff alleges that Jane Does are customers of RTV and "are commercial enterprises practicing the invention in connection with their businesses located in and/or operating in this [d]istrict" and "include real estate agents advertising, using the technology of the invention, homes for sale and rent in this [d]istrict, and hotel and hospitality facilities located in this [d]istrict and advertising, using the technology of the invention, rooms available for occupancy by guest-customers." (Id. ¶ 4.) II. Discussion a. Standard of review A plaintiff bears the burden of establishing that venue is proper once venue is challenged. In re ZTE (USA) Inc. , 890 F.3d 1008, 1013 (Fed. Cir. 2018) ; CDx Diagnostic. Inc. v.U.S. Endoscopy Grp., Inc. , No. 13-CV-5669, 2018 WL 2388534, at *1 (S.D.N.Y. May 24, 2018). However, at the motion to dismiss stage, where the court relies only on pleadings and affidavits, a "plaintiff need only make a prima facie showing of [venue]." Gulf Ins. Co. v. Glasbrenner , 417 F.3d 353, 355 (2d Cir. 2005) (alteration in original) (quoting CutCo Indus. v. Naughton , 806 F.2d 361, 364-65 (2d Cir. 1986) ); see also Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A. , 722 F.3d 81, 84 (2d Cir. 2013) ("Prior to discovery, a plaintiff challenged by a jurisdiction testing motion may defeat the motion by pleading in good faith, legally sufficient allegations of jurisdiction." (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A. , 902 F.2d 194, 197 (2d Cir. 1990) ) ). In determining whether a plaintiff has made a prima facie showing, a court "view[s] all the facts in a light most favorable to plaintiff." Phillips v. Audio Active Ltd. , 494 F.3d 378, 384 (2d Cir. 2007) ; Uni-Sys., LLC v. U.S. Tennis Ass'n, Inc. , 350 F.Supp.3d 143, 156 (E.D.N.Y. 2018). When faced with a motion to dismiss for improper venue, district courts may consider facts outside the pleadings. See Uni-Sys., LLC , 350 F.Supp.3d at 160 ; Peerless Network, Inc. v. Blitz Telecom Consulting, LLC , No. 17-CV-1725, 2018 WL 1478047, at *2 (S.D.N.Y. Mar. 26, 2018) ; Japan Press Serv., Inc. v. Japan Press Serv., Inc. , No. 11-CV-5875, 2013 WL 80181, at *4 (E.D.N.Y. Jan. 2, 2013) ; TradeComet.com LLC v. Google, Inc. , 693 F.Supp.2d 370, 375 n.3 (S.D.N.Y. 2010) ("In deciding a motion to dismiss pursuant to either Federal Rule of Civil Procedure 12(b)(1) or 12(b)(3), a court may consider evidentiary matters outside the pleadings, 'by affidavit or otherwise,' regarding the existence of jurisdiction.") (quoting Kamen v. Am. Tel. & Tel. Co. , 791 F.2d 1006, 1011 (2d Cir. 1986) ), aff'd in part , 647 F.3d 472 (2d Cir. 2011), and aff'd in part , 435 F. App'x 31 (2d Cir. 2011). The Court considers the Amended Complaint, and the declarations and exhibits attached to the Amended Complaint and in support of the parties' memoranda. See, e.g. , *201TradeComet.com LLC , 693 F.Supp.2d at 375 n.3 (stating that the court would consider declarations and their attachments in deciding a Rule 12(b)(3) motion to dismiss). b. Plaintiff has not made a prima facie showing that venue is proper for RTV In patent infringement actions, venue is exclusively governed by 28 U.S.C. § 1400(b) (" section 1400(b)"). See TC Heartland LLC v. Kraft Foods Grp. Brands LLC , --- U.S. ----, ----, 137 S.Ct. 1514, 1519, 197 L.Ed.2d 816 (2017) (citing Fourco Glass Co. v. Transmirra Prod. Corp. , 353 U.S. 222, 229, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957) ). Proper venue under section 1400(b) is considered "an issue unique to patent law," and thus governed by Federal Circuit law instead of Second Circuit law. See In re ZTE , 890 F.3d at 1012 (citation omitted). Under section 1400(b), a civil action for patent infringement may be brought in a judicial district where (1) "the defendant resides," or (2) "where the defendant has committed acts of infringement and has a regular and established place of business." 28 U.S.C. § 1400(b). Thus, a plaintiff in a patent infringement action may either make a prima facie showing that the defendant resides in the judicial district where the plaintiff filed, or that the defendant has committed acts of infringement and has a regular and established place of business in that district. "[C]ourts should be 'mindful that patent venue is narrower than general venue - and intentionally so.' " Zaxcom , 2019 WL 418860, at *3 (quoting Peerless Network , 2018 WL 1478047, at *2 ). For the reasons explained below, the Court finds that Plaintiff cannot satisfy either prong under section 1400(b) - RTV neither resides in, nor has a regular and established place of business in the Eastern District of New York. i. Lack of residence Venue is proper under the first prong of section 1400(b) in a judicial district where the defendant resides. 28 U.S.C. § 1400(b). In 2017, the Supreme Court clarified that when the defendant is a domestic corporation, "residence" under section 1400(b) refers to the state of incorporation. TC Heartland LLC , 137 S.Ct. at 1521. According to RTV's founder, "RTV is a Michigan corporation with its place of business at 400 E Eighth Street, Suite 2, Traverse City, Michigan 49686." (Jason LaVanture Decl. ("LaVanture Decl.") ¶ 2, Docket Entry No. 21-2.) Plaintiff does not dispute that RTV does not reside in this [d]istrict. (Am. Compl. ¶ 2 ("On information and belief, [RTV] is a Michigan business corporation.").) Plaintiff therefore cannot satisfy the residency prong of section 1400(b). Thus, Plaintiff cannot assert venue in this district under this provision of the venue statute. ii. Plaintiff has not sufficiently alleged that RTV engaged in acts of infringement and has a regular and established place of business in this district Although RTV does not reside in the Eastern District of New York, venue may nevertheless be proper under the second prong of section 1400(b) if Plaintiff makes a showing that RTV has committed acts of infringement and has a regular and established place of business in this district. 28 U.S.C. § 1400(b). 1. Acts of infringement To satisfy this prong, a plaintiff must make a prima facie showing that the alleged acts of infringement occurred in the district. See W. View Research, LLC v. BMW of N. Am., LLC , No. 16-CV-2590, 2018 WL 4367378, at *5 n.2 (S.D. Cal. Feb. 5, 2018) ("[A]llegations of infringement are sufficient for a venue determination" (citation *202omitted) ); Funnelcap, Inc. v. Orion Indus., Inc. , 392 F.Supp. 938, 943 (D. Del. 1975) ("[C]ourts have consistently held that an allegation of infringement is itself sufficient to establish venue...."); see also CDx Diagnostic , 2018 WL 2388534, at *2 (finding acts of infringement satisfied where Defendant conceded "that it sold the allegedly infringing products in th[e d]istrict"). Whether a patent has been infringed "is a question to be determined at trial. 'The issue of infringement is not reached on the merits in considering venue requirements.' " In re Cordis Corp. , 769 F.2d 733, 737 (Fed. Cir. 1985) (brackets omitted) (quoting Gunter & Cooke, Inc. v. S. Electric Serv. Co. , 256 F.Supp. 639, 648 (M.D.N.C. 1966), aff'd 378 F.2d 60 (4th Cir. 1967) ); see also Zaxcom , 2019 WL 418860, at *4 ("Whether [a d]efendant has infringed [the patent] is a factual question not appropriate for resolution on a motion to dismiss for improper venue." (citing Medicines Co. v. Hospira, Inc. , 881 F.3d 1347, 1350 (Fed. Cir. 2018) ) ). With regard to RTV's general conduct, Plaintiff alleges, inter alia , that: "RTV is in the business of presenting, producing, and/or hosting 360° virtual tour content for its clients"; it "offers for sale [in the Eastern District of New York] an array of virtual tour software which uses spherical projection technology"; it provides "training to photographers located in the [d]istrict"; has a local presence via "specialized equipment located in th[e Eastern] District [of New York] and used to practice the invention" by the photographers RTV contracts with; "RTV ... implements the production of photography using its local employee-photographers"; and the images taken by the photographers that RTV contracts with to do work are "processed in a manner consistent with the practice of the invention" at times via "equipment ... [that is] shipped into this [d]istrict by Defendant RTV."6 (Am. Compl. ¶¶ 32-33, 38-39, 41, 48.) As to the infringing acts, Plaintiff alleges that Defendants are infringing the '400 Patent by "operating, controlling, using and/or benefitting from [these] activities." (Id. ¶ 34.) Based on these allegations, the Court finds that Plaintiff has made a prima facie showing of acts of infringement in the Eastern District of New York. See Zaxcom , 2019 WL 418860, at *4 (finding sufficient "[p]laintiff's allegations that [d]efendant 'has sold products and committed infringing acts in this district by offering for sale and selling [the PDR and related accessories]' through distributors in the district ... and by using these products in demonstrations in the district." (citations omitted) ); Symbology Innovations, LLC v. Lego Sys., Inc. , 282 F.Supp.3d 916, 928 (E.D. Va. 2017) (finding the acts of infringement requirement met where "employees of the three Virginia Lego Store locations have tested, detected, and processed QR codes imprinted on the company's advertisements and packaging," where the patents at issue related to QR codes); see also Gunter & Cooke , 256 F.Supp. at 648 ("The acts of infringement required to support venue in a patent infringement action need not be acts of direct infringement, and venue does lie if the defendant only induced the infringement or contributed to the infringement."). 2. Regular and established place of business There are three requirements relevant to a determination of whether a defendant *203has a regular and established place of business in a judicial district: "(1) there must be a physical place in the district; (2) it must be a regular and established place of business; and (3) it must be the place of the defendant." In re Cray Inc. , 871 F.3d 1355, 1360 (Fed. Cir. 2017). "If any ... requirement is not satisfied, venue is improper under § 1400(b)." Id. Prior to the Supreme Court's recent decision in TC Heartland , in 1990, the Federal Circuit determined that a 1988 amendment to the general venue statute incorporated the provisions of the patent venue statute into the general venue statute. See VE Holding Corp. v. Johnson Gas Appliance Co. , 917 F.2d 1574, 1578-80 (Fed. Cir. 1990). As a result, between the 1990 Federal Circuit decision and the Supreme Court's decision in TC Heartland , courts often determined the proper venue in a patent infringement action by examining whether a corporate defendant effectively resided in any district in which it was subject to personal jurisdiction, pursuant to the general venue statute. In 2017, the Supreme Court in TC Heartland reversed the Federal Circuit's 1990 decision, finding that a corporate defendant only resides in its place of incorporation - as opposed to any district where the defendant is subject to personal jurisdiction. See TC Heartland , 137 S.Ct. at 1520-21. The Court reasoned that the 2011 amendments to the general venue statute clarified that Congress never intended to supplant or alter section 1400(b) with the general venue statute. See id. ; see also CDx Diagnostic , 2018 WL 2388534, at *2. As the Federal Circuit stated in In re Cray Inc. , 871 F.3d at 1359, "for nearly ... 30 years, venue in patent infringement cases ha[d] largely turned on whether a defendant 'resides' in the district in question. Following the Supreme Court's recent decision in TC Heartland , litigants and courts are raising with increased frequency the question of where a defendant has a 'regular and established place of business.' "7 In re Cray , 871 F.3d at 1359. When "deciding whether a defendant has a regular and established place of business in a district, no precise rule has been laid down and each case depends on its own facts." Id. at 1362. A. There is a physical place in the Eastern District of New York Plaintiff argues that RTV has "stated that it is a local virtual tour company operating from various towns in" this district, and that the "locations used by" the John Doe photographers "are the Defendant's place of business" in the district. (Pl. Opp'n 18; see also Am. Compl. ¶ 37 ("local presence of Defendant RTV includes employee-photographers (the John Doe Defendants)").) In addition, Plaintiff argues that "RTV acknowledges that it deals directly with customers" in the district and "implements the production of photography by photographers present" in the district. (Pl. Opp'n 6.) Plaintiff also alleges that RTV admits that "the photographers have 'office space' " in the district, (id. at 7), as well as "specialized equipment" that is "used to practice the invention by the John Doe Defendants as Employee Photographers of Defendant RTV," (Am. Compl. ¶ 39). Plaintiff contends that RTV ships the equipment to the district. (Id. ) *204RTV argues that the Court should dismiss the Amended Complaint, at least as to RTV, because: it has no physical place of business in New York ... [and] does not rent or own any property in New York. It has no full or part time employees, sales representatives or other agents who live or work in New York and does not send any of its employees, representatives, or agents to New York. It is not registered to do business in New York, has no registered agent of service in New York, no New York phone number, and no New York bank account. (Def. Mem. 2-3; see also id. at 4.) RTV acknowledges that it "engage[s] various independent photographers for various projects," (id. at 7), but disputes that the photographers it contracts with are RTV employees,8 (see id. at 9), and argues that "[t]he location of [these] independent contractors engaged by RTV is not relevant to considerations of venue," (id. at 8 (citing In re Cray , 871 F.3d at 1363 and Talsk Research Inc. v. Evernote Corp. , No. 16-CV-2167, 2017 WL 4269004, at *4 (N.D. Ill. Sept. 26, 2017) ).) In determining whether there is a physical place in the district, the Federal Circuit has explained that: While the "place" need not be a "fixed physical presence in the sense of a formal office or store," Cordis , 769 F.2d at 737, there must still be a physical, geographical location in the district from which the business of the defendant is carried out. In Cordis , for example, a defendant used its employees' homes to store its "literature, documents and products" and, in some instances, like distribution centers, storing inventory that the employees then directly took to its clients. 769 F.2d at 735. Defendant also engaged a secretarial service physically located in the district to perform certain tasks. Id. In re Cray , 871 F.3d at 1362. The Federal Circuit also clarified that the "[p]lace" cannot "refer merely to a virtual space or to electronic communications from one person to another." Id. Instead, it is "a location where, for example, products are made, customers are served, or business decisions are made." Peerless Network , 2018 WL 1478047, at *4. Offices, including home offices, of employees and sales representatives, have been found to be sufficient under certain circumstances to satisfy the "place in the district" requirement. See, e.g., Zaxcom , 2019 WL 418860, at *4 (finding the physical place requirement satisfied for an employee who maintained a home office and storage area, where he kept "various equipment used ... to discharge his responsibilities"); id. (finding the requirement satisfied for an electronics repair business that the defendant contracted with to serve as a service center for defendant's products, where the repair business was located in the district); *205RegenLab USA LLC v. Estar Techs. Ltd. , 335 F.Supp.3d 526, 549 (S.D.N.Y. 2018) (finding the physical place requirement satisfied despite defendant's argument that it had "no real property, warehouses, storage facilities, office spaces, post boxes, showrooms, leased property, or rental property within the State of New York," where a single employee worked out of a home office in the Southern District of New York, had a New York telephone number, and defendant's sale territory covered New York). Plaintiff has made a prima facie showing of this factor. RTV's argument that it does not have a physical location in this district in part because it "does not rent or own any property in New York," (Def. Mem. 7), is not determinative. The Court in In re Cray explained that the "place" requirement is satisfied if there is a "physical, geographical location in the district from which the business of the defendant is carried out. " In re Cray , 871 F.3d at 1362 (emphasis added); see also RegenLab USA , 335 F.Supp.3d at 550 ("Once [defendant] ships the products from its office in Texas, the representative conducts an initial demonstration session at the customer's location. The fact that other business, such as shipping, payment and processing, follow-on orders, and addressing customer feedback, is handled out of Texas does not negate the business that is occurring at home offices in New York." (citations, internal quotation marks, and brackets omitted) ); Peerless Network , 2018 WL 1478047, at *4 ("It is a location where, for example ... customers are served...."). As set forth in the pleadings, exhibits, and affidavits, RTV's business is carried out from multiple physical places in the district. Part of RTV's business is carried out by providing professional photography services. (See LaVanture Decl. ¶ 8 ("One service provided by RTV is to help its customers obtain pictures of given locations for use in virtual tours.").) RTV's website specifies that it "maintain[s] a vast network" of "full-service providers." (Tour Software for Brokers & Agents webpage 2, annexed to Pl. Opp'n as Ex. D, Docket Entry No. 25-3.) When a customer signs up with RTV to utilize its virtual tour software, RTV connects a local virtual tour provider to the customer's account. (Id. ("[W]hen you sign up with RTV, a local professional virtual tour provider will be assigned to your account so you can order the stunning virtual tour productions as shown in our virtual tour gallery.").) Customers can order local virtual tours and professional photography services through RTV's website. (See, e.g. , Screenshot of main RTV webpage, annexed to Pl. Opp'n as Ex. E, Docket Entry No. 25-4.) Several of these virtual tour providers, which RTV describes as its "representatives," are located in this district. (See, e.g. , Bellmore NY Virtual Tour webpage, annexed to Pl. Opp'n as Ex. F, Docket Entry No. 25-5; Huntington NY Virtual Tour webpage, annexed to Pl. Opp'n as Ex. G, Docket Entry No. 25-6.) These local tour providers are carrying out RTV's business, and at least some of these tour providers appear to maintain a physical location in the district. RTV admits that it "pays for the photo services from the photographers it engages on a project-by-project basis." (LaVanture Decl. ¶ 15.) In addition, and as noted above, offices of employees and sales representatives can satisfy the place requirement, contrary to RTV's argument that "the physical location at issue cannot be 'a place of the defendant's employee,' or a place of the defendant's independent contractor." (Def. Mem. 7 (first citing In re Cray , 871 F.3d at 1363 ; and then citing Talsk Research , 2017 WL 4269004, at *4 ).) *206RTV cites Talsk Research to support its argument that "[t]he Federal Circuit's decision in [In re ] Cray leaves no room for Plaintiff to argue that the handful of non-employee, independent contractors present in this [d]istrict constitute a 'regular and established place of business' for Defendant within the meaning of § 1400(b)." Talsk Research , 2017 WL 4269004, at *4. RTV's reliance on Talsk Research is misplaced as Talsk Research is factually distinguishable. In Talsk Research , the agreement between the defendant and the "independent contractors" expressly stated that the group members at issue in fact were not independent contractors, and further, that the group at issue was comprised of "Community Members," that the defendant financially incentivized to recommend its products. Id. at *3. Unlike the "independent contractors" in Talsk Research , RTV hired the John Doe Defendant photographers in this case to perform actual professional services as opposed to simply provide recommendations. The Court finds that the use of photography providers that maintain locations within the Eastern District of New York and relied on by RTV to service its customers in the district sufficiently supports a finding that RTV carries out its business from a physical place in this district. See In re Cray , 871 F.3d at 1362 (citing a case where it was held sufficient that "[d]efendant ... engaged a secretarial service physically located in the district to perform certain tasks."). B. RTV has a regular and established place of business in the district "A business may be 'regular[ ]' ... if it operates in a steady, uniform, orderly, and methodical manner. In other words, sporadic activity cannot create venue." Id. (citations, internal quotation marks, and brackets omitted). "The 'established' limitation ... directs that the place in question must be settled certainly, or fixed permanently." Id. at 1363 (citation, internal quotation marks, and brackets omitted). The facts support a finding that RTV's business is regular and established in this district. RTV's website states that it is "a recognized leader in interactive 360 panoramic virtual tours, professional photography services, and virtual tour software." (RTV Recent Virtual Tours webpage.) It "guarantees full coverage" in locations in this district. (See Bellmore NY Virtual Tour webpage; Huntington NY Virtual Tour webpage.) Because RTV guarantees full coverage in locations in this district, its contracts with photographers that reside in the district are not accidental, but by design to ensure that it can provide services to customers with regularity, and in an established manner. See RegenLab USA , 335 F.Supp.3d at 550 (noting that the defendant's "employees have not merely worked out of the New York offices by happenstance," where defendant shipped sales orders into the district and the representative carried out initial demonstration sessions at the customer's location, and concluding that "[t]he fact that other business, such as shipping, payment and processing, follow-on orders, and addressing customer feedback, is handled out of Texas does not negate the business that is occurring at home offices in New York." (internal citation omitted) ). C. The regular and established place is not the place of RTV Plaintiff argues that "RTV has ratified the conceded office space ... as its own, by announcing the location, here in the [d]istrict, on its website, characterizing itself as a Glen Cove, New York virtual tour company." (Pl. Opp'n 17 (citations omitted); see also id. at 18 ("locations used by *207the Defendant photographers are [RTV's] place of business in this [d]istrict by ratification.").) RTV argues that even if the photographers are RTV's employees, it is insufficient "to find venue because there is no physical place of RTV in this district." (Def. Reply Mem. in Supp. of Mot. to Dismiss ("Def. Reply") 1, Docket Entry No. 27.) RTV emphasizes that the "photographers are responsible for obtaining their own office facilities and applicable insurance" and that RTV "does not rent or own any property in New York" and "does not make payments to the photographers it engages for expenses 'including rent or mortgage payments and insurance.' " (Id. at 2 (citing LaVanture Decl. ¶¶ 4, 15).) RTV's founder states that "RTV maintains a network of independent contractor third party photography service providers around the country.... and acts as a conduit and referral service to a network of separate professional photographer service providers," and the photographers "each runs their own business wholly separate from RTV." (LaVanture Decl. ¶¶ 8-9.) RTV's founder also states that the photographers are "largely free" to provide photography services to others, and "RTV imposes no requirements on where photographers should live or maintain their business," and only requires that the photographers are "willing to go to take pictures" in certain locations. (Id. ¶¶ 17-18.) RTV further argues that its inventory "is stored only in RTV's facility in Michigan. Hardware is directly shipped from RTV's office in Michigan." (Id. ¶ 24.) The third In re Cray requirement is that the regular and established place of business must be "a place of the defendant. " In re Cray , 871 F.3d at 1363. "Thus, the defendant must establish or ratify the place of business. It is not enough that [an] employee does so on his or her own." Id. As discussed in In re Cray : Relevant considerations include whether the defendant owns or leases the place, or exercises other attributes of possession or control over the place. One can also recognize that a small business might operate from a home; if that is a place of business of the defendant, that can be a place of business satisfying the requirement of the statute. Another consideration might be whether the defendant conditioned employment on an employee's continued residence in the district or the storing of materials at a place in the district so that they can be distributed or sold from that place. Marketing or advertisements also may be relevant, but only to the extent they indicate that the defendant itself holds out a place for its business. Id. (citations omitted). Relevant inquiries also "include whether the defendant lists the alleged place of business on a website, or in a telephone or other directory; or places its name on a sign associated with or on the building itself." Id. at 1363-64. However, "the mere fact that a defendant has advertised that it has a place of business or has even set up an office is not sufficient; the defendant must actually engage in business from that location." Id. at 1364. As set forth supra , RTV targets customers in the district by holding itself out as servicing the district. RTV's website represents that it has "a representative" in various locations within the district, and provides RTV's main number for the purpose of securing a virtual tour with those representatives. (See, e.g. , Bellmore NY Virtual Tour webpage; Huntington NY Virtual Tour webpage.) These representations are relevant to this factor's inquiry, see In re Cray , 871 F.3d at 1363-64, and appear to contradict RTV's statement that RTV "has *208no full or part time employees, sales representatives or other agents who live or work in New York," (LaVanture Decl. ¶ 7). Nevertheless, the Court finds that the virtual tour and photography service providers are stand-alone entities that operate separate from and not pursuant to the direction of RTV. The facts proffered by RTV weigh in favor of a finding that the offices or locations of the photographers are not the place of RTV. See, e.g., Zaxcom , 2019 WL 418860, at *5 (finding that an employee's home office was not the place of the defendant where employment was, inter alia , not conditioned on continued residence in the district, and the employee did not receive allowance for rent for his home office, but was required to service customers and dealers in a certain territory); id. (finding that a repair service center that the defendant contracted with was not the place of the defendant where either party could terminate the agreement between them at will and the service center was not restricted to working on defendant's projects); see also In re Cray , 871 F.3d at 1363 ("[I]f an employee can move his or her home out of the district at his or her own instigation, without the approval of the defendant, that would cut against the employee's home being considered a place of business of the defendant."); but see RegenLab USA , 335 F.Supp.3d at 552 (finding employees' home to be place "of the defendant" where employees used sales kits to conduct demonstrations at customers' homes despite the fact that defendant did not rent or exercise control over its employees' work places and did not mandate that employees reside in a specific area, nor did defendant provide support service in the district, where defendant solicited sales people to cover New York). While several of RTV's webpages arguably blur the lines between RTV and the virtual tour providers by stating that it has "representatives" in a desired location, other RTV webpages specify that the virtual tour companies, or photographers, that RTV contracts with and holds out as its "representatives," are locally owned operators that maintain some level of separation from RTV. (See, e.g. , RTV order form webpage 4, annexed to Pl. Opp'n as Ex. C, Docket Entry No. 25-2 ("Because our virtual tour providers are locally owned and operated, each offers services based on local demand and sets their own pricing."); RTV tour software webpage 2, annexed to Pl. Opp'n as Ex. D, Docket Entry No. 25-3 ("All RTV providers maintain their own local photography and virtual tour company and establish their pricing structures.").) Even on the webpages that Plaintiff cites most frequently, which webpages suggest that RTV has representatives in the Eastern District of New York, those webpages refer to the representatives as being part of a "virtual tour provider network" that RTV has "built up." (See, e.g. , Huntington NY Virtual Tour webpage.) These same pages also invite customers to click on a link to, "Learn About This Huntington NY Virtual Tour Company," (id. ), which, when considered with the other webpages specifying that such providers are locally owned, indicates a level of separation from RTV. These webpages suggest that rather than maintaining a place in the Eastern District of New York from which it conducts its regular and established business, RTV instead maintains a large network of photography service providers that exist as entities outside the control of RTV, and suggests a level of separation formalized through a contractual agreement. See, e.g., AGIS Software Dev., LLC v. ZTE Corp. , No. 17-CV-0517, 2018 WL 4854023, at *3 (E.D. Tex. Sept. 28, 2018) (finding that a call center physically located in the district that was established by the defendant for *209the purpose of providing support to defendant's customers, which housed defendant's employees, did not constitute a place of the defendant because the plaintiff did not show how the defendant controlled the work conducted at the call center or how the relationship was "more intimate" than an arms-length contractual relationship); cf. Blitzsafe Texas, LLC v. Bayerische Motoren Werke AG , No. 17-CV-0418, 2018 WL 4849345, at *8 (E.D. Tex. Sept. 6, 2018) (finding that BMW had "undoubtedly ... ratified" its dealerships as places of BMW where, inter alia , "the dealerships [were] named 'BMW,' " and the dealerships displayed "the singular logo of BMW with no reservations such as 'authorized dealer' or 'exclusive distributor' " (emphases in original) ). Although RTV's actions and contacts within the district would likely be sufficient to satisfy the general venue statute, the Court is mindful that the patent venue statute is narrower. In re Cray , 871 F.3d at 1361 ("Courts should be mindful of [the] history in applying the statute and be careful not to conflate showings that may be sufficient for other purposes, e.g. , personal jurisdiction or the general venue statute, with the necessary showing to establish proper venue in patent cases."); RegenLab USA , 335 F.Supp.3d at 548 ("[C]ourts should be 'mindful that patent venue is narrower than general venue - and intentionally so.' " (quoting Peerless Network , 2018 WL 1478047, at *2 (citation omitted) ) ). Accordingly, the Court finds that the level of separation between RTV and the John Doe Defendant photographers is too attenuated to support a finding that any place of a virtual tour provider or photographer has in fact been ratified by RTV as the place of RTV.9 Plaintiff has therefore not met its burden to make a prima facie showing that venue is proper under section 1400(b) as to Defendant RTV. c. Transfer is appropriate Under 28 U.S.C. § 1406(a), where an action is subject to dismissal as improperly venued, the court must decide whether to dismiss the action or, if it is in the interest of justice, to transfer the action to a venue "in which it could have been brought." 28 U.S.C. § 1406(a). The decision "whether to dismiss or transfer a case 'lies within the sound discretion of the district court.' " Blakely v. Lew , 607 F. App'x 15, 18 (2d Cir. 2015) (quoting Minnette v. Time Warner , 997 F.2d 1023, 1026 (2d Cir. 1993) ); see also Daniel v. Am. Bd. of Emergency Med. , 428 F.3d 408, 435 (2d Cir. 2005) (citation omitted) ("Courts enjoy considerable discretion in deciding whether to transfer a case in the interest of justice."). "A court may transfer a case pursuant to 28 U.S.C. § 1406(a)sua sponte even if the defendant moves only to dismiss." Pisani v. Diener , No. 07-CV-5118, 2009 WL 749893, at *8 (E.D.N.Y. Mar. 17, 2009) (internal citations omitted.); Holey Soles Holdings, Ltd. v. Foam Creations, Inc. , No. 05-CV-6939, 2006 WL 1147963, at *9 (S.D.N.Y. May 1, 2006) (citing Concession Consultants, Inc. v. Mirisch , 355 F.2d 369, 372 n.3 (2d Cir. 1966) ). The Court transfers the claims against Defendant RTV to the Western District of Michigan, where RTV resides. Although dismissal rather than transfer is encouraged when a case is a "sure loser," *210Gonzalez v. Hasty , 651 F.3d 318, 324 (2d Cir. 2011), or "clearly doomed," Daniel v. Am. Bd. of Emergency Med. , 428 F.3d 408, 436 (2d Cir. 2005), the Court cannot conclude that there is no merit to Plaintiff's claims. See Int'l Flavors & Fragrances Inc. v. Van Eeghen Int'l B.V. , No. 06-CV-0490, 2006 WL 1876671, at *8 (S.D.N.Y. July 6, 2006) ("Dismissal is a harsh remedy that is best avoided when another avenue is open."). As acknowledged by RTV, Plaintiff has already settled several of the cases it has filed for infringement of the '400 Patent. (Def. Mem. 1.) In addition, Plaintiff survived a request for reexamination from the International Virtual Reality Photographers Association, and the majority of the claims of the '400 Patent were found to be patentable as amended. (Am. Compl. ¶¶ 25, 27; Ex Parte Reexamination Certificate 3.)10 d. Venue as to the claims against John and Jane Does RTV argues that according to its knowledge, the John and Jane Doe Defendants "have not ... been served or retained counsel and have not had an opportunity to address deficiencies in the complaint," but that "[n]evertheless, the claims against them in the Amended Complaint appear deficient." (Def. Mem. 18.) RTV appears to argue that Plaintiff has not sufficiently alleged claims against the John and Jane Doe Defendants - highlighting that it is unclear whether John and Jane Doe Defendants are alleged to be direct, induced, or contributory infringers. (Id. at 18-19.) The Court declines to decide whether Plaintiff has failed to state claims against the John and Jane Doe Defendants as those individuals have not been identified or served. Plaintiff is ordered to inform the Court within thirty (30) days of this Memorandum and Order how it intends to proceed with respect to the John and Jane Doe Defendants. In patent infringement actions, venue must be established individually as to each defendant named in the action. See, e.g., Magnacoustics, Inc. v. Resonance Tech. Co. , No. 97-1247, 1997 WL 592863, at *1 (Fed. Cir. Sept. 25, 1997) ("[A]s firmly established by judicial decisions, in an action involving multiple defendants[,] venue and jurisdiction requirements must be met as to each defendant. " (citation omitted) ). Based on the allegations in the Amended Complaint, it does not appear that Plaintiff can establish venue in the Western District of Michigan for the John and Jane Doe Defendants. As discussed supra , Plaintiff alleges that the John Doe Defendants maintain residency in the Eastern District of New York. Similarly, the Jane Doe Defendants are alleged to be customers of RTV that reside in the Eastern District of New York. (See Am. Compl. ¶ 3.) In addition, Plaintiff does not allege any facts to suggest that the John or Jane Doe Defendants have a regular and established place of business in the Western District of Michigan. The Court therefore cannot transfer the action with respect to the John and Jane Doe Defendants, and can only transfer the action with respect to *211RTV.11 See RegenLab USA LLC , 335 F.Supp.3d at 548-49 ("Whether or not the entities were working together, they are different companies and thus must both be subjected to individual venue analyses." (citation omitted) ). Plaintiff must inform the Court within thirty (30) days of the date of this Memorandum and Order as to how it would like to proceed given the transfer of claims against RTV, i.e., whether Plaintiff intends to withdraw its claims against the remaining John and Jane Doe Defendants or to amend the Amended Complaint and proceed as to these Defendants. III. Conclusion For the foregoing reasons, the Court transfers the action with respect to Plaintiff's claims against RTV to the Western District of Michigan. The Court grants Plaintiff thirty (30) days from the date of this Memorandum and Order to inform the Court whether it wishes to proceed or withdraw its claims against John Does I-X and Jane Does XI-XX. SO ORDERED.
The Court generally assumes the truth of the factual allegations in the Amended Complaint for the purposes of this Memorandum and Order. See Zaxcom, Inc. v. Lectrosonics, Inc. , No. 17-CV-3408, 2019 WL 418860, at *1 (E.D.N.Y. Feb. 1, 2019) ; U.S. E.P.A. ex rel. McKeown v. Port Auth. of N.Y. & N.J. , 162 F.Supp.2d 173, 183 (S.D.N.Y.), aff'd sub nom. McKeown v. Delaware Bridge Auth. , 23 F. App'x 81 (2d Cir. 2001).
On September 17, 2013, the United States Patent and Trademark Office issued an Ex Parte Reexamination Certificate after receiving a Reexamination Request from the International Virtual Reality Photographers Association, alleging the unpatentability of the claims in the '400 Patent. (Am. Compl. ¶¶ 25, 27.) After reexamination of the '400 Patent, the majority of the claims were found to be patentable as amended, and new claims were "added and determined" to be patentable. (Id. ¶¶ 27-29; Ex Parte Reexamination Certificate 3, annexed to Am. Compl. as Ex. B, Docket Entry No. 18-2.) The Court's reference to the '400 Patent in this Memorandum and Order is to the '400 Patent as amended by the Ex Parte Reexamination Certificate.
Because the exhibits to the Amended Complaint are not consecutively paginated, the Court refers to the page numbers assigned by the Electronic Case Filing ("ECF") system.
As set forth in the '400 Patent, the invention is summarized as follows: The creation, processing and visualization of omnidirectional images system of the present invention, gathers two plane complementary images, preferably captured with a digital camera endowed with a fish-eye lens having a 180 degree FOV open angle. The system reforms the hemi-spherical images associated with the planar images taken by the fisheye lens, using specific laws of projections, corrects the radial and geometrical distortions as well as the color and light distortions and assembles the images into a complete spherical image, which is projected on a cube. Viewing of these images creates an impression of turning around in all the directions and of rectilinear movement in virtual space. The impression created is very similar to the human eye perception of the tri-dimensional space, and it permits continuously or a successive visualization of some three-dimensional images including specific details that a user may want to examine closer. ('400 Patent 12.)
The '400 Patent covers "[a] method for digitally rendering omni-directional images comprising of the steps of: ... assembling ... images in a digital format to create a complete spherical image ... [and] projecting the spherical image onto faces of a ... cube." (Ex Parte Reexamination Certificate 2, Claim 1.)
Plaintiff further alleges that "Defendants are in the business of producing photographic images for virtual tours," and "Defendant RTV ... provides its clients with production, content, management, hosting and content distribution services," and "services many properties at any given time throughout New York." (Am. Compl. ¶ 35.)
Because TC Heartland returned the corporate residency standard back to what it had been prior to the Federal Circuit's 1990 decision, case law prior to the Federal Circuit's decision in 1990 is still largely relevant for the purposes of analyzing whether a defendant has a "regular and established place of business" in a district. The Court therefore looks to case law prior to 1990, and after TC Heartland , to assist in its assessment of whether RTV maintains a "regular and established place of business" in this district.
Plaintiff and RTV debate at length whether the John Doe Defendant photographers are employees or independent contractors. Because the nature of RTV's relationship with the John Doe photographers is not a significant factor in the Court's decision on venue, the Court declines to decide the issue. See, e.g., RegenLab USA LLC v. Estar Techs. Ltd. , 335 F.Supp.3d 526, 550 (S.D.N.Y. 2018) (analyzing whether any "employee, independent contractor , or agent" resided in the relevant district (emphasis added) ); Sherman Paper Prod. Corp. v. Sorg Paper Co. , 161 F.Supp. 44, 45 (E.D. Mich. 1958) ("Defendant stresses the fact that the Protect-O-Pac Sales and Engineering Co. was not its employee but an independent distributor. Technical distinctions should not obscure the practical effects of corporate activity. The nature of the employment relationship between it and its agent is not a significant difference upon which to base or deny venue.").
Although Plaintiff names Jane Doe Defendants, the arguments made as to these Defendants are sparse, and the Court similarly finds that any facts proffered regarding these Defendants are too attenuated to support a finding that the third In re Cray requirement has been met.
The Court does not make any finding as to the merits of Plaintiff's claims, and in light of the Court's conclusion that venue is improper, has not reached Defendant RTV's request to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim of willful patent infringement. See, e.g., Peerless Network, Inc. v. Blitz Telecom Consulting, LLC , No. 17-CV-1725, 2018 WL 1478047, at *5 n.4 (S.D.N.Y. Mar. 26, 2018) (finding improper venue and transferring the case in the interest of justice, and subsequently not reaching the defendant's motion to dismiss pursuant to, inter alia , Rule 12(b)(6) ).
While the Court finds this outcome troubling and notes that under the general venue statute and in the interest of justice, the Court would transfer the action as to all Defendants to the Western District of Michigan, the Court is compelled by the patent venue statute, section 1400(b), to only transfer the action as to RTV, because venue requirements have not been met for the John and Jane Doe Defendants in the Western District of Michigan. See, e.g., Wet Sounds, Inc. v. PowerBass USA, Inc. , No. CV-H-17-3258, 2018 WL 1811354, at *3 (S.D. Tex. 2018) ("Wet Sounds argues that venue is proper in this district because of the defendants' jointly infringing acts.... The problem is that venue must be proper as to each defendant, and it is not proper as to PowerBass. Under these circumstances, the court may not retain venue as to that defendant, even if judicial economy would support that."). | 07-25-2022 | [
"MARGO K. BRODIE, United States District Judge: *198Plaintiff Tour Technology Software, Inc. (\"Tour Technology\") commenced the above-captioned action on October 4, 2017, against Defendant RTV, Inc. (\"RTV\"), alleging infringement of United States Patent No. 6,754,400 (the \"'400 Patent\"), a system and technology for rendering an image that enables, inter alia , an individual on a computer in a remote location to explore a 360-degree virtual view of a setting as if the individual were at that setting. ( Compl., Docket Entry No. 1.) After a discussion about the appropriate venue at a pre-motion conference on February 13, 2018, Plaintiff filed an Amended Complaint on March 13, 2018, adding Defendants John Does I-X and Jane Does XI-XX, photographers and customers, respectively, of RTV, and allegedly residents of New York.",
"(Minute Entry dated Feb. 13, 2018; Am. Compl., Docket Entry No. 18.) Currently before the Court is RTV's motion to dismiss for improper venue pursuant to 28 U.S.C. § 1406(a) and Rule 12(b)(3) of the Federal Rules of Civil Procedure, and for failure to state a claim for willful infringement pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.",
"(Not. of Mot. to Dismiss, Docket Entry No. 21 ; Mem. in Supp. of Mot. to Dismiss (\"Def. Mem. \"), Docket Entry No. 21-1.) Plaintiff opposes Defendant's motion. (Pl. Mem. in Opp'n to RTV's Mot. to Dismiss (\"Pl. Mem. \"), Docket Entry No. 24.) For the reasons discussed below, the Court finds that venue is improper in the Eastern District of New York, and transfers this action with respect to Plaintiff's claims against RTV to the Western District of Michigan. I. Background Plaintiff Tour Technology is a New York corporation, with operations in Huntington, New York. (Am. Compl. ¶ 1.) Defendant RTV is a Michigan corporation, based in Traverse City, Michigan.1 (Id. ¶ 2.) Plaintiff owns the '400 Patent, entitled \"System and Method for Creation, Processing and Visualization of Omni-Directional Images. \"2 (Id. ¶ 8.) The United States Patent and Trademark Office issued the '400 Patent on June 22, 2004. (Id.",
"¶ 24; '400 Patent, annexed to Am. Compl. as Ex. A, Docket Entry No. 18-1. )3 The *199software-based technology underlying the '400 Patent enables an individual on a computer in a remote location to explore a 360-degree virtual view of an indoor or outdoor location, for example, an apartment, hotel room, restaurant, or backyard, \"in a manner ... accepted by the viewer as substantially realistic. \"4 (Am. Compl. ¶¶ 9-10; '400 Patent 2.) The '400 Patent generally protects a method for creating and generating photographic images that are commonly used as online virtual tour images. RTV presents, produces, and hosts 360-degree virtual tour content for clients. (Am. Compl.",
"¶ 32.) The clients are alleged to be individuals and businesses in New York and other states, \"seeking to sell, rent, purchase, lease, and/or promote private residences, commercial real estate, hotels, sporting and recreation facilities, schools, event venues, country clubs, golf courses, upscale lodging facilities, restaurants, nightclubs, and healthcare facilities.\" (Id. ) On its website, RTV states that it \"is a recognized leader in interactive 360 panoramic virtual tours, professional photography services, and virtual tour software.\" (RTV Recent Virtual Tours webpage, annexed to Am. Compl. as Ex. C, Docket Entry No. 18-3.) RTV's website also states that it is a \"leading provider of virtual tour technology,\" and offers virtual tour software for real estate professionals and business entrepreneurs. (About Real Tour Vision webpage, annexed to Am. Compl.",
"as Ex. D, Docket Entry No. 18-4.) Plaintiff alleges that this constitutes infringement of the '400 Patent. (Am. Compl. ¶ 33.) In support of its claims, Plaintiff contends that Defendants use the patented technology to produce photographic images for virtual tours, host those images on the Internet, and/or use those images in sales and marketing activities. (Id. ¶ 35.) In particular, Plaintiff alleges that the virtual tour images that appear on the RTV website \"indicate that the images are generated by the projection of a spherical image onto faces of a cube or a process equivalent thereto,5 where the spherical image was generated by the combination of multiple images,\" (id. ¶ 58), and that Defendants are thus \"literally and/or under the doctrine of equivalen[ts], directly infringing, and indirectly infringing by way of inducing infringement and/or contributing to the infringement of the '400 Patent in the State of New York,\" (id. ¶ 34). Plaintiff alleges that RTV has a \"local presence\" in the Eastern District of New York, and that the John Doe photographers are employee photographers of *200RTV.",
"(Id. ¶¶ 37-41, 49-51.) Specifically, Plaintiff alleges that John Does \"are photographers resident in this [d]istrict and/or working within this [d]istrict\" and \"employed by RTV in the business of creating images configured to be used in infringing the patent in suit and are practicing the invention which is the subject matter of the patent in suit.\" (Id. ¶ 3.) Plaintiff also contends that the John Doe Defendants use process steps in their photography for RTV that are covered under the claims of the '400 Patent, including \"capturing images surrounding an origin point in at least two hemispheres surrounding the origin point,\" and \"assembling the images in a digital format to create a complete spherical image surrounding the origin point.\" (Id. ¶ 47.) In addition, Plaintiff alleges that Jane Does are customers of RTV and \"are commercial enterprises practicing the invention in connection with their businesses located in and/or operating in this [d]istrict\" and \"include real estate agents advertising, using the technology of the invention, homes for sale and rent in this [d]istrict, and hotel and hospitality facilities located in this [d]istrict and advertising, using the technology of the invention, rooms available for occupancy by guest-customers.\"",
"(Id. ¶ 4.) II. Discussion a. Standard of review A plaintiff bears the burden of establishing that venue is proper once venue is challenged. In re ZTE (USA) Inc. , 890 F.3d 1008, 1013 (Fed. Cir. 2018) ; CDx Diagnostic. Inc. v.U.S. Endoscopy Grp., Inc. , No. 13-CV-5669, 2018 WL 2388534, at *1 (S.D.N.Y. May 24, 2018). However, at the motion to dismiss stage, where the court relies only on pleadings and affidavits, a \"plaintiff need only make a prima facie showing of [venue].\" Gulf Ins. Co. v. Glasbrenner , 417 F.3d 353, 355 (2d Cir. 2005) (alteration in original) (quoting CutCo Indus.",
"v. Naughton , 806 F.2d 361, 364-65 (2d Cir. 1986) ); see also Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A. , 722 F.3d 81, 84 (2d Cir. 2013) (\"Prior to discovery, a plaintiff challenged by a jurisdiction testing motion may defeat the motion by pleading in good faith, legally sufficient allegations of jurisdiction.\" (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A. , 902 F.2d 194, 197 (2d Cir. 1990) ) ). In determining whether a plaintiff has made a prima facie showing, a court \"view[s] all the facts in a light most favorable to plaintiff.\" Phillips v. Audio Active Ltd. , 494 F.3d 378, 384 (2d Cir. 2007) ; Uni-Sys., LLC v. U.S. Tennis Ass'n, Inc. , 350 F.Supp.3d 143, 156 (E.D.N.Y. 2018). When faced with a motion to dismiss for improper venue, district courts may consider facts outside the pleadings. See Uni-Sys., LLC , 350 F.Supp.3d at 160 ; Peerless Network, Inc. v. Blitz Telecom Consulting, LLC , No.",
"17-CV-1725, 2018 WL 1478047, at *2 (S.D.N.Y. Mar. 26, 2018) ; Japan Press Serv., Inc. v. Japan Press Serv., Inc. , No. 11-CV-5875, 2013 WL 80181, at *4 (E.D.N.Y. Jan. 2, 2013) ; TradeComet.com LLC v. Google, Inc. , 693 F.Supp.2d 370, 375 n.3 (S.D.N.Y. 2010) (\"In deciding a motion to dismiss pursuant to either Federal Rule of Civil Procedure 12(b)(1) or 12(b)(3), a court may consider evidentiary matters outside the pleadings, 'by affidavit or otherwise,' regarding the existence of jurisdiction.\") (quoting Kamen v. Am. Tel. & Tel. Co. , 791 F.2d 1006, 1011 (2d Cir. 1986) ), aff'd in part , 647 F.3d 472 (2d Cir.",
"2011), and aff'd in part , 435 F. App'x 31 (2d Cir. 2011). The Court considers the Amended Complaint, and the declarations and exhibits attached to the Amended Complaint and in support of the parties' memoranda. See, e.g. , *201TradeComet.com LLC , 693 F.Supp.2d at 375 n.3 (stating that the court would consider declarations and their attachments in deciding a Rule 12(b)(3) motion to dismiss). b. Plaintiff has not made a prima facie showing that venue is proper for RTV In patent infringement actions, venue is exclusively governed by 28 U.S.C. § 1400(b) (\" section 1400(b)\"). See TC Heartland LLC v. Kraft Foods Grp. Brands LLC , --- U.S. ----, ----, 137 S.Ct. 1514, 1519, 197 L.Ed.2d 816 (2017) (citing Fourco Glass Co. v. Transmirra Prod.",
"Corp. , 353 U.S. 222, 229, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957) ). Proper venue under section 1400(b) is considered \"an issue unique to patent law,\" and thus governed by Federal Circuit law instead of Second Circuit law. See In re ZTE , 890 F.3d at 1012 (citation omitted). Under section 1400(b), a civil action for patent infringement may be brought in a judicial district where (1) \"the defendant resides,\" or (2) \"where the defendant has committed acts of infringement and has a regular and established place of business.\" 28 U.S.C. § 1400(b). Thus, a plaintiff in a patent infringement action may either make a prima facie showing that the defendant resides in the judicial district where the plaintiff filed, or that the defendant has committed acts of infringement and has a regular and established place of business in that district. \"[C]ourts should be 'mindful that patent venue is narrower than general venue - and intentionally so.'",
"\" Zaxcom , 2019 WL 418860, at *3 (quoting Peerless Network , 2018 WL 1478047, at *2 ). For the reasons explained below, the Court finds that Plaintiff cannot satisfy either prong under section 1400(b) - RTV neither resides in, nor has a regular and established place of business in the Eastern District of New York. i. Lack of residence Venue is proper under the first prong of section 1400(b) in a judicial district where the defendant resides. 28 U.S.C. § 1400(b). In 2017, the Supreme Court clarified that when the defendant is a domestic corporation, \"residence\" under section 1400(b) refers to the state of incorporation. TC Heartland LLC , 137 S.Ct. at 1521. According to RTV's founder, \"RTV is a Michigan corporation with its place of business at 400 E Eighth Street, Suite 2, Traverse City, Michigan 49686.\"",
"(Jason LaVanture Decl. (\"LaVanture Decl.\") ¶ 2, Docket Entry No. 21-2.) Plaintiff does not dispute that RTV does not reside in this [d]istrict. (Am. Compl. ¶ 2 (\"On information and belief, [RTV] is a Michigan business corporation.\").) Plaintiff therefore cannot satisfy the residency prong of section 1400(b). Thus, Plaintiff cannot assert venue in this district under this provision of the venue statute. ii. Plaintiff has not sufficiently alleged that RTV engaged in acts of infringement and has a regular and established place of business in this district Although RTV does not reside in the Eastern District of New York, venue may nevertheless be proper under the second prong of section 1400(b) if Plaintiff makes a showing that RTV has committed acts of infringement and has a regular and established place of business in this district. 28 U.S.C. § 1400(b).",
"1. Acts of infringement To satisfy this prong, a plaintiff must make a prima facie showing that the alleged acts of infringement occurred in the district. See W. View Research, LLC v. BMW of N. Am., LLC , No. 16-CV-2590, 2018 WL 4367378, at *5 n.2 (S.D. Cal. Feb. 5, 2018) (\"[A]llegations of infringement are sufficient for a venue determination\" (citation *202omitted) ); Funnelcap, Inc. v. Orion Indus., Inc. , 392 F.Supp. 938, 943 (D. Del. 1975) (\"[C]ourts have consistently held that an allegation of infringement is itself sufficient to establish venue....\"); see also CDx Diagnostic , 2018 WL 2388534, at *2 (finding acts of infringement satisfied where Defendant conceded \"that it sold the allegedly infringing products in th[e d]istrict\").",
"Whether a patent has been infringed \"is a question to be determined at trial. 'The issue of infringement is not reached on the merits in considering venue requirements.' \" In re Cordis Corp. , 769 F.2d 733, 737 (Fed. Cir. 1985) (brackets omitted) (quoting Gunter & Cooke, Inc. v. S. Electric Serv. Co. , 256 F.Supp. 639, 648 (M.D.N.C. 1966), aff'd 378 F.2d 60 (4th Cir. 1967) ); see also Zaxcom , 2019 WL 418860, at *4 (\"Whether [a d]efendant has infringed [the patent] is a factual question not appropriate for resolution on a motion to dismiss for improper venue.\" (citing Medicines Co. v. Hospira, Inc. , 881 F.3d 1347, 1350 (Fed. Cir. 2018) ) ). With regard to RTV's general conduct, Plaintiff alleges, inter alia , that: \"RTV is in the business of presenting, producing, and/or hosting 360° virtual tour content for its clients\"; it \"offers for sale [in the Eastern District of New York] an array of virtual tour software which uses spherical projection technology\"; it provides \"training to photographers located in the [d]istrict\"; has a local presence via \"specialized equipment located in th[e Eastern] District [of New York] and used to practice the invention\" by the photographers RTV contracts with; \"RTV ... implements the production of photography using its local employee-photographers\"; and the images taken by the photographers that RTV contracts with to do work are \"processed in a manner consistent with the practice of the invention\" at times via \"equipment ... [that is] shipped into this [d]istrict by Defendant RTV.",
"\"6 (Am. Compl. ¶¶ 32-33, 38-39, 41, 48.) As to the infringing acts, Plaintiff alleges that Defendants are infringing the '400 Patent by \"operating, controlling, using and/or benefitting from [these] activities.\" (Id. ¶ 34.) Based on these allegations, the Court finds that Plaintiff has made a prima facie showing of acts of infringement in the Eastern District of New York. See Zaxcom , 2019 WL 418860, at *4 (finding sufficient \"[p]laintiff's allegations that [d]efendant 'has sold products and committed infringing acts in this district by offering for sale and selling [the PDR and related accessories]' through distributors in the district ... and by using these products in demonstrations in the district.\" (citations omitted) ); Symbology Innovations, LLC v. Lego Sys., Inc. , 282 F.Supp.3d 916, 928 (E.D. Va. 2017) (finding the acts of infringement requirement met where \"employees of the three Virginia Lego Store locations have tested, detected, and processed QR codes imprinted on the company's advertisements and packaging,\" where the patents at issue related to QR codes); see also Gunter & Cooke , 256 F.Supp.",
"at 648 (\"The acts of infringement required to support venue in a patent infringement action need not be acts of direct infringement, and venue does lie if the defendant only induced the infringement or contributed to the infringement.\"). 2. Regular and established place of business There are three requirements relevant to a determination of whether a defendant *203has a regular and established place of business in a judicial district: \"(1) there must be a physical place in the district; (2) it must be a regular and established place of business; and (3) it must be the place of the defendant.\" In re Cray Inc. , 871 F.3d 1355, 1360 (Fed.",
"Cir. 2017). \"If any ... requirement is not satisfied, venue is improper under § 1400(b).\" Id. Prior to the Supreme Court's recent decision in TC Heartland , in 1990, the Federal Circuit determined that a 1988 amendment to the general venue statute incorporated the provisions of the patent venue statute into the general venue statute. See VE Holding Corp. v. Johnson Gas Appliance Co. , 917 F.2d 1574, 1578-80 (Fed. Cir. 1990). As a result, between the 1990 Federal Circuit decision and the Supreme Court's decision in TC Heartland , courts often determined the proper venue in a patent infringement action by examining whether a corporate defendant effectively resided in any district in which it was subject to personal jurisdiction, pursuant to the general venue statute. In 2017, the Supreme Court in TC Heartland reversed the Federal Circuit's 1990 decision, finding that a corporate defendant only resides in its place of incorporation - as opposed to any district where the defendant is subject to personal jurisdiction. See TC Heartland , 137 S.Ct.",
"at 1520-21. The Court reasoned that the 2011 amendments to the general venue statute clarified that Congress never intended to supplant or alter section 1400(b) with the general venue statute. See id. ; see also CDx Diagnostic , 2018 WL 2388534, at *2. As the Federal Circuit stated in In re Cray Inc. , 871 F.3d at 1359, \"for nearly ... 30 years, venue in patent infringement cases ha[d] largely turned on whether a defendant 'resides' in the district in question. Following the Supreme Court's recent decision in TC Heartland , litigants and courts are raising with increased frequency the question of where a defendant has a 'regular and established place of business.'",
"\"7 In re Cray , 871 F.3d at 1359. When \"deciding whether a defendant has a regular and established place of business in a district, no precise rule has been laid down and each case depends on its own facts.\" Id. at 1362. A. There is a physical place in the Eastern District of New York Plaintiff argues that RTV has \"stated that it is a local virtual tour company operating from various towns in\" this district, and that the \"locations used by\" the John Doe photographers \"are the Defendant's place of business\" in the district.",
"(Pl. Opp'n 18; see also Am. Compl. ¶ 37 (\"local presence of Defendant RTV includes employee-photographers (the John Doe Defendants)\").) In addition, Plaintiff argues that \"RTV acknowledges that it deals directly with customers\" in the district and \"implements the production of photography by photographers present\" in the district. (Pl. Opp'n 6.) Plaintiff also alleges that RTV admits that \"the photographers have 'office space' \" in the district, (id. at 7), as well as \"specialized equipment\" that is \"used to practice the invention by the John Doe Defendants as Employee Photographers of Defendant RTV,\" (Am. Compl. ¶ 39).",
"Plaintiff contends that RTV ships the equipment to the district. (Id. ) *204RTV argues that the Court should dismiss the Amended Complaint, at least as to RTV, because: it has no physical place of business in New York ... [and] does not rent or own any property in New York. It has no full or part time employees, sales representatives or other agents who live or work in New York and does not send any of its employees, representatives, or agents to New York. It is not registered to do business in New York, has no registered agent of service in New York, no New York phone number, and no New York bank account. (Def. Mem.",
"2-3; see also id. at 4.) RTV acknowledges that it \"engage[s] various independent photographers for various projects,\" (id. at 7), but disputes that the photographers it contracts with are RTV employees,8 (see id. at 9), and argues that \"[t]he location of [these] independent contractors engaged by RTV is not relevant to considerations of venue,\" (id. at 8 (citing In re Cray , 871 F.3d at 1363 and Talsk Research Inc. v. Evernote Corp. , No. 16-CV-2167, 2017 WL 4269004, at *4 (N.D. Ill. Sept. 26, 2017) ).) In determining whether there is a physical place in the district, the Federal Circuit has explained that: While the \"place\" need not be a \"fixed physical presence in the sense of a formal office or store,\" Cordis , 769 F.2d at 737, there must still be a physical, geographical location in the district from which the business of the defendant is carried out. In Cordis , for example, a defendant used its employees' homes to store its \"literature, documents and products\" and, in some instances, like distribution centers, storing inventory that the employees then directly took to its clients.",
"769 F.2d at 735. Defendant also engaged a secretarial service physically located in the district to perform certain tasks. Id. In re Cray , 871 F.3d at 1362. The Federal Circuit also clarified that the \"[p]lace\" cannot \"refer merely to a virtual space or to electronic communications from one person to another.\" Id. Instead, it is \"a location where, for example, products are made, customers are served, or business decisions are made.\" Peerless Network , 2018 WL 1478047, at *4. Offices, including home offices, of employees and sales representatives, have been found to be sufficient under certain circumstances to satisfy the \"place in the district\" requirement. See, e.g., Zaxcom , 2019 WL 418860, at *4 (finding the physical place requirement satisfied for an employee who maintained a home office and storage area, where he kept \"various equipment used ... to discharge his responsibilities\"); id.",
"(finding the requirement satisfied for an electronics repair business that the defendant contracted with to serve as a service center for defendant's products, where the repair business was located in the district); *205RegenLab USA LLC v. Estar Techs. Ltd. , 335 F.Supp.3d 526, 549 (S.D.N.Y. 2018) (finding the physical place requirement satisfied despite defendant's argument that it had \"no real property, warehouses, storage facilities, office spaces, post boxes, showrooms, leased property, or rental property within the State of New York,\" where a single employee worked out of a home office in the Southern District of New York, had a New York telephone number, and defendant's sale territory covered New York). Plaintiff has made a prima facie showing of this factor. RTV's argument that it does not have a physical location in this district in part because it \"does not rent or own any property in New York,\" (Def. Mem. 7), is not determinative. The Court in In re Cray explained that the \"place\" requirement is satisfied if there is a \"physical, geographical location in the district from which the business of the defendant is carried out. \" In re Cray , 871 F.3d at 1362 (emphasis added); see also RegenLab USA , 335 F.Supp.3d at 550 (\"Once [defendant] ships the products from its office in Texas, the representative conducts an initial demonstration session at the customer's location.",
"The fact that other business, such as shipping, payment and processing, follow-on orders, and addressing customer feedback, is handled out of Texas does not negate the business that is occurring at home offices in New York.\" (citations, internal quotation marks, and brackets omitted) ); Peerless Network , 2018 WL 1478047, at *4 (\"It is a location where, for example ... customers are served....\"). As set forth in the pleadings, exhibits, and affidavits, RTV's business is carried out from multiple physical places in the district. Part of RTV's business is carried out by providing professional photography services. (See LaVanture Decl. ¶ 8 (\"One service provided by RTV is to help its customers obtain pictures of given locations for use in virtual tours.\").)",
"RTV's website specifies that it \"maintain[s] a vast network\" of \"full-service providers.\" (Tour Software for Brokers & Agents webpage 2, annexed to Pl. Opp'n as Ex. D, Docket Entry No. 25-3.) When a customer signs up with RTV to utilize its virtual tour software, RTV connects a local virtual tour provider to the customer's account. (Id. (\"[W]hen you sign up with RTV, a local professional virtual tour provider will be assigned to your account so you can order the stunning virtual tour productions as shown in our virtual tour gallery.\").) Customers can order local virtual tours and professional photography services through RTV's website. (See, e.g.",
", Screenshot of main RTV webpage, annexed to Pl. Opp'n as Ex. E, Docket Entry No. 25-4.) Several of these virtual tour providers, which RTV describes as its \"representatives,\" are located in this district. (See, e.g. , Bellmore NY Virtual Tour webpage, annexed to Pl. Opp'n as Ex. F, Docket Entry No. 25-5; Huntington NY Virtual Tour webpage, annexed to Pl. Opp'n as Ex. G, Docket Entry No. 25-6.) These local tour providers are carrying out RTV's business, and at least some of these tour providers appear to maintain a physical location in the district.",
"RTV admits that it \"pays for the photo services from the photographers it engages on a project-by-project basis.\" (LaVanture Decl. ¶ 15.) In addition, and as noted above, offices of employees and sales representatives can satisfy the place requirement, contrary to RTV's argument that \"the physical location at issue cannot be 'a place of the defendant's employee,' or a place of the defendant's independent contractor.\" (Def. Mem. 7 (first citing In re Cray , 871 F.3d at 1363 ; and then citing Talsk Research , 2017 WL 4269004, at *4 ).) *206RTV cites Talsk Research to support its argument that \"[t]he Federal Circuit's decision in [In re ] Cray leaves no room for Plaintiff to argue that the handful of non-employee, independent contractors present in this [d]istrict constitute a 'regular and established place of business' for Defendant within the meaning of § 1400(b).\"",
"Talsk Research , 2017 WL 4269004, at *4. RTV's reliance on Talsk Research is misplaced as Talsk Research is factually distinguishable. In Talsk Research , the agreement between the defendant and the \"independent contractors\" expressly stated that the group members at issue in fact were not independent contractors, and further, that the group at issue was comprised of \"Community Members,\" that the defendant financially incentivized to recommend its products. Id. at *3. Unlike the \"independent contractors\" in Talsk Research , RTV hired the John Doe Defendant photographers in this case to perform actual professional services as opposed to simply provide recommendations. The Court finds that the use of photography providers that maintain locations within the Eastern District of New York and relied on by RTV to service its customers in the district sufficiently supports a finding that RTV carries out its business from a physical place in this district. See In re Cray , 871 F.3d at 1362 (citing a case where it was held sufficient that \"[d]efendant ... engaged a secretarial service physically located in the district to perform certain tasks.\").",
"B. RTV has a regular and established place of business in the district \"A business may be 'regular[ ]' ... if it operates in a steady, uniform, orderly, and methodical manner. In other words, sporadic activity cannot create venue.\" Id. (citations, internal quotation marks, and brackets omitted). \"The 'established' limitation ... directs that the place in question must be settled certainly, or fixed permanently.\" Id. at 1363 (citation, internal quotation marks, and brackets omitted). The facts support a finding that RTV's business is regular and established in this district. RTV's website states that it is \"a recognized leader in interactive 360 panoramic virtual tours, professional photography services, and virtual tour software.\" (RTV Recent Virtual Tours webpage.) It \"guarantees full coverage\" in locations in this district.",
"(See Bellmore NY Virtual Tour webpage; Huntington NY Virtual Tour webpage.) Because RTV guarantees full coverage in locations in this district, its contracts with photographers that reside in the district are not accidental, but by design to ensure that it can provide services to customers with regularity, and in an established manner. See RegenLab USA , 335 F.Supp.3d at 550 (noting that the defendant's \"employees have not merely worked out of the New York offices by happenstance,\" where defendant shipped sales orders into the district and the representative carried out initial demonstration sessions at the customer's location, and concluding that \"[t]he fact that other business, such as shipping, payment and processing, follow-on orders, and addressing customer feedback, is handled out of Texas does not negate the business that is occurring at home offices in New York.\" (internal citation omitted) ). C. The regular and established place is not the place of RTV Plaintiff argues that \"RTV has ratified the conceded office space ... as its own, by announcing the location, here in the [d]istrict, on its website, characterizing itself as a Glen Cove, New York virtual tour company.\" (Pl. Opp'n 17 (citations omitted); see also id.",
"at 18 (\"locations used by *207the Defendant photographers are [RTV's] place of business in this [d]istrict by ratification.\").) RTV argues that even if the photographers are RTV's employees, it is insufficient \"to find venue because there is no physical place of RTV in this district.\" (Def. Reply Mem. in Supp. of Mot. to Dismiss (\"Def. Reply\") 1, Docket Entry No. 27.) RTV emphasizes that the \"photographers are responsible for obtaining their own office facilities and applicable insurance\" and that RTV \"does not rent or own any property in New York\" and \"does not make payments to the photographers it engages for expenses 'including rent or mortgage payments and insurance.' \" (Id. at 2 (citing LaVanture Decl. ¶¶ 4, 15).)",
"RTV's founder states that \"RTV maintains a network of independent contractor third party photography service providers around the country.... and acts as a conduit and referral service to a network of separate professional photographer service providers,\" and the photographers \"each runs their own business wholly separate from RTV.\" (LaVanture Decl. ¶¶ 8-9.) RTV's founder also states that the photographers are \"largely free\" to provide photography services to others, and \"RTV imposes no requirements on where photographers should live or maintain their business,\" and only requires that the photographers are \"willing to go to take pictures\" in certain locations. (Id. ¶¶ 17-18.) RTV further argues that its inventory \"is stored only in RTV's facility in Michigan. Hardware is directly shipped from RTV's office in Michigan.\"",
"(Id. ¶ 24.) The third In re Cray requirement is that the regular and established place of business must be \"a place of the defendant. \" In re Cray , 871 F.3d at 1363. \"Thus, the defendant must establish or ratify the place of business. It is not enough that [an] employee does so on his or her own.\" Id. As discussed in In re Cray : Relevant considerations include whether the defendant owns or leases the place, or exercises other attributes of possession or control over the place. One can also recognize that a small business might operate from a home; if that is a place of business of the defendant, that can be a place of business satisfying the requirement of the statute.",
"Another consideration might be whether the defendant conditioned employment on an employee's continued residence in the district or the storing of materials at a place in the district so that they can be distributed or sold from that place. Marketing or advertisements also may be relevant, but only to the extent they indicate that the defendant itself holds out a place for its business. Id. (citations omitted). Relevant inquiries also \"include whether the defendant lists the alleged place of business on a website, or in a telephone or other directory; or places its name on a sign associated with or on the building itself.\"",
"Id. at 1363-64. However, \"the mere fact that a defendant has advertised that it has a place of business or has even set up an office is not sufficient; the defendant must actually engage in business from that location.\" Id. at 1364. As set forth supra , RTV targets customers in the district by holding itself out as servicing the district. RTV's website represents that it has \"a representative\" in various locations within the district, and provides RTV's main number for the purpose of securing a virtual tour with those representatives. (See, e.g. , Bellmore NY Virtual Tour webpage; Huntington NY Virtual Tour webpage.)",
"These representations are relevant to this factor's inquiry, see In re Cray , 871 F.3d at 1363-64, and appear to contradict RTV's statement that RTV \"has *208no full or part time employees, sales representatives or other agents who live or work in New York,\" (LaVanture Decl. ¶ 7). Nevertheless, the Court finds that the virtual tour and photography service providers are stand-alone entities that operate separate from and not pursuant to the direction of RTV. The facts proffered by RTV weigh in favor of a finding that the offices or locations of the photographers are not the place of RTV. See, e.g., Zaxcom , 2019 WL 418860, at *5 (finding that an employee's home office was not the place of the defendant where employment was, inter alia , not conditioned on continued residence in the district, and the employee did not receive allowance for rent for his home office, but was required to service customers and dealers in a certain territory); id.",
"(finding that a repair service center that the defendant contracted with was not the place of the defendant where either party could terminate the agreement between them at will and the service center was not restricted to working on defendant's projects); see also In re Cray , 871 F.3d at 1363 (\"[I]f an employee can move his or her home out of the district at his or her own instigation, without the approval of the defendant, that would cut against the employee's home being considered a place of business of the defendant. \"); but see RegenLab USA , 335 F.Supp.3d at 552 (finding employees' home to be place \"of the defendant\" where employees used sales kits to conduct demonstrations at customers' homes despite the fact that defendant did not rent or exercise control over its employees' work places and did not mandate that employees reside in a specific area, nor did defendant provide support service in the district, where defendant solicited sales people to cover New York).",
"While several of RTV's webpages arguably blur the lines between RTV and the virtual tour providers by stating that it has \"representatives\" in a desired location, other RTV webpages specify that the virtual tour companies, or photographers, that RTV contracts with and holds out as its \"representatives,\" are locally owned operators that maintain some level of separation from RTV. (See, e.g. , RTV order form webpage 4, annexed to Pl. Opp'n as Ex. C, Docket Entry No. 25-2 (\"Because our virtual tour providers are locally owned and operated, each offers services based on local demand and sets their own pricing. \"); RTV tour software webpage 2, annexed to Pl. Opp'n as Ex. D, Docket Entry No. 25-3 (\"All RTV providers maintain their own local photography and virtual tour company and establish their pricing structures.\").) Even on the webpages that Plaintiff cites most frequently, which webpages suggest that RTV has representatives in the Eastern District of New York, those webpages refer to the representatives as being part of a \"virtual tour provider network\" that RTV has \"built up.\" (See, e.g. , Huntington NY Virtual Tour webpage.) These same pages also invite customers to click on a link to, \"Learn About This Huntington NY Virtual Tour Company,\" (id.",
"), which, when considered with the other webpages specifying that such providers are locally owned, indicates a level of separation from RTV. These webpages suggest that rather than maintaining a place in the Eastern District of New York from which it conducts its regular and established business, RTV instead maintains a large network of photography service providers that exist as entities outside the control of RTV, and suggests a level of separation formalized through a contractual agreement. See, e.g., AGIS Software Dev., LLC v. ZTE Corp. , No.",
"17-CV-0517, 2018 WL 4854023, at *3 (E.D. Tex. Sept. 28, 2018) (finding that a call center physically located in the district that was established by the defendant for *209the purpose of providing support to defendant's customers, which housed defendant's employees, did not constitute a place of the defendant because the plaintiff did not show how the defendant controlled the work conducted at the call center or how the relationship was \"more intimate\" than an arms-length contractual relationship); cf. Blitzsafe Texas, LLC v. Bayerische Motoren Werke AG , No.",
"17-CV-0418, 2018 WL 4849345, at *8 (E.D. Tex. Sept. 6, 2018) (finding that BMW had \"undoubtedly ... ratified\" its dealerships as places of BMW where, inter alia , \"the dealerships [were] named 'BMW,' \" and the dealerships displayed \"the singular logo of BMW with no reservations such as 'authorized dealer' or 'exclusive distributor' \" (emphases in original) ). Although RTV's actions and contacts within the district would likely be sufficient to satisfy the general venue statute, the Court is mindful that the patent venue statute is narrower. In re Cray , 871 F.3d at 1361 (\"Courts should be mindful of [the] history in applying the statute and be careful not to conflate showings that may be sufficient for other purposes, e.g. , personal jurisdiction or the general venue statute, with the necessary showing to establish proper venue in patent cases. \"); RegenLab USA , 335 F.Supp.3d at 548 (\"[C]ourts should be 'mindful that patent venue is narrower than general venue - and intentionally so.' \" (quoting Peerless Network , 2018 WL 1478047, at *2 (citation omitted) ) ).",
"Accordingly, the Court finds that the level of separation between RTV and the John Doe Defendant photographers is too attenuated to support a finding that any place of a virtual tour provider or photographer has in fact been ratified by RTV as the place of RTV.9 Plaintiff has therefore not met its burden to make a prima facie showing that venue is proper under section 1400(b) as to Defendant RTV. c. Transfer is appropriate Under 28 U.S.C. § 1406(a), where an action is subject to dismissal as improperly venued, the court must decide whether to dismiss the action or, if it is in the interest of justice, to transfer the action to a venue \"in which it could have been brought.\" 28 U.S.C. § 1406(a).",
"The decision \"whether to dismiss or transfer a case 'lies within the sound discretion of the district court.' \" Blakely v. Lew , 607 F. App'x 15, 18 (2d Cir. 2015) (quoting Minnette v. Time Warner , 997 F.2d 1023, 1026 (2d Cir. 1993) ); see also Daniel v. Am. Bd. of Emergency Med. , 428 F.3d 408, 435 (2d Cir. 2005) (citation omitted) (\"Courts enjoy considerable discretion in deciding whether to transfer a case in the interest of justice.\").",
"\"A court may transfer a case pursuant to 28 U.S.C. § 1406(a)sua sponte even if the defendant moves only to dismiss.\" Pisani v. Diener , No. 07-CV-5118, 2009 WL 749893, at *8 (E.D.N.Y. Mar. 17, 2009) (internal citations omitted. ); Holey Soles Holdings, Ltd. v. Foam Creations, Inc. , No. 05-CV-6939, 2006 WL 1147963, at *9 (S.D.N.Y. May 1, 2006) (citing Concession Consultants, Inc. v. Mirisch , 355 F.2d 369, 372 n.3 (2d Cir. 1966) ). The Court transfers the claims against Defendant RTV to the Western District of Michigan, where RTV resides.",
"Although dismissal rather than transfer is encouraged when a case is a \"sure loser,\" *210Gonzalez v. Hasty , 651 F.3d 318, 324 (2d Cir. 2011), or \"clearly doomed,\" Daniel v. Am. Bd. of Emergency Med. , 428 F.3d 408, 436 (2d Cir. 2005), the Court cannot conclude that there is no merit to Plaintiff's claims. See Int'l Flavors & Fragrances Inc. v. Van Eeghen Int'l B.V. , No. 06-CV-0490, 2006 WL 1876671, at *8 (S.D.N.Y. July 6, 2006) (\"Dismissal is a harsh remedy that is best avoided when another avenue is open.\"). As acknowledged by RTV, Plaintiff has already settled several of the cases it has filed for infringement of the '400 Patent. (Def. Mem. 1.)",
"In addition, Plaintiff survived a request for reexamination from the International Virtual Reality Photographers Association, and the majority of the claims of the '400 Patent were found to be patentable as amended. (Am. Compl. ¶¶ 25, 27; Ex Parte Reexamination Certificate 3. )10 d. Venue as to the claims against John and Jane Does RTV argues that according to its knowledge, the John and Jane Doe Defendants \"have not ... been served or retained counsel and have not had an opportunity to address deficiencies in the complaint,\" but that \"[n]evertheless, the claims against them in the Amended Complaint appear deficient.\" (Def.",
"Mem. 18.) RTV appears to argue that Plaintiff has not sufficiently alleged claims against the John and Jane Doe Defendants - highlighting that it is unclear whether John and Jane Doe Defendants are alleged to be direct, induced, or contributory infringers. (Id. at 18-19.) The Court declines to decide whether Plaintiff has failed to state claims against the John and Jane Doe Defendants as those individuals have not been identified or served. Plaintiff is ordered to inform the Court within thirty (30) days of this Memorandum and Order how it intends to proceed with respect to the John and Jane Doe Defendants. In patent infringement actions, venue must be established individually as to each defendant named in the action. See, e.g., Magnacoustics, Inc. v. Resonance Tech.",
"Co. , No. 97-1247, 1997 WL 592863, at *1 (Fed. Cir. Sept. 25, 1997) (\"[A]s firmly established by judicial decisions, in an action involving multiple defendants[,] venue and jurisdiction requirements must be met as to each defendant. \" (citation omitted) ). Based on the allegations in the Amended Complaint, it does not appear that Plaintiff can establish venue in the Western District of Michigan for the John and Jane Doe Defendants. As discussed supra , Plaintiff alleges that the John Doe Defendants maintain residency in the Eastern District of New York. Similarly, the Jane Doe Defendants are alleged to be customers of RTV that reside in the Eastern District of New York. (See Am. Compl.",
"¶ 3.) In addition, Plaintiff does not allege any facts to suggest that the John or Jane Doe Defendants have a regular and established place of business in the Western District of Michigan. The Court therefore cannot transfer the action with respect to the John and Jane Doe Defendants, and can only transfer the action with respect to *211RTV.11 See RegenLab USA LLC , 335 F.Supp.3d at 548-49 (\"Whether or not the entities were working together, they are different companies and thus must both be subjected to individual venue analyses.\" (citation omitted) ).",
"Plaintiff must inform the Court within thirty (30) days of the date of this Memorandum and Order as to how it would like to proceed given the transfer of claims against RTV, i.e., whether Plaintiff intends to withdraw its claims against the remaining John and Jane Doe Defendants or to amend the Amended Complaint and proceed as to these Defendants. III. Conclusion For the foregoing reasons, the Court transfers the action with respect to Plaintiff's claims against RTV to the Western District of Michigan. The Court grants Plaintiff thirty (30) days from the date of this Memorandum and Order to inform the Court whether it wishes to proceed or withdraw its claims against John Does I-X and Jane Does XI-XX.",
"SO ORDERED. The Court generally assumes the truth of the factual allegations in the Amended Complaint for the purposes of this Memorandum and Order. See Zaxcom, Inc. v. Lectrosonics, Inc. , No. 17-CV-3408, 2019 WL 418860, at *1 (E.D.N.Y. Feb. 1, 2019) ; U.S. E.P.A. ex rel. McKeown v. Port Auth. of N.Y. & N.J. , 162 F.Supp.2d 173, 183 (S.D.N.Y. ), aff'd sub nom. McKeown v. Delaware Bridge Auth. , 23 F. App'x 81 (2d Cir. 2001). On September 17, 2013, the United States Patent and Trademark Office issued an Ex Parte Reexamination Certificate after receiving a Reexamination Request from the International Virtual Reality Photographers Association, alleging the unpatentability of the claims in the '400 Patent.",
"(Am. Compl. ¶¶ 25, 27.) After reexamination of the '400 Patent, the majority of the claims were found to be patentable as amended, and new claims were \"added and determined\" to be patentable. (Id. ¶¶ 27-29; Ex Parte Reexamination Certificate 3, annexed to Am. Compl. as Ex. B, Docket Entry No. 18-2.) The Court's reference to the '400 Patent in this Memorandum and Order is to the '400 Patent as amended by the Ex Parte Reexamination Certificate. Because the exhibits to the Amended Complaint are not consecutively paginated, the Court refers to the page numbers assigned by the Electronic Case Filing (\"ECF\") system.",
"As set forth in the '400 Patent, the invention is summarized as follows: The creation, processing and visualization of omnidirectional images system of the present invention, gathers two plane complementary images, preferably captured with a digital camera endowed with a fish-eye lens having a 180 degree FOV open angle. The system reforms the hemi-spherical images associated with the planar images taken by the fisheye lens, using specific laws of projections, corrects the radial and geometrical distortions as well as the color and light distortions and assembles the images into a complete spherical image, which is projected on a cube. Viewing of these images creates an impression of turning around in all the directions and of rectilinear movement in virtual space. The impression created is very similar to the human eye perception of the tri-dimensional space, and it permits continuously or a successive visualization of some three-dimensional images including specific details that a user may want to examine closer.",
"('400 Patent 12.) The '400 Patent covers \"[a] method for digitally rendering omni-directional images comprising of the steps of: ... assembling ... images in a digital format to create a complete spherical image ... [and] projecting the spherical image onto faces of a ... cube.\" (Ex Parte Reexamination Certificate 2, Claim 1.) Plaintiff further alleges that \"Defendants are in the business of producing photographic images for virtual tours,\" and \"Defendant RTV ... provides its clients with production, content, management, hosting and content distribution services,\" and \"services many properties at any given time throughout New York.\" (Am. Compl. ¶ 35.) Because TC Heartland returned the corporate residency standard back to what it had been prior to the Federal Circuit's 1990 decision, case law prior to the Federal Circuit's decision in 1990 is still largely relevant for the purposes of analyzing whether a defendant has a \"regular and established place of business\" in a district. The Court therefore looks to case law prior to 1990, and after TC Heartland , to assist in its assessment of whether RTV maintains a \"regular and established place of business\" in this district. Plaintiff and RTV debate at length whether the John Doe Defendant photographers are employees or independent contractors. Because the nature of RTV's relationship with the John Doe photographers is not a significant factor in the Court's decision on venue, the Court declines to decide the issue.",
"See, e.g., RegenLab USA LLC v. Estar Techs. Ltd. , 335 F.Supp.3d 526, 550 (S.D.N.Y. 2018) (analyzing whether any \"employee, independent contractor , or agent\" resided in the relevant district (emphasis added) ); Sherman Paper Prod. Corp. v. Sorg Paper Co. , 161 F.Supp. 44, 45 (E.D. Mich. 1958) (\"Defendant stresses the fact that the Protect-O-Pac Sales and Engineering Co. was not its employee but an independent distributor. Technical distinctions should not obscure the practical effects of corporate activity. The nature of the employment relationship between it and its agent is not a significant difference upon which to base or deny venue.\"). Although Plaintiff names Jane Doe Defendants, the arguments made as to these Defendants are sparse, and the Court similarly finds that any facts proffered regarding these Defendants are too attenuated to support a finding that the third In re Cray requirement has been met.",
"The Court does not make any finding as to the merits of Plaintiff's claims, and in light of the Court's conclusion that venue is improper, has not reached Defendant RTV's request to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim of willful patent infringement. See, e.g., Peerless Network, Inc. v. Blitz Telecom Consulting, LLC , No. 17-CV-1725, 2018 WL 1478047, at *5 n.4 (S.D.N.Y. Mar. 26, 2018) (finding improper venue and transferring the case in the interest of justice, and subsequently not reaching the defendant's motion to dismiss pursuant to, inter alia , Rule 12(b)(6) ). While the Court finds this outcome troubling and notes that under the general venue statute and in the interest of justice, the Court would transfer the action as to all Defendants to the Western District of Michigan, the Court is compelled by the patent venue statute, section 1400(b), to only transfer the action as to RTV, because venue requirements have not been met for the John and Jane Doe Defendants in the Western District of Michigan. See, e.g., Wet Sounds, Inc. v. PowerBass USA, Inc. , No.",
"CV-H-17-3258, 2018 WL 1811354, at *3 (S.D. Tex. 2018) (\"Wet Sounds argues that venue is proper in this district because of the defendants' jointly infringing acts.... The problem is that venue must be proper as to each defendant, and it is not proper as to PowerBass. Under these circumstances, the court may not retain venue as to that defendant, even if judicial economy would support that. \")."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7253543/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 1:18-cv-03994-ALC-KHP Document 47 Filed 06/26/20 Page 1 of 1
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------x 6/26/20 TYRONE H. MASSEY, : : Plaintiff, : : 1:18-cv-3994 (ALC) -against- : : ORDER CAPTAIN MORGAN, : : Defendant. : ------------------------------------------------------------x : : : ANDREW L. CARTER, JR., United States District Judge:
On April 12, 2019, Judge Parker recommended this action be dismissed without
prejudice. (ECF No. 37). The Report and Recommendation advised that Plaintiff would have
seventeen days from the date of service to file written objections pursuant to 28 U.S.C.
636(b)(1) and Fed. R. Civ. Pro. 72(b). On October 21, 2019, Plaintiff requested an extension of
his deadline. (ECF No. 38). Defendant responded on January 20, 2020. (ECF No. 41).
Plaintiff’s request for an extension is GRANTED. Plaintiff should submit objections to
Judge Parker’s Report and Recommendation by July 27, 2020. Defendant’s response is due
August 24, 2020. Plaintiff’s reply, if any, is due September 14, 2020.
SO ORDERED.
Dated: June 26, 2020 ___________________________________
New York, New York ANDREW L. CARTER, JR. United States District Judge | 2020-06-26 | [
"Case 1:18-cv-03994-ALC-KHP Document 47 Filed 06/26/20 Page 1 of 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------x 6/26/20 TYRONE H. MASSEY, : : Plaintiff, : : 1:18-cv-3994 (ALC) -against- : : ORDER CAPTAIN MORGAN, : : Defendant. : ------------------------------------------------------------x : : : ANDREW L. CARTER, JR., United States District Judge: On April 12, 2019, Judge Parker recommended this action be dismissed without prejudice. (ECF No. 37). The Report and Recommendation advised that Plaintiff would have seventeen days from the date of service to file written objections pursuant to 28 U.S.C. 636(b)(1) and Fed. R. Civ.",
"Pro. 72(b). On October 21, 2019, Plaintiff requested an extension of his deadline. (ECF No. 38). Defendant responded on January 20, 2020. (ECF No. 41). Plaintiff’s request for an extension is GRANTED. Plaintiff should submit objections to Judge Parker’s Report and Recommendation by July 27, 2020. Defendant’s response is due August 24, 2020. Plaintiff’s reply, if any, is due September 14, 2020. SO ORDERED. Dated: June 26, 2020 ___________________________________ New York, New York ANDREW L. CARTER, JR. United States District Judge"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/137648427/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
1 PHILLIP A. TALBERT Acting United States Attorney 2 MATTHEW D. SEGAL Assistant United States Attorney 3 501 I Street, Suite 10-100 Sacramento, CA 95814 4 Telephone: (916) 554-2700 Facsimile: (916) 554-2900 5
6 Attorneys for Plaintiff United States of America 7
8 IN THE UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 UNITED STATES OF AMERICA, CASE NO. 2:17-CR-00237-JAM 11 Plaintiff, STIPULATION REGARDING SCHEDULE FOR DEFENDANT’S MOTION TO REDUCE 12 v. SENTENCE UNDER 18 U.S.C. § 3582(c)(1)(A); ORDER 13 CURTIS DALE SAWYER, 14 Defendant. 15
16 STIPULATION 17 Plaintiff United States of America (the “government”), by and through its counsel of record, and 18 the defendant, by and through his counsel of record, hereby stipulate as follows:
19 1. The defendant filed a motion for compassionate release on May 11, 2021. Docket No. 20 114. The government’s response is due on May 26, 2021, with any reply from the defendant due on
21 June 4, 2021. Docket No. 116.
22 2. Counsel for the government requests additional time to obtain relevant records and draft 23 the government’s response to the defendant’s motion. The defendant does not oppose the government’s
24 request.
25 3. Accordingly, by this stipulation, the parties jointly request that the Court set the briefing 26 schedule on the defendant’s motion as follows:
27 a) The government’s response to the defendant’s motion to be filed on or before 28 June 17, 2021;
STIPULATION RE BRIEFING SCHEDULE 1 1 b) The defendant’s reply to the government’s response to be filed on or before July
2 1, 2021.
3
4 IT IS SO STIPULATED.
5
6 Dated: May 26, 2021 PHILLIP A. TALBERT Acting United States Attorney 7
8 /s/ MATTHEW D. SEGAL MATTHEW D. SEGAL 9 Assistant United States Attorney
10
11 Dated: May 26, 2021 /s/ MICHAEL LONG MICHAEL LONG 12 Counsel for Defendant CURTIS DALE SAWYER 13
14 ORDER 15 Based upon the stipulation and representations of the parties, the Court adopts the following as a 16 revised briefing schedule regarding the defendant’s motion for sentence reduction: 17 a) The government’s response to the defendant’s motion, Docket No. 114, is due on or 18 before June 17, 2021; 19 b) The defendant’s reply to the government’s response, if any, is due on July 1, 2021. 20
21 IT IS SO FOUND AND ORDERED this 27th day of May, 2021. 22
23
24 /s/ John A. Mendez 25 THE HONORABLE JOHN A. MENDEZ UNITED STATES DISTRICT COURT JUDGE 26
27
28
STIPULATION RE BRIEFING SCHEDULE 2 | 2021-05-27 | [
"1 PHILLIP A. TALBERT Acting United States Attorney 2 MATTHEW D. SEGAL Assistant United States Attorney 3 501 I Street, Suite 10-100 Sacramento, CA 95814 4 Telephone: (916) 554-2700 Facsimile: (916) 554-2900 5 6 Attorneys for Plaintiff United States of America 7 8 IN THE UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 UNITED STATES OF AMERICA, CASE NO. 2:17-CR-00237-JAM 11 Plaintiff, STIPULATION REGARDING SCHEDULE FOR DEFENDANT’S MOTION TO REDUCE 12 v. SENTENCE UNDER 18 U.S.C. § 3582(c)(1)(A); ORDER 13 CURTIS DALE SAWYER, 14 Defendant. 15 16 STIPULATION 17 Plaintiff United States of America (the “government”), by and through its counsel of record, and 18 the defendant, by and through his counsel of record, hereby stipulate as follows: 19 1.",
"The defendant filed a motion for compassionate release on May 11, 2021. Docket No. 20 114. The government’s response is due on May 26, 2021, with any reply from the defendant due on 21 June 4, 2021. Docket No. 116. 22 2. Counsel for the government requests additional time to obtain relevant records and draft 23 the government’s response to the defendant’s motion. The defendant does not oppose the government’s 24 request. 25 3. Accordingly, by this stipulation, the parties jointly request that the Court set the briefing 26 schedule on the defendant’s motion as follows: 27 a) The government’s response to the defendant’s motion to be filed on or before 28 June 17, 2021; STIPULATION RE BRIEFING SCHEDULE 1 1 b) The defendant’s reply to the government’s response to be filed on or before July 2 1, 2021.",
"3 4 IT IS SO STIPULATED. 5 6 Dated: May 26, 2021 PHILLIP A. TALBERT Acting United States Attorney 7 8 /s/ MATTHEW D. SEGAL MATTHEW D. SEGAL 9 Assistant United States Attorney 10 11 Dated: May 26, 2021 /s/ MICHAEL LONG MICHAEL LONG 12 Counsel for Defendant CURTIS DALE SAWYER 13 14 ORDER 15 Based upon the stipulation and representations of the parties, the Court adopts the following as a 16 revised briefing schedule regarding the defendant’s motion for sentence reduction: 17 a) The government’s response to the defendant’s motion, Docket No.",
"114, is due on or 18 before June 17, 2021; 19 b) The defendant’s reply to the government’s response, if any, is due on July 1, 2021. 20 21 IT IS SO FOUND AND ORDERED this 27th day of May, 2021. 22 23 24 /s/ John A. Mendez 25 THE HONORABLE JOHN A. MENDEZ UNITED STATES DISTRICT COURT JUDGE 26 27 28 STIPULATION RE BRIEFING SCHEDULE 2"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/173532352/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
FILED NOT FOR PUBLICATION AUG 02 2013
MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE SALVADOR CORTES No. 08-74641 PIMENTEL, AKA Jose Salvador Cortez Pimentel and MARIA ERIKA DIAZ Agency Nos. A075-647-287 ORTIZ, A075-645-679
Petitioners, MEMORANDUM* v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted April 11, 2013 Pasadena, California
Before: RAWLINSON and BYBEE, Circuit Judges, and SIMON, District Judge.**
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Michael H. Simon, District Judge for the U.S. District Court for the District of Oregon, sitting by designation.
1 Petitioners Jose Salvador Cortes Pimentel (Cortes) and Maria Erika Diaz
Ortiz (Diaz) challenge the denial of their motion to reopen as untimely, and the
alternative denial of their claim of ineffective assistance of counsel (IAC).
1. We lack jurisdiction over Petitioners’ contention that the Board of
Immigration Appeals (BIA) erred by declining to sua sponte reopen their case. See
Minasyan v. Mukasey, 553 F.3d 1224, 1229 (9th Cir. 2009); Toufighi v. Mukasey,
538 F.3d 988, 993 & n.8 (9th Cir. 2007).
2. Equitable tolling of the deadline for filing a motion to reopen is
available “when a petitioner is prevented from filing because of deception, fraud,
or error, as long as the petitioner acts with due diligence in discovering the
deception, fraud, or error. . . .” Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.
2003) (citations omitted). Cortes asserted by affidavit that he and Diaz believed
that counsel had prepared and filed their motion to reopen shortly after he was
hired. Accordingly, Cortes and Diaz “were left under the impression for more than
2 years that [their] motion to reopen had been filed and was pending.” Such claims
are not inherently implausible given the Petitioners’ prior experience with
immigration court delays. Accordingly, it was error for the BIA to decline to
2 equitably toll the filing deadline for lack of diligence. See Ghahremani v.
Gonzales, 498 F.3d 993, 999 (9th Cir. 2007) (holding that the BIA is under “an
affirmative obligation to accept as true the facts stated in [a petitioner’s] affidavit
in ruling upon his motion to reopen unless it finds those facts to be inherently
unbelievable”) (citations omitted). The error was harmless, however, because the
BIA properly denied the underlying IAC claim on the merits.
3. “When considering the merits of a motion to reopen premised on
ineffective assistance of counsel, the BIA asks whether counsel’s performance was
deficient, and whether the alien suffered prejudice. . . .” Singh v. Holder, 658 F.3d
879, 885 (9th Cir. 2011) (citation omitted). Cortes and Diaz argue that ineffective
assistance by their attorneys prejudiced their cancellation of removal claim because
counsel failed to establish extreme and unusual hardship to qualifying relatives.1
Counsel presented evidence at the removal hearing that Cortes’ Lawful
Permanent Resident (LPR) parents suffered from medical infirmities and required
his assistance. Nevertheless, the Immigration Judge (IJ) found that the parents
1 Petitioners also argued that the actions of a notario, from whom they had sought help, could form the basis of an IAC claim supporting their motion to reopen. We disagree. The record reflects that the notario’s actions bore no relation to the fairness of the removal hearing that Petitioners later received. See Lara- Torres v. Ashcroft, 383 F.3d 968, 973 (9th Cir. 2004).
3 would not suffer extreme or unusual hardship because they possessed significant
assets and were (at least partially) supported by Cortes’ brother. Counsel
diligently, albeit unsuccessfully, elicited testimony from Cortes to refute this
conclusion.2 Counsel also presented evidence that Petitioners’ United States
citizen children would be deprived of educational and cultural opportunities in
Mexico.
By contrast, in Morales Apolinar v. Mukasey, 514 F.3d 893, 898-99 (9th Cir.
2008), we concluded that counsel was ineffective because he failed to elicit
testimony, introduce available documentary evidence, or establish that an alien’s
mother was a qualifying relative for purposes of the hardship analysis. Unlike
Morales Apolinar, Cortes’ counsel presented evidence that Cortes’ parents were
LPRs and would suffer from his removal. Additionally, counsel questioned Cortes
at length, eliciting testimony of potential hardship to his parents and children.
Despite these efforts, the IJ found such harms inadequate to warrant cancellation of
removal.
2 Although the IJ noted that the absence of live testimony from the parents deprived her of the “best evidence” of the impact of Cortes’ removal, when the IJ asked Cortes why his parents were not present, he replied that they were “sick” and “very nervous.”
4 Petitioners do not identify other available evidence that could have
established the requisite hardship. Accordingly, the BIA did not abuse its
discretion in finding a lack of prejudice to Cortes and Diaz. See Kwong v. Holder,
671 F.3d 872, 881 (9th Cir. 2011) (concluding that performance was not deficient
where the attorney elicited testimony from petitioner and presented sufficient
evidence to permit the IJ to make a reasoned decision).
4. Petitioners also argue that counsel’s actions prevented them from
filing a petition for review of the BIA’s decision reviewing the IJ’s denial of
cancellation of removal. Because Petitioners did not raise this issue before the BIA
and support the claim with legal argument, we lack jurisdiction over this legal
claim. See Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per
curiam); see also Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007).
PETITION DENIED.
5 | 08-02-2013 | [
"FILED NOT FOR PUBLICATION AUG 02 2013 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE SALVADOR CORTES No. 08-74641 PIMENTEL, AKA Jose Salvador Cortez Pimentel and MARIA ERIKA DIAZ Agency Nos. A075-647-287 ORTIZ, A075-645-679 Petitioners, MEMORANDUM* v. ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 11, 2013 Pasadena, California Before: RAWLINSON and BYBEE, Circuit Judges, and SIMON, District Judge. ** * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Michael H. Simon, District Judge for the U.S. District Court for the District of Oregon, sitting by designation. 1 Petitioners Jose Salvador Cortes Pimentel (Cortes) and Maria Erika Diaz Ortiz (Diaz) challenge the denial of their motion to reopen as untimely, and the alternative denial of their claim of ineffective assistance of counsel (IAC).",
"1. We lack jurisdiction over Petitioners’ contention that the Board of Immigration Appeals (BIA) erred by declining to sua sponte reopen their case. See Minasyan v. Mukasey, 553 F.3d 1224, 1229 (9th Cir. 2009); Toufighi v. Mukasey, 538 F.3d 988, 993 & n.8 (9th Cir. 2007). 2. Equitable tolling of the deadline for filing a motion to reopen is available “when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error. . .",
".” Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003) (citations omitted). Cortes asserted by affidavit that he and Diaz believed that counsel had prepared and filed their motion to reopen shortly after he was hired. Accordingly, Cortes and Diaz “were left under the impression for more than 2 years that [their] motion to reopen had been filed and was pending.” Such claims are not inherently implausible given the Petitioners’ prior experience with immigration court delays. Accordingly, it was error for the BIA to decline to 2 equitably toll the filing deadline for lack of diligence. See Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th Cir. 2007) (holding that the BIA is under “an affirmative obligation to accept as true the facts stated in [a petitioner’s] affidavit in ruling upon his motion to reopen unless it finds those facts to be inherently unbelievable”) (citations omitted). The error was harmless, however, because the BIA properly denied the underlying IAC claim on the merits.",
"3. “When considering the merits of a motion to reopen premised on ineffective assistance of counsel, the BIA asks whether counsel’s performance was deficient, and whether the alien suffered prejudice. . . .” Singh v. Holder, 658 F.3d 879, 885 (9th Cir. 2011) (citation omitted). Cortes and Diaz argue that ineffective assistance by their attorneys prejudiced their cancellation of removal claim because counsel failed to establish extreme and unusual hardship to qualifying relatives.1 Counsel presented evidence at the removal hearing that Cortes’ Lawful Permanent Resident (LPR) parents suffered from medical infirmities and required his assistance. Nevertheless, the Immigration Judge (IJ) found that the parents 1 Petitioners also argued that the actions of a notario, from whom they had sought help, could form the basis of an IAC claim supporting their motion to reopen.",
"We disagree. The record reflects that the notario’s actions bore no relation to the fairness of the removal hearing that Petitioners later received. See Lara- Torres v. Ashcroft, 383 F.3d 968, 973 (9th Cir. 2004). 3 would not suffer extreme or unusual hardship because they possessed significant assets and were (at least partially) supported by Cortes’ brother. Counsel diligently, albeit unsuccessfully, elicited testimony from Cortes to refute this conclusion.2 Counsel also presented evidence that Petitioners’ United States citizen children would be deprived of educational and cultural opportunities in Mexico. By contrast, in Morales Apolinar v. Mukasey, 514 F.3d 893, 898-99 (9th Cir. 2008), we concluded that counsel was ineffective because he failed to elicit testimony, introduce available documentary evidence, or establish that an alien’s mother was a qualifying relative for purposes of the hardship analysis.",
"Unlike Morales Apolinar, Cortes’ counsel presented evidence that Cortes’ parents were LPRs and would suffer from his removal. Additionally, counsel questioned Cortes at length, eliciting testimony of potential hardship to his parents and children. Despite these efforts, the IJ found such harms inadequate to warrant cancellation of removal. 2 Although the IJ noted that the absence of live testimony from the parents deprived her of the “best evidence” of the impact of Cortes’ removal, when the IJ asked Cortes why his parents were not present, he replied that they were “sick” and “very nervous.” 4 Petitioners do not identify other available evidence that could have established the requisite hardship. Accordingly, the BIA did not abuse its discretion in finding a lack of prejudice to Cortes and Diaz. See Kwong v. Holder, 671 F.3d 872, 881 (9th Cir. 2011) (concluding that performance was not deficient where the attorney elicited testimony from petitioner and presented sufficient evidence to permit the IJ to make a reasoned decision).",
"4. Petitioners also argue that counsel’s actions prevented them from filing a petition for review of the BIA’s decision reviewing the IJ’s denial of cancellation of removal. Because Petitioners did not raise this issue before the BIA and support the claim with legal argument, we lack jurisdiction over this legal claim. See Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam); see also Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007). PETITION DENIED. 5"
]
| https://www.courtlistener.com/api/rest/v3/opinions/1036378/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
ON PETITION FOR CERTIFICATION To the Appellate Division, Superior Court: A petition for certification of the judgment in A-005843-13 having been submitted to this Court, and the Court having considered the same; It is ORDERED that the petition for certification is denied. | 07-25-2022 | [
"ON PETITION FOR CERTIFICATION To the Appellate Division, Superior Court: A petition for certification of the judgment in A-005843-13 having been submitted to this Court, and the Court having considered the same; It is ORDERED that the petition for certification is denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7330918/ | 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 .
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 31 Jan 2022 has been entered. Status of Claims This action is in reply to the request for continued examination filed on 31 Jan 2022. Claims 4, 11, and 18 were cancelled. Claims 1, 6, 7, 8, and 13-15 were amended. Claims 22-24 were newly presented. Claims 1-3, 5-10, 12-17, 19, and 21-24 are currently pending and have been examined. 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 Authorization for this examiner’s amendment was given in an interview with Rola Aylo on 15 Mar 2022 and subsequent voicemail. The application has been amended as follows:
1. (Currently amended) A method for automated remote transactions comprising: transmitting, by a computing device of a vehicle and via a computer network, a request for an automated transaction with a booking platform of an entity located within a predetermined geographical distance from the vehicle receiving, by the computing device, from the booking platform, a set of available services; transmitting, by the computing device, to a payment network, information identifying the vehicle; receiving, by the computing device, a private key from the payment network in response to transmitting the information identifying the vehicle, wherein the private key is stored in a root of trust system of the vehicle, and the private key has been associated with the information identifying the vehicle; generating, by the computing device, a booking request by using the private key, wherein the booking request is further generated based at least in transmitting, by the computing device, the booking request to the booking platform, wherein the booking request comprises the at least one available service from the set of available services, a booking price, and the information identifying the vehicle, wherein the booking platform transmits the information identifying the vehicle, the booking price, and an identification of an account for payment transfer to the payment network; receiving, by the computing device, from the payment network a request specifying a prompt for a passenger of the vehicle to enter information needed to authenticate the passenger for the payment transfer in response to receiving the information identifying the vehicle and the booking price, and a fraud determination wherein the fraud determination is based on a risk factor; in response to the request, prompting, by the computing device, the passenger of the vehicle to take a biometric sample via a biometric sensor positioned within the vehicle; transmitting, by the computing device, to the payment network, the biometric sample of the passenger of the vehicle, wherein the payment network compares the information identifying the vehicle and stored information identifying the vehicle to determine whether the information identifying the vehicle matches the stored information identifying the vehicle;
and receiving, by the computing device from the booking platform, in response to a validation of the information identifying the vehicle and the biometric sample, an electronic access token associated with the vehicle and the at least one available service, wherein the electronic access token comprises authorization data to receive the at least one available service and an expiration date.
2. (Previously Presented) The method of claim 1, further comprising: transmitting, by the computing device, a user accommodation profile to the booking platform, wherein the booking platform is configured to transmit the set of available services based on the user accommodation profile.
3. (Previously Presented) The method of claim 1, further comprising: receiving, by the computing device, a booking confirmation from the booking platform in response to the booking platform completing booking of the at least one available service, wherein the booking confirmation comprises GPS directions to the at least one available service.
4. (Cancelled).
5. (Previously Presented) The method of claim 1, further comprising: receiving, by the computing device, a provisioned parking access token from the booking platform in response to the booking platform completing booking of the at least one available service.
6. (Previously Presented) The method of claim 1, further comprising: transmitting, by the computing device, a registration request to register the vehicle for the automated remote transactions to the payment network, wherein in response to receiving the registration request, the payment network prompts the computing device to transmit the information identifying the vehicle; and transmitting, by the computing device, the information identifying the vehicle to the payment network, wherein the payment network is configured to associate the information identifying the vehicle with transaction account data.
7. (Previously Presented) The method of claim 6, further comprising: transmitting, by the computing device, a transaction account number to provision for the automated remote transactions, wherein the payment network is configured to generate a payment token based on the transaction account data corresponding to the transaction account number.
a computing device that includes a processor and a memory, wherein the computing device is associated with a vehicle; and machine-readable instructions stored in the memory, wherein the machine-readable instructions, in response to execution by the processor, cause the computing device to at least: transmit a request for an automated transaction with a booking platform of an entity located within a predetermined geographical distance from the vehicle receive from the booking platform a set of available services; transmit to a payment network information identifying the vehicle; receive a private key from the payment network in response to transmitting the information identifying the vehicle, wherein the private key is stored in a root of trust system of the vehicle, and the private key has been associated with the information identifying the vehicle; generate a booking request by using the private key, wherein the booking request is further generated based at least in part on a selection of at least one available service on a user interface for the vehicle; transmit the booking request to the booking platform, wherein the booking request comprises the at least one available service from the set of available services, a booking price, and the information identifying the vehicle, wherein the booking platform transmits the information receive from the payment network a request specifying a prompt for a passenger of the vehicle to enter information needed to authenticate the passenger for the payment transfer in response to receiving the information identifying the vehicle and the booking price and a fraud determination, wherein the fraud determination is based on a risk factor; in response to the request, prompt the passenger of the vehicle to take a biometric sample via a biometric sensor positioned within the vehicle; transmit the biometric sample of the passenger of the vehicle, wherein the payment network compares the information identifying the vehicle and stored information identifying the vehicle to determine whether the information identifying the vehicle matches the stored information identifying the vehicle; in response to the determination that the information identifying the vehicle matches the stored information identifying the vehicle, receive from the payment network data indicating (i) that the transaction is authorized and (ii) a payment amount is authorized for the transaction; and receive from the booking platform, in response to a validation of the information identifying the vehicle and the biometric sample, an electronic access token associated with the vehicle and the at least one available service, wherein the electronic access token comprises authorization data to receive the at least one available service and an expiration date.
transmit a user accommodation profile to the booking platform, wherein the booking platform is configured to transmit the at least one available service based on the user accommodation profile.
10. (Previously Presented) The system of claim 8, wherein the machine-readable instructions, in response to the execution by the processor, cause the computing device to at least: receive a booking confirmation from the booking platform in response to the booking platform completing booking of the at least one available service, wherein the booking confirmation comprises GPS directions to the at least one available service.
11. (Cancelled).
12. (Previously Presented) The system of claim 8, wherein the machine-readable instructions, in response to the execution by the processor, cause the computing device to at least: receive a provisioned parking access token from the booking platform in response to the booking platform completing booking of the at least one available service.
transmit a registration request to register the vehicle for the automated remote transactions to the payment network, wherein in response to receiving the registration request the payment network prompts the processor to transmit information identifying the vehicle; and transmit the information identifying the vehicle to the payment network, wherein the payment network is configured to associate the information identifying the vehicle with transaction account data.
14. (Previously Presented) The system of claim 13, wherein the machine-readable instructions, in response to the execution by the processor, cause the computing device to at least: transmit a transaction account number to provision for the automated remote transactions, wherein the payment network is configured to generate a payment token based on the transaction account data corresponding to the transaction account number.
15. (Currently Amended) An article of manufacture including a non-transitory, tangible computer readable storage medium having instructions stored thereon that, in response to execution by a computer-based system of a vehicle, cause the computer-based system to at least:
receive from the booking platform a set of available services; transmit to a payment network information identifying the vehicle associated with the vehicle; receive a private key from the payment network in response to transmitting the information identifying the vehicle, wherein the private key is stored in a root of trust system of the vehicle, and the private key has been associated with the information identifying the vehicle; generate a booking request by using the private key, wherein the booking request is further generated based at least in part on a selection of at least one available service on a user interface for the vehicle; transmit the booking request to the booking platform, wherein the booking request comprises the at least one available service from the set of available services, booking price, and the information identifying the vehicle; receive from the payment network a request specifying a prompt for a passenger of the vehicle to enter information needed to authenticate the passenger for the payment transfer in response to receiving the information identifying the vehicle and the booking price and a fraud determination, wherein the fraud determination is based on a risk factor;
transmit to the payment network the biometric sample of the passenger of the vehicle, wherein the payment network compares the information identifying the vehicle and stored information identifying the vehicle to determine whether the information identifying the vehicle matches the stored information identifying the vehicle; in response to the determination that the information identifying the vehicle matches the stored information identifying the vehicle, receive from the payment network data indicating (i) that the transaction is authorized and (ii) a payment amount is authorized for the transaction; and receive from the booking platform, in response to a validation of the information identifying the vehicle and the biometric sample, an electronic access token associated with the vehicle and the at least one available service, wherein the electronic access token comprises authorization data to receive the at least one available service and an expiration date.
16. (Previously Presented) The article of manufacture of claim 15, wherein the instructions stored thereon that, in response to the execution by the computer-based system of the vehicle, cause the computer-based system to at least transmit a user accommodation profile to the booking platform, wherein the booking platform is configured to transmit at least one available service accommodation based on the user accommodation profile.
18. (Cancelled).
19. (Previously Presented) The article of manufacture of claim 15, wherein the instructions stored thereon that, in response to the execution by the computer-based system of the vehicle, cause the computer-based system to at least receive a provisioned parking access token from the booking platform in response to the booking platform completing booking of the at least one available service.
20. (Cancelled)
21. (Previously Presented) The article of manufacture of claim 16, wherein the user accommodation profile comprises a filter associated with at least one of: a type of lodging, a lodging brand, a type of bed, or a lodging amenity.
22. (Previously Presented) The method of claim 1, wherein the payment network is configured to register one or more vehicles for the automated remote transactions,
23. (Previously Presented) The method of claim 1, wherein the booking request further comprises a phone number associated with a user device, and wherein the booking platform is configured to transmit to the user device a lodging key.
24. (Previously Presented) The method of claim 1, the electronic access token is received in response of the validation of the information identifying the vehicle and the biometric sample and the passenger being properly registered.
REASONS FOR ALLOWANCE The following is an examiner’s statement of reasons for allowance: U.S. Patent Publication No. 20100280956 to Chutorash et. al. in view of U.S. Patent Publication No. 20020049535 to Rigo et. al. in view of U.S. Patent Publication No. 20060282660 to Varghese et. al. in view of U.S. Patent Publication No. 20050261945 to Mougin et. al. discloses a system for booking a reservable service using a vehicle computer holding a private key as set forth in the final action mailed 28 Sep 2021. U.S. Patent Publication No. 20130145482 to Ricci et. al. discloses a vehicle based purchase system which uses public and private key cryptography as set forth in the final action. U.S. Patent Publication No. 20140309864 to Ricci et. al. discloses a match engine for matching various inputs via a vehicle system. Non-patent literature “Ditch the Wallet and Pay With Your Car” to Newcomb discloses “a concept that allows drivers to make routine purchases via their vehicle using the The claims are eligible under 35 U.S.C. 101 because the claimed invention results in a practical application of the abstract idea of creating a booking for a service. In particular, the vehicle computer itself houses the private key and serves as the root of trust system to generate the booking request, and this is a meaningful limitation on the abstract idea that is recited in each of the independent claims. Therefore, the claims recite a practical application of the abstract idea. 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 Michelle Carey whose telephone number is (571)272-5505. The examiner can normally be reached M-F 10:30 AM to 8:30 PM Eastern. 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 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.
/M.E.C./Examiner, Art Unit 3628
/EMMETT K. WALSH/Primary Examiner, Art Unit 3628 | 2022-04-01T11:53:23 | [
"Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . 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 31 Jan 2022 has been entered. Status of Claims This action is in reply to the request for continued examination filed on 31 Jan 2022. Claims 4, 11, and 18 were cancelled. Claims 1, 6, 7, 8, and 13-15 were amended. Claims 22-24 were newly presented. Claims 1-3, 5-10, 12-17, 19, and 21-24 are currently pending and have been examined.",
"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 Authorization for this examiner’s amendment was given in an interview with Rola Aylo on 15 Mar 2022 and subsequent voicemail. The application has been amended as follows: 1.",
"(Currently amended) A method for automated remote transactions comprising: transmitting, by a computing device of a vehicle and via a computer network, a request for an automated transaction with a booking platform of an entity located within a predetermined geographical distance from the vehicle receiving, by the computing device, from the booking platform, a set of available services; transmitting, by the computing device, to a payment network, information identifying the vehicle; receiving, by the computing device, a private key from the payment network in response to transmitting the information identifying the vehicle, wherein the private key is stored in a root of trust system of the vehicle, and the private key has been associated with the information identifying the vehicle; generating, by the computing device, a booking request by using the private key, wherein the booking request is further generated based at least in transmitting, by the computing device, the booking request to the booking platform, wherein the booking request comprises the at least one available service from the set of available services, a booking price, and the information identifying the vehicle, wherein the booking platform transmits the information identifying the vehicle, the booking price, and an identification of an account for payment transfer to the payment network; receiving, by the computing device, from the payment network a request specifying a prompt for a passenger of the vehicle to enter information needed to authenticate the passenger for the payment transfer in response to receiving the information identifying the vehicle and the booking price, and a fraud determination wherein the fraud determination is based on a risk factor; in response to the request, prompting, by the computing device, the passenger of the vehicle to take a biometric sample via a biometric sensor positioned within the vehicle; transmitting, by the computing device, to the payment network, the biometric sample of the passenger of the vehicle, wherein the payment network compares the information identifying the vehicle and stored information identifying the vehicle to determine whether the information identifying the vehicle matches the stored information identifying the vehicle; and receiving, by the computing device from the booking platform, in response to a validation of the information identifying the vehicle and the biometric sample, an electronic access token associated with the vehicle and the at least one available service, wherein the electronic access token comprises authorization data to receive the at least one available service and an expiration date.",
"2. (Previously Presented) The method of claim 1, further comprising: transmitting, by the computing device, a user accommodation profile to the booking platform, wherein the booking platform is configured to transmit the set of available services based on the user accommodation profile. 3. (Previously Presented) The method of claim 1, further comprising: receiving, by the computing device, a booking confirmation from the booking platform in response to the booking platform completing booking of the at least one available service, wherein the booking confirmation comprises GPS directions to the at least one available service. 4. (Cancelled).",
"5. (Previously Presented) The method of claim 1, further comprising: receiving, by the computing device, a provisioned parking access token from the booking platform in response to the booking platform completing booking of the at least one available service. 6. (Previously Presented) The method of claim 1, further comprising: transmitting, by the computing device, a registration request to register the vehicle for the automated remote transactions to the payment network, wherein in response to receiving the registration request, the payment network prompts the computing device to transmit the information identifying the vehicle; and transmitting, by the computing device, the information identifying the vehicle to the payment network, wherein the payment network is configured to associate the information identifying the vehicle with transaction account data.",
"7. (Previously Presented) The method of claim 6, further comprising: transmitting, by the computing device, a transaction account number to provision for the automated remote transactions, wherein the payment network is configured to generate a payment token based on the transaction account data corresponding to the transaction account number.",
"a computing device that includes a processor and a memory, wherein the computing device is associated with a vehicle; and machine-readable instructions stored in the memory, wherein the machine-readable instructions, in response to execution by the processor, cause the computing device to at least: transmit a request for an automated transaction with a booking platform of an entity located within a predetermined geographical distance from the vehicle receive from the booking platform a set of available services; transmit to a payment network information identifying the vehicle; receive a private key from the payment network in response to transmitting the information identifying the vehicle, wherein the private key is stored in a root of trust system of the vehicle, and the private key has been associated with the information identifying the vehicle; generate a booking request by using the private key, wherein the booking request is further generated based at least in part on a selection of at least one available service on a user interface for the vehicle; transmit the booking request to the booking platform, wherein the booking request comprises the at least one available service from the set of available services, a booking price, and the information identifying the vehicle, wherein the booking platform transmits the information receive from the payment network a request specifying a prompt for a passenger of the vehicle to enter information needed to authenticate the passenger for the payment transfer in response to receiving the information identifying the vehicle and the booking price and a fraud determination, wherein the fraud determination is based on a risk factor; in response to the request, prompt the passenger of the vehicle to take a biometric sample via a biometric sensor positioned within the vehicle; transmit the biometric sample of the passenger of the vehicle, wherein the payment network compares the information identifying the vehicle and stored information identifying the vehicle to determine whether the information identifying the vehicle matches the stored information identifying the vehicle; in response to the determination that the information identifying the vehicle matches the stored information identifying the vehicle, receive from the payment network data indicating (i) that the transaction is authorized and (ii) a payment amount is authorized for the transaction; and receive from the booking platform, in response to a validation of the information identifying the vehicle and the biometric sample, an electronic access token associated with the vehicle and the at least one available service, wherein the electronic access token comprises authorization data to receive the at least one available service and an expiration date.",
"transmit a user accommodation profile to the booking platform, wherein the booking platform is configured to transmit the at least one available service based on the user accommodation profile. 10. (Previously Presented) The system of claim 8, wherein the machine-readable instructions, in response to the execution by the processor, cause the computing device to at least: receive a booking confirmation from the booking platform in response to the booking platform completing booking of the at least one available service, wherein the booking confirmation comprises GPS directions to the at least one available service. 11. (Cancelled).",
"12. (Previously Presented) The system of claim 8, wherein the machine-readable instructions, in response to the execution by the processor, cause the computing device to at least: receive a provisioned parking access token from the booking platform in response to the booking platform completing booking of the at least one available service. transmit a registration request to register the vehicle for the automated remote transactions to the payment network, wherein in response to receiving the registration request the payment network prompts the processor to transmit information identifying the vehicle; and transmit the information identifying the vehicle to the payment network, wherein the payment network is configured to associate the information identifying the vehicle with transaction account data. 14. (Previously Presented) The system of claim 13, wherein the machine-readable instructions, in response to the execution by the processor, cause the computing device to at least: transmit a transaction account number to provision for the automated remote transactions, wherein the payment network is configured to generate a payment token based on the transaction account data corresponding to the transaction account number. 15.",
"(Currently Amended) An article of manufacture including a non-transitory, tangible computer readable storage medium having instructions stored thereon that, in response to execution by a computer-based system of a vehicle, cause the computer-based system to at least: receive from the booking platform a set of available services; transmit to a payment network information identifying the vehicle associated with the vehicle; receive a private key from the payment network in response to transmitting the information identifying the vehicle, wherein the private key is stored in a root of trust system of the vehicle, and the private key has been associated with the information identifying the vehicle; generate a booking request by using the private key, wherein the booking request is further generated based at least in part on a selection of at least one available service on a user interface for the vehicle; transmit the booking request to the booking platform, wherein the booking request comprises the at least one available service from the set of available services, booking price, and the information identifying the vehicle; receive from the payment network a request specifying a prompt for a passenger of the vehicle to enter information needed to authenticate the passenger for the payment transfer in response to receiving the information identifying the vehicle and the booking price and a fraud determination, wherein the fraud determination is based on a risk factor; transmit to the payment network the biometric sample of the passenger of the vehicle, wherein the payment network compares the information identifying the vehicle and stored information identifying the vehicle to determine whether the information identifying the vehicle matches the stored information identifying the vehicle; in response to the determination that the information identifying the vehicle matches the stored information identifying the vehicle, receive from the payment network data indicating (i) that the transaction is authorized and (ii) a payment amount is authorized for the transaction; and receive from the booking platform, in response to a validation of the information identifying the vehicle and the biometric sample, an electronic access token associated with the vehicle and the at least one available service, wherein the electronic access token comprises authorization data to receive the at least one available service and an expiration date. 16.",
"(Previously Presented) The article of manufacture of claim 15, wherein the instructions stored thereon that, in response to the execution by the computer-based system of the vehicle, cause the computer-based system to at least transmit a user accommodation profile to the booking platform, wherein the booking platform is configured to transmit at least one available service accommodation based on the user accommodation profile. 18. (Cancelled). 19. (Previously Presented) The article of manufacture of claim 15, wherein the instructions stored thereon that, in response to the execution by the computer-based system of the vehicle, cause the computer-based system to at least receive a provisioned parking access token from the booking platform in response to the booking platform completing booking of the at least one available service.",
"20. (Cancelled) 21. (Previously Presented) The article of manufacture of claim 16, wherein the user accommodation profile comprises a filter associated with at least one of: a type of lodging, a lodging brand, a type of bed, or a lodging amenity. 22. (Previously Presented) The method of claim 1, wherein the payment network is configured to register one or more vehicles for the automated remote transactions, 23. (Previously Presented) The method of claim 1, wherein the booking request further comprises a phone number associated with a user device, and wherein the booking platform is configured to transmit to the user device a lodging key.",
"24. (Previously Presented) The method of claim 1, the electronic access token is received in response of the validation of the information identifying the vehicle and the biometric sample and the passenger being properly registered. REASONS FOR ALLOWANCE The following is an examiner’s statement of reasons for allowance: U.S. Patent Publication No. 20100280956 to Chutorash et. al. in view of U.S. Patent Publication No. 20020049535 to Rigo et. al. in view of U.S. Patent Publication No. 20060282660 to Varghese et.",
"al. in view of U.S. Patent Publication No. 20050261945 to Mougin et. al. discloses a system for booking a reservable service using a vehicle computer holding a private key as set forth in the final action mailed 28 Sep 2021. U.S. Patent Publication No. 20130145482 to Ricci et. al. discloses a vehicle based purchase system which uses public and private key cryptography as set forth in the final action. U.S. Patent Publication No. 20140309864 to Ricci et. al. discloses a match engine for matching various inputs via a vehicle system. Non-patent literature “Ditch the Wallet and Pay With Your Car” to Newcomb discloses “a concept that allows drivers to make routine purchases via their vehicle using the The claims are eligible under 35 U.S.C. 101 because the claimed invention results in a practical application of the abstract idea of creating a booking for a service. In particular, the vehicle computer itself houses the private key and serves as the root of trust system to generate the booking request, and this is a meaningful limitation on the abstract idea that is recited in each of the independent claims.",
"Therefore, the claims recite a practical application of the abstract idea. 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 Michelle Carey whose telephone number is (571)272-5505. The examiner can normally be reached M-F 10:30 AM to 8:30 PM Eastern. 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 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. /M.E.C./Examiner, Art Unit 3628 /EMMETT K. WALSH/Primary Examiner, Art Unit 3628"
]
| 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 |
995 F.2d 46 143 L.R.R.M. (BNA) 2985 U.S. DEPARTMENT OF JUSTICE, IMMIGRATION and NATURALIZATIONSERVICE, Petitioner/Cross-Respondent,v.FEDERAL LABOR RELATIONS AUTHORITY, Respondent/Cross-Petitioner. No. 92-4652. United States Court of Appeals,Fifth Circuit. June 25, 1993.
Douglas Ross, Dept. of Justice, Washington, DC, for petitioner-cross-respondent. Richard Zorn, Wm. R. Tobey, William E. Persina, Sol., Arthur A. Horowitz, David M. Smith, Federal Labor Relations Authority, Washington, DC, for respondent-cross-petitioner. Alexia Fay McCaskill, American Federation of Gov't. Emp., William Kanter, Deputy Staff Director, U.S. Dept. of Justice, Mark D. Roth, American Federation of Gov't. Emp., Washington, DC, for intervenor. Petition for Review and Cross-Application for Enforcement of an Order of the Federal Labor Relations Authority. Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges. POLITZ, Chief Judge:
1 The United States Immigration and Naturalization Service seeks review of the determination by the Federal Labor Relations Authority that it committed an unfair labor practice. The FLRA seeks enforcement of its order. For the reasons assigned, we grant the petition for review in part and order enforcement in part.
Background
2 This dispute has its genesis in revisions by the INS in its policy on the use of firearms by employees. Negotiations between the agency and the employees' collective bargaining representatives, the National Border Patrol Council and the National Immigration and Naturalization Service Council of the American Federation of Government Employees AFL-CIO, concluded with several unresolved disputes. The INS contended that six proposals advanced by the unions were nonnegotiable because they addressed matters reserved to management's discretion. After mediation was deemed likely to be ineffective, the unions asked the Federal Service Impasses Panel to review the matter. Before the Impasses Panel acted, however, the INS implemented its revisions, both those agreed upon and those in dispute. The Impasses Panel thereafter determined that it did not have jurisdiction because negotiability was controverted. At the unions' request, the FLRA reviewed the negotiability of the six proposals and determined that only Proposal 5 and portions of Proposals 1 and 2 were negotiable. The INS sought our review of the negotiability of Proposal 5. In a decision rendered on October 20, 1992, we ruled that Proposal 5 was not negotiable.1
3 Shortly after seeking FLRA review of the negotiability issue, the unions brought unfair labor practice charges against the INS for implementing the revisions before the Impasses Panel had ruled. On April 30, 1992, prior to our decision on the petition for review of the negotiability order, the FLRA decided that the INS had violated section 7116(a)(1), (5), and (6) of the Federal Service Labor-Management Relations Statute.2 The INS timely petitioned for review and the FLRA cross-applied for enforcement of its order.
Analysis
4 The issue before us is whether an agency commits an unfair labor practice by implementing a change in a condition of employment when a union challenge is pending before the Impasses Panel and it is subsequently determined that the change is a nonnegotiable management prerogative. We conclude that neither the agency's refusal to submit to the jurisdiction of the Impasses Panel nor its unilateral implementation of the change is an unfair labor practice.
5 The Federal Service Labor-Management Relations Statute, part of the Civil Service Reform Act of 1978, was enacted in an effort to make the government function more efficiently and effectively.3 The legislation codifies the right of federal employees to organize and the duty of management to bargain, but tailors these rights and responsibilities "to meet the special requirements and needs of the Government."4 In section 7101(b) Congress directed that the statute "be interpreted in a manner consistent with the requirement of an effective and efficient Government."5
6 If the parties bargain to impasse and mediation does not resolve their differences, the statute authorizes either side to invoke the services of the Federal Service Impasses Panel.6 The Impasses Panel is empowered to impose specific contract terms on the parties "unless [they] agree otherwise."7 While a matter is pending before the Impasses Panel, under FLRA rule the parties must maintain the status quo to the extent consistent with the necessary functioning of the agency.8 Failure to do so constitutes an unfair labor practice.
7 Certain matters, however, statutorily are exempted from the scope of mandatory bargaining, including, as pertinent herein, an agency's internal security practices and the assignment of work.9 If management contends that a change falls within an exempted area, the Impasses Panel lacks authority to proceed unless and until the negotiability issues are resolved,10 subject to a limited exception defined by the FLRA. We agree with the reasoning of the FLRA as expressed in Commander Carswell Air Force Base, Texas and AFGE11 that the purposes of the statute are best furthered by allowing the Impasses Panel to resolve those disputes involving negotiability that are controlled by existing FLRA precedents. To that we would add "and existing controlling judicial precedents."
8 In the case at bar, claiming nonnegotiability the INS implemented its policy revisions before the Impasses Panel declined jurisdiction. Ultimately it was determined that all of the changes, except for portions of two of the union's proposals, were nonnegotiable. The INS concedes that it committed an unfair labor practice with respect to implementation of those measures found negotiable, but otherwise it denies wrongdoing. The FLRA insists that it was an unfair labor practice to implement any of the changes, negotiable or not.
9 Our 1984 decision in U.S. Dept. of Justice, INS v. FLRA12 persuades that the position taken herein by the FLRA is untenable. In the cited case, the INS implemented changes in employment conditions while a representation election was pending. Determining that the changes involved areas reserved to management's discretion, we held that the INS had not committed an unfair labor practice because the FLRA was not authorized to suspend management rights. We therein stated:
10 Congress provided specifically in 5 U.S.C. § 7106 that "nothing in this chapter shall affect the authority of any management official of any agency" to exercise the rights reserved to management by that section.... By using the word "nothing" ..., Congress clearly expressed its intent with regard to management's exercise of the rights which had been reserved to it. The use of such words makes it obvious that Congress did not intend to let the Authority decide whether, in its judgment, it was "necessary" for the INS to [make the desired changes] during the pendency of the election.... Construing the statute to allow the Authority to promulgate a rule which would bar management from exercising its reserved rights during the pendency of a representation question would hardly lead to an INS which was as effective and efficient as possible.13
11 Similarly here, the position urged by the FLRA would suspend management rights pending Impasses Panel action. Neither the language nor spirit of the statute would so permit.14 Whereas unilateral implementation during Impasses Panel proceedings of a change that is determined to be negotiable might be an unfair labor practice, we hold that unilateral implementation of a change determined to be nonnegotiable is not.15
12 The petition for review is GRANTED with respect to Proposal 5. Conversely, the cross-application for enforcement is DENIED with respect to Proposal 5 but is GRANTED with respect to the negotiable parts of Proposals 1 and 2.
1 Dept. of Justice, INS v. FLRA, 975 F.2d 218 (5th Cir.1992)
2 5 U.S.C. §§ 7101 et seq
3 S.Rep. No. 95-969, 95th Cong., 2d Sess. 4, reprinted in 1978 U.S.C.C.A.N. 2723, 2726
4 5 U.S.C. § 7101(b)
5 See also Dept. of Justice, INS v. FLRA, 991 F.2d 285 (5th Cir.1993)
6 5 U.S.C. § 7119(b)(1)
7 5 U.S.C. § 7119(c)(5)(C); see also American Federation of Government Employees, AFL-CIO v. FLRA, 778 F.2d 850 (D.C.Cir.1985)
8 Dept. of the Treasury, BATF and National Treasury Employees Union, 18 F.L.R.A. (No. 61) 466 (1985); see also National Ass'n of Government Employees v. FLRA, 893 F.2d 380 (D.C.Cir.1990)
9 5 U.S.C. § 7106(a)(1), (2)(B)
10 American Federation of Gov't Employees, supra
11 31 F.L.R.A. (No. 37) 620 (1988)
12 727 F.2d 481 (5th Cir.1984)
13 727 F.2d at 488
14 We therefore do not accord the deference normally owed to the interpretation of the agency charged with implementing the statute. See U.S. Dept. of Justice, INS, 975 F.2d at 225
15 See also American Federation of Gov't Employees, 778 F.2d at 857 ("although the Labor-Management Act makes it an unfair labor practice to 'fail or refuse to cooperate in impasse procedures and impasse decisions ...,' § 7116(b)(6), an agency is not guilty of an unfair labor practice if the FLRA or a reviewing court later determines that the issue was nonnegotiable"); Dept. of Treasury, BATF, supra (agency did not commit an unfair labor practice in implementing an Order while Impasses Panel proceedings were pending because the Order was not subject to the duty to bargain) | 08-23-2011 | [
"995 F.2d 46 143 L.R.R.M. (BNA) 2985 U.S. DEPARTMENT OF JUSTICE, IMMIGRATION and NATURALIZATIONSERVICE, Petitioner/Cross-Respondent,v.FEDERAL LABOR RELATIONS AUTHORITY, Respondent/Cross-Petitioner. No. 92-4652. United States Court of Appeals,Fifth Circuit. June 25, 1993. Douglas Ross, Dept. of Justice, Washington, DC, for petitioner-cross-respondent. Richard Zorn, Wm. R. Tobey, William E. Persina, Sol., Arthur A. Horowitz, David M. Smith, Federal Labor Relations Authority, Washington, DC, for respondent-cross-petitioner. Alexia Fay McCaskill, American Federation of Gov't. Emp., William Kanter, Deputy Staff Director, U.S. Dept. of Justice, Mark D. Roth, American Federation of Gov't.",
"Emp., Washington, DC, for intervenor. Petition for Review and Cross-Application for Enforcement of an Order of the Federal Labor Relations Authority. Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges. POLITZ, Chief Judge: 1 The United States Immigration and Naturalization Service seeks review of the determination by the Federal Labor Relations Authority that it committed an unfair labor practice. The FLRA seeks enforcement of its order. For the reasons assigned, we grant the petition for review in part and order enforcement in part. Background 2 This dispute has its genesis in revisions by the INS in its policy on the use of firearms by employees. Negotiations between the agency and the employees' collective bargaining representatives, the National Border Patrol Council and the National Immigration and Naturalization Service Council of the American Federation of Government Employees AFL-CIO, concluded with several unresolved disputes. The INS contended that six proposals advanced by the unions were nonnegotiable because they addressed matters reserved to management's discretion.",
"After mediation was deemed likely to be ineffective, the unions asked the Federal Service Impasses Panel to review the matter. Before the Impasses Panel acted, however, the INS implemented its revisions, both those agreed upon and those in dispute. The Impasses Panel thereafter determined that it did not have jurisdiction because negotiability was controverted. At the unions' request, the FLRA reviewed the negotiability of the six proposals and determined that only Proposal 5 and portions of Proposals 1 and 2 were negotiable. The INS sought our review of the negotiability of Proposal 5. In a decision rendered on October 20, 1992, we ruled that Proposal 5 was not negotiable.1 3 Shortly after seeking FLRA review of the negotiability issue, the unions brought unfair labor practice charges against the INS for implementing the revisions before the Impasses Panel had ruled. On April 30, 1992, prior to our decision on the petition for review of the negotiability order, the FLRA decided that the INS had violated section 7116(a)(1), (5), and (6) of the Federal Service Labor-Management Relations Statute.2 The INS timely petitioned for review and the FLRA cross-applied for enforcement of its order.",
"Analysis 4 The issue before us is whether an agency commits an unfair labor practice by implementing a change in a condition of employment when a union challenge is pending before the Impasses Panel and it is subsequently determined that the change is a nonnegotiable management prerogative. We conclude that neither the agency's refusal to submit to the jurisdiction of the Impasses Panel nor its unilateral implementation of the change is an unfair labor practice. 5 The Federal Service Labor-Management Relations Statute, part of the Civil Service Reform Act of 1978, was enacted in an effort to make the government function more efficiently and effectively.3 The legislation codifies the right of federal employees to organize and the duty of management to bargain, but tailors these rights and responsibilities \"to meet the special requirements and needs of the Government.",
"\"4 In section 7101(b) Congress directed that the statute \"be interpreted in a manner consistent with the requirement of an effective and efficient Government. \"5 6 If the parties bargain to impasse and mediation does not resolve their differences, the statute authorizes either side to invoke the services of the Federal Service Impasses Panel.6 The Impasses Panel is empowered to impose specific contract terms on the parties \"unless [they] agree otherwise. \"7 While a matter is pending before the Impasses Panel, under FLRA rule the parties must maintain the status quo to the extent consistent with the necessary functioning of the agency.8 Failure to do so constitutes an unfair labor practice. 7 Certain matters, however, statutorily are exempted from the scope of mandatory bargaining, including, as pertinent herein, an agency's internal security practices and the assignment of work.9 If management contends that a change falls within an exempted area, the Impasses Panel lacks authority to proceed unless and until the negotiability issues are resolved,10 subject to a limited exception defined by the FLRA. We agree with the reasoning of the FLRA as expressed in Commander Carswell Air Force Base, Texas and AFGE11 that the purposes of the statute are best furthered by allowing the Impasses Panel to resolve those disputes involving negotiability that are controlled by existing FLRA precedents.",
"To that we would add \"and existing controlling judicial precedents.\" 8 In the case at bar, claiming nonnegotiability the INS implemented its policy revisions before the Impasses Panel declined jurisdiction. Ultimately it was determined that all of the changes, except for portions of two of the union's proposals, were nonnegotiable. The INS concedes that it committed an unfair labor practice with respect to implementation of those measures found negotiable, but otherwise it denies wrongdoing. The FLRA insists that it was an unfair labor practice to implement any of the changes, negotiable or not. 9 Our 1984 decision in U.S. Dept. of Justice, INS v. FLRA12 persuades that the position taken herein by the FLRA is untenable.",
"In the cited case, the INS implemented changes in employment conditions while a representation election was pending. Determining that the changes involved areas reserved to management's discretion, we held that the INS had not committed an unfair labor practice because the FLRA was not authorized to suspend management rights. We therein stated: 10 Congress provided specifically in 5 U.S.C. § 7106 that \"nothing in this chapter shall affect the authority of any management official of any agency\" to exercise the rights reserved to management by that section.... By using the word \"nothing\" ..., Congress clearly expressed its intent with regard to management's exercise of the rights which had been reserved to it.",
"The use of such words makes it obvious that Congress did not intend to let the Authority decide whether, in its judgment, it was \"necessary\" for the INS to [make the desired changes] during the pendency of the election.... Construing the statute to allow the Authority to promulgate a rule which would bar management from exercising its reserved rights during the pendency of a representation question would hardly lead to an INS which was as effective and efficient as possible.13 11 Similarly here, the position urged by the FLRA would suspend management rights pending Impasses Panel action. Neither the language nor spirit of the statute would so permit.14 Whereas unilateral implementation during Impasses Panel proceedings of a change that is determined to be negotiable might be an unfair labor practice, we hold that unilateral implementation of a change determined to be nonnegotiable is not.15 12 The petition for review is GRANTED with respect to Proposal 5.",
"Conversely, the cross-application for enforcement is DENIED with respect to Proposal 5 but is GRANTED with respect to the negotiable parts of Proposals 1 and 2. 1 Dept. of Justice, INS v. FLRA, 975 F.2d 218 (5th Cir.1992) 2 5 U.S.C. §§ 7101 et seq 3 S.Rep. No. 95-969, 95th Cong., 2d Sess. 4, reprinted in 1978 U.S.C.C.A.N. 2723, 2726 4 5 U.S.C. § 7101(b) 5 See also Dept. of Justice, INS v. FLRA, 991 F.2d 285 (5th Cir.1993) 6 5 U.S.C. § 7119(b)(1) 7 5 U.S.C. § 7119(c)(5)(C); see also American Federation of Government Employees, AFL-CIO v. FLRA, 778 F.2d 850 (D.C.Cir.1985) 8 Dept. of the Treasury, BATF and National Treasury Employees Union, 18 F.L.R.A.",
"(No. 61) 466 (1985); see also National Ass'n of Government Employees v. FLRA, 893 F.2d 380 (D.C.Cir.1990) 9 5 U.S.C. § 7106(a)(1), (2)(B) 10 American Federation of Gov't Employees, supra 11 31 F.L.R.A. (No. 37) 620 (1988) 12 727 F.2d 481 (5th Cir.1984) 13 727 F.2d at 488 14 We therefore do not accord the deference normally owed to the interpretation of the agency charged with implementing the statute. See U.S. Dept. of Justice, INS, 975 F.2d at 225 15 See also American Federation of Gov't Employees, 778 F.2d at 857 (\"although the Labor-Management Act makes it an unfair labor practice to 'fail or refuse to cooperate in impasse procedures and impasse decisions ...,' § 7116(b)(6), an agency is not guilty of an unfair labor practice if the FLRA or a reviewing court later determines that the issue was nonnegotiable\"); Dept. of Treasury, BATF, supra (agency did not commit an unfair labor practice in implementing an Order while Impasses Panel proceedings were pending because the Order was not subject to the duty to bargain)"
]
| https://www.courtlistener.com/api/rest/v3/opinions/608168/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
670 S.E.2d 409 (2008) TREU v. HUMANISM INVESTMENT, INC. No. S08A1231. Supreme Court of Georgia. November 17, 2008. James Christopher Fox II, James T. McDonald, Jr., Swift Currie McGhee & Hiers, LLP, Atlanta, for Appellant. William S. Cowsert, Michael Shannon Broun II, Cowsert & Avery, LLP, Athens, Jesus A. Nerio, Atlanta, for Appellee. HINES, Justice. This appeal is from the trial court's denial of a motion to appoint a receiver for a corporation. Finding no abuse of the trial court's discretion, we affirm. In 1997, Min-Wei Hsu formed Humanism Investment, Inc., and he acts as the corporation's president. That year, Scarlet Treu invested $100,000 in the corporation. Shortly thereafter, the corporation purchased a commercial building for $1.055 million;[1] the building is virtually the corporation's sole asset. Stock certificates in the corporation were not issued until 2000; Treu's shares amount to ten percent of the stock. In 2002, Treu, joined by two of the total of eight shareholders, filed an "Application for Meeting of Shareholders, Inspection of Records, Accounting, Injunctive Relief, and Appointment of a Receiver." Following this filing, Hsu called the first shareholders' meeting of Humanism, and salaries and other expenses from 1997 to 2002 were "retroactively approved" by a majority of the shareholders. *410 The trial court, addressing the "Plaintiffs' Motion for Appointment of Receiver, Application for Accounting and Motion for Sanctions for Defendant's Failure to Comply with Consent Scheduling Order," granted the motion to the extent that an auditor was appointed to, inter alia, examine the corporation's records, provide an accounting of investments and payments, and determine the interests of the shareholders. Before the completion of the auditor's report, Treu separately filed a "Plaintiff's Renewed Motion for Appointment of Receiver and Request for Emergency Hearing"; this motion was later joined by the other plaintiffs. Before the trial court ruled on that motion, the auditor's report was submitted; it included a July 2006 appraisal of the building, which found a fair market value of $6 million, and the auditor's report determined that Treu's net share of the corporation was $426,608.59. A hearing was then held on the renewed motion to appoint a receiver, and the motion was denied. Treu, without the participation of the other plaintiffs, received a certificate of immediate review from the trial court, and filed an application for interlocutory appeal in this Court,[2] which was granted. Treu contends that the trial court abused its discretion by failing to appoint a receiver. In particular, she asserts that the need for a receiver is shown by Hsu's choice of corporate structure, his misrepresentation from 1997 to 2000 that he was the sole owner of the corporate assets, improper expenses paid by the corporation on behalf of Hsu and his family,[3] and Hsu's failure to hold a meeting of shareholders until 2002, when certain expenses were "retroactively approved."[4] "[T]he grant or refusal of a receivership `is a matter addressed to the sound legal discretion of the (trial) court, the exercise of which will not be interfered with (on appeal) unless such discretion be manifestly abused.' [Cit.]" Ga. Rehabilitation Center v. Newnan Hosp., 283 Ga. 335, 336(2), 658 S.E.2d 737 (2008). When any fund or property is in litigation and the rights of either or both parties cannot otherwise be fully protected or when there is a fund or property having no one to manage it, a receiver of the same may be appointed by the judge of the superior court having jurisdiction thereof. OCGA § 9-8-1. "The power of appointing receivers should be prudently and cautiously exercised and except in clear and urgent cases should not be resorted to." OCGA § 9-8-4. "`This is so regardless of the apparent equity of the complainant. [Cit.]' (Cit.)" Patel v. Patel, 280 Ga. 292, 293, 627 S.E.2d 21 (2006). The auditor's report criticized the choice to establish the corporation as a "C" corporation rather than some form of partnership, as "C" corporation status resulted in tax treatment that is unfavorable to the shareholders,[5] but that decision was made in 1997 and there is no showing that appointment of a receiver could reverse it. Although Hsu's representations prior to 2000 that he was the sole owner of the corporation may result, or have resulted, in tax implications for him, the corporate structure has clearly been recognized since that time, and it has not been shown that these prior representations affect the current or future operation of the corporation.[6] Further, although Treu takes issue with the fact that funds for the building's purchase were paid from Hsu's personal account, she wired her $100,000 investment to that account, and it is undisputed that the building is now owned by the corporation. While the auditor's report found certain questionable corporate expenditures, the report returned such expenditures to corporate equity for the purpose of calculating Treu's *411 interest in the corporation. Thus, the evidence is that improper corporate expenditures have been adjusted in the audit so as to ensure that Treu's proper share of the corporation is accurately measured. There is no showing that Hsu or the corporation is insolvent, or that Treu will not be able to ultimately gain her appropriate share of the corporation's value. See Patel, supra. The trial court did not abuse its discretion in determining that the rights of shareholders could be protected without the appointment of a receiver. Id. at 295, 627 S.E.2d 21. Judgment affirmed. All the Justices concur. NOTES [1] The purchase price was $1.655 million, with a $600,000 offset to the corporation for asbestos removal. [2] But see OCGA § 5-6-34(a)(4). [3] These expenditures included items such as personal travel and automobile expenses, immigration expenses, utility bills, a residential mortgage, inappropriate salaries, and refunds. [4] Since 2002, it appears that expenditures such as salaries have been approved by a majority of the shareholders. [5] The auditor's report stated that "S" corporation status is not available to foreign shareholders, which at least one shareholder is. [6] The report noted that the legality of the retroactive approval of certain corporate disbursements may have to be determined by the trial court. | 10-30-2013 | [
"670 S.E.2d 409 (2008) TREU v. HUMANISM INVESTMENT, INC. No. S08A1231. Supreme Court of Georgia. November 17, 2008. James Christopher Fox II, James T. McDonald, Jr., Swift Currie McGhee & Hiers, LLP, Atlanta, for Appellant. William S. Cowsert, Michael Shannon Broun II, Cowsert & Avery, LLP, Athens, Jesus A. Nerio, Atlanta, for Appellee. HINES, Justice. This appeal is from the trial court's denial of a motion to appoint a receiver for a corporation. Finding no abuse of the trial court's discretion, we affirm. In 1997, Min-Wei Hsu formed Humanism Investment, Inc., and he acts as the corporation's president. That year, Scarlet Treu invested $100,000 in the corporation. Shortly thereafter, the corporation purchased a commercial building for $1.055 million;[1] the building is virtually the corporation's sole asset.",
"Stock certificates in the corporation were not issued until 2000; Treu's shares amount to ten percent of the stock. In 2002, Treu, joined by two of the total of eight shareholders, filed an \"Application for Meeting of Shareholders, Inspection of Records, Accounting, Injunctive Relief, and Appointment of a Receiver.\" Following this filing, Hsu called the first shareholders' meeting of Humanism, and salaries and other expenses from 1997 to 2002 were \"retroactively approved\" by a majority of the shareholders. *410 The trial court, addressing the \"Plaintiffs' Motion for Appointment of Receiver, Application for Accounting and Motion for Sanctions for Defendant's Failure to Comply with Consent Scheduling Order,\" granted the motion to the extent that an auditor was appointed to, inter alia, examine the corporation's records, provide an accounting of investments and payments, and determine the interests of the shareholders. Before the completion of the auditor's report, Treu separately filed a \"Plaintiff's Renewed Motion for Appointment of Receiver and Request for Emergency Hearing\"; this motion was later joined by the other plaintiffs.",
"Before the trial court ruled on that motion, the auditor's report was submitted; it included a July 2006 appraisal of the building, which found a fair market value of $6 million, and the auditor's report determined that Treu's net share of the corporation was $426,608.59. A hearing was then held on the renewed motion to appoint a receiver, and the motion was denied. Treu, without the participation of the other plaintiffs, received a certificate of immediate review from the trial court, and filed an application for interlocutory appeal in this Court,[2] which was granted. Treu contends that the trial court abused its discretion by failing to appoint a receiver. In particular, she asserts that the need for a receiver is shown by Hsu's choice of corporate structure, his misrepresentation from 1997 to 2000 that he was the sole owner of the corporate assets, improper expenses paid by the corporation on behalf of Hsu and his family,[3] and Hsu's failure to hold a meeting of shareholders until 2002, when certain expenses were \"retroactively approved.",
"\"[4] \"[T]he grant or refusal of a receivership `is a matter addressed to the sound legal discretion of the (trial) court, the exercise of which will not be interfered with (on appeal) unless such discretion be manifestly abused.' [Cit.]\" Ga. Rehabilitation Center v. Newnan Hosp., 283 Ga. 335, 336(2), 658 S.E.2d 737 (2008). When any fund or property is in litigation and the rights of either or both parties cannot otherwise be fully protected or when there is a fund or property having no one to manage it, a receiver of the same may be appointed by the judge of the superior court having jurisdiction thereof.",
"OCGA § 9-8-1. \"The power of appointing receivers should be prudently and cautiously exercised and except in clear and urgent cases should not be resorted to.\" OCGA § 9-8-4. \"`This is so regardless of the apparent equity of the complainant. [Cit.]' (Cit.)\" Patel v. Patel, 280 Ga. 292, 293, 627 S.E.2d 21 (2006). The auditor's report criticized the choice to establish the corporation as a \"C\" corporation rather than some form of partnership, as \"C\" corporation status resulted in tax treatment that is unfavorable to the shareholders,[5] but that decision was made in 1997 and there is no showing that appointment of a receiver could reverse it. Although Hsu's representations prior to 2000 that he was the sole owner of the corporation may result, or have resulted, in tax implications for him, the corporate structure has clearly been recognized since that time, and it has not been shown that these prior representations affect the current or future operation of the corporation. [6] Further, although Treu takes issue with the fact that funds for the building's purchase were paid from Hsu's personal account, she wired her $100,000 investment to that account, and it is undisputed that the building is now owned by the corporation. While the auditor's report found certain questionable corporate expenditures, the report returned such expenditures to corporate equity for the purpose of calculating Treu's *411 interest in the corporation. Thus, the evidence is that improper corporate expenditures have been adjusted in the audit so as to ensure that Treu's proper share of the corporation is accurately measured.",
"There is no showing that Hsu or the corporation is insolvent, or that Treu will not be able to ultimately gain her appropriate share of the corporation's value. See Patel, supra. The trial court did not abuse its discretion in determining that the rights of shareholders could be protected without the appointment of a receiver. Id. at 295, 627 S.E.2d 21. Judgment affirmed. All the Justices concur. NOTES [1] The purchase price was $1.655 million, with a $600,000 offset to the corporation for asbestos removal. [2] But see OCGA § 5-6-34(a)(4).",
"[3] These expenditures included items such as personal travel and automobile expenses, immigration expenses, utility bills, a residential mortgage, inappropriate salaries, and refunds. [4] Since 2002, it appears that expenditures such as salaries have been approved by a majority of the shareholders. [5] The auditor's report stated that \"S\" corporation status is not available to foreign shareholders, which at least one shareholder is. [6] The report noted that the legality of the retroactive approval of certain corporate disbursements may have to be determined by the trial court."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1155870/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
1 Robert E. Aycock (admitted pro hac vice) raycock@pa-law.com JS-6 2 William O. Kimball (admitted pro hac vice) 3 bkimball@pa-law.com 4 William Chadwick (admitted pro hac vice) wchadwick@pa-law.com 5 February 6, 2019 PIA ANDERSON MOSS HOYT, LLC 6 136 E. South Temple, Suite 1900 VPC 7 Salt Lake City, UT 84111 T: 801.350.9000 8 F: 801.350.9010 9 [additional counsel listed on signature page] 10 11 Attorneys for Shipito, LLC 12 UNITED STATES DISTRICT COURT 13 CENTRAL DISTRICT OF CALIFORNIA 14 SHIPITO, LLC, No. 2:17-cv-08961-SJO-AGR 15 16 Plaintiff, [PROPOSED] CONSENT 17 vs. JUDGMENT AND PERMANENT 18 INJUNCTION JASON LUONG, 19 Judge: Hon. S. James Otero PLANET EXPRESS SHIPPING, 20 LLC, and 21 DOES 1 through 10 22 Defendants. 23 24 25 26 27 28
_________________________________________________________________ 1 Having reviewed the stipulation of the parties for entry of a Consent Judgment 2 and Permanent Injunction, being fully advised in the premises, and for good cause 3 shown, the Court hereby makes the following findings and enters Final Judgment as 4 follows: 5 PARTIES, JURISDICTION, AND VENUE 6 1. Plaintiff Shipito, LLC is a Utah limited liability company having a 7 principal place of business at 9815 S. Monroe St., Suite 510, Sandy, UT 84070. 8 2. Planet Express is a California limited liability company having a 9 principal place of business at 17224 S. Figueroa St., Gardena, CA 90248. 10 3. Jason Luong is an individual residing at 2815 Sepulveda Blvd., 11 Torrance, CA 90505. 12 4. The Court has personal jurisdiction over the Defendants Planet Express 13 and Luong. 14 5. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)-(c). 15 6. The Court has subject matter jurisdiction over the claims asserts in 16 Shipito’s First Amended Complaint pursuant to 28 U.S.C. §§1331 and 1338(a)-(b). 17 TRADE SECRET MISAPPROPRIATION 18 7. Shipito owns and possesses certain valuable, confidential, proprietary, 19 and trade secret information (“Trade Secrets”). Shipito’s Trade Secrets include its 20 source code, database schema, customer information, carrier agreements, and order 21 and operations flow. 22 8. Plaintiff has taken reasonable measures to keep its Trade Secrets and 23 associated information confidential. 24 9. Due to Shipito’s efforts to keep its Trade Secrets confidential, the Trade 25 Secrets are not generally known to, and are not readily ascertainable through proper 26 means by, other persons who can obtain economic value from the disclosure or use 27 of the information. 28
1 1 10. Shipito’s Trade Secrets derive independent economic value from not 2 being generally known to, and not being readily ascertainable through proper means 3 by, another person who can obtain economic value from the disclosure or use of the 4 information. 5 11. Luong and Planet Express acquired Shipito’s Trade Secrets through 6 improper means and had reason to know that the Trade Secrets were acquired by 7 improper means. 8 12. Luong and Planet Express disclosed and used Shipito’s Trade Secrets 9 without express or implied consent from Shipito. 10 13. As a direct and proximate result of Luong and Planet Express’s 11 misappropriation of Shipito’s Trade Secrets, Shipito has suffered severe competitive 12 harm, irreparable injury, and significant damages. 13 FINDINGS ON PERMANENT INJUNCTION 14 14. Shipito has established that it is entitled to prevail on the merits of its 15 trademark misappropriation claims. 16 15. Shipito has suffered and will continue to suffer irreparable harm by 17 reason of the wrongful conduct of Luong and Planet Express. 18 16. The balance of hardships and public policy favor the issuance of a 19 permanent injunction in favor of Shipito. 20 PERMANENT INJUNCTION 21 17. Defendants Luong and Planet Express and their officers, agents, 22 servants, employees, and all persons acting in active concert or participation with 23 them who receive actual notice of this injunction by personal service or otherwise 24 are hereby permanently enjoined as follows: 25 a. Luong and Planet Express are enjoined from acquiring, using or 26 disclosing any of Shipito’s Trade Secrets; 27 b. Luong and Planet Express are required to immediately destroy all 28 copies of all files or documents containing Shipito’s Trade Secrets;
2 1 c. Luong and Planet Express are enjoined from soliciting, endeavoring to 2 entice away from Shipito, or otherwise interfere with Shipito’s 3 relationship with any of its employees; and 4 d. Luong and Planet Express are enjoined from soliciting, endeavoring to 5 entice away from Shipito, or otherwise interfere with Shipito’s 6 relationship with any of its clients, service providers, or customers. 7 FINAL JUDGMENT 8 18. Final judgment is hereby entered in favor of Shipito and against Planet 9 Express and Luong on the claims of the First Amended Complaint. 10 19. All parties shall bear their respective attorneys’ fees and costs. The 11 terms of the Settlement Agreement between the parties and this judgment are to be 12 construed together. 13 20. This judgment fully and finally resolves, for purposes of res judicata 14 and collateral estoppel, any and all issues of trade secret misappropriation arising 15 out of the allegations of the First Amended Complaint. 16 21. The Court shall maintain jurisdiction over this action for purposes of 17 enforcement of this Permanent Injunction and Consent Judgment and the Settlement 18 Agreement between Shipito and the Defendants. 19 20 DATED this ___6th____ day of February, 2019. 21 22 23 Hon. S. James Otero 24 United States District Judge 25 26 27 28
3 1 APPROVED AS TO FORM AND CONTENT: 2 PIA ANDERSON MOSS HOYT MEADON & ENGLE 3 4 /s/ Robert E. Aycock /s/ __________________ _ Robert E. Aycock (admitted pro hac vice) Alan Engle (Bar No. 224779) 5 raycock@pa-law.com alan.engle@meenlegal.com 6 William O. Kimball (admitted pro hac vice) 5151 California Ave., Suite 100 William B. Chadwick (admitted pro hac vice) Irvine, CA 92617 7 136 E. South Temple, Suite 1900 8 Salt Lake City, UT 84111 Attorney for Defendants Jason Luong and Planet Express Shipping, LLC 9 Jen-Feng Lee, SBN 204328 10 Kenneth K. Tanji, Jr., SBN 162273 LT PACIFIC LAW GROUP, LLP 11 17800 Castleton Street, #560 12 City of Industry, CA 91748 13 Attorneys for Plaintiff Shipito, LLC 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
4 | 2019-02-06 | [
"1 Robert E. Aycock (admitted pro hac vice) raycock@pa-law.com JS-6 2 William O. Kimball (admitted pro hac vice) 3 bkimball@pa-law.com 4 William Chadwick (admitted pro hac vice) wchadwick@pa-law.com 5 February 6, 2019 PIA ANDERSON MOSS HOYT, LLC 6 136 E. South Temple, Suite 1900 VPC 7 Salt Lake City, UT 84111 T: 801.350.9000 8 F: 801.350.9010 9 [additional counsel listed on signature page] 10 11 Attorneys for Shipito, LLC 12 UNITED STATES DISTRICT COURT 13 CENTRAL DISTRICT OF CALIFORNIA 14 SHIPITO, LLC, No. 2:17-cv-08961-SJO-AGR 15 16 Plaintiff, [PROPOSED] CONSENT 17 vs. JUDGMENT AND PERMANENT 18 INJUNCTION JASON LUONG, 19 Judge: Hon. S. James Otero PLANET EXPRESS SHIPPING, 20 LLC, and 21 DOES 1 through 10 22 Defendants. 23 24 25 26 27 28 _________________________________________________________________ 1 Having reviewed the stipulation of the parties for entry of a Consent Judgment 2 and Permanent Injunction, being fully advised in the premises, and for good cause 3 shown, the Court hereby makes the following findings and enters Final Judgment as 4 follows: 5 PARTIES, JURISDICTION, AND VENUE 6 1. Plaintiff Shipito, LLC is a Utah limited liability company having a 7 principal place of business at 9815 S. Monroe St., Suite 510, Sandy, UT 84070.",
"8 2. Planet Express is a California limited liability company having a 9 principal place of business at 17224 S. Figueroa St., Gardena, CA 90248. 10 3. Jason Luong is an individual residing at 2815 Sepulveda Blvd., 11 Torrance, CA 90505. 12 4. The Court has personal jurisdiction over the Defendants Planet Express 13 and Luong. 14 5. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)-(c). 15 6. The Court has subject matter jurisdiction over the claims asserts in 16 Shipito’s First Amended Complaint pursuant to 28 U.S.C. §§1331 and 1338(a)-(b). 17 TRADE SECRET MISAPPROPRIATION 18 7. Shipito owns and possesses certain valuable, confidential, proprietary, 19 and trade secret information (“Trade Secrets”). Shipito’s Trade Secrets include its 20 source code, database schema, customer information, carrier agreements, and order 21 and operations flow.",
"22 8. Plaintiff has taken reasonable measures to keep its Trade Secrets and 23 associated information confidential. 24 9. Due to Shipito’s efforts to keep its Trade Secrets confidential, the Trade 25 Secrets are not generally known to, and are not readily ascertainable through proper 26 means by, other persons who can obtain economic value from the disclosure or use 27 of the information. 28 1 1 10. Shipito’s Trade Secrets derive independent economic value from not 2 being generally known to, and not being readily ascertainable through proper means 3 by, another person who can obtain economic value from the disclosure or use of the 4 information.",
"5 11. Luong and Planet Express acquired Shipito’s Trade Secrets through 6 improper means and had reason to know that the Trade Secrets were acquired by 7 improper means. 8 12. Luong and Planet Express disclosed and used Shipito’s Trade Secrets 9 without express or implied consent from Shipito. 10 13. As a direct and proximate result of Luong and Planet Express’s 11 misappropriation of Shipito’s Trade Secrets, Shipito has suffered severe competitive 12 harm, irreparable injury, and significant damages. 13 FINDINGS ON PERMANENT INJUNCTION 14 14. Shipito has established that it is entitled to prevail on the merits of its 15 trademark misappropriation claims. 16 15. Shipito has suffered and will continue to suffer irreparable harm by 17 reason of the wrongful conduct of Luong and Planet Express. 18 16. The balance of hardships and public policy favor the issuance of a 19 permanent injunction in favor of Shipito. 20 PERMANENT INJUNCTION 21 17.",
"Defendants Luong and Planet Express and their officers, agents, 22 servants, employees, and all persons acting in active concert or participation with 23 them who receive actual notice of this injunction by personal service or otherwise 24 are hereby permanently enjoined as follows: 25 a. Luong and Planet Express are enjoined from acquiring, using or 26 disclosing any of Shipito’s Trade Secrets; 27 b. Luong and Planet Express are required to immediately destroy all 28 copies of all files or documents containing Shipito’s Trade Secrets; 2 1 c. Luong and Planet Express are enjoined from soliciting, endeavoring to 2 entice away from Shipito, or otherwise interfere with Shipito’s 3 relationship with any of its employees; and 4 d. Luong and Planet Express are enjoined from soliciting, endeavoring to 5 entice away from Shipito, or otherwise interfere with Shipito’s 6 relationship with any of its clients, service providers, or customers.",
"7 FINAL JUDGMENT 8 18. Final judgment is hereby entered in favor of Shipito and against Planet 9 Express and Luong on the claims of the First Amended Complaint. 10 19. All parties shall bear their respective attorneys’ fees and costs. The 11 terms of the Settlement Agreement between the parties and this judgment are to be 12 construed together. 13 20. This judgment fully and finally resolves, for purposes of res judicata 14 and collateral estoppel, any and all issues of trade secret misappropriation arising 15 out of the allegations of the First Amended Complaint. 16 21. The Court shall maintain jurisdiction over this action for purposes of 17 enforcement of this Permanent Injunction and Consent Judgment and the Settlement 18 Agreement between Shipito and the Defendants. 19 20 DATED this ___6th____ day of February, 2019. 21 22 23 Hon. S. James Otero 24 United States District Judge 25 26 27 28 3 1 APPROVED AS TO FORM AND CONTENT: 2 PIA ANDERSON MOSS HOYT MEADON & ENGLE 3 4 /s/ Robert E. Aycock /s/ __________________ _ Robert E. Aycock (admitted pro hac vice) Alan Engle (Bar No.",
"224779) 5 raycock@pa-law.com alan.engle@meenlegal.com 6 William O. Kimball (admitted pro hac vice) 5151 California Ave., Suite 100 William B. Chadwick (admitted pro hac vice) Irvine, CA 92617 7 136 E. South Temple, Suite 1900 8 Salt Lake City, UT 84111 Attorney for Defendants Jason Luong and Planet Express Shipping, LLC 9 Jen-Feng Lee, SBN 204328 10 Kenneth K. Tanji, Jr., SBN 162273 LT PACIFIC LAW GROUP, LLP 11 17800 Castleton Street, #560 12 City of Industry, CA 91748 13 Attorneys for Plaintiff Shipito, LLC 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/59689963/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 10.3
Grant Agreement – Non Qualified Options
Radiant Systems, Inc.
ID:11-2749765
3925 Brookside Parkway
Alpharetta, GA 30022
770-576-6350 (off), 770-754-7773 (fax)
Employee Name
Employee Address
Employee Address
Option Number:
Plan:
ID:
0000xxxx NQ
2005
xxxx
Effective XX/XX/XXXX (“Grant Date”), you have been granted an option (“Stock Option”) to buy XX,XXX. shares of Radiant Systems, Inc. common stock (“Company Stock”) at $X.XX per share (“Option Price”), which is equal to the Fair Market Value of the Company Stock on the Grant Date. The Stock Option is not intended to constitute an “incentive stock option” under Section 422 of the Internal Revenue Code of 1986, as amended. The Stock Option is granted under the Radiant Systems, Inc. Amended and Restated 2005 Long-Term Incentive Plan (as amended, the “Plan”).
Shares in each period will become fully vested on the date shown.
Shares
Vesting Type
Full Vesting
Expiration Date
1/3 of total grant On Vest Date 1st anniv of grant 7th anniv of grant 1/3 of total grant On Vest Date 2nd anniv of grant 7th anniv of grant 1/3 of total grant On Vest Date 3rd anniv of grant 7th anniv of grant
Your Stock Option grant is subject to the limitations and other conditions set forth in the Plan, including but not limited to:
•
Any part of the Stock Option that has vested may be exercised in whole or in part at any time before the Stock Option expires or is terminated pursuant to the terms of the Plan.
•
Any part of the Stock Option that has not previously been exercised by you will expire the earlier of (i) the Expiration Date indicated above or (ii) 7 years from the Grant Date.
•
No shares will be issued or delivered until full payment of the Option Price and any required taxes have been received by the Company. The Option Price may be paid by any of the methods described in Section 3.2(B) of the Plan; provided that, if you wish to pay the Option Price using shares or an offset against compensation due to you, you must obtain the consent and approval of the Company. Also, shares may be used to pay required taxes only with the consent and approval of the Company.
•
Compensation realized from the exercise of the Stock Option will be reported to payroll for income tax purposes. For expatriates and employees outside the US, your awards will be subject to tax withholding and/or reporting where applicable.
•
This Stock Option is not transferable, except as described in the Plan.
•
Any unvested portion of this Stock Option will be forfeited upon your Termination for any reason. You may exercise the vested portion of your Stock Option until the earlier of (i) 3 months (1 year if termination is due to death or disability) after termination, (ii) the Expiration Date, or (iii) expiration of 7 years from the Grant Date.
•
Your Stock Options will be affected by a Change In Control event as described in the Plan.
The Stock Option is granted under and governed by the terms and conditions of the Plan and the related Prospectus, copies of which are available on Sharepoint under the Stock Option portal at “Plan Documents,” and the terms and conditions of which are made a part of this agreement. Any capitalized terms used herein that are not defined herein shall refer to the term as defined in the Plan.
Radiant Systems, Inc. (Keith Hicks, EVP-Human Resources) Date Employee Name Date | [
"Exhibit 10.3 Grant Agreement – Non Qualified Options Radiant Systems, Inc. ID:11-2749765 3925 Brookside Parkway Alpharetta, GA 30022 770-576-6350 (off), 770-754-7773 (fax) Employee Name Employee Address Employee Address Option Number: Plan: ID: 0000xxxx NQ 2005 xxxx Effective XX/XX/XXXX (“Grant Date”), you have been granted an option (“Stock Option”) to buy XX,XXX. shares of Radiant Systems, Inc. common stock (“Company Stock”) at $X.XX per share (“Option Price”), which is equal to the Fair Market Value of the Company Stock on the Grant Date. The Stock Option is not intended to constitute an “incentive stock option” under Section 422 of the Internal Revenue Code of 1986, as amended.",
"The Stock Option is granted under the Radiant Systems, Inc. Amended and Restated 2005 Long-Term Incentive Plan (as amended, the “Plan”). Shares in each period will become fully vested on the date shown. Shares Vesting Type Full Vesting Expiration Date 1/3 of total grant On Vest Date 1st anniv of grant 7th anniv of grant 1/3 of total grant On Vest Date 2nd anniv of grant 7th anniv of grant 1/3 of total grant On Vest Date 3rd anniv of grant 7th anniv of grant Your Stock Option grant is subject to the limitations and other conditions set forth in the Plan, including but not limited to: • Any part of the Stock Option that has vested may be exercised in whole or in part at any time before the Stock Option expires or is terminated pursuant to the terms of the Plan. • Any part of the Stock Option that has not previously been exercised by you will expire the earlier of (i) the Expiration Date indicated above or (ii) 7 years from the Grant Date.",
"• No shares will be issued or delivered until full payment of the Option Price and any required taxes have been received by the Company. The Option Price may be paid by any of the methods described in Section 3.2(B) of the Plan; provided that, if you wish to pay the Option Price using shares or an offset against compensation due to you, you must obtain the consent and approval of the Company. Also, shares may be used to pay required taxes only with the consent and approval of the Company. • Compensation realized from the exercise of the Stock Option will be reported to payroll for income tax purposes.",
"For expatriates and employees outside the US, your awards will be subject to tax withholding and/or reporting where applicable. • This Stock Option is not transferable, except as described in the Plan. • Any unvested portion of this Stock Option will be forfeited upon your Termination for any reason. You may exercise the vested portion of your Stock Option until the earlier of (i) 3 months (1 year if termination is due to death or disability) after termination, (ii) the Expiration Date, or (iii) expiration of 7 years from the Grant Date. • Your Stock Options will be affected by a Change In Control event as described in the Plan.",
"The Stock Option is granted under and governed by the terms and conditions of the Plan and the related Prospectus, copies of which are available on Sharepoint under the Stock Option portal at “Plan Documents,” and the terms and conditions of which are made a part of this agreement. Any capitalized terms used herein that are not defined herein shall refer to the term as defined in the Plan. Radiant Systems, Inc. (Keith Hicks, EVP-Human Resources) Date Employee Name Date"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/28/2020 08:08 AM CDT
- 147 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147
James Saylor, appellant, v. State of Nebraska et al., appellees. ___ N.W.2d ___
Filed June 19, 2020. No. S-18-794.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admit- ted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. 2. ____: ____. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted and gives that party the benefit of all reasonable inferences deducible from the evidence. 3. Tort Claims Act: Political Subdivisions Tort Claims Act: Appeal and Error. Where the relevant facts are undisputed, whether the notice requirements of the State Tort Claims Act or the Political Subdivisions Tort Claims Act have been satisfied is a question of law, on which an appellate court reaches a conclusion independent of the lower court’s ruling. 4. Statutes: Appeal and Error. Statutory interpretation presents a ques- tion of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. 5. Administrative Law. Agency regulations that are properly adopted and filed with the Secretary of State have the effect of statutory law. 6. Political Subdivisions Tort Claims Act: Notice. In cases under the Political Subdivisions Tort Claims Act, the substantial compliance doc- trine applies when deciding whether the content of a claim satisfies the presuit claim presentment requirements in Neb. Rev. Stat. § 13-905 (Reissue 2012). 7. ____: ____. Substantial compliance with the statutory provisions per- taining to a claim’s content supplies the requisite and sufficient notice - 148 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147
to a political subdivision in accordance with the Political Subdivisions Tort Claims Act when the lack of compliance has caused no prejudice to the political subdivision. 8. Tort Claims Act: Political Subdivisions Tort Claims Act. Generally, provisions of the State Tort Claims Act should be construed in har- mony with similar provisions under the Political Subdivisions Tort Claims Act. 9. ____: ____. Under the State Tort Claims Act, when a question is raised about whether the content of a presuit tort claim complied with the man- ner in which the State Claims Board prescribed such claims to be filed, the substantial compliance doctrine may be applied, just as it is applied under the Political Subdivisions Tort Claims Act. 10. ____: ____. Under both the State Tort Claims Act and the Political Subdivisions Tort Claims Act, application of the substantial compliance doctrine is limited to the content of a presuit claim. The doctrine of sub- stantial compliance does not apply when considering whether a presuit tort claim has complied with statutory timing requirements or whether it has been served on the recipient described in the statute. 11. Tort Claims Act: Political Subdivisions Tort Claims Act: Notice. Under both the State Tort Claims Act and the Political Subdivisions Tort Claims Act, application of the doctrine of substantial compliance is confined to situations where the content of the tort claim nevertheless satisfies the primary purpose of the presuit notice requirements by noti- fying the state or political subdivision about possible tort liability for a recent act or omission so it may investigate and make a decision whether to pay or defend the claim.
Appeal from the District Court for Lancaster County: Robert R. Otte, Judge. Reversed and remanded for further proceedings. Michael J. Wilson, of Berry Law Firm, for appellant. Douglas J. Peterson, Attorney General, Scott R. Straus, and, on brief, David A. Lopez, Deputy Solicitor General, for appel- lee State of Nebraska. Miller-Lerman, Cassel, Stacy, and Funke, JJ. Stacy, J. James Saylor, an inmate at the Nebraska Department of Correctional Services (DCS), appeals from an order dismissing - 149 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147
his lawsuit under the Nebraska State Tort Claims Act (STCA), 1 based on a finding that Saylor failed to comply with the pre- suit filing requirements of the STCA. 2 Because we find Saylor substantially complied with those requirements, we reverse, and remand for further proceedings. BACKGROUND Tort claims against the State are governed by the STCA. 3 This case requires us to focus on the presuit administrative requirements of the STCA. Before suit can be commenced under the STCA, a claimant must present the claim in writing to the Risk Manager for the State Claims Board within 2 years after the claim accrued. 4 Pursuant to § 81-8,212, such claim “shall be filed with the Risk Manager in the manner prescribed by the State Claims Board.” Generally speaking, a claimant cannot file suit under the STCA until the Risk Manager or State Claims Board makes a final disposition of the claim. 5 However, if no final disposition of a claim has been made after 6 months, § 81-8,213 authorizes the claimant to withdraw the claim and commence an action under the STCA. 6 We have described the presuit claim presentment require- ment in § 81-8,212 and the final disposition requirement in § 81-8,213 as procedural conditions precedent to commenc- ing a tort action against the State in district court, and not as jurisdictional prerequisites for the adjudication of a tort claim against the State. 7 Noncompliance with these procedural 1 Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014 & Cum. Supp. 2018). 2 See § 81-8,212. 3 Komar v. State, 299 Neb. 301, 908 N.W.2d 610 (2018). 4 See, § 81-8,227(1); Komar, supra note 3. 5 § 81-8,213; Komar, supra note 3. 6 Komar, supra note 3. 7 See Cole v. Isherwood, 264 Neb. 985, 653 N.W.2d 821 (2002) (superseded by rule on other grounds as stated in Weeder v. Central Comm. College, 269 Neb. 114, 691 N.W.2d 508 (2005)). - 150 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147
conditions precedent is considered an affirmative defense to be raised by the State. 8 We apply the same rules to the presuit claim presentment and final disposition procedures under the Political Subdivisions Tort Claims Act (PSTCA). 9 Under both the STCA and the PSTCA, the primary purpose of the presuit claim presentment procedures is the same: to notify the state or political subdivision about possible tort liability for a recent act or omission, to provide an opportunity to investigate the allegedly tortious conduct, and to enable the state or politi- cal subdivision to make a decision whether to pay or defend the claim. 10 Saylor Files Tort Claims With Risk Manager Between June 12, 2016, and February 23, 2017, Saylor filed 16 separate tort claims with the Risk Manager. 11 Pursuant to § 81-8,212 of the STCA, these claims had to “be filed with the Risk Manager in the manner prescribed by the State Claims Board.” Saylor filed all 16 of his claims using the standard form provided by the Risk Manager. Each claim form con- tained 18 fields requesting information regarding the claim. Some fields were marked with an asterisk indicating it was a “required” field. Further, each form contained a blank area with the following instructions: Provide detailed itemization of all known facts/ circumstances/damages leading to your claim. Identify all property, places, and people involved. Include names, 8 Id. 9 Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2012 & Cum. Supp. 2018). See, e.g., Geddes v. York County, 273 Neb. 271, 729 N.W.2d 661 (2007); Big Crow v. City of Rushville, 266 Neb. 750, 669 N.W.2d 63 (2003); Jessen v. Malhotra, 266 Neb. 393, 665 N.W.2d 586 (2003); Millman v. County of Butler, 235 Neb. 915, 458 N.W.2d 207 (1990) (superseded by rule on other grounds as stated in Weeder, supra note 7). 10 See, Cole, supra note 7; Chicago Lumber Co. v. School Dist. No. 71, 227 Neb. 355, 417 N.W.2d 757 (1988). 11 See § 81-8,212. - 151 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147
addresses and phone numbers of witnesses, if any. The information provided herein, along with the findings of the investigating agency, will form the basis of any decision. In this section, most of Saylor’s claim forms described instances in which he claimed the actions of DCS or its employees either denied him timely medical care, aggravated his existing post-traumatic stress disorder, or deprived him of the use of devices that eased his pain. In a few claim forms, Saylor alleged DCS staff deprived him of the use of certain legal materials in his possession or interfered with his ability to meet with his attorney. Saylor generally stated that all these things caused him physical and emotional pain and suffering. On each form, Saylor provided information in all required fields. One of the required fields, field No. 9, was titled “Total Amount of Claim.” When completing field No. 9 on each claim form, Saylor wrote “[t]o be proven” without specifying a dollar amount. The Risk Manager, in a series of letters, acknowledged receiving all of Saylor’s claims. Those letters notified Saylor of the claim numbers assigned to his claims and advised it may take up to 6 months to receive final disposition. None of the letters indicated the claim forms were incomplete, and there is no evidence that additional information was requested from Saylor during the Risk Manager’s investigation. The parties generally agree the Risk Manager denied Saylor’s tort claims in a series of letters dated June 15, 2017. Those denial letters indicated that upon investigating the claims, “it was determined that there is no evidence of staff misconduct or negligence.” Complaint and Motion for Summary Judgment On June 16, 2017, Saylor filed a complaint in district court against the State of Nebraska, DCS, and 10 unnamed DCS employees (the State). He thereafter filed an amended - 152 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147
complaint, styled as 16 separate causes of action, each one premised on a tort claim previously submitted to and denied by the Risk Manager. The State moved to dismiss the amended complaint for failure to state a claim. 12 The parties stipulated to the receipt of evidence and agreed the motion should be treated as one for summary judgment. 13 The State’s sole argument for summary judgment was that Saylor failed to satisfy the claim presentment provi- sions of § 81-8,212 with respect to his claimed damages. The State asserted, summarized, that § 81-8,212 requires all tort claims to be filed “in the manner prescribed by the State Claims Board” and that regulations adopted by the State Claims Board 14 require all claims to “contain all information called for” on the claim form. 15 The State argued that Saylor’s claims did not “contain all information called for” on the form because he did not specify a dollar amount in field No. 9. In remarks to the court, the State suggested there were other pos- sible deficiencies in Saylor’s tort claims, but in the interest of time, it had elected to seek dismissal only on the basis that no dollar amount was specified in field No. 9. The district court limited its analysis accordingly. District Court Order The district court agreed with the State that by not specify- ing a dollar amount in field No. 9, Saylor had not filed his claim in the manner prescribed by the State Claims Board, and that therefore, he had not complied with § 81-8,212. The court expressly rejected Saylor’s assertion that the State waived its right to contest compliance with the claims procedure under § 81-8,212 by accepting his claim forms, sending him letters acknowledging receipt and assigning claims numbers, and then denying the claims on their merits. 12 See Neb. Ct. R. Pldg. § 6-1112(b)(6). 13 § 6-1112(b). 14 See § 81-8,221. 15 Neb. Admin. Code, State Claims Board, rule No. 12 (1975). - 153 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147
The district court granted the State’s motion for summary judgment and dismissed Saylor’s amended complaint with prejudice. Saylor timely appealed, and we moved the case to our docket on our own motion.
ASSIGNMENTS OF ERROR Saylor assigns, restated, that the district court erred in grant- ing the State’s motion for summary judgment because (1) Saylor’s tort claim forms provided the requested information and substantially complied with the presuit requirements of the STCA and (2) the State waived any challenge to compliance with requested information on the tort claim forms.
STANDARD OF REVIEW [1,2] An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. 16 In reviewing a summary judgment, an appel- late court views the evidence in the light most favorable to the party against whom the judgment was granted and gives that party the benefit of all reasonable inferences deducible from the evidence. 17 [3] Where the relevant facts are undisputed, whether the notice requirements of the STCA or the PSTCA have been sat- isfied is a question of law, on which an appellate court reaches a conclusion independent of the lower court’s ruling. 18 [4] Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an 16 JB & Assocs. v. Nebraska Cancer Coalition, 303 Neb. 855, 932 N.W.2d 71 (2019). 17 Id. 18 Estate of McElwee v. Omaha Transit Auth., 266 Neb. 317, 664 N.W.2d 461 (2003). - 154 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147
independent conclusion irrespective of the decision made by the court below. 19 ANALYSIS The sole issue on appeal is whether the district court erred in dismissing Saylor’s STCA action for failure to comply with the presuit claim presentment requirement of § 81-8,212. As stated, that statute requires, in relevant part, that “[a]ll tort claims shall be filed with the Risk Manager in the manner pre- scribed by the State Claims Board.” 20 The State Claims Board has adopted rules and regulations that prescribe not only the manner of filing a tort claim, but also the form and content of such claims. Assuming without deciding that the statutory authority to prescribe the “manner” of filing tort claims with the Risk Manager includes prescrib- ing the form and content of such claims, we summarize, in the next section, the pertinent regulations adopted by the State Claims Board. [5] A certified copy of those regulations was received into evidence at the summary judgment hearing. It showed the regulations were adopted in 1975 and have not been amended since that time. It also showed the regulations have been signed and approved by the Governor and the Attorney General, as well as filed with the Secretary of State. We have held that agency regulations that are properly adopted and filed with the Secretary of State have the effect of statutory law. 21 State Claims Board Rules and Regulations Regarding the manner of filing a tort claim, the regulations require it “shall be filed in triplicate with the Secretary of the Board, State Capitol Building, State House Station, Lincoln, 19 JB & Assocs., supra note 16. 20 § 81-8,212 (emphasis supplied). 21 Val-Pak of Omaha v. Department of Revenue, 249 Neb. 776, 545 N.W.2d 447 (1996). - 155 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147
Nebraska, 68509.” 22 Regarding the form of filing a tort claim, the regulations require that it “should be typewritten and upon a form provided by the Board, but claims printed by hand upon the Board’s form will be accepted if legible.” 23 And regarding the content of a tort claim, the regulations require that “[a]ll claims shall contain all information called for on the Board’s ‘Claim for Injury or Damage’ form, including the instructions printed on the back of the blue sheet of the form set, and also such other information as is pertinent to the claim.” 24 Also received into evidence was a certified copy of a docu- ment titled “Standard Operating Procedures: How to File a Tort Claim Against the State of Nebraska.” According to the certificate, these operating procedures are available online and were created by the State’s risk management division of the Department of Administrative Services. Unlike properly adopted administrative regulations, an agency’s operating pro- cedures do not have the force and effect of law. 25 As relevant to the issues on appeal, the Risk Manager’s operating procedures contain instructions regarding which form to use when filing a tort claim, how to complete the form, and how to file the form once completed. These instruc- tions differ from the State Claims Board’s regulations in several key respects. Specifically, the Risk Manager’s instruc- tions do not reference the “Claim for Injury or Damage” form required by the regulations, and instead, they direct that a “Tort & Miscellaneous Claim Form” be completed. The Risk Manager’s instructions do not direct that the claim form be filed in triplicate with the secretary of the State 22 Neb. Admin Code, State Claims Board, rule No. 6 (1975). 23 Neb. Admin Code, State Claims Board, rule No. 7 (1975). 24 Rule No. 12, supra note 15. 25 See, e.g., Reed v. State, 272 Neb. 8, 717 N.W.2d 899 (2006) (in contrast to agency regulations, agency manuals and guidelines lack force of law and do not warrant deference). - 156 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147
Claims Board as required by the regulations, but instead, they direct that the form should be submitted electronically to “as.riskmanagement@nebraska.gov” or mailed to the “Office of Risk Management” at a specific post office box in Lincoln. The Risk Manager’s operating procedures also provide that “[o]nly fully completed and signed Tort Claim Forms will be accepted by the office of Risk Management.” It is undis- puted that all of Saylor’s tort claims were accepted by the Risk Manager and that all were presented using the “Tort & Miscellaneous Claim Form.”
Arguments of Parties After Saylor commenced his tort action in district court, the State sought dismissal based on a single affirmative defense: that Saylor’s presuit tort claims were deficient because when he answered field No. 9, asking for the “Total Amount of Claim,” he did not provide a dollar amount, and instead stated “[t]o be proven.” The State contends that because the answer to field No. 9 did not reference a dollar amount, the forms did not “contain all information called for,” 26 and that thus, the claims were not filed “in the manner prescribed by the State Claims Board” as required by § 81-8,212. The State also asserts, as it did before the trial court, that the substantial com- pliance doctrine which this court has applied when reviewing the content of presuit claims under the PSTCA 27 should not be applied under the STCA. The State argues, summarized, that the substantial compliance doctrine is inconsistent with the principle that “requirements of the [STCA] must be fol- lowed strictly.” 28 26 Rule No. 12, supra note 15. 27 See, e.g., Jessen, supra note 9; West Omaha Inv. v. S.I.D. No. 48, 227 Neb. 785, 420 N.W.2d 291 (1988); Chicago Lumber Co., supra note 10. 28 See Jill B. & Travis B. v. State, 297 Neb. 57, 69, 899 N.W.2d 241, 252 (2017). - 157 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147
Saylor contends that even though his answer to field No. 9 was not stated in dollars, he nevertheless provided “all infor- mation called for” 29 on the standard form, and that he thus substantially complied with the provisions of § 81-8,212. He also argues it was impossible for him to strictly comply with the “manner prescribed by the State Claims Board” for fil- ing claims, pursuant to § 81-8,212, because the State Claims Board’s rules and regulations are outdated and inconsistent with the information and instructions on the only claim form currently made available for filing tort claims—the “Tort & Miscellaneous Claim Form.”
Substantial Compliance Doctrine Under PSTCA [6] In cases under the PSTCA, we have long applied the substantial compliance doctrine when deciding whether the content of a claim satisfied the statutory presuit claim present- ment requirements. 30 Section 13-905 sets out the PSTCA’s pre- suit claim presentment requirements, and it is the counterpart to § 81-8,212 under the STCA. Section 13-905 requires that “[a]ll [tort] claims shall be in writing and shall set forth the time and place of the occur- rence giving rise to the claim and such other facts pertinent to the claim as are known to the claimant.” We pause here to observe that when the Legislature prescribed the content of presuit claims under the PSTCA, it identified some require- ments that are specific and objective (like the time and place of the occurrence) and some which are nonspecific and subjec- tive (like “other facts pertinent to the claim as are known to the claimant”). The challenge of determining compliance with similar presuit notice requirements that predated the PSTCA 29 Rule No. 12, supra note 15. 30 See, e.g., Jessen, supra note 9; West Omaha Inv., supra note 27; Chicago Lumber Co., supra note 10. - 158 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147
led this court, more than a century ago, to adopt the substantial compliance doctrine. In City of Lincoln v. Pirner, 31 we applied the substantial compliance doctrine to a statute requiring that before a tort action could be commenced against the city, “‘it shall be nec- essary that the party file in the office of the city clerk, within three months from the time such right of action accrued, a statement giving full name and the time, place, nature, cir- cumstances and cause of the injury or damage complained of.’” In that case, the plaintiff’s written claim stated that he fell into a “coal-hole” in a city sidewalk, but it incorrectly identified the block number. 32 We rejected the city’s argument that this claim was deficient, reasoning that the presuit notice requirement “should be liberally construed by the courts” and that “if the description given and the inquiries suggested by it will enable the agents and servants of the city to find the place where the accident occurred, there is a substantial compliance with the law.” 33 In Chicago Lumber Co. v. School Dist. No. 71, 34 we addressed whether a letter complied with the presuit claim presentment requirements of the PSTCA. At the time, those requirements were codified at Neb. Rev. Stat. § 23-2404 (Reissue 1983) and provided, as § 13-905 does now, that a claim must “set forth the time and place of the occurrence giving rise to the claim and such other facts pertinent to the claim as are known to the claimant.” The claim letter at issue did not reference a particular time or place, but it complained that the plaintiff had provided the school district with building materials and supplies in connec- tion with a recent project to renovate a specific school. The 31 City of Lincoln v. Pirner, 59 Neb. 634, 639-40, 81 N.W. 846, 847 (1900) (quoting Comp. Stat. ch. 13a, § 36 (1899)). 32 Pirner, supra note 31, 59 Neb. at 637, 81 N.W. at 846. 33 Id. at 640, 81 N.W. at 847. 34 Chicago Lumber Co., supra note 10. - 159 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147
letter cited to statutes requiring the school district to obtain a construction bond from the contractor. The letter further stated that the district had failed to obtain such a bond in connection with the particular renovation project and that the plaintiff had suffered damages as a result. [7] On appeal, the school district claimed this presuit notice was insufficient under the PSTCA because it did not state with precision the time and location of the occurrence giving rise to the claim. 35 We disagreed, reasoning that the language of § 23-2404 did not require a claimant to “state the indicated information, circumstances, or facts with the full- ness or precision required in a pleading.” 36 We explained “the notice requirements for a claim filed pursuant to the [PSTCA] are [to be] liberally construed so that one with a meritorious claim may not be denied relief as the result of some techni- cal noncompliance with the formal prescriptions of the act.” 37 And we said that “substantial compliance with the statutory provisions pertaining to a claim’s content supplies the requi- site and sufficient notice to a political subdivision in accord ance with [the PSTCA], when the lack of compliance has caused no prejudice to the political subdivision.” 38 Because the claim letter identified the contractor to whom the plaintiff had delivered the supplies and identified the particular school renovation project at issue, we found the content of the claim substantially complied with the time and place requirements under the PSTCA. In West Omaha Inv. v. S.I.D. No. 48, 39 we again addressed whether the content of a letter complied with the presuit pre- sentment requirements of the PSTCA. In a letter to the political 35 Id. 36 Id. at 368, 417 N.W.2d at 765. 37 Id. at 369, 417 N.W.2d at 766. 38 Id. (emphasis supplied). 39 West Omaha Inv., supra note 27. - 160 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147
subdivision, the plaintiff claimed fire damage to specific prop- erty on a specific date and alleged that a contributing cause of the fire damage was the defendant’s negligence in failing to furnish water with which to extinguish the fire. The political subdivision argued this claim was insufficient because it did not specify a dollar amount of damage. We held the contents of the letter were sufficient, noting in part that the statutory language did not “mandate that the claim contain the amount of damages or loss.” 40 We also reasoned that the letter substan- tially complied with the statute because it set forth the date, location, and circumstances of the event giving rise to the claim and alleged that property loss had occurred as a result of the political subdivision’s negligence. As these cases illustrate, we have long applied the sub- stantial compliance doctrine when the question presented was whether the content of a presuit tort claim satisfied the statute and supplied the political subdivision with sufficient notice to enable it to accomplish the primary goals of the presuit claim presentment requirements under the PSTCA and similar statutes. 41 But as other cases illustrate, we have declined to apply the substantial compliance doctrine when the question presented did not involve compliance with content- based requirements. We have refused to apply the substantial compliance doc- trine when the presuit claim was not filed with the statutorily authorized recipient, 42 reasoning that notice to the wrong recipient may deprive a political subdivision of the opportunity 40 Id., 227 Neb. at 790, 420 N.W.2d at 295. Compare Jessen, supra note 9 (holding presuit presentment requirements of PSTCA not substantially met because claim did not make any demand). 41 Accord, Loontjer v. Robinson, 266 Neb. 902, 914, 670 N.W.2d 301, 310 (2003) (Hendry, C.J., concurring) (“‘[s]ubstantial compliance with a statute is not shown unless it is made to appear that the purpose of the statute is shown to have been served. What constitutes substantial compliance with a statute is a matter depending on the facts of each particular case’”). 42 See, e.g., Estate of McElwee, supra note 18; Willis v. City of Lincoln, 232 Neb. 533, 441 N.W.2d 846 (1989). - 161 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147
to investigate and settle claims and thus must be given to a person or entity specified in the statute. 43 Similarly, we have refused to apply the substantial compliance doctrine to presuit claims that did not comply with the statutory time limits under the PSTCA, reasoning that, unlike the general requirements regulating the content of presuit claims, the time limits are specific and can be determined with precision. 44 And finally, we have refused to apply the substantial compliance doctrine when the content of the purported claim was so indefinite or contingent in nature it could not fairly be characterized as pre- senting a tort claim at all. 45
Substantial Compliance Doctrine and STCA [8] We have not yet had occasion to consider the propriety of applying the substantial compliance doctrine to the content of a presuit claim under the STCA. Generally, provisions of the STCA should be construed in harmony with similar provisions under the PSTCA. 46 We have expressly recognized the simi- larity of the presuit content claim presentment requirements under § 81-8,212 of the STCA and § 13-905 of the PSTCA, 47 and as discussed already, we have consistently applied the substantial compliance doctrine to the content of such claims under the PSTCA. The State concedes the substantial compliance doctrine has been applied for decades to similar presuit claims under the 43 Willis, supra note 42. 44 See, Big Crow, supra note 9; Schoemaker v. Metro. Utilities Dist., 245 Neb. 967, 515 N.W.2d 675 (1994). 45 See, e.g., Jessen, supra note 9 (letter to physician accusing malpractice but not making any demand is not written tort claim under § 13-905); Peterson v. Gering Irr. Dist., 219 Neb. 281, 363 N.W.2d 145 (1985) (letter to irrigation district that made no actual demand but merely alerted district to possible claim for damages that may occur is not claim). 46 Cole, supra note 7. 47 See id. - 162 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147
PSTCA, but it asks us to find the doctrine is incompatible with the STCA. As support for this argument, the State relies exclusively on the principle, articulated in Jill B. & Travis B. v. State, 48 that “because the State has given only conditional consent to be sued and there is no absolute waiver of immu- nity by the State, requirements of the [STCA] must be fol- lowed strictly.” The State argues this principle is incompatible with the doctrine of substantial compliance. We agree that strictly following the requirements of the STCA, and any statute that purports to waive the sovereign immunity of the state or a political subdivision, 49 is a foun- dational principle in our sovereign immunity jurisprudence. But as we explain, we are not persuaded that this principle is offended by applying the substantial compliance doctrine to the content of presuit claims under either the PSTCA or the STCA. The principle from Jill B. & Travis B. on which the State relies was not being applied to the content of presuit claims. Instead, in Jill B & Travis B., we were considering the applicability of exceptions to the State’s waiver of sovereign immunity for tort claims arising out of misrepresentation and deceit. 50 In that context, we emphasized the importance of strictly construing statutes that are in derogation of sovereign immunity. 51 The presuit claim procedures under the PSTCA and the STCA are not statutes in derogation of sovereign immunity, but, rather, they are administrative in nature, intended to give the government notice of a recent tort claim so it can investi- gate and, if appropriate, resolve the claim before suit is com- menced. 52 Unlike statutes in derogation of sovereign immunity, 48 Jill B. & Travis B., supra note 28, 297 Neb. at 69, 899 N.W.2d at 251-52. 49 Rutledge v. City of Kimball, 304 Neb. 593, 935 N.W.2d 746 (2019). 50 See § 81-8,219(4). 51 Jill B. & Travis B., supra note 28. 52 See, e.g., Cole, supra note 7; Chicago Lumber Co., supra note 10. - 163 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147
the presuit claim procedures do not identify the particular tort claims for which the State has conditionally waived its sov- ereign immunity and consented to suit, 53 nor do they identify the tort claims the State has exempted from that waiver. 54 Instead, the presuit claim presentment requirements are proce- dural conditions precedent to commencing a tort action against the government in district court; they are not jurisdictional. 55 We see no incompatibility between our precedent that rules of strict construction must be applied to statutes in derogation of sovereign immunity and our precedent that the doctrine of substantial compliance may be applied to statutes governing the content of presuit notice requirements. 56 Indeed, given how some of the content requirements are described in the statutes and regulations, it is difficult to imagine how strict compliance could be utilized by courts if we were to require it. Applying the substantial compliance doctrine to the general content provisions under the PSTCA was, in some respects, a practical necessity because there was no principled way for a court to determine whether a claimant had strictly complied with the general requirement in § 13-905 that a claim include “such other facts pertinent to the claim as are known to the claimant.” Similarly, under the STCA, we question how a court would go about determining whether a claimant has strictly complied with the State Claims Board’s regulation requiring that a claim include “such other information as is pertinent to the claim.” 57 But as our cases make clear, our application of the substan- tial compliance doctrine has been limited to a claim’s content, 53 See, e.g., §§ 81-8,215 and 81-8,215.01. 54 See, e.g., § 81-8,219. 55 See Cole, supra note 7. 56 Accord Franklin v. City of Omaha, 230 Neb. 598, 432 N.W.2d 808 (1988) (acknowledging some states apply strict construction to all presuit claim requirements under their tort claims acts, but Nebraska does not). 57 Rule No. 12, supra note 15. - 164 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147
and the doctrine is not applied to all of the presuit notice requirements. We still apply rules of strict construction when considering whether a presuit tort claim has complied with statutory timing requirements 58 and whether it has been served on the recipient described in the statute. 59 We therefore disagree with the State that applying the sub- stantial compliance doctrine when analyzing the content of presuit tort claims under the PSTCA and the STCA is incon- sistent with the well-settled principle that statutes in derogation of sovereign immunity must be strictly construed or with the principle that the “requirements of the [STCA] must be fol- lowed strictly.” 60 [9-11] We hold that when a question is raised about whether the content of a presuit tort claim complied with the manner in which the State Claims Board prescribed such claims to be filed, the substantial compliance doctrine may be applied under the STCA, just as it is applied under the PSTCA. And, consistent with what we have done under the PSTCA, the doctrine is limited to the content of the presuit claim and does not apply when such a claim is not filed with the statutorily authorized recipient 61 or when it is not filed in compliance with the statutory time limits. 62 Furthermore, application of the doctrine of substantial compliance under both the PSTCA and the STCA is confined to situations where the content of the presuit claim nevertheless satisfied the primary purpose of the presuit notice requirements by notifying the state or politi- cal subdivision about possible tort liability for a recent act or 58 Big Crow, supra note 9; Schoemaker, supra note 44. See, also, State v. Saylor, 304 Neb. 779, 936 N.W.2d 924 (2020) (strictly construing STCA statute of limitation provisions). 59 Estate of McElwee, supra note 18; Willis, supra note 42. 60 Jill B. & Travis B., supra note 28, 297 Neb. at 69, 899 N.W.2d at 252. 61 See, e.g., Estate of McElwee, supra note 18; Willis, supra note 42. 62 See, e.g., Big Crow, supra note 9; Schoemaker, supra note 44. - 165 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147
omission so it may investigate and make a decision whether to pay or defend the claim. 63 Having concluded the substantial compliance doctrine can apply to the content of claims under the STCA, we proceed to analyze whether Saylor’s claim was properly dismissed for failing to comply with the presuit presentment requirements under the STCA. Content of Saylor’s Claim Forms Substantially Complied As noted, the State argues that on all 16 of Saylor’s claim forms, his response to field No. 9 was insufficient in that it did not reference a dollar amount. Saylor responds that even though his answers were not stated in dollars, they neverthe- less contained “all information called for” 64 on the standard form, and thus, they substantially complied with the provisions of § 81-8,212. Saylor also contends that on the record in this case, he could not have strictly complied with all the require- ments of the State Claims Board. We agree with Saylor that, in this case, there was no way he could have strictly complied with the “manner pre- scribed by the State Claims Board” 65 for filing his tort claims. This is so for at least two reasons. First, the specific claim form required by the regulations—the Board’s form entitled “Claim for Injury or Damage”—is not the same form currently being used by the Risk Manager—the “Tort & Miscellaneous Claim Form.” Consequently, there was no way the content of Saylor’s claims could have strictly complied with the regula- tion’s requirement that it “contain all information called for on the Board’s ‘Claim for Injury or Damage’ form.” 66 Second, the requirement under the regulations that the completed 63 See, Cole, supra note 7; Chicago Lumber Co., supra note 10. 64 Rule No. 12, supra note 15. 65 § 81-8,212. 66 Rule No. 12, supra note 15. - 166 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147
claim form be filed in triplicate with the secretary of the State Claims Board is not the same filing method as is required under either § 81-8,212 (which requires filing the claim “with the Risk Manager”) or under the Risk Manager’s standard operat- ing procedures (which asks that the form be either emailed or mailed to the Risk Manager). Consequently, although Saylor filed his claims with the statutorily authorized recipient, there was no way he could have strictly complied with the statutory requirement that he do so “in the manner prescribed by the State Claims Board.” 67 The State’s briefing ignored the dis- parity between the Board’s adopted regulations and the Risk Manager’s standard operating procedures, but we agree with Saylor that, as a practical matter, this disparity prevents strict compliance with the statutory and regulatory requirements concerning the manner of filing a tort claim. The question then is whether the content of Saylor’s tort claims substantially complied with the requirements of § 81-8,212 and its related regulations prescribing the manner of filing such claims. We conclude that as to the challenged content, Saylor’s tort claims did substantially comply with the requirements of § 81-8,212 and afforded the State sufficient notice to satisfy the purpose of the presuit claim presentment requirement. 68 The State challenges the sufficiency of Saylor’s responses to only field No. 9 on the claim forms, which asks for the “Total Amount of Claim.” The State insists that the term “Amount” in this context necessarily requires the answer to be stated in terms of a dollar amount. But the claim form does not specify that a dollar amount must be provided, and the regulation governing the content of claims does not require that a dollar amount be provided. And to the extent the instructions in the Risk Manager’s operating procedures can fairly be understood to indicate that “Total Amount of 67 § 81-8,212. 68 See Cole, supra note 7. - 167 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147
Claim” should be stated in terms of dollars, those instructions do not have the force and effect of law. On this record, we find Saylor’s answer stating “[t]o be proven” substantially complied with the question asked in field No. 9. That is particularly so where, as here, the tort claims were seeking general damages. The State’s singular focus on the answer to field No. 9 paints an incomplete picture of the State’s knowledge regarding the damages being sought, and it ignores altogether the additional information Saylor provided in the narrative sections of his claim forms, many of which stated that the various acts and omissions of the State caused him physical and emotional pain and suffering. So although it is true that Saylor did not, in either field No. 9 or in his narratives, place a specific dollar amount on his damages, his failure to do so is nevertheless consistent with the nature of his claims and the relief he sought. Saylor’s tort claims were premised on assertions that the State had denied him (1) timely and adequate medical care, (2) the use of his personal property, and (3) access to his attorney. His claims generally stated that this conduct caused him physical and emotional pain and suffering. In light of the nature of Saylor’s claims, his answer that the total amount of his claim was “[t]o be proven” was entirely consistent with how we treat allegations of general damages. 69 It would be an odd result if we were to demand more specificity regarding general damages in a presuit tort claim than is required in the complaint once litigation is commenced. Finally, we do not doubt the State’s assertion that know- ing the specific dollar amount of a tort claim can make “a significant difference in terms of how the claim is processed and at what level.” 70 But given the nature of his claims and the 69 See, e.g., Neb. Ct. R. Pldg. § 6-1108(a) (“[i]f the recovery of money be demanded, the amount of special damages shall be stated but the amount of general damages shall not be stated . . .”). 70 Brief for appellee at 6. - 168 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147
damages he seeks, we cannot find that Saylor’s answer to field No. 9 caused the State any prejudice regarding its ability to investigate his claims or decide whether to settle them before litigation commenced. Indeed, the State’s frank admission during oral argument that it would have sufficed for Saylor to write any amount in field No. 9, even an “exorbitant” amount such as “$20 million,” belies its argument that a particular dollar amount was essential to the proper investigation and processing of his claims. Although the Risk Manager certainly has the prerogative to refuse to accept a tort claim form on the basis that it does not contain all of the information called for, that is not what happened here. On this record, we reject the State’s contention that Saylor’s presuit tort claims were deficient because they did not state a specific dollar amount being sought as damages and that therefore, they were not filed “in the manner prescribed by the State Claims Board” as required by § 81-8,212. We instead find, as a matter of law, that the content of Saylor’s presuit tort claims in regard to damages substantially complied with the presuit notice provisions of § 81-8,212. Given this disposition, we do not reach Saylor’s argument that the State waived his failure to comply with § 81-8,212 by accepting the forms when submitted. CONCLUSION Because the content of Saylor’s tort claims substantially complied with the requirements of § 81-8,212, the district court erred in granting summary judgment in favor of the State and dismissing his action. We therefore reverse the judg- ment in favor of the State and remand the matter for further proceedings. Reversed and remanded for further proceedings. Heavican, C.J., and Papik and Freudenberg, JJ., not participating. | 08-28-2020 | [
"Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/28/2020 08:08 AM CDT - 147 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 James Saylor, appellant, v. State of Nebraska et al., appellees. ___ N.W.2d ___ Filed June 19, 2020. No. S-18-794. 1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admit- ted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. 2. ____: ____. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted and gives that party the benefit of all reasonable inferences deducible from the evidence. 3.",
"Tort Claims Act: Political Subdivisions Tort Claims Act: Appeal and Error. Where the relevant facts are undisputed, whether the notice requirements of the State Tort Claims Act or the Political Subdivisions Tort Claims Act have been satisfied is a question of law, on which an appellate court reaches a conclusion independent of the lower court’s ruling. 4. Statutes: Appeal and Error. Statutory interpretation presents a ques- tion of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. 5. Administrative Law. Agency regulations that are properly adopted and filed with the Secretary of State have the effect of statutory law. 6. Political Subdivisions Tort Claims Act: Notice. In cases under the Political Subdivisions Tort Claims Act, the substantial compliance doc- trine applies when deciding whether the content of a claim satisfies the presuit claim presentment requirements in Neb. Rev. Stat.",
"§ 13-905 (Reissue 2012). 7. ____: ____. Substantial compliance with the statutory provisions per- taining to a claim’s content supplies the requisite and sufficient notice - 148 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 to a political subdivision in accordance with the Political Subdivisions Tort Claims Act when the lack of compliance has caused no prejudice to the political subdivision. 8. Tort Claims Act: Political Subdivisions Tort Claims Act. Generally, provisions of the State Tort Claims Act should be construed in har- mony with similar provisions under the Political Subdivisions Tort Claims Act. 9.",
"____: ____. Under the State Tort Claims Act, when a question is raised about whether the content of a presuit tort claim complied with the man- ner in which the State Claims Board prescribed such claims to be filed, the substantial compliance doctrine may be applied, just as it is applied under the Political Subdivisions Tort Claims Act. 10. ____: ____. Under both the State Tort Claims Act and the Political Subdivisions Tort Claims Act, application of the substantial compliance doctrine is limited to the content of a presuit claim. The doctrine of sub- stantial compliance does not apply when considering whether a presuit tort claim has complied with statutory timing requirements or whether it has been served on the recipient described in the statute. 11. Tort Claims Act: Political Subdivisions Tort Claims Act: Notice. Under both the State Tort Claims Act and the Political Subdivisions Tort Claims Act, application of the doctrine of substantial compliance is confined to situations where the content of the tort claim nevertheless satisfies the primary purpose of the presuit notice requirements by noti- fying the state or political subdivision about possible tort liability for a recent act or omission so it may investigate and make a decision whether to pay or defend the claim.",
"Appeal from the District Court for Lancaster County: Robert R. Otte, Judge. Reversed and remanded for further proceedings. Michael J. Wilson, of Berry Law Firm, for appellant. Douglas J. Peterson, Attorney General, Scott R. Straus, and, on brief, David A. Lopez, Deputy Solicitor General, for appel- lee State of Nebraska. Miller-Lerman, Cassel, Stacy, and Funke, JJ. Stacy, J. James Saylor, an inmate at the Nebraska Department of Correctional Services (DCS), appeals from an order dismissing - 149 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb.",
"147 his lawsuit under the Nebraska State Tort Claims Act (STCA), 1 based on a finding that Saylor failed to comply with the pre- suit filing requirements of the STCA. 2 Because we find Saylor substantially complied with those requirements, we reverse, and remand for further proceedings. BACKGROUND Tort claims against the State are governed by the STCA. 3 This case requires us to focus on the presuit administrative requirements of the STCA. Before suit can be commenced under the STCA, a claimant must present the claim in writing to the Risk Manager for the State Claims Board within 2 years after the claim accrued.",
"4 Pursuant to § 81-8,212, such claim “shall be filed with the Risk Manager in the manner prescribed by the State Claims Board.” Generally speaking, a claimant cannot file suit under the STCA until the Risk Manager or State Claims Board makes a final disposition of the claim. 5 However, if no final disposition of a claim has been made after 6 months, § 81-8,213 authorizes the claimant to withdraw the claim and commence an action under the STCA. 6 We have described the presuit claim presentment require- ment in § 81-8,212 and the final disposition requirement in § 81-8,213 as procedural conditions precedent to commenc- ing a tort action against the State in district court, and not as jurisdictional prerequisites for the adjudication of a tort claim against the State. 7 Noncompliance with these procedural 1 Neb.",
"Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014 & Cum. Supp. 2018). 2 See § 81-8,212. 3 Komar v. State, 299 Neb. 301, 908 N.W.2d 610 (2018). 4 See, § 81-8,227(1); Komar, supra note 3. 5 § 81-8,213; Komar, supra note 3. 6 Komar, supra note 3. 7 See Cole v. Isherwood, 264 Neb. 985, 653 N.W.2d 821 (2002) (superseded by rule on other grounds as stated in Weeder v. Central Comm. College, 269 Neb. 114, 691 N.W.2d 508 (2005)). - 150 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 conditions precedent is considered an affirmative defense to be raised by the State. 8 We apply the same rules to the presuit claim presentment and final disposition procedures under the Political Subdivisions Tort Claims Act (PSTCA). 9 Under both the STCA and the PSTCA, the primary purpose of the presuit claim presentment procedures is the same: to notify the state or political subdivision about possible tort liability for a recent act or omission, to provide an opportunity to investigate the allegedly tortious conduct, and to enable the state or politi- cal subdivision to make a decision whether to pay or defend the claim. 10 Saylor Files Tort Claims With Risk Manager Between June 12, 2016, and February 23, 2017, Saylor filed 16 separate tort claims with the Risk Manager. 11 Pursuant to § 81-8,212 of the STCA, these claims had to “be filed with the Risk Manager in the manner prescribed by the State Claims Board.” Saylor filed all 16 of his claims using the standard form provided by the Risk Manager.",
"Each claim form con- tained 18 fields requesting information regarding the claim. Some fields were marked with an asterisk indicating it was a “required” field. Further, each form contained a blank area with the following instructions: Provide detailed itemization of all known facts/ circumstances/damages leading to your claim. Identify all property, places, and people involved. Include names, 8 Id. 9 Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2012 & Cum. Supp. 2018). See, e.g., Geddes v. York County, 273 Neb. 271, 729 N.W.2d 661 (2007); Big Crow v. City of Rushville, 266 Neb. 750, 669 N.W.2d 63 (2003); Jessen v. Malhotra, 266 Neb. 393, 665 N.W.2d 586 (2003); Millman v. County of Butler, 235 Neb. 915, 458 N.W.2d 207 (1990) (superseded by rule on other grounds as stated in Weeder, supra note 7).",
"10 See, Cole, supra note 7; Chicago Lumber Co. v. School Dist. No. 71, 227 Neb. 355, 417 N.W.2d 757 (1988). 11 See § 81-8,212. - 151 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 addresses and phone numbers of witnesses, if any. The information provided herein, along with the findings of the investigating agency, will form the basis of any decision.",
"In this section, most of Saylor’s claim forms described instances in which he claimed the actions of DCS or its employees either denied him timely medical care, aggravated his existing post-traumatic stress disorder, or deprived him of the use of devices that eased his pain. In a few claim forms, Saylor alleged DCS staff deprived him of the use of certain legal materials in his possession or interfered with his ability to meet with his attorney. Saylor generally stated that all these things caused him physical and emotional pain and suffering. On each form, Saylor provided information in all required fields.",
"One of the required fields, field No. 9, was titled “Total Amount of Claim.” When completing field No. 9 on each claim form, Saylor wrote “[t]o be proven” without specifying a dollar amount. The Risk Manager, in a series of letters, acknowledged receiving all of Saylor’s claims. Those letters notified Saylor of the claim numbers assigned to his claims and advised it may take up to 6 months to receive final disposition. None of the letters indicated the claim forms were incomplete, and there is no evidence that additional information was requested from Saylor during the Risk Manager’s investigation.",
"The parties generally agree the Risk Manager denied Saylor’s tort claims in a series of letters dated June 15, 2017. Those denial letters indicated that upon investigating the claims, “it was determined that there is no evidence of staff misconduct or negligence.” Complaint and Motion for Summary Judgment On June 16, 2017, Saylor filed a complaint in district court against the State of Nebraska, DCS, and 10 unnamed DCS employees (the State). He thereafter filed an amended - 152 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 complaint, styled as 16 separate causes of action, each one premised on a tort claim previously submitted to and denied by the Risk Manager.",
"The State moved to dismiss the amended complaint for failure to state a claim. 12 The parties stipulated to the receipt of evidence and agreed the motion should be treated as one for summary judgment. 13 The State’s sole argument for summary judgment was that Saylor failed to satisfy the claim presentment provi- sions of § 81-8,212 with respect to his claimed damages. The State asserted, summarized, that § 81-8,212 requires all tort claims to be filed “in the manner prescribed by the State Claims Board” and that regulations adopted by the State Claims Board 14 require all claims to “contain all information called for” on the claim form. 15 The State argued that Saylor’s claims did not “contain all information called for” on the form because he did not specify a dollar amount in field No. 9. In remarks to the court, the State suggested there were other pos- sible deficiencies in Saylor’s tort claims, but in the interest of time, it had elected to seek dismissal only on the basis that no dollar amount was specified in field No.",
"9. The district court limited its analysis accordingly. District Court Order The district court agreed with the State that by not specify- ing a dollar amount in field No. 9, Saylor had not filed his claim in the manner prescribed by the State Claims Board, and that therefore, he had not complied with § 81-8,212. The court expressly rejected Saylor’s assertion that the State waived its right to contest compliance with the claims procedure under § 81-8,212 by accepting his claim forms, sending him letters acknowledging receipt and assigning claims numbers, and then denying the claims on their merits.",
"12 See Neb. Ct. R. Pldg. § 6-1112(b)(6). 13 § 6-1112(b). 14 See § 81-8,221. 15 Neb. Admin. Code, State Claims Board, rule No. 12 (1975). - 153 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 The district court granted the State’s motion for summary judgment and dismissed Saylor’s amended complaint with prejudice. Saylor timely appealed, and we moved the case to our docket on our own motion. ASSIGNMENTS OF ERROR Saylor assigns, restated, that the district court erred in grant- ing the State’s motion for summary judgment because (1) Saylor’s tort claim forms provided the requested information and substantially complied with the presuit requirements of the STCA and (2) the State waived any challenge to compliance with requested information on the tort claim forms. STANDARD OF REVIEW [1,2] An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.",
"16 In reviewing a summary judgment, an appel- late court views the evidence in the light most favorable to the party against whom the judgment was granted and gives that party the benefit of all reasonable inferences deducible from the evidence. 17 [3] Where the relevant facts are undisputed, whether the notice requirements of the STCA or the PSTCA have been sat- isfied is a question of law, on which an appellate court reaches a conclusion independent of the lower court’s ruling. 18 [4] Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an 16 JB & Assocs.",
"v. Nebraska Cancer Coalition, 303 Neb. 855, 932 N.W.2d 71 (2019). 17 Id. 18 Estate of McElwee v. Omaha Transit Auth., 266 Neb. 317, 664 N.W.2d 461 (2003). - 154 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 independent conclusion irrespective of the decision made by the court below. 19 ANALYSIS The sole issue on appeal is whether the district court erred in dismissing Saylor’s STCA action for failure to comply with the presuit claim presentment requirement of § 81-8,212.",
"As stated, that statute requires, in relevant part, that “[a]ll tort claims shall be filed with the Risk Manager in the manner pre- scribed by the State Claims Board.” 20 The State Claims Board has adopted rules and regulations that prescribe not only the manner of filing a tort claim, but also the form and content of such claims. Assuming without deciding that the statutory authority to prescribe the “manner” of filing tort claims with the Risk Manager includes prescrib- ing the form and content of such claims, we summarize, in the next section, the pertinent regulations adopted by the State Claims Board. [5] A certified copy of those regulations was received into evidence at the summary judgment hearing.",
"It showed the regulations were adopted in 1975 and have not been amended since that time. It also showed the regulations have been signed and approved by the Governor and the Attorney General, as well as filed with the Secretary of State. We have held that agency regulations that are properly adopted and filed with the Secretary of State have the effect of statutory law. 21 State Claims Board Rules and Regulations Regarding the manner of filing a tort claim, the regulations require it “shall be filed in triplicate with the Secretary of the Board, State Capitol Building, State House Station, Lincoln, 19 JB & Assocs., supra note 16. 20 § 81-8,212 (emphasis supplied).",
"21 Val-Pak of Omaha v. Department of Revenue, 249 Neb. 776, 545 N.W.2d 447 (1996). - 155 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 Nebraska, 68509.” 22 Regarding the form of filing a tort claim, the regulations require that it “should be typewritten and upon a form provided by the Board, but claims printed by hand upon the Board’s form will be accepted if legible.” 23 And regarding the content of a tort claim, the regulations require that “[a]ll claims shall contain all information called for on the Board’s ‘Claim for Injury or Damage’ form, including the instructions printed on the back of the blue sheet of the form set, and also such other information as is pertinent to the claim.” 24 Also received into evidence was a certified copy of a docu- ment titled “Standard Operating Procedures: How to File a Tort Claim Against the State of Nebraska.” According to the certificate, these operating procedures are available online and were created by the State’s risk management division of the Department of Administrative Services.",
"Unlike properly adopted administrative regulations, an agency’s operating pro- cedures do not have the force and effect of law. 25 As relevant to the issues on appeal, the Risk Manager’s operating procedures contain instructions regarding which form to use when filing a tort claim, how to complete the form, and how to file the form once completed. These instruc- tions differ from the State Claims Board’s regulations in several key respects. Specifically, the Risk Manager’s instruc- tions do not reference the “Claim for Injury or Damage” form required by the regulations, and instead, they direct that a “Tort & Miscellaneous Claim Form” be completed. The Risk Manager’s instructions do not direct that the claim form be filed in triplicate with the secretary of the State 22 Neb. Admin Code, State Claims Board, rule No. 6 (1975). 23 Neb.",
"Admin Code, State Claims Board, rule No. 7 (1975). 24 Rule No. 12, supra note 15. 25 See, e.g., Reed v. State, 272 Neb. 8, 717 N.W.2d 899 (2006) (in contrast to agency regulations, agency manuals and guidelines lack force of law and do not warrant deference). - 156 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 Claims Board as required by the regulations, but instead, they direct that the form should be submitted electronically to “as.riskmanagement@nebraska.gov” or mailed to the “Office of Risk Management” at a specific post office box in Lincoln. The Risk Manager’s operating procedures also provide that “[o]nly fully completed and signed Tort Claim Forms will be accepted by the office of Risk Management.” It is undis- puted that all of Saylor’s tort claims were accepted by the Risk Manager and that all were presented using the “Tort & Miscellaneous Claim Form.” Arguments of Parties After Saylor commenced his tort action in district court, the State sought dismissal based on a single affirmative defense: that Saylor’s presuit tort claims were deficient because when he answered field No. 9, asking for the “Total Amount of Claim,” he did not provide a dollar amount, and instead stated “[t]o be proven.” The State contends that because the answer to field No.",
"9 did not reference a dollar amount, the forms did not “contain all information called for,” 26 and that thus, the claims were not filed “in the manner prescribed by the State Claims Board” as required by § 81-8,212. The State also asserts, as it did before the trial court, that the substantial com- pliance doctrine which this court has applied when reviewing the content of presuit claims under the PSTCA 27 should not be applied under the STCA. The State argues, summarized, that the substantial compliance doctrine is inconsistent with the principle that “requirements of the [STCA] must be fol- lowed strictly.” 28 26 Rule No. 12, supra note 15. 27 See, e.g., Jessen, supra note 9; West Omaha Inv. v. S.I.D.",
"No. 48, 227 Neb. 785, 420 N.W.2d 291 (1988); Chicago Lumber Co., supra note 10. 28 See Jill B. & Travis B. v. State, 297 Neb. 57, 69, 899 N.W.2d 241, 252 (2017). - 157 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 Saylor contends that even though his answer to field No. 9 was not stated in dollars, he nevertheless provided “all infor- mation called for” 29 on the standard form, and that he thus substantially complied with the provisions of § 81-8,212. He also argues it was impossible for him to strictly comply with the “manner prescribed by the State Claims Board” for fil- ing claims, pursuant to § 81-8,212, because the State Claims Board’s rules and regulations are outdated and inconsistent with the information and instructions on the only claim form currently made available for filing tort claims—the “Tort & Miscellaneous Claim Form.” Substantial Compliance Doctrine Under PSTCA [6] In cases under the PSTCA, we have long applied the substantial compliance doctrine when deciding whether the content of a claim satisfied the statutory presuit claim present- ment requirements. 30 Section 13-905 sets out the PSTCA’s pre- suit claim presentment requirements, and it is the counterpart to § 81-8,212 under the STCA.",
"Section 13-905 requires that “[a]ll [tort] claims shall be in writing and shall set forth the time and place of the occur- rence giving rise to the claim and such other facts pertinent to the claim as are known to the claimant.” We pause here to observe that when the Legislature prescribed the content of presuit claims under the PSTCA, it identified some require- ments that are specific and objective (like the time and place of the occurrence) and some which are nonspecific and subjec- tive (like “other facts pertinent to the claim as are known to the claimant”). The challenge of determining compliance with similar presuit notice requirements that predated the PSTCA 29 Rule No. 12, supra note 15.",
"30 See, e.g., Jessen, supra note 9; West Omaha Inv., supra note 27; Chicago Lumber Co., supra note 10. - 158 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 led this court, more than a century ago, to adopt the substantial compliance doctrine. In City of Lincoln v. Pirner, 31 we applied the substantial compliance doctrine to a statute requiring that before a tort action could be commenced against the city, “‘it shall be nec- essary that the party file in the office of the city clerk, within three months from the time such right of action accrued, a statement giving full name and the time, place, nature, cir- cumstances and cause of the injury or damage complained of.’” In that case, the plaintiff’s written claim stated that he fell into a “coal-hole” in a city sidewalk, but it incorrectly identified the block number.",
"32 We rejected the city’s argument that this claim was deficient, reasoning that the presuit notice requirement “should be liberally construed by the courts” and that “if the description given and the inquiries suggested by it will enable the agents and servants of the city to find the place where the accident occurred, there is a substantial compliance with the law.” 33 In Chicago Lumber Co. v. School Dist. No. 71, 34 we addressed whether a letter complied with the presuit claim presentment requirements of the PSTCA.",
"At the time, those requirements were codified at Neb. Rev. Stat. § 23-2404 (Reissue 1983) and provided, as § 13-905 does now, that a claim must “set forth the time and place of the occurrence giving rise to the claim and such other facts pertinent to the claim as are known to the claimant.” The claim letter at issue did not reference a particular time or place, but it complained that the plaintiff had provided the school district with building materials and supplies in connec- tion with a recent project to renovate a specific school. The 31 City of Lincoln v. Pirner, 59 Neb. 634, 639-40, 81 N.W. 846, 847 (1900) (quoting Comp. Stat. ch. 13a, § 36 (1899)). 32 Pirner, supra note 31, 59 Neb. at 637, 81 N.W. at 846. 33 Id.",
"at 640, 81 N.W. at 847. 34 Chicago Lumber Co., supra note 10. - 159 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 letter cited to statutes requiring the school district to obtain a construction bond from the contractor. The letter further stated that the district had failed to obtain such a bond in connection with the particular renovation project and that the plaintiff had suffered damages as a result. [7] On appeal, the school district claimed this presuit notice was insufficient under the PSTCA because it did not state with precision the time and location of the occurrence giving rise to the claim. 35 We disagreed, reasoning that the language of § 23-2404 did not require a claimant to “state the indicated information, circumstances, or facts with the full- ness or precision required in a pleading.” 36 We explained “the notice requirements for a claim filed pursuant to the [PSTCA] are [to be] liberally construed so that one with a meritorious claim may not be denied relief as the result of some techni- cal noncompliance with the formal prescriptions of the act.” 37 And we said that “substantial compliance with the statutory provisions pertaining to a claim’s content supplies the requi- site and sufficient notice to a political subdivision in accord ance with [the PSTCA], when the lack of compliance has caused no prejudice to the political subdivision.” 38 Because the claim letter identified the contractor to whom the plaintiff had delivered the supplies and identified the particular school renovation project at issue, we found the content of the claim substantially complied with the time and place requirements under the PSTCA.",
"In West Omaha Inv. v. S.I.D. No. 48, 39 we again addressed whether the content of a letter complied with the presuit pre- sentment requirements of the PSTCA. In a letter to the political 35 Id. 36 Id. at 368, 417 N.W.2d at 765. 37 Id. at 369, 417 N.W.2d at 766. 38 Id. (emphasis supplied). 39 West Omaha Inv., supra note 27. - 160 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 subdivision, the plaintiff claimed fire damage to specific prop- erty on a specific date and alleged that a contributing cause of the fire damage was the defendant’s negligence in failing to furnish water with which to extinguish the fire. The political subdivision argued this claim was insufficient because it did not specify a dollar amount of damage. We held the contents of the letter were sufficient, noting in part that the statutory language did not “mandate that the claim contain the amount of damages or loss.” 40 We also reasoned that the letter substan- tially complied with the statute because it set forth the date, location, and circumstances of the event giving rise to the claim and alleged that property loss had occurred as a result of the political subdivision’s negligence.",
"As these cases illustrate, we have long applied the sub- stantial compliance doctrine when the question presented was whether the content of a presuit tort claim satisfied the statute and supplied the political subdivision with sufficient notice to enable it to accomplish the primary goals of the presuit claim presentment requirements under the PSTCA and similar statutes. 41 But as other cases illustrate, we have declined to apply the substantial compliance doctrine when the question presented did not involve compliance with content- based requirements. We have refused to apply the substantial compliance doc- trine when the presuit claim was not filed with the statutorily authorized recipient, 42 reasoning that notice to the wrong recipient may deprive a political subdivision of the opportunity 40 Id., 227 Neb.",
"at 790, 420 N.W.2d at 295. Compare Jessen, supra note 9 (holding presuit presentment requirements of PSTCA not substantially met because claim did not make any demand). 41 Accord, Loontjer v. Robinson, 266 Neb. 902, 914, 670 N.W.2d 301, 310 (2003) (Hendry, C.J., concurring) (“‘[s]ubstantial compliance with a statute is not shown unless it is made to appear that the purpose of the statute is shown to have been served. What constitutes substantial compliance with a statute is a matter depending on the facts of each particular case’”). 42 See, e.g., Estate of McElwee, supra note 18; Willis v. City of Lincoln, 232 Neb. 533, 441 N.W.2d 846 (1989).",
"- 161 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 to investigate and settle claims and thus must be given to a person or entity specified in the statute. 43 Similarly, we have refused to apply the substantial compliance doctrine to presuit claims that did not comply with the statutory time limits under the PSTCA, reasoning that, unlike the general requirements regulating the content of presuit claims, the time limits are specific and can be determined with precision. 44 And finally, we have refused to apply the substantial compliance doctrine when the content of the purported claim was so indefinite or contingent in nature it could not fairly be characterized as pre- senting a tort claim at all. 45 Substantial Compliance Doctrine and STCA [8] We have not yet had occasion to consider the propriety of applying the substantial compliance doctrine to the content of a presuit claim under the STCA.",
"Generally, provisions of the STCA should be construed in harmony with similar provisions under the PSTCA. 46 We have expressly recognized the simi- larity of the presuit content claim presentment requirements under § 81-8,212 of the STCA and § 13-905 of the PSTCA, 47 and as discussed already, we have consistently applied the substantial compliance doctrine to the content of such claims under the PSTCA. The State concedes the substantial compliance doctrine has been applied for decades to similar presuit claims under the 43 Willis, supra note 42. 44 See, Big Crow, supra note 9; Schoemaker v. Metro. Utilities Dist., 245 Neb. 967, 515 N.W.2d 675 (1994).",
"45 See, e.g., Jessen, supra note 9 (letter to physician accusing malpractice but not making any demand is not written tort claim under § 13-905); Peterson v. Gering Irr. Dist., 219 Neb. 281, 363 N.W.2d 145 (1985) (letter to irrigation district that made no actual demand but merely alerted district to possible claim for damages that may occur is not claim). 46 Cole, supra note 7. 47 See id. - 162 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 PSTCA, but it asks us to find the doctrine is incompatible with the STCA.",
"As support for this argument, the State relies exclusively on the principle, articulated in Jill B. & Travis B. v. State, 48 that “because the State has given only conditional consent to be sued and there is no absolute waiver of immu- nity by the State, requirements of the [STCA] must be fol- lowed strictly.” The State argues this principle is incompatible with the doctrine of substantial compliance. We agree that strictly following the requirements of the STCA, and any statute that purports to waive the sovereign immunity of the state or a political subdivision, 49 is a foun- dational principle in our sovereign immunity jurisprudence. But as we explain, we are not persuaded that this principle is offended by applying the substantial compliance doctrine to the content of presuit claims under either the PSTCA or the STCA.",
"The principle from Jill B. & Travis B. on which the State relies was not being applied to the content of presuit claims. Instead, in Jill B & Travis B., we were considering the applicability of exceptions to the State’s waiver of sovereign immunity for tort claims arising out of misrepresentation and deceit. 50 In that context, we emphasized the importance of strictly construing statutes that are in derogation of sovereign immunity. 51 The presuit claim procedures under the PSTCA and the STCA are not statutes in derogation of sovereign immunity, but, rather, they are administrative in nature, intended to give the government notice of a recent tort claim so it can investi- gate and, if appropriate, resolve the claim before suit is com- menced.",
"52 Unlike statutes in derogation of sovereign immunity, 48 Jill B. & Travis B., supra note 28, 297 Neb. at 69, 899 N.W.2d at 251-52. 49 Rutledge v. City of Kimball, 304 Neb. 593, 935 N.W.2d 746 (2019). 50 See § 81-8,219(4). 51 Jill B. & Travis B., supra note 28. 52 See, e.g., Cole, supra note 7; Chicago Lumber Co., supra note 10. - 163 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 the presuit claim procedures do not identify the particular tort claims for which the State has conditionally waived its sov- ereign immunity and consented to suit, 53 nor do they identify the tort claims the State has exempted from that waiver.",
"54 Instead, the presuit claim presentment requirements are proce- dural conditions precedent to commencing a tort action against the government in district court; they are not jurisdictional. 55 We see no incompatibility between our precedent that rules of strict construction must be applied to statutes in derogation of sovereign immunity and our precedent that the doctrine of substantial compliance may be applied to statutes governing the content of presuit notice requirements. 56 Indeed, given how some of the content requirements are described in the statutes and regulations, it is difficult to imagine how strict compliance could be utilized by courts if we were to require it. Applying the substantial compliance doctrine to the general content provisions under the PSTCA was, in some respects, a practical necessity because there was no principled way for a court to determine whether a claimant had strictly complied with the general requirement in § 13-905 that a claim include “such other facts pertinent to the claim as are known to the claimant.” Similarly, under the STCA, we question how a court would go about determining whether a claimant has strictly complied with the State Claims Board’s regulation requiring that a claim include “such other information as is pertinent to the claim.” 57 But as our cases make clear, our application of the substan- tial compliance doctrine has been limited to a claim’s content, 53 See, e.g., §§ 81-8,215 and 81-8,215.01.",
"54 See, e.g., § 81-8,219. 55 See Cole, supra note 7. 56 Accord Franklin v. City of Omaha, 230 Neb. 598, 432 N.W.2d 808 (1988) (acknowledging some states apply strict construction to all presuit claim requirements under their tort claims acts, but Nebraska does not). 57 Rule No. 12, supra note 15. - 164 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 and the doctrine is not applied to all of the presuit notice requirements. We still apply rules of strict construction when considering whether a presuit tort claim has complied with statutory timing requirements 58 and whether it has been served on the recipient described in the statute. 59 We therefore disagree with the State that applying the sub- stantial compliance doctrine when analyzing the content of presuit tort claims under the PSTCA and the STCA is incon- sistent with the well-settled principle that statutes in derogation of sovereign immunity must be strictly construed or with the principle that the “requirements of the [STCA] must be fol- lowed strictly.” 60 [9-11] We hold that when a question is raised about whether the content of a presuit tort claim complied with the manner in which the State Claims Board prescribed such claims to be filed, the substantial compliance doctrine may be applied under the STCA, just as it is applied under the PSTCA. And, consistent with what we have done under the PSTCA, the doctrine is limited to the content of the presuit claim and does not apply when such a claim is not filed with the statutorily authorized recipient 61 or when it is not filed in compliance with the statutory time limits.",
"62 Furthermore, application of the doctrine of substantial compliance under both the PSTCA and the STCA is confined to situations where the content of the presuit claim nevertheless satisfied the primary purpose of the presuit notice requirements by notifying the state or politi- cal subdivision about possible tort liability for a recent act or 58 Big Crow, supra note 9; Schoemaker, supra note 44. See, also, State v. Saylor, 304 Neb. 779, 936 N.W.2d 924 (2020) (strictly construing STCA statute of limitation provisions). 59 Estate of McElwee, supra note 18; Willis, supra note 42. 60 Jill B. & Travis B., supra note 28, 297 Neb. at 69, 899 N.W.2d at 252. 61 See, e.g., Estate of McElwee, supra note 18; Willis, supra note 42. 62 See, e.g., Big Crow, supra note 9; Schoemaker, supra note 44. - 165 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb.",
"147 omission so it may investigate and make a decision whether to pay or defend the claim. 63 Having concluded the substantial compliance doctrine can apply to the content of claims under the STCA, we proceed to analyze whether Saylor’s claim was properly dismissed for failing to comply with the presuit presentment requirements under the STCA. Content of Saylor’s Claim Forms Substantially Complied As noted, the State argues that on all 16 of Saylor’s claim forms, his response to field No. 9 was insufficient in that it did not reference a dollar amount. Saylor responds that even though his answers were not stated in dollars, they neverthe- less contained “all information called for” 64 on the standard form, and thus, they substantially complied with the provisions of § 81-8,212. Saylor also contends that on the record in this case, he could not have strictly complied with all the require- ments of the State Claims Board. We agree with Saylor that, in this case, there was no way he could have strictly complied with the “manner pre- scribed by the State Claims Board” 65 for filing his tort claims. This is so for at least two reasons.",
"First, the specific claim form required by the regulations—the Board’s form entitled “Claim for Injury or Damage”—is not the same form currently being used by the Risk Manager—the “Tort & Miscellaneous Claim Form.” Consequently, there was no way the content of Saylor’s claims could have strictly complied with the regula- tion’s requirement that it “contain all information called for on the Board’s ‘Claim for Injury or Damage’ form.” 66 Second, the requirement under the regulations that the completed 63 See, Cole, supra note 7; Chicago Lumber Co., supra note 10.",
"64 Rule No. 12, supra note 15. 65 § 81-8,212. 66 Rule No. 12, supra note 15. - 166 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 claim form be filed in triplicate with the secretary of the State Claims Board is not the same filing method as is required under either § 81-8,212 (which requires filing the claim “with the Risk Manager”) or under the Risk Manager’s standard operat- ing procedures (which asks that the form be either emailed or mailed to the Risk Manager). Consequently, although Saylor filed his claims with the statutorily authorized recipient, there was no way he could have strictly complied with the statutory requirement that he do so “in the manner prescribed by the State Claims Board.” 67 The State’s briefing ignored the dis- parity between the Board’s adopted regulations and the Risk Manager’s standard operating procedures, but we agree with Saylor that, as a practical matter, this disparity prevents strict compliance with the statutory and regulatory requirements concerning the manner of filing a tort claim.",
"The question then is whether the content of Saylor’s tort claims substantially complied with the requirements of § 81-8,212 and its related regulations prescribing the manner of filing such claims. We conclude that as to the challenged content, Saylor’s tort claims did substantially comply with the requirements of § 81-8,212 and afforded the State sufficient notice to satisfy the purpose of the presuit claim presentment requirement. 68 The State challenges the sufficiency of Saylor’s responses to only field No. 9 on the claim forms, which asks for the “Total Amount of Claim.” The State insists that the term “Amount” in this context necessarily requires the answer to be stated in terms of a dollar amount.",
"But the claim form does not specify that a dollar amount must be provided, and the regulation governing the content of claims does not require that a dollar amount be provided. And to the extent the instructions in the Risk Manager’s operating procedures can fairly be understood to indicate that “Total Amount of 67 § 81-8,212. 68 See Cole, supra note 7. - 167 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 Claim” should be stated in terms of dollars, those instructions do not have the force and effect of law. On this record, we find Saylor’s answer stating “[t]o be proven” substantially complied with the question asked in field No. 9. That is particularly so where, as here, the tort claims were seeking general damages.",
"The State’s singular focus on the answer to field No. 9 paints an incomplete picture of the State’s knowledge regarding the damages being sought, and it ignores altogether the additional information Saylor provided in the narrative sections of his claim forms, many of which stated that the various acts and omissions of the State caused him physical and emotional pain and suffering. So although it is true that Saylor did not, in either field No. 9 or in his narratives, place a specific dollar amount on his damages, his failure to do so is nevertheless consistent with the nature of his claims and the relief he sought. Saylor’s tort claims were premised on assertions that the State had denied him (1) timely and adequate medical care, (2) the use of his personal property, and (3) access to his attorney. His claims generally stated that this conduct caused him physical and emotional pain and suffering.",
"In light of the nature of Saylor’s claims, his answer that the total amount of his claim was “[t]o be proven” was entirely consistent with how we treat allegations of general damages. 69 It would be an odd result if we were to demand more specificity regarding general damages in a presuit tort claim than is required in the complaint once litigation is commenced. Finally, we do not doubt the State’s assertion that know- ing the specific dollar amount of a tort claim can make “a significant difference in terms of how the claim is processed and at what level.” 70 But given the nature of his claims and the 69 See, e.g., Neb. Ct. R. Pldg.",
"§ 6-1108(a) (“[i]f the recovery of money be demanded, the amount of special damages shall be stated but the amount of general damages shall not be stated . . .”). 70 Brief for appellee at 6. - 168 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 damages he seeks, we cannot find that Saylor’s answer to field No. 9 caused the State any prejudice regarding its ability to investigate his claims or decide whether to settle them before litigation commenced. Indeed, the State’s frank admission during oral argument that it would have sufficed for Saylor to write any amount in field No. 9, even an “exorbitant” amount such as “$20 million,” belies its argument that a particular dollar amount was essential to the proper investigation and processing of his claims. Although the Risk Manager certainly has the prerogative to refuse to accept a tort claim form on the basis that it does not contain all of the information called for, that is not what happened here. On this record, we reject the State’s contention that Saylor’s presuit tort claims were deficient because they did not state a specific dollar amount being sought as damages and that therefore, they were not filed “in the manner prescribed by the State Claims Board” as required by § 81-8,212.",
"We instead find, as a matter of law, that the content of Saylor’s presuit tort claims in regard to damages substantially complied with the presuit notice provisions of § 81-8,212. Given this disposition, we do not reach Saylor’s argument that the State waived his failure to comply with § 81-8,212 by accepting the forms when submitted. CONCLUSION Because the content of Saylor’s tort claims substantially complied with the requirements of § 81-8,212, the district court erred in granting summary judgment in favor of the State and dismissing his action. We therefore reverse the judg- ment in favor of the State and remand the matter for further proceedings. Reversed and remanded for further proceedings. Heavican, C.J., and Papik and Freudenberg, JJ., not participating."
]
| https://www.courtlistener.com/api/rest/v3/opinions/4561077/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
960 A.2d 836 (2008) COM. v. FERGUSON. No. 161 EAL (2008). Supreme Court of Pennsylvania. September 23, 2008. Disposition of petition for allowance of appeal. Denied. | 10-30-2013 | [
"960 A.2d 836 (2008) COM. v. FERGUSON. No. 161 EAL (2008). Supreme Court of Pennsylvania. September 23, 2008. Disposition of petition for allowance of appeal. Denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1562851/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
426 F. Supp. 627 (1976) Sylvia MIMS, Plaintiff, v. DIXIE FINANCE CORPORATION, Defendant. No. C75-627A. United States District Court, N. D. Georgia, Atlanta Division. May 6, 1976. Order November 4, 1976. Joseph H. King, Jr., Atlanta, Ga., for plaintiff. *628 Steven Gottlieb, Savannah, Ga., for Doris Alston Moore, amicus curiae. Richard K. Greenstein, Robert E. Stagg and Robert N. Dokson, Atlanta, Ga., for Atlanta Legal Aid Society, Inc., amicus curiae. Charles M. Baird, Atlanta, Ga., for Ga. Legal Services Programs, Inc., amicus curiae. Andrew J. Britton, Hansell, Post, Brandon & Dorsey, Atlanta, Ga., for defendant. Before EDENFIELD, HENDERSON, MOYE, O'KELLEY, FREEMAN and HILL, District Judges.
ORDER MOYE, District Judge. This truth-in-lending action is presently before the Court on (1) the Special Master's recommendation filed April 22, 1976, that plaintiff's motion to dismiss the defendant's compulsory counterclaim on the note be denied; (2) the Special Master's recommendation filed April 8, 1976, that the defendant's motion for summary judgment be granted and the plaintiff's motion for summary judgment be denied; and (3) defendant's objections filed April 26, 1976, concerning the Special Master's amendment filed April 20, 1976, to his original recommendation filed April 8, 1976. (1) The Court hereby approves and adopts the recommendation of the Special Master that a counterclaim for the balance of the underlying obligation in a truth-in-lending action is a compulsory counterclaim under Fed.R.Civ.P. 13(a). Plaintiff's motion filed October 29, 1975, to dismiss the defendant's compulsory counterclaim on the note is ORDERED DENIED. In so doing, the Court overrules the line of cases in this Court beginning with Roberts v. National School of Radio and Television Broadcasting, 374 F. Supp. 1266 (N.D.Ga.1974). In addition, the Court notes that this change in the law works no hardship on those lenders previously barred from asserting amounts due on the loan as a compulsory counterclaim where the case has already proceeded to a final judgment. Principles of res judicata or collateral estoppel will not bar the submission of these claims on the note in the state courts since prior to today's ruling those claims could not have been litigated in the federal courts by virtue of the Roberts case, supra. (2) The Court hereby approves and adopts the recommendations of the Special Master filed April 8, 1976, with respect to the following rulings: (a) Voluntariness of the Insurance Authorization (plaintiff estopped from denying voluntariness), (b) Waiver of Tort Claim as finance charge (no truth-in-lending violation), (c) Waiver and assignment of homestead or exemption rights as a security interest (no violation of truth-in-lending act); (d) Disclosure of Finance Charge as Total Finance Charge (no truth-in-lending violation). Defendant's motion for summary judgment filed October 20, 1975, is hereby ORDERED GRANTED. Plaintiff's motion for summary judgment filed September 29, 1975, is hereby ORDERED DENIED. (3) The defendant's objections filed April 26, 1976, concerning the Court's adoption of $25 in attorney fees for plaintiff's abuse of discovery and defendant's request for $100 in attorney fees are hereby ORDERED DENIED. The sole remaining issue in this case is defendant's counterclaim on the note. The Special Master will entertain motions for summary judgment within 30 days on this counterclaim as noted in his recommendation filed April 22, 1976. Attached to this Order as an Appendix are the Special Master's recommendations entered April 8, 1976, and April 22, 1976.
ORDER This truth in lending action is before the Court on the Special Master's Second Amendment to Recommendation. This Court hereby adopts and approves this second amendment. The recommendation as amended is hereby made an Appendix to this Order.
*629 APPENDIX SYLVIA MIMS, ) ) Plaintiff ) ) CIVIL ACTION Vs. ) ) NO. C75-627A DIXIE FINANCE CORPORATION, ) ) Defendant )
RECOMMENDATION OF SPECIAL MASTER Before the Court in this truth in lending action is plaintiff's motion for reconsideration of this Court's Order dated May 10, 1976. This recommendation will treat all issues raised by plaintiff except the issue as to the discovery abuse. Plaintiff's attorney has informed this Special Master that plaintiff withdraws that issue. This recommendation will be divided as follows: I. THE DEFENDANT'S COUNTERCLAIM II. THE TRUTH IN LENDING CLAIMS A. REQUIREMENT OF INSURANCE B. WAIVER AND ASSIGNMENT OF EXEMPTION C. USE OF TERM "TOTAL FINANCE CHARGE" III. CONCLUSION
I. DEFENDANT'S COUNTERCLAIM Plaintiff contends that this court, sitting en banc, improperly allowed the defendant's counterclaim for the debt created by the consumer credit transaction upon which plaintiff's truth in lending action is based. In so doing, the court overruled the line of cases in this court beginning with Roberts v. National School of Radio and Television Broadcasting, 374 F. Supp. 1266 (N.D.Ga. 1974). Good recent discussions of whether the lender's counterclaim is compulsory in a truth in lending action are to be found in two federal district court cases decided after this court's earlier order in this case. These two cases are Rollins v. Sears, Roebuck *630 & Co., (E.D.La.1976) 71 F.R.D. 540, and Zeltzer v. Carte Blanche Corp., (W.D. Pa.1976) 414 F. Supp. 1221. They are summarized at 45 U.S. Law Week 2029 (July 20, 1976). Rollins rejected Roberts, while Zeltzer followed it. The questions to be answered and tests to be applied in determining whether the counterclaim is to be allowed are well set out in Roberts. The first question is whether the counterclaim is compulsory under traditional tests. The second question is whether the public policy considerations persuade the court to disallow an otherwise compulsory counterclaim. This court is virtually compelled to hold that the counterclaim is compulsory under traditional tests. See, Spartan Grain & Mill Co. v. Ayers, 517 F.2d 214 (5th Cir. 1975). In that case, the Fifth Circuit obviously perceived the claim and the counterclaim to arise out of the same transaction. Superfluously, this Special Master notes that he shares in that perception. It is doubtful that this court's perception of public policy considerations should persuade it not to entertain an otherwise compulsory counterclaim. The Supreme Court has admonished the federal judiciary that it should not, without legislative guidance, substantially reallocate the burdens of litigation. See, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975). To suspend the Federal Rules of Civil Procedure, which were promulgated by the Supreme Court and approved by Congress, in order to effectuate a strong judicial or congressional policy would be incautious of that admonition. However, as a matter of interest, this Special Master notes that entertaining the counterclaims has not proved very burdensome. This Special Master has found that he must be quite versed in the state law governing the consumer credit transactions in order to rule on the truth in lending claims. Indeed, about the only fact necessary to the counterclaim and not necessary to the truth in lending action is how much the plaintiff has paid to date. There is usually no genuine dispute about this fact. Further, as a matter of interest, this Special Master notes that entertaining the counterclaims will reduce the number of truth in lending suits filed in this court. Many of these suits are filed by delinquent debtors. Their major targets are consumer finance companies licensed under the Georgia Industrial Loan Act. The delinquent debtors and their attorneys generally will be loath to file truth in lending cases in face of the counterclaim. It may be, as the Atlanta Legal Aid Society, amicus curiae, states, that reducing the truth in lending actions harms the public interest, especially the interest of the poor. Or it may be, as the Federal Reserve Board staff indicated in a recent letter[*] transmitting to the Senate proposed amendments to the Act, that much of the present truth in lending litigation is needless, abusive, and overly burdensome to the courts. But this court is excused from this debate, which is properly commended to Congress. This court's duty in truth in lending litigation is to adjudicate the claims and counterclaims, as best it can, within the limits of its jurisdiction and the framework of its rules.
II. THE TRUTH IN LENDING CLAIMS
A. REQUIREMENT OF CREDIT INSURANCE Plaintiff contends that defendant improperly failed to include in the finance charge the charges for credit insurance. Plaintiff contends that these insurance charges should have been included in the finance charge because credit insurance was required. Regulation Z § 226.4(a)(5) states that the credit insurance charges must be included in the finance charge unless: (i) the insurance coverage is not required and this fact is clearly and conspicuously *631 disclosed in writing to the customer; and (ii) any customer desiring such insurance coverage gives specific dated and separately signed affirmative written indication of such desire after receiving written disclosure to him of the cost of such insurance. In this case, the insurance authorization disclosed: The purchase of [credit insurance] is not required by lender in order for borrower to obtain this loan. Such insurance may be obtained by the borrower at his option. . . . . . . . . I (or we), borrower herein, having first examined the premium cost for [credit insurance] do hereby elect to purchase the insurance as checked with a mark in the above boxes if any. . . . This authorization was dated and signed by plaintiff. Plaintiff contends that the recitals as to insurance are not true. As proof that insurance was required, she submits her affidavit that she applied for a loan, returned the next day, and was presented with the entire contract, including the insurance authorization, filled out. Plaintiff further states in her affidavit that before she signed she noticed the insurance purchase, did not want insurance, but said nothing about it since she figured that it was required. If what plaintiff says is true, she has not proved that credit insurance is required. She cannot prove that unless she asks whether the insurance is required and is told that it is. Her assumption that it is required is not enough. Lamar v. American Finance Systems, C75-1469A (Moye, D. J. 1976). It is natural for anyone, no matter how sophisticated, who wants to borrow money to be unwilling to displease the lender over a small matter. This tendency helps a lender put on a hard sell such as plaintiff described. The importance of these insurance sales to consumer lenders and their effectiveness in procuring them is well known. See, e. g., Consumer Credit in the United States, Report of the National Commission on Consumer Finance (1972). But selling insurance in the manner described by plaintiff does not amount to requiring insurance. The Truth in Lending Act requires written disclosures to facilitate credit shopping. 15 U.S.C. 1601 et seq. Here, plaintiff did not use the disclosures. Plaintiff is not entitled to oral disclosure that credit insurance is not required. The courts have all held that the debtor is estopped from contending that insurance was required if the insurance authorization recites that it was not. Johnson v. Blazer Financial Services, C75-178-MAC (M.D.Ga.1976) (Owens, D. J.); Jackson v. Consumer Credit Corp., 126 Ga.App. 106, 190 S.E.2d 80 (1972). This court has held that the debtor is estopped unless she can show fraud or other duress. Anthony v. Blazer Financial Services, C74-3023A (Freeman, D. J. 1975). This holding was restated in this case in the order now under reconsideration. A better statement of the rule is that plaintiff must prove that the creditor specifically and unequivocally informed her that insurance is required in order to contradict the recital to the contrary. Williams v. Public Finance Co., C75-1423A (Moye, D. J. 1976); Collins v. Household Finance Corp., C75-2507A (Edenfield, C. J. 1976). Thus, if plaintiff proves that she told the creditor that she did not want the insurance and the creditor told her that no loan would be made without insurance, plaintiff has met her burden. Cases in which the burden was met in the opinion of this Special Master are Selman v. AVCO Financial Services, C75-2040A (Rec. Cohen, B. J. 1976) and Selman v. Pacific Finance Loan, C75-2041A (Rec. Cohen, B. J. 1976). But in this case, plaintiff's contention is not well taken. She has not proved the insurance was required.
B. WAIVER AND ASSIGNMENT OF EXEMPTION Plaintiff contends that defendant failed to disclose as a security interest the *632 clause providing for a waiver and assignment of any right plaintiff might have to claim certain of her property as exempt from levy and sale. The clause on which plaintiff's argument focuses provides: Each of us, whether Principal, Surety, Guarantor, Endorser, or other party hereto, hereby severally waives and renounces, each for himself and family, any and all homestead or exemption rights either of us may have under or by virtue of the Constitution or Laws of Georgia, any other State, or the United States, as against this debt or any renewal thereof; and the undersigned, and each Surety Endorser, Guarantor or other party to this note, transfers, conveys and assigns to the Holder hereof, sufficient amount of any homestead or exemption that may be allowed to the undersigned, or either of them, including such homestead or exemption as may be set apart in bankruptcy, to pay this note in full, with all costs of collection; . . . This clause is placed on the disclosure sheet with other clauses dealing with waiver. Plaintiff also contends that the clause violates the Truth in Lending Act because it is unclear, confusing and misleading. That contention has not yet been treated by the Court. The discussion of the issues shall be divided as follows: 1. THE EXEMPTION LAWS 2. THE WAIVER OF EXEMPTION 3. THE ASSIGNMENT OF EXEMPTION 4. TRUTH IN LENDING LAW
1. THE EXEMPTION LAWS The Georgia Constitution provides that a head of a household and certain others may claim the privilege of exempting from levy and sale real or personal property up to a value of $1,600.00. It further provides that the Georgia legislature has the authority to provide the manner of exempting this property and to provide for the waiver of this exemption. Ga.Code Ann. § 2-7601. Pursuant to the authority expressed in this section of the Georgia Constitution, the Georgia legislature has enacted laws dealing with the exemption. It provides for a ramified method of having the court of ordinary set apart the exemption. Ga.Code Ann., tit. 51; 14 Encyc. Ga. Law, Homestead Exemption. The federal courts provide an interesting glimpse into the nature of and reasons for the Georgia exemption laws. The difference between homestead and exemption is pointed out in In re Trammel, 5 F.2d 326 (N.D.Ga.1925, Sibley, D. J.), and the Georgia law is properly characterized as providing for an exemption, rather than a homestead. In Gunn v. Barry, 15 Wall. 610, 21 L. Ed. 212 (1872), the Supreme Court trenchantly revealed the reasons for the enactment of the Georgia exemption laws during the economic disasters that were occasioned by the War Between the States. The state law provides the only exemption law in Georgia. There is no federal exemption law. Bankruptcy law does not provide for a uniform federal exemption. Rather, Section 6 of the Bankruptcy Act provides that the state exemption law will be recognized in bankruptcy. 11 U.S.C. § 24. The bankruptcy court can set aside exempt property even if it has not been set aside by the court of ordinary in the manner described by state law. In re Camp, 91 F. 745 (N.D.Ga.1899); In re Trammel, 5 F.2d 326 (N.D.Ga.1925) (Sibley, D. J.).
2. THE WAIVER OF EXEMPTION The waiver of exemption rights is expressly authorized by the Georgia Constitution. Ga.Code Ann. § 2-7601. Pursuant to the authority conferred by the Constitution, Ga.Code Ann. § 51-1101 provides for such a waiver, except for wearing apparel and certain furniture of a value of $300.00. That code section provides: Any debtor may, except as to wearing apparel and $300 worth of household and kitchen furniture and provisions, waive or renounce his right to the benefit of the exemption provided for in the Constitution and laws of this State, by a waiver, *633 either general or specific, in writing, simply stating that he does so waive or renounce such right, which waiver may be stated in the contract of indebtedness or contemporaneously therewith or subsequently thereto in a separate paper. The policy behind this, as stated in Kronstadt v. Citizens and Southern National Bank, 80 F.2d 260, 264 (5th Cir. 1935), is to permit a hard pressed debtor to use his exemption to obtain credit which in his extremity, may save him. To waive an exemption is certainly somewhat akin to conveying property. Thus, in Tribble v. Anderson, 63 Ga. 32 (1879), the question arose whether a waiver of homestead is effective if given in a usurious contract. The court agreed that the waiver of homestead was not a conveyance but (at page 55) stated: [I]t is enough in the nature of a quitclaim title to be subject to the general rule ordained by statute against passing any kind of title to property for a usurious purpose or as part of a usurious contract. The homestead right is a right in property, and to waive it in favor of a creditor is substantially the same thing as to convey it away the same, certainly, in respect to putting the debtor in the power of the creditor. However, the authorities are unanimous that a waiver of exemption although in the nature of a conveyance does not convey title or create a lien. In Lockwood v. Exchange Bank, 190 U.S. 294, 23 S. Ct. 751, 47 L. Ed. 1061 (1902), the United States Supreme Court considered the rights of a creditor holding notes waiving homestead and exemption. The question was whether such creditors had any right that the bankruptcy court could protect. The trustee had set aside the exempt property. These creditors wanted the bankruptcy court to distribute the otherwise exempt property to them. The Supreme Court held that the bankruptcy court had no jurisdiction over exempt property. The court held that the trustee had the duty to turn over exempt property to the debtor. The creditor was relegated to seek a state court receiver of the property set aside as exempt by the bankruptcy court. The court stated that the creditor holding waiver notes had "no lien" but "an equity" entitling him to reasonable postponement of the setting aside in order to institute state court actions to make effective his rights. The principles of the Lockwood case came before the Georgia Supreme Court in Bell v. Dawson Co., 120 Ga. 628, 48 S.E. 150 (1904). A creditor holding waiver notes sought a state court receiver to take charge of the property set aside to the debtor. This was in accord with the suggestion in Lockwood that the creditor present to the state court his "equity," which could not be recognized by the bankruptcy court. The question before the Georgia Supreme Court was whether the creditor was entitled to the appointment of a state court receiver. The court noted the general rule was that a court of equity will not appoint a receiver except on the petition of one claiming title or having a lien. The court assumed that this general rule would preclude the appointment of a receiver. But the court made an exception to that rule because the creditor had no remedy at law and because the exempt property was "in the nature of a security for the payment of the debt." The Georgia Supreme Court has remained clear that the holder of a note waiving homestead does not have a lien. In Bowen & Thomas v. Keller, 130 Ga. 31, 60 S.E. 174 (1907), the action by creditors holding waiver notes: hinges on the question whether the plaintiffs in error had acquired any lien which, after the discharge in bankruptcy of the defendant in error had been obtained and pleaded, was enforceable against the exemption set apart in bankruptcy and held by the receiver of the state court. The court held there was no lien, not even an equitable lien. The court said: We can conceive of no rule of law, or principle of justice, which could be invoked as sustaining the plaintiff's contention that a lien in their favor existed against the fund in the possession of the court. . . . the only advantage the *634 . . . creditors holding waiver notes had over general creditors was to prevail in the collection of their debts as against any claim of homestead or exemption which the defendant in error might assert. This was repeated in Coffey v. Mitchell, 139 Ga. 430, 77 S.E. 561 (1912), where the court said: The mere fact that a creditor holds the note of his debtor, which contains a waiver of exemption rights, does not give the creditor any lien, equitable or otherwise, on property of the debtor which he has scheduled in bankruptcy and asked that it be set apart as exempt. See Bowen v. Keller, 130 Ga. 31, 34, 60 S.E. 174, 124 Am. St. Rep. 164. This headnote was quoted as the law in Coppedge v. Bruce, 177 Ga. 277, 170 S.E. 35 (1933). This principle was reiterated in Massachusetts Mutual Life Insurance Co. v. Hirsch, 184 Ga. 636, 192 S.E. 435 (1937), where the court distinguishing the effect of a waiver of homestead and an assignment of homestead, said: A mere waiver of homestead or exemption contained in a note or other obligation in favor of a creditor does not give him any title, right, or lien, equitable or otherwise, on property of the debtor subsequently set apart to him in bankruptcy as exempt, such as would invalidate or defeat a valid assignment of such homestead or exemption subsequent to such waiver and prior to the bankruptcy. The nature of the claim of the holder of a waiver note was described in In re Meredith, 144 F. 230 (N.D.Ga.1906)). There the court considered the question left open in Lockwood v. Exchange Bank, supra, whether the creditors holding waiver notes and thus having a claim against exempt assets could delay the bankruptcy proceedings until they could in state court get there share of the exempt property and then come into the bankruptcy court and participate with other unsecured creditors. The court noted that Section 57 of the Bankruptcy Act provides a means for secured creditors to have his security evaluated and thus establish quickly to what extent his claim is unsecured. The court said: While the creditors having notes with waiver of homestead and exemption have no lien, they have a peculiar claim against this special property, which the general creditors have not. The court went on to quote from Bell v. Dawson Co., 120 Ga. 628, 48 S.E. 150, that: The waiver becomes in the nature of a security, in that the debt may be made out of property owned by the debtor, without regard to any exemption rights which the debtor would have had but for the waiver. The court concluded that the interest of the creditor holding a waiver note in the exempt property would be evaluated as would be the interest of a secured creditor in secured property. The nature of the waiver of homestead is best explicated by the Fifth Circuit in Kronstadt v. Citizens and Southern National Bank, 80 F.2d 260, 262-63 (5th Cir. 1935): Appellant admits that under the Constitution and laws of Georgia a creditor of a bankrupt who holds a note containing a waiver of exemption is, as to the exemption claimed by and set apart to the bankrupt, in a preferred position as to general creditors. Such a creditor may make his debt out of the exemption allowed the bankrupt, and neither the bankrupt nor the general creditor may complain. . . . . . . . Under the laws of Georgia a creditor holding a waiver note is in a position to satisfy his debt out of exempted property actually claimed by and set apart to the bankrupt. It confers no lien; it conveys no right in the exemption [citations]. Thus a creditor holding a general waiver has no interest in or title to the exemption; no right to have any property set aside to him, but only the right to insist that the bankrupt, after the exemption in bankruptcy has been set aside, claim it against him. *635 The discussion in Kronstadt v. Citizens and Southern National Bank was called excellent in Collier, Bankruptcy, § 6.10, note 13 (14th Ed.). Later in that Section, citing Kronstadt, Collier goes on to conclusion: While state law will determine whether a waiver-note creates a lien or conveys an estate to the creditor, where it contains nothing more than a mere waiver of exemption the usual rule is that no lien or estate is created in the creditor's favor. Thus, the waiver of exemption appears not to create a security interest. The waiver has been regarded as in the nature of a quitclaim or security interest, but the courts are unanimous in stating that it transfers no title and creates no lien.
3. THE ASSIGNMENT OF EXEMPTION The assignment of exemption is not expressly authorized by the Georgia Statute, as is the waiver of exemption. The assignment clause was developed in disputes between creditors for priority, when one creditor held a waiver of homestead and another creditor held a subsequently executed assignment of exemption. Often in the early cases, the assignment would be given while the debtor was insolvent, had filed or was about to file a bankruptcy petition, with the intent of preferring the creditor to whom it was given over the creditor holding the earlier waiver of homestead. It was not then fraudulent or an otherwise vicious defeat or hindrance to creditors to so prefer a creditor. Taylor Company v. Williams, 139 Ga. 581, 77 S.E. 386 (1912); Strickland Hardware Co. v. Fletcher, 152 Ga. 445, 110 S.E. 229 (1921). A transfer preferring a creditor was fraudulent only if the insolvent debtor was to receive some fresh consideration for the transfer. E. g., Pincus v. Meinland, 139 Ga. 365, 77 S.E. 82 (1912); Silver & Goldstein v. Chapman, 161 Ga. 203, 129 S.E. 842 (1925). In these disputes between the creditor holding a waiver of exemption and the creditor holding a subsequent assignment of exemption, the creditor holding the assignment often won. These cases developed the extent to which the exemption was assignable. The rationale for holding the assignment valid was that title to property claimed as exempt never passes to the trustee but remains in the bankrupt, who could transfer it. The title being in the bankrupt, he can alienate the property set apart by the bankruptcy court before such time as he applies for and obtains a homestead and exemption . . .. It appears from the authorities above cited, that at the time the defendant sold the property set apart as exempt by the bankruptcy court . . . he had a right to sell [it] . . .. Pincus v. Meinhard & Brother, 139 Ga. 365, 77 S.E. 82 (1912). Each succeeding case validated an earlier assignment. In Pincus v. Meinhard it was held that the bankrupt could assign his interest in exempt property after the bankruptcy court had entered an order approving the trustee's report setting apart the exempt property. In Taylor Company v. Williams, 139 Ga. 581, 77 S.E. 386 (1912), it was held that the bankrupt could assign his interest in exempt property after the trustee had made his report setting apart the exempt property but before the bankruptcy court had approved it. In Strickland Hardware Co. v. Fletcher, 152 Ga. 445, 110 S.E. 229 (1921), it was held that the bankrupt could assign his interest in exempt property after he was adjudicated a bankrupt but before the trustee had made his report setting aside the exempt property and therefore before the court had approved such a report. The first reported case in which a creditor took an assignment of homestead at the same time he took the waiver of homestead was Saul v. Bower, 155 Ga. 450, 117 S.E. 86 (1923). The language of the waiver and assignment in that case was virtually identical to the case at bar. The question as presented by the court was: Was the assignment of the homestead and exemption, made prior to the time the exemption was set aside by the referee in bankruptcy, such a bare contingency *636 or possibility that it can not be the subject of transfer and sale, under the Civil Code (1910), § 4117? That section declares that "A bare contingency or possibility can not be the subject of sale, unless there exists a present right in the person selling, to a future benefit." The court held that the right was assignable. The court reasoned that since the privilege of claiming the exemption can be waived and since Tribble v. Anderson, 63 Ga. 32 (1879) characterized the waiver as in the nature of a conveyance, the privilege should also be assignable. The court said at page 456 of 155 Ga., at page 89 of 117 S.E.: A general waiver of homestead is sufficient as a waiver [citation]; and, if a general waiver of a homestead is good, we see no reason why the transfer or assignment of a homestead is not good. . . . We are of the opinion that this assignment is not a bare contingency or possibility, but that the assignor is conveying what the law makes certain, and that is $1600 of his property under the constitutional homestead, or certain specified property which is named in the statutory homestead. The court did not discuss the seeming inconsistency of holding that a debtor could assign a privilege that he had waived. Distinctions between the assignment and the waiver have been noted in several cases. In Southern Wholesale Corp. v. Pincus, 173 Ga. 421, 160 S.E. 377 (1931), it was stated that the assignment rests on different principles than the waiver. The difference on principles was not explained, but presumably the difference is that the assignment is more in the nature of a conveyance creating a security interest. The court noted one situation where the assignment would afford the creditor greater rights against the debtor than would be afforded by the waiver. That is the situation where the assignment or waiver is given when the creditor opens a general account. A waiver is effective only for the credit extended immediately on the opening of the account while the assignment is effective as against credit subsequently extended on the account. Although the assignment takes the form of a secured conveyance, the assignment of an exemption before an exemption is claimed clearly does not create a proper security interest, either in real estate or personal property. The reason is that the assignment does not sufficiently describe the property that may become exempt. In In re Martin, 294 F. 368 (N.D.Ga.1923) (Sibley, D. J.), the court was dealing with a waiver note. The court said (at page 370): His paper does not purport to transfer any specified property as security; but if it did, and although antedating the bankruptcy more than four months, for want of record and sufficient description of the property conveyed, it would fail. The assignment of an exemption would wholly fail to create a security interest in real estate under Georgia recording laws. Ga.Code Ann. §§ 67-102; 29-104; Crawford v. Verner, 122 Ga. 814, 50 S.E. 958 (1905); Commodity Credit Corp. v. Wells, 188 Ga. 287, 3 S.E.2d 642 (1939); Jaffrey v. Brown, 29 F. 476 (S.D.Ga.1886). And, the assignment of an exemption would wholly fail to create a security interest in personal property. The Uniform Commercial Code requires that the description of property reasonably identify what is described. Ga. Code Ann. §§ 109A-9-110, 9-203(1)(b). Furthermore, there is no statutory contemplation that the assignment of an exemption creates a security interest. The Uniform Commercial Code defines the secured transactions excluded from Article 9. Ga. Code Ann. § 109A-9-104. An assignment of an exemption is not among them. The Georgia Supreme Court has also stopped short of pronouncing the assignment of an exemption to be a proper security interest. In Massachusetts Mutual Life Insurance Company v. Hirsch, 184 Ga. 636, 192 S.E. 435 (1937), one party urged that the assignment was in effect a bill of sale to secure debt. The court ruled that the party's contention would fail "even if" it was. An accurate characterization of the nature of an assignment of homestead is found in Kronstadt v. Citizens and Southern National Bank, 80 F.2d 260 (5th Cir. *637 1935). That case said that the assignment, when given before the setting apart of an exemption, conveys "an equitable, though inchoate interest, which becomes legal and fixed when it has been claimed and set apart." Based on this, the court held that a bankrupt could not defeat the holder of an assignment by withdrawing his claim to an exemption although he might have been able so to defeat a holder of a waiver. The holding in Kronstadt was severely limited, if not nullified by Novak v. O'Neal, 201 F.2d 227 (5th Cir. 1953). That case held that a bankrupt could defeat the holder of an assignment by not claiming his exemption, just as he could so defeat the holder of a waiver. But, Novak v. O'Neal characterized the nature of the assignment much like Kronstadt. In Novak, it was characterized as "only an inchoate estate which can never become perfected until such a claim is made by the bankrupt." Similarly, the court said that the assignment created an "equitable obligation." The assignment of the exemption in this case takes from the debtor no rights not taken by the waiver. Since the transaction in this case is a loan, rather than an open account, the assignment's greater effectiveness with open accounts is immaterial. Also, the assignment appears to be as ineffective as the waiver in the taking from the debtor the privilege of claiming an exemption as to wearing apparel and certain furniture. This was so held by this District Court in a case appealed and reported under the name of Leiter v. Steinbach, 184 F.2d 751 (5th Cir. 1950). The Fifth Circuit stated that the District Court so held but decided the case on other grounds. The additional rights afforded the creditor by taking the assignment in addition to the waiver are against other creditors. For example, in Kronstadt v. Citizens & Southern National Bank, supra, the question is whether the creditor holding the assignment will get the exempt property or whether the trustee will get it for general creditors. True, the debtor may indirectly benefit if one creditor wins over another and his granting the assignment can affect the outcome of the struggle, but this ability to affect the outcome is more a circumstance than a right. In sum, the assignment taken in a note with the waiver of an exemption before the exemption is claimed does not create a proper security interest even though the assignment takes the form of a secured transaction. The description is insufficient for a security interest under real estate conveyances law and under Article 9 of the Uniform Commercial Code. The assignment takes from the debtor no rights not taken by the waiver. It helps the creditor in disputes with other creditors and creates what may be characterized as an equitable obligation or inchoate interest.
4. TRUTH IN LENDING LAW The Truth in Lending Act requires the creditor to disclose a security interest. The Act does not define the term "security interest", but Regulation Z does. Regulation Z § 226.2(z) provides: "Security interest" and "security" means any interest in property which secures payment or performance of an obligation. The terms include, but are not limited to, security interest under the Uniform Commercial Code, real property mortgages, deeds of trust, and other consensual or confessed liens, whether or not recorded, mechanic's, materialman's, artisan's, and other similar liens, vender's liens in both real and personal property, the interest of a seller in a contract for the sale of real property, any lien on property arising by operation of law, and any interest in a lease when used to secure property or performance of an obligation. The administrative definition has been held to be a reasonable exercise of authority. Charnita, Inc. v. Federal Trade Commission, 479 F.2d 684 (3rd Cir. 1973). The Regulation's definition of the term security interest does not have precise limits. It begins with a common definition, "any interest in property which secures payment or performance of an obligation." *638 This is substantially the same definition as is found in the Uniform Commercial Code. See Ga.Code Ann. § 109A-1-201(37). Yet the Regulation's definition goes on to state that it includes but is not limited to a security interest under the Uniform Commercial Code and other types of security interest. Some guidance in determining the limits of the Regulation's definition of the term "security interest" can be found in staff opinion letter 1066, dated June 4, 1976, 5 CCH Consumer Credit Guide ¶ 31,406. That letter advises that a seller's right of reclamation under Section 2-702 of the Uniform Commercial Code need not be disclosed as a security interest. That letter comes as the authorities split on whether that right of reclamation is a statutory lien invalid in bankruptcy because it becomes effective on insolvency. In re Wetson's Corp., 17 UCC Rep. Svc. 423 (Herzog, B. J.); 4 Collier Bankruptcy § 67.281. That letter is not very helpful. But it is meaningful in recognizing that although there is no definite content to the term security interest, not every interest which can be considered a security interest is to be so considered under Regulation Z. Analogously, there is recognition that unnecessary disclosure may violate the Act by obscuring required disclosures. FRB Staff Opinion Letter 682, April 25, 1973. The waiver and assignment of exemption in this note do not appear to create a security interest within the meaning of Regulation Z. They are not proper security interest under Georgia law. They amount basically to a waiver of the privilege of claiming the exemption. In accord with this, they are placed together with other waivers in this note. This is the typical way of viewing the so-called "waiver of homestead" in Georgia. No creditor holding such a waiver has ever regarded himself or been regarded as secured. Although the waiver of homestead is a discrete and well-known clause, discussed, for example, in 40 C.J.S. Homesteads § 179-186, the Federal Reserve Board has never indicated that its disclosure is required. It is not necessary to tell the debtor that if he does not pay a judgment may be obtained against him or repossession costs may be assessed. Burrell v. City Dodge, Inc., C18739 (Hill, J., 1974). So it would seem unnecessary to tell him that he has waived any privilege that he might have of claiming an exemption of his property from a judicial levy and sale to satisfy a judgment. Plaintiff also contends that the clause dealing with waiver and assignment of exemption is unclear, confusing and misleading. Plaintiff bases this contention on the fact that the clause does not disclose that the waiver and assignment is ineffective as to wearing apparel and certain furniture. Any required disclosure must be clear. Regulation Z § 226.6(a). If these clauses are required to be disclosed they would appear to violate the Act because the state law limitation is not disclosed. Cf. Pollock v. General Finance Co., 535 F.2d 295 (5th Cir. 1976). Pollock apparently nullifies the principle, set forth in Barret v. Vernie Jones Ford, 395 F. Supp. 904 (N.D.Ga.1975), that the creditor is required to disclose what rights he claims without regard to the enforceability of those rights. But the clause dealing with waiver and assignment of exemption is not required to be disclosed. Therefore, it does not have to be clear, within the meaning of Regulation Z § 226.6(a). Furthermore, the clause does not appear to be additional information, within the meaning of Regulation Z § 226.6(c). That section appears to refer to additional information supplied with any required disclosure by way of explaining or supplementing the required disclosure. FRB Staff Opinion Letter 682, April 25, 1973. It provides that additional information must not be misleading or confusing. This clause does not mislead or confuse. It is separate from the required disclosures. It is legally comprehensible, in that the exact language has been expounded upon many times by the Georgia and federal courts. Therefore, plaintiff's contention that the clause is unclear or misleading is not well taken.
*639 C. USE OF TERM "TOTAL FINANCE CHARGE" Plaintiff contends that defendant violated the Act by using the term "TOTAL FINANCE CHARGE," rather than "Total FINANCE CHARGE." This is contrary to Bussey v. Georgia BankAmericard, 516 F.2d 452 (5th Cir. 1975). Plaintiff argues that Bussey was silently overruled by Pennino v. Morris Kirschman & Co., Inc., 526 F.2d 367 (5th Cir. 1976). In that case (at page 370), the court quoted with approval a district court in Virginia which held the opposite of Bussey. But the quotation was only of a general principle of liability for technical violations. Pennino noted the holding in the quoted case, but Pennino did not have before it and consequently did not hold anything with respect to use of the term "TOTAL FINANCE CHARGE." Thus, it would be improper to regard Pennino as silently overruling the holding in Bussey.
III. CONCLUSION WHEREFORE, it is recommended that plaintiff's motion for reconsideration be denied. It is further recommended that plaintiff's request for a certificate of immediate review be denied, since this case can be quickly concluded. This 15 day of September, 1976. s/ Ezra H. Cohen EZRA H. COHEN BANKRUPTCY JUDGE, Sitting as Special Master NOTES [*] Letter dated July 16, 1976 from Stephen S. Gardner, Office of the Vice Chairman, Board of Governors, of the Federal Reserve System, to The Honorable William Proxmire, Chairman, Committee on Banking, Housing and Urban Affairs, United States Senate. | 10-30-2013 | [
"426 F. Supp. 627 (1976) Sylvia MIMS, Plaintiff, v. DIXIE FINANCE CORPORATION, Defendant. No. C75-627A. United States District Court, N. D. Georgia, Atlanta Division. May 6, 1976. Order November 4, 1976. Joseph H. King, Jr., Atlanta, Ga., for plaintiff. *628 Steven Gottlieb, Savannah, Ga., for Doris Alston Moore, amicus curiae. Richard K. Greenstein, Robert E. Stagg and Robert N. Dokson, Atlanta, Ga., for Atlanta Legal Aid Society, Inc., amicus curiae. Charles M. Baird, Atlanta, Ga., for Ga. Legal Services Programs, Inc., amicus curiae. Andrew J. Britton, Hansell, Post, Brandon & Dorsey, Atlanta, Ga., for defendant. Before EDENFIELD, HENDERSON, MOYE, O'KELLEY, FREEMAN and HILL, District Judges. ORDER MOYE, District Judge. This truth-in-lending action is presently before the Court on (1) the Special Master's recommendation filed April 22, 1976, that plaintiff's motion to dismiss the defendant's compulsory counterclaim on the note be denied; (2) the Special Master's recommendation filed April 8, 1976, that the defendant's motion for summary judgment be granted and the plaintiff's motion for summary judgment be denied; and (3) defendant's objections filed April 26, 1976, concerning the Special Master's amendment filed April 20, 1976, to his original recommendation filed April 8, 1976.",
"(1) The Court hereby approves and adopts the recommendation of the Special Master that a counterclaim for the balance of the underlying obligation in a truth-in-lending action is a compulsory counterclaim under Fed.R.Civ.P. 13(a). Plaintiff's motion filed October 29, 1975, to dismiss the defendant's compulsory counterclaim on the note is ORDERED DENIED. In so doing, the Court overrules the line of cases in this Court beginning with Roberts v. National School of Radio and Television Broadcasting, 374 F. Supp. 1266 (N.D.Ga.1974). In addition, the Court notes that this change in the law works no hardship on those lenders previously barred from asserting amounts due on the loan as a compulsory counterclaim where the case has already proceeded to a final judgment. Principles of res judicata or collateral estoppel will not bar the submission of these claims on the note in the state courts since prior to today's ruling those claims could not have been litigated in the federal courts by virtue of the Roberts case, supra. (2) The Court hereby approves and adopts the recommendations of the Special Master filed April 8, 1976, with respect to the following rulings: (a) Voluntariness of the Insurance Authorization (plaintiff estopped from denying voluntariness), (b) Waiver of Tort Claim as finance charge (no truth-in-lending violation), (c) Waiver and assignment of homestead or exemption rights as a security interest (no violation of truth-in-lending act); (d) Disclosure of Finance Charge as Total Finance Charge (no truth-in-lending violation). Defendant's motion for summary judgment filed October 20, 1975, is hereby ORDERED GRANTED. Plaintiff's motion for summary judgment filed September 29, 1975, is hereby ORDERED DENIED.",
"(3) The defendant's objections filed April 26, 1976, concerning the Court's adoption of $25 in attorney fees for plaintiff's abuse of discovery and defendant's request for $100 in attorney fees are hereby ORDERED DENIED. The sole remaining issue in this case is defendant's counterclaim on the note. The Special Master will entertain motions for summary judgment within 30 days on this counterclaim as noted in his recommendation filed April 22, 1976. Attached to this Order as an Appendix are the Special Master's recommendations entered April 8, 1976, and April 22, 1976. ORDER This truth in lending action is before the Court on the Special Master's Second Amendment to Recommendation.",
"This Court hereby adopts and approves this second amendment. The recommendation as amended is hereby made an Appendix to this Order. *629 APPENDIX SYLVIA MIMS, ) ) Plaintiff ) ) CIVIL ACTION Vs. ) ) NO. C75-627A DIXIE FINANCE CORPORATION, ) ) Defendant ) RECOMMENDATION OF SPECIAL MASTER Before the Court in this truth in lending action is plaintiff's motion for reconsideration of this Court's Order dated May 10, 1976. This recommendation will treat all issues raised by plaintiff except the issue as to the discovery abuse. Plaintiff's attorney has informed this Special Master that plaintiff withdraws that issue. This recommendation will be divided as follows: I. THE DEFENDANT'S COUNTERCLAIM II.",
"THE TRUTH IN LENDING CLAIMS A. REQUIREMENT OF INSURANCE B. WAIVER AND ASSIGNMENT OF EXEMPTION C. USE OF TERM \"TOTAL FINANCE CHARGE\" III. CONCLUSION I. DEFENDANT'S COUNTERCLAIM Plaintiff contends that this court, sitting en banc, improperly allowed the defendant's counterclaim for the debt created by the consumer credit transaction upon which plaintiff's truth in lending action is based. In so doing, the court overruled the line of cases in this court beginning with Roberts v. National School of Radio and Television Broadcasting, 374 F. Supp. 1266 (N.D.Ga. 1974). Good recent discussions of whether the lender's counterclaim is compulsory in a truth in lending action are to be found in two federal district court cases decided after this court's earlier order in this case.",
"These two cases are Rollins v. Sears, Roebuck *630 & Co., (E.D.La.1976) 71 F.R.D. 540, and Zeltzer v. Carte Blanche Corp., (W.D. Pa.1976) 414 F. Supp. 1221. They are summarized at 45 U.S. Law Week 2029 (July 20, 1976). Rollins rejected Roberts, while Zeltzer followed it. The questions to be answered and tests to be applied in determining whether the counterclaim is to be allowed are well set out in Roberts.",
"The first question is whether the counterclaim is compulsory under traditional tests. The second question is whether the public policy considerations persuade the court to disallow an otherwise compulsory counterclaim. This court is virtually compelled to hold that the counterclaim is compulsory under traditional tests. See, Spartan Grain & Mill Co. v. Ayers, 517 F.2d 214 (5th Cir. 1975). In that case, the Fifth Circuit obviously perceived the claim and the counterclaim to arise out of the same transaction. Superfluously, this Special Master notes that he shares in that perception. It is doubtful that this court's perception of public policy considerations should persuade it not to entertain an otherwise compulsory counterclaim. The Supreme Court has admonished the federal judiciary that it should not, without legislative guidance, substantially reallocate the burdens of litigation.",
"See, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975). To suspend the Federal Rules of Civil Procedure, which were promulgated by the Supreme Court and approved by Congress, in order to effectuate a strong judicial or congressional policy would be incautious of that admonition. However, as a matter of interest, this Special Master notes that entertaining the counterclaims has not proved very burdensome. This Special Master has found that he must be quite versed in the state law governing the consumer credit transactions in order to rule on the truth in lending claims. Indeed, about the only fact necessary to the counterclaim and not necessary to the truth in lending action is how much the plaintiff has paid to date. There is usually no genuine dispute about this fact.",
"Further, as a matter of interest, this Special Master notes that entertaining the counterclaims will reduce the number of truth in lending suits filed in this court. Many of these suits are filed by delinquent debtors. Their major targets are consumer finance companies licensed under the Georgia Industrial Loan Act. The delinquent debtors and their attorneys generally will be loath to file truth in lending cases in face of the counterclaim. It may be, as the Atlanta Legal Aid Society, amicus curiae, states, that reducing the truth in lending actions harms the public interest, especially the interest of the poor. Or it may be, as the Federal Reserve Board staff indicated in a recent letter[*] transmitting to the Senate proposed amendments to the Act, that much of the present truth in lending litigation is needless, abusive, and overly burdensome to the courts.",
"But this court is excused from this debate, which is properly commended to Congress. This court's duty in truth in lending litigation is to adjudicate the claims and counterclaims, as best it can, within the limits of its jurisdiction and the framework of its rules. II. THE TRUTH IN LENDING CLAIMS A. REQUIREMENT OF CREDIT INSURANCE Plaintiff contends that defendant improperly failed to include in the finance charge the charges for credit insurance. Plaintiff contends that these insurance charges should have been included in the finance charge because credit insurance was required. Regulation Z § 226.4(a)(5) states that the credit insurance charges must be included in the finance charge unless: (i) the insurance coverage is not required and this fact is clearly and conspicuously *631 disclosed in writing to the customer; and (ii) any customer desiring such insurance coverage gives specific dated and separately signed affirmative written indication of such desire after receiving written disclosure to him of the cost of such insurance. In this case, the insurance authorization disclosed: The purchase of [credit insurance] is not required by lender in order for borrower to obtain this loan.",
"Such insurance may be obtained by the borrower at his option. . . . . . . . . I (or we), borrower herein, having first examined the premium cost for [credit insurance] do hereby elect to purchase the insurance as checked with a mark in the above boxes if any. . . . This authorization was dated and signed by plaintiff. Plaintiff contends that the recitals as to insurance are not true. As proof that insurance was required, she submits her affidavit that she applied for a loan, returned the next day, and was presented with the entire contract, including the insurance authorization, filled out. Plaintiff further states in her affidavit that before she signed she noticed the insurance purchase, did not want insurance, but said nothing about it since she figured that it was required. If what plaintiff says is true, she has not proved that credit insurance is required.",
"She cannot prove that unless she asks whether the insurance is required and is told that it is. Her assumption that it is required is not enough. Lamar v. American Finance Systems, C75-1469A (Moye, D. J. 1976). It is natural for anyone, no matter how sophisticated, who wants to borrow money to be unwilling to displease the lender over a small matter. This tendency helps a lender put on a hard sell such as plaintiff described. The importance of these insurance sales to consumer lenders and their effectiveness in procuring them is well known.",
"See, e. g., Consumer Credit in the United States, Report of the National Commission on Consumer Finance (1972). But selling insurance in the manner described by plaintiff does not amount to requiring insurance. The Truth in Lending Act requires written disclosures to facilitate credit shopping. 15 U.S.C. 1601 et seq. Here, plaintiff did not use the disclosures. Plaintiff is not entitled to oral disclosure that credit insurance is not required.",
"The courts have all held that the debtor is estopped from contending that insurance was required if the insurance authorization recites that it was not. Johnson v. Blazer Financial Services, C75-178-MAC (M.D.Ga.1976) (Owens, D. J. ); Jackson v. Consumer Credit Corp., 126 Ga.App. 106, 190 S.E.2d 80 (1972). This court has held that the debtor is estopped unless she can show fraud or other duress. Anthony v. Blazer Financial Services, C74-3023A (Freeman, D. J. 1975).",
"This holding was restated in this case in the order now under reconsideration. A better statement of the rule is that plaintiff must prove that the creditor specifically and unequivocally informed her that insurance is required in order to contradict the recital to the contrary. Williams v. Public Finance Co., C75-1423A (Moye, D. J. 1976); Collins v. Household Finance Corp., C75-2507A (Edenfield, C. J. 1976). Thus, if plaintiff proves that she told the creditor that she did not want the insurance and the creditor told her that no loan would be made without insurance, plaintiff has met her burden. Cases in which the burden was met in the opinion of this Special Master are Selman v. AVCO Financial Services, C75-2040A (Rec. Cohen, B. J. 1976) and Selman v. Pacific Finance Loan, C75-2041A (Rec.",
"Cohen, B. J. 1976). But in this case, plaintiff's contention is not well taken. She has not proved the insurance was required. B. WAIVER AND ASSIGNMENT OF EXEMPTION Plaintiff contends that defendant failed to disclose as a security interest the *632 clause providing for a waiver and assignment of any right plaintiff might have to claim certain of her property as exempt from levy and sale. The clause on which plaintiff's argument focuses provides: Each of us, whether Principal, Surety, Guarantor, Endorser, or other party hereto, hereby severally waives and renounces, each for himself and family, any and all homestead or exemption rights either of us may have under or by virtue of the Constitution or Laws of Georgia, any other State, or the United States, as against this debt or any renewal thereof; and the undersigned, and each Surety Endorser, Guarantor or other party to this note, transfers, conveys and assigns to the Holder hereof, sufficient amount of any homestead or exemption that may be allowed to the undersigned, or either of them, including such homestead or exemption as may be set apart in bankruptcy, to pay this note in full, with all costs of collection; . .",
". This clause is placed on the disclosure sheet with other clauses dealing with waiver. Plaintiff also contends that the clause violates the Truth in Lending Act because it is unclear, confusing and misleading. That contention has not yet been treated by the Court. The discussion of the issues shall be divided as follows: 1. THE EXEMPTION LAWS 2. THE WAIVER OF EXEMPTION 3. THE ASSIGNMENT OF EXEMPTION 4. TRUTH IN LENDING LAW 1. THE EXEMPTION LAWS The Georgia Constitution provides that a head of a household and certain others may claim the privilege of exempting from levy and sale real or personal property up to a value of $1,600.00. It further provides that the Georgia legislature has the authority to provide the manner of exempting this property and to provide for the waiver of this exemption. Ga.Code Ann. § 2-7601. Pursuant to the authority expressed in this section of the Georgia Constitution, the Georgia legislature has enacted laws dealing with the exemption. It provides for a ramified method of having the court of ordinary set apart the exemption. Ga.Code Ann., tit.",
"51; 14 Encyc. Ga. Law, Homestead Exemption. The federal courts provide an interesting glimpse into the nature of and reasons for the Georgia exemption laws. The difference between homestead and exemption is pointed out in In re Trammel, 5 F.2d 326 (N.D.Ga.1925, Sibley, D. J. ), and the Georgia law is properly characterized as providing for an exemption, rather than a homestead. In Gunn v. Barry, 15 Wall. 610, 21 L. Ed. 212 (1872), the Supreme Court trenchantly revealed the reasons for the enactment of the Georgia exemption laws during the economic disasters that were occasioned by the War Between the States. The state law provides the only exemption law in Georgia. There is no federal exemption law. Bankruptcy law does not provide for a uniform federal exemption. Rather, Section 6 of the Bankruptcy Act provides that the state exemption law will be recognized in bankruptcy. 11 U.S.C. § 24. The bankruptcy court can set aside exempt property even if it has not been set aside by the court of ordinary in the manner described by state law.",
"In re Camp, 91 F. 745 (N.D.Ga.1899); In re Trammel, 5 F.2d 326 (N.D.Ga.1925) (Sibley, D. J.). 2. THE WAIVER OF EXEMPTION The waiver of exemption rights is expressly authorized by the Georgia Constitution. Ga.Code Ann. § 2-7601. Pursuant to the authority conferred by the Constitution, Ga.Code Ann. § 51-1101 provides for such a waiver, except for wearing apparel and certain furniture of a value of $300.00. That code section provides: Any debtor may, except as to wearing apparel and $300 worth of household and kitchen furniture and provisions, waive or renounce his right to the benefit of the exemption provided for in the Constitution and laws of this State, by a waiver, *633 either general or specific, in writing, simply stating that he does so waive or renounce such right, which waiver may be stated in the contract of indebtedness or contemporaneously therewith or subsequently thereto in a separate paper.",
"The policy behind this, as stated in Kronstadt v. Citizens and Southern National Bank, 80 F.2d 260, 264 (5th Cir. 1935), is to permit a hard pressed debtor to use his exemption to obtain credit which in his extremity, may save him. To waive an exemption is certainly somewhat akin to conveying property. Thus, in Tribble v. Anderson, 63 Ga. 32 (1879), the question arose whether a waiver of homestead is effective if given in a usurious contract.",
"The court agreed that the waiver of homestead was not a conveyance but (at page 55) stated: [I]t is enough in the nature of a quitclaim title to be subject to the general rule ordained by statute against passing any kind of title to property for a usurious purpose or as part of a usurious contract. The homestead right is a right in property, and to waive it in favor of a creditor is substantially the same thing as to convey it away the same, certainly, in respect to putting the debtor in the power of the creditor. However, the authorities are unanimous that a waiver of exemption although in the nature of a conveyance does not convey title or create a lien. In Lockwood v. Exchange Bank, 190 U.S. 294, 23 S. Ct. 751, 47 L. Ed. 1061 (1902), the United States Supreme Court considered the rights of a creditor holding notes waiving homestead and exemption.",
"The question was whether such creditors had any right that the bankruptcy court could protect. The trustee had set aside the exempt property. These creditors wanted the bankruptcy court to distribute the otherwise exempt property to them. The Supreme Court held that the bankruptcy court had no jurisdiction over exempt property. The court held that the trustee had the duty to turn over exempt property to the debtor. The creditor was relegated to seek a state court receiver of the property set aside as exempt by the bankruptcy court. The court stated that the creditor holding waiver notes had \"no lien\" but \"an equity\" entitling him to reasonable postponement of the setting aside in order to institute state court actions to make effective his rights. The principles of the Lockwood case came before the Georgia Supreme Court in Bell v. Dawson Co., 120 Ga. 628, 48 S.E.",
"150 (1904). A creditor holding waiver notes sought a state court receiver to take charge of the property set aside to the debtor. This was in accord with the suggestion in Lockwood that the creditor present to the state court his \"equity,\" which could not be recognized by the bankruptcy court. The question before the Georgia Supreme Court was whether the creditor was entitled to the appointment of a state court receiver. The court noted the general rule was that a court of equity will not appoint a receiver except on the petition of one claiming title or having a lien. The court assumed that this general rule would preclude the appointment of a receiver. But the court made an exception to that rule because the creditor had no remedy at law and because the exempt property was \"in the nature of a security for the payment of the debt.\" The Georgia Supreme Court has remained clear that the holder of a note waiving homestead does not have a lien. In Bowen & Thomas v. Keller, 130 Ga. 31, 60 S.E. 174 (1907), the action by creditors holding waiver notes: hinges on the question whether the plaintiffs in error had acquired any lien which, after the discharge in bankruptcy of the defendant in error had been obtained and pleaded, was enforceable against the exemption set apart in bankruptcy and held by the receiver of the state court.",
"The court held there was no lien, not even an equitable lien. The court said: We can conceive of no rule of law, or principle of justice, which could be invoked as sustaining the plaintiff's contention that a lien in their favor existed against the fund in the possession of the court. . . . the only advantage the *634 . . . creditors holding waiver notes had over general creditors was to prevail in the collection of their debts as against any claim of homestead or exemption which the defendant in error might assert. This was repeated in Coffey v. Mitchell, 139 Ga. 430, 77 S.E. 561 (1912), where the court said: The mere fact that a creditor holds the note of his debtor, which contains a waiver of exemption rights, does not give the creditor any lien, equitable or otherwise, on property of the debtor which he has scheduled in bankruptcy and asked that it be set apart as exempt.",
"See Bowen v. Keller, 130 Ga. 31, 34, 60 S.E. 174, 124 Am. St. Rep. 164. This headnote was quoted as the law in Coppedge v. Bruce, 177 Ga. 277, 170 S.E. 35 (1933). This principle was reiterated in Massachusetts Mutual Life Insurance Co. v. Hirsch, 184 Ga. 636, 192 S.E. 435 (1937), where the court distinguishing the effect of a waiver of homestead and an assignment of homestead, said: A mere waiver of homestead or exemption contained in a note or other obligation in favor of a creditor does not give him any title, right, or lien, equitable or otherwise, on property of the debtor subsequently set apart to him in bankruptcy as exempt, such as would invalidate or defeat a valid assignment of such homestead or exemption subsequent to such waiver and prior to the bankruptcy.",
"The nature of the claim of the holder of a waiver note was described in In re Meredith, 144 F. 230 (N.D.Ga.1906)). There the court considered the question left open in Lockwood v. Exchange Bank, supra, whether the creditors holding waiver notes and thus having a claim against exempt assets could delay the bankruptcy proceedings until they could in state court get there share of the exempt property and then come into the bankruptcy court and participate with other unsecured creditors. The court noted that Section 57 of the Bankruptcy Act provides a means for secured creditors to have his security evaluated and thus establish quickly to what extent his claim is unsecured. The court said: While the creditors having notes with waiver of homestead and exemption have no lien, they have a peculiar claim against this special property, which the general creditors have not. The court went on to quote from Bell v. Dawson Co., 120 Ga. 628, 48 S.E. 150, that: The waiver becomes in the nature of a security, in that the debt may be made out of property owned by the debtor, without regard to any exemption rights which the debtor would have had but for the waiver.",
"The court concluded that the interest of the creditor holding a waiver note in the exempt property would be evaluated as would be the interest of a secured creditor in secured property. The nature of the waiver of homestead is best explicated by the Fifth Circuit in Kronstadt v. Citizens and Southern National Bank, 80 F.2d 260, 262-63 (5th Cir. 1935): Appellant admits that under the Constitution and laws of Georgia a creditor of a bankrupt who holds a note containing a waiver of exemption is, as to the exemption claimed by and set apart to the bankrupt, in a preferred position as to general creditors. Such a creditor may make his debt out of the exemption allowed the bankrupt, and neither the bankrupt nor the general creditor may complain.",
". . . . . . . Under the laws of Georgia a creditor holding a waiver note is in a position to satisfy his debt out of exempted property actually claimed by and set apart to the bankrupt. It confers no lien; it conveys no right in the exemption [citations]. Thus a creditor holding a general waiver has no interest in or title to the exemption; no right to have any property set aside to him, but only the right to insist that the bankrupt, after the exemption in bankruptcy has been set aside, claim it against him. *635 The discussion in Kronstadt v. Citizens and Southern National Bank was called excellent in Collier, Bankruptcy, § 6.10, note 13 (14th Ed.). Later in that Section, citing Kronstadt, Collier goes on to conclusion: While state law will determine whether a waiver-note creates a lien or conveys an estate to the creditor, where it contains nothing more than a mere waiver of exemption the usual rule is that no lien or estate is created in the creditor's favor. Thus, the waiver of exemption appears not to create a security interest.",
"The waiver has been regarded as in the nature of a quitclaim or security interest, but the courts are unanimous in stating that it transfers no title and creates no lien. 3. THE ASSIGNMENT OF EXEMPTION The assignment of exemption is not expressly authorized by the Georgia Statute, as is the waiver of exemption. The assignment clause was developed in disputes between creditors for priority, when one creditor held a waiver of homestead and another creditor held a subsequently executed assignment of exemption. Often in the early cases, the assignment would be given while the debtor was insolvent, had filed or was about to file a bankruptcy petition, with the intent of preferring the creditor to whom it was given over the creditor holding the earlier waiver of homestead. It was not then fraudulent or an otherwise vicious defeat or hindrance to creditors to so prefer a creditor.",
"Taylor Company v. Williams, 139 Ga. 581, 77 S.E. 386 (1912); Strickland Hardware Co. v. Fletcher, 152 Ga. 445, 110 S.E. 229 (1921). A transfer preferring a creditor was fraudulent only if the insolvent debtor was to receive some fresh consideration for the transfer. E. g., Pincus v. Meinland, 139 Ga. 365, 77 S.E. 82 (1912); Silver & Goldstein v. Chapman, 161 Ga. 203, 129 S.E. 842 (1925). In these disputes between the creditor holding a waiver of exemption and the creditor holding a subsequent assignment of exemption, the creditor holding the assignment often won.",
"These cases developed the extent to which the exemption was assignable. The rationale for holding the assignment valid was that title to property claimed as exempt never passes to the trustee but remains in the bankrupt, who could transfer it. The title being in the bankrupt, he can alienate the property set apart by the bankruptcy court before such time as he applies for and obtains a homestead and exemption . . .. It appears from the authorities above cited, that at the time the defendant sold the property set apart as exempt by the bankruptcy court .",
". . he had a right to sell [it] . . .. Pincus v. Meinhard & Brother, 139 Ga. 365, 77 S.E. 82 (1912). Each succeeding case validated an earlier assignment. In Pincus v. Meinhard it was held that the bankrupt could assign his interest in exempt property after the bankruptcy court had entered an order approving the trustee's report setting apart the exempt property. In Taylor Company v. Williams, 139 Ga. 581, 77 S.E. 386 (1912), it was held that the bankrupt could assign his interest in exempt property after the trustee had made his report setting apart the exempt property but before the bankruptcy court had approved it. In Strickland Hardware Co. v. Fletcher, 152 Ga. 445, 110 S.E.",
"229 (1921), it was held that the bankrupt could assign his interest in exempt property after he was adjudicated a bankrupt but before the trustee had made his report setting aside the exempt property and therefore before the court had approved such a report. The first reported case in which a creditor took an assignment of homestead at the same time he took the waiver of homestead was Saul v. Bower, 155 Ga. 450, 117 S.E. 86 (1923). The language of the waiver and assignment in that case was virtually identical to the case at bar. The question as presented by the court was: Was the assignment of the homestead and exemption, made prior to the time the exemption was set aside by the referee in bankruptcy, such a bare contingency *636 or possibility that it can not be the subject of transfer and sale, under the Civil Code (1910), § 4117? That section declares that \"A bare contingency or possibility can not be the subject of sale, unless there exists a present right in the person selling, to a future benefit.\" The court held that the right was assignable. The court reasoned that since the privilege of claiming the exemption can be waived and since Tribble v. Anderson, 63 Ga. 32 (1879) characterized the waiver as in the nature of a conveyance, the privilege should also be assignable. The court said at page 456 of 155 Ga., at page 89 of 117 S.E.",
": A general waiver of homestead is sufficient as a waiver [citation]; and, if a general waiver of a homestead is good, we see no reason why the transfer or assignment of a homestead is not good. . . . We are of the opinion that this assignment is not a bare contingency or possibility, but that the assignor is conveying what the law makes certain, and that is $1600 of his property under the constitutional homestead, or certain specified property which is named in the statutory homestead. The court did not discuss the seeming inconsistency of holding that a debtor could assign a privilege that he had waived.",
"Distinctions between the assignment and the waiver have been noted in several cases. In Southern Wholesale Corp. v. Pincus, 173 Ga. 421, 160 S.E. 377 (1931), it was stated that the assignment rests on different principles than the waiver. The difference on principles was not explained, but presumably the difference is that the assignment is more in the nature of a conveyance creating a security interest. The court noted one situation where the assignment would afford the creditor greater rights against the debtor than would be afforded by the waiver. That is the situation where the assignment or waiver is given when the creditor opens a general account. A waiver is effective only for the credit extended immediately on the opening of the account while the assignment is effective as against credit subsequently extended on the account. Although the assignment takes the form of a secured conveyance, the assignment of an exemption before an exemption is claimed clearly does not create a proper security interest, either in real estate or personal property. The reason is that the assignment does not sufficiently describe the property that may become exempt.",
"In In re Martin, 294 F. 368 (N.D.Ga.1923) (Sibley, D. J. ), the court was dealing with a waiver note. The court said (at page 370): His paper does not purport to transfer any specified property as security; but if it did, and although antedating the bankruptcy more than four months, for want of record and sufficient description of the property conveyed, it would fail. The assignment of an exemption would wholly fail to create a security interest in real estate under Georgia recording laws. Ga.Code Ann. §§ 67-102; 29-104; Crawford v. Verner, 122 Ga. 814, 50 S.E. 958 (1905); Commodity Credit Corp. v. Wells, 188 Ga. 287, 3 S.E.2d 642 (1939); Jaffrey v. Brown, 29 F. 476 (S.D.Ga.1886).",
"And, the assignment of an exemption would wholly fail to create a security interest in personal property. The Uniform Commercial Code requires that the description of property reasonably identify what is described. Ga. Code Ann. §§ 109A-9-110, 9-203(1)(b). Furthermore, there is no statutory contemplation that the assignment of an exemption creates a security interest. The Uniform Commercial Code defines the secured transactions excluded from Article 9. Ga. Code Ann. § 109A-9-104. An assignment of an exemption is not among them. The Georgia Supreme Court has also stopped short of pronouncing the assignment of an exemption to be a proper security interest. In Massachusetts Mutual Life Insurance Company v. Hirsch, 184 Ga. 636, 192 S.E. 435 (1937), one party urged that the assignment was in effect a bill of sale to secure debt. The court ruled that the party's contention would fail \"even if\" it was. An accurate characterization of the nature of an assignment of homestead is found in Kronstadt v. Citizens and Southern National Bank, 80 F.2d 260 (5th Cir.",
"*637 1935). That case said that the assignment, when given before the setting apart of an exemption, conveys \"an equitable, though inchoate interest, which becomes legal and fixed when it has been claimed and set apart.\" Based on this, the court held that a bankrupt could not defeat the holder of an assignment by withdrawing his claim to an exemption although he might have been able so to defeat a holder of a waiver. The holding in Kronstadt was severely limited, if not nullified by Novak v. O'Neal, 201 F.2d 227 (5th Cir. 1953). That case held that a bankrupt could defeat the holder of an assignment by not claiming his exemption, just as he could so defeat the holder of a waiver.",
"But, Novak v. O'Neal characterized the nature of the assignment much like Kronstadt. In Novak, it was characterized as \"only an inchoate estate which can never become perfected until such a claim is made by the bankrupt.\" Similarly, the court said that the assignment created an \"equitable obligation.\" The assignment of the exemption in this case takes from the debtor no rights not taken by the waiver. Since the transaction in this case is a loan, rather than an open account, the assignment's greater effectiveness with open accounts is immaterial.",
"Also, the assignment appears to be as ineffective as the waiver in the taking from the debtor the privilege of claiming an exemption as to wearing apparel and certain furniture. This was so held by this District Court in a case appealed and reported under the name of Leiter v. Steinbach, 184 F.2d 751 (5th Cir. 1950). The Fifth Circuit stated that the District Court so held but decided the case on other grounds. The additional rights afforded the creditor by taking the assignment in addition to the waiver are against other creditors. For example, in Kronstadt v. Citizens & Southern National Bank, supra, the question is whether the creditor holding the assignment will get the exempt property or whether the trustee will get it for general creditors.",
"True, the debtor may indirectly benefit if one creditor wins over another and his granting the assignment can affect the outcome of the struggle, but this ability to affect the outcome is more a circumstance than a right. In sum, the assignment taken in a note with the waiver of an exemption before the exemption is claimed does not create a proper security interest even though the assignment takes the form of a secured transaction. The description is insufficient for a security interest under real estate conveyances law and under Article 9 of the Uniform Commercial Code. The assignment takes from the debtor no rights not taken by the waiver.",
"It helps the creditor in disputes with other creditors and creates what may be characterized as an equitable obligation or inchoate interest. 4. TRUTH IN LENDING LAW The Truth in Lending Act requires the creditor to disclose a security interest. The Act does not define the term \"security interest\", but Regulation Z does. Regulation Z § 226.2(z) provides: \"Security interest\" and \"security\" means any interest in property which secures payment or performance of an obligation. The terms include, but are not limited to, security interest under the Uniform Commercial Code, real property mortgages, deeds of trust, and other consensual or confessed liens, whether or not recorded, mechanic's, materialman's, artisan's, and other similar liens, vender's liens in both real and personal property, the interest of a seller in a contract for the sale of real property, any lien on property arising by operation of law, and any interest in a lease when used to secure property or performance of an obligation. The administrative definition has been held to be a reasonable exercise of authority.",
"Charnita, Inc. v. Federal Trade Commission, 479 F.2d 684 (3rd Cir. 1973). The Regulation's definition of the term security interest does not have precise limits. It begins with a common definition, \"any interest in property which secures payment or performance of an obligation.\" *638 This is substantially the same definition as is found in the Uniform Commercial Code. See Ga.Code Ann. § 109A-1-201(37). Yet the Regulation's definition goes on to state that it includes but is not limited to a security interest under the Uniform Commercial Code and other types of security interest. Some guidance in determining the limits of the Regulation's definition of the term \"security interest\" can be found in staff opinion letter 1066, dated June 4, 1976, 5 CCH Consumer Credit Guide ¶ 31,406.",
"That letter advises that a seller's right of reclamation under Section 2-702 of the Uniform Commercial Code need not be disclosed as a security interest. That letter comes as the authorities split on whether that right of reclamation is a statutory lien invalid in bankruptcy because it becomes effective on insolvency. In re Wetson's Corp., 17 UCC Rep. Svc. 423 (Herzog, B. J. ); 4 Collier Bankruptcy § 67.281. That letter is not very helpful. But it is meaningful in recognizing that although there is no definite content to the term security interest, not every interest which can be considered a security interest is to be so considered under Regulation Z. Analogously, there is recognition that unnecessary disclosure may violate the Act by obscuring required disclosures. FRB Staff Opinion Letter 682, April 25, 1973.",
"The waiver and assignment of exemption in this note do not appear to create a security interest within the meaning of Regulation Z. They are not proper security interest under Georgia law. They amount basically to a waiver of the privilege of claiming the exemption. In accord with this, they are placed together with other waivers in this note. This is the typical way of viewing the so-called \"waiver of homestead\" in Georgia. No creditor holding such a waiver has ever regarded himself or been regarded as secured. Although the waiver of homestead is a discrete and well-known clause, discussed, for example, in 40 C.J.S. Homesteads § 179-186, the Federal Reserve Board has never indicated that its disclosure is required.",
"It is not necessary to tell the debtor that if he does not pay a judgment may be obtained against him or repossession costs may be assessed. Burrell v. City Dodge, Inc., C18739 (Hill, J., 1974). So it would seem unnecessary to tell him that he has waived any privilege that he might have of claiming an exemption of his property from a judicial levy and sale to satisfy a judgment. Plaintiff also contends that the clause dealing with waiver and assignment of exemption is unclear, confusing and misleading. Plaintiff bases this contention on the fact that the clause does not disclose that the waiver and assignment is ineffective as to wearing apparel and certain furniture.",
"Any required disclosure must be clear. Regulation Z § 226.6(a). If these clauses are required to be disclosed they would appear to violate the Act because the state law limitation is not disclosed. Cf. Pollock v. General Finance Co., 535 F.2d 295 (5th Cir. 1976). Pollock apparently nullifies the principle, set forth in Barret v. Vernie Jones Ford, 395 F. Supp. 904 (N.D.Ga.1975), that the creditor is required to disclose what rights he claims without regard to the enforceability of those rights.",
"But the clause dealing with waiver and assignment of exemption is not required to be disclosed. Therefore, it does not have to be clear, within the meaning of Regulation Z § 226.6(a). Furthermore, the clause does not appear to be additional information, within the meaning of Regulation Z § 226.6(c). That section appears to refer to additional information supplied with any required disclosure by way of explaining or supplementing the required disclosure. FRB Staff Opinion Letter 682, April 25, 1973. It provides that additional information must not be misleading or confusing.",
"This clause does not mislead or confuse. It is separate from the required disclosures. It is legally comprehensible, in that the exact language has been expounded upon many times by the Georgia and federal courts. Therefore, plaintiff's contention that the clause is unclear or misleading is not well taken. *639 C. USE OF TERM \"TOTAL FINANCE CHARGE\" Plaintiff contends that defendant violated the Act by using the term \"TOTAL FINANCE CHARGE,\" rather than \"Total FINANCE CHARGE.\" This is contrary to Bussey v. Georgia BankAmericard, 516 F.2d 452 (5th Cir. 1975). Plaintiff argues that Bussey was silently overruled by Pennino v. Morris Kirschman & Co., Inc., 526 F.2d 367 (5th Cir. 1976). In that case (at page 370), the court quoted with approval a district court in Virginia which held the opposite of Bussey. But the quotation was only of a general principle of liability for technical violations. Pennino noted the holding in the quoted case, but Pennino did not have before it and consequently did not hold anything with respect to use of the term \"TOTAL FINANCE CHARGE.\"",
"Thus, it would be improper to regard Pennino as silently overruling the holding in Bussey. III. CONCLUSION WHEREFORE, it is recommended that plaintiff's motion for reconsideration be denied. It is further recommended that plaintiff's request for a certificate of immediate review be denied, since this case can be quickly concluded. This 15 day of September, 1976. s/ Ezra H. Cohen EZRA H. COHEN BANKRUPTCY JUDGE, Sitting as Special Master NOTES [*] Letter dated July 16, 1976 from Stephen S. Gardner, Office of the Vice Chairman, Board of Governors, of the Federal Reserve System, to The Honorable William Proxmire, Chairman, Committee on Banking, Housing and Urban Affairs, United States Senate."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1594797/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
652 So. 2d 121 (1995) STATE of Louisiana v. Melvin FRANK. No. 94-KA-923. Court of Appeal of Louisiana, Fifth Circuit. March 1, 1995. *122 John M. Mamoulides, Terry M. Boudreaux, Dist. Attys. Office, 24th Judicial Dist. Court, Parish of Jefferson, Gretna, for plaintiff, appellee. Bruce G. Whittaker, Indigent Defender Bd., Gretna, for defendant, appellant. Before KLIEBERT, BOWES and GAUDIN, JJ. BOWES, Judge. The defendant, Melvin Frank, was convicted of theft of goods valued at $100.00 to $500.00 in violation of La.R.S. 14:67.10. Subsequently, the state filed a multiple bill of information, alleging defendant to be a fourth felony offender. After a hearing, the trial court found defendant to be a fourth felony offender and the defendant was sentenced to serve twenty years at hard labor, with credit for time served. Defendant made an oral motion to reconsider sentence, and the motion was denied. Defendant now appeals, alleging that the twenty year sentence is excessive. We affirm with an order. The evidence adduced at trial proved that on September 15, 1993, the defendant unlawfully removed twelve silk shirts with a value totalling $364.00 from the J.C. Penney store on Veterans Memorial Boulevard. In his first assignment of error, defendant contends that a twenty year sentence is disproportionate to the severity of his crime. Defendant asserts that as a fourth felony offender, he is ineligible for parole under La. R.S. 15:574.4; and because he is now 51 years old, his sentence of twenty years is tantamount to a life sentence. Both the United States and Louisiana Constitutions prohibit the imposition of excessive or cruel punishment. U.S.C. Const. Amend. VIII; La. Const. Art. I, Sec. 20. A sentence is generally considered unconstitutionally excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So. 2d 739 (La.1992), on subsequent appeal, 621 So. 2d 103 (La.1993); State v. Munoz, 575 So. 2d 848 (La.App. 5 Cir. 1991), writ denied, 577 So. 2d 1009 (La.1991). In reviewing a sentence for excessiveness, the court of appeal must consider the punishment and crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its *123 sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining sentence. State v. Davis, 449 So. 2d 452 (La.1984); State v. Jackson, 597 So. 2d 1188 (La.App. 5 Cir.1992). Even a sentence within the prescribed statutory limit may be found to violate defendant's constitutional right against excessive punishment if it is grossly disproportionate to the severity of the offense. State v. Riche, 608 So. 2d 639 (La.App. 5 Cir.1992), writ denied, 613 So. 2d 972 (La.1993). In this case, the twenty year sentence imposed on the defendant is the statutory minimum for four-time felony offenders under La.R.S. 15:529.1. The maximum sentence under the statute is life imprisonment. However, the Louisiana Supreme Court noted in the case of State v. Dorthey, 623 So. 2d 1276, 1280 (La.1993) that a trial court may, in certain circumstances, impose a lesser sentence than that which is mandated by the multiple offender statute: If, [in sentencing defendant] the trial judge were to find that the punishment mandated by R.S. 15:529.1 makes no "measurable contribution to acceptable goals of punishment" or that the sentence amounted to nothing more than "the purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the crime", he has the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive. At the time of sentencing, defense counsel asked that the judge exercise his discretion under the Dorthey holding in to impose a sentence below the statutory minimum. Counsel argued that defendant was merely a habitual shoplifter, and that his predicate convictions had not been for serious offenses. In response (or in opposition), the prosecutor stated that defendant had a total of fourteen prior convictions; the majority"at least two-thirds"of those were felonies, including one for burglary. After hearing the arguments of counsel, the judge elected to impose the minimum sentence within the statutory range. It is well settled that a sentence should not be set aside absent manifest abuse of discretion. State v. Davis, supra; State v. Anseman, 607 So. 2d 665 (La.App. 5 Cir. 1992), writ denied, 613 So. 2d 989 and 613 So. 2d 990 (La.1993); State v. Payne, 612 So. 2d 153 (La.App. 5 Cir.1992). Although the trial judge was not explicit in his reasons for sentencing, it is clear from the record that he was aware of the nature of the crime of which defendant was convicted, as well as the fact that defendant was a career criminal with a total of fourteen prior convictions (mostly felonies) including one for burglary. The sentence the judge imposed was not only within the statutory limits but was, in fact, the minimum sentence. Therefore, considering the totality of the circumstances, we cannot say that this sentence constitutes a manifest abuse of his discretion. In his second assignment of error, defendant requests that we conduct an error patent review. We have conducted such a review in compliance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So. 2d 337 (La.1975); and State v. Weiland, 556 So. 2d 175 (La.App. 5 Cir.1990). The only error that we find requiring action by this Court is that the trial judge failed to advise defendant of the time delay for filing for post-conviction relief. La. C.Cr.P. art. 930.8 dictates that at the time of sentencing the trial court shall inform the defendant of the prescriptive period for postconviction relief. In this case, the transcript of sentencing fails to reflect that the defendant was so informed. This defect has no bearing on whether the conviction is proper and thus is not grounds to reverse the sentence nor to remand the case for resentencing. La.C.Cr.P. art. 921; State v. Corley, 617 So. 2d 1292 (La.App. 3 Cir.1993). To satisfy the notice requirements, the district court is directed to inform defendant of the provisions of article 930.8 by sending appropriate written notice to the defendant within 10 days of the rendition of this opinion and to file written proof in the record that the defendant received the notice. State v. Kershaw, 94-141 (La.App. 5 Cir. 9/14/94), 643 So. 2d 1289. For the above discussed reasons, the conviction and sentence of the defendant are *124 affirmed. The district court is instructed to give the defendant the notice required by La.C.Cr.P. art 930.8. AFFIRMED WITH ORDER. | 10-30-2013 | [
"652 So. 2d 121 (1995) STATE of Louisiana v. Melvin FRANK. No. 94-KA-923. Court of Appeal of Louisiana, Fifth Circuit. March 1, 1995. *122 John M. Mamoulides, Terry M. Boudreaux, Dist. Attys. Office, 24th Judicial Dist. Court, Parish of Jefferson, Gretna, for plaintiff, appellee. Bruce G. Whittaker, Indigent Defender Bd., Gretna, for defendant, appellant. Before KLIEBERT, BOWES and GAUDIN, JJ. BOWES, Judge. The defendant, Melvin Frank, was convicted of theft of goods valued at $100.00 to $500.00 in violation of La.R.S. 14:67.10. Subsequently, the state filed a multiple bill of information, alleging defendant to be a fourth felony offender. After a hearing, the trial court found defendant to be a fourth felony offender and the defendant was sentenced to serve twenty years at hard labor, with credit for time served.",
"Defendant made an oral motion to reconsider sentence, and the motion was denied. Defendant now appeals, alleging that the twenty year sentence is excessive. We affirm with an order. The evidence adduced at trial proved that on September 15, 1993, the defendant unlawfully removed twelve silk shirts with a value totalling $364.00 from the J.C. Penney store on Veterans Memorial Boulevard. In his first assignment of error, defendant contends that a twenty year sentence is disproportionate to the severity of his crime. Defendant asserts that as a fourth felony offender, he is ineligible for parole under La. R.S.",
"15:574.4; and because he is now 51 years old, his sentence of twenty years is tantamount to a life sentence. Both the United States and Louisiana Constitutions prohibit the imposition of excessive or cruel punishment. U.S.C. Const. Amend. VIII; La. Const. Art. I, Sec. 20. A sentence is generally considered unconstitutionally excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So. 2d 739 (La.1992), on subsequent appeal, 621 So. 2d 103 (La.1993); State v. Munoz, 575 So. 2d 848 (La.App. 5 Cir.",
"1991), writ denied, 577 So. 2d 1009 (La.1991). In reviewing a sentence for excessiveness, the court of appeal must consider the punishment and crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its *123 sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining sentence. State v. Davis, 449 So. 2d 452 (La.1984); State v. Jackson, 597 So. 2d 1188 (La.App. 5 Cir.1992). Even a sentence within the prescribed statutory limit may be found to violate defendant's constitutional right against excessive punishment if it is grossly disproportionate to the severity of the offense. State v. Riche, 608 So.",
"2d 639 (La.App. 5 Cir.1992), writ denied, 613 So. 2d 972 (La.1993). In this case, the twenty year sentence imposed on the defendant is the statutory minimum for four-time felony offenders under La.R.S. 15:529.1. The maximum sentence under the statute is life imprisonment. However, the Louisiana Supreme Court noted in the case of State v. Dorthey, 623 So. 2d 1276, 1280 (La.1993) that a trial court may, in certain circumstances, impose a lesser sentence than that which is mandated by the multiple offender statute: If, [in sentencing defendant] the trial judge were to find that the punishment mandated by R.S. 15:529.1 makes no \"measurable contribution to acceptable goals of punishment\" or that the sentence amounted to nothing more than \"the purposeful imposition of pain and suffering\" and is \"grossly out of proportion to the severity of the crime\", he has the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive. At the time of sentencing, defense counsel asked that the judge exercise his discretion under the Dorthey holding in to impose a sentence below the statutory minimum. Counsel argued that defendant was merely a habitual shoplifter, and that his predicate convictions had not been for serious offenses.",
"In response (or in opposition), the prosecutor stated that defendant had a total of fourteen prior convictions; the majority\"at least two-thirds\"of those were felonies, including one for burglary. After hearing the arguments of counsel, the judge elected to impose the minimum sentence within the statutory range. It is well settled that a sentence should not be set aside absent manifest abuse of discretion. State v. Davis, supra; State v. Anseman, 607 So. 2d 665 (La.App. 5 Cir. 1992), writ denied, 613 So. 2d 989 and 613 So.",
"2d 990 (La.1993); State v. Payne, 612 So. 2d 153 (La.App. 5 Cir.1992). Although the trial judge was not explicit in his reasons for sentencing, it is clear from the record that he was aware of the nature of the crime of which defendant was convicted, as well as the fact that defendant was a career criminal with a total of fourteen prior convictions (mostly felonies) including one for burglary. The sentence the judge imposed was not only within the statutory limits but was, in fact, the minimum sentence. Therefore, considering the totality of the circumstances, we cannot say that this sentence constitutes a manifest abuse of his discretion. In his second assignment of error, defendant requests that we conduct an error patent review.",
"We have conducted such a review in compliance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So. 2d 337 (La.1975); and State v. Weiland, 556 So. 2d 175 (La.App. 5 Cir.1990). The only error that we find requiring action by this Court is that the trial judge failed to advise defendant of the time delay for filing for post-conviction relief. La. C.Cr.P. art. 930.8 dictates that at the time of sentencing the trial court shall inform the defendant of the prescriptive period for postconviction relief. In this case, the transcript of sentencing fails to reflect that the defendant was so informed. This defect has no bearing on whether the conviction is proper and thus is not grounds to reverse the sentence nor to remand the case for resentencing. La.C.Cr.P. art. 921; State v. Corley, 617 So. 2d 1292 (La.App. 3 Cir.1993). To satisfy the notice requirements, the district court is directed to inform defendant of the provisions of article 930.8 by sending appropriate written notice to the defendant within 10 days of the rendition of this opinion and to file written proof in the record that the defendant received the notice.",
"State v. Kershaw, 94-141 (La.App. 5 Cir. 9/14/94), 643 So. 2d 1289. For the above discussed reasons, the conviction and sentence of the defendant are *124 affirmed. The district court is instructed to give the defendant the notice required by La.C.Cr.P. art 930.8. AFFIRMED WITH ORDER."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1114204/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
FILED NOT FOR PUBLICATION JAN 12 2010
MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TOMEKO MALONE, No. 08-17451
Plaintiff - Appellant, D.C. No. 1:06-cv-00199-LJO-DLB
v. MEMORANDUM * C/O PETERSON,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE and CLIFTON, Circuit Judges.
Tomeko Malone, a California state prisoner, appeals pro se from the district
court’s summary judgment for defendants in his 42 U.S.C. § 1983 action alleging
that a prison official used excessive force against him when removing him from his
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
IL/RESEARCH prison cell. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de
novo an order granting summary judgment, Toguchi v. Chung, 391 F.3d 1051,
1056 (9th Cir. 2004), and we affirm.
The district court properly granted summary judgment on the Eighth
Amendment claim because Malone failed to raise a triable issue as to whether
Peterson’s use of physical force was more than de minimis, and whether the force
was used maliciously and sadistically to cause harm. See Hudson v. McMillian,
503 U.S. 1, 9-10 (1992).
AFFIRMED.
IL/RESEARCH 2 | 10-13-2015 | [
"FILED NOT FOR PUBLICATION JAN 12 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT TOMEKO MALONE, No. 08-17451 Plaintiff - Appellant, D.C. No. 1:06-cv-00199-LJO-DLB v. MEMORANDUM * C/O PETERSON, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding Submitted December 15, 2009 ** Before: GOODWIN, WALLACE and CLIFTON, Circuit Judges. Tomeko Malone, a California state prisoner, appeals pro se from the district court’s summary judgment for defendants in his 42 U.S.C. § 1983 action alleging that a prison official used excessive force against him when removing him from his * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir.",
"R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). IL/RESEARCH prison cell. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo an order granting summary judgment, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004), and we affirm. The district court properly granted summary judgment on the Eighth Amendment claim because Malone failed to raise a triable issue as to whether Peterson’s use of physical force was more than de minimis, and whether the force was used maliciously and sadistically to cause harm. See Hudson v. McMillian, 503 U.S. 1, 9-10 (1992). AFFIRMED. IL/RESEARCH 2"
]
| https://www.courtlistener.com/api/rest/v3/opinions/3031933/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Order of disbarment entered upon consent of respondent and upon certified copy of judgment of Erie County Court convicting respondent of the crime of grand larceny, first degree, on March 17, 1931, upon his plea of guilty. Present • — • Sears, P. J., Taylor, Edgeomb, Thompson and Crosby, JJ. | 01-08-2022 | [
"Order of disbarment entered upon consent of respondent and upon certified copy of judgment of Erie County Court convicting respondent of the crime of grand larceny, first degree, on March 17, 1931, upon his plea of guilty. Present • — • Sears, P. J., Taylor, Edgeomb, Thompson and Crosby, JJ."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5324648/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
288 N.W.2d 493 (1980) Luella Mae JOHNSON, Employee, Claimant and Appellant, v. SKELLY OIL COMPANY, A Corporation, Employer, Self-insurer and Respondent. No. 12512. Supreme Court of South Dakota. Argued September 17, 1979. Decided February 6, 1980. Rehearing Denied March 13, 1980. Ronald L. Schulz, of Loucks, Oviatt, Green & Schulz, Watertown, for employee, claimant and appellant. Laird Rasmussen, of Dana, Golden, Moore & Rasmussen, Sioux Falls, for employer, self-insurer and respondent. WOLLMAN, Chief Justice. Employee, Luella Mae Johnson, appeals from the circuit court's judgment reversing an award of worker's compensation benefits. We reverse and remand for reinstatement of the award. The Department of Labor (Department) found that Mrs. Johnson was a secretary for Skelly Oil Company in Watertown, that her duties consisted of secretarial duties and occasionally doing the office mailing at the Watertown post office after work, and that on Friday, October 6, 1972, it was her responsibility to do the evening mailing for the office. Because there were not enough stamps at the office at that time, she took the evening mail home with her, telling her husband she planned to do the mailing Monday morning when she could get more stamps. The Department found that on Monday, October 9, 1972, Mrs. Johnson was on her way to the post office to mail her employer's letters at the time of her accident; that the employer's letters were found in her automobile after the accident; that her injuries arose out of and in the usual course of her employment; that in attempting to mail her employer's letters she was within the course of employment and the injury arose out of and in the course of her employment; and that she was entitled to worker's compensation benefits from her employer, including all medical benefits and permanent disability compensation. *494 Respondent contends that the testimony of Mr. Johnson regarding his conversations with Mrs. Johnson on the morning of the accident contained inadmissible hearsay. We disagree. Mr. Johnson was allowed to testify that before she left for work Mrs. Johnson told him: "I have to stop at the postoffice to mail these letters that I brought home on Friday." Mr. Johnson also testified: "She told me she had run out of stamps and it was Friday and she would be mailing them Monday morning when she could get some stamps." SDCL 19-16-7 (Rule 803(3), Federal Rules of Evidence) provides that a "statement of the declarant's then existing state of mind . . . such as intent, plan, motive, design . . . is not excluded" by the hearsay rule. Although our new rules of evidence were not yet in effect at the time this action was heard by the Department, we conclude that SDCL 19-16-7 encompasses the common law rule of Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S. Ct. 909, 36 L. Ed. 706 (1892), that out-of-court statements that tend to prove a plan or intention of the declarant are admissible to prove that the plan or intention was carried out. Hillmon held that decedent's last letters stating his intention to leave Wichita with Hillmon were admissible to prove that he had in fact left Wichita with Hillmon. See also United States v. Annunziato, 293 F.2d 373 (2d Cir. 1961), cert. den. 368 U.S. 919, 82 S. Ct. 240, 7 L. Ed. 2d 134 (1961); Nuttall v. Reading Company, 235 F.2d 546 (3d Cir. 1956); Smith v. Slifer, 1 Cal. App. 3d 748, 81 Cal. Rptr. 871 (1969); McCormick, Evidence § 295, at 697 (2d Ed. 1972). Requirements for the use of a declarant's statement of plan or intention are that the statement "must be of a present existing state of mind, and must appear to have been made in a natural manner and not under circumstances of suspicion." 6 Wigmore, Evidence § 1725, at 129 (Chadbourn Rev.1976), citing United States v. Annunziato, supra. See also People v. Earnest, 53 Cal. App. 3d 734, 126 Cal. Rptr. 107 (1975) (statement of declarant's intention to burn house was properly received to prove that he did in fact do so); Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976). Pursuant to this common law rule, the Maryland Court of Appeals held that an employee's statement to his wife prior to leaving for work that it was necessary for him to go to work that morning in order to deliver a gear wheel to his employer was admissible to prove that the employee was in the course of his employment when he was killed while walking from his automobile to his place of employment. Maryland Paper Products Co. v. Judson, 215 Md. 577, 139 A.2d 219 (1958). The Supreme Court of Nebraska recently held that statements made before the declarant left on the journey during which he was killed were admissible under Nebraska's equivalent of Rule 803(3). Decedent's last phone calls to his wife and father and his discussion with an acquaintance tended to establish the business nature of the trip. These statements were admissible because they evidenced "an intent, design, or plan to do some specific act in the future." Fite v. Ammco Tools, Inc., 199 Neb. 353, 258 N.W.2d 922, 925 (1977). Accordingly, we hold that Mr. Johnson's testimony was properly admitted.[1] In reversing the Department's decision, the circuit court cited Marks' Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929), in which then Chief Judge Cardozo set out the following test to determine workmen's compensation coverage: To establish liability, the inference must be permissible that the trip would have been made though the private errand had been canceled. . . The test in *495 brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. . . . If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped . . . the travel is then personal, and personal the risk. 167 N.E. at 183. Professor Larson summarizes the dual-purpose rule as follows: [W]hen a trip serves both business and personal purposes, it is a personal trip if the trip would have been made in spite of the failure or absence of the business purpose and would have been dropped in the event of failure of the private purpose, though the business errand remained undone; it is a business trip if a trip of this kind would have been made in spite of the failure or absence of the private purpose, because the service to be performed for the employer would have caused the journey to be made by someone even if it had not coincided with the employee's personal journey. 1 Larson, Workmen's Compensation, § 18.12 at 4-218 (1978). Professor Larson cautions against misinterpreting the Marks v. Gray test: It is inaccurate and misleading to call this test, as sometimes has been done, the "dominant purpose" test, or to paraphrase it by saying that the trip is a business trip if the "primary" purpose is business. Judge Cardozo used no such language. He said it was sufficient if the business motive was a concurrent cause of the trip. He then defined "concurrent cause" by saying that it meant a cause which would have occasioned the making of the trip even if the private mission had been canceled. . . . Once this test is satisfied, there is no occasion to weigh the business and personal motives to determine which is dominant. If my employer tells me to drive to Chicago to buy a machine-bolt of a particular size, the main trip will remain a business trip even if, while in Chicago, I take the opportunity to visit relatives, buy a house, sell my car, report to the draft board, stock up on groceries for the coming week, and buy a complete spring wardrobe. The fact that the personal purpose outweighs the business in the sense that I return with one ounce of goods for my employer and 200 pounds of goods for myself is completely immaterial, as long as it can be said that the business trip had to be taken and would have been taken in any case.
Larson, supra, § 18.13 at 4-228-30 (citations omitted) (emphasis added). Further, Larson points out that it is not necessary, under this formula, that, on failure of the personal motive, the business trip would have been taken by this particular employee at this particular time. It is enough that someone sometime would have had to take the trip to carry out the business mission. Perhaps another employee would have done it; perhaps another time would have been chosen; but if a special trip would have had to be made for this purpose. . . it was a concurrent cause of the trip . . . . Larson, supra, § 18.13 at 4-229 (citations omitted) (emphasis in original). "When an employee, in the course of his normal journey off the premises to and from work, performs some concurrent service for his employer," the question becomes: Was the business mission of such character that it would have necessitated a trip by someone if this employee had not been able to handle it in combination with his journey? Larson, supra, § 18.21 at 4-238. If the answer is yes, the employee should be deemed to be within the course of his employment. We conclude that the Department's findings, including the finding that Mrs. Johnson was on her way to the post office *496 to mail the letters at the time of the accident, are amply supported by substantial evidence on the whole record, which was the standard of review at the time of the proceedings below. SDCL 1-26-36(5).[2] Our review of the Department's findings stands on the same footing as that of the circuit court and is unaided by any presumption that the circuit court's decision is correct. Piper v. Neighborhood Youth Corps, 241 N.W.2d 868 (S.D.1976). In a case similar to the case at bar, an Indiana appellate court held that it was in the course of decedent's duty to carry funds belonging to his employer for deposit in a bank near decedent's home, and that at the time of the accident, decedent was carrying cash and checks of his employer for deposit. The evidence that decedent was carrying his employer's funds at the time of the accident and that he was to deposit them before returning to work in the morning "was sufficient to warrant the [Industrial] Board in finding a causal connection between the accident and his employment," justifying compensation under the Workmen's Compensation Act. Kariger Motors, Incorporated v. Kariger, 132 Ind.App. 85, 173 N.E.2d 916, 920 (1961). In accord with Kariger is Travelers Insurance Company v. Moore, 115 Ga.App. 295, 154 S.E.2d 385 (App.1967). An employee was killed on his way to the office in the morning. He had made collections the day before, taken them home with him that night, and was bringing them to the office the next morning when he was killed en route to work. Compensation was awarded on the ground that decedent was fulfilling a business duty at the time of the accident, even though he was also driving to work. See also Skolnick v. Elgin Chair, Inc., 273 A.D. 833, 75 N.Y.S.2d 840 (1948). Applying the Marks v. Gray test as elaborated on by Professor Larson, we conclude that Mrs. Johnson's injuries are compensable. Had work been called off for some reason at the Skelgas store the morning of the accident, either Mrs. Johnson or another employee would still have had to make a trip to the post office to mail the business letters. Our decision in this case is in accord with the long-standing rule that the worker's compensation law is to be liberally construed in favor of the employee, recently restated in and exemplified by our decision in Bearshield v. City of Gregory, 278 N.W.2d 166 (S.D.1979). Once the Department's findings are accepted as being supported by substantial evidence, the conclusion follows that Mrs. Johnson's injuries arose out of and in the course of her employment. Although the mailing of several letters may not constitute a major task, the inference is permissible, if not compelled, that Mrs. Johnson would have made the trip to the post office that ill-fated day had her secretarial duties at the office been cancelled. That being the case, the dual-purpose test is satisfied. The judgment of the trial court is reversed, and the case is remanded to the trial court with directions to remand the matter to the Department of Labor for reinstatement of the award of compensation and for determination of the amount of compensation due the employee. All the Justices concur. NOTES [1] We note also that in Dail v. South Dakota Real Estate Com'n, 257 N.W.2d 709 (S.D.1977), we held that SDCL 1-26-19 provides an exception to the hearsay rule if the evidence is "probative of a fact not reasonably susceptible of proof under normal rules, and [if it is] of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs." 257 N.W.2d at 712. [2] As amended in 1978, 1978 S.D.Sess.L. ch. 17, SDCL 1-26-36(5) now incorporates the "clearly erroneous" standard of review. | 10-30-2013 | [
"288 N.W.2d 493 (1980) Luella Mae JOHNSON, Employee, Claimant and Appellant, v. SKELLY OIL COMPANY, A Corporation, Employer, Self-insurer and Respondent. No. 12512. Supreme Court of South Dakota. Argued September 17, 1979. Decided February 6, 1980. Rehearing Denied March 13, 1980. Ronald L. Schulz, of Loucks, Oviatt, Green & Schulz, Watertown, for employee, claimant and appellant. Laird Rasmussen, of Dana, Golden, Moore & Rasmussen, Sioux Falls, for employer, self-insurer and respondent. WOLLMAN, Chief Justice. Employee, Luella Mae Johnson, appeals from the circuit court's judgment reversing an award of worker's compensation benefits. We reverse and remand for reinstatement of the award. The Department of Labor (Department) found that Mrs. Johnson was a secretary for Skelly Oil Company in Watertown, that her duties consisted of secretarial duties and occasionally doing the office mailing at the Watertown post office after work, and that on Friday, October 6, 1972, it was her responsibility to do the evening mailing for the office. Because there were not enough stamps at the office at that time, she took the evening mail home with her, telling her husband she planned to do the mailing Monday morning when she could get more stamps. The Department found that on Monday, October 9, 1972, Mrs. Johnson was on her way to the post office to mail her employer's letters at the time of her accident; that the employer's letters were found in her automobile after the accident; that her injuries arose out of and in the usual course of her employment; that in attempting to mail her employer's letters she was within the course of employment and the injury arose out of and in the course of her employment; and that she was entitled to worker's compensation benefits from her employer, including all medical benefits and permanent disability compensation.",
"*494 Respondent contends that the testimony of Mr. Johnson regarding his conversations with Mrs. Johnson on the morning of the accident contained inadmissible hearsay. We disagree. Mr. Johnson was allowed to testify that before she left for work Mrs. Johnson told him: \"I have to stop at the postoffice to mail these letters that I brought home on Friday.\" Mr. Johnson also testified: \"She told me she had run out of stamps and it was Friday and she would be mailing them Monday morning when she could get some stamps.\" SDCL 19-16-7 (Rule 803(3), Federal Rules of Evidence) provides that a \"statement of the declarant's then existing state of mind . . . such as intent, plan, motive, design . . . is not excluded\" by the hearsay rule. Although our new rules of evidence were not yet in effect at the time this action was heard by the Department, we conclude that SDCL 19-16-7 encompasses the common law rule of Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S. Ct. 909, 36 L. Ed. 706 (1892), that out-of-court statements that tend to prove a plan or intention of the declarant are admissible to prove that the plan or intention was carried out.",
"Hillmon held that decedent's last letters stating his intention to leave Wichita with Hillmon were admissible to prove that he had in fact left Wichita with Hillmon. See also United States v. Annunziato, 293 F.2d 373 (2d Cir. 1961), cert. den. 368 U.S. 919, 82 S. Ct. 240, 7 L. Ed. 2d 134 (1961); Nuttall v. Reading Company, 235 F.2d 546 (3d Cir. 1956); Smith v. Slifer, 1 Cal.",
"App. 3d 748, 81 Cal. Rptr. 871 (1969); McCormick, Evidence § 295, at 697 (2d Ed. 1972). Requirements for the use of a declarant's statement of plan or intention are that the statement \"must be of a present existing state of mind, and must appear to have been made in a natural manner and not under circumstances of suspicion.\" 6 Wigmore, Evidence § 1725, at 129 (Chadbourn Rev.1976), citing United States v. Annunziato, supra. See also People v. Earnest, 53 Cal. App. 3d 734, 126 Cal. Rptr. 107 (1975) (statement of declarant's intention to burn house was properly received to prove that he did in fact do so); Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976). Pursuant to this common law rule, the Maryland Court of Appeals held that an employee's statement to his wife prior to leaving for work that it was necessary for him to go to work that morning in order to deliver a gear wheel to his employer was admissible to prove that the employee was in the course of his employment when he was killed while walking from his automobile to his place of employment.",
"Maryland Paper Products Co. v. Judson, 215 Md. 577, 139 A.2d 219 (1958). The Supreme Court of Nebraska recently held that statements made before the declarant left on the journey during which he was killed were admissible under Nebraska's equivalent of Rule 803(3). Decedent's last phone calls to his wife and father and his discussion with an acquaintance tended to establish the business nature of the trip.",
"These statements were admissible because they evidenced \"an intent, design, or plan to do some specific act in the future.\" Fite v. Ammco Tools, Inc., 199 Neb. 353, 258 N.W.2d 922, 925 (1977). Accordingly, we hold that Mr. Johnson's testimony was properly admitted. [1] In reversing the Department's decision, the circuit court cited Marks' Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929), in which then Chief Judge Cardozo set out the following test to determine workmen's compensation coverage: To establish liability, the inference must be permissible that the trip would have been made though the private errand had been canceled.",
". . The test in *495 brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. . . . If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped . . . the travel is then personal, and personal the risk. 167 N.E.",
"at 183. Professor Larson summarizes the dual-purpose rule as follows: [W]hen a trip serves both business and personal purposes, it is a personal trip if the trip would have been made in spite of the failure or absence of the business purpose and would have been dropped in the event of failure of the private purpose, though the business errand remained undone; it is a business trip if a trip of this kind would have been made in spite of the failure or absence of the private purpose, because the service to be performed for the employer would have caused the journey to be made by someone even if it had not coincided with the employee's personal journey. 1 Larson, Workmen's Compensation, § 18.12 at 4-218 (1978). Professor Larson cautions against misinterpreting the Marks v. Gray test: It is inaccurate and misleading to call this test, as sometimes has been done, the \"dominant purpose\" test, or to paraphrase it by saying that the trip is a business trip if the \"primary\" purpose is business.",
"Judge Cardozo used no such language. He said it was sufficient if the business motive was a concurrent cause of the trip. He then defined \"concurrent cause\" by saying that it meant a cause which would have occasioned the making of the trip even if the private mission had been canceled. . . . Once this test is satisfied, there is no occasion to weigh the business and personal motives to determine which is dominant. If my employer tells me to drive to Chicago to buy a machine-bolt of a particular size, the main trip will remain a business trip even if, while in Chicago, I take the opportunity to visit relatives, buy a house, sell my car, report to the draft board, stock up on groceries for the coming week, and buy a complete spring wardrobe. The fact that the personal purpose outweighs the business in the sense that I return with one ounce of goods for my employer and 200 pounds of goods for myself is completely immaterial, as long as it can be said that the business trip had to be taken and would have been taken in any case.",
"Larson, supra, § 18.13 at 4-228-30 (citations omitted) (emphasis added). Further, Larson points out that it is not necessary, under this formula, that, on failure of the personal motive, the business trip would have been taken by this particular employee at this particular time. It is enough that someone sometime would have had to take the trip to carry out the business mission. Perhaps another employee would have done it; perhaps another time would have been chosen; but if a special trip would have had to be made for this purpose. . . it was a concurrent cause of the trip . .",
". . Larson, supra, § 18.13 at 4-229 (citations omitted) (emphasis in original). \"When an employee, in the course of his normal journey off the premises to and from work, performs some concurrent service for his employer,\" the question becomes: Was the business mission of such character that it would have necessitated a trip by someone if this employee had not been able to handle it in combination with his journey? Larson, supra, § 18.21 at 4-238. If the answer is yes, the employee should be deemed to be within the course of his employment. We conclude that the Department's findings, including the finding that Mrs. Johnson was on her way to the post office *496 to mail the letters at the time of the accident, are amply supported by substantial evidence on the whole record, which was the standard of review at the time of the proceedings below.",
"SDCL 1-26-36(5). [2] Our review of the Department's findings stands on the same footing as that of the circuit court and is unaided by any presumption that the circuit court's decision is correct. Piper v. Neighborhood Youth Corps, 241 N.W.2d 868 (S.D.1976). In a case similar to the case at bar, an Indiana appellate court held that it was in the course of decedent's duty to carry funds belonging to his employer for deposit in a bank near decedent's home, and that at the time of the accident, decedent was carrying cash and checks of his employer for deposit. The evidence that decedent was carrying his employer's funds at the time of the accident and that he was to deposit them before returning to work in the morning \"was sufficient to warrant the [Industrial] Board in finding a causal connection between the accident and his employment,\" justifying compensation under the Workmen's Compensation Act.",
"Kariger Motors, Incorporated v. Kariger, 132 Ind.App. 85, 173 N.E.2d 916, 920 (1961). In accord with Kariger is Travelers Insurance Company v. Moore, 115 Ga.App. 295, 154 S.E.2d 385 (App.1967). An employee was killed on his way to the office in the morning. He had made collections the day before, taken them home with him that night, and was bringing them to the office the next morning when he was killed en route to work. Compensation was awarded on the ground that decedent was fulfilling a business duty at the time of the accident, even though he was also driving to work. See also Skolnick v. Elgin Chair, Inc., 273 A.D. 833, 75 N.Y.S.2d 840 (1948). Applying the Marks v. Gray test as elaborated on by Professor Larson, we conclude that Mrs. Johnson's injuries are compensable.",
"Had work been called off for some reason at the Skelgas store the morning of the accident, either Mrs. Johnson or another employee would still have had to make a trip to the post office to mail the business letters. Our decision in this case is in accord with the long-standing rule that the worker's compensation law is to be liberally construed in favor of the employee, recently restated in and exemplified by our decision in Bearshield v. City of Gregory, 278 N.W.2d 166 (S.D.1979). Once the Department's findings are accepted as being supported by substantial evidence, the conclusion follows that Mrs. Johnson's injuries arose out of and in the course of her employment. Although the mailing of several letters may not constitute a major task, the inference is permissible, if not compelled, that Mrs. Johnson would have made the trip to the post office that ill-fated day had her secretarial duties at the office been cancelled. That being the case, the dual-purpose test is satisfied. The judgment of the trial court is reversed, and the case is remanded to the trial court with directions to remand the matter to the Department of Labor for reinstatement of the award of compensation and for determination of the amount of compensation due the employee. All the Justices concur.",
"NOTES [1] We note also that in Dail v. South Dakota Real Estate Com'n, 257 N.W.2d 709 (S.D.1977), we held that SDCL 1-26-19 provides an exception to the hearsay rule if the evidence is \"probative of a fact not reasonably susceptible of proof under normal rules, and [if it is] of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.\" 257 N.W.2d at 712. [2] As amended in 1978, 1978 S.D.Sess.L. ch. 17, SDCL 1-26-36(5) now incorporates the \"clearly erroneous\" standard of review."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1938347/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K (MarkOne) ☒ ANNUAL REPORT PURSUANT TO SECTION13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF1934 | [
"UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K (MarkOne) ☒ ANNUAL REPORT PURSUANT TO SECTION13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF1934"
]
| 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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145. The new President (of the General Assembly) is an experienced diplomat who has served with distinction both inside and outside the United Nations. That background will enable him to guide us with the right decisions in this difficult year. As an indication of his capacity for achievement, I would cite the fact that he personally participated in the talks that led to a spectacular increase in the commercial relations between our two countries over the past five years. I therefore welcome his election and also commend the performance of his predecessor. 146. With great pleasure, I warmly salute Vanuatu and Belize on their independent status among the brotherhood of nations. 147. In many ways, 1981 has so far been a precarious year for the international community. Feelings of unease and foreboding, foreseen last year, continue to pervade the international stage. The miasma of tension has inevitably increased with the appearance of new problems; it has also been exacerbated by our collective inability to solve longstanding ones. 148. Crucial elements of international behavior which held out some promise throughout most of the last decade have been fundamentally if not irreversibly altered. 149. Detente has withered as a result of a multiplicity of factors, not least through foreign military intervention in Afghanistan. It is now frozen by the icy blasts emerging from a new cold war mentality between the superPowers. Confrontation seems to be preferred to negotiation. Traditional rules of conduct among nations are under question. 150. Perhaps most alarming of all, there is a growing tendency to regard atomic explosives as everyday weapons to be openly brandished and for their use considered to be as a viable option. Important issues such as human rights, welfare and development have been relegated to a subordinate position. 151. Unbelievably, the potentially cataclysmic dangers inherent in this evolving situation seem to receive scant attention in responsible Government circles preoccupied by national priorities. Even more ominously, in countries where freedom of expression is rightly considered sacrosanct, articulate spokesmen are dismissing the increasing popular outcry against projected weapons systems and against dangerous new strategic doctrines as being at best inspired by a well-orchestrated propaganda campaign organized from outside those countries or at worst as "appeasement". Those of us, individuals or nations, who singly or collectively dare protest our unwanted role as pawns in the strategic danse macabre between the superPowers are routinely ridiculed as outright pacifists or dismissed as heretical voices crying in the wilderness. 152. Yet, as understanding of the dangers involved increases, these popular movements are bound to grow. For as long as they are genuine and spontaneous, they should be encouraged throughout the world, and the United Nations needs to play a fa more assertive role in providing accurate and easily readable information on these questions of such vital importance to human survival. 153. Last year I mentioned the growing fear that mankind would suffer a nuclear exchange in the timespan of the current generation. Recent developments have shown that this fear is no deviant flight of public fancy. The bilateral arms control process has been largely replaced by candidly bellicose statements. Today we face a situation where far-reaching foreign policy decisions for the future are being molded by reference to military hardware. 154. The present psychosis of insecurity and tension will dangerously restrict the real options available in the future. Experience has shown that no sooner is a weapons system devised than its deployment is rationalized. The prospect of rendering arms control even more illusory than it has been in the past is therefore very real. 155. In his report on the work of the Organization [A/36/1], the Secretary General has comprehensively and accurately drawn the parameters of the major problems on which we have expended so much energy, unfortunately to little avail. The report must serve as our blueprint for action. The Secretary General again merits our appreciation for his unstinting efforts, and his promptings should not fall on deaf ears. I shall refrain from dwelling on every point of his analysis, but there are some areas which really call for comment, albeit brief. 156. Apart from the revolting folly and danger of the spiraling nuclear arms race, it should be evident by now that the massive injection of sophisticated weaponry into so many highly sensitive areas of the world provides no stability, but instead heightens tension and jeopardizes political solutions. 157. The most striking example of the futility and cost of this approach is provided by the Middle East. Today's tragic event grimly underlines this point. Fed by lavish supplies of sophisticated weaponry, actions on the spot have succeeded only in fueling the fires of resentment and alienation, even when major conflict has been contained. 158. Impervious to worldwide criticism, Israel has relentlessly pressed ahead with longterm and ever-increasing land-seizure operations in the occupied territories. One controversial plan envisages the settlement of 3GC,000 Israelis there by the turn of the century. The status of Jerusalem is grossly violated. 159. These tactics will afford neither peace nor repose for Israel and its neighbors. The process of colonization contemptuously flaunts a series of unanimous resolutions of the Security Council. Without doubt, Israel's Draconian impression will perpetuate the present cycle of unrest. 160. And Lebanon, once an island of democracy and tranquility in the region, has been caught in the web of violence. It has been bombed relentlessly and its territory violated with little regard for the lives of civilians. Hie Iraqi nuclear reactor, subject to IAEA safeguards, has been subjected to an Israeli attack in a new and ominous development with worldwide implications. 161. The shortsighted attempt to leave out the leaders of the Palestinian people in the search for a lasting peace is undemocratic, unjust and unrealistic. The recognized rights of the Palestinian people cannot be ignored in this day and age. They are a separate people with a legitimate right to their own homeland, like any other existing State in the family of nations. For far too long the PLO has been excluded from the negotiating process. As the authentic representative of the people of Palestine, it must be actively involved in the determination of its own destiny. 162. The situation in Korea is another example. The popular movement for reunification is stifled. Foreign troops remain on Korea's soil, their weapons constantly modernized, and there are fears of nuclear complications. Tension remains high, and political initiatives are consequently inhibited. 163. Similarly, the consequences of the illegal, foreign, armed intervention in sensitive areas such as Cyprus, Kampuchea and Afghanistan continue to complicate and retard the prospects of indigenous, democratic progress, free from outside interference. 164. Meanwhile, the victims of apartheid languish under an obscene system, shortchanged by the caprices of big business and power-politics. The disinherited of this earth die of hunger, malnutrition and illiteracy. For every ounce of life-sustaining food that those people crave, an unresponsive world recklessly squanders thousands of tons of death-dealing weaponry. 165. As if old problems were not enough, unfortunately new areas of bigPower confrontation are emerging. The dramatic buildup of superPower naval forces in the Indian Ocean over the past few years is causing growing concern among the 36 countries in the region. The Indian Ocean is being rapidly transformed into a vast military naval playground. Those ambitious deployments do not augur well for the zone-of-peace objectives in that and other promising areas. 166. The economic and social consequences of the arms race obviously harm irreparably prospects for implementation of a new international economic order based on justice, equity and cooperation. As an island developing country, Malta is all too aware of the myriad difficulties facing the developing world. 167. At this crucial point we express the hope that the silence on the North-South dialog will at least, and at last, be broken. Recent authoritative studies have proved invaluable and as yet unsurpassed signposts to further action. Those signposts have so far been virtually ignored in the quarters to which they were principally directed. Notwithstanding their shortcomings, however, those reports must remain the basis in the search for just political and economic change. 168. Those are some of the most intractable political problems, inherited from the past, in which the major Powers are involved with diametrically opposed policies. But results are disheartening, even in comparatively new fields of human endeavor. The negotiations on the Convention of the Law of the Sea are still deferred, and the expected results fall far short of Malta's original expectations. The proposed convention has sanctioned an unabashed ocean-ward expansion by coastal States, severely eroding' the area originally conceived as the common heritage of mankind, thus deferring benefits to developing and landlocked countries for many years. 169. Despite this erosion, however, we recognize that the negotiations represent a broad consensus amongst nations and, while pointing out its evident shortcomings, we still hope that the convention will be agreed to by all countries without exception next year. We also trust that there will be no national legislation which will in effect dilute the convention and its universal objectives. 170. The question of remnants of war was included in the agenda of the Assembly [see item 69 j], and has been for several years now. We are encouraged by the fact that the international community overwhelmingly recognizes that countries have the responsibility of removing at their own expense, remnants which they planted, and also that States responsible should make available maps and other relevant information concerning the location and type of remnants of war they left behind. 171. We now feel that this matter, which is assuming critical importance for many developing countries, should be taken up more forcefully as a priority item, perhaps through the convening of an international conference at an early date, so that matters can be analyzed in depth. 172. Many countries throughout the world are suffering severe economic consequences from the extensive use of explosives during and after the last war, and it is only fair that those responsible should help in removing the adverse consequences of their actions in countries which were the helpless victims of war waged on, or over, their national territory by outside Powers. 173. My own country is one of them. It was the most heavily bombed area during the last world war. In addition, against the advice of the elected Maltese representatives, and with knowledge and foresight of the dangerous and long-lasting consequences, the British Government for several years used the island of Filfla, off the coast of Malta, as a training-ground for aerial bombing. As a result of these combined factors, the seabed surrounding Malta, particularly that of our harbors, and the surface area of Filfla are littered with hundreds of thousands of unexploded bombs, in addition to the wrecks of several surface ships that were victims of the vicious bombardment. In fact, only last week a citizen of Malta fell victim, in the prime of his life, to one of those bombs. 174. These hazardous remnants of war are seriously impeding our efforts at economic development, particularly as regards deepening our harbors in order to attract the shipping of the future. Patient bilateral contacts with the British Government to secure help and redress in locating and removing the dangerous war material they left behind have proved unavailing. As a result, Britain, even after its departure from Malta, is in effect impeding us from utilizing our territory to its maximum potential. We have raised this matter before the Council of Europe, and a fact-finding mission has recently visited Malta to determine for itself the gravity of the situation and to report thereon. 175. We shall follow up matters in the Council of Europe, but. we also intend to give more details in the Second Committee when the report of the Governing Council of UNEP is discussed, and we trust that there will be a positive response and effective action to deal with serious problems of this nature. 176. In the social field, questions covering Shakespeare's seven ages of man from childhood, youth and adulthood to old age are being discussed in the United Nations. In that regard at least we can discern encouraging signs of positive interest. 177. The International Year of Disabled Persons is drawing to a close. The interest generated by activities around the world in favor of the less fortunate members of human society will undoubtedly remain. We look forward to a fitting climax to these activities when the Assembly takes up the item in plenary meeting later on in the session. 178. The cause of the elderly and the aged is one which my country has been championing for a number of years. The World Assembly on Aging is now envisaged for 1982, and the Advisory Committee to prepare for that event has already held a preliminary meeting this year. More work has to be done, and I expect the Assembly will give the Advisory Committee the necessary time and means to complete its work for the World Assembly. 179. The problems of the elderly are intimately associated with social and economic development for many nations. The foresight of the United Nations with regard to this question is timely, for by the turn of the century the problem of the elderly and the aged could assume serious dimensions for many developing countries. Action taken now will therefore alleviate economic and social disruption in the future. The World Assembly on Aging should therefore highlight needs and plan for the future. 180. It is not . only world organizations that founder on the rocks of EastWest confrontation: regional meetings are not faring much better. We previously expressed the hope that the Madrid review session of the Conference on Security and Cooperation in Europe would prove to be action-oriented. We recognize that if detente is ever to be revived, it should not reappear merely as a useful slogan, devoid of practical application. 181. The Conference on Security and Cooperation in Europe provides many opportunities for actual implementation of stated objectives. So far, we have witnessed at Madrid a prolonged exercise in sterile debate, dominated by deadlock. Malta deeply regrets the absence of any genuine movement, even on political initiatives which clearly implement provisions of the Final Act of the Conference on Security and Cooperation in Europe, which was signed at Helsinki in 1975, subscribed to by all participants. 182. It is certainly not an easy task to identify the cause of the limited performance by the Organization and others on old and new political issues appearing on the agenda. More so than at any other time in history, many of the issues before us are characterized by their interrelatedness. Failure to act constructively in one area creates a spillover effect which hampers progress in other areas. This linkage gives rise to great potential dangers. But at the same time it presents us with a fertile source of opportunity for progress, if we are all prepared to assume our share of responsibility. 183. One overriding and extremely dangerous element stands out clearly in any review of the contemporary international situation. The uncompromising polarization in attitudes between the superPowers has resulted in entrenchment being the' order of the day and has now completely paralyzed the Organization and the negotiating process. The air is thick with passionate accusations that one or the other of the superPowers is accountable for all our international troubles. In many critical spheres, obsession with doctrine or ideology is rapidly overtaking rational policymaking. Longstanding problems cry out for redress, but, in this regrettable atmosphere, the voice of sanity, reason and justice is in danger of going unheard. 184. In a shrinking world, the spheres of interest of the major Powers continue to extend and practically encircle the globe, and even to penetrate outer space. It is therefore understandable that the major Powers attract so much attention and, at times, justified criticism. For military and economic power and influence.carry with them the onus of responsibility; to indulge in cavalier behavior or doctrinal myopia is to play with fire. Hie spread of their exacerbating instability elsewhere must be guarded against. 185. I believe that the countries of the third world unequivocally reject the harsh dualism of the two superPowers in considering the future of a planet which belongs to all mankind. In the absence of leadership by the superPowers, in the absence of any semblance of cooperation, this dualism has become a pernicious doctrine whose apparent end-result is to scar the landscape with more nuclear weapons, ostensibly to prevent Armageddon, but equally to be prepared to start it. The superPowers must turn away from their present volatile antagonism, and they need help in order to do so. 186. In these circumstances, the 20-year-old nonaligned movement has to assume a more dynamic and independent role. If the movement acts wisely in concert, it can discourage the superPowers from dangerous involvement in local issues and ensure that they do not use other areas of the world as sites for furthering their interests or for militarily complicating their disputes. The nonaligned countries can provide the matrix for the settlement of many problematic issues, if they can put their own house in order first. Because., if we are to be honest and objective in our world review, we have to admit that even within the nonaligned movement itself there are States which do not always meet their responsibilities in full. 187. At the thirty-fifth session, 1 gave the Assembly all the relevant details on the dispute between the Libyan Arab Jamahiriya and the Republic of Malta [see 28th meeting]. At that time I underlined Libya's unfriendly action in sending warships to stop the Italian rig, subcontracted by an American oil company from drilling in a concession lawfully awarded by the Government of Malta. Today, 12 months later, I feel I owe all members an honest account of what has happened since then. Malta still has had no redress. Malta today, as it was a year ago, is threatened with military action should it dare to exercise its lawful right and search for oil on its continental shelf. One Mediterranean country after another with Libya foremost among them has explored offshore oil deposits. Only Malta has been denied an equal opportunity. 188. In this, as in all other disputes, Malta has acted honorably. Within five days of reaching an agreement with Libya, it unconditionally ratified that agreement. Since then, true to its principles, it has desisted from seeking the protection of a strong and friendly country, with old scores to settle, to help it assert its rights. Instead, after four years of patient bilateral negotiations, we asked for the protection of the Security Council. 189. In return, and in stark contrast, Libya has continued to deploy every procedural and other artifice to delay the submission of the dispute to the International Court of Justice. It is doing this to delay the start of the drilling operations, with the intention of depriving Malta of the benefits of resources which are urgently needed for its economic development. 190. Libya professes friendship to the people of Malta when addressing the Assembly and the Security Council. As is evident from the report of the Secretary General on the mission of his special representative to Malta and to the Libyan Arab Jamahiriya, the latter country firmly undertook to submit the 1976 agreement to the People's Congress for ratification. It also promised the Council that by no later than midDecember 1980 it would not only have ratified but also referred to the International Court of Justice the special agreement it had signed with Malta four and a half years earlier. 191. Unfortunately, the record shows that the past 12 months have been characterized by the consistent Libyan resolve to adopt delaying tactics in order not to submit the dispute to the International Court of Justice. The date of midDecember 1980 was not honored. More important, the Libyan Arab Jamahiriya failed to ratify the 1976 agreement. To this very day it insists that a new condition be imposed unilaterally on Malta. 192. Not even the efforts of the Secretary General, with whom we have fully cooperated in trying to resolve the dispute, have so far produced results. We cannot wait much longer, because our economic independence is being jeopardized. 193. In the face of this procrastination, the Security Council has failed so far to take any effective action. It has not even called on Libya to desist from any further threat of violence against Malta or insisted that the legal dispute between Malta and Libya be in fact referred to the International Court of Justice without any further delay. Therefore, I appeal once again to all here present to see that justice is done to Malta, a small defenseless country which can only avoid alternative solutions if it can obtain redress through the Organization. Malta's complaint was made more than a year ago, after we had exhausted all our bilateral efforts. All the evidence has been submitted, and there is no valid reason for the Security Council to delay. 194. It is a matter of great regret for us that Libya seem unable to appreciate the harm that its intransigence on this question is causing to the otherwise friendly relations between the two countries. Again we ask them not to trample so shoddily on the needs of their small neighbor. 195. In contrast to the confrontational approaches and bellicose posturing of many, Malta has resolutely upheld its policy of freedom from military attachments. Recent events have demonstrated that this determination is not a mere theoretical approach to foreign policy: for us, stated objectives have been translated into real policy measures, even though our anticipated economic development has been retarded by the unfriendly attitude of the United Kingdom and Libya. 196. In April this year, the House of Representatives of the Republic of Malta approved a motion ratifying a neutrality agreement with Italy. The agreement formally declared our resolve to break with past history and to adopt a new status: to become a beacon of peace in the Mediterranean. We have made it clear that we will refrain from joining any military alliance and from maintaining any foreign military bases. The cornerstone of our foreign policy is neutrality based on the principles of nonalignment. That implies a position of equidistance from the super-Powers. The declaration made jointly with Italy to which we publicly express our thanks for its understanding and practical cooperation has been registered at the United Nations. 197. At home, we have thereby accomplished in a short span of time what we set out to do. Our energies will now be directed towards an easing of tension and the promotion of peace, particularly in the Mediterranean region. Many of our Mediterranean neighbors have already indicated their support for such a policy. To them alone belongs the initiative. 198. The historical and cultural bonds among the nations of the Mediterranean and their interdependence in many spheres point to the benefits that would accrue from planned cooperation through appropriate mechanisms. The longer we delay a concerted effort to ensure the independence and security of the region, the more difficult that effort will become. 199. In following that path, Malta does not overlook the dark omens which cloud the international horizon. At the same time, we recognize the essential sterility of untrammeled militarism. In the last analysis, it is a costly, dangerous and insidiously harmful one-way street. We have turned our backs forever on that approach. Our intention is to strive everywhere to strengthen peace and security, to foster respect for human rights and fundamental freedoms, and to gain wider international recognition of our new status. 200. The problems confronting the United Nations have been the subject of much debate and analysis. This year, of course, is no exception. However, at the end of the day, when the talking is finished and the problems identified, we must decide how to respond to the challenges facing the Organization. We have to make our institution effective if we really wish to avert becoming resigned to a trend towards disaster. 201. As we can see, our expectations appear to be steadily shrinking in the face of mounting peril. For instance, in the area of disarmament, we derive comfort from the fact that the two most powerful nations are being urged to return to the negotiating table. I submit that they should never, in fact, have left it in the first place. The stakes are too high for us, and even more for the super Powers themselves, for the vacuum resulting from the .breakdown of negotiations between them ever to have been countenanced. 202. Our expectations are sobered even further by the recollection that these contacts between the superPowers have been a constant feature for many years; so have the negotiations on disarmament. The results speak for themselves: they simply have not delivered the expected goods. 203. It is therefore against the enormousness of the challenge that faces us and the dangerous situation that clearly confronts us that we must examine what we can do in order to improve performance. A number of suggestions have been made. A better use has been suggested for the sums of money spent on diplomatic receptions. Our attention was drawn to the valuable time lost through the late starting of meetings, to our outdated procedures and to the undoubted need to cut down on excess documentation. 204. These suggestions are, of course, very valuable and should have been acted upon long ago, but we must also ask ourselves honestly whether they strike deeply enough at the heart of the malady which threatens to engulf us. Plastering over the cracks in the present system is not enough. I suspect that we must take a bolder approach if we are realistically to confront the real problems facing us today. It will not be easy and it will be a long process, but a start should be made without delay, for the Organization desperately needs a new injection of hope. We must go further and objectively consider whether the present institutional machinery of the United Nations is in fact the best system we can devise. 205. Within the Organization too many problems remain unresolved because of institutional impotence. All too often the Security Council fails to live up to its potential as a major contributor to the promotion of international peace and security by successfully defusing dangerous situations before they get out of hand. It has become an arena for the pursuit of national rivalries. Its functional credibility and our expectations of it are at an all-time low. 206. The world public finds it difficult to understand a Security Council unable to meet while armed conflict is raging in some part of the world, or a Security Council immobilized from making constructive suggestions before a developing situation deteriorates. A different approach is needed and we should consider seriously whether the Council should not be in constant session, not only to respond to emergencies, but preferably to forestall them and also to follow up the implementation of its own decisions. 207. An alert Security Council, possibly with an even higher level of representation, would gain more prestige in dealing with the issues confronting it. Each Member State serving on the Council could upgrade its Representation to a minister for United Nations Security ,Council affairs, thus providing deliberations on world peace and security with an essential element of continuity and expertise at a higher level of influence. 208. A panel of experts, composed of distinguished world statesmen and former ministers, well versed in international affairs, could be asked urgently to consider means of strengthening the machinery and functional efficiency of the United Nations and to make recommendations for effective changes. 209. It has been said that where there is no vision, the people perish. I would submit that the United Nations has at its disposal an ample supply of vision. What we lack are the channels through which that insight and imagination can be constructively applied for the benefit of all mankind. 210. We stand today at a critical juncture. A mere annual recitation of our articles of faith, and repeated appeals for the emergence of political will, now clearly no longer suffice. Failure to confront and to deal commensurately with the challenges facing us carries with it a heavy penalty, one which we can ill afford to pay. 211. We have proposed prescriptions for peace and progress, but they have never been utilized. Year after year, we pass hundreds of resolutions which are suffocated by inaction. There is much we can do unilaterally and at the regional level. But there is also much that we can do here. So far, our institution is not dead. But it requires a new lease of life, an upsurge of hope Let us therefore dedicate ourselves to that urgent task without further delay. | 1981 | [
"145. The new President (of the General Assembly) is an experienced diplomat who has served with distinction both inside and outside the United Nations. That background will enable him to guide us with the right decisions in this difficult year. As an indication of his capacity for achievement, I would cite the fact that he personally participated in the talks that led to a spectacular increase in the commercial relations between our two countries over the past five years. I therefore welcome his election and also commend the performance of his predecessor. 146. With great pleasure, I warmly salute Vanuatu and Belize on their independent status among the brotherhood of nations. 147.",
"In many ways, 1981 has so far been a precarious year for the international community. Feelings of unease and foreboding, foreseen last year, continue to pervade the international stage. The miasma of tension has inevitably increased with the appearance of new problems; it has also been exacerbated by our collective inability to solve longstanding ones. 148. Crucial elements of international behavior which held out some promise throughout most of the last decade have been fundamentally if not irreversibly altered. 149. Detente has withered as a result of a multiplicity of factors, not least through foreign military intervention in Afghanistan. It is now frozen by the icy blasts emerging from a new cold war mentality between the superPowers. Confrontation seems to be preferred to negotiation. Traditional rules of conduct among nations are under question. 150.",
"Perhaps most alarming of all, there is a growing tendency to regard atomic explosives as everyday weapons to be openly brandished and for their use considered to be as a viable option. Important issues such as human rights, welfare and development have been relegated to a subordinate position. 151. Unbelievably, the potentially cataclysmic dangers inherent in this evolving situation seem to receive scant attention in responsible Government circles preoccupied by national priorities. Even more ominously, in countries where freedom of expression is rightly considered sacrosanct, articulate spokesmen are dismissing the increasing popular outcry against projected weapons systems and against dangerous new strategic doctrines as being at best inspired by a well-orchestrated propaganda campaign organized from outside those countries or at worst as \"appeasement\".",
"Those of us, individuals or nations, who singly or collectively dare protest our unwanted role as pawns in the strategic danse macabre between the superPowers are routinely ridiculed as outright pacifists or dismissed as heretical voices crying in the wilderness. 152. Yet, as understanding of the dangers involved increases, these popular movements are bound to grow. For as long as they are genuine and spontaneous, they should be encouraged throughout the world, and the United Nations needs to play a fa more assertive role in providing accurate and easily readable information on these questions of such vital importance to human survival. 153. Last year I mentioned the growing fear that mankind would suffer a nuclear exchange in the timespan of the current generation. Recent developments have shown that this fear is no deviant flight of public fancy. The bilateral arms control process has been largely replaced by candidly bellicose statements.",
"Today we face a situation where far-reaching foreign policy decisions for the future are being molded by reference to military hardware. 154. The present psychosis of insecurity and tension will dangerously restrict the real options available in the future. Experience has shown that no sooner is a weapons system devised than its deployment is rationalized. The prospect of rendering arms control even more illusory than it has been in the past is therefore very real. 155. In his report on the work of the Organization [A/36/1], the Secretary General has comprehensively and accurately drawn the parameters of the major problems on which we have expended so much energy, unfortunately to little avail. The report must serve as our blueprint for action. The Secretary General again merits our appreciation for his unstinting efforts, and his promptings should not fall on deaf ears.",
"I shall refrain from dwelling on every point of his analysis, but there are some areas which really call for comment, albeit brief. 156. Apart from the revolting folly and danger of the spiraling nuclear arms race, it should be evident by now that the massive injection of sophisticated weaponry into so many highly sensitive areas of the world provides no stability, but instead heightens tension and jeopardizes political solutions. 157. The most striking example of the futility and cost of this approach is provided by the Middle East. Today's tragic event grimly underlines this point. Fed by lavish supplies of sophisticated weaponry, actions on the spot have succeeded only in fueling the fires of resentment and alienation, even when major conflict has been contained. 158. Impervious to worldwide criticism, Israel has relentlessly pressed ahead with longterm and ever-increasing land-seizure operations in the occupied territories.",
"One controversial plan envisages the settlement of 3GC,000 Israelis there by the turn of the century. The status of Jerusalem is grossly violated. 159. These tactics will afford neither peace nor repose for Israel and its neighbors. The process of colonization contemptuously flaunts a series of unanimous resolutions of the Security Council. Without doubt, Israel's Draconian impression will perpetuate the present cycle of unrest. 160. And Lebanon, once an island of democracy and tranquility in the region, has been caught in the web of violence. It has been bombed relentlessly and its territory violated with little regard for the lives of civilians. Hie Iraqi nuclear reactor, subject to IAEA safeguards, has been subjected to an Israeli attack in a new and ominous development with worldwide implications.",
"161. The shortsighted attempt to leave out the leaders of the Palestinian people in the search for a lasting peace is undemocratic, unjust and unrealistic. The recognized rights of the Palestinian people cannot be ignored in this day and age. They are a separate people with a legitimate right to their own homeland, like any other existing State in the family of nations. For far too long the PLO has been excluded from the negotiating process. As the authentic representative of the people of Palestine, it must be actively involved in the determination of its own destiny. 162.",
"The situation in Korea is another example. The popular movement for reunification is stifled. Foreign troops remain on Korea's soil, their weapons constantly modernized, and there are fears of nuclear complications. Tension remains high, and political initiatives are consequently inhibited. 163. Similarly, the consequences of the illegal, foreign, armed intervention in sensitive areas such as Cyprus, Kampuchea and Afghanistan continue to complicate and retard the prospects of indigenous, democratic progress, free from outside interference. 164. Meanwhile, the victims of apartheid languish under an obscene system, shortchanged by the caprices of big business and power-politics. The disinherited of this earth die of hunger, malnutrition and illiteracy. For every ounce of life-sustaining food that those people crave, an unresponsive world recklessly squanders thousands of tons of death-dealing weaponry.",
"165. As if old problems were not enough, unfortunately new areas of bigPower confrontation are emerging. The dramatic buildup of superPower naval forces in the Indian Ocean over the past few years is causing growing concern among the 36 countries in the region. The Indian Ocean is being rapidly transformed into a vast military naval playground. Those ambitious deployments do not augur well for the zone-of-peace objectives in that and other promising areas. 166. The economic and social consequences of the arms race obviously harm irreparably prospects for implementation of a new international economic order based on justice, equity and cooperation.",
"As an island developing country, Malta is all too aware of the myriad difficulties facing the developing world. 167. At this crucial point we express the hope that the silence on the North-South dialog will at least, and at last, be broken. Recent authoritative studies have proved invaluable and as yet unsurpassed signposts to further action. Those signposts have so far been virtually ignored in the quarters to which they were principally directed. Notwithstanding their shortcomings, however, those reports must remain the basis in the search for just political and economic change.",
"168. Those are some of the most intractable political problems, inherited from the past, in which the major Powers are involved with diametrically opposed policies. But results are disheartening, even in comparatively new fields of human endeavor. The negotiations on the Convention of the Law of the Sea are still deferred, and the expected results fall far short of Malta's original expectations. The proposed convention has sanctioned an unabashed ocean-ward expansion by coastal States, severely eroding' the area originally conceived as the common heritage of mankind, thus deferring benefits to developing and landlocked countries for many years. 169.",
"Despite this erosion, however, we recognize that the negotiations represent a broad consensus amongst nations and, while pointing out its evident shortcomings, we still hope that the convention will be agreed to by all countries without exception next year. We also trust that there will be no national legislation which will in effect dilute the convention and its universal objectives. 170. The question of remnants of war was included in the agenda of the Assembly [see item 69 j], and has been for several years now. We are encouraged by the fact that the international community overwhelmingly recognizes that countries have the responsibility of removing at their own expense, remnants which they planted, and also that States responsible should make available maps and other relevant information concerning the location and type of remnants of war they left behind. 171.",
"We now feel that this matter, which is assuming critical importance for many developing countries, should be taken up more forcefully as a priority item, perhaps through the convening of an international conference at an early date, so that matters can be analyzed in depth. 172. Many countries throughout the world are suffering severe economic consequences from the extensive use of explosives during and after the last war, and it is only fair that those responsible should help in removing the adverse consequences of their actions in countries which were the helpless victims of war waged on, or over, their national territory by outside Powers. 173. My own country is one of them. It was the most heavily bombed area during the last world war. In addition, against the advice of the elected Maltese representatives, and with knowledge and foresight of the dangerous and long-lasting consequences, the British Government for several years used the island of Filfla, off the coast of Malta, as a training-ground for aerial bombing. As a result of these combined factors, the seabed surrounding Malta, particularly that of our harbors, and the surface area of Filfla are littered with hundreds of thousands of unexploded bombs, in addition to the wrecks of several surface ships that were victims of the vicious bombardment. In fact, only last week a citizen of Malta fell victim, in the prime of his life, to one of those bombs. 174.",
"These hazardous remnants of war are seriously impeding our efforts at economic development, particularly as regards deepening our harbors in order to attract the shipping of the future. Patient bilateral contacts with the British Government to secure help and redress in locating and removing the dangerous war material they left behind have proved unavailing. As a result, Britain, even after its departure from Malta, is in effect impeding us from utilizing our territory to its maximum potential.",
"We have raised this matter before the Council of Europe, and a fact-finding mission has recently visited Malta to determine for itself the gravity of the situation and to report thereon. 175. We shall follow up matters in the Council of Europe, but. we also intend to give more details in the Second Committee when the report of the Governing Council of UNEP is discussed, and we trust that there will be a positive response and effective action to deal with serious problems of this nature. 176. In the social field, questions covering Shakespeare's seven ages of man from childhood, youth and adulthood to old age are being discussed in the United Nations. In that regard at least we can discern encouraging signs of positive interest. 177.",
"The International Year of Disabled Persons is drawing to a close. The interest generated by activities around the world in favor of the less fortunate members of human society will undoubtedly remain. We look forward to a fitting climax to these activities when the Assembly takes up the item in plenary meeting later on in the session. 178. The cause of the elderly and the aged is one which my country has been championing for a number of years. The World Assembly on Aging is now envisaged for 1982, and the Advisory Committee to prepare for that event has already held a preliminary meeting this year. More work has to be done, and I expect the Assembly will give the Advisory Committee the necessary time and means to complete its work for the World Assembly. 179. The problems of the elderly are intimately associated with social and economic development for many nations. The foresight of the United Nations with regard to this question is timely, for by the turn of the century the problem of the elderly and the aged could assume serious dimensions for many developing countries. Action taken now will therefore alleviate economic and social disruption in the future.",
"The World Assembly on Aging should therefore highlight needs and plan for the future. 180. It is not . only world organizations that founder on the rocks of EastWest confrontation: regional meetings are not faring much better. We previously expressed the hope that the Madrid review session of the Conference on Security and Cooperation in Europe would prove to be action-oriented. We recognize that if detente is ever to be revived, it should not reappear merely as a useful slogan, devoid of practical application. 181.",
"The Conference on Security and Cooperation in Europe provides many opportunities for actual implementation of stated objectives. So far, we have witnessed at Madrid a prolonged exercise in sterile debate, dominated by deadlock. Malta deeply regrets the absence of any genuine movement, even on political initiatives which clearly implement provisions of the Final Act of the Conference on Security and Cooperation in Europe, which was signed at Helsinki in 1975, subscribed to by all participants. 182. It is certainly not an easy task to identify the cause of the limited performance by the Organization and others on old and new political issues appearing on the agenda. More so than at any other time in history, many of the issues before us are characterized by their interrelatedness.",
"Failure to act constructively in one area creates a spillover effect which hampers progress in other areas. This linkage gives rise to great potential dangers. But at the same time it presents us with a fertile source of opportunity for progress, if we are all prepared to assume our share of responsibility. 183. One overriding and extremely dangerous element stands out clearly in any review of the contemporary international situation. The uncompromising polarization in attitudes between the superPowers has resulted in entrenchment being the' order of the day and has now completely paralyzed the Organization and the negotiating process.",
"The air is thick with passionate accusations that one or the other of the superPowers is accountable for all our international troubles. In many critical spheres, obsession with doctrine or ideology is rapidly overtaking rational policymaking. Longstanding problems cry out for redress, but, in this regrettable atmosphere, the voice of sanity, reason and justice is in danger of going unheard. 184. In a shrinking world, the spheres of interest of the major Powers continue to extend and practically encircle the globe, and even to penetrate outer space. It is therefore understandable that the major Powers attract so much attention and, at times, justified criticism. For military and economic power and influence.carry with them the onus of responsibility; to indulge in cavalier behavior or doctrinal myopia is to play with fire. Hie spread of their exacerbating instability elsewhere must be guarded against. 185. I believe that the countries of the third world unequivocally reject the harsh dualism of the two superPowers in considering the future of a planet which belongs to all mankind.",
"In the absence of leadership by the superPowers, in the absence of any semblance of cooperation, this dualism has become a pernicious doctrine whose apparent end-result is to scar the landscape with more nuclear weapons, ostensibly to prevent Armageddon, but equally to be prepared to start it. The superPowers must turn away from their present volatile antagonism, and they need help in order to do so. 186. In these circumstances, the 20-year-old nonaligned movement has to assume a more dynamic and independent role. If the movement acts wisely in concert, it can discourage the superPowers from dangerous involvement in local issues and ensure that they do not use other areas of the world as sites for furthering their interests or for militarily complicating their disputes. The nonaligned countries can provide the matrix for the settlement of many problematic issues, if they can put their own house in order first. Because., if we are to be honest and objective in our world review, we have to admit that even within the nonaligned movement itself there are States which do not always meet their responsibilities in full. 187.",
"At the thirty-fifth session, 1 gave the Assembly all the relevant details on the dispute between the Libyan Arab Jamahiriya and the Republic of Malta [see 28th meeting]. At that time I underlined Libya's unfriendly action in sending warships to stop the Italian rig, subcontracted by an American oil company from drilling in a concession lawfully awarded by the Government of Malta. Today, 12 months later, I feel I owe all members an honest account of what has happened since then. Malta still has had no redress. Malta today, as it was a year ago, is threatened with military action should it dare to exercise its lawful right and search for oil on its continental shelf. One Mediterranean country after another with Libya foremost among them has explored offshore oil deposits. Only Malta has been denied an equal opportunity. 188. In this, as in all other disputes, Malta has acted honorably.",
"Within five days of reaching an agreement with Libya, it unconditionally ratified that agreement. Since then, true to its principles, it has desisted from seeking the protection of a strong and friendly country, with old scores to settle, to help it assert its rights. Instead, after four years of patient bilateral negotiations, we asked for the protection of the Security Council. 189. In return, and in stark contrast, Libya has continued to deploy every procedural and other artifice to delay the submission of the dispute to the International Court of Justice.",
"It is doing this to delay the start of the drilling operations, with the intention of depriving Malta of the benefits of resources which are urgently needed for its economic development. 190. Libya professes friendship to the people of Malta when addressing the Assembly and the Security Council. As is evident from the report of the Secretary General on the mission of his special representative to Malta and to the Libyan Arab Jamahiriya, the latter country firmly undertook to submit the 1976 agreement to the People's Congress for ratification. It also promised the Council that by no later than midDecember 1980 it would not only have ratified but also referred to the International Court of Justice the special agreement it had signed with Malta four and a half years earlier. 191. Unfortunately, the record shows that the past 12 months have been characterized by the consistent Libyan resolve to adopt delaying tactics in order not to submit the dispute to the International Court of Justice. The date of midDecember 1980 was not honored.",
"More important, the Libyan Arab Jamahiriya failed to ratify the 1976 agreement. To this very day it insists that a new condition be imposed unilaterally on Malta. 192. Not even the efforts of the Secretary General, with whom we have fully cooperated in trying to resolve the dispute, have so far produced results. We cannot wait much longer, because our economic independence is being jeopardized. 193. In the face of this procrastination, the Security Council has failed so far to take any effective action. It has not even called on Libya to desist from any further threat of violence against Malta or insisted that the legal dispute between Malta and Libya be in fact referred to the International Court of Justice without any further delay. Therefore, I appeal once again to all here present to see that justice is done to Malta, a small defenseless country which can only avoid alternative solutions if it can obtain redress through the Organization. Malta's complaint was made more than a year ago, after we had exhausted all our bilateral efforts.",
"All the evidence has been submitted, and there is no valid reason for the Security Council to delay. 194. It is a matter of great regret for us that Libya seem unable to appreciate the harm that its intransigence on this question is causing to the otherwise friendly relations between the two countries. Again we ask them not to trample so shoddily on the needs of their small neighbor. 195. In contrast to the confrontational approaches and bellicose posturing of many, Malta has resolutely upheld its policy of freedom from military attachments. Recent events have demonstrated that this determination is not a mere theoretical approach to foreign policy: for us, stated objectives have been translated into real policy measures, even though our anticipated economic development has been retarded by the unfriendly attitude of the United Kingdom and Libya.",
"196. In April this year, the House of Representatives of the Republic of Malta approved a motion ratifying a neutrality agreement with Italy. The agreement formally declared our resolve to break with past history and to adopt a new status: to become a beacon of peace in the Mediterranean. We have made it clear that we will refrain from joining any military alliance and from maintaining any foreign military bases. The cornerstone of our foreign policy is neutrality based on the principles of nonalignment. That implies a position of equidistance from the super-Powers. The declaration made jointly with Italy to which we publicly express our thanks for its understanding and practical cooperation has been registered at the United Nations.",
"197. At home, we have thereby accomplished in a short span of time what we set out to do. Our energies will now be directed towards an easing of tension and the promotion of peace, particularly in the Mediterranean region. Many of our Mediterranean neighbors have already indicated their support for such a policy. To them alone belongs the initiative. 198. The historical and cultural bonds among the nations of the Mediterranean and their interdependence in many spheres point to the benefits that would accrue from planned cooperation through appropriate mechanisms. The longer we delay a concerted effort to ensure the independence and security of the region, the more difficult that effort will become. 199. In following that path, Malta does not overlook the dark omens which cloud the international horizon.",
"At the same time, we recognize the essential sterility of untrammeled militarism. In the last analysis, it is a costly, dangerous and insidiously harmful one-way street. We have turned our backs forever on that approach. Our intention is to strive everywhere to strengthen peace and security, to foster respect for human rights and fundamental freedoms, and to gain wider international recognition of our new status. 200. The problems confronting the United Nations have been the subject of much debate and analysis. This year, of course, is no exception. However, at the end of the day, when the talking is finished and the problems identified, we must decide how to respond to the challenges facing the Organization. We have to make our institution effective if we really wish to avert becoming resigned to a trend towards disaster. 201.",
"As we can see, our expectations appear to be steadily shrinking in the face of mounting peril. For instance, in the area of disarmament, we derive comfort from the fact that the two most powerful nations are being urged to return to the negotiating table. I submit that they should never, in fact, have left it in the first place. The stakes are too high for us, and even more for the super Powers themselves, for the vacuum resulting from the .breakdown of negotiations between them ever to have been countenanced. 202. Our expectations are sobered even further by the recollection that these contacts between the superPowers have been a constant feature for many years; so have the negotiations on disarmament. The results speak for themselves: they simply have not delivered the expected goods. 203.",
"It is therefore against the enormousness of the challenge that faces us and the dangerous situation that clearly confronts us that we must examine what we can do in order to improve performance. A number of suggestions have been made. A better use has been suggested for the sums of money spent on diplomatic receptions. Our attention was drawn to the valuable time lost through the late starting of meetings, to our outdated procedures and to the undoubted need to cut down on excess documentation. 204. These suggestions are, of course, very valuable and should have been acted upon long ago, but we must also ask ourselves honestly whether they strike deeply enough at the heart of the malady which threatens to engulf us. Plastering over the cracks in the present system is not enough. I suspect that we must take a bolder approach if we are realistically to confront the real problems facing us today. It will not be easy and it will be a long process, but a start should be made without delay, for the Organization desperately needs a new injection of hope.",
"We must go further and objectively consider whether the present institutional machinery of the United Nations is in fact the best system we can devise. 205. Within the Organization too many problems remain unresolved because of institutional impotence. All too often the Security Council fails to live up to its potential as a major contributor to the promotion of international peace and security by successfully defusing dangerous situations before they get out of hand. It has become an arena for the pursuit of national rivalries. Its functional credibility and our expectations of it are at an all-time low.",
"206. The world public finds it difficult to understand a Security Council unable to meet while armed conflict is raging in some part of the world, or a Security Council immobilized from making constructive suggestions before a developing situation deteriorates. A different approach is needed and we should consider seriously whether the Council should not be in constant session, not only to respond to emergencies, but preferably to forestall them and also to follow up the implementation of its own decisions. 207. An alert Security Council, possibly with an even higher level of representation, would gain more prestige in dealing with the issues confronting it.",
"Each Member State serving on the Council could upgrade its Representation to a minister for United Nations Security ,Council affairs, thus providing deliberations on world peace and security with an essential element of continuity and expertise at a higher level of influence. 208. A panel of experts, composed of distinguished world statesmen and former ministers, well versed in international affairs, could be asked urgently to consider means of strengthening the machinery and functional efficiency of the United Nations and to make recommendations for effective changes. 209. It has been said that where there is no vision, the people perish.",
"I would submit that the United Nations has at its disposal an ample supply of vision. What we lack are the channels through which that insight and imagination can be constructively applied for the benefit of all mankind. 210. We stand today at a critical juncture. A mere annual recitation of our articles of faith, and repeated appeals for the emergence of political will, now clearly no longer suffice. Failure to confront and to deal commensurately with the challenges facing us carries with it a heavy penalty, one which we can ill afford to pay. 211. We have proposed prescriptions for peace and progress, but they have never been utilized. Year after year, we pass hundreds of resolutions which are suffocated by inaction. There is much we can do unilaterally and at the regional level. But there is also much that we can do here.",
"So far, our institution is not dead. But it requires a new lease of life, an upsurge of hope Let us therefore dedicate ourselves to that urgent task without further delay."
]
| https://dataverse.harvard.edu/file.xhtml?fileId=4590189&version=6.0# | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 5:20-mc-80156-JD Document 15 Filed 10/21/20 Page 1 of 4
1 Daniel P. Kappes, Bar No. 303454 daniel.kappes@hklaw.com 2 HOLLAND & KNIGHT LLP 50 California Street, 28th Floor 3 San Francisco, CA 94001 Telephone: 415.743.6900 4 Facsimile: 415.743.6951 5 Attorneys for Applicant Tatiana Akhmedova 6 Julie E. Schwartz, Bar No. 260624 JSchwartz@perkinscoie.com 7 PERKINS COIE LLP 3150 Porter Drive 8 Palo Alto, CA 94304 Telephone: 650.838.4300 9 Facsimile: 650.838.4350 10 Attorneys for Respondent Google LLC 11
12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA 14 SAN JOSE DIVISION 15
16 IN RE EX PARTE APPLICATION OF Case No. 20-mc-80156-VKD TATIANA AKHMEDOVA, 17 STIPULATION AND [PROPOSED] ORDER TO EXTEND DEADLINE FOR 18 Applicant. RESPONDENT GOOGLE LLC TO RESPOND TO SUBPOENA OR MOVE TO 19 QUASH OR MODIFY SUBPOENA ISSUED BY TATIANA AKHMEDOVA 20 Re: Dkt. No. 12 21
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1 It is hereby stipulated between and among Applicant Tatiana Akhmedova (“Applicant”), 2 on the one hand, and Respondent Google LLC (“Google”), on the other hand, (collectively, the 3 “Parties”), as follows: 4 1. On October 9, 2020, Google was served by Applicant with a subpoena issued pursuant to 5 the Court’s October 6, 2020 Order, Dkt. No. 12 (the “Subpoena”); 6 2. Pursuant to the Court’s Order, Google’s current deadline to respond to the Subpoena or to 7 move to quash or modify the Subpoena is October 23, 2020; 8 3. The Parties have agreed to extend Google’s deadline to respond to the Subpoena or move 9 to quash or modify by 14 days, to November 6, 2020, to permit them additional time to 10 attempt to resolve the issues raised by the Subpoena without litigation; 11 4. This is the Parties’ first request to extend Google’s deadline to respond to the Subpoena or 12 to move to quash or modify the Subpoena. This request will not alter any currently 13 existing deadlines or the current case schedule. 14 NOW THEREFORE, the Parties hereby stipulate and agree that Google’s deadline to 15 respond to the Subpoena or to move to quash or modify the Subpoena is November 6, 2020. 16
17 IT IS SO STIPULATED 18
19 DATED: October 21, 2020 PERKINS COIE LLP 20 By: /s/ Julie E. Schwartz Julie E. Schwartz 21 Attorneys for Respondent Google LLC 22
23 DATED: October 21, 2020 HOLLAND & KNIGHT LLP
24 By: /s/ Dan Kappes Daniel P. Kappes 25 Attorneys for Applicant Tatiana Akhmedova 26
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1 ATTESTATION 2 Pursuant to Civil Local Rule 5-1(i)(3), I hereby attest that all signatories to this document 3 concur in its filing. 4 Dated: October 21, 2020 /s/ Julie E. Schwartz_______________________ Julie E. Schwartz 5 PERKINS COIE LLP Attorneys for Respondent 6 Google LLC 7
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1 [PROPOSED] ORDER 2
3 PURSUANT TO STIPULATION, IT IS SO ORDERED. 4
5 Dated: October ___, 2020 By: VIRGINIA K. DEMARCHI 6 United States Magistrate Judge 7
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"Case 5:20-mc-80156-JD Document 15 Filed 10/21/20 Page 1 of 4 1 Daniel P. Kappes, Bar No. 303454 daniel.kappes@hklaw.com 2 HOLLAND & KNIGHT LLP 50 California Street, 28th Floor 3 San Francisco, CA 94001 Telephone: 415.743.6900 4 Facsimile: 415.743.6951 5 Attorneys for Applicant Tatiana Akhmedova 6 Julie E. Schwartz, Bar No. 260624 JSchwartz@perkinscoie.com 7 PERKINS COIE LLP 3150 Porter Drive 8 Palo Alto, CA 94304 Telephone: 650.838.4300 9 Facsimile: 650.838.4350 10 Attorneys for Respondent Google LLC 11 12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA 14 SAN JOSE DIVISION 15 16 IN RE EX PARTE APPLICATION OF Case No. 20-mc-80156-VKD TATIANA AKHMEDOVA, 17 STIPULATION AND [PROPOSED] ORDER TO EXTEND DEADLINE FOR 18 Applicant. RESPONDENT GOOGLE LLC TO RESPOND TO SUBPOENA OR MOVE TO 19 QUASH OR MODIFY SUBPOENA ISSUED BY TATIANA AKHMEDOVA 20 Re: Dkt. No.",
"12 21 22 23 24 25 26 27 28 STIPULATION TO EXTEND GOOGLE LLC’S DEADLINE CASE NO. 20-MC-80156-VKD Case 5:20-mc-80156-JD Document 15 Filed 10/21/20 Page 2 of 4 1 It is hereby stipulated between and among Applicant Tatiana Akhmedova (“Applicant”), 2 on the one hand, and Respondent Google LLC (“Google”), on the other hand, (collectively, the 3 “Parties”), as follows: 4 1. On October 9, 2020, Google was served by Applicant with a subpoena issued pursuant to 5 the Court’s October 6, 2020 Order, Dkt. No. 12 (the “Subpoena”); 6 2. Pursuant to the Court’s Order, Google’s current deadline to respond to the Subpoena or to 7 move to quash or modify the Subpoena is October 23, 2020; 8 3. The Parties have agreed to extend Google’s deadline to respond to the Subpoena or move 9 to quash or modify by 14 days, to November 6, 2020, to permit them additional time to 10 attempt to resolve the issues raised by the Subpoena without litigation; 11 4. This is the Parties’ first request to extend Google’s deadline to respond to the Subpoena or 12 to move to quash or modify the Subpoena.",
"This request will not alter any currently 13 existing deadlines or the current case schedule. 14 NOW THEREFORE, the Parties hereby stipulate and agree that Google’s deadline to 15 respond to the Subpoena or to move to quash or modify the Subpoena is November 6, 2020. 16 17 IT IS SO STIPULATED 18 19 DATED: October 21, 2020 PERKINS COIE LLP 20 By: /s/ Julie E. Schwartz Julie E. Schwartz 21 Attorneys for Respondent Google LLC 22 23 DATED: October 21, 2020 HOLLAND & KNIGHT LLP 24 By: /s/ Dan Kappes Daniel P. Kappes 25 Attorneys for Applicant Tatiana Akhmedova 26 27 28 -2- STIPULATION TO EXTEND GOOGLE LLC’S DEADLINE CASE NO. 20-MC-80156-VKD Case 5:20-mc-80156-JD Document 15 Filed 10/21/20 Page 3 of 4 1 ATTESTATION 2 Pursuant to Civil Local Rule 5-1(i)(3), I hereby attest that all signatories to this document 3 concur in its filing. 4 Dated: October 21, 2020 /s/ Julie E. Schwartz_______________________ Julie E. Schwartz 5 PERKINS COIE LLP Attorneys for Respondent 6 Google LLC 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- STIPULATION TO EXTEND GOOGLE LLC’S DEADLINE CASE NO. 20-MC-80156-VKD Case 5:20-mc-80156-JD Document 15 Filed 10/21/20 Page 4 of 4 1 [PROPOSED] ORDER 2 3 PURSUANT TO STIPULATION, IT IS SO ORDERED. 4 5 Dated: October ___, 2020 By: VIRGINIA K. DEMARCHI 6 United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- STIPULATION TO EXTEND GOOGLE LLC’S DEADLINE CASE NO. 20-MC-80156-VKD"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/149498190/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
In an action for an accounting and to recover damages for breach of contract, the plaintiff appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Warshawsky, J.), entered June 30, 2005, as granted that branch of the defendants’ motion which was, in effect, for summary judgment declaring that a certain broker or finder’s fee agreement entered into between the defendants and the plaintiff on July 23, 1980, applied only to the net cash flow generated by a single geothermal power plant known as the Navy I Plant and not to additional net cash flows generated by *421three other geothermal power plants known as the Navy II Plant, the BLM East Plant, and the BLM West Plant, and denied its cross motion for summary judgment declaring that the subject agreement applied to all four geothermal power plants, and (2) from so much of an order of the same court entered October 7, 2005, as, upon reargument, adhered to its original determination. Ordered that the appeal from the order entered June 30, 2005 is dismissed, without costs or disbursements, as that order was superseded by the order entered October 7, 2005, made upon re-argument; and it is further, Ordered that the order entered October 7, 2005 is modified, on the law, by deleting the provisions thereof which, upon reargument, adhered to so much of the prior determination as granted that branch of the motion which was for summary judgment declaring that the broker’s or finder’s fee agreement did not apply to additional net cash flows generated by the geothermal power plant known as the Navy II Plant, and denied that branch of the cross motion which was for summary judgment declaring that the broker’s or finder’s fee agreement applied to additional net cash flows generated by the geothermal power plant known as the Navy II Plant and substituting therefor provisions, upon reargument, (a) vacating so much of the order entered June 30, 2005, as granted that branch of the motion which was for summary judgment declaring that the broker’s or finder’s fee agreement did not apply to additional net cash flows generated by the geothermal power plant known as the Navy II Plant, and (b) denying that branch of the motion; as so modified, the order entered October 7, 2005, is affirmed insofar as appealed from, without costs or disbursements. On December 6, 1979, California Energy Company, Inc. (hereinafter CECI), entered into a contract with the United States Navy (hereinafter the Navy contract), which, inter alia, gave CECI the right to build an electric power plant to produce a maximum of 75 Megawatts (hereinafter MW) of power using a natural geothermal resource located within a specified 3V2-square mile parcel of land in eastern California. A “Request for Technical Proposals” issued by the Navy described the project as consisting of the building of a plant producing up to 75 MW in that area, and provided that “ [subsequent development and delivery of power in excess of 75 MW will be negotiated under the contract Changes Clause.” After entering into the Navy contract, CECI approached Wall Street financiers, including the plaintiff, Geothermal Energy Corporation (hereinafter Geothermal), seeking funding for the project. *422Sometime in early 1980, the former president of Geothermal agreed to give the information package received from CECI to the former president of the defendants Caithness Corporation and Caithness Resources, Inc. (hereinafter collectively referred to as Caithness), in exchange for Caithness’s agreement to give Geothermal a percentage of the net cash flow. The parties thereafter memorialized their agreement by signing a one-page letter agreement dated July 23, 1980, which had been drafted by Caithness’s president (hereinafter the fee agreement). The fee agreement provided, in relevant part, that, in exchange for Geothermal having brought to Caithness the “Coso Geothermal Project, as set forth in a contract, dated December 6, 1979” between CECI and the Navy, Caithness would pay Geothermal one percent of the net cash flow from the “Coso Geothermal Project.” Geothermal’s right to receive payment of the fee was contingent upon Caithness entering into a “final agreement with CECI and investing equity funds to develop the Coso Project.” In December 1980 Caithness entered into a joint venture with CECI (hereinafter the CECI-Caithness joint venture), to undertake a geothermal drilling and electricity generation project under the Navy contract “as amended from time to time” within a “Project Area” consisting of “parts of the Coso Known Geothermal Resources Area which are subject to the Navy Contract or which hereafter become subject to the Navy Contract.” Within a week, the Navy entered into a modification of the Navy contract to reflect that the CECI-Caithness joint venture had succeeded to CECI’s interests and rights under the Navy contract. The CECI-Caithness joint venture subsequently built a geothermal electric plant, known as the Navy I Plant, on the 3V2-square mile parcel of land referenced in the Navy contract, as it existed in December 1979. Starting in 1993, Caithness paid Geothermal amounts represented to be one percent of the net cash flow from the Navy I Plant. In December 1981 Congress enacted a law authorizing the Navy to develop an additional four square miles within the Naval Weapons Center. Following extensive negotiations between the Navy and the CECI-Caithness joint venture, those parties entered into a further modification to the Navy contract, effective January 26, 1984, which added the additional foursquare mile parcel to the land subject to development under the Navy contract. Pursuant to subsequent modifications to the Navy contract, the Navy agreed to increase the maximum amount of power that could be developed by the CECI-Caithness *423joint venture from 75 MW to 160 MW and to permit the joint venture to sell excess power not required by the Navy to a utility. As a result of the 1984 modification to the Navy contract, the Navy II Plant was eventually built on the four-square mile parcel added to the original project area. Meanwhile, in September 1981, CECI also bid for the right to lease certain parcels of land in the Coso Known Geothermal Resources Area from the Bureau of Land Management of the United States Department of the Interior (hereinafter BLM). In May 1985 CECI entered into a lease with BLM, formed another joint venture with Caithness, and assigned its interest in the BLM lease to that joint venture. The second joint venture built two more geothermal electric plants, known as the BLM East Plant and the BLM West Plant (hereinafter collectively referred to as the BLM Plants), on the lands leased by CECI from BLM. Geothermal commenced this action claiming, inter alia, that it is entitled to receive a percentage of the net cash flow generated not only by the Navy I Plant, but also by the Navy II Plant and the BLM Plants. Caithness moved, inter alia, in effect, for summary judgment declaring that Geothermal’s contractual claim is limited to a fee based on the net cash flow generated by the Navy I Plant only, and Geothermal cross-moved for summary judgment declaring that the scope of the fee agreement included not only the Navy I Plant but also the Navy II Plant and the BLM Plants. The Supreme Court determined that the fee agreement was clear and unambiguous, and declared that it was applicable to the Navy I Plant only, and not to the Navy II or the BLM Plants. Whether a contract is ambiguous is a question of law for the court and is to be determined by looking “within the four corners of the document” (Kass v Kass, 91 NY2d 554, 566 [1998], citing W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162-163 [1990]). A contract is unambiguous if “on its face [it] is reasonably susceptible of only one meaning” (Greenfield v Philles Records, 98 NY2d 562, 570 [2002]; see Breed v Insurance Co. of N. Am., 46 NY2d 351, 355 [1978]). Conversely, “[a] contract is ambiguous if the provisions in controversy are reasonably or fairly susceptible of different interpretations or may have two or more different meanings” (Feldman v National Westminster Bank, 303 AD2d 271 [2003] [internal quotation marks and citation omitted]; see New York City Off-Track Betting Corp. v Safe Factory Outlet, Inc., 28 AD3d 175, 177 [2006]). The existence of ambiguity is determined by examining the “entire contract and considering] the relation of the parties and the circumstances under which it was executed,” with the *424wording to be considered “in the light of the obligation as a whole and the intention of the parties as manifested thereby” (Kass v Kass, supra at 566 [internal quotation marks omitted]). The “ ‘intent of the parties must be found within the four corners of the contract, giving a practical interpretation to the language employed and the parties’ reasonable expectations’ ” (Del Vecchio v Cohen, 288 AD2d 426, 427 [2001], quoting Slamow v Del Col, 174 AD2d 725, 726 [1991], affd 79 NY2d 1016 [1992]). When a term or clause is ambiguous, “the parties may submit extrinsic evidence as an aid in construction, and the resolution of the ambiguity is for the trier of fact” (Pellot v Pellot, 305 AD2d 478, 481 [2003]; see State of New York v Home Indem. Co., 66 NY2d 669, 671 [1985]; Winchester Globe Trust Co. v First Secured Capital Corp., 288 AD2d 381, 381-382 [2001]; Siegel v Golub, 286 AD2d 489, 490 [2001]). Applying these principles, we find that the term “Coso Geothermal Project,” as used in the fee agreement, clearly does not refer to either of the BLM Plants. Indeed, the BLM Plants were not constructed pursuant to the Navy contract or any modification thereto, but pursuant to an entirely separate lease agreement entered into between CECI and BLM. Thus, it would be contrary to the plain meaning of the fee agreement, as well as to the parties’ reasonable expectations, to interpret it as applying to either of the BLM Plants. With respect to the Navy II Plant, however, the situation is less clear. The fee agreement can reasonably be read as being limited to the specific project undertaken pursuant to the Navy contract as it existed in December 1979, applying only the Navy I Plant. Conversely, it can also be read more broadly to include any facility built by the Caithness-CECI joint venture under the Navy contract, as amended from time to time, thereby applying to both the Navy I and Navy II Plants. While Caithness produced evidence that, at the time the fee agreement was signed, the project consisted solely of the Navy I Plant to be built on the defined land subject to Navy control and that it intended the fee agreement to be so limited, Geothermal introduced extrinsic evidence that the parties contemplated the Coso Geothermal Project as including a possible future expansion of the Navy contract to permit additional development within the Coso Known Geothermal Resources Area. Since the fee agreement is ambiguous and the parties proffered extrinsic evidence from which conflicting inferences may be drawn, the Supreme Court erred in granting summary judgment in favor of Caithness with respect to Geothermal’s claim for a fee on the cash flows generated by the Navy II Plant. *425Geothermal’s remaining contentions are without merit. Santucei, J.E, Mastro, Fisher and Dillon, JJ., concur. | 01-12-2022 | [
"In an action for an accounting and to recover damages for breach of contract, the plaintiff appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Warshawsky, J. ), entered June 30, 2005, as granted that branch of the defendants’ motion which was, in effect, for summary judgment declaring that a certain broker or finder’s fee agreement entered into between the defendants and the plaintiff on July 23, 1980, applied only to the net cash flow generated by a single geothermal power plant known as the Navy I Plant and not to additional net cash flows generated by *421three other geothermal power plants known as the Navy II Plant, the BLM East Plant, and the BLM West Plant, and denied its cross motion for summary judgment declaring that the subject agreement applied to all four geothermal power plants, and (2) from so much of an order of the same court entered October 7, 2005, as, upon reargument, adhered to its original determination. Ordered that the appeal from the order entered June 30, 2005 is dismissed, without costs or disbursements, as that order was superseded by the order entered October 7, 2005, made upon re-argument; and it is further, Ordered that the order entered October 7, 2005 is modified, on the law, by deleting the provisions thereof which, upon reargument, adhered to so much of the prior determination as granted that branch of the motion which was for summary judgment declaring that the broker’s or finder’s fee agreement did not apply to additional net cash flows generated by the geothermal power plant known as the Navy II Plant, and denied that branch of the cross motion which was for summary judgment declaring that the broker’s or finder’s fee agreement applied to additional net cash flows generated by the geothermal power plant known as the Navy II Plant and substituting therefor provisions, upon reargument, (a) vacating so much of the order entered June 30, 2005, as granted that branch of the motion which was for summary judgment declaring that the broker’s or finder’s fee agreement did not apply to additional net cash flows generated by the geothermal power plant known as the Navy II Plant, and (b) denying that branch of the motion; as so modified, the order entered October 7, 2005, is affirmed insofar as appealed from, without costs or disbursements.",
"On December 6, 1979, California Energy Company, Inc. (hereinafter CECI), entered into a contract with the United States Navy (hereinafter the Navy contract), which, inter alia, gave CECI the right to build an electric power plant to produce a maximum of 75 Megawatts (hereinafter MW) of power using a natural geothermal resource located within a specified 3V2-square mile parcel of land in eastern California. A “Request for Technical Proposals” issued by the Navy described the project as consisting of the building of a plant producing up to 75 MW in that area, and provided that “ [subsequent development and delivery of power in excess of 75 MW will be negotiated under the contract Changes Clause.” After entering into the Navy contract, CECI approached Wall Street financiers, including the plaintiff, Geothermal Energy Corporation (hereinafter Geothermal), seeking funding for the project.",
"*422Sometime in early 1980, the former president of Geothermal agreed to give the information package received from CECI to the former president of the defendants Caithness Corporation and Caithness Resources, Inc. (hereinafter collectively referred to as Caithness), in exchange for Caithness’s agreement to give Geothermal a percentage of the net cash flow. The parties thereafter memorialized their agreement by signing a one-page letter agreement dated July 23, 1980, which had been drafted by Caithness’s president (hereinafter the fee agreement).",
"The fee agreement provided, in relevant part, that, in exchange for Geothermal having brought to Caithness the “Coso Geothermal Project, as set forth in a contract, dated December 6, 1979” between CECI and the Navy, Caithness would pay Geothermal one percent of the net cash flow from the “Coso Geothermal Project.” Geothermal’s right to receive payment of the fee was contingent upon Caithness entering into a “final agreement with CECI and investing equity funds to develop the Coso Project.” In December 1980 Caithness entered into a joint venture with CECI (hereinafter the CECI-Caithness joint venture), to undertake a geothermal drilling and electricity generation project under the Navy contract “as amended from time to time” within a “Project Area” consisting of “parts of the Coso Known Geothermal Resources Area which are subject to the Navy Contract or which hereafter become subject to the Navy Contract.” Within a week, the Navy entered into a modification of the Navy contract to reflect that the CECI-Caithness joint venture had succeeded to CECI’s interests and rights under the Navy contract. The CECI-Caithness joint venture subsequently built a geothermal electric plant, known as the Navy I Plant, on the 3V2-square mile parcel of land referenced in the Navy contract, as it existed in December 1979.",
"Starting in 1993, Caithness paid Geothermal amounts represented to be one percent of the net cash flow from the Navy I Plant. In December 1981 Congress enacted a law authorizing the Navy to develop an additional four square miles within the Naval Weapons Center. Following extensive negotiations between the Navy and the CECI-Caithness joint venture, those parties entered into a further modification to the Navy contract, effective January 26, 1984, which added the additional foursquare mile parcel to the land subject to development under the Navy contract. Pursuant to subsequent modifications to the Navy contract, the Navy agreed to increase the maximum amount of power that could be developed by the CECI-Caithness *423joint venture from 75 MW to 160 MW and to permit the joint venture to sell excess power not required by the Navy to a utility. As a result of the 1984 modification to the Navy contract, the Navy II Plant was eventually built on the four-square mile parcel added to the original project area.",
"Meanwhile, in September 1981, CECI also bid for the right to lease certain parcels of land in the Coso Known Geothermal Resources Area from the Bureau of Land Management of the United States Department of the Interior (hereinafter BLM). In May 1985 CECI entered into a lease with BLM, formed another joint venture with Caithness, and assigned its interest in the BLM lease to that joint venture. The second joint venture built two more geothermal electric plants, known as the BLM East Plant and the BLM West Plant (hereinafter collectively referred to as the BLM Plants), on the lands leased by CECI from BLM. Geothermal commenced this action claiming, inter alia, that it is entitled to receive a percentage of the net cash flow generated not only by the Navy I Plant, but also by the Navy II Plant and the BLM Plants. Caithness moved, inter alia, in effect, for summary judgment declaring that Geothermal’s contractual claim is limited to a fee based on the net cash flow generated by the Navy I Plant only, and Geothermal cross-moved for summary judgment declaring that the scope of the fee agreement included not only the Navy I Plant but also the Navy II Plant and the BLM Plants.",
"The Supreme Court determined that the fee agreement was clear and unambiguous, and declared that it was applicable to the Navy I Plant only, and not to the Navy II or the BLM Plants. Whether a contract is ambiguous is a question of law for the court and is to be determined by looking “within the four corners of the document” (Kass v Kass, 91 NY2d 554, 566 [1998], citing W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162-163 [1990]). A contract is unambiguous if “on its face [it] is reasonably susceptible of only one meaning” (Greenfield v Philles Records, 98 NY2d 562, 570 [2002]; see Breed v Insurance Co. of N. Am., 46 NY2d 351, 355 [1978]).",
"Conversely, “[a] contract is ambiguous if the provisions in controversy are reasonably or fairly susceptible of different interpretations or may have two or more different meanings” (Feldman v National Westminster Bank, 303 AD2d 271 [2003] [internal quotation marks and citation omitted]; see New York City Off-Track Betting Corp. v Safe Factory Outlet, Inc., 28 AD3d 175, 177 [2006]). The existence of ambiguity is determined by examining the “entire contract and considering] the relation of the parties and the circumstances under which it was executed,” with the *424wording to be considered “in the light of the obligation as a whole and the intention of the parties as manifested thereby” (Kass v Kass, supra at 566 [internal quotation marks omitted]).",
"The “ ‘intent of the parties must be found within the four corners of the contract, giving a practical interpretation to the language employed and the parties’ reasonable expectations’ ” (Del Vecchio v Cohen, 288 AD2d 426, 427 [2001], quoting Slamow v Del Col, 174 AD2d 725, 726 [1991], affd 79 NY2d 1016 [1992]). When a term or clause is ambiguous, “the parties may submit extrinsic evidence as an aid in construction, and the resolution of the ambiguity is for the trier of fact” (Pellot v Pellot, 305 AD2d 478, 481 [2003]; see State of New York v Home Indem. Co., 66 NY2d 669, 671 [1985]; Winchester Globe Trust Co. v First Secured Capital Corp., 288 AD2d 381, 381-382 [2001]; Siegel v Golub, 286 AD2d 489, 490 [2001]). Applying these principles, we find that the term “Coso Geothermal Project,” as used in the fee agreement, clearly does not refer to either of the BLM Plants. Indeed, the BLM Plants were not constructed pursuant to the Navy contract or any modification thereto, but pursuant to an entirely separate lease agreement entered into between CECI and BLM. Thus, it would be contrary to the plain meaning of the fee agreement, as well as to the parties’ reasonable expectations, to interpret it as applying to either of the BLM Plants.",
"With respect to the Navy II Plant, however, the situation is less clear. The fee agreement can reasonably be read as being limited to the specific project undertaken pursuant to the Navy contract as it existed in December 1979, applying only the Navy I Plant. Conversely, it can also be read more broadly to include any facility built by the Caithness-CECI joint venture under the Navy contract, as amended from time to time, thereby applying to both the Navy I and Navy II Plants. While Caithness produced evidence that, at the time the fee agreement was signed, the project consisted solely of the Navy I Plant to be built on the defined land subject to Navy control and that it intended the fee agreement to be so limited, Geothermal introduced extrinsic evidence that the parties contemplated the Coso Geothermal Project as including a possible future expansion of the Navy contract to permit additional development within the Coso Known Geothermal Resources Area.",
"Since the fee agreement is ambiguous and the parties proffered extrinsic evidence from which conflicting inferences may be drawn, the Supreme Court erred in granting summary judgment in favor of Caithness with respect to Geothermal’s claim for a fee on the cash flows generated by the Navy II Plant. *425Geothermal’s remaining contentions are without merit. Santucei, J.E, Mastro, Fisher and Dillon, JJ., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5711763/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
133 Ind. App. 542 (1962) 183 N.E.2d 615 LEE, BY HER NEXT FRIEND, ETC. v. DICKERSON. No. 19,289. Court of Appeals of Indiana. Filed June 25, 1962. *543 Berry, Kincade & Allen, of Terre Haute, and John J. Thomas, of Brazil, for appellant. Joseph A. Noel, Jump, Noel, Lacey & Angel, Jerry L. Angel, of Kokomo, Kenneth C. Miller, and Miller & Miller, of counsel, of Brazil, for appellee. BIERLY, J. This action was brought and tried in the Clay Circuit Court wherein appellant, Martha Lee, a minor, by her next friend, sought recovery in damages for personal injuries against the appellee, Brian M. Dickerson. The action arose out of a motor vehicle collision which occurred on February 20, 1955. The collision in question occurred on U.S. Highway 40, approximately three-fourths of a mile east of its intersection with State Highway 43 in Putman County, Indiana. U.S. Highway No. 40, at the point where the collision occurred, was a dual lane highway running in a generally east and west direction over undulating terrain. The highway was divided into two westbound *544 lanes and two eastbound lanes. The eastbound section was separated from the westbound section by a grass divider strip. The collision in question occurred about 7:30 o'clock P.M. on a rainy night. Appellant was a passenger in an automobile which was being driven in a westerly direction over and along the north section of Highway No. 40. The car in which appellant was riding left the pavement, careened across the dividing strip and onto the south or eastbound section of the highway. The appellee was, at the time, driving his vehicle in an easterly direction over and along the left or north lane of the eastbound section of Highway No. 40. The two automobiles collided. Appellant initiated this action to recover damages against the appellee for personal injuries which she received in the collision. Appellant was six years of age at the time. The driver of the car in which appellant was a passenger was appellant's mother who was killed in the collision. Appellant's complaint alleges that appellee was guilty of negligence which was a proximate cause of the injuries sustained by her in the said collision. The complaint alleges in substance, that appellee failed to keep a lookout for the motor vehicle in which appellant was riding; that he operated his vehicle at an excessive rate of speed; that he failed to slow down or stop; that he operated his car in the north rather than the south lane of the south division of the dual highway, when he was not, at the time, passing another vehicle; that he failed to avoid a collision by driving in the south lane; and that he failed to stop without striking plaintiff. *545 Appellee denied these allegations in his answer, and in addition, he filed a second paragraph of answer wherein he alleged that the sole proximate cause of the collision in question and of appellant's injuries was the negligence of appellant's mother, the driver of the vehicle in which appellant was riding. Said second paragraph of appellee's answer specifically charged that appellant's mother negligently permitted the vehicle to go out of control and careen directly into the path of appellee's vehicle. Appellee could do nothing to avoid a collision, and that appellant's mother failed to yield the right of way to appellee's automobile. The affirmative matter in appellee's answer was denied by appellant in her reply. The issues as formed by the pleadings were: Whether or not the appellee was guilty of negligence, which as charged by the complaint, was a proximate cause of the accident; whether or not the negligence of appellant's mother was the sole proximate cause of the collision; and whether or not appellant was entitled to damages against the appellee. The cause was tried before a jury which found for appellee. The trial court entered judgment upon the verdict for the appellee. Appellant filed a motion for a new trial which the lower court overruled. Appellant brings this appeal by assigning as error the trial court's overruling of the motion for new trial. Appellant has expressly waived all specifications of error advanced in her motion for new trial except the following: "1. The Court erred in overruling appellant's motion to withdraw the submission of the cause from the jury;
*546 "2. The Court erred in permitting the witness Keith J. Young to testify, in substance, that in his opinion the car in which appellant was riding failed to yield the right of way to the defendant. "3. The Court erred in permitting the witness Keith J. Young to testify, in substance, that in his opinion the car in which appellant was riding was in the wrong lane of traffic not in passing; "4. The Court erred in permitting the witness Keith J. Young to testify, in substance, that in his opinion there was no improper driving on the part of the defendant; "5. The Court erred in permitting the witness Gertrude Lee to testify that she had perfected an appeal from the trial of a companion case in which she was plaintiff and which grew out of the same collision as the case at bar." Appellant submits that by reason of the above errors she was deprived of a fair trial. Appellant's sister-in-law, Gertrude Lee, who was also a passenger in the same vehicle in which appellant was riding, was called as a witness on behalf of appellant. During the course of cross-examination, counsel for appellee asked the witness if she had any interest in the outcome of the present case. She testified that she was a party plaintiff in a companion case against the appellee which was filed in Tipton Circuit Court. Counsel for appellee further asked the witness: "Q. And after that case was heard and determined you now have perfected an appeal and the case is pending in the Appellate Court of Indiana?" Before an answer was given to the question appellant's counsel, out of the presence of the jury, asked that the case be withdrawn from the jury. The basis of the motion was that by referring to the fact that *547 the witness had lost her case against appellee and had appealed it to the Appellate Court, appellee's counsel had so prejudiced the jury that appellant could not have a fair and impartial trial. The court overruled appellant's motion. The court permitted the question to be answered by the witness, but proceeded to admonish the jury by the following statement: "Members of the jury, the case in which you are engaged as jurors has never been tried before in any court. So far as the case at Tipton (is concerned) about which counsel for the defendant has inquired, there is no evidence as to the outcome of that case and will probably be no evidence as to the outcome and you should not guess or speculate as to the outcome of the case which was tried at Tipton and which is now pending, as the evidence has disclosed, in the Appellate Court of Indiana and is not yet disposed of." Appellant contends that the admonition not only failed to cure the prejudice which had attached by the jury being advised as to the outcome of the companion case in the trial court at Tipton but compounded it, in emphasizing that it was pending in the Appellate Court. In addition to the court's admonition to the jury, appellee tendered an instruction, which was given by the court, and which was the only instruction tendered at the trial with respect to the companion case. The instruction was as follows: "During the trial of this cause various witnesses have mentioned a certain case tried in the Tipton Circuit Court at Tipton, Indiana. That cause of action has no bearing whatever on this case. The plaintiff in this case was not a party in that lawsuit." *548 Appellee contends that the question propounded to Gertrude Lee was for the purpose of showing possible bias or interest on the part of the witness; that if the question was error, it was cured by the court's admonition and by the instruction tendered and given. Assuming that the question asked was error, the question which confronts us is whether the error became harmless as a result of the court's admonition and the instruction given or whether, when combined with other errors made by the court, the error became reversible. After Gertrude Lee left the witness stand, appellant called Keith J. Young, an Indiana State Police Officer, who had investigated the accident, to testify. The witness, on direct examination, testified only upon matters about which he had personal knowledge, garnered from his investigation at the scene. His testimony involved only physical facts discovered by him, including the nature of the highway, the weather, debris upon the pavement and the respective positions of the vehicles upon the pavement. The officer's testimony was derived from a report he had compiled at the scene of the accident, which he used to refresh his recollection on the witness stand. However, on cross-examination, the witness was asked: "And officer, as a matter of fact in making your report, you did indicate, did you not, that the Lee car failed to yield the right of way to the Dickerson car?" Appellant raised an objection which was as follows: "We object to that Your Honor, for the reason that the law in this case will be given to the jury by the court. And for the witness, for any *549 witness, to be asked what is lawful or proper or wrong is invading the province of the jury as it will be given instructions as to the law by this court." The objection was overruled and the witness answered: "Yes." The witness was then asked: "And I will ask you, also, officer, if you didn't find and determine in making your report that the Lee car was on the wrong side of the road not in passing at the time this accident happened? Appellant's objection was as follows: "We object to that for the same reason as stated before, Your Honor." The objection was overruled and the witness answered: "Yes." Finally the witness was asked: "Were there any indications as to improper driving on the Dickerson car as you indicated on the report from which you have testified?" Appellant's objection was as follows: "Objection, Your Honor, on the grounds that it calls for a conclusion on the part of the witness and further that it invades the province of the jury." The objection was overruled and the witness answered: "No." *550 Appellee argues that the purpose of the cross-examination of the police officer was to test the witness's recollection. It has repeatedly been held by the courts (throughout this nation) that statements contained in a report compiled by a police officer concerning the cause of or responsibility for an injury to the person or property are properly excluded from evidence on the basis that it constitutes an opinion or conclusion as distinguished from a statement of fact and/or that it represents statements made by someone else which were given to the investigating officer rather than the reporting officer's own personal observations. See cases cited in the annotations following the case of Derrick v. Blazers (1959), 355 Mich. 176, 93 N.W.2d 909, reported in 69 ALR 2d 1143; as well as Franklin v. Skelly Oil Co. (1944), reported in 153 ALR 156; see, also, 20 Am. Jur., Evidence, § 1027, pp. 866-867. While the facts set out in such reports are good evidence, the conclusions and opinions stated therein are not. See authorities last cited. It has been reasoned, and we think properly so, "... those portions of a public officer's report relating to the cause of or responsibility for an accident, injury, or damage may constitute statements of fact or they may represent a mere opinion or conclusion, and it would seem that a statement appearing in such a report relating to the cause of or responsibility for an accident or injury would properly be admitted in evidence if (1) it constituted a statement of fact, as distinguished from an opinion or conclusion, and (2) it represented the personal observations of the reporter, not a relaying of what someone else had told him...." See 69 ALR 2d, § 1, p. 1152. *551 Here, in the instant case, there was no attempt to introduce the police report into evidence, but appellee's attorney, under the guise of "testing the witness' recollection," asked the officer to recall those matters which would not otherwise be admissible. Objections were raised to the questions asked and the court overruled the objections. The witness was allowed, through his answers, to give his opinions and conclusions to matters affecting the cause of or responsibility for the accident in question. The witness was not any more of an expert on the matter concluded in his report than was the jury. It has been held by the Supreme Court of this state that "... where the facts can be fully placed before the jury, opinion evidence, even from experts, is incompetent if the facts are of such a nature that jurors are as well qualified to form an opinion upon them as the witnesses." (Our emphasis.) Brunker v. Cummins (1892), 133 Ind. 443, 447, 32 N.E. 732. Here, the witness on direct examination testified only to facts which he had observed at the time he arrived at the scene of the accident. It has been stated that "... In the event an expert witness has testified to facts observed by him, and not to his opinion based thereon, he cannot be cross-examined as to his professional opinion, ..." See 58 Am. Jur., Witnesses, § 844, p. 474. It has been held, also, that, where an officer, if on the witness stand, could not state his opinion or conclusion *552 as to the responsibility or cause of the injury, then his statement contained in a report as to the cause or responsibility should also be excluded. See Pruett v. Burr et al. (1953), 118 Cal. App.2d 188, 257 P.2d 690; Hadley et al. v. Ross (1944), 195 Okla. 89, 154 P.2d 939. Using this rationale we can say that if certain parts of the reports were not admissible on the grounds that it gives the officer's opinion and conclusion as to the cause of or responsibility for the accident, then it would follow that the officer could not, while on the witness stand, when using the report to refresh his recollection, testify orally with respect to these matters. Appellee's argument that he had a right to "test the recollection of the witness" lends little support to the admissibility of the statement. The questions themselves were obviously designed to do more than test the witness's recollection. The questions asked clearly invaded the province of the court and jury. It is the duty of the trial court and not the witness to advise the jury as to who should have yielded the right of way in the instant case. It is also a function of the court to instruct the jury as to the duty of the parties involved in the accident in question. It is the duty of the jury to take the evidence presented, apply the law, and determine whether or not there was any improper driving on appellee's part and whether appellant should recover damages. In the case of Stone v. Warehouse & Terminal Cartage Company (1955), 6 Ill. App.2d 229, 127 N.E.2d 260, a question was raised as to whether the trial court erred in permitting the defendant's counsel, *553 under the guise of refreshing a witness's recollection, to prove on cross-examination the contents of a police report. The Illinois court held that the trial court, by allowing the defendant to cross-examine the officer concerning the report, which report itself could not have been properly admitted into evidence, was a prejudicial error. In light of the questions asked of the witness Gertrude Lee and Keith J. Young, and in light of the above cited authority, this court is of the opinion that when combined together the errors committed were of such a prejudicial nature that the jury could have been so influenced in reaching its verdict that appellant was denied a fair and impartial trial. Therefore, the judgment is reversed and the trial court is ordered to sustain appellant's motion for a new trial and for further proceedings. Judgment reversed. Kelley, C.J., and Gonas, J., concur. Pfaff, J., dissents without opinion. NOTE. Reported in 183 N.E.2d 615. | 10-30-2013 | [
"133 Ind. App. 542 (1962) 183 N.E.2d 615 LEE, BY HER NEXT FRIEND, ETC. v. DICKERSON. No. 19,289. Court of Appeals of Indiana. Filed June 25, 1962. *543 Berry, Kincade & Allen, of Terre Haute, and John J. Thomas, of Brazil, for appellant. Joseph A. Noel, Jump, Noel, Lacey & Angel, Jerry L. Angel, of Kokomo, Kenneth C. Miller, and Miller & Miller, of counsel, of Brazil, for appellee. BIERLY, J. This action was brought and tried in the Clay Circuit Court wherein appellant, Martha Lee, a minor, by her next friend, sought recovery in damages for personal injuries against the appellee, Brian M. Dickerson. The action arose out of a motor vehicle collision which occurred on February 20, 1955. The collision in question occurred on U.S. Highway 40, approximately three-fourths of a mile east of its intersection with State Highway 43 in Putman County, Indiana.",
"U.S. Highway No. 40, at the point where the collision occurred, was a dual lane highway running in a generally east and west direction over undulating terrain. The highway was divided into two westbound *544 lanes and two eastbound lanes. The eastbound section was separated from the westbound section by a grass divider strip. The collision in question occurred about 7:30 o'clock P.M. on a rainy night. Appellant was a passenger in an automobile which was being driven in a westerly direction over and along the north section of Highway No.",
"40. The car in which appellant was riding left the pavement, careened across the dividing strip and onto the south or eastbound section of the highway. The appellee was, at the time, driving his vehicle in an easterly direction over and along the left or north lane of the eastbound section of Highway No. 40. The two automobiles collided. Appellant initiated this action to recover damages against the appellee for personal injuries which she received in the collision. Appellant was six years of age at the time. The driver of the car in which appellant was a passenger was appellant's mother who was killed in the collision. Appellant's complaint alleges that appellee was guilty of negligence which was a proximate cause of the injuries sustained by her in the said collision. The complaint alleges in substance, that appellee failed to keep a lookout for the motor vehicle in which appellant was riding; that he operated his vehicle at an excessive rate of speed; that he failed to slow down or stop; that he operated his car in the north rather than the south lane of the south division of the dual highway, when he was not, at the time, passing another vehicle; that he failed to avoid a collision by driving in the south lane; and that he failed to stop without striking plaintiff. *545 Appellee denied these allegations in his answer, and in addition, he filed a second paragraph of answer wherein he alleged that the sole proximate cause of the collision in question and of appellant's injuries was the negligence of appellant's mother, the driver of the vehicle in which appellant was riding.",
"Said second paragraph of appellee's answer specifically charged that appellant's mother negligently permitted the vehicle to go out of control and careen directly into the path of appellee's vehicle. Appellee could do nothing to avoid a collision, and that appellant's mother failed to yield the right of way to appellee's automobile. The affirmative matter in appellee's answer was denied by appellant in her reply. The issues as formed by the pleadings were: Whether or not the appellee was guilty of negligence, which as charged by the complaint, was a proximate cause of the accident; whether or not the negligence of appellant's mother was the sole proximate cause of the collision; and whether or not appellant was entitled to damages against the appellee. The cause was tried before a jury which found for appellee. The trial court entered judgment upon the verdict for the appellee. Appellant filed a motion for a new trial which the lower court overruled.",
"Appellant brings this appeal by assigning as error the trial court's overruling of the motion for new trial. Appellant has expressly waived all specifications of error advanced in her motion for new trial except the following: \"1. The Court erred in overruling appellant's motion to withdraw the submission of the cause from the jury; *546 \"2. The Court erred in permitting the witness Keith J. Young to testify, in substance, that in his opinion the car in which appellant was riding failed to yield the right of way to the defendant. \"3. The Court erred in permitting the witness Keith J. Young to testify, in substance, that in his opinion the car in which appellant was riding was in the wrong lane of traffic not in passing; \"4. The Court erred in permitting the witness Keith J. Young to testify, in substance, that in his opinion there was no improper driving on the part of the defendant; \"5. The Court erred in permitting the witness Gertrude Lee to testify that she had perfected an appeal from the trial of a companion case in which she was plaintiff and which grew out of the same collision as the case at bar.\" Appellant submits that by reason of the above errors she was deprived of a fair trial. Appellant's sister-in-law, Gertrude Lee, who was also a passenger in the same vehicle in which appellant was riding, was called as a witness on behalf of appellant.",
"During the course of cross-examination, counsel for appellee asked the witness if she had any interest in the outcome of the present case. She testified that she was a party plaintiff in a companion case against the appellee which was filed in Tipton Circuit Court. Counsel for appellee further asked the witness: \"Q. And after that case was heard and determined you now have perfected an appeal and the case is pending in the Appellate Court of Indiana?\" Before an answer was given to the question appellant's counsel, out of the presence of the jury, asked that the case be withdrawn from the jury. The basis of the motion was that by referring to the fact that *547 the witness had lost her case against appellee and had appealed it to the Appellate Court, appellee's counsel had so prejudiced the jury that appellant could not have a fair and impartial trial. The court overruled appellant's motion. The court permitted the question to be answered by the witness, but proceeded to admonish the jury by the following statement: \"Members of the jury, the case in which you are engaged as jurors has never been tried before in any court. So far as the case at Tipton (is concerned) about which counsel for the defendant has inquired, there is no evidence as to the outcome of that case and will probably be no evidence as to the outcome and you should not guess or speculate as to the outcome of the case which was tried at Tipton and which is now pending, as the evidence has disclosed, in the Appellate Court of Indiana and is not yet disposed of.\"",
"Appellant contends that the admonition not only failed to cure the prejudice which had attached by the jury being advised as to the outcome of the companion case in the trial court at Tipton but compounded it, in emphasizing that it was pending in the Appellate Court. In addition to the court's admonition to the jury, appellee tendered an instruction, which was given by the court, and which was the only instruction tendered at the trial with respect to the companion case. The instruction was as follows: \"During the trial of this cause various witnesses have mentioned a certain case tried in the Tipton Circuit Court at Tipton, Indiana. That cause of action has no bearing whatever on this case. The plaintiff in this case was not a party in that lawsuit.\" *548 Appellee contends that the question propounded to Gertrude Lee was for the purpose of showing possible bias or interest on the part of the witness; that if the question was error, it was cured by the court's admonition and by the instruction tendered and given.",
"Assuming that the question asked was error, the question which confronts us is whether the error became harmless as a result of the court's admonition and the instruction given or whether, when combined with other errors made by the court, the error became reversible. After Gertrude Lee left the witness stand, appellant called Keith J. Young, an Indiana State Police Officer, who had investigated the accident, to testify. The witness, on direct examination, testified only upon matters about which he had personal knowledge, garnered from his investigation at the scene.",
"His testimony involved only physical facts discovered by him, including the nature of the highway, the weather, debris upon the pavement and the respective positions of the vehicles upon the pavement. The officer's testimony was derived from a report he had compiled at the scene of the accident, which he used to refresh his recollection on the witness stand. However, on cross-examination, the witness was asked: \"And officer, as a matter of fact in making your report, you did indicate, did you not, that the Lee car failed to yield the right of way to the Dickerson car?\" Appellant raised an objection which was as follows: \"We object to that Your Honor, for the reason that the law in this case will be given to the jury by the court.",
"And for the witness, for any *549 witness, to be asked what is lawful or proper or wrong is invading the province of the jury as it will be given instructions as to the law by this court.\" The objection was overruled and the witness answered: \"Yes.\" The witness was then asked: \"And I will ask you, also, officer, if you didn't find and determine in making your report that the Lee car was on the wrong side of the road not in passing at the time this accident happened? Appellant's objection was as follows: \"We object to that for the same reason as stated before, Your Honor.\" The objection was overruled and the witness answered: \"Yes.\" Finally the witness was asked: \"Were there any indications as to improper driving on the Dickerson car as you indicated on the report from which you have testified?\"",
"Appellant's objection was as follows: \"Objection, Your Honor, on the grounds that it calls for a conclusion on the part of the witness and further that it invades the province of the jury.\" The objection was overruled and the witness answered: \"No.\" *550 Appellee argues that the purpose of the cross-examination of the police officer was to test the witness's recollection. It has repeatedly been held by the courts (throughout this nation) that statements contained in a report compiled by a police officer concerning the cause of or responsibility for an injury to the person or property are properly excluded from evidence on the basis that it constitutes an opinion or conclusion as distinguished from a statement of fact and/or that it represents statements made by someone else which were given to the investigating officer rather than the reporting officer's own personal observations. See cases cited in the annotations following the case of Derrick v. Blazers (1959), 355 Mich. 176, 93 N.W.2d 909, reported in 69 ALR 2d 1143; as well as Franklin v. Skelly Oil Co. (1944), reported in 153 ALR 156; see, also, 20 Am. Jur., Evidence, § 1027, pp.",
"866-867. While the facts set out in such reports are good evidence, the conclusions and opinions stated therein are not. See authorities last cited. It has been reasoned, and we think properly so, \"... those portions of a public officer's report relating to the cause of or responsibility for an accident, injury, or damage may constitute statements of fact or they may represent a mere opinion or conclusion, and it would seem that a statement appearing in such a report relating to the cause of or responsibility for an accident or injury would properly be admitted in evidence if (1) it constituted a statement of fact, as distinguished from an opinion or conclusion, and (2) it represented the personal observations of the reporter, not a relaying of what someone else had told him....\" See 69 ALR 2d, § 1, p. 1152.",
"*551 Here, in the instant case, there was no attempt to introduce the police report into evidence, but appellee's attorney, under the guise of \"testing the witness' recollection,\" asked the officer to recall those matters which would not otherwise be admissible. Objections were raised to the questions asked and the court overruled the objections. The witness was allowed, through his answers, to give his opinions and conclusions to matters affecting the cause of or responsibility for the accident in question. The witness was not any more of an expert on the matter concluded in his report than was the jury. It has been held by the Supreme Court of this state that \"... where the facts can be fully placed before the jury, opinion evidence, even from experts, is incompetent if the facts are of such a nature that jurors are as well qualified to form an opinion upon them as the witnesses.\" (Our emphasis.) Brunker v. Cummins (1892), 133 Ind. 443, 447, 32 N.E.",
"732. Here, the witness on direct examination testified only to facts which he had observed at the time he arrived at the scene of the accident. It has been stated that \"... In the event an expert witness has testified to facts observed by him, and not to his opinion based thereon, he cannot be cross-examined as to his professional opinion, ...\" See 58 Am. Jur., Witnesses, § 844, p. 474. It has been held, also, that, where an officer, if on the witness stand, could not state his opinion or conclusion *552 as to the responsibility or cause of the injury, then his statement contained in a report as to the cause or responsibility should also be excluded. See Pruett v. Burr et al.",
"(1953), 118 Cal. App.2d 188, 257 P.2d 690; Hadley et al. v. Ross (1944), 195 Okla. 89, 154 P.2d 939. Using this rationale we can say that if certain parts of the reports were not admissible on the grounds that it gives the officer's opinion and conclusion as to the cause of or responsibility for the accident, then it would follow that the officer could not, while on the witness stand, when using the report to refresh his recollection, testify orally with respect to these matters. Appellee's argument that he had a right to \"test the recollection of the witness\" lends little support to the admissibility of the statement. The questions themselves were obviously designed to do more than test the witness's recollection. The questions asked clearly invaded the province of the court and jury. It is the duty of the trial court and not the witness to advise the jury as to who should have yielded the right of way in the instant case. It is also a function of the court to instruct the jury as to the duty of the parties involved in the accident in question.",
"It is the duty of the jury to take the evidence presented, apply the law, and determine whether or not there was any improper driving on appellee's part and whether appellant should recover damages. In the case of Stone v. Warehouse & Terminal Cartage Company (1955), 6 Ill. App.2d 229, 127 N.E.2d 260, a question was raised as to whether the trial court erred in permitting the defendant's counsel, *553 under the guise of refreshing a witness's recollection, to prove on cross-examination the contents of a police report. The Illinois court held that the trial court, by allowing the defendant to cross-examine the officer concerning the report, which report itself could not have been properly admitted into evidence, was a prejudicial error. In light of the questions asked of the witness Gertrude Lee and Keith J. Young, and in light of the above cited authority, this court is of the opinion that when combined together the errors committed were of such a prejudicial nature that the jury could have been so influenced in reaching its verdict that appellant was denied a fair and impartial trial.",
"Therefore, the judgment is reversed and the trial court is ordered to sustain appellant's motion for a new trial and for further proceedings. Judgment reversed. Kelley, C.J., and Gonas, J., concur. Pfaff, J., dissents without opinion. NOTE. Reported in 183 N.E.2d 615."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1995743/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Woodward, J.: Morris Putnam Stevens, as general guardian of Bertha D. Kane, brings this action for the purpose of recovering certain rentals of land specifically devised by the late Edward Kane to Bertha D. Kane, the ward of the plaintiff. Edward Kane died on the 11th day of December, 1897, and his will was admitted to probate on the 3d day of May, 1898. It is conceded that in the absence of a special defense the plaintiff would be entitled to recover the amount demanded, which is, by agreement of the parties, stipulated at §2,070.10. The defendant, however, sets up an affirmative defense, and alleges that on or about the loth day of April, 1897, the testator, Edward Kane, borrowed $2,000 from the defendant, who is an Italian banker, and who had charge of the property and collected *548the rents, thereof as the agent of the testator, and that the following written agreement, which appears in evidence, was made and delivered, under the provisions of which the moneys in controversy were collected: ' “ This is to certify that Mr. Anthony Sessa has agreed to make unto Mr. Edward Kane a loan of two thousand dollars, of which he has already advanced the sum of fourteen hundred dollars, the balance to be advanced in June, 1897. “As security for the .payment of the said claim of two thousand dollars, Mr. Edward Kane hereby assigns and transfers unto Mr. Anthony Sessa his claim against the business of E. Kane & Co., amounting to two thousand dollars; and if the said sum of two thousand dollars is not paid on or before February 1st, 1898, then Mr. Anthony Sessa shall be entitled to collect and keep the rent of the houses known as Nos. 28 to 36 Union street and No. 19 President street, Brooklyn, and to apply the same to the. said loan of two thousand dollars until the same shall be paid in full. Interest shall begin to run from February 1st, 1898. “EDWAKD KANE.” There is no doubt that were Edward Kane the plaintiff in this action, this court would refuse to aid him in the collection of this claim, whatever may be the exact legal effect of the instrument executed between him and the defendant. At the time the money was borrowed Anthony Sessa was the agent of the testator and the custodian of the leases under which the properties mentioned were rented. By the execution of the contract for the repayment of the sum of $2,000, in the evenf of its non-payment at a given time, out of the rents of the designated property, there was a transfer of the leases upon these several properties to the defendant, which gave him the right to collect and retain the rentals under the terms of the contract. There is nothing in the record to show that any new lease was executed by the devisee after the death of the devisor, and it may be assumed, therefore, that the rents which are claimed by the plaintiff were all collected under the assigned leases. If, however, the paper given by the plaintiff’s testator "be regarded merely as an executory contract, fully performed on the part of the defendant, it is sufficient to constitute a defense to this action under *549the facts and circumstances developed by the evidence. The defendant was the agent of plaintifE’s testator, and if the agency was a mere naked power to rent the property of the testator, it would terminate instantly upon the death of the grantor (Farmers’ Loan & Trust Company v. Wilson, 139 N. Y. 284); but where the power is coupled with an interest in the subject-matter of the agency, the agent may execute the authority, as his rights survive the death of the principal. (1 Am. & Eng. Ency. of Law [2d ed.], 1223; Story Agency, 489 ; Knapp v. Alvord, 10 Paige, 205 ; Houghtaling v. Marvin, 7 Barb. 412.) The authorities are cited and reviewed at length in the case of Terwilliger v. Ontario, C. & S. R. R. Co. (149 N. Y. 86), and the learned court reaches a conclusion in harmony with the view which we take of this case. In the case at bar the defendant liad loaned to the plaintiff's testator the sum of $2,000, and the written contract gave the defendant a power to “ collect and keep the rent of the houses ” described in the paper. This agency on the part of the defendant for the rental of these buildings was thus coupled with an interest; the testator could not revoke that agency, or the power conferred by his contract until the debt was paid, nor would his death,- under the circumstances, operate to end the agency or the power. “This general rule,” says Chief Justice Marshall, in Hunt v. Rousmanier (8 Wheat. 174, 203), “that a power ceases with the life of the person giving it. admits of one exception. If a power be coupled with an ‘interest’ it survives the person giving it, and may be executed after his death. As this proposition is laid down too positively in the books to be controverted, it becomes necessary to inquire what is meant by the expression ‘ a power coupled with an interest ? ’ Is it an interest in the subject on which the power is to be exercised, or is it an interest in that which is produced by the exercise of the power ? We hold it to be clear that the interest which can protect a power after the death of a person who creates it, must be an interest in the thing itself. * * * ‘A power coupled with an interest ’ is a power which accompanies, or is connected with, an interest. The power and the interest are united in the same person.” The defendant in the case at bar had an interest or estate in the rentals of the buildings described in the contract; he also had the power, given him by the testator, to “collect and keep the rent,” in payment of the tes*550tator’s obligation. He is thus within the rule laid down by the great chief justice and the authorities which we have cited, Knapp v. Alvord (supra) being specially in point, as is also the general reasoning of Houghtaling v. Marvin (supra). That plaintiff’s ward took the legal title to the real estate now under consideration immediately upon the death of her testator is undoubtedly true; but the defendant had an interest in the rentals to be collected from that property, and he had an irrevocable power to collect and appropriate to his own use the money necessary to reimburse him for that which he had loaned to the testator, and that power did not come to an end with the death of the grantor; it could only terminate when the terms of the power had been complied with and the defendant had been paid that which was his due. The judgment appealed from should be affirmed. All concurred. Judgment affirmed, with costs. | 01-06-2022 | [
"Woodward, J.: Morris Putnam Stevens, as general guardian of Bertha D. Kane, brings this action for the purpose of recovering certain rentals of land specifically devised by the late Edward Kane to Bertha D. Kane, the ward of the plaintiff. Edward Kane died on the 11th day of December, 1897, and his will was admitted to probate on the 3d day of May, 1898. It is conceded that in the absence of a special defense the plaintiff would be entitled to recover the amount demanded, which is, by agreement of the parties, stipulated at §2,070.10. The defendant, however, sets up an affirmative defense, and alleges that on or about the loth day of April, 1897, the testator, Edward Kane, borrowed $2,000 from the defendant, who is an Italian banker, and who had charge of the property and collected *548the rents, thereof as the agent of the testator, and that the following written agreement, which appears in evidence, was made and delivered, under the provisions of which the moneys in controversy were collected: ' “ This is to certify that Mr. Anthony Sessa has agreed to make unto Mr. Edward Kane a loan of two thousand dollars, of which he has already advanced the sum of fourteen hundred dollars, the balance to be advanced in June, 1897. “As security for the .payment of the said claim of two thousand dollars, Mr. Edward Kane hereby assigns and transfers unto Mr. Anthony Sessa his claim against the business of E. Kane & Co., amounting to two thousand dollars; and if the said sum of two thousand dollars is not paid on or before February 1st, 1898, then Mr. Anthony Sessa shall be entitled to collect and keep the rent of the houses known as Nos.",
"28 to 36 Union street and No. 19 President street, Brooklyn, and to apply the same to the. said loan of two thousand dollars until the same shall be paid in full. Interest shall begin to run from February 1st, 1898. “EDWAKD KANE.” There is no doubt that were Edward Kane the plaintiff in this action, this court would refuse to aid him in the collection of this claim, whatever may be the exact legal effect of the instrument executed between him and the defendant. At the time the money was borrowed Anthony Sessa was the agent of the testator and the custodian of the leases under which the properties mentioned were rented. By the execution of the contract for the repayment of the sum of $2,000, in the evenf of its non-payment at a given time, out of the rents of the designated property, there was a transfer of the leases upon these several properties to the defendant, which gave him the right to collect and retain the rentals under the terms of the contract. There is nothing in the record to show that any new lease was executed by the devisee after the death of the devisor, and it may be assumed, therefore, that the rents which are claimed by the plaintiff were all collected under the assigned leases.",
"If, however, the paper given by the plaintiff’s testator \"be regarded merely as an executory contract, fully performed on the part of the defendant, it is sufficient to constitute a defense to this action under *549the facts and circumstances developed by the evidence. The defendant was the agent of plaintifE’s testator, and if the agency was a mere naked power to rent the property of the testator, it would terminate instantly upon the death of the grantor (Farmers’ Loan & Trust Company v. Wilson, 139 N. Y. 284); but where the power is coupled with an interest in the subject-matter of the agency, the agent may execute the authority, as his rights survive the death of the principal.",
"(1 Am. & Eng. Ency. of Law [2d ed. ], 1223; Story Agency, 489 ; Knapp v. Alvord, 10 Paige, 205 ; Houghtaling v. Marvin, 7 Barb. 412.) The authorities are cited and reviewed at length in the case of Terwilliger v. Ontario, C. & S. R. R. Co. (149 N. Y. 86), and the learned court reaches a conclusion in harmony with the view which we take of this case. In the case at bar the defendant liad loaned to the plaintiff's testator the sum of $2,000, and the written contract gave the defendant a power to “ collect and keep the rent of the houses ” described in the paper.",
"This agency on the part of the defendant for the rental of these buildings was thus coupled with an interest; the testator could not revoke that agency, or the power conferred by his contract until the debt was paid, nor would his death,- under the circumstances, operate to end the agency or the power. “This general rule,” says Chief Justice Marshall, in Hunt v. Rousmanier (8 Wheat. 174, 203), “that a power ceases with the life of the person giving it. admits of one exception. If a power be coupled with an ‘interest’ it survives the person giving it, and may be executed after his death. As this proposition is laid down too positively in the books to be controverted, it becomes necessary to inquire what is meant by the expression ‘ a power coupled with an interest ? ’ Is it an interest in the subject on which the power is to be exercised, or is it an interest in that which is produced by the exercise of the power ? We hold it to be clear that the interest which can protect a power after the death of a person who creates it, must be an interest in the thing itself.",
"* * * ‘A power coupled with an interest ’ is a power which accompanies, or is connected with, an interest. The power and the interest are united in the same person.” The defendant in the case at bar had an interest or estate in the rentals of the buildings described in the contract; he also had the power, given him by the testator, to “collect and keep the rent,” in payment of the tes*550tator’s obligation. He is thus within the rule laid down by the great chief justice and the authorities which we have cited, Knapp v. Alvord (supra) being specially in point, as is also the general reasoning of Houghtaling v. Marvin (supra).",
"That plaintiff’s ward took the legal title to the real estate now under consideration immediately upon the death of her testator is undoubtedly true; but the defendant had an interest in the rentals to be collected from that property, and he had an irrevocable power to collect and appropriate to his own use the money necessary to reimburse him for that which he had loaned to the testator, and that power did not come to an end with the death of the grantor; it could only terminate when the terms of the power had been complied with and the defendant had been paid that which was his due. The judgment appealed from should be affirmed.",
"All concurred. Judgment affirmed, with costs."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5187675/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT
IN RE: ESTATE OF VIRGINIA : No. 304 WAL 2014 BRUMAGE : : Petition for Allowance of Appeal from the : Order of the Superior Court PETITION OF: BETH A. BRUMAGE, : EXECUTRIX OF ESTATE :
ORDER
PER CURIAM
AND NOW, this 18th day of November, 2014, the Petition for Allowance of
Appeal is DENIED. | 11-18-2014 | [
"IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT IN RE: ESTATE OF VIRGINIA : No. 304 WAL 2014 BRUMAGE : : Petition for Allowance of Appeal from the : Order of the Superior Court PETITION OF: BETH A. BRUMAGE, : EXECUTRIX OF ESTATE : ORDER PER CURIAM AND NOW, this 18th day of November, 2014, the Petition for Allowance of Appeal is DENIED."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2752735/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
12/18/2020 Case: 1:20-cv-06316 Document Yahoo Mail - Fwd: Suspension #: 49-9 of the Filed:groups sex offender 03/05/21 Page of1 the and termination of Second 8 PageID Change#:952 Act grant
EXHIBIT 5 Fwd: Suspension of the sex offender groups and termination of the Second Change Act grant
From: Dr. Fred Nance Jr. (drfred.nancejr@gmail.com)
To: michael.dever@usdoj.gov; andre.bethea@usdoj.gov; tracey.willis@usdoj.gov; jwilliams@air.org; ronald.howard@cookcountyil.gov; jane.gubser@cookcountyil.gov; patricia.grosskopf@illinois.gov; sarah.brown- foiles@illinois.gov; dion.dixon@illinois.gov; josie.ware@mail.house.gov; tumia.romero@mail.house.gov
Cc: drfred.nancejr@gmail.com; frednance@clickservices.org
Date: Monday, September 21, 2020, 08:54 PM CDT
On September 21, 2020, I received the email above and below from Dr. Hattie Wash dissolving the Second Chance Act grant #2018-CY-BX-0025. As Dr. Wash and I talked about her giving up the program, after I discovered her misappropriation of funds or fraud and talked to her about it, Dr. Wash told me since I was going to report this to DOJ, BJA, OJP I could take the program. I sent the email, with this statement from Dr. Wash, to DOJ, BJA, OJP's Mr. Dever, Mr. Bethea, and Ms. Willis. Therefore, I am requesting C.L.I.C.K. Services, NFP become responsible for the grant to its end on September 30, 2021.
There should be no barriers or reasons why I cannot take over the grant. Dr. Wash and I wrote the proposal. I am the Program Director. I created all of our collaborative partners for this grant. Dr. Wash and I created and developed the curricula for this program. I know every part of this program. I partnered with Dr. Wash on this grant. Dr. Wash and I decided she would be the fiduciary and I would handle the day-to-day operation as the Program Director. It was my understanding we were equal partners. Dr. Wash just handled the flow of money for the grant. Read our SCA abstract and proposal for this grant, which is attached.
As reported in our abstract and proposal (pp. 17-18) (attached), EMAGES, Inc & C.L.I.C.K. Services, NFP collaborated and partnered for this grant. I am more than capable of finishing out this grant. This move by Dr. Wash is retaliatory in nature toward me for filing the 3 Whistleblower complaints with the Department of Justice, Bureau of Justice Assistance, Office of Justice Programs, and the U.S. Office of Inspector General for misappropriation of funds or fraud. As I have stated in my Whistleblower complaints, my employment is protected by the Whistleblower Act. My Whistleblower complaints are attached.
Dr. Wash's dilemma with her funding from the State of Illinois is not the first time this has happened to EMAGES. EMAGES has closed programs before because of Illinois State funding. There is no reason this grant cannot continue to move forward under the direction of C.L.I.C.K. Services, NFP (www.clickservices.org). Grant #2018-CY-BX-0025 is funded. I can still work with the Illinois Department of Corrections (post-release prison) and the Cook County Department of Corrections (pre-release jail).I am in the process of creating and developing a 90-day transitional house for sex offenders. I can run the grant from this project. The housing program is being created under C.L.I.C.K. Housing, Inc. My 'brief' housing project proposal is attached. I created this proposal for Illinois and Chicago legislators seeking support for my housing project. Congressman Davis has given me a Letter of Support for my housing project, which is attached. I can provide more details in line with a regular SCA proposal for how the program will work if necessary.
The reasoning Dr. Wash uses for giving the grant back is ludicrous. Grant #2018-CY-BX-0025 is funded and is not affected by the lack of Illinois State funding Dr. Wash alludes too. The grant funding covers participant cost because there is no participant cost. The grant covers contractual fees for all mentors and staff of the grant, which is listed in the grant budget. Our budget takes care of office space and other ancillary functions and needs. Dr. Wash is lumping the grant program in with her State dilemma to retaliate against me for filing my Whistleblower complaints. The only reason Dr. Wash is giving the program back to OJP is to hurt me for filing the 3 Whistleblower complaints.
WHEREFORE, I am requesting a teleconference audience with Mr. Michael Dever, BJA Division Chief; Mr. Andre Bethea, BJA Senior Policy Advisor; and Ms. Tracey Willis, OJP Grant Manager; or in the alternative, a transfer of responsibility for Grant #2018-CY-BX-0025. Please respond. Thank you.
Respectfully submitted
---------- Forwarded message --------- From: Hattie Wash <washhattie@gmail.com>
1/2 12/18/2020 Case: 1:20-cv-06316 Document Yahoo Mail - Fwd: Suspension #: 49-9 of the Filed:groups sex offender 03/05/21 Page of2 the and termination of Second 8 PageID Change#:953 Act grant
Date: Mon, Sep 21, 2020 at 7:28 PM EXHIBIT 5 Subject: Suspension of the sex offender groups and termination of the Second Change Act grant To: Gerri Taylor <tgerri99@yahoo.com>, mitzi scott <mitziscott10@yahoo.com>, curtis slate <curtiscurtis47@aol.com>, Sheila Chew <sacpoiple1@gmail.com>, <shudson305@hotmail.com>, Jean Daniel <Daniel_Jean716@yahoo.com>, marcie collins <marcie_93@yahoo.com>, Chad Ellis <seragi73@yahoo.com>, Eleanor Harris <eleanorharris98@yahoo.com>, Edward Butler <dr_ebutler@yahoo.com>, Jamie Enge <jamiee425@gmail.com>, Dr. Fred Nance Jr. <drfred.nancejr@gmail.com>, valerie minor <vminor2018@gmail.com>, LORI ORTIZ <loriortiz6199@comcast.net>, <pebsluvsgod@yahoo.com>, <earlene416@gmail.com>, <srobin21@csu.edu>, Dr. Karen Witherspoon <doctorwitherspoon@gmail.com>, THOMAS BRADLEY <tbacpa52@yahoo.com>, <trentonfedrick@yahoo.com>, <johnson_l@comcast.net>
The Covid-19 Pandemic,the Shelter in Place Mandate by the State of Illinois, less than 15% of sex offender clients paying their fees as well as EMAGES not receiving a payment from the FY21 State budget which began July, 2020 has created an economic hardship and cash flow problem for EMAGES.
Given the above Effective October 1, 2020 EMAGES is suspending our sex offender groups and returning the Second Chance Act grant back to the Office of Justice Programs. Additionally, Staff in the substance abuse programs work week will be reduced from a five day work week to a four day week. If funding is not received before October 1, 2020, I will not be able to meet EMAGES October 1, 2020 payroll for the substance abuse program and the sex offender group facilitators.
I have scheduled a ZOOM meeting for Thursday September 24, 2020 at 7:00 p.m. to discuss the above changes and address any concerns you may have. Please let me know if you are unable to attend the meeting.
You will receive a ZOOM login number tomorrow. Dr. Wash
-- /s/Dr. Fred Nance Jr., Ph.D. Human Services/Social Policy Analysis Program and Policy Development 708-921-1395
SCA Abstract.pdf 8.9kB SCA Proposal.pdf 93.5kB 8.31.20 90 Day Transitional Housing Proposal.pdf 128.7kB
4.17.20 1st Whistleblower Complaint.pdf 1MB
8.29.20 2nd Whistleblower Complaint.pdf 98.6kB
9.13.20 3rd Whistleblower Complaint.pdf 121.6kB 1.24.20 Congressman Davis Letter of Support for Transitional Housing.pdf 76.5kB
2/2 12/18/2020 Case: 1:20-cv-06316 Document Yahoo Mail #: 49-9 Filed: - Grant #2018-CY-BX-0025 03/05/21 Whistleblower Page 3 of 8 Act Misappropriation PageID of Funds #:954 and Fraud
EXHIBIT 5 Grant #2018-CY-BX-0025 Whistleblower Act Misappropriation of Funds and Fraud
From: Dr. Fred L Nance Jr., Ph.D. (frednance@clickservices.org)
To: jin.liu@usdoj.gov; tracey.willis@usdoj.gov
Cc: frednance@clickservices.org; tumia.romero@mail.house.gov; josie.ware@mail.house.gov; andre.bethea@usdoj.gov; michael.dever@usdoj.gov; tumia@dannykdavis.com
Date: Sunday, November 22, 2020, 04:10 PM CST
This is a continuation message from November 15, 2020, as if fully stated herein.
On September 21, 2020 Dr. Wash sent an email to all EMAGES, Inc. staff, all Grant #2018-CY- BX-0025 consultants, and to Dr. Nance stating, in part, "...The Covid-19 Pandemic, the Shelter in Place Mandate by the State of Illinois, less than 15% of sex offender clients paying their fees as well as EMAGES not receiving a payment from the FY21 State budget which began July, 2020 has created an economic hardship and cash flow problem for EMAGES. Given the above Effective October 1, 2020 EMAGES is suspending our sex offender groups and returning the Second Chance Act grant back to the Office of Justice Programs...."
Grant #2018-CY-BX-0025 has nothing to do with EMAGES receiving funding from the State of Illinois or EMAGES sex offender attendance. Grant #2018-CY-BX-0025 is fully funded. Since Covid-19 became an issue in March of 2020, Grant #2018-CY-BX-0025 was teleconferencing with the sex offender at EMAGES meeting our goals of 75 participants enrolled in the program. The percentages quoted of 15% by Dr. Wash had nothing to do with Grant #2018-CY-BX-0025. Dr. Wash gave Grant #2018-CY-BX-0025 back to the Office of Justice Programs in retaliation against Dr. Nance for filing 3 Whistleblower complaints against her with the Office of Justice Programs and others; terminating Dr. Nance's employment thus violating the Whistleblower Act.
In October of 2020, EMAGES, Inc. and Dr. Wash continued holding teleconferencing groups with sex offenders. EMAGES, Inc. and Dr. Wash held sex offender groups via teleconferencing on November 16th, 17th, 18th, and 21st, 2020. Check the EMAGES, Inc. telephone logs, and Dr. Nance's cell phone logs. Dr. Nance called in to 978-990-5000 with access codes 480001# and 581625# on each of the days mentioned above except for the Tuesday group (11/17/20). The Tuesday group uses another means of teleconferencing as they did when Grant #2018-CY-BX- 0025 was still active. Each group has been in session since Dr. Wash issued the false statement to DOJ, BJA, OJP, SCA Consultants, and Dr. Nance, and the email of September 21, 2020.
This is the same group of participants who were enrolled in Grant #2018-CY-BX-0025. Dr. Wash informed DOJ, BJA, OJP, Tracey Willis, Andre Bethea, Michael Dever, and the consultants of Grant #2018-CY-BX-0025 she was suspending all her sex offender groups due to the Coronavirus on October 1, 2020. Dr. Wash used this claim to give Grant #2018-CY-BX-0025 back to DOJ, BJA, OJP.
DOJ, BJA, OJP accepted this false claim prompting Dr. Nance to lose his employment; thus creating the claim by Dr. Nance of retaliation and termination, which violates the Whistleblower Act. Dr. Nance has filed a Federal lawsuit #20-CV-06316.
/s/Dr. Fred Nance Jr. Ph.D. Health & Human Services
1/2 12/18/2020 Case: 1:20-cv-06316 Document Yahoo Mail #: 49-9 Filed: - Grant #2018-CY-BX-0025 03/05/21 Whistleblower Page 4 of 8 Act Misappropriation PageID of Funds #:955 and Fraud
Social Policy Analysis and Planning EXHIBIT 5 www.clickservices.org 708-921-1395
NOTICE: If you have received this e-mail message from Dr. Fred Nance Jr., the e-mail message, and any and all attachments transmitted with it are intended solely for the use of the addressee and may contain legally privileged and confidential information. If the reader of this message is not the intended recipient, or an employee or agent responsible for delivering this email message to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or other use of the message or its attachments is strictly prohibited. If you have received this email message and its attachments if any, in error, please notify the sender immediately by replying to the message and please delete it from your computer. Thank you.
2/2 12/18/2020 Case: 1:20-cv-06316 Document #: Yahoo 49-9Mail Filed: - Grant03/05/21 Page 5 of 8 PageID #:956 #2018-CY-BX-0025
Grant #2018-CY-BX-0025 EXHIBIT 5 From: Dr. Fred L Nance Jr., Ph.D. (frednance@clickservices.org)
To: jin.liu@usdoj.gov; tracey.willis@usdoj.gov
Cc: frednance@clickservices.org; andre.bethea@usdoj.gov; michael.dever@usdoj.gov; tumia.romero@mail.house.gov; josie.ware@mail.house.gov; tumia@dannykdavis.com
Date: Saturday, November 28, 2020, 11:19 AM CST
Good afternoon. EMAGES, Inc. is still holding teleconferencing groups, which I am listening to now, Saturday November 28, 2020, via their weekly conference call at 978-990-5000, conference line 581625#. I am listening to the regular participants who were attending the teleconferencing for this grant. Ms. Gerri Taylor is facilitating this EMAGES group. Ms. Gerri was not a consultant on this grant. Ms. Gerri works the Saturday group with Daniel Jean who was the clinical supervisor for this grant. Ms. Gerri informed the clients/participants on this call today that EMAGES, Inc. is closed on Thursday and Friday. Our participants for this grant attended 2 groups on Monday, and one group on each of these days - Tuesday, Wednesday, and Saturday. As our implementation plan reports, we provided 5 groups at EMAGES, Inc. Notwithstanding, we had made arrangements with the Cook County jail to provide teleconferencing services before Dr. Wash bogusly gave this grant back in retaliation for the filing of my Whistleblower complaints.
Ms. Gerri is Dr. Hattie Wash's sister. This is her regular Saturday group at EMAGES, Inc. A client is talking about the upcoming group Monday reporting he will be absent and needs to make up the group. Ms. Gerri is stating Dr. Johnson is conducting one of the Monday groups. Dr. Johnson was not a consultant on this grant.
I cannot mention the clients/participants names in this open email but you can review and compare the attendance sheets for this group, and the list of participants attending groups for this grant, which you have the list or can get access from Dr. Wash.
Listen to the Monday group, November 30, 2020, starting at 6:30 pm using phone number 978- 990-5000, conference lines 480001# and 581625#. The names you hear of participants attending the groups will match the names of participants who attended groups for this grant.
As you know and have been informed via my email communication, Dr. Wash informed the consultants of this grant, Mr. Dever, Mr. Bethea, and Ms. Willis she was giving Grant #2018-CY- BX-0025 back to DOJ, BJA, OJP due to the coronavirus, which was a lie. Teleconferencing was our avenue of providing services during the coronavirus. Our DOJ Technical Advisor, Mr. Willis, knows we were providing teleconferencing to the participants of this grant. Mr. Willis asked us if we wanted to adjust our service delivery for this grant due to the coronavirus. I sent Mr. Dever, Mr. Bethea, and Ms. Willis Dr. Wash's email stating we did not have to change or adjust anything because we were providing teleconferencing to our participants.
Check the telephone logs and the signed attendance sheets of the 5 groups at EMAGES, Inc. Dr. Wash gave the grant back retaliating against me for filing Whistleblower complaints and DOJ accepted Dr. Wash's request terminating my employment, which violates the Whistleblower Act of 2013. I am leaving this Saturday group teleconferencing call now after being on the call for 42 minutes.
1/2 12/18/2020 Case: 1:20-cv-06316 Document #: Yahoo 49-9Mail Filed: - Grant03/05/21 Page 6 of 8 PageID #:957 #2018-CY-BX-0025
/s/Dr. Fred Nance Jr. Ph.D. Health & Human Services Social Policy Analysis and Planning EXHIBIT 5 www.clickservices.org 708-921-1395
NOTICE: If you have received this e-mail message from Dr. Fred Nance Jr., the e-mail message, and any and all attachments transmitted with it are intended solely for the use of the addressee and may contain legally privileged and confidential information. If the reader of this message is not the intended recipient, or an employee or agent responsible for delivering this email message to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or other use of the message or its attachments is strictly prohibited. If you have received this email message and its attachments if any, in error, please notify the sender immediately by replying to the message and please delete it from your computer. Thank you.
2/2 12/18/2020 Case: 1:20-cv-06316 Document #: 49-9 Yahoo MailFiled: 03/05/21 - Re: Grant Page 7 of 8 PageID #:958 #2018-CY-BX-0025
EXHIBIT 5 Re: Grant #2018-CY-BX-0025
From: Dr. Fred L Nance Jr., Ph.D. (frednance@clickservices.org)
To: tracey.willis@usdoj.gov; jin.liu@usdoj.gov; michael.dever@usdoj.gov
Cc: andre.bethea@usdoj.gov; washhattie@gmail.com; dthompson@taftlaw.com; jpierce@taftlaw.com Date: Tuesday, December 1, 2020, 10:24 AM CST
Mr. Dever:
Thank you Sir. Someone should have contacted me. I canceled other meetings to attend this one. Have a blessed and wonderful day.
/s/Dr. Fred Nance Jr. Ph.D. Health & Human Services Social Policy Analysis and Planning www.clickservices.org 708-921-1395
NOTICE: If you have received this e-mail message from Dr. Fred Nance Jr., the e-mail message, and any and all attachments transmitted with it are intended solely for the use of the addressee and may contain legally privileged and confidential information. If the reader of this message is not the intended recipient, or an employee or agent responsible for delivering this email message to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or other use of the message or its attachments is strictly prohibited. If you have received this email message and its attachments if any, in error, please notify the sender immediately by replying to the message and please delete it from your computer. Thank you.
On Tuesday, December 1, 2020, 10:18:03 AM CST, Dever, Michael (OJP) <michael.dever@usdoj.gov> wrote:
Good Morning Dr. Nance,
Tracey contacted Dr. Wash several weeks ago to say that she will need to re-schedule the in-depth monitoring review of the award until early January. I don’t believe a specific date has been set yet.
Michael
From: Dr. Fred L Nance Jr., Ph.D. <frednance@clickservices.org> Sent: Tuesday, December 1, 2020 11:13 AM To: Willis, Tracey (OJP) <Tracey.Willis@ojp.usdoj.gov>; Liu, Jin (OJP) <Jin.Liu@ojp.usdoj.gov> Cc: Fred Nance Jr. <frednance@clickservices.org>; Bethea, Andre (OJP) <Andre.Bethea@ojp.usdoj.gov>; Dever, Michael (OJP) <Michael.Dever@ojp.usdoj.gov> Subject: Grant #2018-CY-BX-0025
Ms. Willis:
When does the meeting start? I have joined pursuant to your email at 10:00 am (CST). Please respond. Thank you.
1/2 12/18/2020 Case: 1:20-cv-06316 Document #: 49-9 Yahoo MailFiled: 03/05/21 - Re: Grant Page 8 of 8 PageID #:959 #2018-CY-BX-0025
/s/Dr. Fred Nance Jr. Ph.D. Health & Human Services Social Policy Analysis and Planning EXHIBIT 5 www.clickservices.org 708-921-1395
NOTICE: If you have received this e-mail message from Dr. Fred Nance Jr., the e-mail message, and any and all attachments transmitted with it are intended solely for the use of the addressee and may contain legally privileged and confidential information. If the reader of this message is not the intended recipient, or an employee or agent responsible for delivering this email message to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or other use of the message or its attachments is strictly prohibited. If you have received this email message and its attachments if any, in error, please notify the sender immediately by replying to the message and please delete it from your computer. Thank you.
2/2 | 2021-03-05 | [
"12/18/2020 Case: 1:20-cv-06316 Document Yahoo Mail - Fwd: Suspension #: 49-9 of the Filed:groups sex offender 03/05/21 Page of1 the and termination of Second 8 PageID Change#:952 Act grant EXHIBIT 5 Fwd: Suspension of the sex offender groups and termination of the Second Change Act grant From: Dr. Fred Nance Jr. (drfred.nancejr@gmail.com) To: michael.dever@usdoj.gov; andre.bethea@usdoj.gov; tracey.willis@usdoj.gov; jwilliams@air.org; ronald.howard@cookcountyil.gov; jane.gubser@cookcountyil.gov; patricia.grosskopf@illinois.gov; sarah.brown- foiles@illinois.gov; dion.dixon@illinois.gov; josie.ware@mail.house.gov; tumia.romero@mail.house.gov Cc: drfred.nancejr@gmail.com; frednance@clickservices.org Date: Monday, September 21, 2020, 08:54 PM CDT On September 21, 2020, I received the email above and below from Dr. Hattie Wash dissolving the Second Chance Act grant #2018-CY-BX-0025. As Dr. Wash and I talked about her giving up the program, after I discovered her misappropriation of funds or fraud and talked to her about it, Dr. Wash told me since I was going to report this to DOJ, BJA, OJP I could take the program. I sent the email, with this statement from Dr. Wash, to DOJ, BJA, OJP's Mr. Dever, Mr. Bethea, and Ms. Willis.",
"Therefore, I am requesting C.L.I.C.K. Services, NFP become responsible for the grant to its end on September 30, 2021. There should be no barriers or reasons why I cannot take over the grant. Dr. Wash and I wrote the proposal. I am the Program Director. I created all of our collaborative partners for this grant. Dr. Wash and I created and developed the curricula for this program. I know every part of this program. I partnered with Dr. Wash on this grant. Dr. Wash and I decided she would be the fiduciary and I would handle the day-to-day operation as the Program Director. It was my understanding we were equal partners. Dr. Wash just handled the flow of money for the grant. Read our SCA abstract and proposal for this grant, which is attached. As reported in our abstract and proposal (pp. 17-18) (attached), EMAGES, Inc & C.L.I.C.K. Services, NFP collaborated and partnered for this grant.",
"I am more than capable of finishing out this grant. This move by Dr. Wash is retaliatory in nature toward me for filing the 3 Whistleblower complaints with the Department of Justice, Bureau of Justice Assistance, Office of Justice Programs, and the U.S. Office of Inspector General for misappropriation of funds or fraud. As I have stated in my Whistleblower complaints, my employment is protected by the Whistleblower Act. My Whistleblower complaints are attached. Dr. Wash's dilemma with her funding from the State of Illinois is not the first time this has happened to EMAGES.",
"EMAGES has closed programs before because of Illinois State funding. There is no reason this grant cannot continue to move forward under the direction of C.L.I.C.K. Services, NFP (www.clickservices.org). Grant #2018-CY-BX-0025 is funded. I can still work with the Illinois Department of Corrections (post-release prison) and the Cook County Department of Corrections (pre-release jail).I am in the process of creating and developing a 90-day transitional house for sex offenders.",
"I can run the grant from this project. The housing program is being created under C.L.I.C.K. Housing, Inc. My 'brief' housing project proposal is attached. I created this proposal for Illinois and Chicago legislators seeking support for my housing project. Congressman Davis has given me a Letter of Support for my housing project, which is attached. I can provide more details in line with a regular SCA proposal for how the program will work if necessary. The reasoning Dr. Wash uses for giving the grant back is ludicrous. Grant #2018-CY-BX-0025 is funded and is not affected by the lack of Illinois State funding Dr. Wash alludes too. The grant funding covers participant cost because there is no participant cost.",
"The grant covers contractual fees for all mentors and staff of the grant, which is listed in the grant budget. Our budget takes care of office space and other ancillary functions and needs. Dr. Wash is lumping the grant program in with her State dilemma to retaliate against me for filing my Whistleblower complaints. The only reason Dr. Wash is giving the program back to OJP is to hurt me for filing the 3 Whistleblower complaints. WHEREFORE, I am requesting a teleconference audience with Mr. Michael Dever, BJA Division Chief; Mr. Andre Bethea, BJA Senior Policy Advisor; and Ms. Tracey Willis, OJP Grant Manager; or in the alternative, a transfer of responsibility for Grant #2018-CY-BX-0025.",
"Please respond. Thank you. Respectfully submitted ---------- Forwarded message --------- From: Hattie Wash <washhattie@gmail.com> 1/2 12/18/2020 Case: 1:20-cv-06316 Document Yahoo Mail - Fwd: Suspension #: 49-9 of the Filed:groups sex offender 03/05/21 Page of2 the and termination of Second 8 PageID Change#:953 Act grant Date: Mon, Sep 21, 2020 at 7:28 PM EXHIBIT 5 Subject: Suspension of the sex offender groups and termination of the Second Change Act grant To: Gerri Taylor <tgerri99@yahoo.com>, mitzi scott <mitziscott10@yahoo.com>, curtis slate <curtiscurtis47@aol.com>, Sheila Chew <sacpoiple1@gmail.com>, <shudson305@hotmail.com>, Jean Daniel <Daniel_Jean716@yahoo.com>, marcie collins <marcie_93@yahoo.com>, Chad Ellis <seragi73@yahoo.com>, Eleanor Harris <eleanorharris98@yahoo.com>, Edward Butler <dr_ebutler@yahoo.com>, Jamie Enge <jamiee425@gmail.com>, Dr. Fred Nance Jr. <drfred.nancejr@gmail.com>, valerie minor <vminor2018@gmail.com>, LORI ORTIZ <loriortiz6199@comcast.net>, <pebsluvsgod@yahoo.com>, <earlene416@gmail.com>, <srobin21@csu.edu>, Dr. Karen Witherspoon <doctorwitherspoon@gmail.com>, THOMAS BRADLEY <tbacpa52@yahoo.com>, <trentonfedrick@yahoo.com>, <johnson_l@comcast.net> The Covid-19 Pandemic,the Shelter in Place Mandate by the State of Illinois, less than 15% of sex offender clients paying their fees as well as EMAGES not receiving a payment from the FY21 State budget which began July, 2020 has created an economic hardship and cash flow problem for EMAGES. Given the above Effective October 1, 2020 EMAGES is suspending our sex offender groups and returning the Second Chance Act grant back to the Office of Justice Programs. Additionally, Staff in the substance abuse programs work week will be reduced from a five day work week to a four day week. If funding is not received before October 1, 2020, I will not be able to meet EMAGES October 1, 2020 payroll for the substance abuse program and the sex offender group facilitators.",
"I have scheduled a ZOOM meeting for Thursday September 24, 2020 at 7:00 p.m. to discuss the above changes and address any concerns you may have. Please let me know if you are unable to attend the meeting. You will receive a ZOOM login number tomorrow. Dr. Wash -- /s/Dr. Fred Nance Jr., Ph.D. Human Services/Social Policy Analysis Program and Policy Development 708-921-1395 SCA Abstract.pdf 8.9kB SCA Proposal.pdf 93.5kB 8.31.20 90 Day Transitional Housing Proposal.pdf 128.7kB 4.17.20 1st Whistleblower Complaint.pdf 1MB 8.29.20 2nd Whistleblower Complaint.pdf 98.6kB 9.13.20 3rd Whistleblower Complaint.pdf 121.6kB 1.24.20 Congressman Davis Letter of Support for Transitional Housing.pdf 76.5kB 2/2 12/18/2020 Case: 1:20-cv-06316 Document Yahoo Mail #: 49-9 Filed: - Grant #2018-CY-BX-0025 03/05/21 Whistleblower Page 3 of 8 Act Misappropriation PageID of Funds #:954 and Fraud EXHIBIT 5 Grant #2018-CY-BX-0025 Whistleblower Act Misappropriation of Funds and Fraud From: Dr. Fred L Nance Jr., Ph.D. (frednance@clickservices.org) To: jin.liu@usdoj.gov; tracey.willis@usdoj.gov Cc: frednance@clickservices.org; tumia.romero@mail.house.gov; josie.ware@mail.house.gov; andre.bethea@usdoj.gov; michael.dever@usdoj.gov; tumia@dannykdavis.com Date: Sunday, November 22, 2020, 04:10 PM CST This is a continuation message from November 15, 2020, as if fully stated herein.",
"On September 21, 2020 Dr. Wash sent an email to all EMAGES, Inc. staff, all Grant #2018-CY- BX-0025 consultants, and to Dr. Nance stating, in part, \"...The Covid-19 Pandemic, the Shelter in Place Mandate by the State of Illinois, less than 15% of sex offender clients paying their fees as well as EMAGES not receiving a payment from the FY21 State budget which began July, 2020 has created an economic hardship and cash flow problem for EMAGES. Given the above Effective October 1, 2020 EMAGES is suspending our sex offender groups and returning the Second Chance Act grant back to the Office of Justice Programs....\" Grant #2018-CY-BX-0025 has nothing to do with EMAGES receiving funding from the State of Illinois or EMAGES sex offender attendance. Grant #2018-CY-BX-0025 is fully funded. Since Covid-19 became an issue in March of 2020, Grant #2018-CY-BX-0025 was teleconferencing with the sex offender at EMAGES meeting our goals of 75 participants enrolled in the program. The percentages quoted of 15% by Dr. Wash had nothing to do with Grant #2018-CY-BX-0025. Dr. Wash gave Grant #2018-CY-BX-0025 back to the Office of Justice Programs in retaliation against Dr. Nance for filing 3 Whistleblower complaints against her with the Office of Justice Programs and others; terminating Dr. Nance's employment thus violating the Whistleblower Act. In October of 2020, EMAGES, Inc. and Dr. Wash continued holding teleconferencing groups with sex offenders. EMAGES, Inc. and Dr. Wash held sex offender groups via teleconferencing on November 16th, 17th, 18th, and 21st, 2020.",
"Check the EMAGES, Inc. telephone logs, and Dr. Nance's cell phone logs. Dr. Nance called in to 978-990-5000 with access codes 480001# and 581625# on each of the days mentioned above except for the Tuesday group (11/17/20). The Tuesday group uses another means of teleconferencing as they did when Grant #2018-CY-BX- 0025 was still active. Each group has been in session since Dr. Wash issued the false statement to DOJ, BJA, OJP, SCA Consultants, and Dr. Nance, and the email of September 21, 2020. This is the same group of participants who were enrolled in Grant #2018-CY-BX-0025. Dr. Wash informed DOJ, BJA, OJP, Tracey Willis, Andre Bethea, Michael Dever, and the consultants of Grant #2018-CY-BX-0025 she was suspending all her sex offender groups due to the Coronavirus on October 1, 2020. Dr. Wash used this claim to give Grant #2018-CY-BX-0025 back to DOJ, BJA, OJP. DOJ, BJA, OJP accepted this false claim prompting Dr. Nance to lose his employment; thus creating the claim by Dr. Nance of retaliation and termination, which violates the Whistleblower Act. Dr. Nance has filed a Federal lawsuit #20-CV-06316.",
"/s/Dr. Fred Nance Jr. Ph.D. Health & Human Services 1/2 12/18/2020 Case: 1:20-cv-06316 Document Yahoo Mail #: 49-9 Filed: - Grant #2018-CY-BX-0025 03/05/21 Whistleblower Page 4 of 8 Act Misappropriation PageID of Funds #:955 and Fraud Social Policy Analysis and Planning EXHIBIT 5 www.clickservices.org 708-921-1395 NOTICE: If you have received this e-mail message from Dr. Fred Nance Jr., the e-mail message, and any and all attachments transmitted with it are intended solely for the use of the addressee and may contain legally privileged and confidential information. If the reader of this message is not the intended recipient, or an employee or agent responsible for delivering this email message to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or other use of the message or its attachments is strictly prohibited. If you have received this email message and its attachments if any, in error, please notify the sender immediately by replying to the message and please delete it from your computer. Thank you. 2/2 12/18/2020 Case: 1:20-cv-06316 Document #: Yahoo 49-9Mail Filed: - Grant03/05/21 Page 5 of 8 PageID #:956 #2018-CY-BX-0025 Grant #2018-CY-BX-0025 EXHIBIT 5 From: Dr. Fred L Nance Jr., Ph.D. (frednance@clickservices.org) To: jin.liu@usdoj.gov; tracey.willis@usdoj.gov Cc: frednance@clickservices.org; andre.bethea@usdoj.gov; michael.dever@usdoj.gov; tumia.romero@mail.house.gov; josie.ware@mail.house.gov; tumia@dannykdavis.com Date: Saturday, November 28, 2020, 11:19 AM CST Good afternoon.",
"EMAGES, Inc. is still holding teleconferencing groups, which I am listening to now, Saturday November 28, 2020, via their weekly conference call at 978-990-5000, conference line 581625#. I am listening to the regular participants who were attending the teleconferencing for this grant. Ms. Gerri Taylor is facilitating this EMAGES group. Ms. Gerri was not a consultant on this grant. Ms. Gerri works the Saturday group with Daniel Jean who was the clinical supervisor for this grant. Ms. Gerri informed the clients/participants on this call today that EMAGES, Inc. is closed on Thursday and Friday. Our participants for this grant attended 2 groups on Monday, and one group on each of these days - Tuesday, Wednesday, and Saturday.",
"As our implementation plan reports, we provided 5 groups at EMAGES, Inc. Notwithstanding, we had made arrangements with the Cook County jail to provide teleconferencing services before Dr. Wash bogusly gave this grant back in retaliation for the filing of my Whistleblower complaints. Ms. Gerri is Dr. Hattie Wash's sister. This is her regular Saturday group at EMAGES, Inc. A client is talking about the upcoming group Monday reporting he will be absent and needs to make up the group. Ms. Gerri is stating Dr. Johnson is conducting one of the Monday groups. Dr. Johnson was not a consultant on this grant. I cannot mention the clients/participants names in this open email but you can review and compare the attendance sheets for this group, and the list of participants attending groups for this grant, which you have the list or can get access from Dr. Wash. Listen to the Monday group, November 30, 2020, starting at 6:30 pm using phone number 978- 990-5000, conference lines 480001# and 581625#.",
"The names you hear of participants attending the groups will match the names of participants who attended groups for this grant. As you know and have been informed via my email communication, Dr. Wash informed the consultants of this grant, Mr. Dever, Mr. Bethea, and Ms. Willis she was giving Grant #2018-CY- BX-0025 back to DOJ, BJA, OJP due to the coronavirus, which was a lie. Teleconferencing was our avenue of providing services during the coronavirus. Our DOJ Technical Advisor, Mr. Willis, knows we were providing teleconferencing to the participants of this grant. Mr. Willis asked us if we wanted to adjust our service delivery for this grant due to the coronavirus.",
"I sent Mr. Dever, Mr. Bethea, and Ms. Willis Dr. Wash's email stating we did not have to change or adjust anything because we were providing teleconferencing to our participants. Check the telephone logs and the signed attendance sheets of the 5 groups at EMAGES, Inc. Dr. Wash gave the grant back retaliating against me for filing Whistleblower complaints and DOJ accepted Dr. Wash's request terminating my employment, which violates the Whistleblower Act of 2013. I am leaving this Saturday group teleconferencing call now after being on the call for 42 minutes. 1/2 12/18/2020 Case: 1:20-cv-06316 Document #: Yahoo 49-9Mail Filed: - Grant03/05/21 Page 6 of 8 PageID #:957 #2018-CY-BX-0025 /s/Dr. Fred Nance Jr. Ph.D. Health & Human Services Social Policy Analysis and Planning EXHIBIT 5 www.clickservices.org 708-921-1395 NOTICE: If you have received this e-mail message from Dr. Fred Nance Jr., the e-mail message, and any and all attachments transmitted with it are intended solely for the use of the addressee and may contain legally privileged and confidential information.",
"If the reader of this message is not the intended recipient, or an employee or agent responsible for delivering this email message to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or other use of the message or its attachments is strictly prohibited. If you have received this email message and its attachments if any, in error, please notify the sender immediately by replying to the message and please delete it from your computer. Thank you. 2/2 12/18/2020 Case: 1:20-cv-06316 Document #: 49-9 Yahoo MailFiled: 03/05/21 - Re: Grant Page 7 of 8 PageID #:958 #2018-CY-BX-0025 EXHIBIT 5 Re: Grant #2018-CY-BX-0025 From: Dr. Fred L Nance Jr., Ph.D. (frednance@clickservices.org) To: tracey.willis@usdoj.gov; jin.liu@usdoj.gov; michael.dever@usdoj.gov Cc: andre.bethea@usdoj.gov; washhattie@gmail.com; dthompson@taftlaw.com; jpierce@taftlaw.com Date: Tuesday, December 1, 2020, 10:24 AM CST Mr. Dever: Thank you Sir. Someone should have contacted me. I canceled other meetings to attend this one.",
"Have a blessed and wonderful day. /s/Dr. Fred Nance Jr. Ph.D. Health & Human Services Social Policy Analysis and Planning www.clickservices.org 708-921-1395 NOTICE: If you have received this e-mail message from Dr. Fred Nance Jr., the e-mail message, and any and all attachments transmitted with it are intended solely for the use of the addressee and may contain legally privileged and confidential information. If the reader of this message is not the intended recipient, or an employee or agent responsible for delivering this email message to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or other use of the message or its attachments is strictly prohibited. If you have received this email message and its attachments if any, in error, please notify the sender immediately by replying to the message and please delete it from your computer. Thank you.",
"On Tuesday, December 1, 2020, 10:18:03 AM CST, Dever, Michael (OJP) <michael.dever@usdoj.gov> wrote: Good Morning Dr. Nance, Tracey contacted Dr. Wash several weeks ago to say that she will need to re-schedule the in-depth monitoring review of the award until early January. I don’t believe a specific date has been set yet. Michael From: Dr. Fred L Nance Jr., Ph.D. <frednance@clickservices.org> Sent: Tuesday, December 1, 2020 11:13 AM To: Willis, Tracey (OJP) <Tracey.Willis@ojp.usdoj.gov>; Liu, Jin (OJP) <Jin.Liu@ojp.usdoj.gov> Cc: Fred Nance Jr. <frednance@clickservices.org>; Bethea, Andre (OJP) <Andre.Bethea@ojp.usdoj.gov>; Dever, Michael (OJP) <Michael.Dever@ojp.usdoj.gov> Subject: Grant #2018-CY-BX-0025 Ms. Willis: When does the meeting start? I have joined pursuant to your email at 10:00 am (CST). Please respond. Thank you. 1/2 12/18/2020 Case: 1:20-cv-06316 Document #: 49-9 Yahoo MailFiled: 03/05/21 - Re: Grant Page 8 of 8 PageID #:959 #2018-CY-BX-0025 /s/Dr. Fred Nance Jr. Ph.D. Health & Human Services Social Policy Analysis and Planning EXHIBIT 5 www.clickservices.org 708-921-1395 NOTICE: If you have received this e-mail message from Dr. Fred Nance Jr., the e-mail message, and any and all attachments transmitted with it are intended solely for the use of the addressee and may contain legally privileged and confidential information. If the reader of this message is not the intended recipient, or an employee or agent responsible for delivering this email message to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or other use of the message or its attachments is strictly prohibited.",
"If you have received this email message and its attachments if any, in error, please notify the sender immediately by replying to the message and please delete it from your computer. Thank you. 2/2"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/163431518/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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| https://www.govinfo.gov/content/pkg/CHRG-95shrg20111O/html/CHRG-95shrg20111O.htm | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 1 of 34
SURROGATE’S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
In the Matter of DALIA GENGER, trustee of the ORLY GENGER 1993 TRUST,
Petitioner,
- against - FILENO. 2008-0017/E
ORLY GENGER, ARIE GENGER, GLENCLOVA INVESTMENT COMPANY, TR INVESTORS, LLC, NEW Hon. Nora S. Anderson TR EQUITY I, LLC, NEW TR EQUITY II, LLC, TRANS-
RESOURCES, INC., ARNOLD BROSER, DAVID BROSER, JOHN DOES 1-20, and JANE DOES 1-20,
Respondents.
MEMORANDUM OF LAW IN SUPPORT OF THE TR ENTITIES' MOTION TO DISMISS THE PETITION FOR TURNOVER OF TRUST PROPERTY AND OTHER RELIEF FILED ON JUNE 14, 2016, BY DALIA GENGER AS TRUSTEE OF THE ORLY GENGER 1993 TRUST
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
John Boyle
Four Times Square
New York, New York 10036 (212) 735-3000
(212) 735-2000 (facsimile)
Attorneys for Glenclova Investment Co., TR Investors, LLC, New TR Equity I, LLC, New TR Equity IT, LLC, and Trans-Resources LLC. Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 2 of 34
TABLE OF CONTENTS Page PRELIMINARY STATEMENT ..00.00.0.ccccccecceccsecscssescesceseseeeesseseessusesecscacsecseasseessvssecsenseseeaenaeeteas 1 RELEVANT FACTUAL BACKGROUNQND ...000.0.occcccccecccesceseeseseesesecestscsetutessentasusetacsesssseesseseereas 4 ARGUMENT 00. ccccccccecececescseseeseseceteesssseveceesesavsssssassesscsesesecsesesesesecsesscsesesacsesseasiecassessnaeeeesiees 8 I. STANDARD OF REVIEW 00... cccccccccececceseeeeseeseeeceeeseeeceeeseeessssaecesseeseeeteeseerenees 8 IL THE COURT LACKS JURISDICTION OVER THE TR ENTITIES BECAUSE DALIA FAILED TO PROPERLY SERVE THEM..............000:500005 9 Il. DISMISSAL OF THE PETITION IS REQUIRED AND THE CLAIMS AGAINST THE TR ENTITIES ARE NOW TIME-BARRED BECAUSE PROCESS WAS NOT SERVED WITHIN THE TIME PERIOD REQUIRED BY THE SCPA 000... cccccecetcesneeee ce cnssnecettessessesetseiensstststesees 12 IV. DALIA'S AIDING AND ABETTING BREACH OF FIDUCIARY DUTY CLAIM IS INSUFFICIENTLY PLEADED AND WITHOUT MERIT ............... 13 A. Dalia's Claim Fails Because Orly, as Beneficiary, Does Not Owe Any Fiduciary Duties to the Trust ..0..00.00.c ccc ccccccceccceeseseceseesecssentenees 13 B. Dalia's Claim Fails Because She Fails to Sufficiently Allege Knowing Participation by Any of the TR Entities... 13 V. DALIA'S TORTIOUS INTERFERENCE WITH CONTRACT CLAIM IS INSUFFICIENTLY PLEADED AND WITHOUT MERIT ................... settee 17 A. Dalia Has Not Sufficiently Alleged that Any of the Trump Group Entities Knowingly and Improperly Induced a Breach.........0.0..0.000c000 17 VI. DALIA'S MONEY HAD AND RECEIVED AND TURNOVER CAUSES OF ACTION CANNOT STAND 0.0000 ccccccccccccccecsestsescteetseseetecsesenees 18 VI. RES JUDICATA AND COLLATERAL ESTOPPEL BAR DALIA'S CLAIMS ounces cscecnenseseseseseseeneeeeessesenesseecsesesesesscecesecssstevivsnssitseressasieenss 19 VII. SHOULD THE COURT NOT DISMISS THE PETITION FOR ANY OF THE ABOVE REASONS IT SHOULD BE STAYED OR DISMISSED ............ 22 CONCLUSION 00. ccccccccccccsesesesesesssessssesssusssssusasusususasasesasevecavececececsceuecscsvevscsvsvevsvsvsusesseveeeseres 23 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 3 of 34
TABLE OF AUTHORITIES Page CASES
Alvord & Swift v. Stewart M. Muller Construction Co.,
46 N.Y.2d 276, 413 N.Y.S.2d 309 (1978) oo... eecccecceeceeeseeecneeeeeceeesecsesseseestseesstnenseerens 18 Basile v. Wiggs,
98 A.D.3d 640, 950 N.Y.S.2d 148 (2d Dep't 2012)... cect ctecsececnetetstssnaeerees 9 Inre Bear Stearns Litigation,
23 Misc.3d 447, 870 N.Y.S.2d 709 (Sup. Ct. N.Y. Cty. 2008) oo... ccecccceceenrsenes 17 Behrle v. Behrle,
150 A.D.3d 656, 53 N.Y.S.3d 697 (2d Dep't 2017)... ccc ccccsecessseeeeceseeeacseeseees 13 Berardi v. Berardi,
108 A.D.3d 406, 969 N.Y.S.2d 444 (1st Dep't 2013)... cece eeeteceeeeeteeees 9,14 Biondi v. Beekman Hill House Apartment Corp.,
257 A.D.2d 76, 692 N.Y.S.2d 304 (1st Dep't 1999), affd, 94 N.Y.2d 659 (2000) ............. 9 Brasseur v. Speranza,
21 A.D.3d 297, 800 N.Y.S.2d 669 (Ist Dep't 2005) ooo... ccceccscscscscscscssnseetseseeeses 16 Bronxville Knolls, Inc. v. Webster Town Center Partnership,
221 A.D.2d 248, 634 N.Y.S.2d 62 (1st Dep't 1995)... cccccceceeeecrcecsentesesessereeners 9 Ciafone v. Queens Center for Rehabilitation & Residential Healthcare,
126 A.D.3d 662, 5 N.Y.S.3d 462 (2d Dep't 2015)... cece cece cesetiestensestneseeey 10 Dewey v. Hillcrest General Hospital,
201 A.D.2d 609, 607 N.Y.S.2d 967 (2d Dep't 1994)... ccc ceceeereeeettie 10, 11 Diamond v. McDonald,
41 Misc. 3d 1235(A), 983 N.Y.S.2d 202, 2013 N.Y. Slip Op. 51988(U) (Sup. Ct.
N.Y. Cty. 2013). ccececceseseseseensesesesesssessecsssssessuesasassessuseesssssstssssvavassestassseseresescatsens 12 Inre Estate of Hunter,
4N.Y.3d 260, 794 N.Y.S.2d 286 (2005) .0...cceecssessssssesesseneseneseessessssseeneetseseseetenes 19, 21 Estate of Jervis v. Teachers Insurance & Annuity Association,
279 A.D.2d 367, 720 N.Y.S.2d 21 (Ist Dep't 2001) oo... cccecee cscs sesseseseseseseeees 13 Fresseha v. TD Waterhouse Investor Services, Inc.,
193 Misc. 2d 253, 747 N.Y.S.2d 676 (Sup. Ct. N.Y. Cty. 2002) 0.0. 18, 19
il Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 4 of 34
Fifty CPW Tenants Corp. v. Epstein,
16 A.D.3d 292, 792 N.Y.S.2d 58 (1st Dep't 2005) oo... cee cseeetetentteeeneteeees 19, 20 Genger v. Genger,
144 A.D.3d 581, 41 N.Y.S.3d 414 (Ist Dep't 2016). eee eeteettteteees 8, 21, 22 Genger v. Genger,
38 Misc. 3d 1213(A), 2013 WL 221485 (Sup. Ct. N.Y. Cty. Jan. 3, 2013) 5 Genger v. Genger,
No. 651089/2010, 2015 N.Y. Slip Op. 30008(U) (Sup. Ct. N.Y. Cty. Jan. 7, 2015).......... 4 Genger v. TR Investors, LLC,
C.A. No. 6906-CS (Del. Ch. Ct). ccceccceeeeseneeeesesecscseesesesensceescseeesseeessenenseneeeees 6 Greenway Medical Supply Corp. v. American Transit Insurance Co.,
58 Misc. 3d 147(A) (N.Y. App. Term. 2018) oo... cccccccccccccccccescescescstestescssssssesiesanees 20 Grika v. McGraw,
55 Misc. 3d 1207(A), 57 N.Y.S.2d, N.Y. Slip Op. 51878(U) (Sup. Ct. N.Y. Cty.
2016) one cececcccecteneeeceeseseseseneevseseaseeveceesceesesenenssssasisassesteesssstsevesstasseassevevesseseecsesesenseseeeees 17
Gropper v. 200 Fifth Owner LLC, 151 A.D.3d 635, 58 N.Y.S.2d 42 (Ist Dep't 2017)... cece tees este tseeeesneeees 19, 21
Insurance Co. of State of Pennsylvania v. HSBC Bank USA, 10 N.Y.3d 32, 852 N.Y.S.2d 812 (2008) ooo... cece ccccescesecescsecssusscssesseseeessntesesasestnees 20
Kaleidakolor, Inc. v. Edward N. Hoffman Advertising Corp., No. 25577/91, 1995 WL 17961040 (Sup. Ct. N.Y. Cty. May 8, 1995)... 11
Kaufman v. Cohen, 307 A.D.2d 113, 760 N.Y.S.2d 157 (1st Dep't 2003) oo... ccccccccccceeeeectseeneesens 14, 16
Landau, P.C. v. LaRossa, Mitchell & Ross, 11 N.Y.3d 8, 862 N.Y.S.2d 316 (2008) oo... ccc cececesecscnsecscvessreveveneveevavessaveenees 19
Lesavoy v. Lane, 304 F. Supp. 2d 520 (S.D.N.Y. 2004), aff'd in relevant part, 170 Fed. App'x. 721 (2d Cir. 2006)... cee cseeneneneseseesenenesessseneaeseaesesesesesesssssssssessssesstasscesitesscecscesecetenes 15, 16
MBI International Holdings Inc. v. Barclays Bank PLC, 151 A.D.3d 108, 57 N-Y.S.3d 119 (1st Dep't 2017)... cccetscesessneesesesseereey 12
McDonald vy. Ames Supply Co., 22 N.Y.2d 111, 291 N-Y.S.2d 328 (1968) ooo ccc cee eetanseseseseetecssessseserscsesseeeeeey 11
ill Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 5 of 34
O'Brien v. City of Syracuse, 54 N.Y.2d 353, 445 N.Y.S.2d 687 (1981) ooo cece ccse cscs cesceeceteeteesteseesesenieeiens 19
Ross v. Lan Chile Airlines, 14 A.D.3d 602, 789 N.Y.S.2d 77 (2d Dep't 2005)... occ cece cee ccscesseceseeetstersessseesees 11
Schuykill Fuel Corp. v. B. & C. Nieberg Realty Corp., 250 N.Y. 304 (1929) ooo eccecececcececeseseeseecseeecseseescsescseieceesesceesesssssusvsesesseseessaeeeeessetenseeeees 20
Singh v. PGA Tour, Inc., 42 Misc. 3d 1225(A), 992 N.Y.S.2d 161, 2014 N.Y. Slip Op. 50191(U) (Sup. Ct.
NY. Cty 2014). cccccceceeeceseseesceesesecsecseeeeesseesesteseceeseesecsesseseceeseessessesecssnseseenenaes 16 Stuyvesant Fuel Service Corp. v. 99-105 3rd Avenue Realty LLC,
192 Misc. 2d 104, 745 N.Y.S.2d 680 (NY. Civ. Ct. 2002)... ccccccccccccesecestsetseees 10 Syncora Guarantee Inc. v. J.P. Morgan Securities LLC,
110 A.D.3d 87, 970 N.Y.S.2d 526 (1st Dep't 2013)... ccc cesseeseteescteneseees 23 Inre Thomas,
28 Misc. 3d 300, 901 N.Y.S.2d 493 (Sur. Ct. Broome Cty. 2010)... 12 Torrenzano Group, LLC v. Burnham,
26 A.D.3d 242 (1st Dep't 2006) oo. cece es eens esesenseseteescseeeseescessssssseecessstinsesses 18 TR Investors, LLC v. Genger,
C.A. No. 3994-VCS, 2010 WL 2901704 (Del. Ch. July 23, 2010)... ccccccceceees 4 White Plains Coat & Apron Co. v. Cintas Corp.,
8 N.¥.3d 422, 835 N.Y.S.2d 530 (2007) o.oo. .ccceccecccecestetecsesteeseseeecsceesessseseetsseteseeavenatens 17 Whitney v. Whitney,
57 N.Y.2d 731, 454 N.Y.S.2d 977 (1982) o.oo ccccccceecseeseeesesescesseseetesssscsesseiesisersnenitees 23 Zanett Lombardier, Ltd. v. Maslow,
29 A.D.3d 495, 815 N.Y.S.2d 547 (1st Dep't 2006) o.oo. cccccseeseensueseeeesseneeseeees 9
STATUTES AND RULES
N.Y. Surr. Ct. Proc. Act 301(8) .o.ccccccccccccccccccceeccscescnsscssesscrscsecrssssseuveesasessasavesesivvassreseeenees 1,12 N.Y. Surr. Ct. Proc. Act 307(5) oocccccccccccccccccscssescscseesvseeecscesescscesecsevavavsessessvsvaceesisetneesessessareaes 10 NEY. CPLR. 213 occ cccccscsssessnsseseessenesevesssssssssvevavsssssuevevesussvavavavsvsceserereevecsuesesnevavavevassresd 9 NEY. CPLR. 2138) ccc ccccccccceneesesesesseesesesesssesavassssssesssesssessssessvsvavssecseererescacacstsvevivananerers 12
N.Y. C.P.L.R. 214
iv Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 6 of 34
N.Y. CPLR. 21404) cccccccccccccsssssssssseeessssessssssssssssseveesssssssevenstssssisvusssssssssenesssssiesnseeeenseseee 12 N.Y. CPLR. 311 voocccccccccssssssessesesssessssssssssvsvessessessssssssevevsssessetsssssssiusmstesssessssenvneseteesen 1,11 N.Y. CPLR. 31-8 coccccccccsssssssssssssssssssssssssssesssessesssssssssisesemeessssssssssssaveseeisessssssssevenesteseen 1, 10 N.Y. CPLR. 320(b) oicesccccsssssseeessssessssssssseceveecsssssssssssvevessensessssessssssevsnisetssssssssesenessssseeesesenseen 1 N.Y. CPLR. 2200 occccscccsssssssssessssessessssssssvecssssssessssssevmmessessessssssaseseemessssasssenseeneesssessesesesn 22 N.Y. CPLR. 3016(0) oecccccccccsssssssssssesssssssssvsssssssssssevvesssssssssenssssssssevesssessssssseassssssessnsesssesseeseete 9 N.Y. CPLR. 3211 (a)(1) occsscccccssssssssssssssssevevvssesssessssssevvssevsesssssssssssesesssssssassnsasesenmmessssesssssseveee 1 N.Y. CPLR. 3211(a)(3) ceccsccscccsssssssessssssssssveveeseesssssssssevesivessssssssssssesesmsssssssssssevanimesssssersisevesven 1 N.Y. CPLR. 321 1(Q)(4) cocccccsssssssssssesssssvsssvessessssssseessessessssmesssssesensesssessasssaessessasnveeneesesesee 1, 23 N.Y. C.PLLR. 3211(a)(5) ocscscsssesessssssesssssssssssssvssevessssssssssssssssssueissssssssasssevseueesesasssasinsseneesesesen 1,9 N.Y. CPLR. 321 1(@)(7) cesccceccccssccsssssssssssesevecesssssssssssssevsvssissssevsssnssvevssveesssseesnsasssssneseesssssseeeee 1,9 N.Y. CPLR. 321 1(€)(8) cocccccccscccccscsssssssssesvsveesesssssssssssssvsressessesssssssssevnssssssessssisessseeeesesesee 1, 9, 10 OTHER AUTHORITIES
Deborah Kearns, Practice Commentaries, McKinney's SCPA 301, Book 58A (McKinney QOVT) ooo eeeeccccccccccsessesssssssesssssessessesvsesssssesesecsevsuseesevsececsavsesssssusessevavsevaceevessiscaveesasavessacsisarens 12 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 7 of 34
Respondents Glenclova Investment Co., TR Investors, LLC, New TR Equity [, LLC, New TR Equity II, LLC, and Trans-Resources LLC’ (collectively the "TR Entities") respectfully submit this memorandum of law in support of their Motion to Dismiss the Petition for Turnover of Trust Property and Other Relief filed on June 14, 2016, by Dalia Genger ("Dalia") as Trustee of the Orly Genger 1993 Trust (the "Petition"), as against the TR Entities, pursuant to CPLR 213, CPLR 214, CPLR 311, CPLR 311-a, CPLR 3016(b), CPLR 3211(a) (1),
(3), (4), (5), (7) and (8), and SCPA 301.7
PRELIMINARY STATEMENT
Insofar as the Petition’ asserts causes of action against the TR Entities it is subject to dismissal pursuant to CPLR 3211 for myriad reasons. First, the Petition was never properly served. See CPLR. 311, 311-a. Second, the applicable three-year statute of limitations to certain claims has not been tolled because Dalia did not serve process on the TR Entities within 120 days after the filing of the Petition. See SCPA 301(a). Third, the Petition fails to state a claim as to the aiding and abetting breach of fiduciary duty and tortious interference with contract claims because, among other reasons, Dalia has not (and cannot) sufficiently allege necessary elements of each of the claims — including without limitation, that the TR Entities actually knew of and
knowingly participated in the alleged breach. Fourth, the Petition fails as to the remaining
There is no existing corporation known as Trans-Resources, Inc. It was converted into Trans-Resources LLC in June 2013, and is a limited liability company created under the laws of Delaware, and has its principal offices in Florida. (See Affidavit of Mark S. Hirsch in Support of Motion to Dismiss at 5, cited herein as "Hirsch Aff.").
Because the TR Entities are objecting to jurisdiction under CPLR 3211(8), their limited appearance by way of this motion is not a waiver of service or a waiver of any challenge to jurisdiction, and is not a formal appearance for all purposes. See CPLR 320(b).
A copy of the Petition is attached as Exhibit A to the Affirmation of John Boyle filed in Support of the TR Entities’ Motion to Dismiss submitted herewith. Copies of other documents relied upon in the Petition and other documents that the Court may consider are similarly attached as exhibits to the Boyle Affirmation. The exhibits to the Boyle Affirmation are cited herein as "Boyle Aff., Ex. _". Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 8 of 34
claims of turnover and money had and received because Dalia has admitted that the TR Entities have not received and are not holding any money from the Orly Genger 1993 Trust. And finally, the claims in the Petition must be dismissed under principles of res judicata because, as admitted in the Petition, Dalia, as trustee of the Orly Genger 1993 Trust, stipulated to a dismissal with prejudice of all claims against the TR Entities concerning ownership of any Trans-Resources shares that also were resolved by the Settlement Agreement, and Dalia could have (and, if she ever intended to, should have) asserted but failed to assert the claims that underlie her Petition in a prior proceeding. Before turning to the allegations (and the insufficiency thereof) in the Petition, the
sage reflections of New York Supreme Court Justice Cooper, who recently presided over a Genger family dispute, are noteworthy. In that proceeding, Justice Cooper detailed what has been called the "Genger family's litigation saga." Citing his own Westlaw search he observed that:
the Genger's lawsuits against each other have resulted in almost 40 reported
decisions from the New York State Supreme Court and the Federal District Court
for the Southern District of New York. Of the state court decisions, at least 10
have been from the Appellate Division, First Department. There has also been
extensive litigation in the Delaware state courts, as well as counties; unpublished
decisions and orders from trial judges in the matrimonial and IAS parts of this
court. Genger v. Genger, No. 302436/2002, Decision and Order at 2 (Sup. Ct. N.Y. County June 3, 2016) (A copy of Justice Cooper decision is attached as Ex. B to the Boyle Aff.). Justice Cooper further noted that the "bitter and seemingly endless battle" pits the mother Dalia and the son Sagi against the father Arie and the daughter Orly, and that the family has “employed a small army of lawyers to fight over the pieces of the family pie and, it seems, to make each other's lives as
miserable as possible." (Boyle Aff., Ex. B at 3 (quoting Genger v. Genger, 76 F. Supp. 3d 488,
491 (S.D.N.Y. 2015), affd, 663 F. App'x 44 (2d Cir. 2016)). 2 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 9 of 34
In this regard, Justice Cooper rightly commented that the Genger cases seem to be more about "a dysfunctional family where each member is intent on inflicting as much pain as possible on his or her ex-spouse, parent, child or sibling," than about the merits of any claim. (Boyle Aff., Ex. B at 3-4). Recognizing that it is the Genger's right to make each other "as miserable as they want," the Genger's use of the New York Court's as their weapon of choice has consequences beyond the Genger family:
Litigation like the type the Genger family members have engaged in over the last decade — litigation that knows no bounds and is brought to inflict punishment on former loved-ones as much as it is to resolve actual claims — demands a disproportionate share of already limited judicial resources. The result is that litigants who lack the resources to command a "small army of lawyers," but often have claims equally or more pressing than the Genger's, find themselves receiving less time and attention from the courts than theft cases deserve.
(Boyle Aff., Ex. B at 4). Justice Cooper provided some advice for future adjudicators who may find themselves tasked with the Genger litigation onslaught:
... the time for the Gengers continuing to occupy center stage in the New York court system must also end. Recently, our new Chief Judge, Janet DiFiore, unveiled an initiative to curb what she described as "troublesome" inefficiencies in court operations. In an address to the court system's administrative judges, she stated that she wanted to "make certain that we are putting our resources to our highest and best uses" (New York Law Journal, March, 31, 2016 at 1, col 3). It seems obvious that continuing to give the Gengers the exorbitant amount of court time that they demand is not putting our resources to their "highest and best uses." . . . it is this judge's hope that the parties and their children might take a step back and reflect on how destructive this path of constant litigation is, not only to them, but to the courts and the other litigants who truly need our services. If they are unable to do so, it may be incumbent on judges and court administrators to devise a method to curb what is becoming perilously close to an abuse of the judicial system.
(Boyle Aff., Ex. B at 11). To the extent that the Genger family feud continues (as in this proceeding) to improperly and without any merit haul innocent third-parties, such as the TR Entities, into their
litigation blitz, this practice must come to an end. As Chief Justice Strine of the Delaware Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 10 of 34
Supreme Court (then-Vice-Chancellor of the Delaware Chancery Court) found: "the Genger family's internecine feud .. . is not the [TR Entities'] problem... ." 7R Investors LLC v. Genger, C.A. 3994-VCS, 2010 WL 2901704, at *18 (Del. Ch. July 23, 2010). As described below, the claims asserted against the TR Entities in the Petition are without any merit and/or were settled or dismissed by the voluntary actions of Dalia (as trustee of the Trust) and Orly (individually and in her capacity under the Trust) many years ago. As Justice Jaffe has noted, the "economic consequence" arising out of the transfers of the Trans-Resources shares that underlie the claims alleged in this Petition are the result "of the bitter feud among the members of the Genger family, which should not be bome by [the TR Entities]... .". Genger v. Genger, No. 651089/2010, 2015 N.Y. Slip Op. 30008(U), at *12 (Sup. Ct. N.Y. County Jan. 7, 2015). Justice Jaffe further noted that the court should not extend any equity to "needlessly prolong this litigation, especially where the [TR Entities] . . . [are] essentially an outside bystander caught up in the contentious family feud." Jd. at *14. These pointed admonitions should be heeded and, insofar as the Petition attempts to again drag the TR Entities back into the Genger family's
courtroom combat, the Petition should be dismissed.
RELEVANT FACTUAL BACKGROUND This proceeding is purportedly brought on behalf of the Orly Genger 1993 Trust (the "Trust") by Dalia Genger (Orly's mother) as trustee. Dalia filed her Petition on June 14, 2016. She commenced this new proceeding despite that, at least since June 22, 2009, Orly has sought in this Court to remove Dalia as trustee. On June 21, 2017, this Court denied Dalia's motion to dismiss Orly's petition to have her removed, noting that Orly's allegations "raise significant issues about whether Dalia's efforts as trustee have been calculated to benefit herself
and others at the expense of the Orly Trust in violation of her fiduciary duty and whether she Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 11 of 34
poses an ongoing threat to the assets of the Orly Trust." Jn re Orly Genger, No. 2008-0017/B, Decision at 12, dated June 21, 2017 (A copy is attached as Ex. C to the Boyle Aff.).
While that proceeding has been pending, the TR Entities have been subjected to several litigations with the Genger family over who is or was the legal and beneficial owner of certain shares of Trans-Resources, Inc., a fertilizer and specialty chemicals company.
Ultimately, following several trips to and dispositive rulings and orders entered by the Delaware Chancery Court, the Delaware Supreme Court, the New York Supreme Court, the Appellate Division, First Department and the United States District Court for the Southern District of New York, and stipulations, settlements, and voluntary dismissals entered into with and/or by various persons, it has been conclusively determined that the TR Entities are the sole and only lawful and beneficial owners of all Trans-Resources shares. Discussed below are some of the proceedings, rulings, and other resolutions that are relevant to the Petition.
The New York Action
In July 2010, Arie Genger and others, including his daughter Orly, commenced an action against the TR Entities and others. See Genger v. Genger, 38 Misc. 3d 1213(A), 2013 WL 221485, at *3 (Sup. Ct. N.Y. County Jan. 3, 2013). In that action, Orly, acting individually and on behalf of the Trust, asserted a variety of causes of action against the TR Entities, Dalia (her mother and the putative trustee of the Trust), and others. See id at *1. The TR Entities, Dalia and others not relevant here moved to dismiss the complaint. In a Decision and Order dated January 3, 2013, the court granted Dalia's motion to dismiss in all respects, and granted in part and denied in part the TR Entities’ motion to dismiss. See id at *20-*21. On July 1, 2013, the court "so ordered" and entered a Stipulation of Discontinuance with Prejudice that, among other things, dismissed all claims against the TR Entities brought by Orly, both individually and as
beneficiary of the Trust (the "NY Dismissal with Prejudice"). (Boyle Aff., Ex. D). 5 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 12 of 34
Prior to entry of that order, on June 16, 2013, the AG Group, consisting of Arie Genger, Arnold and David Broser, and Orly (individually and as beneficiary of the Trust), and the TR Entities entered into a settlement agreement (the "Settlement Agreement") that settled all claims between and among the TR Entities and the AG Group. (See Boyle Aff., Ex. E; see also Ex. A [Petition] at J] 14-16)). It was in reliance upon the prior determination of the court that Orly, as beneficiary, was authorized to act on behalf of the Trust, that the TR Entities, Orly (both individually and as beneficiary of the Trust), and the other parties entered into the Settlement Agreement and into the NY Dismissal with Prejudice. Indeed, the NY Dismissal with Prejudice was "so ordered" by the court and expressly notes that Orly was acting "individually and as beneficiary of" the Trust. (Boyle Aff., Ex. E at 1). Moreover, Dalia acknowledges that, pursuant to court rulings, Orly had legal standing to represent the Trust. (See Boyle Aff., Ex. A [Petition] at J] 9-11).
The Settlement Agreement between the TR Entities and the AG Group provides that the AG group will receive up to $35 million, less amounts already held in escrow and subject to setoff, (the "Settlement Proceeds"), in return for a full release of claims against the TR Entities, including a general release by Orly, both as an individual and as beneficiary of the Trust, and a declaration that the TR Entities own "all right, title and interest (beneficially, of record, and otherwise)" to any Trans-Resources shares. (See Boyle Aff., Ex. E at J 2-4).
The Delaware Action
On October 4, 2011, Dalia, as trustee of the Trust, filed an action in the Delaware Court of Chancery against the TR Entities and others seeking a determination as to the beneficial ownership of the so-called Orly Trust Shares — i.e., the Trans-Resources shares that the Trust
claimed to beneficially own. See Genger v. TR Investors, LLC, C.A. No. 6906-CS (Del. Ch. Ct.).
On August 30, 2013, after the NY Dismissal with Prejudice was entered, Dalia, as trustee of the 6 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 13 of 34
Trust, agreed to entry of a Stipulation and Proposed Order of Dismissal (the "Delaware Dismissal"), which ordered that the TR Entities were the record and beneficial owners of the Trans-Resources shares. (See Boyle Aff., Ex. F at J 2 ("[The TR Entities] owns, for all purposes, all right, title and interest (beneficially, of record and otherwise) to all authorized and issued shares of Trans-Resources)). The Delaware Dismissal also dismissed with prejudice all of Dalia's claims against the TR Entities. (See Boyle Aff., Ex. F at J 4 ("The claims brought on behalf of the Orly Genger 1993 Trust by the Trustee of the Orly Trust against the [TR Entities] are dismissed with prejudice... ."). Before agreeing to dismiss all of the Trust's claims with prejudice, however, Dalia made clear to the Delaware court that she was aware of the Settlement Agreement, and that the TR Entities were willing to produce it to her (should the court direct them to do so) to pursue claims. (See Boyle Aff., Ex. G). Rather than pursue those claims, however, Dalia decided to stipulate to the Delaware Dismissal (based upon Orly's wishes) and to dismiss her clams with prejudice without even reviewing the Settlement Agreement.
And so, through both actions — the New York Action and the Delaware Action — the Trust had two opportunities to bring any and all claims that it could against the TR Entities. Nevertheless, the Trust — through both its primary beneficiary (Orly in the New York Action) and its trustee (Dalia in the Delaware Action) — dismissed all claims with prejudice rather than litigating.
Dalia's Efforts to Step into Orly's Shoes
Approximately one year after she stipulated to the Delaware Dismissal, and having previously opted to seek dismissal of the New York claims rather than remain involved in any capacity in that action, Dalia, as trustee to the Trust, made an about face and moved to substitute in the New York Action for the purpose of asserting claims on behalf of the Trust
against the TR Entities and others. That motion was held in abeyance pending the outcome, in
7 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 14 of 34
this Court, of Orly's petition to remove Dalia as trustee. (See Boyle Aff., Ex. A at § 26). While Dalia's motion was pending, the parties in the New York Action then sought to have the court enter a second order reflecting complete dismissal with prejudice of claims brought by Orly, which it did on November 25, 2014. (See Boyle Aff., Ex. H). Dalia, as trustee of the Trust, never raised any objection to the entry of that dismissal with prejudice, notwithstanding her pending motion to substitute in that action for Orly.
Despite failing to raise any objection to the court's entry of that order, Dalia appealed the dismissal and specifically argued that she should be permitted to pursue the Trust's claims that the Settlement Proceeds paid under the Settlement Agreement belonged to the Trust. The First Department denied her appeal and instead held that, because Dalia failed to object to the dismissal in the first place, she was foreclosed from raising the issues she tried to raise below —1.e., that the Trust is entitled to the Settlement Proceeds and the very same claims she belatedly asserts in the Petition. Specifically the First Department ruled that:
Defendant Dalia Genger, as Trustee for the Orly Genger 1993 Trust (Orly Trust), failed to articulate any objection to the court's entry of the November 25, 2014 order dismissing plaintiff Orly Trust's breach of fiduciary duty and unjust enrichment claims against certain defendants, and her claim is not properly before this Court . . . In any case, that order did not dismiss any claims; rather, it recognized that all claims had previously been dismissed or discontinued by prior
court orders, dismissed the complaint, and severed other viable third party claims, cross claims, and counterclaims unrelated to the Orly Trust.
Genger v. Genger, 144 A.D.3d 581, 581, 41 N.Y.S.3d 414, 414-15 (1st Dep't 2016).
ARGUMENT
I. STANDARD OF REVIEW When a motion to dismiss is asserted under CPLR 3211, the court is not required
to accept factual allegations that are contradicted by documentary evidence or legal conclusions Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 15 of 34
that are unsupported in the face of undisputed facts.* See Zanett Lombardier, Ltd. v. Maslow, 29 A.D.3d 495, 495, 815 N.Y.S.2d 547, 547 (1st Dep't 2006). For example, dismissal pursuant to CPLR 3211(a)(1) is warranted where the documentary evidence definitively disposes of plaintiff's claim. See Bronxville Knolls, Inc. v. Webster Town Ctr., 221 A.D.2d 248, 248, 634 N.Y.S.2d 62, 63 (1st Dep't 1995). Further, where, as here, the claims allege a breach of fiduciary duty, the circumstances constituting the breach must be pleaded in detail. See CPLR 3016(b); Berardi v. Berardi, 108 A.D.3d 406, 407, 969 N.Y.S.2d 444, 446 (1st Dep't 2013). And finally, CPLR 3211(a)(5) provides for dismissal where the cause of action may not be maintained because of collateral estoppel, res judicata, or statute of limitations. See CPLR 3211(a)(5).
Regardless, the Court need not reach the CPLR 3211 arguments since, as established below, the Court lacks jurisdiction over the TR Entities and the claims raised in the Petition are time-barred. See CPLR 3211(a)(8); CPLR 213, 214.
I. THE COURT LACKS JURISDICTION OVER THE TR ENTITIES BECAUSE DALIA FAILED TO PROPERLY SERVE THEM
Dismissal of the Petition is required because Dalia has not served the necessary citations on any of the TR Entities. Although Dalia attempted service on January 5, 2018 — some 570 days after she filed the Petition — Dalia's belated effort was indisputably ineffective and lacked diligence. On that date, Dalia had the citations delivered to the offices of Creative World
Management, Inc. ("CWM") at 400 Park Avenue, New York, NY. (Hirsch Aff. ] 6). Delivery
4 In reaching its determination on a motion to dismiss, a court may consider facts that are indisputable and a court
may also "consider evidentiary material submitted by a [movant] in support of a motion to dismiss a complaint pursuant to CPLR 3211(a)(7)." Basile v. Wiggs, 98 A.D.3d 640, 641, 950 N. Y.S.2d 148, 149 (2d Dep't 2012). Where a movant indisputably demonstrates through evidentiary material that an allegation was not a fact at all, a motion to dismiss may be properly granted. Jd. And where allegations consists of bare legal conclusions and inherently incredible factual claims or claims contradicted by documentary evidence they are not presumed to be true. See Biondi v. Beekman Hill House Apartment Corp., 257 A.D.2d 76, 81, 692 N.Y.S.2d 304, 308 (1st Dep't 1999) (where court considers extrinsic evidence on CPLR 3211 motion allegations of the complaint are not deemed true and the motion should be granted where the essential facts have been negated by the evidentiary matter), aff'd, 94 N.Y.2d 659 (2000). Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 16 of 34
merely consisted of the process server leaving the citations with an administrative assistant. (Hirsch Aff. § 7). The citations were not personally delivered to any member, officer, or authorized agent of any of the TR Entities. Under the CPLR, such service, even if it had been timely made (which it was not), was improper and does not confer jurisdiction over any of the TR Entities.” Therefore dismissal under CPLR 3211(a)(8) is warranted.
First, none of the TR Entities maintain an office at CWM, or anywhere else in New York State. (Hirsch Aff. 93). And, second, four of the five TR Entities are limited liability companies.° Service on a limited liability company is only effective if personally delivered to a member, manager, or other agent authorized to receive process. See CPLR 311-a. The administrative assistant with whom service was left has none of those roles, is not an employee of any of the TR Entities, and does not even work in an office maintained by the TR Entities. (Hirsch Aff. J] 6-7). Attempted service of these citations by delivery to an administrative assistant in these circumstances is improper. See, e.g., Ciafone v. Queens Ctr. for Rehab. & Residential Healthcare, 126 A.D.3d 662, 663-64, 5 N.Y.S.3d 462, 464 (2d Dep't 2015) (dismissing action against LLC holding that delivery of process to someone other than person authorized under CPLR 311-a is insufficient); Stuyvesant Fuel Service Corp. v. 99-105 3rd Ave. Realty LLC, 192 Misc. 2d 104, 106, 745 N.Y.S.2d 680, 681 (N.Y. Civ. Ct. 2002) (dismissing claims against LLC because service on receptionist was improper); see also Dewey v. Hillcrest
Gen. Hosp., 201 A.D.2d 609, 609-10, 607 N.Y.S.2d 967, 968 (2d Dep't 1994) (because process
Under SCPA 307(S) service of process upon a corporation or a limited liability company is governed by CPLR 311 and 31 1-a.
TR Investors, LLC, New TR Equity I, LLC, New TR Equity II, LLC, and Trans Resources, LLC are all limited liability companies. (Hirsch Aff. § 4).
10 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 17 of 34
was neither delivered to defendant's place of business nor to one of its employees, service was improper).’
Service was also ineffective as to Glenclova Investment Co., a Cayman Islands company, and the only non-LLC among the TR Entities. Again the CPLR provides the rule: service upon a corporation is effective only if it is personally served upon an officer, director, managing agent or some other agent authorized to receive service. See CPLR 311. As noted above, the administrative assistant with whom such service was left has no such role, is not a Glenclova employee, and was not even working in an office maintained by Glenclova. (See Hirsch Aff. {] 6-7). As a consequence, service upon her was improper. See McDonald v. Ames Supply Co., 22 N.Y.2d 111, 114-16, 291 N.Y.S.2d 328, 331 (1968) (delivery to building receptionist who was not corporation's employee insufficient under CPLR 311 even though receptionist later re-delivered process to a proper person), Dewey, 201 A.D.2d at 609-10, 607 N.Y.S.2d at 968 (delivery of process to executive secretary, even where secretary agreed to accept service on behalf of defendant, was ineffective under CPLR 311 where secretary was not employee of defendant and had never been authorized to accept service on behalf of defendant); Kaleidakolor, Inc. v. Edward N. Hoffman Advert. Corp., No. 25577/91, 1995 WL 17961040, at *1 (Sup. Ct. N.Y. County May 8, 1995) (service invalid on employee at office where employee was not authorized to accept service, was not employed by defendant, and office was not office
of defendant).
Moreover, although the Petition and citation purport to identify Trans-Resources, Inc. as a respondent, Trans- Resources, Inc. was not a party to the Settlement Agreement at issue. (See Boyle Aff., Ex. E). Rather, the proper party is Trans-Resources LLC, a Delaware limited liability company. (Hirsch Aff. 5). Dalia's failure to properly name and serve Trans-Resources, LLC provides an additional ground for dismissal. See Ross v. Lan Chile Airlines, 14 A.D.3d 602, 603-04, 789 N. Y.S.2d 77, 78-79 (2d Dep't 2005) (holding that misnaming of the entity as an "Inc." rather than an "LLC" was "in fact no naming at all").
11 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 18 of 34
Ill. DISMISSAL OF THE PETITION IS REQUIRED AND THE CLAIMS AGAINST THE TR ENTITIES ARE NOW TIME-BARRED BECAUSE PROCESS WAS NOT SERVED WITHIN THE TIME PERIOD REQUIRED BY THE SCPA
For a petition to be timely commenced to toll any statute of limitation, the citation must be served on the respondent within 120 days after the date on which the petition was filed. SCPA 301(a). Dalia filed her Petition on June 14, 2016. As discussed above, no service was attempted within the statutory 120-day period and no proper service has been made on any of the TR Entities despite the lapse of 570 days from the date of filing. Accordingly, the Petition must be dismissed.®
The practical effect of Dalia's lack of diligence in serving process and her failure to properly serve the TR Entities is that her claims of aiding and abetting breach of fiduciary duty, tortious interference with contract, and turnover are now time-barred. Dalia's aiding and abetting claim, which seeks money damages, is subject to a three-year statute of limitation. CPLR 214(4); Diamond v. McDonald, 41 Misc. 3d 1235(A), 983 N.Y.S.2d 202, 2013 N.Y. Slip Op. 51988(U), at *2 (Sup. Ct. N.Y. County 2013) ("The third cause of action for breach of fiduciary duty and the fourth cause of action for aiding and abetting breach of fiduciary duty are subject to a three year statute of limitations."). Similarly, because the gravamen of Dalia's tortious interference claim is an alleged economic injury, the same three-year statute of limitations applies. See MBI Int'l Holdings Inc. v. Barclays Bank PLC, 151 A.D.3d 108, 116, 57 N.Y.S.3d 119, 126 (1st Dep't 2017). And, because Dalia's tumover claim seeks the return of property, it is akin to a conversion claim and is also subject to a three-year limitations period.
See CPLR 213(3); In re Thomas, 28 Misc. 3d 300, 305, 901 N.Y.S.2d 493, 497 (Sur. Ct. Broome
® See Deborah Kearns, McKinney's SCPA 301, 2017 Practice Commentaries ("If the proceeding is commenced
and the citation is served such that the requisite notice is not given, jurisdiction will not be obtained. . .. Where the statute of limitations period has run, a new proceeding must be commenced under SCPA 301(b)").
12 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 19 of 34
County 2010). As a consequence, because Dalia's claims accrued, at the latest, on the date of the Settlement Agreement — i.e., on June 16, 2013, more than three years ago — these claims are time-barred.
In addition, as a matter of equity, Dalia's failure to even attempt service within the 120-day period, coupled with an extensive 570 day delay in attempting service and failure to have properly served any of the TR Entities, militates against granting her any right to file a new petition. Cf Estate of Jervis v. Teachers Ins. & Annuity Ass'n, 279 A.D.2d 367, 368, 720 N.Y.S.2d 21, 22 (ist Dep't 2001) (holding that plaintiff's failure to serve process by deadline and her "unacceptably protracted delay measured from the expiration of the 120-day period" to even attempt service, did not establish either "good cause" or "interest of justice" to extend time for service or to allow plaintiff to avoid the bar of the statute of limitation).
IV. DALIA'S AIDING AND ABETTING BREACH OF FIDUCIARY DUTY CLAIM IS INSUFFICIENTLY PLEADED AND WITHOUT MERIT
A. Dalia's Claim Fails Because Orly, as Beneficiary, Does Not Owe Any Fiduciary Duties to the Trust
It is axiomatic, that a claim for aiding and abetting a breach of fiduciary duty cannot stand where no fiduciary duty exists. Dalia's claim is premised on allegation that Orly was a fiduciary to the Trust. However, Orly, as a beneficiary under the Trust, does not owe any fiduciary duties to the Trust. See Behrle v. Behrie, 150 A.D.3d 656, 657, 53 N.Y.S.3d 697, 698 (2d Dep't 2017). Since Orly owed no fiduciary duties to the Trust, the Court should dismiss any claim that the TR Entities aided and abetted Orly in breaching any non-existent duties.
B. Dalia's Claim Fails Because She Fails to Sufficiently Allege Knowing Participation by Any of the TR Entities
To sufficiently allege a claim for aiding and abetting a breach of fiduciary duty, a
plaintiff must plead, with particularity, a breach of fiduciary duty, which the defendants
13 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 20 of 34
knowingly induced or participated in the breach, and damages resulting from the breach. See Kaufman v. Cohen, 307 A.D.2d 113, 125, 760 N.Y.S.2d 157, 169 (1st Dep't 2003); Berardi, 108 A.D.3d at 407, 969 N.Y.S.2d at 446. A person only "knowingly" participates in a breach of fiduciary duty when he has both knowledge of the breach and when he also provides "substantial assistance" to the breaching party. Kaufman, 307 A.D.2d at 126, 760 N.Y.S.2d at 170. Actual knowledge of the fiduciary breach is required and a plaintiff may not rely on conclusory allegations that the defendant knew or should have known about the primary breach of fiduciary duty. Jd. at 125, 760 N.Y.S.2d at 170; Berardi, 108 A.D.3d at 406, 969 N.Y.S.2d at 446 (fiduciary breach held unsustainable because allegations were "vague and conclusory, made without any specific instances of the alleged misconduct"). Further, mere inaction on the part of an alleged aider and abettor, who does not himself directly owe any fiduciary duties, does not constitutes substantial assistance. Kaufman, 307 A.D.2d at 126, 760 N.Y.S.2d at 170.
Here, all of Dalia's claims are premised on her allegation that Orly, acting as a "de facto trustee," breached her fiduciary duties to the Trust because she allegedly did not properly turnover any Settlement Proceeds to the Trust, but instead purportedly used them for another purpose.
Plainly, the Petition fails to satisfy the aforementioned pleading requirement. Among other infirmities, it relies, without legal citation, on the imposition of a "de facto" fiduciary status in an attempt to allege the existence of an underlying fiduciary duty that could be breached. This conclusory legal imputation is insufficient to allege that the TR Entities had
actual knowledge that Orly owed any fiduciary duty to the Trust.’ In any event, mere knowledge
° To the extent that Dalia is alleging that Orly was a "de facto trustee” of the Trust, and therefore owed fiduciary
duties to the Trust, such status also carries with it all the duties and obligations of a trustee. In this regard, the Trust Agreement expressly allows the Trustee to settle or compromise any claims. (Boyle Aff., Ex. I at Art. (cont'd)
14 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 21 of 34
of a person's fiduciary duty is insufficient as it is not equivalent to actual knowledge of that person's breach of that duty. See Lesavoy v. Lane, 304 F. Supp. 2d 520, 527 (S.D.N.Y. 2004) (applying New York law), affd in relevant part, 170 Fed. App'x. 721 (2d Cir. 2006).
Moreover, nowhere in the Petition is it alleged that the TR Entities had actual knowledge as to how those Settlement Proceeds were to be applied. As set forth in the Settlement Agreement, the settlement was to settle all claims with the "AG Group," which included Arie Genger, Arnold and David Broser, and also Orly in her individual capacity and "as beneficiary of the Orly Genger 1993 Trust." (Boyle Aff., Ex. E at 1). The Settlement Proceeds were then paid (or are to be paid) to the law firm acting "as attorneys for the AG Group." (/d. at 2, { 2(b)). Itis undisputed that nowhere does the Settlement Agreement recite how the Settlement Proceeds were to be apportioned among the "AG Group" or otherwise disclose any facts as to how the Settlement Proceeds would be applied. Thus, the Settlement Agreement makes clear the TR Entities lacked any knowledge about whether Orly, in any capacity, would receive (or not receive) any Settlement Proceeds. Thus, outside of conclusory allegations, the Petition is devoid of any detail or facts from which it can be inferred that the TR Entities had
actual knowledge of Orly's alleged breach.'° Without any such detail, the cause of action must
(cont'd from previous page) 11.A (7)). Most important, however, the Trust expressly limits the liability for any person who makes a payment to the Trustee. (Boyle Aff. Ex. I at Art. 11.B (No person or party dealing with the Trustees shall be bound to see the application of any money . . . paid by him or her to the Trustees.")). Similarly, the EPTL provides that no person, such as the TR Entities, who in good faith transfers money to a trustee, is "responsible for the proper application of such money." Thus, to the extent Dalia's relies on a position that Orly is a de facto trustee, there is no merit to any allegation that: (1) she breached any fiduciary duty by entering into the Settlement Agreement; or (2) that somehow the TR Entities aided and abetted any fiduciary breach concerning the application of the Settlement Proceeds. Dalia cannot have it both ways: either Orly is a beneficiary, and therefore there is no underlying breach of fiduciary duty, or Orly is a de facto trustee and therefore the TR Entities are protected against any aiding and abetting claim concerning their good faith payment of the Settlement Proceeds. Dalia has not advanced any allegations (nor could she) that the TR Entities were not acting in good faith when they entered into the Settlement Agreement.
Where, as here, a claim of a breach of fiduciary duty has been asserted, the sufficiency of any claim falls within the ambit of CPLR 3016(b), which requires that the circumstance constituting the wrong must be pleaded in (cont'd)
15 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 22 of 34
be dismissed. See Kaufman, 307 A.D.2d at 125 (affirming dismissal of plaintiff's claim for aiding and abetting breach of fiduciary duty dismissed in absence of evidence that defendant acted with actual knowledge); Lesavoy, 304 F. Supp.2d at 527 (applying NY law in dismissing an aiding and abetting claim where plaintiff pled no facts as to where, when, or how, fiduciary advised defendants of facts supporting alleged breach but instead relied on conclusory allegations).
Similarly, Dalia's (conclusory) allegation that it was the complicity of the TR Entities by drafting and entering into the Settlement Agreement without which Orly could not have breached her alleged fiduciary does not demonstrate the requisite "substantial assistance" for aider and abettor liability. See Kaufman, 307 A.D.2d at 126; Brasseur v. Speranza, 21 A.D.3d 297, 299, 800 N.Y.S.2d 669, 671 (1st Dep't 2005).
In addition, the Petition nowhere alleges in any credible manner or with the required level of specificity that there was, in fact, a breach of any duty. Rather, at best, the Petition can be read to allege that there may have been a breach. Dalia's rank speculation and her effort to link that speculation and other unsupported inferences to fashion her claim fail to satisfy the CPLR's pleading requirements. And, where, as here, it is indisputable that the Settlement Agreement arose out of a negotiation by litigation adversaries to settle their disputes — even assuming that a breach of duty has been sufficiently alleged (it has not) and that the TR Entities
had actual knowledge of the same (they do not) — the case law routinely rejects the use of such
(cont'd from previous page) detail. See, e.g., Singh v. PGA Tour, Inc., 42 Misc. 3d 1225(A), 992 N.Y.S.2d 161, 2014 N.Y. Slip Op. 50191(U), at *6-*7 (Sup. Ct. N.Y. County 2014) ("Moreover, the First Department has held that a cause of action for breach of fiduciary duty is subject to the particularized pleading requirement of CPLR 3016(b)....") (citing Berardi, 108 A.D.3d at 407, 969 N. Y.S.2d at 446). No such details have been pleaded. For example, the Petition does not allege in detail how the Settlement Proceeds were used, who among the AG Group actually received any of the Settlement Proceeds or how much they received, or how, specifically, the TR Entities gained actual knowledge of how the Settlement Proceeds were or were not to be used. Indeed, to this day, the TR Entities are without knowledge of any such information.
16 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 23 of 34
an arms-length transaction as the Settlement Agreement as grounds for aiding and abetting liability. See, e.g., In re Bear Stearns Litig., 23 Misc.3d 447, 478, 870 N.Y.S.2d 709, 739 (Sup. Ct. N.Y. County 2008) (holding that aiding and abetting claim should be dismissed where record demonstrates arms-length transaction between the parties). Thus, the fact that the TR Entities — an adversary to Orly — entered into the Settlement Agreement and paid the Settlement Proceeds cannot serve as a basis for aiding and abetting liability."
Moreover, as the Petition alleges, in the underlying litigation that gave rise to the Settlement Agreement, the court held that Orly had the right to assert the very claims that she released in the Settlement Agreement. Dalia's admission of this judicial imprimatur provides a further basis for establishing, indisputably, that the TR Entities acted appropriately and did not tortiously aid Orly in any breach by entering into a settlement with her in the very capacities the court had already approved.
V. DALIA'S TORTIOUS INTERFERENCE WITH CONTRACT CLAIM IS INSUFFICIENTLY PLEADED AND WITHOUT MERIT
A. Dalia Has Not Sufficiently Alleged that Any of the Trump Group Entities Knowingly and Improperly Induced a Breach
In order to state a claim for tortious interference with contract the plaintiff must allege the existence of a valid contract with a third party, defendant's knowledge of that contract, defendant's intentional and improper procuring of a breach, and damages. See White Plains Coat
& Apron Co. v. Cintas Corp., 8 N.Y.3d 422, 426, 835 N.Y.S.2d 530, 532 (2007).
" The Petition also fails on this claim because it does not offer any specific allegations of wrongdoing as to each
of the TR Entities and instead impermissibly relies on a general group pleading approach. Such allegations do not comply with the heightened pleading requirements of CPLR 3016(b) for aiding and abetting breach of fiduciary duty claims. See Grika v. McGraw, 55 Misc. 3d 1207(A), 57 N.Y.S.2d 675, N.Y. Slip Op. 51878(U), at *15-*16 (Sup. Ct. N.Y. County 2016).
17 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 24 of 34
For the same reasons discussed above with regard to the aiding and abetting claim, dismissal is warranted because the Petition does not sufficiently allege that the TR Entities intentionally and improperly procured any breach of contract by Orly. (See supra at heading IV). Moreover, for any interference to be tortious, the TR Entities must have acted without justification and their action must not have been incidental to a lawful purpose. See Alvord & Swift v. Stewart M. Muller Constr. Co., 46 N.Y.2d 276, 281-82, 413 N.Y.S.2d 309, 312 (1978), Torrenzano Group, LLC v. Burnham, 26 A.D.3d 242, 243 (1st Dep't 2006). As discussed above, the TR Entities as litigation adversaries to Orly, who had lost their motion to dismiss her claims in the trial court, unquestionably were justified and exercising their lawful rights when entering into the Settlement Agreement in June 2013. Their payment of the Settlement Proceeds to the attorney for the AG Group was also the by-product of this lawful and arm's length settlement. Further, and as discussed above, other than the Petition's speculation that the Settlement Proceeds may have been used to pay Orly's creditors, there are no facts alleged to support this incredible claim, none alleged to support a claim that the TR Entities possibly could have known this, yet alone actually did know this, and none alleged to support any claim that the TR Entities have intentionally and improperly assisted in the same.
VI. DALIA'S MONEY HAD AND RECEIVED AND TURNOVER CAUSES OF ACTION CANNOT STAND
To sustain a cause of action for money had and received, a plaintiff must allege and establish that the defendant received money belonging to the plaintiff, that the defendant benefitted from the receipt of that money, and that the defendant should not be permitted to retain the money. See Fesseha v. TD Waterhouse Investor Services, Inc., 193 Misc. 2d 253, 260, 747 N.Y.S.2d 676, 683 (Sup. Ct. N.Y. County 2002). This cause of action, along with the
"turnover" cause of action, must be dismissed because Dalia has not alleged (and cannot) that the
18 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 25 of 34
TR Entities ever "received" or "retained" money purportedly belonging to the Trust. See id. at 260-61, 747 N.Y.S.2d at 683. In fact, in the Petition, Dalia actually admits that none of the TR Entities received or have in their possession any of the Settlement Proceeds that she is claiming.
(See Boyle Aff., Ex. 1, at {J 72-73). This admission forecloses these claims.’
VIL RES JUDICATA AND COLLATERAL ESTOPPEL BAR DALIA'S CLAIMS
All of Dalia's claims against the TR Entities are subject to dismissal under the principles of res judicata. Under New York law any stipulated discontinuance with prejudice’ in a prior action bars re-litigation of not only those claims but of all other claims arising out of the same transaction that could have been asserted in a prior proceeding, even if they are now based on different theories or seeking different remedies. See O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357-58, 445 N.Y.S.2d 687, 689 (1981); Fifty CPW Tenants Corp. v. Epstein, 16 A.D.3d 292, 293, 792 N.Y.S.2d 58, 59 (1st Dep't 2005); see also Landau, P.C. v. LaRossa, Mitchell & Ross, 11 N.Y.3d 8, 12-13, 862 N.Y.S.2d 316, 319 (2008) ("[O]nce a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.") (quotations omitted); In re Estate of Hunter, 4 N.Y .3d 260, 269, 794 N.Y.S.2d 286, 291 (2005) (noting the doctrine applies "not only to claims actually litigated but also to claims that could have been
raised in the prior litigation"). Thus, "a claim will be barred by the prior adjudication of a
As the Petition notes, $17.3 million of the Settlement Proceeds has already been paid out to the AG Group. See Boyle Aff., Ex. A at 922). The remaining $15 million in Settlement Proceeds is only to be paid subject to the satisfaction of certain conditions, which have not yet occurred, and is also subject to set off. (See id. at Ff 22- 23; see also Boyle Aff., Ex. E at ¥ 3).
A stipulation of discontinuance with prejudice in an action in another forum has the same res judicata preclusive
effect as a judgment on the merits. See Gropper v. 200 Fifth Owner LLC, 151 A.D.3d 635, 635, 58 N.Y.S.2d 42, 43 (1st Dep't 2017).
19 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 26 of 34
different claim arising out of the same ‘factual grouping! even if the claims involve 'materially different elements of proof’ and even if the claims 'would call for different measures of liability or different kinds of relief.'" Fifty CPW Tenants Corp., 16 A.D.3d at 293 (citations omitted).
Moreover, "[t]he doctrine of res judicata, or claim preclusion, is designed to 'relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication." Jns. Co. of State of Pennsylvania v. HSBC Bank USA, 10 N.Y .3d 32, 38, 852 N.Y.S.2d 812, 815 (2008) (citation omitted). One of the tests for determining what constitutes the same cause of action has been expressed as whether a different judgment in the second action would impair or destroy any rights or interests established in the prior actions. See Schuykill Fuel Corp. v. B. & C. Nieberg Realty Corp., 250 N.Y. 304, 306-07 (1929); see also Greenway Med. Supply Corp. v. Am. Transit Ins. Co., 58 Misc. 3d 147(A) (N.Y. App. Term. 2018) (affirming res judicata dismissal where "any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the judgment in the [prior action]") (citing Schuylkill Fuel Corp., 250 NY at 306-07).
Here, the fundamental gravamen of the Petition concerns the beneficial ownership of the Trans-Resources shares and any concomitant right to monetize that ownership interest, whatever it may have been. But, as described above, the issues of beneficial ownership of all Trans-Resources shares were finally and fully resolved with Orly, both in her individual capacity and in her capacity of beneficiary of the Trust, on June 16, 2013. And then, on August 30, 2013, in the Delaware Dismissal, Dalia in her role as trustee to the Trust and with knowledge of the Settlement Agreement and after voluntarily foregoing an opportunity to review the Settlement
Agreement (see Boyle Aff., Ex. G), also finally and fully resolved all issues related to the
20 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 27 of 34
ownership of the Trans-Resources shares in the Delaware Action. (Boyle Aff., Ex. F). To the extent that Dalia now attempts to enforce the Trust's rights or entitlements as a beneficial owner of the Trans-Resources shares by, among other things, seeking to monetize that interest by taking possession of the Settlement Proceeds, the Delaware Dismissal (with Dalia's consent) bars any such relief.
In fact, Dalia has notably represented to the Supreme Court (in support of a motion on which she prevailed) that the Delaware Action was designed to provide a “full adjudication" of issues relating to the Trusts right to the Trans-Resources shares that underlay the Settlement Agreement. (See Boyle Aff., Ex.J at (Further, it is important to note that an action is pending in the Delaware Chancery Court to declare that the Orly Trust is the beneficial ownership [stet.] of the TRI, allowing for a full adjudication of beneficial ownership of the TRI shares. Dalia Genger v. TR Investors, LLC et. al. (Del. Ch. 6906-CS. filed Oct. 4, 2011)") (emphasis added)).
As there is no dispute that in the Delaware Action Dalia stipulated to a dismissal with prejudice of all claims relating to the ownership of the Trans-Resources shares at a time when she was aware of the Settlement Agreement, and, as such, could have raised any claims relating to that settlement (including those purportedly brought here) in the Delaware Action, she is now precluded from raising them in this proceeding. See Gropper v. 200 Fifth Owner LLC, 151 A.D.3d 635, 636, 58 N.Y.S.2d 42, 43 (1st Dep't 2017); see also In re Hunter, 4 N.Y.3d at 270-71, 794. N.Y.S.2d at 292 (confirming res judicata bar to claims that were discernible from document filed in prior proceedings).
A separate basis for res judicata as to the Trust arises out of the First Department's
decision in Genger v. Genger, 144 A.D.3d 581, 41 N.Y.S.3d 414 (1st Dep't 2016). In that
21 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 28 of 34
decision, the First Department expressly rejected Dalia's attempt to assert the same claim she is making in this Petition: that the Settlement Proceeds belong to the Trust. (See Boyle Aff., Ex. L at 1 (requesting an order directing the Settlement Proceeds be paid into court because "some or all of the settlement proceeds" belong to the Trust")). The First Department did so because it concluded that "all [Orly Trust] claims had previously been dismissed or discontinued by prior court orders." Genger, 144 A.D.3d at 581, 41 N.Y.S.3d at 415. Because, as the First Department correctly noted, those claims were previously "dismissed or discontinued," res judicata precludes their assertion here.
VIII. SHOULD THE COURT NOT DISMISS THE PETITION FOR ANY OF THE ABOVE REASONS IT SHOULD BE STAYED OR DISMISSED
It is undisputed that Dalia's standing to assert these claims derives from her status as trustee. At least since June 2009, however, a proceeding brought by Orly to remove Dalia as trustee has been pending in this Court. In fact, on June 21, 2017, this Court denied Dalia's motion to dismiss that proceeding, noting that Orly's allegations "raise significant issues about whether Dalia's efforts as trustee have been calculated to benefit herself and others at the expense of the Orly Trust in violation of her fiduciary duty and whether she poses an ongoing threat to the assets of the Orly Trust." Jn re Orly Genger, No. 2008-0017/B, Decision at 12 (Boyle Aff., Ex. C). Thus, should this proceeding not be dismissed, it should be stayed pending resolution of the threshold issue of whether Dalia is a proper trustee of the Trust. See CPLR 2201.
Moreover, Dalia, in a cross-petition she filed and served many months ago, asserted identical claims of breach of fiduciary duty and turnover solely against Orly concerning the Settlement Proceeds and on these very same facts. (See Boyle Aff., Ex. K). A motion to
dismiss that cross-petition filed by Orly (and joined by the guardian ad litem) is currently sub
22 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 29 of 34
judice before this Court. The existence of that proceeding provides yet another reason for the
Court to exercise its discretion to dismiss or stay any proceedings on this Petition.’
CONCLUSION For the foregoing reasons, the TR Entities respectfully request that this Court dismiss the Petition and all claims therein as against the TR Entities, and grant the TR Entities such other relief as may be just and proper. Dated: New York, New York Respectfully submitted,
February 6, 2018 SKADDEN, ARPS, SLATE,
Cee ne LLP Lh [Sor Ve 7
john.boyle@skadden.com
Attorneys for Glenclova Investment Co.,
TR Investors, LLC, New TR Equity I, LLC, New TR Equity IT, LLC, and Trans-Resources LIC.
‘4 The existence of the already pending action also provides a basis for dismissal under CPLR 3211(a)(4), which
allows a party to move for judgment dismissing one or more causes of action asserted against it on the ground that "there is another action pending between the same parties for the same cause of action in a court of any state or the United States; the court need not dismiss upon this ground but may make such order as justice requires." The subject of the two actions need not be identical to invoke CPLR 3211(a)(4); rather, "[t]he critical element is that both suits arise out of the same subject matter or series of alleged wrongs." Syncora Guarantee Inc. v. J.P. Morgan Sec. LLC, 110 A.D.3d 87, 96, 970 N.Y.S.2d 526, 533 (1st Dep't 2013). CPLR 3211(a)(4) "vests a court with broad discretion in considering whether to dismiss an action." Whitney v. Whitney, 57 N.Y.2d 731, 732, 454 N.Y.S.2d 977, 977 (1982).
23 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 30 of 34
SURROGATE'S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
In The Matter of DALIA GENGER, Trustee of File No. 2008-0017/E the ORLY GENGER 1993 TRUST, Hon. Nora S. Anderson Petitioner,
- against -
ORLY GENGER, ARIE GENGER, GLENCLOVA INVESTMENT COMPANY, TR INVESTORS, LLC, NEW TREQUITY TI, : LLC, NEW TR EQUITY II, LLC, TRANS- RESOURCES, INC., ARNOLD BROSER, DAVID BROSER, JOHN DOES 1-20, and JANE DOES 1-20,
Respondents.
STATE OF NEW YORK ) COUNTY OF NEW YORK
Julie M. Thaxton, being duly sworn, deposes and says:
1. That deponent is over eighteen years of age, not a party to the action and is employed by Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, NY 10036.
2. That on the 6th day of February 2018, deponent served a true copy of
the
e Notice of Motion,
e Affirmation of John Boyle in Support of the TR Entities' Motion to Dismiss the Petition For Turnover of Trust Property and Other Relief with the annexed Exhibits A-L,
e Affirmation of Mark S. Hirsch in Support of Motion to Dismiss and Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 31 of 34
e Memorandum of Law in Support of the TR Entities' Motion to Dismiss the Petition for Turnover of Trust Property and Other Relief Filed on June 14, 2016, by Dalia Genger as Trustee of the Orly Genger 1993 Trust
by Federal Express, overnight delivery upon:
Judith Lisa Bachman, Esq. 254 S. Main Street, Suite 306 New City, New York 10956
Kelley Drye & Warren LLP John Dellaportas
101 Park Avenue
New York, NY 10178
Kasowitz Benson Torres LLP Michael Paul Bowen
1633 Broadway
New York, NY 10019
Steven Riker, Esq. One Grand Central Place, 46th Floor
New York, NY 10165 Be M Dhan
Julie M. Thaxton
Sworn to before me this
6th sds: 2018. Matt ew Konig NG Notary Public, State of New York
Reg. No. 01K06211943 Qualified in New York County Commission Expires Sept. 23, 2021 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 32 of 34
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3/ZL00-800¢ ‘ON Alls Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 33 of 34
SURROGATE'S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
In The Matter of DALIA GENGER, Trustee of File No. 2008-0017/E the ORLY GENGER 1993 TRUST, Hon. Nora S. Anderson Petitioner,
- against -
ORLY GENGER, ARIE GENGER, GLENCLOVA INVESTMENT COMPANY, TR INVESTORS, LLC, NEW TR EQUITY I, LLC, NEW TR EQUITY II, LLC, TRANS- RESOURCES, INC., ARNOLD BROSER, DAVID BROSER, JOHN DOES 1-20, and JANE DOES 1-20,
Respondents.
STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK _) Julie M. Thaxton, being duly sworn, deposes and says: 1. That deponent is over eighteen years of age, not a party to the action
and is employed by Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square,
New York, NY 10036.
2. That on the 6th day of February 2018, deponent served a true copy of
the
e Notice of Motion,
e Affirmation of John Boyle in Support of the TR Entities' Motion to Dismiss the Petition For Turnover of Trust Property and Other Relief with the annexed Exhibits A-L,
e Affirmation of Mark S. Hirsch in Support of Motion to Dismiss and Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 34 of 34
e Memorandum of Law in Support of the TR Entities’ Motion to Dismiss the Petition for Turnover of Trust Property and Other Relief Filed on June 14, 2016, by Dalia Genger as Trustee of the Orly Genger 1993 Trust
by Federal Express, overnight delivery upon:
Arnold Broser 5371 Fisher Island Drive Miami Beach, FL 33109
Arie Genger 17001 Collins Avenue Sunny Isles Beach, FL 33160
Qube M- Shain
f Julie M. Thaxton Sworn to before me this 6th day oF February 2018.
, CZ Notary Public, State of New York
Reg. No. 01K06211943 Qualified in New York County Commission Expires Sept. 23, 2021 | 2019-10-09 | [
"Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 1 of 34 SURROGATE’S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of DALIA GENGER, trustee of the ORLY GENGER 1993 TRUST, Petitioner, - against - FILENO. 2008-0017/E ORLY GENGER, ARIE GENGER, GLENCLOVA INVESTMENT COMPANY, TR INVESTORS, LLC, NEW Hon. Nora S. Anderson TR EQUITY I, LLC, NEW TR EQUITY II, LLC, TRANS- RESOURCES, INC., ARNOLD BROSER, DAVID BROSER, JOHN DOES 1-20, and JANE DOES 1-20, Respondents. MEMORANDUM OF LAW IN SUPPORT OF THE TR ENTITIES' MOTION TO DISMISS THE PETITION FOR TURNOVER OF TRUST PROPERTY AND OTHER RELIEF FILED ON JUNE 14, 2016, BY DALIA GENGER AS TRUSTEE OF THE ORLY GENGER 1993 TRUST SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP John Boyle Four Times Square New York, New York 10036 (212) 735-3000 (212) 735-2000 (facsimile) Attorneys for Glenclova Investment Co., TR Investors, LLC, New TR Equity I, LLC, New TR Equity IT, LLC, and Trans-Resources LLC. Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 2 of 34 TABLE OF CONTENTS Page PRELIMINARY STATEMENT ..00.00.0.ccccccecceccsecscssescesceseseeeesseseessusesecscacsecseasseessvssecsenseseeaenaeeteas 1 RELEVANT FACTUAL BACKGROUNQND ...000.0.occcccccecccesceseeseseesesecestscsetutessentasusetacsesssseesseseereas 4 ARGUMENT 00. ccccccccecececescseseeseseceteesssseveceesesavsssssassesscsesesecsesesesesecsesscsesesacsesseasiecassessnaeeeesiees 8 I. STANDARD OF REVIEW 00... cccccccccececceseeeeseeseeeceeeseeeceeeseeessssaecesseeseeeteeseerenees 8 IL THE COURT LACKS JURISDICTION OVER THE TR ENTITIES BECAUSE DALIA FAILED TO PROPERLY SERVE THEM..............000:500005 9 Il.",
"DISMISSAL OF THE PETITION IS REQUIRED AND THE CLAIMS AGAINST THE TR ENTITIES ARE NOW TIME-BARRED BECAUSE PROCESS WAS NOT SERVED WITHIN THE TIME PERIOD REQUIRED BY THE SCPA 000... cccccecetcesneeee ce cnssnecettessessesetseiensstststesees 12 IV. DALIA'S AIDING AND ABETTING BREACH OF FIDUCIARY DUTY CLAIM IS INSUFFICIENTLY PLEADED AND WITHOUT MERIT ............... 13 A. Dalia's Claim Fails Because Orly, as Beneficiary, Does Not Owe Any Fiduciary Duties to the Trust ..0..00.00.c ccc ccccccceccceeseseceseesecssentenees 13 B. Dalia's Claim Fails Because She Fails to Sufficiently Allege Knowing Participation by Any of the TR Entities... 13 V. DALIA'S TORTIOUS INTERFERENCE WITH CONTRACT CLAIM IS INSUFFICIENTLY PLEADED AND WITHOUT MERIT ................... settee 17 A. Dalia Has Not Sufficiently Alleged that Any of the Trump Group Entities Knowingly and Improperly Induced a Breach.........0.0..0.000c000 17 VI.",
"DALIA'S MONEY HAD AND RECEIVED AND TURNOVER CAUSES OF ACTION CANNOT STAND 0.0000 ccccccccccccccecsestsescteetseseetecsesenees 18 VI. RES JUDICATA AND COLLATERAL ESTOPPEL BAR DALIA'S CLAIMS ounces cscecnenseseseseseseeneeeeessesenesseecsesesesesscecesecssstevivsnssitseressasieenss 19 VII. SHOULD THE COURT NOT DISMISS THE PETITION FOR ANY OF THE ABOVE REASONS IT SHOULD BE STAYED OR DISMISSED ............ 22 CONCLUSION 00. ccccccccccccsesesesesesssessssesssusssssusasusususasasesasevecavececececsceuecscsvevscsvsvevsvsvsusesseveeeseres 23 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 3 of 34 TABLE OF AUTHORITIES Page CASES Alvord & Swift v. Stewart M. Muller Construction Co., 46 N.Y.2d 276, 413 N.Y.S.2d 309 (1978) oo... eecccecceeceeeseeecneeeeeceeesecsesseseestseesstnenseerens 18 Basile v. Wiggs, 98 A.D.3d 640, 950 N.Y.S.2d 148 (2d Dep't 2012)... cect ctecsececnetetstssnaeerees 9 Inre Bear Stearns Litigation, 23 Misc.3d 447, 870 N.Y.S.2d 709 (Sup. Ct. N.Y. Cty.",
"2008) oo... ccecccceceenrsenes 17 Behrle v. Behrle, 150 A.D.3d 656, 53 N.Y.S.3d 697 (2d Dep't 2017)... ccc ccccsecessseeeeceseeeacseeseees 13 Berardi v. Berardi, 108 A.D.3d 406, 969 N.Y.S.2d 444 (1st Dep't 2013)... cece eeeteceeeeeteeees 9,14 Biondi v. Beekman Hill House Apartment Corp., 257 A.D.2d 76, 692 N.Y.S.2d 304 (1st Dep't 1999), affd, 94 N.Y.2d 659 (2000) ............. 9 Brasseur v. Speranza, 21 A.D.3d 297, 800 N.Y.S.2d 669 (Ist Dep't 2005) ooo... ccceccscscscscscscssnseetseseeeses 16 Bronxville Knolls, Inc. v. Webster Town Center Partnership, 221 A.D.2d 248, 634 N.Y.S.2d 62 (1st Dep't 1995)... cccccceceeeecrcecsentesesessereeners 9 Ciafone v. Queens Center for Rehabilitation & Residential Healthcare, 126 A.D.3d 662, 5 N.Y.S.3d 462 (2d Dep't 2015)... cece cece cesetiestensestneseeey 10 Dewey v. Hillcrest General Hospital, 201 A.D.2d 609, 607 N.Y.S.2d 967 (2d Dep't 1994)... ccc ceceeereeeettie 10, 11 Diamond v. McDonald, 41 Misc.",
"3d 1235(A), 983 N.Y.S.2d 202, 2013 N.Y. Slip Op. 51988(U) (Sup. Ct. N.Y. Cty. 2013). ccececceseseseseensesesesesssessecsssssessuesasassessuseesssssstssssvavassestassseseresescatsens 12 Inre Estate of Hunter, 4N.Y.3d 260, 794 N.Y.S.2d 286 (2005) .0...cceecssessssssesesseneseneseessessssseeneetseseseetenes 19, 21 Estate of Jervis v. Teachers Insurance & Annuity Association, 279 A.D.2d 367, 720 N.Y.S.2d 21 (Ist Dep't 2001) oo... cccecee cscs sesseseseseseseeees 13 Fresseha v. TD Waterhouse Investor Services, Inc., 193 Misc. 2d 253, 747 N.Y.S.2d 676 (Sup. Ct. N.Y. Cty. 2002) 0.0. 18, 19 il Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 4 of 34 Fifty CPW Tenants Corp. v. Epstein, 16 A.D.3d 292, 792 N.Y.S.2d 58 (1st Dep't 2005) oo... cee cseeetetentteeeneteeees 19, 20 Genger v. Genger, 144 A.D.3d 581, 41 N.Y.S.3d 414 (Ist Dep't 2016). eee eeteettteteees 8, 21, 22 Genger v. Genger, 38 Misc. 3d 1213(A), 2013 WL 221485 (Sup. Ct. N.Y. Cty. Jan. 3, 2013) 5 Genger v. Genger, No. 651089/2010, 2015 N.Y. Slip Op. 30008(U) (Sup. Ct. N.Y. Cty. Jan. 7, 2015).......... 4 Genger v. TR Investors, LLC, C.A.",
"No. 6906-CS (Del. Ch. Ct). ccceccceeeeseneeeesesecscseesesesensceescseeesseeessenenseneeeees 6 Greenway Medical Supply Corp. v. American Transit Insurance Co., 58 Misc. 3d 147(A) (N.Y. App. Term. 2018) oo... cccccccccccccccccescescescstestescssssssesiesanees 20 Grika v. McGraw, 55 Misc. 3d 1207(A), 57 N.Y.S.2d, N.Y. Slip Op. 51878(U) (Sup. Ct. N.Y. Cty. 2016) one cececcccecteneeeceeseseseseneevseseaseeveceesceesesenenssssasisassesteesssstsevesstasseassevevesseseecsesesenseseeeees 17 Gropper v. 200 Fifth Owner LLC, 151 A.D.3d 635, 58 N.Y.S.2d 42 (Ist Dep't 2017)... cece tees este tseeeesneeees 19, 21 Insurance Co. of State of Pennsylvania v. HSBC Bank USA, 10 N.Y.3d 32, 852 N.Y.S.2d 812 (2008) ooo... cece ccccescesecescsecssusscssesseseeessntesesasestnees 20 Kaleidakolor, Inc. v. Edward N. Hoffman Advertising Corp., No. 25577/91, 1995 WL 17961040 (Sup. Ct. N.Y. Cty. May 8, 1995)... 11 Kaufman v. Cohen, 307 A.D.2d 113, 760 N.Y.S.2d 157 (1st Dep't 2003) oo... ccccccccccceeeeectseeneesens 14, 16 Landau, P.C. v. LaRossa, Mitchell & Ross, 11 N.Y.3d 8, 862 N.Y.S.2d 316 (2008) oo... ccc cececesecscnsecscvessreveveneveevavessaveenees 19 Lesavoy v. Lane, 304 F. Supp.",
"2d 520 (S.D.N.Y. 2004), aff'd in relevant part, 170 Fed. App'x. 721 (2d Cir. 2006)... cee cseeneneneseseesenenesessseneaeseaesesesesesesssssssssessssesstasscesitesscecscesecetenes 15, 16 MBI International Holdings Inc. v. Barclays Bank PLC, 151 A.D.3d 108, 57 N-Y.S.3d 119 (1st Dep't 2017)... cccetscesessneesesesseereey 12 McDonald vy. Ames Supply Co., 22 N.Y.2d 111, 291 N-Y.S.2d 328 (1968) ooo ccc cee eetanseseseseetecssessseserscsesseeeeeey 11 ill Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 5 of 34 O'Brien v. City of Syracuse, 54 N.Y.2d 353, 445 N.Y.S.2d 687 (1981) ooo cece ccse cscs cesceeceteeteesteseesesenieeiens 19 Ross v. Lan Chile Airlines, 14 A.D.3d 602, 789 N.Y.S.2d 77 (2d Dep't 2005)... occ cece cee ccscesseceseeetstersessseesees 11 Schuykill Fuel Corp. v. B. & C. Nieberg Realty Corp., 250 N.Y. 304 (1929) ooo eccecececcececeseseeseecseeecseseescsescseieceesesceesesssssusvsesesseseessaeeeeessetenseeeees 20 Singh v. PGA Tour, Inc., 42 Misc.",
"3d 1225(A), 992 N.Y.S.2d 161, 2014 N.Y. Slip Op. 50191(U) (Sup. Ct. NY. Cty 2014). cccccceceeeceseseesceesesecsecseeeeesseesesteseceeseesecsesseseceeseessessesecssnseseenenaes 16 Stuyvesant Fuel Service Corp. v. 99-105 3rd Avenue Realty LLC, 192 Misc. 2d 104, 745 N.Y.S.2d 680 (NY. Civ. Ct. 2002)... ccccccccccccesecestsetseees 10 Syncora Guarantee Inc. v. J.P. Morgan Securities LLC, 110 A.D.3d 87, 970 N.Y.S.2d 526 (1st Dep't 2013)... ccc cesseeseteescteneseees 23 Inre Thomas, 28 Misc. 3d 300, 901 N.Y.S.2d 493 (Sur. Ct. Broome Cty. 2010)... 12 Torrenzano Group, LLC v. Burnham, 26 A.D.3d 242 (1st Dep't 2006) oo. cece es eens esesenseseteescseeeseescessssssseecessstinsesses 18 TR Investors, LLC v. Genger, C.A. No.",
"3994-VCS, 2010 WL 2901704 (Del. Ch. July 23, 2010)... ccccccceceees 4 White Plains Coat & Apron Co. v. Cintas Corp., 8 N.¥.3d 422, 835 N.Y.S.2d 530 (2007) o.oo. .ccceccecccecestetecsesteeseseeecsceesessseseetsseteseeavenatens 17 Whitney v. Whitney, 57 N.Y.2d 731, 454 N.Y.S.2d 977 (1982) o.oo ccccccceecseeseeesesescesseseetesssscsesseiesisersnenitees 23 Zanett Lombardier, Ltd. v. Maslow, 29 A.D.3d 495, 815 N.Y.S.2d 547 (1st Dep't 2006) o.oo. cccccseeseensueseeeesseneeseeees 9 STATUTES AND RULES N.Y. Surr. Ct. Proc. Act 301(8) .o.ccccccccccccccccccceeccscescnsscssesscrscsecrssssseuveesasessasavesesivvassreseeenees 1,12 N.Y. Surr. Ct. Proc. Act 307(5) oocccccccccccccccccscssescscseesvseeecscesescscesecsevavavsessessvsvaceesisetneesessessareaes 10 NEY. CPLR.",
"213 occ cccccscsssessnsseseessenesevesssssssssvevavsssssuevevesussvavavavsvsceserereevecsuesesnevavavevassresd 9 NEY. CPLR. 2138) ccc ccccccccceneesesesesseesesesesssesavassssssesssesssessssessvsvavssecseererescacacstsvevivananerers 12 N.Y. C.P.L.R. 214 iv Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 6 of 34 N.Y. CPLR. 21404) cccccccccccccsssssssssseeessssessssssssssssseveesssssssevenstssssisvusssssssssenesssssiesnseeeenseseee 12 N.Y. CPLR. 311 voocccccccccssssssessesesssessssssssssvsvessessessssssssevevsssessetsssssssiusmstesssessssenvneseteesen 1,11 N.Y. CPLR. 31-8 coccccccccsssssssssssssssssssssssssssesssessesssssssssisesemeessssssssssssaveseeisessssssssevenesteseen 1, 10 N.Y. CPLR. 320(b) oicesccccsssssseeessssessssssssseceveecsssssssssssvevessensessssessssssevsnisetssssssssesenessssseeesesenseen 1 N.Y. CPLR. 2200 occccscccsssssssssessssessessssssssvecssssssessssssevmmessessessssssaseseemessssasssenseeneesssessesesesn 22 N.Y. CPLR. 3016(0) oecccccccccsssssssssssesssssssssvsssssssssssevvesssssssssenssssssssevesssessssssseassssssessnsesssesseeseete 9 N.Y. CPLR. 3211 (a)(1) occsscccccssssssssssssssssevevvssesssessssssevvssevsesssssssssssesesssssssassnsasesenmmessssesssssseveee 1 N.Y. CPLR. 3211(a)(3) ceccsccscccsssssssessssssssssveveeseesssssssssevesivessssssssssssesesmsssssssssssevanimesssssersisevesven 1 N.Y. CPLR.",
"321 1(Q)(4) cocccccsssssssssssesssssvsssvessessssssseessessessssmesssssesensesssessasssaessessasnveeneesesesee 1, 23 N.Y. C.PLLR. 3211(a)(5) ocscscsssesessssssesssssssssssssvssevessssssssssssssssssueissssssssasssevseueesesasssasinsseneesesesen 1,9 N.Y. CPLR. 321 1(@)(7) cesccceccccssccsssssssssssesevecesssssssssssssevsvssissssevsssnssvevssveesssseesnsasssssneseesssssseeeee 1,9 N.Y. CPLR. 321 1(€)(8) cocccccccscccccscsssssssssesvsveesesssssssssssssvsressessesssssssssevnssssssessssisessseeeesesesee 1, 9, 10 OTHER AUTHORITIES Deborah Kearns, Practice Commentaries, McKinney's SCPA 301, Book 58A (McKinney QOVT) ooo eeeeccccccccccsessesssssssesssssessessesvsesssssesesecsevsuseesevsececsavsesssssusessevavsevaceevessiscaveesasavessacsisarens 12 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 7 of 34 Respondents Glenclova Investment Co., TR Investors, LLC, New TR Equity [, LLC, New TR Equity II, LLC, and Trans-Resources LLC’ (collectively the \"TR Entities\") respectfully submit this memorandum of law in support of their Motion to Dismiss the Petition for Turnover of Trust Property and Other Relief filed on June 14, 2016, by Dalia Genger (\"Dalia\") as Trustee of the Orly Genger 1993 Trust (the \"Petition\"), as against the TR Entities, pursuant to CPLR 213, CPLR 214, CPLR 311, CPLR 311-a, CPLR 3016(b), CPLR 3211(a) (1), (3), (4), (5), (7) and (8), and SCPA 301.7 PRELIMINARY STATEMENT Insofar as the Petition’ asserts causes of action against the TR Entities it is subject to dismissal pursuant to CPLR 3211 for myriad reasons. First, the Petition was never properly served.",
"See CPLR. 311, 311-a. Second, the applicable three-year statute of limitations to certain claims has not been tolled because Dalia did not serve process on the TR Entities within 120 days after the filing of the Petition. See SCPA 301(a). Third, the Petition fails to state a claim as to the aiding and abetting breach of fiduciary duty and tortious interference with contract claims because, among other reasons, Dalia has not (and cannot) sufficiently allege necessary elements of each of the claims — including without limitation, that the TR Entities actually knew of and knowingly participated in the alleged breach. Fourth, the Petition fails as to the remaining There is no existing corporation known as Trans-Resources, Inc. It was converted into Trans-Resources LLC in June 2013, and is a limited liability company created under the laws of Delaware, and has its principal offices in Florida.",
"(See Affidavit of Mark S. Hirsch in Support of Motion to Dismiss at 5, cited herein as \"Hirsch Aff.\"). Because the TR Entities are objecting to jurisdiction under CPLR 3211(8), their limited appearance by way of this motion is not a waiver of service or a waiver of any challenge to jurisdiction, and is not a formal appearance for all purposes. See CPLR 320(b). A copy of the Petition is attached as Exhibit A to the Affirmation of John Boyle filed in Support of the TR Entities’ Motion to Dismiss submitted herewith. Copies of other documents relied upon in the Petition and other documents that the Court may consider are similarly attached as exhibits to the Boyle Affirmation. The exhibits to the Boyle Affirmation are cited herein as \"Boyle Aff., Ex. _\". Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 8 of 34 claims of turnover and money had and received because Dalia has admitted that the TR Entities have not received and are not holding any money from the Orly Genger 1993 Trust.",
"And finally, the claims in the Petition must be dismissed under principles of res judicata because, as admitted in the Petition, Dalia, as trustee of the Orly Genger 1993 Trust, stipulated to a dismissal with prejudice of all claims against the TR Entities concerning ownership of any Trans-Resources shares that also were resolved by the Settlement Agreement, and Dalia could have (and, if she ever intended to, should have) asserted but failed to assert the claims that underlie her Petition in a prior proceeding. Before turning to the allegations (and the insufficiency thereof) in the Petition, the sage reflections of New York Supreme Court Justice Cooper, who recently presided over a Genger family dispute, are noteworthy. In that proceeding, Justice Cooper detailed what has been called the \"Genger family's litigation saga.\" Citing his own Westlaw search he observed that: the Genger's lawsuits against each other have resulted in almost 40 reported decisions from the New York State Supreme Court and the Federal District Court for the Southern District of New York. Of the state court decisions, at least 10 have been from the Appellate Division, First Department.",
"There has also been extensive litigation in the Delaware state courts, as well as counties; unpublished decisions and orders from trial judges in the matrimonial and IAS parts of this court. Genger v. Genger, No. 302436/2002, Decision and Order at 2 (Sup. Ct. N.Y. County June 3, 2016) (A copy of Justice Cooper decision is attached as Ex. B to the Boyle Aff.). Justice Cooper further noted that the \"bitter and seemingly endless battle\" pits the mother Dalia and the son Sagi against the father Arie and the daughter Orly, and that the family has “employed a small army of lawyers to fight over the pieces of the family pie and, it seems, to make each other's lives as miserable as possible.\" (Boyle Aff., Ex.",
"B at 3 (quoting Genger v. Genger, 76 F. Supp. 3d 488, 491 (S.D.N.Y. 2015), affd, 663 F. App'x 44 (2d Cir. 2016)). 2 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 9 of 34 In this regard, Justice Cooper rightly commented that the Genger cases seem to be more about \"a dysfunctional family where each member is intent on inflicting as much pain as possible on his or her ex-spouse, parent, child or sibling,\" than about the merits of any claim. (Boyle Aff., Ex.",
"B at 3-4). Recognizing that it is the Genger's right to make each other \"as miserable as they want,\" the Genger's use of the New York Court's as their weapon of choice has consequences beyond the Genger family: Litigation like the type the Genger family members have engaged in over the last decade — litigation that knows no bounds and is brought to inflict punishment on former loved-ones as much as it is to resolve actual claims — demands a disproportionate share of already limited judicial resources. The result is that litigants who lack the resources to command a \"small army of lawyers,\" but often have claims equally or more pressing than the Genger's, find themselves receiving less time and attention from the courts than theft cases deserve. (Boyle Aff., Ex. B at 4). Justice Cooper provided some advice for future adjudicators who may find themselves tasked with the Genger litigation onslaught: ... the time for the Gengers continuing to occupy center stage in the New York court system must also end.",
"Recently, our new Chief Judge, Janet DiFiore, unveiled an initiative to curb what she described as \"troublesome\" inefficiencies in court operations. In an address to the court system's administrative judges, she stated that she wanted to \"make certain that we are putting our resources to our highest and best uses\" (New York Law Journal, March, 31, 2016 at 1, col 3). It seems obvious that continuing to give the Gengers the exorbitant amount of court time that they demand is not putting our resources to their \"highest and best uses.\" .",
". . it is this judge's hope that the parties and their children might take a step back and reflect on how destructive this path of constant litigation is, not only to them, but to the courts and the other litigants who truly need our services. If they are unable to do so, it may be incumbent on judges and court administrators to devise a method to curb what is becoming perilously close to an abuse of the judicial system. (Boyle Aff., Ex. B at 11). To the extent that the Genger family feud continues (as in this proceeding) to improperly and without any merit haul innocent third-parties, such as the TR Entities, into their litigation blitz, this practice must come to an end. As Chief Justice Strine of the Delaware Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 10 of 34 Supreme Court (then-Vice-Chancellor of the Delaware Chancery Court) found: \"the Genger family's internecine feud .. .",
"is not the [TR Entities'] problem... .\" 7R Investors LLC v. Genger, C.A. 3994-VCS, 2010 WL 2901704, at *18 (Del. Ch. July 23, 2010). As described below, the claims asserted against the TR Entities in the Petition are without any merit and/or were settled or dismissed by the voluntary actions of Dalia (as trustee of the Trust) and Orly (individually and in her capacity under the Trust) many years ago. As Justice Jaffe has noted, the \"economic consequence\" arising out of the transfers of the Trans-Resources shares that underlie the claims alleged in this Petition are the result \"of the bitter feud among the members of the Genger family, which should not be bome by [the TR Entities]... . \".",
"Genger v. Genger, No. 651089/2010, 2015 N.Y. Slip Op. 30008(U), at *12 (Sup. Ct. N.Y. County Jan. 7, 2015). Justice Jaffe further noted that the court should not extend any equity to \"needlessly prolong this litigation, especially where the [TR Entities] . . . [are] essentially an outside bystander caught up in the contentious family feud.\" Jd. at *14. These pointed admonitions should be heeded and, insofar as the Petition attempts to again drag the TR Entities back into the Genger family's courtroom combat, the Petition should be dismissed. RELEVANT FACTUAL BACKGROUND This proceeding is purportedly brought on behalf of the Orly Genger 1993 Trust (the \"Trust\") by Dalia Genger (Orly's mother) as trustee.",
"Dalia filed her Petition on June 14, 2016. She commenced this new proceeding despite that, at least since June 22, 2009, Orly has sought in this Court to remove Dalia as trustee. On June 21, 2017, this Court denied Dalia's motion to dismiss Orly's petition to have her removed, noting that Orly's allegations \"raise significant issues about whether Dalia's efforts as trustee have been calculated to benefit herself and others at the expense of the Orly Trust in violation of her fiduciary duty and whether she Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 11 of 34 poses an ongoing threat to the assets of the Orly Trust.\"",
"Jn re Orly Genger, No. 2008-0017/B, Decision at 12, dated June 21, 2017 (A copy is attached as Ex. C to the Boyle Aff.). While that proceeding has been pending, the TR Entities have been subjected to several litigations with the Genger family over who is or was the legal and beneficial owner of certain shares of Trans-Resources, Inc., a fertilizer and specialty chemicals company. Ultimately, following several trips to and dispositive rulings and orders entered by the Delaware Chancery Court, the Delaware Supreme Court, the New York Supreme Court, the Appellate Division, First Department and the United States District Court for the Southern District of New York, and stipulations, settlements, and voluntary dismissals entered into with and/or by various persons, it has been conclusively determined that the TR Entities are the sole and only lawful and beneficial owners of all Trans-Resources shares. Discussed below are some of the proceedings, rulings, and other resolutions that are relevant to the Petition.",
"The New York Action In July 2010, Arie Genger and others, including his daughter Orly, commenced an action against the TR Entities and others. See Genger v. Genger, 38 Misc. 3d 1213(A), 2013 WL 221485, at *3 (Sup. Ct. N.Y. County Jan. 3, 2013). In that action, Orly, acting individually and on behalf of the Trust, asserted a variety of causes of action against the TR Entities, Dalia (her mother and the putative trustee of the Trust), and others. See id at *1. The TR Entities, Dalia and others not relevant here moved to dismiss the complaint. In a Decision and Order dated January 3, 2013, the court granted Dalia's motion to dismiss in all respects, and granted in part and denied in part the TR Entities’ motion to dismiss. See id at *20-*21.",
"On July 1, 2013, the court \"so ordered\" and entered a Stipulation of Discontinuance with Prejudice that, among other things, dismissed all claims against the TR Entities brought by Orly, both individually and as beneficiary of the Trust (the \"NY Dismissal with Prejudice\"). (Boyle Aff., Ex. D). 5 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 12 of 34 Prior to entry of that order, on June 16, 2013, the AG Group, consisting of Arie Genger, Arnold and David Broser, and Orly (individually and as beneficiary of the Trust), and the TR Entities entered into a settlement agreement (the \"Settlement Agreement\") that settled all claims between and among the TR Entities and the AG Group. (See Boyle Aff., Ex.",
"E; see also Ex. A [Petition] at J] 14-16)). It was in reliance upon the prior determination of the court that Orly, as beneficiary, was authorized to act on behalf of the Trust, that the TR Entities, Orly (both individually and as beneficiary of the Trust), and the other parties entered into the Settlement Agreement and into the NY Dismissal with Prejudice. Indeed, the NY Dismissal with Prejudice was \"so ordered\" by the court and expressly notes that Orly was acting \"individually and as beneficiary of\" the Trust.",
"(Boyle Aff., Ex. E at 1). Moreover, Dalia acknowledges that, pursuant to court rulings, Orly had legal standing to represent the Trust. (See Boyle Aff., Ex. A [Petition] at J] 9-11). The Settlement Agreement between the TR Entities and the AG Group provides that the AG group will receive up to $35 million, less amounts already held in escrow and subject to setoff, (the \"Settlement Proceeds\"), in return for a full release of claims against the TR Entities, including a general release by Orly, both as an individual and as beneficiary of the Trust, and a declaration that the TR Entities own \"all right, title and interest (beneficially, of record, and otherwise)\" to any Trans-Resources shares. (See Boyle Aff., Ex. E at J 2-4). The Delaware Action On October 4, 2011, Dalia, as trustee of the Trust, filed an action in the Delaware Court of Chancery against the TR Entities and others seeking a determination as to the beneficial ownership of the so-called Orly Trust Shares — i.e., the Trans-Resources shares that the Trust claimed to beneficially own.",
"See Genger v. TR Investors, LLC, C.A. No. 6906-CS (Del. Ch. Ct.). On August 30, 2013, after the NY Dismissal with Prejudice was entered, Dalia, as trustee of the 6 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 13 of 34 Trust, agreed to entry of a Stipulation and Proposed Order of Dismissal (the \"Delaware Dismissal\"), which ordered that the TR Entities were the record and beneficial owners of the Trans-Resources shares. (See Boyle Aff., Ex. F at J 2 (\"[The TR Entities] owns, for all purposes, all right, title and interest (beneficially, of record and otherwise) to all authorized and issued shares of Trans-Resources)). The Delaware Dismissal also dismissed with prejudice all of Dalia's claims against the TR Entities. (See Boyle Aff., Ex. F at J 4 (\"The claims brought on behalf of the Orly Genger 1993 Trust by the Trustee of the Orly Trust against the [TR Entities] are dismissed with prejudice... . \").",
"Before agreeing to dismiss all of the Trust's claims with prejudice, however, Dalia made clear to the Delaware court that she was aware of the Settlement Agreement, and that the TR Entities were willing to produce it to her (should the court direct them to do so) to pursue claims. (See Boyle Aff., Ex. G). Rather than pursue those claims, however, Dalia decided to stipulate to the Delaware Dismissal (based upon Orly's wishes) and to dismiss her clams with prejudice without even reviewing the Settlement Agreement. And so, through both actions — the New York Action and the Delaware Action — the Trust had two opportunities to bring any and all claims that it could against the TR Entities. Nevertheless, the Trust — through both its primary beneficiary (Orly in the New York Action) and its trustee (Dalia in the Delaware Action) — dismissed all claims with prejudice rather than litigating. Dalia's Efforts to Step into Orly's Shoes Approximately one year after she stipulated to the Delaware Dismissal, and having previously opted to seek dismissal of the New York claims rather than remain involved in any capacity in that action, Dalia, as trustee to the Trust, made an about face and moved to substitute in the New York Action for the purpose of asserting claims on behalf of the Trust against the TR Entities and others. That motion was held in abeyance pending the outcome, in 7 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 14 of 34 this Court, of Orly's petition to remove Dalia as trustee. (See Boyle Aff., Ex.",
"A at § 26). While Dalia's motion was pending, the parties in the New York Action then sought to have the court enter a second order reflecting complete dismissal with prejudice of claims brought by Orly, which it did on November 25, 2014. (See Boyle Aff., Ex. H). Dalia, as trustee of the Trust, never raised any objection to the entry of that dismissal with prejudice, notwithstanding her pending motion to substitute in that action for Orly. Despite failing to raise any objection to the court's entry of that order, Dalia appealed the dismissal and specifically argued that she should be permitted to pursue the Trust's claims that the Settlement Proceeds paid under the Settlement Agreement belonged to the Trust. The First Department denied her appeal and instead held that, because Dalia failed to object to the dismissal in the first place, she was foreclosed from raising the issues she tried to raise below —1.e., that the Trust is entitled to the Settlement Proceeds and the very same claims she belatedly asserts in the Petition. Specifically the First Department ruled that: Defendant Dalia Genger, as Trustee for the Orly Genger 1993 Trust (Orly Trust), failed to articulate any objection to the court's entry of the November 25, 2014 order dismissing plaintiff Orly Trust's breach of fiduciary duty and unjust enrichment claims against certain defendants, and her claim is not properly before this Court .",
". . In any case, that order did not dismiss any claims; rather, it recognized that all claims had previously been dismissed or discontinued by prior court orders, dismissed the complaint, and severed other viable third party claims, cross claims, and counterclaims unrelated to the Orly Trust. Genger v. Genger, 144 A.D.3d 581, 581, 41 N.Y.S.3d 414, 414-15 (1st Dep't 2016). ARGUMENT I. STANDARD OF REVIEW When a motion to dismiss is asserted under CPLR 3211, the court is not required to accept factual allegations that are contradicted by documentary evidence or legal conclusions Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 15 of 34 that are unsupported in the face of undisputed facts. * See Zanett Lombardier, Ltd. v. Maslow, 29 A.D.3d 495, 495, 815 N.Y.S.2d 547, 547 (1st Dep't 2006).",
"For example, dismissal pursuant to CPLR 3211(a)(1) is warranted where the documentary evidence definitively disposes of plaintiff's claim. See Bronxville Knolls, Inc. v. Webster Town Ctr., 221 A.D.2d 248, 248, 634 N.Y.S.2d 62, 63 (1st Dep't 1995). Further, where, as here, the claims allege a breach of fiduciary duty, the circumstances constituting the breach must be pleaded in detail. See CPLR 3016(b); Berardi v. Berardi, 108 A.D.3d 406, 407, 969 N.Y.S.2d 444, 446 (1st Dep't 2013). And finally, CPLR 3211(a)(5) provides for dismissal where the cause of action may not be maintained because of collateral estoppel, res judicata, or statute of limitations. See CPLR 3211(a)(5). Regardless, the Court need not reach the CPLR 3211 arguments since, as established below, the Court lacks jurisdiction over the TR Entities and the claims raised in the Petition are time-barred. See CPLR 3211(a)(8); CPLR 213, 214. I. THE COURT LACKS JURISDICTION OVER THE TR ENTITIES BECAUSE DALIA FAILED TO PROPERLY SERVE THEM Dismissal of the Petition is required because Dalia has not served the necessary citations on any of the TR Entities.",
"Although Dalia attempted service on January 5, 2018 — some 570 days after she filed the Petition — Dalia's belated effort was indisputably ineffective and lacked diligence. On that date, Dalia had the citations delivered to the offices of Creative World Management, Inc. (\"CWM\") at 400 Park Avenue, New York, NY. (Hirsch Aff. ] 6). Delivery 4 In reaching its determination on a motion to dismiss, a court may consider facts that are indisputable and a court may also \"consider evidentiary material submitted by a [movant] in support of a motion to dismiss a complaint pursuant to CPLR 3211(a)(7).\"",
"Basile v. Wiggs, 98 A.D.3d 640, 641, 950 N. Y.S.2d 148, 149 (2d Dep't 2012). Where a movant indisputably demonstrates through evidentiary material that an allegation was not a fact at all, a motion to dismiss may be properly granted. Jd. And where allegations consists of bare legal conclusions and inherently incredible factual claims or claims contradicted by documentary evidence they are not presumed to be true. See Biondi v. Beekman Hill House Apartment Corp., 257 A.D.2d 76, 81, 692 N.Y.S.2d 304, 308 (1st Dep't 1999) (where court considers extrinsic evidence on CPLR 3211 motion allegations of the complaint are not deemed true and the motion should be granted where the essential facts have been negated by the evidentiary matter), aff'd, 94 N.Y.2d 659 (2000).",
"Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 16 of 34 merely consisted of the process server leaving the citations with an administrative assistant. (Hirsch Aff. § 7). The citations were not personally delivered to any member, officer, or authorized agent of any of the TR Entities. Under the CPLR, such service, even if it had been timely made (which it was not), was improper and does not confer jurisdiction over any of the TR Entities.” Therefore dismissal under CPLR 3211(a)(8) is warranted. First, none of the TR Entities maintain an office at CWM, or anywhere else in New York State. (Hirsch Aff.",
"93). And, second, four of the five TR Entities are limited liability companies.° Service on a limited liability company is only effective if personally delivered to a member, manager, or other agent authorized to receive process. See CPLR 311-a. The administrative assistant with whom service was left has none of those roles, is not an employee of any of the TR Entities, and does not even work in an office maintained by the TR Entities. (Hirsch Aff. J] 6-7). Attempted service of these citations by delivery to an administrative assistant in these circumstances is improper.",
"See, e.g., Ciafone v. Queens Ctr. for Rehab. & Residential Healthcare, 126 A.D.3d 662, 663-64, 5 N.Y.S.3d 462, 464 (2d Dep't 2015) (dismissing action against LLC holding that delivery of process to someone other than person authorized under CPLR 311-a is insufficient); Stuyvesant Fuel Service Corp. v. 99-105 3rd Ave. Realty LLC, 192 Misc. 2d 104, 106, 745 N.Y.S.2d 680, 681 (N.Y. Civ. Ct. 2002) (dismissing claims against LLC because service on receptionist was improper); see also Dewey v. Hillcrest Gen. Hosp., 201 A.D.2d 609, 609-10, 607 N.Y.S.2d 967, 968 (2d Dep't 1994) (because process Under SCPA 307(S) service of process upon a corporation or a limited liability company is governed by CPLR 311 and 31 1-a.",
"TR Investors, LLC, New TR Equity I, LLC, New TR Equity II, LLC, and Trans Resources, LLC are all limited liability companies. (Hirsch Aff. § 4). 10 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 17 of 34 was neither delivered to defendant's place of business nor to one of its employees, service was improper).’ Service was also ineffective as to Glenclova Investment Co., a Cayman Islands company, and the only non-LLC among the TR Entities. Again the CPLR provides the rule: service upon a corporation is effective only if it is personally served upon an officer, director, managing agent or some other agent authorized to receive service. See CPLR 311. As noted above, the administrative assistant with whom such service was left has no such role, is not a Glenclova employee, and was not even working in an office maintained by Glenclova.",
"(See Hirsch Aff. {] 6-7). As a consequence, service upon her was improper. See McDonald v. Ames Supply Co., 22 N.Y.2d 111, 114-16, 291 N.Y.S.2d 328, 331 (1968) (delivery to building receptionist who was not corporation's employee insufficient under CPLR 311 even though receptionist later re-delivered process to a proper person), Dewey, 201 A.D.2d at 609-10, 607 N.Y.S.2d at 968 (delivery of process to executive secretary, even where secretary agreed to accept service on behalf of defendant, was ineffective under CPLR 311 where secretary was not employee of defendant and had never been authorized to accept service on behalf of defendant); Kaleidakolor, Inc. v. Edward N. Hoffman Advert. Corp., No. 25577/91, 1995 WL 17961040, at *1 (Sup. Ct. N.Y. County May 8, 1995) (service invalid on employee at office where employee was not authorized to accept service, was not employed by defendant, and office was not office of defendant). Moreover, although the Petition and citation purport to identify Trans-Resources, Inc. as a respondent, Trans- Resources, Inc. was not a party to the Settlement Agreement at issue.",
"(See Boyle Aff., Ex. E). Rather, the proper party is Trans-Resources LLC, a Delaware limited liability company. (Hirsch Aff. 5). Dalia's failure to properly name and serve Trans-Resources, LLC provides an additional ground for dismissal. See Ross v. Lan Chile Airlines, 14 A.D.3d 602, 603-04, 789 N. Y.S.2d 77, 78-79 (2d Dep't 2005) (holding that misnaming of the entity as an \"Inc.\" rather than an \"LLC\" was \"in fact no naming at all\"). 11 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 18 of 34 Ill. DISMISSAL OF THE PETITION IS REQUIRED AND THE CLAIMS AGAINST THE TR ENTITIES ARE NOW TIME-BARRED BECAUSE PROCESS WAS NOT SERVED WITHIN THE TIME PERIOD REQUIRED BY THE SCPA For a petition to be timely commenced to toll any statute of limitation, the citation must be served on the respondent within 120 days after the date on which the petition was filed.",
"SCPA 301(a). Dalia filed her Petition on June 14, 2016. As discussed above, no service was attempted within the statutory 120-day period and no proper service has been made on any of the TR Entities despite the lapse of 570 days from the date of filing. Accordingly, the Petition must be dismissed.® The practical effect of Dalia's lack of diligence in serving process and her failure to properly serve the TR Entities is that her claims of aiding and abetting breach of fiduciary duty, tortious interference with contract, and turnover are now time-barred. Dalia's aiding and abetting claim, which seeks money damages, is subject to a three-year statute of limitation.",
"CPLR 214(4); Diamond v. McDonald, 41 Misc. 3d 1235(A), 983 N.Y.S.2d 202, 2013 N.Y. Slip Op. 51988(U), at *2 (Sup. Ct. N.Y. County 2013) (\"The third cause of action for breach of fiduciary duty and the fourth cause of action for aiding and abetting breach of fiduciary duty are subject to a three year statute of limitations.\"). Similarly, because the gravamen of Dalia's tortious interference claim is an alleged economic injury, the same three-year statute of limitations applies. See MBI Int'l Holdings Inc. v. Barclays Bank PLC, 151 A.D.3d 108, 116, 57 N.Y.S.3d 119, 126 (1st Dep't 2017). And, because Dalia's tumover claim seeks the return of property, it is akin to a conversion claim and is also subject to a three-year limitations period.",
"See CPLR 213(3); In re Thomas, 28 Misc. 3d 300, 305, 901 N.Y.S.2d 493, 497 (Sur. Ct. Broome ® See Deborah Kearns, McKinney's SCPA 301, 2017 Practice Commentaries (\"If the proceeding is commenced and the citation is served such that the requisite notice is not given, jurisdiction will not be obtained. . .. Where the statute of limitations period has run, a new proceeding must be commenced under SCPA 301(b)\"). 12 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 19 of 34 County 2010). As a consequence, because Dalia's claims accrued, at the latest, on the date of the Settlement Agreement — i.e., on June 16, 2013, more than three years ago — these claims are time-barred. In addition, as a matter of equity, Dalia's failure to even attempt service within the 120-day period, coupled with an extensive 570 day delay in attempting service and failure to have properly served any of the TR Entities, militates against granting her any right to file a new petition.",
"Cf Estate of Jervis v. Teachers Ins. & Annuity Ass'n, 279 A.D.2d 367, 368, 720 N.Y.S.2d 21, 22 (ist Dep't 2001) (holding that plaintiff's failure to serve process by deadline and her \"unacceptably protracted delay measured from the expiration of the 120-day period\" to even attempt service, did not establish either \"good cause\" or \"interest of justice\" to extend time for service or to allow plaintiff to avoid the bar of the statute of limitation). IV. DALIA'S AIDING AND ABETTING BREACH OF FIDUCIARY DUTY CLAIM IS INSUFFICIENTLY PLEADED AND WITHOUT MERIT A. Dalia's Claim Fails Because Orly, as Beneficiary, Does Not Owe Any Fiduciary Duties to the Trust It is axiomatic, that a claim for aiding and abetting a breach of fiduciary duty cannot stand where no fiduciary duty exists. Dalia's claim is premised on allegation that Orly was a fiduciary to the Trust. However, Orly, as a beneficiary under the Trust, does not owe any fiduciary duties to the Trust. See Behrle v. Behrie, 150 A.D.3d 656, 657, 53 N.Y.S.3d 697, 698 (2d Dep't 2017).",
"Since Orly owed no fiduciary duties to the Trust, the Court should dismiss any claim that the TR Entities aided and abetted Orly in breaching any non-existent duties. B. Dalia's Claim Fails Because She Fails to Sufficiently Allege Knowing Participation by Any of the TR Entities To sufficiently allege a claim for aiding and abetting a breach of fiduciary duty, a plaintiff must plead, with particularity, a breach of fiduciary duty, which the defendants 13 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 20 of 34 knowingly induced or participated in the breach, and damages resulting from the breach. See Kaufman v. Cohen, 307 A.D.2d 113, 125, 760 N.Y.S.2d 157, 169 (1st Dep't 2003); Berardi, 108 A.D.3d at 407, 969 N.Y.S.2d at 446. A person only \"knowingly\" participates in a breach of fiduciary duty when he has both knowledge of the breach and when he also provides \"substantial assistance\" to the breaching party. Kaufman, 307 A.D.2d at 126, 760 N.Y.S.2d at 170.",
"Actual knowledge of the fiduciary breach is required and a plaintiff may not rely on conclusory allegations that the defendant knew or should have known about the primary breach of fiduciary duty. Jd. at 125, 760 N.Y.S.2d at 170; Berardi, 108 A.D.3d at 406, 969 N.Y.S.2d at 446 (fiduciary breach held unsustainable because allegations were \"vague and conclusory, made without any specific instances of the alleged misconduct\"). Further, mere inaction on the part of an alleged aider and abettor, who does not himself directly owe any fiduciary duties, does not constitutes substantial assistance. Kaufman, 307 A.D.2d at 126, 760 N.Y.S.2d at 170.",
"Here, all of Dalia's claims are premised on her allegation that Orly, acting as a \"de facto trustee,\" breached her fiduciary duties to the Trust because she allegedly did not properly turnover any Settlement Proceeds to the Trust, but instead purportedly used them for another purpose. Plainly, the Petition fails to satisfy the aforementioned pleading requirement. Among other infirmities, it relies, without legal citation, on the imposition of a \"de facto\" fiduciary status in an attempt to allege the existence of an underlying fiduciary duty that could be breached. This conclusory legal imputation is insufficient to allege that the TR Entities had actual knowledge that Orly owed any fiduciary duty to the Trust.’ In any event, mere knowledge ° To the extent that Dalia is alleging that Orly was a \"de facto trustee” of the Trust, and therefore owed fiduciary duties to the Trust, such status also carries with it all the duties and obligations of a trustee.",
"In this regard, the Trust Agreement expressly allows the Trustee to settle or compromise any claims. (Boyle Aff., Ex. I at Art. (cont'd) 14 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 21 of 34 of a person's fiduciary duty is insufficient as it is not equivalent to actual knowledge of that person's breach of that duty. See Lesavoy v. Lane, 304 F. Supp. 2d 520, 527 (S.D.N.Y. 2004) (applying New York law), affd in relevant part, 170 Fed. App'x. 721 (2d Cir. 2006). Moreover, nowhere in the Petition is it alleged that the TR Entities had actual knowledge as to how those Settlement Proceeds were to be applied. As set forth in the Settlement Agreement, the settlement was to settle all claims with the \"AG Group,\" which included Arie Genger, Arnold and David Broser, and also Orly in her individual capacity and \"as beneficiary of the Orly Genger 1993 Trust.\"",
"(Boyle Aff., Ex. E at 1). The Settlement Proceeds were then paid (or are to be paid) to the law firm acting \"as attorneys for the AG Group.\" (/d. at 2, { 2(b)). Itis undisputed that nowhere does the Settlement Agreement recite how the Settlement Proceeds were to be apportioned among the \"AG Group\" or otherwise disclose any facts as to how the Settlement Proceeds would be applied. Thus, the Settlement Agreement makes clear the TR Entities lacked any knowledge about whether Orly, in any capacity, would receive (or not receive) any Settlement Proceeds. Thus, outside of conclusory allegations, the Petition is devoid of any detail or facts from which it can be inferred that the TR Entities had actual knowledge of Orly's alleged breach.",
"'° Without any such detail, the cause of action must (cont'd from previous page) 11.A (7)). Most important, however, the Trust expressly limits the liability for any person who makes a payment to the Trustee. (Boyle Aff. Ex. I at Art. 11.B (No person or party dealing with the Trustees shall be bound to see the application of any money . .",
". paid by him or her to the Trustees.\")). Similarly, the EPTL provides that no person, such as the TR Entities, who in good faith transfers money to a trustee, is \"responsible for the proper application of such money.\" Thus, to the extent Dalia's relies on a position that Orly is a de facto trustee, there is no merit to any allegation that: (1) she breached any fiduciary duty by entering into the Settlement Agreement; or (2) that somehow the TR Entities aided and abetted any fiduciary breach concerning the application of the Settlement Proceeds. Dalia cannot have it both ways: either Orly is a beneficiary, and therefore there is no underlying breach of fiduciary duty, or Orly is a de facto trustee and therefore the TR Entities are protected against any aiding and abetting claim concerning their good faith payment of the Settlement Proceeds. Dalia has not advanced any allegations (nor could she) that the TR Entities were not acting in good faith when they entered into the Settlement Agreement.",
"Where, as here, a claim of a breach of fiduciary duty has been asserted, the sufficiency of any claim falls within the ambit of CPLR 3016(b), which requires that the circumstance constituting the wrong must be pleaded in (cont'd) 15 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 22 of 34 be dismissed. See Kaufman, 307 A.D.2d at 125 (affirming dismissal of plaintiff's claim for aiding and abetting breach of fiduciary duty dismissed in absence of evidence that defendant acted with actual knowledge); Lesavoy, 304 F. Supp.2d at 527 (applying NY law in dismissing an aiding and abetting claim where plaintiff pled no facts as to where, when, or how, fiduciary advised defendants of facts supporting alleged breach but instead relied on conclusory allegations). Similarly, Dalia's (conclusory) allegation that it was the complicity of the TR Entities by drafting and entering into the Settlement Agreement without which Orly could not have breached her alleged fiduciary does not demonstrate the requisite \"substantial assistance\" for aider and abettor liability. See Kaufman, 307 A.D.2d at 126; Brasseur v. Speranza, 21 A.D.3d 297, 299, 800 N.Y.S.2d 669, 671 (1st Dep't 2005). In addition, the Petition nowhere alleges in any credible manner or with the required level of specificity that there was, in fact, a breach of any duty.",
"Rather, at best, the Petition can be read to allege that there may have been a breach. Dalia's rank speculation and her effort to link that speculation and other unsupported inferences to fashion her claim fail to satisfy the CPLR's pleading requirements. And, where, as here, it is indisputable that the Settlement Agreement arose out of a negotiation by litigation adversaries to settle their disputes — even assuming that a breach of duty has been sufficiently alleged (it has not) and that the TR Entities had actual knowledge of the same (they do not) — the case law routinely rejects the use of such (cont'd from previous page) detail.",
"See, e.g., Singh v. PGA Tour, Inc., 42 Misc. 3d 1225(A), 992 N.Y.S.2d 161, 2014 N.Y. Slip Op. 50191(U), at *6-*7 (Sup. Ct. N.Y. County 2014) (\"Moreover, the First Department has held that a cause of action for breach of fiduciary duty is subject to the particularized pleading requirement of CPLR 3016(b)....\") (citing Berardi, 108 A.D.3d at 407, 969 N. Y.S.2d at 446). No such details have been pleaded. For example, the Petition does not allege in detail how the Settlement Proceeds were used, who among the AG Group actually received any of the Settlement Proceeds or how much they received, or how, specifically, the TR Entities gained actual knowledge of how the Settlement Proceeds were or were not to be used. Indeed, to this day, the TR Entities are without knowledge of any such information.",
"16 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 23 of 34 an arms-length transaction as the Settlement Agreement as grounds for aiding and abetting liability. See, e.g., In re Bear Stearns Litig., 23 Misc.3d 447, 478, 870 N.Y.S.2d 709, 739 (Sup. Ct. N.Y. County 2008) (holding that aiding and abetting claim should be dismissed where record demonstrates arms-length transaction between the parties). Thus, the fact that the TR Entities — an adversary to Orly — entered into the Settlement Agreement and paid the Settlement Proceeds cannot serve as a basis for aiding and abetting liability.\" Moreover, as the Petition alleges, in the underlying litigation that gave rise to the Settlement Agreement, the court held that Orly had the right to assert the very claims that she released in the Settlement Agreement.",
"Dalia's admission of this judicial imprimatur provides a further basis for establishing, indisputably, that the TR Entities acted appropriately and did not tortiously aid Orly in any breach by entering into a settlement with her in the very capacities the court had already approved. V. DALIA'S TORTIOUS INTERFERENCE WITH CONTRACT CLAIM IS INSUFFICIENTLY PLEADED AND WITHOUT MERIT A. Dalia Has Not Sufficiently Alleged that Any of the Trump Group Entities Knowingly and Improperly Induced a Breach In order to state a claim for tortious interference with contract the plaintiff must allege the existence of a valid contract with a third party, defendant's knowledge of that contract, defendant's intentional and improper procuring of a breach, and damages. See White Plains Coat & Apron Co. v. Cintas Corp., 8 N.Y.3d 422, 426, 835 N.Y.S.2d 530, 532 (2007). \"",
"The Petition also fails on this claim because it does not offer any specific allegations of wrongdoing as to each of the TR Entities and instead impermissibly relies on a general group pleading approach. Such allegations do not comply with the heightened pleading requirements of CPLR 3016(b) for aiding and abetting breach of fiduciary duty claims. See Grika v. McGraw, 55 Misc. 3d 1207(A), 57 N.Y.S.2d 675, N.Y. Slip Op.",
"51878(U), at *15-*16 (Sup. Ct. N.Y. County 2016). 17 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 24 of 34 For the same reasons discussed above with regard to the aiding and abetting claim, dismissal is warranted because the Petition does not sufficiently allege that the TR Entities intentionally and improperly procured any breach of contract by Orly. (See supra at heading IV). Moreover, for any interference to be tortious, the TR Entities must have acted without justification and their action must not have been incidental to a lawful purpose. See Alvord & Swift v. Stewart M. Muller Constr. Co., 46 N.Y.2d 276, 281-82, 413 N.Y.S.2d 309, 312 (1978), Torrenzano Group, LLC v. Burnham, 26 A.D.3d 242, 243 (1st Dep't 2006). As discussed above, the TR Entities as litigation adversaries to Orly, who had lost their motion to dismiss her claims in the trial court, unquestionably were justified and exercising their lawful rights when entering into the Settlement Agreement in June 2013.",
"Their payment of the Settlement Proceeds to the attorney for the AG Group was also the by-product of this lawful and arm's length settlement. Further, and as discussed above, other than the Petition's speculation that the Settlement Proceeds may have been used to pay Orly's creditors, there are no facts alleged to support this incredible claim, none alleged to support a claim that the TR Entities possibly could have known this, yet alone actually did know this, and none alleged to support any claim that the TR Entities have intentionally and improperly assisted in the same. VI.",
"DALIA'S MONEY HAD AND RECEIVED AND TURNOVER CAUSES OF ACTION CANNOT STAND To sustain a cause of action for money had and received, a plaintiff must allege and establish that the defendant received money belonging to the plaintiff, that the defendant benefitted from the receipt of that money, and that the defendant should not be permitted to retain the money. See Fesseha v. TD Waterhouse Investor Services, Inc., 193 Misc. 2d 253, 260, 747 N.Y.S.2d 676, 683 (Sup. Ct. N.Y. County 2002). This cause of action, along with the \"turnover\" cause of action, must be dismissed because Dalia has not alleged (and cannot) that the 18 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 25 of 34 TR Entities ever \"received\" or \"retained\" money purportedly belonging to the Trust. See id.",
"at 260-61, 747 N.Y.S.2d at 683. In fact, in the Petition, Dalia actually admits that none of the TR Entities received or have in their possession any of the Settlement Proceeds that she is claiming. (See Boyle Aff., Ex. 1, at {J 72-73). This admission forecloses these claims.’ VIL RES JUDICATA AND COLLATERAL ESTOPPEL BAR DALIA'S CLAIMS All of Dalia's claims against the TR Entities are subject to dismissal under the principles of res judicata. Under New York law any stipulated discontinuance with prejudice’ in a prior action bars re-litigation of not only those claims but of all other claims arising out of the same transaction that could have been asserted in a prior proceeding, even if they are now based on different theories or seeking different remedies. See O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357-58, 445 N.Y.S.2d 687, 689 (1981); Fifty CPW Tenants Corp. v. Epstein, 16 A.D.3d 292, 293, 792 N.Y.S.2d 58, 59 (1st Dep't 2005); see also Landau, P.C. v. LaRossa, Mitchell & Ross, 11 N.Y.3d 8, 12-13, 862 N.Y.S.2d 316, 319 (2008) (\"[O]nce a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.\")",
"(quotations omitted); In re Estate of Hunter, 4 N.Y .3d 260, 269, 794 N.Y.S.2d 286, 291 (2005) (noting the doctrine applies \"not only to claims actually litigated but also to claims that could have been raised in the prior litigation\"). Thus, \"a claim will be barred by the prior adjudication of a As the Petition notes, $17.3 million of the Settlement Proceeds has already been paid out to the AG Group. See Boyle Aff., Ex.",
"A at 922). The remaining $15 million in Settlement Proceeds is only to be paid subject to the satisfaction of certain conditions, which have not yet occurred, and is also subject to set off. (See id. at Ff 22- 23; see also Boyle Aff., Ex. E at ¥ 3). A stipulation of discontinuance with prejudice in an action in another forum has the same res judicata preclusive effect as a judgment on the merits. See Gropper v. 200 Fifth Owner LLC, 151 A.D.3d 635, 635, 58 N.Y.S.2d 42, 43 (1st Dep't 2017).",
"19 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 26 of 34 different claim arising out of the same ‘factual grouping! even if the claims involve 'materially different elements of proof’ and even if the claims 'would call for different measures of liability or different kinds of relief.'\" Fifty CPW Tenants Corp., 16 A.D.3d at 293 (citations omitted). Moreover, \"[t]he doctrine of res judicata, or claim preclusion, is designed to 'relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.\" Jns. Co. of State of Pennsylvania v. HSBC Bank USA, 10 N.Y .3d 32, 38, 852 N.Y.S.2d 812, 815 (2008) (citation omitted).",
"One of the tests for determining what constitutes the same cause of action has been expressed as whether a different judgment in the second action would impair or destroy any rights or interests established in the prior actions. See Schuykill Fuel Corp. v. B. & C. Nieberg Realty Corp., 250 N.Y. 304, 306-07 (1929); see also Greenway Med. Supply Corp. v. Am. Transit Ins. Co., 58 Misc. 3d 147(A) (N.Y. App. Term. 2018) (affirming res judicata dismissal where \"any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the judgment in the [prior action]\") (citing Schuylkill Fuel Corp., 250 NY at 306-07).",
"Here, the fundamental gravamen of the Petition concerns the beneficial ownership of the Trans-Resources shares and any concomitant right to monetize that ownership interest, whatever it may have been. But, as described above, the issues of beneficial ownership of all Trans-Resources shares were finally and fully resolved with Orly, both in her individual capacity and in her capacity of beneficiary of the Trust, on June 16, 2013. And then, on August 30, 2013, in the Delaware Dismissal, Dalia in her role as trustee to the Trust and with knowledge of the Settlement Agreement and after voluntarily foregoing an opportunity to review the Settlement Agreement (see Boyle Aff., Ex.",
"G), also finally and fully resolved all issues related to the 20 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 27 of 34 ownership of the Trans-Resources shares in the Delaware Action. (Boyle Aff., Ex. F). To the extent that Dalia now attempts to enforce the Trust's rights or entitlements as a beneficial owner of the Trans-Resources shares by, among other things, seeking to monetize that interest by taking possession of the Settlement Proceeds, the Delaware Dismissal (with Dalia's consent) bars any such relief. In fact, Dalia has notably represented to the Supreme Court (in support of a motion on which she prevailed) that the Delaware Action was designed to provide a “full adjudication\" of issues relating to the Trusts right to the Trans-Resources shares that underlay the Settlement Agreement. (See Boyle Aff., Ex.J at (Further, it is important to note that an action is pending in the Delaware Chancery Court to declare that the Orly Trust is the beneficial ownership [stet.] of the TRI, allowing for a full adjudication of beneficial ownership of the TRI shares.",
"Dalia Genger v. TR Investors, LLC et. al. (Del. Ch. 6906-CS. filed Oct. 4, 2011)\") (emphasis added)). As there is no dispute that in the Delaware Action Dalia stipulated to a dismissal with prejudice of all claims relating to the ownership of the Trans-Resources shares at a time when she was aware of the Settlement Agreement, and, as such, could have raised any claims relating to that settlement (including those purportedly brought here) in the Delaware Action, she is now precluded from raising them in this proceeding. See Gropper v. 200 Fifth Owner LLC, 151 A.D.3d 635, 636, 58 N.Y.S.2d 42, 43 (1st Dep't 2017); see also In re Hunter, 4 N.Y.3d at 270-71, 794. N.Y.S.2d at 292 (confirming res judicata bar to claims that were discernible from document filed in prior proceedings). A separate basis for res judicata as to the Trust arises out of the First Department's decision in Genger v. Genger, 144 A.D.3d 581, 41 N.Y.S.3d 414 (1st Dep't 2016).",
"In that 21 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 28 of 34 decision, the First Department expressly rejected Dalia's attempt to assert the same claim she is making in this Petition: that the Settlement Proceeds belong to the Trust. (See Boyle Aff., Ex. L at 1 (requesting an order directing the Settlement Proceeds be paid into court because \"some or all of the settlement proceeds\" belong to the Trust\")). The First Department did so because it concluded that \"all [Orly Trust] claims had previously been dismissed or discontinued by prior court orders.\" Genger, 144 A.D.3d at 581, 41 N.Y.S.3d at 415. Because, as the First Department correctly noted, those claims were previously \"dismissed or discontinued,\" res judicata precludes their assertion here. VIII. SHOULD THE COURT NOT DISMISS THE PETITION FOR ANY OF THE ABOVE REASONS IT SHOULD BE STAYED OR DISMISSED It is undisputed that Dalia's standing to assert these claims derives from her status as trustee.",
"At least since June 2009, however, a proceeding brought by Orly to remove Dalia as trustee has been pending in this Court. In fact, on June 21, 2017, this Court denied Dalia's motion to dismiss that proceeding, noting that Orly's allegations \"raise significant issues about whether Dalia's efforts as trustee have been calculated to benefit herself and others at the expense of the Orly Trust in violation of her fiduciary duty and whether she poses an ongoing threat to the assets of the Orly Trust.\" Jn re Orly Genger, No. 2008-0017/B, Decision at 12 (Boyle Aff., Ex.",
"C). Thus, should this proceeding not be dismissed, it should be stayed pending resolution of the threshold issue of whether Dalia is a proper trustee of the Trust. See CPLR 2201. Moreover, Dalia, in a cross-petition she filed and served many months ago, asserted identical claims of breach of fiduciary duty and turnover solely against Orly concerning the Settlement Proceeds and on these very same facts. (See Boyle Aff., Ex. K). A motion to dismiss that cross-petition filed by Orly (and joined by the guardian ad litem) is currently sub 22 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 29 of 34 judice before this Court. The existence of that proceeding provides yet another reason for the Court to exercise its discretion to dismiss or stay any proceedings on this Petition.’ CONCLUSION For the foregoing reasons, the TR Entities respectfully request that this Court dismiss the Petition and all claims therein as against the TR Entities, and grant the TR Entities such other relief as may be just and proper. Dated: New York, New York Respectfully submitted, February 6, 2018 SKADDEN, ARPS, SLATE, Cee ne LLP Lh [Sor Ve 7 john.boyle@skadden.com Attorneys for Glenclova Investment Co., TR Investors, LLC, New TR Equity I, LLC, New TR Equity IT, LLC, and Trans-Resources LIC.",
"‘4 The existence of the already pending action also provides a basis for dismissal under CPLR 3211(a)(4), which allows a party to move for judgment dismissing one or more causes of action asserted against it on the ground that \"there is another action pending between the same parties for the same cause of action in a court of any state or the United States; the court need not dismiss upon this ground but may make such order as justice requires.\" The subject of the two actions need not be identical to invoke CPLR 3211(a)(4); rather, \"[t]he critical element is that both suits arise out of the same subject matter or series of alleged wrongs.\" Syncora Guarantee Inc. v. J.P. Morgan Sec.",
"LLC, 110 A.D.3d 87, 96, 970 N.Y.S.2d 526, 533 (1st Dep't 2013). CPLR 3211(a)(4) \"vests a court with broad discretion in considering whether to dismiss an action.\" Whitney v. Whitney, 57 N.Y.2d 731, 732, 454 N.Y.S.2d 977, 977 (1982). 23 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 30 of 34 SURROGATE'S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In The Matter of DALIA GENGER, Trustee of File No. 2008-0017/E the ORLY GENGER 1993 TRUST, Hon. Nora S. Anderson Petitioner, - against - ORLY GENGER, ARIE GENGER, GLENCLOVA INVESTMENT COMPANY, TR INVESTORS, LLC, NEW TREQUITY TI, : LLC, NEW TR EQUITY II, LLC, TRANS- RESOURCES, INC., ARNOLD BROSER, DAVID BROSER, JOHN DOES 1-20, and JANE DOES 1-20, Respondents. STATE OF NEW YORK ) COUNTY OF NEW YORK Julie M. Thaxton, being duly sworn, deposes and says: 1. That deponent is over eighteen years of age, not a party to the action and is employed by Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, NY 10036.",
"2. That on the 6th day of February 2018, deponent served a true copy of the e Notice of Motion, e Affirmation of John Boyle in Support of the TR Entities' Motion to Dismiss the Petition For Turnover of Trust Property and Other Relief with the annexed Exhibits A-L, e Affirmation of Mark S. Hirsch in Support of Motion to Dismiss and Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 31 of 34 e Memorandum of Law in Support of the TR Entities' Motion to Dismiss the Petition for Turnover of Trust Property and Other Relief Filed on June 14, 2016, by Dalia Genger as Trustee of the Orly Genger 1993 Trust by Federal Express, overnight delivery upon: Judith Lisa Bachman, Esq. 254 S. Main Street, Suite 306 New City, New York 10956 Kelley Drye & Warren LLP John Dellaportas 101 Park Avenue New York, NY 10178 Kasowitz Benson Torres LLP Michael Paul Bowen 1633 Broadway New York, NY 10019 Steven Riker, Esq. One Grand Central Place, 46th Floor New York, NY 10165 Be M Dhan Julie M. Thaxton Sworn to before me this 6th sds: 2018. Matt ew Konig NG Notary Public, State of New York Reg. No. 01K06211943 Qualified in New York County Commission Expires Sept. 23, 2021 Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 32 of 34 o00€-Sez (Z12) 9€001 MHOA MAN ‘MYOA M3N ZYVNDS SAWIL YNOA ‘O11 SAOUNOSAY-SNVYL Pue ‘OT ‘MALINDA UL MAN ‘OTT TALINDS UL MAN ‘OTT ‘SYOLSAANI YL “OS LNSWLSSANI WAOTONATS YOd SASNYOLLY d171W014 9 YSHOVaW ‘SLV1S ‘sduly ‘NaqqvHS LSM.",
"£661 WAONASD ATAO AHL AO FWALSNAL SV AADNAD VITVG Ad ‘9107 “pl ANNE NO G14 ATITIN UAHLO GNV ALWAMOUd LSM dO WAAONANL AON NOLLILAd AHL SSINSIC OL NOILOW sSSALLLLNG UL AHL AO LYOddNS NI MV'T 4O WNGNVAOWAN ‘s}uapuodsey ‘0Z-- S30 ANVP pue ‘Oz-b S300 NHOfP ‘YsaSOUd GIAVO ‘YSSONE GIONNV “ON! ‘SSOYNOSSU-SNVUL ‘OTT ‘HH ALINOA YL MAN (O11 ‘| ALINOA YL MSN ‘O71 ‘SYOLSSAANI YL ‘ANVdWOO LNAWLSAANI VAOTONATS 'YS9DN39 SIYV \"YSODNSD ATO -jsureBe- ‘JQUOHNIAd ‘LSNYL €66l YSONAO ATHO Ou} JO 99}S8NY “Y3IONAO VITVC JO JaneW Ou} U] MYOA MAN JO ALNNOD MYOA MAN AO ALVLS SHL SO LYNOD SALVOONYNS 3/ZL00-800¢ ‘ON Alls Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 33 of 34 SURROGATE'S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In The Matter of DALIA GENGER, Trustee of File No. 2008-0017/E the ORLY GENGER 1993 TRUST, Hon. Nora S. Anderson Petitioner, - against - ORLY GENGER, ARIE GENGER, GLENCLOVA INVESTMENT COMPANY, TR INVESTORS, LLC, NEW TR EQUITY I, LLC, NEW TR EQUITY II, LLC, TRANS- RESOURCES, INC., ARNOLD BROSER, DAVID BROSER, JOHN DOES 1-20, and JANE DOES 1-20, Respondents. STATE OF NEW YORK ) ) ss.",
": COUNTY OF NEW YORK _) Julie M. Thaxton, being duly sworn, deposes and says: 1. That deponent is over eighteen years of age, not a party to the action and is employed by Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, NY 10036. 2. That on the 6th day of February 2018, deponent served a true copy of the e Notice of Motion, e Affirmation of John Boyle in Support of the TR Entities' Motion to Dismiss the Petition For Turnover of Trust Property and Other Relief with the annexed Exhibits A-L, e Affirmation of Mark S. Hirsch in Support of Motion to Dismiss and Case 1:19-cv-09365-AKH Document 1-14 Filed 10/09/19 Page 34 of 34 e Memorandum of Law in Support of the TR Entities’ Motion to Dismiss the Petition for Turnover of Trust Property and Other Relief Filed on June 14, 2016, by Dalia Genger as Trustee of the Orly Genger 1993 Trust by Federal Express, overnight delivery upon: Arnold Broser 5371 Fisher Island Drive Miami Beach, FL 33109 Arie Genger 17001 Collins Avenue Sunny Isles Beach, FL 33160 Qube M- Shain f Julie M. Thaxton Sworn to before me this 6th day oF February 2018. , CZ Notary Public, State of New York Reg.",
"No. 01K06211943 Qualified in New York County Commission Expires Sept. 23, 2021"
]
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 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):April 9, 2015 Orchid Island Capital, Inc. (Exact Name of Registrant as Specified in Charter) Maryland 001-35236 27-3269228 (State or Other Jurisdictionof Incorporation) (CommissionFile Number) (IRS EmployerIdentification No.) 3305 Flamingo Drive, Vero Beach, Florida 32963 (Address of Principal Executive Offices) (Zip Code) Registrant’s telephone number, including area code (772) 231-1400 N/A (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: ¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) ¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) ¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) ¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) ITEM 2.02. RESULTS OF OPERATIONS AND FINANCIAL CONDITION. On April 9, 2015, Orchid Island Capital, Inc. (the “Company”) announced its preliminary book value of $12.87 per share as of March 31, 2015 and certain details of its MBS portfolio as of March 31, 2015. These figures and the estimated book value per share are preliminary, subject to change, and subject to review by the Company's independent registered public accounting firm. A copy of the Company’s press release announcing the dividend and the other information regarding the Company is attached hereto as Exhibit 99.1 and incorporated herein by this reference. ITEM 8.01.OTHER EVENTS. On April 9, 2015, Orchid Island Capital, Inc. (the “Company”) announced that on April 9, 2015 the Board of Directors of the Company declared a dividend for the month of April 2015 of $0.18 per share to be paid on April 30, 2015 to holders of record on April 27, 2015 with an ex-dividend date of April 23, 2015.A copy of the Company’s press release announcing the dividend and the other information regarding the Company is attached hereto as Exhibit 99.1 and incorporated herein by this reference. Caution About Forward-Looking Statements. This Current Report on Form 8-K contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 and other federal securities laws. These forward looking statements are based upon the Company’s present expectations, but the Company cannot assure you that actual results will not vary from the expectations contained in the forward-looking statements. Investors should not place undue reliance upon forward looking statements. For further discussion of the factors that could affect outcomes, please refer to the "Risk Factors" section of the Company's Form 10-K for the year ended December 31, 2014.All forward-looking statements speak only as of the date on which they are made. New risks and uncertainties arise over time, and it is not possible to predict those events or how they may affect the Company. Except as required by law, the Company is not obligated to, and does not intend to, update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. ITEM 9.01FINANCIAL STATEMENTS AND EXHIBITS. (d)Exhibits Exhibit No. Description Press Release dated April 9, 2015 SIGNATURES 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. Date: April 9, 2015 ORCHID ISLAND CAPITAL, INC. By: /s/ Robert E. Cauley Robert E. Cauley Chairman and Chief Executive Officer INDEX TO EXHIBITS Exhibit No. Description Press Release dated April 9, 2015 | [
"UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 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):April 9, 2015 Orchid Island Capital, Inc. (Exact Name of Registrant as Specified in Charter) Maryland 001-35236 27-3269228 (State or Other Jurisdictionof Incorporation) (CommissionFile Number) (IRS EmployerIdentification No.) 3305 Flamingo Drive, Vero Beach, Florida 32963 (Address of Principal Executive Offices) (Zip Code) Registrant’s telephone number, including area code (772) 231-1400 N/A (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: ¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) ¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) ¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) ¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) ITEM 2.02.",
"RESULTS OF OPERATIONS AND FINANCIAL CONDITION. On April 9, 2015, Orchid Island Capital, Inc. (the “Company”) announced its preliminary book value of $12.87 per share as of March 31, 2015 and certain details of its MBS portfolio as of March 31, 2015. These figures and the estimated book value per share are preliminary, subject to change, and subject to review by the Company's independent registered public accounting firm. A copy of the Company’s press release announcing the dividend and the other information regarding the Company is attached hereto as Exhibit 99.1 and incorporated herein by this reference. ITEM 8.01.OTHER EVENTS. On April 9, 2015, Orchid Island Capital, Inc. (the “Company”) announced that on April 9, 2015 the Board of Directors of the Company declared a dividend for the month of April 2015 of $0.18 per share to be paid on April 30, 2015 to holders of record on April 27, 2015 with an ex-dividend date of April 23, 2015.A copy of the Company’s press release announcing the dividend and the other information regarding the Company is attached hereto as Exhibit 99.1 and incorporated herein by this reference. Caution About Forward-Looking Statements.",
"This Current Report on Form 8-K contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 and other federal securities laws. These forward looking statements are based upon the Company’s present expectations, but the Company cannot assure you that actual results will not vary from the expectations contained in the forward-looking statements. Investors should not place undue reliance upon forward looking statements. For further discussion of the factors that could affect outcomes, please refer to the \"Risk Factors\" section of the Company's Form 10-K for the year ended December 31, 2014.All forward-looking statements speak only as of the date on which they are made. New risks and uncertainties arise over time, and it is not possible to predict those events or how they may affect the Company. Except as required by law, the Company is not obligated to, and does not intend to, update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.",
"ITEM 9.01FINANCIAL STATEMENTS AND EXHIBITS. (d)Exhibits Exhibit No. Description Press Release dated April 9, 2015 SIGNATURES 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. Date: April 9, 2015 ORCHID ISLAND CAPITAL, INC. By: /s/ Robert E. Cauley Robert E. Cauley Chairman and Chief Executive Officer INDEX TO EXHIBITS Exhibit No. Description Press Release dated April 9, 2015"
]
| 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 |
|
A bill of information filed on August 19, 1948, charged that the defendant, Edward Manuel, on the 11th day of August, 1948, in the Parish of Orleans "* * * committed simple burglary of the building and structure No. 3837 Washington Avenue, with intent to commit a theft therein * * *." On August 23, 1948, defendant pleaded guilty to the charge and on September 8, 1948, he was sentenced to serve a term of three years at hard labor in the state penitentiary. On September 27, 1948, counsel filed on behalf of defendant in the district court what is styled a motion to revoke and cancel *Page 1000 sentence and to set aside plea of guilty. In the motion it is alleged that defendant was without counsel when arraigned and sentenced; that on his arraignment he entered the plea of guilty through error, believing that it was to the offense of simple theft (a misdemeanor) and not to the crime of simple burglary (a felony); that no evidence was heard when the plea was entered or when he was sentenced; that he could not be guilty of simple burglary because he made no unlawful entry into the establishment allegedly burglarized; and that the court, under Article 509 of the Louisiana Code of Criminal Procedure, had the power to set aside the plea of guilty erroneously entered, to annul the sentence, and to grant defendant a new trial. A hearing on this motion was held on September 30, 1948, at which evidence was adduced, and on November 16, 1948, the trial judge denied the relief sought. Thereupon defense counsel excepted to the ruling, obtained and filed a formal bill of exceptions, and, on November 22, 1948, moved for a suspensive appeal to this court which was granted. In an assignment of errors filed here defense counsel directs attention to a number of alleged errors of law apparent on the face of the record. But we can not consider any of them for the reason that we are not permitted to entertain the appeal. *Page 1001 "No appeal lies in any criminal case, except as otherwise provided in this Code, from any order, ruling or judgment which does not finally dispose of the case. The prosecution and the defense have each the right in an appealable case to appeal from the final prejudicial judgment. "A case is finally disposed of by any judgment which dismisses the prosecution, whether before or after verdict, that grants or refuses to grant a new trial, that arrests or refuses to arrest judgment, or that imposes sentence. "The party desiring to appeal in a criminal case shall make in open court a motion for an appeal verbally or in writing, within ten judicial days after the rendition of the judgment complained of; * * *." Articles 540, 541 and 542, respectively, of Louisiana Code of Criminal Procedure. The final prejudicial judgment herein — that which finally disposed of this case — was the judgment of September 8, 1948, imposing sentence, and no motion for an appeal therefrom was made within ten judicial days after its rendition. From which it follows that this appeal, untimely taken, must be dismissed. State v. Rollins, 125 La. 297, 51 So. 204 and State v. Fowler,133 La. 972, 63 So. 486. The motion presented on behalf of defendant on September 27, 1948, from the overruling of which this appeal was taken, can not aid in giving us jurisdiction of the *Page 1002 case. It was nothing more than a motion for a new trial which should have been filed and disposed of before sentence. "Every defendant has the right to move for a new trial at any time after verdict, but such motion must be filed and disposed of before sentence." Louisiana Code of Criminal Procedure, Article 505. Our decision in State v. Hebert, 187 La. 318, 174 So. 369, 371, cited by defense counsel, lends no support to the validity of this appeal. Therein the prejudicial judgment was signed on February 16, 1937, and the appeal was not taken until March 5, 1937, more than ten days later. But in the meantime defense counsel applied to this court for writs, and they were denied on March 1, 1937, on the ground that defendant's remedy was by appeal. In overruling the State's motion to dismiss the appeal, we said: "* * * The appeal was, therefore, taken in less than ten days after the case was remanded. Under all the circumstances, the defendant cannot be charged with the delays caused by the application for writs. There is, therefore, no merit in the state's motion to dismiss the appeal on this ground." No circumstances of similar nature are presented by the instant case. For the reasons assigned the appeal is dismissed. O'NIELL, C. J., does not take part. *Page 1003 | 07-05-2016 | [
"A bill of information filed on August 19, 1948, charged that the defendant, Edward Manuel, on the 11th day of August, 1948, in the Parish of Orleans \"* * * committed simple burglary of the building and structure No. 3837 Washington Avenue, with intent to commit a theft therein * * *.\" On August 23, 1948, defendant pleaded guilty to the charge and on September 8, 1948, he was sentenced to serve a term of three years at hard labor in the state penitentiary.",
"On September 27, 1948, counsel filed on behalf of defendant in the district court what is styled a motion to revoke and cancel *Page 1000 sentence and to set aside plea of guilty. In the motion it is alleged that defendant was without counsel when arraigned and sentenced; that on his arraignment he entered the plea of guilty through error, believing that it was to the offense of simple theft (a misdemeanor) and not to the crime of simple burglary (a felony); that no evidence was heard when the plea was entered or when he was sentenced; that he could not be guilty of simple burglary because he made no unlawful entry into the establishment allegedly burglarized; and that the court, under Article 509 of the Louisiana Code of Criminal Procedure, had the power to set aside the plea of guilty erroneously entered, to annul the sentence, and to grant defendant a new trial. A hearing on this motion was held on September 30, 1948, at which evidence was adduced, and on November 16, 1948, the trial judge denied the relief sought. Thereupon defense counsel excepted to the ruling, obtained and filed a formal bill of exceptions, and, on November 22, 1948, moved for a suspensive appeal to this court which was granted.",
"In an assignment of errors filed here defense counsel directs attention to a number of alleged errors of law apparent on the face of the record. But we can not consider any of them for the reason that we are not permitted to entertain the appeal. *Page 1001 \"No appeal lies in any criminal case, except as otherwise provided in this Code, from any order, ruling or judgment which does not finally dispose of the case. The prosecution and the defense have each the right in an appealable case to appeal from the final prejudicial judgment. \"A case is finally disposed of by any judgment which dismisses the prosecution, whether before or after verdict, that grants or refuses to grant a new trial, that arrests or refuses to arrest judgment, or that imposes sentence. \"The party desiring to appeal in a criminal case shall make in open court a motion for an appeal verbally or in writing, within ten judicial days after the rendition of the judgment complained of; * * *.\" Articles 540, 541 and 542, respectively, of Louisiana Code of Criminal Procedure. The final prejudicial judgment herein — that which finally disposed of this case — was the judgment of September 8, 1948, imposing sentence, and no motion for an appeal therefrom was made within ten judicial days after its rendition.",
"From which it follows that this appeal, untimely taken, must be dismissed. State v. Rollins, 125 La. 297, 51 So. 204 and State v. Fowler,133 La. 972, 63 So. 486. The motion presented on behalf of defendant on September 27, 1948, from the overruling of which this appeal was taken, can not aid in giving us jurisdiction of the *Page 1002 case. It was nothing more than a motion for a new trial which should have been filed and disposed of before sentence. \"Every defendant has the right to move for a new trial at any time after verdict, but such motion must be filed and disposed of before sentence.\" Louisiana Code of Criminal Procedure, Article 505.",
"Our decision in State v. Hebert, 187 La. 318, 174 So. 369, 371, cited by defense counsel, lends no support to the validity of this appeal. Therein the prejudicial judgment was signed on February 16, 1937, and the appeal was not taken until March 5, 1937, more than ten days later. But in the meantime defense counsel applied to this court for writs, and they were denied on March 1, 1937, on the ground that defendant's remedy was by appeal. In overruling the State's motion to dismiss the appeal, we said: \"* * * The appeal was, therefore, taken in less than ten days after the case was remanded. Under all the circumstances, the defendant cannot be charged with the delays caused by the application for writs.",
"There is, therefore, no merit in the state's motion to dismiss the appeal on this ground.\" No circumstances of similar nature are presented by the instant case. For the reasons assigned the appeal is dismissed. O'NIELL, C. J., does not take part. *Page 1003"
]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 05-2192
LINDA A. WILLIAMS,
Plaintiff - Appellant,
versus
GIANT FOOD, INCORPORATED; ROYAL AHOLD; JIM FRAZETTI, In his official capacity as Vice- President of Store Operations, Giant Food, Incorporated; COLLEEN MCDANIEL, In her official capacity as District Manager, Giant Food, Incorporated,
Defendants - Appellees.
Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CA- 01-1314-8-PJM)
Submitted: November 9, 2006 Decided: January 10, 2007
Before WIDENER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion. Judge Widener wrote an opinion concurring in the result.
Jo Ann P. Myles, Largo, Maryland, for Appellant. Connie N. Bertram, WINSTON & STRAWN, L.L.P., Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Linda A. Williams filed this action against her former
employer, Giant Food Inc., alleging employment discrimination,
retaliation, and constructive discharge. The district court
dismissed Williams’ initial complaint but granted her leave to file
an amended complaint alleging failure-to-promote claims under Title
VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e et seq.)
and 42 U.S.C. § 1981. Following limited discovery, the district
court granted summary judgment to Giant Food on the
failure-to-promote claims, and Williams appealed. Although we
affirmed most of the district court’s rulings, we concluded that
with additional discovery Williams “might be able to prove that
Giant Food did not make her aware of promotion opportunities for
which she would have applied or that discriminatory practices made
any application futile;” therefore, we reversed the summary
judgment on her § 1981 failure-to-promote claims and remanded this
case for further proceedings. Williams v. Giant Food Inc., 370
F.3d 423, 435 (4th Cir. 2004).*
On remand, the parties conducted additional discovery, and
Giant Food and Royal Ahold then moved for summary judgment. After
conducting a summary judgment hearing, the district court granted
* As we noted in our previous opinion, although Williams also sued Royal Ahold (as the parent corporation of Giant Food) and two Giant Food officials, Jim Frazetti and Colleen McDaniel, Frazetti and McDaniel are no longer involved in this litigation. 370 F.3d at 427 n.1.
2 the motion, concluding:
This is really a case that has not resulted in any proof beyond the fact, quite frankly, that arguably the promotion opportunities were not posted. Allowing that that was in dispute, there are certain other elements that, even had they been posted, even had there been applications filed, the question would still remain was the plaintiff qualified for the positions, was there a legitimate nondiscriminatory reason for not promoting her, was that alleged reason in any way pretextual, and on those last three elements, there’s just no question that the plaintiff’s evidence does not make the grade.
J.A. 1044-45.
We review the district court’s grant of summary judgment de
novo, viewing the facts and all reasonable inferences drawn
therefrom in the light most favorable to Williams. Williams, 370
F.3d at 428. Having conducted such a review, we find that the
district court did not err. Accordingly, we affirm substantially
on the reasoning of the district court. 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
3 WIDENER, Circuit Judge, concurring:
I concur in the result.
4 | 07-04-2013 | [
"UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-2192 LINDA A. WILLIAMS, Plaintiff - Appellant, versus GIANT FOOD, INCORPORATED; ROYAL AHOLD; JIM FRAZETTI, In his official capacity as Vice- President of Store Operations, Giant Food, Incorporated; COLLEEN MCDANIEL, In her official capacity as District Manager, Giant Food, Incorporated, Defendants - Appellees. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CA- 01-1314-8-PJM) Submitted: November 9, 2006 Decided: January 10, 2007 Before WIDENER, SHEDD, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion.",
"Judge Widener wrote an opinion concurring in the result. Jo Ann P. Myles, Largo, Maryland, for Appellant. Connie N. Bertram, WINSTON & STRAWN, L.L.P., Washington, D.C., for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Linda A. Williams filed this action against her former employer, Giant Food Inc., alleging employment discrimination, retaliation, and constructive discharge. The district court dismissed Williams’ initial complaint but granted her leave to file an amended complaint alleging failure-to-promote claims under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e et seq.) and 42 U.S.C.",
"§ 1981. Following limited discovery, the district court granted summary judgment to Giant Food on the failure-to-promote claims, and Williams appealed. Although we affirmed most of the district court’s rulings, we concluded that with additional discovery Williams “might be able to prove that Giant Food did not make her aware of promotion opportunities for which she would have applied or that discriminatory practices made any application futile;” therefore, we reversed the summary judgment on her § 1981 failure-to-promote claims and remanded this case for further proceedings. Williams v. Giant Food Inc., 370 F.3d 423, 435 (4th Cir. 2004). * On remand, the parties conducted additional discovery, and Giant Food and Royal Ahold then moved for summary judgment. After conducting a summary judgment hearing, the district court granted * As we noted in our previous opinion, although Williams also sued Royal Ahold (as the parent corporation of Giant Food) and two Giant Food officials, Jim Frazetti and Colleen McDaniel, Frazetti and McDaniel are no longer involved in this litigation.",
"370 F.3d at 427 n.1. 2 the motion, concluding: This is really a case that has not resulted in any proof beyond the fact, quite frankly, that arguably the promotion opportunities were not posted. Allowing that that was in dispute, there are certain other elements that, even had they been posted, even had there been applications filed, the question would still remain was the plaintiff qualified for the positions, was there a legitimate nondiscriminatory reason for not promoting her, was that alleged reason in any way pretextual, and on those last three elements, there’s just no question that the plaintiff’s evidence does not make the grade. J.A.",
"1044-45. We review the district court’s grant of summary judgment de novo, viewing the facts and all reasonable inferences drawn therefrom in the light most favorable to Williams. Williams, 370 F.3d at 428. Having conducted such a review, we find that the district court did not err. Accordingly, we affirm substantially on the reasoning of the district court. 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 3 WIDENER, Circuit Judge, concurring: I concur in the result. 4"
]
| https://www.courtlistener.com/api/rest/v3/opinions/1021496/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
401 B.R. 391 (2009) In re PETTERS COMPANY, INC., et al, Debtors. (includes: Petters Group Worldwide, LLC; PC Funding, LLC; Thousand Lakes, LLC; SPF Funding, LLC; PL Ltd., Inc. Edge One LLC; MGC Finance, Inc.; PAC Funding, LLC; Palm Beach Finance Holdings, Inc.). Nos. 08-45257, 08-45257, 08-45258(GFK), 08-45326(GFK), 08-45327(GFK), 08-45328(GFK), 08-45329(GFK), 08-45330(GFK), 08-45331(GFK), 08-45371(GFK), 08-45392(GFK). United States Bankruptcy Court, D. Minnesota. February 26, 2009. *393 James A. Lodoen, Lindquist & Vennum P.L.L.P, Minneapolis, MN, for Debtors. Michael Fadlovich, Michael E. Ridgway, Robert Raschke, US Trustee Office, Minneapolis, MN, for U.S. Trustee.
ORDER OVERRULING OBJECTION OF RITCHIE SPECIAL CREDIT INVESTMENTS, LTD., ET AL, TO APPOINTMENT OF TRUSTEE IN CHAPTER 11 CASES, AND APPROVING APPOINTMENT GREGORY F. KISHEL, Bankruptcy Judge. These jointly-administered Chapter 11 cases came on before the Court on January 27, 2009, for hearing on an objection to the United States Trustee's appointment of Douglas A. Kelley, Esq., as Trustee for all of the Debtors in these cases. The objectors, Ritchie Special Credit Investments, Ltd. and other creditor-parties related to it (collectively, "the Ritchie Parties") appeared by their attorneys, James M. Jorissen, Leonard, O'Brien, Spencer, Gale & Sayre, Ltd., Minneapolis, and Bryan Krakauer, Sidley Austin LLP, *394 Chicago. The United States Trustee appeared by his attorneys, Michael E. Ridgway and Robert B. Raschke. The Unsecured Creditors' Committee for these cases ("the Petters Committee") appeared by its attorney, David E. Runck, Fafinski Mark & Johnson, P.A., Eden Prairie. Douglas A. Kelley, the Trustee-appointee, appeared personally and by James A. Lodoen and George H. Singer, Lindquist & Vennum, P.L.L.P., Minneapolis. Ronald R. Peterson, Esq., Chicago, trustee for the bankruptcy estates of Lancelot Investors Fund, L.P., et al, participated in the hearing in that capacity. Dennis M. Ryan, Faegre & Benson, Minneapolis, and Richard A. Chesley, Paul, Hastings, Janofsky & Walker LLP, Chicago, appeared as prospective counsel for the Unsecured Creditors' Committee in In re Polaroid Corporation, et al., BKY 08-46617 ("the Polaroid Committee"). The following order is based on the record made for the hearing.
INTRODUCTION These Chapter 11 cases were commenced by voluntary petitions filed during October, 2008. Petters Company, Inc. ("PCI") and Petters Group Worldwide, LLC ("PGW") are the debtors in the two lead cases of the group. PCI and PGW were established by one Thomas J. Petters in 1987-1988, as "holding companies" for other entities through which he was to own and conduct various business enterprises and transactions. In his individual capacity, Petters is the sole shareholder of both PCI and PGW.[1] Except for Palm Beach Finance Holdings, Inc., all of the other debtors in this group of cases are subsidiaries of PCI, i.e., business entities as to which PCI is the shareholder or equity holder. Tom Petters is the sole shareholder in Palm Beach Finance Holdings, Inc. Polaroid Corporation, a subsidiary of PGW, has been in Chapter 11 in this Court since mid-December, 2008. Its case is being jointly administered with those of nine other business entities related to it, in a case-grouping separate from the one at bar.[2] A number of other entity-subsidiaries of PCI or PGW are not in bankruptcy at this time. When the PCI/PGW cases were commenced, Tom Petters was not the individual who authorized the filings. Nor did he sign the petitions to commence the cases. At that time, Tom Petters lacked the legal authority to do these acts; and, in a way, he was hampered physically from signing. Tom Petters was in the custody of the United States, incarcerated and charged with several felony offenses including mail and wire fraud. His personal assets and the bulk of his business enterprises were under the control of a receiver appointed by the United States District Court for this District. Under express authorization from the District Court, the Receiver, Douglas A. Kelley, Esq., signed the bankruptcy petitions and put the Debtors into bankruptcy. Tom Petters has had no involvement with these cases since their commencement. All decision-making and action on behalf of the bankruptcy estates *395 has been considered, undertaken, and effected by Kelley, with the advice and representation of bankruptcy counsel. On motion of the United States Trustee, this Court directed the U.S. Trustee to appoint a trustee or trustees for these cases, pursuant to 11 U.S.C. § 1104(a).[3] On December 24, 2008, the U.S. Trustee appointed Kelley as trustee for all of the cases, and applied for an order approving the appointment pursuant to FED. R. BANKR. P.2007.1(c).[4] The Ritchie Parties timely filed an objection[5] to the U.S. Trustee's appointment. The U.S. Trustee's appointment, and the Ritchie Parties' objection, are the matter at bar. The theory of the objection is summarized by the very first sentence of the Ritchie Parties' written submission: "Inherent, intractable and immediate conflicts of interest preclude Kelley from serving as Trustee for all the Debtors [in these jointly-administered cases]."
FURTHER BACKGROUND[6]
The Relevant Civil and Criminal Proceedings These bankruptcy cases are the product of a swirl of events that began on Wednesday, *396 September 24, 2008. On that date, agents of the Federal Bureau of Investigation, the Criminal Investigation Division of the Internal Revenue Service, and the United States Postal Inspection Service executed a search warrant at the Minnetonka, Minnesota headquarters of Tom Petters's business entities. They seized and removed records of the Debtors, Tom Petters, and other individuals. Within a day after the execution of the search warrant, a criminal defense attorney retained by Tom Petters asked Douglas A. Kelley, Esq., to represent the various entities of Tom Petters's business enterprise.[7] Two days after that, Kelley was contacted by an Assistant United States Attorney for the District of Minnesota. On behalf of the Department of Justice, the AUSA wanted to discuss Kelley's prospective role as counsel for the Petters entities and the intentions of the United States toward the assets and operations of Petters's business enterprises. In the wake of that conversation, the U.S. Attorney did not take action on behalf of the United States to seize the assets of Petters or the Petters businesses under color of civil or criminal forfeiture. This meant that Sun Country Airlines and Polaroid Corporation were able to continue their business operations in the marketplace. On Kelley's advisory in relation to the government's forbearance, Tom Petters resigned his offices and positions with PCI, PGW, and all related entities on Monday, September 29, 2008. He physically vacated his office at the corporate headquarters on that date. During the following several days, Kelley conducted a factual investigation of the surroundings into which he had placed himself. He started the task of determining the scope of the assets and operations of the Petters business entities; he interviewed various of their employees; he interviewed potential counsel to assist him; and he fielded inquiries from creditors and other persons. He also had numerous and frequent contacts with employees of the office of the United States Attorney, discussing options to preserve the values of the Petters enterprises for the benefit of those who would be entitled to that value. During this week, the office of the United States Attorney took no action toward a government seizure of any part of the Petters enterprise. In the meantime, the Ritchie Parties had commenced a civil action in the Circuit Court of Cook County, Illinois, by a filing made on September 29, 2008. The Ritchie Parties are a Chicago-based group of hedge funds and other investment vehicles. In their lawsuit, they asserted rights to payment under a series of promissory notes executed by Tom Petters and PGW or PCI. They also claimed to have been defrauded by the makers of the notes. The Ritchie Parties obtained an ex parte temporary restraining order from that court against Tom Petters, PCI, and PGW. That order restricted the disposition of those parties' assets other than transfers made in the ordinary course of business. Kelley learned of the Ritchie Parties' lawsuit during the week of September 29. On Thursday, October 2, 2008, he advised *397 the United States Attorney's office of it. The United States Attorney then filed a complaint in the United States District Court for this District, under the caption United States of America v. Thomas Joseph Petters, et al. In it, the government sought various forms of legal relief toward the containment and assemblage of the assets of Tom Petters and the entities in his business enterprise, and protection against the further use of those assets in connection with an "elaborate scheme to defraud individual and group investors." The government also sought to prevent the dissipation of assets or their value by Tom Petters or anyone in consort with him. The government "estimated that the Defendants [had] to date profited in excess of $3 billion from their illegal activities." The named defendants in this proceeding were Tom Petters, PCI, PGW, and other individual persons alleged to have participated in a pattern of fraudulent activity ultimately attributed to Tom Petters. The remedies invoked in the complaint were equitable in nature: interim injunctive relief to prevent the defendants or those in consort with them from taking any further action affecting the assets, and an accounting for the whereabouts of liquid assets. The government also prayed for "such other additional relief as the Court determines to be just and proper." In an early-filed first amended version of the complaint, this catch-all request specifically included "the appointment of Receivers." This civil action was given file no. 08-cv-05348. It was assigned to Judge Ann D. Montgomery of the United States District Court. On Friday, October 3, 2008, Judge Montgomery granted an ex parte temporary restraining order, essentially freezing all of the assets of PCI, PGW, and all related entities owned or controlled by them. On that same day, October 3, 2008, Tom Petters was arrested on federal charges of mail and wire fraud, money laundering, and conspiracy. He remains in federal custody to date. He is now under indictment for those offenses, a federal grand jury having returned such in 20 counts on December 1, 2008. Meanwhile, in their civil action in Cook County, Illinois, the Ritchie Parties filed an ex parte request for the appointment of a receiver over PCI and PGW on Friday, October 3. Asserting that their collateral would be in jeopardy otherwise, they cited the pendency of the criminal proceedings, the resignation of the companies' management, and an indeterminacy of Kelley's legal authority. Kelley and the United States Attorney learned of this request during the weekend of October 4-5. On October 6, 2008, the Illinois court entered an order appointing one William "Billy" Procida as Receiver for both PCI and PGW. The order gave Procida "the authority to take possession of the Collateral." As a term, "the Collateral" was not otherwise defined in the text of the order. Apparently, it referred to all assets of PCI and PGW in which the Ritchie Parties asserted security interests or liens. Beyond that, however, the order granted Procida "all of the usual powers of a receiver, including without limitation, management and operation of [PCI and PGW], collections of receivables, rents, and other Collateral." It gave him other broad powers, including the ability to "hire and fire employees and make all other necessary employment decisions" and to make "payment of ... necessary expenses, including reasonable compensation for himself," without the obligation "to apply to the Court for approval of such fees." The United States Attorney's office then took action in the civil proceeding in the United States District Court here, to request *398 the appointment of a receiver under federal law, 18 U.S.C. § 1345(a)(2)(B)(i)-(ii).[8] Kelley's name was among those submitted to Judge Montgomery for her consideration in the appointment. On October 6, 2008, Judge Montgomery entered an order appointing Kelley as Receiver of PCI, PGW, "and any affiliates, subsidiaries, divisions, successors, or assigns owned 100%" by PCI or PGW. The United States and Tom Petters had stipulated in writing to the entry of this order. In a later order, entered on October 14, 2008, she appointed Kelley as Receiver for all but one of the remaining individual defendants being prosecuted in conjunction with the criminal case against Tom Petters.[9] Pursuant to authority granted in the District Court's orders, Kelley then hired counsel to represent him for all legal matters entailed by his status as receiver. Later he hired other professionals, including a team of forensic accountants whom he tasked with reconstructing and tracing the flow of funds and assets through the various entities in Tom Petters's business enterprise. On October 10, 2008, the Illinois state judge presiding over the Ritchie Parties' lawsuit determined that his court's orders for a freeze of PCI's and PGW's assets and appointing Procida as receiver had "expired and [were] of no present effect." Essentially, the Illinois judge deferred to the United States District Court's appointment of Kelley. Expressly relegating the Ritchie Parties to "their rights on appeal or otherwise with respect to the Minnesota District Court's order," he deferred further consideration of the proceeding before him to mid-April, 2009.
KELLEY'S RECEIVERSHIP: THE SPECIFICS Four different forms of order providing for the appointment of Kelley as Receiver have been entered in file no. 08-cv-05348. The first, entered on October 6, 2008 as previously noted, named Kelley as Receiver for PCI, PGW, "and any affiliates, subsidiaries, divisions, successors, or assigns owned 100% or controlled by" those two entities.[10] This order authorized him to take certain specific actions in relation to PCI, PGW, and the other entities under his receivership; it amounted to a grant of near-plenary power to amass their assets and to control them while he continued to hold them. In specific, he was empowered to: "[c]onserve, hold, and manage all receivership assets, and perform all acts necessary or advisable to preserve the value of those assets in order to prevent any irreparable loss, damage, or injury to consumers or creditors of the Entities [under the receivership], including but *399 not limited to obtaining an accounting of the assets [and] preventing transfer, withdrawal, or misapplication of assets and including ... filing any bankruptcy petitions for any of the Entities [under the receivership] to protect and preserve the assets of any of [them] and acting as management or Debtor in Possession of any of the Entities so filed by the Receiver..." (emphasis added). The second, entered on October 14, 2008, made Kelley the Receiver of the assets and business operations of Tom Petters individually, and of other individuals who were named defendants.[11] The third, entered on October 22, 2008, amended the terms of the two earlier orders via a partial reorganization and reformatting of the provisions for Kelley's authority. Its one major addition was the creation of a "Stay of Actions against Receivership Defendants," in the form of an injunction against any judicial or extra-judicial "action that would interfere with the exclusive jurisdiction of [the District] Court over the assets or documents of the Receivership Defendants." The fourth version, the one currently effective, was docketed on December 8, 2008. It was entered on Kelley's motion and over the objection of certain creditors of PCI, PGW, or their affiliates. In pertinent part, it provides first that Kelley is: ... appointed Receiver for [Tom Petters, PCI, PGW, and the other individual defendants] with the full power of an equity Receiver. The Receiver shall be solely the agent of this Court in acting as Receiver under this Order and shall have judicial immunity. The Receiver shall be accountable directly to this Court and shall comply with any local rules of this Court governing receivers, as well as the Federal Rules of Civil Procedure. He is appointed Receiver for [Tom Petters, PCI, PGW, and the other individual defendants] until such time as real or perceived conflicts arise, at which time he will consult the Court to determine how to proceed. It then gives him "all necessary powers to accomplish the following": 1. Take exclusive immediate custody, control, and possession of all the property, assets, and estates belonging to or in the possession, custody, or under the control of [Tom Petters, PCI, PGW, and other individual and corporate defendants], wherever situated, except those assets seized by the United States pursuant to valid orders of a court. The Receiver shall have full power to divert mail and to sue for, collect, receive, take in possession, hold, liquidate or sell and manage all assets of [Tom Petters, PCI, PGW, and the other defendants] and other persons or entities whose interests are now held by or under the direction, possession, custody, or control of [Tom Petters, PCI, PGW, and the other defendants]; 2. The Receiver shall also assume control over all ongoing business operations in which [PCI, PGW, and the other defendants] have a controlling interest. With regard to these business operations, the Receiver shall: ... c. Manage, administer, and conduct the operations of the ongoing legitimate business operations of [Tom Petters, PCI, PGW, and the other defendants], until further Order of this Court, by performing all incidental *400 acts that the Receiver deems to be advisable or necessary; including but not limited to filing any bankruptcy petitions for any of the [Petters business] entities to protect and preserve the assets of any of the entities. Any bankruptcy cases so commenced by the Receiver shall during their pendency be governed by and administered pursuant to the requirements of the United States Bankruptcy Code, 11 U.S.C. section 101 et seq., and the applicable Federal Rules of Bankruptcy Procedure. Notwithstanding the foregoing, any claims arising under federal laws relating to forfeiture and restitution (1) against or to recover assets of the bankruptcy estates of such bankruptcy cases, or (2) for distribution from such bankruptcy cases, are preserved and not affected in any way by this paragraph.[12] ... 6. Coordinate with representatives of the United States Attorney's office and Court personnel as needed to ensure that any assets subject to the terms of this Order are available for criminal restitution, forfeiture, or other legal remedies in proceedings commenced by or on behalf of the United States;[13] ...
THE BANKRUPTCY CASES: COMMENCEMENT AND CONDUCT Under the authorization of Term IV.B.4. of the October 6, 2008 order, Kelley had his attorneys prepare petitions for bankruptcy relief under Chapter 11 for PCI, PGW, and several of PCI's subsidiaries. He signed the petitions in his status as Receiver. They were filed, variously, on October 11 (Petters Company, Inc. and Petters Group Worldwide, LLC); October 15 (PC Funding, LLC; Thousand Lakes, LLC; SPF Funding, LLC; PL Ltd., Inc.; Edge One LLC; and MGC Finance, Inc.); and October 17, 2008 (PAC Funding, LLC). The petition for Palm Beach Finance Holdings, Inc., a corporation owned directly by Tom Petters as sole shareholder, was filed on October 19, 2008. After these cases were commenced, Kelley exercised authority over the ongoing business operations of PCI, PGW, and the other Debtors. He worked with the bankruptcy counsel whose employment for the Debtors had been court-approved, to meet the various filing and compliance duties of a debtor-in-possession under statute, rule, and United States Trustee prescription. With bankruptcy counsel, he brought and prosecuted various motion proceedings in these cases. For all this, he asserted the authority to "act[] as management or Debtor-in-Possession of any of the Entities so filed [into bankruptcy] by the Receiver," under the District Court's orders of October 6 and 22, 2008. Early in these cases, however, attorneys for the United States Trustee raised the substantive concerns identified in n. 3, suprai.e., whether bankruptcy law countenanced Kelley acting in the capacity of a *401 debtor-in-possession in Chapter 11 cases under color of the District Court's order alone, given that the Debtors had no continuing management personnel independent of the bankruptcy process. The issue was made more pointed by the District Court's express contemplation that the substantive law of the Bankruptcy Code would govern the cases of any of the Petters business entities. The issue, abstruse as it was, was novel; it was not significantly explored in published case law, and apparently there was no published decision that was on all fours factually and procedurally. The issue implicated the authority of two different federal forum courts, and it seemed to require the harmonization of alternate schemes of legal governance. Ultimately, the United States Trustee forced the issue by filing his motion for appointment of trustee on December 2, 2008. After evaluating the very unsettled nature of the legal issues, and in light of the need to conserve resources to address the massive substantive complications of all of the Petters-related cases in all courts, Kelley did not oppose the U.S. Trustee's motion.[14] The U.S. Trustee appointed Kelley when he was directed to exercise his appointment authority; and in turn, the Ritchie Parties objected to the appointment, reprising the demands they made in response to the U.S. Trustee's initial motion. By the time the objection got to a hearing, the Petters Committee and the Polaroid Committee had aligned with the U.S. Trustee, in opposition to the Ritchie Parties. For the hearing, Kelley presented a recap of case history that, he submitted, showed the objection to lack foundation. In the meantime, and in an unbroken line since the commencement of these cases, Kelley has acted, de facto, as if he were a managing officer of these Debtors for the purposes of all their post-petition activity, related to the Chapter 11 process or not. There was no one else to do these things. There is no indication in the record for this motion that Kelley has ever taken any action that was self-interested, contrary to the interests of the bankruptcy estates, or in any way inconsistent with the obligations of a fiduciary steward of the estates.
DISCUSSION[15]
I. Introduction
A. The Ritchie Parties' Perceived Stakes, and Their Motives as Objectors Before launching into the analysis, it is important to note one thing: the Ritchie Parties do not come forward as neutral, distanced friends of the abstract value of integrity in the administration of bankruptcy estates, as their rhetorical rectitude would suggest. Rather, they project a powerful self-interest onto the strategic plane. Identifying the elements of their self-interest does much to illuminate the predicates of their objection. For the great majority of their claim, the Ritchie Parties assert the status of contractual creditors to which PGW alone *402 was indebted. As such, they maintain, they are entitled to a pro rata share of the estate of that Debtor alone. More specifically, they insist that they must not be forced to share with claimants that had been in contractual privity with PCI or its subsidiarieswhether that sharing were to be forced via substantive consolidation of the bankruptcy estates or by other means. This could be a matter of some magnitude. PGW apparently was Tom Petters's holding company for subsidiaries that maintained ongoing operating businesses. At least some of those operating businesses had substantial assets of real value when PGW was put into bankruptcy. On the other hand, PCI has been portrayed as his holding company for "single purpose entities," corporations formed to handle one-time acquisitions of large lots of high-ticket consumer merchandise or other goods, each one procuring the attendant financing in its own right. At least from Kelley's early investigation, it appears that many of these one-shot companies had neither goods nor money when these bankruptcy cases were commenced, their business deals unconsummated. The suspicion is that the enabling funds were spirited away into other sectors of Tom Petters's business structure.[16] One really cannot gainsay the Ritchie Parties for their objection; their exposure is large, rendering high the stakes on their participation in the bankruptcy process.[17] Thus, the wellspring of the Ritchie Parties' position for their objection stems from their wish to have their claims, or at least the bulk of them, allowed in the case of PGW alone. If this were done, they would share pro rata in a distribution from the one estate that promises to liquidate its debtor's valuable subsidiary companies down to a very substantial corpus to apportion to creditors.[18] The Ritchie Parties fear the alternate scenario, having their claims allowed against the PCI estates; there, the recovery of any significant value for distribution to creditors is uncertain and litigation-dependent. They also oppose the substantive consolidation of the estate of PGW with that of PCI or any of the other Debtors, which they project to greatly dilute their pro rata share of any distribution. Thus, the Ritchie Parties make their bid for the appointment of a separate trustee for PGW. They envision such an appointee as virtually mandated to resist substantive consolidation, piercing of the corporate veil, cross-allowance of claims, or any other measure that could lead to the reduction of their in-hand distribution. And they clearly believe that a separate trustee would have to do all things possible to box *403 off the Chapter 7 process for PGW from the rest of these cases. On the broader plane of Kelley's own disinterestedness, they project a palpable fear of a different outcome, which they insist could result from Kelley's court-appointed status outside of bankruptcy: the chimera is that as receiver Kelley has the duty to aid the government in any seizure of all of the value to be garnered from Tom Petters's business enterprise, via forfeiture or ancillary to a restitution process in the criminal case(s), with all that potentially going to those holding the status of "victims" within the meaning of the criminal law, and none going to any party in the status of "creditor" under the bankruptcy laws. They see this ostensible obligation as subordinating the fiduciary duty imposed by a trustee status in Kelley's administration; and this, they say, would leave creditors of the various Debtors unsatisfied on their claims, or undersatisfied as compared to their expectancy through a bankruptcy process.
B. The Ritchie Parties' Goals, as to Trustee Appointment The Ritchie Parties' two distinct fears stream into the two separate thrusts of their legal theory. On the one hand, they propound an "external conflict" on Kelley's part, a circumstance arising outside the structure of these bankruptcy cases. They argue that this conflict would bar him from serving as trustee for any of the Debtors. On the other, they allege an "internal conflict," one arising from factors internal to the bankruptcy processes for these Debtors.[19] This one, they say, bars Kelley or any other one person from serving as trustee simultaneously for all of the Debtors. They insist that the bankruptcy estate of PGW must have its own trustee, a person other than the trustee to be appointed for the estates of PCI and the other Debtors. In their broader attack, the Ritchie Parties would have the Court nullify the appointment of Kelley across the board, leaving it for the U.S. Trustee to appoint at least two other persons as trustees within this grouping of cases. As a fallback, though, they state that "one for PGW" i.e., a separate trustee for that Debtor in the person of someone other than Kelley "would be fine for us," with the U.S. Trustee's appointment of Kelley for the remaining cases to be left intact.[20]
II. Analysis
A. The Allegation of an External Conflict: 11 U.S.C. §§ 1104(d) and 101(14)(C) In the Ritchie Parties' view, Kelley's pre-petition status as a court-appointed receiver for Tom Petters and the whole range of business entities owned or controlled by him, a circumstance pre-dating the bankruptcy filings and persisting in some way since then, prevents him from qualifying as trustee for any of the Debtors. The Ritchie Parties build out this theory on the requirement of 11 U.S.C. § 1104(d), that any trustee appointed post-petition for these cases be a "disinterested person."[21] The Bankruptcy Code defines the *404 term "disinterested person," in pertinent part, as ". . . a person that . . . (C) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor, or for any other reason . . ." 11 U.S.C. § 101(14)(C).[22] The Ritchie Parties insist that Kelley's charge and role under the District Court's receivership orders give him an "interest materially adverse" to a substantial class of parties in interest to these cases. They define those parties as the claimants whose claims would stem from a status of "contractual creditors" of one or more of the Debtors, in particular of PGWtrade creditors that supplied goods or services to enable the maintenance of the Debtors' business operations, and at least some lenders of money to specific Debtors. They distinguish this class of parties from those whom they call "victims." They define the latter as those "investors" who "provid[ed] funds for, and financing to," the Debtors and other entities in the Petters structure, and were induced to do so by fraud on the part of Tom Petters or others.[23] Per the Ritchie Parties, the material adversity to the former class would arise from the directive to Kelley under Term IV.B.6. of the December 8, 2008 order, to "[c]oordinate with representatives of the United States Attorney's office and Court personnel as needed to ensure that any assets [garnered and administered by Kelley as Receiver] are available for criminal restitution, forfeiture, or other legal remedies in proceedings commenced by or on behalf of the United States . . ." (emphasis added). The Ritchie Parties rely entirely on the operative verbs here, "coordinate" and "ensure," coupled with the static notion of receivership assets being "available for criminal restitution, forfeiture, or other legal remedies" that the government may seek from the District Court. From those words, they extrapolate that Kelley is: 1. ". . . obligated to assist the government with forfeiture . . ."; 2. ". . . charged with seeking redress for the victims of [Tom] Petters's fraud . . ."; and 3. ". . . expressly commanded to make [the] Debtors' assets available for, *405 and thus not to oppose, any forfeiture or other action by the United States on behalf of victims . . ."[24] In further shadings and extensions of the same accusation, they insist that: 4. Kelley's charge is to "maximize the assets of the receivership" and "in essence to help the United States build its case" for forfeiture; 5. Kelley's "job" is "to put a context around those assets [i.e., those he would recover on account of the past business dealings of PCI and PGW] to bring them into the receivership estates"; 6. there is "active assistance in what is going on," as between Kelley's performance as receiver and the government as prosecutor, and "a cooperative element that is going on. . ."; 7. the United States, in its role as prosecutor, "is the major party to the receivership," which "at the end of the day" will "make some claim to the assets of the receivership"; and 9. "a tenor of the [receivership] order. . . clearly requires" Kelley "to assist the United States."[25] Under this characterization of Kelley's duties as receiver, the Ritchie Parties argue that "real and immediate conflicts [would] arise with respect to Kelley's dual roles as Receiver and Trustee," giving him "an interest materially adverse" that prevents him from being disinterested as the statute requires. There are several reasons why this argument is wrong. First, it does not recognize the applicable statutory language. Section 101(14)(C) uses the verb "have," a word that denotes possession, in a personal capacity. See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 1039 (2002 ed.) (defining "have" as, inter alia, "to hold, keep, or retain especially in one's use, service, regard, or affection or at one's disposal. . ."). In construing § 101(14)(C), the Third Circuit Court of Appeals found that Congress's choice of this language was intentional; in the Third Circuit's view, the choice of verb narrowed the source of disqualification to adverse interests held by a prospective trustee personally, and did not extend to interests to which the trustee had the relationship of representative. In re BH & P, Inc., 949 F.2d 1300, 1310 n. 12 and 1311 (3d Cir.1991).[26] The Third Circuit's *406 parsing of statutory language and conceptual structure is lengthy and careful. It supports the rejection of the Ritchie Parties' argument here, at a very basic level: in his status as Receiver, Kelley does not "have" an interest of any sort that is even cognizable under § 101(14)(C), and hence he is not deprived of the disinterestedness that is required of a trustee for any of the Debtors. This conclusion is based on somewhat abstract considerations, as to an issue that is not very developed in the case law. One can envision arguments against it.[27] But even if one were to recognize Kelley as "having" an interest of some sort via his receivership, the structure of his past relationship in that capacity with the Debtors now in bankruptcy is simply not the one that the Ritchie Parties impute in such florid fashion. Under the objection, the implication is that Kelley, under his charge as Receiver from the District Court, is inescapably bound to any future election by the government to seize all of the assets of the whole Petters enterprise through the processes of the criminal cases. As the Ritchie Parties would have it, Kelley is not only beholden, virtually as a cat's paw, to assemble and ready these assets for that end, and that end only; he must also actively assist the government in preparing a case at law for the forfeiture or diversion of the assets through the restitution process. This simply is not supported by the boundaries drawn by the statute under which Kelley's receivership was created, or by the scope and nature of the authority that Kelley has, as a receiver who is an officer of the District Court.[28] The statute, quoted supra at n. 8, contemplates the appointment of a receiver only for the administration of injunctive relief against the further disposition of assets that are implicated in banking law violations. Cf. Aviation Supply Corp. v. R.S.B.I. Aerospace, Inc., 999 F.2d 314, 316-317 (8th Cir.1993) (listing comparable considerations for appointment of receiver in federal case under diversity jurisdiction). Its language does not contemplate any advocacy role for the receiver in determining and effectuating a legally-proper, final disposition of such assets. As to the specific incidents of a receiver's powers and mission, the district court's order is the sole source from which the scope of the authority is to be determined. Liberte Capital Group, LLC v. Capwill, 462 F.3d 543, 551 (6th Cir.2006) ("As an officer of the court, the receiver's powers are coextensive with his order of appointment . . ."); Resolution Trust Corp. v. Bayside Developers, 43 F.3d 1230, 1241 n. 8 (9th Cir.1994). See also 13 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 66.03[2] (3d ed. 2007) ("The district court that appoints the receiver establishes the extent of the receiver's authority . . ."). The terms of Judge Montgomery's receivership orders, even in the most involved version entered on December 8, 2008, do not vest Kelley with any "interest" at all, let alone one that is coeval with those of the United States or aligned with them. The terms do not charge him with protecting or advancing the interests of the United *407 States. They do not obligate him to work in consort with the federal prosecutors in any degree, to advance any strategy on the government's part. Rather, the directives to Kelley are unadorned. They mandate him to take control of those assets that were immediately accessible to him after the appointment; to recover further liquid value via collection on rights to payment, sale of assets, or management of income streams; to manage all such acquiesces to preserve their value; and if warranted, to use the bankruptcy process for eligible Petters-related entities to further those basic missions. After that, the only duty imposed on Kelley from the face of the receivership orders, is to "hold in place," to keep the assets secure pending their ultimate disposition via separate court proceedings.[29] There is nothing more than that to be read into the duty to "coordinate" with the United States Attorney. The verb here is not loaded with any meaning suggestive of a current, joint action toward government seizure. The notion of having the assets in Kelley's hands "available for criminal restitution, forfeiture," and the like signifies a duty to fully disclose their form and whereabouts and to maintain current liquidity, but only that. This reflects the transparency that our legal system makes incumbent on any entrusted officer of a court, in the performance of obligations to the appointing court. It reflects no more than that. This conclusion is reinforced by the fact that the District Court, as an institution, has no inherent stake in the disposition of the assets in the way that a party would. It acted in furtherance of the general public interest in mitigating further losses to innocent parties, and in maintaining a status quo during the pendency of litigation, in light of accusations of wrongdoing as large and systemic as those made against Tom Petters.[30] It acted on motion of the United States Department of Justice, an agency of the Executive Branch. But the creation of the receivership made the receiver's control over its subject matter chargeable to the court, an institution of the Judicial Branch, with the receiver responsible to the court alone. On its face, the order fixing Kelley's duties as Receiver did not vest him with any interest aligned with the United States, nor mandate any action on his part that would make him its servant, agent, or ally. *408 That analysis goes to Kelley's past status as Receiver, and to any continuing, active duty he would have in the status of Receiver, in relation to the Debtors and their assets. The question now is whether he would even have such a duty going forward were he to assume the status of trustee. The answer to this is not as perfunctory as the U.S. Trustee and the Petters Committee urge, that Kelley's legally-seated role and status as Receiver "terminated by operation of law" as soon as the Debtors filed their bankruptcy petitions. The U.S. Trustee has cited no on-point authority for that proposition.[31] Judge Montgomery's order does not expressly terminate the receivership over any of the Debtors upon the filing of a bankruptcy petition. And, the urged result simply does not fit into the structure of the Bankruptcy Code. The Code contains no provision for the termination of the status of a pre-petition receiver upon the filing of a bankruptcy petition that entails the assets subject to the receivership, either automatically or on court order. More to the point, if a receiver's appointment were terminated automatically upon bankruptcy, there would be no warrant for the statutory prohibition of a receiver making post-petition disbursement from the property of the debtor, 11 U.S.C. § 543(a), nor a need for the statutory obligations to turn over to the trustee in bankruptcy all property of the debtor, 11 U.S.C. § 543(b)(1), and to file an accounting of such property that, "at any time, came into the possession, custody, or control" of the receiver, 11 U.S.C. § 543(b)(2) (emphasis added). Finally, by empowering the bankruptcy court to excuse a receiver from the duty of turnover under § 543(b)(1), but not mandating it to do so, the Code expressly countenances the possibility of a receiver both retaining its legal commission post-bankruptcy, and continuing to exercise it. 11 U.S.C. § 543(d)(1). However, the individualized legal governance for this Receiver and prospective trustee, as established by the District Court's orders, will achieve something equivalent, once Kelley performs under that governance as he has promised. With the input of bankruptcy counsel for the Debtors, the District Court clarified in the order of December 8, 2008, that these Chapter 11 cases will go ahead fully governed by the substantive law of bankruptcy. Under the configuration of assets and business operations, that governance necessarily entails the turnover of all property of the Debtors to the control of the steward contemplated by bankruptcy lawin this instance, a trustee in the person of Kelley. Such a turnover has not yet been formally evidenced of record in this case, not the least because the legal posture for such a steward has been anomalous.[32] But to fully harmonize the status, *409 a turnover can now be effected, and hence will be ordered as a condition of approving the appointment. Through the representations of bankruptcy counsel, Kelley has committed to proceeding with the administration of the estates in these cases in accordance with the values and priorities of bankruptcy law. Kelley acknowledges that this will entail maximizing the value of all assets collected, and then distributing them to the holders of all allowed claims against the Debtors, pursuant to statutory priorities and pro rata if necessary, all as the Bankruptcy Code envisions.[33] Addressing the concern most loudly and persistently raised by the Ritchie Parties, Kelley now has committed on the record to resisting any effort by the United States to seize the assets of these Debtors' estates through remedies ancillary to the criminal process, at least until there is a residuum-surplus remaining after satisfaction of all claims through the vehicle of these cases, in accordance with bankruptcy law. And, as the U.S. Trustee points out, the law governing any forfeiture proceeding that might be commenced upon the conviction of PCI or PGW will give Kelley, as trustee, a forum to advocate for the bankruptcy estates' interests in the subject property.[34] Kelley can do no more than state this commitment at this point, and of course he can not guarantee that court-ordered forfeiture or a seizure through restitution will not pluck the assets out of the bankruptcy estates. That will be a matter for Judge Montgomery or another district judge to determine, when and if the government pursues those remedies. But through the statements made by his counsel here, he has committed to advocate for the bankruptcy process in such proceedings, essentially "bankruptcy first, forfeiture or restitution for the balance," i.e., the residual equity value of the components of Tom Petters's enterprise. So, once Kelley's appointment is approved and he formally effects a turnover, *410 the two predicates for the Ritchie Parties' assertion of an "external conflict" will be vitiated or extinguished. In the abstract, there may still be a gossamer remnant of Kelley's status as Receiver, unless Judge Montgomery formally terminates it over these Debtors.[35] But the assets of these Debtors will no longer be subject to administration through the receivership; they will be committed to the bankruptcy process, and absent the override of court-ordered forfeiture or a restitution process, their value first will be funneled through bankruptcy to the holders of allowed claims. In sum, then, Kelley's past status as trustee does not make him not disinterested so as to bar his appointment as trustee for these cases. Any such status he may technically retain after a full effectuation of his appointment as trustee will not do so either. The "external conflict" urged by the Ritchie Parties is not a ground for disapproving the United States Trustee's appointment.
B. The Allegation of an Internal Conflict: FED. R. BANKR.P. 2009 In the alternative, the Ritchie Parties point to circumstances internal to the bankruptcy process for these Debtors: the positioning in a grouping of jointly-administered bankruptcy cases, of a number of closely-tied business entities that apparently engaged in numerous inter-company transfers and transactions pre-petition, and the U.S. Trustee's action in appointing the same person as the trustee for the estates in all of the cases. The Ritchie Parties focus on the appointment of the same person as trustee for the estates of PCI and PGW; they insist that "serving in both roles . . . results in a conflict of interest," and that "[t]he substantial differences between PGW and PCI and the other Debtors lie at the heart of the conflict." FED. R. BANKR.P. 2009(c) contemplated the United States Trustee making an appointment in the way he did: (c) Appointment of trustees for estates being jointly administered . . . (2) Chapter 11 reorganization cases If the appointment of a trustee is ordered, the United States trustee may appoint one or more trustees for estates being jointly administered in chapter 11 cases. In turn, FED. R. BANKR.P. 2009(d) addresses and provides guidance for the dispute at bar: (d) Potential conflicts of interest On a showing that creditors or equity security holders of the different estates will be prejudiced by conflicts of interest of a common trustee who has been elected or appointed, the court shall order the selection of separate trustees for estates being jointly administered. The Ritchie Parties divine a conflict of interest from the following reasoning: PGW is a distinct legal entity with a creditor constituency that is separate and distinct from the creditor constituency of PCI and each of the other Debtors. It appears that, while many of Petters's victims had a contractual relationship with PCI and its subsidiaries, very few of them also had a contractual relationship with PGW. These circumstances produced the different creditor constituencies for PGW and PCI, and those constituencies have diametrically opposed interests given the dramatically different financial circumstances of PGW and PCI. *411 They prognosticate that PGW's estate, having "substantial operating assets, such as Polaroid and Fingerhut, . . . with potentially considerable value," will likely be in the money, generating a significant distribution to creditors. Their forecast for the PCI-related cases is greatly different: their debtor-entities having "little or no assets of value" pre-petition, their administration in bankruptcy will generate much less in liquidation for distribution to the parties that advanced money to finance the revolving transactions in consumer merchandise that Tom Petters purveyed through PCI's single-purpose corporate subsidiaries. Apparently, those that did such financing toward the end of PCI's operations, without seeing the merchandise-sale transactions close so as to enable repayment of their loans, are to be considered the "victims" of the Ritchie Parties' nomenclature. The Ritchie Parties would distinguish these claimants from the "creditors" of PGWamong which the Ritchie Parties place themselves. Beyond that, the Ritchie Parties allege that the PGW estate and those of PCI and its Debtor-subsidiaries could find themselves in actual opposition, if the forensic-accounting reconstruction of the Petters enterprise's affairs reveals avoidable transfers between related debtor-entities via the broad-scaled commingling that Tom Petters is alleged to have transacted. Citing the result in In re BH & P, Inc., 949 F.2d at 1313-1314, they argue that the possibility of such faceoffs prevents the appointment of a single trustee here. In arguing this, the Ritchie Parties assert the status and standing of creditors of PGW alone. The proponents of Kelley's appointment maintain that the situation is not as clear-cut as that. They point out that PCI, through a wire transfer to its own bank account, received at least one of the substantial advances that the Ritchie Parties made to Tom Petters's enterprise at his request, and that this and other evidence could bind the Ritchie Parties into the administration of the estates of PCI and its debtor-subsidiaries, as creditors there.[36] And, in briefing and at oral argument, the proponents of Kelley's appointment started quite a fracas over the Ritchie Parties' about-face from their position in the Illinois state court; there, they had sought the appointment of one person as receiver for both PCI and PGW, and they got him empowered to do just about anything he chose with both companies, with little court oversight imposed by the terms of the order of appointment. None of the parties who raised these potential blocks specified where they were relevant to the legal analysis. Perhaps they were intended as a challenge to the Ritchie Parties' standing to argue this sort of conflict. Perhaps they were just an effort to discredit and delegitimize the Ritchie Parties' arguments generally, in a connotative sense. One can lay these points to the side where they belong, however. This prong of the Ritchie Parties' objection should be overruled, on its merits, under the present posture of these cases. First, it should be noted that the issue of disqualification of a trustee from serving as to all of the estates of related *412 debtors is to "be evaluated prospectively on a case-by-case basis"; and the determination is committed to the bankruptcy court's discretion. In re BH & P, Inc., 949 F.2d at 1313. Second, in ascertaining the existence of disqualifying conflicts, "horrible imaginings alone cannot be allowed to carry the day." Id. (quoting In re Martin, 817 F.2d 175, 183 (1st Cir.1987); interior quotes omitted). Rather, given the governance of Rule 2009(d), the question is whether creditors will actually be prejudiced by any conflicts of interest that are inherent in the posturing of jointly-administered estates.[37] This inquiry is more concrete, and that is entirely appropriate. Rule 2009(c)(2) clearly recognizes the considerations that can support the appointment of a single trustee for related cases: economy; the focusing of expertise; the advantage of building familiarity with complex facts and relationships; efficiency in considering and acting in administration; and greater ease in presenting common disputes to the court. There is also the valid goal of avoiding inconsistent approaches to common problems and the lessening of contradictory outcomes in administrative action. Given the greater probability of pre-petition commingling and the like, as among related debtors, Rule 2009(d) makes no bones about it: joint administration will probably entail some conflicts of interest among the estates, at least in the abstract. The real issue is whether the conflicts bode actual and particularized prejudicereal detrimentto the creditors of one of the debtors, or to a particular creditor-constituency of one of the debtors, as the estates go through administration under the control of a single person, and that administration passes through the procedural and substantive permutations that that one person elects. To their credit, the proponents of Kelley's appointment do not try to bluster their way around the prospect that such prejudice could emerge. Where two or more jointly-administered estates have cross-running claims, where they have competing claims against particular assets, where related debtors had engaged in inter-company transfers, or where related debtors have cross-pledged assets on debt to third parties, conflicting interests may ripen. It could happen at different stagesfor instance, through a proposal for substantive consolidation of estates, where a creditor's expectancy of a particular pro rata distribution from the estate of one could be diluted by a forced sharing with creditors of a related entity. It might not emerge until a proposed distribution of the liquidated value of one debtor in tandem with that of others, whether there had been a substantive consolidation or not. It could come from a trustee's decision to invoke or forgo available bankruptcy remedies for one estate against another, or against third parties. At this early stage of the cases at bar, one cannot deny any of these possibilities out of hand. But on the other hand, the characteristics of these cases and their backdrop cannot be ignored: multiple pending, major criminal prosecutions against key management personnel of the Debtors; the sheer magnitude of the sums of money in question; the present indeterminacy of what happened to build and then fell the edifice of Tom Petters's enterprise; and the large complexities that must be coordinated to responsibly propel bankruptcy procedures *413 forward. These circumstances powerfully support the concentration of attention and effort into one fiduciary steward, at this time and for a while to come. Kelley has gone up an immensely steep learning curve in the last five months; he has had to amass knowledge, and analyze it with his professional persons; he is making use of that to recover assets, via legal proceedings and otherwise. Given the intensity of his own investment of attention to these cases, there is no argument on the considerations of economy and efficiency to be made against appointing Kelley, and him alone, as trustee.[38] Appointing anyone else at this time would entail a two-staged duplication of effort, with a second trustee getting up to speed and the two then going forward on parallel tracks. The significant extra transactional expense to bring a second trustee into the process would be massive, particularly if that trustee were to hire a second group of attorneys and financial analysts. The evaluation of respective options, the determination of whether to coordinate or to go off in opposition, and so forth would cause delay in pursuing recovery of assets or prosecuting causes of action. The Ritchie Parties have not even made a squawk about economy or efficiency supporting or ultimately vindicating the appointment of a second trustee, and there is no credible way they can. At this point, the issue of prejudice under the meaning of Rule 2009(d) is readily answered, and largely by the nature of the large tasks that have only been started. As described at the hearing, Kelley and his professional persons see their work cut out for an extended period, most likely a year or more. As described, their plan does not entail any action or process that would pit the distribution rights of PGW's creditors directly against those of the creditors of any of the other Debtors, until most or all recoverable assets have been garnered in. The first mission of a trustee for these cases is to recover as much value as possible in liquid form, from where it reposed in the Debtors' ownership or from third parties now obligated to account to the bankruptcy estates. After that, the trustee will have to get the legal status of encumbrances against that value ascertained, by stipulation or adjudication. The Ritchie Parties have not identified any aspect of these tasks, administrative in nature or legally-oriented, that would present a trustee with cross-running allegiances. After the recovery and assemblage of the estates' due, the next phase of administration would begin. At that point, a trustee's pursuit of claims cross-running between the estates, or the potential dilution of a realization via substantive consolidation, could raise the prospect of disqualifying prejudice. However, the issue could arise only then, and only then would it get focused. At that time, there would be several different means to resolve the issue of prejudice-causing conflicts among the estates. Kelley himself and the Debtors' counsel have pledged to take action, i.e., to seek appointment of a second trustee or to bring the issue to the court, if they see conflicts-in-the-abstract ripening to untenable. The Ritchie Parties have not said that they trust the Trustee to be responsible in this regard, and they have not said that they don't. But in any event they can renew their motion, after a cash-bearing estate has been assembled and at a time *414 when investigation has made the alignments clearer and more concrete. They could renew their motion if Kelley foregoes pursuing a particular claim or cause of action, that bodes actual prejudice to their participation in these cases, and he does not respond to their expressed concerns. At such time, they will receive the judicial attention that the situation deserves, when real focus will be possible. And in any event, any party that fears prejudice to its interests will have due process before the prejudice ripens to actual detriment, for many of the foreseeable administrative acts.[39] Substantive consolidation is a court-granted remedy that requires a substantial record going to multiple factors, In re Giller, 962 F.2d 796, 799 (8th Cir.1992), and as to which the abiding consideration is "fairness to all creditors," F.D.I.C. v. Colonial Realty Co., 966 F.2d 57, 61 (2d Cir.1992).[40] Proposals to abandon estate assets, such as pre-petition causes of action, must come before the court by motion in a Chapter 11 case. LOC. R. BANKR.P. (D.Minn.) 6007-1 and 6004-1(e). In a Chapter 11 case, settlements of avoidance actions or rights of action require court approval, obtained only on motion. LOC. R. BANKR. P. (D.Minn.) 9019-1(a) and 6004-1(e). All of these vehicles give an opportunity for objection to any creditor that sees prejudice to its interests from a particular administrative action by a single trustee for multiple estates. The structure of Rule 2009(d) imposes a burden of proof on the party that asserts disqualifying prejudiceboth a burden of production of evidence if the existence of the prejudice is fact-dependent, and a burden of persuasion if the arguments pro and con are in equipoise. The Ritchie Parties have not carried that burden; they have not made a prima facie showing that, at present, their interests, or the interests of the creditors of any particular debtor, are actually prejudiced at present by the existence of conflicts of interest that arise out of the configuration of the Debtors' rights against each other, pre- or post-petition. At this time, there is no "internal conflict" that prevents Kelley from serving as trustee for all of the Debtors, pursuant to the U.S. Trustee's appointment. And, because Rules 2009(c)(2) and 2009(d) do not require the determination on prejudice to be made once and for always, any party in interest may seek judicial relief if Kelley and his attorneys do not acknowledge when future developments in his administration create and focus such prejudice. If appropriate, that relief could include a directive for the appointment of a second trustee.
OUTCOME The Ritchie Parties' objection must be overruled, and the U.S. Trustee's appointment will be approved, subject to the one condition previously-identified.
ORDER On the decision just memorialized, IT IS HEREBY ORDERED: 1. The objection of Ritchie Special Credit Investments, Ltd., to the U.S. Trustee's appointment of a trustee for these cases is overruled. *415 2. The U.S. Trustee's appointment of Douglas A. Kelley, Esq., as trustee for all of the Debtors in these jointly-administered cases, is approved. 3. Douglas A. Kelley, Esq., shall, forthwith: a. meet all requirements set by the U.S. Trustee for his appointment of the status of trustee, including the posting of a bond; and b. in his status as Receiver appointed by the United States District Court for the District of Minnesota, execute and file an appropriate document memorializing his turnover of all of the assets of the Debtors' bankruptcy estates to the appointed trustee. NOTES [1] For over a decade, Petters has been known in regional media by his nickname; hence, "Tom Petters" will be used for all further references to him as an individual. [2] MN Airlines, LLC, d/b/a Sun Country Airlines, is a business entity as to which Tom Petters was the controlling individual principal through two holding companies. Sun Country Airlines and its holding companies are also in Chapter 11 in this Court. That jointly-administered grouping is assigned to Judge Robert J. Kressel. The background and status of the Sun Country Airlines cases are not relevant to the matter at bar. [3] The U.S. Trustee had made the motion after counsel in his office concluded that these corporate debtors had no individual officers legally chargeable as stewards of the bankruptcy estate and subject to the fiduciary obligations mandated by statute, after the cases were commenced. The unseating of Tom Petters from control and the resignation of other individuals who had made up the pre-petition management of these debtors had left them without anyone exercising day-to-day and strategic administration, with the continuity inherent in the statutory concept of a debtor-in-possession, 11 U.S.C. § 1101(1). The U.S. Trustee also concluded that bankruptcy law would not countenance a continuing status of managerial custodianship for Kelley in his role as a court-appointed receiver. The legal bases for his conclusion were the bar on appointment of a receiver within a bankruptcy case, 11 U.S.C. § 105(b), and the obligation of any custodian to turn over property of the estate to the trustee in bankruptcy, 11 U.S.C. § 543(b)(1)the statutory definition of "custodian" including a receiver appointed pre-petition, 11 U.S.C. § 101(11). [4] The text of this rule taken into account for this decision is the amended version that was effective December 1, 2008. [5] In an order entered on December 17, 2008, the Court had set deadlines for various stages of the appointment process. [6] As a technical matter, the recitations in the following section are findings of fact. Most of them merely identify the progression of various proceedings in courts, state and federal, in which Tom Petters, the debtors in these and other bankruptcy cases, certain creditors, and the United States of America were parties. As such, these recitations are not subject to dispute. The remaining recitations go to out-of-court events and the out-of-court acts of relevant persons or entities. They are based on verified statements in the record. The content of these recitations has been deliberately limited in topic and scope. At a hearing on January 22, 2009, the Court ordered that in-court testimony would not be taken for the objection at bar, and denied the Ritchie Parties' late-coming motion to conduct an expedited discovery process into a very broad array of subject matter. This disposition was based on a ruling that the Ritchie Parties' objection was to be treated as a matter of law, with the focus on three things: Kelley's specific charge under the District Court's orders governing his status as Receiver; the change of that status with the advent of bankruptcy for some of the entities previously under the receivership; and any resultant effect on Kelley's own definition of his prospective role as trustee. None of those considerations entail historical fact, per se. Thus, the recitation of events extraneous to the courts' records has been limited to those that the District Court clearly relied on when it appointed Kelley as Receiver, and vested him with broadly-described powers to take control over assets that had some arguable connection with the newly-commenced criminal cases against Tom Petters and others. This is also done with due regard for the Ritchie Parties. One can safely assume that they will maintain their position that this controversy is intensely fact-bound, in a very personalized way. Restraint in the scope of background fact-finding will avoid materially contradicting the Court's rejection of that position. [7] Previously, PGW had had in-house counsel and the various Petters business entities had been represented by an outside law firm. All of those attorneys resigned and withdrew after the execution of the search warrant. [8] In pertinent part, these subsections authorize legal actions as follows:
... (2) If a person is alienating or disposing of property, or intends to alienate or dispose of property, obtained as a result of a banking law violation (as defined in [18 U.S.C. § 3322(d)] ..., the Attorney General may commence a civil action in any Federal court ... (B) for a restraining order to (i) prohibit any person from withdrawing, transferring, removing, dissipating, or disposing of any such property or property of equivalent value; and (ii) appoint a temporary receiver to administer such restraining order. [9] Another person was appointed as receiver for that defendant, Frank E. Vennes, Jr. [10] The scope of the receivership expressly excluded "Thomas Petters, Inc., and its subsidiaries including but not limited to: MN Airlines, LLC, dba Sun Country Airlines." [11] Both of these orders were entered after the entry of stipulations between the United States and various named defendants. [12] This paragraph basically supplanted Terms IV.B.4. and IV.B.5. of the October 6, 2008 order. As quoted earlier, the October 6 order did contain an authorization for Kelley to file bankruptcy petitions, plus an authorization to "act[] as management or Debtor in Possession of any of the Entities so filed ...," at Term IV.B.4. [13] The emphasis here is added for the purposes of the present decision. It is imposed only to highlight the major item of contention that the Ritchie Parties gleaned from the attributes of Kelley's receivership. This paragraph did not have an analogue in the October 6, 2008 order. [14] The Ritchie Parties injected themselves into this initial motion proceeding, by insisting that the Court act at that time to order the U.S. Trustee to appoint a person as trustee for PGW who would be different from anyone appointed as trustee for any of the other Debtors. The Court ruled that such a request would not be ripe until the U.S. Trustee had exercised his authority to appoint a trustee or trustees for the several cases, and denied it without prejudice. [15] In the main, the recitations in this section are conclusions of law. Here and there they will include an additional finding of fact, going to very specific aspects of the procedural backdrop. [16] So go the allegations, anyway. The alleged parlaying of these single-purpose entities and their related transactions, to the detriment of creditors and the investors that were financing the deals, is the core of the prosecution's theory for the federal criminal charges against Tom Petters and his associates. [17] The Ritchie Parties are said to have a potential loss of $250,000,000 from their dealings with Tom Petters. This, however, is not the largest potential claim in these cases. Tom Petters's downfall carried another group of Chicago-area hedge funds headed by Lancelot Investors Fund, L.P. into Chapter 7. The trustee in the Lancelot cases, who is now active as a prospective claimant in these cases, estimates the total of his estates' claims here to exceed $1.3 billion. [18] At this time, it appears that PGW's equity interest in the Polaroid Corporation and its related entities is the principal plum. The debtors in that case-grouping have commenced proceedings to bring about a sale of their assets and business operations under 11 U.S.C. § 363. [19] The terms "external conflict" and "internal conflict" are the Court's own, coined as shorthand. They are not legal terms of art. [20] It was not clear from the Ritchie Parties' briefing whether they would acquiesce to such a result. At the end of the first round of oral argument, their counsel acknowledged that they would, using the quoted wording. [21] 11 U.S.C. § 1104(d) governs the process of trustee appointment in a Chapter 11 case, after the court has ordered the U.S. Trustee to appoint one. In pertinent part, it reads:
If the court orders the appointment of a trustee, . . . then the United States trustee, after consultation with parties in interest, shall appoint, subject to the court's approval, one disinterested person other than the United States trustee to serve as trustee . . . in the case. [22] Another portion of this definition bars the status of "disinterested person" to a creditor, an equity security holder, or an insider of the debtor in the bankruptcy case. 11 U.S.C. § 101(14)(A). In addition, a person who "is not and was not, within 2 years before the date of the filing of the petition, a director, officer, or employee of the debtor" may be a "disinterested person," 11 U.S.C. § 101(14)(B), which means that a person who did have that status is not a "disinterested person." Neither of these exclusions is material to the controversy at bar. [23] The objection's nomenclature is somewhat confusing, if one thinks about it. Under the criterion that the Ritchie Parties propose for defining "victim" status, the lending of money, a "victim's" claim would have its genesis in contract no less than a trade creditor's would. And since lenders of money would be members of both of the classes that the Ritchie Parties posit, the genesis of the claim in a loan does not, in itself, make a distinction. The thought behind the assumed dichotomy is never made all that clear; perhaps it would have been better-served had the Ritchie Parties identified the class of opposed interests as "victims of PCI." Ultimately, this point is not important; but it does reinforce the impression of a somewhat overwrought tendentiousness to the objection. [24] These are all quotations from the Ritchie Parties' briefing. [25] These are all direct quotations or very close paraphrasings from the oral argument made by counsel. [26] The Third Circuit recognized the distinction between the text of § 101(14)(C) and that of 11 U.S.C. § 327(a). The latter bars anyone who "hold[s] or represent[s] an interest adverse to the estate" from serving as a professional person for the estate. 949 F.2d at 1310 n. 12 (emphasis added to quotation of statutory text). In an unspoken fashion, the Ritchie Parties' theory conflates the sense of these two statutes, which depart from one another based on the verbs used in their text. BH & P involved the question of whether one person appointed as trustee for all of the related Chapter 7 cases of a corporation and its two individual principals could be a "disinterested person" within the definition of § 101(14), when there were claims cross-running between the estates. The BH & P ruling was expressly directed toward the situation of "multiple debtors served by a single trustee," 949 F.2d at 1310, where the potentially-conflicting "interests" were all subject exclusively to a bankruptcy process. This configuration was different from the one at bar. However, the statutory text is the statutory text; it does not draw a distinction between the two configurations, or give any support to a refinement of the BH & P construction; and thus the Third Circuit's analysis should apply to the situation at bar. [27] For instance, the closing words of § 101(14)(C) broaden the source of a materially-adverse interest to "any direct or indirect relationship to, [or] connection with . . . the debtor." That could support a reading of the verb "have" beyond the denotation of ownership or possession in a personal capacity. [28] See 13 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 66.03[2] (3d ed.2007) (receiver is officer of the court presiding over litigation that concerns property entrusted to receiver). [29] Per local media reports, Kelley has been making disbursements of various sorts from receivership assets, to pay maintenance-related expenses personal to Tom Petters and his dependents, and toward the cost of his criminal defense. The record at bar has no content that goes to this, but it appears that these expenditures have been made out of assets traceable to Tom Petters in his individual capacity. Per the statements of bankruptcy counsel, Kelley has, with the District Court's authorization, used funds from the receivership over Tom Petters individually, i.e., moneys derived from assets titled in him, to meet the initial administrative expenses for PGW's bankruptcy case. These details are not relevant to the dispute at bar; they are mentioned only to qualify the reference to the Receiver's duty to "hold in place," and to specify that it applies to asset-value net of the operation of the receivership. [30] In a footnote-aside in the Ritchie Parties' brief, counsel referred to the District Court's nomination of Kelley as its agent, "accountable directly to the Court," and then made its prediction of the consequence of approving Kelley's appointment as trustee:
Thus, with respect to any given action, Kelly must answer not only to [the bankruptcy] court and the creditors, but also to the District Courta circumstance rife with likely conflicts. As baleful and portentous as this verbiage sounds, it is so vague that it has no place in an argument that is to be structured under legal principles. [31] The one case cited, In re 400 Madison Ave. Ltd. P'ship, 213 B.R. 888 (Bankr.S.D.N.Y. 1997), does not stand for the proposition noted. Its holding, essentially, is that there is no place for the role, status, or function of a receiver within the bankruptcy case, that "the receiver has absolutely no responsibility . . . to perform any other duties which are the prerogative and burden of a debtor-in-possession and a trustee." 213 B.R. at 894-895. [32] Judges in at least one district courtfor the Southern District of New Yorkhave found no anomaly in equating a person who had been the pre-bankruptcy receiver of a company, appointed as such by a federal court, with a managing officer who would be empowered to carry out the duties of a debtor-in-possession, where the receiver had been court-authorized to file a petition under Chapter 11 for the company and the order of appointment had provided for the subject individual to "be deemed a debtor-in-possession for [the company] in proceedings under Chapter 11 . . ." In re Bayou Group, L.L.C., 363 B.R. 674, 680 (S.D.N.Y.2007). See also S.E.C. v. Byers, 592 F. Supp. 2d 532 (S.D.N.Y.2008). But, per n. 3 supra, there are colorable arguments to the contrary, based on the Code's text and the legislative history for its 1978 enactment. At oral argument, counsel for the U.S. Trustee advised that the Bayou Group ruling had been appealed to the Second Circuit. [33] The provision in the District Court's December 8, 2008 order for these cases being governed by the Bankruptcy Code would require him to follow through as trustee in that way, regardless; but the layering of his personal recognition makes it a matter of his volition as well as court mandate and automatic operation of statute. Since Kelley's performance will be governed by the Code's regulatory structure for trustees, this takes care of the Ritchie Parties' concern over the District Court's grant of judicial immunity to him. That was there, this is here. [34] The conviction of the owner of the assets is a prerequisite for the commencement of criminal-forfeiture proceedings; criminal-forfeiture proceedings result in an in personam order against the defendant. United States v. Vampire Nation, 451 F.3d 189, 202 (3d Cir. 2006); United States v. Lazarenko, 476 F.3d 642, 647 (9th Cir.2007). Once an order of forfeiture is entered, third parties that assert an interest in the defendant's assets may assert them in an ancillary proceeding under 21 U.S.C. §§ 853(k) and 853(n). United States v. Puig, 419 F.3d 700, 703 (8th Cir.2005). The ancillary proceeding is the forum through which third parties may obtain an adjudication of their interests in the property, so that those interests may be protected from the forfeiture of the defendant's interests. United States v. Totaro, 345 F.3d 989, 993-994 (8th Cir.2003). This clearly would give Kelley a forum to assert that only the residual equity interest of Tom Petters or any convicted corporate defendant should be subject to forfeiture, after all allowed creditors' claims had been satisfied through the bankruptcy process. [35] Such a measure would, of course, be a matter for the District Court alone. [36] They also note that two of the counts of the criminal indictment are based on allegedly-fraudulent transactions by PGW subsidiaries, resulting in PGW being criminally charged under the umbrella of conspiracy. And this, they say, further erodes the Ritchie Parties' demand that the bankruptcy process for PGW must be quarantined from the administration of the PCI-related estates, on the alleged ground that the two major parts of Tom Petters's enterprise were free-standing and fraudulent activity was purveyed through the PCI structure alone. [37] The BH & P opinion does not mention Rule 2009(d), which was on the books in 1991, with a text nearly identical to today's. But, clearly, the rule speaks directly to the problem at bar. [38] It has long been recognized that economy is a proper consideration in the matter of appointing one trustee in jointly-administered cases. In re Int'l Oil Co., 427 F.2d 186, 187 (2d Cir.1970) (per curiam) (decided under Bankruptcy Act of 1898); In re Ben Franklin Retail Stores, Inc., 214 B.R. 852, 859 (Bankr. N.D.Ill.1997). [39] "The election or appointment of a [single] trustee [in jointly-administered cases] does not alter substantive rights of creditors or change the character of the estate." In re Ben Franklin Retail Stores, Inc., 214 B.R. at 857. [40] One court has gone so far as to opine that "[s]ubstantive consolidation should be invoked `sparingly' where any creditor or debtor objects to its use." In re Reider, 31 F.3d 1102, 1109 (11th Cir. 1994). | 10-30-2013 | [
"401 B.R. 391 (2009) In re PETTERS COMPANY, INC., et al, Debtors. (includes: Petters Group Worldwide, LLC; PC Funding, LLC; Thousand Lakes, LLC; SPF Funding, LLC; PL Ltd., Inc. Edge One LLC; MGC Finance, Inc.; PAC Funding, LLC; Palm Beach Finance Holdings, Inc.). Nos. 08-45257, 08-45257, 08-45258(GFK), 08-45326(GFK), 08-45327(GFK), 08-45328(GFK), 08-45329(GFK), 08-45330(GFK), 08-45331(GFK), 08-45371(GFK), 08-45392(GFK). United States Bankruptcy Court, D. Minnesota. February 26, 2009. *393 James A. Lodoen, Lindquist & Vennum P.L.L.P, Minneapolis, MN, for Debtors. Michael Fadlovich, Michael E. Ridgway, Robert Raschke, US Trustee Office, Minneapolis, MN, for U.S. Trustee. ORDER OVERRULING OBJECTION OF RITCHIE SPECIAL CREDIT INVESTMENTS, LTD., ET AL, TO APPOINTMENT OF TRUSTEE IN CHAPTER 11 CASES, AND APPROVING APPOINTMENT GREGORY F. KISHEL, Bankruptcy Judge. These jointly-administered Chapter 11 cases came on before the Court on January 27, 2009, for hearing on an objection to the United States Trustee's appointment of Douglas A. Kelley, Esq., as Trustee for all of the Debtors in these cases.",
"The objectors, Ritchie Special Credit Investments, Ltd. and other creditor-parties related to it (collectively, \"the Ritchie Parties\") appeared by their attorneys, James M. Jorissen, Leonard, O'Brien, Spencer, Gale & Sayre, Ltd., Minneapolis, and Bryan Krakauer, Sidley Austin LLP, *394 Chicago. The United States Trustee appeared by his attorneys, Michael E. Ridgway and Robert B. Raschke. The Unsecured Creditors' Committee for these cases (\"the Petters Committee\") appeared by its attorney, David E. Runck, Fafinski Mark & Johnson, P.A., Eden Prairie. Douglas A. Kelley, the Trustee-appointee, appeared personally and by James A. Lodoen and George H. Singer, Lindquist & Vennum, P.L.L.P., Minneapolis. Ronald R. Peterson, Esq., Chicago, trustee for the bankruptcy estates of Lancelot Investors Fund, L.P., et al, participated in the hearing in that capacity.",
"Dennis M. Ryan, Faegre & Benson, Minneapolis, and Richard A. Chesley, Paul, Hastings, Janofsky & Walker LLP, Chicago, appeared as prospective counsel for the Unsecured Creditors' Committee in In re Polaroid Corporation, et al., BKY 08-46617 (\"the Polaroid Committee\"). The following order is based on the record made for the hearing. INTRODUCTION These Chapter 11 cases were commenced by voluntary petitions filed during October, 2008. Petters Company, Inc. (\"PCI\") and Petters Group Worldwide, LLC (\"PGW\") are the debtors in the two lead cases of the group. PCI and PGW were established by one Thomas J. Petters in 1987-1988, as \"holding companies\" for other entities through which he was to own and conduct various business enterprises and transactions. In his individual capacity, Petters is the sole shareholder of both PCI and PGW.",
"[1] Except for Palm Beach Finance Holdings, Inc., all of the other debtors in this group of cases are subsidiaries of PCI, i.e., business entities as to which PCI is the shareholder or equity holder. Tom Petters is the sole shareholder in Palm Beach Finance Holdings, Inc. Polaroid Corporation, a subsidiary of PGW, has been in Chapter 11 in this Court since mid-December, 2008. Its case is being jointly administered with those of nine other business entities related to it, in a case-grouping separate from the one at bar. [2] A number of other entity-subsidiaries of PCI or PGW are not in bankruptcy at this time. When the PCI/PGW cases were commenced, Tom Petters was not the individual who authorized the filings. Nor did he sign the petitions to commence the cases. At that time, Tom Petters lacked the legal authority to do these acts; and, in a way, he was hampered physically from signing. Tom Petters was in the custody of the United States, incarcerated and charged with several felony offenses including mail and wire fraud. His personal assets and the bulk of his business enterprises were under the control of a receiver appointed by the United States District Court for this District.",
"Under express authorization from the District Court, the Receiver, Douglas A. Kelley, Esq., signed the bankruptcy petitions and put the Debtors into bankruptcy. Tom Petters has had no involvement with these cases since their commencement. All decision-making and action on behalf of the bankruptcy estates *395 has been considered, undertaken, and effected by Kelley, with the advice and representation of bankruptcy counsel. On motion of the United States Trustee, this Court directed the U.S. Trustee to appoint a trustee or trustees for these cases, pursuant to 11 U.S.C. § 1104(a).",
"[3] On December 24, 2008, the U.S. Trustee appointed Kelley as trustee for all of the cases, and applied for an order approving the appointment pursuant to FED. R. BANKR. P.2007.1(c). [4] The Ritchie Parties timely filed an objection[5] to the U.S. Trustee's appointment. The U.S. Trustee's appointment, and the Ritchie Parties' objection, are the matter at bar. The theory of the objection is summarized by the very first sentence of the Ritchie Parties' written submission: \"Inherent, intractable and immediate conflicts of interest preclude Kelley from serving as Trustee for all the Debtors [in these jointly-administered cases].\" FURTHER BACKGROUND[6] The Relevant Civil and Criminal Proceedings These bankruptcy cases are the product of a swirl of events that began on Wednesday, *396 September 24, 2008. On that date, agents of the Federal Bureau of Investigation, the Criminal Investigation Division of the Internal Revenue Service, and the United States Postal Inspection Service executed a search warrant at the Minnetonka, Minnesota headquarters of Tom Petters's business entities.",
"They seized and removed records of the Debtors, Tom Petters, and other individuals. Within a day after the execution of the search warrant, a criminal defense attorney retained by Tom Petters asked Douglas A. Kelley, Esq., to represent the various entities of Tom Petters's business enterprise. [7] Two days after that, Kelley was contacted by an Assistant United States Attorney for the District of Minnesota. On behalf of the Department of Justice, the AUSA wanted to discuss Kelley's prospective role as counsel for the Petters entities and the intentions of the United States toward the assets and operations of Petters's business enterprises. In the wake of that conversation, the U.S. Attorney did not take action on behalf of the United States to seize the assets of Petters or the Petters businesses under color of civil or criminal forfeiture. This meant that Sun Country Airlines and Polaroid Corporation were able to continue their business operations in the marketplace.",
"On Kelley's advisory in relation to the government's forbearance, Tom Petters resigned his offices and positions with PCI, PGW, and all related entities on Monday, September 29, 2008. He physically vacated his office at the corporate headquarters on that date. During the following several days, Kelley conducted a factual investigation of the surroundings into which he had placed himself. He started the task of determining the scope of the assets and operations of the Petters business entities; he interviewed various of their employees; he interviewed potential counsel to assist him; and he fielded inquiries from creditors and other persons. He also had numerous and frequent contacts with employees of the office of the United States Attorney, discussing options to preserve the values of the Petters enterprises for the benefit of those who would be entitled to that value. During this week, the office of the United States Attorney took no action toward a government seizure of any part of the Petters enterprise. In the meantime, the Ritchie Parties had commenced a civil action in the Circuit Court of Cook County, Illinois, by a filing made on September 29, 2008.",
"The Ritchie Parties are a Chicago-based group of hedge funds and other investment vehicles. In their lawsuit, they asserted rights to payment under a series of promissory notes executed by Tom Petters and PGW or PCI. They also claimed to have been defrauded by the makers of the notes. The Ritchie Parties obtained an ex parte temporary restraining order from that court against Tom Petters, PCI, and PGW. That order restricted the disposition of those parties' assets other than transfers made in the ordinary course of business.",
"Kelley learned of the Ritchie Parties' lawsuit during the week of September 29. On Thursday, October 2, 2008, he advised *397 the United States Attorney's office of it. The United States Attorney then filed a complaint in the United States District Court for this District, under the caption United States of America v. Thomas Joseph Petters, et al. In it, the government sought various forms of legal relief toward the containment and assemblage of the assets of Tom Petters and the entities in his business enterprise, and protection against the further use of those assets in connection with an \"elaborate scheme to defraud individual and group investors.\" The government also sought to prevent the dissipation of assets or their value by Tom Petters or anyone in consort with him.",
"The government \"estimated that the Defendants [had] to date profited in excess of $3 billion from their illegal activities.\" The named defendants in this proceeding were Tom Petters, PCI, PGW, and other individual persons alleged to have participated in a pattern of fraudulent activity ultimately attributed to Tom Petters. The remedies invoked in the complaint were equitable in nature: interim injunctive relief to prevent the defendants or those in consort with them from taking any further action affecting the assets, and an accounting for the whereabouts of liquid assets. The government also prayed for \"such other additional relief as the Court determines to be just and proper.\" In an early-filed first amended version of the complaint, this catch-all request specifically included \"the appointment of Receivers.\" This civil action was given file no.",
"08-cv-05348. It was assigned to Judge Ann D. Montgomery of the United States District Court. On Friday, October 3, 2008, Judge Montgomery granted an ex parte temporary restraining order, essentially freezing all of the assets of PCI, PGW, and all related entities owned or controlled by them. On that same day, October 3, 2008, Tom Petters was arrested on federal charges of mail and wire fraud, money laundering, and conspiracy. He remains in federal custody to date. He is now under indictment for those offenses, a federal grand jury having returned such in 20 counts on December 1, 2008. Meanwhile, in their civil action in Cook County, Illinois, the Ritchie Parties filed an ex parte request for the appointment of a receiver over PCI and PGW on Friday, October 3. Asserting that their collateral would be in jeopardy otherwise, they cited the pendency of the criminal proceedings, the resignation of the companies' management, and an indeterminacy of Kelley's legal authority.",
"Kelley and the United States Attorney learned of this request during the weekend of October 4-5. On October 6, 2008, the Illinois court entered an order appointing one William \"Billy\" Procida as Receiver for both PCI and PGW. The order gave Procida \"the authority to take possession of the Collateral.\" As a term, \"the Collateral\" was not otherwise defined in the text of the order. Apparently, it referred to all assets of PCI and PGW in which the Ritchie Parties asserted security interests or liens. Beyond that, however, the order granted Procida \"all of the usual powers of a receiver, including without limitation, management and operation of [PCI and PGW], collections of receivables, rents, and other Collateral.\" It gave him other broad powers, including the ability to \"hire and fire employees and make all other necessary employment decisions\" and to make \"payment of ... necessary expenses, including reasonable compensation for himself,\" without the obligation \"to apply to the Court for approval of such fees.\" The United States Attorney's office then took action in the civil proceeding in the United States District Court here, to request *398 the appointment of a receiver under federal law, 18 U.S.C.",
"§ 1345(a)(2)(B)(i)-(ii). [8] Kelley's name was among those submitted to Judge Montgomery for her consideration in the appointment. On October 6, 2008, Judge Montgomery entered an order appointing Kelley as Receiver of PCI, PGW, \"and any affiliates, subsidiaries, divisions, successors, or assigns owned 100%\" by PCI or PGW. The United States and Tom Petters had stipulated in writing to the entry of this order. In a later order, entered on October 14, 2008, she appointed Kelley as Receiver for all but one of the remaining individual defendants being prosecuted in conjunction with the criminal case against Tom Petters. [9] Pursuant to authority granted in the District Court's orders, Kelley then hired counsel to represent him for all legal matters entailed by his status as receiver.",
"Later he hired other professionals, including a team of forensic accountants whom he tasked with reconstructing and tracing the flow of funds and assets through the various entities in Tom Petters's business enterprise. On October 10, 2008, the Illinois state judge presiding over the Ritchie Parties' lawsuit determined that his court's orders for a freeze of PCI's and PGW's assets and appointing Procida as receiver had \"expired and [were] of no present effect.\" Essentially, the Illinois judge deferred to the United States District Court's appointment of Kelley. Expressly relegating the Ritchie Parties to \"their rights on appeal or otherwise with respect to the Minnesota District Court's order,\" he deferred further consideration of the proceeding before him to mid-April, 2009. KELLEY'S RECEIVERSHIP: THE SPECIFICS Four different forms of order providing for the appointment of Kelley as Receiver have been entered in file no. 08-cv-05348.",
"The first, entered on October 6, 2008 as previously noted, named Kelley as Receiver for PCI, PGW, \"and any affiliates, subsidiaries, divisions, successors, or assigns owned 100% or controlled by\" those two entities. [10] This order authorized him to take certain specific actions in relation to PCI, PGW, and the other entities under his receivership; it amounted to a grant of near-plenary power to amass their assets and to control them while he continued to hold them. In specific, he was empowered to: \"[c]onserve, hold, and manage all receivership assets, and perform all acts necessary or advisable to preserve the value of those assets in order to prevent any irreparable loss, damage, or injury to consumers or creditors of the Entities [under the receivership], including but *399 not limited to obtaining an accounting of the assets [and] preventing transfer, withdrawal, or misapplication of assets and including ... filing any bankruptcy petitions for any of the Entities [under the receivership] to protect and preserve the assets of any of [them] and acting as management or Debtor in Possession of any of the Entities so filed by the Receiver...\" (emphasis added).",
"The second, entered on October 14, 2008, made Kelley the Receiver of the assets and business operations of Tom Petters individually, and of other individuals who were named defendants. [11] The third, entered on October 22, 2008, amended the terms of the two earlier orders via a partial reorganization and reformatting of the provisions for Kelley's authority. Its one major addition was the creation of a \"Stay of Actions against Receivership Defendants,\" in the form of an injunction against any judicial or extra-judicial \"action that would interfere with the exclusive jurisdiction of [the District] Court over the assets or documents of the Receivership Defendants.\" The fourth version, the one currently effective, was docketed on December 8, 2008.",
"It was entered on Kelley's motion and over the objection of certain creditors of PCI, PGW, or their affiliates. In pertinent part, it provides first that Kelley is: ... appointed Receiver for [Tom Petters, PCI, PGW, and the other individual defendants] with the full power of an equity Receiver. The Receiver shall be solely the agent of this Court in acting as Receiver under this Order and shall have judicial immunity. The Receiver shall be accountable directly to this Court and shall comply with any local rules of this Court governing receivers, as well as the Federal Rules of Civil Procedure.",
"He is appointed Receiver for [Tom Petters, PCI, PGW, and the other individual defendants] until such time as real or perceived conflicts arise, at which time he will consult the Court to determine how to proceed. It then gives him \"all necessary powers to accomplish the following\": 1. Take exclusive immediate custody, control, and possession of all the property, assets, and estates belonging to or in the possession, custody, or under the control of [Tom Petters, PCI, PGW, and other individual and corporate defendants], wherever situated, except those assets seized by the United States pursuant to valid orders of a court. The Receiver shall have full power to divert mail and to sue for, collect, receive, take in possession, hold, liquidate or sell and manage all assets of [Tom Petters, PCI, PGW, and the other defendants] and other persons or entities whose interests are now held by or under the direction, possession, custody, or control of [Tom Petters, PCI, PGW, and the other defendants]; 2. The Receiver shall also assume control over all ongoing business operations in which [PCI, PGW, and the other defendants] have a controlling interest.",
"With regard to these business operations, the Receiver shall: ... c. Manage, administer, and conduct the operations of the ongoing legitimate business operations of [Tom Petters, PCI, PGW, and the other defendants], until further Order of this Court, by performing all incidental *400 acts that the Receiver deems to be advisable or necessary; including but not limited to filing any bankruptcy petitions for any of the [Petters business] entities to protect and preserve the assets of any of the entities. Any bankruptcy cases so commenced by the Receiver shall during their pendency be governed by and administered pursuant to the requirements of the United States Bankruptcy Code, 11 U.S.C. section 101 et seq., and the applicable Federal Rules of Bankruptcy Procedure. Notwithstanding the foregoing, any claims arising under federal laws relating to forfeiture and restitution (1) against or to recover assets of the bankruptcy estates of such bankruptcy cases, or (2) for distribution from such bankruptcy cases, are preserved and not affected in any way by this paragraph.",
"[12] ... 6. Coordinate with representatives of the United States Attorney's office and Court personnel as needed to ensure that any assets subject to the terms of this Order are available for criminal restitution, forfeiture, or other legal remedies in proceedings commenced by or on behalf of the United States;[13] ... THE BANKRUPTCY CASES: COMMENCEMENT AND CONDUCT Under the authorization of Term IV.B.4. of the October 6, 2008 order, Kelley had his attorneys prepare petitions for bankruptcy relief under Chapter 11 for PCI, PGW, and several of PCI's subsidiaries. He signed the petitions in his status as Receiver. They were filed, variously, on October 11 (Petters Company, Inc. and Petters Group Worldwide, LLC); October 15 (PC Funding, LLC; Thousand Lakes, LLC; SPF Funding, LLC; PL Ltd., Inc.; Edge One LLC; and MGC Finance, Inc.); and October 17, 2008 (PAC Funding, LLC).",
"The petition for Palm Beach Finance Holdings, Inc., a corporation owned directly by Tom Petters as sole shareholder, was filed on October 19, 2008. After these cases were commenced, Kelley exercised authority over the ongoing business operations of PCI, PGW, and the other Debtors. He worked with the bankruptcy counsel whose employment for the Debtors had been court-approved, to meet the various filing and compliance duties of a debtor-in-possession under statute, rule, and United States Trustee prescription. With bankruptcy counsel, he brought and prosecuted various motion proceedings in these cases.",
"For all this, he asserted the authority to \"act[] as management or Debtor-in-Possession of any of the Entities so filed [into bankruptcy] by the Receiver,\" under the District Court's orders of October 6 and 22, 2008. Early in these cases, however, attorneys for the United States Trustee raised the substantive concerns identified in n. 3, suprai.e., whether bankruptcy law countenanced Kelley acting in the capacity of a *401 debtor-in-possession in Chapter 11 cases under color of the District Court's order alone, given that the Debtors had no continuing management personnel independent of the bankruptcy process. The issue was made more pointed by the District Court's express contemplation that the substantive law of the Bankruptcy Code would govern the cases of any of the Petters business entities. The issue, abstruse as it was, was novel; it was not significantly explored in published case law, and apparently there was no published decision that was on all fours factually and procedurally.",
"The issue implicated the authority of two different federal forum courts, and it seemed to require the harmonization of alternate schemes of legal governance. Ultimately, the United States Trustee forced the issue by filing his motion for appointment of trustee on December 2, 2008. After evaluating the very unsettled nature of the legal issues, and in light of the need to conserve resources to address the massive substantive complications of all of the Petters-related cases in all courts, Kelley did not oppose the U.S. Trustee's motion. [14] The U.S. Trustee appointed Kelley when he was directed to exercise his appointment authority; and in turn, the Ritchie Parties objected to the appointment, reprising the demands they made in response to the U.S.",
"Trustee's initial motion. By the time the objection got to a hearing, the Petters Committee and the Polaroid Committee had aligned with the U.S. Trustee, in opposition to the Ritchie Parties. For the hearing, Kelley presented a recap of case history that, he submitted, showed the objection to lack foundation. In the meantime, and in an unbroken line since the commencement of these cases, Kelley has acted, de facto, as if he were a managing officer of these Debtors for the purposes of all their post-petition activity, related to the Chapter 11 process or not. There was no one else to do these things. There is no indication in the record for this motion that Kelley has ever taken any action that was self-interested, contrary to the interests of the bankruptcy estates, or in any way inconsistent with the obligations of a fiduciary steward of the estates.",
"DISCUSSION[15] I. Introduction A. The Ritchie Parties' Perceived Stakes, and Their Motives as Objectors Before launching into the analysis, it is important to note one thing: the Ritchie Parties do not come forward as neutral, distanced friends of the abstract value of integrity in the administration of bankruptcy estates, as their rhetorical rectitude would suggest. Rather, they project a powerful self-interest onto the strategic plane. Identifying the elements of their self-interest does much to illuminate the predicates of their objection. For the great majority of their claim, the Ritchie Parties assert the status of contractual creditors to which PGW alone *402 was indebted. As such, they maintain, they are entitled to a pro rata share of the estate of that Debtor alone. More specifically, they insist that they must not be forced to share with claimants that had been in contractual privity with PCI or its subsidiarieswhether that sharing were to be forced via substantive consolidation of the bankruptcy estates or by other means. This could be a matter of some magnitude. PGW apparently was Tom Petters's holding company for subsidiaries that maintained ongoing operating businesses.",
"At least some of those operating businesses had substantial assets of real value when PGW was put into bankruptcy. On the other hand, PCI has been portrayed as his holding company for \"single purpose entities,\" corporations formed to handle one-time acquisitions of large lots of high-ticket consumer merchandise or other goods, each one procuring the attendant financing in its own right. At least from Kelley's early investigation, it appears that many of these one-shot companies had neither goods nor money when these bankruptcy cases were commenced, their business deals unconsummated. The suspicion is that the enabling funds were spirited away into other sectors of Tom Petters's business structure. [16] One really cannot gainsay the Ritchie Parties for their objection; their exposure is large, rendering high the stakes on their participation in the bankruptcy process. [17] Thus, the wellspring of the Ritchie Parties' position for their objection stems from their wish to have their claims, or at least the bulk of them, allowed in the case of PGW alone.",
"If this were done, they would share pro rata in a distribution from the one estate that promises to liquidate its debtor's valuable subsidiary companies down to a very substantial corpus to apportion to creditors. [18] The Ritchie Parties fear the alternate scenario, having their claims allowed against the PCI estates; there, the recovery of any significant value for distribution to creditors is uncertain and litigation-dependent. They also oppose the substantive consolidation of the estate of PGW with that of PCI or any of the other Debtors, which they project to greatly dilute their pro rata share of any distribution.",
"Thus, the Ritchie Parties make their bid for the appointment of a separate trustee for PGW. They envision such an appointee as virtually mandated to resist substantive consolidation, piercing of the corporate veil, cross-allowance of claims, or any other measure that could lead to the reduction of their in-hand distribution. And they clearly believe that a separate trustee would have to do all things possible to box *403 off the Chapter 7 process for PGW from the rest of these cases. On the broader plane of Kelley's own disinterestedness, they project a palpable fear of a different outcome, which they insist could result from Kelley's court-appointed status outside of bankruptcy: the chimera is that as receiver Kelley has the duty to aid the government in any seizure of all of the value to be garnered from Tom Petters's business enterprise, via forfeiture or ancillary to a restitution process in the criminal case(s), with all that potentially going to those holding the status of \"victims\" within the meaning of the criminal law, and none going to any party in the status of \"creditor\" under the bankruptcy laws.",
"They see this ostensible obligation as subordinating the fiduciary duty imposed by a trustee status in Kelley's administration; and this, they say, would leave creditors of the various Debtors unsatisfied on their claims, or undersatisfied as compared to their expectancy through a bankruptcy process. B. The Ritchie Parties' Goals, as to Trustee Appointment The Ritchie Parties' two distinct fears stream into the two separate thrusts of their legal theory. On the one hand, they propound an \"external conflict\" on Kelley's part, a circumstance arising outside the structure of these bankruptcy cases. They argue that this conflict would bar him from serving as trustee for any of the Debtors. On the other, they allege an \"internal conflict,\" one arising from factors internal to the bankruptcy processes for these Debtors. [19] This one, they say, bars Kelley or any other one person from serving as trustee simultaneously for all of the Debtors. They insist that the bankruptcy estate of PGW must have its own trustee, a person other than the trustee to be appointed for the estates of PCI and the other Debtors. In their broader attack, the Ritchie Parties would have the Court nullify the appointment of Kelley across the board, leaving it for the U.S. Trustee to appoint at least two other persons as trustees within this grouping of cases. As a fallback, though, they state that \"one for PGW\" i.e., a separate trustee for that Debtor in the person of someone other than Kelley \"would be fine for us,\" with the U.S.",
"Trustee's appointment of Kelley for the remaining cases to be left intact. [20] II. Analysis A. The Allegation of an External Conflict: 11 U.S.C. §§ 1104(d) and 101(14)(C) In the Ritchie Parties' view, Kelley's pre-petition status as a court-appointed receiver for Tom Petters and the whole range of business entities owned or controlled by him, a circumstance pre-dating the bankruptcy filings and persisting in some way since then, prevents him from qualifying as trustee for any of the Debtors. The Ritchie Parties build out this theory on the requirement of 11 U.S.C. § 1104(d), that any trustee appointed post-petition for these cases be a \"disinterested person. \"[21] The Bankruptcy Code defines the *404 term \"disinterested person,\" in pertinent part, as \". . .",
"a person that . . . (C) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor, or for any other reason . . .\" 11 U.S.C. § 101(14)(C). [22] The Ritchie Parties insist that Kelley's charge and role under the District Court's receivership orders give him an \"interest materially adverse\" to a substantial class of parties in interest to these cases. They define those parties as the claimants whose claims would stem from a status of \"contractual creditors\" of one or more of the Debtors, in particular of PGWtrade creditors that supplied goods or services to enable the maintenance of the Debtors' business operations, and at least some lenders of money to specific Debtors.",
"They distinguish this class of parties from those whom they call \"victims.\" They define the latter as those \"investors\" who \"provid[ed] funds for, and financing to,\" the Debtors and other entities in the Petters structure, and were induced to do so by fraud on the part of Tom Petters or others. [23] Per the Ritchie Parties, the material adversity to the former class would arise from the directive to Kelley under Term IV.B.6. of the December 8, 2008 order, to \"[c]oordinate with representatives of the United States Attorney's office and Court personnel as needed to ensure that any assets [garnered and administered by Kelley as Receiver] are available for criminal restitution, forfeiture, or other legal remedies in proceedings commenced by or on behalf of the United States . . .\"",
"(emphasis added). The Ritchie Parties rely entirely on the operative verbs here, \"coordinate\" and \"ensure,\" coupled with the static notion of receivership assets being \"available for criminal restitution, forfeiture, or other legal remedies\" that the government may seek from the District Court. From those words, they extrapolate that Kelley is: 1. \". . . obligated to assist the government with forfeiture . . . \"; 2. \". . . charged with seeking redress for the victims of [Tom] Petters's fraud . . . \"; and 3. \". . . expressly commanded to make [the] Debtors' assets available for, *405 and thus not to oppose, any forfeiture or other action by the United States on behalf of victims .",
". . \"[24] In further shadings and extensions of the same accusation, they insist that: 4. Kelley's charge is to \"maximize the assets of the receivership\" and \"in essence to help the United States build its case\" for forfeiture; 5. Kelley's \"job\" is \"to put a context around those assets [i.e., those he would recover on account of the past business dealings of PCI and PGW] to bring them into the receivership estates\"; 6. there is \"active assistance in what is going on,\" as between Kelley's performance as receiver and the government as prosecutor, and \"a cooperative element that is going on. . . \"; 7. the United States, in its role as prosecutor, \"is the major party to the receivership,\" which \"at the end of the day\" will \"make some claim to the assets of the receivership\"; and 9. \"a tenor of the [receivership] order. . . clearly requires\" Kelley \"to assist the United States. \"[25] Under this characterization of Kelley's duties as receiver, the Ritchie Parties argue that \"real and immediate conflicts [would] arise with respect to Kelley's dual roles as Receiver and Trustee,\" giving him \"an interest materially adverse\" that prevents him from being disinterested as the statute requires. There are several reasons why this argument is wrong. First, it does not recognize the applicable statutory language. Section 101(14)(C) uses the verb \"have,\" a word that denotes possession, in a personal capacity.",
"See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 1039 (2002 ed.) (defining \"have\" as, inter alia, \"to hold, keep, or retain especially in one's use, service, regard, or affection or at one's disposal. . . \"). In construing § 101(14)(C), the Third Circuit Court of Appeals found that Congress's choice of this language was intentional; in the Third Circuit's view, the choice of verb narrowed the source of disqualification to adverse interests held by a prospective trustee personally, and did not extend to interests to which the trustee had the relationship of representative. In re BH & P, Inc., 949 F.2d 1300, 1310 n. 12 and 1311 (3d Cir.1991).",
"[26] The Third Circuit's *406 parsing of statutory language and conceptual structure is lengthy and careful. It supports the rejection of the Ritchie Parties' argument here, at a very basic level: in his status as Receiver, Kelley does not \"have\" an interest of any sort that is even cognizable under § 101(14)(C), and hence he is not deprived of the disinterestedness that is required of a trustee for any of the Debtors. This conclusion is based on somewhat abstract considerations, as to an issue that is not very developed in the case law. One can envision arguments against it. [27] But even if one were to recognize Kelley as \"having\" an interest of some sort via his receivership, the structure of his past relationship in that capacity with the Debtors now in bankruptcy is simply not the one that the Ritchie Parties impute in such florid fashion. Under the objection, the implication is that Kelley, under his charge as Receiver from the District Court, is inescapably bound to any future election by the government to seize all of the assets of the whole Petters enterprise through the processes of the criminal cases. As the Ritchie Parties would have it, Kelley is not only beholden, virtually as a cat's paw, to assemble and ready these assets for that end, and that end only; he must also actively assist the government in preparing a case at law for the forfeiture or diversion of the assets through the restitution process.",
"This simply is not supported by the boundaries drawn by the statute under which Kelley's receivership was created, or by the scope and nature of the authority that Kelley has, as a receiver who is an officer of the District Court. [28] The statute, quoted supra at n. 8, contemplates the appointment of a receiver only for the administration of injunctive relief against the further disposition of assets that are implicated in banking law violations. Cf. Aviation Supply Corp. v. R.S.B.I. Aerospace, Inc., 999 F.2d 314, 316-317 (8th Cir.1993) (listing comparable considerations for appointment of receiver in federal case under diversity jurisdiction). Its language does not contemplate any advocacy role for the receiver in determining and effectuating a legally-proper, final disposition of such assets. As to the specific incidents of a receiver's powers and mission, the district court's order is the sole source from which the scope of the authority is to be determined. Liberte Capital Group, LLC v. Capwill, 462 F.3d 543, 551 (6th Cir.2006) (\"As an officer of the court, the receiver's powers are coextensive with his order of appointment .",
". . \"); Resolution Trust Corp. v. Bayside Developers, 43 F.3d 1230, 1241 n. 8 (9th Cir.1994). See also 13 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 66.03[2] (3d ed. 2007) (\"The district court that appoints the receiver establishes the extent of the receiver's authority . . . \"). The terms of Judge Montgomery's receivership orders, even in the most involved version entered on December 8, 2008, do not vest Kelley with any \"interest\" at all, let alone one that is coeval with those of the United States or aligned with them. The terms do not charge him with protecting or advancing the interests of the United *407 States.",
"They do not obligate him to work in consort with the federal prosecutors in any degree, to advance any strategy on the government's part. Rather, the directives to Kelley are unadorned. They mandate him to take control of those assets that were immediately accessible to him after the appointment; to recover further liquid value via collection on rights to payment, sale of assets, or management of income streams; to manage all such acquiesces to preserve their value; and if warranted, to use the bankruptcy process for eligible Petters-related entities to further those basic missions. After that, the only duty imposed on Kelley from the face of the receivership orders, is to \"hold in place,\" to keep the assets secure pending their ultimate disposition via separate court proceedings.",
"[29] There is nothing more than that to be read into the duty to \"coordinate\" with the United States Attorney. The verb here is not loaded with any meaning suggestive of a current, joint action toward government seizure. The notion of having the assets in Kelley's hands \"available for criminal restitution, forfeiture,\" and the like signifies a duty to fully disclose their form and whereabouts and to maintain current liquidity, but only that. This reflects the transparency that our legal system makes incumbent on any entrusted officer of a court, in the performance of obligations to the appointing court. It reflects no more than that. This conclusion is reinforced by the fact that the District Court, as an institution, has no inherent stake in the disposition of the assets in the way that a party would.",
"It acted in furtherance of the general public interest in mitigating further losses to innocent parties, and in maintaining a status quo during the pendency of litigation, in light of accusations of wrongdoing as large and systemic as those made against Tom Petters. [30] It acted on motion of the United States Department of Justice, an agency of the Executive Branch. But the creation of the receivership made the receiver's control over its subject matter chargeable to the court, an institution of the Judicial Branch, with the receiver responsible to the court alone. On its face, the order fixing Kelley's duties as Receiver did not vest him with any interest aligned with the United States, nor mandate any action on his part that would make him its servant, agent, or ally.",
"*408 That analysis goes to Kelley's past status as Receiver, and to any continuing, active duty he would have in the status of Receiver, in relation to the Debtors and their assets. The question now is whether he would even have such a duty going forward were he to assume the status of trustee. The answer to this is not as perfunctory as the U.S. Trustee and the Petters Committee urge, that Kelley's legally-seated role and status as Receiver \"terminated by operation of law\" as soon as the Debtors filed their bankruptcy petitions.",
"The U.S. Trustee has cited no on-point authority for that proposition. [31] Judge Montgomery's order does not expressly terminate the receivership over any of the Debtors upon the filing of a bankruptcy petition. And, the urged result simply does not fit into the structure of the Bankruptcy Code. The Code contains no provision for the termination of the status of a pre-petition receiver upon the filing of a bankruptcy petition that entails the assets subject to the receivership, either automatically or on court order. More to the point, if a receiver's appointment were terminated automatically upon bankruptcy, there would be no warrant for the statutory prohibition of a receiver making post-petition disbursement from the property of the debtor, 11 U.S.C. § 543(a), nor a need for the statutory obligations to turn over to the trustee in bankruptcy all property of the debtor, 11 U.S.C.",
"§ 543(b)(1), and to file an accounting of such property that, \"at any time, came into the possession, custody, or control\" of the receiver, 11 U.S.C. § 543(b)(2) (emphasis added). Finally, by empowering the bankruptcy court to excuse a receiver from the duty of turnover under § 543(b)(1), but not mandating it to do so, the Code expressly countenances the possibility of a receiver both retaining its legal commission post-bankruptcy, and continuing to exercise it. 11 U.S.C. § 543(d)(1). However, the individualized legal governance for this Receiver and prospective trustee, as established by the District Court's orders, will achieve something equivalent, once Kelley performs under that governance as he has promised. With the input of bankruptcy counsel for the Debtors, the District Court clarified in the order of December 8, 2008, that these Chapter 11 cases will go ahead fully governed by the substantive law of bankruptcy.",
"Under the configuration of assets and business operations, that governance necessarily entails the turnover of all property of the Debtors to the control of the steward contemplated by bankruptcy lawin this instance, a trustee in the person of Kelley. Such a turnover has not yet been formally evidenced of record in this case, not the least because the legal posture for such a steward has been anomalous. [32] But to fully harmonize the status, *409 a turnover can now be effected, and hence will be ordered as a condition of approving the appointment. Through the representations of bankruptcy counsel, Kelley has committed to proceeding with the administration of the estates in these cases in accordance with the values and priorities of bankruptcy law. Kelley acknowledges that this will entail maximizing the value of all assets collected, and then distributing them to the holders of all allowed claims against the Debtors, pursuant to statutory priorities and pro rata if necessary, all as the Bankruptcy Code envisions.",
"[33] Addressing the concern most loudly and persistently raised by the Ritchie Parties, Kelley now has committed on the record to resisting any effort by the United States to seize the assets of these Debtors' estates through remedies ancillary to the criminal process, at least until there is a residuum-surplus remaining after satisfaction of all claims through the vehicle of these cases, in accordance with bankruptcy law. And, as the U.S. Trustee points out, the law governing any forfeiture proceeding that might be commenced upon the conviction of PCI or PGW will give Kelley, as trustee, a forum to advocate for the bankruptcy estates' interests in the subject property. [34] Kelley can do no more than state this commitment at this point, and of course he can not guarantee that court-ordered forfeiture or a seizure through restitution will not pluck the assets out of the bankruptcy estates. That will be a matter for Judge Montgomery or another district judge to determine, when and if the government pursues those remedies.",
"But through the statements made by his counsel here, he has committed to advocate for the bankruptcy process in such proceedings, essentially \"bankruptcy first, forfeiture or restitution for the balance,\" i.e., the residual equity value of the components of Tom Petters's enterprise. So, once Kelley's appointment is approved and he formally effects a turnover, *410 the two predicates for the Ritchie Parties' assertion of an \"external conflict\" will be vitiated or extinguished. In the abstract, there may still be a gossamer remnant of Kelley's status as Receiver, unless Judge Montgomery formally terminates it over these Debtors. [35] But the assets of these Debtors will no longer be subject to administration through the receivership; they will be committed to the bankruptcy process, and absent the override of court-ordered forfeiture or a restitution process, their value first will be funneled through bankruptcy to the holders of allowed claims. In sum, then, Kelley's past status as trustee does not make him not disinterested so as to bar his appointment as trustee for these cases.",
"Any such status he may technically retain after a full effectuation of his appointment as trustee will not do so either. The \"external conflict\" urged by the Ritchie Parties is not a ground for disapproving the United States Trustee's appointment. B. The Allegation of an Internal Conflict: FED. R. BANKR.P. 2009 In the alternative, the Ritchie Parties point to circumstances internal to the bankruptcy process for these Debtors: the positioning in a grouping of jointly-administered bankruptcy cases, of a number of closely-tied business entities that apparently engaged in numerous inter-company transfers and transactions pre-petition, and the U.S. Trustee's action in appointing the same person as the trustee for the estates in all of the cases. The Ritchie Parties focus on the appointment of the same person as trustee for the estates of PCI and PGW; they insist that \"serving in both roles .",
". . results in a conflict of interest,\" and that \"[t]he substantial differences between PGW and PCI and the other Debtors lie at the heart of the conflict.\" FED. R. BANKR.P. 2009(c) contemplated the United States Trustee making an appointment in the way he did: (c) Appointment of trustees for estates being jointly administered . . . (2) Chapter 11 reorganization cases If the appointment of a trustee is ordered, the United States trustee may appoint one or more trustees for estates being jointly administered in chapter 11 cases. In turn, FED. R. BANKR.P. 2009(d) addresses and provides guidance for the dispute at bar: (d) Potential conflicts of interest On a showing that creditors or equity security holders of the different estates will be prejudiced by conflicts of interest of a common trustee who has been elected or appointed, the court shall order the selection of separate trustees for estates being jointly administered.",
"The Ritchie Parties divine a conflict of interest from the following reasoning: PGW is a distinct legal entity with a creditor constituency that is separate and distinct from the creditor constituency of PCI and each of the other Debtors. It appears that, while many of Petters's victims had a contractual relationship with PCI and its subsidiaries, very few of them also had a contractual relationship with PGW. These circumstances produced the different creditor constituencies for PGW and PCI, and those constituencies have diametrically opposed interests given the dramatically different financial circumstances of PGW and PCI. *411 They prognosticate that PGW's estate, having \"substantial operating assets, such as Polaroid and Fingerhut, .",
". . with potentially considerable value,\" will likely be in the money, generating a significant distribution to creditors. Their forecast for the PCI-related cases is greatly different: their debtor-entities having \"little or no assets of value\" pre-petition, their administration in bankruptcy will generate much less in liquidation for distribution to the parties that advanced money to finance the revolving transactions in consumer merchandise that Tom Petters purveyed through PCI's single-purpose corporate subsidiaries. Apparently, those that did such financing toward the end of PCI's operations, without seeing the merchandise-sale transactions close so as to enable repayment of their loans, are to be considered the \"victims\" of the Ritchie Parties' nomenclature.",
"The Ritchie Parties would distinguish these claimants from the \"creditors\" of PGWamong which the Ritchie Parties place themselves. Beyond that, the Ritchie Parties allege that the PGW estate and those of PCI and its Debtor-subsidiaries could find themselves in actual opposition, if the forensic-accounting reconstruction of the Petters enterprise's affairs reveals avoidable transfers between related debtor-entities via the broad-scaled commingling that Tom Petters is alleged to have transacted.",
"Citing the result in In re BH & P, Inc., 949 F.2d at 1313-1314, they argue that the possibility of such faceoffs prevents the appointment of a single trustee here. In arguing this, the Ritchie Parties assert the status and standing of creditors of PGW alone. The proponents of Kelley's appointment maintain that the situation is not as clear-cut as that. They point out that PCI, through a wire transfer to its own bank account, received at least one of the substantial advances that the Ritchie Parties made to Tom Petters's enterprise at his request, and that this and other evidence could bind the Ritchie Parties into the administration of the estates of PCI and its debtor-subsidiaries, as creditors there. [36] And, in briefing and at oral argument, the proponents of Kelley's appointment started quite a fracas over the Ritchie Parties' about-face from their position in the Illinois state court; there, they had sought the appointment of one person as receiver for both PCI and PGW, and they got him empowered to do just about anything he chose with both companies, with little court oversight imposed by the terms of the order of appointment. None of the parties who raised these potential blocks specified where they were relevant to the legal analysis.",
"Perhaps they were intended as a challenge to the Ritchie Parties' standing to argue this sort of conflict. Perhaps they were just an effort to discredit and delegitimize the Ritchie Parties' arguments generally, in a connotative sense. One can lay these points to the side where they belong, however. This prong of the Ritchie Parties' objection should be overruled, on its merits, under the present posture of these cases.",
"First, it should be noted that the issue of disqualification of a trustee from serving as to all of the estates of related *412 debtors is to \"be evaluated prospectively on a case-by-case basis\"; and the determination is committed to the bankruptcy court's discretion. In re BH & P, Inc., 949 F.2d at 1313. Second, in ascertaining the existence of disqualifying conflicts, \"horrible imaginings alone cannot be allowed to carry the day.\" Id. (quoting In re Martin, 817 F.2d 175, 183 (1st Cir.1987); interior quotes omitted). Rather, given the governance of Rule 2009(d), the question is whether creditors will actually be prejudiced by any conflicts of interest that are inherent in the posturing of jointly-administered estates. [37] This inquiry is more concrete, and that is entirely appropriate. Rule 2009(c)(2) clearly recognizes the considerations that can support the appointment of a single trustee for related cases: economy; the focusing of expertise; the advantage of building familiarity with complex facts and relationships; efficiency in considering and acting in administration; and greater ease in presenting common disputes to the court.",
"There is also the valid goal of avoiding inconsistent approaches to common problems and the lessening of contradictory outcomes in administrative action. Given the greater probability of pre-petition commingling and the like, as among related debtors, Rule 2009(d) makes no bones about it: joint administration will probably entail some conflicts of interest among the estates, at least in the abstract. The real issue is whether the conflicts bode actual and particularized prejudicereal detrimentto the creditors of one of the debtors, or to a particular creditor-constituency of one of the debtors, as the estates go through administration under the control of a single person, and that administration passes through the procedural and substantive permutations that that one person elects. To their credit, the proponents of Kelley's appointment do not try to bluster their way around the prospect that such prejudice could emerge. Where two or more jointly-administered estates have cross-running claims, where they have competing claims against particular assets, where related debtors had engaged in inter-company transfers, or where related debtors have cross-pledged assets on debt to third parties, conflicting interests may ripen. It could happen at different stagesfor instance, through a proposal for substantive consolidation of estates, where a creditor's expectancy of a particular pro rata distribution from the estate of one could be diluted by a forced sharing with creditors of a related entity.",
"It might not emerge until a proposed distribution of the liquidated value of one debtor in tandem with that of others, whether there had been a substantive consolidation or not. It could come from a trustee's decision to invoke or forgo available bankruptcy remedies for one estate against another, or against third parties. At this early stage of the cases at bar, one cannot deny any of these possibilities out of hand. But on the other hand, the characteristics of these cases and their backdrop cannot be ignored: multiple pending, major criminal prosecutions against key management personnel of the Debtors; the sheer magnitude of the sums of money in question; the present indeterminacy of what happened to build and then fell the edifice of Tom Petters's enterprise; and the large complexities that must be coordinated to responsibly propel bankruptcy procedures *413 forward.",
"These circumstances powerfully support the concentration of attention and effort into one fiduciary steward, at this time and for a while to come. Kelley has gone up an immensely steep learning curve in the last five months; he has had to amass knowledge, and analyze it with his professional persons; he is making use of that to recover assets, via legal proceedings and otherwise. Given the intensity of his own investment of attention to these cases, there is no argument on the considerations of economy and efficiency to be made against appointing Kelley, and him alone, as trustee. [38] Appointing anyone else at this time would entail a two-staged duplication of effort, with a second trustee getting up to speed and the two then going forward on parallel tracks. The significant extra transactional expense to bring a second trustee into the process would be massive, particularly if that trustee were to hire a second group of attorneys and financial analysts. The evaluation of respective options, the determination of whether to coordinate or to go off in opposition, and so forth would cause delay in pursuing recovery of assets or prosecuting causes of action. The Ritchie Parties have not even made a squawk about economy or efficiency supporting or ultimately vindicating the appointment of a second trustee, and there is no credible way they can.",
"At this point, the issue of prejudice under the meaning of Rule 2009(d) is readily answered, and largely by the nature of the large tasks that have only been started. As described at the hearing, Kelley and his professional persons see their work cut out for an extended period, most likely a year or more. As described, their plan does not entail any action or process that would pit the distribution rights of PGW's creditors directly against those of the creditors of any of the other Debtors, until most or all recoverable assets have been garnered in. The first mission of a trustee for these cases is to recover as much value as possible in liquid form, from where it reposed in the Debtors' ownership or from third parties now obligated to account to the bankruptcy estates. After that, the trustee will have to get the legal status of encumbrances against that value ascertained, by stipulation or adjudication.",
"The Ritchie Parties have not identified any aspect of these tasks, administrative in nature or legally-oriented, that would present a trustee with cross-running allegiances. After the recovery and assemblage of the estates' due, the next phase of administration would begin. At that point, a trustee's pursuit of claims cross-running between the estates, or the potential dilution of a realization via substantive consolidation, could raise the prospect of disqualifying prejudice. However, the issue could arise only then, and only then would it get focused. At that time, there would be several different means to resolve the issue of prejudice-causing conflicts among the estates. Kelley himself and the Debtors' counsel have pledged to take action, i.e., to seek appointment of a second trustee or to bring the issue to the court, if they see conflicts-in-the-abstract ripening to untenable.",
"The Ritchie Parties have not said that they trust the Trustee to be responsible in this regard, and they have not said that they don't. But in any event they can renew their motion, after a cash-bearing estate has been assembled and at a time *414 when investigation has made the alignments clearer and more concrete. They could renew their motion if Kelley foregoes pursuing a particular claim or cause of action, that bodes actual prejudice to their participation in these cases, and he does not respond to their expressed concerns. At such time, they will receive the judicial attention that the situation deserves, when real focus will be possible. And in any event, any party that fears prejudice to its interests will have due process before the prejudice ripens to actual detriment, for many of the foreseeable administrative acts. [39] Substantive consolidation is a court-granted remedy that requires a substantial record going to multiple factors, In re Giller, 962 F.2d 796, 799 (8th Cir.1992), and as to which the abiding consideration is \"fairness to all creditors,\" F.D.I.C.",
"v. Colonial Realty Co., 966 F.2d 57, 61 (2d Cir.1992). [40] Proposals to abandon estate assets, such as pre-petition causes of action, must come before the court by motion in a Chapter 11 case. LOC. R. BANKR.P. (D.Minn.) 6007-1 and 6004-1(e). In a Chapter 11 case, settlements of avoidance actions or rights of action require court approval, obtained only on motion. LOC. R. BANKR. P. (D.Minn.) 9019-1(a) and 6004-1(e). All of these vehicles give an opportunity for objection to any creditor that sees prejudice to its interests from a particular administrative action by a single trustee for multiple estates. The structure of Rule 2009(d) imposes a burden of proof on the party that asserts disqualifying prejudiceboth a burden of production of evidence if the existence of the prejudice is fact-dependent, and a burden of persuasion if the arguments pro and con are in equipoise.",
"The Ritchie Parties have not carried that burden; they have not made a prima facie showing that, at present, their interests, or the interests of the creditors of any particular debtor, are actually prejudiced at present by the existence of conflicts of interest that arise out of the configuration of the Debtors' rights against each other, pre- or post-petition. At this time, there is no \"internal conflict\" that prevents Kelley from serving as trustee for all of the Debtors, pursuant to the U.S. Trustee's appointment. And, because Rules 2009(c)(2) and 2009(d) do not require the determination on prejudice to be made once and for always, any party in interest may seek judicial relief if Kelley and his attorneys do not acknowledge when future developments in his administration create and focus such prejudice. If appropriate, that relief could include a directive for the appointment of a second trustee. OUTCOME The Ritchie Parties' objection must be overruled, and the U.S. Trustee's appointment will be approved, subject to the one condition previously-identified.",
"ORDER On the decision just memorialized, IT IS HEREBY ORDERED: 1. The objection of Ritchie Special Credit Investments, Ltd., to the U.S. Trustee's appointment of a trustee for these cases is overruled. *415 2. The U.S. Trustee's appointment of Douglas A. Kelley, Esq., as trustee for all of the Debtors in these jointly-administered cases, is approved. 3. Douglas A. Kelley, Esq., shall, forthwith: a. meet all requirements set by the U.S. Trustee for his appointment of the status of trustee, including the posting of a bond; and b. in his status as Receiver appointed by the United States District Court for the District of Minnesota, execute and file an appropriate document memorializing his turnover of all of the assets of the Debtors' bankruptcy estates to the appointed trustee.",
"NOTES [1] For over a decade, Petters has been known in regional media by his nickname; hence, \"Tom Petters\" will be used for all further references to him as an individual. [2] MN Airlines, LLC, d/b/a Sun Country Airlines, is a business entity as to which Tom Petters was the controlling individual principal through two holding companies. Sun Country Airlines and its holding companies are also in Chapter 11 in this Court. That jointly-administered grouping is assigned to Judge Robert J. Kressel. The background and status of the Sun Country Airlines cases are not relevant to the matter at bar. [3] The U.S. Trustee had made the motion after counsel in his office concluded that these corporate debtors had no individual officers legally chargeable as stewards of the bankruptcy estate and subject to the fiduciary obligations mandated by statute, after the cases were commenced.",
"The unseating of Tom Petters from control and the resignation of other individuals who had made up the pre-petition management of these debtors had left them without anyone exercising day-to-day and strategic administration, with the continuity inherent in the statutory concept of a debtor-in-possession, 11 U.S.C. § 1101(1). The U.S. Trustee also concluded that bankruptcy law would not countenance a continuing status of managerial custodianship for Kelley in his role as a court-appointed receiver. The legal bases for his conclusion were the bar on appointment of a receiver within a bankruptcy case, 11 U.S.C. § 105(b), and the obligation of any custodian to turn over property of the estate to the trustee in bankruptcy, 11 U.S.C. § 543(b)(1)the statutory definition of \"custodian\" including a receiver appointed pre-petition, 11 U.S.C.",
"§ 101(11). [4] The text of this rule taken into account for this decision is the amended version that was effective December 1, 2008. [5] In an order entered on December 17, 2008, the Court had set deadlines for various stages of the appointment process. [6] As a technical matter, the recitations in the following section are findings of fact. Most of them merely identify the progression of various proceedings in courts, state and federal, in which Tom Petters, the debtors in these and other bankruptcy cases, certain creditors, and the United States of America were parties. As such, these recitations are not subject to dispute. The remaining recitations go to out-of-court events and the out-of-court acts of relevant persons or entities.",
"They are based on verified statements in the record. The content of these recitations has been deliberately limited in topic and scope. At a hearing on January 22, 2009, the Court ordered that in-court testimony would not be taken for the objection at bar, and denied the Ritchie Parties' late-coming motion to conduct an expedited discovery process into a very broad array of subject matter. This disposition was based on a ruling that the Ritchie Parties' objection was to be treated as a matter of law, with the focus on three things: Kelley's specific charge under the District Court's orders governing his status as Receiver; the change of that status with the advent of bankruptcy for some of the entities previously under the receivership; and any resultant effect on Kelley's own definition of his prospective role as trustee. None of those considerations entail historical fact, per se. Thus, the recitation of events extraneous to the courts' records has been limited to those that the District Court clearly relied on when it appointed Kelley as Receiver, and vested him with broadly-described powers to take control over assets that had some arguable connection with the newly-commenced criminal cases against Tom Petters and others. This is also done with due regard for the Ritchie Parties.",
"One can safely assume that they will maintain their position that this controversy is intensely fact-bound, in a very personalized way. Restraint in the scope of background fact-finding will avoid materially contradicting the Court's rejection of that position. [7] Previously, PGW had had in-house counsel and the various Petters business entities had been represented by an outside law firm. All of those attorneys resigned and withdrew after the execution of the search warrant. [8] In pertinent part, these subsections authorize legal actions as follows: ... (2) If a person is alienating or disposing of property, or intends to alienate or dispose of property, obtained as a result of a banking law violation (as defined in [18 U.S.C. § 3322(d)] ..., the Attorney General may commence a civil action in any Federal court ... (B) for a restraining order to (i) prohibit any person from withdrawing, transferring, removing, dissipating, or disposing of any such property or property of equivalent value; and (ii) appoint a temporary receiver to administer such restraining order. [9] Another person was appointed as receiver for that defendant, Frank E. Vennes, Jr. [10] The scope of the receivership expressly excluded \"Thomas Petters, Inc., and its subsidiaries including but not limited to: MN Airlines, LLC, dba Sun Country Airlines.\"",
"[11] Both of these orders were entered after the entry of stipulations between the United States and various named defendants. [12] This paragraph basically supplanted Terms IV.B.4. and IV.B.5. of the October 6, 2008 order. As quoted earlier, the October 6 order did contain an authorization for Kelley to file bankruptcy petitions, plus an authorization to \"act[] as management or Debtor in Possession of any of the Entities so filed ...,\" at Term IV.B.4.",
"[13] The emphasis here is added for the purposes of the present decision. It is imposed only to highlight the major item of contention that the Ritchie Parties gleaned from the attributes of Kelley's receivership. This paragraph did not have an analogue in the October 6, 2008 order. [14] The Ritchie Parties injected themselves into this initial motion proceeding, by insisting that the Court act at that time to order the U.S. Trustee to appoint a person as trustee for PGW who would be different from anyone appointed as trustee for any of the other Debtors.",
"The Court ruled that such a request would not be ripe until the U.S. Trustee had exercised his authority to appoint a trustee or trustees for the several cases, and denied it without prejudice. [15] In the main, the recitations in this section are conclusions of law. Here and there they will include an additional finding of fact, going to very specific aspects of the procedural backdrop. [16] So go the allegations, anyway. The alleged parlaying of these single-purpose entities and their related transactions, to the detriment of creditors and the investors that were financing the deals, is the core of the prosecution's theory for the federal criminal charges against Tom Petters and his associates.",
"[17] The Ritchie Parties are said to have a potential loss of $250,000,000 from their dealings with Tom Petters. This, however, is not the largest potential claim in these cases. Tom Petters's downfall carried another group of Chicago-area hedge funds headed by Lancelot Investors Fund, L.P. into Chapter 7. The trustee in the Lancelot cases, who is now active as a prospective claimant in these cases, estimates the total of his estates' claims here to exceed $1.3 billion. [18] At this time, it appears that PGW's equity interest in the Polaroid Corporation and its related entities is the principal plum. The debtors in that case-grouping have commenced proceedings to bring about a sale of their assets and business operations under 11 U.S.C. § 363. [19] The terms \"external conflict\" and \"internal conflict\" are the Court's own, coined as shorthand. They are not legal terms of art.",
"[20] It was not clear from the Ritchie Parties' briefing whether they would acquiesce to such a result. At the end of the first round of oral argument, their counsel acknowledged that they would, using the quoted wording. [21] 11 U.S.C. § 1104(d) governs the process of trustee appointment in a Chapter 11 case, after the court has ordered the U.S. Trustee to appoint one. In pertinent part, it reads: If the court orders the appointment of a trustee, . . . then the United States trustee, after consultation with parties in interest, shall appoint, subject to the court's approval, one disinterested person other than the United States trustee to serve as trustee . . .",
"in the case. [22] Another portion of this definition bars the status of \"disinterested person\" to a creditor, an equity security holder, or an insider of the debtor in the bankruptcy case. 11 U.S.C. § 101(14)(A). In addition, a person who \"is not and was not, within 2 years before the date of the filing of the petition, a director, officer, or employee of the debtor\" may be a \"disinterested person,\" 11 U.S.C. § 101(14)(B), which means that a person who did have that status is not a \"disinterested person.\" Neither of these exclusions is material to the controversy at bar. [23] The objection's nomenclature is somewhat confusing, if one thinks about it. Under the criterion that the Ritchie Parties propose for defining \"victim\" status, the lending of money, a \"victim's\" claim would have its genesis in contract no less than a trade creditor's would.",
"And since lenders of money would be members of both of the classes that the Ritchie Parties posit, the genesis of the claim in a loan does not, in itself, make a distinction. The thought behind the assumed dichotomy is never made all that clear; perhaps it would have been better-served had the Ritchie Parties identified the class of opposed interests as \"victims of PCI.\" Ultimately, this point is not important; but it does reinforce the impression of a somewhat overwrought tendentiousness to the objection. [24] These are all quotations from the Ritchie Parties' briefing. [25] These are all direct quotations or very close paraphrasings from the oral argument made by counsel.",
"[26] The Third Circuit recognized the distinction between the text of § 101(14)(C) and that of 11 U.S.C. § 327(a). The latter bars anyone who \"hold[s] or represent[s] an interest adverse to the estate\" from serving as a professional person for the estate. 949 F.2d at 1310 n. 12 (emphasis added to quotation of statutory text). In an unspoken fashion, the Ritchie Parties' theory conflates the sense of these two statutes, which depart from one another based on the verbs used in their text.",
"BH & P involved the question of whether one person appointed as trustee for all of the related Chapter 7 cases of a corporation and its two individual principals could be a \"disinterested person\" within the definition of § 101(14), when there were claims cross-running between the estates. The BH & P ruling was expressly directed toward the situation of \"multiple debtors served by a single trustee,\" 949 F.2d at 1310, where the potentially-conflicting \"interests\" were all subject exclusively to a bankruptcy process. This configuration was different from the one at bar. However, the statutory text is the statutory text; it does not draw a distinction between the two configurations, or give any support to a refinement of the BH & P construction; and thus the Third Circuit's analysis should apply to the situation at bar. [27] For instance, the closing words of § 101(14)(C) broaden the source of a materially-adverse interest to \"any direct or indirect relationship to, [or] connection with .",
". . the debtor.\" That could support a reading of the verb \"have\" beyond the denotation of ownership or possession in a personal capacity. [28] See 13 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 66.03[2] (3d ed.2007) (receiver is officer of the court presiding over litigation that concerns property entrusted to receiver). [29] Per local media reports, Kelley has been making disbursements of various sorts from receivership assets, to pay maintenance-related expenses personal to Tom Petters and his dependents, and toward the cost of his criminal defense. The record at bar has no content that goes to this, but it appears that these expenditures have been made out of assets traceable to Tom Petters in his individual capacity. Per the statements of bankruptcy counsel, Kelley has, with the District Court's authorization, used funds from the receivership over Tom Petters individually, i.e., moneys derived from assets titled in him, to meet the initial administrative expenses for PGW's bankruptcy case. These details are not relevant to the dispute at bar; they are mentioned only to qualify the reference to the Receiver's duty to \"hold in place,\" and to specify that it applies to asset-value net of the operation of the receivership. [30] In a footnote-aside in the Ritchie Parties' brief, counsel referred to the District Court's nomination of Kelley as its agent, \"accountable directly to the Court,\" and then made its prediction of the consequence of approving Kelley's appointment as trustee: Thus, with respect to any given action, Kelly must answer not only to [the bankruptcy] court and the creditors, but also to the District Courta circumstance rife with likely conflicts.",
"As baleful and portentous as this verbiage sounds, it is so vague that it has no place in an argument that is to be structured under legal principles. [31] The one case cited, In re 400 Madison Ave. Ltd. P'ship, 213 B.R. 888 (Bankr.S.D.N.Y. 1997), does not stand for the proposition noted. Its holding, essentially, is that there is no place for the role, status, or function of a receiver within the bankruptcy case, that \"the receiver has absolutely no responsibility . . . to perform any other duties which are the prerogative and burden of a debtor-in-possession and a trustee.\" 213 B.R. at 894-895. [32] Judges in at least one district courtfor the Southern District of New Yorkhave found no anomaly in equating a person who had been the pre-bankruptcy receiver of a company, appointed as such by a federal court, with a managing officer who would be empowered to carry out the duties of a debtor-in-possession, where the receiver had been court-authorized to file a petition under Chapter 11 for the company and the order of appointment had provided for the subject individual to \"be deemed a debtor-in-possession for [the company] in proceedings under Chapter 11 . .",
".\" In re Bayou Group, L.L.C., 363 B.R. 674, 680 (S.D.N.Y.2007). See also S.E.C. v. Byers, 592 F. Supp. 2d 532 (S.D.N.Y.2008). But, per n. 3 supra, there are colorable arguments to the contrary, based on the Code's text and the legislative history for its 1978 enactment. At oral argument, counsel for the U.S. Trustee advised that the Bayou Group ruling had been appealed to the Second Circuit. [33] The provision in the District Court's December 8, 2008 order for these cases being governed by the Bankruptcy Code would require him to follow through as trustee in that way, regardless; but the layering of his personal recognition makes it a matter of his volition as well as court mandate and automatic operation of statute. Since Kelley's performance will be governed by the Code's regulatory structure for trustees, this takes care of the Ritchie Parties' concern over the District Court's grant of judicial immunity to him. That was there, this is here. [34] The conviction of the owner of the assets is a prerequisite for the commencement of criminal-forfeiture proceedings; criminal-forfeiture proceedings result in an in personam order against the defendant. United States v. Vampire Nation, 451 F.3d 189, 202 (3d Cir.",
"2006); United States v. Lazarenko, 476 F.3d 642, 647 (9th Cir.2007). Once an order of forfeiture is entered, third parties that assert an interest in the defendant's assets may assert them in an ancillary proceeding under 21 U.S.C. §§ 853(k) and 853(n). United States v. Puig, 419 F.3d 700, 703 (8th Cir.2005). The ancillary proceeding is the forum through which third parties may obtain an adjudication of their interests in the property, so that those interests may be protected from the forfeiture of the defendant's interests. United States v. Totaro, 345 F.3d 989, 993-994 (8th Cir.2003).",
"This clearly would give Kelley a forum to assert that only the residual equity interest of Tom Petters or any convicted corporate defendant should be subject to forfeiture, after all allowed creditors' claims had been satisfied through the bankruptcy process. [35] Such a measure would, of course, be a matter for the District Court alone. [36] They also note that two of the counts of the criminal indictment are based on allegedly-fraudulent transactions by PGW subsidiaries, resulting in PGW being criminally charged under the umbrella of conspiracy. And this, they say, further erodes the Ritchie Parties' demand that the bankruptcy process for PGW must be quarantined from the administration of the PCI-related estates, on the alleged ground that the two major parts of Tom Petters's enterprise were free-standing and fraudulent activity was purveyed through the PCI structure alone. [37] The BH & P opinion does not mention Rule 2009(d), which was on the books in 1991, with a text nearly identical to today's.",
"But, clearly, the rule speaks directly to the problem at bar. [38] It has long been recognized that economy is a proper consideration in the matter of appointing one trustee in jointly-administered cases. In re Int'l Oil Co., 427 F.2d 186, 187 (2d Cir.1970) (per curiam) (decided under Bankruptcy Act of 1898); In re Ben Franklin Retail Stores, Inc., 214 B.R. 852, 859 (Bankr. N.D.Ill.1997). [39] \"The election or appointment of a [single] trustee [in jointly-administered cases] does not alter substantive rights of creditors or change the character of the estate.\" In re Ben Franklin Retail Stores, Inc., 214 B.R. at 857. [40] One court has gone so far as to opine that \"[s]ubstantive consolidation should be invoked `sparingly' where any creditor or debtor objects to its use.\"",
"In re Reider, 31 F.3d 1102, 1109 (11th Cir. 1994)."
]
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DETAILED ACTION Notice of Pre-AIA or AIA Status 1. 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 2. 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 08/25/2021 has been entered. Response to Arguments 3. According to applicant’s arguments, filed on 08/25/2021; independent claims 7, 11 and 21 have been amended, hereby acknowledged.
4. Applicant argues that none of the prior art discloses the amended limitation of independent claim 7 which recite in part: “that a first message includes user authentication data associated with a user identification token and that a first master token includes a sequence number and first key exchange data for encrypting messages transmitted to the first peer machine”.
5. Examiner would like to point out that the primary reference Katar teaches this limitation (see, para: 0021, para: 0039 and Para: 0032-0033 and the rejection below).
Claim Rejections - 35 USC § 103 6. 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.
7. Claims 7-28 are rejected under 35 U.S.C. 103 as being unpatentable over Katar (US Pub.No.2013/0160086) in view of Mityagin (US Pub.No.2016/0105283).
8. Regarding claim 7 Katar teaches a first peer machine [server] comprising: a processor; and a memory coupled to the processor and including one or more instructions that, when executed by the processor, cause the processor to: receive, from a second peer machine [client], a first message that includes entity authentication data associated with the second peer machine, and key request data (Fig.1 and Para:0017-0018 teaches the electric vehicle 102 [second peer machine] having communication unit 103 connects to the communication network 100 and provides security credentials or vehicle identifier [entity authentication data] to the key distribution unit 104. The key distribution unit 104 can use the vehicle ID and other suitable information to generate a signing key that can be used by the electric vehicle 102 for transmitting messages and by the charging stations 110-114 for verifying the authenticity of messages received from the electric vehicle 102. One of the charging stations 110 [first peer machine] in the communication network 100 can be designated as the key distribution unit 104);
transmit, to the second peer machine, a second message that includes entity authentication data associated with the first peer machine, second key request data, and a first master token issued by the first peer machine, wherein the first master token includes first key exchange data The master key may be known to the key generation unit and to all the charging stations 110, 112, and 114 in the communication network 100. Para: 0013 and Para: 0031 teaches using public key encryption techniques or other suitable encryption techniques to verify the authenticity of each messages communicated between the sender device [e.g., the electric vehicle 102] and the receiver device [e.g., the charging station 110]);
receiving from the second peer machine a user authentication data, wherein the user authentication data is associated with a user identification token (para: 0029 teaches receiving from the electric vehicle the sender ID [user authentication data herein]. Para: 0021 and Para: 0032-0033 teaches the temporary sender signing key [first master token] includes parameters like sender ID [user authentication data], sequence number, timestamp value [user identification token herein], location identifier etc); the first master token includes a sequence number, and wherein the first master token sequence number is inserted into the user identification token to bind the user identification token to the master token (Para: 0021 and Para: 0032 teaches for each sender device 102, the receiver device 110 can store the derived temporary sender signing key, the sender ID, and the sequence number, and timestamp value. The receiver device can look up the previously derived temporary sender signing key based on the sender ID and sequence number received in
Katar teaches all the above claimed limitations but does not expressly teach the first master token is renewed in response to a renewal message received from the second peer machine.
Mityagin teaches the first master token is associated with a renewal time that indicates an earliest time, subsequent to the first master token being issued, that the first master token is eligible to be renewed, wherein the first master token is renewed in response to a renewal message received from the second peer machine (Figs.3, 4 and Para: 0072-0075 teaches the client 402 will not be aware of the key expiration until it is notified by server 404. Thus, in this expiration method, the key rotation process is mandated and/or initiated by server 404. The sever will looking up when the security key [first master token herein] for client 402 was last issued and determines whether 24 hours have passed since the time of key issuance; or whether the current security key has expired or is about to expire, and that the key needs renewal from server 404.The client 402 will then transmit a key renewal request 418 to server 404. Request 418 informs server 404 that client 402 is ready to receive a new security
receive, from the second peer machine, a third message that includes a second master token issued [security key] by the second peer machine (Para: 0007and Para: 0021 teaches each client application or device will be assigned with a unique security key/ candidate key that can be used to authenticate and communicate with a server. Para: 0060 teaches the security key can be a symmetric key or a session key that is shared by both client device 302 and server 304. The session key will be used to encrypt all messages that are communicated between client 302 and server 304 during a communication session. The key will be included as part of the message sent from client 302 to server 304, and server 304 can authenticate client 302, or validate the identity of client 302, by verifying the key that was included in the message), wherein the second master token includes second key exchange data for encrypting messages transmitted to the first peer machine (Para: 0060 teaches client device 302 will encrypt messages with the security key [session key] on a per-message and send them to server).
Therefore, it would have been obvious to one of the ordinary skill in the art before the invention was filed to modify Katar to include the first master token is renewed in response to a renewal message received from the second peer machine as taught by Mityagin such a setup would yield a predictable result of rotating security keys for secure communication between the user terminal and the server. 9. Regarding claim 8 Katar teaches the first peer machine, wherein the memory further includes a base authentication module, and, when executed by the processor, the base authentication module is configured to: authenticate the first message based on the entity authentication data and cause the second peer machine to authenticate the second message based on the entity authentication data associated with the first peer machine (Para: 0023, Para: 0028-0029 teaches the key distribution unit 104 can exchange one or more messages with the electric vehicle 102 via the secure communication channel to generate a sender signing key [first master token] that is unique to the electric vehicle 102. The electric vehicle 102 can then use the sender signing key to communicate with the charging stations 110, 112, and 114 in the communication network 100. A temporary sender signing key is generated based, on the security credentials associated with the sender device and a master key associated with the key distribution unit [which is the entity authentication data associated with the first peer machine]).
10. Regarding claim 9 Mityagin teaches the first peer machine wherein the one or more instructions, when executed by the processor, cause the processor to: receive, from the second peer machine, a fourth message that includes a renewable flag (Para: 0073-0075 teaches the server 404 receives operation request 408 from client 402, by looking up when the security key [master token] for client 402 was last issued and determining whether 24 hours have passed since the time of key issuance or whether the current security key has expired or is about to expire, and that the key needs renewal from server 404. Once server 404 determines that client 402 needs a key renewal, server 404 can transmit key expiration notification message 410 to client 402 [which is the renewable flag]); in response to the fourth message, determine that a current time exceeds at least one of the renewal time and an expiration time associated with the first master token (Fig.4, Para: 0074-0075 teaches the timer 414 in the client device 402 determines for itself that its current security key has expired or is about to expire, and that the key needs renewal from server 404. This notification may have been triggered by a normal
and in response, transmit, to the second peer machine, a fifth message that includes a third master token issued by the first peer machine, wherein the third master token includes third key exchange data for encrypting messages transmitted to the first peer machine (Figs.3, 4 and Para: 0074-0075 teaches the client 402 will transmit a key renewal request 418 to server 404. Request 418 informs server 404 that client 402 is ready to receive a new security key and retire its old key. After server 404 receives key renewal request message 418, server 404 can generate a candidate key 420. Once the candidate key is received, client 402 can store the newly generated candidate key in its storage until the key is confirmed 424. Para: 0060 teaches client device will encrypt messages with the security key on a per-message and send them to server).
11. Regarding claim 10 Mityagin teaches the first peer machine, wherein: the memory further includes a key exchange module, and when executed by the processor, the key exchange module is configured to: decrypt payload data included in the third message based on at least one session key included in a plurality of session keys associated with the first key exchange data (Para: 0060 teaches client device 302 may encrypt messages with the security key on a per-message basis before sending them out to server 304. Server 304 can then use a matching public key to decrypt the message and verify that the message comes from a legitimate source. The security key can be a symmetric key or a session key that is shared by both client device 302 and server 304).
12. Regarding claim 11 Katar teaches a method, comprising: receiving a plurality of messages from a client machine over a secure communication channel, wherein the plurality of messages The key distribution unit 104 can use the vehicle ID and other suitable information to generate a signing key [first key exchange data] that can be used by the electric vehicle 102 for transmitting messages and by the charging stations 110-114 for verifying the authenticity of messages received from the electric vehicle 102. One of the charging stations 110 [first peer machine] in the communication network 100 can be designated as the key distribution unit 104); and transmitting, to the client machine, a second message that includes a first master token comprising second key exchange data associated with the first key exchange data (Para:0019-0020 and Para:0028-0029 teaches after the key distribution unit 104 authenticates the security credentials associated with the electric vehicle 102. The key distribution unit 104 can exchange one or more security handshake messages to establish the secure communication channel with the electric vehicle 102. The key generation unit 106 in the key distribution unit 104 generate the temporary sender signing key [first master token] based on the vehicle ID received from the electronic vehicle and the master key associated with the key distribution unit [which is the entity authentication data associated with the first peer machine]. The master key may be known to the key generation unit and to all the charging stations 110, 112, and 114 in the communication network 100. Para: 0013 and Para: 0031 teaches using public key encryption techniques or other suitable encryption techniques to verify the authenticity of each messages communicated between the sender device [e.g., the electric vehicle 102] and the receiver device [e.g., the charging station 110]);
the first master token includes a sequence number, and wherein the first master token sequence number is inserted into the user identification token to bind the user identification token to the master token (Para: 0021 and Para: 0032 teaches for each sender device 102, the receiver device 110 can store the derived temporary sender signing key, the sender ID, and the sequence number, and timestamp value. The receiver device can look up the previously derived temporary sender signing key based on the sender ID and sequence number received in subsequent messages. The inclusion of the sequence number in the subsequent messages can ensure that the temporary sender signing key associated with the sender device 102 is current [e.g., the sequence number is incremented/modified each time the sender device 102 receives a new temporary sender signing key]. Para: 0033 teaches the message from the sender device 102 includes a timestamp value and an expiration time, the receiver device 110 will discard information about the temporary signing key (including the message counter, the sequence number, location identifier, etc.) after the expiration time is reached, i.e. the temporary signing key is modified based on the expiration time or renewal time. The receiver device 110 will discard information (such as sequence number) about the temporary signing key after the expiration time is reached. So the sequence number is incremented/modified based on the temporary signing key expiration time).
Katar teaches all the above claimed limitations but does not expressly teach the first master token is renewed in response to a renewal message received from the client machine.
Therefore, it would have been obvious to one of the ordinary skill in the art before the invention was filed to modify Katar to include the first master token is renewed in response to a renewal message received from the second peer machine as taught by Mityagin such a setup would yield a predictable result of rotating security keys for secure communication between the user terminal and the server.
13. Regarding claim 12 Katar in view of Mityagin teaches the method, wherein the user identification token associated with the user authentication data includes an identifier associated with a user authentication data (Figs.3,4 and Para:0060-0061 teaches the client device transmit username and password to the server. If the authentication token in the server computer validates the username and the password, the key generator 324 in the server generates a
14. Regarding claim 13 Katar teaches the method wherein the first message is associated with a service, and further comprising: issuing a service token that includes a data set specified by the service and included in the first message (Para: 0046 teaches generating a service voucher [service token] for the electric vehicle, The service voucher indicate limitations on the service (e.g., how much electric power, etc.) that can be provided based on certain characteristics and state of the account. The service voucher may expire (and the electric vehicle 302 may no longer be able to receive power/services) after this deadline elapses. The service voucher also include an authorized maximum amount of time, money, energy); and binding the service token to the first master token (Fig.4 Para: 0057-0061 teaches upon validating the security credential, generating a temporary signing key and providing a matching service and the service voucher to the customer device).
16. Regarding claim 15 Mityagin teaches wherein at least one of the first master token and the user identification token includes state information associated with the client machine (Mityagin : Para:0073-0075 teaches the security key will include a renewal time or an expiration time information [state information]).
17. Regarding claim 16 Mityagin teaches the method, further comprising: receiving, from the client machine, a third message that includes a renewable flag (Para: 0073-0075 teaches the timer 414 in the client device 402 determines for itself that its current security key has expired or is about to expire, and that the key needs renewal from server 404. This notification [renewable flag] may have been triggered by a normal operation request from the client and the server determining at that point that the key needs renewal); and transmitting, to the client machine, a fourth message that includes a second master token [candidate key] comprising third key exchange data and a second renewal time (Figs.3, 4 and Para: 0072-0075 teaches the sever will looking up when the security key [first master token herein] for client 402 was
18. Regarding claim 17 Mityagin teaches the method, wherein a current time associated with the third message is greater than the renewal time and less than an expiration time (Para: 0073-0075 teaches the timer 414 [timestamp] in the client device 402 determines for itself that its current security key is about to expire, and that the key needs renewal from server 404).
19. Regarding claim 18 Mityagin teaches the method, wherein a current time associated with the third message is greater than an expiration time (Para: 0074-0075 teaches the timer 414 [timestamp] in the client device 402 determines for itself that its current security key has expired).
20. Regarding claim 19 Katar teaches the method, wherein the secure communication channel is part of a trusted services network (Para: 0019-0020 and Para: 0028-0029 teaches establishing a secure communication channel between electric vehicle 102 [client] and receiver machine 110 [server] as a part of trusted network service).
21. Regarding claim 20 Mityagin teaches the method, wherein the third key exchange data is wrapped with at least one session key included in a plurality of session keys associated with
22. Regarding claim 21 Katar teaches one or more non-transitory computer readable media storing instructions that, when executed by one or more processors, cause the one or more processors to perform the steps of: receiving a plurality of messages from a client machine over a secure communication channel, wherein the plurality of messages includes a first message comprising at least two of user authentication data, entity authentication data, first key exchange data, and encrypted message data (Fig.1 and Para:0017-0018 teaches the electric vehicle 102 [client machine] having communication unit 103 connects to the communication network 100 and provides security credentials or vehicle identifier [entity authentication data] to the key distribution unit 104. The key distribution unit 104 can use the vehicle ID and other suitable information to generate a signing key [first key exchange data] that can be used by the electric vehicle 102 for transmitting messages and by the charging stations 110-114 for verifying the authenticity of messages received from the electric vehicle 102. One of the charging stations 110 [first peer machine] in the communication network 100 can be designated as the key distribution unit 104); The master key may be known to the key generation unit and to all the charging stations 110, 112, and 114 in the communication network 100. Para: 0013 and Para: 0031 teaches using public key encryption techniques or other suitable encryption techniques to verify the authenticity of each messages communicated between the sender device [e.g., the electric vehicle 102] and the receiver device [e.g., the charging station 110]);
receiving from the client machine a user authentication data, wherein the user authentication data is associated with a user identification token (para: 0029 teaches receiving from the electric vehicle the sender ID [user authentication data herein]. Para: 0021 and Para: 0032 teaches the temporary sender signing key [first master token] includes parameters like sender ID [user authentication data], sequence number, timestamp value [user identification token herein], location identifier etc); the first master token includes a sequence number, and wherein the first master token sequence number is inserted into the user identification token to bind the user identification token to the master token (Para: 0021 and Para: 0032 teaches for each sender device 102, the receiver device 110 can store the derived temporary sender signing key, the sender ID, and the sequence number, and timestamp value. The receiver device can look up the previously derived
Katar teaches all the above claimed limitations but does not expressly teach the first master token is renewed in response to a renewal message received from the client machine.
Mityagin teaches transmitting, to the client machine, a renewal time, that indicates an earliest time, subsequent to the first master token being issued, that the first master token is eligible to be renewed, wherein the first master token is renewed in response to a renewal message received from the client machine (Figs.3, 4 and Para: 0072-0075 teaches the client 402 will not be aware of the key expiration until it is notified by server 404. Thus, in this expiration method, the key rotation process is mandated and/or initiated by server 404. The sever will looking up when the security key [first master token herein] for client 402 was last issued and determines whether 24 hours have passed since the time of key issuance; or whether the current security key has expired or is about to expire, and that the key needs renewal from server 404.The client 402 will then transmit a key renewal request 418 to server 404. Request 418 informs server 404
Therefore, it would have been obvious to one of the ordinary skill in the art before the invention was filed to modify Katar to include the first master token is renewed in response to a renewal message received from the second peer machine as taught by Mityagin such a setup would yield a predictable result of rotating security keys for secure communication between the user terminal and the server.
23. Regarding claim 22 Katar in view of Mityagin teaches the one or more non-transitory computer readable media, wherein the user identification token associated with the user authentication data includes an identifier associated with a user authentication data (Figs.3,4 and Para:0060-0061 teaches the client device transmit username and password to the server. If the authentication token in the server computer validates the username and the password, the key generator 324 in the server generates a token/ security key [master token]. Therefore, binding the user identification token to the master token. The key will be included as part of the message sent from client 302 to server 304, and server 304 can authenticate client 302, or validate the identity of client 302, by verifying the key that was included in the message. As a result, a secure channel, such as a Transport Layer Security (TLS) or Secure Socket Layer (SSL) channel, is be established between client302 and server 304 by using the security key), wherein the first master token further comprises an entity identifier associated with a server entity (Katar: Para: 0019-0020 and Para: 0028-0029 teaches after the key distribution unit 104 authenticates the security credentials associated with the electric vehicle 102. The key distribution unit 104 can exchange one or more security handshake messages to establish the
24. Regarding claim 23 Katar teaches the one or more non-transitory computer readable media, wherein the first message is associated with a service, and further comprising: issuing a service token that includes a data set specified by the service and included in the first message (Para: 0046 teaches generating a service voucher [service token] for the electric vehicle, The service voucher indicate limitations on the service (e.g., how much electric power, etc.) that can be provided based on certain characteristics and state of the account. The service voucher may expire (and the electric vehicle 302 may no longer be able to receive power/services) after this deadline elapses. The service voucher also include an authorized maximum amount of time, money, energy); and binding the service token to the first master token (Fig.4 Para: 0057-0061 teaches upon validating the security credential, generating a temporary signing key and providing a matching service and the service voucher to the customer device).
25. Regarding claim 24 Katar teaches the one or more non-transitory computer readable media, wherein the first message is associated with a service, and further comprising: issuing a service token that includes a data set specified by the service and included in the first message (Para: 0046 teaches generating a service voucher [service token] for the electric vehicle, The service voucher indicate limitations on the service (e.g., how much electric power, etc.) that can be provided based on certain characteristics and state of the account. The service voucher may expire (and the electric vehicle 302 may no longer be able to receive power/services) after this deadline elapses. The service voucher also include an authorized maximum amount of time, money, energy); and binding the service token to the user identification token (Fig.4 Para: 0057-
26. Regarding claim 25 Mityagin teaches the one or more non-transitory computer readable media, wherein at least one of the first master token and the user identification token includes state information associated with the client machine (Para:0073-0075 teaches the security key will include a renewal time or an expiration time information [state information]).
27. Regarding claim 26 Mityagin teaches the one or more non-transitory computer readable media, further comprising: receiving, from the client machine, a third message that includes a renewable flag (Para: 0073-0075 teaches the timer 414 in the client device 402 determines for itself that its current security key has expired or is about to expire, and that the key needs renewal from server 404. This notification [renewable flag] may have been triggered by a normal operation request from the client and the server determining at that point that the key needs renewal); and transmitting, to the client machine, a fourth message that includes a second master token [candidate key] comprising third key exchange data and a second renewal time (Figs.3, 4 and Para: 0072-0075 teaches the sever will looking up when the security key for client 402 was last issued and determines whether 24 hours have passed since the time of key issuance; or whether the current security key has expired or is about to expire, and that the key needs renewal from server 404.The client 402 will then transmit a key renewal request 418 to server 404. Request 418 informs server 404 that client 402 is ready to receive a new security key and retire its old key. After server 404 receives key renewal request message 418, server 404 can generate a candidate key 420. Once the candidate key is received, client 402 can store the newly generated candidate key in its storage until the key is confirmed 424. The newly received security key includes renewal or expiration time).
29. Regarding claim 28 Katar teaches the first peer machine, wherein the sequence number is modified based on whether a prior master token renewal has occurred within the range of time relative to the renewal time and before and the expiration time (Para: 0021 and Para: 0032 teaches the temporary sender signing key [first master token] includes parameters like sender ID, sequence number, timestamp value, location identifier etc. For each sender device 102, the receiver device 110 can store the derived temporary sender signing key, the sender ID, and the sequence number. The receiver device can look up the previously derived temporary sender signing key based on the sender ID and sequence number received in subsequent messages. The inclusion of the sequence number in the subsequent messages can ensure that the temporary sender signing key associated with the sender device 102 is current [e.g., the sequence number is incremented/modified each time the sender device 102 receives a new temporary sender signing key]. Para: 0033 teaches the message from the sender device 102 includes a timestamp value and an expiration time, the receiver device 110 will discard information about the temporary signing key (including the message counter, the sequence number, location identifier, etc.) after the expiration time is reached, i.e. the temporary signing key [master token] is modified based on the expiration time or renewal time. The receiver device
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEREENA T CATTUNGAL whose telephone number is (571)270-0506. The examiner can normally be reached on Mon-Fri: 7:30 AM-5PM EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Lynn Field can be reached on 571-272-2092. 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. | 2021-11-12T04:10:00 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status 1. 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 2. 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 08/25/2021 has been entered. Response to Arguments 3.",
"According to applicant’s arguments, filed on 08/25/2021; independent claims 7, 11 and 21 have been amended, hereby acknowledged. 4. Applicant argues that none of the prior art discloses the amended limitation of independent claim 7 which recite in part: “that a first message includes user authentication data associated with a user identification token and that a first master token includes a sequence number and first key exchange data for encrypting messages transmitted to the first peer machine”.",
"5. Examiner would like to point out that the primary reference Katar teaches this limitation (see, para: 0021, para: 0039 and Para: 0032-0033 and the rejection below). Claim Rejections - 35 USC § 103 6. 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. 7. Claims 7-28 are rejected under 35 U.S.C. 103 as being unpatentable over Katar (US Pub.No.2013/0160086) in view of Mityagin (US Pub.No.2016/0105283). 8. Regarding claim 7 Katar teaches a first peer machine [server] comprising: a processor; and a memory coupled to the processor and including one or more instructions that, when executed by the processor, cause the processor to: receive, from a second peer machine [client], a first message that includes entity authentication data associated with the second peer machine, and key request data (Fig.1 and Para:0017-0018 teaches the electric vehicle 102 [second peer machine] having communication unit 103 connects to the communication network 100 and provides security credentials or vehicle identifier [entity authentication data] to the key distribution unit 104. The key distribution unit 104 can use the vehicle ID and other suitable information to generate a signing key that can be used by the electric vehicle 102 for transmitting messages and by the charging stations 110-114 for verifying the authenticity of messages received from the electric vehicle 102.",
"One of the charging stations 110 [first peer machine] in the communication network 100 can be designated as the key distribution unit 104); transmit, to the second peer machine, a second message that includes entity authentication data associated with the first peer machine, second key request data, and a first master token issued by the first peer machine, wherein the first master token includes first key exchange data The master key may be known to the key generation unit and to all the charging stations 110, 112, and 114 in the communication network 100. Para: 0013 and Para: 0031 teaches using public key encryption techniques or other suitable encryption techniques to verify the authenticity of each messages communicated between the sender device [e.g., the electric vehicle 102] and the receiver device [e.g., the charging station 110]); receiving from the second peer machine a user authentication data, wherein the user authentication data is associated with a user identification token (para: 0029 teaches receiving from the electric vehicle the sender ID [user authentication data herein]. Para: 0021 and Para: 0032-0033 teaches the temporary sender signing key [first master token] includes parameters like sender ID [user authentication data], sequence number, timestamp value [user identification token herein], location identifier etc); the first master token includes a sequence number, and wherein the first master token sequence number is inserted into the user identification token to bind the user identification token to the master token (Para: 0021 and Para: 0032 teaches for each sender device 102, the receiver device 110 can store the derived temporary sender signing key, the sender ID, and the sequence number, and timestamp value.",
"The receiver device can look up the previously derived temporary sender signing key based on the sender ID and sequence number received in Katar teaches all the above claimed limitations but does not expressly teach the first master token is renewed in response to a renewal message received from the second peer machine. Mityagin teaches the first master token is associated with a renewal time that indicates an earliest time, subsequent to the first master token being issued, that the first master token is eligible to be renewed, wherein the first master token is renewed in response to a renewal message received from the second peer machine (Figs.3, 4 and Para: 0072-0075 teaches the client 402 will not be aware of the key expiration until it is notified by server 404.",
"Thus, in this expiration method, the key rotation process is mandated and/or initiated by server 404. The sever will looking up when the security key [first master token herein] for client 402 was last issued and determines whether 24 hours have passed since the time of key issuance; or whether the current security key has expired or is about to expire, and that the key needs renewal from server 404.The client 402 will then transmit a key renewal request 418 to server 404. Request 418 informs server 404 that client 402 is ready to receive a new security receive, from the second peer machine, a third message that includes a second master token issued [security key] by the second peer machine (Para: 0007and Para: 0021 teaches each client application or device will be assigned with a unique security key/ candidate key that can be used to authenticate and communicate with a server. Para: 0060 teaches the security key can be a symmetric key or a session key that is shared by both client device 302 and server 304. The session key will be used to encrypt all messages that are communicated between client 302 and server 304 during a communication session.",
"The key will be included as part of the message sent from client 302 to server 304, and server 304 can authenticate client 302, or validate the identity of client 302, by verifying the key that was included in the message), wherein the second master token includes second key exchange data for encrypting messages transmitted to the first peer machine (Para: 0060 teaches client device 302 will encrypt messages with the security key [session key] on a per-message and send them to server). Therefore, it would have been obvious to one of the ordinary skill in the art before the invention was filed to modify Katar to include the first master token is renewed in response to a renewal message received from the second peer machine as taught by Mityagin such a setup would yield a predictable result of rotating security keys for secure communication between the user terminal and the server. 9. Regarding claim 8 Katar teaches the first peer machine, wherein the memory further includes a base authentication module, and, when executed by the processor, the base authentication module is configured to: authenticate the first message based on the entity authentication data and cause the second peer machine to authenticate the second message based on the entity authentication data associated with the first peer machine (Para: 0023, Para: 0028-0029 teaches the key distribution unit 104 can exchange one or more messages with the electric vehicle 102 via the secure communication channel to generate a sender signing key [first master token] that is unique to the electric vehicle 102.",
"The electric vehicle 102 can then use the sender signing key to communicate with the charging stations 110, 112, and 114 in the communication network 100. A temporary sender signing key is generated based, on the security credentials associated with the sender device and a master key associated with the key distribution unit [which is the entity authentication data associated with the first peer machine]). 10. Regarding claim 9 Mityagin teaches the first peer machine wherein the one or more instructions, when executed by the processor, cause the processor to: receive, from the second peer machine, a fourth message that includes a renewable flag (Para: 0073-0075 teaches the server 404 receives operation request 408 from client 402, by looking up when the security key [master token] for client 402 was last issued and determining whether 24 hours have passed since the time of key issuance or whether the current security key has expired or is about to expire, and that the key needs renewal from server 404.",
"Once server 404 determines that client 402 needs a key renewal, server 404 can transmit key expiration notification message 410 to client 402 [which is the renewable flag]); in response to the fourth message, determine that a current time exceeds at least one of the renewal time and an expiration time associated with the first master token (Fig.4, Para: 0074-0075 teaches the timer 414 in the client device 402 determines for itself that its current security key has expired or is about to expire, and that the key needs renewal from server 404. This notification may have been triggered by a normal and in response, transmit, to the second peer machine, a fifth message that includes a third master token issued by the first peer machine, wherein the third master token includes third key exchange data for encrypting messages transmitted to the first peer machine (Figs.3, 4 and Para: 0074-0075 teaches the client 402 will transmit a key renewal request 418 to server 404.",
"Request 418 informs server 404 that client 402 is ready to receive a new security key and retire its old key. After server 404 receives key renewal request message 418, server 404 can generate a candidate key 420. Once the candidate key is received, client 402 can store the newly generated candidate key in its storage until the key is confirmed 424. Para: 0060 teaches client device will encrypt messages with the security key on a per-message and send them to server). 11. Regarding claim 10 Mityagin teaches the first peer machine, wherein: the memory further includes a key exchange module, and when executed by the processor, the key exchange module is configured to: decrypt payload data included in the third message based on at least one session key included in a plurality of session keys associated with the first key exchange data (Para: 0060 teaches client device 302 may encrypt messages with the security key on a per-message basis before sending them out to server 304. Server 304 can then use a matching public key to decrypt the message and verify that the message comes from a legitimate source.",
"The security key can be a symmetric key or a session key that is shared by both client device 302 and server 304). 12. Regarding claim 11 Katar teaches a method, comprising: receiving a plurality of messages from a client machine over a secure communication channel, wherein the plurality of messages The key distribution unit 104 can use the vehicle ID and other suitable information to generate a signing key [first key exchange data] that can be used by the electric vehicle 102 for transmitting messages and by the charging stations 110-114 for verifying the authenticity of messages received from the electric vehicle 102.",
"One of the charging stations 110 [first peer machine] in the communication network 100 can be designated as the key distribution unit 104); and transmitting, to the client machine, a second message that includes a first master token comprising second key exchange data associated with the first key exchange data (Para:0019-0020 and Para:0028-0029 teaches after the key distribution unit 104 authenticates the security credentials associated with the electric vehicle 102. The key distribution unit 104 can exchange one or more security handshake messages to establish the secure communication channel with the electric vehicle 102.",
"The key generation unit 106 in the key distribution unit 104 generate the temporary sender signing key [first master token] based on the vehicle ID received from the electronic vehicle and the master key associated with the key distribution unit [which is the entity authentication data associated with the first peer machine]. The master key may be known to the key generation unit and to all the charging stations 110, 112, and 114 in the communication network 100. Para: 0013 and Para: 0031 teaches using public key encryption techniques or other suitable encryption techniques to verify the authenticity of each messages communicated between the sender device [e.g., the electric vehicle 102] and the receiver device [e.g., the charging station 110]); the first master token includes a sequence number, and wherein the first master token sequence number is inserted into the user identification token to bind the user identification token to the master token (Para: 0021 and Para: 0032 teaches for each sender device 102, the receiver device 110 can store the derived temporary sender signing key, the sender ID, and the sequence number, and timestamp value.",
"The receiver device can look up the previously derived temporary sender signing key based on the sender ID and sequence number received in subsequent messages. The inclusion of the sequence number in the subsequent messages can ensure that the temporary sender signing key associated with the sender device 102 is current [e.g., the sequence number is incremented/modified each time the sender device 102 receives a new temporary sender signing key]. Para: 0033 teaches the message from the sender device 102 includes a timestamp value and an expiration time, the receiver device 110 will discard information about the temporary signing key (including the message counter, the sequence number, location identifier, etc.) after the expiration time is reached, i.e. the temporary signing key is modified based on the expiration time or renewal time. The receiver device 110 will discard information (such as sequence number) about the temporary signing key after the expiration time is reached. So the sequence number is incremented/modified based on the temporary signing key expiration time).",
"Katar teaches all the above claimed limitations but does not expressly teach the first master token is renewed in response to a renewal message received from the client machine. Therefore, it would have been obvious to one of the ordinary skill in the art before the invention was filed to modify Katar to include the first master token is renewed in response to a renewal message received from the second peer machine as taught by Mityagin such a setup would yield a predictable result of rotating security keys for secure communication between the user terminal and the server. 13. Regarding claim 12 Katar in view of Mityagin teaches the method, wherein the user identification token associated with the user authentication data includes an identifier associated with a user authentication data (Figs.3,4 and Para:0060-0061 teaches the client device transmit username and password to the server. If the authentication token in the server computer validates the username and the password, the key generator 324 in the server generates a 14. Regarding claim 13 Katar teaches the method wherein the first message is associated with a service, and further comprising: issuing a service token that includes a data set specified by the service and included in the first message (Para: 0046 teaches generating a service voucher [service token] for the electric vehicle, The service voucher indicate limitations on the service (e.g., how much electric power, etc.)",
"that can be provided based on certain characteristics and state of the account. The service voucher may expire (and the electric vehicle 302 may no longer be able to receive power/services) after this deadline elapses. The service voucher also include an authorized maximum amount of time, money, energy); and binding the service token to the first master token (Fig.4 Para: 0057-0061 teaches upon validating the security credential, generating a temporary signing key and providing a matching service and the service voucher to the customer device). 16. Regarding claim 15 Mityagin teaches wherein at least one of the first master token and the user identification token includes state information associated with the client machine (Mityagin : Para:0073-0075 teaches the security key will include a renewal time or an expiration time information [state information]). 17. Regarding claim 16 Mityagin teaches the method, further comprising: receiving, from the client machine, a third message that includes a renewable flag (Para: 0073-0075 teaches the timer 414 in the client device 402 determines for itself that its current security key has expired or is about to expire, and that the key needs renewal from server 404.",
"This notification [renewable flag] may have been triggered by a normal operation request from the client and the server determining at that point that the key needs renewal); and transmitting, to the client machine, a fourth message that includes a second master token [candidate key] comprising third key exchange data and a second renewal time (Figs.3, 4 and Para: 0072-0075 teaches the sever will looking up when the security key [first master token herein] for client 402 was 18. Regarding claim 17 Mityagin teaches the method, wherein a current time associated with the third message is greater than the renewal time and less than an expiration time (Para: 0073-0075 teaches the timer 414 [timestamp] in the client device 402 determines for itself that its current security key is about to expire, and that the key needs renewal from server 404). 19. Regarding claim 18 Mityagin teaches the method, wherein a current time associated with the third message is greater than an expiration time (Para: 0074-0075 teaches the timer 414 [timestamp] in the client device 402 determines for itself that its current security key has expired).",
"20. Regarding claim 19 Katar teaches the method, wherein the secure communication channel is part of a trusted services network (Para: 0019-0020 and Para: 0028-0029 teaches establishing a secure communication channel between electric vehicle 102 [client] and receiver machine 110 [server] as a part of trusted network service). 21. Regarding claim 20 Mityagin teaches the method, wherein the third key exchange data is wrapped with at least one session key included in a plurality of session keys associated with 22. Regarding claim 21 Katar teaches one or more non-transitory computer readable media storing instructions that, when executed by one or more processors, cause the one or more processors to perform the steps of: receiving a plurality of messages from a client machine over a secure communication channel, wherein the plurality of messages includes a first message comprising at least two of user authentication data, entity authentication data, first key exchange data, and encrypted message data (Fig.1 and Para:0017-0018 teaches the electric vehicle 102 [client machine] having communication unit 103 connects to the communication network 100 and provides security credentials or vehicle identifier [entity authentication data] to the key distribution unit 104. The key distribution unit 104 can use the vehicle ID and other suitable information to generate a signing key [first key exchange data] that can be used by the electric vehicle 102 for transmitting messages and by the charging stations 110-114 for verifying the authenticity of messages received from the electric vehicle 102.",
"One of the charging stations 110 [first peer machine] in the communication network 100 can be designated as the key distribution unit 104); The master key may be known to the key generation unit and to all the charging stations 110, 112, and 114 in the communication network 100. Para: 0013 and Para: 0031 teaches using public key encryption techniques or other suitable encryption techniques to verify the authenticity of each messages communicated between the sender device [e.g., the electric vehicle 102] and the receiver device [e.g., the charging station 110]); receiving from the client machine a user authentication data, wherein the user authentication data is associated with a user identification token (para: 0029 teaches receiving from the electric vehicle the sender ID [user authentication data herein]. Para: 0021 and Para: 0032 teaches the temporary sender signing key [first master token] includes parameters like sender ID [user authentication data], sequence number, timestamp value [user identification token herein], location identifier etc); the first master token includes a sequence number, and wherein the first master token sequence number is inserted into the user identification token to bind the user identification token to the master token (Para: 0021 and Para: 0032 teaches for each sender device 102, the receiver device 110 can store the derived temporary sender signing key, the sender ID, and the sequence number, and timestamp value.",
"The receiver device can look up the previously derived Katar teaches all the above claimed limitations but does not expressly teach the first master token is renewed in response to a renewal message received from the client machine. Mityagin teaches transmitting, to the client machine, a renewal time, that indicates an earliest time, subsequent to the first master token being issued, that the first master token is eligible to be renewed, wherein the first master token is renewed in response to a renewal message received from the client machine (Figs.3, 4 and Para: 0072-0075 teaches the client 402 will not be aware of the key expiration until it is notified by server 404. Thus, in this expiration method, the key rotation process is mandated and/or initiated by server 404.",
"The sever will looking up when the security key [first master token herein] for client 402 was last issued and determines whether 24 hours have passed since the time of key issuance; or whether the current security key has expired or is about to expire, and that the key needs renewal from server 404.The client 402 will then transmit a key renewal request 418 to server 404.",
"Request 418 informs server 404 Therefore, it would have been obvious to one of the ordinary skill in the art before the invention was filed to modify Katar to include the first master token is renewed in response to a renewal message received from the second peer machine as taught by Mityagin such a setup would yield a predictable result of rotating security keys for secure communication between the user terminal and the server. 23. Regarding claim 22 Katar in view of Mityagin teaches the one or more non-transitory computer readable media, wherein the user identification token associated with the user authentication data includes an identifier associated with a user authentication data (Figs.3,4 and Para:0060-0061 teaches the client device transmit username and password to the server.",
"If the authentication token in the server computer validates the username and the password, the key generator 324 in the server generates a token/ security key [master token]. Therefore, binding the user identification token to the master token. The key will be included as part of the message sent from client 302 to server 304, and server 304 can authenticate client 302, or validate the identity of client 302, by verifying the key that was included in the message. As a result, a secure channel, such as a Transport Layer Security (TLS) or Secure Socket Layer (SSL) channel, is be established between client302 and server 304 by using the security key), wherein the first master token further comprises an entity identifier associated with a server entity (Katar: Para: 0019-0020 and Para: 0028-0029 teaches after the key distribution unit 104 authenticates the security credentials associated with the electric vehicle 102. The key distribution unit 104 can exchange one or more security handshake messages to establish the 24.",
"Regarding claim 23 Katar teaches the one or more non-transitory computer readable media, wherein the first message is associated with a service, and further comprising: issuing a service token that includes a data set specified by the service and included in the first message (Para: 0046 teaches generating a service voucher [service token] for the electric vehicle, The service voucher indicate limitations on the service (e.g., how much electric power, etc.) that can be provided based on certain characteristics and state of the account. The service voucher may expire (and the electric vehicle 302 may no longer be able to receive power/services) after this deadline elapses. The service voucher also include an authorized maximum amount of time, money, energy); and binding the service token to the first master token (Fig.4 Para: 0057-0061 teaches upon validating the security credential, generating a temporary signing key and providing a matching service and the service voucher to the customer device). 25. Regarding claim 24 Katar teaches the one or more non-transitory computer readable media, wherein the first message is associated with a service, and further comprising: issuing a service token that includes a data set specified by the service and included in the first message (Para: 0046 teaches generating a service voucher [service token] for the electric vehicle, The service voucher indicate limitations on the service (e.g., how much electric power, etc.)",
"that can be provided based on certain characteristics and state of the account. The service voucher may expire (and the electric vehicle 302 may no longer be able to receive power/services) after this deadline elapses. The service voucher also include an authorized maximum amount of time, money, energy); and binding the service token to the user identification token (Fig.4 Para: 0057- 26. Regarding claim 25 Mityagin teaches the one or more non-transitory computer readable media, wherein at least one of the first master token and the user identification token includes state information associated with the client machine (Para:0073-0075 teaches the security key will include a renewal time or an expiration time information [state information]). 27. Regarding claim 26 Mityagin teaches the one or more non-transitory computer readable media, further comprising: receiving, from the client machine, a third message that includes a renewable flag (Para: 0073-0075 teaches the timer 414 in the client device 402 determines for itself that its current security key has expired or is about to expire, and that the key needs renewal from server 404. This notification [renewable flag] may have been triggered by a normal operation request from the client and the server determining at that point that the key needs renewal); and transmitting, to the client machine, a fourth message that includes a second master token [candidate key] comprising third key exchange data and a second renewal time (Figs.3, 4 and Para: 0072-0075 teaches the sever will looking up when the security key for client 402 was last issued and determines whether 24 hours have passed since the time of key issuance; or whether the current security key has expired or is about to expire, and that the key needs renewal from server 404.The client 402 will then transmit a key renewal request 418 to server 404.",
"Request 418 informs server 404 that client 402 is ready to receive a new security key and retire its old key. After server 404 receives key renewal request message 418, server 404 can generate a candidate key 420. Once the candidate key is received, client 402 can store the newly generated candidate key in its storage until the key is confirmed 424. The newly received security key includes renewal or expiration time). 29. Regarding claim 28 Katar teaches the first peer machine, wherein the sequence number is modified based on whether a prior master token renewal has occurred within the range of time relative to the renewal time and before and the expiration time (Para: 0021 and Para: 0032 teaches the temporary sender signing key [first master token] includes parameters like sender ID, sequence number, timestamp value, location identifier etc. For each sender device 102, the receiver device 110 can store the derived temporary sender signing key, the sender ID, and the sequence number.",
"The receiver device can look up the previously derived temporary sender signing key based on the sender ID and sequence number received in subsequent messages. The inclusion of the sequence number in the subsequent messages can ensure that the temporary sender signing key associated with the sender device 102 is current [e.g., the sequence number is incremented/modified each time the sender device 102 receives a new temporary sender signing key]. Para: 0033 teaches the message from the sender device 102 includes a timestamp value and an expiration time, the receiver device 110 will discard information about the temporary signing key (including the message counter, the sequence number, location identifier, etc.) after the expiration time is reached, i.e. the temporary signing key [master token] is modified based on the expiration time or renewal time.",
"The receiver device Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEREENA T CATTUNGAL whose telephone number is (571)270-0506. The examiner can normally be reached on Mon-Fri: 7:30 AM-5PM EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Lynn Field can be reached on 571-272-2092.",
"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."
]
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592 F. Supp. 780 (1984) Martin John BEATTIE, et al., Plaintiffs, v. UNITED STATES of America, Defendant. Civ. A. No. 82-3520. United States District Court, District of Columbia. June 25, 1984. *781 Juanita M. Madole, Speiser, Krause & Madole, Washington, D.C., for plaintiffs. Gary W. Allen, U.S. Dept. of Justice, Torts Branch, Civil Div., Washington, D.C., for defendant.
MEMORANDUM HAROLD H. GREENE, District Judge. This case involves an unusual question under the Federal Tort Claims Act whether the Act applies to torts committed by employees of the United States in Antarctica. Plaintiffs, appointed by foreign courts as administrators of the estates of individuals killed in the crash of an Air New Zealand DC-10 in Antarctica on November 28, 1979, brought this suit under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., claiming negligence by U.S. Navy personnel on duty at two air traffic control facilities located at the McMurdo Naval Station airfield on that continent.[1] The government has moved to dismiss, asserting that the claims are not cognizable under the Act.
I Section 2680(k) exempts from the coverage of the Federal Tort Claims Act "any claim arising in a foreign country," and the basic question before the Court is whether Antarctica is a "foreign country" within the meaning of the statute. That issue has never before been decided and, for a variety of reasons, it is not free from doubt. Antarctica is unique on the surface of the earth[2] in that it is not subject to the sovereign rule of any nation; it has never been part of any such sovereignty; and there are no plans to subject it to such rule in the future. The United States itself has taken the position that the continent and surrounding ice shelves are not subject to its own rule or that of any other nation.[3] Indeed, under Article IV of the Antarctica Treaty, signed on December 1, 1959, the contracting nations[4] agreed not to assert any territorial claim in Antarctica or to establish rights of sovereignty there. In view of this status of Antarctica,[5] if the words of the statute are to be the decisive guide to statutory interpretation, the government's motion must fail, for clearly the instant claim did not arise in a foreign country as that term is commonly understood. Antarctica is not a foreign country; it is not a country at all;[6] and it is not under the domination of any other foreign nation or country. Thus, if it be *782 deduced from the language of the law that the section 2680(k) exception applies only where the government of a foreign nation has or asserts sovereignty, the Court would have to hold that with respect to Antarctica the exception does not, and the Act does, apply. It is also true, on the other hand, that Antarctica is not part of the United States.[7] The government builds upon that fact to argue that Congress meant, or must have meant, to exclude it from the reach of the Federal Tort Claims Act on the theory that the Act applies only to territory over which the United States exercises jurisdiction and sovereignty. Unfortunately, there appears to be no legislative history to provide enlightenment. And, as will now be seen, extrinsic aids to construction in the main support application of the Act to torts of American personnel in Antarctica although, again, there are also some grounds for reaching a contrary conclusion. First. A line of cases exemplified by United States v. Spelar, 338 U.S. 217, 70 S. Ct. 10, 94 L.Ed.3 (1949) strongly suggest that section 2680(k) should not be construed to bar this suit.[8]Spelar was a Federal Tort Claims Act action arising on an American airbase in Newfoundland which had been leased by Great Britain to the United States for ninety-nine years as part of the famous exchange of bases for destroyers in the early days of World War II. The Supreme Court held that the suit was barred by the section 2680(k) exception because (1) sovereignty was vested in another nation, and (2) Congress did not wish to subject the United States government to liability depending upon the law of a foreign power. The Court emphasized colloquy during House Judiciary Committee hearings between Assistant Attorney General Shea and Congressman Robinson as follows: Mr. Shea.... Claims arising in a foreign country have been exempted from this bill, H.R. 6463, whether or not the claimant is an alien. Since liability is to be determined by the law of the situs of the wrongful act or omission it is wise to restrict the bill to claims arising in this country. This seems desirable because the law of the particular State is being applied. Otherwise, it will lead I think to a good deal of difficulty. Mr. Robinson. You mean that any representative of the United States who committed a tort in England or some other country could not be reached under this? Mr. Shea. That is right. That would have to come to the Committee on Claims in the Congress. And the Court went on to state: In brief, though Congress was ready to lay aside a great portion of the sovereign's ancient and unquestioned immunity from suit, it was unwilling to subject the United States to liabilities depending upon the laws of a foreign power. The legislative will must be respected. (footnote omitted). 338 U.S. at 221, 70 S.Ct. at 12; see also Sami v. United States, 617 F.2d 755, 762-63 (D.C.Cir.1979); Callas v. United States, 253 F.2d 838, 839-40 (9th Cir.1958); Pignataro v. United States, 172 F. Supp. 151 (E.D.N.Y.1959); Roberts v. United States, 498 F.2d 520, 522 n. 2 (9th Cir.1974); Gerritson v. Vance, 488 F. Supp. 267, 268 (D.Mass.1980); annotation *783 6 L. Ed. 2d 1476.[9] The reasoning of these cases inferentially supports an application of the Act to Antarctica since no nation claims sovereignty on that continent and the law to be applied would not be that of another nation.[10] See Part II infra. On the other hand, one court has held,[11] and another has concurred,[12] that among other possible reasons for the section 2680(k) exception, all of them applicable here, are a reluctance to extend the benefits of the Act to foreign populations,[13] the absence of United States courts at the situs of the tort, and the difficulty of bringing witnesses to a trial in the United States. In short, no clear-cut answer emerges from these materials. Second. In situations which are somewhat analogous to that created by the Federal Tort Claims Act, United States laws and practices have been applied to Antarctica. Thus, the income tax regulations[14] define "foreign country" as "territory under the sovereignty of a government other than that of the United States." The U.S. Tax Court, after reviewing the history and status of Antarctica, concluded that Antarctica is not a foreign country. Larry R. Martin v. Commissioner, 50 T.C. 59 (1968). Similarly, the Tariff Act of 1930,[15] the Interstate Transportation of Wagering Paraphernalia Act,[16] the State Conducted Lotteries Act,[17] the Foreign Bank Participation in Domestic Market Act,[18] and the International Flight Information Manual published by the Federal Aviation Administration[19] pursuant to the Federal Aviation Act,[20] all directly or by necessary implication exclude Antarctica from the "foreign country" category. Moreover, to the extent that there is any assertion of governmental authority in Antarctica, it appears to be predominantly that of the United States. The United States conducts all search and rescue operations in Antarctica and, significantly, it controls all air transportation.[21] Further, when Admiral Byrd first occupied Antarctica, he established a United States Post Office in the Ross Dependency.[22] That Post Office has since been abandoned but McMurdo base now operates under a United States zip code. United States dollars are the currency of exchange at that base, and all persons on flights that land there must fill in immigration cards. Id. at 62. Third. If the allegations of the complaint are true, personnel employed by the United States government were guilty of negligence, possibly recklessness, and as a consequence an airplane crashed and all passengers and crew were killed. If the government's motion to dismiss is granted, *784 no one will be held liable for that negligence, and the survivors will not be able to claim or receive damages for these actions.[23] While, to be sure, there is not necessarily a remedy for every wrong, the Court is certainly justified in avoiding a construction of the governing statute which would lead to the result of a remediless wrong if that can fairly be done.[24] The Court concludes that, although the issue is not free from doubt, section 2680(k) does not bar this action.
II The government also argues that venue is improperly laid in this Court, and that District of Columbia law may not be applied. Both positions appear to the Court to be unsound. 28 U.S.C. § 1402(b) provides that tort claims may be prosecuted only "in the judicial district ... wherein the act or omission complained of occurred," and, says the government, since the situs of the acts or omissions is Antarctica, venue could not properly be here. This analysis neglects to consider that the complaint also alleges that the Department of Defense failed to use due care in the selection, training, and supervision of the naval personnel at the McMurdo base and to establish reasonable standards of training and performance for the operation of the facilities at the base.[25] A tort claim under the FTCA arises at the place where the negligent acts occurred; the place of the accident or injury is not necessarily controlling. Richards v. United States, 369 U.S. 1, 82 S. Ct. 585, 7 L. Ed. 2d 492 (1962). As a consequence of that principle, the FTCA has been applied a number of times in situations analogous to that involved here, and suits were allowed to be brought in the District of Columbia pursuant to District of Columbia law although the primary effect of the tort was abroad. See Sami v. United States, supra; Leaf v. United States, 588 F.2d 733 (9th Cir.1978); In re Paris Air Crash of March 3, 1974, 399 F. Supp. 732 (C.D.Cal.1975); Roberts v. United States, 498 F.2d 520 (9th Cir.1974); see also, Lamont v. Haig, 590 F.2d 1124 (D.C.Cir.1978). The appropriateness of District of Columbia law and venue are further supported by the fact that the necessary records relating to United States naval operations in Antarctica, and more particularly the records pertaining to this particular crash, are located in the District of Columbia. It may also be noted that the National Transportation Safety Board, headquartered in the District, sent to the site of the crash both its official representative and its flight recorder expert. The Federal Aviation Administration also sent a representative, and it returned the flight data recorder to the District of Columbia for analysis. In In re Air Crash Disaster Near Saigon, Vietnam on April 4, 1975, 476 F. Supp. 521, 527 (D.D.C.1979), Judge Oberdorfer applied District of Columbia law to *785 an air crash involving the U.S. Army in Vietnam, observing: ... officials acting at the Seat of the Government were the ultimately responsible actors in the chain of circumstances and specific events which ended in the deaths and injuries at issue here. Because of the national interests at stake here, the law of the forum, which is the law enacted by Congress for the Seat of the Government, should be displaced only if some other jurisdiction has an overwhelming policy interest in applying is own law (citations omitted). The Court concludes that it is appropriate to apply District of Columbia law to this controversy and to allow the suit to be brought here.[26]
III For the reasons stated, the motion to dismiss will be denied. However, it is obvious from what has been said that the order of dismissal involves at least one controlling question of law as to which there is substantial ground for difference of opinion. It also appears that an immediate appeal may materially advance the ultimate termination of the litigation. For these reasons, the Court will certify this case to the Court of Appeals for its consideration in conformity with 28 U.S.C. § 1292(b). NOTES [1] The specific claim is that these air traffic controllers failed to advise the crew of the DC-10 of the hazardous meoterological conditions and the plane's descent into mountainous terrain. [2] Outer space may occupy similar status. [3] When Admiral Byrd initially occupied parts of Antarctica, he claimed its territories for the United States. However, that claim has long been abandoned. The position of the United States government with respect to the future is somewhat equivocal. In 1981, the Assistant Secretary of State, Bureau of Oceans and International Environmental Affairs, James L. Malone, stated:
... there is no consensus that Antarctica is beyond the limits of national jurisdiction. The United States views this from two perspectives. First, while the United States does not recognize territorial sovereignty in Antarctica, the U.S. actively participates in the Antarctic Treaty which expressly does not prejudice the claims to territorial sovereignty made by seven states prior to the Treaty's entry into force. Second, the United States has and maintains a basis to a claim of sovereignty in Antarctica and this basis of claim is protected under the Antarctica Treaty. Law of the Sea Negotiations: Hearings before the Subcommittee on Arms Control, Oceans, International Operations & Environment of the Committee on Foreign Relations, 97th Cong., 1st Sess. 24-25 (1981). [4] Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, the Soviet Union, the United Kingdom, and the United States. [5] The unique status of Antarctica has been termed terra nullius, res nullius, and global commons, but each of these appears to suffer from some intrinsic inaccuracy as applied to that continent. [6] Assuming that country is a synonym for a nation; i.e., a body of individuals under a single government. [7] The Supreme Court, unhelpfully from the point of view of the problem here under review, said in 1901 in a different context that a foreign country is that which is "exclusively within the sovereignty of a foreign nation, and without the sovereignty of the United States." De Lima v. Bidwell, 182 U.S. 1, 21 S. Ct. 743, 45 L. Ed. 1041 (1901). The Court may not have considered prior to the expedition of Admiral Byrd to the South Pole in 1928 and the establishment thereafter of quasi-permanent settlements on Antarctica, that inhabited territory could exist which was neither within the sovereignty of the United States nor within that of a foreign nation. [8] In making this assessment, the Court has considered the familiar rule that, because the FTCA constitutes a waiver of sovereign immunity, it must be strictly construed. Thomas v. Calavar Corp., 679 F.2d 416, 418 (5th Cir.1982); Builders Corporation of America v. United States, 320 F.2d 425, 426 (9th Cir.1963). [9] The decisions relied on by the government are to the same effect. Cobb v. United States, 191 F.2d 604 (9th Cir.1952) and Burna v. United States, 240 F.2d 720 (4th Cir.1957), both involved occupied Okinawa where the United States never asserted sovereignty, and Meredith v. United States, 330 F.2d 9 (9th Cir.1964) arose in the American embassy in Bangkok, Thailand. With respect to all three cases, sovereignty was in another power. [10] Cf. Blumenthal v. United States, 189 F. Supp. 439, 446 (E.D.Pa.1960). [11] Burna v. United States, 240 F.2d 720 (4th Cir.1957). [12] Meredith v. United States, 330 F.2d 9, 10-11 (9th Cir.1964). [13] Plaintiffs in this case are residents and citizens of either New Zealand or Great Britain. [14] 26 C.F.R. § 1.911-3(d) (1983); see also Rev. Rul. 67-52, 1967-1 C.B. 186. [15] 19 U.S.C. §§ 1336(h)(3), 1338(i). [16] 18 U.S.C. § 1953(d). [17] 18 U.S.C. § 1307(c). [18] 12 U.S.C. § 3101(8). [19] 49 U.S.C. § 1301 et seq. [20] International Flight Information Manual vol. 30, January 1983. [21] For example, when in 1969 a group of New Zealand Alpine Club members desired to explore a range in Victoria Land, an area in Antarctica near the Ross Sea, it was refused permission because American authorities had limited allocation of space on its aircraft for New Zealanders. F.M. Auden, The Ross Dependency 74-75 (1972). [22] F.M. Auden, supra at 57. [23] Since there is neither foreign sovereignty nor foreign law in Antarctica, the responsibile parties could not be reached under the laws of any other nation. 10 U.S.C. § 2734, to which the government refers, provides only a strictly discretionary settlement procedure. [24] The allegedly negligent persons are United States personnel, and it is therefore neither surprising nor shocking that United States law should be applied. See Part II infra. [25] The government argues that plaintiff cannot rely upon these acts or omissions because the claims based thereon are dismissable under the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a). However, the cases cited Miller v. United States, 522 F.2d 386 (6th Cir.1975); Spillway Marina Inc. v. United States, 445 F.2d 876 (10th Cir.1971); Reminga v. United States, 631 F.2d 449 (6th Cir.1980); and Allnutt v. United States, 498 F. Supp. 832 (W.D.Mo.1980) to the extent that they support the government's position at all (Allnutt does not), involved either typical discretionary activities or the enforcement of safety standards of the type discussed by the Supreme Court in United States v. S.A. Empresa de Viacao Aerea Rio Grandese, ___ U.S. ___, 104 S. Ct. 2755, 81 L. Ed. 2d 660 (1984). The Court's discussion in that case of its previous Eastern Air Lines decision appears to indicate that the discretionary function exception does not apply to the negligence of air traffic controllers and related acts of supervisors. [26] The Supreme Court said in Burnette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U.S. 706, 92 S. Ct. 1936, 32 L. Ed. 2d 428 (1972) with respect to venue provisions regarding suits against aliens that
Congress does not in general intend to create venue gaps, which take away with one hand what Congress has given by way of jurisdictional grant with the other. Thus, in construing venue statutes, it is reasonable to prefer the construction that avoids leaving such a gap. 406 U.S. at 710 n. 8, 92 S.Ct. at 1939 n. 8. | 10-30-2013 | [
"592 F. Supp. 780 (1984) Martin John BEATTIE, et al., Plaintiffs, v. UNITED STATES of America, Defendant. Civ. A. No. 82-3520. United States District Court, District of Columbia. June 25, 1984. *781 Juanita M. Madole, Speiser, Krause & Madole, Washington, D.C., for plaintiffs. Gary W. Allen, U.S. Dept. of Justice, Torts Branch, Civil Div., Washington, D.C., for defendant. MEMORANDUM HAROLD H. GREENE, District Judge. This case involves an unusual question under the Federal Tort Claims Act whether the Act applies to torts committed by employees of the United States in Antarctica. Plaintiffs, appointed by foreign courts as administrators of the estates of individuals killed in the crash of an Air New Zealand DC-10 in Antarctica on November 28, 1979, brought this suit under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., claiming negligence by U.S. Navy personnel on duty at two air traffic control facilities located at the McMurdo Naval Station airfield on that continent. [1] The government has moved to dismiss, asserting that the claims are not cognizable under the Act.",
"I Section 2680(k) exempts from the coverage of the Federal Tort Claims Act \"any claim arising in a foreign country,\" and the basic question before the Court is whether Antarctica is a \"foreign country\" within the meaning of the statute. That issue has never before been decided and, for a variety of reasons, it is not free from doubt. Antarctica is unique on the surface of the earth[2] in that it is not subject to the sovereign rule of any nation; it has never been part of any such sovereignty; and there are no plans to subject it to such rule in the future. The United States itself has taken the position that the continent and surrounding ice shelves are not subject to its own rule or that of any other nation. [3] Indeed, under Article IV of the Antarctica Treaty, signed on December 1, 1959, the contracting nations[4] agreed not to assert any territorial claim in Antarctica or to establish rights of sovereignty there. In view of this status of Antarctica,[5] if the words of the statute are to be the decisive guide to statutory interpretation, the government's motion must fail, for clearly the instant claim did not arise in a foreign country as that term is commonly understood.",
"Antarctica is not a foreign country; it is not a country at all;[6] and it is not under the domination of any other foreign nation or country. Thus, if it be *782 deduced from the language of the law that the section 2680(k) exception applies only where the government of a foreign nation has or asserts sovereignty, the Court would have to hold that with respect to Antarctica the exception does not, and the Act does, apply. It is also true, on the other hand, that Antarctica is not part of the United States. [7] The government builds upon that fact to argue that Congress meant, or must have meant, to exclude it from the reach of the Federal Tort Claims Act on the theory that the Act applies only to territory over which the United States exercises jurisdiction and sovereignty.",
"Unfortunately, there appears to be no legislative history to provide enlightenment. And, as will now be seen, extrinsic aids to construction in the main support application of the Act to torts of American personnel in Antarctica although, again, there are also some grounds for reaching a contrary conclusion. First. A line of cases exemplified by United States v. Spelar, 338 U.S. 217, 70 S. Ct. 10, 94 L.Ed.3 (1949) strongly suggest that section 2680(k) should not be construed to bar this suit. [8]Spelar was a Federal Tort Claims Act action arising on an American airbase in Newfoundland which had been leased by Great Britain to the United States for ninety-nine years as part of the famous exchange of bases for destroyers in the early days of World War II. The Supreme Court held that the suit was barred by the section 2680(k) exception because (1) sovereignty was vested in another nation, and (2) Congress did not wish to subject the United States government to liability depending upon the law of a foreign power. The Court emphasized colloquy during House Judiciary Committee hearings between Assistant Attorney General Shea and Congressman Robinson as follows: Mr. Shea.... Claims arising in a foreign country have been exempted from this bill, H.R. 6463, whether or not the claimant is an alien.",
"Since liability is to be determined by the law of the situs of the wrongful act or omission it is wise to restrict the bill to claims arising in this country. This seems desirable because the law of the particular State is being applied. Otherwise, it will lead I think to a good deal of difficulty. Mr. Robinson. You mean that any representative of the United States who committed a tort in England or some other country could not be reached under this? Mr. Shea. That is right. That would have to come to the Committee on Claims in the Congress. And the Court went on to state: In brief, though Congress was ready to lay aside a great portion of the sovereign's ancient and unquestioned immunity from suit, it was unwilling to subject the United States to liabilities depending upon the laws of a foreign power. The legislative will must be respected. (footnote omitted).",
"338 U.S. at 221, 70 S.Ct. at 12; see also Sami v. United States, 617 F.2d 755, 762-63 (D.C.Cir.1979); Callas v. United States, 253 F.2d 838, 839-40 (9th Cir.1958); Pignataro v. United States, 172 F. Supp. 151 (E.D.N.Y.1959); Roberts v. United States, 498 F.2d 520, 522 n. 2 (9th Cir.1974); Gerritson v. Vance, 488 F. Supp. 267, 268 (D.Mass.1980); annotation *783 6 L. Ed. 2d 1476. [9] The reasoning of these cases inferentially supports an application of the Act to Antarctica since no nation claims sovereignty on that continent and the law to be applied would not be that of another nation. [10] See Part II infra. On the other hand, one court has held,[11] and another has concurred,[12] that among other possible reasons for the section 2680(k) exception, all of them applicable here, are a reluctance to extend the benefits of the Act to foreign populations,[13] the absence of United States courts at the situs of the tort, and the difficulty of bringing witnesses to a trial in the United States. In short, no clear-cut answer emerges from these materials.",
"Second. In situations which are somewhat analogous to that created by the Federal Tort Claims Act, United States laws and practices have been applied to Antarctica. Thus, the income tax regulations[14] define \"foreign country\" as \"territory under the sovereignty of a government other than that of the United States.\" The U.S. Tax Court, after reviewing the history and status of Antarctica, concluded that Antarctica is not a foreign country. Larry R. Martin v. Commissioner, 50 T.C. 59 (1968). Similarly, the Tariff Act of 1930,[15] the Interstate Transportation of Wagering Paraphernalia Act,[16] the State Conducted Lotteries Act,[17] the Foreign Bank Participation in Domestic Market Act,[18] and the International Flight Information Manual published by the Federal Aviation Administration[19] pursuant to the Federal Aviation Act,[20] all directly or by necessary implication exclude Antarctica from the \"foreign country\" category. Moreover, to the extent that there is any assertion of governmental authority in Antarctica, it appears to be predominantly that of the United States.",
"The United States conducts all search and rescue operations in Antarctica and, significantly, it controls all air transportation. [21] Further, when Admiral Byrd first occupied Antarctica, he established a United States Post Office in the Ross Dependency. [22] That Post Office has since been abandoned but McMurdo base now operates under a United States zip code. United States dollars are the currency of exchange at that base, and all persons on flights that land there must fill in immigration cards. Id. at 62. Third. If the allegations of the complaint are true, personnel employed by the United States government were guilty of negligence, possibly recklessness, and as a consequence an airplane crashed and all passengers and crew were killed.",
"If the government's motion to dismiss is granted, *784 no one will be held liable for that negligence, and the survivors will not be able to claim or receive damages for these actions. [23] While, to be sure, there is not necessarily a remedy for every wrong, the Court is certainly justified in avoiding a construction of the governing statute which would lead to the result of a remediless wrong if that can fairly be done. [24] The Court concludes that, although the issue is not free from doubt, section 2680(k) does not bar this action. II The government also argues that venue is improperly laid in this Court, and that District of Columbia law may not be applied. Both positions appear to the Court to be unsound.",
"28 U.S.C. § 1402(b) provides that tort claims may be prosecuted only \"in the judicial district ... wherein the act or omission complained of occurred,\" and, says the government, since the situs of the acts or omissions is Antarctica, venue could not properly be here. This analysis neglects to consider that the complaint also alleges that the Department of Defense failed to use due care in the selection, training, and supervision of the naval personnel at the McMurdo base and to establish reasonable standards of training and performance for the operation of the facilities at the base. [25] A tort claim under the FTCA arises at the place where the negligent acts occurred; the place of the accident or injury is not necessarily controlling. Richards v. United States, 369 U.S. 1, 82 S. Ct. 585, 7 L. Ed.",
"2d 492 (1962). As a consequence of that principle, the FTCA has been applied a number of times in situations analogous to that involved here, and suits were allowed to be brought in the District of Columbia pursuant to District of Columbia law although the primary effect of the tort was abroad. See Sami v. United States, supra; Leaf v. United States, 588 F.2d 733 (9th Cir.1978); In re Paris Air Crash of March 3, 1974, 399 F. Supp. 732 (C.D.Cal.1975); Roberts v. United States, 498 F.2d 520 (9th Cir.1974); see also, Lamont v. Haig, 590 F.2d 1124 (D.C.Cir.1978). The appropriateness of District of Columbia law and venue are further supported by the fact that the necessary records relating to United States naval operations in Antarctica, and more particularly the records pertaining to this particular crash, are located in the District of Columbia.",
"It may also be noted that the National Transportation Safety Board, headquartered in the District, sent to the site of the crash both its official representative and its flight recorder expert. The Federal Aviation Administration also sent a representative, and it returned the flight data recorder to the District of Columbia for analysis. In In re Air Crash Disaster Near Saigon, Vietnam on April 4, 1975, 476 F. Supp. 521, 527 (D.D.C.1979), Judge Oberdorfer applied District of Columbia law to *785 an air crash involving the U.S. Army in Vietnam, observing: ... officials acting at the Seat of the Government were the ultimately responsible actors in the chain of circumstances and specific events which ended in the deaths and injuries at issue here. Because of the national interests at stake here, the law of the forum, which is the law enacted by Congress for the Seat of the Government, should be displaced only if some other jurisdiction has an overwhelming policy interest in applying is own law (citations omitted). The Court concludes that it is appropriate to apply District of Columbia law to this controversy and to allow the suit to be brought here.",
"[26] III For the reasons stated, the motion to dismiss will be denied. However, it is obvious from what has been said that the order of dismissal involves at least one controlling question of law as to which there is substantial ground for difference of opinion. It also appears that an immediate appeal may materially advance the ultimate termination of the litigation. For these reasons, the Court will certify this case to the Court of Appeals for its consideration in conformity with 28 U.S.C. § 1292(b). NOTES [1] The specific claim is that these air traffic controllers failed to advise the crew of the DC-10 of the hazardous meoterological conditions and the plane's descent into mountainous terrain.",
"[2] Outer space may occupy similar status. [3] When Admiral Byrd initially occupied parts of Antarctica, he claimed its territories for the United States. However, that claim has long been abandoned. The position of the United States government with respect to the future is somewhat equivocal. In 1981, the Assistant Secretary of State, Bureau of Oceans and International Environmental Affairs, James L. Malone, stated: ... there is no consensus that Antarctica is beyond the limits of national jurisdiction. The United States views this from two perspectives. First, while the United States does not recognize territorial sovereignty in Antarctica, the U.S. actively participates in the Antarctic Treaty which expressly does not prejudice the claims to territorial sovereignty made by seven states prior to the Treaty's entry into force. Second, the United States has and maintains a basis to a claim of sovereignty in Antarctica and this basis of claim is protected under the Antarctica Treaty. Law of the Sea Negotiations: Hearings before the Subcommittee on Arms Control, Oceans, International Operations & Environment of the Committee on Foreign Relations, 97th Cong., 1st Sess. 24-25 (1981). [4] Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, the Soviet Union, the United Kingdom, and the United States. [5] The unique status of Antarctica has been termed terra nullius, res nullius, and global commons, but each of these appears to suffer from some intrinsic inaccuracy as applied to that continent.",
"[6] Assuming that country is a synonym for a nation; i.e., a body of individuals under a single government. [7] The Supreme Court, unhelpfully from the point of view of the problem here under review, said in 1901 in a different context that a foreign country is that which is \"exclusively within the sovereignty of a foreign nation, and without the sovereignty of the United States.\" De Lima v. Bidwell, 182 U.S. 1, 21 S. Ct. 743, 45 L. Ed. 1041 (1901). The Court may not have considered prior to the expedition of Admiral Byrd to the South Pole in 1928 and the establishment thereafter of quasi-permanent settlements on Antarctica, that inhabited territory could exist which was neither within the sovereignty of the United States nor within that of a foreign nation. [8] In making this assessment, the Court has considered the familiar rule that, because the FTCA constitutes a waiver of sovereign immunity, it must be strictly construed. Thomas v. Calavar Corp., 679 F.2d 416, 418 (5th Cir.1982); Builders Corporation of America v. United States, 320 F.2d 425, 426 (9th Cir.1963).",
"[9] The decisions relied on by the government are to the same effect. Cobb v. United States, 191 F.2d 604 (9th Cir.1952) and Burna v. United States, 240 F.2d 720 (4th Cir.1957), both involved occupied Okinawa where the United States never asserted sovereignty, and Meredith v. United States, 330 F.2d 9 (9th Cir.1964) arose in the American embassy in Bangkok, Thailand. With respect to all three cases, sovereignty was in another power. [10] Cf. Blumenthal v. United States, 189 F. Supp. 439, 446 (E.D.Pa.1960).",
"[11] Burna v. United States, 240 F.2d 720 (4th Cir.1957). [12] Meredith v. United States, 330 F.2d 9, 10-11 (9th Cir.1964). [13] Plaintiffs in this case are residents and citizens of either New Zealand or Great Britain. [14] 26 C.F.R. § 1.911-3(d) (1983); see also Rev. Rul. 67-52, 1967-1 C.B. 186. [15] 19 U.S.C. §§ 1336(h)(3), 1338(i). [16] 18 U.S.C. § 1953(d). [17] 18 U.S.C. § 1307(c). [18] 12 U.S.C. § 3101(8). [19] 49 U.S.C. § 1301 et seq.",
"[20] International Flight Information Manual vol. 30, January 1983. [21] For example, when in 1969 a group of New Zealand Alpine Club members desired to explore a range in Victoria Land, an area in Antarctica near the Ross Sea, it was refused permission because American authorities had limited allocation of space on its aircraft for New Zealanders. F.M. Auden, The Ross Dependency 74-75 (1972). [22] F.M. Auden, supra at 57. [23] Since there is neither foreign sovereignty nor foreign law in Antarctica, the responsibile parties could not be reached under the laws of any other nation. 10 U.S.C. § 2734, to which the government refers, provides only a strictly discretionary settlement procedure. [24] The allegedly negligent persons are United States personnel, and it is therefore neither surprising nor shocking that United States law should be applied.",
"See Part II infra. [25] The government argues that plaintiff cannot rely upon these acts or omissions because the claims based thereon are dismissable under the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a). However, the cases cited Miller v. United States, 522 F.2d 386 (6th Cir.1975); Spillway Marina Inc. v. United States, 445 F.2d 876 (10th Cir.1971); Reminga v. United States, 631 F.2d 449 (6th Cir.1980); and Allnutt v. United States, 498 F. Supp. 832 (W.D.Mo.1980) to the extent that they support the government's position at all (Allnutt does not), involved either typical discretionary activities or the enforcement of safety standards of the type discussed by the Supreme Court in United States v. S.A. Empresa de Viacao Aerea Rio Grandese, ___ U.S. ___, 104 S. Ct. 2755, 81 L. Ed. 2d 660 (1984). The Court's discussion in that case of its previous Eastern Air Lines decision appears to indicate that the discretionary function exception does not apply to the negligence of air traffic controllers and related acts of supervisors. [26] The Supreme Court said in Burnette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U.S. 706, 92 S. Ct. 1936, 32 L. Ed. 2d 428 (1972) with respect to venue provisions regarding suits against aliens that Congress does not in general intend to create venue gaps, which take away with one hand what Congress has given by way of jurisdictional grant with the other.",
"Thus, in construing venue statutes, it is reasonable to prefer the construction that avoids leaving such a gap. 406 U.S. at 710 n. 8, 92 S.Ct. at 1939 n. 8."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1816571/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Judge WEBB dissenting. I dissent from the majority because I believe the evidence shows there was substantial compliance with G.S. 7A-532 before the juvenile petition was filed. The evidence shows the juvenile had called the home of Bill Gwyn, the complaining witness, on several occasions before 29 June 1981 and that Mr. Gwyn had told the juvenile to stop calling his home. Jack Moore, a juvenile officer, talked to Mr. Gwyn and the juvenile in regard to the calls. Mr. Moore discussed these conversations with Linda Chaney, the juvenile officer who approved the petition on 30 June 1981. I believe this was substantial compliance with G.S. 7A-532. *244I also believe the evidence was sufficient to find the juvenile was delinquent. Mr. Gwyn testified that the juvenile and his son had “dated for approximately four or five months” but were no longer doing so and that they “had some problems and Debbie has had Tommy brought to court.” I believe that with this background, the telephone calls to Mr. Gwyn’s residence were harassing calls after Mr. Gwyn had told the juvenile to stop calling his residence. | 11-27-2022 | [
"Judge WEBB dissenting. I dissent from the majority because I believe the evidence shows there was substantial compliance with G.S. 7A-532 before the juvenile petition was filed. The evidence shows the juvenile had called the home of Bill Gwyn, the complaining witness, on several occasions before 29 June 1981 and that Mr. Gwyn had told the juvenile to stop calling his home. Jack Moore, a juvenile officer, talked to Mr. Gwyn and the juvenile in regard to the calls. Mr. Moore discussed these conversations with Linda Chaney, the juvenile officer who approved the petition on 30 June 1981. I believe this was substantial compliance with G.S. 7A-532. *244I also believe the evidence was sufficient to find the juvenile was delinquent.",
"Mr. Gwyn testified that the juvenile and his son had “dated for approximately four or five months” but were no longer doing so and that they “had some problems and Debbie has had Tommy brought to court.” I believe that with this background, the telephone calls to Mr. Gwyn’s residence were harassing calls after Mr. Gwyn had told the juvenile to stop calling his residence."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8904385/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
LILES, Acting Chief Judge. Appellant was charged with larceny of an automobile, and entered a plea of guilty. He was sentenced to three years in prison. Prior to the sentencing, he had spent 116 days in jail. After his imprisonment for the three year term, appellant filed a motion asking the trial court to give him credit for the 116 days previously spent in jail. The trial court denied this motion and the appellant entered this appeal. Florida Statute 921.161, F.S.A. is controlling on this point. This statute reads in pertinent part as follows: “However, a judge imposing such a sentence may allow the defendant credit thereon for all or any part of the time spent by him in the county jail prior to sentence.” (Emphasis added.) This statute makes it clear that the granting of credit for jail time served prior to sentencing is a matter within the discretion of the trial judge. We do not believe the trial judge abused his discretion under the statute. Appellant relies on Dunn v. United States, 4th Cir. 1967, 376 F.2d 191, as requiring credit for present custody. Dunn applies to federal crimes wherein the offense is against the United States government as distinguished from those offenses where the defendant is sentenced pursuant to and under the authority of the State of Florida. This court in Miles v. State, Fla. App.1968, 214 So.2d 101, held that a defendant was not entitled, as a matter of right, to credit for pre-sentence jail time. The Miles case and the Florida statute are controlling in this matter. For these reasons the judgment and sentence of the trial judge is therefore affirmed. HOBSON and McNULTY, JJ., concur. | 07-29-2022 | [
"LILES, Acting Chief Judge. Appellant was charged with larceny of an automobile, and entered a plea of guilty. He was sentenced to three years in prison. Prior to the sentencing, he had spent 116 days in jail. After his imprisonment for the three year term, appellant filed a motion asking the trial court to give him credit for the 116 days previously spent in jail. The trial court denied this motion and the appellant entered this appeal. Florida Statute 921.161, F.S.A. is controlling on this point. This statute reads in pertinent part as follows: “However, a judge imposing such a sentence may allow the defendant credit thereon for all or any part of the time spent by him in the county jail prior to sentence.” (Emphasis added.) This statute makes it clear that the granting of credit for jail time served prior to sentencing is a matter within the discretion of the trial judge.",
"We do not believe the trial judge abused his discretion under the statute. Appellant relies on Dunn v. United States, 4th Cir. 1967, 376 F.2d 191, as requiring credit for present custody. Dunn applies to federal crimes wherein the offense is against the United States government as distinguished from those offenses where the defendant is sentenced pursuant to and under the authority of the State of Florida. This court in Miles v. State, Fla. App.1968, 214 So.2d 101, held that a defendant was not entitled, as a matter of right, to credit for pre-sentence jail time. The Miles case and the Florida statute are controlling in this matter. For these reasons the judgment and sentence of the trial judge is therefore affirmed. HOBSON and McNULTY, JJ., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7441429/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 01-4974 ROBERT C. HENDRICKS, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 01-4975 JOYCE E. PERDUE, a/k/a Pastor Joyce, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 01-4976 ELIZABETH BROWN, Defendant-Appellant. Appeals from the United States District Court for the District of Maryland, at Baltimore. Marvin J. Garbis, District Judge. (CR-98-515-MJG)
Submitted: April 30, 2003
Decided: June 26, 2003
Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges. 2 UNITED STATES v. HENDRICKS Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas L. Crowe, LAW OFFICES OF THOMAS L. CROWE, Balti- more, Maryland; Richard D. Bennett, Sean P. Vitrano, MILES & STOCKBRIDGE, P.C., Baltimore, Maryland; John C. Fones, LAW OFFICES OF JOHN C. FONES, Baltimore, Maryland, for Appel- lants. Thomas M. DiBiagio, United States Attorney, Bonnie S. Green- berg, Assistant United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).
OPINION
PER CURIAM:
Robert C. Hendricks, Joyce E. Perdue and Elizabeth Brown were convicted at a bench trial for conspiracy to commit visa and immigra- tion fraud, 18 U.S.C. § 371 (2000), six counts of visa fraud, 18 U.S.C. § 546 (2000), and ten counts of immigration fraud, 18 U.S.C. § 1324 (2000). Hendricks and Perdue were convicted of an additional count of visa fraud, 18 U.S.C. § 546. They appeal the introduction of evi- dence of activities related to the adoption of Estonian children, certain elements in the imposition of their sentences, and a special condition imposed on their supervised release. Finding no error, we affirm the convictions and sentences as imposed by the district court.
Defendants are devout Pentecostal Charismatic Christians and members of the World Faith Outreach Church. Perdue is the Pastor and spiritual head of the church. Hendricks is the Associate Pastor. Brown is an active church member and the head of the children’s ministry and the music ministry. Beginning in 1990, the church UNITED STATES v. HENDRICKS 3 embarked on a series of missions to Estonia. In 1992, Defendants moved to Estonia.
In 1997, Defendants returned to the United States. Thirteen Esto- nians between the ages of thirteen and eighteen sought and received religious worker or student visas to enter the United States with the Defendants. The Defendants instructed the Estonians to state in their student visa applications that they would not work while in the United States and in their religious worker applications that they would only engage in religious work. The Defendants, however, required the Estonians, including the minors, to work in the cleaning company or the furniture installation company they owned, which had been the Defendants’ intention when they recruited the Estonians. The students attended school irregularly. The Estonians were paid ten to one- hundred dollars a week for their labor.
In addition to the cleaning company and the furniture installation company, the Defendants also owned an adoption agency that sought fraudulent visas for women to come to the United States with their children who were to be placed with adoptive families. In the course of seeking to place children with families in the United States, the Defendants attempted to escape the notice of the Estonian officials that they were seeking babies to remove from Estonia, obtained false visas to bring the children to the United States, paid the mothers of the children who were to be adopted and encouraged adoptive parents to write checks for adoption fees to the church so they could be treated as charitable contributions.
In May 1999, Perdue, Hendricks, and Brown pled guilty to Count One of the indictment but preserved their right to appeal the district court’s ruling on the Government’s motion in limine. That motion sought to prevent the Defendants from presenting evidence that they had a good faith belief the immigrants were not performing work within the meaning of the Immigration and Naturalization Service’s regulations in order to negate the mens rea required by the statutes. The remaining counts of the indictment were dismissed. Brown was sentenced to a term of imprisonment of twelve months, Hendricks was sentenced to a term of imprisonment of twenty-four months, and Perdue was sentenced to a term of imprisonment of twenty-seven months. On appeal, this Court determined the district court had not 4 UNITED STATES v. HENDRICKS considered the most relevant case authority on the issue of the mens rea requirements of § 1324(a) and remanded for re-consideration under United States v. Oloyede, 982 F.2d 133 (4th Cir. 1992). United States v. Hendricks, No. 99-4562(L), 2000 WL 341914, at **3-4 (4th Cir. Apr. 3, 2000) (unpublished).
Following remand, a bench trial was held, and the district court entered its memorandum of decision finding all Defendants guilty of all counts. Perdue was sentenced to a term of seventy-two months imprisonment, Hendricks to a term of seventy-eight months imprison- ment, and Brown to a term of fifteen months imprisonment. As a spe- cial term of supervised release, the Defendants were precluded from communicating with each other.
First, Defendants appeal the district court’s denial of their motion in limine to exclude evidence relating to the New Life Adoption Agency and their involvement with the adoption of Estonian children by Americans. Defendants assert the district court erred in its holding that the evidence was direct evidence of the conspiracy charged in Count One of the indictment and, alternatively, that the evidence was admissible under Fed. R. Evid. 404(b). Defendants also assert evi- dence of acts relating to adoptions that occurred before the period charged in the indictment were not proper Rule 404(b) evidence because the probative value of such evidence was severely out- weighed by the actual prejudice to the Defendants.
In denying the motion in limine, the district court found the lan- guage of the indictment broad enough to encompass the proffered evi- dence of the conspiracy if the Defendants were, within the time frame charged in the indictment, causing Estonian mothers to make false or misleading statements to obtain or seek to obtain visas. The court stated that even if the adoption evidence fell under Rule 404(b), it was evidence of criminal intent and would contradict contentions of good faith. Fed. R. Evid. 404(b). The district court reaffirmed its ruling dur- ing the course of the trial when the Government introduced two docu- ments dated prior to the period of the indictment. The court clarified that evidence of acts prior to the date of the indictment would be Rule 404(b) evidence and admissible as such. We find this reasoning to be sound. The activities related to the Defendants’ attempts to place Estonian children in adoptive homes in the United States were UNITED STATES v. HENDRICKS 5 undertaken in violation of the law. The instructions to prepare false and misleading responses on the visa applications for both the teenage Estonians and the mothers seeking to put their children up for adop- tion were part of the same conspiracy that was specifically identified in the indictment. Moreover, the evidence related to the Defendants’ manipulation of the visa process for the mothers, which helped to explain the nature of the conspiracy and to fill in the details of the crime. See United States v. Kennedy, 32 F.3d 876, 885-86 (4th Cir. 1994); United States v. Mark, 943 F.2d 444, 448 (4th Cir. 1991). We find there was no abuse of discretion in the court’s finding that the adoption evidence was admissible as evidence of the visa fraud con- spiracy and the evidence of prior acts was properly admitted as Rule 404(b) evidence. United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988). We also find the motion in limine was properly denied. See Malone v. Microdyne Corp., 26 F.3d 471, 480 (4th Cir. 1994) (stating standard of review).
Next, Defendants raise several issues related to their sentences. First, Defendants assert the district court vindictively increased their sentences after remand from this court. There is no presumption of vindictiveness when a district court imposes a greater penalty after trial than was imposed after a prior guilty plea. Alabama v. Smith, 490 U.S. 794, 801-02 (1989). At the eleven-day trial on remand, numer- ous prosecution witnesses (including the customers of the cleaning and furniture installation companies that employed the Estonians, a school official, and church members) were presented. Hendricks testi- fied. There were over two hundred documents introduced at trial. The sentence imposed by the district court was proper under the sentenc- ing guidelines. See United States v. Olivares, 292 F.3d 196, 198 & n.2 (4th Cir.), cert. denied, 123 S. Ct. 41 (2002). Defendants’ assertion that the district court was vindictive in the imposition of sentence upon remand is meritless.
Next, Perdue and Hendricks contend the district court improperly enhanced their base offense levels for abuse of trust and improperly enhanced Hendricks’ sentence for obstruction of justice. This Court reviews the district court’s application of the sentencing enhance- ments de novo, and factual findings with respect to sentencing for clear error. United States v. Bollin, 264 F.3d 391, 415 (4th Cir.), cert. denied, 534 U.S. 935 (2001). 6 UNITED STATES v. HENDRICKS Hendricks and Perdue assert the victim of their false statements was the United States Government and they did not occupy a position of trust vis-a-vis the Government. The district court found that Hen- dricks and Perdue occupied positions of trust as Pastor and Assistant Pastor in relation to the Estonians and abused that trust. The district court’s determination that an adjustment for abuse of trust applies is a factual question reviewed for clear error. United States v. Akinkoye, 185 F.3d 192, 203 (4th Cir. 1999). We find the district court did not clearly err in its factual finding that Hendricks and Perdue occupied a position of trust vis-a-vis the Estonians and they betrayed that trust such that the application of U.S. Sentencing Guidelines Manual § 3B1.3 (2000) was appropriate.
Hendricks appeals the district court’s application of a two-level adjustment for obstruction of justice, USSG § 3C1.1. Hendricks was the only Defendant to testify at trial, and the district court found that Hendricks lied about four distinct matters. Hendricks contends that these matters were not material matters upon which he gave false tes- timony with the willful intent to deceive and related only to his per- sonal knowledge and his intent. We find the record supports the district court’s enhancement for obstruction of justice. See United States v. Stotts, 113 F.3d 493, 497 (4th Cir. 1997) (citing United States v. Dunnigan, 507 U.S. 87, 94 (1993)).
Third, Hendricks and Perdue challenge the application of a two- level departure to the base offense level for abuse of the teenagers pursuant to USSG § 5K2.0 and a one level departure based on the tax fraud scheme. Hendricks and Perdue assert they did not receive ade- quate notice of the court’s intent to depart upward. The court notified the Defendants that it was contemplating departures on Friday, November 16, 2001. Sentencing was Monday, November 19, 2001. A district court must give reasonable notice that it is contemplating an upward departure when the ground for the departure is not identi- fied in the presentence report or a prehearing submission by the gov- ernment. Burns v. United States, 501 U.S. 129, 138 (1991). Both factual bases for the upward departures were raised in the Govern- ment’s sentencing memorandum filed on November 9, 2001. The Government sought an upward departure pursuant to USSG § 5K2.3 (psychological injury) based on the impact the Defendants had on the teenagers’ lives. The Government also sought an upward departure UNITED STATES v. HENDRICKS 7 for uncharged conduct including the tax fraud in that same memoran- dum. This claim is thus meritless because Hendricks and Perdue had adequate notice of the factual bases for the departures in the Govern- ment’s sentencing memorandum.
Hendricks and Perdue assert the court’s finding of abuse of chil- dren pursuant to USSG § 5K2.0 is unsupported in the record. This contention is meritless. The court’s ultimate decision to depart is reviewed for abuse of discretion, but its underlying factual findings are reviewed for clear error. United States v. Rybicki, 96 F.3d 754, 756-57 (4th Cir. 1996). Our review of the record demonstrates the district court did not clearly err in its finding that the children were abused.
Hendricks and Perdue assert the fraud in which they engaged as part of the scheme to bring the Estonians to the United States on visas acquired with fraudulent applications is not outside the heartland of the offense contemplated by the guidelines. They contend immigra- tion fraud involving illegal workers normally includes such elements as lack of workers’ compensation insurance and failure to deduct and pay payroll taxes. They also aver that to the extent the degree of fraud may take their case out of the heartland, it is mitigated by their belief that the Estonians were volunteers, not employees.
The district court found it appropriate to depart upward two levels because the evidence presented was "outside the heartland of normal cases involving visa fraud." Id., at 758. The court specifically men- tioned: (1) the adoption scheme, which was charged but not in the heartland of the visa fraud, including the use of innocent third parties to sponsor mothers and their children in conjunction with the pur- chase and attempted purchase of babies in Estonia for adoption in the United States; (2) the tax fraud scheme involving the acceptance of charitable deductions for adoption fees using the presumed tax exempt status of the church; and (3) the insurance fraud involving the acquisition of workers’ compensation insurance that covered Hen- dricks only and not the Estonians, so that the cleaning service could provide businesses with proof of insurance. We find the district court did not clearly err in its factual findings and did not abuse its discre- tion in departing upward for the scope of the fraud perpetuated by Hendricks and Perdue. 8 UNITED STATES v. HENDRICKS Fourth, Defendants assert the district court’s imposition as a special term of supervised release that "the defendant shall not meet or com- municate with co-defendants," is overbroad, not narrowly tailored to meet the ends of rehabilitation and to protect the public, and an improper restriction on their First Amendment right of free associa- tion. The district court’s decision to impose special conditions of supervised release is reviewed for abuse of discretion. United States v. Crandon, 173 F.3d 122, 127 (3d Cir. 1999). "Probation conditions may seek to prevent reversion into a former crime-inducing lifestyle by barring contact with old haunts and associates, even though the activities may be legal." United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991) (citing Malone v. United States, 502 F.2d 554, 556-57 (9th Cir. 1974)); see also United States v. Bortels, 962 F.2d 558, 559- 60 (6th Cir. 1992); United States v. Showalter, 933 F.2d 573, 575-76 (7th Cir. 1991). We find the restrictions placed on the Defendants do not unnecessarily interfere with the Defendants’ right to associate.
Accordingly, we affirm Perdue’s, Hendricks’ and Brown’s convic- tions and sentences. We deny Hendricks’ motion to file a pro se sup- plemental brief. 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 in the decisional process.
AFFIRMED | 07-04-2013 | [
"UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 01-4974 ROBERT C. HENDRICKS, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 01-4975 JOYCE E. PERDUE, a/k/a Pastor Joyce, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 01-4976 ELIZABETH BROWN, Defendant-Appellant. Appeals from the United States District Court for the District of Maryland, at Baltimore. Marvin J. Garbis, District Judge. (CR-98-515-MJG) Submitted: April 30, 2003 Decided: June 26, 2003 Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges. 2 UNITED STATES v. HENDRICKS Affirmed by unpublished per curiam opinion. COUNSEL Thomas L. Crowe, LAW OFFICES OF THOMAS L. CROWE, Balti- more, Maryland; Richard D. Bennett, Sean P. Vitrano, MILES & STOCKBRIDGE, P.C., Baltimore, Maryland; John C. Fones, LAW OFFICES OF JOHN C. FONES, Baltimore, Maryland, for Appel- lants. Thomas M. DiBiagio, United States Attorney, Bonnie S. Green- berg, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit.",
"See Local Rule 36(c). OPINION PER CURIAM: Robert C. Hendricks, Joyce E. Perdue and Elizabeth Brown were convicted at a bench trial for conspiracy to commit visa and immigra- tion fraud, 18 U.S.C. § 371 (2000), six counts of visa fraud, 18 U.S.C. § 546 (2000), and ten counts of immigration fraud, 18 U.S.C. § 1324 (2000). Hendricks and Perdue were convicted of an additional count of visa fraud, 18 U.S.C. § 546. They appeal the introduction of evi- dence of activities related to the adoption of Estonian children, certain elements in the imposition of their sentences, and a special condition imposed on their supervised release. Finding no error, we affirm the convictions and sentences as imposed by the district court. Defendants are devout Pentecostal Charismatic Christians and members of the World Faith Outreach Church.",
"Perdue is the Pastor and spiritual head of the church. Hendricks is the Associate Pastor. Brown is an active church member and the head of the children’s ministry and the music ministry. Beginning in 1990, the church UNITED STATES v. HENDRICKS 3 embarked on a series of missions to Estonia. In 1992, Defendants moved to Estonia. In 1997, Defendants returned to the United States. Thirteen Esto- nians between the ages of thirteen and eighteen sought and received religious worker or student visas to enter the United States with the Defendants.",
"The Defendants instructed the Estonians to state in their student visa applications that they would not work while in the United States and in their religious worker applications that they would only engage in religious work. The Defendants, however, required the Estonians, including the minors, to work in the cleaning company or the furniture installation company they owned, which had been the Defendants’ intention when they recruited the Estonians. The students attended school irregularly. The Estonians were paid ten to one- hundred dollars a week for their labor. In addition to the cleaning company and the furniture installation company, the Defendants also owned an adoption agency that sought fraudulent visas for women to come to the United States with their children who were to be placed with adoptive families. In the course of seeking to place children with families in the United States, the Defendants attempted to escape the notice of the Estonian officials that they were seeking babies to remove from Estonia, obtained false visas to bring the children to the United States, paid the mothers of the children who were to be adopted and encouraged adoptive parents to write checks for adoption fees to the church so they could be treated as charitable contributions.",
"In May 1999, Perdue, Hendricks, and Brown pled guilty to Count One of the indictment but preserved their right to appeal the district court’s ruling on the Government’s motion in limine. That motion sought to prevent the Defendants from presenting evidence that they had a good faith belief the immigrants were not performing work within the meaning of the Immigration and Naturalization Service’s regulations in order to negate the mens rea required by the statutes. The remaining counts of the indictment were dismissed. Brown was sentenced to a term of imprisonment of twelve months, Hendricks was sentenced to a term of imprisonment of twenty-four months, and Perdue was sentenced to a term of imprisonment of twenty-seven months. On appeal, this Court determined the district court had not 4 UNITED STATES v. HENDRICKS considered the most relevant case authority on the issue of the mens rea requirements of § 1324(a) and remanded for re-consideration under United States v. Oloyede, 982 F.2d 133 (4th Cir. 1992).",
"United States v. Hendricks, No. 99-4562(L), 2000 WL 341914, at **3-4 (4th Cir. Apr. 3, 2000) (unpublished). Following remand, a bench trial was held, and the district court entered its memorandum of decision finding all Defendants guilty of all counts. Perdue was sentenced to a term of seventy-two months imprisonment, Hendricks to a term of seventy-eight months imprison- ment, and Brown to a term of fifteen months imprisonment. As a spe- cial term of supervised release, the Defendants were precluded from communicating with each other.",
"First, Defendants appeal the district court’s denial of their motion in limine to exclude evidence relating to the New Life Adoption Agency and their involvement with the adoption of Estonian children by Americans. Defendants assert the district court erred in its holding that the evidence was direct evidence of the conspiracy charged in Count One of the indictment and, alternatively, that the evidence was admissible under Fed. R. Evid.",
"404(b). Defendants also assert evi- dence of acts relating to adoptions that occurred before the period charged in the indictment were not proper Rule 404(b) evidence because the probative value of such evidence was severely out- weighed by the actual prejudice to the Defendants. In denying the motion in limine, the district court found the lan- guage of the indictment broad enough to encompass the proffered evi- dence of the conspiracy if the Defendants were, within the time frame charged in the indictment, causing Estonian mothers to make false or misleading statements to obtain or seek to obtain visas. The court stated that even if the adoption evidence fell under Rule 404(b), it was evidence of criminal intent and would contradict contentions of good faith.",
"Fed. R. Evid. 404(b). The district court reaffirmed its ruling dur- ing the course of the trial when the Government introduced two docu- ments dated prior to the period of the indictment. The court clarified that evidence of acts prior to the date of the indictment would be Rule 404(b) evidence and admissible as such. We find this reasoning to be sound. The activities related to the Defendants’ attempts to place Estonian children in adoptive homes in the United States were UNITED STATES v. HENDRICKS 5 undertaken in violation of the law. The instructions to prepare false and misleading responses on the visa applications for both the teenage Estonians and the mothers seeking to put their children up for adop- tion were part of the same conspiracy that was specifically identified in the indictment.",
"Moreover, the evidence related to the Defendants’ manipulation of the visa process for the mothers, which helped to explain the nature of the conspiracy and to fill in the details of the crime. See United States v. Kennedy, 32 F.3d 876, 885-86 (4th Cir. 1994); United States v. Mark, 943 F.2d 444, 448 (4th Cir. 1991). We find there was no abuse of discretion in the court’s finding that the adoption evidence was admissible as evidence of the visa fraud con- spiracy and the evidence of prior acts was properly admitted as Rule 404(b) evidence. United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988).",
"We also find the motion in limine was properly denied. See Malone v. Microdyne Corp., 26 F.3d 471, 480 (4th Cir. 1994) (stating standard of review). Next, Defendants raise several issues related to their sentences. First, Defendants assert the district court vindictively increased their sentences after remand from this court. There is no presumption of vindictiveness when a district court imposes a greater penalty after trial than was imposed after a prior guilty plea. Alabama v. Smith, 490 U.S. 794, 801-02 (1989). At the eleven-day trial on remand, numer- ous prosecution witnesses (including the customers of the cleaning and furniture installation companies that employed the Estonians, a school official, and church members) were presented. Hendricks testi- fied. There were over two hundred documents introduced at trial. The sentence imposed by the district court was proper under the sentenc- ing guidelines. See United States v. Olivares, 292 F.3d 196, 198 & n.2 (4th Cir.",
"), cert. denied, 123 S. Ct. 41 (2002). Defendants’ assertion that the district court was vindictive in the imposition of sentence upon remand is meritless. Next, Perdue and Hendricks contend the district court improperly enhanced their base offense levels for abuse of trust and improperly enhanced Hendricks’ sentence for obstruction of justice. This Court reviews the district court’s application of the sentencing enhance- ments de novo, and factual findings with respect to sentencing for clear error.",
"United States v. Bollin, 264 F.3d 391, 415 (4th Cir. ), cert. denied, 534 U.S. 935 (2001). 6 UNITED STATES v. HENDRICKS Hendricks and Perdue assert the victim of their false statements was the United States Government and they did not occupy a position of trust vis-a-vis the Government. The district court found that Hen- dricks and Perdue occupied positions of trust as Pastor and Assistant Pastor in relation to the Estonians and abused that trust. The district court’s determination that an adjustment for abuse of trust applies is a factual question reviewed for clear error. United States v. Akinkoye, 185 F.3d 192, 203 (4th Cir. 1999). We find the district court did not clearly err in its factual finding that Hendricks and Perdue occupied a position of trust vis-a-vis the Estonians and they betrayed that trust such that the application of U.S.",
"Sentencing Guidelines Manual § 3B1.3 (2000) was appropriate. Hendricks appeals the district court’s application of a two-level adjustment for obstruction of justice, USSG § 3C1.1. Hendricks was the only Defendant to testify at trial, and the district court found that Hendricks lied about four distinct matters. Hendricks contends that these matters were not material matters upon which he gave false tes- timony with the willful intent to deceive and related only to his per- sonal knowledge and his intent.",
"We find the record supports the district court’s enhancement for obstruction of justice. See United States v. Stotts, 113 F.3d 493, 497 (4th Cir. 1997) (citing United States v. Dunnigan, 507 U.S. 87, 94 (1993)). Third, Hendricks and Perdue challenge the application of a two- level departure to the base offense level for abuse of the teenagers pursuant to USSG § 5K2.0 and a one level departure based on the tax fraud scheme. Hendricks and Perdue assert they did not receive ade- quate notice of the court’s intent to depart upward. The court notified the Defendants that it was contemplating departures on Friday, November 16, 2001. Sentencing was Monday, November 19, 2001. A district court must give reasonable notice that it is contemplating an upward departure when the ground for the departure is not identi- fied in the presentence report or a prehearing submission by the gov- ernment. Burns v. United States, 501 U.S. 129, 138 (1991). Both factual bases for the upward departures were raised in the Govern- ment’s sentencing memorandum filed on November 9, 2001. The Government sought an upward departure pursuant to USSG § 5K2.3 (psychological injury) based on the impact the Defendants had on the teenagers’ lives. The Government also sought an upward departure UNITED STATES v. HENDRICKS 7 for uncharged conduct including the tax fraud in that same memoran- dum. This claim is thus meritless because Hendricks and Perdue had adequate notice of the factual bases for the departures in the Govern- ment’s sentencing memorandum. Hendricks and Perdue assert the court’s finding of abuse of chil- dren pursuant to USSG § 5K2.0 is unsupported in the record.",
"This contention is meritless. The court’s ultimate decision to depart is reviewed for abuse of discretion, but its underlying factual findings are reviewed for clear error. United States v. Rybicki, 96 F.3d 754, 756-57 (4th Cir. 1996). Our review of the record demonstrates the district court did not clearly err in its finding that the children were abused. Hendricks and Perdue assert the fraud in which they engaged as part of the scheme to bring the Estonians to the United States on visas acquired with fraudulent applications is not outside the heartland of the offense contemplated by the guidelines. They contend immigra- tion fraud involving illegal workers normally includes such elements as lack of workers’ compensation insurance and failure to deduct and pay payroll taxes. They also aver that to the extent the degree of fraud may take their case out of the heartland, it is mitigated by their belief that the Estonians were volunteers, not employees.",
"The district court found it appropriate to depart upward two levels because the evidence presented was \"outside the heartland of normal cases involving visa fraud.\" Id., at 758. The court specifically men- tioned: (1) the adoption scheme, which was charged but not in the heartland of the visa fraud, including the use of innocent third parties to sponsor mothers and their children in conjunction with the pur- chase and attempted purchase of babies in Estonia for adoption in the United States; (2) the tax fraud scheme involving the acceptance of charitable deductions for adoption fees using the presumed tax exempt status of the church; and (3) the insurance fraud involving the acquisition of workers’ compensation insurance that covered Hen- dricks only and not the Estonians, so that the cleaning service could provide businesses with proof of insurance. We find the district court did not clearly err in its factual findings and did not abuse its discre- tion in departing upward for the scope of the fraud perpetuated by Hendricks and Perdue. 8 UNITED STATES v. HENDRICKS Fourth, Defendants assert the district court’s imposition as a special term of supervised release that \"the defendant shall not meet or com- municate with co-defendants,\" is overbroad, not narrowly tailored to meet the ends of rehabilitation and to protect the public, and an improper restriction on their First Amendment right of free associa- tion.",
"The district court’s decision to impose special conditions of supervised release is reviewed for abuse of discretion. United States v. Crandon, 173 F.3d 122, 127 (3d Cir. 1999). \"Probation conditions may seek to prevent reversion into a former crime-inducing lifestyle by barring contact with old haunts and associates, even though the activities may be legal.\" United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991) (citing Malone v. United States, 502 F.2d 554, 556-57 (9th Cir. 1974)); see also United States v. Bortels, 962 F.2d 558, 559- 60 (6th Cir. 1992); United States v. Showalter, 933 F.2d 573, 575-76 (7th Cir. 1991). We find the restrictions placed on the Defendants do not unnecessarily interfere with the Defendants’ right to associate. Accordingly, we affirm Perdue’s, Hendricks’ and Brown’s convic- tions and sentences.",
"We deny Hendricks’ motion to file a pro se sup- plemental brief. 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 in the decisional process. AFFIRMED"
]
| https://www.courtlistener.com/api/rest/v3/opinions/1010932/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Mr. Justice Bean, after stating the facts, delivered the opinion of the court. 1. This is the first attempt, so far as we are advised, to invoke in this state the practice of withdrawing a juror. There is but little satisfactory information to be obtained from the books in regard to the ancient practice, which used to be resorted to when a party was taken by surprise on a trial, of withdrawing a juror, and thus causing a mistrial, and, of necessity, a postponement of the case. It was originally confined to criminal cases, and seems to have been adopted for the purpose of avoiding a rule which once obtained, based largely upon a dictum of Lord Coke, that a jury sworn and charged in any criminal case could not be discharged without giving a verdict. To escape the effect of this rule, and yet apparently observe it to the letter, the courts resorted to the fiction of directing the clerk to call a juror out of the box, when it appeared that the prosecution was taken by surprise on the trial, whereupon the prosecution objected, or was sup*331posed to object, to proceeding with the eleven jurors, and the trial went over for the term : 2 Hawk, P. C. 619; 2 Hale, P. C. 294; Wedderburns Case, Fost. 22; People v. Olcott, 2 Johns. Cas. 301 (1 Am. Dec. 168); United States v. Coolidge, 2 Gall. 363 (Fed. Cas. No. 14,858). It was nothing more, however, than a means of obtaining a continuance or postponement of the trial after the jury had been impaneled and sworn. At first it was thought this could be done only by the court ordering the discharge of one of the jurors, and then holding that, as the case could not be tried before the remaining eleven, it must be continued. But after the doctrine of Lord Coke had been repudiated, and it became the settled rule that it was within the power of the court, in a proper case, to discharge the jury after it had been impaneled and sworn, and continue the cause, the device of withdrawing a juror seems to have become practically obsolete, and but little, if any, reference to it as a substantive practice is to be thereafter found in the books. That it ever prevailed at common law in civil cases is very doubtful. No case has come under our observation in which it was resorted to in England. Indeed, the only reference we have been able to find to the question in the early authorities is a note to Chedwick v. Hughes, Carth. 464, in which it is stated that Lord Chief Justice Holt, in a case of perjury tiled before him, said that it was the opinion of all the judges of England, upon debate between them, that in civil cases a juror cannot be withdrawn but by consent of all parties. And while the authority of this note underwent a critical examination in the subsequent case of Sir John Wedderburn, Fost. 28, from which its authority is rendered rather questionable, it seems to be the only reference to the practice in civil cases. It was early ruled, however, in this country, by the courts of New York, after some hesitation, that a court may allow a juror to *332be withdrawn in a civil case, when necessary to save the plaintiff from the consequence of a fatal mistake in his testimony: People v. Judges of New York, 8 Cow. 127. And we believe it is still regarded as a proper practice in that state, and is open to either party : Bishop, Code PI. § 428; Dillon v. Cockcroft, 90 N. Y. 649; Messenger v. Fourth Nat. Bank, 48 How. Prac. 542. But, so far as we have been able to ascertain, it does not prevail elsewhere in this country; the same result being accomplished by a direct application to the court for a postponement of the trial: 4 Enc. Pl. & Prac. 863. We are therefore of the opinion that the motion was properly denied on the ground that no such practice prevails in this state. 2. But, however that may be, whatever authorities there are on the subject all agree that the practice can be resorted to only when a party finds himself taken by surprise on the trial, and when further proceeding therewith would be productive of great hardship or manifest injustice to him. Mr. Bishop, in the section of his work on Code Pleading already cited, in speaking of the New York practice, says : “Instead of submitting to a nonsuit, the plaintiff, if he finds himself taken by surprise on the trial,. —as by the absence of a witness who has been in attendance, or by the unexpected presentation of evidence by his adversary which he is not prepared to meet, or by any accident which might render the further progress of the trial disastrous and unfair to him, — may ask the court to withdraw a juror. The result of this application, if granted, will be to produce a mistrial; and the court may then continue the pending action, and set the trial over to a future day, when the plaintiff may come properly prepared to try the case afresh.” Within this rule, the plaintiff’s motion was likewise properly denied, because it is not based upon anything occurring at the trial, but upon matters happening long prior thereto, and which *333could be, and were, properly submitted to the court in support of the motion for a continuance made before the jury was empaneled. 3. It is also claimed that the court erred in instructing the jury as to the law of negligence, and submitting to them the question as to whether the plaintiff had exercised due care and diligence in selling and disposing of the hops consigned to him by the defendants, on the ground that there was no evidence to support such an instruction. The evidence on the part of the defendants tended to show that, at the time the hops were received by the plaintiff in London, they were worth in that market from twenty-four to twenty-five cents a pound, notwithstanding which he retained them in his possession for almost a year, when they were consumed by fire ; and this was, in our opinion, sufficient, in the absence of any explanation whatever, to carry the case to the jury upon the question of negligence, and was sufficient upon which to base an instruction. This disposes of the questions made on the appeal, and, there being no error in the record, we have no alternative but to affirm the judgment. Affirmed. | 07-23-2022 | [
"Mr. Justice Bean, after stating the facts, delivered the opinion of the court. 1. This is the first attempt, so far as we are advised, to invoke in this state the practice of withdrawing a juror. There is but little satisfactory information to be obtained from the books in regard to the ancient practice, which used to be resorted to when a party was taken by surprise on a trial, of withdrawing a juror, and thus causing a mistrial, and, of necessity, a postponement of the case. It was originally confined to criminal cases, and seems to have been adopted for the purpose of avoiding a rule which once obtained, based largely upon a dictum of Lord Coke, that a jury sworn and charged in any criminal case could not be discharged without giving a verdict. To escape the effect of this rule, and yet apparently observe it to the letter, the courts resorted to the fiction of directing the clerk to call a juror out of the box, when it appeared that the prosecution was taken by surprise on the trial, whereupon the prosecution objected, or was sup*331posed to object, to proceeding with the eleven jurors, and the trial went over for the term : 2 Hawk, P. C. 619; 2 Hale, P. C. 294; Wedderburns Case, Fost.",
"22; People v. Olcott, 2 Johns. Cas. 301 (1 Am. Dec. 168); United States v. Coolidge, 2 Gall. 363 (Fed. Cas. No. 14,858). It was nothing more, however, than a means of obtaining a continuance or postponement of the trial after the jury had been impaneled and sworn. At first it was thought this could be done only by the court ordering the discharge of one of the jurors, and then holding that, as the case could not be tried before the remaining eleven, it must be continued. But after the doctrine of Lord Coke had been repudiated, and it became the settled rule that it was within the power of the court, in a proper case, to discharge the jury after it had been impaneled and sworn, and continue the cause, the device of withdrawing a juror seems to have become practically obsolete, and but little, if any, reference to it as a substantive practice is to be thereafter found in the books. That it ever prevailed at common law in civil cases is very doubtful.",
"No case has come under our observation in which it was resorted to in England. Indeed, the only reference we have been able to find to the question in the early authorities is a note to Chedwick v. Hughes, Carth. 464, in which it is stated that Lord Chief Justice Holt, in a case of perjury tiled before him, said that it was the opinion of all the judges of England, upon debate between them, that in civil cases a juror cannot be withdrawn but by consent of all parties. And while the authority of this note underwent a critical examination in the subsequent case of Sir John Wedderburn, Fost. 28, from which its authority is rendered rather questionable, it seems to be the only reference to the practice in civil cases.",
"It was early ruled, however, in this country, by the courts of New York, after some hesitation, that a court may allow a juror to *332be withdrawn in a civil case, when necessary to save the plaintiff from the consequence of a fatal mistake in his testimony: People v. Judges of New York, 8 Cow. 127. And we believe it is still regarded as a proper practice in that state, and is open to either party : Bishop, Code PI. § 428; Dillon v. Cockcroft, 90 N. Y. 649; Messenger v. Fourth Nat. Bank, 48 How. Prac. 542. But, so far as we have been able to ascertain, it does not prevail elsewhere in this country; the same result being accomplished by a direct application to the court for a postponement of the trial: 4 Enc.",
"Pl. & Prac. 863. We are therefore of the opinion that the motion was properly denied on the ground that no such practice prevails in this state. 2. But, however that may be, whatever authorities there are on the subject all agree that the practice can be resorted to only when a party finds himself taken by surprise on the trial, and when further proceeding therewith would be productive of great hardship or manifest injustice to him. Mr. Bishop, in the section of his work on Code Pleading already cited, in speaking of the New York practice, says : “Instead of submitting to a nonsuit, the plaintiff, if he finds himself taken by surprise on the trial,. —as by the absence of a witness who has been in attendance, or by the unexpected presentation of evidence by his adversary which he is not prepared to meet, or by any accident which might render the further progress of the trial disastrous and unfair to him, — may ask the court to withdraw a juror. The result of this application, if granted, will be to produce a mistrial; and the court may then continue the pending action, and set the trial over to a future day, when the plaintiff may come properly prepared to try the case afresh.” Within this rule, the plaintiff’s motion was likewise properly denied, because it is not based upon anything occurring at the trial, but upon matters happening long prior thereto, and which *333could be, and were, properly submitted to the court in support of the motion for a continuance made before the jury was empaneled.",
"3. It is also claimed that the court erred in instructing the jury as to the law of negligence, and submitting to them the question as to whether the plaintiff had exercised due care and diligence in selling and disposing of the hops consigned to him by the defendants, on the ground that there was no evidence to support such an instruction. The evidence on the part of the defendants tended to show that, at the time the hops were received by the plaintiff in London, they were worth in that market from twenty-four to twenty-five cents a pound, notwithstanding which he retained them in his possession for almost a year, when they were consumed by fire ; and this was, in our opinion, sufficient, in the absence of any explanation whatever, to carry the case to the jury upon the question of negligence, and was sufficient upon which to base an instruction. This disposes of the questions made on the appeal, and, there being no error in the record, we have no alternative but to affirm the judgment. Affirmed."
]
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795 F.2d 1265 41 Fair Empl. Prac. Cas. (BNA) 425,41 Empl. Prac. Dec. P 36,467Lywanna COOPER, Plaintiff-Appellee,v.CITY OF NORTH OLMSTED, et al., Defendants-Appellants. No. 85-3213. United States Court of Appeals,Sixth Circuit. Argued May 5, 1986.Decided July 16, 1986.
Michael R. Gareau (argued), Director of Law, James M. Dubelko (argued), Asst. Director of Law, City of North Olmsted, North Olmsted, Ohio, for defendants-appellants. Steven L. Howland (argued), Cleveland, Ohio, for plaintiff-appellee. Susan Elizabeth Rees (argued), E.E.O.C., Washington, D.C., for amicus curiae. Before KENNEDY and MILBURN, Circuit Judges, and JOINER, Senior District Judge.* JOINER, Senior District Judge. This is an appeal by the City of North Olmsted, et al. ("the City" "or defendant") from the judgment of the district court in favor of plaintiff-appellee Lywanna Cooper ("Cooper" or "plaintiff") on her Title VII and Sec. 1981 claims. The City raises two major issues before this court. First, the City challenges the district court's conclusion that plaintiff was not collaterally estopped in this suit by a prior administrative decision denying her unemployment compensation, when the administrative decision was affirmed by a state court. Second, the City argues that the district court incorrectly analyzed plaintiff's allegations of disparate treatment and retaliatory discharge. Lywanna Cooper is the first female and first black to be hired as a bus driver by the North Olmsted Municipal Bus Line ("NOMBL"). Cooper began a one year period of probationary employment on July 1, 1979. Six to eight weeks later, she complained of harassment by her fellow bus drivers. This harassment included racist remarks made in Cooper's presence, offensive touching of her body, and crude bathroom graffiti about her. In response to Cooper's complaints, NOMBL repainted the bathroom and posted a notice indicating that discrimination would not be tolerated. No one was disciplined, however, and the harassment did not stop. NOMBL maintained a "deficiency book" in which rules violations committed by bus drivers were recorded. During 1979, six violations by Cooper were entered in the book. On August 29, 1979, Cooper received a warning about parking her bus on Lorain Road with passengers on board. On October 5, 1979, plaintiff was cited for wearing non-regulation shoes that were too bright in color. On October 9, 1979, a "miss," or failure to arrive at work on time without first informing NOMBL, was recorded. On October 15, 1979, Cooper was cited for failing to relieve another driver at the proper place. On October 22, 1979, plaintiff was informed that she should not drive the bus with her foot propped over the emergency brake handle. On October 29, 1979, Cooper again was cited for failing to relieve another driver at the correct place. Cooper filed a complaint with the Ohio Civil Rights Commission ("OCRC") on February 15, 1980, claiming harassment by the other NOMBL drivers. She alleged that the drivers' bathroom was again covered with graffiti about her, and that the other drivers were making bets about which of them could force her into an accident. In March, 1980, Cooper, NOMBL, the OCRC, and the Equal Employment Opportunity Commission ("EEOC") entered into a negotiated settlement agreement. The agreement required the repainting of the bathroom walls, the posting of a policy statement, and the disciplining of anyone caught engaging in discriminatory behavior. Cooper reported some improvement in her work situation following the agreement. On February 26, 1980, one day after NOMBL received notice of Cooper's OCRC complaint, Cooper was cited for a miss. On March 14, 1980, a deficiency book entry indicates that plaintiff failed to pick up passengers at a certain point. On April 9, 1980, and on May 7 and May 9, 1980, Cooper was cited for running early. She was charged with a miss on both April 18 and May 28, 1980. On June 12, 1980, Cooper was cited for failing to pick up children at a school stop, leaving them stranded for one half hour. On June 19, 1980, Cooper was charged with leaving her bus unattended, running and open on a public street, arguably with children milling around. NOMBL General Manager Ken Mues sent Cooper warning letters on June 2, and again on June 13, 1980. These letters were Cooper's first indication that deficiency book entries were being made about her, and that her job performance was being seriously questioned. On June 19, 1980, Mues learned of the charge that Cooper had left her bus unattended, with children milling around it. He decided to discharge Cooper immediately, and did so. After being discharged, Cooper pursued a number of avenues for relief. First, on June 25, 1980, she filed charges of unlawful employment practices against the City with the OCRC. After an investigation, the OCRC found no cause to credit Cooper's allegations, and dismissed the charges. She did not request a reconsideration of this decision. Cooper also filed charges with the EEOC, which concluded, on June 9, 1980, that there was no cause to believe that Cooper's allegations were true. The EEOC issued Cooper a right to sue letter, enabling her to bring the present action. Finally, on June 27, 1980, Cooper filed for unemployment benefits with the Ohio Bureau of Employment Services ("OBES"). She argued that she was entitled to benefits because her discharge was without just cause. On July 25, 1980, the OBES denied Cooper benefits on the ground that NOMBL had cause to fire her. Cooper appealed this decision to the OBES Board of Review, which also found against her. On November 26, 1980, Cooper further appealed to the Cuyahoga County Court of Common Pleas. The court affirmed the denial of benefits, finding that the administrative determination "was properly imposed, and was reasonable, lawful and supported by the manifest weight of the evidence." Cooper v. Board of Review, No. 20482 (Cuyahoga Cnty.Ct.Cmmn.Pleas Dec. 30, 1982). Cooper did not appeal from this decision. On November 8, 1982, Cooper filed the present case in the United States District Court for the Northern District of Ohio. She charged the City with violating Title VII of the Civil Rights Act of 1964, U.S.C. Sec. 2000e et seq.; the Civil Rights Act of 1866, 42 U.S.C. Sec. 1981; and the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983, by discharging her because of her race and sex, and because she filed discrimination charges with the OCRC. On September 2, 1983, the City moved for summary judgment, arguing that Cooper's claims were precluded by the prior ruling of the Cuyahoga County Court of Common Pleas. The district court denied the motion, 576 F. Supp. 592. The City then moved for summary judgment on the merits of Cooper's discrimination claims, and the court denied the motion. After a bench trial, the district court entered judgment in favor of Cooper on her Title VII and Sec. 1981 claims, and dismissed her claim under Sec. 1983. The City now appeals from the judgment of the district court. I. PRECLUSIVE EFFECT OF THE PRIOR STATE COURT JUDGMENT The City first argues that the district court erroneously found that the final decision of the Cuyahoga County Court of Common Pleas did not preclude the claims raised in this lawsuit. This argument is based on the Full Faith and Credit Statute, which requires all United States courts to afford the same full faith and credit to state court judgments that would apply in the state's own courts. 28 U.S.C. Sec. 1738. In the present case, the City contends that the courts of Ohio would hold that the decision of the Court of Common Pleas precludes a subsequent discrimination claim. Therefore, the City argues, the district court should have reached the same conclusion. The City's argument rests on the assumption that the courts of Ohio would apply the doctrine of collateral estoppel to the state court judgment, and hold that the judgment bars the present claims of discrimination. The seminal Ohio case on collateral estoppel is Norwood v. McDonald, 142 Ohio St. 299, 52 N.E.2d 67 (1943). There the Ohio Supreme Court defined collateral estoppel as follows: A point or a fact which was actually and directly in issue in a former action and was there passed upon and determined by a court of competent jurisdiction may not be drawn in question in any future action between the same parties or their privies, whether the cause of action in the two actions be identical or different. 142 Ohio St. at 300, 52 N.E.2d 67 (syllabus p 3). More recently, Justice Holmes, writing for the Ohio Supreme Court in Goodson v. McDonough Power Equip., Inc., 2 Ohio St. 3d 193, 200-01, 443 N.E.2d 978 (1983), stated that:
1 The main legal thread which runs throughout the determination of the applicability of res judicata, inclusive of the adjunct principle of collateral estoppel, is the necessity of a fair opportunity to fully litigate and to be "heard" in the due process sense. Accordingly, an absolute due process prerequisite to the application of collateral estoppel is that the party asserting the preclusion must prove that the identical issue was actually litigated, directly determined, and essential to the judgment in the prior action.
2 (citations omitted). Therefore, the City must prove that the issues of race and sex discrimination were actually and directly at issue in the prior state proceedings, and that they were essential to the judgment of the state court against Cooper.
3 The record in this case reveals that the question of whether Cooper's discharge was the result of race or sex discrimination by the City was not actually or directly presented to or ruled upon by the OBES or the Common Pleas Court. The prior state proceedings instead addressed Cooper's entitlement to unemployment benefits. Ohio Rev.Code Sec. 4141.29(D)(2)(a) (Page 1980) provides that an individual is ineligible for benefits if he or she "has been discharged for just cause in connection with his [or her] work." In the present case, Cooper was denied benefits by the OBES because it found that her employer had "just cause" to discharge her. The determination of whether just cause exists focuses on the existence of fault on the part of the employee as a factor in the discharge. See Sellers v. Board of Review, Ohio Bureau of Employment Serv., 1 Ohio App. 3d 161, 164, 440 N.E.2d 550 (1981). Here, the OBES concluded that Cooper's discharge was justified by her infractions of the rules of her employer. On appeal, the Common Pleas Court held that the OBES determination was not "unlawful, unreasonable, or against the manifest weight of the evidence." Ohio Rev.Code Sec. 4141.28(O). The court rejected Cooper's arguments that her transgressions were insufficient to justify the discharge, and that the OBES hearing was unfair in that Cooper was unable to present her side of the case. The record is devoid of any consideration of race or sex discrimination, and such claims were beyond the scope of the administrative and state court actions.1 Under these circumstances, the courts of Ohio would hold that Cooper's discrimination claims are not barred by the prior state proceedings.
4 The City's reliance on Kremer v. Chemical Constr. Corp., 456 U.S. 461,102 S.Ct. 1883, 72 L. Ed. 2d 262 (1982), is misplaced. In that case, the question confronting the Supreme Court was whether to "give preclusive effect to a decision of a state court upholding a state administrative agency's rejection of an employment claim as meritless when the state court's decision would be res judicata in the State's own courts." 456 U.S. at 463, 102 S.Ct. at 1888. The Court held that the prior state proceedings barred the plaintiff's Title VII charges of discrimination. In Kremer, New York law clearly held that the judicially-affirmed determination of the New York State Division of Human Rights that plaintiff was not the victim of discrimination barred later suits based on the same grievance. Id. at 467, 102 S.Ct. at 1890 (quoting New York law). In this case, the prior state proceedings did not encompass the claims raised in the subsequent Title VII lawsuit, and the Ohio courts would not apply collateral estoppel.2
5 The City's reliance on Pullar v. UpJohn Health Care Serv., Inc., 21 Ohio App. 3d 288, 488 N.E.2d 486 (1984), is also unavailing. There the Cuyahoga County Court of Appeals held that a prior OBES decision that plaintiff had been terminated for just cause bars a later age discrimination action. The discrimination suit was based on an Ohio statute that prohibits discharging individuals between the ages of 40 and 70 "without just cause." 21 Ohio App. 3d at 290, 488 N.E.2d 486 (quoting Ohio Rev.Code Sec. 4101.17). Pullar is distinguishable from the present case, as the subsequent discrimination suit raised the same issue of just cause to discharge as had been addressed in the OBES proceedings. In this case, as previously stated, the prior OBES proceedings did not encompass the claims raised later in the discrimination action. Moreover, a number of decisions from the other Ohio courts indicate that collateral estoppel does not apply in circumstances similar to those in the present case. These courts have refused to give collateral estoppel effect to judicially-affirmed administrative decisions, holding that those decisions did not affect later proceedings addressing issues not directly raised in the first actions. See, e.g., Ohio Dept. of Mental Health, Cambridge Mental Health Center v. Hunt, No. CA-766 (Ohio Ct.App. Aug. 2, 1985); Pickaway County General Health Dist. v. Administrator, Ohio Bureau of Employment Serv., No. 84-CA-12 (Ohio Ct.App. July 1, 1985); Reed v. Dodge, No. E-84-41 (Ohio Ct.App. March 15, 1985).
6 The foregoing analysis reveals that the courts of Ohio would not preclude Cooper from asserting her discrimination claims because of the prior judicially-affirmed OBES proceedings. The district court's refusal to apply the doctrine of collateral estoppel is affirmed.
7 II. COOPER'S CLAIMS OF INTENTIONAL DISCRIMINATION
8 The City next challenges the district court's finding that plaintiff proved intentional discrimination, in violation of Title VII and Sec. 1981.3 The district court concluded that Cooper had established intentional discrimination under two theories: disparate treatment and retaliatory discharge. The City argues that the district court's conclusions on the issues are legally erroneous.
A. Disparate Treatment
9 Section 703(a)(1) of Title VII, 42 U.S.C. Sec. 2000e-2(a)(1), generally prohibits race or sex discrimination in any employment decision. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 796, 93 S. Ct. 1817, 1821, 36 L. Ed. 2d 668 (1973). A Title VII plaintiff bears the burden of proving that it is more probable than not that she was discriminated against on a proscribed basis. The district court correctly found that Cooper could establish a prima facie case of disparate treatment pursuant to McDonnell Douglas if she showed 1) that she was female and a member of a racial minority; 2) that she and a similarly situated white or male person received dissimilar treatment; and 3) that sufficient evidence exists from which the court can find a causal connection between race or sex and the alleged acts of the defendants.
10 The City contends that Cooper failed to establish a prima facie case, as she did not prove that she was treated differently than similarly situated white and male employees. It argues that the district court, in concluding that a prima facie case had been established, erroneously compared Cooper to employees who were not similarly situated. Specifically, the City objects to the district court's comparing of Cooper's record to those of Lawrence Sindalar and Ken Moss. The City points out that Sindalar was a permanent rather than a probationary employee during the relevant time period, and that Moss' probationary period occurred five years earlier under a different General Manager than that of Cooper.
11 A probationary period of employment permits a company to weed out or eliminate undesirable employees. See, e.g., Farmer v. Colorado and Southern R.R. Co., 723 F.2d 766, 767 (10th Cir.1983). The opportunity to dismiss more readily those new employees whose job performance is unsatisfactory is particularly important to NOMBL. As a common carrier, NOMBL has the duty of exercising the highest standard of care for the safety of its passengers. See, e.g., Mitchell v. Marker, 62 F. 139, 142-43 (6th Cir.1894); May Dept. Stores Co. v. McBride, 124 Ohio St. 264, 178 N.E. 12 (1931). Probationary bus drivers therefore do not stand on equal footing with permanent drivers, and cannot be considered to be similarly situated. See, e.g., McKenna v. Weinberger, 729 F.2d 783, 789 (D.C.Cir.1984).
12 The district court improperly compared the work records of Sindalar, a permanent employee who was not discharged, and Cooper, a probationary employee who was discharged. This error requires a remanding of this case to the district court. On remand, the district court shall make findings as to whether Cooper has established that she was treated differently than other NOMBL probationary employees.
13 The district court also compared Cooper to Ken Moss, who began his probationary year of employment in 1976 under General Manager Ernie Zoldesy, Ken Mues' predecessor. The City contends that it presented ample evidence at trial that Zoldesy did not possess the managerial skills of Mues. It concludes that any difference in the treatment received by Cooper and Moss can be explained by the change in managers. The district court refused to consider the change in management, finding it "entirely appropriate" to compare the treatment received by Cooper and Moss. Cooper v. City of North Olmsted, C82-3089, at 34 (N.D.Ohio Feb. 11, 1985). Although a change in managers is not a defense to claims of race or sex discrimination, it can suggest a basis other than race or sex for the difference in treatment received by two employees. See Tate v. Weyerhaeuser Co., 723 F.2d 598, 606 (8th Cir.1983), cert. denied, --- U.S. ----, 105 S. Ct. 160, 83 L. Ed. 2d 97 (1984). The district court therefore should have considered the management change in determining the probative value of the comparison between Cooper and Moss. On remand, the district court shall consider this factor in its analysis of Cooper's disparate treatment claim.
14 The City next argues that the district court erroneously conducted the analysis of discrimination claims set forth in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). According to Burdine, the plaintiff must first establish a prima facie case of intentional discrimination, which the defendant can rebut by producing a legitimate, nondiscriminatory reason for the discharge. "The defendant need not persuade the court that it was actually motivated by the proffered reasons.... It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." 450 U.S. at 254-55, 101 S.Ct. at 1094 (citation and footnote omitted). If the defendant meets this burden of production, the plaintiff must then prove that defendant's asserted motive is pretextual. The need to prove pretext merges with the plaintiff's ultimate burden of persuading the court that she was the victim of intentional discrimination, a burden that the plaintiff retains at all times. Id. at 254-56, 101 S.Ct. at 1094-95.
15 In the present case, the City offered Cooper's numerous infractions of NOMBL rules, as recorded in the deficiency book, as its legitimate, nondiscriminatory reason for discharging her. Cooper then offered evidence that many of the deficiency book entries did not correspond to the facts of the situation, and that some of them were made in violation of company policy. The district court examined the deficiency book entries, one by one, and found that Cooper's version of the recorded events was credible. The court concluded that the vast majority of the deficiency book entries should not have been made, and that Cooper had therefore proved that the City's proffered reason for the discharge was a pretext.
16 The district court appears to have focused on whether or not the court believed Cooper's version of the facts surrounding the alleged infractions of NOMBL rules. In so doing, the district court overlooked the crucial inquiry in this case, which is whether the City intentionally discriminated against Cooper. The court should not put itself in a position of judging the correctness of the defendant's action in discharging the plaintiff. Instead, the court should look at whether the actions and the intentions of the defendant were pretextual or amounted to intentional discrimination. To determine the City's motivation in discharging Cooper, the district court must make specific factual findings on 1) whether the City relied on the deficiency book entries in discharging Cooper; and 2) if the City did so rely, whether that reliance was reasonable under the totality of the circumstances in this case. Therefore, this case must be remanded to the district court, with instructions to make these essential factual determinations.4
B. Retaliatory Discharge
17 Section 704(a) of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-3(a), forbids discrimination against employees for attempting to protest or correct allegedly discriminatory conditions of employment. McDonnell Douglas, 411 U.S. at 796, 93 S.Ct. at 1821. To support a claim of retaliatory discharge, a plaintiff must prove: 1) that she engaged in activity protected by Title VII; 2) that she was the subject of adverse employment action; and 3) that there is a causal link between her protected activity and the adverse action of her employer. Jackson v. RKO Bottlers of Toledo, Inc., 743 F.2d 370, 375 (6th Cir.1984). The City contends that Cooper failed to establish a prima facie case of retaliatory discharge, as she did not prove a causal link between her filing of OCRC charges and her discharge four months later.
18 The district court found that Cooper filed discrimination charges with the OCRC on February 15, 1980, and that the City received a copy of the charges on February 25, 1980. The court stated that Cooper was then "immediately cited for myriad alleged violations of NOMBL rules," and that those citations culminated in Cooper's discharge. Cooper v. City of North Olsted, No. C82-3089, at 35-36. From this, the district court concluded that plaintiff established a prima facie case of retaliatory discharge.
19 The district court's factual findings do not support its conclusion that Cooper established a causal link between the OCRC complaint and her discharge. The mere fact that Cooper was discharged four months after filing a discrimination claim is insufficient to support an interference of retaliation. See, e.g., Brown v. ASD Computing Center, 519 F. Supp. 1096, 1116-17 (S.D.Ohio 1981), aff'd sub nom. Brown v. Mark, 709 F.2d 1499 (6th Cir.1983). The district court appears to have relied on the fact that Cooper was cited for rules violations six times in the seven month period preceding her OCRC complaint, and nine times in the four months following the complaint. The district court further noted that four of the pre-complaint citations were unjustified.5 The record in this case contains no evidence directly linking the nine citations at issue to Cooper's filing of the OCRC discrimination charges. While a disparity in the amount of disciplinary action may certainly be sufficient in appropriate cases to support an inference of retaliation, this is not such a case. Standing alone, the change in the number of deficiency book entries on which the City could reasonably rely, and Cooper's discharge four months later, do not establish a prima facie case of retaliatory discharge. The district court's finding on this issue is clearly erroneous, and must be reversed.6
III. CONCLUSION
20 The judgment of the district court denying collateral estoppel effect to the prior judicially-affirmed OBES proceedings is affirmed. The district court's finding of disparate treatment, in violation of 42 U.S.C. Secs. 1981, 2000e-2(a)(1), is vacated, and the case is remanded for further proceedings in conformance with this opinion. The finding of retaliatory discharge, in violation of 42 U.S.C. Secs. 1981, 2000-3(a), is reversed.
* The Hon. Charles W. Joiner, Senior United States District Judge, Eastern District of Michigan, sitting by designation
1 The district court found that Cooper raised the issues of race and sex discrimination during the OBES and Court of Common Pleas proceedings. See Cooper v. City of North Olmsted, 576 F. Supp. 592, 595 (N.D.Ohio 1983). The court then stated, however, that there was no indication that these allegations were ever investigated. The court further stated that the OBES Board of Review and the Court of Common Pleas had not ruled on the allegations of discrimination. 576 F. Supp. at 595-96. The record on appeal, as indicated above, contains no indication that any charges of race and sex discrimination were directly presented or considered in the state proceedings. Therefore, the record, when considered as a whole, fails to establish that the issues of race and sex discrimination were actually and directly at issue in the prior proceedings, or that they were essential to the judgment of the state court
2 The City argues that Kremer establishes a two-part inquiry for this case. First, a court should decide whether or not the Ohio courts would give preclusive effect to the prior Court of Common Pleas decision, and would hold that it bars the present discrimination suit. If the court finds that collateral estoppel would apply under Ohio law, it must then examine whether that application would offend due process. Specifically, the court must determine whether the claimant had a full and fair opportunity to litigate the discrimination claim in the prior proceeding. The City claims that the district court committed reversible error by omitting the first part of the analysis, and failing to consider Ohio law. Instead, the court focused exclusively on the due process inquiry. The district court concluded that Cooper did not have a full and fair opportunity to litigate her discrimination claims in the prior proceedings, as those proceedings did not determine whether discrimination played a role in Cooper's discharge. This analysis, although faulty, is not reversible error. By concluding that the prior state proceedings did not afford Cooper an opportunity to litigate her discrimination claims, the court determined that those claims were not actually or directly at issue in the state court and that they were not essential to the state court's judgment. Thus, the determination required by Ohio law was made
3 Liability under Sec. 1981 may be established by proving that a defendant engaged in purposeful or intentional discrimination. See General Building Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 102 S. Ct. 3141, 73 L. Ed. 2d 835 (1982); Leonard v. City of Frankfort Elec. and Water Plant Bd., 752 F.2d 189, 193 (6th Cir.1985). In the present case, the district court found that plaintiff's proof of disparate treatment and retaliatory discharge established a violation of both Title VII and Sec. 1981. As liability under both statutes rests on the same proof, Cooper's Sec. 1981 claim will not be separately discussed infra
4 The City also claims that the district court erred in refusing to grant it summary judgment on plaintiff's claims of intentional discrimination, as no issues of material fact existed. As the Ninth Circuit has stated, "[c]ourts are reluctant to dismiss by summary judgment Title VII discrimination suits where, as in antitrust actions, motive and intent are crucial elements and the proof is in the hands of the alleged wrongdoers." Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 759 (9th Cir.1980). In the present case, conflicting evidence was presented about the reasons for plaintiff's discharge. Summary judgment was therefore inappropriate, and the district court properly denied the motion
5 As stated earlier, the district court should have focused on whether the City reasonably relied on the deficiency book entries, and not on whether the district court itself believed the citations. The court will assume, in analyzing the retaliatory discharge claim, that the district court found or will find on remand that the City did not reasonably rely on four pre-complaint deficiency book entries and nine post-complaint deficiency book entries
6 This decision makes it unnecessary to consider the City's claim that the district court erroneously denied its motion for summary judgment on Cooper's retaliatory discharge claim | 08-23-2011 | [
"795 F.2d 1265 41 Fair Empl. Prac. Cas. (BNA) 425,41 Empl. Prac. Dec. P 36,467Lywanna COOPER, Plaintiff-Appellee,v.CITY OF NORTH OLMSTED, et al., Defendants-Appellants. No. 85-3213. United States Court of Appeals,Sixth Circuit. Argued May 5, 1986.Decided July 16, 1986. Michael R. Gareau (argued), Director of Law, James M. Dubelko (argued), Asst. Director of Law, City of North Olmsted, North Olmsted, Ohio, for defendants-appellants. Steven L. Howland (argued), Cleveland, Ohio, for plaintiff-appellee. Susan Elizabeth Rees (argued), E.E.O.C., Washington, D.C., for amicus curiae. Before KENNEDY and MILBURN, Circuit Judges, and JOINER, Senior District Judge. * JOINER, Senior District Judge. This is an appeal by the City of North Olmsted, et al. (\"the City\" \"or defendant\") from the judgment of the district court in favor of plaintiff-appellee Lywanna Cooper (\"Cooper\" or \"plaintiff\") on her Title VII and Sec. 1981 claims. The City raises two major issues before this court. First, the City challenges the district court's conclusion that plaintiff was not collaterally estopped in this suit by a prior administrative decision denying her unemployment compensation, when the administrative decision was affirmed by a state court. Second, the City argues that the district court incorrectly analyzed plaintiff's allegations of disparate treatment and retaliatory discharge. Lywanna Cooper is the first female and first black to be hired as a bus driver by the North Olmsted Municipal Bus Line (\"NOMBL\").",
"Cooper began a one year period of probationary employment on July 1, 1979. Six to eight weeks later, she complained of harassment by her fellow bus drivers. This harassment included racist remarks made in Cooper's presence, offensive touching of her body, and crude bathroom graffiti about her. In response to Cooper's complaints, NOMBL repainted the bathroom and posted a notice indicating that discrimination would not be tolerated. No one was disciplined, however, and the harassment did not stop. NOMBL maintained a \"deficiency book\" in which rules violations committed by bus drivers were recorded. During 1979, six violations by Cooper were entered in the book.",
"On August 29, 1979, Cooper received a warning about parking her bus on Lorain Road with passengers on board. On October 5, 1979, plaintiff was cited for wearing non-regulation shoes that were too bright in color. On October 9, 1979, a \"miss,\" or failure to arrive at work on time without first informing NOMBL, was recorded. On October 15, 1979, Cooper was cited for failing to relieve another driver at the proper place. On October 22, 1979, plaintiff was informed that she should not drive the bus with her foot propped over the emergency brake handle. On October 29, 1979, Cooper again was cited for failing to relieve another driver at the correct place. Cooper filed a complaint with the Ohio Civil Rights Commission (\"OCRC\") on February 15, 1980, claiming harassment by the other NOMBL drivers. She alleged that the drivers' bathroom was again covered with graffiti about her, and that the other drivers were making bets about which of them could force her into an accident. In March, 1980, Cooper, NOMBL, the OCRC, and the Equal Employment Opportunity Commission (\"EEOC\") entered into a negotiated settlement agreement. The agreement required the repainting of the bathroom walls, the posting of a policy statement, and the disciplining of anyone caught engaging in discriminatory behavior.",
"Cooper reported some improvement in her work situation following the agreement. On February 26, 1980, one day after NOMBL received notice of Cooper's OCRC complaint, Cooper was cited for a miss. On March 14, 1980, a deficiency book entry indicates that plaintiff failed to pick up passengers at a certain point. On April 9, 1980, and on May 7 and May 9, 1980, Cooper was cited for running early. She was charged with a miss on both April 18 and May 28, 1980. On June 12, 1980, Cooper was cited for failing to pick up children at a school stop, leaving them stranded for one half hour. On June 19, 1980, Cooper was charged with leaving her bus unattended, running and open on a public street, arguably with children milling around.",
"NOMBL General Manager Ken Mues sent Cooper warning letters on June 2, and again on June 13, 1980. These letters were Cooper's first indication that deficiency book entries were being made about her, and that her job performance was being seriously questioned. On June 19, 1980, Mues learned of the charge that Cooper had left her bus unattended, with children milling around it. He decided to discharge Cooper immediately, and did so. After being discharged, Cooper pursued a number of avenues for relief. First, on June 25, 1980, she filed charges of unlawful employment practices against the City with the OCRC. After an investigation, the OCRC found no cause to credit Cooper's allegations, and dismissed the charges. She did not request a reconsideration of this decision. Cooper also filed charges with the EEOC, which concluded, on June 9, 1980, that there was no cause to believe that Cooper's allegations were true.",
"The EEOC issued Cooper a right to sue letter, enabling her to bring the present action. Finally, on June 27, 1980, Cooper filed for unemployment benefits with the Ohio Bureau of Employment Services (\"OBES\"). She argued that she was entitled to benefits because her discharge was without just cause. On July 25, 1980, the OBES denied Cooper benefits on the ground that NOMBL had cause to fire her. Cooper appealed this decision to the OBES Board of Review, which also found against her. On November 26, 1980, Cooper further appealed to the Cuyahoga County Court of Common Pleas. The court affirmed the denial of benefits, finding that the administrative determination \"was properly imposed, and was reasonable, lawful and supported by the manifest weight of the evidence.\" Cooper v. Board of Review, No. 20482 (Cuyahoga Cnty.Ct.Cmmn.Pleas Dec. 30, 1982).",
"Cooper did not appeal from this decision. On November 8, 1982, Cooper filed the present case in the United States District Court for the Northern District of Ohio. She charged the City with violating Title VII of the Civil Rights Act of 1964, U.S.C. Sec. 2000e et seq. ; the Civil Rights Act of 1866, 42 U.S.C. Sec. 1981; and the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983, by discharging her because of her race and sex, and because she filed discrimination charges with the OCRC. On September 2, 1983, the City moved for summary judgment, arguing that Cooper's claims were precluded by the prior ruling of the Cuyahoga County Court of Common Pleas. The district court denied the motion, 576 F. Supp. 592. The City then moved for summary judgment on the merits of Cooper's discrimination claims, and the court denied the motion. After a bench trial, the district court entered judgment in favor of Cooper on her Title VII and Sec.",
"1981 claims, and dismissed her claim under Sec. 1983. The City now appeals from the judgment of the district court. I. PRECLUSIVE EFFECT OF THE PRIOR STATE COURT JUDGMENT The City first argues that the district court erroneously found that the final decision of the Cuyahoga County Court of Common Pleas did not preclude the claims raised in this lawsuit. This argument is based on the Full Faith and Credit Statute, which requires all United States courts to afford the same full faith and credit to state court judgments that would apply in the state's own courts. 28 U.S.C. Sec. 1738. In the present case, the City contends that the courts of Ohio would hold that the decision of the Court of Common Pleas precludes a subsequent discrimination claim. Therefore, the City argues, the district court should have reached the same conclusion. The City's argument rests on the assumption that the courts of Ohio would apply the doctrine of collateral estoppel to the state court judgment, and hold that the judgment bars the present claims of discrimination. The seminal Ohio case on collateral estoppel is Norwood v. McDonald, 142 Ohio St. 299, 52 N.E.2d 67 (1943). There the Ohio Supreme Court defined collateral estoppel as follows: A point or a fact which was actually and directly in issue in a former action and was there passed upon and determined by a court of competent jurisdiction may not be drawn in question in any future action between the same parties or their privies, whether the cause of action in the two actions be identical or different.",
"142 Ohio St. at 300, 52 N.E.2d 67 (syllabus p 3). More recently, Justice Holmes, writing for the Ohio Supreme Court in Goodson v. McDonough Power Equip., Inc., 2 Ohio St. 3d 193, 200-01, 443 N.E.2d 978 (1983), stated that: 1 The main legal thread which runs throughout the determination of the applicability of res judicata, inclusive of the adjunct principle of collateral estoppel, is the necessity of a fair opportunity to fully litigate and to be \"heard\" in the due process sense. Accordingly, an absolute due process prerequisite to the application of collateral estoppel is that the party asserting the preclusion must prove that the identical issue was actually litigated, directly determined, and essential to the judgment in the prior action. 2 (citations omitted). Therefore, the City must prove that the issues of race and sex discrimination were actually and directly at issue in the prior state proceedings, and that they were essential to the judgment of the state court against Cooper.",
"3 The record in this case reveals that the question of whether Cooper's discharge was the result of race or sex discrimination by the City was not actually or directly presented to or ruled upon by the OBES or the Common Pleas Court. The prior state proceedings instead addressed Cooper's entitlement to unemployment benefits. Ohio Rev.Code Sec. 4141.29(D)(2)(a) (Page 1980) provides that an individual is ineligible for benefits if he or she \"has been discharged for just cause in connection with his [or her] work.\" In the present case, Cooper was denied benefits by the OBES because it found that her employer had \"just cause\" to discharge her. The determination of whether just cause exists focuses on the existence of fault on the part of the employee as a factor in the discharge.",
"See Sellers v. Board of Review, Ohio Bureau of Employment Serv., 1 Ohio App. 3d 161, 164, 440 N.E.2d 550 (1981). Here, the OBES concluded that Cooper's discharge was justified by her infractions of the rules of her employer. On appeal, the Common Pleas Court held that the OBES determination was not \"unlawful, unreasonable, or against the manifest weight of the evidence.\" Ohio Rev.Code Sec. 4141.28(O). The court rejected Cooper's arguments that her transgressions were insufficient to justify the discharge, and that the OBES hearing was unfair in that Cooper was unable to present her side of the case. The record is devoid of any consideration of race or sex discrimination, and such claims were beyond the scope of the administrative and state court actions.1 Under these circumstances, the courts of Ohio would hold that Cooper's discrimination claims are not barred by the prior state proceedings.",
"4 The City's reliance on Kremer v. Chemical Constr. Corp., 456 U.S. 461,102 S.Ct. 1883, 72 L. Ed. 2d 262 (1982), is misplaced. In that case, the question confronting the Supreme Court was whether to \"give preclusive effect to a decision of a state court upholding a state administrative agency's rejection of an employment claim as meritless when the state court's decision would be res judicata in the State's own courts.\" 456 U.S. at 463, 102 S.Ct. at 1888. The Court held that the prior state proceedings barred the plaintiff's Title VII charges of discrimination. In Kremer, New York law clearly held that the judicially-affirmed determination of the New York State Division of Human Rights that plaintiff was not the victim of discrimination barred later suits based on the same grievance.",
"Id. at 467, 102 S.Ct. at 1890 (quoting New York law). In this case, the prior state proceedings did not encompass the claims raised in the subsequent Title VII lawsuit, and the Ohio courts would not apply collateral estoppel.2 5 The City's reliance on Pullar v. UpJohn Health Care Serv., Inc., 21 Ohio App. 3d 288, 488 N.E.2d 486 (1984), is also unavailing. There the Cuyahoga County Court of Appeals held that a prior OBES decision that plaintiff had been terminated for just cause bars a later age discrimination action. The discrimination suit was based on an Ohio statute that prohibits discharging individuals between the ages of 40 and 70 \"without just cause.\" 21 Ohio App.",
"3d at 290, 488 N.E.2d 486 (quoting Ohio Rev.Code Sec. 4101.17). Pullar is distinguishable from the present case, as the subsequent discrimination suit raised the same issue of just cause to discharge as had been addressed in the OBES proceedings. In this case, as previously stated, the prior OBES proceedings did not encompass the claims raised later in the discrimination action. Moreover, a number of decisions from the other Ohio courts indicate that collateral estoppel does not apply in circumstances similar to those in the present case. These courts have refused to give collateral estoppel effect to judicially-affirmed administrative decisions, holding that those decisions did not affect later proceedings addressing issues not directly raised in the first actions. See, e.g., Ohio Dept.",
"of Mental Health, Cambridge Mental Health Center v. Hunt, No. CA-766 (Ohio Ct.App. Aug. 2, 1985); Pickaway County General Health Dist. v. Administrator, Ohio Bureau of Employment Serv., No. 84-CA-12 (Ohio Ct.App. July 1, 1985); Reed v. Dodge, No. E-84-41 (Ohio Ct.App. March 15, 1985). 6 The foregoing analysis reveals that the courts of Ohio would not preclude Cooper from asserting her discrimination claims because of the prior judicially-affirmed OBES proceedings. The district court's refusal to apply the doctrine of collateral estoppel is affirmed. 7 II. COOPER'S CLAIMS OF INTENTIONAL DISCRIMINATION 8 The City next challenges the district court's finding that plaintiff proved intentional discrimination, in violation of Title VII and Sec. 1981.3 The district court concluded that Cooper had established intentional discrimination under two theories: disparate treatment and retaliatory discharge. The City argues that the district court's conclusions on the issues are legally erroneous. A. Disparate Treatment 9 Section 703(a)(1) of Title VII, 42 U.S.C. Sec. 2000e-2(a)(1), generally prohibits race or sex discrimination in any employment decision. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 796, 93 S. Ct. 1817, 1821, 36 L. Ed.",
"2d 668 (1973). A Title VII plaintiff bears the burden of proving that it is more probable than not that she was discriminated against on a proscribed basis. The district court correctly found that Cooper could establish a prima facie case of disparate treatment pursuant to McDonnell Douglas if she showed 1) that she was female and a member of a racial minority; 2) that she and a similarly situated white or male person received dissimilar treatment; and 3) that sufficient evidence exists from which the court can find a causal connection between race or sex and the alleged acts of the defendants. 10 The City contends that Cooper failed to establish a prima facie case, as she did not prove that she was treated differently than similarly situated white and male employees. It argues that the district court, in concluding that a prima facie case had been established, erroneously compared Cooper to employees who were not similarly situated. Specifically, the City objects to the district court's comparing of Cooper's record to those of Lawrence Sindalar and Ken Moss. The City points out that Sindalar was a permanent rather than a probationary employee during the relevant time period, and that Moss' probationary period occurred five years earlier under a different General Manager than that of Cooper.",
"11 A probationary period of employment permits a company to weed out or eliminate undesirable employees. See, e.g., Farmer v. Colorado and Southern R.R. Co., 723 F.2d 766, 767 (10th Cir.1983). The opportunity to dismiss more readily those new employees whose job performance is unsatisfactory is particularly important to NOMBL. As a common carrier, NOMBL has the duty of exercising the highest standard of care for the safety of its passengers. See, e.g., Mitchell v. Marker, 62 F. 139, 142-43 (6th Cir.1894); May Dept. Stores Co. v. McBride, 124 Ohio St. 264, 178 N.E. 12 (1931). Probationary bus drivers therefore do not stand on equal footing with permanent drivers, and cannot be considered to be similarly situated. See, e.g., McKenna v. Weinberger, 729 F.2d 783, 789 (D.C.Cir.1984). 12 The district court improperly compared the work records of Sindalar, a permanent employee who was not discharged, and Cooper, a probationary employee who was discharged.",
"This error requires a remanding of this case to the district court. On remand, the district court shall make findings as to whether Cooper has established that she was treated differently than other NOMBL probationary employees. 13 The district court also compared Cooper to Ken Moss, who began his probationary year of employment in 1976 under General Manager Ernie Zoldesy, Ken Mues' predecessor. The City contends that it presented ample evidence at trial that Zoldesy did not possess the managerial skills of Mues. It concludes that any difference in the treatment received by Cooper and Moss can be explained by the change in managers.",
"The district court refused to consider the change in management, finding it \"entirely appropriate\" to compare the treatment received by Cooper and Moss. Cooper v. City of North Olmsted, C82-3089, at 34 (N.D.Ohio Feb. 11, 1985). Although a change in managers is not a defense to claims of race or sex discrimination, it can suggest a basis other than race or sex for the difference in treatment received by two employees. See Tate v. Weyerhaeuser Co., 723 F.2d 598, 606 (8th Cir.1983), cert. denied, --- U.S. ----, 105 S. Ct. 160, 83 L. Ed. 2d 97 (1984). The district court therefore should have considered the management change in determining the probative value of the comparison between Cooper and Moss. On remand, the district court shall consider this factor in its analysis of Cooper's disparate treatment claim. 14 The City next argues that the district court erroneously conducted the analysis of discrimination claims set forth in Texas Dept.",
"of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). According to Burdine, the plaintiff must first establish a prima facie case of intentional discrimination, which the defendant can rebut by producing a legitimate, nondiscriminatory reason for the discharge. \"The defendant need not persuade the court that it was actually motivated by the proffered reasons.... It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.\" 450 U.S. at 254-55, 101 S.Ct. at 1094 (citation and footnote omitted). If the defendant meets this burden of production, the plaintiff must then prove that defendant's asserted motive is pretextual.",
"The need to prove pretext merges with the plaintiff's ultimate burden of persuading the court that she was the victim of intentional discrimination, a burden that the plaintiff retains at all times. Id. at 254-56, 101 S.Ct. at 1094-95. 15 In the present case, the City offered Cooper's numerous infractions of NOMBL rules, as recorded in the deficiency book, as its legitimate, nondiscriminatory reason for discharging her. Cooper then offered evidence that many of the deficiency book entries did not correspond to the facts of the situation, and that some of them were made in violation of company policy. The district court examined the deficiency book entries, one by one, and found that Cooper's version of the recorded events was credible. The court concluded that the vast majority of the deficiency book entries should not have been made, and that Cooper had therefore proved that the City's proffered reason for the discharge was a pretext.",
"16 The district court appears to have focused on whether or not the court believed Cooper's version of the facts surrounding the alleged infractions of NOMBL rules. In so doing, the district court overlooked the crucial inquiry in this case, which is whether the City intentionally discriminated against Cooper. The court should not put itself in a position of judging the correctness of the defendant's action in discharging the plaintiff. Instead, the court should look at whether the actions and the intentions of the defendant were pretextual or amounted to intentional discrimination.",
"To determine the City's motivation in discharging Cooper, the district court must make specific factual findings on 1) whether the City relied on the deficiency book entries in discharging Cooper; and 2) if the City did so rely, whether that reliance was reasonable under the totality of the circumstances in this case. Therefore, this case must be remanded to the district court, with instructions to make these essential factual determinations.4 B. Retaliatory Discharge 17 Section 704(a) of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-3(a), forbids discrimination against employees for attempting to protest or correct allegedly discriminatory conditions of employment. McDonnell Douglas, 411 U.S. at 796, 93 S.Ct. at 1821. To support a claim of retaliatory discharge, a plaintiff must prove: 1) that she engaged in activity protected by Title VII; 2) that she was the subject of adverse employment action; and 3) that there is a causal link between her protected activity and the adverse action of her employer. Jackson v. RKO Bottlers of Toledo, Inc., 743 F.2d 370, 375 (6th Cir.1984).",
"The City contends that Cooper failed to establish a prima facie case of retaliatory discharge, as she did not prove a causal link between her filing of OCRC charges and her discharge four months later. 18 The district court found that Cooper filed discrimination charges with the OCRC on February 15, 1980, and that the City received a copy of the charges on February 25, 1980. The court stated that Cooper was then \"immediately cited for myriad alleged violations of NOMBL rules,\" and that those citations culminated in Cooper's discharge. Cooper v. City of North Olsted, No. C82-3089, at 35-36. From this, the district court concluded that plaintiff established a prima facie case of retaliatory discharge. 19 The district court's factual findings do not support its conclusion that Cooper established a causal link between the OCRC complaint and her discharge. The mere fact that Cooper was discharged four months after filing a discrimination claim is insufficient to support an interference of retaliation.",
"See, e.g., Brown v. ASD Computing Center, 519 F. Supp. 1096, 1116-17 (S.D.Ohio 1981), aff'd sub nom. Brown v. Mark, 709 F.2d 1499 (6th Cir.1983). The district court appears to have relied on the fact that Cooper was cited for rules violations six times in the seven month period preceding her OCRC complaint, and nine times in the four months following the complaint. The district court further noted that four of the pre-complaint citations were unjustified.5 The record in this case contains no evidence directly linking the nine citations at issue to Cooper's filing of the OCRC discrimination charges. While a disparity in the amount of disciplinary action may certainly be sufficient in appropriate cases to support an inference of retaliation, this is not such a case. Standing alone, the change in the number of deficiency book entries on which the City could reasonably rely, and Cooper's discharge four months later, do not establish a prima facie case of retaliatory discharge.",
"The district court's finding on this issue is clearly erroneous, and must be reversed.6 III. CONCLUSION 20 The judgment of the district court denying collateral estoppel effect to the prior judicially-affirmed OBES proceedings is affirmed. The district court's finding of disparate treatment, in violation of 42 U.S.C. Secs. 1981, 2000e-2(a)(1), is vacated, and the case is remanded for further proceedings in conformance with this opinion. The finding of retaliatory discharge, in violation of 42 U.S.C. Secs. 1981, 2000-3(a), is reversed. * The Hon. Charles W. Joiner, Senior United States District Judge, Eastern District of Michigan, sitting by designation 1 The district court found that Cooper raised the issues of race and sex discrimination during the OBES and Court of Common Pleas proceedings. See Cooper v. City of North Olmsted, 576 F. Supp.",
"592, 595 (N.D.Ohio 1983). The court then stated, however, that there was no indication that these allegations were ever investigated. The court further stated that the OBES Board of Review and the Court of Common Pleas had not ruled on the allegations of discrimination. 576 F. Supp. at 595-96. The record on appeal, as indicated above, contains no indication that any charges of race and sex discrimination were directly presented or considered in the state proceedings. Therefore, the record, when considered as a whole, fails to establish that the issues of race and sex discrimination were actually and directly at issue in the prior proceedings, or that they were essential to the judgment of the state court 2 The City argues that Kremer establishes a two-part inquiry for this case. First, a court should decide whether or not the Ohio courts would give preclusive effect to the prior Court of Common Pleas decision, and would hold that it bars the present discrimination suit.",
"If the court finds that collateral estoppel would apply under Ohio law, it must then examine whether that application would offend due process. Specifically, the court must determine whether the claimant had a full and fair opportunity to litigate the discrimination claim in the prior proceeding. The City claims that the district court committed reversible error by omitting the first part of the analysis, and failing to consider Ohio law. Instead, the court focused exclusively on the due process inquiry. The district court concluded that Cooper did not have a full and fair opportunity to litigate her discrimination claims in the prior proceedings, as those proceedings did not determine whether discrimination played a role in Cooper's discharge.",
"This analysis, although faulty, is not reversible error. By concluding that the prior state proceedings did not afford Cooper an opportunity to litigate her discrimination claims, the court determined that those claims were not actually or directly at issue in the state court and that they were not essential to the state court's judgment. Thus, the determination required by Ohio law was made 3 Liability under Sec. 1981 may be established by proving that a defendant engaged in purposeful or intentional discrimination. See General Building Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 102 S. Ct. 3141, 73 L. Ed. 2d 835 (1982); Leonard v. City of Frankfort Elec.",
"and Water Plant Bd., 752 F.2d 189, 193 (6th Cir.1985). In the present case, the district court found that plaintiff's proof of disparate treatment and retaliatory discharge established a violation of both Title VII and Sec. 1981. As liability under both statutes rests on the same proof, Cooper's Sec. 1981 claim will not be separately discussed infra 4 The City also claims that the district court erred in refusing to grant it summary judgment on plaintiff's claims of intentional discrimination, as no issues of material fact existed. As the Ninth Circuit has stated, \"[c]ourts are reluctant to dismiss by summary judgment Title VII discrimination suits where, as in antitrust actions, motive and intent are crucial elements and the proof is in the hands of the alleged wrongdoers.\"",
"Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 759 (9th Cir.1980). In the present case, conflicting evidence was presented about the reasons for plaintiff's discharge. Summary judgment was therefore inappropriate, and the district court properly denied the motion 5 As stated earlier, the district court should have focused on whether the City reasonably relied on the deficiency book entries, and not on whether the district court itself believed the citations. The court will assume, in analyzing the retaliatory discharge claim, that the district court found or will find on remand that the City did not reasonably rely on four pre-complaint deficiency book entries and nine post-complaint deficiency book entries 6 This decision makes it unnecessary to consider the City's claim that the district court erroneously denied its motion for summary judgment on Cooper's retaliatory discharge claim"
]
| https://www.courtlistener.com/api/rest/v3/opinions/473643/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Wright, J., dissenting. I respectfully dissent from my colleagues’ vote that this appeal was improvidently allowed. I would hear this case on its merits because it involves important issues concerning the well-being of the hundreds of children in our state who run away from their homes — an act which is not a crime for an adult, but because of the child’s status, i.e., being underage, brings him or her within the jurisdiction of the juvenile court. What does happen and what should happen under Ohio law to these “status offenders” is what this case is about. This is a subject which has never been adequately addressed by this court and one which has been considered important enough to be addressed by numerous other state supreme courts.1 The salutary purpose of the Juvenile Code is to “provide for the care, protection, and mental and physical development of children * * * [and to] * * * remov[e] the consequences of criminal behavior and the taint of criminality from children committing delinquent acts and to substitute therefor a program of supervision, care and rehabilitation[.] * * *” (Emphasis added.) R.C. 2151.01; see, also, Juv. R. 1(B); In re M.D. (1988), 38 Ohio St. 3d 149, 527 N.E. 2d 286. The record in this case shows that Tina, at age sixteen, was adjudicated an “unruly” child as a result of running away from a clearly abusive home situation. “Unruly” is defined in R.C. 2151.022, and it encompasses the status-offender runaway. There is no indication in this record that Tina was notified of her statutory right to counsel during that “adjudication.” Such a silent record has been held to constitute reversible error. See In re Kriak (1986), 30 Ohio App. 3d 83, 30 OBR 140, 506 N.E. 2d 556. Indeed, the record indicates that counsel was not appointed until long *608after the “adjudication.” However, this unhappy problem is not the focus of my disagreement with my colleagues. Construing the applicable juvenile statutes liberally and the criminal statutes at issue narrowly, as is clearly required by law, I must conclude that the shelter where Tina was placed was not a place of detention for the purposes of the criminal escape statute, R.C. 2921.34, violation of which is a felony of the fourth degree. “Custody” or “care” under the Juvenile Code must not be confused with “arrest” or “confinement,” the terms used in defining “detention” and “detention facility” as they appear in R.C. 2921.34. See R.C. 2921.01(E) and (F). The order that adjudicated Tina as unruly stated that she should “remain in the temporary shelter care of the Ross County Children’s Services,” in order for that agency to conduct a “pre-dispositional investigation * * *.” (Emphasis added.) The Committee Comment to R.C. 2921.34 refers to escape from a “lock-up, jail, workhouse, juvenile detention home, or penal or reformatory institution.” (Emphasis added.) Furthermore, the criminal escape statute and the Committee Comment clearly indicate that the defendant must have “kn[own] [s]he was under detention.” The order herein certainly does not supply that notice. Local Rule 11(3) of the Ross County Juvenile Court lists three facilities for juveniles: “The South Central Ohio Regional Detention Center is hereby designated as a proper place of detention for juveniles. “The Children’s Service Center, located at Western Avenue and Locust Street in the City of Chillicothe, Ohio, is hereby designated as an emergency shelter care facility for juveniles. “The residential facility operated as Roweton’s Boy’s Ranch, Inc., is hereby designated as a non-secure detention facility for juveniles.” (Emphasis added.) Tina was sent to the second facility noted above which is, of course, a shelter. The Executive Secretary of Ross County Children’s Services testified that the shelter is not a “detention facility.” R.C. 2151.011(B)(4) defines a “shelter” for purposes of the Juvenile Code as follows: “ ‘Shelter’ means the temporary care of children in physically unrestricted facilities pending court adjudication or disposition.” By rule children who are alleged to be neglected are not to be put in any facility where there are children who are alleged to be delinquent, unless upon order of the court. Juv. R. 7(H). Given the three choices for placement of children in Ross County, the shelter is by elimination the facility where neglected and unruly children should be placed, since R.C. 2151.354 mandates that unruly children be treated, initially at least, as neglected children. Furthermore, Juv. R. 7 uses the words “detention or shelter care” throughout as the choices for children in custody. R.C. 2921.34, the basis of the warrant that was issued to arrest Tina after she walked away from the shelter clearly contemplates a “juvenile detention” facility. Accordingly, I can only conclude that R.C. 2921.34 does not apply under the facts in this case. In addition, I must conclude that adjudicating Tina a juvenile delinquent for walking away from a shelter runs counter to R.C. 2151.354, the statute dealing with disposition of an unruly child. The statutory classification of an unruly child has been in existence only *609since 1969. The General Assembly provided specific statutory classifications of children and limited the court’s discretion in dealing with them. Court disposition of unruly children is set forth in R.C. 2151.354, which requires the court to treat unruly children as set forth therein or as neglected children. The statute further provides: “If after making such disposition the court finds, upon further hearing, that the child is not amenable to treatment or rehabilitation under such disposition, the court may make a disposition otherwise authorized in section 2151.355.” (Emphasis added.) In other words, only after such a showing can an unruly child be treated as a juvenile delinquent and be placed in a detention facility for delinquents. No treatment or rehabilitation had yet been undertaken for Tina at the time she walked away from the shelter and was then adjudicated a delinquent. The court certainly did not set forth such findings as required by R.C. 2151.354. The General Assembly emphasized its preference that unruly children, i.e., status offenders, at the outset at least, be treated as neglected children. What Tina was found guilty of is in some measure akin to a probation violation or even contempt when she did not “subject herself to the reasonable control of the staff” of the shelter. This was required under the first condition listed in the court’s entry placing her in the shelter after she was adjudicated as “unruly.” Court orders should not be ignored with impunity by children, and violation of a court order may be the basis for a finding of delinquency. R.C. 2151.02(B). However, the contempt powers of a court should not be invoked quickly in this context and a status offender who has departed a shelter on one occasion should not be given the “taint” of criminality and adjudicated or treated as a juvenile delinquent. Under R.C. 2151.354 an unruly child may be left in the status of an unruly child but treated as a delinquent and incarcerated in a detention facility because of failure of “treatment or rehabilitation.” It is this sort of placement situation that is contemplated by the criminal escape statutes when they include “unruly” children within their purview. Before such a detention placement of an unruly child or the bootstrapping of status from unruly to delinquent occurs for violation of a court order, the following criteria should be met: (1) The juvenile should be given sufficient notice to comply with the order and understand its provisions; (2) violation of a court order must be egregious; (3) less restrictive alternatives must be considered and found to be ineffective; and (4) special confinement conditions should be arranged so that the status offender is not put with underage criminals. See Juv. R. 7(H) and In Interest of D.L.D. (1983), 110 Wis. 2d 168, 182, 327 N.W. 2d 682, 689. The facts in this case obviously do not meet the above criteria. Bootstrapping of a status offender into a juvenile delinquent has been rightly termed a “vicious practice.”2 We have tacitly approved a result that seems to allow such “bootstrapping.” I believe that reading in pari materia all the statutes applicable to juveniles requires a holding that the bootstrapping that occurred here was too hasty, contrary to law, and not in the best interest of anyone. Sweeney and H. Brown, JJ., concur in the foregoing dissenting opinion.
State statutory schemes vary, but most states have the same overall purposes as the Ohio statutory scheme and provide for separate custody of differently classified juveniles. The California Supreme Court in In re Michael G (1988), 44 Cal. 3d 283, 243 Cal. Rptr. 224, 747 P. 2d 1152, cited opinions from seven other states and adopted the standards first set forth in In Interest of D.L.D. (1983), 110 Wis. 2d 168, 327 N.W. 2d 682. These standards are summarized infra.
In re Ronald S. (1977), 69 Cal. App. 3d 866, 871, 138 Cal. Rptr. 387, 391. | 07-21-2022 | [
"Wright, J., dissenting. I respectfully dissent from my colleagues’ vote that this appeal was improvidently allowed. I would hear this case on its merits because it involves important issues concerning the well-being of the hundreds of children in our state who run away from their homes — an act which is not a crime for an adult, but because of the child’s status, i.e., being underage, brings him or her within the jurisdiction of the juvenile court. What does happen and what should happen under Ohio law to these “status offenders” is what this case is about. This is a subject which has never been adequately addressed by this court and one which has been considered important enough to be addressed by numerous other state supreme courts.1 The salutary purpose of the Juvenile Code is to “provide for the care, protection, and mental and physical development of children * * * [and to] * * * remov[e] the consequences of criminal behavior and the taint of criminality from children committing delinquent acts and to substitute therefor a program of supervision, care and rehabilitation[.] * * *” (Emphasis added.)",
"R.C. 2151.01; see, also, Juv. R. 1(B); In re M.D. (1988), 38 Ohio St. 3d 149, 527 N.E. 2d 286. The record in this case shows that Tina, at age sixteen, was adjudicated an “unruly” child as a result of running away from a clearly abusive home situation. “Unruly” is defined in R.C. 2151.022, and it encompasses the status-offender runaway. There is no indication in this record that Tina was notified of her statutory right to counsel during that “adjudication.” Such a silent record has been held to constitute reversible error. See In re Kriak (1986), 30 Ohio App. 3d 83, 30 OBR 140, 506 N.E. 2d 556. Indeed, the record indicates that counsel was not appointed until long *608after the “adjudication.” However, this unhappy problem is not the focus of my disagreement with my colleagues. Construing the applicable juvenile statutes liberally and the criminal statutes at issue narrowly, as is clearly required by law, I must conclude that the shelter where Tina was placed was not a place of detention for the purposes of the criminal escape statute, R.C.",
"2921.34, violation of which is a felony of the fourth degree. “Custody” or “care” under the Juvenile Code must not be confused with “arrest” or “confinement,” the terms used in defining “detention” and “detention facility” as they appear in R.C. 2921.34. See R.C. 2921.01(E) and (F). The order that adjudicated Tina as unruly stated that she should “remain in the temporary shelter care of the Ross County Children’s Services,” in order for that agency to conduct a “pre-dispositional investigation * * *.” (Emphasis added.) The Committee Comment to R.C. 2921.34 refers to escape from a “lock-up, jail, workhouse, juvenile detention home, or penal or reformatory institution.” (Emphasis added.)",
"Furthermore, the criminal escape statute and the Committee Comment clearly indicate that the defendant must have “kn[own] [s]he was under detention.” The order herein certainly does not supply that notice. Local Rule 11(3) of the Ross County Juvenile Court lists three facilities for juveniles: “The South Central Ohio Regional Detention Center is hereby designated as a proper place of detention for juveniles. “The Children’s Service Center, located at Western Avenue and Locust Street in the City of Chillicothe, Ohio, is hereby designated as an emergency shelter care facility for juveniles. “The residential facility operated as Roweton’s Boy’s Ranch, Inc., is hereby designated as a non-secure detention facility for juveniles.” (Emphasis added.)",
"Tina was sent to the second facility noted above which is, of course, a shelter. The Executive Secretary of Ross County Children’s Services testified that the shelter is not a “detention facility.” R.C. 2151.011(B)(4) defines a “shelter” for purposes of the Juvenile Code as follows: “ ‘Shelter’ means the temporary care of children in physically unrestricted facilities pending court adjudication or disposition.” By rule children who are alleged to be neglected are not to be put in any facility where there are children who are alleged to be delinquent, unless upon order of the court.",
"Juv. R. 7(H). Given the three choices for placement of children in Ross County, the shelter is by elimination the facility where neglected and unruly children should be placed, since R.C. 2151.354 mandates that unruly children be treated, initially at least, as neglected children. Furthermore, Juv. R. 7 uses the words “detention or shelter care” throughout as the choices for children in custody. R.C. 2921.34, the basis of the warrant that was issued to arrest Tina after she walked away from the shelter clearly contemplates a “juvenile detention” facility. Accordingly, I can only conclude that R.C. 2921.34 does not apply under the facts in this case. In addition, I must conclude that adjudicating Tina a juvenile delinquent for walking away from a shelter runs counter to R.C. 2151.354, the statute dealing with disposition of an unruly child.",
"The statutory classification of an unruly child has been in existence only *609since 1969. The General Assembly provided specific statutory classifications of children and limited the court’s discretion in dealing with them. Court disposition of unruly children is set forth in R.C. 2151.354, which requires the court to treat unruly children as set forth therein or as neglected children. The statute further provides: “If after making such disposition the court finds, upon further hearing, that the child is not amenable to treatment or rehabilitation under such disposition, the court may make a disposition otherwise authorized in section 2151.355.” (Emphasis added.) In other words, only after such a showing can an unruly child be treated as a juvenile delinquent and be placed in a detention facility for delinquents. No treatment or rehabilitation had yet been undertaken for Tina at the time she walked away from the shelter and was then adjudicated a delinquent.",
"The court certainly did not set forth such findings as required by R.C. 2151.354. The General Assembly emphasized its preference that unruly children, i.e., status offenders, at the outset at least, be treated as neglected children. What Tina was found guilty of is in some measure akin to a probation violation or even contempt when she did not “subject herself to the reasonable control of the staff” of the shelter. This was required under the first condition listed in the court’s entry placing her in the shelter after she was adjudicated as “unruly.” Court orders should not be ignored with impunity by children, and violation of a court order may be the basis for a finding of delinquency. R.C. 2151.02(B).",
"However, the contempt powers of a court should not be invoked quickly in this context and a status offender who has departed a shelter on one occasion should not be given the “taint” of criminality and adjudicated or treated as a juvenile delinquent. Under R.C. 2151.354 an unruly child may be left in the status of an unruly child but treated as a delinquent and incarcerated in a detention facility because of failure of “treatment or rehabilitation.” It is this sort of placement situation that is contemplated by the criminal escape statutes when they include “unruly” children within their purview. Before such a detention placement of an unruly child or the bootstrapping of status from unruly to delinquent occurs for violation of a court order, the following criteria should be met: (1) The juvenile should be given sufficient notice to comply with the order and understand its provisions; (2) violation of a court order must be egregious; (3) less restrictive alternatives must be considered and found to be ineffective; and (4) special confinement conditions should be arranged so that the status offender is not put with underage criminals. See Juv.",
"R. 7(H) and In Interest of D.L.D. (1983), 110 Wis. 2d 168, 182, 327 N.W. 2d 682, 689. The facts in this case obviously do not meet the above criteria. Bootstrapping of a status offender into a juvenile delinquent has been rightly termed a “vicious practice.”2 We have tacitly approved a result that seems to allow such “bootstrapping.” I believe that reading in pari materia all the statutes applicable to juveniles requires a holding that the bootstrapping that occurred here was too hasty, contrary to law, and not in the best interest of anyone. Sweeney and H. Brown, JJ., concur in the foregoing dissenting opinion. State statutory schemes vary, but most states have the same overall purposes as the Ohio statutory scheme and provide for separate custody of differently classified juveniles. The California Supreme Court in In re Michael G (1988), 44 Cal. 3d 283, 243 Cal. Rptr. 224, 747 P. 2d 1152, cited opinions from seven other states and adopted the standards first set forth in In Interest of D.L.D. (1983), 110 Wis. 2d 168, 327 N.W.",
"2d 682. These standards are summarized infra. In re Ronald S. (1977), 69 Cal. App. 3d 866, 871, 138 Cal. Rptr. 387, 391."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6761836/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Title: To James Madison from John Waller Johnston, 1 March 1792 From: Johnston, John Waller To: Madison, James
Sir,Bermuda-Hundred, Virginia, March, 1st. 1792. I have not the honor to have a personal acquaintance with you; and have taken the liberty, to write you; for which I most humbly hope to be pardoned: My wish is to beg a favor of you, which if in your power; and you will oblige me; I shall ever acknowledge it a most greatful and Singular favor; my object is to get the place of keeper of the Light-House on Cape-Henry; and I observe that business is solely vested in the Secretary of the Treasury of the United States, and as neither myself nor none of my particular friends have the honor of an acquaintance with that gentleman; it is thus I most humbly hope to have my wish communicated to him. I shou’d not have been thus presumptious; but being myself a native and most of my connections residents of your District most of whom I believe have allways been in your Interest: this I hope will in a small degree apologize for this peice of presumption. My connections are Waller’s, Lewis’s, Minor’s, Overton’s, Callis’s, Carr’s, and Goodloe’s, and friends Towles’s. If the Secretary shou’d think proper to honor me with this place; being a single-man, cou’d afford to keep it for as little as any person whatever: and I might perhaps be of service to my Country in another way: for it is suggested (and I am induced to believe not altogether without foundation) that there are some smuggling carried on in the lower parts of this State from the West-India-Islands: and the spot on which the Light-House, is erected on; is perhaps above all others, the most eligible (from its natural situation) on which a vigilant eye might be fixed to the greatest advantage to observe the motion of the Smuggler; the law makes the informer interested in this business; therefore it wou’d be an object for the keeper to exert himself; and particularly so if he shou’d have the wellfare of his Country in view: if this consideration wou’d have any influence with the Secretary; I cou’d perhaps fill the place, to greater advantage than any other candidate, from a professional knowledge: having served under the State government twelve months at this Port, in the Capacity of assistant Searcher; and having been engaged in the Customs at this Port since the commencement of the new government in the several capacities of Inspector, Measurer, Clerk in the Collectors-Office, and Deputy-Collector, the latter Office I now enjoy; but in consequence of very weak eyes, shall be very unwillingly compelled to resign it shortly. I have no real claim on my Country; I served in the American-Army during the late war, the two severe Campaigns of 1780. & 1781. to the Southward principally; but in not so elevated a station as to expect any farther compensation than my pay &c.—which I have received. As I am an entire stranger to you; and in order to give you, the best information of my private character possible; I have taken the liberty to enclose you Copies of such of my Credentials as I have obtained from time to time and have now in my possession. If you shou’d not consider this humble but awkward solicitation of mine too importunate; and shou’d find a disposition to oblige me, (if in your power); and you wou’d wish to get further information of my character Colo. Oliver Towles, Mr John Waller, (Baptist Preacher) and Mr Thomas Towles, of Spotsylvania County in this state have known me from my infancy; if you shou’d not consider it too troublesome to write them; or if you shou’d deem it necessary I can procure from the principal Merchants of Richmond, and Petersburg, a Certificate testifying my conduct since I have been in the Customs. The Light House, is not yet fit for the receiption of a keeper, nor do I believe it will be very shortly. My wish is to make application as early as possible, that the Secretary, (if he shou’d be pleased to honor me with the appointment) shou’d have as little trouble with the business as possible. I have forwarded this by Capt who has promised to do me the honor to deliver it: and when you are perfectly at leisure and have looked at it; and if you will condescend so far as to drop me a line in answer to it, I shall consider myself highly honored in the receipt of it; be pleased to address it to the care of Mr David Buchanan, Merchant, Petersburg, where it will meet with immediate conveyance. I cannot conclude without again most humbly begging to be pardoned for this unpardonable peice of intrussion: but on your liberal sentiments and goodness of heart I will most humbly hope, and rely for pardon. And believe me to be Sir, With perfect regard your Most obedient and most humble Servant John Waller Johnston | 03-01-1792 | [
"Title: To James Madison from John Waller Johnston, 1 March 1792 From: Johnston, John Waller To: Madison, James Sir,Bermuda-Hundred, Virginia, March, 1st. 1792. I have not the honor to have a personal acquaintance with you; and have taken the liberty, to write you; for which I most humbly hope to be pardoned: My wish is to beg a favor of you, which if in your power; and you will oblige me; I shall ever acknowledge it a most greatful and Singular favor; my object is to get the place of keeper of the Light-House on Cape-Henry; and I observe that business is solely vested in the Secretary of the Treasury of the United States, and as neither myself nor none of my particular friends have the honor of an acquaintance with that gentleman; it is thus I most humbly hope to have my wish communicated to him. I shou’d not have been thus presumptious; but being myself a native and most of my connections residents of your District most of whom I believe have allways been in your Interest: this I hope will in a small degree apologize for this peice of presumption. My connections are Waller’s, Lewis’s, Minor’s, Overton’s, Callis’s, Carr’s, and Goodloe’s, and friends Towles’s.",
"If the Secretary shou’d think proper to honor me with this place; being a single-man, cou’d afford to keep it for as little as any person whatever: and I might perhaps be of service to my Country in another way: for it is suggested (and I am induced to believe not altogether without foundation) that there are some smuggling carried on in the lower parts of this State from the West-India-Islands: and the spot on which the Light-House, is erected on; is perhaps above all others, the most eligible (from its natural situation) on which a vigilant eye might be fixed to the greatest advantage to observe the motion of the Smuggler; the law makes the informer interested in this business; therefore it wou’d be an object for the keeper to exert himself; and particularly so if he shou’d have the wellfare of his Country in view: if this consideration wou’d have any influence with the Secretary; I cou’d perhaps fill the place, to greater advantage than any other candidate, from a professional knowledge: having served under the State government twelve months at this Port, in the Capacity of assistant Searcher; and having been engaged in the Customs at this Port since the commencement of the new government in the several capacities of Inspector, Measurer, Clerk in the Collectors-Office, and Deputy-Collector, the latter Office I now enjoy; but in consequence of very weak eyes, shall be very unwillingly compelled to resign it shortly. I have no real claim on my Country; I served in the American-Army during the late war, the two severe Campaigns of 1780.",
"& 1781. to the Southward principally; but in not so elevated a station as to expect any farther compensation than my pay &c.—which I have received. As I am an entire stranger to you; and in order to give you, the best information of my private character possible; I have taken the liberty to enclose you Copies of such of my Credentials as I have obtained from time to time and have now in my possession. If you shou’d not consider this humble but awkward solicitation of mine too importunate; and shou’d find a disposition to oblige me, (if in your power); and you wou’d wish to get further information of my character Colo. Oliver Towles, Mr John Waller, (Baptist Preacher) and Mr Thomas Towles, of Spotsylvania County in this state have known me from my infancy; if you shou’d not consider it too troublesome to write them; or if you shou’d deem it necessary I can procure from the principal Merchants of Richmond, and Petersburg, a Certificate testifying my conduct since I have been in the Customs. The Light House, is not yet fit for the receiption of a keeper, nor do I believe it will be very shortly.",
"My wish is to make application as early as possible, that the Secretary, (if he shou’d be pleased to honor me with the appointment) shou’d have as little trouble with the business as possible. I have forwarded this by Capt who has promised to do me the honor to deliver it: and when you are perfectly at leisure and have looked at it; and if you will condescend so far as to drop me a line in answer to it, I shall consider myself highly honored in the receipt of it; be pleased to address it to the care of Mr David Buchanan, Merchant, Petersburg, where it will meet with immediate conveyance. I cannot conclude without again most humbly begging to be pardoned for this unpardonable peice of intrussion: but on your liberal sentiments and goodness of heart I will most humbly hope, and rely for pardon.",
"And believe me to be Sir, With perfect regard your Most obedient and most humble Servant John Waller Johnston"
]
| https://founders.archives.gov/API/docdata/Madison/01-14-02-0215 | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
ORDER
PER CURIAM: This is another tragic tale of guns, drugs, and racial epithets, leaving one young man dead and others subject to spending the better part of their fives in prison. Isaías Loza appeals his convictions for second degree murder, Sec. 565.021, RSMo 1994, armed criminal action, Sec. 571.015, RSMo 1994, and ethnic intimidation, Sec. 574.090, RSMo 1994, for which he received consecutive sentences of life, fife, and seven years. He also appeals the denial of relief under Rule 29.15. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order. The judgments of the trial court and motion court are affirmed pursuant to Rules 30.25(b) and 84.16(b). | 10-01-2021 | [
"ORDER PER CURIAM: This is another tragic tale of guns, drugs, and racial epithets, leaving one young man dead and others subject to spending the better part of their fives in prison. Isaías Loza appeals his convictions for second degree murder, Sec. 565.021, RSMo 1994, armed criminal action, Sec. 571.015, RSMo 1994, and ethnic intimidation, Sec. 574.090, RSMo 1994, for which he received consecutive sentences of life, fife, and seven years. He also appeals the denial of relief under Rule 29.15. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order. The judgments of the trial court and motion court are affirmed pursuant to Rules 30.25(b) and 84.16(b)."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5091066/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Former decision, 134 S.Ct. 222.Petition for rehearing denied. | 10-24-2022 | [
"Former decision, 134 S.Ct. 222.Petition for rehearing denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8384409/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
482 F.2d 1379 Norman GRADSKY, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee. No. 73-2152. United States Court of Appeals,Fifth Circuit. Sept. 5, 1973.
Norman Gradsky, pro se. Robert W. Rust, U. S. Atty., William R. Northcutt, Asst. U. S. Atty., Miami Fla., for respondent-appellee. Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges. PER CURIAM:
1 It is hereby ordered that this appeal is dismissed for want of jurisdiction since the judgment sought to be appealed is not final as to all of the appellant's claims.1 See 28 U.S.C. Secs. 1291, 1292; Rule 54(b), F.R.Civ.P.; Graham v. Cole, 5th Cir. 1973, 483 F.2d 255; Jones v. Riggsby, 5th Cir. 1973, 475 F.2d 760; United States v. Crow et al., 5th Cir. 1973, 474 F.2d 200.
2 Dismissed.
1 It is appropriate to dispose of this pro se case summarily, pursuant to this Court's local Rule 9(c)(2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5th Cir. 1969, 412 F.2d 981 | 08-23-2011 | [
"482 F.2d 1379 Norman GRADSKY, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee. No. 73-2152. United States Court of Appeals,Fifth Circuit. Sept. 5, 1973. Norman Gradsky, pro se. Robert W. Rust, U. S. Atty., William R. Northcutt, Asst. U. S. Atty., Miami Fla., for respondent-appellee. Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges. PER CURIAM: 1 It is hereby ordered that this appeal is dismissed for want of jurisdiction since the judgment sought to be appealed is not final as to all of the appellant's claims.1 See 28 U.S.C. Secs. 1291, 1292; Rule 54(b), F.R.Civ.P. ; Graham v. Cole, 5th Cir. 1973, 483 F.2d 255; Jones v. Riggsby, 5th Cir. 1973, 475 F.2d 760; United States v. Crow et al., 5th Cir. 1973, 474 F.2d 200. 2 Dismissed. 1 It is appropriate to dispose of this pro se case summarily, pursuant to this Court's local Rule 9(c)(2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure.",
"Kimbrough v. Beto, Director, 5th Cir. 1969, 412 F.2d 981"
]
| https://www.courtlistener.com/api/rest/v3/opinions/312863/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Transcript of record was filed here on August 20, 1941 and the return day named in notice of appeal was the 28th day of August, 1941. On September 9, 1941 appellee filed here its motion to dismiss appeal because of lack of proper and necessary parties. On September 20, 1941 we entered order as follows: "Upon consideration of the motion of counsel for appellees to dismiss the appeal in this cause for want of necessary parties, it is ordered that action on said motion be continued until the final hearing of said cause on its merits." The cause is now presented for final disposition. On August 22, 1940, appellee filed his bill against appellant, City National Bank, City of Miami, B. Wall and others to foreclose a lien evidenced by a tax sale certificate on the particular property involved. Foreclosure was also sought against numerous other defendants on numerous other pieces of property. After the filing of appellant's answer and a master's report, with appellant's exceptions thereto and order overruling same, a final decree was entered on March 5th, *Page 26 1941, finding for appellee's lien and also finding that defendants City National Bank, City of Miami and B. Wall had liens of equal dignity with that of appellee. Notice of appeal was filed by appellant on July 18, 1941 by appellant alone, naming appellee only as appellee, after a decree confirming the sale of the property involved (Lots 8 and 9 Block 7, El Dorado Heights) had been entered on April 25, 1941. Appellee then filed his motion to dismiss appeal in this Court on the grounds considered below, and Appellee answered same and moved for summons and severance and for an order to allow amendment of appeal. This memorandum is on these motions, without consideration of the merits. The first ground of Appelee's motion to dismiss is that the property involved was sold under the final decree to the Office Realty Company, and that this sale was confirmed, but that this purchaser was not made a party to this appeal, although a necessary party. This is a good ground. Where appeal is taken after confirmation of master's sale, purchaser is a necessary party. Platt v. City of Punta Gorda, 98 Fla. 1242, 125 So. 381. The appeal was so taken here and the purchaser is not a party. The second ground is that the defendants below, City National Bank, City of Miami and B. Wall are necessary parties to this appeal but are not parties to it. This is a good ground. The defendants named were decreed by the court to have liens of equal dignity with that of appellee. An affirmance, reversal or modification of that decree would certainly affect their interests so that they are necessary parties. *Page 27 Gardner v. Northern Inv. Corp., et al., 117 Fla. 291, 157 So. 665, is four square with this case in holding that the City of Orlando in an identical situation was a necessary party. The notice of appeal, under the rule of Gover v. Mann, 114 Fla. 128,153 So. 895, and Rabinowitz v. Houk, 100 Fla. 44,129 So. 501, was insufficient notice to City National Bank, City of Miami and B. Wall so as to make them parties to this appeal and give the court jurisdiction over them in this appeal. But appellant requests the Court, in the event the first two grounds of the motion to dismiss appeal be held valid, that a summons and severance issue to the necessary parties not properly joined; and, failing in this, then that appellant be allowed to amend his appeal so as to make these parties to the appeal. To grant either of these requests would be improper for the final decree was entered on March 5, 1941, more than six months prior to appellant's motion, and this Court no longer has appellate jurisdiction in the cause, unless such jurisdiction has been properly invoked before the passage of the six-month period. Since the only notice of appeal filed within the time limit did not include numerous necessary and indispensable parties, such jurisdiction has not been properly invoked. However, appellant contends that since the decree confirming sale was entered on April 25, 1941, the six month period has not run as to that decree. This is true, but an appeal taken after expiration of the time limit on the final decree but before period has run on the decree confirming the sale under that final decree, will not bring up for review the final decree. McCaskill v. Graham, 125 Fla. 418, 170 So. 120; Hemphill *Page 28 v. Welles, 101 Fla. 1088, 132 So. 829. Appellant here has assigned no errors to, nor challenged the validity of, the subsequent decree confirming sale in and of itself, so that it would seem pointless to consider that decree even though the time for an appeal from it has not elapsed. The appeal should, therefore, be dismissed. So ordered. BROWN, C. J., WHITFIELD, BUFORD and ADAMS, JJ., concur. | 07-05-2016 | [
"Transcript of record was filed here on August 20, 1941 and the return day named in notice of appeal was the 28th day of August, 1941. On September 9, 1941 appellee filed here its motion to dismiss appeal because of lack of proper and necessary parties. On September 20, 1941 we entered order as follows: \"Upon consideration of the motion of counsel for appellees to dismiss the appeal in this cause for want of necessary parties, it is ordered that action on said motion be continued until the final hearing of said cause on its merits.\" The cause is now presented for final disposition. On August 22, 1940, appellee filed his bill against appellant, City National Bank, City of Miami, B. Wall and others to foreclose a lien evidenced by a tax sale certificate on the particular property involved. Foreclosure was also sought against numerous other defendants on numerous other pieces of property.",
"After the filing of appellant's answer and a master's report, with appellant's exceptions thereto and order overruling same, a final decree was entered on March 5th, *Page 26 1941, finding for appellee's lien and also finding that defendants City National Bank, City of Miami and B. Wall had liens of equal dignity with that of appellee. Notice of appeal was filed by appellant on July 18, 1941 by appellant alone, naming appellee only as appellee, after a decree confirming the sale of the property involved (Lots 8 and 9 Block 7, El Dorado Heights) had been entered on April 25, 1941.",
"Appellee then filed his motion to dismiss appeal in this Court on the grounds considered below, and Appellee answered same and moved for summons and severance and for an order to allow amendment of appeal. This memorandum is on these motions, without consideration of the merits. The first ground of Appelee's motion to dismiss is that the property involved was sold under the final decree to the Office Realty Company, and that this sale was confirmed, but that this purchaser was not made a party to this appeal, although a necessary party. This is a good ground. Where appeal is taken after confirmation of master's sale, purchaser is a necessary party. Platt v. City of Punta Gorda, 98 Fla. 1242, 125 So. 381.",
"The appeal was so taken here and the purchaser is not a party. The second ground is that the defendants below, City National Bank, City of Miami and B. Wall are necessary parties to this appeal but are not parties to it. This is a good ground. The defendants named were decreed by the court to have liens of equal dignity with that of appellee. An affirmance, reversal or modification of that decree would certainly affect their interests so that they are necessary parties.",
"*Page 27 Gardner v. Northern Inv. Corp., et al., 117 Fla. 291, 157 So. 665, is four square with this case in holding that the City of Orlando in an identical situation was a necessary party. The notice of appeal, under the rule of Gover v. Mann, 114 Fla. 128,153 So. 895, and Rabinowitz v. Houk, 100 Fla. 44,129 So. 501, was insufficient notice to City National Bank, City of Miami and B. Wall so as to make them parties to this appeal and give the court jurisdiction over them in this appeal. But appellant requests the Court, in the event the first two grounds of the motion to dismiss appeal be held valid, that a summons and severance issue to the necessary parties not properly joined; and, failing in this, then that appellant be allowed to amend his appeal so as to make these parties to the appeal.",
"To grant either of these requests would be improper for the final decree was entered on March 5, 1941, more than six months prior to appellant's motion, and this Court no longer has appellate jurisdiction in the cause, unless such jurisdiction has been properly invoked before the passage of the six-month period. Since the only notice of appeal filed within the time limit did not include numerous necessary and indispensable parties, such jurisdiction has not been properly invoked. However, appellant contends that since the decree confirming sale was entered on April 25, 1941, the six month period has not run as to that decree. This is true, but an appeal taken after expiration of the time limit on the final decree but before period has run on the decree confirming the sale under that final decree, will not bring up for review the final decree. McCaskill v. Graham, 125 Fla. 418, 170 So. 120; Hemphill *Page 28 v. Welles, 101 Fla. 1088, 132 So. 829.",
"Appellant here has assigned no errors to, nor challenged the validity of, the subsequent decree confirming sale in and of itself, so that it would seem pointless to consider that decree even though the time for an appeal from it has not elapsed. The appeal should, therefore, be dismissed. So ordered. BROWN, C. J., WHITFIELD, BUFORD and ADAMS, JJ., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/3383793/ | 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 § 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 5 and 7 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 5 recites the limitation "the additional monomer" in line 2. There is insufficient antecedent basis for this limitation in the claim. Claim 7 recites the limitation "the polar organic solvent" in line 2. There is insufficient antecedent basis for this limitation in the claim. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 7 recites the broad recitation that the organic solvent is selected from a group of chemicals, and the claim also recites that the solvent is preferably a second list of chemicals which is the
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 1-10 are rejected under 35 U.S.C. 103 as being unpatentable over Satoh et al (US 2014/0216549) in view of Tan et al (6-25-2013, J. Mater. Chem. A, 2013, 1, 10353-10361). With regards to claim 1, Satoh teaches a light concentrating film (abstract) that contains a terpolymer of VDF (vinylidene fluoride), trifluoroethylene (TrFE), and chlorotrifluoroethylene (CTFE) (as applicants cite in the specification as reading on the chlorinated monomer) (0174), an acrylic monomer having multiple acryloyl groups (0196) (reading on the crosslinker) used for crosslinking (0225), a photopolymerization initiator (0231), and an organic solvent (0306-0307). Satoh further teaches the application of the composition as a coating (0338) and polymerizing with UV irradiation (0231 and example 2). Satoh does not teach the composition to contain the polymer to be formed including triethylamine. Tan teaches a terpolymer of P(VDF/TrFE/CTFE) that is made using an organic solvent (DMF) and TEA (triethylamine) in a molar ratio of 80 mol% (VDF)/16 mol% (TrFE)/4 mol% (CTFE) (page 10355). Tan teaches the addition of triethylamine in the production of the terpolymer (page 10355) and the motivation for doing so to be because it dehydrochlorinates the polymer (page 10355). Tan and Satoh are analogous in art that contains terpolymers of VDF/TrFE/CTFE). In light of the benefit above, it would be obvious to one skilled in the art prior to the effective filing date of the present invention to add the triethylamine to the production of the terpolymer, thereby obtaining the present invention. With regards to claim 2, Satoh teaches the terpolymer to include chlorotrifluoroethylene (CTFE) (0174). With regards to claim 3, Satoh teaches the molar ratio of CTFE:TFE units to be 2:98 to 98:2 (reading on 2 to 98 mol% of TFE to CTFE) (0088). With regards to claim 4, Satoh teaches VdF/CTFE/TFE terpolymer to contain at least 50 mol% of the VdF (0178) (reading on 50 mol% or less of the CTFE/TFE). With regards to claim 5, Satoh teaches the amount of an additional monomer unit to be from 0.1 to 10 mol% (0092). With regards to claim 6, Satoh teaches an acrylic monomer having multiple acryloyl groups (0196) (reading on the crosslinker) used for crosslinking (0225). With regards to claim 7, Satoh teaches the organic solvent to include ethyl acetate, methyl acetate, or butyl acetate (esters), acetone (ketone), dimethylsulfoxide (DMSO) (sulfur-containing), and halogenated solvents (0307). With regards to claim 8, Satoh teaches the composition to be used as a film (title). With regards to claim 9, Satoh teaches the film to be used for a device such as microfluid devices, optical devices, and recording media (0327). With regards to claim 10, Satoh is silent on the use of the film to form a dielectric layer in a field-effect transistor. However, when the composition recited in the reference is substantially identical to that of the claims, the claimed properties or function are presumed inherent. MPEP 2112.01. Because the prior art exemplifies Applicant’s claimed composition in that the claimed components in the claimed amounts are used, the claimed physical function relating to the use as a dielectric layer in a field effect transitor are inherently present in the prior art. Absent an objective showing to the contrary, the addition of the claimed physical properties to the claim language fails to provide patentable distinction over the prior art.
Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The following reference contains a terpolymer with a Triethylamine: (Ogumi et al (US 2015/0116835) and Tan et al (7/25/2012, J. Mater. Chem., 22, 18496-18504); the following references teach the process for making the polymer but not the process of using the polymer: Ameduri et al (US 2016/0046746) and Bauer (US 2012/01169039); and the following reference teaches the polymer and use but does not include the triethylamine: Zhao et al (US 2017/0192354). Any inquiry concerning this communication or earlier communications from the examiner should be directed to JESSICA WHITELEY whose telephone number is (571)272-5203. The examiner can normally be reached 8 - 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, Ling-Siu Choi can be reached on 5712721098. 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.
/JESSICA WHITELEY/Primary Examiner, Art Unit 1763 | 2021-11-27T07:34:23 | [
"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 . 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 5 and 7 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 5 recites the limitation \"the additional monomer\" in line 2.",
"There is insufficient antecedent basis for this limitation in the claim. Claim 7 recites the limitation \"the polar organic solvent\" in line 2. There is insufficient antecedent basis for this limitation in the claim. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 7 recites the broad recitation that the organic solvent is selected from a group of chemicals, and the claim also recites that the solvent is preferably a second list of chemicals which is the 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 1-10 are rejected under 35 U.S.C. 103 as being unpatentable over Satoh et al (US 2014/0216549) in view of Tan et al (6-25-2013, J. Mater. Chem. A, 2013, 1, 10353-10361). With regards to claim 1, Satoh teaches a light concentrating film (abstract) that contains a terpolymer of VDF (vinylidene fluoride), trifluoroethylene (TrFE), and chlorotrifluoroethylene (CTFE) (as applicants cite in the specification as reading on the chlorinated monomer) (0174), an acrylic monomer having multiple acryloyl groups (0196) (reading on the crosslinker) used for crosslinking (0225), a photopolymerization initiator (0231), and an organic solvent (0306-0307).",
"Satoh further teaches the application of the composition as a coating (0338) and polymerizing with UV irradiation (0231 and example 2). Satoh does not teach the composition to contain the polymer to be formed including triethylamine. Tan teaches a terpolymer of P(VDF/TrFE/CTFE) that is made using an organic solvent (DMF) and TEA (triethylamine) in a molar ratio of 80 mol% (VDF)/16 mol% (TrFE)/4 mol% (CTFE) (page 10355). Tan teaches the addition of triethylamine in the production of the terpolymer (page 10355) and the motivation for doing so to be because it dehydrochlorinates the polymer (page 10355). Tan and Satoh are analogous in art that contains terpolymers of VDF/TrFE/CTFE). In light of the benefit above, it would be obvious to one skilled in the art prior to the effective filing date of the present invention to add the triethylamine to the production of the terpolymer, thereby obtaining the present invention.",
"With regards to claim 2, Satoh teaches the terpolymer to include chlorotrifluoroethylene (CTFE) (0174). With regards to claim 3, Satoh teaches the molar ratio of CTFE:TFE units to be 2:98 to 98:2 (reading on 2 to 98 mol% of TFE to CTFE) (0088). With regards to claim 4, Satoh teaches VdF/CTFE/TFE terpolymer to contain at least 50 mol% of the VdF (0178) (reading on 50 mol% or less of the CTFE/TFE). With regards to claim 5, Satoh teaches the amount of an additional monomer unit to be from 0.1 to 10 mol% (0092). With regards to claim 6, Satoh teaches an acrylic monomer having multiple acryloyl groups (0196) (reading on the crosslinker) used for crosslinking (0225). With regards to claim 7, Satoh teaches the organic solvent to include ethyl acetate, methyl acetate, or butyl acetate (esters), acetone (ketone), dimethylsulfoxide (DMSO) (sulfur-containing), and halogenated solvents (0307). With regards to claim 8, Satoh teaches the composition to be used as a film (title). With regards to claim 9, Satoh teaches the film to be used for a device such as microfluid devices, optical devices, and recording media (0327). With regards to claim 10, Satoh is silent on the use of the film to form a dielectric layer in a field-effect transistor.",
"However, when the composition recited in the reference is substantially identical to that of the claims, the claimed properties or function are presumed inherent. MPEP 2112.01. Because the prior art exemplifies Applicant’s claimed composition in that the claimed components in the claimed amounts are used, the claimed physical function relating to the use as a dielectric layer in a field effect transitor are inherently present in the prior art. Absent an objective showing to the contrary, the addition of the claimed physical properties to the claim language fails to provide patentable distinction over the prior art. Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The following reference contains a terpolymer with a Triethylamine: (Ogumi et al (US 2015/0116835) and Tan et al (7/25/2012, J. Mater. Chem., 22, 18496-18504); the following references teach the process for making the polymer but not the process of using the polymer: Ameduri et al (US 2016/0046746) and Bauer (US 2012/01169039); and the following reference teaches the polymer and use but does not include the triethylamine: Zhao et al (US 2017/0192354). Any inquiry concerning this communication or earlier communications from the examiner should be directed to JESSICA WHITELEY whose telephone number is (571)272-5203.",
"The examiner can normally be reached 8 - 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, Ling-Siu Choi can be reached on 5712721098. 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. /JESSICA WHITELEY/Primary Examiner, Art Unit 1763"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-11-21.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
MEMORANDUM DECISION AND ORDER REYNOLDS, Chief Judge. The plaintiff Thill Securities Corporation initiated this suit alleging that the New York Stock Exchange’s (hereafter “Exchange”) antirebate rule violated the antitrust laws. Since the suit was initiated, the Antitrust Division of the United States Department of Justice (hereafter “Antitrust Division”) and the Securities and Exchange Commission (hereafter “Commission”) have intervened. The matter is now before me on defendant’s motion pursuant to Rule 37 of the Federal Rules of Civil Procedure to compel the Antitrust Division and the Commission to produce certain documents. On June 30, 1972, the Exchange prepared a “Request for Production of Documents” which was served on the Antitrust Division. The Exchange requested the following documents: 1. All documents in the possession, custody, or control of the Division, other than correspondence, which discuss, analyze, or comment upon the adoption, the reasons for the adoption, or the purposes, justification, intended or probable effect of, or legality under the antitrust laws of the antirebate rule or any rules to similar effect, except memoranda filed with the court in this case. 2. All correspondence by and between the Division and the Exchange, the SEC, the NASD, any exchange registered with the SEC, plaintiff Thill Securities Corporation, Lewis Thill, any broker-dealer, member of Congress, or any other person which discusses, analyzes, or comments upon the purposes, justification, intended or probable effect of, or legality under the antitrust laws of the antirebate rule and/or any rules to similar effect. 3. All reports, studies, economic anal-yses of (including work papers), or commentaries upon, the operation and effects of the antirebate rule, rules to similar effect, and fixed minimum commission rates in the securities industry. 4. All documents which discuss, analyze, or comment upon the aims, objectives, or purposes of the Act or discuss, analyze, or comment upon the criteria for any Exchange rule to be considered “necessary to make the Act work,” except memoranda filed with the courts in this case. 5. All drafts of legal memoranda, briefs, or other proposed submissions prepared in connection with the issues in this action prior to the remand ordered by the Court of Appeals for the Seventh Circuit. Thill Securities Corporation v. New York Stock Exchange, 433 F.2d 264 (7th Cir. 1970), cert. denied 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.2d 532 (1971). On the same date an identical request was made of the Commission. Both the Antitrust Division and the Commission have objected to the production of intra-agency memoranda and communications between the two agencies. They object to the production of intra-agency memoranda because: 1. The documents are irrelevant and their production is not reasonably likely to lead to the discovery of evidence admissible in this action. 2. Many of the memoranda are privileged because they contain opinions, rec*136ommendations, and deliberations which are part of the process by which the agencies’ policies and decisions are formulated. 3. Some of the documents contain the work products of staff attorneys and are, therefore, privileged pursuant to Rule 26(b)(3) of the Federal Rules of Civil Procedure. The same objections are made to the production of correspondence between the agencies, and, in addition, the parties claim these documents are privileged because the relationship between them is one of attorney and client. The most encompassing objection is that the documents being sought are not relevant. Discovery is limited to relevant matters, Rule 26(b)(1) of the Federal Rules of Civil Procedure, and if the desired intra- and inter-agency memoranda are not relevant to the issues in the case, the defendant’s motion should be denied. In order to determine the relevancy, if any, of these documents, it is necessary to understand the nature of the material as well as that of the issues. Essentially, the Exchange is seeking those documents through which it can discover the positions and policies both federal agencies have held or established concerning the Exchange’s antirebate rule; the facts, evidence, and correspondence upon which those positions were based; and the analysis and deliberation employed in developing them. The issues are well defined in this court’s “Order Following Status Conference” signed on July 5, 1972. In this order five “issues to be tried” were listed, four of which are relevant to the matter at hand. They are the Exchange’s claimed immunity from the antitrust laws; the Exchange’s liability under the antitrust laws; the Exchange’s affirmative defenses; and the appropriateness of all requested forms of relief. Given these issues, I cannot find that the information requested by the Exchange is irrelevant. In order to establish immunity from the antitrust laws, the Exchange must be. given the opportunity to show that “the anti-rebate rule must be preserved as ‘necessary to make the Securities Exchange Act work.’ ” Thill Securities Coporation v. New York Stock Exchange, 433 F.2d 264, 270 (7th Cir. 1970), quoting Silver v. New York Stock Exchange, 373 U.S. 341, 357, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963). If the Exchange fails to establish immunity, presuming the plaintiff satisfies its burden, it then may have to convince the court that the antirebate rule does not violate the antitrust laws or that there are affirmative defenses which bar liability for any violations. To satisfy this burden, the Exchange’s attorneys will have to develop a full understanding of the impact of the challenged rule on the securities market and become experts in the relevant parts of the Securities Exchange Act and the antitrust laws. The intervening agencies áre charged with enforcing these laws and may be considered repositories of expertise in these matters. They have specifically gathered evidence and analyzed it in order to arrive at their present positions regarding the legality or illegality of the antirebate rule. I believe that the evidence collected and the expertise of staff personnel which is ascertainable through memoranda is relevant for discovery purposes and would aid the Exchange in preparing its case and in understanding the intervenor’s positions. Therefore this material should be discoverable unless otherwise privileged. The past positions taken by both agencies concerning the legality of the antirebate rule are also relevant to the issue of relief. In determining which forms of relief are appropriate, this court may be requested to take into account the prior legal opinions of the agencies charged with enforcing the laws at issue. If, for example, the Antitrust Division and the Commission have held *137in the past that the challenged rule was not violative of the antitrust laws, that fact would bolster an Exchange’s contention that any violations were committed in good faith. Therefore, the defendant is entitled to receive any memoranda which express a formal opinion by a responsible officer concerning the legality of the antirebate rule, whether such opinion was made public or not. By formal opinion I mean one arrived at after carefully collecting evidence and analyzing the issues as opposed to an “educated guess.” A responsible officer, as that term is used in this opinion, is one who has the authority to formulate departmental policy concerning this matter. Anything short of a formal opinion and the opinions of subordinate staff personnel is irrelevant. This is so because evidence of these opinions, I believe, is less probative than the fact that the Exchange formulated and enforced this rule for several years without any enforcement action having been taken. If factually established, this court may, if requested, take judicial notice of the concerned agencies’ acquiescence. In addition to the opinions of agency personnel, the material desired by the defendant may be divided into two categories — those documents which contain information which is factual in nature or which will lead the reader to relevant factual material, and those which contain the deliberations and analysis of staff personnel. Since both of these categories of information are relevant, it is necessary to determine if either class is privileged. At the outset, it should be clear that this court must balance any public policy against allowing discovery with the movant’s right and need for the desired material in each category. Wood v. Breier, 54 F.R.D. 7, 11 (E.D.Wis. 1972); Olson Rug Company v. N. L. R. B., 291 F.2d 655, 661 (7th Cir. 1961). I feel that the Exchange is entitled to the factual material which the Division and Commission have gathered to aid in the formulation of policies concerning the antirebate rule. Further, they are entitled to those intra- and inter-departmental memoranda which are in the nature of “investigatory or other factual reports.” Boeing Airplane Company v. Coggeshall, 108 U.S.App.D.C. 106, 280 F.2d 654, 660 (1960). In Wood v. Breier, supra, this court recognized the distinction between reports which contain factual material and those which contain policy recommendations. After reviewing the desired material in camera, which should not be encouraged, I ordered its production stating: “All the material in the file is of a factual as opposed to a policy discussion nature * * * ." Wood v. Breier, supra, 54 F.R. D. at 10. This requirement is, however, subject to the work product exemption which is discussed later. The second category of desired material consists of those memoranda which contain the deliberative processes and suggestions of agency staff personnel. The production of this material is objected to on two grounds. First, both agencies claim that some of this material is subject to executive privilege, and second, some of it consists of attorneys’ work products. I feel that this is an appropriate case for a government agency to claim executive privilege. The intraagency communications of personnel in the Justice Department and Commission made pursuant to the development of policy concerning the Exchange’s antirebate rule are at very best only marginally relevant to the issues in this suit. Given this marginal relevance, I feel that those policy reasons supporting the privilege1 *138outweigh any reasons for compelling disclosure. Therefore, those “intra-govern-mental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated” need not be produced if the privilege is properly asserted. Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.C. D.C.1966). In this case, however, the privilege has not been claimd by the proper party nor with the necessary degree of specificity. To the best of my knowledge, executive privilege has always been asserted by the head of the agency claiming the privilege, and such claim has specified with particularity the material which the executive feels is privileged.2 Even if this has not always been the case, it is wise policy under the circumstances of this case. Given the strong federal preference for complete disclosure, a blanket assertion of the privilege without specificity by the attorneys who are going to try the matter is not adequate. The intervening agencies, particularly the Antitrust Division, have assumed a very active role in the prosecution of this case. It is not appropriate for attorneys who are this close to the matter and who, by the nature of the adversary system, have a vested interest in the outcome to decide whether or not relevant material should be privileged. For this reason the material which might otherwise be eligible for nondisclosure because of executive privilege must be produced unless the privilege is properly claimed by the appropriate agency head. This privilege, if claimed, applies to inter-agency mem-oranda as well as those prepared for internal use. Freeman v. Seligson, 132 U.S.App.D.C. 56, 405 F.2d 1326, 1339 (1968); Wood v. Breier, 54 F.R.D. 7, 12 (E.D.Wis.1972). When the deeision-making authority of two agencies overlap, the reasons underlying the existence of executive privilege apply with equal force to those inter-agency memoranda that satisfy the Zeiss criteria. This is true even if the agencies take antagonistic positions. The second objection to the production of intra- and inter-departmental memoranda is that some of them consist of attorneys’ work products. The objection is valid. In Hickman v. Taylor, 329 U.S. 495, 512, 67 S.Ct. 385, 394, 91 L.Ed. 451 (1947), the Supreme Court held that “the general policy against invading the privacy of an attorney’s course of preparation is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production * * The work products of government attorneys are no less protected than those of private attorneys. United States v. Anderson, 34 F.R.D. 518, 522 (D.Colo.1963). Therefore, the burden is on the Exchange to establish that an exception to the general rule is warranted. That burden has not been satisfied and, therefore, I will not order the production of the work products of the Government’s attorneys. However, I consider work product to be material prepared in preparation for this case, not just material gathered with the knowledge that it might be used in some future litigation. The Antitrust Division and the Commission also object to the production of inter-agency memoranda because it is privileged by their relationship as attorney and client. The relationship may exist between two government agencies. In United States v. Anderson, 34 F.R.D. 518 (D.Colo.1963), the court recognized *139an attorney-client relationship between officials of the Small Business Administration and the United States Attorney’s office. The Anderson court, however, limited the scope of the privilege, stating that the “documents [which were sought] are privileged insofar as they do not comment or report on information coming from persons outside the government or from public documents, or are summaries of conferences held with or in the presence of outsiders, and were produced with the idea of obtaining or receiving legal advice.” 34 F.R.D. at 523. Those communications which meet the requirements of the attorney-client privilege, therefore, need not be produced. It is therefore ordered: 1. The Antitrust Division and the Commission will produce those documents which contain any formal opinions of responsible officers about the legality of the Exchange’s antirebate rule. 2. The Antitrust Division and the Commission will produce those intra- and inter-agency memoranda which are factual in nature, or will lead to factual material not otherwise made available to the Exchange, unless such memoranda are the work products of attorneys. 3. The Antitrust Division and the Commission will produce those intra- and inter-agency governmental documents which reflect advisory opinions, recommendations, or deliberations unless executive privilege is properly claimed by the agency head delineating with specificity those documents claimed or the documents are attorneys’ work products. 4. The Antitrust Division and the Commission need not produce those documents which are the work products of staff attorneys working specifically on the case. 5. Those inter-agency memoranda which satisfy the requirements for the existence of an attorney-client privilege in this case need not be produced. 6. All future objections to discovery should contain a request for a specific protective order, if one would be appropriate.
. For a discussion of the policy behind the privilege, see Kaiser Aluminum & Chemical Corp. v. United States, 157 F.Supp. 939, 141 Ct.Cl. 38 (1958). In an analogous situation, the United States Supreme Court discussed the reasons for not subjecting the executive decisionmaking process to scrutiny in United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429 (1941).
. See, e. g., United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953) ; Freeman v. Seligson, 132 U.S. App.D.C. 56, 405 F.2d 1326 (1968) ; Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F.R.D. 318 (D.C.D.C. 1966) ; Kaiser Aluminum & Chemical Corporation v. United States, 157 F. Supp. 939, 141 Ct.Cl. 38 (1958). | 11-26-2022 | [
"MEMORANDUM DECISION AND ORDER REYNOLDS, Chief Judge. The plaintiff Thill Securities Corporation initiated this suit alleging that the New York Stock Exchange’s (hereafter “Exchange”) antirebate rule violated the antitrust laws. Since the suit was initiated, the Antitrust Division of the United States Department of Justice (hereafter “Antitrust Division”) and the Securities and Exchange Commission (hereafter “Commission”) have intervened. The matter is now before me on defendant’s motion pursuant to Rule 37 of the Federal Rules of Civil Procedure to compel the Antitrust Division and the Commission to produce certain documents. On June 30, 1972, the Exchange prepared a “Request for Production of Documents” which was served on the Antitrust Division. The Exchange requested the following documents: 1. All documents in the possession, custody, or control of the Division, other than correspondence, which discuss, analyze, or comment upon the adoption, the reasons for the adoption, or the purposes, justification, intended or probable effect of, or legality under the antitrust laws of the antirebate rule or any rules to similar effect, except memoranda filed with the court in this case.",
"2. All correspondence by and between the Division and the Exchange, the SEC, the NASD, any exchange registered with the SEC, plaintiff Thill Securities Corporation, Lewis Thill, any broker-dealer, member of Congress, or any other person which discusses, analyzes, or comments upon the purposes, justification, intended or probable effect of, or legality under the antitrust laws of the antirebate rule and/or any rules to similar effect. 3. All reports, studies, economic anal-yses of (including work papers), or commentaries upon, the operation and effects of the antirebate rule, rules to similar effect, and fixed minimum commission rates in the securities industry. 4. All documents which discuss, analyze, or comment upon the aims, objectives, or purposes of the Act or discuss, analyze, or comment upon the criteria for any Exchange rule to be considered “necessary to make the Act work,” except memoranda filed with the courts in this case.",
"5. All drafts of legal memoranda, briefs, or other proposed submissions prepared in connection with the issues in this action prior to the remand ordered by the Court of Appeals for the Seventh Circuit. Thill Securities Corporation v. New York Stock Exchange, 433 F.2d 264 (7th Cir. 1970), cert. denied 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.2d 532 (1971). On the same date an identical request was made of the Commission. Both the Antitrust Division and the Commission have objected to the production of intra-agency memoranda and communications between the two agencies. They object to the production of intra-agency memoranda because: 1. The documents are irrelevant and their production is not reasonably likely to lead to the discovery of evidence admissible in this action. 2. Many of the memoranda are privileged because they contain opinions, rec*136ommendations, and deliberations which are part of the process by which the agencies’ policies and decisions are formulated. 3. Some of the documents contain the work products of staff attorneys and are, therefore, privileged pursuant to Rule 26(b)(3) of the Federal Rules of Civil Procedure. The same objections are made to the production of correspondence between the agencies, and, in addition, the parties claim these documents are privileged because the relationship between them is one of attorney and client.",
"The most encompassing objection is that the documents being sought are not relevant. Discovery is limited to relevant matters, Rule 26(b)(1) of the Federal Rules of Civil Procedure, and if the desired intra- and inter-agency memoranda are not relevant to the issues in the case, the defendant’s motion should be denied. In order to determine the relevancy, if any, of these documents, it is necessary to understand the nature of the material as well as that of the issues. Essentially, the Exchange is seeking those documents through which it can discover the positions and policies both federal agencies have held or established concerning the Exchange’s antirebate rule; the facts, evidence, and correspondence upon which those positions were based; and the analysis and deliberation employed in developing them. The issues are well defined in this court’s “Order Following Status Conference” signed on July 5, 1972.",
"In this order five “issues to be tried” were listed, four of which are relevant to the matter at hand. They are the Exchange’s claimed immunity from the antitrust laws; the Exchange’s liability under the antitrust laws; the Exchange’s affirmative defenses; and the appropriateness of all requested forms of relief. Given these issues, I cannot find that the information requested by the Exchange is irrelevant. In order to establish immunity from the antitrust laws, the Exchange must be. given the opportunity to show that “the anti-rebate rule must be preserved as ‘necessary to make the Securities Exchange Act work.’ ” Thill Securities Coporation v. New York Stock Exchange, 433 F.2d 264, 270 (7th Cir.",
"1970), quoting Silver v. New York Stock Exchange, 373 U.S. 341, 357, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963). If the Exchange fails to establish immunity, presuming the plaintiff satisfies its burden, it then may have to convince the court that the antirebate rule does not violate the antitrust laws or that there are affirmative defenses which bar liability for any violations. To satisfy this burden, the Exchange’s attorneys will have to develop a full understanding of the impact of the challenged rule on the securities market and become experts in the relevant parts of the Securities Exchange Act and the antitrust laws. The intervening agencies áre charged with enforcing these laws and may be considered repositories of expertise in these matters. They have specifically gathered evidence and analyzed it in order to arrive at their present positions regarding the legality or illegality of the antirebate rule. I believe that the evidence collected and the expertise of staff personnel which is ascertainable through memoranda is relevant for discovery purposes and would aid the Exchange in preparing its case and in understanding the intervenor’s positions.",
"Therefore this material should be discoverable unless otherwise privileged. The past positions taken by both agencies concerning the legality of the antirebate rule are also relevant to the issue of relief. In determining which forms of relief are appropriate, this court may be requested to take into account the prior legal opinions of the agencies charged with enforcing the laws at issue. If, for example, the Antitrust Division and the Commission have held *137in the past that the challenged rule was not violative of the antitrust laws, that fact would bolster an Exchange’s contention that any violations were committed in good faith. Therefore, the defendant is entitled to receive any memoranda which express a formal opinion by a responsible officer concerning the legality of the antirebate rule, whether such opinion was made public or not. By formal opinion I mean one arrived at after carefully collecting evidence and analyzing the issues as opposed to an “educated guess.” A responsible officer, as that term is used in this opinion, is one who has the authority to formulate departmental policy concerning this matter. Anything short of a formal opinion and the opinions of subordinate staff personnel is irrelevant.",
"This is so because evidence of these opinions, I believe, is less probative than the fact that the Exchange formulated and enforced this rule for several years without any enforcement action having been taken. If factually established, this court may, if requested, take judicial notice of the concerned agencies’ acquiescence. In addition to the opinions of agency personnel, the material desired by the defendant may be divided into two categories — those documents which contain information which is factual in nature or which will lead the reader to relevant factual material, and those which contain the deliberations and analysis of staff personnel. Since both of these categories of information are relevant, it is necessary to determine if either class is privileged.",
"At the outset, it should be clear that this court must balance any public policy against allowing discovery with the movant’s right and need for the desired material in each category. Wood v. Breier, 54 F.R.D. 7, 11 (E.D.Wis. 1972); Olson Rug Company v. N. L. R. B., 291 F.2d 655, 661 (7th Cir. 1961). I feel that the Exchange is entitled to the factual material which the Division and Commission have gathered to aid in the formulation of policies concerning the antirebate rule. Further, they are entitled to those intra- and inter-departmental memoranda which are in the nature of “investigatory or other factual reports.” Boeing Airplane Company v. Coggeshall, 108 U.S.App.D.C.",
"106, 280 F.2d 654, 660 (1960). In Wood v. Breier, supra, this court recognized the distinction between reports which contain factual material and those which contain policy recommendations. After reviewing the desired material in camera, which should not be encouraged, I ordered its production stating: “All the material in the file is of a factual as opposed to a policy discussion nature * * * .\" Wood v. Breier, supra, 54 F.R. D. at 10. This requirement is, however, subject to the work product exemption which is discussed later. The second category of desired material consists of those memoranda which contain the deliberative processes and suggestions of agency staff personnel. The production of this material is objected to on two grounds. First, both agencies claim that some of this material is subject to executive privilege, and second, some of it consists of attorneys’ work products. I feel that this is an appropriate case for a government agency to claim executive privilege. The intraagency communications of personnel in the Justice Department and Commission made pursuant to the development of policy concerning the Exchange’s antirebate rule are at very best only marginally relevant to the issues in this suit. Given this marginal relevance, I feel that those policy reasons supporting the privilege1 *138outweigh any reasons for compelling disclosure. Therefore, those “intra-govern-mental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated” need not be produced if the privilege is properly asserted.",
"Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.C. D.C.1966). In this case, however, the privilege has not been claimd by the proper party nor with the necessary degree of specificity. To the best of my knowledge, executive privilege has always been asserted by the head of the agency claiming the privilege, and such claim has specified with particularity the material which the executive feels is privileged.2 Even if this has not always been the case, it is wise policy under the circumstances of this case. Given the strong federal preference for complete disclosure, a blanket assertion of the privilege without specificity by the attorneys who are going to try the matter is not adequate. The intervening agencies, particularly the Antitrust Division, have assumed a very active role in the prosecution of this case. It is not appropriate for attorneys who are this close to the matter and who, by the nature of the adversary system, have a vested interest in the outcome to decide whether or not relevant material should be privileged.",
"For this reason the material which might otherwise be eligible for nondisclosure because of executive privilege must be produced unless the privilege is properly claimed by the appropriate agency head. This privilege, if claimed, applies to inter-agency mem-oranda as well as those prepared for internal use. Freeman v. Seligson, 132 U.S.App.D.C. 56, 405 F.2d 1326, 1339 (1968); Wood v. Breier, 54 F.R.D. 7, 12 (E.D.Wis.1972). When the deeision-making authority of two agencies overlap, the reasons underlying the existence of executive privilege apply with equal force to those inter-agency memoranda that satisfy the Zeiss criteria. This is true even if the agencies take antagonistic positions. The second objection to the production of intra- and inter-departmental memoranda is that some of them consist of attorneys’ work products. The objection is valid. In Hickman v. Taylor, 329 U.S. 495, 512, 67 S.Ct. 385, 394, 91 L.Ed. 451 (1947), the Supreme Court held that “the general policy against invading the privacy of an attorney’s course of preparation is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production * * The work products of government attorneys are no less protected than those of private attorneys.",
"United States v. Anderson, 34 F.R.D. 518, 522 (D.Colo.1963). Therefore, the burden is on the Exchange to establish that an exception to the general rule is warranted. That burden has not been satisfied and, therefore, I will not order the production of the work products of the Government’s attorneys. However, I consider work product to be material prepared in preparation for this case, not just material gathered with the knowledge that it might be used in some future litigation. The Antitrust Division and the Commission also object to the production of inter-agency memoranda because it is privileged by their relationship as attorney and client. The relationship may exist between two government agencies. In United States v. Anderson, 34 F.R.D.",
"518 (D.Colo.1963), the court recognized *139an attorney-client relationship between officials of the Small Business Administration and the United States Attorney’s office. The Anderson court, however, limited the scope of the privilege, stating that the “documents [which were sought] are privileged insofar as they do not comment or report on information coming from persons outside the government or from public documents, or are summaries of conferences held with or in the presence of outsiders, and were produced with the idea of obtaining or receiving legal advice.” 34 F.R.D. at 523. Those communications which meet the requirements of the attorney-client privilege, therefore, need not be produced.",
"It is therefore ordered: 1. The Antitrust Division and the Commission will produce those documents which contain any formal opinions of responsible officers about the legality of the Exchange’s antirebate rule. 2. The Antitrust Division and the Commission will produce those intra- and inter-agency memoranda which are factual in nature, or will lead to factual material not otherwise made available to the Exchange, unless such memoranda are the work products of attorneys. 3. The Antitrust Division and the Commission will produce those intra- and inter-agency governmental documents which reflect advisory opinions, recommendations, or deliberations unless executive privilege is properly claimed by the agency head delineating with specificity those documents claimed or the documents are attorneys’ work products. 4. The Antitrust Division and the Commission need not produce those documents which are the work products of staff attorneys working specifically on the case. 5. Those inter-agency memoranda which satisfy the requirements for the existence of an attorney-client privilege in this case need not be produced. 6. All future objections to discovery should contain a request for a specific protective order, if one would be appropriate.",
". For a discussion of the policy behind the privilege, see Kaiser Aluminum & Chemical Corp. v. United States, 157 F.Supp. 939, 141 Ct.Cl. 38 (1958). In an analogous situation, the United States Supreme Court discussed the reasons for not subjecting the executive decisionmaking process to scrutiny in United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429 (1941). . See, e. g., United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953) ; Freeman v. Seligson, 132 U.S. App.D.C. 56, 405 F.2d 1326 (1968) ; Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F.R.D. 318 (D.C.D.C. 1966) ; Kaiser Aluminum & Chemical Corporation v. United States, 157 F. Supp.",
"939, 141 Ct.Cl. 38 (1958)."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8785150/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
148 S.W.3d 352 (2003) Sandra Ann HENSLEY, et vir, Charles Hensley, v. Daniel SCOKIN, M.D. and Memorial Anesthesiology Associates. No. M2002-00922-COA-R3-CV. Court of Appeals of Tennessee, Western Section, at Nashville. March 17, 2003 Session. September 12, 2003. Permission to Appeal Denied March 1, 2004. *353 Robert J. Shockey, Nashville, Tennessee, for appellants, Sandra Hensley, et vir, Charles Hensley. C. Bennett Harrison, Jr., and Bryan K. Williams, Nashville, Tennessee, for appellees, Daniel Scokin, M.D. and Memorial Anesthesiology Associates. Permission to Appeal Denied by Supreme Court March 1, 2004.
OPINION HOLLY M. KIRBY, J., delivered the opinion of the court, in which W. FRANK CRAWFORD, P.J., W.S., and DAVID R. FARMER, J., joined. This is a medical battery case. The patient was scheduled to undergo a hysterectomy. Because of prior medical problems, she told the anesthesiologist that she needed him to use nasal intubation instead of oral intubation to anesthetize her for the surgery. The anesthesiologist told her that he would use the type of intubation that he thought was best for her. Ultimately, when the hysterectomy was performed, the patient was intubated through an oral pathway. The patient sued the anesthesiologist for medical battery. The anesthesiologist filed a motion for summary judgment. The trial court found that the patient knew that the anesthesiologist might use oral intubation, and that she authorized the procedure both by signing a consent form prior to the surgery and by not stopping the procedure when she became aware that the anesthesiologist might use oral intubation. Consequently, summary judgment was granted in favor of the anesthesiologist. We reverse, finding that a question of material fact exists as to whether the patient authorized the use of oral intubation. Plaintiff-Appellant Sandra Hensley ("Hensley") was scheduled to have a hysterectomy on January 11, 2000. Because of a preexisting problem with her temporomandibular joint ("TMJ"), Hensley's pain-management physician, Dr. Kenneth E. Bartholomew, and her oral surgeon, Dr. Gregory Anderson ("Dr. Anderson"), advised Hensley to avoid oral intubation during the surgery and instead opt for nasal intubation. On the day of her surgery, Hensley told her anesthesiologist, Defendant-Appellee Dr. Daniel Scokin ("Dr. Scokin") that because of the TMJ problem, he should use nasal intubation instead of oral intubation to anesthetize her for the hysterectomy. During the surgery, Dr. Scokin performed an oral intubation on Hensley in order to anesthetize her. After the surgery, Hensley developed increased TMJ pain. On September 5, 2000, Hensley and her husband filed a lawsuit against Dr. Scokin, alleging "negligence, gross negligence, lack of informed consent, medical battery, and outrageous conduct." Hensley also named as a defendant Dr. Scokin's medical group, Memorial Anesthesiology Associates ("MAA"), asserting that it was liable under the doctrine of respondeat superior. Hensley and her husband sought $6,000,000 in damages. Discovery ensued. In the course of discovery, Hensley's deposition was taken. Hensley testified that, at her request, Dr. Anderson had provided her with x-rays taken prior to her surgery. She asserted that the x-rays showed her pre-existing TMJ problems and demonstrated the need for nasal intubation rather than oral intubation. Hensley said that she also told her gynecologist, Dr. James O. Miller ("Dr. Miller"), that the anesthesiologist would need to use nasal intubation. Hensley understood that Dr. Miller passed this information on to Dr. Scokin's medical group. *354 On the day of her surgery, Hensley signed a consent agreement for the surgery.[1] That same day, Hensley told at least two hospital employees that she would require nasal intubation. Just before her surgery, while Hensley was lying on a gurney in her hospital gown, Dr. Scokin spoke with her. Hensley testified that she gave the x-rays to Dr. Scokin and explained that she would need nasal intubation. Dr. Scokin's response, she said, was to cast the x-rays aside and tell her that he would decide what type of intubation Hensley would receive. Hensley said that, just prior to being medicated for the surgery, she reminded Dr. Scokin of her need for nasal intubation. Contrary to Hensley's request, during the surgery, Dr. Scokin intubated Hensley orally, rather than nasally. Hensley's lawsuit asserted that, as a result of the oral intubation, Dr. Scokin caused "severe injury to Mrs. Hensley's lower teeth" and increased facial pain, as well as swelling and additional "damage to the soft tissue, ligaments, and bone structure of the TMJ." On December 19, 2001, Dr. Scokin and MAA filed a motion for summary judgment. In the motion, Dr. Scokin asserted that he was entitled to summary judgment because Hensley had proffered no expert testimony showing either that he deviated from the standard of medical care or that the deviation resulted in Hensley's alleged injuries. As a result, Dr. Scokin contended, there existed no genuine issue of material fact and he was entitled to judgment as a matter of law. MAA argued that it was entitled to summary judgment on the same basis. In opposition to Dr. Scokin's motion for summary judgment, Hensley argued that her complaint asserted a cause of action for battery, and that expert testimony was not required for such a claim. Hensley contended that the Tennessee Supreme Court has held that "there are circumstances, in the absence of expert proof on the issue of informed consent, where the seriousness of the treatment and the expression of concern by the patient are such that the issue is not one of professional negligence but rather one of traditional battery." In reply, Dr. Scokin argued that Hensley was erroneously "attempting to interchange the two similar but separate and distinct causes of action of informed consent and battery." In support of this assertion, Dr. Scokin discussed Blanchard v. Kellum, 975 S.W.2d 522 (Tenn.1998). In Blanchard, the court observed that in cases where "a doctor performs an unauthorized procedure," a medical battery has occurred, but when "the procedure is authorized but the patient claims that the doctor failed to inform the patient of any or all the risks inherent in the procedure," there is a cause of action for lack of informed consent. Id. at 524. The Blanchard court continued: A simple inquiry can be used to determine whether a case constitutes a medical battery: (1) was the patient aware that the doctor was going to perform the procedure ... and, if so (2) did the patient authorize performance of the procedure? A plaintiff's cause of action may be classified as a medical battery only when answers to either of the above questions are in the negative. If, however, answers to the above questions are affirmative and if the plaintiff is alleging that the doctor failed to inform of any or all risks or aspects associated with a procedure, the patient's cause of action rests on an informed consent theory. *355 Id. Dr. Scokin contended that both of the questions noted above were answered affirmatively, because it was undisputed that Hensley knew that intubation was required and that she signed the consent form for the surgery after having been made aware of the risks and benefits of anesthesia and intubation. Therefore, Dr. Scokin argued, Hensley's cause of action was one of lack of informed consent. Because Hensley had failed to proffer expert testimony, and expert proof is necessary to support a lack of informed consent claim, Dr. Scokin maintained he was entitled to summary judgment. On February 1, 2002, the trial court held a hearing on Dr. Scokin's motion for summary judgment. While there is no transcript of the hearing, the trial court later entered a Memorandum Opinion on the results of the hearing. The Memorandum Opinion states that, during the hearing, Hensley elected to proceed only on the claim of medical battery, which did not require expert testimony. The trial judge cited Blanchard and the two questions set forth in Blanchard to determine whether Hensley's cause of action was for medical battery or informed consent. The Memorandum Opinion then states: "If either question is answered in the affirmative the claim is not one for medical battery, but is rather a claim for lack of informed consent, requiring expert testimony." The trial court then noted that, because Dr. Scokin told Hensley he would choose whether to use oral or nasal intubation and she did not further protest, the first Blanchard question was answered in the affirmative, that is, that Hensley knew that Dr. Scokin was going to use oral intubation. The trial court found further that the answer to the second Blanchard question was also "yes," that is, that Hensley authorized the procedure, given the fact that Hensley signed the consent form after her discussion with Dr. Scokin, and because "she failed to stop the procedure by refusing to undergo the procedure without the guarantee that a nasal intubation would be performed." Thus, the trial court found that the action was not one for medical battery, and granted summary judgment on the issue of medical battery. The trial judge allowed Hensley additional time to disclose an expert to testify regarding her claim for lack of informed consent. No such expert was proffered, and consequently the trial court later entered an order of dismissal, with prejudice, of all of Hensley's claims against Dr. Scokin and MAA. From this order, Hensley appeals. On appeal, Hensley asserts that the trial court erred in granting summary judgment on the issue of medical battery. A motion for summary judgment should be granted when the movant demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Tenn. R. Civ. P. 56.04. The burden of demonstrating that no genuine issue of material fact exists is placed on the party moving for summary judgment. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). On a motion for summary judgment, the court must view the evidence in favor of the nonmoving party in addition to allowing all reasonable inferences in favor of that party, while discarding all countervailing evidence. Id. Summary judgment is only appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995). Because only questions of law are involved, our review of the trial court's grant of summary judgment is de novo on the record before this Court. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn.1997); Bain, 936 S.W.2d at 622. As noted by the trial court, the Tennessee Supreme Court articulated in *356 Blanchard the test to determine whether a cause of action is for medical battery or for lack of informed consent. If the patient knew the procedure would be performed and authorized the procedure, but was not made aware of the inherent risks of the procedure, then the claim is for lack of informed consent. Expert testimony is normally required for a claim of lack of informed consent.[2]Blanchard, 975 S.W.2d at 524. In contrast, if the patient did not know that the procedure was going to be performed, or if the patient did not authorize the performance of the procedure, then the claim is for medical battery. Blanchard v. Kellum, 975 S.W.2d 522, 524 (Tenn.1998); see also Bates v. Metcalf, No. E2001-00358-COA-R3-CV, 2001 WL 1538535, *4-5, 2001 Tenn.App. LEXIS 879, at *11-12 (Tenn.Ct.App. Dec.3, 2001); Church v. Perales, 39 S.W.3d 149, 159 (Tenn.Ct.App.2000); Harris v. Buckspan, 984 S.W.2d 944, 948 (Tenn.Ct.App.1998). For medical battery, the plaintiff is not required to provide expert medical testimony, because the patient's knowledge and awareness is the focus in such a claim. Church, 39 S.W.3d at 159; Blanchard, 975 S.W.2d at 524. In the case at bar, the test in Blanchard was apparently misstated, but regardless, it did not affect the result below because the trial court answered both prongs of the Blanchard test in the affirmative.[3] The trial court found that the answer to the first Blanchard question, whether the patient knew that the physician was going to perform the procedure, was "yes." We agree. Hensley acknowledged that Dr. Scokin told her that he would decide which type of intubation would be used for her surgery. Thus, Hensley was aware that Dr. Scokin might utilize oral intubation. The trial court next found that by signing the consent order and by failing to halt the procedure with the knowledge that Dr. Scokin might use oral intubation, Hensley authorized the use of oral intubation. We respectfully disagree and find that a genuine issue of material fact exists on this issue. Here, Hensley told at least two operating room staff members that she would need nasal intubation rather than oral intubation. Hensley asserts that her gynecologist informed Dr. Scokin's medical group that Hensley would require nasal intubation. She provided Dr. Scokin with x-rays that she asserts demonstrated her need for nasal intubation. Just prior to being medicated for the surgery, Hensley reminded Dr. Scokin that she would need nasal intubation. In addition, the consent form relied on by Dr. Scokin is not included in the record before this court. It is true that, when confronted with Dr. Scokin's statement that he would decide what type of intubation would be used in Hensley's hysterectomy, while lying on the gurney in a hospital gown being prepared for surgery, Hensley did not stop the procedure. While this is pertinent *357 to the factual issue of whether Hensley authorized the use of oral intubation, against the background of Hensley's persistent statements to all of the medical personnel involved in her surgery, we must conclude that it is not dispositive. Based on these circumstances, and considering the evidence in the light most favorable to Hensley, we find that a genuine issue of material fact exists as to whether Hensley authorized Dr. Scokin's use of oral intubation. Consequently, we reverse the trial court's grant of summary judgment in Dr. Scokin's favor. The trial court is affirmed in all other respects. The decision of the trial court is reversed in part and affirmed in part as set forth above. Costs are taxed to the appellees, Daniel Scokin, M.D. and Memorial Anesthesiology Associates, for which execution may issue, if necessary. NOTES [1] It appears from statements in the trial judge's order that the consent form was never part of the trial record. [2] Informed consent cases are controlled by statute in Tennessee. Section 29-26-118 of the Tennessee Code Annotated states:
In a malpractice action, the plaintiff shall prove by evidence as required by § 29-26-115(b) that the defendant did not supply appropriate information to the patient in obtaining informed consent (to the procedure out of which plaintiff's claim allegedly arose) in accordance with the recognized standard of acceptable professional practice in the profession and in the specialty, if any, that the defendant practices in the community in which the defendant practices and in similar communities. Tenn.Code Ann. § 29-26-118 (2000). [3] The trial court stated that "[i]f either [Blanchard] question is answered in the affirmative the claim is not one for medical battery," which is not correct. The correct test is that if either of the questions is answered in the negative, then the cause of action is for medical battery. Blanchard, 975 S.W.2d at 524. | 10-30-2013 | [
"148 S.W.3d 352 (2003) Sandra Ann HENSLEY, et vir, Charles Hensley, v. Daniel SCOKIN, M.D. and Memorial Anesthesiology Associates. No. M2002-00922-COA-R3-CV. Court of Appeals of Tennessee, Western Section, at Nashville. March 17, 2003 Session. September 12, 2003. Permission to Appeal Denied March 1, 2004. *353 Robert J. Shockey, Nashville, Tennessee, for appellants, Sandra Hensley, et vir, Charles Hensley. C. Bennett Harrison, Jr., and Bryan K. Williams, Nashville, Tennessee, for appellees, Daniel Scokin, M.D. and Memorial Anesthesiology Associates. Permission to Appeal Denied by Supreme Court March 1, 2004. OPINION HOLLY M. KIRBY, J., delivered the opinion of the court, in which W. FRANK CRAWFORD, P.J., W.S., and DAVID R. FARMER, J., joined.",
"This is a medical battery case. The patient was scheduled to undergo a hysterectomy. Because of prior medical problems, she told the anesthesiologist that she needed him to use nasal intubation instead of oral intubation to anesthetize her for the surgery. The anesthesiologist told her that he would use the type of intubation that he thought was best for her. Ultimately, when the hysterectomy was performed, the patient was intubated through an oral pathway. The patient sued the anesthesiologist for medical battery.",
"The anesthesiologist filed a motion for summary judgment. The trial court found that the patient knew that the anesthesiologist might use oral intubation, and that she authorized the procedure both by signing a consent form prior to the surgery and by not stopping the procedure when she became aware that the anesthesiologist might use oral intubation. Consequently, summary judgment was granted in favor of the anesthesiologist. We reverse, finding that a question of material fact exists as to whether the patient authorized the use of oral intubation. Plaintiff-Appellant Sandra Hensley (\"Hensley\") was scheduled to have a hysterectomy on January 11, 2000.",
"Because of a preexisting problem with her temporomandibular joint (\"TMJ\"), Hensley's pain-management physician, Dr. Kenneth E. Bartholomew, and her oral surgeon, Dr. Gregory Anderson (\"Dr. Anderson\"), advised Hensley to avoid oral intubation during the surgery and instead opt for nasal intubation. On the day of her surgery, Hensley told her anesthesiologist, Defendant-Appellee Dr. Daniel Scokin (\"Dr. Scokin\") that because of the TMJ problem, he should use nasal intubation instead of oral intubation to anesthetize her for the hysterectomy. During the surgery, Dr. Scokin performed an oral intubation on Hensley in order to anesthetize her. After the surgery, Hensley developed increased TMJ pain.",
"On September 5, 2000, Hensley and her husband filed a lawsuit against Dr. Scokin, alleging \"negligence, gross negligence, lack of informed consent, medical battery, and outrageous conduct.\" Hensley also named as a defendant Dr. Scokin's medical group, Memorial Anesthesiology Associates (\"MAA\"), asserting that it was liable under the doctrine of respondeat superior. Hensley and her husband sought $6,000,000 in damages. Discovery ensued. In the course of discovery, Hensley's deposition was taken. Hensley testified that, at her request, Dr. Anderson had provided her with x-rays taken prior to her surgery. She asserted that the x-rays showed her pre-existing TMJ problems and demonstrated the need for nasal intubation rather than oral intubation. Hensley said that she also told her gynecologist, Dr. James O. Miller (\"Dr. Miller\"), that the anesthesiologist would need to use nasal intubation.",
"Hensley understood that Dr. Miller passed this information on to Dr. Scokin's medical group. *354 On the day of her surgery, Hensley signed a consent agreement for the surgery. [1] That same day, Hensley told at least two hospital employees that she would require nasal intubation. Just before her surgery, while Hensley was lying on a gurney in her hospital gown, Dr. Scokin spoke with her. Hensley testified that she gave the x-rays to Dr. Scokin and explained that she would need nasal intubation. Dr. Scokin's response, she said, was to cast the x-rays aside and tell her that he would decide what type of intubation Hensley would receive. Hensley said that, just prior to being medicated for the surgery, she reminded Dr. Scokin of her need for nasal intubation. Contrary to Hensley's request, during the surgery, Dr. Scokin intubated Hensley orally, rather than nasally.",
"Hensley's lawsuit asserted that, as a result of the oral intubation, Dr. Scokin caused \"severe injury to Mrs. Hensley's lower teeth\" and increased facial pain, as well as swelling and additional \"damage to the soft tissue, ligaments, and bone structure of the TMJ.\" On December 19, 2001, Dr. Scokin and MAA filed a motion for summary judgment. In the motion, Dr. Scokin asserted that he was entitled to summary judgment because Hensley had proffered no expert testimony showing either that he deviated from the standard of medical care or that the deviation resulted in Hensley's alleged injuries. As a result, Dr. Scokin contended, there existed no genuine issue of material fact and he was entitled to judgment as a matter of law. MAA argued that it was entitled to summary judgment on the same basis. In opposition to Dr. Scokin's motion for summary judgment, Hensley argued that her complaint asserted a cause of action for battery, and that expert testimony was not required for such a claim.",
"Hensley contended that the Tennessee Supreme Court has held that \"there are circumstances, in the absence of expert proof on the issue of informed consent, where the seriousness of the treatment and the expression of concern by the patient are such that the issue is not one of professional negligence but rather one of traditional battery.\" In reply, Dr. Scokin argued that Hensley was erroneously \"attempting to interchange the two similar but separate and distinct causes of action of informed consent and battery.\" In support of this assertion, Dr. Scokin discussed Blanchard v. Kellum, 975 S.W.2d 522 (Tenn.1998). In Blanchard, the court observed that in cases where \"a doctor performs an unauthorized procedure,\" a medical battery has occurred, but when \"the procedure is authorized but the patient claims that the doctor failed to inform the patient of any or all the risks inherent in the procedure,\" there is a cause of action for lack of informed consent.",
"Id. at 524. The Blanchard court continued: A simple inquiry can be used to determine whether a case constitutes a medical battery: (1) was the patient aware that the doctor was going to perform the procedure ... and, if so (2) did the patient authorize performance of the procedure? A plaintiff's cause of action may be classified as a medical battery only when answers to either of the above questions are in the negative. If, however, answers to the above questions are affirmative and if the plaintiff is alleging that the doctor failed to inform of any or all risks or aspects associated with a procedure, the patient's cause of action rests on an informed consent theory. *355 Id. Dr. Scokin contended that both of the questions noted above were answered affirmatively, because it was undisputed that Hensley knew that intubation was required and that she signed the consent form for the surgery after having been made aware of the risks and benefits of anesthesia and intubation.",
"Therefore, Dr. Scokin argued, Hensley's cause of action was one of lack of informed consent. Because Hensley had failed to proffer expert testimony, and expert proof is necessary to support a lack of informed consent claim, Dr. Scokin maintained he was entitled to summary judgment. On February 1, 2002, the trial court held a hearing on Dr. Scokin's motion for summary judgment. While there is no transcript of the hearing, the trial court later entered a Memorandum Opinion on the results of the hearing. The Memorandum Opinion states that, during the hearing, Hensley elected to proceed only on the claim of medical battery, which did not require expert testimony.",
"The trial judge cited Blanchard and the two questions set forth in Blanchard to determine whether Hensley's cause of action was for medical battery or informed consent. The Memorandum Opinion then states: \"If either question is answered in the affirmative the claim is not one for medical battery, but is rather a claim for lack of informed consent, requiring expert testimony.\" The trial court then noted that, because Dr. Scokin told Hensley he would choose whether to use oral or nasal intubation and she did not further protest, the first Blanchard question was answered in the affirmative, that is, that Hensley knew that Dr. Scokin was going to use oral intubation. The trial court found further that the answer to the second Blanchard question was also \"yes,\" that is, that Hensley authorized the procedure, given the fact that Hensley signed the consent form after her discussion with Dr. Scokin, and because \"she failed to stop the procedure by refusing to undergo the procedure without the guarantee that a nasal intubation would be performed.\"",
"Thus, the trial court found that the action was not one for medical battery, and granted summary judgment on the issue of medical battery. The trial judge allowed Hensley additional time to disclose an expert to testify regarding her claim for lack of informed consent. No such expert was proffered, and consequently the trial court later entered an order of dismissal, with prejudice, of all of Hensley's claims against Dr. Scokin and MAA. From this order, Hensley appeals. On appeal, Hensley asserts that the trial court erred in granting summary judgment on the issue of medical battery. A motion for summary judgment should be granted when the movant demonstrates \"that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\" Tenn. R. Civ.",
"P. 56.04. The burden of demonstrating that no genuine issue of material fact exists is placed on the party moving for summary judgment. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). On a motion for summary judgment, the court must view the evidence in favor of the nonmoving party in addition to allowing all reasonable inferences in favor of that party, while discarding all countervailing evidence. Id. Summary judgment is only appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion.",
"Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995). Because only questions of law are involved, our review of the trial court's grant of summary judgment is de novo on the record before this Court. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn.1997); Bain, 936 S.W.2d at 622. As noted by the trial court, the Tennessee Supreme Court articulated in *356 Blanchard the test to determine whether a cause of action is for medical battery or for lack of informed consent. If the patient knew the procedure would be performed and authorized the procedure, but was not made aware of the inherent risks of the procedure, then the claim is for lack of informed consent.",
"Expert testimony is normally required for a claim of lack of informed consent. [2]Blanchard, 975 S.W.2d at 524. In contrast, if the patient did not know that the procedure was going to be performed, or if the patient did not authorize the performance of the procedure, then the claim is for medical battery. Blanchard v. Kellum, 975 S.W.2d 522, 524 (Tenn.1998); see also Bates v. Metcalf, No. E2001-00358-COA-R3-CV, 2001 WL 1538535, *4-5, 2001 Tenn.App. LEXIS 879, at *11-12 (Tenn.Ct.App. Dec.3, 2001); Church v. Perales, 39 S.W.3d 149, 159 (Tenn.Ct.App.2000); Harris v. Buckspan, 984 S.W.2d 944, 948 (Tenn.Ct.App.1998).",
"For medical battery, the plaintiff is not required to provide expert medical testimony, because the patient's knowledge and awareness is the focus in such a claim. Church, 39 S.W.3d at 159; Blanchard, 975 S.W.2d at 524. In the case at bar, the test in Blanchard was apparently misstated, but regardless, it did not affect the result below because the trial court answered both prongs of the Blanchard test in the affirmative. [3] The trial court found that the answer to the first Blanchard question, whether the patient knew that the physician was going to perform the procedure, was \"yes.\" We agree. Hensley acknowledged that Dr. Scokin told her that he would decide which type of intubation would be used for her surgery.",
"Thus, Hensley was aware that Dr. Scokin might utilize oral intubation. The trial court next found that by signing the consent order and by failing to halt the procedure with the knowledge that Dr. Scokin might use oral intubation, Hensley authorized the use of oral intubation. We respectfully disagree and find that a genuine issue of material fact exists on this issue. Here, Hensley told at least two operating room staff members that she would need nasal intubation rather than oral intubation. Hensley asserts that her gynecologist informed Dr. Scokin's medical group that Hensley would require nasal intubation. She provided Dr. Scokin with x-rays that she asserts demonstrated her need for nasal intubation. Just prior to being medicated for the surgery, Hensley reminded Dr. Scokin that she would need nasal intubation. In addition, the consent form relied on by Dr. Scokin is not included in the record before this court. It is true that, when confronted with Dr. Scokin's statement that he would decide what type of intubation would be used in Hensley's hysterectomy, while lying on the gurney in a hospital gown being prepared for surgery, Hensley did not stop the procedure. While this is pertinent *357 to the factual issue of whether Hensley authorized the use of oral intubation, against the background of Hensley's persistent statements to all of the medical personnel involved in her surgery, we must conclude that it is not dispositive.",
"Based on these circumstances, and considering the evidence in the light most favorable to Hensley, we find that a genuine issue of material fact exists as to whether Hensley authorized Dr. Scokin's use of oral intubation. Consequently, we reverse the trial court's grant of summary judgment in Dr. Scokin's favor. The trial court is affirmed in all other respects. The decision of the trial court is reversed in part and affirmed in part as set forth above. Costs are taxed to the appellees, Daniel Scokin, M.D. and Memorial Anesthesiology Associates, for which execution may issue, if necessary. NOTES [1] It appears from statements in the trial judge's order that the consent form was never part of the trial record. [2] Informed consent cases are controlled by statute in Tennessee. Section 29-26-118 of the Tennessee Code Annotated states: In a malpractice action, the plaintiff shall prove by evidence as required by § 29-26-115(b) that the defendant did not supply appropriate information to the patient in obtaining informed consent (to the procedure out of which plaintiff's claim allegedly arose) in accordance with the recognized standard of acceptable professional practice in the profession and in the specialty, if any, that the defendant practices in the community in which the defendant practices and in similar communities.",
"Tenn.Code Ann. § 29-26-118 (2000). [3] The trial court stated that \"[i]f either [Blanchard] question is answered in the affirmative the claim is not one for medical battery,\" which is not correct. The correct test is that if either of the questions is answered in the negative, then the cause of action is for medical battery. Blanchard, 975 S.W.2d at 524."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1770479/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
471 F.2d 715 Helen O. LITTLE, Plaintiff-Appellant,v.Elliot L. RICHARDSON, Secretary of Health, Education andWelfare, Defendant-Appellee. No. 71-2794. United States Court of Appeals,Ninth Circuit. Dec. 29, 1972.
John C. Smith, Jr., of Levy & Van Bourg, Oakland, Cal., for plaintiff-appellant. James L. Browning, Jr., U. S. Atty., Brian C. Denton, Asst. U. S. Atty., San Francisco, Cal., for defendant-appellee. Before MERRILL, ELY, and GOODWIN, Circuit Judges. PER CURIAM:
1 In 1962 appellant applied for Social Security disability benefits, asserting disability as of December 31, 1962. Benefits were denied. On August 29, 1968, appellant filed another application, again asserting disability as of December 31, 1962. She was granted hearing at which she presented additional evidence. Again benefits were denied. Review was sought in the District Court pursuant to 42 U.S.C. Sec. 405(g).1 Summary judgment was granted in favor of the Secretary and this appeal followed.
2 The question presented is whether substantial evidence supports the Secretary's determination that appellant was not disabled within the meaning of the Act as of December 31, 1962. The Secretary contends that substantial evidence presented at the first hearing supported his decision made at that time and that evidence presented at the second hearing, at most, showed continuing deterioration of appellant's condition since December 31, 1962, and did not materially bear on her condition prior to that date. Such was the holding of the hearing examiner. We agree.
3 Appellant contends that errors on the face of the record of the first hearing precluded the Secretary from giving weight to the decision made at that time. She contends first that the hearing examiner at the first hearing, in evaluating her disability in light of her educational background, erroneously proceeded on the belief that she had two-and-one-half years of college education, when in fact she had had no more than an eighthgrade education.2 However, at the second hearing the true facts were established and were taken into consideration by the examiner in evaluating appellant's disability. He concluded that the true educational facts would not affect the original decision.
4 Second, appellant contends that the hearing examiner at the first hearing failed to attach sufficient weight to a state determination of disability. It appears from the record, however, that the hearing examiner knew of the state proceedings and decision (although he did not have the findings before him) and considered the same infirmities as had been considered by the state. He simply came to a different conclusion. On this contention of appellant, the District Court ruled: "It is obvious that reasonable men could differ as to plaintiff's disability in December, 1962. Reasonable men did, in fact, differ herein. Given that the State decision is in no way binding on defendants, and given that both agencies herein have had the same evidence before them, the failure to give more weight to the State findings is not clear 'error on the face of the record."' We agree.
5 Judgment affirmed.
1 While the hearing examiner held that reopening of the earlier decision was not warranted on appellant's showing, it appears from the record that he did in fact make a de novo determination on the merits on review of the entire record, including both hearings. Thus a final decision reviewable under 42 U.S.C. Sec. 405 (g) was entered and we need not face the question of reviewability of an order denying reopening. See Kasparek v. Gardner, 409 F.2d 214 (9th Cir. 1969)
2 This error was invited by appellant who gave this misinformation in her application for benefits | 08-23-2011 | [
"471 F.2d 715 Helen O. LITTLE, Plaintiff-Appellant,v.Elliot L. RICHARDSON, Secretary of Health, Education andWelfare, Defendant-Appellee. No. 71-2794. United States Court of Appeals,Ninth Circuit. Dec. 29, 1972. John C. Smith, Jr., of Levy & Van Bourg, Oakland, Cal., for plaintiff-appellant. James L. Browning, Jr., U. S. Atty., Brian C. Denton, Asst. U. S. Atty., San Francisco, Cal., for defendant-appellee. Before MERRILL, ELY, and GOODWIN, Circuit Judges. PER CURIAM: 1 In 1962 appellant applied for Social Security disability benefits, asserting disability as of December 31, 1962. Benefits were denied. On August 29, 1968, appellant filed another application, again asserting disability as of December 31, 1962.",
"She was granted hearing at which she presented additional evidence. Again benefits were denied. Review was sought in the District Court pursuant to 42 U.S.C. Sec. 405(g).1 Summary judgment was granted in favor of the Secretary and this appeal followed. 2 The question presented is whether substantial evidence supports the Secretary's determination that appellant was not disabled within the meaning of the Act as of December 31, 1962. The Secretary contends that substantial evidence presented at the first hearing supported his decision made at that time and that evidence presented at the second hearing, at most, showed continuing deterioration of appellant's condition since December 31, 1962, and did not materially bear on her condition prior to that date.",
"Such was the holding of the hearing examiner. We agree. 3 Appellant contends that errors on the face of the record of the first hearing precluded the Secretary from giving weight to the decision made at that time. She contends first that the hearing examiner at the first hearing, in evaluating her disability in light of her educational background, erroneously proceeded on the belief that she had two-and-one-half years of college education, when in fact she had had no more than an eighthgrade education.2 However, at the second hearing the true facts were established and were taken into consideration by the examiner in evaluating appellant's disability. He concluded that the true educational facts would not affect the original decision. 4 Second, appellant contends that the hearing examiner at the first hearing failed to attach sufficient weight to a state determination of disability. It appears from the record, however, that the hearing examiner knew of the state proceedings and decision (although he did not have the findings before him) and considered the same infirmities as had been considered by the state. He simply came to a different conclusion. On this contention of appellant, the District Court ruled: \"It is obvious that reasonable men could differ as to plaintiff's disability in December, 1962.",
"Reasonable men did, in fact, differ herein. Given that the State decision is in no way binding on defendants, and given that both agencies herein have had the same evidence before them, the failure to give more weight to the State findings is not clear 'error on the face of the record.\"' We agree. 5 Judgment affirmed. 1 While the hearing examiner held that reopening of the earlier decision was not warranted on appellant's showing, it appears from the record that he did in fact make a de novo determination on the merits on review of the entire record, including both hearings. Thus a final decision reviewable under 42 U.S.C.",
"Sec. 405 (g) was entered and we need not face the question of reviewability of an order denying reopening. See Kasparek v. Gardner, 409 F.2d 214 (9th Cir. 1969) 2 This error was invited by appellant who gave this misinformation in her application for benefits"
]
| https://www.courtlistener.com/api/rest/v3/opinions/307667/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Name: Commission Regulation (EC) No 491/2001 of 12 March 2001 amending Regulation (EC) No 1608/2000 laying down transitional measures pending the definitive measures implementing Regulation (EC) No 1493/1999 on the common organisation of the market in wine Type: Regulation Subject Matter: agricultural policy; beverages and sugar; agricultural activity; trade; European construction Date Published: nan
Avis juridique important|32001R0491Commission Regulation (EC) No 491/2001 of 12 March 2001 amending Regulation (EC) No 1608/2000 laying down transitional measures pending the definitive measures implementing Regulation (EC) No 1493/1999 on the common organisation of the market in wine Official Journal L 071 , 13/03/2001 P. 0003 - 0004Commission Regulation (EC) No 491/2001of 12 March 2001amending Regulation (EC) No 1608/2000 laying down transitional measures pending the definitive measures implementing Regulation (EC) No 1493/1999 on the common organisation of the market in wineTHE COMMISSION OF THE EUROPEAN COMMUNITIES,Having regard to the Treaty establishing the European Community,Having regard to Council Regulation (EC) No 1493/1999 of 17 May 1999 on the common organisation of the market in wine(1), as last amended by Regulation (EC) No 2826/2000(2), and in particular Article 80 thereof,Whereas:(1) Commission Regulation (EC) No 1608/2000(3), as last amended by Regulation (EC) No 2631/2000(4), extends until 31 January 2001 the application of certain Council provisions repealed by Article 81 of Regulation (EC) No 1493/1999 pending finalisation and adoption of the definitive measures to implement that Regulation. It lays down in particular that Articles 1 and 3 of, and the Annex to, Council Regulation (EEC) No 1873/84 of 28 June 1984 authorising the offer or disposal for direct human consumption of certain imported wines which may have undergone oenological processes not provided for in Regulation (EEC) No 337/79(5), as last amended by Regulation (EC) No 2839/98(6), should remain in force until 31 January 2001. However, Regulation (EEC) No 1873/84 stipulates that these provisions would remain in force until 31 December 2003. Under Article 45(2) of Regulation (EC) No 1493/1999, the Commission presented a proposal for a Council regulation authorising until 31 December 2003 the offer or disposal for direct human consumption of certain imported wines which may have undergone oenological processes not provided for in Regulation (EC) No 1493/1999, which applies similar provisions on the same terms as those laid down in Regulation (EEC) No 1873/84. However, it seems likely that the Council will not be able to adopt this proposal before 31 January 2001. To enable the Council to adopt this proposal without interrupting the status quo where the products referred to in Articles 1 and 3 of, and the Annex to Regulation (EEC) No 1873/84 are concerned, these provisions should be maintained until the Council takes a decision, or until 31 December 2003 at the latest. This Regulation must apply from 1 February 2001 for the same reason.(2) The extra transitional period does not affect the implementation of the bulk of the reform of the common organisation of the market in wine on the date set by the Council, since the main points concerning the areas covered by those Regulations have been settled in Regulation (EC) No 1493/1999 or in the implementing regulations already adopted.(3) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Wine,HAS ADOPTED THIS REGULATION:Article 1Regulation (EC) No 1608/2000 is amended as follows:1. The following sentence is added to Article 1:"The provisions listed in Part C of the Annex shall remain applicable until such time as the Council adopts the Commission proposal for a Council regulation authorising the offer or disposal for direct human consumption of certain imported wines which may have undergone oenological processes not provided for in Regulation (EC) No 1493/1999 and until 31 December 2003 at the latest."2. The Annex is replaced by the Annex to this Regulation.Article 2This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.It shall apply from 1 February 2001.This Regulation shall be binding in its entirety and directly applicable in all Member States.Done at Brussels, 12 March 2001.For the CommissionFranz FischlerMember of the Commission(1) OJ L 179, 14.7.1999, p. 1.(2) OJ L 328, 23.12.2000, p. 2.(3) OJ L 185, 25.7.2000, p. 24.(4) OJ L 302, 1.12.2000, p. 36.(5) OJ L 176, 3.7.1984, p. 6.(6) OJ L 354, 30.12.1998, p. 12.ANNEXPART AList of provisions in force until 31 January 2001:(a) Regulation (EEC) No 2390/89(b) Articles 1 and 2 of Regulation (EEC) No 2391/89(c) Articles 3, 31 and 71 of Regulation (EEC) No 822/87PART BList of provisions in force until 31 March 2001:(a) Article 15(2) and (7) of Regulation (EEC) No 823/87(b) Regulation (EEC) No 2392/89(c) Article 2 of Regulation (EEC) No 3895/91(d) Articles 8, 9 and 11 of Regulation (EEC) No 2333/92(e) Article 72 of Regulation (EEC) No 822/87PART CList of provisions in force until 31 December 2003:Articles 1 and 3 of Regulation (EEC) No 1873/84, and the Annex hereto. | nan | [
"Name: Commission Regulation (EC) No 491/2001 of 12 March 2001 amending Regulation (EC) No 1608/2000 laying down transitional measures pending the definitive measures implementing Regulation (EC) No 1493/1999 on the common organisation of the market in wine Type: Regulation Subject Matter: agricultural policy; beverages and sugar; agricultural activity; trade; European construction Date Published: nan Avis juridique important|32001R0491Commission Regulation (EC) No 491/2001 of 12 March 2001 amending Regulation (EC) No 1608/2000 laying down transitional measures pending the definitive measures implementing Regulation (EC) No 1493/1999 on the common organisation of the market in wine Official Journal L 071 , 13/03/2001 P. 0003 - 0004Commission Regulation (EC) No 491/2001of 12 March 2001amending Regulation (EC) No 1608/2000 laying down transitional measures pending the definitive measures implementing Regulation (EC) No 1493/1999 on the common organisation of the market in wineTHE COMMISSION OF THE EUROPEAN COMMUNITIES,Having regard to the Treaty establishing the European Community,Having regard to Council Regulation (EC) No 1493/1999 of 17 May 1999 on the common organisation of the market in wine(1), as last amended by Regulation (EC) No 2826/2000(2), and in particular Article 80 thereof,Whereas:(1) Commission Regulation (EC) No 1608/2000(3), as last amended by Regulation (EC) No 2631/2000(4), extends until 31 January 2001 the application of certain Council provisions repealed by Article 81 of Regulation (EC) No 1493/1999 pending finalisation and adoption of the definitive measures to implement that Regulation.",
"It lays down in particular that Articles 1 and 3 of, and the Annex to, Council Regulation (EEC) No 1873/84 of 28 June 1984 authorising the offer or disposal for direct human consumption of certain imported wines which may have undergone oenological processes not provided for in Regulation (EEC) No 337/79(5), as last amended by Regulation (EC) No 2839/98(6), should remain in force until 31 January 2001. However, Regulation (EEC) No 1873/84 stipulates that these provisions would remain in force until 31 December 2003.",
"Under Article 45(2) of Regulation (EC) No 1493/1999, the Commission presented a proposal for a Council regulation authorising until 31 December 2003 the offer or disposal for direct human consumption of certain imported wines which may have undergone oenological processes not provided for in Regulation (EC) No 1493/1999, which applies similar provisions on the same terms as those laid down in Regulation (EEC) No 1873/84. However, it seems likely that the Council will not be able to adopt this proposal before 31 January 2001. To enable the Council to adopt this proposal without interrupting the status quo where the products referred to in Articles 1 and 3 of, and the Annex to Regulation (EEC) No 1873/84 are concerned, these provisions should be maintained until the Council takes a decision, or until 31 December 2003 at the latest.",
"This Regulation must apply from 1 February 2001 for the same reason. (2) The extra transitional period does not affect the implementation of the bulk of the reform of the common organisation of the market in wine on the date set by the Council, since the main points concerning the areas covered by those Regulations have been settled in Regulation (EC) No 1493/1999 or in the implementing regulations already adopted. (3) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Wine,HAS ADOPTED THIS REGULATION:Article 1Regulation (EC) No 1608/2000 is amended as follows:1. The following sentence is added to Article 1:\"The provisions listed in Part C of the Annex shall remain applicable until such time as the Council adopts the Commission proposal for a Council regulation authorising the offer or disposal for direct human consumption of certain imported wines which may have undergone oenological processes not provided for in Regulation (EC) No 1493/1999 and until 31 December 2003 at the latest.\"2.",
"The Annex is replaced by the Annex to this Regulation.Article 2This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.It shall apply from 1 February 2001.This Regulation shall be binding in its entirety and directly applicable in all Member States.Done at Brussels, 12 March 2001.For the CommissionFranz FischlerMember of the Commission(1) OJ L 179, 14.7.1999, p. 1. (2) OJ L 328, 23.12.2000, p. 2. (3) OJ L 185, 25.7.2000, p. 24. (4) OJ L 302, 1.12.2000, p. 36.",
"(5) OJ L 176, 3.7.1984, p. 6. (6) OJ L 354, 30.12.1998, p. 12.ANNEXPART AList of provisions in force until 31 January 2001:(a) Regulation (EEC) No 2390/89(b) Articles 1 and 2 of Regulation (EEC) No 2391/89(c) Articles 3, 31 and 71 of Regulation (EEC) No 822/87PART BList of provisions in force until 31 March 2001:(a) Article 15(2) and (7) of Regulation (EEC) No 823/87(b) Regulation (EEC) No 2392/89(c) Article 2 of Regulation (EEC) No 3895/91(d) Articles 8, 9 and 11 of Regulation (EEC) No 2333/92(e) Article 72 of Regulation (EEC) No 822/87PART CList of provisions in force until 31 December 2003:Articles 1 and 3 of Regulation (EEC) No 1873/84, and the Annex hereto."
]
| https://dataverse.harvard.edu/dataset.xhtml?persistentId=doi:10.7910/DVN/0EGYWY | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION
Election/Restriction
REQUIREMENT FOR UNITY OF INVENTION As provided in 37 CFR 1.475(a), a national stage application shall relate to one invention only or to a group of inventions so linked as to form a single general inventive concept (“requirement of unity of invention”). Where a group of inventions is claimed in a national stage application, the requirement of unity of invention shall be fulfilled only when there is a technical relationship among those inventions involving one or more of the same or corresponding special technical features. The expression “special technical features” shall mean those technical features that define a contribution which each of the claimed inventions, considered as a whole, makes over the prior art. The determination whether a group of inventions is so linked as to form a single general inventive concept shall be made without regard to whether the inventions are claimed in separate claims or as alternatives within a single claim. See 37 CFR 1.475(e). When Claims Are Directed to Multiple Categories of Inventions: As provided in 37 CFR 1.475 (b), a national stage application containing claims to different categories of invention will be considered to have unity of invention if the claims are drawn only to one of the following combinations of categories: (1) A product and a process specially adapted for the manufacture of said product; or (2) A product and a process of use of said product; or (3) A product, a process specially adapted for the manufacture of the said product, and a use of the said product; or (4) A process and an apparatus or means specifically designed for carrying out the said process; or (5) A product, a process specially adapted for the manufacture of the said product, and an apparatus or means specifically designed for carrying out the said process. Otherwise, unity of invention might not be present. See 37 CFR 1.475 (c). Restriction is required under 35 U.S.C. 121 and 372. This application contains the following inventions or groups of inventions which are not so linked as to form a single general inventive concept under PCT Rule 13.1. In accordance with 37 CFR 1.499, applicant is required, in reply to this action, to elect a single invention to which the claims must be restricted. Group I, claims 1-12, drawn to a method of identifying a subject. Group II, claim 14, drawn to a device for analyzing. Group III, claim 15, drawn to a kit for detecting microRNA-574-5p. Group IV, claim 16, drawn to a method of treating a subject. This application contains claims directed to more than one species of the generic invention. These species are deemed to lack unity of invention because they are not so linked as to form a single general inventive concept under PCT Rule 13.1. The species are as follows: Group I is generic and is directed to the following independent species: a prostaglandin E-dependent tumor, a susceptible subject, and an inhibitor of prostaglandin E formation. Each tumor type for example, lung cancer, colon cancer, pancreatic cancer and so forth is an independent species. Each subject, that is the genetic or phenotypic characteristic of the patient and the cancer is an independent species, whether the patient is a mammal, a human, a canine, a mouse. Also each inhibitor is an independent species, as to where in the pathway inhibition occurs, it might be indirect or direct. Group II is generic and is directed to the following independent species: an analyzing unit and an evaluation unit. Group III is generic and is directed to the following independent species: a detection agent. Group IV is generic and is directed to the following independent species: a susceptible subject, and an inhibitor of prostaglandin E formation. Applicant is required, in reply to this action, to elect a single species to which the claims shall be restricted if no generic claim is finally held to be allowable. The reply must also identify the claims readable on the elected species, including any claims subsequently added. An argument that a claim is allowable or that all claims are generic is considered non-responsive unless accompanied by an election. Upon the allowance of a generic claim, applicant will be entitled to consideration of claims to additional species which are written in dependent form or otherwise require all the limitations of an allowed generic claim. Currently, the following claim(s) are generic: ALL CLAIMS. The groups of inventions listed above do not relate to a single general inventive concept under PCT Rule 13.1 because, under PCT Rule 13.2, they lack the same or corresponding special technical features for the following reasons: The invention of claim 15, Group III lacks an inventive special technical feature, as the International Search Report highlights Rui, Zhou et al. “Tumor invasion and metastasis regulated by microRNA-184 and microRNA-574-5p in small-cell lung cancer,” Oncotarget vol 6number 42 published December 29, 2015. 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). Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL J SCHMITT whose telephone number is (571)270-7047. The examiner can normally be reached M-F 8-6 MidDay Flex. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jeffrey Lundgren can be reached on 571-272-5541. 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.
/MICHAEL J SCHMITT/ Examiner, Art Unit 1629
/JEFFREY S LUNDGREN/Supervisory Patent Examiner, Art Unit 1629 | 2022-05-25T15:42:12 | [
"DETAILED ACTION Election/Restriction REQUIREMENT FOR UNITY OF INVENTION As provided in 37 CFR 1.475(a), a national stage application shall relate to one invention only or to a group of inventions so linked as to form a single general inventive concept (“requirement of unity of invention”). Where a group of inventions is claimed in a national stage application, the requirement of unity of invention shall be fulfilled only when there is a technical relationship among those inventions involving one or more of the same or corresponding special technical features. The expression “special technical features” shall mean those technical features that define a contribution which each of the claimed inventions, considered as a whole, makes over the prior art.",
"The determination whether a group of inventions is so linked as to form a single general inventive concept shall be made without regard to whether the inventions are claimed in separate claims or as alternatives within a single claim. See 37 CFR 1.475(e). When Claims Are Directed to Multiple Categories of Inventions: As provided in 37 CFR 1.475 (b), a national stage application containing claims to different categories of invention will be considered to have unity of invention if the claims are drawn only to one of the following combinations of categories: (1) A product and a process specially adapted for the manufacture of said product; or (2) A product and a process of use of said product; or (3) A product, a process specially adapted for the manufacture of the said product, and a use of the said product; or (4) A process and an apparatus or means specifically designed for carrying out the said process; or (5) A product, a process specially adapted for the manufacture of the said product, and an apparatus or means specifically designed for carrying out the said process. Otherwise, unity of invention might not be present. See 37 CFR 1.475 (c).",
"Restriction is required under 35 U.S.C. 121 and 372. This application contains the following inventions or groups of inventions which are not so linked as to form a single general inventive concept under PCT Rule 13.1. In accordance with 37 CFR 1.499, applicant is required, in reply to this action, to elect a single invention to which the claims must be restricted. Group I, claims 1-12, drawn to a method of identifying a subject. Group II, claim 14, drawn to a device for analyzing. Group III, claim 15, drawn to a kit for detecting microRNA-574-5p. Group IV, claim 16, drawn to a method of treating a subject. This application contains claims directed to more than one species of the generic invention. These species are deemed to lack unity of invention because they are not so linked as to form a single general inventive concept under PCT Rule 13.1.",
"The species are as follows: Group I is generic and is directed to the following independent species: a prostaglandin E-dependent tumor, a susceptible subject, and an inhibitor of prostaglandin E formation. Each tumor type for example, lung cancer, colon cancer, pancreatic cancer and so forth is an independent species. Each subject, that is the genetic or phenotypic characteristic of the patient and the cancer is an independent species, whether the patient is a mammal, a human, a canine, a mouse. Also each inhibitor is an independent species, as to where in the pathway inhibition occurs, it might be indirect or direct. Group II is generic and is directed to the following independent species: an analyzing unit and an evaluation unit. Group III is generic and is directed to the following independent species: a detection agent. Group IV is generic and is directed to the following independent species: a susceptible subject, and an inhibitor of prostaglandin E formation.",
"Applicant is required, in reply to this action, to elect a single species to which the claims shall be restricted if no generic claim is finally held to be allowable. The reply must also identify the claims readable on the elected species, including any claims subsequently added. An argument that a claim is allowable or that all claims are generic is considered non-responsive unless accompanied by an election. Upon the allowance of a generic claim, applicant will be entitled to consideration of claims to additional species which are written in dependent form or otherwise require all the limitations of an allowed generic claim.",
"Currently, the following claim(s) are generic: ALL CLAIMS. The groups of inventions listed above do not relate to a single general inventive concept under PCT Rule 13.1 because, under PCT Rule 13.2, they lack the same or corresponding special technical features for the following reasons: The invention of claim 15, Group III lacks an inventive special technical feature, as the International Search Report highlights Rui, Zhou et al. “Tumor invasion and metastasis regulated by microRNA-184 and microRNA-574-5p in small-cell lung cancer,” Oncotarget vol 6number 42 published December 29, 2015. 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). Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL J SCHMITT whose telephone number is (571)270-7047.",
"The examiner can normally be reached M-F 8-6 MidDay Flex. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jeffrey Lundgren can be reached on 571-272-5541. 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. /MICHAEL J SCHMITT/ Examiner, Art Unit 1629 /JEFFREY S LUNDGREN/Supervisory Patent Examiner, Art Unit 1629"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-05-29.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 0823743
Decision Date: 07/17/08 Archive Date: 07/30/08
DOCKET NO. 06-38 056 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Missouri Veterans Commission
ATTORNEY FOR THE BOARD
C. Bruce, Associate Counsel
INTRODUCTION
The veteran had active service from February 1971 to February
1973.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri.
FINDINGS OF FACT
1. The competent medical evidence of record fails to show
that the veteran has bilateral hearing loss that is related
to his active military service or active duty for training
(ACDUTRA).
2. The evidence of record fails to show that the veteran has
tinnitus that is related to his active military service or
ACDUTRA.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was not incurred in or aggravated
by the veteran's active duty service or ACDUTRA, nor may
bilateral hearing loss be presumed to have been incurred in
or aggravated by his service. 38 U.S.C.A. §§ 101(24), 1110,
1112, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307,
3.309, 3.385 (2007).
2. Tinnitus was not incurred in or aggravated by the
veteran's active duty service or ACDUTRA. 38 U.S.C.A. §§
101(24), 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA's Duties to Notify and Assist
Under the Veterans Claims Assistance Act (VCAA), when VA
receives a complete or substantially complete application for
benefits, it must notify the claimant of (1) the information
and evidence not of record that is necessary to substantiate
a claim, (2) which information and evidence VA will obtain,
and (3) which information and evidence the claimant is
expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38
C.F.R. § 3.159 (2007); see also 73 Fed. Reg. 23,353-6 (April
30, 2008) (codified at 38 C.F.R. § 3.159 (May 30, 2008)).
See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004)
(Pelegrini II).
After careful review of the claims file, the Board finds that
letters dated in December 2004 and March 2006 fully satisfied
the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38
C.F.R. § 3.159(b)(1) (2007); Quartuccio v. Principi, 16 Vet.
App. 183, 187 (2002). In this regard, these letters advised
the veteran what information and evidence was needed to
substantiate the claim decided herein. The letters also
requested that he provide enough information for the RO to
request records from any sources of information and evidence
identified by the veteran, as well as what information and
evidence would be obtained by VA, namely, records like
medical records, employment records, and records from other
Federal agencies.
During the pendency of this appeal, on March 3, 2006, the
Court issued a decision in Dingess v. Nicholson, 19 Vet. App.
473, 484 (2006), which held that the VCAA notice must include
notice that a disability rating and an effective date for the
award of benefits will be assigned if service connection is
awarded. The March 2006 letter provided this notice to the
veteran.
The Board observes that the December 2004 letter was sent to
the veteran prior to the January 2005 rating decision. The
VCAA notice with respect to the elements addressed in this
letter was therefore timely. See Pelegrini v. Principi, 18
Vet. App. 112 (2004). VCAA notice in accordance with
Dingess, however, was sent after the initial adjudication of
the veteran's claim. Nevertheless, the Board finds this
error nonprejudicial to the veteran. See Mayfield v.
Nicholson, 19 Vet. App. 103 (2005). In this regard, the
notice provided in the March 2006 letter fully complied with
the requirements of 38 U.S.C.A. § 5103(a) (West 2002), 38
C.F.R. § 3.159(b) (2007), and Dingess, supra, and after the
notice was provided the case was readjudicated and an October
2006 statement of the case was provided to the veteran. See
Pelegrini II, supra; Mayfield v. Nicholson, 20 Vet. App. 537
(2006) (a statement of the case that complies with all
applicable due process and notification requirements
constitutes a readjudication decision).
The veteran was also provided with a copy of the January 2005
rating decision, which included a discussion of the facts of
the claims, pertinent laws and regulations, notification of
the bases of the decisions, and a summary of the evidence
considered to reach the decisions.
In light of the above, the Board concludes that all notices
required by VCAA and implementing regulations were furnished
to the veteran and that no useful purpose would be served by
delaying appellate review to send out additional VCAA notice
letters.
The Board finds that VA has also fulfilled its duty to assist
the veteran in making reasonable efforts to identify and
obtain relevant records in support of the veteran's claims
and providing a VA examination when necessary. 38 U.S.C.A.
§ 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2007). In this regard,
all available service treatment records are associated with
the claims folder. See 38 C.F.R. § 3.159(c) (2007).
The Board recognizes a duty to provide a VA examination when
the record lacks evidence to decide the veteran's claim and
there is evidence of (1) a current disability, (2) an in-
service event, injury, or disease, and (3) some indication
that the claimed disability may be associated with the
established event, injury, or disease. 38 C.F.R.
§ 3.159(c)(4)(i) (2007); see also McLendon v. Nicholson, 20
Vet. App. 79 (2006). The veteran was afforded a VA
compensation and pension audiological examination that
included a medical nexus opinion in October 2006.
The Board notes that the veteran states in his VA Form 21-526
that he suffered hearing loss at a national guard week
training session in addition to his active military service.
However, there is nothing of record to show that the veteran
was a member of the national guard. The Board notes that the
veteran was in the U.S. Army Reserve and did attend Army
Reserve training for two weeks (July 27, 1974 to August 9,
1974) and that this is the post-service training to which the
veteran refers. The veteran also makes a request in his VA
Form 9 that the VA obtain records from the veteran's
compensation exam which, according to the veteran, was
conducted on either Monday, October 9, 2006 or Monday,
October 23, 2006. The Board notes that the Compensation and
Pension exam included in the c-file was conducted on Monday,
October 16, 2006. The Board takes judicial notice that
Monday, October 9, 2006 was Columbus Day, a federal holiday,
and therefore concludes that this was not likely the date of
the examination. The Board concludes that the included
record of the examination is the examination to which the
veteran is referring because he refers to a single
examination conducted on a Monday that he could not recall
the specific date of and October 16, 2006 is in the timeframe
that he reports he was examined.
Under the circumstances of this case, "the record has been
fully developed," and "it is difficult to discern what
additional guidance VA could have provided to the veteran
regarding what further evidence he should submit to
substantiate his claim." Conway v. Principi, 353 F.3d 1369
(Fed. Cir. 2004). Therefore, the Board is satisfied that VA
has complied with the duty to assist requirements of the VCAA
and the implementing regulations and the record is ready for
appellate review.
Analysis
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110 (West 2002); 38 C.F.R.
§ 3.303(a) (2007). As a general matter, service connection
for a disability on the basis of the merits of such a claim
requires (1) the existence of a current disability; (2) the
existence of the disease or injury in service, and; (3) a
relationship or nexus between the current disability and any
injury or disease during service. Cuevas v.Principi, 3 Vet.
App. 542 (1992). That an injury occurred in service alone is
not enough; there must be chronic disability resulting from
that injury. If there is no showing of a resulting chronic
condition during service, then a showing of continuity of
symptomatology after service is required to support a finding
of chronicity. 38 C.F.R. § 3.303(b) (2007). Service
connection may also be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R.
§ 3.303(d) (2007). Service connection may be granted for
disability resulting from disease or injury incurred in or
aggravated while performing ACDUTRA. 38 U.S.C.A. § 101(24).
I. Hearing Loss
Where a veteran served continuously for ninety (90) days or
more during a period of war, or during peacetime service
after December 31, 1946, and sensorineural hearing loss
becomes manifest to a degree of 10 percent or more within one
year from date of termination of such service, such disease
shall be presumed to have been incurred in service, even
though there is no evidence of such disease during the period
of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002);
38 C.F.R. §§ 3.307, 3.309 (2007). This presumption is
rebuttable by affirmative evidence to the contrary. Id. In
an October 4, 1995, opinion VA's Under Secretary for Health
determined that it was appropriate to consider high frequency
sensorineural hearing loss an organic disease of the nervous
system and therefore a presumptive disability.
The court has held that service connection can be granted for
a hearing loss where the veteran can establish a nexus
between his current hearing loss and a disability or injury
he suffered while he was in military service. Godfrey v.
Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also
held that VA regulations do not preclude service connection
for a hearing loss which first met VA's definition of
disability after service. Hensley v. Brown, 5 Vet. App. 155,
159 (1993).
Where the determinative issue involves a medical diagnosis or
causation, competent medical evidence is required. Grottveit
v. Brown, 5 Vet. App. 91 (1993). This burden typically
cannot be met by lay testimony because lay persons are not
competent to offer medical opinions. Espiritu v. Derwinski,
2 Vet. App. 492, 494-95 (1992). However, lay persons can
provide an eye-witness account of a veteran's visible
symptoms. See, e.g., Caldwell v. Derwinski, 1 Vet. App. 466,
469 (1991) (competent lay evidence concerning manifestations
of a disease may form the basis for an award of service
connection where a claimant develops a chronic disease within
a presumptive period but has no in-service diagnosis of such
disease).
The record reflects that the veteran does not have the
requisite medical expertise to diagnose his claimed disorder
or render a competent medical opinion regarding its cause.
Thus, competent medical evidence showing that his claimed
disorder is related to service is required.
The veteran contends that he suffered acoustic trauma during
his military service that has caused his current bilateral
hearing loss. He specifically contends that his military
occupational specialty (MOS) was combat engineer and that as
such he participated in numerous training demonstrations,
including several demolition operations, where no hearing
protection was issued or worn. He further contends that he
also operated heavy equipment without the use of hearing
protection. The veteran's wife corroborates the veteran's
claims in her October 2005 statement of support in which she
states that she noticed significant hearing loss after the
veteran's return home in 1973 and that it has continually
worsened since that time. The veteran's wife further states
that the lack of medical treatment records since that time is
a result of her husband's general avoidance of doctors.
For purposes of applying VA laws, impaired hearing is
considered a disability when the auditory threshold in any of
the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is
40 decibels (dB) or greater; or when the auditory thresholds
for at least three of the frequencies 500, 1000, 2000, 3000,
and 4000 Hertz are 26 decibels or greater; or when speech
recognition scores using the Maryland CNC Test are less than
94 percent. 38 C.F.R. § 3.385 (2007).
The Board acknowledges that the medical evidence of record
clearly shows that the veteran currently suffers from
bilateral hearing loss. Indeed, at the October 2006
Compensation and Pension (C&P) audio examination the VA
audiologist diagnosed the veteran with a mild to severe
sensorineural hearing loss between 2000-4000 Hz, in the right
ear, with a moderate to severe sensorineural loss between
2000-4000 Hz, in the left ear with veteran report of constant
bilateral tinnitus.
The Board further notes that the veteran currently has a
bilateral hearing impairment as defined by VA regulation.
38 C.F.R. § 3.385 (2007). Indeed, the veteran exhibited pure
tone thresholds of 15 dB at 500 Hertz (Hz), 10 dB at 1000 Hz,
30 dB at 2000 Hz, 80 dB at 3000 Hz, and 80 dB at 4000 Hz for
the right ear and 20 dB at 500 Hz, 15 dB at 1000 Hz, 45 dB at
2000 Hz, 70 dB at 3000 Hz, and 65 dB at 4000 Hz for the left
ear with speech recognition scores of 96 percent for the
right ear and 92 percent for the left ear at the November
2005 C&P examination. Thus, it is clear that the veteran's
hearing loss in both ears meets the definition of impaired
hearing under 38 C.F.R. § 3.385 (2007).
The Board notes that service medical records show that at the
time of the April 1970 induction examination, hearing
sensitivity was within normal limits at 500, 1000, 2000, and
4000 Hz bilaterally, with the exception of a mild (30dB) loss
at 4000 Hz in the right ear. The service separation
examination in January 1973 showed improvement in hearing
sensitivity to within normal limits at 500, 1000, 2000 and
4000 Hz bilaterally. The Board notes that there is no
evidence in the service treatment records that the veteran
was treated for hearing loss.
In regard to claimed in-service exposure to loud noises,
explosives and heavy machinery, the veteran's DD Form 214
reveals that he worked as a combat engineer. The C&P
examination lists the veteran's self told history of
military, occupational and recreational noise exposure as
heavy equipment, demolitions, some artillery, and small
weapons fire. The Board notes that the C&P examination
records that the veteran's civilian occupation was truck
driver.
The Board acknowledges the medical evidence of record does
not show that the veteran's current bilateral hearing loss is
related to his military service. There is no indication that
the veteran was treated for hearing loss in service. As
noted above, the veteran's service treatment records are
negative for hearing loss. Indeed, the first documentation
of hearing problems of record is not shown until October
2006, with a request for a compensation and pension hearing
examination in conjunction with this claim. This examination
was administered approximately 33 years after separation from
service. The lapse in time between service and the first
diagnosis weighs against the veteran's claim. The Board may,
and will, consider in its assessment of a service connection
the passage of a lengthy period of time wherein the veteran
has not complained of the malady at issue. See Maxson v.
West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v.
Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey
v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc).
Furthermore, there is no competent medical opinion linking
the veteran's hearing loss to his period of active military
service. At the October 2006 C&P examination, the VA
audiologist (C.T., CCC-A) concluded that the veteran's
hearing loss was not caused by or a result of the veteran's
military service. The audiologist stated that military
treatment records do not document hearing loss to a
compensable degree. The October 2006 VA audiologist's
opinion is based on review of the claims folder and no
opinion to the contrary is of record. Thus, the Board finds
her opinion to be of great probative weight on the question
of whether the veteran's current hearing loss is related to
active military service.
Based on the foregoing, the Board finds that the
preponderance of the evidence weighs against the veteran's
claim. As the medical evidence does not link the veteran's
bilateral hearing loss to his military service to include any
acoustic trauma sustained during that time, service
connection for the veteran's bilateral hearing loss is not
warranted on a direct basis. The Board additionally notes
that presumptive service connection is not warranted for the
veteran's sensorineural hearing loss as it is not shown to
have manifested to a compensable degree within one year of
discharge.
In reaching these conclusions, the Board notes that under the
provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt
is to be resolved in the claimant's favor in cases where
there is an approximate balance of positive and negative
evidence in regard to a material issue. The preponderance of
the evidence, however, is against the veteran's claims and
that doctrine is not applicable. Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
II. Tinnitus
In addition to bilateral hearing loss, the veteran also
asserts that he is entitled to service connection for
tinnitus caused by in-service noise exposure. He contends
that he first experienced tinnitus during service which has
continued to the present day. The veteran's wife's statement
of support further supports his claim that he has complained
of ringing in his ears since returning from service.
However, after careful consideration of the evidence of
record, the Board finds that a preponderance of the evidence
is against awarding service connection for tinnitus.
The Board has already determined that the veteran experienced
acoustic trauma in service. The veteran's own statements,
and his service personnel records provide more than enough
evidence of this trauma. However, acoustic trauma sustained
in service, in and of itself, is not considered a disability
for VA purposes; i.e. warranting service connection or
compensation. The veteran did not complain of tinnitus
during service; hence, there is no evidence of a diagnosis,
treatment, or complaint in his service treatment records.
Thus, the more critical question turns upon whether claimed
tinnitus is etiologically related to service.
With respect to the veteran's claimed tinnitus, the only
etiological opinion of record is included in an October 2006
VA compensation and pension audiological examination report.
The VA examiner, having evaluated the veteran, reviewed the
claims folder, and received a complete history from the
veteran, opined that the veteran's tinnitus was not caused by
or a result of his military service. The examiner pointed to
service treatment records which were entirely negative for
complaints of tinnitus during service. There is no contrary
clinical evidence or competent medical opinion of record.
The Court has determined that, particularly with respect to
claims for tinnitus, the veteran is competent to present
evidence of continuity of symptomatology. See Charles v.
Principi, 16 Vet. App. 370, 374-75 (2002). The veteran's
contentions, however, remain subject to a Board analysis of
credibility. See Hayes v. Brown, 5 Vet. App. 60, 69-70
(1993), citing Wood v. Derwinski, 1 Vet. App. 190, 192-193
(1992). For the reasons discussed below, the Board finds
that the veteran's assertions regarding the chronicity and
continuity of tinnitus since service are not shown to be
credible.
Initially, the veteran's lay assertions of continuity of
symptomatology are entirely uncorroborated by any objective
evidence of chronicity or continuity of symptomatology of
tinnitus after service. See 38 C.F.R. § 3.303(b) (2007). As
discussed herein, neither a January 1973 service separation
examination report, nor any post-service evidence shows any
indication of tinnitus or complaints of ringing in the ears
until the November 2004 informal claim, more than 30 years
after the veteran left active military service or performed
ACDUTRA. This gap in the evidentiary record preponderates
strongly against this claim on the basis of continuity of
symptomatology. See Mense v. Derwinski, 1 Vet. App. 354
(1991).
With regard to the thirty year evidentiary gap in this case
between active service and the earliest evidence of tinnitus,
the Board also notes that this absence of evidence
constitutes negative evidence tending to disprove the claim
that the veteran had an injury in service which resulted in
chronic disability or persistent symptoms thereafter. See
Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom.
Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002)
(noting that the definition of evidence encompasses "negative
evidence" which tends to disprove the existence of an alleged
fact); see also 38 C.F.R. § 3.102 (2007) (noting that
reasonable doubt exists because of an approximate balance of
positive and "negative" evidence). Thus, the lack of any
objective evidence of continuing complaints, symptoms, or
findings of tinnitus for decades after the period of active
duty is itself evidence which tends to show that his current
tinnitus did not have its onset in service or for many years
thereafter.
Additionally, the 30 year lapse in time between the veteran's
active service and the first report of tinnitus weighs
against his claim. The Board notes that it may, and will,
consider in its assessment of a service connection the
passage of a lengthy period of time wherein the veteran has
not complained of the malady at issue. See Maxson v. West,
12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober,
230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v.
Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc).
The veteran contends that he first experienced tinnitus
during service as a result of acoustic trauma sustained
therein, described as problematic from service until the
present time. The Board acknowledges, and has no reason to
doubt, the veteran's assertion that he was exposed to
acoustic trauma in service. However, his contentions that
his tinnitus has been continuous since such trauma through
the present day were initially made more than 30 years after
service. The Board notes that the veteran's memory may have
been dimmed with time and that there remains the possibility
that his current tinnitus is not related to the tinnitus he
reportedly experienced during service. Additionally, his
recent statements have been made in connection with his claim
for monetary benefits from the government. See Cartright v.
Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a
veteran's testimony simply because the veteran is an
interested party; personal interest may, however, affect the
credibility of the evidence).
The Board finds that contemporaneous evidence from the
veteran's military service which reveal no tinnitus on
separation to be far more persuasive than the veteran's own
recent assertions to the effect that he had tinnitus in
service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994)
(contemporaneous evidence has greater probative value than
history as reported by the veteran). Such records are more
reliable, in the Board's view, than the veteran's unsupported
assertion of events now over three decades past.
In this case, no probative competent medical evidence exists
of a relationship between currently diagnosed tinnitus and
any continuity of symptomatology asserted by the veteran.
Rather, the competent evidence of record, particularly the
service treatment records and October 2006 VA medical opinion
given in the compensation and pension audiological
examination, preponderates against a finding that the veteran
has tinnitus related to service or any incident thereof, and
accordingly service connection for tinnitus must be denied.
38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § 3.303 (2007). As a
preponderance of the evidence is against the veteran's claim
of service connection for tinnitus, the benefit-of-the-doubt
doctrine is inapplicable. 38 U.S.C.A. § 5107(b) (West 2002);
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
ORDER
Entitlement to service connection for bilateral hearing loss
is denied.
Entitlement to service connection for tinnitus is denied.
____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 07-17-2008 | [
"Citation Nr: 0823743 Decision Date: 07/17/08 Archive Date: 07/30/08 DOCKET NO. 06-38 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD C. Bruce, Associate Counsel INTRODUCTION The veteran had active service from February 1971 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.",
"FINDINGS OF FACT 1. The competent medical evidence of record fails to show that the veteran has bilateral hearing loss that is related to his active military service or active duty for training (ACDUTRA). 2. The evidence of record fails to show that the veteran has tinnitus that is related to his active military service or ACDUTRA. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by the veteran's active duty service or ACDUTRA, nor may bilateral hearing loss be presumed to have been incurred in or aggravated by his service. 38 U.S.C.A. §§ 101(24), 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2007). 2. Tinnitus was not incurred in or aggravated by the veteran's active duty service or ACDUTRA. 38 U.S.C.A. §§ 101(24), 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide.",
"38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2007); see also 73 Fed. Reg. 23,353-6 (April 30, 2008) (codified at 38 C.F.R. § 3.159 (May 30, 2008)). See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). After careful review of the claims file, the Board finds that letters dated in December 2004 and March 2006 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, these letters advised the veteran what information and evidence was needed to substantiate the claim decided herein. The letters also requested that he provide enough information for the RO to request records from any sources of information and evidence identified by the veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App.",
"473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The March 2006 letter provided this notice to the veteran. The Board observes that the December 2004 letter was sent to the veteran prior to the January 2005 rating decision. The VCAA notice with respect to the elements addressed in this letter was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VCAA notice in accordance with Dingess, however, was sent after the initial adjudication of the veteran's claim. Nevertheless, the Board finds this error nonprejudicial to the veteran. See Mayfield v. Nicholson, 19 Vet.",
"App. 103 (2005). In this regard, the notice provided in the March 2006 letter fully complied with the requirements of 38 U.S.C.A. § 5103(a) (West 2002), 38 C.F.R. § 3.159(b) (2007), and Dingess, supra, and after the notice was provided the case was readjudicated and an October 2006 statement of the case was provided to the veteran. See Pelegrini II, supra; Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (a statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication decision). The veteran was also provided with a copy of the January 2005 rating decision, which included a discussion of the facts of the claims, pertinent laws and regulations, notification of the bases of the decisions, and a summary of the evidence considered to reach the decisions. In light of the above, the Board concludes that all notices required by VCAA and implementing regulations were furnished to the veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. The Board finds that VA has also fulfilled its duty to assist the veteran in making reasonable efforts to identify and obtain relevant records in support of the veteran's claims and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R.",
"§ 3.159(c)(4)(i) (2007). In this regard, all available service treatment records are associated with the claims folder. See 38 C.F.R. § 3.159(c) (2007). The Board recognizes a duty to provide a VA examination when the record lacks evidence to decide the veteran's claim and there is evidence of (1) a current disability, (2) an in- service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4)(i) (2007); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The veteran was afforded a VA compensation and pension audiological examination that included a medical nexus opinion in October 2006. The Board notes that the veteran states in his VA Form 21-526 that he suffered hearing loss at a national guard week training session in addition to his active military service. However, there is nothing of record to show that the veteran was a member of the national guard. The Board notes that the veteran was in the U.S. Army Reserve and did attend Army Reserve training for two weeks (July 27, 1974 to August 9, 1974) and that this is the post-service training to which the veteran refers.",
"The veteran also makes a request in his VA Form 9 that the VA obtain records from the veteran's compensation exam which, according to the veteran, was conducted on either Monday, October 9, 2006 or Monday, October 23, 2006. The Board notes that the Compensation and Pension exam included in the c-file was conducted on Monday, October 16, 2006. The Board takes judicial notice that Monday, October 9, 2006 was Columbus Day, a federal holiday, and therefore concludes that this was not likely the date of the examination.",
"The Board concludes that the included record of the examination is the examination to which the veteran is referring because he refers to a single examination conducted on a Monday that he could not recall the specific date of and October 16, 2006 is in the timeframe that he reports he was examined. Under the circumstances of this case, \"the record has been fully developed,\" and \"it is difficult to discern what additional guidance VA could have provided to the veteran regarding what further evidence he should submit to substantiate his claim.\" Conway v. Principi, 353 F.3d 1369 (Fed.",
"Cir. 2004). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). As a general matter, service connection for a disability on the basis of the merits of such a claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.",
"Cuevas v.Principi, 3 Vet. App. 542 (1992). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2007). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007).",
"Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA. 38 U.S.C.A. § 101(24). I. Hearing Loss Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). This presumption is rebuttable by affirmative evidence to the contrary.",
"Id. In an October 4, 1995, opinion VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. The court has held that service connection can be granted for a hearing loss where the veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App.",
"155, 159 (1993). Where the determinative issue involves a medical diagnosis or causation, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). However, lay persons can provide an eye-witness account of a veteran's visible symptoms. See, e.g., Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991) (competent lay evidence concerning manifestations of a disease may form the basis for an award of service connection where a claimant develops a chronic disease within a presumptive period but has no in-service diagnosis of such disease). The record reflects that the veteran does not have the requisite medical expertise to diagnose his claimed disorder or render a competent medical opinion regarding its cause.",
"Thus, competent medical evidence showing that his claimed disorder is related to service is required. The veteran contends that he suffered acoustic trauma during his military service that has caused his current bilateral hearing loss. He specifically contends that his military occupational specialty (MOS) was combat engineer and that as such he participated in numerous training demonstrations, including several demolition operations, where no hearing protection was issued or worn. He further contends that he also operated heavy equipment without the use of hearing protection. The veteran's wife corroborates the veteran's claims in her October 2005 statement of support in which she states that she noticed significant hearing loss after the veteran's return home in 1973 and that it has continually worsened since that time.",
"The veteran's wife further states that the lack of medical treatment records since that time is a result of her husband's general avoidance of doctors. For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2007).",
"The Board acknowledges that the medical evidence of record clearly shows that the veteran currently suffers from bilateral hearing loss. Indeed, at the October 2006 Compensation and Pension (C&P) audio examination the VA audiologist diagnosed the veteran with a mild to severe sensorineural hearing loss between 2000-4000 Hz, in the right ear, with a moderate to severe sensorineural loss between 2000-4000 Hz, in the left ear with veteran report of constant bilateral tinnitus. The Board further notes that the veteran currently has a bilateral hearing impairment as defined by VA regulation.",
"38 C.F.R. § 3.385 (2007). Indeed, the veteran exhibited pure tone thresholds of 15 dB at 500 Hertz (Hz), 10 dB at 1000 Hz, 30 dB at 2000 Hz, 80 dB at 3000 Hz, and 80 dB at 4000 Hz for the right ear and 20 dB at 500 Hz, 15 dB at 1000 Hz, 45 dB at 2000 Hz, 70 dB at 3000 Hz, and 65 dB at 4000 Hz for the left ear with speech recognition scores of 96 percent for the right ear and 92 percent for the left ear at the November 2005 C&P examination.",
"Thus, it is clear that the veteran's hearing loss in both ears meets the definition of impaired hearing under 38 C.F.R. § 3.385 (2007). The Board notes that service medical records show that at the time of the April 1970 induction examination, hearing sensitivity was within normal limits at 500, 1000, 2000, and 4000 Hz bilaterally, with the exception of a mild (30dB) loss at 4000 Hz in the right ear. The service separation examination in January 1973 showed improvement in hearing sensitivity to within normal limits at 500, 1000, 2000 and 4000 Hz bilaterally. The Board notes that there is no evidence in the service treatment records that the veteran was treated for hearing loss. In regard to claimed in-service exposure to loud noises, explosives and heavy machinery, the veteran's DD Form 214 reveals that he worked as a combat engineer.",
"The C&P examination lists the veteran's self told history of military, occupational and recreational noise exposure as heavy equipment, demolitions, some artillery, and small weapons fire. The Board notes that the C&P examination records that the veteran's civilian occupation was truck driver. The Board acknowledges the medical evidence of record does not show that the veteran's current bilateral hearing loss is related to his military service. There is no indication that the veteran was treated for hearing loss in service. As noted above, the veteran's service treatment records are negative for hearing loss. Indeed, the first documentation of hearing problems of record is not shown until October 2006, with a request for a compensation and pension hearing examination in conjunction with this claim. This examination was administered approximately 33 years after separation from service. The lapse in time between service and the first diagnosis weighs against the veteran's claim. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.",
"Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc). Furthermore, there is no competent medical opinion linking the veteran's hearing loss to his period of active military service. At the October 2006 C&P examination, the VA audiologist (C.T., CCC-A) concluded that the veteran's hearing loss was not caused by or a result of the veteran's military service. The audiologist stated that military treatment records do not document hearing loss to a compensable degree. The October 2006 VA audiologist's opinion is based on review of the claims folder and no opinion to the contrary is of record. Thus, the Board finds her opinion to be of great probative weight on the question of whether the veteran's current hearing loss is related to active military service. Based on the foregoing, the Board finds that the preponderance of the evidence weighs against the veteran's claim.",
"As the medical evidence does not link the veteran's bilateral hearing loss to his military service to include any acoustic trauma sustained during that time, service connection for the veteran's bilateral hearing loss is not warranted on a direct basis. The Board additionally notes that presumptive service connection is not warranted for the veteran's sensorineural hearing loss as it is not shown to have manifested to a compensable degree within one year of discharge. In reaching these conclusions, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the veteran's claims and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).",
"II. Tinnitus In addition to bilateral hearing loss, the veteran also asserts that he is entitled to service connection for tinnitus caused by in-service noise exposure. He contends that he first experienced tinnitus during service which has continued to the present day. The veteran's wife's statement of support further supports his claim that he has complained of ringing in his ears since returning from service. However, after careful consideration of the evidence of record, the Board finds that a preponderance of the evidence is against awarding service connection for tinnitus. The Board has already determined that the veteran experienced acoustic trauma in service. The veteran's own statements, and his service personnel records provide more than enough evidence of this trauma. However, acoustic trauma sustained in service, in and of itself, is not considered a disability for VA purposes; i.e. warranting service connection or compensation.",
"The veteran did not complain of tinnitus during service; hence, there is no evidence of a diagnosis, treatment, or complaint in his service treatment records. Thus, the more critical question turns upon whether claimed tinnitus is etiologically related to service. With respect to the veteran's claimed tinnitus, the only etiological opinion of record is included in an October 2006 VA compensation and pension audiological examination report.",
"The VA examiner, having evaluated the veteran, reviewed the claims folder, and received a complete history from the veteran, opined that the veteran's tinnitus was not caused by or a result of his military service. The examiner pointed to service treatment records which were entirely negative for complaints of tinnitus during service. There is no contrary clinical evidence or competent medical opinion of record. The Court has determined that, particularly with respect to claims for tinnitus, the veteran is competent to present evidence of continuity of symptomatology. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The veteran's contentions, however, remain subject to a Board analysis of credibility. See Hayes v. Brown, 5 Vet.",
"App. 60, 69-70 (1993), citing Wood v. Derwinski, 1 Vet. App. 190, 192-193 (1992). For the reasons discussed below, the Board finds that the veteran's assertions regarding the chronicity and continuity of tinnitus since service are not shown to be credible. Initially, the veteran's lay assertions of continuity of symptomatology are entirely uncorroborated by any objective evidence of chronicity or continuity of symptomatology of tinnitus after service. See 38 C.F.R. § 3.303(b) (2007). As discussed herein, neither a January 1973 service separation examination report, nor any post-service evidence shows any indication of tinnitus or complaints of ringing in the ears until the November 2004 informal claim, more than 30 years after the veteran left active military service or performed ACDUTRA. This gap in the evidentiary record preponderates strongly against this claim on the basis of continuity of symptomatology. See Mense v. Derwinski, 1 Vet. App. 354 (1991). With regard to the thirty year evidentiary gap in this case between active service and the earliest evidence of tinnitus, the Board also notes that this absence of evidence constitutes negative evidence tending to disprove the claim that the veteran had an injury in service which resulted in chronic disability or persistent symptoms thereafter. See Forshey v. West, 12 Vet.",
"App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses \"negative evidence\" which tends to disprove the existence of an alleged fact); see also 38 C.F.R. § 3.102 (2007) (noting that reasonable doubt exists because of an approximate balance of positive and \"negative\" evidence). Thus, the lack of any objective evidence of continuing complaints, symptoms, or findings of tinnitus for decades after the period of active duty is itself evidence which tends to show that his current tinnitus did not have its onset in service or for many years thereafter. Additionally, the 30 year lapse in time between the veteran's active service and the first report of tinnitus weighs against his claim. The Board notes that it may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App.",
"453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc). The veteran contends that he first experienced tinnitus during service as a result of acoustic trauma sustained therein, described as problematic from service until the present time. The Board acknowledges, and has no reason to doubt, the veteran's assertion that he was exposed to acoustic trauma in service. However, his contentions that his tinnitus has been continuous since such trauma through the present day were initially made more than 30 years after service.",
"The Board notes that the veteran's memory may have been dimmed with time and that there remains the possibility that his current tinnitus is not related to the tinnitus he reportedly experienced during service. Additionally, his recent statements have been made in connection with his claim for monetary benefits from the government. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence).",
"The Board finds that contemporaneous evidence from the veteran's military service which reveal no tinnitus on separation to be far more persuasive than the veteran's own recent assertions to the effect that he had tinnitus in service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). Such records are more reliable, in the Board's view, than the veteran's unsupported assertion of events now over three decades past. In this case, no probative competent medical evidence exists of a relationship between currently diagnosed tinnitus and any continuity of symptomatology asserted by the veteran. Rather, the competent evidence of record, particularly the service treatment records and October 2006 VA medical opinion given in the compensation and pension audiological examination, preponderates against a finding that the veteran has tinnitus related to service or any incident thereof, and accordingly service connection for tinnitus must be denied. 38 U.S.C.A.",
"§§ 1110, 5107; 38 C.F.R. § 3.303 (2007). As a preponderance of the evidence is against the veteran's claim of service connection for tinnitus, the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs"
]
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Filed 3/12/21 P. v. Cernogg CA2/3 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 THREE
THE PEOPLE, B303218
Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA085192) v.
JAMES RUSSELL CERNOGG, JR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Sean D. Coen, Judge. Reversed and remanded with directions. Edward H. Schulman, 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, Assistant Attorney General, Charles S. Lee and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent. ________________________ In March 2008, a jury convicted defendant and appellant James Russell Cernogg, Jr., of the murder of Michael Pimental. Cernogg’s accomplice was the actual killer. In 2019, Cernogg petitioned for resentencing pursuant to Penal Code section 1170.95.1 After appointing counsel for Cernogg and considering briefing by the parties, the court denied the petition, finding that the evidence was sufficient to prove beyond a reasonable doubt that Cernogg acted as a direct aider and abettor. Cernogg appeals, contending the trial court employed the wrong standard at the hearing, and he is entitled to a new jury trial in light of Senate Bill 1437. We reject the latter contention. However, because the record is not clear regarding whether the trial court applied a substantial evidence standard or, acting as a finder of fact, applied the beyond a reasonable doubt standard, we reverse and remand for the court to conduct a new hearing. FACTUAL AND PROCEDURAL BACKGROUND 1. The murder and Cernogg’s conviction2 On May 11, 2006, 12-year old Camilo H. and 15-year old Pimental were “tagging” in the area of Rosecrans and Poinsettia Avenues in Compton. Camilo wrote his moniker, “Dust,” on a wall. Cernogg, who was an associate of the Elm Street Piru gang, was riding his bicycle in the area and asked the youths why they were writing on the wall. Camilo said, “ ‘My bad.’ ” Cernogg told
1 All further undesignated statutory references are to the Penal Code.
2 We derive the factual and procedural background in part from our prior opinions in this matter, of which we have taken judicial notice at Cernogg’s request. (Evid. Code, §§ 451, 452, 459.)
2 the boys to come with him, and they complied. As they walked down Rosecrans, Cernogg spoke with another person on the phone and said, “ ‘I got them right [here.]’ ” The person on the phone told him to hold the boys there. Cernogg said to Camilo, “ ‘I’m going to kill you and your mom.’ ” Meanwhile, Michael Morales, a friend of the boys, approached and asked Pimental if he had seen his mother. Pimental asked Morales to accompany them. Cernogg asked Morales if he wanted “ ‘some problems, too’ ” and said “ ‘[y]ou better go back.’ ” According to Morales’s trial testimony, Cernogg pulled up his shirt to reveal a gun in his waistband.3 Cernogg said, “ ‘I’m going to teach these little fools a lesson not to write in my hood again.’ ” Within a few minutes, defendant Jeffrey Martin, an Elm Street Piru gang member, arrived at the scene. He held a gun, covered with a rag. Without saying a word to anyone, Martin pointed the gun at Pimental, who pleaded, “ ‘No, don’t shoot.’ ” From a distance of no more than three feet away, Martin fired a single shot into Pimental’s head, killing him. Cernogg ran away, leaving his bicycle at the scene; Martin walked away in the same direction. Cernogg was charged with murder. At trial, the People proceeded under two theories of guilt: that Cernogg directly aided and abetted the murder, and that the murder was the natural and probable consequence of the target crime, felony false imprisonment. The jury was instructed on both theories. (CALJIC No. 3.01; CALJIC No. 3.02.) It convicted Cernogg of
3 At trial, Morales did not identify Cernogg as the man on the bicycle. Prior to trial, he did not tell detectives that the man on the bicycle displayed a gun.
3 first degree murder (§ 187, subd. (a)) and additionally found gang and firearm enhancements true. (§§ 186.22, subd. (b), 12022.53, subds. (b), (c), (d), & (e)(1).) The trial court sentenced Cernogg to 25 years to life in prison for the murder, plus 25 years to life for the firearm enhancement. 2. Prior appeals In an opinion issued on December 9, 2009, this Division affirmed Cernogg’s judgment. (People v. Cernogg (Dec. 9, 2009, B210684) [nonpub. opn.] (Cernogg I).) Cernogg I rejected his claims that the evidence was insufficient, the trial court committed instructional and sentencing errors, and the sentence amounted to cruel and unusual punishment. In particular, Cernogg I concluded the evidence was sufficient to support both theories advanced by the People, i.e., direct aiding and abetting and the natural and probable consequences doctrine. After describing the evidence supporting the conclusion that Cernogg was a direct aider and abettor, Cernogg I held, “This evidence is more than sufficient to show that Cernogg shared Martin’s intent and purpose; hence, he is liable as a direct aider and abettor of Pimental’s murder.” Turning to the sufficiency of the evidence to support the conviction under the natural and probable consequences doctrine, Cernogg I continued: “Alternatively, it is also possible that Cernogg did not know that Martin intended to execute Pimental. Perhaps, as Cernogg suggests in his opening brief, he thought Martin would merely give the young boys a ‘stern warning.’ Even so, there is still evidence to support the judgment under the natural and probable consequences doctrine.” In 2014, our Supreme Court concluded, in People v. Chiu (2014) 59 Cal.4th 155 (Chiu), that an aider and abettor cannot be
4 guilty of first degree premeditated murder under the natural and probable consequences doctrine. (Id. at pp. 158–159.) In April 2015, we granted Cernogg’s motion to recall the remittitur and reinstate the appeal, based on Chiu. In an opinion issued on September 3, 2015, we concluded that under Chiu, the trial court had erred by instructing the jury on the natural and probable consequences doctrine. (People v. Cernogg (Sept. 3, 2015, B210684) [nonpub. opn.] (Cernogg II).) We determined that the matter had to be remanded for either a new trial, or to allow the People to accept a reduction of the offense to second degree murder. We reasoned: “Where, as here, a defendant possibly has been convicted of first degree premeditated murder under the natural and probable consequences doctrine, the conviction must be reversed unless the reviewing court can conclude beyond a reasonable doubt that the jury based its verdict on a legally valid theory. [Citations.] A legally valid theory—direct aiding and abetting—was before the jury. But, as the People concede, we cannot determine beyond a reasonable doubt that the jury based its verdict on that theory, as opposed to the invalid natural and probable consequences doctrine. The People argued both theories to the jury and nothing in the record suggests on which theory the jury relied.” We further explained that the evidence was sufficient to prove Cernogg acted as a direct aider and abettor: “As to direct aiding and abetting, we previously found that there was sufficient evidence to support that theory. To prove liability as a direct aider and abettor, the prosecution must show that the defendant ‘acted “with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.’
5 [Citation.] The evidence here was that Martin was a known member of the Elm Street Piru gang, and Cernogg was an associate of the gang. On the night of Pimental’s murder, Cernogg was riding his bike in gang territory. When he stopped Pimental and Camilo, he told them to come with him. Cernogg chirped Martin, who told Cernogg to ‘hold them’ there. Cernogg followed Martin’s orders. Cernogg stated his intent to Camilo: ‘ “I'm going to kill you and your mom.” ’ [¶] That Cernogg intended harm is further evidenced by his threat to Morales, a friend of Pimental’s and Camilo’s who happened to wander by. Cernogg told Morales that unless he too wanted ‘ “some problems,” ’ he had ‘ “better go.” ’ Cernogg lifted his shirt to reveal a gun and said something to the effect of, ‘ “I’m going to teach these little fools a lesson not to write in my hood again.” ’ This evidence is more than sufficient to show that Cernogg shared Martin’s intent and purpose and to therefore allow a retrial under a direct aiding and abetting theory.” On remand, the People elected not to retry Cernogg for first degree murder. His conviction was reduced to second degree murder, and the trial court resentenced him to 15 years to life for the murder, plus 25 years to life for the firearm enhancement. 3. Cernogg’s section 1170.95 petition and appeal In January 2019, after passage of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), Cernogg filed a petition to vacate his second degree murder conviction. Using a preprinted form, he checked boxes stating that he had been convicted of murder pursuant to the felony-murder rule or the natural and probable consequences doctrine; he was not the actual killer; and he could not now be convicted of murder in light
6 of changes to the law made by Senate Bill 1437. He also checked a box requesting that counsel be appointed for him. The trial court determined that Cernogg had established a “prima facie case for resentencing” and appointed counsel for him. Thereafter, the People filed a response opposing the petition, Cernogg filed a reply, and the People filed another response. The People argued that the record of conviction was sufficient to prove Cernogg acted as a direct aider and abettor with the intent to kill, and therefore he was not entitled to relief under section 1170.95. Cernogg argued the trial evidence did not show he had the intent to kill. Further, he argued the question was not whether substantial evidence supported denial of the petition. Instead, the court had to apply the “beyond a reasonable doubt” standard. On November 21, 2019, the trial court denied the petition. It stated that it had taken into consideration “the court file” and this court’s prior opinions in the case. It explained, “Based upon that . . . I find to be the law of this case and I do find that [section] 1170.95 is not applicable to Mr. Cernogg, specifically 1170.95(a)(3) in that the findings of the appellate court and my findings with the appellate court decision is that their malice was present in regards to an intent to kill on a direct aiding-and- abetting theory beyond a reasonable doubt.” Defense counsel argued at the hearing that the substantial evidence test, applicable when an appellate court reviews the sufficiency of the evidence, should not apply to evaluation of a section 1170.95 petition. Instead, she argued, the court was required to presume Cernogg was innocent and “weigh the evidence again.” In counsel’s view, the evidence did not show Cernogg was a direct aider and abettor.
7 In response the trial court opined, “When the appellate court makes the decision, some of these facts again are the law of the case and the finding of fact and that’s one of the things I’m going by, almost that I am bound by, not that there’s sufficient evidence, but they are pointing out the fact of the finding and that’s what I’m basing my decision on as well.” Cernogg filed a timely notice of appeal. DISCUSSION 1. Senate Bill 1437 Senate Bill 1437, which took effect on January 1, 2019, limited accomplice liability under the felony-murder rule and eliminated the natural and probable consequences doctrine as it relates to murder, to ensure that a person’s sentence is commensurate with his or her individual criminal culpability. (People v. Gentile (2020) 10 Cal.5th 830, 842–843 (Gentile); People v. Verdugo (2020) 44 Cal.App.5th 320, 323, review granted Mar. 18, 2020, S260493 (Verdugo); People v. Munoz (2019) 39 Cal.App.5th 738, 749–750, 763, review granted Nov. 26, 2019, S258234 (Munoz).) Prior to passage of Senate Bill 1437, under the natural and probable consequences doctrine a defendant was “liable for murder if he or she aided and abetted the commission of a criminal act (a target offense), and a principal in the target offense committed murder (a nontarget offense) that, even if unintended, was a natural and probable consequence of the target offense.” (People v. Lamoureux (2019) 42 Cal.App.5th 241, 248; Munoz, supra, 39 Cal.App.5th at p. 749, rev.gr.) Senate Bill 1437 amended section 188 to state that malice may not be imputed to a person based solely on his or her participation in a crime. (§ 188, subd. (a)(3).) Thus, pursuant to Senate Bill 1437,
8 where the felony-murder rule is not at issue, a person must act with malice to be convicted of murder. (Munoz, at p. 749.) Senate Bill 1437 also added section 1170.95, which created a procedure whereby persons convicted of murder under a felony- murder or natural and probable consequences theory may petition in the sentencing court for vacation of their convictions and resentencing. A defendant is eligible for relief under section 1170.95 if he meets three conditions: (1) he must have been charged with murder by means of a charging document that allowed the prosecution to proceed under a natural and probable consequences or felony-murder theory; (2) he must have been convicted of first or second degree murder; and (3) he could no longer be convicted of first or second degree murder due to changes to sections 188 and 189 wrought by Senate Bill 1437. (§ 1170.95, subd. (a).) Evaluation of a section 1170.95 petition requires a multi- step process: an initial review to determine the petition’s facial sufficiency; a prebriefing, “ ‘first prima facie review’ ” to preliminarily determine whether the petitioner is statutorily eligible for relief as a matter of law; and a second, postbriefing prima facie review to determine whether the petitioner has made a prima facie case that he or she is entitled to relief. (People v. Tarkington (2020) 49 Cal.App.5th 892, 897, review granted Aug. 12, 2020, S263219 (Tarkington); Verdugo, supra, 44 Cal.App.5th at pp. 327–330, rev.gr.; but see People v. Cooper (2020) 54 Cal.App.5th 106, 118, review granted Nov. 10, 2020, S264684 [1170.95, subd. (c) does not require two prima facie reviews].) If the petitioner makes such a showing, the court must issue an order to show cause (OSC) and conduct a hearing to determine whether to vacate the murder conviction and resentence the
9 petitioner on any remaining counts. (§ 1170.95, subds. (c), (d); People v. Nguyen (2020) 53 Cal.App.5th 1154, 1165–1166 (Nguyen).) At that hearing, the burden of proof is on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. Both the People and the petitioner may rely on the record of conviction, including an appellate opinion in the case, and may also present new and additional evidence to demonstrate the petitioner is, or is not, entitled to resentencing. (§ 1170.95, subd. (d)(3); see People v. Clements (2021) 60 Cal.App.5th 597, 603, 612–613 (Clements); Tarkington, supra, 49 Cal.App.5th at pp. 899, fn. 5, 909, rev. gr.; Verdugo, supra, 44 Cal.App.5th at p. 333, rev. gr.) “If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.” (§ 1170.95, subd. (d)(3).) 2. Application here Although the trial court here did not issue an OSC, the parties treat its denial of the petition as a decision on the merits following an evidentiary hearing under section 1170.95, subdivision (d)(3). Cernogg does not contend the court’s failure to issue an OSC was error or somehow prejudiced him. Accordingly, we treat the court’s ruling as a denial of the petition under subdivision (d)(3). Cernogg contends that the trial court erroneously based its denial of his petition on the substantial evidence standard: that is, it improperly concluded he was not entitled to relief because Cernogg II held there was sufficient evidence presented at his trial to prove he was a direct aider and abettor. Instead, he
10 argues, his petition could be denied only if the People established, beyond a reasonable doubt, that his jury actually based its verdicts upon a still-valid theory, a showing they could not make in light of this court’s earlier opinions. Further, he asserts that unless his murder conviction is vacated, his case must be remanded for a new jury trial. The People appear to assert that, when ruling on a section 1170.95 petition at the subdivision (d)(3) hearing stage, a trial court must act as a trier of fact and apply the reasonable doubt standard. They contend that the trial court correctly applied this standard here, despite its discussion of the law of the case doctrine. a. Principles of statutory interpretation When construing a statute, our “primary task is to determine and give effect to the legislature’s purpose in enacting the law.” (In re H.W. (2019) 6 Cal.5th 1068, 1073.) “ ‘We start with the statute’s words, which are the most reliable indicator of legislative intent.’ [Citation.] ‘ “We interpret relevant terms in light of their ordinary meaning, while also taking account of any related provisions and the overall structure of the statutory scheme to determine what interpretation best advances the Legislature’s underlying purpose.” ’ [Citation.] ‘If we find the statutory language ambiguous or subject to more than one interpretation, we may look to extrinsic aids, including legislative history or purpose to inform our views.’ [Citation.]” (In re A.N. (2020) 9 Cal.5th 343, 351–352.) We harmonize the various parts of an enactment by considering the particular clause or section in the context of the statute as a whole. (People v. DeLeon (2017) 3 Cal.5th 640, 648; In re H.W., at p. 1073.) We review questions of
11 statutory interpretation de novo. (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.) b. The “alternative-theory error” standard is inapplicable to evaluation of a section 1170.95 petition Cernogg argues that a trial court may deny a section 1170.95 petition only if it finds, beyond a reasonable doubt, that the petitioner was actually convicted of murder under a still- viable theory. On direct appeal, an “alternative-theory error” standard applies when a trial court erroneously instructs on two theories of guilt, one legally correct, one not. Where the record suggests the jury could have based its verdict on the legally invalid theory, and there is no other basis to determine the instruction was harmless beyond a reasonable doubt, reversal is required. (People v. Aledamat (2019) 8 Cal.5th 1, 13; Chiu, supra, 59 Cal.4th at p. 167 [when court instructs on a legally correct and a legally erroneous theory, reversal is required “unless there is a basis in the record to find that the verdict was based on a valid ground”]; In re Martinez (2017) 3 Cal.5th 1216, 1218 [reversal required unless record shows jury actually relied on a legally valid theory].) The question is not whether it is clear beyond a reasonable doubt that the defendant was found guilty under the legally correct theory, “but whether we can say, beyond a reasonable doubt, that the legally incorrect jury instruction did not taint the actual jury verdict.” (People v. Baratang (2020) 56 Cal.App.5th 252, 263.) Cernogg argues that under section 1170.95, “[p]roving ineligibility beyond a reasonable doubt is simply another way of saying that the instructional error in the first instance was ‘harmless beyond a reasonable doubt.’ ” Thus, he reasons, because this court has already held that it was not possible to
12 determine, beyond a reasonable doubt, which theory the jury relied upon, his petition should have been granted and his conviction vacated. We disagree. This is not a direct appeal, and the alternative-theory error standard does not apply. As People v. Rodriguez (2020) 58 Cal.App.5th 227 (Rodriguez) recently explained, the alternative-theory error standard is inconsistent with section 1170.95’s language in three respects. “First, the [alternative-theory error] line of cases requires courts to inquire whether ‘there is a basis in the record to find that the verdict was based on a valid ground.’ [Citation.] That backward looking evaluation is inconsistent with section 1170.95, subdivisions (a)(3)’s and (d)(3)’s explicit direction to the court to determine if the petitioner could now be convicted of murder under sections 188 and 189 as amended, not whether he or she was, in fact, convicted of murder under a still-valid theory. Second, subdivision (d)(3) permits both parties to present new or additional evidence at the hearing after issuance of the order to show cause. If the superior court’s ineligibility ruling may be based on evidence not heard by the original trier of fact, the Legislature cannot have intended the court simply to evaluate the grounds on which the original verdict was reached. Finally, section 1170.95 is available to defendants convicted of murder following a plea in lieu of a trial. Given the limited record in many of those cases, it would be impossible to assess whether a still-valid ground for a murder conviction existed, let alone to determine beyond a reasonable doubt that the valid ground was the basis for the plea. Yet section 1170.95 contemplates the same procedure to determine ineligibility in plea cases as in cases in
13 which the murder conviction was reached at trial.” (Rodriguez, at pp. 239–240.) Nor do we agree with Cernogg’s perfunctory contention that application of the alternative-theory error standard is required in order to preserve his right to a “reliable and unanimous jury determination” of his guilt. The “retroactive relief [petitioners] are afforded by Senate Bill 1437 is not subject to Sixth Amendment analysis. Rather, the Legislature’s changes constituted an act of lenity that does not implicate defendants’ Sixth Amendment rights” to a jury trial. (People v. Anthony (2019) 32 Cal.App.5th 1102, 1156; People v. Lopez (2019) 38 Cal.App.5th 1087, 1114–1115, review granted Nov. 13, 2019, S258175; People v. Lopez (2020) 56 Cal.App.5th 936, 958, review granted Feb. 10, 2021, S265974 [proceedings under section 1170.95 do not implicate the Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt].) “Section 1170.95 petitioners are not criminal defendants charged anew with murder and constitutionally entitled to a jury trial. Instead, they stand convicted of murder, their convictions are final, and they can constitutionally be punished for murder despite the ameliorative changes to the law of murder enacted by Senate Bill No. 1437.” (People v. Lopez, 56 Cal.App.5th at p. 957.) c. The independent fact finder standard applies to a section 1170.95, subdivision (d)(3) hearing We agree with Cernogg, however, insofar as he asserts that the proper inquiry for a court ruling on a section 1170.95 petition is not whether there is substantial evidence in the record to support a murder verdict on a still-valid ground. Instead, at the subdivision (d)(3) hearing stage, the court must act as an independent trier of fact and determine—based upon the record
14 and/or additional evidence presented by the parties—whether, beyond a reasonable doubt, the petitioner is guilty under a theory that remains valid after Senate Bill 1437’s enactment. Section 1170.95 is not a model of clarity. Subdivision (d)(3) provides that the prosecution has the burden to prove, beyond a reasonable doubt, that “the petitioner is ineligible for resentencing.” Subdivision (d) does not define ineligibility. Therefore, “ineligible for resentencing” necessarily refers back to the three requirements for filing a section 1170.95 petition listed in subdivision (a): a charging document must have been filed against the petitioner allowing the prosecution to proceed under a felony-murder or natural and probable consequences theory; the petitioner was convicted of murder; and—most significantly for our inquiry—the petitioner “could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019,” that is, by Senate Bill 1437. In most cases, persons convicted of offenses other than murder, or who are ineligible as a matter of law, will not reach the subdivision (d)(3) hearing stage. The touchstone for the trial court’s determination at the hearing, therefore, is whether the petitioner “could not be convicted” of murder after the amendments effectuated by Senate Bill 1437. The People’s task is to prove the converse, that the petitioner could be convicted of murder absent application of the felony-murder rule or the natural and probable consequences doctrine. (See People v. Lopez, supra, 56 Cal.App.5th at pp. 948–949, rev. gr.) The appellate courts are currently divided on the question of what this phrase means. People v. Duke (2020) 55 Cal.App.5th
15 113,4 concluded that the prosecution must prove, beyond a reasonable doubt, that “the defendant could still have been convicted of murder under the new law—in other words, that a reasonable jury could find the defendant guilty of murder with the requisite mental state for that degree of murder. This is essentially identical to the standard of substantial evidence, in which the reviewing court asks ‘whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt . . . .’ ” (Id. at p. 123; see also People v. Garcia (2020) 57 Cal.App.5th 100, 106, review granted Feb. 10, 2021, S265692.) Other courts have rejected this construction of the statute, concluding that a petition may not be denied based merely upon the existence of sufficient evidence in the record to support a murder conviction. Instead, the court hearing the petition must act as an independent fact finder and determine whether the evidence—in the record or newly presented at the hearing— establishes beyond a reasonable doubt that the petitioner is guilty of murder under amended sections 188 and 189. (See People v. Duchine (2021) 60 Cal.App.5th 798, 812–815 (Duchine); Clements, supra, 60 Cal.App.5th at pp. 603, 615–617 [trial judge ruling on a section 1170.95 petition “sits as a fact finder” and “reviews the record, hears the testimony, and decides as a factual matter whether the petitioner committed murder under the current law”]; Rodriguez, supra, 58 Cal.App.5th at pp. 243–244; People v. Lopez, supra, 56 Cal.App.5th at p. 951, rev. gr. [trial court must find, beyond a reasonable doubt, that prosecutor has proved each element of murder under current law].) Our
4 Review was granted in Duke on January 13, 2021, S265309.
16 Supreme Court is currently considering the issue. (People v. Duke, S265309.) Although we do not necessarily agree with all of the analyses propounded by the latter group of authorities, we agree with their conclusion that section 1170.95 requires that the trial court, acting as trier of fact, must determine whether the petitioner is guilty of murder based on a still-valid theory. We acknowledge that some aspects of section 1170.95 suggest the Duke court’s conclusion is correct. After Senate Bill 1437, an accomplice who was not the actual killer may still be guilty of murder if he or she was a direct aider and abettor, acted with malice, or—if the felony-murder rule was at issue—was a major participant who acted with reckless indifference to human life. (See People v. Lewis (2020) 43 Cal.App.5th 1128, 1135, review granted Mar. 18, 2020, S260598; Nguyen, supra, 53 Cal.App.5th at p. 1168; §§ 187, subd. (a); 188, subd. (a); 189, subd. (e).) Section 1170.95, subdivision (d)(3) expressly provides that at the hearing, either party may rely on the record of conviction or present new evidence. Arguably, therefore, where the People have already presented sufficient evidence at trial to prove the defendant was a direct aider and abettor, acted with malice, or was a major participant who acted with reckless indifference to human life, such evidence necessarily proves he or she could be convicted of murder despite Senate Bill 1437’s amendments. And, because the substantial evidence inquiry incorporates the reasonable doubt standard, it can be argued that subdivision (d)(3)’s reasonable doubt requirement is met. (See People v. Morales (2020) 10 Cal.5th 76, 88 (Morales) [“ ‘When considering a challenge to the sufficiency of the evidence to support a
17 conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt,’ ” italics added]; People v. Flinner (2020) 10 Cal.5th 686, 748.) Nonetheless, two aspects of section 1170.95 convince us that the statute should not be so construed: the express reference to the reasonable doubt standard in subdivision (d)(3), and the provision that the parties may present new evidence at the hearing. First, the Legislature’s explicit requirement that the prosecution must prove a petitioner could be convicted under current law “beyond a reasonable doubt” strongly suggests the substantial evidence standard is inapplicable. If the Legislature simply intended to impose the reasonable doubt requirement that is already incorporated into the substantial evidence test, the reference in subdivision (d)(3) is at best surplusage. But when construing a statute, we must give meaning to each of its provisions. (See B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 13 [courts should, if possible, “give meaning to every word of a statute and avoid constructions that make any word surplusage”]; People v. Franco (2018) 6 Cal.5th 433, 437–438; Clements, supra, 60 Cal.App.5th at p. 615.) Construing the statute to require the prosecution “to prove ‘beyond a reasonable doubt’ that ‘substantial evidence’ exists,” “borders on incomprehensible.” (Duchine, supra, 60 Cal.App.5th at p. 813– 815.) Under this approach, the court illogically would be required to “employ these two widely divergent standards in a combined (and backwards) fashion to determine . . . whether a jury
18 hypothetically could have found a defendant guilty under a permissible theory had it addressed the issue.” (Id. at p. 816, italics omitted.) Moreover, there are crucial differences in the reasonable doubt standard incorporated into the substantial evidence test as applied on appeal, and the reasonable doubt standard employed by a trier of fact. In the former, although the appellate court must find the evidence sufficient to support the judgment beyond a reasonable doubt, the record is viewed in the light most favorable to the judgment. (People v. Harris (2013) 57 Cal.4th 804, 849; Morales, supra, 10 Cal.5th at p. 88.) A court examining the record for substantial evidence presumes in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence, and does not resolve evidentiary conflicts or judge credibility. (People v. Veamatahau (2020) 9 Cal.5th 16, 35–36; People v. Harris, at p. 849; Morales, at p. 88; People v. Gomez (2018) 6 Cal.5th 243, 278.) Nor does the court inquire whether the evidence might be reasonably reconciled with the defendant’s innocence. (People v. Veamatahau, at p. 36; People v. Gomez, at p. 278.) In contrast, when a trier of fact applies the reasonable doubt standard, it must do the opposite: it must weigh the evidence, judge credibility, and impartially consider all the evidence and determine whether it leaves the trier of fact with an abiding conviction the charge is true. (See § 1096; Clements, supra, 60 Cal.App.5th at p. 615; CALCRIM No. 220.) Given these differences, the explicit reference to the reasonable doubt standard indicates the Legislature expected a trier of fact to independently make the subdivision (d)(3) inquiry. Construing that subdivision to require only a substantial
19 evidence test would effectively read the reasonable doubt language out of the provision. (Clements, supra, 60 Cal.App.5th at p. 615.) “It is unlikely the Legislature would have selected that language if it had intended only an appellate-type review of the sufficiency of the evidence of the petitioner’s guilt on a still- viable theory, rather than requiring the prosecutor to actually establish the petitioner’s guilt under the newly amended statutes.” (Rodriguez, supra, 58 Cal.App.5th at p. 242.) Second, the substantial evidence test does not align with subdivision (d)(3)’s provision that the parties may present new evidence at the hearing. Applying the substantial evidence test “has the demerit of leaving completely obscure what the trial judge would be asked to do in a case where there is a trial transcript and new live testimony.” (Clements, supra, 60 Cal.App.5th at p. 617]; Rodriguez, supra, 58 Cal.App.5th at p. 242 [“How is the superior court to evaluate that additional evidence if not as an independent fact finder? It would be pointless for the court’s role in this situation simply to be deciding whether a jury could credit a new witness’s testimony and thus could conclude the petitioner had acted with express malice”].) Indeed, where, as here, the record already contains substantial evidence to prove guilt under a valid theory, the provision allowing admission of new evidence would be meaningless. Since a court applying the substantial evidence test examines only whether the evidence is sufficient—and may not weigh credibility or resolve evidentiary conflicts—new evidence could never overcome the conclusion that substantial evidence already existed; that would be a foregone conclusion. We do not think the Legislature would have enacted a provision that, at least in some cases, could have no practical effect.
20 Finally, application of the independent fact finder standard better effectuates the Legislature’s intent. Due to its concerns about the disparity between individual culpability and punishment that existed under the natural and probable consequences doctrine and the felony-murder rule, the Legislature enacted Senate Bill 1437 to more equitably sentence “both past and future offenders in relation to their own actions and subjective menses reae.” (Rodriguez, supra, 58 Cal.App.5th at p. 240.) Application of the substantial evidence standard does less to fulfill these goals than does the independent fact finder standard. (See id. at p. 238.) Because the substantial evidence standard is highly deferential, its application risks denying relief to petitioners in cases where the evidence was merely sufficient, rather than persuasive—and in which a trier of fact, weighing the evidence, resolving conflicts, and evaluating credibility— might well come to a different conclusion. Moreover, the questions at issue in the direct appeal may have been quite different than those arising when the natural and probable consequences theory and felony-murder rule are excised from the picture. Thus, looking solely to a prior appellate opinion’s holding that substantial evidence existed risks overlooking or giving too little weight to evidence that was of lesser import when the felony-murder rule and natural and probable consequences theory were still viable. (See Clements, supra, 60 Cal.App.5th at p. 613.)5
5 We do not suggest that reliance on a prior opinion is improper. It is part of the record of conviction, and section 1170.95, subdivision (d)(3) expressly allows the parties and court, at the hearing, to rely on the record of conviction. (See, e.g., Clements, supra, 60 Cal.App.5th at pp. 612–613; People v. Gomez
21 In sum, “[i]n view of the ameliorative purposes of Senate Bill 1437, the Legislature’s stated concerns about proportionality, fairness and excessive punishment, and its adoption of a trial court proceeding at which new evidence may be submitted and a criminal trial burden of proof beyond a reasonable doubt is applied,” (Duchine, supra, 60 Cal.App.5th at p. 813), application of the substantial evidence standard is unwarranted.6 d. Because it is unclear whether the trial court applied the correct standard, reversal and remand is required The People argue the record shows the trial court independently found, beyond a reasonable doubt, that Cernogg acted with the intent to kill. In our view, the record is ambiguous. The court stated it had considered the court file as well as this court’s prior opinions, and it discussed the evidence presented at trial. It also referenced the reasonable doubt standard. But, the record also suggests the court felt bound by the law of the case doctrine, and denied the petition because this court had already held substantial evidence existed to support a jury finding that Cernogg was guilty as an aider and abettor. The trial court referenced its own findings, but only in conjunction with the “findings of the appellate court.” When Cernogg’s counsel asked the court to specify the basis for its decision, it responded that “the findings by the appellate court are such that there is more than sufficient evidence to find
(2020) 52 Cal.App.5th 1, 15–16, review granted Oct. 14, 2020, S264033; Verdugo, supra, 44 Cal.App.5th at p. 333, rev. gr.; People v. Lewis, supra, 43 Cal.App.5th at p. 1136, fn. 7, rev. gr.)
6 In light of our conclusion, we do not address Cernogg’s perfunctory assertion that application of the substantial evidence standard violates equal protection principles.
22 beyond a reasonable doubt the defendant guilty under the aiding- and-abetting theory and that’s based on the appellate court’s finding it appears that’s what the jury did.” When counsel argued that the substantial evidence test did not apply, the court again referenced the law of the case doctrine. Had the court been acting as an independent fact finder, there would have been no reason for it to discuss the law of the case doctrine. In light of this ambiguity, we reverse the court’s order and remand to allow the trial court to conduct a new hearing at which it should act as the trier of fact, determine whether the prosecution has established all elements of second degree murder on a still-viable theory, and state its findings on the record. (See Rodriguez, supra, 58 Cal.App.5th at p. 244.) 3. Cernogg is not entitled to a new jury trial Finally, Cernogg asserts that “should this Court decline to vacate and reduce the offense to false imprisonment, it should order a new jury trial because it cannot be determined beyond a reasonable doubt whether the jury relied upon a legally correct or incorrect theory of murder when it found appellant guilty in 2008.” This contention rests on two faulty premises: first, that Senate Bill 1437 applies retroactively; and second, that Cernogg can appeal his conviction despite the fact his judgment is long final. Our Supreme Court has recently confirmed that Senate Bill 1437’s amendments do not apply retroactively on direct appeal, and the sole avenue of relief is a section 1170.95 petition. (Gentile, supra, 10 Cal.5th at p. 839.) The court there explained: “the procedure set forth in section 1170.95 is the exclusive mechanism for retroactive relief and thus the ameliorative provisions of Senate Bill 1437 do not apply to nonfinal judgments
23 on direct appeal.” (Ibid.) This holding compels rejection of Cernogg’s contention. Indeed, Cernogg’s conviction was final when Senate Bill 1437 was enacted. If the bill’s ameliorative provisions do not apply to nonfinal convictions, they certainly cannot apply to a final conviction. (See In re Estrada (1965) 63 Cal.2d 740, 745.) Senate Bill 1437 does not entitle Cernogg to a new trial. DISPOSITION The order is reversed. The matter is remanded for further proceedings in accordance with the opinions expressed herein. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
24 | 03-12-2021 | [
"Filed 3/12/21 P. v. Cernogg CA2/3 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 THREE THE PEOPLE, B303218 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA085192) v. JAMES RUSSELL CERNOGG, JR., Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Sean D. Coen, Judge. Reversed and remanded with directions. Edward H. Schulman, 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, Assistant Attorney General, Charles S. Lee and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent. ________________________ In March 2008, a jury convicted defendant and appellant James Russell Cernogg, Jr., of the murder of Michael Pimental. Cernogg’s accomplice was the actual killer. In 2019, Cernogg petitioned for resentencing pursuant to Penal Code section 1170.95.1 After appointing counsel for Cernogg and considering briefing by the parties, the court denied the petition, finding that the evidence was sufficient to prove beyond a reasonable doubt that Cernogg acted as a direct aider and abettor. Cernogg appeals, contending the trial court employed the wrong standard at the hearing, and he is entitled to a new jury trial in light of Senate Bill 1437.",
"We reject the latter contention. However, because the record is not clear regarding whether the trial court applied a substantial evidence standard or, acting as a finder of fact, applied the beyond a reasonable doubt standard, we reverse and remand for the court to conduct a new hearing. FACTUAL AND PROCEDURAL BACKGROUND 1. The murder and Cernogg’s conviction2 On May 11, 2006, 12-year old Camilo H. and 15-year old Pimental were “tagging” in the area of Rosecrans and Poinsettia Avenues in Compton. Camilo wrote his moniker, “Dust,” on a wall. Cernogg, who was an associate of the Elm Street Piru gang, was riding his bicycle in the area and asked the youths why they were writing on the wall.",
"Camilo said, “ ‘My bad.’ ” Cernogg told 1 All further undesignated statutory references are to the Penal Code. 2 We derive the factual and procedural background in part from our prior opinions in this matter, of which we have taken judicial notice at Cernogg’s request. (Evid. Code, §§ 451, 452, 459.) 2 the boys to come with him, and they complied. As they walked down Rosecrans, Cernogg spoke with another person on the phone and said, “ ‘I got them right [here. ]’ ” The person on the phone told him to hold the boys there. Cernogg said to Camilo, “ ‘I’m going to kill you and your mom.’ ” Meanwhile, Michael Morales, a friend of the boys, approached and asked Pimental if he had seen his mother. Pimental asked Morales to accompany them.",
"Cernogg asked Morales if he wanted “ ‘some problems, too’ ” and said “ ‘[y]ou better go back.’ ” According to Morales’s trial testimony, Cernogg pulled up his shirt to reveal a gun in his waistband.3 Cernogg said, “ ‘I’m going to teach these little fools a lesson not to write in my hood again.’ ” Within a few minutes, defendant Jeffrey Martin, an Elm Street Piru gang member, arrived at the scene. He held a gun, covered with a rag. Without saying a word to anyone, Martin pointed the gun at Pimental, who pleaded, “ ‘No, don’t shoot.’ ” From a distance of no more than three feet away, Martin fired a single shot into Pimental’s head, killing him. Cernogg ran away, leaving his bicycle at the scene; Martin walked away in the same direction.",
"Cernogg was charged with murder. At trial, the People proceeded under two theories of guilt: that Cernogg directly aided and abetted the murder, and that the murder was the natural and probable consequence of the target crime, felony false imprisonment. The jury was instructed on both theories. (CALJIC No. 3.01; CALJIC No. 3.02.) It convicted Cernogg of 3 At trial, Morales did not identify Cernogg as the man on the bicycle. Prior to trial, he did not tell detectives that the man on the bicycle displayed a gun. 3 first degree murder (§ 187, subd. (a)) and additionally found gang and firearm enhancements true.",
"(§§ 186.22, subd. (b), 12022.53, subds. (b), (c), (d), & (e)(1).) The trial court sentenced Cernogg to 25 years to life in prison for the murder, plus 25 years to life for the firearm enhancement. 2. Prior appeals In an opinion issued on December 9, 2009, this Division affirmed Cernogg’s judgment. (People v. Cernogg (Dec. 9, 2009, B210684) [nonpub. opn.] (Cernogg I).) Cernogg I rejected his claims that the evidence was insufficient, the trial court committed instructional and sentencing errors, and the sentence amounted to cruel and unusual punishment. In particular, Cernogg I concluded the evidence was sufficient to support both theories advanced by the People, i.e., direct aiding and abetting and the natural and probable consequences doctrine. After describing the evidence supporting the conclusion that Cernogg was a direct aider and abettor, Cernogg I held, “This evidence is more than sufficient to show that Cernogg shared Martin’s intent and purpose; hence, he is liable as a direct aider and abettor of Pimental’s murder.” Turning to the sufficiency of the evidence to support the conviction under the natural and probable consequences doctrine, Cernogg I continued: “Alternatively, it is also possible that Cernogg did not know that Martin intended to execute Pimental.",
"Perhaps, as Cernogg suggests in his opening brief, he thought Martin would merely give the young boys a ‘stern warning.’ Even so, there is still evidence to support the judgment under the natural and probable consequences doctrine.” In 2014, our Supreme Court concluded, in People v. Chiu (2014) 59 Cal.4th 155 (Chiu), that an aider and abettor cannot be 4 guilty of first degree premeditated murder under the natural and probable consequences doctrine. (Id. at pp. 158–159.) In April 2015, we granted Cernogg’s motion to recall the remittitur and reinstate the appeal, based on Chiu. In an opinion issued on September 3, 2015, we concluded that under Chiu, the trial court had erred by instructing the jury on the natural and probable consequences doctrine. (People v. Cernogg (Sept. 3, 2015, B210684) [nonpub. opn.] (Cernogg II).)",
"We determined that the matter had to be remanded for either a new trial, or to allow the People to accept a reduction of the offense to second degree murder. We reasoned: “Where, as here, a defendant possibly has been convicted of first degree premeditated murder under the natural and probable consequences doctrine, the conviction must be reversed unless the reviewing court can conclude beyond a reasonable doubt that the jury based its verdict on a legally valid theory. [Citations.] A legally valid theory—direct aiding and abetting—was before the jury. But, as the People concede, we cannot determine beyond a reasonable doubt that the jury based its verdict on that theory, as opposed to the invalid natural and probable consequences doctrine.",
"The People argued both theories to the jury and nothing in the record suggests on which theory the jury relied.” We further explained that the evidence was sufficient to prove Cernogg acted as a direct aider and abettor: “As to direct aiding and abetting, we previously found that there was sufficient evidence to support that theory. To prove liability as a direct aider and abettor, the prosecution must show that the defendant ‘acted “with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.’ 5 [Citation.] The evidence here was that Martin was a known member of the Elm Street Piru gang, and Cernogg was an associate of the gang. On the night of Pimental’s murder, Cernogg was riding his bike in gang territory. When he stopped Pimental and Camilo, he told them to come with him.",
"Cernogg chirped Martin, who told Cernogg to ‘hold them’ there. Cernogg followed Martin’s orders. Cernogg stated his intent to Camilo: ‘ “I'm going to kill you and your mom.” ’ [¶] That Cernogg intended harm is further evidenced by his threat to Morales, a friend of Pimental’s and Camilo’s who happened to wander by. Cernogg told Morales that unless he too wanted ‘ “some problems,” ’ he had ‘ “better go.” ’ Cernogg lifted his shirt to reveal a gun and said something to the effect of, ‘ “I’m going to teach these little fools a lesson not to write in my hood again.” ’ This evidence is more than sufficient to show that Cernogg shared Martin’s intent and purpose and to therefore allow a retrial under a direct aiding and abetting theory.” On remand, the People elected not to retry Cernogg for first degree murder. His conviction was reduced to second degree murder, and the trial court resentenced him to 15 years to life for the murder, plus 25 years to life for the firearm enhancement. 3. Cernogg’s section 1170.95 petition and appeal In January 2019, after passage of Senate Bill No. 1437 (2017–2018 Reg.",
"Sess.) (Senate Bill 1437), Cernogg filed a petition to vacate his second degree murder conviction. Using a preprinted form, he checked boxes stating that he had been convicted of murder pursuant to the felony-murder rule or the natural and probable consequences doctrine; he was not the actual killer; and he could not now be convicted of murder in light 6 of changes to the law made by Senate Bill 1437. He also checked a box requesting that counsel be appointed for him. The trial court determined that Cernogg had established a “prima facie case for resentencing” and appointed counsel for him. Thereafter, the People filed a response opposing the petition, Cernogg filed a reply, and the People filed another response. The People argued that the record of conviction was sufficient to prove Cernogg acted as a direct aider and abettor with the intent to kill, and therefore he was not entitled to relief under section 1170.95. Cernogg argued the trial evidence did not show he had the intent to kill. Further, he argued the question was not whether substantial evidence supported denial of the petition.",
"Instead, the court had to apply the “beyond a reasonable doubt” standard. On November 21, 2019, the trial court denied the petition. It stated that it had taken into consideration “the court file” and this court’s prior opinions in the case. It explained, “Based upon that . . . I find to be the law of this case and I do find that [section] 1170.95 is not applicable to Mr. Cernogg, specifically 1170.95(a)(3) in that the findings of the appellate court and my findings with the appellate court decision is that their malice was present in regards to an intent to kill on a direct aiding-and- abetting theory beyond a reasonable doubt.” Defense counsel argued at the hearing that the substantial evidence test, applicable when an appellate court reviews the sufficiency of the evidence, should not apply to evaluation of a section 1170.95 petition.",
"Instead, she argued, the court was required to presume Cernogg was innocent and “weigh the evidence again.” In counsel’s view, the evidence did not show Cernogg was a direct aider and abettor. 7 In response the trial court opined, “When the appellate court makes the decision, some of these facts again are the law of the case and the finding of fact and that’s one of the things I’m going by, almost that I am bound by, not that there’s sufficient evidence, but they are pointing out the fact of the finding and that’s what I’m basing my decision on as well.” Cernogg filed a timely notice of appeal. DISCUSSION 1. Senate Bill 1437 Senate Bill 1437, which took effect on January 1, 2019, limited accomplice liability under the felony-murder rule and eliminated the natural and probable consequences doctrine as it relates to murder, to ensure that a person’s sentence is commensurate with his or her individual criminal culpability. (People v. Gentile (2020) 10 Cal.5th 830, 842–843 (Gentile); People v. Verdugo (2020) 44 Cal.App.5th 320, 323, review granted Mar. 18, 2020, S260493 (Verdugo); People v. Munoz (2019) 39 Cal.App.5th 738, 749–750, 763, review granted Nov. 26, 2019, S258234 (Munoz).)",
"Prior to passage of Senate Bill 1437, under the natural and probable consequences doctrine a defendant was “liable for murder if he or she aided and abetted the commission of a criminal act (a target offense), and a principal in the target offense committed murder (a nontarget offense) that, even if unintended, was a natural and probable consequence of the target offense.” (People v. Lamoureux (2019) 42 Cal.App.5th 241, 248; Munoz, supra, 39 Cal.App.5th at p. 749, rev.gr.) Senate Bill 1437 amended section 188 to state that malice may not be imputed to a person based solely on his or her participation in a crime. (§ 188, subd. (a)(3).) Thus, pursuant to Senate Bill 1437, 8 where the felony-murder rule is not at issue, a person must act with malice to be convicted of murder.",
"(Munoz, at p. 749.) Senate Bill 1437 also added section 1170.95, which created a procedure whereby persons convicted of murder under a felony- murder or natural and probable consequences theory may petition in the sentencing court for vacation of their convictions and resentencing. A defendant is eligible for relief under section 1170.95 if he meets three conditions: (1) he must have been charged with murder by means of a charging document that allowed the prosecution to proceed under a natural and probable consequences or felony-murder theory; (2) he must have been convicted of first or second degree murder; and (3) he could no longer be convicted of first or second degree murder due to changes to sections 188 and 189 wrought by Senate Bill 1437.",
"(§ 1170.95, subd. (a).) Evaluation of a section 1170.95 petition requires a multi- step process: an initial review to determine the petition’s facial sufficiency; a prebriefing, “ ‘first prima facie review’ ” to preliminarily determine whether the petitioner is statutorily eligible for relief as a matter of law; and a second, postbriefing prima facie review to determine whether the petitioner has made a prima facie case that he or she is entitled to relief. (People v. Tarkington (2020) 49 Cal.App.5th 892, 897, review granted Aug. 12, 2020, S263219 (Tarkington); Verdugo, supra, 44 Cal.App.5th at pp. 327–330, rev.gr. ; but see People v. Cooper (2020) 54 Cal.App.5th 106, 118, review granted Nov. 10, 2020, S264684 [1170.95, subd. (c) does not require two prima facie reviews].)",
"If the petitioner makes such a showing, the court must issue an order to show cause (OSC) and conduct a hearing to determine whether to vacate the murder conviction and resentence the 9 petitioner on any remaining counts. (§ 1170.95, subds. (c), (d); People v. Nguyen (2020) 53 Cal.App.5th 1154, 1165–1166 (Nguyen).) At that hearing, the burden of proof is on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. Both the People and the petitioner may rely on the record of conviction, including an appellate opinion in the case, and may also present new and additional evidence to demonstrate the petitioner is, or is not, entitled to resentencing. (§ 1170.95, subd. (d)(3); see People v. Clements (2021) 60 Cal.App.5th 597, 603, 612–613 (Clements); Tarkington, supra, 49 Cal.App.5th at pp.",
"899, fn. 5, 909, rev. gr. ; Verdugo, supra, 44 Cal.App.5th at p. 333, rev. gr.) “If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.” (§ 1170.95, subd. (d)(3).) 2. Application here Although the trial court here did not issue an OSC, the parties treat its denial of the petition as a decision on the merits following an evidentiary hearing under section 1170.95, subdivision (d)(3). Cernogg does not contend the court’s failure to issue an OSC was error or somehow prejudiced him. Accordingly, we treat the court’s ruling as a denial of the petition under subdivision (d)(3). Cernogg contends that the trial court erroneously based its denial of his petition on the substantial evidence standard: that is, it improperly concluded he was not entitled to relief because Cernogg II held there was sufficient evidence presented at his trial to prove he was a direct aider and abettor.",
"Instead, he 10 argues, his petition could be denied only if the People established, beyond a reasonable doubt, that his jury actually based its verdicts upon a still-valid theory, a showing they could not make in light of this court’s earlier opinions. Further, he asserts that unless his murder conviction is vacated, his case must be remanded for a new jury trial. The People appear to assert that, when ruling on a section 1170.95 petition at the subdivision (d)(3) hearing stage, a trial court must act as a trier of fact and apply the reasonable doubt standard. They contend that the trial court correctly applied this standard here, despite its discussion of the law of the case doctrine. a. Principles of statutory interpretation When construing a statute, our “primary task is to determine and give effect to the legislature’s purpose in enacting the law.” (In re H.W.",
"(2019) 6 Cal.5th 1068, 1073.) “ ‘We start with the statute’s words, which are the most reliable indicator of legislative intent.’ [Citation.] ‘ “We interpret relevant terms in light of their ordinary meaning, while also taking account of any related provisions and the overall structure of the statutory scheme to determine what interpretation best advances the Legislature’s underlying purpose.” ’ [Citation.] ‘If we find the statutory language ambiguous or subject to more than one interpretation, we may look to extrinsic aids, including legislative history or purpose to inform our views.’ [Citation. ]” (In re A.N. (2020) 9 Cal.5th 343, 351–352.) We harmonize the various parts of an enactment by considering the particular clause or section in the context of the statute as a whole.",
"(People v. DeLeon (2017) 3 Cal.5th 640, 648; In re H.W., at p. 1073.) We review questions of 11 statutory interpretation de novo. (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.) b. The “alternative-theory error” standard is inapplicable to evaluation of a section 1170.95 petition Cernogg argues that a trial court may deny a section 1170.95 petition only if it finds, beyond a reasonable doubt, that the petitioner was actually convicted of murder under a still- viable theory. On direct appeal, an “alternative-theory error” standard applies when a trial court erroneously instructs on two theories of guilt, one legally correct, one not. Where the record suggests the jury could have based its verdict on the legally invalid theory, and there is no other basis to determine the instruction was harmless beyond a reasonable doubt, reversal is required.",
"(People v. Aledamat (2019) 8 Cal.5th 1, 13; Chiu, supra, 59 Cal.4th at p. 167 [when court instructs on a legally correct and a legally erroneous theory, reversal is required “unless there is a basis in the record to find that the verdict was based on a valid ground”]; In re Martinez (2017) 3 Cal.5th 1216, 1218 [reversal required unless record shows jury actually relied on a legally valid theory].) The question is not whether it is clear beyond a reasonable doubt that the defendant was found guilty under the legally correct theory, “but whether we can say, beyond a reasonable doubt, that the legally incorrect jury instruction did not taint the actual jury verdict.” (People v. Baratang (2020) 56 Cal.App.5th 252, 263.)",
"Cernogg argues that under section 1170.95, “[p]roving ineligibility beyond a reasonable doubt is simply another way of saying that the instructional error in the first instance was ‘harmless beyond a reasonable doubt.’ ” Thus, he reasons, because this court has already held that it was not possible to 12 determine, beyond a reasonable doubt, which theory the jury relied upon, his petition should have been granted and his conviction vacated. We disagree. This is not a direct appeal, and the alternative-theory error standard does not apply. As People v. Rodriguez (2020) 58 Cal.App.5th 227 (Rodriguez) recently explained, the alternative-theory error standard is inconsistent with section 1170.95’s language in three respects. “First, the [alternative-theory error] line of cases requires courts to inquire whether ‘there is a basis in the record to find that the verdict was based on a valid ground.’ [Citation.] That backward looking evaluation is inconsistent with section 1170.95, subdivisions (a)(3)’s and (d)(3)’s explicit direction to the court to determine if the petitioner could now be convicted of murder under sections 188 and 189 as amended, not whether he or she was, in fact, convicted of murder under a still-valid theory.",
"Second, subdivision (d)(3) permits both parties to present new or additional evidence at the hearing after issuance of the order to show cause. If the superior court’s ineligibility ruling may be based on evidence not heard by the original trier of fact, the Legislature cannot have intended the court simply to evaluate the grounds on which the original verdict was reached. Finally, section 1170.95 is available to defendants convicted of murder following a plea in lieu of a trial. Given the limited record in many of those cases, it would be impossible to assess whether a still-valid ground for a murder conviction existed, let alone to determine beyond a reasonable doubt that the valid ground was the basis for the plea. Yet section 1170.95 contemplates the same procedure to determine ineligibility in plea cases as in cases in 13 which the murder conviction was reached at trial.” (Rodriguez, at pp.",
"239–240.) Nor do we agree with Cernogg’s perfunctory contention that application of the alternative-theory error standard is required in order to preserve his right to a “reliable and unanimous jury determination” of his guilt. The “retroactive relief [petitioners] are afforded by Senate Bill 1437 is not subject to Sixth Amendment analysis. Rather, the Legislature’s changes constituted an act of lenity that does not implicate defendants’ Sixth Amendment rights” to a jury trial. (People v. Anthony (2019) 32 Cal.App.5th 1102, 1156; People v. Lopez (2019) 38 Cal.App.5th 1087, 1114–1115, review granted Nov. 13, 2019, S258175; People v. Lopez (2020) 56 Cal.App.5th 936, 958, review granted Feb. 10, 2021, S265974 [proceedings under section 1170.95 do not implicate the Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt].) “Section 1170.95 petitioners are not criminal defendants charged anew with murder and constitutionally entitled to a jury trial. Instead, they stand convicted of murder, their convictions are final, and they can constitutionally be punished for murder despite the ameliorative changes to the law of murder enacted by Senate Bill No. 1437.” (People v. Lopez, 56 Cal.App.5th at p. 957.) c. The independent fact finder standard applies to a section 1170.95, subdivision (d)(3) hearing We agree with Cernogg, however, insofar as he asserts that the proper inquiry for a court ruling on a section 1170.95 petition is not whether there is substantial evidence in the record to support a murder verdict on a still-valid ground.",
"Instead, at the subdivision (d)(3) hearing stage, the court must act as an independent trier of fact and determine—based upon the record 14 and/or additional evidence presented by the parties—whether, beyond a reasonable doubt, the petitioner is guilty under a theory that remains valid after Senate Bill 1437’s enactment. Section 1170.95 is not a model of clarity. Subdivision (d)(3) provides that the prosecution has the burden to prove, beyond a reasonable doubt, that “the petitioner is ineligible for resentencing.” Subdivision (d) does not define ineligibility. Therefore, “ineligible for resentencing” necessarily refers back to the three requirements for filing a section 1170.95 petition listed in subdivision (a): a charging document must have been filed against the petitioner allowing the prosecution to proceed under a felony-murder or natural and probable consequences theory; the petitioner was convicted of murder; and—most significantly for our inquiry—the petitioner “could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019,” that is, by Senate Bill 1437.",
"In most cases, persons convicted of offenses other than murder, or who are ineligible as a matter of law, will not reach the subdivision (d)(3) hearing stage. The touchstone for the trial court’s determination at the hearing, therefore, is whether the petitioner “could not be convicted” of murder after the amendments effectuated by Senate Bill 1437. The People’s task is to prove the converse, that the petitioner could be convicted of murder absent application of the felony-murder rule or the natural and probable consequences doctrine.",
"(See People v. Lopez, supra, 56 Cal.App.5th at pp. 948–949, rev. gr.) The appellate courts are currently divided on the question of what this phrase means. People v. Duke (2020) 55 Cal.App.5th 15 113,4 concluded that the prosecution must prove, beyond a reasonable doubt, that “the defendant could still have been convicted of murder under the new law—in other words, that a reasonable jury could find the defendant guilty of murder with the requisite mental state for that degree of murder. This is essentially identical to the standard of substantial evidence, in which the reviewing court asks ‘whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt . . . .’ ” (Id. at p. 123; see also People v. Garcia (2020) 57 Cal.App.5th 100, 106, review granted Feb. 10, 2021, S265692.) Other courts have rejected this construction of the statute, concluding that a petition may not be denied based merely upon the existence of sufficient evidence in the record to support a murder conviction.",
"Instead, the court hearing the petition must act as an independent fact finder and determine whether the evidence—in the record or newly presented at the hearing— establishes beyond a reasonable doubt that the petitioner is guilty of murder under amended sections 188 and 189. (See People v. Duchine (2021) 60 Cal.App.5th 798, 812–815 (Duchine); Clements, supra, 60 Cal.App.5th at pp. 603, 615–617 [trial judge ruling on a section 1170.95 petition “sits as a fact finder” and “reviews the record, hears the testimony, and decides as a factual matter whether the petitioner committed murder under the current law”]; Rodriguez, supra, 58 Cal.App.5th at pp.",
"243–244; People v. Lopez, supra, 56 Cal.App.5th at p. 951, rev. gr. [trial court must find, beyond a reasonable doubt, that prosecutor has proved each element of murder under current law].) Our 4 Review was granted in Duke on January 13, 2021, S265309. 16 Supreme Court is currently considering the issue. (People v. Duke, S265309.) Although we do not necessarily agree with all of the analyses propounded by the latter group of authorities, we agree with their conclusion that section 1170.95 requires that the trial court, acting as trier of fact, must determine whether the petitioner is guilty of murder based on a still-valid theory.",
"We acknowledge that some aspects of section 1170.95 suggest the Duke court’s conclusion is correct. After Senate Bill 1437, an accomplice who was not the actual killer may still be guilty of murder if he or she was a direct aider and abettor, acted with malice, or—if the felony-murder rule was at issue—was a major participant who acted with reckless indifference to human life. (See People v. Lewis (2020) 43 Cal.App.5th 1128, 1135, review granted Mar. 18, 2020, S260598; Nguyen, supra, 53 Cal.App.5th at p. 1168; §§ 187, subd.",
"(a); 188, subd. (a); 189, subd. (e).) Section 1170.95, subdivision (d)(3) expressly provides that at the hearing, either party may rely on the record of conviction or present new evidence. Arguably, therefore, where the People have already presented sufficient evidence at trial to prove the defendant was a direct aider and abettor, acted with malice, or was a major participant who acted with reckless indifference to human life, such evidence necessarily proves he or she could be convicted of murder despite Senate Bill 1437’s amendments. And, because the substantial evidence inquiry incorporates the reasonable doubt standard, it can be argued that subdivision (d)(3)’s reasonable doubt requirement is met. (See People v. Morales (2020) 10 Cal.5th 76, 88 (Morales) [“ ‘When considering a challenge to the sufficiency of the evidence to support a 17 conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt,’ ” italics added]; People v. Flinner (2020) 10 Cal.5th 686, 748.)",
"Nonetheless, two aspects of section 1170.95 convince us that the statute should not be so construed: the express reference to the reasonable doubt standard in subdivision (d)(3), and the provision that the parties may present new evidence at the hearing. First, the Legislature’s explicit requirement that the prosecution must prove a petitioner could be convicted under current law “beyond a reasonable doubt” strongly suggests the substantial evidence standard is inapplicable. If the Legislature simply intended to impose the reasonable doubt requirement that is already incorporated into the substantial evidence test, the reference in subdivision (d)(3) is at best surplusage.",
"But when construing a statute, we must give meaning to each of its provisions. (See B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 13 [courts should, if possible, “give meaning to every word of a statute and avoid constructions that make any word surplusage”]; People v. Franco (2018) 6 Cal.5th 433, 437–438; Clements, supra, 60 Cal.App.5th at p. 615.) Construing the statute to require the prosecution “to prove ‘beyond a reasonable doubt’ that ‘substantial evidence’ exists,” “borders on incomprehensible.” (Duchine, supra, 60 Cal.App.5th at p. 813– 815.) Under this approach, the court illogically would be required to “employ these two widely divergent standards in a combined (and backwards) fashion to determine . . . whether a jury 18 hypothetically could have found a defendant guilty under a permissible theory had it addressed the issue.” (Id. at p. 816, italics omitted.) Moreover, there are crucial differences in the reasonable doubt standard incorporated into the substantial evidence test as applied on appeal, and the reasonable doubt standard employed by a trier of fact. In the former, although the appellate court must find the evidence sufficient to support the judgment beyond a reasonable doubt, the record is viewed in the light most favorable to the judgment.",
"(People v. Harris (2013) 57 Cal.4th 804, 849; Morales, supra, 10 Cal.5th at p. 88.) A court examining the record for substantial evidence presumes in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence, and does not resolve evidentiary conflicts or judge credibility. (People v. Veamatahau (2020) 9 Cal.5th 16, 35–36; People v. Harris, at p. 849; Morales, at p. 88; People v. Gomez (2018) 6 Cal.5th 243, 278.) Nor does the court inquire whether the evidence might be reasonably reconciled with the defendant’s innocence. (People v. Veamatahau, at p. 36; People v. Gomez, at p.",
"278.) In contrast, when a trier of fact applies the reasonable doubt standard, it must do the opposite: it must weigh the evidence, judge credibility, and impartially consider all the evidence and determine whether it leaves the trier of fact with an abiding conviction the charge is true. (See § 1096; Clements, supra, 60 Cal.App.5th at p. 615; CALCRIM No. 220.) Given these differences, the explicit reference to the reasonable doubt standard indicates the Legislature expected a trier of fact to independently make the subdivision (d)(3) inquiry.",
"Construing that subdivision to require only a substantial 19 evidence test would effectively read the reasonable doubt language out of the provision. (Clements, supra, 60 Cal.App.5th at p. 615.) “It is unlikely the Legislature would have selected that language if it had intended only an appellate-type review of the sufficiency of the evidence of the petitioner’s guilt on a still- viable theory, rather than requiring the prosecutor to actually establish the petitioner’s guilt under the newly amended statutes.” (Rodriguez, supra, 58 Cal.App.5th at p. 242.) Second, the substantial evidence test does not align with subdivision (d)(3)’s provision that the parties may present new evidence at the hearing. Applying the substantial evidence test “has the demerit of leaving completely obscure what the trial judge would be asked to do in a case where there is a trial transcript and new live testimony.” (Clements, supra, 60 Cal.App.5th at p. 617]; Rodriguez, supra, 58 Cal.App.5th at p. 242 [“How is the superior court to evaluate that additional evidence if not as an independent fact finder?",
"It would be pointless for the court’s role in this situation simply to be deciding whether a jury could credit a new witness’s testimony and thus could conclude the petitioner had acted with express malice”].) Indeed, where, as here, the record already contains substantial evidence to prove guilt under a valid theory, the provision allowing admission of new evidence would be meaningless. Since a court applying the substantial evidence test examines only whether the evidence is sufficient—and may not weigh credibility or resolve evidentiary conflicts—new evidence could never overcome the conclusion that substantial evidence already existed; that would be a foregone conclusion. We do not think the Legislature would have enacted a provision that, at least in some cases, could have no practical effect. 20 Finally, application of the independent fact finder standard better effectuates the Legislature’s intent.",
"Due to its concerns about the disparity between individual culpability and punishment that existed under the natural and probable consequences doctrine and the felony-murder rule, the Legislature enacted Senate Bill 1437 to more equitably sentence “both past and future offenders in relation to their own actions and subjective menses reae.” (Rodriguez, supra, 58 Cal.App.5th at p. 240.) Application of the substantial evidence standard does less to fulfill these goals than does the independent fact finder standard. (See id. at p. 238.) Because the substantial evidence standard is highly deferential, its application risks denying relief to petitioners in cases where the evidence was merely sufficient, rather than persuasive—and in which a trier of fact, weighing the evidence, resolving conflicts, and evaluating credibility— might well come to a different conclusion. Moreover, the questions at issue in the direct appeal may have been quite different than those arising when the natural and probable consequences theory and felony-murder rule are excised from the picture. Thus, looking solely to a prior appellate opinion’s holding that substantial evidence existed risks overlooking or giving too little weight to evidence that was of lesser import when the felony-murder rule and natural and probable consequences theory were still viable.",
"(See Clements, supra, 60 Cal.App.5th at p. 613. )5 5 We do not suggest that reliance on a prior opinion is improper. It is part of the record of conviction, and section 1170.95, subdivision (d)(3) expressly allows the parties and court, at the hearing, to rely on the record of conviction. (See, e.g., Clements, supra, 60 Cal.App.5th at pp. 612–613; People v. Gomez 21 In sum, “[i]n view of the ameliorative purposes of Senate Bill 1437, the Legislature’s stated concerns about proportionality, fairness and excessive punishment, and its adoption of a trial court proceeding at which new evidence may be submitted and a criminal trial burden of proof beyond a reasonable doubt is applied,” (Duchine, supra, 60 Cal.App.5th at p. 813), application of the substantial evidence standard is unwarranted.6 d. Because it is unclear whether the trial court applied the correct standard, reversal and remand is required The People argue the record shows the trial court independently found, beyond a reasonable doubt, that Cernogg acted with the intent to kill.",
"In our view, the record is ambiguous. The court stated it had considered the court file as well as this court’s prior opinions, and it discussed the evidence presented at trial. It also referenced the reasonable doubt standard. But, the record also suggests the court felt bound by the law of the case doctrine, and denied the petition because this court had already held substantial evidence existed to support a jury finding that Cernogg was guilty as an aider and abettor.",
"The trial court referenced its own findings, but only in conjunction with the “findings of the appellate court.” When Cernogg’s counsel asked the court to specify the basis for its decision, it responded that “the findings by the appellate court are such that there is more than sufficient evidence to find (2020) 52 Cal.App.5th 1, 15–16, review granted Oct. 14, 2020, S264033; Verdugo, supra, 44 Cal.App.5th at p. 333, rev. gr. ; People v. Lewis, supra, 43 Cal.App.5th at p. 1136, fn. 7, rev. gr.) 6 In light of our conclusion, we do not address Cernogg’s perfunctory assertion that application of the substantial evidence standard violates equal protection principles. 22 beyond a reasonable doubt the defendant guilty under the aiding- and-abetting theory and that’s based on the appellate court’s finding it appears that’s what the jury did.” When counsel argued that the substantial evidence test did not apply, the court again referenced the law of the case doctrine.",
"Had the court been acting as an independent fact finder, there would have been no reason for it to discuss the law of the case doctrine. In light of this ambiguity, we reverse the court’s order and remand to allow the trial court to conduct a new hearing at which it should act as the trier of fact, determine whether the prosecution has established all elements of second degree murder on a still-viable theory, and state its findings on the record. (See Rodriguez, supra, 58 Cal.App.5th at p. 244.) 3. Cernogg is not entitled to a new jury trial Finally, Cernogg asserts that “should this Court decline to vacate and reduce the offense to false imprisonment, it should order a new jury trial because it cannot be determined beyond a reasonable doubt whether the jury relied upon a legally correct or incorrect theory of murder when it found appellant guilty in 2008.” This contention rests on two faulty premises: first, that Senate Bill 1437 applies retroactively; and second, that Cernogg can appeal his conviction despite the fact his judgment is long final. Our Supreme Court has recently confirmed that Senate Bill 1437’s amendments do not apply retroactively on direct appeal, and the sole avenue of relief is a section 1170.95 petition. (Gentile, supra, 10 Cal.5th at p.",
"839.) The court there explained: “the procedure set forth in section 1170.95 is the exclusive mechanism for retroactive relief and thus the ameliorative provisions of Senate Bill 1437 do not apply to nonfinal judgments 23 on direct appeal.” (Ibid.) This holding compels rejection of Cernogg’s contention. Indeed, Cernogg’s conviction was final when Senate Bill 1437 was enacted. If the bill’s ameliorative provisions do not apply to nonfinal convictions, they certainly cannot apply to a final conviction. (See In re Estrada (1965) 63 Cal.2d 740, 745.)",
"Senate Bill 1437 does not entitle Cernogg to a new trial. DISPOSITION The order is reversed. The matter is remanded for further proceedings in accordance with the opinions expressed herein. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS EDMON, P. J. We concur: LAVIN, J. EGERTON, J. 24"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4667390/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] DECISION Appellant Alfred Carpionato has appealed to this Court in order to complain of the Johnston Zoning Board of Review's decision to granting dimensional variances and a special use permit to Appellee Hartford Avenue Associates ("HAA"). For the reasons herein, this Court denies that appeal. FACTS AND TRAVEL HAA plans to renovate commercial property located in a general business zoning district (B2), formerly known as the Westgate Shopping Center, consisting of a 10.89 acre lot at 1450 Hartford Avenue, Plat 33-3, Lot 86. HAA plans to raze the existing buildings on the premises and construct a new BJ's Wholesale Club comprising a 115,367 square foot building as well as gas station. B2 zoning permits, inter alia, general merchandise, department, and furniture stores, such as a BJ's unit, but the BJ's prototype for New England typically includes gasoline pumps, which are allowed in B2 zones by special use permit only. Although a retail gasoline business had existed on the property some time in the past, it had been closed for some years. The gas tanks had been removed, and construction of a new gas station would diminish the number of existing parking spaces. The Johnston Zoning Ordinance requires that a building the size of the proposed BJ's include a lot with 634 parking spaces. Johnston Ordinance, Article III, Section H (1)(d) (retail services must have 5.5 off-street car spaces for every 1,000 square feet of gross leasable area). After construction of the contemplated building and the reinstallation of a gas station, the subject lot would not encompass the requisite number of parking spaces. The limitation on the parking situation was further affected because the property sits, in part, on a one-hundred-year flood plain that precludes designating additional parking spaces behind the building. Thus, HAA petitioned for a dimensional variance allowing a reduction of required parking spaces to 545. HAA also sought a dimensional variance to build an ornamental front that exceeded the building height limitations by approximately eight feet. HAA sought a third dimensional variance to allow an additional pylon sign. The Board conducted at least five advertised public hearings at which HAA presented experts who testified as to the local real estate market, traffic engineering, and environmental management. Peter Scotti, a real estate expert, testified that changes in the market had rendered the existing buildings obsolete and that any new "big box" tenant would require some form of dimensional relief. Corroborating testimony was provided by Brian Beauregard of HAA, who stated that despite his efforts he had been unable to secure a long-term tenant. Scotti also noted that the property is hindered by unique characteristics of the land, an opinion that was further explicated by Kevin Morin of DiPrete Engineering Associates and Pam Pogue, a Rhode Island flood plain manager. Morin described the nature of the flood plain and concluded that HAA's proposal to provide 545 parking spaces not only adequately provided for flood control but also improved water drainage. Edward Pimentel, a land use expert, testified on behalf of the objector and claimed that if a smaller BJ's were built, no variances would be needed. He further suggested that the proposed BJ's would not be consistent with the Johnston Comprehensive Plan. On September 25, 2003, the Board voted (4-1) to deny HAA's initial petition. Board member Steven Ucci said that "the site is too small for what wants to be built there . . . We haven't heard anything about any dimensional hardship, any height hardship . . . The fact the site they'd really like to go to, is too small to fit the building, is not what I see as a hardship." He expressed some concern about the 545 parking spaces, questioned the evidentiary basis for a special use permit for the gas station, and wondered whether the project would ultimately benefit the health and welfare of the community. Board member Anthony Verdardo voted against the initial application, stating, "I don't think the size is conducive to having a gas station on the lot along with a store such as BJ's." Two other board members similarly voted to deny the application in its original form, with Anthony Pilozzi remarking that a lack of parking spaces might invite motorists to park too close to a proposed propane tank. Although the Board's vote was adverse to HAA's initial application, the Board never issued or filed a written decision formally rejecting it. The following month the Board indicated its willingness to reconsider the application if it included modifications that addressed the concerns expressed at the September hearing. Thereafter, on November 25, 2003, and after public notice, the Board considered HAA's amended plan that eliminated propane sales, made concessions on the number of gasoline pumps, and reconfigured the number of parking spaces. After review and reconsideration the Board unanimously embraced the revised plan by a 5-0 vote and filed its formal, written decision granting the application. Carpionato timely appealed the Board's decision to the Superior Court pursuant to § 45-24-69. STANDARD OF REVIEW The Superior Court's review of a zoning board decision is governed by § 45-24-69(d), which provides that: "The court shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact. The court may affirm the decision of the board of review or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been prejudiced because of findings, inferences, conclusions or decisions which are: (1) In violation of constitutional, statutory, or ordinance provisions; (2) In excess of the authority granted to the zoning board of review by statute or ordinance; (3) Made upon unlawful procedure; (4) Affected by other error of law; (5) Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." In the course of such a review this Court is not entitled to substitute its judgment for that of the zoning board if a review of the record below discloses that the decision was supported by substantial evidence.Apostolou v. Genovesi, 388 A.2d 821, 825 (1978). "Substantial evidence . . . means such relevant evidence that a reasonable mind might accept as adequate to support a conclusion, and means [an] amount more than a scintilla but less than a preponderance." Lischio v. Zoning Bd. of Reviewof North Kingstown, 818 A.2d 685, 690 n. 5 (R.I. 2003) (quoting Caswellv. George Sherman Sand Gravel Co., Inc., 424 A.2d 646, 647 (R.I. 1981)). Reversal of the board's decision concerning exceptions or variances under zoning ordinances is invited only when it is clear that the board acted arbitrarily and/or abused its discretion. Madden v.Zoning Board of Review of the City of Warwick, 89 R.I. 131, 134,151 A.2d 681, 683 (1959). The Zoning Board's Power to Reconsider Carpionato claims that the Board impermissibly considered HAA's amended application. The Court disagrees. See Sciacca v. Caruso, 769 A.2d 578, (R.I. 2001) (assuming, without deciding, that a zoning board can reconsider its decision). The Rhode Island Supreme Court has ruled that administrative boards have the inherent power to reconsider their decisions, as "the power to render a decision in the first instance embodies the power to reconsider that decision." In re Denisewich,643 A.2d 1194, 1197 (R.I. 1994) (holding that a hearing committee has the inherent power and obligation to reconvene for the purpose of considering recently available testimony). "It has generally been held that administrative tribunals endowed with quasi-judicial powers embody the inherent power to reconsider their judicial acts." Id. In any event, because the Board's initial adverse vote at the September 30, 2003 hearing did not constitute a final decision, the Board was free to reconsider and recalibrate its ultimate vote. Section 45-24-61(A) and Article VI, § H (1) of the Johnston Ordinance generally require that within a reasonable period of time after a public hearing the Board should issue its decision, which thereafter must be recorded and filed within thirty working days of its issuance. Id. After the decision has been formally filed, an aggrieved party has twenty days within which to file an appeal. Sec. 45-24-69; Art. VI § C (1). Accordingly, until the decision has been filed, the Board should be free to change its mind.See Moschetti v. The Bd. Of Zoning Adjustment of the City of Boulder,574 P.2d 874, 875 (Colo.App. 1977) (administrative boards have authority to modify their decisions at any time prior to the date an appeal must be perfected). Accord, American Smelting Refining Co. v. Arizona AirPollution Control Hearing Bd., 550 P.2d 621, 622 (Ariz. 1976) (a board, commission or tribunal can use its appropriate modification power to reconsider decisions until the time when an appeal is perfected); cf.,Ryan v. Zoning Bd. of Review of Town of New Shoreham, 656 A.2d 612, 616 (R.I. 1995) (board's proceedings were unauthorized after its decision was final). In the instant case, the Board's September 25, 2003 vote never ripened into a formal written, filed decision. Therefore, the Board transgressed no rule of law by considering HAA's revised plan. The Sufficiency of the Board's Decision Carpionato further complains that the Board's findings of fact and conclusions of law ultimately approving HAA's application were insufficient. Carpionato is mistaken. The Board's decision explicitly makes ten findings of fact aptly titled, "Factual Findings": 1. The property at 1450 Harford Avenue presently contains two buildings comprising 117,482 +/- square feet and has been the site of a retail shopping center for many years. 2. The proposed BJ's Wholesale Club is a permitted use under the zoning code but the gasoline pumps require a special use permit. 3. The vast majority of the property has been vacant for many years while the Applicant has investigated the potential redevelopment of the site. 4. There is an existing BJ's Wholesale Club in the vicinity at 1300 Harford Avenue that would close and be relocated to the subject property. 5. The site formerly had a gasoline service station on it that had been closed. 6. The existing shopping plaza has extensive signage and a pylon sign. 7. The existing parking lot and off-street parking spaces are constructed within the front setback and the proposed BJ's Wholesale Club would continue that parking scheme. 8. The size of the proposed 115,367 +/- square foot BJ's Wholesale Club is comparable to the existing shopping plaza buildings. 9. The Applicant has received an Insignificant Alteration Permit from the Rhode Island Department of Environmental Management for the proposed project. 10. The Rhode Island Department of Transportation has given conceptual approval to the plans submitted by the Applicant for the off-site improvements and proposed ingress and egress from the site. The decision also sufficiently documents the Board's application of the factual findings to the legal standards promulgated by the State of Rhode Island and the Town of Johnston for granting zoning relief. In granting the dimensional variance, the Board carefully set forth the legal standard for granting dimensional relief and concluded that: "dimensional relief is reasonable[;] the proposed structure is comparable in size to what is to be replaced. The parking plan is reasonable and supported by competent testimony. The requested relief is reasonably necessary for the allowable site development. The intended use is in compliance with the comprehensive plan and is in conformity with the surrounding uses. The relief is necessary and adequate parking is provided. The design features are appropriate. Denial of the petition will prevent appropriate and feasible development of the land." When discussing the grant of the special use permit, the Board wrote: "Surrounding commercial uses are compatible with the proposed application. Gasoline sales are not new to the area. Environmental concerns have been addressed. The gasoline service station will meet and is subject to permitting requirements, the applicant demonstrates familiarity and experience in gasoline sales. Applicant has renewed environmental permitting approval for the site plan. The Pocasset River Watershed will be improved. The order of growth and development of the Town of Johnston will be enhanced by this development. Department of Environmental Management approval ensures wetland and drainage protection. Traffic and parking plans afford protection of the best interests of the town. The comprehensive plan considers this area as important to the commercial development of the Town of Johnston. This proposed development is in conformity therewith. The applicant's proposed use is a continuation of a commercial use which has served the residents of the Town of Johnston for decades. The expanded tax revenue further benefits the town. The Departments of Environmental Management and Transportation have given preliminary approval to the site plan. The expert traffic testimony stated that the improvements to Hartford Avenue planned by the state and the location of the curb cut at the Shaw's entrance will help with traffic safety. The permitting process for this plan will insure [sic] that all regulatory safeguards are met." Carpionato also claims that the Board neglected to adopt findings of fact at the November hearing to support granting the application. Carpionato, however, misconceives the limited purpose of the November hearing. It was not intended to rehash issues that had already been fully explicated at the earlier hearing; rather, it was intended to see if the modifications offered solutions to the concerns raised in September, concerns that had already resulted in detailed factual itemization. Thus, the Board's discussions at the end of the November meeting necessarily were limited to particularized issues: e.g., the elimination of propane sales, recalibration of parking spaces, and reduction of gasoline pumps. This Court finds no error by the Board in that regard, and the Board's written decision admits of no such claimed error. Carpionato also suggests that the Board's decision is infirm because not all of the Board members affixed their signatures to it and that it does not expressly indicate the vote of each member. See Section 45-24-61(a). This contention is without merit. The contents of the written decision were adopted in their entirety by a unanimous vote of the Board members, and the Board's findings of fact indicate that all of the requirements for granting a variance were met, concluding with the phrase "so voted," followed by the names of the Board members and signed by the chairman. The Board's Power To Grant both Dimensional Reliefand a Special Use Variance Because the Board granted both a special use variance for the gas station and dimensional relief from parking and height restrictions, Carpionato suggests that the ordinance does not authorize the granted relief, relying on Newton v. Zoning Board of Review, 713 A.2d 239, 241 (R.I. 1998). The Newton decision, however, should be constrained to the factual circumstances therein. In Newton, the Supreme Court considered a zoning ordinance that required compliance with certain developmental standards as a prerequisite to obtaining a special use permit. Specifically, a special use permit could only be granted if, in addition to the general requirements for granting such relief, the applicant also complied with minimum standards for lot size, density, parking, exit, entrance, landscaping, side and rear lot requirements. In the instant Ordinance, unlike the Warwick Ordinance considered in Newton, the requirements for obtaining a special use permit do not specifically mandate compliance with the dimensional requirements of the Ordinance or a specific section thereof. See § 45-24-42. Therefore, the facts of this case are not compellingly analogous to those in Newton, and the Board did not act in excess of Ordinance provisions. Dimensional Relief The Johnston Ordinance provides that an application for a dimensional variance may be granted if the Board is presented with credible evidence that: (1) the hardship from which the applicant seeks relief is due to the unique characteristics of the subject land or structure and not to the general characteristics of the surrounding area; and is not due to a physical or economic disability of the applicant; (2) the hardship is not the result of any prior action of the applicant and does not result primarily from the desire of the applicant to realize greater financial gain; (3) the granting of the requested variance will not alter the general character of the surrounding area or impair the intent or purpose of the ordinance or the Comprehensive Plan upon which this Ordinance is based; (4) the relief granted is the least necessary; and (5) the hardship that will be suffered by the owner of the subject property if the dimensional variance is not granted shall amount to more than a mere inconvenience, which shall mean that there is no other reasonable alternative to enjoy a legally permitted beneficial use of one's property. The fact that a use may be more profitable or that a structure may be more valuable after the relief is granted shall not be grounds for relief. Johnston Zoning Ordinance, Article III, Section O. The record reflects Scotti's testimony that the existing buildings were at the end of their useful life, that no potential retail tenant would find the current situation acceptable, and that any new retailer would require similar dimensional relief. Additionally, Beauregard indicated that previous attempts to revitalize the property had failed or were not feasible in today's market. The Board also had before it substantial evidence that the property was burdened by unique characteristics of the land. Morin documented the basis for his opinion that the parking restraints were a direct result of the 100-year flood plain of the Pocasset River, as well as the adjacent wetlands and wetland buffers. As to granting the height variance, the record reflects that the majority of the building complied with local height restrictions. Only the peaks of the ornamental front exceeded the maximum height allowed. An advisory letter from the Planning Board applauded the effort to minimize the visual effect of a "big box store," further contributing to the goal of the Comprehensive Plan to develop a "center of town/Main Street" type of district. As to the signage variance, the Board's decision noted that existing businesses on the property already displayed extensive signage. Because the BJ's unit will be a large building, proportionately large signs were reasonable accoutrements. Furthermore, one of the existing pylon signs was to be removed and replaced with a smaller, monument sign. When viewed as a whole, all of this evidence indicates that HAA would suffer more than a mere inconvenience absent the requested variance. The record also reflects that the relief requested was the least relief necessary. Scotti testified that any new tenant would also need substantially the same dimensional remedy and that the relief requested was the least relief needed. See Lischio v. Zoning Bd. of Review,818 A.2d 685, 691 (R.I. 2003) (applicant must demonstrate some adverse impact amounting to more than a mere inconvenience); DiDonato v. ZoningBd. of Review, 104 R.I. 158, 165 (1968) (more than a mere inconvenience means that an applicant must show that the relief he is seeking is reasonably necessary for the full enjoyment of his permitted use). Accordingly, the Board's grant of dimensional relief to HAA was not impermissible. Special Use Permit In order to grant a special use permit, the Board must find that: (1) the granting of the special-use permit will be compatible with the neighboring uses and will not adversely affect the surrounding neighbors' use and enjoyment of their property; (2) granting the special use permit will be environmentally compatible with neighboring properties and the protection of property values; (3) granting the special use permit will be compatible with the orderly growth and development of the Town of Johnston, and will not be environmentally detrimental therewith; (4) the best practices and procedures to minimize the possibility of any adverse effects on neighboring property, the Town of Johnston, and the environment have been considered and will be employed, including but not limited to, considerations of soil erosion, water supply protection, septic disposal, wetland protection, traffic limitation, safety and circulation; (5) the purposes of this Ordinance, and as set forth in the Comprehensive Plan, shall be served by said special use permit; (6) granting the special use permit will substantially serve public convenience and welfare; and (7) granting of the special use permit will not result in or create conditions that will be inimical to the public health, safety, morals and general welfare of the community. Johnston Zoning Ordinance, Art. III, Section P; Section 45-24-41. Gasoline stations are permitted in a B2 zone by special use permit. Johnston Ordinance, Article III, Section D, Table III D-1, Subsection 9 (6). Here, gasoline stations were neither new to the area nor to the subject property, as a gasoline station had been previously operated on the subject property. Scotti indicated that the presence of the fuel station would increase the value of neighboring properties, and a traffic expert, Paul Bannon, said that the station would not have a negative impact on the traffic circulation or safety. This Court finds that the Board's grant of the special use permit was not clearly erroneous. See Salve Regina College v. Zoning Bd. of Review,594 A.2d 878, 880 (R.I. 1991) ("The rule is that satisfaction of a `public convenience and welfare' pre-condition will hinge on a showing that a proposed use will not result in conditions that will be inimical to the public health, safety, morals and welfare."); Hugas Corp. v.Veader, 456 A.2d 765, 771 (R.I. 1983) ("In order to establish that the special exception sought will substantially serve the public convenience and welfare, an applicant must show that `neither the proposed use nor its location on the site would have a detrimental effect upon the public health, safety, welfare and morals.'"). Conclusion For all of the foregoing reasons, this Court finds that the Board's decision was supported by reliable, probative, and substantial record evidence, that it was not made upon unlawful procedure, nor did it constitute an abuse of discretion. Substantial rights of appellant Carpionato have not been prejudiced. Accordingly, the decision of the Board granting the application is hereby affirmed. Counsel shall submit an appropriate form of judgment for entry. | 07-06-2016 | [
"[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] DECISION Appellant Alfred Carpionato has appealed to this Court in order to complain of the Johnston Zoning Board of Review's decision to granting dimensional variances and a special use permit to Appellee Hartford Avenue Associates (\"HAA\"). For the reasons herein, this Court denies that appeal. FACTS AND TRAVEL HAA plans to renovate commercial property located in a general business zoning district (B2), formerly known as the Westgate Shopping Center, consisting of a 10.89 acre lot at 1450 Hartford Avenue, Plat 33-3, Lot 86. HAA plans to raze the existing buildings on the premises and construct a new BJ's Wholesale Club comprising a 115,367 square foot building as well as gas station.",
"B2 zoning permits, inter alia, general merchandise, department, and furniture stores, such as a BJ's unit, but the BJ's prototype for New England typically includes gasoline pumps, which are allowed in B2 zones by special use permit only. Although a retail gasoline business had existed on the property some time in the past, it had been closed for some years. The gas tanks had been removed, and construction of a new gas station would diminish the number of existing parking spaces. The Johnston Zoning Ordinance requires that a building the size of the proposed BJ's include a lot with 634 parking spaces. Johnston Ordinance, Article III, Section H (1)(d) (retail services must have 5.5 off-street car spaces for every 1,000 square feet of gross leasable area). After construction of the contemplated building and the reinstallation of a gas station, the subject lot would not encompass the requisite number of parking spaces.",
"The limitation on the parking situation was further affected because the property sits, in part, on a one-hundred-year flood plain that precludes designating additional parking spaces behind the building. Thus, HAA petitioned for a dimensional variance allowing a reduction of required parking spaces to 545. HAA also sought a dimensional variance to build an ornamental front that exceeded the building height limitations by approximately eight feet.",
"HAA sought a third dimensional variance to allow an additional pylon sign. The Board conducted at least five advertised public hearings at which HAA presented experts who testified as to the local real estate market, traffic engineering, and environmental management. Peter Scotti, a real estate expert, testified that changes in the market had rendered the existing buildings obsolete and that any new \"big box\" tenant would require some form of dimensional relief. Corroborating testimony was provided by Brian Beauregard of HAA, who stated that despite his efforts he had been unable to secure a long-term tenant. Scotti also noted that the property is hindered by unique characteristics of the land, an opinion that was further explicated by Kevin Morin of DiPrete Engineering Associates and Pam Pogue, a Rhode Island flood plain manager.",
"Morin described the nature of the flood plain and concluded that HAA's proposal to provide 545 parking spaces not only adequately provided for flood control but also improved water drainage. Edward Pimentel, a land use expert, testified on behalf of the objector and claimed that if a smaller BJ's were built, no variances would be needed. He further suggested that the proposed BJ's would not be consistent with the Johnston Comprehensive Plan. On September 25, 2003, the Board voted (4-1) to deny HAA's initial petition.",
"Board member Steven Ucci said that \"the site is too small for what wants to be built there . . . We haven't heard anything about any dimensional hardship, any height hardship . . . The fact the site they'd really like to go to, is too small to fit the building, is not what I see as a hardship.\" He expressed some concern about the 545 parking spaces, questioned the evidentiary basis for a special use permit for the gas station, and wondered whether the project would ultimately benefit the health and welfare of the community.",
"Board member Anthony Verdardo voted against the initial application, stating, \"I don't think the size is conducive to having a gas station on the lot along with a store such as BJ's.\" Two other board members similarly voted to deny the application in its original form, with Anthony Pilozzi remarking that a lack of parking spaces might invite motorists to park too close to a proposed propane tank. Although the Board's vote was adverse to HAA's initial application, the Board never issued or filed a written decision formally rejecting it. The following month the Board indicated its willingness to reconsider the application if it included modifications that addressed the concerns expressed at the September hearing. Thereafter, on November 25, 2003, and after public notice, the Board considered HAA's amended plan that eliminated propane sales, made concessions on the number of gasoline pumps, and reconfigured the number of parking spaces.",
"After review and reconsideration the Board unanimously embraced the revised plan by a 5-0 vote and filed its formal, written decision granting the application. Carpionato timely appealed the Board's decision to the Superior Court pursuant to § 45-24-69. STANDARD OF REVIEW The Superior Court's review of a zoning board decision is governed by § 45-24-69(d), which provides that: \"The court shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact. The court may affirm the decision of the board of review or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been prejudiced because of findings, inferences, conclusions or decisions which are: (1) In violation of constitutional, statutory, or ordinance provisions; (2) In excess of the authority granted to the zoning board of review by statute or ordinance; (3) Made upon unlawful procedure; (4) Affected by other error of law; (5) Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.\" In the course of such a review this Court is not entitled to substitute its judgment for that of the zoning board if a review of the record below discloses that the decision was supported by substantial evidence.Apostolou v. Genovesi, 388 A.2d 821, 825 (1978).",
"\"Substantial evidence . . . means such relevant evidence that a reasonable mind might accept as adequate to support a conclusion, and means [an] amount more than a scintilla but less than a preponderance.\" Lischio v. Zoning Bd. of Reviewof North Kingstown, 818 A.2d 685, 690 n. 5 (R.I. 2003) (quoting Caswellv. George Sherman Sand Gravel Co., Inc., 424 A.2d 646, 647 (R.I. 1981)). Reversal of the board's decision concerning exceptions or variances under zoning ordinances is invited only when it is clear that the board acted arbitrarily and/or abused its discretion. Madden v.Zoning Board of Review of the City of Warwick, 89 R.I. 131, 134,151 A.2d 681, 683 (1959). The Zoning Board's Power to Reconsider Carpionato claims that the Board impermissibly considered HAA's amended application. The Court disagrees. See Sciacca v. Caruso, 769 A.2d 578, (R.I. 2001) (assuming, without deciding, that a zoning board can reconsider its decision).",
"The Rhode Island Supreme Court has ruled that administrative boards have the inherent power to reconsider their decisions, as \"the power to render a decision in the first instance embodies the power to reconsider that decision.\" In re Denisewich,643 A.2d 1194, 1197 (R.I. 1994) (holding that a hearing committee has the inherent power and obligation to reconvene for the purpose of considering recently available testimony). \"It has generally been held that administrative tribunals endowed with quasi-judicial powers embody the inherent power to reconsider their judicial acts.\" Id. In any event, because the Board's initial adverse vote at the September 30, 2003 hearing did not constitute a final decision, the Board was free to reconsider and recalibrate its ultimate vote. Section 45-24-61(A) and Article VI, § H (1) of the Johnston Ordinance generally require that within a reasonable period of time after a public hearing the Board should issue its decision, which thereafter must be recorded and filed within thirty working days of its issuance. Id. After the decision has been formally filed, an aggrieved party has twenty days within which to file an appeal.",
"Sec. 45-24-69; Art. VI § C (1). Accordingly, until the decision has been filed, the Board should be free to change its mind.See Moschetti v. The Bd. Of Zoning Adjustment of the City of Boulder,574 P.2d 874, 875 (Colo.App. 1977) (administrative boards have authority to modify their decisions at any time prior to the date an appeal must be perfected). Accord, American Smelting Refining Co. v. Arizona AirPollution Control Hearing Bd., 550 P.2d 621, 622 (Ariz. 1976) (a board, commission or tribunal can use its appropriate modification power to reconsider decisions until the time when an appeal is perfected); cf.,Ryan v. Zoning Bd. of Review of Town of New Shoreham, 656 A.2d 612, 616 (R.I. 1995) (board's proceedings were unauthorized after its decision was final).",
"In the instant case, the Board's September 25, 2003 vote never ripened into a formal written, filed decision. Therefore, the Board transgressed no rule of law by considering HAA's revised plan. The Sufficiency of the Board's Decision Carpionato further complains that the Board's findings of fact and conclusions of law ultimately approving HAA's application were insufficient. Carpionato is mistaken. The Board's decision explicitly makes ten findings of fact aptly titled, \"Factual Findings\": 1. The property at 1450 Harford Avenue presently contains two buildings comprising 117,482 +/- square feet and has been the site of a retail shopping center for many years.",
"2. The proposed BJ's Wholesale Club is a permitted use under the zoning code but the gasoline pumps require a special use permit. 3. The vast majority of the property has been vacant for many years while the Applicant has investigated the potential redevelopment of the site. 4. There is an existing BJ's Wholesale Club in the vicinity at 1300 Harford Avenue that would close and be relocated to the subject property. 5. The site formerly had a gasoline service station on it that had been closed.",
"6. The existing shopping plaza has extensive signage and a pylon sign. 7. The existing parking lot and off-street parking spaces are constructed within the front setback and the proposed BJ's Wholesale Club would continue that parking scheme. 8. The size of the proposed 115,367 +/- square foot BJ's Wholesale Club is comparable to the existing shopping plaza buildings. 9. The Applicant has received an Insignificant Alteration Permit from the Rhode Island Department of Environmental Management for the proposed project. 10. The Rhode Island Department of Transportation has given conceptual approval to the plans submitted by the Applicant for the off-site improvements and proposed ingress and egress from the site. The decision also sufficiently documents the Board's application of the factual findings to the legal standards promulgated by the State of Rhode Island and the Town of Johnston for granting zoning relief. In granting the dimensional variance, the Board carefully set forth the legal standard for granting dimensional relief and concluded that: \"dimensional relief is reasonable[;] the proposed structure is comparable in size to what is to be replaced.",
"The parking plan is reasonable and supported by competent testimony. The requested relief is reasonably necessary for the allowable site development. The intended use is in compliance with the comprehensive plan and is in conformity with the surrounding uses. The relief is necessary and adequate parking is provided. The design features are appropriate. Denial of the petition will prevent appropriate and feasible development of the land.\" When discussing the grant of the special use permit, the Board wrote: \"Surrounding commercial uses are compatible with the proposed application. Gasoline sales are not new to the area. Environmental concerns have been addressed. The gasoline service station will meet and is subject to permitting requirements, the applicant demonstrates familiarity and experience in gasoline sales.",
"Applicant has renewed environmental permitting approval for the site plan. The Pocasset River Watershed will be improved. The order of growth and development of the Town of Johnston will be enhanced by this development. Department of Environmental Management approval ensures wetland and drainage protection. Traffic and parking plans afford protection of the best interests of the town. The comprehensive plan considers this area as important to the commercial development of the Town of Johnston. This proposed development is in conformity therewith. The applicant's proposed use is a continuation of a commercial use which has served the residents of the Town of Johnston for decades. The expanded tax revenue further benefits the town. The Departments of Environmental Management and Transportation have given preliminary approval to the site plan. The expert traffic testimony stated that the improvements to Hartford Avenue planned by the state and the location of the curb cut at the Shaw's entrance will help with traffic safety.",
"The permitting process for this plan will insure [sic] that all regulatory safeguards are met.\" Carpionato also claims that the Board neglected to adopt findings of fact at the November hearing to support granting the application. Carpionato, however, misconceives the limited purpose of the November hearing. It was not intended to rehash issues that had already been fully explicated at the earlier hearing; rather, it was intended to see if the modifications offered solutions to the concerns raised in September, concerns that had already resulted in detailed factual itemization.",
"Thus, the Board's discussions at the end of the November meeting necessarily were limited to particularized issues: e.g., the elimination of propane sales, recalibration of parking spaces, and reduction of gasoline pumps. This Court finds no error by the Board in that regard, and the Board's written decision admits of no such claimed error. Carpionato also suggests that the Board's decision is infirm because not all of the Board members affixed their signatures to it and that it does not expressly indicate the vote of each member. See Section 45-24-61(a). This contention is without merit.",
"The contents of the written decision were adopted in their entirety by a unanimous vote of the Board members, and the Board's findings of fact indicate that all of the requirements for granting a variance were met, concluding with the phrase \"so voted,\" followed by the names of the Board members and signed by the chairman. The Board's Power To Grant both Dimensional Reliefand a Special Use Variance Because the Board granted both a special use variance for the gas station and dimensional relief from parking and height restrictions, Carpionato suggests that the ordinance does not authorize the granted relief, relying on Newton v. Zoning Board of Review, 713 A.2d 239, 241 (R.I. 1998). The Newton decision, however, should be constrained to the factual circumstances therein.",
"In Newton, the Supreme Court considered a zoning ordinance that required compliance with certain developmental standards as a prerequisite to obtaining a special use permit. Specifically, a special use permit could only be granted if, in addition to the general requirements for granting such relief, the applicant also complied with minimum standards for lot size, density, parking, exit, entrance, landscaping, side and rear lot requirements. In the instant Ordinance, unlike the Warwick Ordinance considered in Newton, the requirements for obtaining a special use permit do not specifically mandate compliance with the dimensional requirements of the Ordinance or a specific section thereof. See § 45-24-42. Therefore, the facts of this case are not compellingly analogous to those in Newton, and the Board did not act in excess of Ordinance provisions. Dimensional Relief The Johnston Ordinance provides that an application for a dimensional variance may be granted if the Board is presented with credible evidence that: (1) the hardship from which the applicant seeks relief is due to the unique characteristics of the subject land or structure and not to the general characteristics of the surrounding area; and is not due to a physical or economic disability of the applicant; (2) the hardship is not the result of any prior action of the applicant and does not result primarily from the desire of the applicant to realize greater financial gain; (3) the granting of the requested variance will not alter the general character of the surrounding area or impair the intent or purpose of the ordinance or the Comprehensive Plan upon which this Ordinance is based; (4) the relief granted is the least necessary; and (5) the hardship that will be suffered by the owner of the subject property if the dimensional variance is not granted shall amount to more than a mere inconvenience, which shall mean that there is no other reasonable alternative to enjoy a legally permitted beneficial use of one's property.",
"The fact that a use may be more profitable or that a structure may be more valuable after the relief is granted shall not be grounds for relief. Johnston Zoning Ordinance, Article III, Section O. The record reflects Scotti's testimony that the existing buildings were at the end of their useful life, that no potential retail tenant would find the current situation acceptable, and that any new retailer would require similar dimensional relief. Additionally, Beauregard indicated that previous attempts to revitalize the property had failed or were not feasible in today's market. The Board also had before it substantial evidence that the property was burdened by unique characteristics of the land. Morin documented the basis for his opinion that the parking restraints were a direct result of the 100-year flood plain of the Pocasset River, as well as the adjacent wetlands and wetland buffers. As to granting the height variance, the record reflects that the majority of the building complied with local height restrictions. Only the peaks of the ornamental front exceeded the maximum height allowed. An advisory letter from the Planning Board applauded the effort to minimize the visual effect of a \"big box store,\" further contributing to the goal of the Comprehensive Plan to develop a \"center of town/Main Street\" type of district.",
"As to the signage variance, the Board's decision noted that existing businesses on the property already displayed extensive signage. Because the BJ's unit will be a large building, proportionately large signs were reasonable accoutrements. Furthermore, one of the existing pylon signs was to be removed and replaced with a smaller, monument sign. When viewed as a whole, all of this evidence indicates that HAA would suffer more than a mere inconvenience absent the requested variance. The record also reflects that the relief requested was the least relief necessary. Scotti testified that any new tenant would also need substantially the same dimensional remedy and that the relief requested was the least relief needed. See Lischio v. Zoning Bd. of Review,818 A.2d 685, 691 (R.I. 2003) (applicant must demonstrate some adverse impact amounting to more than a mere inconvenience); DiDonato v. ZoningBd. of Review, 104 R.I. 158, 165 (1968) (more than a mere inconvenience means that an applicant must show that the relief he is seeking is reasonably necessary for the full enjoyment of his permitted use). Accordingly, the Board's grant of dimensional relief to HAA was not impermissible. Special Use Permit In order to grant a special use permit, the Board must find that: (1) the granting of the special-use permit will be compatible with the neighboring uses and will not adversely affect the surrounding neighbors' use and enjoyment of their property; (2) granting the special use permit will be environmentally compatible with neighboring properties and the protection of property values; (3) granting the special use permit will be compatible with the orderly growth and development of the Town of Johnston, and will not be environmentally detrimental therewith; (4) the best practices and procedures to minimize the possibility of any adverse effects on neighboring property, the Town of Johnston, and the environment have been considered and will be employed, including but not limited to, considerations of soil erosion, water supply protection, septic disposal, wetland protection, traffic limitation, safety and circulation; (5) the purposes of this Ordinance, and as set forth in the Comprehensive Plan, shall be served by said special use permit; (6) granting the special use permit will substantially serve public convenience and welfare; and (7) granting of the special use permit will not result in or create conditions that will be inimical to the public health, safety, morals and general welfare of the community.",
"Johnston Zoning Ordinance, Art. III, Section P; Section 45-24-41. Gasoline stations are permitted in a B2 zone by special use permit. Johnston Ordinance, Article III, Section D, Table III D-1, Subsection 9 (6). Here, gasoline stations were neither new to the area nor to the subject property, as a gasoline station had been previously operated on the subject property. Scotti indicated that the presence of the fuel station would increase the value of neighboring properties, and a traffic expert, Paul Bannon, said that the station would not have a negative impact on the traffic circulation or safety. This Court finds that the Board's grant of the special use permit was not clearly erroneous.",
"See Salve Regina College v. Zoning Bd. of Review,594 A.2d 878, 880 (R.I. 1991) (\"The rule is that satisfaction of a `public convenience and welfare' pre-condition will hinge on a showing that a proposed use will not result in conditions that will be inimical to the public health, safety, morals and welfare. \"); Hugas Corp. v.Veader, 456 A.2d 765, 771 (R.I. 1983) (\"In order to establish that the special exception sought will substantially serve the public convenience and welfare, an applicant must show that `neither the proposed use nor its location on the site would have a detrimental effect upon the public health, safety, welfare and morals.'\"). Conclusion For all of the foregoing reasons, this Court finds that the Board's decision was supported by reliable, probative, and substantial record evidence, that it was not made upon unlawful procedure, nor did it constitute an abuse of discretion. Substantial rights of appellant Carpionato have not been prejudiced.",
"Accordingly, the decision of the Board granting the application is hereby affirmed. Counsel shall submit an appropriate form of judgment for entry."
]
| https://www.courtlistener.com/api/rest/v3/opinions/3874519/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
The plaintiff's execution having been placed in the sheriff's hands, and actually levied upon the goods, before the appointment of the defendant as receiver in the proceedings supplementary to execution, the sheriff acquired thereby a right to such goods superior to that of the defendant, by virtue of his appointment. (Van Alstyne v. Cook, 25 N.Y., 489.) The right of the defendant, when he had perfected his appointment by the filing of his bond, only related back to the date of the order appointing him. The issuing and service of the order requiring the judgment debtor to appear and be examined touching his property, created no lien or interest in the property discovered by such examination, in favor of the party who instituted and carried on the proceeding, as against other creditors who might in the meantime discover property liable to execution, and cause the same to be actually seized by such process. (Voorhees v.Seymour, 26 Barb., 569.) The proceeding supplementary to execution, is a proceeding for the discovery and sequestration of the debtor's property, for the purpose of satisfying and discharging the judgment. But no right is acquired, as against other creditors pursuing different remedies, until the appointment of the receiver. When the receiver is appointed and has filed his bond, he becomes vested with the title to the property, for the purpose of paying and discharging the debt. He then acquires a right analogous to that of a sheriff, who has taken property in execution; a right to sell and transfer the title for the purpose of raising money to pay off and satisfy the indebtedness. If his appointment as receiver is subsequent to a valid levy by a sheriff, at the instance of another creditor of the debtor, the receiver takes, subject to the right acquired by such levy. That was clearly the case here. *Page 642 The promise was to pay the plaintiff's execution out of the proceeds of the sale of the property, provided the levy was valid and would hold as against the proceedings supplementary. It did not depend upon the defendant's belief, or mental assent, as to the existence of the right created by the levy, but upon the existence in fact and in law of such right, which, as we have seen, is entirely clear. There can be no doubt that the consideration for this promise is abundantly sufficient. It was the relinquishment by the sheriff of a clear legal right, which gave to the defendant a complete and perfect title to the goods which he had not previously, and thus enable him to dispose of them, free and clear of such prior and superior claim. The promise is not affected in the least, by the statute of frauds. It is not a mere promise to pay the debt of a third person, but a promise to pay off and satisfy a valid lien and claim upon property, on condition that the party promising may take and sell the property discharged from such lien and claim. I do not perceive that the question of the validity of this promise is in any way affected by the circumstance that the creditors whom the defendant represented had proceeded by action, and caused the assignment to be set aside and declared void. That action did not affect the plaintiff's levy. He was not a party to the action, and might have proceeded to sell had he seen fit while it was pending. The promise was made, and the right under the levy relinquished, after the decree declaring the assignment fraudulent and void as to creditors had been obtained. No question was then raised by the defendant, as to whether the plaintiff had not lost his right by having slept too long upon it, or anything of that nature. The only question was whether any legal right could have been acquired by taking the property in execution, between the time of the issuing and service of the order for the examination of the judgment debtor, and the order for the appointment of the defendant as receiver. The promise was made to depend upon the existence of that right only, and it is too late now to raise the question of laches in not proceeding *Page 643 to sell under the execution. But there was in truth no laches which affected the plaintiff's rights under his execution. The goods were locked up safely in the store, and the sheriff insisted upon his right to sell, and control them, the moment the defendant undertook to exercise his rights as receiver. The sheriff was not prevented by the injunction in the order for the examination of the judgment debtor, from proceeding to sell the goods. That order did not enjoin him from proceeding as a public officer to execute his process. The defendant cannot insist that it had that effect, because that would be fatal to the argument that the plaintiff's rights had been affected by the laches. So far as appears, the delay was the mere voluntary act of the sheriff, which affected no one's rights injuriously. The promise being a valid one, I do not see why this action for the money may not be maintained upon it. The defendant has sold the property and realized a sum of money for it much more than sufficient to pay and satisfy the plaintiff's judgment. It was this money which he promised to pay, when he should sell the property and obtain it. The promise was for the plaintiff's benefit exclusively, and although not made to him directly, is available to him upon the principle established in Lawrence v.Fox (20 N.Y., 268), and Brown v. Beers (24 id., 178). Having adopted it he may maintain his action upon it instead of proceeding against the sheriff. I am of the opinion, therefore, that the action was properly brought, and the plaintiff entitled to recover. The judgment should consequently be reversed and a new trial granted, with costs to abide the event. DAVIES and HOGEBOOM, JJ., were for affirmance. All the other judges being in favor of reversal, Judgment reversed. *Page 644 | 07-06-2016 | [
"The plaintiff's execution having been placed in the sheriff's hands, and actually levied upon the goods, before the appointment of the defendant as receiver in the proceedings supplementary to execution, the sheriff acquired thereby a right to such goods superior to that of the defendant, by virtue of his appointment. (Van Alstyne v. Cook, 25 N.Y., 489.) The right of the defendant, when he had perfected his appointment by the filing of his bond, only related back to the date of the order appointing him. The issuing and service of the order requiring the judgment debtor to appear and be examined touching his property, created no lien or interest in the property discovered by such examination, in favor of the party who instituted and carried on the proceeding, as against other creditors who might in the meantime discover property liable to execution, and cause the same to be actually seized by such process. (Voorhees v.Seymour, 26 Barb., 569.) The proceeding supplementary to execution, is a proceeding for the discovery and sequestration of the debtor's property, for the purpose of satisfying and discharging the judgment. But no right is acquired, as against other creditors pursuing different remedies, until the appointment of the receiver.",
"When the receiver is appointed and has filed his bond, he becomes vested with the title to the property, for the purpose of paying and discharging the debt. He then acquires a right analogous to that of a sheriff, who has taken property in execution; a right to sell and transfer the title for the purpose of raising money to pay off and satisfy the indebtedness. If his appointment as receiver is subsequent to a valid levy by a sheriff, at the instance of another creditor of the debtor, the receiver takes, subject to the right acquired by such levy.",
"That was clearly the case here. *Page 642 The promise was to pay the plaintiff's execution out of the proceeds of the sale of the property, provided the levy was valid and would hold as against the proceedings supplementary. It did not depend upon the defendant's belief, or mental assent, as to the existence of the right created by the levy, but upon the existence in fact and in law of such right, which, as we have seen, is entirely clear. There can be no doubt that the consideration for this promise is abundantly sufficient. It was the relinquishment by the sheriff of a clear legal right, which gave to the defendant a complete and perfect title to the goods which he had not previously, and thus enable him to dispose of them, free and clear of such prior and superior claim. The promise is not affected in the least, by the statute of frauds. It is not a mere promise to pay the debt of a third person, but a promise to pay off and satisfy a valid lien and claim upon property, on condition that the party promising may take and sell the property discharged from such lien and claim. I do not perceive that the question of the validity of this promise is in any way affected by the circumstance that the creditors whom the defendant represented had proceeded by action, and caused the assignment to be set aside and declared void.",
"That action did not affect the plaintiff's levy. He was not a party to the action, and might have proceeded to sell had he seen fit while it was pending. The promise was made, and the right under the levy relinquished, after the decree declaring the assignment fraudulent and void as to creditors had been obtained. No question was then raised by the defendant, as to whether the plaintiff had not lost his right by having slept too long upon it, or anything of that nature. The only question was whether any legal right could have been acquired by taking the property in execution, between the time of the issuing and service of the order for the examination of the judgment debtor, and the order for the appointment of the defendant as receiver.",
"The promise was made to depend upon the existence of that right only, and it is too late now to raise the question of laches in not proceeding *Page 643 to sell under the execution. But there was in truth no laches which affected the plaintiff's rights under his execution. The goods were locked up safely in the store, and the sheriff insisted upon his right to sell, and control them, the moment the defendant undertook to exercise his rights as receiver. The sheriff was not prevented by the injunction in the order for the examination of the judgment debtor, from proceeding to sell the goods. That order did not enjoin him from proceeding as a public officer to execute his process. The defendant cannot insist that it had that effect, because that would be fatal to the argument that the plaintiff's rights had been affected by the laches. So far as appears, the delay was the mere voluntary act of the sheriff, which affected no one's rights injuriously. The promise being a valid one, I do not see why this action for the money may not be maintained upon it. The defendant has sold the property and realized a sum of money for it much more than sufficient to pay and satisfy the plaintiff's judgment.",
"It was this money which he promised to pay, when he should sell the property and obtain it. The promise was for the plaintiff's benefit exclusively, and although not made to him directly, is available to him upon the principle established in Lawrence v.Fox (20 N.Y., 268), and Brown v. Beers (24 id., 178). Having adopted it he may maintain his action upon it instead of proceeding against the sheriff. I am of the opinion, therefore, that the action was properly brought, and the plaintiff entitled to recover. The judgment should consequently be reversed and a new trial granted, with costs to abide the event. DAVIES and HOGEBOOM, JJ., were for affirmance. All the other judges being in favor of reversal, Judgment reversed.",
"*Page 644"
]
| https://www.courtlistener.com/api/rest/v3/opinions/3632723/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Per Curiam: The learned judge correctly held, inasmuch as Bosana lived more than twenty-one years after she became able to assert her legal rights to the property, and took no steps to assert those rights or obtain possession of the property under them, the stat*442ute of limitations became a good defense, as against her and against all claiming under her. The ease stated admits that the plaintiff below and the persons under whom she claims have had actual, continuous, adverse, and hostile possession of the premises in dispute for more than twenty-one years. Judgment was therefore correctly entered in favor of the plaintiff below for the sum of $500. Judgment affirmed. | 02-18-2022 | [
"Per Curiam: The learned judge correctly held, inasmuch as Bosana lived more than twenty-one years after she became able to assert her legal rights to the property, and took no steps to assert those rights or obtain possession of the property under them, the stat*442ute of limitations became a good defense, as against her and against all claiming under her. The ease stated admits that the plaintiff below and the persons under whom she claims have had actual, continuous, adverse, and hostile possession of the premises in dispute for more than twenty-one years. Judgment was therefore correctly entered in favor of the plaintiff below for the sum of $500. Judgment affirmed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6310239/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 0818212
Decision Date: 06/03/08 Archive Date: 06/12/08
DOCKET NO. 07-18 324 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in North
Little Rock, Arkansas
THE ISSUE
Entitlement to service connection for a low back disorder.
ATTORNEY FOR THE BOARD
Paul S. Rubin, Associate Counsel
INTRODUCTION
The veteran had active military service from July 1998 to
October 2002.
This appeal to the Board of Veterans' Appeals (Board) is from
a December 2006 rating decision by the Department of Veterans
Affairs (VA) Regional Office (RO) in North Little Rock,
Arkansas.
FINDING OF FACT
Although there is competent lay evidence that the veteran
experienced occasional low back pain during service, there is
no competent evidence that his current low back arthritis
began in service or within one year after his service ended
or that it is otherwise etiologically related to his military
service.
CONCLUSION OF LAW
A chronic low back disorder was not incurred in or aggravated
by service and arthritis of the low back may not be presumed
to have been incurred in service. 38 U.S.C.A. §§ 1101(3),
1110, 1112(a), 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303,
3.307(a)(3), 3.309(a) (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Duties to Notify and Assist
Review of the claims folder reveals compliance with the
Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §
5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a). The duty to notify was accomplished by way of a
VCAA letter from the RO to the veteran dated in October 2006.
This letter effectively satisfied the notification
requirements of the VCAA consistent with 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about
the information and evidence not of record that was necessary
to substantiate his service connection claim; (2) informing
him about the information and evidence the VA would seek to
provide; (3) informing him about the information and evidence
he was expected to provide; and (4) requesting the veteran
provide any evidence in his possession pertaining to his
claim. See also Pelegrini v. Principi, 18 Vet. App. 112
(2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002).
Furthermore, the October 2006 letter from the RO further
advised him that a disability rating and an effective date
will be assigned if service connection is awarded. Dingess
v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom.
Hartman v. Nicholson, 483 F.3d 1311 (2007).
In addition, the Board observes that the RO correctly issued
the October 2006 VCAA notice letter prior to the December
2006 adverse determination on appeal. Mayfield v. Nicholson,
444 F.3d 1328 (Fed. Cir. 2006); Pelegrini II, 18 Vet. App. at
120. Consequently, a prejudicial error analysis by way of
Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), is not
required in this case. In essence, there is no timing or
content error for VCAA notice here.
As for the duty to assist, the RO has secured the veteran's
service medical records (SMRs) and relevant VA treatment
records. The veteran has submitted personal and lay
statements to support his claim. He has not identified or
authorized the release of any private medical records here.
There is no indication from the veteran that any additional
evidence remains outstanding. The Board realizes VA has not
obtained a medical opinion with respect to the veteran's low
back disorder claim. See McLendon v. Nicholson, 20 Vet. App.
79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. §
3.159(c)(4). But the standards of McLendon are not met in
this case. There is neither medical evidence suggesting that
any current low back disorder is linked to his military
service, nor any evidence of continuity of symptomatology of
a low back disorder since his discharge from service (veteran
did not allege any post-service low back pain or treatment
until February 2005, several years after his discharge). As
service and post-service medical records provide no basis to
grant the claim, and in fact provide evidence against the
claim, the Board finds no basis for obtaining a VA medical
opinion. The Board is therefore satisfied that the RO has
provided all assistance required by the VCAA. 38 U.S.C.A.
§ 5103A.
Governing Laws and Regulations for Service Connection
Service connection may be granted if it is shown the veteran
suffers from a disability resulting from an injury sustained
or disease contracted in the line of duty, or for aggravation
during service of a pre-existing condition beyond its natural
progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R.
§§ 3.303, 3.306.
Service connection requires competent evidence showing: (1)
the existence of a present disability; (2) in-service
incurrence or aggravation of a disease or injury; and (3) a
causal relationship between the present disability and the
disease or injury incurred or aggravated during service.
Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004),
citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). See
also Hickson v. West, 12 Vet. App. 247, 252 (1999); Caluza v.
Brown, 7 Vet. App. 498 (1995).
A disorder also may be service connected if the evidence of
record reveals the veteran currently has a disorder that was
chronic in service or, if not chronic, that was seen in
service with continuity of symptomatology demonstrated
thereafter.
38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-
97 (1997).
A demonstration of continuity of symptomatology is an
alternative method of demonstrating the second and/or third
Caluza elements discussed above. Savage, 10 Vet. App. at
495-496. Disorders diagnosed after discharge may still be
service connected if all the evidence, including pertinent
service records, establishes the disorder was incurred in
service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d
1039, 1043 (Fed. Cir. 1994).
In the absence of proof of a current disability, there can be
no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed.
Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992)
(indicating service connection presupposes a
current diagnosis of the condition claimed).
Service connection may be demonstrated either by showing
direct service incurrence or aggravation as discussed above
or by using applicable presumptions, if available. Combee v.
Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As to
presumptive service connection, some diseases are chronic,
per se, such as arthritis, and therefore will be presumed to
have been incurred in service, although not otherwise
established as such, if manifested to a degree of ten percent
or more within one year after service. Even this
presumption, however, is rebuttable by probative evidence to
the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R.
§§ 3.307, 3.309.
A layperson is generally not capable of opining on matters
requiring medical knowledge. Routen v. Brown, 10 Vet.
App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d
1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).
Where the determinative issue involves medical causation or a
medical diagnosis, there must be competent medical evidence
to the effect that the claim is plausible; lay assertions of
medical status generally do not constitute competent medical
evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993);
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However,
lay evidence can be competent and sufficient to establish a
diagnosis of a condition when (1) a layperson is competent to
identify the medical condition, (e.g., a broken leg), (2) the
layperson is reporting a contemporaneous medical diagnosis,
or (3) lay testimony describing symptoms at the time supports
a later diagnosis by a medical professional.
Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).
In essence, lay testimony is competent when it regards the
readily observable features or symptoms of injury or illness
and "may provide sufficient support for a claim of service
connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994).
See also 38 C.F.R. § 3.159(a)(2). In this regard, the Court
recently emphasized that when a condition may be diagnosed by
its unique and readily identifiable features, the presence of
the disorder is not a determination "medical in nature" and
is capable of lay observation. In such cases, the Board is
within its province to weigh that testimony and to make a
credibility determination as to whether that evidence
supports a finding of service incurrence and continuity of
symptomatology sufficient to establish service connection.
Barr v. Nicholson, 21 Vet. App. 303, 310 (2007).
In determining whether service connection is warranted for a
disability, VA 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 the claim, in which
case the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R.
§ 3.102; and Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Analysis - Low Back Disorder
The veteran maintains that he has a current low back disorder
incurred during his military service. He explains that his
low back problems began after intense physical training
during his service in the U.S. Marine Corps from July 1998 to
October 2002. Specifically, he reports that he first
experienced low back pain after long hikes in the Marine
Corps, but that it was "frowned upon" to complain, so he
sought no medical treatment for this pain during his military
service. See his October 2006 claim; October 2006 personal
statement; and lay statements from fellow service members
received by the VA in October 2006 and February 2007.
As mentioned, the first and perhaps most fundamental
requirement for any service-connection claim is proof the
veteran currently has the claimed disability. Boyer, 210
F.3d at 1353; Brammer, 3 Vet. App. at 225. Concerning this,
September 2006 VA X-rays of the lumbar spine recorded a
slight narrowing of disc space at L5-S1 and minimal arthritis
involving the L4-L5 and L5-S1 regions of the low back. Thus,
there is sufficient evidence of a current low back disorder
- more specifically, arthritis with slight disc narrowing.
Consequently, the determinative issue is whether this
condition is somehow attributable to the veteran's military
service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993)
("A determination of service connection requires a finding of
the existence of a current disability and a determination of
a relationship between that disability and an injury or
disease incurred in service."). See, too, Maggitt v. West,
202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209
F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet.
App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304,
1308 (Fed. Cir. 1998). And it is in this critical respect
the veteran's claim fails.
SMRs are unremarkable for any complaint, treatment, or
diagnosis of a low back disorder. However, the veteran has
submitted his own personal statements and lay statements from
fellow service members confirming that he complained to them
of low back pain after arduous physical training, but that he
did not report it to military medical personnel at that time.
The veteran and those who served with him are indeed
competent to report symptoms of occasional low back pain
after physical training during the time of his military
service. Layno, 6 Vet. App. at 469. See also 38
C.F.R.§ 3.159(a)(2). Furthermore, the Board can find no
overt reason to doubt the credibility of his lay assertions
that, during service, he experienced low back pain after
training, especially given the corroborative lay statements
of three fellow service members. Buchanan v. Nicholson, 451
F.3d 1331, 1336 (Fed. Cir. 2006). Regardless, despite
accepting his statements regarding low back pain during
service as credible, his SMRs as a whole provide evidence
against a finding for a chronic low back disorder in service,
as there is simply no medical documentation of a specific
chronic low back disorder at that time, which is necessary to
establish the existence of a chronic disorder. 38 C.F.R.
§ 3.303(b); Savage, 10 Vet. App. 494-97.
Post-service, the evidence as a whole does not show
continuity of symptomatology of a non-chronic low back
disorder since service. 38 C.F.R. § 3.303(b). The first
indication of low back pain symptoms after service is from a
VA ER note dated in February 2005, over two years after his
discharge from service. The veteran was seen at that time
with only a "1 week" history of lower back pain. It was
also documented that he worked in a warehouse and his job
requires the lifting of heavy objects. There was no mention
of any previous in-service back pain, or any allegation of
continuing back pain from the time of his discharge from
service in October 2002. Consequently, continuity of
symptomatology is simply not alleged or shown.
In addition, it is significant that post-service VA X-rays of
the lumbar spine dated in February 2005 were unremarkable at
that time for evidence of low back arthritis or narrowing of
the disc space. He received further treatment in June 2005,
at which time he was diagnosed with a low back muscle spasm.
In fact, VA X-rays did not reveal low back arthritis until
September 2006, after he again reported injuring his low back
at work. It follows that since there is no objective
indication of arthritis within one year after service,
the veteran is not entitled to application of the presumptive
provisions either. 38 U.S.C.A. §§ 1101, 1112, 1113;
38 C.F.R. §§ 3.307, 3.309. Arthritis, incidentally, must be
objectively confirmed by X-ray. 38 C.F.R. § 4.71a, DC 5003.
Moreover, there is simply no competent evidence of a link
between any current low back arthritis and the veteran's
period of military service. Boyer, 210 F.3d at 1353;
Maggitt, 202 F.3d at 1375. Absent such evidence of a nexus,
service connection is not warranted. The veteran's personal,
lay opinion as to any relationship between his current low
back disorder and his period of service is not competent
evidence required to establish service connection. Jandreau,
492 F.3d at 1377; Grottveit, 5 Vet. App. at 93; Espiritu, 2
Vet. App. at 494.
For these reasons and bases, the preponderance of the
evidence is against the claim of entitlement to service
connection for a low back disorder, so there is no reasonable
doubt to resolve in the veteran's favor, and this claim must
be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
ORDER
The claim for service connection for a low back disorder is
denied.
____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 06-03-2008 | [
"Citation Nr: 0818212 Decision Date: 06/03/08 Archive Date: 06/12/08 DOCKET NO. 07-18 324 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a low back disorder. ATTORNEY FOR THE BOARD Paul S. Rubin, Associate Counsel INTRODUCTION The veteran had active military service from July 1998 to October 2002. This appeal to the Board of Veterans' Appeals (Board) is from a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. FINDING OF FACT Although there is competent lay evidence that the veteran experienced occasional low back pain during service, there is no competent evidence that his current low back arthritis began in service or within one year after his service ended or that it is otherwise etiologically related to his military service. CONCLUSION OF LAW A chronic low back disorder was not incurred in or aggravated by service and arthritis of the low back may not be presumed to have been incurred in service. 38 U.S.C.A.",
"§§ 1101(3), 1110, 1112(a), 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a) (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Duties to Notify and Assist Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of a VCAA letter from the RO to the veteran dated in October 2006. This letter effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his service connection claim; (2) informing him about the information and evidence the VA would seek to provide; (3) informing him about the information and evidence he was expected to provide; and (4) requesting the veteran provide any evidence in his possession pertaining to his claim.",
"See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Furthermore, the October 2006 letter from the RO further advised him that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In addition, the Board observes that the RO correctly issued the October 2006 VCAA notice letter prior to the December 2006 adverse determination on appeal. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir.",
"2006); Pelegrini II, 18 Vet. App. at 120. Consequently, a prejudicial error analysis by way of Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), is not required in this case. In essence, there is no timing or content error for VCAA notice here. As for the duty to assist, the RO has secured the veteran's service medical records (SMRs) and relevant VA treatment records. The veteran has submitted personal and lay statements to support his claim. He has not identified or authorized the release of any private medical records here. There is no indication from the veteran that any additional evidence remains outstanding. The Board realizes VA has not obtained a medical opinion with respect to the veteran's low back disorder claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). But the standards of McLendon are not met in this case. There is neither medical evidence suggesting that any current low back disorder is linked to his military service, nor any evidence of continuity of symptomatology of a low back disorder since his discharge from service (veteran did not allege any post-service low back pain or treatment until February 2005, several years after his discharge).",
"As service and post-service medical records provide no basis to grant the claim, and in fact provide evidence against the claim, the Board finds no basis for obtaining a VA medical opinion. The Board is therefore satisfied that the RO has provided all assistance required by the VCAA. 38 U.S.C.A. § 5103A. Governing Laws and Regulations for Service Connection Service connection may be granted if it is shown the veteran suffers from a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet.",
"App. 110, 111 (2002). See also Hickson v. West, 12 Vet. App. 247, 252 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). A disorder also may be service connected if the evidence of record reveals the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494- 97 (1997). A demonstration of continuity of symptomatology is an alternative method of demonstrating the second and/or third Caluza elements discussed above. Savage, 10 Vet. App. at 495-496. Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir.",
"1994). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). Service connection may be demonstrated either by showing direct service incurrence or aggravation as discussed above or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir.",
"1994). As to presumptive service connection, some diseases are chronic, per se, such as arthritis, and therefore will be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year after service. Even this presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status generally do not constitute competent medical evidence.",
"Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.",
"Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and \"may provide sufficient support for a claim of service connection.\" Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). In this regard, the Court recently emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination \"medical in nature\" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.",
"Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). In determining whether service connection is warranted for a disability, VA 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; and Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis - Low Back Disorder The veteran maintains that he has a current low back disorder incurred during his military service.",
"He explains that his low back problems began after intense physical training during his service in the U.S. Marine Corps from July 1998 to October 2002. Specifically, he reports that he first experienced low back pain after long hikes in the Marine Corps, but that it was \"frowned upon\" to complain, so he sought no medical treatment for this pain during his military service. See his October 2006 claim; October 2006 personal statement; and lay statements from fellow service members received by the VA in October 2006 and February 2007. As mentioned, the first and perhaps most fundamental requirement for any service-connection claim is proof the veteran currently has the claimed disability. Boyer, 210 F.3d at 1353; Brammer, 3 Vet.",
"App. at 225. Concerning this, September 2006 VA X-rays of the lumbar spine recorded a slight narrowing of disc space at L5-S1 and minimal arthritis involving the L4-L5 and L5-S1 regions of the low back. Thus, there is sufficient evidence of a current low back disorder - more specifically, arthritis with slight disc narrowing. Consequently, the determinative issue is whether this condition is somehow attributable to the veteran's military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) (\"A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.\"). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998).",
"And it is in this critical respect the veteran's claim fails. SMRs are unremarkable for any complaint, treatment, or diagnosis of a low back disorder. However, the veteran has submitted his own personal statements and lay statements from fellow service members confirming that he complained to them of low back pain after arduous physical training, but that he did not report it to military medical personnel at that time. The veteran and those who served with him are indeed competent to report symptoms of occasional low back pain after physical training during the time of his military service. Layno, 6 Vet.",
"App. at 469. See also 38 C.F.R.§ 3.159(a)(2). Furthermore, the Board can find no overt reason to doubt the credibility of his lay assertions that, during service, he experienced low back pain after training, especially given the corroborative lay statements of three fellow service members. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Regardless, despite accepting his statements regarding low back pain during service as credible, his SMRs as a whole provide evidence against a finding for a chronic low back disorder in service, as there is simply no medical documentation of a specific chronic low back disorder at that time, which is necessary to establish the existence of a chronic disorder. 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. 494-97.",
"Post-service, the evidence as a whole does not show continuity of symptomatology of a non-chronic low back disorder since service. 38 C.F.R. § 3.303(b). The first indication of low back pain symptoms after service is from a VA ER note dated in February 2005, over two years after his discharge from service. The veteran was seen at that time with only a \"1 week\" history of lower back pain. It was also documented that he worked in a warehouse and his job requires the lifting of heavy objects. There was no mention of any previous in-service back pain, or any allegation of continuing back pain from the time of his discharge from service in October 2002. Consequently, continuity of symptomatology is simply not alleged or shown. In addition, it is significant that post-service VA X-rays of the lumbar spine dated in February 2005 were unremarkable at that time for evidence of low back arthritis or narrowing of the disc space. He received further treatment in June 2005, at which time he was diagnosed with a low back muscle spasm. In fact, VA X-rays did not reveal low back arthritis until September 2006, after he again reported injuring his low back at work. It follows that since there is no objective indication of arthritis within one year after service, the veteran is not entitled to application of the presumptive provisions either.",
"38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Arthritis, incidentally, must be objectively confirmed by X-ray. 38 C.F.R. § 4.71a, DC 5003. Moreover, there is simply no competent evidence of a link between any current low back arthritis and the veteran's period of military service. Boyer, 210 F.3d at 1353; Maggitt, 202 F.3d at 1375. Absent such evidence of a nexus, service connection is not warranted. The veteran's personal, lay opinion as to any relationship between his current low back disorder and his period of service is not competent evidence required to establish service connection. Jandreau, 492 F.3d at 1377; Grottveit, 5 Vet. App.",
"at 93; Espiritu, 2 Vet. App. at 494. For these reasons and bases, the preponderance of the evidence is against the claim of entitlement to service connection for a low back disorder, so there is no reasonable doubt to resolve in the veteran's favor, and this claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The claim for service connection for a low back disorder is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs"
]
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CALHOUN, J. The offense, transporting intoxicating liquor ; the punishment, three years in the penitentiary. The record is before us without a statement of facts or bills of exception. No defect either in the indictment or proeedure-has been pointed out or has been perceived. No question is presented .for review. The judgment is affirmed, PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges-of the Court of Criminal Appeals and approved by the court. | 10-01-2021 | [
"CALHOUN, J. The offense, transporting intoxicating liquor ; the punishment, three years in the penitentiary. The record is before us without a statement of facts or bills of exception. No defect either in the indictment or proeedure-has been pointed out or has been perceived. No question is presented .for review. The judgment is affirmed, PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges-of the Court of Criminal Appeals and approved by the court."
]
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650 So. 2d 815 (1995) TEXAS INTERNATIONAL PETROLEUM CORPORATION v. DELACROIX CORPORATION, et al. No. 94-CA-1426. Court of Appeal of Louisiana, Fourth Circuit. January 31, 1995. Writ Denied April 20, 1995. *817 Wilkinson & Wilkinson, Hugh M. Wilkinson, Jr., John B. Wilkinson, New Orleans, for appellant. Ogden, Ogden & Wright, Charlton B. Ogden, III, New Orleans, for appellees. Before KLEES, BYRNES and CIACCIO, JJ. BYRNES, Judge. This is a concursus proceeding brought by Texas International Corporation seeking a determination of the ownership of oil and gas royalties deposited into the registry of the court attributable to disputed tracts of land within two conservation units designated as 7900' RA SU A and 7900' RA SU B, Half Moon Lake Field, St. Bernard Parish. Total Minatome Corporation succeeded Texas International Petroleum Corporation by act of assignment and was joined as a party plaintiff. This phase of the litigation focuses on the dispute between Delacroix corporation and Delacroix Royalty Owners (referred to collectively as "Delacroix") the royalty owners of Section 13 and Biloxi Marsh Land Corporation and its royalty owners of Section 24 (referred to collectively as "Biloxi"). The primary issue concerns the location of the line between Sections 13 and 24, Township 15 South, Range 17 East, which is simultaneously the southern boundary of Section 13 and the northern boundary of Section 24. All other issues were held in abeyance pending resolution of this issue. The trial court ruled in favor of Biloxi.[1] We affirm. The ancestors in title to the land in dispute acquired title by reference to an official government survey done by Messrs. Richardson and Powell in 1842-1845. That survey was approved by the government in 1848. The parties agree upon the fundamental legal principle in this case: THIS COURT IS POWERLESS TO CORRECT ERRORS IN THE ORIGINAL GOVERNMENT SURVEY! The power to make and correct surveys of public lands belongs to the political department of the government, and while the lands are subject to the supervision of the General Land Office, its decisions in such cases are unassailable by the courts, except by a direct proceeding. Cragin v. Powell, 128 U.S. 691, 9 S. Ct. 203, 32 L. Ed. 566 (1888). In other words, decisions of the General Land Office of the United States are not subject to correction by the courts in suits between individuals. Leader Realty Co. v. Lakeview Land Co., 142 La. 169, 76 So. 599 (La.1917). Whether a government survey as originally made is correct or incorrect is for the land department alone to determine, and as to which the courts have no jurisdiction except by original proceedings in equity. Carrere v. City of New Orleans, 162 La. 981, 111 So. 393 (La.1926). Even if the governmental *818 survey is incorrect, it nevertheless creates the township sections and boundaries. State v. Ward, 314 So. 2d 383, 396 (La.App. 3 Cir.1975), writ den., 319 So. 2d 440 (La.1975). Any section corner or quarter corner that is identified as having been established by an official survey of the United States government must stand as correctly located, however plain it may appear that the location is wrong, since the government surveys cannot be changed in an action at law between private individuals. Houston Ice & Brewing Co. v. Murphy Oil Co., 149 La. 228, 88 So. 802 (La.1921). An approved survey of public lands does not merely ascertain boundaries, it creates them, and a township survey completed and approved creates the boundaries of the township and the sections therein. Union Producing Co., et al, v. Placid Oil Company, 178 So. 2d 392 (La.App. 1 Cir., 1965), writ refused, 248 La. 447, 179 So. 2d 432 (La.1965), writ denied, 385 U.S. 843, 87 S. Ct. 31, 17 L. Ed. 2d 75 (1966). Both the appellants and the appellees cite and agree on all of the foregoing authorities. On the other hand, where the lines run by such survey lie on the ground, and whether any particular tract is on one side or other of that line, are questions of fact which are always open to inquiry in the courts. Russell v. Maxwell Land Grant Co., 158 U.S. 253, 259, 15 S. Ct. 827, 39 L. Ed. 971, 972 (1895); U.S. v. State Inv Co., 264 U.S. 206, 212, 44 S. Ct. 289, 68 L. Ed. 639 (1924); United States v. Hudspeth, 384 F.2d 683 (9 Cir. 1967). The location of a boundary line is a question of fact to be determined by the trier of fact and this factual determination should not be reversed on appeal in the absence of manifest error. Morris v. Sigur, 584 So. 2d 729, 730 (La.App. 4 Cir.1991), writ den., 589 So. 2d 1054 (La.1991). Thus while the trial court was powerless to correct errors in the official government survey, it was completely competent to locate the lines of that survey on the ground and to locate any given tract of land in relation thereto, subject only to manifest error review by this court. Delacroix and Biloxi each assert that the claims of the other are inconsistent with this original survey. All parties agree that the original surveyors made errors. There is some dispute over the number, location and effect of these errors. Experts testified on both sides of the controversy. Ultimately the case boiled down to one of weighing conflicting expert testimony. In the absence of manifest error, this Court does not have the authority to reverse the trial court's determinations in the matter of conflicting of expert testimony. Sistler v. Liberty Mut. Ins. Co., 558 So. 2d 1106, 1111 (La.1990); Brewhouse, Ltd. v. New Orleans Public Service, Inc., 614 So. 2d 118, 120 (La.App.1993); Miller v. Miller, 602 So. 2d 330, 332 (La.App. 4 Cir.1992). Messrs. Burke, Burnside, and Mayeaux testified as expert surveyors. The analyses of Messrs. Burke and Burnside were limited to a study of documents such as maps, diagrams, and plats. They did not attempt to retrace the steps of the official government surveyors on the ground. Mr. Mayeaux was the only expert who went out and tried to physically retrace the footsteps of the original government surveyors. This is important because it provides objective support for the trial court's decision to base its findings on Mr. Mayeaux's testimony rather than the testimony of Messrs. Burke and Burnside.[2] The reliability of a plat which is unsupported by any effort to retrace the lines on the ground is questionable at best. Barham v. Department of Highways, 431 So. 2d 899, 902 (La.App. 2 Cir.1983). Mr. Mayeaux's attempt to physically retrace the footsteps of the original surveyors is also important because those surveyors calculated the locations of section lines and corners and did not physically walk upon them, i.e., their locations were projections. *819 It is necessary to know where the surveyors actually were on the ground when they made their projections. For example, if the original government surveyors had projected that a corner was such and such a distance in such and such a direction, it is essential to know where they were when they made that projection if we are ever to reconstruct where they projected that corner to be. This is particularly important in this case where it appears that the surveyors were often not where they thought they were when they made their projections. The trial court noted that Mr. Mayeux made greater use of topography than did the other two surveyors. Mr. Mayeux located natural objects and fixed monuments called for by the field notes on the ground. In matters of boundary, calls for natural objects and fixed monuments control those for distances. U.S. v. State Inv Co., 264 U.S. 206, 212, 44 S. Ct. 289, 290-91, 68 L. Ed. 639 (1924) In ascertaining the boundaries of surveys or patent, the universal rule is this: that whatever natural or permanent objects are embraced in the calls of either, these have absolute control, and both courses and distances must yield to their influence. Brown v. Huger, 62 U.S. 305, 21 How. 305, 306, 16 L. Ed. 125, 129 (1859); City of New Orleans v. Joseph Rathborne Land Co., 24 So. 2d 275 (La.1945). The legal guides for determining the question of boundary or the location of a land line, in order of their importance, are natural monuments, artificial monuments, distances, courses and quantity... City of New Orleans v. Joseph Rathborne Land Co. at 281; Meyer v. Comegys, 147 La. 851, 86 So. 307 (La.1920). It is well established that natural objects and monuments are more important than courses and distances in retracing old surveys and ascertaining the location of unknown and disputed lines. Cheramie v. Vegas, 194 So. 2d 189, 192 (La.App. 1 Cir.1966), writ refused, 250 La. 907, 199 So. 2d 918 (La.1967); Barham v. Department of Highways, 431 So. 2d 899 (La.App. 2 Cir.1983); Liner v. Terrebonne Parish School Board, 519 So. 2d 777 (La.App. 1 Cir.1987), writ den. 521 So. 2d 1173 (La. 1988), cert. den. 488 U.S. 827, 109 S. Ct. 79, 102 L. Ed. 2d 55 (1988); Morris v. Sigur, 584 So. 2d 729 (La.App. 4 Cir.1991), writ den., 589 So. 2d 1054 (La.1991). But in re-establishing the lines of a survey, the footsteps of the original government surveyors should be followed, and it is immaterial if lines actually run by him are not correct. Galt v. Willingham, 11 F.2d 757, 758 (5 Cir.1926). The original survey as it was actually run on the ground controls, even if the boundary was incorrect as originally established. United States v. Doyle, 468 F.2d 633, 636 (10 Cir.1972); United States v. Citko, 517 F. Supp. 233 (E.D.Wis. 1981). The basic error made by Powell and Richardson was that they were north of their intended position in their traverses around Lake Athanasio. This had the effect of throwing off the northeast corners of Sections 36, 25, and 24 as these corners were established by calls from positions that were farther north than Powell and Richardson realized. This caused the boundary between sections 24 and 13 to be farther north than intended, which is the crux of this litigation. This also prevented these sections from lining up properly along the range line with sections in the adjoining township. In theory each township should be a perfect square, six miles on a side, consisting of thirty-six sections which should be perfect squares of one square mile each.[3] The official government plat appears to be based on this idealized conception of perfectly regular lines and sections. However, it cannot be reconciled with the field notes of the surveyors upon which it was supposed to be based. In the event of such a conflict the field notes control, because the plat is made from the field notes. Whiting v. Gardner, 80 Cal. 78, 22 P. 71. The question to be answered by courts in such cases is, where were the lines run in the field by the government surveyor? Harrington v. Boehmer, 134 Cal. 196, 66 P. 214, 215 (1901). State v. Aucoin, 206 La. 787, 20 So. 2d 136, 154 (La.1944) does not contradict this when it *820 states that: "When lands have been disposed of by the government according to a line appearing on an official plat of a government survey, approved by the Surveyor General, the location of the line shown on the official plat is controlling." Aucoin did not involve a conflict between the plat and the field notes. Aucoin made it clear that the goal is to retrace the lines on the ground where they were actually run by the official surveyor: What Shutts [the retracing surveyor] was to doand what he didwas to retrace the line where Gorlinski [the original official surveyor] should have located the mean high-water line. Shutts started at a known or established corner and thence followed the courses and distances given in Gorlinski's field notes. It matters not now whether the mean high-water mark was actually on the line where Gorlinski ran his traverse in 1857, or was in fact 1,000 feet northeast from the line which Gorlinski ran.
Aucoin 20 So.2d at 154. It is not contested that the government survey in question was accepted and approved. The trial court acknowledges the acceptance, but notes that the approval was given "grudgingly." The trial court in its findings was highly critical of the official U.S. government survey.[4] Delacroix argues that these findings show that the trial court attempted to correct the errors in the official survey which all parties agree is beyond the authority of that court or this Court. We do not accept that interpretation of the trial court's findings. This Court is of the opinion that the trial court was merely trying to elaborate on its finding that the original survey was erroneous. Mr. Mayeux re-established where the original surveyors actually were, "even if erroneous." Mr. Mayeux and the trial court re-established the original survey, errors and all. They did not attempt to correct it. Had Mr. Mayeaux attempted to correct the original survey his townships would have consisted of 36 perfect square mile sections. Additionally, Sections 13 and 24 on one side of the range line would have lined up perfectly with Sections 18 and 19 on the other side of the range line. Instead the plat of Mr. Mayeux's reconstructed survey contains sections which are not only blatantly irregular in shape[5], but the sections on either side of the range line are way out of sync, thus preserving the effect of the errors made by the original government surveyors.[6] The trial Court also weighed the competing testimony of the expert geomorphologists, Dr. Van Heerden and Mr. Kemp. These witnesses testified concerning the changes in topography since the original government survey because of such factors as erosion, accretion, and changes in water courses. The trial court indicated that it found the testimony of the Biloxi expert, Dr. Van Heeden, more persuasive than that of Mr. Kemp, because it was consistent with the eastward shift of the monument "Spar". We cannot say that the trial court was manifestly erroneous in making this judgment call. Nor can we say that the trial court was manifestly erroneous when it decided to place more *821 weight on the survey testimony than on the geomorphology testimony. The findings of the trial court represent an impressive, painstaking, laborious, and detailed analysis of the facts of this extremely complicated case. We accept them as written and incorporate them herein by reference. This case involved genuine disagreements over survey errors and the effect of the passage of many years on topography. Delacroix cannot be said to have fabricated a dispute where no legitimate dispute existed. Our finding of no manifest error in no way implies that Delacroix's appeal is frivolous. If such were the case, an affirmance in a fact based case would be tantamount to an ipso facto finding of frivolousness. Such a standard would stifle appeals, and would be contrary to the policy of the courts of this state which says that appeals are favored. Biloxi's claim for frivolous appeal is denied. For the foregoing reasons the judgment of the trial court is affirmed. AFFIRMED. NOTES [1] The pertinent portions of the judgment of the trial court are:
IT IS ORDERED, ADJUDGED AND DECREED that Biloxi Marsh Lands Corporation and the Class of Biloxi Royalty Owners are hereby declared to be the owners in fee simple and entitled to the mineral royalties attributable to certain mineral royalties attributable to certain mineral leases in favor of Texas International Petroleum Corporation and its successor, Total Minatome Corporation, affecting fractional Section 24, Township 15 South, Range 17 East, included within the 7900' RA SU A and SU B units from property described as follows: That certain portion of ground located in St. Bernard Parish, State of Louisiana, known as fractional Section 24, Township 15 South, Range 17 East, according to the Retracement Survey by Michael P. Mayeux, Registered Land Surveyor, dated November 30, 1987. The common line between the lands of Delacroix Corporation in Section 13, Township 15 South, Range 17 East, and the lands of Biloxi Marsh Lands Corporation in Section 24, Township 15 South, Range 17 East, commences at the northeast corner of Section 24 (being the southeast corner of Section 13) at its intersection with the range line between Township 15 South, Range 17 East and Township 15 South, Range 18 East, at a point having the coordinates of X = 2,602,267.43' and Y = 393,793.27', thence along the common boundary of Sections 13 and 24, south 87 [degrees], 27', 11" west, to the Meander Corner having the coordinates of X = 2,599,194.17' and Y = 397,657.46'. Provided however, that only those portions of the above described area that are not subject to the ownership of the State of Louisiana, are hereby declared to be subject to the above referred to mineral royalties. [2] Mr. Burnside was very evasive when cross-examined on this issue. Inferences may also be drawn from the trial court's referral to Mr. Burke's "unusual role" in these proceedings. Therefore, in addition to the fact that the survey procedures Mr. Mayeux employed were by their nature more reliable than those employed by Messrs. Burke and Burnside, we may infer that the trial court had reason to find Mr. Mayeux's testimony more disinterested and credible. [3] Some slight deviation will occur because of the natural curvature of the earth's surface, but this effect is irrelevant to the comparatively small distances involved in this case. [4] In the written reasons the trial court stated:
The reluctant approval of the Director of the Land Office indicated that it was a worthless survey and the land portions would have to be resurveyed because of the lack of corners and non-connectability of the meanders to the survey. * * * * * * We know the field notes and the plat are flawed. To ask this court to accept the field notes and/or the plat as conclusive evidence of the location of township and section lines is akin to asking the court to admire the emperor's new clothing. * * * * * * The plat being flawed must yield to the survey called for by Mr. Young in 1848 and the court allows the established south line of Section 13, Township 15 South, Range 17 E. by Mr. Mayeaux to be the place where the deputy surveyor actually made their traverse even if erroneous. [5] The conclusiveness of an inaccurate original survey is not affected by the fact that it will set awry the shapes of sections and subdivisions. United States v. Doyle; United States v. Citko. [6] Each township was surveyed as a separate entity by the original government surveyors. Smith v. Almond, 157 La. 265, 102 So. 330 (1924). Thus townships that should line up in theory may, as in the instant case, fail to do so in fact. | 10-30-2013 | [
"650 So. 2d 815 (1995) TEXAS INTERNATIONAL PETROLEUM CORPORATION v. DELACROIX CORPORATION, et al. No. 94-CA-1426. Court of Appeal of Louisiana, Fourth Circuit. January 31, 1995. Writ Denied April 20, 1995. *817 Wilkinson & Wilkinson, Hugh M. Wilkinson, Jr., John B. Wilkinson, New Orleans, for appellant. Ogden, Ogden & Wright, Charlton B. Ogden, III, New Orleans, for appellees. Before KLEES, BYRNES and CIACCIO, JJ. BYRNES, Judge. This is a concursus proceeding brought by Texas International Corporation seeking a determination of the ownership of oil and gas royalties deposited into the registry of the court attributable to disputed tracts of land within two conservation units designated as 7900' RA SU A and 7900' RA SU B, Half Moon Lake Field, St. Bernard Parish.",
"Total Minatome Corporation succeeded Texas International Petroleum Corporation by act of assignment and was joined as a party plaintiff. This phase of the litigation focuses on the dispute between Delacroix corporation and Delacroix Royalty Owners (referred to collectively as \"Delacroix\") the royalty owners of Section 13 and Biloxi Marsh Land Corporation and its royalty owners of Section 24 (referred to collectively as \"Biloxi\"). The primary issue concerns the location of the line between Sections 13 and 24, Township 15 South, Range 17 East, which is simultaneously the southern boundary of Section 13 and the northern boundary of Section 24. All other issues were held in abeyance pending resolution of this issue. The trial court ruled in favor of Biloxi. [1] We affirm. The ancestors in title to the land in dispute acquired title by reference to an official government survey done by Messrs. Richardson and Powell in 1842-1845. That survey was approved by the government in 1848. The parties agree upon the fundamental legal principle in this case: THIS COURT IS POWERLESS TO CORRECT ERRORS IN THE ORIGINAL GOVERNMENT SURVEY!",
"The power to make and correct surveys of public lands belongs to the political department of the government, and while the lands are subject to the supervision of the General Land Office, its decisions in such cases are unassailable by the courts, except by a direct proceeding. Cragin v. Powell, 128 U.S. 691, 9 S. Ct. 203, 32 L. Ed. 566 (1888). In other words, decisions of the General Land Office of the United States are not subject to correction by the courts in suits between individuals. Leader Realty Co. v. Lakeview Land Co., 142 La. 169, 76 So. 599 (La.1917).",
"Whether a government survey as originally made is correct or incorrect is for the land department alone to determine, and as to which the courts have no jurisdiction except by original proceedings in equity. Carrere v. City of New Orleans, 162 La. 981, 111 So. 393 (La.1926). Even if the governmental *818 survey is incorrect, it nevertheless creates the township sections and boundaries. State v. Ward, 314 So. 2d 383, 396 (La.App. 3 Cir.1975), writ den., 319 So. 2d 440 (La.1975). Any section corner or quarter corner that is identified as having been established by an official survey of the United States government must stand as correctly located, however plain it may appear that the location is wrong, since the government surveys cannot be changed in an action at law between private individuals.",
"Houston Ice & Brewing Co. v. Murphy Oil Co., 149 La. 228, 88 So. 802 (La.1921). An approved survey of public lands does not merely ascertain boundaries, it creates them, and a township survey completed and approved creates the boundaries of the township and the sections therein. Union Producing Co., et al, v. Placid Oil Company, 178 So. 2d 392 (La.App. 1 Cir., 1965), writ refused, 248 La. 447, 179 So. 2d 432 (La.1965), writ denied, 385 U.S. 843, 87 S. Ct. 31, 17 L. Ed. 2d 75 (1966). Both the appellants and the appellees cite and agree on all of the foregoing authorities.",
"On the other hand, where the lines run by such survey lie on the ground, and whether any particular tract is on one side or other of that line, are questions of fact which are always open to inquiry in the courts. Russell v. Maxwell Land Grant Co., 158 U.S. 253, 259, 15 S. Ct. 827, 39 L. Ed. 971, 972 (1895); U.S. v. State Inv Co., 264 U.S. 206, 212, 44 S. Ct. 289, 68 L. Ed.",
"639 (1924); United States v. Hudspeth, 384 F.2d 683 (9 Cir. 1967). The location of a boundary line is a question of fact to be determined by the trier of fact and this factual determination should not be reversed on appeal in the absence of manifest error. Morris v. Sigur, 584 So. 2d 729, 730 (La.App. 4 Cir.1991), writ den., 589 So. 2d 1054 (La.1991). Thus while the trial court was powerless to correct errors in the official government survey, it was completely competent to locate the lines of that survey on the ground and to locate any given tract of land in relation thereto, subject only to manifest error review by this court. Delacroix and Biloxi each assert that the claims of the other are inconsistent with this original survey.",
"All parties agree that the original surveyors made errors. There is some dispute over the number, location and effect of these errors. Experts testified on both sides of the controversy. Ultimately the case boiled down to one of weighing conflicting expert testimony. In the absence of manifest error, this Court does not have the authority to reverse the trial court's determinations in the matter of conflicting of expert testimony. Sistler v. Liberty Mut. Ins. Co., 558 So. 2d 1106, 1111 (La.1990); Brewhouse, Ltd. v. New Orleans Public Service, Inc., 614 So. 2d 118, 120 (La.App.1993); Miller v. Miller, 602 So. 2d 330, 332 (La.App.",
"4 Cir.1992). Messrs. Burke, Burnside, and Mayeaux testified as expert surveyors. The analyses of Messrs. Burke and Burnside were limited to a study of documents such as maps, diagrams, and plats. They did not attempt to retrace the steps of the official government surveyors on the ground. Mr. Mayeaux was the only expert who went out and tried to physically retrace the footsteps of the original government surveyors. This is important because it provides objective support for the trial court's decision to base its findings on Mr. Mayeaux's testimony rather than the testimony of Messrs. Burke and Burnside. [2] The reliability of a plat which is unsupported by any effort to retrace the lines on the ground is questionable at best.",
"Barham v. Department of Highways, 431 So. 2d 899, 902 (La.App. 2 Cir.1983). Mr. Mayeaux's attempt to physically retrace the footsteps of the original surveyors is also important because those surveyors calculated the locations of section lines and corners and did not physically walk upon them, i.e., their locations were projections. *819 It is necessary to know where the surveyors actually were on the ground when they made their projections. For example, if the original government surveyors had projected that a corner was such and such a distance in such and such a direction, it is essential to know where they were when they made that projection if we are ever to reconstruct where they projected that corner to be. This is particularly important in this case where it appears that the surveyors were often not where they thought they were when they made their projections. The trial court noted that Mr. Mayeux made greater use of topography than did the other two surveyors.",
"Mr. Mayeux located natural objects and fixed monuments called for by the field notes on the ground. In matters of boundary, calls for natural objects and fixed monuments control those for distances. U.S. v. State Inv Co., 264 U.S. 206, 212, 44 S. Ct. 289, 290-91, 68 L. Ed. 639 (1924) In ascertaining the boundaries of surveys or patent, the universal rule is this: that whatever natural or permanent objects are embraced in the calls of either, these have absolute control, and both courses and distances must yield to their influence.",
"Brown v. Huger, 62 U.S. 305, 21 How. 305, 306, 16 L. Ed. 125, 129 (1859); City of New Orleans v. Joseph Rathborne Land Co., 24 So. 2d 275 (La.1945). The legal guides for determining the question of boundary or the location of a land line, in order of their importance, are natural monuments, artificial monuments, distances, courses and quantity... City of New Orleans v. Joseph Rathborne Land Co. at 281; Meyer v. Comegys, 147 La. 851, 86 So. 307 (La.1920). It is well established that natural objects and monuments are more important than courses and distances in retracing old surveys and ascertaining the location of unknown and disputed lines. Cheramie v. Vegas, 194 So. 2d 189, 192 (La.App. 1 Cir.1966), writ refused, 250 La.",
"907, 199 So. 2d 918 (La.1967); Barham v. Department of Highways, 431 So. 2d 899 (La.App. 2 Cir.1983); Liner v. Terrebonne Parish School Board, 519 So. 2d 777 (La.App. 1 Cir.1987), writ den. 521 So. 2d 1173 (La. 1988), cert. den. 488 U.S. 827, 109 S. Ct. 79, 102 L. Ed. 2d 55 (1988); Morris v. Sigur, 584 So. 2d 729 (La.App. 4 Cir.1991), writ den., 589 So. 2d 1054 (La.1991). But in re-establishing the lines of a survey, the footsteps of the original government surveyors should be followed, and it is immaterial if lines actually run by him are not correct. Galt v. Willingham, 11 F.2d 757, 758 (5 Cir.1926). The original survey as it was actually run on the ground controls, even if the boundary was incorrect as originally established.",
"United States v. Doyle, 468 F.2d 633, 636 (10 Cir.1972); United States v. Citko, 517 F. Supp. 233 (E.D.Wis. 1981). The basic error made by Powell and Richardson was that they were north of their intended position in their traverses around Lake Athanasio. This had the effect of throwing off the northeast corners of Sections 36, 25, and 24 as these corners were established by calls from positions that were farther north than Powell and Richardson realized. This caused the boundary between sections 24 and 13 to be farther north than intended, which is the crux of this litigation. This also prevented these sections from lining up properly along the range line with sections in the adjoining township. In theory each township should be a perfect square, six miles on a side, consisting of thirty-six sections which should be perfect squares of one square mile each.",
"[3] The official government plat appears to be based on this idealized conception of perfectly regular lines and sections. However, it cannot be reconciled with the field notes of the surveyors upon which it was supposed to be based. In the event of such a conflict the field notes control, because the plat is made from the field notes. Whiting v. Gardner, 80 Cal. 78, 22 P. 71. The question to be answered by courts in such cases is, where were the lines run in the field by the government surveyor? Harrington v. Boehmer, 134 Cal. 196, 66 P. 214, 215 (1901). State v. Aucoin, 206 La. 787, 20 So. 2d 136, 154 (La.1944) does not contradict this when it *820 states that: \"When lands have been disposed of by the government according to a line appearing on an official plat of a government survey, approved by the Surveyor General, the location of the line shown on the official plat is controlling.\"",
"Aucoin did not involve a conflict between the plat and the field notes. Aucoin made it clear that the goal is to retrace the lines on the ground where they were actually run by the official surveyor: What Shutts [the retracing surveyor] was to doand what he didwas to retrace the line where Gorlinski [the original official surveyor] should have located the mean high-water line. Shutts started at a known or established corner and thence followed the courses and distances given in Gorlinski's field notes. It matters not now whether the mean high-water mark was actually on the line where Gorlinski ran his traverse in 1857, or was in fact 1,000 feet northeast from the line which Gorlinski ran.",
"Aucoin 20 So.2d at 154. It is not contested that the government survey in question was accepted and approved. The trial court acknowledges the acceptance, but notes that the approval was given \"grudgingly.\" The trial court in its findings was highly critical of the official U.S. government survey. [4] Delacroix argues that these findings show that the trial court attempted to correct the errors in the official survey which all parties agree is beyond the authority of that court or this Court. We do not accept that interpretation of the trial court's findings. This Court is of the opinion that the trial court was merely trying to elaborate on its finding that the original survey was erroneous. Mr. Mayeux re-established where the original surveyors actually were, \"even if erroneous.\"",
"Mr. Mayeux and the trial court re-established the original survey, errors and all. They did not attempt to correct it. Had Mr. Mayeaux attempted to correct the original survey his townships would have consisted of 36 perfect square mile sections. Additionally, Sections 13 and 24 on one side of the range line would have lined up perfectly with Sections 18 and 19 on the other side of the range line. Instead the plat of Mr. Mayeux's reconstructed survey contains sections which are not only blatantly irregular in shape[5], but the sections on either side of the range line are way out of sync, thus preserving the effect of the errors made by the original government surveyors.",
"[6] The trial Court also weighed the competing testimony of the expert geomorphologists, Dr. Van Heerden and Mr. Kemp. These witnesses testified concerning the changes in topography since the original government survey because of such factors as erosion, accretion, and changes in water courses. The trial court indicated that it found the testimony of the Biloxi expert, Dr. Van Heeden, more persuasive than that of Mr. Kemp, because it was consistent with the eastward shift of the monument \"Spar\". We cannot say that the trial court was manifestly erroneous in making this judgment call. Nor can we say that the trial court was manifestly erroneous when it decided to place more *821 weight on the survey testimony than on the geomorphology testimony. The findings of the trial court represent an impressive, painstaking, laborious, and detailed analysis of the facts of this extremely complicated case.",
"We accept them as written and incorporate them herein by reference. This case involved genuine disagreements over survey errors and the effect of the passage of many years on topography. Delacroix cannot be said to have fabricated a dispute where no legitimate dispute existed. Our finding of no manifest error in no way implies that Delacroix's appeal is frivolous. If such were the case, an affirmance in a fact based case would be tantamount to an ipso facto finding of frivolousness. Such a standard would stifle appeals, and would be contrary to the policy of the courts of this state which says that appeals are favored. Biloxi's claim for frivolous appeal is denied. For the foregoing reasons the judgment of the trial court is affirmed.",
"AFFIRMED. NOTES [1] The pertinent portions of the judgment of the trial court are: IT IS ORDERED, ADJUDGED AND DECREED that Biloxi Marsh Lands Corporation and the Class of Biloxi Royalty Owners are hereby declared to be the owners in fee simple and entitled to the mineral royalties attributable to certain mineral royalties attributable to certain mineral leases in favor of Texas International Petroleum Corporation and its successor, Total Minatome Corporation, affecting fractional Section 24, Township 15 South, Range 17 East, included within the 7900' RA SU A and SU B units from property described as follows: That certain portion of ground located in St. Bernard Parish, State of Louisiana, known as fractional Section 24, Township 15 South, Range 17 East, according to the Retracement Survey by Michael P. Mayeux, Registered Land Surveyor, dated November 30, 1987.",
"The common line between the lands of Delacroix Corporation in Section 13, Township 15 South, Range 17 East, and the lands of Biloxi Marsh Lands Corporation in Section 24, Township 15 South, Range 17 East, commences at the northeast corner of Section 24 (being the southeast corner of Section 13) at its intersection with the range line between Township 15 South, Range 17 East and Township 15 South, Range 18 East, at a point having the coordinates of X = 2,602,267.43' and Y = 393,793.27', thence along the common boundary of Sections 13 and 24, south 87 [degrees], 27', 11\" west, to the Meander Corner having the coordinates of X = 2,599,194.17' and Y = 397,657.46'. Provided however, that only those portions of the above described area that are not subject to the ownership of the State of Louisiana, are hereby declared to be subject to the above referred to mineral royalties. [2] Mr. Burnside was very evasive when cross-examined on this issue.",
"Inferences may also be drawn from the trial court's referral to Mr. Burke's \"unusual role\" in these proceedings. Therefore, in addition to the fact that the survey procedures Mr. Mayeux employed were by their nature more reliable than those employed by Messrs. Burke and Burnside, we may infer that the trial court had reason to find Mr. Mayeux's testimony more disinterested and credible. [3] Some slight deviation will occur because of the natural curvature of the earth's surface, but this effect is irrelevant to the comparatively small distances involved in this case. [4] In the written reasons the trial court stated: The reluctant approval of the Director of the Land Office indicated that it was a worthless survey and the land portions would have to be resurveyed because of the lack of corners and non-connectability of the meanders to the survey. * * * * * * We know the field notes and the plat are flawed. To ask this court to accept the field notes and/or the plat as conclusive evidence of the location of township and section lines is akin to asking the court to admire the emperor's new clothing.",
"* * * * * * The plat being flawed must yield to the survey called for by Mr. Young in 1848 and the court allows the established south line of Section 13, Township 15 South, Range 17 E. by Mr. Mayeaux to be the place where the deputy surveyor actually made their traverse even if erroneous. [5] The conclusiveness of an inaccurate original survey is not affected by the fact that it will set awry the shapes of sections and subdivisions. United States v. Doyle; United States v. Citko. [6] Each township was surveyed as a separate entity by the original government surveyors. Smith v. Almond, 157 La. 265, 102 So. 330 (1924). Thus townships that should line up in theory may, as in the instant case, fail to do so in fact."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1751391/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
PER CURIAM. Michael Johnson appeals his convictions and sentences for aggravated assault and aggravated battery on a pregnant woman. We strike the part of condition twelve of Mr. Johnson’s probation order that requires him to pay for breathalyzer or blood testing to determine the presence of alcohol because such requirement is not enumerated in the statutory conditions of probation, and the trial court did not pronounce this aspect of the condition at the sentencing hearing. See §§ 948.03(l)(k), 948.09(6), Fla. Stat. (1995); Kopecki v. State, 670 So.2d 1066 (Fla. 2d DCA 1996). Mr. Johnson’s convictions and sentences are otherwise affirmed. Affirmed as modified. PATTERSON, A.C.J., and ALTENBERND and FULMER, JJ., concur. | 07-30-2022 | [
"PER CURIAM. Michael Johnson appeals his convictions and sentences for aggravated assault and aggravated battery on a pregnant woman. We strike the part of condition twelve of Mr. Johnson’s probation order that requires him to pay for breathalyzer or blood testing to determine the presence of alcohol because such requirement is not enumerated in the statutory conditions of probation, and the trial court did not pronounce this aspect of the condition at the sentencing hearing. See §§ 948.03(l)(k), 948.09(6), Fla. Stat. (1995); Kopecki v. State, 670 So.2d 1066 (Fla. 2d DCA 1996). Mr. Johnson’s convictions and sentences are otherwise affirmed. Affirmed as modified. PATTERSON, A.C.J., and ALTENBERND and FULMER, JJ., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7707826/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 10.3 SEPARATION AGREEMENT AND MUTUAL GENERAL RELEASE OF CLAIMS Javier E. Benito (hereinafter referred to as “Employee”) and Starwood Hotels & Resorts Worldwide, Inc. (hereinafter referred to as the “Company”) agree as follows: ONE: Termination of Employment. Employee acknowledges that his employment with the Company will end upon his resignation, which he hereby tenders as a result of a reduction in his role and which will be effective April 1, 2007 (hereinafter referred to as the “Termination Date”). After the Termination Date, Employee will perform no further duties, functions or services for the Company or any of its affiliates, nor will he be entitled to any further compensation and/or benefits except as described herein. From and after the date hereof (the “Effective Date”) through the Termination Date (the “Transition Period”), Employee will remain employed with the Company and work with Steven J. Heyer and such other senior executives of the Company designated by Mr. Heyer, on an as needed basis to transition responsibilities and information. During the Transition Period, Employee shall continue to receive his annual salary of $468,000 semi monthly, less applicable deductions, paid out in regular payroll periods and the Company shall continue to pay for Employees health insurance coverage, minus Employee’s normal contributions and options and restricted stock granted under the Company’s Long Term Incentive Plans shall continue to vest according to their original vesting schedule. Following the Termination Date, Employee shall be eligible for continued insurance coverage under COBRA. Notwithstanding the foregoing, during the Transition Period, Employee will not be eligible to receive any further equity grants (restricted stock or options) from the Company. Without limiting the effect of any other provision of this Agreement, if at any time prior to the Termination Date, Employee’s employment is terminated “for cause” or if Employee voluntarily resigns, all payments and other benefits under this Agreement shall cease immediately and Employee shall not be entitled to any further payment and/or benefits under this Agreement, including, but not limited to the severance payments and benefits described in Paragraph TWO below. If Employee is terminated for cause or voluntarily resigns his employment, the date that Employee’s employment is terminated for cause or he voluntarily resigns shall be deemed the Termination Date. For purposes of this Agreement, “cause,” shall mean (i) any material breach by Employee of any of the duties, responsibilities or obligations of his employment or any of the policies or practices of the Company; (ii) Employee’s willful failure or refusal to properly perform (as determined by Company in its reasonable discretion and judgment), or the habitual neglect of, the duties, responsibilities or obligations of his employment, or to properly perform or follow (as determined by Company in its reasonable discretion and judgment) any lawful order or direction by the Company; (iii) any acts or omissions by Employee that constitute (as determined by Company in its reasonable discretion and judgment) fraud, dishonesty, breach of duty of loyalty, breach of trust, gross negligence, civil or criminal illegality, or any other misconduct or behavior that could subject to civil or criminal liability or otherwise adversely and
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materially affect the business, interests or reputation of the Company or any of its affiliates. For the purposes of the acts described in items (i) through (iii) of this paragraph, such determinations shall be made by the Company in its reasonable discretion and judgment. TWO: Benefits. Provided that (i) Employee executes this Agreement; (ii) his employment is not terminated for cause prior to April 1, 2007; (iii) he does not voluntarily resign prior to April 1, 2007, and (iv) that within twenty-one (21) days after the Termination Date, Employee shall have executed and delivered to the Company a General Release and Waiver (“Release”) in the form annexed hereto as Appendix B; and (v) Employee does not revoke either this Agreement or the Release, and in consideration for Employee’s agreements and covenants including the release of claims set forth in this Agreement and as full and complete and final satisfaction of any and all claims which Employee had, has or may have against the Company, the Company agrees that within 21 days after the Termination Date and subject to the conditions to payment set forth herein, it will (i) pay Employee an amount equal to 12 months of his base salary in a lump sum of $468,000, less applicable withholdings; (ii) pay Employee an additional amount in a lump sum equal to $122,850 (such amount equal to Employee’s target bonus for the 2006 performance year of $351,000 (representing 75% of Employee’s base salary of $468,000) less the $228,150 previously paid to Employee on March 1, 2007), less applicable withholdings; (iii) make COBRA premium payments on Employee’s behalf, minus Employee’s normal contributions, for a period of 12 months should Employee choose to continue coverage under the Company’s applicable plans after the Termination Date; and (iv) accelerate the vesting of 50% of Employee’s then unvested restricted stock and options (on a tranche by tranche basis) as of the Termination Date, as more fully set forth on Appendix A attached hereto. In addition, Employee shall be entitled to receive a payout for accrued and unused vacation time as of the Termination Date in accordance with the Company’s policies. Subject to the terms herein, Employee will remain an active employee during the Transition Period. Notwithstanding the foregoing, during the Transition Period, Employee will not be eligible to participate and expressly and knowingly waives any right to participate in any employee benefit plans (except health and life insurance plans) within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA”) or any other plan, policy or arrangement of the Company, including, but not limited to, any plan, policy or arrangement relating to bonuses, profit sharing, compensation, pension, severance, deferred compensation, fringe benefits, insurance, welfare, post-retirement, stock purchases, disability, accidents, sick time, vacation pay, termination, unemployment, executive compensation, incentives, commissions or sales arrangements, change in control, and other plan, agreement, policy, or arrangement (whether written or unwritten), such as the Annual Incentive Plan; the Long Term Incentive Plan; and the Employee Stock Purchase Plan; nor will he be eligible to receive any incentives, bonuses, further option or stock grants under such plans. Employee will not be entitled to any of the severance payments or benefits set forth in Paragraph TWO or any other consideration under this Agreement until at least seven (7) business days after the later of all of the following: (i) receipt by the Company of this Agreement signed by Employee; (ii) receipt by the Company on or about the Termination Date of the Release annexed
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hereto as Appendix B signed by Employee; (iii) expiration of the revocation period set forth in numbered Paragraph EIGHT, without Employee revoking this Agreement; and (iv) expiration of the revocation period set forth in the Release annexed hereto as Exhibit B signed by Employee, without Employee revoking such Release. THREE: Mutual General Release. In exchange for the agreement to provide the severance pay and other benefits and arrangements provided for in this Agreement, Employee understands that he is waiving any and all claims Employee may have against the Company and its affiliates and subsidiaries and its and their officers, directors, employees, agents, shareholders, employee benefit programs, administrators, insurers, attorneys and successors and assigns (collectively “Releasees”), from any and all claims, actions, suits, damages, complaints and grievances the Employee, his attorneys, heirs, dependents, beneficiaries, executors, administrators, successors, and assigns, may have related to the Employee’s employment with the Company or the termination of that employment. This includes a release of any rights or claims the Employee may have under the Age Discrimination in Employment Act, which prohibits discrimination in employment based on age; Title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991, which prohibit discrimination in employment based on race, color, national origin, ancestry, religion or sex; the Pregnancy Discrimination Act, which prohibits discrimination based on pregnancy; the Equal Pay Act, which prohibits paying men and women unequal pay for equal work; the Civil Rights Acts of 1866 and 1871, as amended, which protect against certain discrimination and violations of individuals’ civil rights; the Americans with Disabilities Act, which prohibits discrimination on the basis of physical or mental disability; the Employee Retirement Income Security Act (ERISA), which regulates certain conduct and practices relating to employee benefit and health plans; the Family and Medical Leave Act, which provides time off to employees for certain family and medical events and prohibits discrimination relating to such leaves of absence; the Immigration Reform and Control Act, which prohibits discrimination based upon an individual’s national origin citizenship status and/or work authorization documents; the New York State Executive Law, the New York City Administrative Code, and the New York State Constitution; or any other federal, state or local laws or regulations prohibiting employment discrimination or regulating employment or termination of employment. This also includes a release by the Employee of any claims for wrongful discharge and any other common law claims. This release applies to all claims through the date of execution of this Agreement and covers both claims that the Employee knows about and those he may not know about but excludes (i) any claim by Employee to enforce the terms of this Agreement; and (ii) any claim to enforce Employee’s indemnification rights; and (iii) any claims related to actions or omissions occurring after the execution of this Agreement. In consideration of Employee’s agreements hereunder, the Company, on its own behalf and on behalf of its current and former affiliates or related companies, subsidiaries, branches and divisions, and the successors and assigns of all of the foregoing (collectively, the “Company Releasor”) hereby releases Employee and Employee’s heirs, executors, administrators, successors and assigns from or in connection with any and all actions, claims or demands, known or unknown and of any nature whatsoever and which Company Releasor ever had, now has or hereafter can, shall or may have as of the date hereof relating to Employee’s employment with
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the Company, except that this Release shall not apply to (i) any obligation of Employee pursuant to this Agreement and the Non-Solicitation, Confidentiality and Intellectual Property Agreement dated March 24, 2005 (the “Confidentiality Agreement”); (ii) any act by Employee during his employment that would constitute fraud or embezzlement; or (iii) any actions, claims or demands related to actions or omissions occurring after the date hereof. FOUR: Acknowledgment of Full Payment. Employee acknowledges that the payments and arrangements specified in Paragraph TWO above represent sufficient consideration for Employee’s release of claims and the other covenants contained in this Agreement. Employee expressly acknowledges that the severance pay provided for in this Agreement exceeds, supersedes and extinguishes any amount, if any, to which Employee may be entitled under any employment agreement, verbal or written, as well as any employment or personnel policies, procedures or handbooks including but not limited to severance plans, policies or precedent utilized by the Company or any other legal obligation which the Company may have to Employee. Employee further acknowledges that in the absence of this Agreement, Employee would not be entitled to, among other things, all of the payments and benefits specified in paragraph TWO above. Other than Employee’s accrued but unused vacation pay for which Employee will be compensated and Employee’s 401k plan benefits, Employee also acknowledges that the Company has paid all sums owed to him as a result of his employment with the Company and/or the termination of that employment and that, other than as provided in this Agreement, Employee is not entitled to, among other things, any further pay, benefits or severance. Employee and the Company acknowledge and agree that to the extent that Employee currently holds stock options and restricted stock, that this information is accurately set forth on Appendix A hereto, Employee has no other rights that relate to the securities of the Company or any of its affiliates or subsidiaries and that other than as set forth herein such equity will expire in accordance with the applicable long-term incentive plan and/or stock option agreements and/or restricted stock agreements. Other than the fact that Employee’s employment was terminated on the Termination Date and other than as detailed expressly in Paragraph TWO herein, nothing in this Agreement shall be construed to alter, amend or modify the terms and conditions governing any restricted stock, stock options or similar rights, and any rights pertaining thereto, granted to Employee prior to the Termination Date. FIVE: Termination of All Existing Agreements. Except as otherwise expressly provided herein and other than agreements relating to confidentiality, non-solicitation, non-disclosure and non-competition, including, without limitation, the Confidentiality Agreement, all rights and obligations of the Company and Employee under any employment agreement Employee may have had with the Company, and any other agreement, arrangement, obligation or understanding between the Company and the Employee are hereby cancelled and terminated as of the Termination Date without liability of any party thereunder.
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SIX: Non-Admission of Liability. The parties have entered into this Agreement to effect a mutually acceptable termination of Employee’s employment with the Company. Neither the Company nor the Employee believes nor admits that either or both of them have done anything wrong. SEVEN: Period for Review and Consideration of Agreement. Employee understands that he has been given a period of 21 calendar days to review and consider this Agreement. Employee further understands that he may take as much or as little of this 21-day period of time to consider this Agreement as he wishes, before signing this Agreement. EIGHT: Revocation Period and Payment of Benefits. This Agreement will not become effective or binding on the parties until seven (7) days after it is signed, during which time Employee may revoke this Agreement if he desires. Any revocation must be in writing and directed to Chief Administrative Officer and General Counsel, 1111 Westchester Avenue, White Plains, NY 10604. NINE: Encouragement to Consult with Attorney. Employee is encouraged to consult with an attorney before signing this Agreement. Employee understands that whether to do so is his decision. TEN: Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties, as well as their heirs, administrators, representatives, agents, executors, successors and assigns. ELEVEN: Arbitration. Any controversy, dispute or claim arising out of or related to this Agreement or its enforceability shall be finally settled by final and binding arbitration conducted by a single arbitrator selected by the parties in accordance with the Employment Rules of the American Arbitration Association. TWELVE: Confidentiality. Employee represents and agrees that he will keep the terms and dollar amount contained in this Agreement confidential, and that he will not disclose any information concerning this Agreement to any third person, including, but not limited to any past or present employee of the Company, except as may be required by law. Nothing herein shall preclude Employee from disclosing the terms of this Agreement to his spouse or to his accountant, legal counsel, insurer or tax advisors; provided that his spouse and such accountant, legal counsel, insurer or tax advisors are advised of and agree to be bound by the provisions of this Paragraph. Employee acknowledges that he
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will be responsible for any violation of the terms of this Paragraph TWELVE by any of those persons. The Company represents and agrees that it will keep the terms and dollar amount contained in this Agreement confidential, and that it will not disclose any information concerning this Agreement to any third person; provided that the Company may disclose the terms of this Agreement (i) to its directors, officers and employees who need to know such information in the course of their duties and (ii) as may be required under the applicable law, United States securities laws, the rules and regulations of the Securities and Exchange Commission or in a proceeding before a court, arbitrator or administrative agency, including a national securities exchange. THIRTEEN: Confidential Information. As a senior executive officer of the Company, Employee acknowledges that he has had access to Confidential Information (as hereinafter defined) of the Company through the Termination Date. Without limiting Employee’s continuing legal obligations pursuant to the Confidentiality Agreement, in recognition of Employee’s legal obligations and the consideration set forth in this Agreement, Employee agrees not to disclose, communicate or divulge to, or use for the direct or indirect benefit of, any person (including Employee), firm, association or other entity (other than the Company or its affiliates) any Confidential Information. “Confidential Information” includes, but is not limited to, customer lists, customer financial information, vendor lists, joint venture lists, actual, contemplated and potential development projects, opportunities and partners, development strategies, brand marketing and other brand strategies, information relating to any current, past or prospective management agreement or joint venture, design plans and strategies, personnel information, labor and personnel strategies, databases, computer programs and software, frameworks, designs, models, blueprints, marketing programs and plans, sales, financial, design, training and technical information and plans, sales data and contacts, business methods, business policies, procedures, techniques, research or development projects or results, trade secrets (which includes the Company’s customer and prospective customer lists), pricing policies, financial records, or other financial, commercial, business or technical information relating to the Company or any of its subsidiaries. Employee hereby represents and agrees that on or before the Termination Date: (i) Employee has returned or will return to the Company, and has not retained or will not retain originals or any copies of all documents, records or materials of any kind, whether written or electronically created or stored, which contain, relate to or refer to any Confidential Information (“Confidential Materials”); and (ii) Employee has not disclosed and will not disclose any Confidential Information or Confidential Materials to any person or entity without the express written authorization of an authorized officer of the Company. In the event that Employee receives a subpoena or any other written or oral request for disclosure or release of any Confidential Information, Confidential Materials or any other information concerning the Company or its subsidiaries, or its or their current or former employees, officers, directors, shareholders or agents, Employee shall, within two (2) business days of the service or receipt of such subpoena or other request notify the Company in writing directed to Chief Administrative Officer and General Counsel, Starwood Hotels & Resorts Worldwide, Inc., 1111 Westchester Avenue, White Plains, New York 10604 and provide the Company with a copy of
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any subpoena or other written request, or disclose the nature of the request for information, if oral. FOURTEEN: Noninterference. During the period commencing on the Termination Date and ending on the first anniversary of the Termination Date, Employee solely with respect to matters of which he is aware on or before the Termination Date, shall not take or omit to take any action or actions which are intended to or actually cause or encourage any person or prospective entity with which the Company intends to enter into a business relationship or transaction (or any agent or affiliate thereof) to fail to enter into the contemplated business relationship or complete the contemplated transaction. Without limiting the generality of the foregoing, Employee agrees not to pursue on his behalf or on behalf of any other person or entity or otherwise interfere with the Company’s pursuit of any pending or contemplated deal, merger or acquisition of which he was aware on or before the Termination Date. FIFTEEN: Non-Disparagement. Employee agrees not to engage in any act or say, publish or disseminate anything (either directly or by or through another person) that is intended, or may reasonably be expected, to harm the reputation, business or operations of the Company, its customers, its employees, officers, directors or shareholders prior to or after the Termination Date. The Company agrees that it will not make any statements that are intended, or would reasonably be expected, to disparage or defame Employee. SIXTEEN: Future Cooperation. After the Termination Date, Employee will comply with reasonable requests from any Releasee for assistance and/or information in connection with any matters and/or issues relating to or encompassed within the duties and responsibilities of Employee’s employment, including without limitation, consulting with any of the employees and/or attorneys of any Releasee with respect to, and/or appearing as a witness in, any dispute, controversy, action or proceeding of any kind. Employee agrees to appear as a witness in any proceeding of any kind and to make himself available in advance for reasonable preparation upon the request of the Company with reasonable advance notification without the need for the Company to issue a subpoena. In connection with any of Employee’s cooperation efforts mandated by this Paragraph SIXTEEN, Employee shall be entitled to receive an agreed hourly or per diem amount (or reimbursement of lost wages as the case may be) and reimbursement of reasonable travel and other out of pocket expenses provided that those expenses are submitted pursuant to and are in conformance with the then applicable Company policy relating to expense reimbursement. SEVENTEEN: Non-Solicitation Without waiving or limiting the obligations under the Confidentiality Agreement, during the 24-month period commencing on the Termination Date, Employee agrees that he will not, without the prior written consent of the Company, directly or indirectly, solicit or attempt to solicit for
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employment with or on behalf of any corporation, partnership, joint venture or other business entity, any person who is, or at any time during the six-month period preceding the solicitation of such person was, a management-level employee of the Company (including, without limitation, for this purpose any employee at director level or above and any General Manager of any hotel owned (in whole or in part) or managed by the Company). In the event that the terms of this Paragraph SEVENTEEN conflict with the non-solicitation obligations under the Confidentiality Agreement, the terms of this Paragraph shall govern. The non-solicitation provisions in this Paragraph do not prohibit (i) advertising directed at the general public and not targeted at Company employees; or (ii) Employee from serving as a reference upon request. EIGHTEEN: Injunctive Relief Employee acknowledges and agrees that Paragraphs THIRTEEN, FOURTEEN, FIFTEEN and SEVENTEEN hereof relate to special, unique and extraordinary matters and that a violation of any of the terms of such Paragraphs will cause the Company irreparable injury for which adequate remedies are not available at law. Therefore, Employee agrees that the Company shall be entitled to an injunction, restraining order or such other equitable relief (without the requirement to post bond) in a court of law restraining Employee from committing any violation of the covenants and obligations contained in Paragraphs THIRTEEN, FOURTEEN, FIFTEEN and SEVENTEEN. These remedies are cumulative and are in addition to any other rights and remedies the Company may have at law or in equity. NINETEEN: Return of Company Property. Employee represents that within 1 week after the Termination Date, he will return to the Company all Company property in his possession or over which he has retained control such as printers, scanners and accessories, disks, keys, cell phones, credit cards, access cards, Company records, documents and files and all copies and recordings thereof. To the extent Employee subsequently discovers Company property in his possession or within his control, he shall immediately return such property and all copies, recordings or duplicates thereof to the Company. TWENTY: Severability. If any portion of this Agreement is declared unlawful or unenforceable, the remaining parts will remain enforceable. TWENTY-ONE: Public Announcement Each of Employee and the Company is required to request and receive approval from the other party the content of any voluntary statements, whether oral or written, to be made by Employee or the Company, as the case may be, to any third party or parties regarding Employee’s separation from employment with the Company, including, without limitation, any press release or other statements to the press, except that this Paragraph TWENTY-ONE shall not apply to any statements required to be made by reason of applicable law, the United States securities laws, the rules and regulations of the Securities and Exchange Commission or in a proceeding before a court,
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arbitrator or administrative agency, including a national securities exchange, applicable to the relevant party. Each of Employee and the Company hereby covenants and agrees not to make any public statements (either directly or by or through another person) to any third party, including, without limitation, to any representative of any news organization, which are inconsistent in any material respect with the aforementioned agreed upon statements to the public. TWENTY-TWO: Entire Agreement. This Agreement, including Appendix A and Appendix B, is the entire agreement between Employee and the Company regarding the subjects addressed in this document and this Agreement supersedes any other agreements between the parties, other than agreements relating to confidentiality, non-disclosure, non-solicitation and non-competition, including without limitation, the Confidentiality Agreement. The Company has made no promises to Employee other than those in this Agreement. EMPLOYEE ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT, UNDERSTANDS IT, HAS TAKEN SUFFICIENT TIME TO CONSIDER IT AND IS VOLUNTARILY ENTERING INTO IT. EMPLOYEE UNDERSTANDS THAT THIS AGREEMENT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS AND A RESTRICTION ON RELEASE OF CONFIDENTIAL INFORMATION.
JAVIER E. BENITO Signed: /s/ Javier E. Benito Dated: March 16, 2007 STARWOOD HOTELS & RESORTS WORLDWIDE, INC. By: /s/ Kenneth S. Siegel Name: Kenneth S. Siegel Title: Chief Administrative Officer and General Counsel Dated: March 16, 2007
9 | [
"Exhibit 10.3 SEPARATION AGREEMENT AND MUTUAL GENERAL RELEASE OF CLAIMS Javier E. Benito (hereinafter referred to as “Employee”) and Starwood Hotels & Resorts Worldwide, Inc. (hereinafter referred to as the “Company”) agree as follows: ONE: Termination of Employment. Employee acknowledges that his employment with the Company will end upon his resignation, which he hereby tenders as a result of a reduction in his role and which will be effective April 1, 2007 (hereinafter referred to as the “Termination Date”). After the Termination Date, Employee will perform no further duties, functions or services for the Company or any of its affiliates, nor will he be entitled to any further compensation and/or benefits except as described herein.",
"From and after the date hereof (the “Effective Date”) through the Termination Date (the “Transition Period”), Employee will remain employed with the Company and work with Steven J. Heyer and such other senior executives of the Company designated by Mr. Heyer, on an as needed basis to transition responsibilities and information. During the Transition Period, Employee shall continue to receive his annual salary of $468,000 semi monthly, less applicable deductions, paid out in regular payroll periods and the Company shall continue to pay for Employees health insurance coverage, minus Employee’s normal contributions and options and restricted stock granted under the Company’s Long Term Incentive Plans shall continue to vest according to their original vesting schedule.",
"Following the Termination Date, Employee shall be eligible for continued insurance coverage under COBRA. Notwithstanding the foregoing, during the Transition Period, Employee will not be eligible to receive any further equity grants (restricted stock or options) from the Company. Without limiting the effect of any other provision of this Agreement, if at any time prior to the Termination Date, Employee’s employment is terminated “for cause” or if Employee voluntarily resigns, all payments and other benefits under this Agreement shall cease immediately and Employee shall not be entitled to any further payment and/or benefits under this Agreement, including, but not limited to the severance payments and benefits described in Paragraph TWO below. If Employee is terminated for cause or voluntarily resigns his employment, the date that Employee’s employment is terminated for cause or he voluntarily resigns shall be deemed the Termination Date. For purposes of this Agreement, “cause,” shall mean (i) any material breach by Employee of any of the duties, responsibilities or obligations of his employment or any of the policies or practices of the Company; (ii) Employee’s willful failure or refusal to properly perform (as determined by Company in its reasonable discretion and judgment), or the habitual neglect of, the duties, responsibilities or obligations of his employment, or to properly perform or follow (as determined by Company in its reasonable discretion and judgment) any lawful order or direction by the Company; (iii) any acts or omissions by Employee that constitute (as determined by Company in its reasonable discretion and judgment) fraud, dishonesty, breach of duty of loyalty, breach of trust, gross negligence, civil or criminal illegality, or any other misconduct or behavior that could subject to civil or criminal liability or otherwise adversely and 1 -------------------------------------------------------------------------------- materially affect the business, interests or reputation of the Company or any of its affiliates.",
"For the purposes of the acts described in items (i) through (iii) of this paragraph, such determinations shall be made by the Company in its reasonable discretion and judgment. TWO: Benefits. Provided that (i) Employee executes this Agreement; (ii) his employment is not terminated for cause prior to April 1, 2007; (iii) he does not voluntarily resign prior to April 1, 2007, and (iv) that within twenty-one (21) days after the Termination Date, Employee shall have executed and delivered to the Company a General Release and Waiver (“Release”) in the form annexed hereto as Appendix B; and (v) Employee does not revoke either this Agreement or the Release, and in consideration for Employee’s agreements and covenants including the release of claims set forth in this Agreement and as full and complete and final satisfaction of any and all claims which Employee had, has or may have against the Company, the Company agrees that within 21 days after the Termination Date and subject to the conditions to payment set forth herein, it will (i) pay Employee an amount equal to 12 months of his base salary in a lump sum of $468,000, less applicable withholdings; (ii) pay Employee an additional amount in a lump sum equal to $122,850 (such amount equal to Employee’s target bonus for the 2006 performance year of $351,000 (representing 75% of Employee’s base salary of $468,000) less the $228,150 previously paid to Employee on March 1, 2007), less applicable withholdings; (iii) make COBRA premium payments on Employee’s behalf, minus Employee’s normal contributions, for a period of 12 months should Employee choose to continue coverage under the Company’s applicable plans after the Termination Date; and (iv) accelerate the vesting of 50% of Employee’s then unvested restricted stock and options (on a tranche by tranche basis) as of the Termination Date, as more fully set forth on Appendix A attached hereto.",
"In addition, Employee shall be entitled to receive a payout for accrued and unused vacation time as of the Termination Date in accordance with the Company’s policies. Subject to the terms herein, Employee will remain an active employee during the Transition Period. Notwithstanding the foregoing, during the Transition Period, Employee will not be eligible to participate and expressly and knowingly waives any right to participate in any employee benefit plans (except health and life insurance plans) within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, (“ERISA”) or any other plan, policy or arrangement of the Company, including, but not limited to, any plan, policy or arrangement relating to bonuses, profit sharing, compensation, pension, severance, deferred compensation, fringe benefits, insurance, welfare, post-retirement, stock purchases, disability, accidents, sick time, vacation pay, termination, unemployment, executive compensation, incentives, commissions or sales arrangements, change in control, and other plan, agreement, policy, or arrangement (whether written or unwritten), such as the Annual Incentive Plan; the Long Term Incentive Plan; and the Employee Stock Purchase Plan; nor will he be eligible to receive any incentives, bonuses, further option or stock grants under such plans.",
"Employee will not be entitled to any of the severance payments or benefits set forth in Paragraph TWO or any other consideration under this Agreement until at least seven (7) business days after the later of all of the following: (i) receipt by the Company of this Agreement signed by Employee; (ii) receipt by the Company on or about the Termination Date of the Release annexed 2 -------------------------------------------------------------------------------- hereto as Appendix B signed by Employee; (iii) expiration of the revocation period set forth in numbered Paragraph EIGHT, without Employee revoking this Agreement; and (iv) expiration of the revocation period set forth in the Release annexed hereto as Exhibit B signed by Employee, without Employee revoking such Release.",
"THREE: Mutual General Release. In exchange for the agreement to provide the severance pay and other benefits and arrangements provided for in this Agreement, Employee understands that he is waiving any and all claims Employee may have against the Company and its affiliates and subsidiaries and its and their officers, directors, employees, agents, shareholders, employee benefit programs, administrators, insurers, attorneys and successors and assigns (collectively “Releasees”), from any and all claims, actions, suits, damages, complaints and grievances the Employee, his attorneys, heirs, dependents, beneficiaries, executors, administrators, successors, and assigns, may have related to the Employee’s employment with the Company or the termination of that employment. This includes a release of any rights or claims the Employee may have under the Age Discrimination in Employment Act, which prohibits discrimination in employment based on age; Title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991, which prohibit discrimination in employment based on race, color, national origin, ancestry, religion or sex; the Pregnancy Discrimination Act, which prohibits discrimination based on pregnancy; the Equal Pay Act, which prohibits paying men and women unequal pay for equal work; the Civil Rights Acts of 1866 and 1871, as amended, which protect against certain discrimination and violations of individuals’ civil rights; the Americans with Disabilities Act, which prohibits discrimination on the basis of physical or mental disability; the Employee Retirement Income Security Act (ERISA), which regulates certain conduct and practices relating to employee benefit and health plans; the Family and Medical Leave Act, which provides time off to employees for certain family and medical events and prohibits discrimination relating to such leaves of absence; the Immigration Reform and Control Act, which prohibits discrimination based upon an individual’s national origin citizenship status and/or work authorization documents; the New York State Executive Law, the New York City Administrative Code, and the New York State Constitution; or any other federal, state or local laws or regulations prohibiting employment discrimination or regulating employment or termination of employment.",
"This also includes a release by the Employee of any claims for wrongful discharge and any other common law claims. This release applies to all claims through the date of execution of this Agreement and covers both claims that the Employee knows about and those he may not know about but excludes (i) any claim by Employee to enforce the terms of this Agreement; and (ii) any claim to enforce Employee’s indemnification rights; and (iii) any claims related to actions or omissions occurring after the execution of this Agreement. In consideration of Employee’s agreements hereunder, the Company, on its own behalf and on behalf of its current and former affiliates or related companies, subsidiaries, branches and divisions, and the successors and assigns of all of the foregoing (collectively, the “Company Releasor”) hereby releases Employee and Employee’s heirs, executors, administrators, successors and assigns from or in connection with any and all actions, claims or demands, known or unknown and of any nature whatsoever and which Company Releasor ever had, now has or hereafter can, shall or may have as of the date hereof relating to Employee’s employment with 3 -------------------------------------------------------------------------------- the Company, except that this Release shall not apply to (i) any obligation of Employee pursuant to this Agreement and the Non-Solicitation, Confidentiality and Intellectual Property Agreement dated March 24, 2005 (the “Confidentiality Agreement”); (ii) any act by Employee during his employment that would constitute fraud or embezzlement; or (iii) any actions, claims or demands related to actions or omissions occurring after the date hereof.",
"FOUR: Acknowledgment of Full Payment. Employee acknowledges that the payments and arrangements specified in Paragraph TWO above represent sufficient consideration for Employee’s release of claims and the other covenants contained in this Agreement. Employee expressly acknowledges that the severance pay provided for in this Agreement exceeds, supersedes and extinguishes any amount, if any, to which Employee may be entitled under any employment agreement, verbal or written, as well as any employment or personnel policies, procedures or handbooks including but not limited to severance plans, policies or precedent utilized by the Company or any other legal obligation which the Company may have to Employee. Employee further acknowledges that in the absence of this Agreement, Employee would not be entitled to, among other things, all of the payments and benefits specified in paragraph TWO above. Other than Employee’s accrued but unused vacation pay for which Employee will be compensated and Employee’s 401k plan benefits, Employee also acknowledges that the Company has paid all sums owed to him as a result of his employment with the Company and/or the termination of that employment and that, other than as provided in this Agreement, Employee is not entitled to, among other things, any further pay, benefits or severance.",
"Employee and the Company acknowledge and agree that to the extent that Employee currently holds stock options and restricted stock, that this information is accurately set forth on Appendix A hereto, Employee has no other rights that relate to the securities of the Company or any of its affiliates or subsidiaries and that other than as set forth herein such equity will expire in accordance with the applicable long-term incentive plan and/or stock option agreements and/or restricted stock agreements. Other than the fact that Employee’s employment was terminated on the Termination Date and other than as detailed expressly in Paragraph TWO herein, nothing in this Agreement shall be construed to alter, amend or modify the terms and conditions governing any restricted stock, stock options or similar rights, and any rights pertaining thereto, granted to Employee prior to the Termination Date. FIVE: Termination of All Existing Agreements. Except as otherwise expressly provided herein and other than agreements relating to confidentiality, non-solicitation, non-disclosure and non-competition, including, without limitation, the Confidentiality Agreement, all rights and obligations of the Company and Employee under any employment agreement Employee may have had with the Company, and any other agreement, arrangement, obligation or understanding between the Company and the Employee are hereby cancelled and terminated as of the Termination Date without liability of any party thereunder.",
"4 -------------------------------------------------------------------------------- SIX: Non-Admission of Liability. The parties have entered into this Agreement to effect a mutually acceptable termination of Employee’s employment with the Company. Neither the Company nor the Employee believes nor admits that either or both of them have done anything wrong. SEVEN: Period for Review and Consideration of Agreement. Employee understands that he has been given a period of 21 calendar days to review and consider this Agreement. Employee further understands that he may take as much or as little of this 21-day period of time to consider this Agreement as he wishes, before signing this Agreement. EIGHT: Revocation Period and Payment of Benefits. This Agreement will not become effective or binding on the parties until seven (7) days after it is signed, during which time Employee may revoke this Agreement if he desires. Any revocation must be in writing and directed to Chief Administrative Officer and General Counsel, 1111 Westchester Avenue, White Plains, NY 10604.",
"NINE: Encouragement to Consult with Attorney. Employee is encouraged to consult with an attorney before signing this Agreement. Employee understands that whether to do so is his decision. TEN: Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties, as well as their heirs, administrators, representatives, agents, executors, successors and assigns. ELEVEN: Arbitration. Any controversy, dispute or claim arising out of or related to this Agreement or its enforceability shall be finally settled by final and binding arbitration conducted by a single arbitrator selected by the parties in accordance with the Employment Rules of the American Arbitration Association. TWELVE: Confidentiality. Employee represents and agrees that he will keep the terms and dollar amount contained in this Agreement confidential, and that he will not disclose any information concerning this Agreement to any third person, including, but not limited to any past or present employee of the Company, except as may be required by law. Nothing herein shall preclude Employee from disclosing the terms of this Agreement to his spouse or to his accountant, legal counsel, insurer or tax advisors; provided that his spouse and such accountant, legal counsel, insurer or tax advisors are advised of and agree to be bound by the provisions of this Paragraph.",
"Employee acknowledges that he 5 -------------------------------------------------------------------------------- will be responsible for any violation of the terms of this Paragraph TWELVE by any of those persons. The Company represents and agrees that it will keep the terms and dollar amount contained in this Agreement confidential, and that it will not disclose any information concerning this Agreement to any third person; provided that the Company may disclose the terms of this Agreement (i) to its directors, officers and employees who need to know such information in the course of their duties and (ii) as may be required under the applicable law, United States securities laws, the rules and regulations of the Securities and Exchange Commission or in a proceeding before a court, arbitrator or administrative agency, including a national securities exchange.",
"THIRTEEN: Confidential Information. As a senior executive officer of the Company, Employee acknowledges that he has had access to Confidential Information (as hereinafter defined) of the Company through the Termination Date. Without limiting Employee’s continuing legal obligations pursuant to the Confidentiality Agreement, in recognition of Employee’s legal obligations and the consideration set forth in this Agreement, Employee agrees not to disclose, communicate or divulge to, or use for the direct or indirect benefit of, any person (including Employee), firm, association or other entity (other than the Company or its affiliates) any Confidential Information. “Confidential Information” includes, but is not limited to, customer lists, customer financial information, vendor lists, joint venture lists, actual, contemplated and potential development projects, opportunities and partners, development strategies, brand marketing and other brand strategies, information relating to any current, past or prospective management agreement or joint venture, design plans and strategies, personnel information, labor and personnel strategies, databases, computer programs and software, frameworks, designs, models, blueprints, marketing programs and plans, sales, financial, design, training and technical information and plans, sales data and contacts, business methods, business policies, procedures, techniques, research or development projects or results, trade secrets (which includes the Company’s customer and prospective customer lists), pricing policies, financial records, or other financial, commercial, business or technical information relating to the Company or any of its subsidiaries.",
"Employee hereby represents and agrees that on or before the Termination Date: (i) Employee has returned or will return to the Company, and has not retained or will not retain originals or any copies of all documents, records or materials of any kind, whether written or electronically created or stored, which contain, relate to or refer to any Confidential Information (“Confidential Materials”); and (ii) Employee has not disclosed and will not disclose any Confidential Information or Confidential Materials to any person or entity without the express written authorization of an authorized officer of the Company.",
"In the event that Employee receives a subpoena or any other written or oral request for disclosure or release of any Confidential Information, Confidential Materials or any other information concerning the Company or its subsidiaries, or its or their current or former employees, officers, directors, shareholders or agents, Employee shall, within two (2) business days of the service or receipt of such subpoena or other request notify the Company in writing directed to Chief Administrative Officer and General Counsel, Starwood Hotels & Resorts Worldwide, Inc., 1111 Westchester Avenue, White Plains, New York 10604 and provide the Company with a copy of 6 -------------------------------------------------------------------------------- any subpoena or other written request, or disclose the nature of the request for information, if oral. FOURTEEN: Noninterference. During the period commencing on the Termination Date and ending on the first anniversary of the Termination Date, Employee solely with respect to matters of which he is aware on or before the Termination Date, shall not take or omit to take any action or actions which are intended to or actually cause or encourage any person or prospective entity with which the Company intends to enter into a business relationship or transaction (or any agent or affiliate thereof) to fail to enter into the contemplated business relationship or complete the contemplated transaction. Without limiting the generality of the foregoing, Employee agrees not to pursue on his behalf or on behalf of any other person or entity or otherwise interfere with the Company’s pursuit of any pending or contemplated deal, merger or acquisition of which he was aware on or before the Termination Date.",
"FIFTEEN: Non-Disparagement. Employee agrees not to engage in any act or say, publish or disseminate anything (either directly or by or through another person) that is intended, or may reasonably be expected, to harm the reputation, business or operations of the Company, its customers, its employees, officers, directors or shareholders prior to or after the Termination Date. The Company agrees that it will not make any statements that are intended, or would reasonably be expected, to disparage or defame Employee.",
"SIXTEEN: Future Cooperation. After the Termination Date, Employee will comply with reasonable requests from any Releasee for assistance and/or information in connection with any matters and/or issues relating to or encompassed within the duties and responsibilities of Employee’s employment, including without limitation, consulting with any of the employees and/or attorneys of any Releasee with respect to, and/or appearing as a witness in, any dispute, controversy, action or proceeding of any kind. Employee agrees to appear as a witness in any proceeding of any kind and to make himself available in advance for reasonable preparation upon the request of the Company with reasonable advance notification without the need for the Company to issue a subpoena. In connection with any of Employee’s cooperation efforts mandated by this Paragraph SIXTEEN, Employee shall be entitled to receive an agreed hourly or per diem amount (or reimbursement of lost wages as the case may be) and reimbursement of reasonable travel and other out of pocket expenses provided that those expenses are submitted pursuant to and are in conformance with the then applicable Company policy relating to expense reimbursement. SEVENTEEN: Non-Solicitation Without waiving or limiting the obligations under the Confidentiality Agreement, during the 24-month period commencing on the Termination Date, Employee agrees that he will not, without the prior written consent of the Company, directly or indirectly, solicit or attempt to solicit for 7 -------------------------------------------------------------------------------- employment with or on behalf of any corporation, partnership, joint venture or other business entity, any person who is, or at any time during the six-month period preceding the solicitation of such person was, a management-level employee of the Company (including, without limitation, for this purpose any employee at director level or above and any General Manager of any hotel owned (in whole or in part) or managed by the Company).",
"In the event that the terms of this Paragraph SEVENTEEN conflict with the non-solicitation obligations under the Confidentiality Agreement, the terms of this Paragraph shall govern. The non-solicitation provisions in this Paragraph do not prohibit (i) advertising directed at the general public and not targeted at Company employees; or (ii) Employee from serving as a reference upon request. EIGHTEEN: Injunctive Relief Employee acknowledges and agrees that Paragraphs THIRTEEN, FOURTEEN, FIFTEEN and SEVENTEEN hereof relate to special, unique and extraordinary matters and that a violation of any of the terms of such Paragraphs will cause the Company irreparable injury for which adequate remedies are not available at law. Therefore, Employee agrees that the Company shall be entitled to an injunction, restraining order or such other equitable relief (without the requirement to post bond) in a court of law restraining Employee from committing any violation of the covenants and obligations contained in Paragraphs THIRTEEN, FOURTEEN, FIFTEEN and SEVENTEEN. These remedies are cumulative and are in addition to any other rights and remedies the Company may have at law or in equity. NINETEEN: Return of Company Property.",
"Employee represents that within 1 week after the Termination Date, he will return to the Company all Company property in his possession or over which he has retained control such as printers, scanners and accessories, disks, keys, cell phones, credit cards, access cards, Company records, documents and files and all copies and recordings thereof. To the extent Employee subsequently discovers Company property in his possession or within his control, he shall immediately return such property and all copies, recordings or duplicates thereof to the Company. TWENTY: Severability. If any portion of this Agreement is declared unlawful or unenforceable, the remaining parts will remain enforceable. TWENTY-ONE: Public Announcement Each of Employee and the Company is required to request and receive approval from the other party the content of any voluntary statements, whether oral or written, to be made by Employee or the Company, as the case may be, to any third party or parties regarding Employee’s separation from employment with the Company, including, without limitation, any press release or other statements to the press, except that this Paragraph TWENTY-ONE shall not apply to any statements required to be made by reason of applicable law, the United States securities laws, the rules and regulations of the Securities and Exchange Commission or in a proceeding before a court, 8 -------------------------------------------------------------------------------- arbitrator or administrative agency, including a national securities exchange, applicable to the relevant party. Each of Employee and the Company hereby covenants and agrees not to make any public statements (either directly or by or through another person) to any third party, including, without limitation, to any representative of any news organization, which are inconsistent in any material respect with the aforementioned agreed upon statements to the public.",
"TWENTY-TWO: Entire Agreement. This Agreement, including Appendix A and Appendix B, is the entire agreement between Employee and the Company regarding the subjects addressed in this document and this Agreement supersedes any other agreements between the parties, other than agreements relating to confidentiality, non-disclosure, non-solicitation and non-competition, including without limitation, the Confidentiality Agreement. The Company has made no promises to Employee other than those in this Agreement. EMPLOYEE ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT, UNDERSTANDS IT, HAS TAKEN SUFFICIENT TIME TO CONSIDER IT AND IS VOLUNTARILY ENTERING INTO IT. EMPLOYEE UNDERSTANDS THAT THIS AGREEMENT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS AND A RESTRICTION ON RELEASE OF CONFIDENTIAL INFORMATION. JAVIER E. BENITO Signed: /s/ Javier E. Benito Dated: March 16, 2007 STARWOOD HOTELS & RESORTS WORLDWIDE, INC. By: /s/ Kenneth S. Siegel Name: Kenneth S. Siegel Title: Chief Administrative Officer and General Counsel Dated: March 16, 2007 9"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
In an action to recover damages for personal injuries, the defendant Dolores Curry appeals from an order of the Supreme Court, Kings County (Johnson, J.), dated April 22, 2004, which granted the separate motions of the plaintiff and the defendants Transit Facility Corporation and Jean W Jean-Paul for leave to enter a judgment against her upon her failure to appear and answer and for an assessment of damages. Ordered that the order is reversed, on the law, with costs, and the motions are denied. A party’s right to recover upon a defendant’s failure to appear or answer is governed by CPLR 3215 (see Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 572 [1978]), which requires that the plaintiff state a viable cause of action (see CPLR 3215 [f]; Fappiano v City of New York, 5 AD3d 627 [2004], lv denied 4 NY3d 702 [2004]; Green v Dolphy Constr. Co., 187 AD2d 635, 636 [1992]). In determining whether a party has a viable cause of action, the court may consider the pleadings in the action, and any other proof submitted by the plaintiff (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; Feffer v Malpeso, 210 AD2d 60 [1994]). The plaintiffs complaint, verified by her attorney, and her affidavit of merit, which incorporated conclusory statements alleging negligence based on information provided by her attorney and which failed to set forth the facts constituting the alleged negligence, were insufficient to support a default judgment pursuant to CPLR 3215 (f) (see Henriquez v Purins, 245 AD2d 337 [1997]; Zelnik v Bidermann Indus. U.S.A., 242 AD2d 227 [1997]; Feffer v Malpeso, supra). Moreover, in view of the fact that the appel*638lant’s car was stolen on the day of the accident, the other evidentiary proof submitted by the plaintiff failed to satisfy her burden of establishing the existence of a viable cause of action against the appellant (see Fappiano v City of New York, supra; Luna v Luna, 263 AD2d 470 [1999]; Green v Dolphy Constr. Co., supra; Silberstein v Presbyterian Hosp. in City of N.Y., 96 AD2d 1096 [1983]). Accordingly, the plaintiff’s motion for leave to enter a judgment against the appellant upon her failure to appear or answer and for an assessment of damages should have been denied. For the same reasons, the motion of the defendants Transit Facility Corporation and Jean W Jean-Paul, which relied exclusively upon “the reasons advanced by the plaintiff,” should have been denied. Krausman, J.P., Luciano, Mastro and Lifson, JJ., concur. | 01-12-2022 | [
"In an action to recover damages for personal injuries, the defendant Dolores Curry appeals from an order of the Supreme Court, Kings County (Johnson, J. ), dated April 22, 2004, which granted the separate motions of the plaintiff and the defendants Transit Facility Corporation and Jean W Jean-Paul for leave to enter a judgment against her upon her failure to appear and answer and for an assessment of damages. Ordered that the order is reversed, on the law, with costs, and the motions are denied. A party’s right to recover upon a defendant’s failure to appear or answer is governed by CPLR 3215 (see Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 572 [1978]), which requires that the plaintiff state a viable cause of action (see CPLR 3215 [f]; Fappiano v City of New York, 5 AD3d 627 [2004], lv denied 4 NY3d 702 [2004]; Green v Dolphy Constr.",
"Co., 187 AD2d 635, 636 [1992]). In determining whether a party has a viable cause of action, the court may consider the pleadings in the action, and any other proof submitted by the plaintiff (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; Feffer v Malpeso, 210 AD2d 60 [1994]). The plaintiffs complaint, verified by her attorney, and her affidavit of merit, which incorporated conclusory statements alleging negligence based on information provided by her attorney and which failed to set forth the facts constituting the alleged negligence, were insufficient to support a default judgment pursuant to CPLR 3215 (f) (see Henriquez v Purins, 245 AD2d 337 [1997]; Zelnik v Bidermann Indus. U.S.A., 242 AD2d 227 [1997]; Feffer v Malpeso, supra).",
"Moreover, in view of the fact that the appel*638lant’s car was stolen on the day of the accident, the other evidentiary proof submitted by the plaintiff failed to satisfy her burden of establishing the existence of a viable cause of action against the appellant (see Fappiano v City of New York, supra; Luna v Luna, 263 AD2d 470 [1999]; Green v Dolphy Constr. Co., supra; Silberstein v Presbyterian Hosp. in City of N.Y., 96 AD2d 1096 [1983]). Accordingly, the plaintiff’s motion for leave to enter a judgment against the appellant upon her failure to appear or answer and for an assessment of damages should have been denied. For the same reasons, the motion of the defendants Transit Facility Corporation and Jean W Jean-Paul, which relied exclusively upon “the reasons advanced by the plaintiff,” should have been denied. Krausman, J.P., Luciano, Mastro and Lifson, JJ., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5681562/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Chief Judge KOZINSKI, dissenting: The Supreme Court held in Apprendi that the government must submit to a jury, and prove beyond a reasonable doubt, any fact that exposes a criminal defendant to a higher range of penalties. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). But it also carved out an exception: A judge may find “the fact of a prior conviction.” Id.; see Almendarez-Torres v. United States, 523 U.S. 224, 239, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Courts have since debated and disagreed about the scope of the exception, and the Supreme Court hasn’t stepped in to draw a clear line for us. See Kessee v. Mendoza-Powers, 574 F.3d 675, 677 (9th Cir.2009) (“[T]he task of determining the precise contours of that exception has been left to the federal appellate courts.”); see also Shepard v. United States, 544 U.S. 13, 27, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (Thomas, J., concurring in part and concurring in the judgment). It’s hard to believe that the Sixth Amendment permits a sentencing judge to find disputed facts about what happened during a defendant’s prior offense. This is especially true when the defendant had no reason to challenge them at the time of the original conviction. Here, for example, there was no doubt Horvat suffered bodily injuries. Any cross-examination of the vie*1217tim about the extent of those injuries would have served no purpose, wasted the judge’s time and enabled the victim to describe her suffering one more time. The original court records thus provide incomplete information, and it’s impossible for a judge today to know that a jury would have found that Horvat’s injuries were “great.” Wilson may have also raised reasonable doubt as to whether he personally inflicted the injuries on a non-accomplice: Although he had little incentive to develop the record, there was at least some evidence that Horvat directly caused the accident by grabbing the wheel and that she encouraged Wilson to drive drunk. But, under AEDPA, Wilson must point to a Supreme Court holding clearly establishing that a judge may not find facts about the offense underlying his prior conviction. See Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Read literally, Apprendi itself seems to limit judges to finding the mere fact of the prior conviction. But courts have sometimes read the exception more expansively. See, e.g., United States v. Santiago, 268 F.3d 151, 156 (2d Cir.2001) (Sotomayor, J.) (“In short, we read Apprendi as leaving to the judge ... the task of finding not only the mere fact of previous convictions but other related issues as well. Judges frequently must make factual determinations for sentencing, so it is hardly anomalous to require that they also determine the ‘who, what, when, and where’ of a prior conviction.”). The Supreme Court hasn’t straightened all this out. The best we’ve been able to say is that the Court’s uncertain precedent “strongly suggests that the ... exception does not extend to any and all facts related to a prior conviction.” Butler v. Curry, 528 F.3d 624, 644 (9th Cir.2008) (emphasis added) (citing Shepard, 544 U.S. at 25-26, 125 S.Ct. 1254 (plurality opinion)). This means that, as of 2008, we concluded that there was no clearly established Supreme Court authority as to whether the exception permits sentencing judges to find the kinds of underlying facts at issue here. The law certainly wasn’t clearly established when Wilson’s sentence became final five years earlier. Nor was the state court’s rejection of Wilson’s claim an objectively unreasonable application of the ambiguous language in Apprendi itself. AEDPA deference can be a bitter pill to swallow. See, e.g., Brown v. Payton, 544 U.S. 133, 148, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005) (Breyer, J., concurring); see also Harrington v. Richter, — U;S.-, 131 S.Ct. 770, 780-81, 178 L.Ed.2d 624 (2011) (reversing for failure to defer to state court decision); Premo v. Moore, — U.S.-, 131 S.Ct. 733, 740, 178 L.Ed.2d 649 (2011) (same). In some habeas cases, we must reject what appear to be valid constitutional claims because petitioner’s rights have not yet been clearly established by the Supreme Court. This appears to me to be such a case. I hope I’m wrong. | 11-02-2022 | [
"Chief Judge KOZINSKI, dissenting: The Supreme Court held in Apprendi that the government must submit to a jury, and prove beyond a reasonable doubt, any fact that exposes a criminal defendant to a higher range of penalties. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). But it also carved out an exception: A judge may find “the fact of a prior conviction.” Id. ; see Almendarez-Torres v. United States, 523 U.S. 224, 239, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Courts have since debated and disagreed about the scope of the exception, and the Supreme Court hasn’t stepped in to draw a clear line for us. See Kessee v. Mendoza-Powers, 574 F.3d 675, 677 (9th Cir.2009) (“[T]he task of determining the precise contours of that exception has been left to the federal appellate courts.”); see also Shepard v. United States, 544 U.S. 13, 27, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (Thomas, J., concurring in part and concurring in the judgment). It’s hard to believe that the Sixth Amendment permits a sentencing judge to find disputed facts about what happened during a defendant’s prior offense.",
"This is especially true when the defendant had no reason to challenge them at the time of the original conviction. Here, for example, there was no doubt Horvat suffered bodily injuries. Any cross-examination of the vie*1217tim about the extent of those injuries would have served no purpose, wasted the judge’s time and enabled the victim to describe her suffering one more time. The original court records thus provide incomplete information, and it’s impossible for a judge today to know that a jury would have found that Horvat’s injuries were “great.” Wilson may have also raised reasonable doubt as to whether he personally inflicted the injuries on a non-accomplice: Although he had little incentive to develop the record, there was at least some evidence that Horvat directly caused the accident by grabbing the wheel and that she encouraged Wilson to drive drunk. But, under AEDPA, Wilson must point to a Supreme Court holding clearly establishing that a judge may not find facts about the offense underlying his prior conviction.",
"See Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Read literally, Apprendi itself seems to limit judges to finding the mere fact of the prior conviction. But courts have sometimes read the exception more expansively. See, e.g., United States v. Santiago, 268 F.3d 151, 156 (2d Cir.2001) (Sotomayor, J.) (“In short, we read Apprendi as leaving to the judge ... the task of finding not only the mere fact of previous convictions but other related issues as well. Judges frequently must make factual determinations for sentencing, so it is hardly anomalous to require that they also determine the ‘who, what, when, and where’ of a prior conviction.”). The Supreme Court hasn’t straightened all this out. The best we’ve been able to say is that the Court’s uncertain precedent “strongly suggests that the ... exception does not extend to any and all facts related to a prior conviction.” Butler v. Curry, 528 F.3d 624, 644 (9th Cir.2008) (emphasis added) (citing Shepard, 544 U.S. at 25-26, 125 S.Ct. 1254 (plurality opinion)). This means that, as of 2008, we concluded that there was no clearly established Supreme Court authority as to whether the exception permits sentencing judges to find the kinds of underlying facts at issue here.",
"The law certainly wasn’t clearly established when Wilson’s sentence became final five years earlier. Nor was the state court’s rejection of Wilson’s claim an objectively unreasonable application of the ambiguous language in Apprendi itself. AEDPA deference can be a bitter pill to swallow. See, e.g., Brown v. Payton, 544 U.S. 133, 148, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005) (Breyer, J., concurring); see also Harrington v. Richter, — U;S.-, 131 S.Ct. 770, 780-81, 178 L.Ed.2d 624 (2011) (reversing for failure to defer to state court decision); Premo v. Moore, — U.S.-, 131 S.Ct. 733, 740, 178 L.Ed.2d 649 (2011) (same). In some habeas cases, we must reject what appear to be valid constitutional claims because petitioner’s rights have not yet been clearly established by the Supreme Court.",
"This appears to me to be such a case. I hope I’m wrong."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8411932/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
HUNTER, Judge. Employee-appellant Janet W. Kelley sought Workmen’s Compensation benefits from her employer, Sohio Chemical Company, for injuries she suffered at her place of employment during working hours when she was the victim of an unexplained assault by an unknown person. The referee, the Industrial Commission and the circuit court have denied her relief, hence this appeal. The salient facts are undisputed. Miss Kelley, single and twenty-one years’ old, was employed as a stenographer by Sohio Chemical Company and performed general office work in its three-employee office lo*147cated on the 24th floor of the Kansas City Power & Light Building in downtown Kansas City. On January 22, 1962, at 11:45 a.m. she went out to lunch, and returned at 12:30 p.m. All the other offices on the floor were empty and closed at noon as their employees were at lunch. Miss Kelley’s office was the only one that always had someone present. Upon Miss Kelley’s return from lunch Mr. Terrell, a fellow employee, left for lunch leaving Miss Kelley alone. The third employee, Mr. Goodnight, was out of town that day. Miss Kelley went to the stock room for something and heard the bell on the elevator ring. The stock room is an inner room which can be entered only through the office. She describes what next occurred: “We have an automatic elevator and when it stops on our floor the bell rings, and I heard somebody walk into the office and walk up behind me and when I didn’t hear anybody say anything I started to turn around and then all I remember was somebody hitting me and that was all until I regained consciousness.” When Mr. Terrell returned from lunch at 1:10 p.m. he found Miss Kelley stretched out on the floor, face down and unconscious. She had a lump on the back of her head from something having struck it hard. There were black and blue marks on her right arm which could have been caused by finger prints. There were no heavy objects lying near her. Nothing in the office had been disturbed, tampered with or taken. Mr. Terrell summoned others, and Miss Kelley was taken to the hospital where she remained for a number of days. In view of the disposition of the coverage question which we believe to be required by the above facts, we refrain from any further mention of her injuries. There was evidence to the effect that the Power & Light Building in question is the usual type of well-kept, downtown office building. It is a well managed building with a man in the lobby supervising the operation of the elevators. No one had noticed any strangers loitering around or in the building. On review of questions of fact decided by the Industrial Commission, our inquiry, as that of the circuit court, is limited to whether or not the findings of the Commission are supported by competent and substantial evidence upon the whole record. This does not mean that the reviewing court may substitute its own judgment on the evidence for that of the administrative tribunal. But it does authorize it to decide whether such tribunal could reasonably have made its findings, and reached its result, upon consideration of all the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence. Additionally, decisions of the Commission which are clearly the interpretation or application of the law, as distinguished from a determination of facts, are not binding on the reviewing court and fall within the court’s province of review and correction. Vaseleou v. St. Louis Realty & Securities Co., 344 Mo. 1121, 130 S.W.2d 538, Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61. Our Workmen’s Compensation Law requires an accident to be one “arising out of and in the course of” the employment in order to be compensable. Section 287.120 RSMo.1959, V.A.M.S. These are separate tests and each must be satisfied. Every case must be determined upon its own facts. It is tacitly conceded in the present case that the instant injury arose “in the course of” the employment. But did it arise “out of” the employment? The Industrial Commission ruled it did not. According to some of the text writers, wilful assaults are divided into three categories ; namely, (1) those having some inherent connection with the employment, (2) those that are inherently private, and (3) those that are neither, i. e. are “neutral”. The latter classification includes completely unexplained assaults. And, ac*148cording to Larson, Workmen’s Compensation, section 11.31, page 146, “The majority of jurisdictions are inclined to regard the neutral category as noncompensable, for want of affirmative proof of distinctive employment risk as the cause of harm * * To the same effect, see 58 Am. Jur., Workmen’s Compensation, section 265, p. 765; 99 C.J.S. Workmen’s Compensation § 227, page 765. Our supreme court has definitely placed this state in the majority grouping. In Toole v. Bechtel Corporation, Mo., 291 S.W.2d 874, deceased was assaulted (shot several times) while in the company tool room, of which he was in charge, during the lunch hour. Before he died deceased refused to relate the circumstances of the shooting and. the identity of the person who shot him. Other evidence indicated the possibility that it .was a fellow employee.. It was . clear that 'the shooting had no connection with deceased’s work or duties, that the assail.ant was not trying to steal anything and that deceased was not trying to protect -the property... There was no evidence of a isfniggle, the man just went “beserk”, walked up.and shot him and deceased had had no trouble, or argument with him and.no business with him on the job. On these facts the supreme court ruled that although the'ffnjury arose in the course of the employment it' did riot arise out of the employment saying, loc. cit. 880, “An injury arises' 'out of’ the employment when there is a direct causal connection between the injury and the employment; and, even though the precise injury need not have been anticipated, it must have been a rational consequence of some hazard connected with the employment.” In Long v. Schultz Shoe Co., Mo.App., 257 S.W.2d 211, approvingly quoted in the Toole case, supra, 291 S.W.2d loc.cit. 881, the claimant was shot while performing regular work, by another employee who was firing at a third employee in a dispute over a nickel found on the floor. It was held that this injury did not arise “out of” the employment. The court there said, “ * * where the employee is assaulted or shot, not because he is an employee or because of his employment, but for reasons entirely personal and wholly disconnected from his employment, the injury in that event does not arise out of the employment so as to justify the making of an award of compensation. * * * It is true that the employment was responsible for the fact that all three women were together on the premises and subject to the employer’s general right of control, but this circumstance is insufficient to show anything more than that the injury was received in the course of the employment.” ■ Also cited with approval in the Toole case is Lardge v. Concrete Products Mfg. Co., Mo., 251 S.W.2d 49, where the Supreme Court held that an injury and death resulting from án assault by a fellow employee upon the deceased while he was working, .did not arise “out of” the'employment when the cause of the assault was a personal .quarrel, and that the assault must be directly related to the. work to 'permit an award of compensation. In Scherr v. Siding & Roofing Sales Company, Mo.App., 305 S.W.2d 62, a floor covering salesman was struck in the head by a disk from a nearby game table as he was discussing a potential sale with the tavern owner. Declaring that there must be a causal connection before it can be said that an accident arises out of the employment and that the employment must in some way be responsible for the injury, and after noting that the employment did not expose the employee to an unusual risk or injury from such agency which is not shared by the general public, the St. Louis Court of Appeals, stated, loc. cit. 65, “We are committed to the rule that before an injury can be said to arise out of the employment ‘it must have been a rational consequence of some hazard connected with the employment’. * * * If the employee relies upon the theory that the accident occurred by reason of his exposure to an unusual risk there must be proof that the risk was unusual.” *149In Ries v. De Bord Plumbing Co., Mo.App., 186 S.W.2d 488, an employee (plumber) while walking through a hallway of an apartment building where he was working was assaulted by an unknown person for apparently no reason. In denying recovery for lack of a causal connection between the injury and the employment the St. Louis Court of Appeals declared, loc. cit. 489, “In the case at bar respondent was assaulted by an unknown person for apparently no reason whatsoever. The assailant was not •connected with the employer’s business in any way, nor was he under the employer’s control. He may have been an escaped maniac, or he may have mistaken respondent for someone against whom he had a grudge. In either event, no recovery could be had, because it is not shown that an employee working in an apartment house is subject to a greater- risk of injury from such persons than are the public generally. There is no causál-éfe'nneotion whatever between the injury iil^the case at bar and the employment. In our opinion, there is not sufficient competent evidence in this record to warrant the finding that respond•ent’s accident ' arose out of his employment.” In Gregory v. Lewis Sales Company, Mo.App., 348 S.W.2d 743 in speaking of assault cases, the Springfield Court of Appeals noted, loc. cit. 746: “And, in a wide variety of factual situations, our courts have reminded that ‘ “it is necessary to bear in mind the fundamental difference between those causative agencies which are part and parcel of the master’s business and under his control, and those which lie outside that business and beyond his control. In the former class of cases, it is quite reasonable to hold the master liable, no matter how unusual or unpreventable the accident may be. But, in the latter class of cases it seems unjust to hold the employer liable, unless the employment in some way exposes the employee to an unusual risk or injury from .such agency which is not shared by the gen-■cral public." ’ ” In the instant case the evidence before the Industrial Commission supports a finding of an assault unconnected with the employment, and, thus, one which did not arise “out of” the employment as required by the statute in order for it to have been compensable. Section 287.120 RSMo 1959, V.A.M.S. Certainly the commission on this evidence was entitled to conclude that appellant had failed to persuade that her work exposed her to extra hazards above and beyond those of the public generally. See, Williams v. Great Atlantic and Pacific Tea Co., Mo.App., 332 S.W.2d 296 (5). Thus, upon our review of the record, we have concluded that the award of the Industrial Commission was supported by competent and substantial testimony and was not contrary to the overwhelming weight of the evidence. . The judgment of the circuit court.affirming the award of the Industrial Commission is affirmed. All concur. | 10-01-2021 | [
"HUNTER, Judge. Employee-appellant Janet W. Kelley sought Workmen’s Compensation benefits from her employer, Sohio Chemical Company, for injuries she suffered at her place of employment during working hours when she was the victim of an unexplained assault by an unknown person. The referee, the Industrial Commission and the circuit court have denied her relief, hence this appeal. The salient facts are undisputed. Miss Kelley, single and twenty-one years’ old, was employed as a stenographer by Sohio Chemical Company and performed general office work in its three-employee office lo*147cated on the 24th floor of the Kansas City Power & Light Building in downtown Kansas City. On January 22, 1962, at 11:45 a.m. she went out to lunch, and returned at 12:30 p.m. All the other offices on the floor were empty and closed at noon as their employees were at lunch.",
"Miss Kelley’s office was the only one that always had someone present. Upon Miss Kelley’s return from lunch Mr. Terrell, a fellow employee, left for lunch leaving Miss Kelley alone. The third employee, Mr. Goodnight, was out of town that day. Miss Kelley went to the stock room for something and heard the bell on the elevator ring. The stock room is an inner room which can be entered only through the office. She describes what next occurred: “We have an automatic elevator and when it stops on our floor the bell rings, and I heard somebody walk into the office and walk up behind me and when I didn’t hear anybody say anything I started to turn around and then all I remember was somebody hitting me and that was all until I regained consciousness.” When Mr. Terrell returned from lunch at 1:10 p.m. he found Miss Kelley stretched out on the floor, face down and unconscious. She had a lump on the back of her head from something having struck it hard. There were black and blue marks on her right arm which could have been caused by finger prints.",
"There were no heavy objects lying near her. Nothing in the office had been disturbed, tampered with or taken. Mr. Terrell summoned others, and Miss Kelley was taken to the hospital where she remained for a number of days. In view of the disposition of the coverage question which we believe to be required by the above facts, we refrain from any further mention of her injuries. There was evidence to the effect that the Power & Light Building in question is the usual type of well-kept, downtown office building. It is a well managed building with a man in the lobby supervising the operation of the elevators. No one had noticed any strangers loitering around or in the building. On review of questions of fact decided by the Industrial Commission, our inquiry, as that of the circuit court, is limited to whether or not the findings of the Commission are supported by competent and substantial evidence upon the whole record. This does not mean that the reviewing court may substitute its own judgment on the evidence for that of the administrative tribunal. But it does authorize it to decide whether such tribunal could reasonably have made its findings, and reached its result, upon consideration of all the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence. Additionally, decisions of the Commission which are clearly the interpretation or application of the law, as distinguished from a determination of facts, are not binding on the reviewing court and fall within the court’s province of review and correction.",
"Vaseleou v. St. Louis Realty & Securities Co., 344 Mo. 1121, 130 S.W.2d 538, Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61. Our Workmen’s Compensation Law requires an accident to be one “arising out of and in the course of” the employment in order to be compensable. Section 287.120 RSMo.1959, V.A.M.S. These are separate tests and each must be satisfied. Every case must be determined upon its own facts. It is tacitly conceded in the present case that the instant injury arose “in the course of” the employment. But did it arise “out of” the employment? The Industrial Commission ruled it did not. According to some of the text writers, wilful assaults are divided into three categories ; namely, (1) those having some inherent connection with the employment, (2) those that are inherently private, and (3) those that are neither, i. e. are “neutral”. The latter classification includes completely unexplained assaults.",
"And, ac*148cording to Larson, Workmen’s Compensation, section 11.31, page 146, “The majority of jurisdictions are inclined to regard the neutral category as noncompensable, for want of affirmative proof of distinctive employment risk as the cause of harm * * To the same effect, see 58 Am. Jur., Workmen’s Compensation, section 265, p. 765; 99 C.J.S. Workmen’s Compensation § 227, page 765. Our supreme court has definitely placed this state in the majority grouping. In Toole v. Bechtel Corporation, Mo., 291 S.W.2d 874, deceased was assaulted (shot several times) while in the company tool room, of which he was in charge, during the lunch hour.",
"Before he died deceased refused to relate the circumstances of the shooting and. the identity of the person who shot him. Other evidence indicated the possibility that it .was a fellow employee.. It was . clear that 'the shooting had no connection with deceased’s work or duties, that the assail.ant was not trying to steal anything and that deceased was not trying to protect -the property... There was no evidence of a isfniggle, the man just went “beserk”, walked up.and shot him and deceased had had no trouble, or argument with him and.no business with him on the job.",
"On these facts the supreme court ruled that although the'ffnjury arose in the course of the employment it' did riot arise out of the employment saying, loc. cit. 880, “An injury arises' 'out of’ the employment when there is a direct causal connection between the injury and the employment; and, even though the precise injury need not have been anticipated, it must have been a rational consequence of some hazard connected with the employment.” In Long v. Schultz Shoe Co., Mo.App., 257 S.W.2d 211, approvingly quoted in the Toole case, supra, 291 S.W.2d loc.cit. 881, the claimant was shot while performing regular work, by another employee who was firing at a third employee in a dispute over a nickel found on the floor.",
"It was held that this injury did not arise “out of” the employment. The court there said, “ * * where the employee is assaulted or shot, not because he is an employee or because of his employment, but for reasons entirely personal and wholly disconnected from his employment, the injury in that event does not arise out of the employment so as to justify the making of an award of compensation. * * * It is true that the employment was responsible for the fact that all three women were together on the premises and subject to the employer’s general right of control, but this circumstance is insufficient to show anything more than that the injury was received in the course of the employment.” ■ Also cited with approval in the Toole case is Lardge v. Concrete Products Mfg.",
"Co., Mo., 251 S.W.2d 49, where the Supreme Court held that an injury and death resulting from án assault by a fellow employee upon the deceased while he was working, .did not arise “out of” the'employment when the cause of the assault was a personal .quarrel, and that the assault must be directly related to the. work to 'permit an award of compensation. In Scherr v. Siding & Roofing Sales Company, Mo.App., 305 S.W.2d 62, a floor covering salesman was struck in the head by a disk from a nearby game table as he was discussing a potential sale with the tavern owner. Declaring that there must be a causal connection before it can be said that an accident arises out of the employment and that the employment must in some way be responsible for the injury, and after noting that the employment did not expose the employee to an unusual risk or injury from such agency which is not shared by the general public, the St. Louis Court of Appeals, stated, loc.",
"cit. 65, “We are committed to the rule that before an injury can be said to arise out of the employment ‘it must have been a rational consequence of some hazard connected with the employment’. * * * If the employee relies upon the theory that the accident occurred by reason of his exposure to an unusual risk there must be proof that the risk was unusual.” *149In Ries v. De Bord Plumbing Co., Mo.App., 186 S.W.2d 488, an employee (plumber) while walking through a hallway of an apartment building where he was working was assaulted by an unknown person for apparently no reason. In denying recovery for lack of a causal connection between the injury and the employment the St. Louis Court of Appeals declared, loc.",
"cit. 489, “In the case at bar respondent was assaulted by an unknown person for apparently no reason whatsoever. The assailant was not •connected with the employer’s business in any way, nor was he under the employer’s control. He may have been an escaped maniac, or he may have mistaken respondent for someone against whom he had a grudge. In either event, no recovery could be had, because it is not shown that an employee working in an apartment house is subject to a greater- risk of injury from such persons than are the public generally. There is no causál-éfe'nneotion whatever between the injury iil^the case at bar and the employment. In our opinion, there is not sufficient competent evidence in this record to warrant the finding that respond•ent’s accident ' arose out of his employment.” In Gregory v. Lewis Sales Company, Mo.App., 348 S.W.2d 743 in speaking of assault cases, the Springfield Court of Appeals noted, loc.",
"cit. 746: “And, in a wide variety of factual situations, our courts have reminded that ‘ “it is necessary to bear in mind the fundamental difference between those causative agencies which are part and parcel of the master’s business and under his control, and those which lie outside that business and beyond his control. In the former class of cases, it is quite reasonable to hold the master liable, no matter how unusual or unpreventable the accident may be. But, in the latter class of cases it seems unjust to hold the employer liable, unless the employment in some way exposes the employee to an unusual risk or injury from .such agency which is not shared by the gen-■cral public.\" ’ ” In the instant case the evidence before the Industrial Commission supports a finding of an assault unconnected with the employment, and, thus, one which did not arise “out of” the employment as required by the statute in order for it to have been compensable.",
"Section 287.120 RSMo 1959, V.A.M.S. Certainly the commission on this evidence was entitled to conclude that appellant had failed to persuade that her work exposed her to extra hazards above and beyond those of the public generally. See, Williams v. Great Atlantic and Pacific Tea Co., Mo.App., 332 S.W.2d 296 (5). Thus, upon our review of the record, we have concluded that the award of the Industrial Commission was supported by competent and substantial testimony and was not contrary to the overwhelming weight of the evidence. . The judgment of the circuit court.affirming the award of the Industrial Commission is affirmed. All concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5028713/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Court of Appeals of the State of Georgia
ATLANTA,____________________ August 20, 2019
The Court of Appeals hereby passes the following order:
A20A0005, A20I0004. QUINCY JOHN DIBENARDO v. THE STATE (two cases).
Quincy John Dibenardo filed an application for interlocutory appeal in the Supreme Court, which was granted, and an appeal was filed. On June 3, 2019, the Supreme Court entered an order dismissing the direct appeal, vacating its grant of the interlocutory application, and transferring the application to the Court of Appeals. The case was initially docketed as Case Number A19I0270, which was granted on July 11, 2019. Thereafter, the case was improperly docketed as a direct appeal, Case Number A20A0005, and a second interlocutory application, Case Number A20I0004. Because the latter cases were docketed in error, Case Numbers A20A0005 and A20I0004 are hereby DISMISSED.1
Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 08/20/2019 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.
, Clerk.
1 The dismissal of Case Numbers A20A0005 and A20I0004 has no bearing on our order granting Case Number A19I0270. | 08-21-2019 | [
"Court of Appeals of the State of Georgia ATLANTA,____________________ August 20, 2019 The Court of Appeals hereby passes the following order: A20A0005, A20I0004. QUINCY JOHN DIBENARDO v. THE STATE (two cases). Quincy John Dibenardo filed an application for interlocutory appeal in the Supreme Court, which was granted, and an appeal was filed. On June 3, 2019, the Supreme Court entered an order dismissing the direct appeal, vacating its grant of the interlocutory application, and transferring the application to the Court of Appeals. The case was initially docketed as Case Number A19I0270, which was granted on July 11, 2019. Thereafter, the case was improperly docketed as a direct appeal, Case Number A20A0005, and a second interlocutory application, Case Number A20I0004. Because the latter cases were docketed in error, Case Numbers A20A0005 and A20I0004 are hereby DISMISSED.1 Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 08/20/2019 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk. 1 The dismissal of Case Numbers A20A0005 and A20I0004 has no bearing on our order granting Case Number A19I0270."
]
| https://www.courtlistener.com/api/rest/v3/opinions/4431444/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS EASTERN DIVISION
ALAN DOERING, PLAINTIFF ADC #106115
v. 2:19-cv-00045-JM-JJV
WENDY KELLEY, Director, Arkansas Department of Correction; et al. DEFENDANTS
ORDER
The Court has reviewed the Partial Recommendation submitted by United States
Magistrate Judge Joe J. Volpe and the filed objections. After carefully considering these
documents and making a de novo review of the record, the Partial Recommendation is approved
and adopted in its entirety as this Court’s findings in all respects.
IT IS THEREFORE ORDERED:
1. Plaintiff’s Motion for Class Certification (Doc. No. 51) is DENIED.
2. It is certified, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal
from this Order would not be taken in good faith.
Dated this 20th day of August 2019.
________________________________ UNITED STATES DISTRICT JUDGE | 2019-08-20 | [
"UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS EASTERN DIVISION ALAN DOERING, PLAINTIFF ADC #106115 v. 2:19-cv-00045-JM-JJV WENDY KELLEY, Director, Arkansas Department of Correction; et al. DEFENDANTS ORDER The Court has reviewed the Partial Recommendation submitted by United States Magistrate Judge Joe J. Volpe and the filed objections. After carefully considering these documents and making a de novo review of the record, the Partial Recommendation is approved and adopted in its entirety as this Court’s findings in all respects. IT IS THEREFORE ORDERED: 1. Plaintiff’s Motion for Class Certification (Doc. No. 51) is DENIED. 2. It is certified, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from this Order would not be taken in good faith.",
"Dated this 20th day of August 2019. ________________________________ UNITED STATES DISTRICT JUDGE"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/103449829/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Filed 4/3/14 In re M.V. CA2/3 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 THREE
In re M.V et al., Persons Coming Under B250522 the Juvenile Court Law. _____________________________________ (Los Angeles County LOS ANGELES COUNTY DEPARTMENT Super. Ct. No. CK76752) OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MICHELLE A.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Jacqueline Lewis, Juvenile Court Referee. Dismissed. Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the County Counsel, John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent.
_________________________ Michelle A. (mother) appeals from an order of July 5, 2013 denying, without a hearing, her June 18, 2013 Welfare and Institutions Code section 388 petition1 for return of M.V., D.V., R.V., A.V., and M.A.V. or unmonitored weekend overnight visits.2 She contends the order was an abuse of discretion in that the petition made a prima facie showing requiring a hearing on the merits of the petition. She asks this court to reverse the order and remand the case for an evidentiary hearing on the section 388 petition. Subsequently, on October 3, 2013, mother filed another section 388 petition, requesting the same relief that she requested in her June 18 petition. On October 10, 2013, the dependency court ordered a contested evidentiary hearing to be held on the October 3 petition.3 These subsequent events have rendered the issue moot. Accordingly, we dismiss the appeal.4 “ ‘[A]n action that originally was based on a justifiable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events. A reversal in such a case would be without practical effect, and the appeal will therefore be dismissed.’ (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 642, p. 669.)” (In re Dani R. (2001) 89 Cal. App. 4th 402, 404.) (Accord, In re Esperanza C. (2008) 165 Cal. App. 4th 1042, 1054 [“An appeal
1 All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated. 2 Under section 388, the dependency court should modify an order if circumstances have changed such that the modification would be in the child’s best interest. (In re Kimberly F. (1997) 56 Cal. App. 4th 519, 526 & fn. 5.) 3 We have taken judicial notice of the dependency court’s minute orders of October 10, 2013 and January 9, 2014, the section 388 petition mother filed on October 3, 2013, and letter from the dependency court to mother dated October 21, 2013. (Evid. Code, § 452, subd. (d).) 4 We provided the parties an opportunity to address whether mother’s contention concerning the June 18 petition is now moot, based on the minute orders of October 10, 2013 and January 9, 2014, mother’s October 3, 2013 section 388 petition, and the letter from the dependency court to mother dated October 21, 2013. 2 becomes moot when, through no fault of the respondent, the occurrence of an event renders it impossible for the appellate court to grant the appellant effective relief”]; (Carson Citizens for Reform v. Kawagoe (2009) 178 Cal. App. 4th 357, 364 [“ ‘A case is moot when any ruling by this court can have no practical impact or provide the parties effectual relief. [Citation.]’ ”].) Reversal of an order does not return the matter to the same facts and circumstances as existed when the order was made. (In re Arturo A. (1992) 8 Cal. App. 4th 229, 244.) “This is because the focus of the hearing always must be upon the best interests of the child. The new hearing would entail not only the facts and evidence brought forth at the original hearing, but of necessity would require evidence as to the current status of the child.” (Ibid.) The issue mother raises concerning whether the court abused its discretion in denying the June 18 petition without a hearing is now moot. The court granted mother a contested hearing on the October 3 petition, in which she requests the same relief as she requested in the June 18 petition.5 Reversal of the July 5, 2013 order, and remand for a hearing on the June 18 petition, would be of no practical effect, because a hearing on the June 18 petition would require evidence of current facts concerning changed circumstances and the children’s best interest, just as will be required in the hearing the dependency court ordered on the October 3 petition. Accordingly, the appeal must be dismissed, as there is no effective relief that can be given.
5 Whether, after the dependency court holds a contested hearing on the October 3 petition, the court grants the relief requested in the petition, is irrelevant to the issue on appeal. The sole issue on appeal concerns denial of a hearing on the petition, not denial of the relief requested in the petition. 3 DISPOSITION The appeal is dismissed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
We concur:
CROSKEY, J.
KITCHING, J.
4 | 04-03-2014 | [
"Filed 4/3/14 In re M.V. CA2/3 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 THREE In re M.V et al., Persons Coming Under B250522 the Juvenile Court Law. _____________________________________ (Los Angeles County LOS ANGELES COUNTY DEPARTMENT Super. Ct. No. CK76752) OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MICHELLE A., Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Jacqueline Lewis, Juvenile Court Referee. Dismissed. Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the County Counsel, John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent. _________________________ Michelle A.",
"(mother) appeals from an order of July 5, 2013 denying, without a hearing, her June 18, 2013 Welfare and Institutions Code section 388 petition1 for return of M.V., D.V., R.V., A.V., and M.A.V. or unmonitored weekend overnight visits.2 She contends the order was an abuse of discretion in that the petition made a prima facie showing requiring a hearing on the merits of the petition. She asks this court to reverse the order and remand the case for an evidentiary hearing on the section 388 petition. Subsequently, on October 3, 2013, mother filed another section 388 petition, requesting the same relief that she requested in her June 18 petition.",
"On October 10, 2013, the dependency court ordered a contested evidentiary hearing to be held on the October 3 petition.3 These subsequent events have rendered the issue moot. Accordingly, we dismiss the appeal.4 “ ‘[A]n action that originally was based on a justifiable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events. A reversal in such a case would be without practical effect, and the appeal will therefore be dismissed.’ (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 642, p. 669. )” (In re Dani R. (2001) 89 Cal. App.",
"4th 402, 404.) (Accord, In re Esperanza C. (2008) 165 Cal. App. 4th 1042, 1054 [“An appeal 1 All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated. 2 Under section 388, the dependency court should modify an order if circumstances have changed such that the modification would be in the child’s best interest. (In re Kimberly F. (1997) 56 Cal. App. 4th 519, 526 & fn. 5.)",
"3 We have taken judicial notice of the dependency court’s minute orders of October 10, 2013 and January 9, 2014, the section 388 petition mother filed on October 3, 2013, and letter from the dependency court to mother dated October 21, 2013. (Evid. Code, § 452, subd. (d).) 4 We provided the parties an opportunity to address whether mother’s contention concerning the June 18 petition is now moot, based on the minute orders of October 10, 2013 and January 9, 2014, mother’s October 3, 2013 section 388 petition, and the letter from the dependency court to mother dated October 21, 2013. 2 becomes moot when, through no fault of the respondent, the occurrence of an event renders it impossible for the appellate court to grant the appellant effective relief”]; (Carson Citizens for Reform v. Kawagoe (2009) 178 Cal.",
"App. 4th 357, 364 [“ ‘A case is moot when any ruling by this court can have no practical impact or provide the parties effectual relief. [Citation. ]’ ”].) Reversal of an order does not return the matter to the same facts and circumstances as existed when the order was made. (In re Arturo A. (1992) 8 Cal. App. 4th 229, 244.) “This is because the focus of the hearing always must be upon the best interests of the child. The new hearing would entail not only the facts and evidence brought forth at the original hearing, but of necessity would require evidence as to the current status of the child.” (Ibid.) The issue mother raises concerning whether the court abused its discretion in denying the June 18 petition without a hearing is now moot.",
"The court granted mother a contested hearing on the October 3 petition, in which she requests the same relief as she requested in the June 18 petition.5 Reversal of the July 5, 2013 order, and remand for a hearing on the June 18 petition, would be of no practical effect, because a hearing on the June 18 petition would require evidence of current facts concerning changed circumstances and the children’s best interest, just as will be required in the hearing the dependency court ordered on the October 3 petition. Accordingly, the appeal must be dismissed, as there is no effective relief that can be given. 5 Whether, after the dependency court holds a contested hearing on the October 3 petition, the court grants the relief requested in the petition, is irrelevant to the issue on appeal. The sole issue on appeal concerns denial of a hearing on the petition, not denial of the relief requested in the petition. 3 DISPOSITION The appeal is dismissed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS KLEIN, P. J. We concur: CROSKEY, J. KITCHING, J.",
"4"
]
| https://www.courtlistener.com/api/rest/v3/opinions/2663294/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Response to Arguments Applicant’s amendments and arguments, filed 5/24/2011, have overcome the outstanding rejections over the prior art. All rejections of have been withdrawn. 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 BRIAN L. STENDER on 6/1/2021.
The application has been amended as follows: In the last line of Claim 9, the word “and” has been deleted and the words --than for-- inserted therefor. In the first line of Claim 12, the text “Themethod” has been deleted and the text --The method-- inserted therefor. In the last line of Claim 14, the word --source-- has been inserted between the words “heat” and “does”.
Reasons for Allowance The following is an examiner’s statement of reasons for allowance: Paprocki et al and Egoyants et al are the nearest prior art. The prior art teaches an aerosol-generating device comprising different portions of aerosol-generating material that are heated at different rates or at different times from each other. However, the prior art fails to disclose or suggest a method of generating an aerosol from an aerosol-generating substrate, wherein first and second portions of aerosol-generating substrate are subjected to temperature profiles comprising the steps as claimed in Claim 1. The prior art also fails to suggest an aerosol-generating device configured to perform a method wherein first and second portions of aerosol-generating substrate are subjected to temperature profiles comprising the steps as claimed in as claimed in Claim 18. 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 DENNIS R CORDRAY whose telephone number is (571)272-8244. The examiner can normally be reached on Monday-Friday 8 AM-5 PM (EST). Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Abbas Rashid can be reached on (571) 270-7457. 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.
/DENNIS R CORDRAY/Primary Examiner, Art Unit 1748 | 2021-06-12T14:50:18 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Response to Arguments Applicant’s amendments and arguments, filed 5/24/2011, have overcome the outstanding rejections over the prior art. All rejections of have been withdrawn. 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 BRIAN L. STENDER on 6/1/2021. The application has been amended as follows: In the last line of Claim 9, the word “and” has been deleted and the words --than for-- inserted therefor.",
"In the first line of Claim 12, the text “Themethod” has been deleted and the text --The method-- inserted therefor. In the last line of Claim 14, the word --source-- has been inserted between the words “heat” and “does”. Reasons for Allowance The following is an examiner’s statement of reasons for allowance: Paprocki et al and Egoyants et al are the nearest prior art. The prior art teaches an aerosol-generating device comprising different portions of aerosol-generating material that are heated at different rates or at different times from each other. However, the prior art fails to disclose or suggest a method of generating an aerosol from an aerosol-generating substrate, wherein first and second portions of aerosol-generating substrate are subjected to temperature profiles comprising the steps as claimed in Claim 1. The prior art also fails to suggest an aerosol-generating device configured to perform a method wherein first and second portions of aerosol-generating substrate are subjected to temperature profiles comprising the steps as claimed in as claimed in Claim 18.",
"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 DENNIS R CORDRAY whose telephone number is (571)272-8244. The examiner can normally be reached on Monday-Friday 8 AM-5 PM (EST). Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Abbas Rashid can be reached on (571) 270-7457.",
"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. /DENNIS R CORDRAY/Primary Examiner, Art Unit 1748"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-06-13.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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Exhibit 10.2 image 1 [image1.jpg] image 2 [image2.jpg]
August 16, 2011
EMCORE Corporation 10420 Research Road, SE Albuquerque, New Mexico 87123
Re: Engagement of Reedland Capital Partners, an Institutional Division of Financial West Group as Placement Agent for EMCORE Corporation
Gentlemen:
This letter (this "Engagement Letter") will confirm our agreement with EMCORE Corporation (the “Company”) with respect to the engagement of Reedland Capital Partners, an Institutional Division of Financial West Group (“FWG/Reedland”) as the Company's placement agent, solely in connection with the placement of the Company's common stock to Commerce Court Small Cap Value Fund, Ltd. (collectively with its affiliated funds, the "Investor"), as more fully described herein. FWG/Reedland hereby agrees, on a best efforts basis and subject to the satisfactory completion of our continuing due diligence, to place up to Fifty Million Dollars ($50,000,000) of the Company's authorized but unissued common stock (the "Common Stock" or "Common Shares") with the Investor, as more particularly set forth below and subject to the terms and conditions of this Engagement Letter.
The Common Stock will be offered and sold on such terms as the Company and the Investor may agree upon in that certain “Common Stock Purchase Agreement”, dated August 16, 2011, by and between the Company and the Investor a copy of which is attached hereto as Exhibit A and incorporated herein by this reference (the “Purchase Agreement”) and the offering and sale of such Common Stock shall be made in reliance upon the provisions of Section 4(2) of the Securities Act of 1933 (the “Securities Act”) and Regulation D promulgated pursuant to the Securities Act, as amended (“Regulation D”). FWG/Reedland will use no offering materials other than the Company's publicly filed reports and such other materials, including the Purchase Agreement and a registration rights agreement, as the Company will have approved prior to their use. The parties hereto agree that the Common Shares will be offered and sold by the Company in compliance with all applicable federal and state securities laws and regulations, including but not limited to Regulation D. The Investor shall certify to the Company in writing in the Purchase Agreement that it is an “accredited investor” as that term is defined by Rule 501(c) of Regulation D. The placement of the Common Stock by FWG/Reedland to the Investor as contemplated hereby may be referred to herein as the "Offering".
The term of FWG/Reedland's engagement (the "Engagement Period") as placement agent for the offer and sale of the Common Stock to the Investor will commence on the date of actual receipt by FWG/Reedland of an executed copy of this Engagement Letter from the Company and, unless extended pursuant to the further written agreement of the parties, will expire upon the earlier of (i) September 1, 2013, (ii) the date that all the shares of Common Stock under the Purchase Agreement have been issued and sold, (iii) the date that the Investor has purchased an aggregate of $50,000,000 of shares of Common Stock, or that number of shares which is one share less than twenty percent (20.0%) of the total issued and outstanding shares of Common Stock as of the effective date of the Purchase Agreement, whichever occurs first, pursuant to the Purchase Agreement, (iv) the date that the Offering is terminated by the Company or the Investor or (v) at the Company’s election, the date that FWG/Reedland breaches any representation or covenant in this Engagement Letter. To the extent the Company so requests, FWG/Reedland will assist with each settlement of the purchase of the Common Stock pursuant to the Offering (each, a “Closing”). There may be multiple Closings of the Offering during the Engagement Period. 30 Sunnyside Avenue | Mill Valley | CA 94941 | (415) 383-4700 | Fax (415) 383-4799
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Page 2 EMCORE Corporation Upon the date of each Closing of the purchase of the Common Shares, the Company hereby agrees to pay FWG/Reedland a cash commission equal to one percent (1.00%) of the aggregate dollar amount paid to the Company for the Common Shares purchased by the Investor in connection therewith. Such cash commission(s) shall be payable to FWG/Reedland at the direction of the Company via wire transfer in accordance with the wiring instructions annexed hereto as Exhibit C. This Engagement Letter is for the confidential use of the Company and FWG/Reedland only, and may not be disclosed by the Company or by FWG/Reedland (in whole or in part) for any reason to any person other than their respective Board of Directors, executive management or its attorneys, accountants or financial advisors, and then only on a confidential basis in connection with the proposed Offering, except where disclosure is required by applicable law, stock exchange rule or regulation, or is previously agreed to in writing to by the Company and FWG/Reedland. The parties hereto acknowledge and agree that, notwithstanding the preceding sentence, (i) the arrangement contemplated hereby will be disclosed by the Company in its SEC filings and this Engagement Letter may be filed with the SEC and (ii) the arrangement contemplated hereby may also be disclosed by the Company in its reports filed pursuant to the Securities Exchange Act of 1934, as amended.
The terms of this Engagement Letter will be governed by and interpreted in accordance with the laws of the State of California, and any disputes arising hereunder shall be exclusively and finally settled by an arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules in San Francisco, California. The arbitration shall be conducted by a single arbitrator mutually agreed upon by the parties. The determination, finding, judgment, and/or award made by the arbitrator shall be made in writing, shall state the basis for such determination, shall be signed by the arbitrator and shall be final and binding on all parties, and there shall be no appeal or reexamination thereof, except for fraud, perjury, evident partiality, or misconduct by an arbitrator prejudicing the rights of any party and to correct manifest clerical errors. The arbitrator shall award to the prevailing party, if any, as determined by the arbitrator, its reasonable attorneys’ fees and costs.
During the Engagement Period and for 60 days thereafter, the Company agrees that any reference to FWG/Reedland in any press release or other written communications issued by the Company to the public relating to the Offering will refer to FWG/Reedland as “Reedland Capital Partners, an Institutional Division of Financial West Group”. Additionally, the Company acknowledges that FWG/Reedland may at its option and expense (and only after the first public disclosure or announcement of the Offering by the Company) place announcements and advertisements or otherwise publicize FWG/Reedland’s role in facilitating the Offering (which may include the reproduction of the Company’s logo), stating that FWG/Reedland acted as placement agent in connection with such transaction; provided, however, that FWG/Reedland shall first submit a copy of any such announcement or advertisement to the Company for its approval, which approval shall not be unreasonably withheld.
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Page 3 EMCORE Corporation The Company hereby agrees that: (1) within three (3) days of each date that the Company provides the Investor with a “Fixed Notice Request” (as defined in the Purchase Agreement) it will provide FWG/Reedland with a copy of such Fixed Notice Request by facsimile to (415) 383-4799 (Attn: Jason Cohen), and (2) it will comply in all material respects with all applicable federal and state securities laws and regulations with respect to the Offering.
FWG/Reedland hereby agrees and represents and warrants that: (1) FWG/Reedland is an institutional division of Financial West Group (member FINRA/SIPC), which is a broker/dealer registered by FINRA in accordance with all applicable laws and regulations in each jurisdiction in which FWG/Reedland intends to use its best efforts to place the Offering, including, without limitation, in the State of New Mexico and payment of the commission contemplated under this agreement will not jeopardize the Company's compliance with Regulation D and applicable federal and state securities laws and regulations; (2) FWG/Reedland will not make any representations to the Investor about the Company other than information included in the Company's public filings or otherwise conveyed to FWG/Reedland by the Company in writing for use in connection with the Offering; (3) FWG/Reedland will not do any advertising or make any general solicitation on behalf of the Company in connection with the Offering; (4) FWG/Reedland will comply with all applicable federal and state securities laws and regulations with respect to the Offering; (5) FWG/Reedland is not affiliated with the Investor or the Company; and (6) FWG/Reedland agrees to keep confidential any nonpublic material information about the Company conveyed to FWG/Reedland by the Company. In further consideration of FWG/Reedland's placement of the Common Shares, the Company and FWG/Reedland agree to be fully bound by all of the indemnification provisions set forth on Exhibit B, a copy of which is attached hereto and is fully incorporated herein by this reference.
The parties acknowledge and agree that nothing contained herein shall modify or affect the rights or obligations of the Company and the Investor under the Purchase Agreement. This Engagement Letter and all rights and obligations hereunder may not be assigned by either party without the prior written consent of the other party. This Engagement Letter may be executed in counterparts, and any signature that is delivered by facsimile or electronic transmission will be deemed to constitute delivery of a manually executed original.
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If the foregoing is acceptable, please sign and return to us a copy of this Engagement Letter, which will represent the entire agreement between the Company and FWG/Reedland with respect to the matters addressed herein and will supersede all previous oral or written agreements or understandings of any nature whatsoever between the parties. We look forward to working with you. Sincerely,
Reedland Capital Partners EMCORE Corporation By: /s/ Robert Schacter By: /s/ Alfredo Gomez Robert Schacter Name: Alfredo Gomez Senior Vice President (FWG) Title: General Counsel and Secretary
Agreed & Accepted:
Financial West Group
By: /s/ Howard Davis Howard Davis Director of Corporate Finance
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Exhibit A to Engagement Letter
Form of Common Stock Purchase Agreement
between EMCORE Corporation and Commerce Court Small Cap Value Fund, Ltd.
(copy attached)
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Exhibit B to Engagement Letter
Company Indemnification Provisions EMCORE Corporation (the "Company") agrees to indemnify and hold harmless Reedland Capital Partners, an Institutional Division of Financial West Group ("FWG/Reedland"), and its directors, officers, and each person, if any, who controls FWG/Reedland within the meaning of Section 15 of the Securities Act of 1933, as amended, or Section 20(a) of the Securities Exchange Act of 1934, as amended (collectively, the "Indemnitees" and each individually an "Indemnitee"), to the fullest extent permitted by applicable law, from and against any and all claims, demands, causes of action, obligations, losses, damages, liabilities, costs or expenses arising in law, equity or otherwise, of any nature whatsoever, including without limitation, any and all reasonable legal, accounting and other professional fees and related costs and disbursements and other costs, expenses, or disbursements relating thereto (collectively, the "Liabilities"), directly or indirectly, based upon or arising out of, or in connection with:
(a) any act or omission of the Company (or any affiliate thereof) in violation of the Engagement Letter between FWG/Reedland and the Company to which this Exhibit B is an integral part (the “Engagement Letter”) or the transactions contemplated thereby, including, without limitation, any violation of applicable laws or regulations by the Company (or any affiliate thereof); or
(b) any untrue or alleged untrue statement of a material fact contained in the Registration Statement (as defined in the Purchase Agreement) or the omission or alleged omission to state a material fact necessary to make the statements made therein, in light of the circumstance under which the statements therein were made, not misleading; or
(c) any untrue or alleged untrue statement of a material fact contained in the Prospectus (as defined in the Purchase Agreement) as the same may be amended or supplemented, or the omission or alleged omission to state a material fact necessary to make the statements made therein, in light of the circumstance under which the statements therein were made, not misleading; or
(d) any breach by the Company (or any affiliate thereof) of any of the terms of the Engagement Letter between FWG/Reedland and the Company, or any purchase and sale agreement, registration rights agreement, or other agreement between the Company and Commerce Court Small Cap Value Fund, Ltd. (collectively with its affiliated funds, the "Investor"), or the terms of the securities purchased or issuable pursuant thereto.
The Company may, at its own expense, seek reimbursement of amounts already paid to such Indemnitee once and to the extent the relevant Liabilities are determined in a final judgment by court of competent jurisdiction (not subject to further appeal) to have resulted from any Indemnitee’s gross negligence, bad faith or willful or reckless misconduct. These indemnification provisions are in addition to any liability that the Company may otherwise have to any Indemnitee or the Investor.
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The Company further agrees that no Indemnitee will have any liability for any Liabilities (whether direct or indirect, in contract or tort or otherwise) to the Company (or any affiliate thereof), or to any person (including, without limitation, Company shareholders) claiming through the Company (or any affiliate thereof) in connection with the engagement of FWG/Reedland or for or in connection with the acts or omissions of any such Indemnitee or any other Indemnitee, except to the extent that any such Liabilities are found in final judgment by a court of competent jurisdiction (not subject to further appeal) to have resulted from the gross negligence, bad faith or willful or reckless misconduct (including a breach of any of the representations, warranties, covenants or agreements of FWG/Reedland in the Engagement Letter) of the Indemnitee seeking indemnification. In order to provide for just and equitable contribution, if a claim for indemnification pursuant to these indemnification provisions is made but it is found in final judgment by a court of competent jurisdiction (not subject to further appeal) that such indemnification may not be enforced in such case, then the Company, on the one hand, and the claiming Indemnitees on the other hand, will contribute to the losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses and disbursements (collectively, the “Losses”) to which such Indemnitees may be subject. Said contribution will be made in accordance with all relative benefits received by, and the fault of, the Company on the one hand, and such Indemnitees on the other hand, in connection with the statements, acts or omissions which resulted in such Losses, together with the relevant equitable considerations and will be determined pursuant to the arbitration provisions set forth in the Engagement Letter. No person found liable for fraudulent misrepresentation will be entitled to contribution from any person who is not also found liable for such fraudulent misrepresentation.
If any action, suit, proceeding, or investigation commenced which gives rise to a claim for indemnification and which, in any Indemnitee's reasonable judgment upon written advice of counsel, gives rise to a conflict of interest between the Company and the Indemnitees, then the Indemnitees will have the right to retain legal counsel of their own choice to represent and advise them, and the Company will pay the reasonable fees, expenses and disbursements of no more than one (1) law firm for all Indemnitees incurred from time to time in the manner set forth above. Such law firm will, to the extent consistent with their professional responsibilities, cooperate with the Company and any counsel designated by the Company. Notwithstanding anything herein to the contrary, the Company will not be liable for any settlement of any claim, action suit or proceeding effected without its prior written consent. Neither the Company nor any affiliate thereof will, without the prior written consent of the Indemnitee seeking indemnification, settle or compromise any actual, potential or threatened claim for which indemnification is sought hereunder, or permit a default or consent to the entry of any judgment in respect thereof, unless such settlement, compromise or consent includes, as an unconditional term thereof, the giving by the claimant to the Indemnitees of an unconditional release from all liability in respect of such claim. Neither termination nor completion of the engagement of FWG/Reedland pursuant to the Engagement Letter will affect these indemnification provisions, which will survive any such termination or completion and remain operative and in full force and effect. If any term, provision, covenant or restriction contained in the Engagement Letter or this Exhibit B is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against its regulatory policy, the remainder of the terms, provisions, covenants and restrictions contained herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
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Exhibit C to Engagement Letter
FWG/Reedland Wiring Instructions
(Financial West Group)
-------------------------------------------------------------------------------- | [
"-------------------------------------------------------------------------------- Exhibit 10.2 image 1 [image1.jpg] image 2 [image2.jpg] August 16, 2011 EMCORE Corporation 10420 Research Road, SE Albuquerque, New Mexico 87123 Re: Engagement of Reedland Capital Partners, an Institutional Division of Financial West Group as Placement Agent for EMCORE Corporation Gentlemen: This letter (this \"Engagement Letter\") will confirm our agreement with EMCORE Corporation (the “Company”) with respect to the engagement of Reedland Capital Partners, an Institutional Division of Financial West Group (“FWG/Reedland”) as the Company's placement agent, solely in connection with the placement of the Company's common stock to Commerce Court Small Cap Value Fund, Ltd. (collectively with its affiliated funds, the \"Investor\"), as more fully described herein. FWG/Reedland hereby agrees, on a best efforts basis and subject to the satisfactory completion of our continuing due diligence, to place up to Fifty Million Dollars ($50,000,000) of the Company's authorized but unissued common stock (the \"Common Stock\" or \"Common Shares\") with the Investor, as more particularly set forth below and subject to the terms and conditions of this Engagement Letter.",
"The Common Stock will be offered and sold on such terms as the Company and the Investor may agree upon in that certain “Common Stock Purchase Agreement”, dated August 16, 2011, by and between the Company and the Investor a copy of which is attached hereto as Exhibit A and incorporated herein by this reference (the “Purchase Agreement”) and the offering and sale of such Common Stock shall be made in reliance upon the provisions of Section 4(2) of the Securities Act of 1933 (the “Securities Act”) and Regulation D promulgated pursuant to the Securities Act, as amended (“Regulation D”). FWG/Reedland will use no offering materials other than the Company's publicly filed reports and such other materials, including the Purchase Agreement and a registration rights agreement, as the Company will have approved prior to their use.",
"The parties hereto agree that the Common Shares will be offered and sold by the Company in compliance with all applicable federal and state securities laws and regulations, including but not limited to Regulation D. The Investor shall certify to the Company in writing in the Purchase Agreement that it is an “accredited investor” as that term is defined by Rule 501(c) of Regulation D. The placement of the Common Stock by FWG/Reedland to the Investor as contemplated hereby may be referred to herein as the \"Offering\". The term of FWG/Reedland's engagement (the \"Engagement Period\") as placement agent for the offer and sale of the Common Stock to the Investor will commence on the date of actual receipt by FWG/Reedland of an executed copy of this Engagement Letter from the Company and, unless extended pursuant to the further written agreement of the parties, will expire upon the earlier of (i) September 1, 2013, (ii) the date that all the shares of Common Stock under the Purchase Agreement have been issued and sold, (iii) the date that the Investor has purchased an aggregate of $50,000,000 of shares of Common Stock, or that number of shares which is one share less than twenty percent (20.0%) of the total issued and outstanding shares of Common Stock as of the effective date of the Purchase Agreement, whichever occurs first, pursuant to the Purchase Agreement, (iv) the date that the Offering is terminated by the Company or the Investor or (v) at the Company’s election, the date that FWG/Reedland breaches any representation or covenant in this Engagement Letter.",
"To the extent the Company so requests, FWG/Reedland will assist with each settlement of the purchase of the Common Stock pursuant to the Offering (each, a “Closing”). There may be multiple Closings of the Offering during the Engagement Period. 30 Sunnyside Avenue | Mill Valley | CA 94941 | (415) 383-4700 | Fax (415) 383-4799 -------------------------------------------------------------------------------- Page 2 EMCORE Corporation Upon the date of each Closing of the purchase of the Common Shares, the Company hereby agrees to pay FWG/Reedland a cash commission equal to one percent (1.00%) of the aggregate dollar amount paid to the Company for the Common Shares purchased by the Investor in connection therewith. Such cash commission(s) shall be payable to FWG/Reedland at the direction of the Company via wire transfer in accordance with the wiring instructions annexed hereto as Exhibit C. This Engagement Letter is for the confidential use of the Company and FWG/Reedland only, and may not be disclosed by the Company or by FWG/Reedland (in whole or in part) for any reason to any person other than their respective Board of Directors, executive management or its attorneys, accountants or financial advisors, and then only on a confidential basis in connection with the proposed Offering, except where disclosure is required by applicable law, stock exchange rule or regulation, or is previously agreed to in writing to by the Company and FWG/Reedland. The parties hereto acknowledge and agree that, notwithstanding the preceding sentence, (i) the arrangement contemplated hereby will be disclosed by the Company in its SEC filings and this Engagement Letter may be filed with the SEC and (ii) the arrangement contemplated hereby may also be disclosed by the Company in its reports filed pursuant to the Securities Exchange Act of 1934, as amended.",
"The terms of this Engagement Letter will be governed by and interpreted in accordance with the laws of the State of California, and any disputes arising hereunder shall be exclusively and finally settled by an arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules in San Francisco, California. The arbitration shall be conducted by a single arbitrator mutually agreed upon by the parties. The determination, finding, judgment, and/or award made by the arbitrator shall be made in writing, shall state the basis for such determination, shall be signed by the arbitrator and shall be final and binding on all parties, and there shall be no appeal or reexamination thereof, except for fraud, perjury, evident partiality, or misconduct by an arbitrator prejudicing the rights of any party and to correct manifest clerical errors. The arbitrator shall award to the prevailing party, if any, as determined by the arbitrator, its reasonable attorneys’ fees and costs.",
"During the Engagement Period and for 60 days thereafter, the Company agrees that any reference to FWG/Reedland in any press release or other written communications issued by the Company to the public relating to the Offering will refer to FWG/Reedland as “Reedland Capital Partners, an Institutional Division of Financial West Group”. Additionally, the Company acknowledges that FWG/Reedland may at its option and expense (and only after the first public disclosure or announcement of the Offering by the Company) place announcements and advertisements or otherwise publicize FWG/Reedland’s role in facilitating the Offering (which may include the reproduction of the Company’s logo), stating that FWG/Reedland acted as placement agent in connection with such transaction; provided, however, that FWG/Reedland shall first submit a copy of any such announcement or advertisement to the Company for its approval, which approval shall not be unreasonably withheld.",
"-------------------------------------------------------------------------------- Page 3 EMCORE Corporation The Company hereby agrees that: (1) within three (3) days of each date that the Company provides the Investor with a “Fixed Notice Request” (as defined in the Purchase Agreement) it will provide FWG/Reedland with a copy of such Fixed Notice Request by facsimile to (415) 383-4799 (Attn: Jason Cohen), and (2) it will comply in all material respects with all applicable federal and state securities laws and regulations with respect to the Offering. FWG/Reedland hereby agrees and represents and warrants that: (1) FWG/Reedland is an institutional division of Financial West Group (member FINRA/SIPC), which is a broker/dealer registered by FINRA in accordance with all applicable laws and regulations in each jurisdiction in which FWG/Reedland intends to use its best efforts to place the Offering, including, without limitation, in the State of New Mexico and payment of the commission contemplated under this agreement will not jeopardize the Company's compliance with Regulation D and applicable federal and state securities laws and regulations; (2) FWG/Reedland will not make any representations to the Investor about the Company other than information included in the Company's public filings or otherwise conveyed to FWG/Reedland by the Company in writing for use in connection with the Offering; (3) FWG/Reedland will not do any advertising or make any general solicitation on behalf of the Company in connection with the Offering; (4) FWG/Reedland will comply with all applicable federal and state securities laws and regulations with respect to the Offering; (5) FWG/Reedland is not affiliated with the Investor or the Company; and (6) FWG/Reedland agrees to keep confidential any nonpublic material information about the Company conveyed to FWG/Reedland by the Company.",
"In further consideration of FWG/Reedland's placement of the Common Shares, the Company and FWG/Reedland agree to be fully bound by all of the indemnification provisions set forth on Exhibit B, a copy of which is attached hereto and is fully incorporated herein by this reference. The parties acknowledge and agree that nothing contained herein shall modify or affect the rights or obligations of the Company and the Investor under the Purchase Agreement. This Engagement Letter and all rights and obligations hereunder may not be assigned by either party without the prior written consent of the other party. This Engagement Letter may be executed in counterparts, and any signature that is delivered by facsimile or electronic transmission will be deemed to constitute delivery of a manually executed original.",
"-------------------------------------------------------------------------------- If the foregoing is acceptable, please sign and return to us a copy of this Engagement Letter, which will represent the entire agreement between the Company and FWG/Reedland with respect to the matters addressed herein and will supersede all previous oral or written agreements or understandings of any nature whatsoever between the parties. We look forward to working with you.",
"Sincerely, Reedland Capital Partners EMCORE Corporation By: /s/ Robert Schacter By: /s/ Alfredo Gomez Robert Schacter Name: Alfredo Gomez Senior Vice President (FWG) Title: General Counsel and Secretary Agreed & Accepted: Financial West Group By: /s/ Howard Davis Howard Davis Director of Corporate Finance -------------------------------------------------------------------------------- Exhibit A to Engagement Letter Form of Common Stock Purchase Agreement between EMCORE Corporation and Commerce Court Small Cap Value Fund, Ltd. (copy attached) -------------------------------------------------------------------------------- Exhibit B to Engagement Letter Company Indemnification Provisions EMCORE Corporation (the \"Company\") agrees to indemnify and hold harmless Reedland Capital Partners, an Institutional Division of Financial West Group (\"FWG/Reedland\"), and its directors, officers, and each person, if any, who controls FWG/Reedland within the meaning of Section 15 of the Securities Act of 1933, as amended, or Section 20(a) of the Securities Exchange Act of 1934, as amended (collectively, the \"Indemnitees\" and each individually an \"Indemnitee\"), to the fullest extent permitted by applicable law, from and against any and all claims, demands, causes of action, obligations, losses, damages, liabilities, costs or expenses arising in law, equity or otherwise, of any nature whatsoever, including without limitation, any and all reasonable legal, accounting and other professional fees and related costs and disbursements and other costs, expenses, or disbursements relating thereto (collectively, the \"Liabilities\"), directly or indirectly, based upon or arising out of, or in connection with: (a) any act or omission of the Company (or any affiliate thereof) in violation of the Engagement Letter between FWG/Reedland and the Company to which this Exhibit B is an integral part (the “Engagement Letter”) or the transactions contemplated thereby, including, without limitation, any violation of applicable laws or regulations by the Company (or any affiliate thereof); or (b) any untrue or alleged untrue statement of a material fact contained in the Registration Statement (as defined in the Purchase Agreement) or the omission or alleged omission to state a material fact necessary to make the statements made therein, in light of the circumstance under which the statements therein were made, not misleading; or (c) any untrue or alleged untrue statement of a material fact contained in the Prospectus (as defined in the Purchase Agreement) as the same may be amended or supplemented, or the omission or alleged omission to state a material fact necessary to make the statements made therein, in light of the circumstance under which the statements therein were made, not misleading; or (d) any breach by the Company (or any affiliate thereof) of any of the terms of the Engagement Letter between FWG/Reedland and the Company, or any purchase and sale agreement, registration rights agreement, or other agreement between the Company and Commerce Court Small Cap Value Fund, Ltd. (collectively with its affiliated funds, the \"Investor\"), or the terms of the securities purchased or issuable pursuant thereto.",
"The Company may, at its own expense, seek reimbursement of amounts already paid to such Indemnitee once and to the extent the relevant Liabilities are determined in a final judgment by court of competent jurisdiction (not subject to further appeal) to have resulted from any Indemnitee’s gross negligence, bad faith or willful or reckless misconduct. These indemnification provisions are in addition to any liability that the Company may otherwise have to any Indemnitee or the Investor. -------------------------------------------------------------------------------- The Company further agrees that no Indemnitee will have any liability for any Liabilities (whether direct or indirect, in contract or tort or otherwise) to the Company (or any affiliate thereof), or to any person (including, without limitation, Company shareholders) claiming through the Company (or any affiliate thereof) in connection with the engagement of FWG/Reedland or for or in connection with the acts or omissions of any such Indemnitee or any other Indemnitee, except to the extent that any such Liabilities are found in final judgment by a court of competent jurisdiction (not subject to further appeal) to have resulted from the gross negligence, bad faith or willful or reckless misconduct (including a breach of any of the representations, warranties, covenants or agreements of FWG/Reedland in the Engagement Letter) of the Indemnitee seeking indemnification. In order to provide for just and equitable contribution, if a claim for indemnification pursuant to these indemnification provisions is made but it is found in final judgment by a court of competent jurisdiction (not subject to further appeal) that such indemnification may not be enforced in such case, then the Company, on the one hand, and the claiming Indemnitees on the other hand, will contribute to the losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses and disbursements (collectively, the “Losses”) to which such Indemnitees may be subject.",
"Said contribution will be made in accordance with all relative benefits received by, and the fault of, the Company on the one hand, and such Indemnitees on the other hand, in connection with the statements, acts or omissions which resulted in such Losses, together with the relevant equitable considerations and will be determined pursuant to the arbitration provisions set forth in the Engagement Letter. No person found liable for fraudulent misrepresentation will be entitled to contribution from any person who is not also found liable for such fraudulent misrepresentation. If any action, suit, proceeding, or investigation commenced which gives rise to a claim for indemnification and which, in any Indemnitee's reasonable judgment upon written advice of counsel, gives rise to a conflict of interest between the Company and the Indemnitees, then the Indemnitees will have the right to retain legal counsel of their own choice to represent and advise them, and the Company will pay the reasonable fees, expenses and disbursements of no more than one (1) law firm for all Indemnitees incurred from time to time in the manner set forth above. Such law firm will, to the extent consistent with their professional responsibilities, cooperate with the Company and any counsel designated by the Company. Notwithstanding anything herein to the contrary, the Company will not be liable for any settlement of any claim, action suit or proceeding effected without its prior written consent.",
"Neither the Company nor any affiliate thereof will, without the prior written consent of the Indemnitee seeking indemnification, settle or compromise any actual, potential or threatened claim for which indemnification is sought hereunder, or permit a default or consent to the entry of any judgment in respect thereof, unless such settlement, compromise or consent includes, as an unconditional term thereof, the giving by the claimant to the Indemnitees of an unconditional release from all liability in respect of such claim. Neither termination nor completion of the engagement of FWG/Reedland pursuant to the Engagement Letter will affect these indemnification provisions, which will survive any such termination or completion and remain operative and in full force and effect. If any term, provision, covenant or restriction contained in the Engagement Letter or this Exhibit B is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against its regulatory policy, the remainder of the terms, provisions, covenants and restrictions contained herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated. -------------------------------------------------------------------------------- Exhibit C to Engagement Letter FWG/Reedland Wiring Instructions (Financial West Group) --------------------------------------------------------------------------------"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
Case 2:21-cv-11515-PDB-EAS ECF No. 6, PageID.42 Filed 07/20/21 Page 1 of 3
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
KEITH GARDINER, No. 383334, Case No. 2:21-cv-11515 Hon. Paul D. Borman Plaintiff, v.
CORIZON HEALTH INC., ET AL,
Defendants. ____________________________________/
ORDER TRANSFERRING CASE TO THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
Plaintiff Keith Gardiner is a Michigan prisoner incarcerated at the Alger
Maximum Correctional Facility, in Alger County, Michigan. The pro se complaint
names Corizon Health Inc., as well as various individual Defendants employed at
the Alger facility. The complaint asserts that Defendants were deliberately
indifferent to Plaintiff’s knee condition while he was a prisoner at the Alger facility.
The determination of the proper venue for a civil action in federal court is
generally governed by 28 U.S.C. § 1391. Relevant here, the statute provides that a
civil action may be brought in (1) a judicial district in which any defendant resides;
or (2) a judicial district in which a substantial part of the events or omissions giving
rise to the claim occurred. 28 U.S.C. 1391(b)). If venue is improper in the district Case 2:21-cv-11515-PDB-EAS ECF No. 6, PageID.43 Filed 07/20/21 Page 2 of 3
where a case is filed, but would be proper in another district, “a district court has the
power to sua sponte transfer [the] case.” Cosmichrome, Inc. v. Spectra Chrome, LLC,
504 F. App’x 468, 472 (6th Cir. 2012).
Plaintiff’s facility is located in Alger County, Michigan, where all the
individually named Defendants are employed. The events giving rise to the
complaint are also alleged to have occurred in Alger County. Alger County is part
of the Western District of Michigan. 28 U.S.C. § 102(b). Because there is no
apparent basis for venue to lie in this district, but there are facts in the complaint
suggesting that venue would be proper in the Western District, the Court finds that
the interests of justice would be served by transferring the case to the district where
it should have been filed in the first instance. 28 U.S.C. § 1406(a).
IT IS ORDERED that this case be transferred to the United States District
Court for the Western District of Michigan pursuant to 28 U.S.C. §1406(a).
It is noted that the Court has not decided Plaintiffs’ motion to proceed in forma
pauperis, nor has the Court reviewed Plaintiffs’ complaint under 28 U.S.C. §§
1915(e)(2), 1915A, or under 42 U.S.C. §1997e(c).
Finally, the Court has not decided whether this action should be consolidated
with a similar case filed by Plaintiff concerning a different medical condition arising
2 Case 2:21-cv-11515-PDB-EAS ECF No. 6, PageID.44 Filed 07/20/21 Page 3 of 3
at the Alger facility. See Gardiner v. Corizon, E.D. Michigan Civil No. 21-11567.
SO ORDERED.
s/Paul D. Borman Hon. Paul D. Borman United States District Judge Dated: July 20, 2021
3 | 2021-07-20 | [
"Case 2:21-cv-11515-PDB-EAS ECF No. 6, PageID.42 Filed 07/20/21 Page 1 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION KEITH GARDINER, No. 383334, Case No. 2:21-cv-11515 Hon. Paul D. Borman Plaintiff, v. CORIZON HEALTH INC., ET AL, Defendants. ____________________________________/ ORDER TRANSFERRING CASE TO THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN Plaintiff Keith Gardiner is a Michigan prisoner incarcerated at the Alger Maximum Correctional Facility, in Alger County, Michigan. The pro se complaint names Corizon Health Inc., as well as various individual Defendants employed at the Alger facility. The complaint asserts that Defendants were deliberately indifferent to Plaintiff’s knee condition while he was a prisoner at the Alger facility.",
"The determination of the proper venue for a civil action in federal court is generally governed by 28 U.S.C. § 1391. Relevant here, the statute provides that a civil action may be brought in (1) a judicial district in which any defendant resides; or (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred. 28 U.S.C. 1391(b)). If venue is improper in the district Case 2:21-cv-11515-PDB-EAS ECF No. 6, PageID.43 Filed 07/20/21 Page 2 of 3 where a case is filed, but would be proper in another district, “a district court has the power to sua sponte transfer [the] case.” Cosmichrome, Inc. v. Spectra Chrome, LLC, 504 F. App’x 468, 472 (6th Cir. 2012). Plaintiff’s facility is located in Alger County, Michigan, where all the individually named Defendants are employed.",
"The events giving rise to the complaint are also alleged to have occurred in Alger County. Alger County is part of the Western District of Michigan. 28 U.S.C. § 102(b). Because there is no apparent basis for venue to lie in this district, but there are facts in the complaint suggesting that venue would be proper in the Western District, the Court finds that the interests of justice would be served by transferring the case to the district where it should have been filed in the first instance. 28 U.S.C. § 1406(a). IT IS ORDERED that this case be transferred to the United States District Court for the Western District of Michigan pursuant to 28 U.S.C. §1406(a). It is noted that the Court has not decided Plaintiffs’ motion to proceed in forma pauperis, nor has the Court reviewed Plaintiffs’ complaint under 28 U.S.C. §§ 1915(e)(2), 1915A, or under 42 U.S.C. §1997e(c).",
"Finally, the Court has not decided whether this action should be consolidated with a similar case filed by Plaintiff concerning a different medical condition arising 2 Case 2:21-cv-11515-PDB-EAS ECF No. 6, PageID.44 Filed 07/20/21 Page 3 of 3 at the Alger facility. See Gardiner v. Corizon, E.D. Michigan Civil No. 21-11567. SO ORDERED. s/Paul D. Borman Hon. Paul D. Borman United States District Judge Dated: July 20, 2021 3"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/175680767/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
AMENDMENT NO. 4 TO THE OPERATING EXPENSES LIMITATION AGREEMENT This AMENDMENT NO. 4 (this “Amendment”), effective as of January 1, 2014, to the Operating Expenses Limitation Agreement originally made and entered into on January 1, 2001 (the “Agreement”), as amended, is entered into by and between Advisors Series Trust, a Delaware statutory trust (the “Trust”), on behalf of the Edgar Lomax Value Fund (the “Fund”), and The Edgar Lomax Company, a Delaware corporation (the “Advisor”). RECITALS WHEREAS, the parties have entered into an Agreement; and WHEREAS, the parties desire to amend the Agreement to update Appendix A of the Agreement; and NOW, THEREFORE, the parties agree as follows: Appendix A of the Agreement is hereby superseded and replaced with Appendix A attached hereto. Except to the extent amended hereby, the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by a duly authorized officer on one or more counterparts as of the date and year first written above. ADVISORS SERIES TRUST on behalf of the Edgar Lomax Value Fund THE EDGAR LOMAX COMPANY By:/s/ Douglas G. Hess By: /s/ Phillip A. Titzer Print Name: Douglas G. Hess Print Name: Phillip A. Titzer Title: President Title: Vice President 1 Schedule A Series or Fund of Advisors Series Trust Operating Expense Limit Edgar Lomax Value Fund 0.96% of average net assets 2 | [
"AMENDMENT NO. 4 TO THE OPERATING EXPENSES LIMITATION AGREEMENT This AMENDMENT NO. 4 (this “Amendment”), effective as of January 1, 2014, to the Operating Expenses Limitation Agreement originally made and entered into on January 1, 2001 (the “Agreement”), as amended, is entered into by and between Advisors Series Trust, a Delaware statutory trust (the “Trust”), on behalf of the Edgar Lomax Value Fund (the “Fund”), and The Edgar Lomax Company, a Delaware corporation (the “Advisor”).",
"RECITALS WHEREAS, the parties have entered into an Agreement; and WHEREAS, the parties desire to amend the Agreement to update Appendix A of the Agreement; and NOW, THEREFORE, the parties agree as follows: Appendix A of the Agreement is hereby superseded and replaced with Appendix A attached hereto. Except to the extent amended hereby, the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by a duly authorized officer on one or more counterparts as of the date and year first written above. ADVISORS SERIES TRUST on behalf of the Edgar Lomax Value Fund THE EDGAR LOMAX COMPANY By:/s/ Douglas G. Hess By: /s/ Phillip A. Titzer Print Name: Douglas G. Hess Print Name: Phillip A. Titzer Title: President Title: Vice President 1 Schedule A Series or Fund of Advisors Series Trust Operating Expense Limit Edgar Lomax Value Fund 0.96% of average net assets 2"
]
| 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 |
|
Clinton DeWolfe, O.D. Opinion No. JM-1081 Chairman Texas Optometry Board Re: Whether the Texas Optometry P. 0. Box 988 Act prohibits an optician from Blanco, Texas 78606 giving another free pair of spectacles, eyeglasses or contact lenses to a person who purchases a first pair (RQ-1667)
Dear Dr. DeWolfe:
You inform us that opticians and national laboratories have recently offered a free pair of eyeglasses or contact lenses to purchasers of a first pair of glasses or contact lenses. You ask whether these "buy-one, get-one-free" sales violate section 5.06 of the Texas Optometry Act and a board rule based on that section. Section 5.06 provides as follows:
It shall be unlawful for any person in this state to give, or cause to be given, deliver, or cause to be delivered, in any manner whatsoever, any spectacles or eye- glasses, separate or together, as a prize or premium, or as an inducement to sell any book, paper, magazine or any work of literature or art, or anv item of merchandise whatsoever. (Emphasis added.)
V.T.C.S. art. 4552-5.06. A person who violates any provi- sion of the Texas Optometry Act is guilty of a misdemeanor punishable by a fine, confinement in the county jail, or both. V.T.C.S. art. 4552-5.19.
An Optometry Board rule provides that "no person in this state shall give . . . any contact lenses as a prize or premium, or as an inducement to sell any book, paper, magazine, or any work of literature or art, or any item of merchandise whatsoever." 22 T.A.C. 5 273.3. The rule does not state that it is unlawful to give contact lenses as a premium to sell an item of merchandise.
P. 5646 Dr. Clinton DeWolfe - Page 2 (JM-1081)
You ask whether section 5.06 and board rule 273.3 prohibit giving a second pair of spectacles, eyeglasses, or contact lenses to a person who purchases a first pair. If we conclude that this practice is prohibited, you ask whether it would also prohibit a gift of free frames or free lenses as an inducement to sell eyeglasses, and a sale of eyeglasses, frames, or lenses for one cent or another insignificant amount.
Article 4552-1.02, V.T.C.S., provides in part:
The 'practice of optometry' is defined to be the employment of objective or subjective means . . . for the purpose of ascertaining and measuring the powers of vision of the human eye, and fitting lenses or prisms to correct or remedy any defect or abnormal condition of vision. . . T
V.T.C.S. art. 4552-1.02(l).
A "dispensing optician" or *'opthalmic dispenser" is defined as Ita person not licensed as an optometrist or physician who sells or delivers to the consumer fabricated and finished spectacle lenses, frames, contact lenses, or other opthalmic devices prescribed by an optometrist or physician." V.T.C.S. art. 4552-1.02(5). See V.T.C.S. art. 4552-1.02(3)(A) (ophthalmic dispenser is not prohibited from making facial measurements to dispense or adapt ophthalmic prescriptions or lenses, products and accessories). 4E also Williamson v. Lee Ontical of Oklahoma, 348 U.S. 486 (1955) (an optician iS qualified to grind lenses, fili prescriptions, and fit frames).
A l%wo-for-onel~ sale of eyeglasses by a dispensing optician may merely be a pricing policy which gives a volume discount. We will not, however, deal with your question in terms of pricing policies that may be adopted by persons who sell prescription glasses. Instead, we will consider whether a pair of spectacles, eyeglasses, or contact lenses is an "item of merchandise" within section 5.06 of the act.
Article 4552 does not define the term "merchandise," but it uses this word in other provisions. When the same word is used more than once in a statute, it will be given the same meaning, unless a different intent is indicated. Brown v. Darden, 50 S.W.2d 261 (Tex. 1932).
Article 4552-5.17, V.T.C.S., provides in part:
P. 5647 Dr. Clinton DeWolfe - Page 3 (JM-1081)
Nothing in this Act shall be construed to apply to persons who sell ready-to-wear spectacles and eyeglasses as merchandise at retail . . . . (Emphasis added.)
V.T.C.S. art. 4552-5.17. The definition of the "practice of optometry" includes a similar provision on selling ready-to- wear spectacles or eyeglasses as merchandise. V.T.C.S. art. 4552-1.02(l).
These provisions apply to the sale of mass-produced items like non-prescription sunglasses and eyeglasses that are essentially magnifying glasses in a frame. These items are not custom-made to correct the wearer's defects in vision and no special order is necessary to buy them.1
t'Merchandisel'has been broadly defined as "all goods which merchants usually buy and sell, whether at wholesale or retail; wares and commodities such as are ordinarily the objects of trade and commerce." Black's Law Dictionary 890 (5th ed. 1979); see also Hein v. O'Connor, 15 S.W. 414 (Tex. Ct. App. 1891). A "merchantl' is a "person who purchases goods at wholesale for resale at retail.'! Black's Law Dictionary, sunra.
"Merchandise" has also been defined more narrowly to exclude an item which was specially prepared or modified according to the purchaser's specifications. A Missouri court has held that a contract to prepare and set up a monument in a cemetery was a contract for labor and not a contract for "goods, wares, and merchandise" within the state's statute of frauds. Carrollton Monument Co. v. Gearv, 240 S.W. 506 (MO. Ct. App. 1922).
1. A prior version of section 5.06 describes in some detail the sale of eyeglasses as merchandise. A 1925 bill amending the statute regulating optometrists provided that "[plersons who sell spectacles and eye-glasses as merchan- dise" meant "merchants who do not practice optometry, or offer to practice optometry, but who sell spectacles or eye-glasses as merchandise, after they have been selected by their customers alone without the aid from the merchant . . . other than the particular and complete and. ready-to- wear spectacles or eye-glasses selected by the customer in person from trays- or other containers. . . .'I Acts. 1925, 39th Leg., ch. 31, 5 13-c, at 151.
Pa 5648 Dr. Clinton DeWolfe - Page 4 (JM-1081)
Texas courts have also recognized this distinction in defining "merchandise*' under the Bulk Sales Law, which applies to the sale in bulk of a stock of merchandise, or merchandise and fixtures pertaining to conducting said business otherwise than in the ordinary course of trade.2 Hobart MFG. Co. v. Jovce & Mitchell, 4 S.W.2d 185, 187 (Tex. Civ. App. - Fort Worth 1928, no writ). In Axtell Co. v. Word -, 29 S.W.2d 421 (Tax. Civ. App. - Austin 1930, no writ), the court stated that Texas courts have construed the Bulk Sales Act as not applying to "stock on hand used as incidental to or in connection with labor or mechanical skill." The court further stated as follows:
The words, 'stock of merchandise,* as used in the statute have been uniformly construed by our courts to be used in the common and ordinary acceptation of those terms, and to mean the goods, wares, or chattels which a merchant holds for sale at retail for profit, and which are constantly going out of the store . . . and being replaced by other goods without any appreciable change of character by the labor or mechanical skill of purchaser [i.e., of the person who purchased the goods for resale].
29 S.W.Zd 421.
Thus ltmerchandisellin some statutes does not include items which must be changed and adapted to the customer's individual requirements. We believe that the Texas Optometry Act uses "merchandise" in this sense. In section 5.17, "ready-to-wear spectacles and eyeglasses" sold "as merchandise at retail" are mass-produced goods not adapted to the customer's vision. This language does not include eyeglasses and spectacles that may only be sold on a prescription. The same definition of "merchandise" also applies to the prohibition in article 4552-5.06, V.T.C.S., against giving away eyeglasses as an inducement to sell a
2. The Bulk Sales Act has been repealed and replaced by the Uniform Commercial Code -- Bulk Transfers, Bus. & Corn. Code ch. 6. We have cited cases which construe the Bulk Sales Law to illustrate a possible definition of "merchandise." We express no opinion on whether the frames and lenses which a dispensing optician adapts in accordance with written prescriptions would be "merchandise" within the Bulk Transfers provisions.
p. 5649 Dr. Clinton DeWolfe - Page 5 (JM-1081)
book, paper, magazine, work of literature or art, "or any item of merchandise." Article 4552-5.06 does not prohibit a dispensing optician or ophthalmic dispenser from giving away a second pair of prescription eyeglasses as a means of motivating people to have him fill the prescription for the first pair.
Two other provisions of the Texas Optometry Act show that a "mercantile establishment" does not include the business premises of a dispensing optician. Article 4552-5.14 regulates the business practices of an Optometrist "who leases space from and practices optometry on the premises of, a mercantile establishment.1' V.T.C.S. art. 4552-5.14(a). See senerally Attorney General Opinion O-1588 (1939) (practice by optometrists in jewelry stores). It requires the leased space to be separated from space used by other occupants of the premises and prohibits operation of the optometrist's practice as a department of the mercantile establishment. V.T.C.S. art. 4552-5.14(d)-(g).
Article 4552-5.15, V.T.C.S., governs the business rela- tionships of optometrists with dispensing opticians. It permits a dispensing optician to lease space to an -. optometrist. It also provides for complete separation between the premises of an optometrist and a dispensing optician if both occupy space in the same building. See Attorney General Opinion MW-292 (1981).
Both provisions deal with the leasing of premises and with separating an optometrist's business from other types of business conducted in the same building. The leqisla- ture's adoption of separate provisions to govern the optometrist's relationship to "mercantile establishments" and to "dispensing opticians" indicates that a dispensing optician does not operate a tUmercantile establishment." These provisions carry out and support the distinction between "merchandise" and prescription glasses and contact lenses which we have found in article 4552-5.06, V.T.C.S.
Moreover, this situation appears to be an appropriate case for applying the maxim of ejusdem qeneris. Where general words follow specific words in a statutory enumera- tion, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words. Emolovees' Casualtv Co. v. Stewart Abstract Co., 17 S.W.2d 781 (Tex. Comm'n App. 1929).
The first version of article 4552-5.06 was adopted in 1925. Acts 1925, 39th Leg., ch. 31, at 149. We are unaware of any history evidencing the legislature's intent in adopting this provision, although its language suggests that
P. 5650 Dr. Clinton DeWolfe - Page 6 (JM-1081)
it was directed at a practice of giving away eyeglasses with the purchase of reading material. It is however reasonable to assume that the legislature adopted this provision to protect members of the public from receiving eyeglasses with lenses that would not correct their defects in vision. The provision of two pairs of prescription glasses for the price of one does not violate this policy.
Since we have concluded that "buy-one, get-one-free" sales do not violate article 4552-5.06, V.T.C.S., we need not answer your other questions, which are contingent on a contrary determination.
SUMMARY
The Texas Optometry Act does not prohibit a dispensing optician or an ophthalmic dis- penser from giving a second free pair of prescription spectacles, eyeglasses, or con- tact lenses to a person who purchases a first pair. Article 4552-5.06, V.T.C.S., which prohibits any person from giving spectacles or eyeglasses as an inducement to sell "any book, paper, magazine, or any work of litera- ture or art, or any item of merchandise," does not prohibit "buy-one, get-one-free" sales of prescription glasses by dispensing opticians or ophthalmic dispensers.
JIM MATTOX Attorney General of Texas
WARY KELLER First Assistant Attorney General
LOU MCCREARY Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General
RICK GILPIN Chairman, Opinion Committee
Prepared by Susan L. Garrison Assistant Attorney General
P. 5651 | 02-18-2017 | [
"Clinton DeWolfe, O.D. Opinion No. JM-1081 Chairman Texas Optometry Board Re: Whether the Texas Optometry P. 0. Box 988 Act prohibits an optician from Blanco, Texas 78606 giving another free pair of spectacles, eyeglasses or contact lenses to a person who purchases a first pair (RQ-1667) Dear Dr. DeWolfe: You inform us that opticians and national laboratories have recently offered a free pair of eyeglasses or contact lenses to purchasers of a first pair of glasses or contact lenses. You ask whether these \"buy-one, get-one-free\" sales violate section 5.06 of the Texas Optometry Act and a board rule based on that section. Section 5.06 provides as follows: It shall be unlawful for any person in this state to give, or cause to be given, deliver, or cause to be delivered, in any manner whatsoever, any spectacles or eye- glasses, separate or together, as a prize or premium, or as an inducement to sell any book, paper, magazine or any work of literature or art, or anv item of merchandise whatsoever.",
"(Emphasis added.) V.T.C.S. art. 4552-5.06. A person who violates any provi- sion of the Texas Optometry Act is guilty of a misdemeanor punishable by a fine, confinement in the county jail, or both. V.T.C.S. art. 4552-5.19. An Optometry Board rule provides that \"no person in this state shall give . . . any contact lenses as a prize or premium, or as an inducement to sell any book, paper, magazine, or any work of literature or art, or any item of merchandise whatsoever.\" 22 T.A.C.",
"5 273.3. The rule does not state that it is unlawful to give contact lenses as a premium to sell an item of merchandise. P. 5646 Dr. Clinton DeWolfe - Page 2 (JM-1081) You ask whether section 5.06 and board rule 273.3 prohibit giving a second pair of spectacles, eyeglasses, or contact lenses to a person who purchases a first pair. If we conclude that this practice is prohibited, you ask whether it would also prohibit a gift of free frames or free lenses as an inducement to sell eyeglasses, and a sale of eyeglasses, frames, or lenses for one cent or another insignificant amount. Article 4552-1.02, V.T.C.S., provides in part: The 'practice of optometry' is defined to be the employment of objective or subjective means . .",
". for the purpose of ascertaining and measuring the powers of vision of the human eye, and fitting lenses or prisms to correct or remedy any defect or abnormal condition of vision. . . T V.T.C.S. art. 4552-1.02(l). A \"dispensing optician\" or *'opthalmic dispenser\" is defined as Ita person not licensed as an optometrist or physician who sells or delivers to the consumer fabricated and finished spectacle lenses, frames, contact lenses, or other opthalmic devices prescribed by an optometrist or physician.\" V.T.C.S. art. 4552-1.02(5). See V.T.C.S. art. 4552-1.02(3)(A) (ophthalmic dispenser is not prohibited from making facial measurements to dispense or adapt ophthalmic prescriptions or lenses, products and accessories). 4E also Williamson v. Lee Ontical of Oklahoma, 348 U.S. 486 (1955) (an optician iS qualified to grind lenses, fili prescriptions, and fit frames). A l%wo-for-onel~ sale of eyeglasses by a dispensing optician may merely be a pricing policy which gives a volume discount. We will not, however, deal with your question in terms of pricing policies that may be adopted by persons who sell prescription glasses. Instead, we will consider whether a pair of spectacles, eyeglasses, or contact lenses is an \"item of merchandise\" within section 5.06 of the act.",
"Article 4552 does not define the term \"merchandise,\" but it uses this word in other provisions. When the same word is used more than once in a statute, it will be given the same meaning, unless a different intent is indicated. Brown v. Darden, 50 S.W.2d 261 (Tex. 1932). Article 4552-5.17, V.T.C.S., provides in part: P. 5647 Dr. Clinton DeWolfe - Page 3 (JM-1081) Nothing in this Act shall be construed to apply to persons who sell ready-to-wear spectacles and eyeglasses as merchandise at retail .",
". . . (Emphasis added.) V.T.C.S. art. 4552-5.17. The definition of the \"practice of optometry\" includes a similar provision on selling ready-to- wear spectacles or eyeglasses as merchandise. V.T.C.S. art. 4552-1.02(l). These provisions apply to the sale of mass-produced items like non-prescription sunglasses and eyeglasses that are essentially magnifying glasses in a frame. These items are not custom-made to correct the wearer's defects in vision and no special order is necessary to buy them.1 t'Merchandisel'has been broadly defined as \"all goods which merchants usually buy and sell, whether at wholesale or retail; wares and commodities such as are ordinarily the objects of trade and commerce.\"",
"Black's Law Dictionary 890 (5th ed. 1979); see also Hein v. O'Connor, 15 S.W. 414 (Tex. Ct. App. 1891). A \"merchantl' is a \"person who purchases goods at wholesale for resale at retail.'! Black's Law Dictionary, sunra. \"Merchandise\" has also been defined more narrowly to exclude an item which was specially prepared or modified according to the purchaser's specifications. A Missouri court has held that a contract to prepare and set up a monument in a cemetery was a contract for labor and not a contract for \"goods, wares, and merchandise\" within the state's statute of frauds. Carrollton Monument Co. v. Gearv, 240 S.W. 506 (MO. Ct. App. 1922). 1.",
"A prior version of section 5.06 describes in some detail the sale of eyeglasses as merchandise. A 1925 bill amending the statute regulating optometrists provided that \"[plersons who sell spectacles and eye-glasses as merchan- dise\" meant \"merchants who do not practice optometry, or offer to practice optometry, but who sell spectacles or eye-glasses as merchandise, after they have been selected by their customers alone without the aid from the merchant . . . other than the particular and complete and. ready-to- wear spectacles or eye-glasses selected by the customer in person from trays- or other containers.",
". . . 'I Acts. 1925, 39th Leg., ch. 31, 5 13-c, at 151. Pa 5648 Dr. Clinton DeWolfe - Page 4 (JM-1081) Texas courts have also recognized this distinction in defining \"merchandise*' under the Bulk Sales Law, which applies to the sale in bulk of a stock of merchandise, or merchandise and fixtures pertaining to conducting said business otherwise than in the ordinary course of trade.2 Hobart MFG. Co. v. Jovce & Mitchell, 4 S.W.2d 185, 187 (Tex.",
"Civ. App. - Fort Worth 1928, no writ). In Axtell Co. v. Word -, 29 S.W.2d 421 (Tax. Civ. App. - Austin 1930, no writ), the court stated that Texas courts have construed the Bulk Sales Act as not applying to \"stock on hand used as incidental to or in connection with labor or mechanical skill.\" The court further stated as follows: The words, 'stock of merchandise,* as used in the statute have been uniformly construed by our courts to be used in the common and ordinary acceptation of those terms, and to mean the goods, wares, or chattels which a merchant holds for sale at retail for profit, and which are constantly going out of the store .",
". . and being replaced by other goods without any appreciable change of character by the labor or mechanical skill of purchaser [i.e., of the person who purchased the goods for resale]. 29 S.W.Zd 421. Thus ltmerchandisellin some statutes does not include items which must be changed and adapted to the customer's individual requirements. We believe that the Texas Optometry Act uses \"merchandise\" in this sense. In section 5.17, \"ready-to-wear spectacles and eyeglasses\" sold \"as merchandise at retail\" are mass-produced goods not adapted to the customer's vision. This language does not include eyeglasses and spectacles that may only be sold on a prescription. The same definition of \"merchandise\" also applies to the prohibition in article 4552-5.06, V.T.C.S., against giving away eyeglasses as an inducement to sell a 2.",
"The Bulk Sales Act has been repealed and replaced by the Uniform Commercial Code -- Bulk Transfers, Bus. & Corn. Code ch. 6. We have cited cases which construe the Bulk Sales Law to illustrate a possible definition of \"merchandise.\" We express no opinion on whether the frames and lenses which a dispensing optician adapts in accordance with written prescriptions would be \"merchandise\" within the Bulk Transfers provisions. p. 5649 Dr. Clinton DeWolfe - Page 5 (JM-1081) book, paper, magazine, work of literature or art, \"or any item of merchandise.\"",
"Article 4552-5.06 does not prohibit a dispensing optician or ophthalmic dispenser from giving away a second pair of prescription eyeglasses as a means of motivating people to have him fill the prescription for the first pair. Two other provisions of the Texas Optometry Act show that a \"mercantile establishment\" does not include the business premises of a dispensing optician. Article 4552-5.14 regulates the business practices of an Optometrist \"who leases space from and practices optometry on the premises of, a mercantile establishment.1' V.T.C.S. art. 4552-5.14(a). See senerally Attorney General Opinion O-1588 (1939) (practice by optometrists in jewelry stores). It requires the leased space to be separated from space used by other occupants of the premises and prohibits operation of the optometrist's practice as a department of the mercantile establishment. V.T.C.S. art. 4552-5.14(d)-(g).",
"Article 4552-5.15, V.T.C.S., governs the business rela- tionships of optometrists with dispensing opticians. It permits a dispensing optician to lease space to an -. optometrist. It also provides for complete separation between the premises of an optometrist and a dispensing optician if both occupy space in the same building. See Attorney General Opinion MW-292 (1981). Both provisions deal with the leasing of premises and with separating an optometrist's business from other types of business conducted in the same building. The leqisla- ture's adoption of separate provisions to govern the optometrist's relationship to \"mercantile establishments\" and to \"dispensing opticians\" indicates that a dispensing optician does not operate a tUmercantile establishment.\" These provisions carry out and support the distinction between \"merchandise\" and prescription glasses and contact lenses which we have found in article 4552-5.06, V.T.C.S. Moreover, this situation appears to be an appropriate case for applying the maxim of ejusdem qeneris. Where general words follow specific words in a statutory enumera- tion, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.",
"Emolovees' Casualtv Co. v. Stewart Abstract Co., 17 S.W.2d 781 (Tex. Comm'n App. 1929). The first version of article 4552-5.06 was adopted in 1925. Acts 1925, 39th Leg., ch. 31, at 149. We are unaware of any history evidencing the legislature's intent in adopting this provision, although its language suggests that P. 5650 Dr. Clinton DeWolfe - Page 6 (JM-1081) it was directed at a practice of giving away eyeglasses with the purchase of reading material. It is however reasonable to assume that the legislature adopted this provision to protect members of the public from receiving eyeglasses with lenses that would not correct their defects in vision. The provision of two pairs of prescription glasses for the price of one does not violate this policy. Since we have concluded that \"buy-one, get-one-free\" sales do not violate article 4552-5.06, V.T.C.S., we need not answer your other questions, which are contingent on a contrary determination. SUMMARY The Texas Optometry Act does not prohibit a dispensing optician or an ophthalmic dis- penser from giving a second free pair of prescription spectacles, eyeglasses, or con- tact lenses to a person who purchases a first pair. Article 4552-5.06, V.T.C.S., which prohibits any person from giving spectacles or eyeglasses as an inducement to sell \"any book, paper, magazine, or any work of litera- ture or art, or any item of merchandise,\" does not prohibit \"buy-one, get-one-free\" sales of prescription glasses by dispensing opticians or ophthalmic dispensers.",
"JIM MATTOX Attorney General of Texas WARY KELLER First Assistant Attorney General LOU MCCREARY Executive Assistant Attorney General JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General RICK GILPIN Chairman, Opinion Committee Prepared by Susan L. Garrison Assistant Attorney General P. 5651"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4130388/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 1624482
Decision Date: 06/17/16 Archive Date: 06/29/16
DOCKET NO. 11-21 449 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for tinnitus.
2. Entitlement to service connection for bilateral hearing loss.
3. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder or as due to herbicide exposure.
4. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as due to herbicide exposure.
REPRESENTATION
Veteran represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
T. Berryman, Associate Counsel
INTRODUCTION
The Veteran had active military service from June 1969 to June 1971, to include service in the Republic of Vietnam.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
In February 2015, the Board denied the claims that are currently on appeal, which the Veteran appealed to the United States Court of Appeals for Veterans Claims ("CAVC" or "the Court"). In December 2015, the Court issued an order that vacated the Board decision and remanded the claims for compliance with a Joint Motion for Remand (JMR).
Of note, the JMR was in part predicated on the fact that a FOIA request had not been processed by the Board prior to the decision being issued. The FOIA request was completed in May 2016.
The issues of entitlement to service connection for bilateral hearing loss, hypertension, and bilateral lower extremity peripheral neuropathy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDING OF FACT
The Veteran began experiencing symptoms of tinnitus while in service, and he has continued to experience them since separation from service.
CONCLUSION OF LAW
The criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015).
REASONS AND BASES FOR FINDING AND CONCLUSION
In order to establish entitlement to service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease of injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).
The Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the primary role of the Board in adjudicating the tinnitus claim is to assess the credibility of the Veteran's statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).
In this case, the Board finds no reason to doubt the Veteran's credibility. Given this conclusion, the Board will review his statements as to the etiology of his tinnitus.
The Veteran's military records show that he had service in the Republic of Vietnam. He reported that he was exposed to combat noises that that he has had tinnitus since his service. The Veteran was granted service connection for PTSD by a February 2013 rating decision for events that occurred while in Vietnam.
The Veteran has credibly reported that he began experiencing ringing while in service and that it continues to the present day. The Veteran has been diagnosed with tinnitus.
As such, the criteria for service connection for tinnitus have been met and the Veteran's claim is granted.
In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error).
ORDER
Service connection for tinnitus is granted.
REMAND
Regarding the service connection claim for hearing loss, the Veteran contends that the previous VA examiner did not comply with the June 2014 remand directives. Specifically, the examiner was to elicit a history regarding the Veteran's combat experiences while in Vietnam and consider the Veteran's combat noise exposure. However, the VA examiner did not mention the effects of combat noise exposure in the opinion. As such, a remand is required for compliance with the Board's prior June 2014 remand. See Stegall v. West, 11 Vet. App. 268 (1998).
Regarding the service connection claim for hypertension, the Veteran asserts that his hypertension is due to herbicide exposure. Alternatively, the Veteran asserts that his hypertension was either caused or aggravated by his service-connected PTSD. Of note, the National Academy of Sciences (NAS) Institute of Medicine's "Veterans and Agent Orange: Update 2010" concluded that there is limited or suggestive evidence of an association between exposure to Agent Orange and hypertension. However, a medical opinion has not addressed the possibility that the Veteran's hypertension was caused by his presumed herbicide exposure.
VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, new VA examination is necessary to adjudicate the service connection claim for hypertension.
Regarding the service connection claim for bilateral lower extremity peripheral neuropathy, the Veteran asserts that his bilateral lower extremity peripheral neuropathy is due to herbicide exposure. While a Nehmer examination was ordered in September 2014, it was not obtained. Per the JMR, a new medical opinion is necessary to adjudicate the service connection claim for bilateral lower extremity peripheral neuropathy.
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for a VA audiologic examination. The examiner should determine whether it is at least as likely as not (50 percent or greater) that the Veteran's bilateral hearing loss either began during or was otherwise caused by his military service. Why or why not? In so doing, the examiner should elicit and consider the Veteran's lay statements pertaining to military noise exposure.
The examiner should also address the relevance, if any, of studies which the Veteran's representative suggest the possibility of later onset hearing loss. These studies include: Sharon G. Kujawa & M. Charles Liberman, Acceleration of Age-Related Hearing Loss by Early Noise Exposure: Evidence of a Misspent Youth, 26 (7) Journal of Neurosci 2115, 2115, 2121-22 (2006) (suggesting early noise-exposure may make ears more vulnerable to aging); Jenica Su-ern Yong & De-Yun Wang, Impact of Noise On Hearing in the Military, Military Medical Research (2015) 2:6 (noting that most people with noise induced hearing
loss do not notice their deficiency until communication is affected); Sharon g. Kujawa & M. Charles Libermann,
Adding Insult to Injury: Cochlear Nerve Degeneration After "Temporary" Noise-Induced Hearing Loss, 29(45)
Journal of Neurosci 14077, 14083-84 (2009) (concluding that noise exposure is more dangerous than previously
thought); Noise Induced Hearing Loss. NIDCD Fact Sheet, Hearing and Balance, National Institute of deafness and Other Communication Disorders, available at https://www.nidcd.nih.gov/order (noting that noise-induced hearing loss often is not noticeable to people for a long time because it is often gradual).
2. Schedule the Veteran for a VA examination(s) to assist in determining the nature and etiology of the diagnosed hypertension and bilateral lower extremity peripheral neuropathy . The claims file should be provided to the examiner. The examiner should offer the following opinions:
a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension either began during or was otherwise caused by his military service? Why or why not?
b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was caused by his presumed exposure to herbicide agents, including Agent Orange, during active service? Why or why not?
c) Is it at least as likely as not (50 percent or greater) that the Veteran's hypertension was either caused or aggravated (i.e. permanently made worse beyond the natural progression of the disability) by his service connected posttraumatic stress disorder (PTSD)? Why or why not?
d) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral lower extremity peripheral neuropathy either began during or was otherwise caused by his military service? Why or why not?
e) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral lower extremity peripheral neuropathy was caused by his presumed exposure to herbicide agents, including Agent Orange, during active service? Why or why not?
In answering this question, the VA examiner should note that the Veteran is presumed to have been exposed to herbicide agents during service. The examiner should discuss the relevance, if any, of the findings by the Committee to Review the Health Effects in Vietnam Veterans of Exposure to Herbicides 2010 report "Veterans and Agent Orange: Update 2010" that continued to categorize hypertension as having limited or suggestive evidence of association with herbicide exposure (meaning that epidemiologic evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence). The examiner should provide a rationale and basis for all opinions expressed.
If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation.
Note: "At least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.
Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.
2. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
MATTHEW W. BLACKWELDER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 06-17-2016 | [
"Citation Nr: 1624482 Decision Date: 06/17/16 Archive Date: 06/29/16 DOCKET NO. 11-21 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder or as due to herbicide exposure. 4. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as due to herbicide exposure.",
"REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active military service from June 1969 to June 1971, to include service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2015, the Board denied the claims that are currently on appeal, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (\"CAVC\" or \"the Court\"). In December 2015, the Court issued an order that vacated the Board decision and remanded the claims for compliance with a Joint Motion for Remand (JMR). Of note, the JMR was in part predicated on the fact that a FOIA request had not been processed by the Board prior to the decision being issued. The FOIA request was completed in May 2016. The issues of entitlement to service connection for bilateral hearing loss, hypertension, and bilateral lower extremity peripheral neuropathy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).",
"FINDING OF FACT The Veteran began experiencing symptoms of tinnitus while in service, and he has continued to experience them since separation from service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION In order to establish entitlement to service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease of injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet.",
"App. 370 (2002). As such, the primary role of the Board in adjudicating the tinnitus claim is to assess the credibility of the Veteran's statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Board finds no reason to doubt the Veteran's credibility. Given this conclusion, the Board will review his statements as to the etiology of his tinnitus.",
"The Veteran's military records show that he had service in the Republic of Vietnam. He reported that he was exposed to combat noises that that he has had tinnitus since his service. The Veteran was granted service connection for PTSD by a February 2013 rating decision for events that occurred while in Vietnam. The Veteran has credibly reported that he began experiencing ringing while in service and that it continues to the present day. The Veteran has been diagnosed with tinnitus. As such, the criteria for service connection for tinnitus have been met and the Veteran's claim is granted. In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error).",
"ORDER Service connection for tinnitus is granted. REMAND Regarding the service connection claim for hearing loss, the Veteran contends that the previous VA examiner did not comply with the June 2014 remand directives. Specifically, the examiner was to elicit a history regarding the Veteran's combat experiences while in Vietnam and consider the Veteran's combat noise exposure. However, the VA examiner did not mention the effects of combat noise exposure in the opinion. As such, a remand is required for compliance with the Board's prior June 2014 remand. See Stegall v. West, 11 Vet. App. 268 (1998). Regarding the service connection claim for hypertension, the Veteran asserts that his hypertension is due to herbicide exposure.",
"Alternatively, the Veteran asserts that his hypertension was either caused or aggravated by his service-connected PTSD. Of note, the National Academy of Sciences (NAS) Institute of Medicine's \"Veterans and Agent Orange: Update 2010\" concluded that there is limited or suggestive evidence of an association between exposure to Agent Orange and hypertension. However, a medical opinion has not addressed the possibility that the Veteran's hypertension was caused by his presumed herbicide exposure. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App.",
"79 (2006). As such, new VA examination is necessary to adjudicate the service connection claim for hypertension. Regarding the service connection claim for bilateral lower extremity peripheral neuropathy, the Veteran asserts that his bilateral lower extremity peripheral neuropathy is due to herbicide exposure. While a Nehmer examination was ordered in September 2014, it was not obtained. Per the JMR, a new medical opinion is necessary to adjudicate the service connection claim for bilateral lower extremity peripheral neuropathy. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiologic examination. The examiner should determine whether it is at least as likely as not (50 percent or greater) that the Veteran's bilateral hearing loss either began during or was otherwise caused by his military service.",
"Why or why not? In so doing, the examiner should elicit and consider the Veteran's lay statements pertaining to military noise exposure. The examiner should also address the relevance, if any, of studies which the Veteran's representative suggest the possibility of later onset hearing loss. These studies include: Sharon G. Kujawa & M. Charles Liberman, Acceleration of Age-Related Hearing Loss by Early Noise Exposure: Evidence of a Misspent Youth, 26 (7) Journal of Neurosci 2115, 2115, 2121-22 (2006) (suggesting early noise-exposure may make ears more vulnerable to aging); Jenica Su-ern Yong & De-Yun Wang, Impact of Noise On Hearing in the Military, Military Medical Research (2015) 2:6 (noting that most people with noise induced hearing loss do not notice their deficiency until communication is affected); Sharon g. Kujawa & M. Charles Libermann, Adding Insult to Injury: Cochlear Nerve Degeneration After \"Temporary\" Noise-Induced Hearing Loss, 29(45) Journal of Neurosci 14077, 14083-84 (2009) (concluding that noise exposure is more dangerous than previously thought); Noise Induced Hearing Loss. NIDCD Fact Sheet, Hearing and Balance, National Institute of deafness and Other Communication Disorders, available at https://www.nidcd.nih.gov/order (noting that noise-induced hearing loss often is not noticeable to people for a long time because it is often gradual).",
"2. Schedule the Veteran for a VA examination(s) to assist in determining the nature and etiology of the diagnosed hypertension and bilateral lower extremity peripheral neuropathy . The claims file should be provided to the examiner. The examiner should offer the following opinions: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension either began during or was otherwise caused by his military service? Why or why not? b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was caused by his presumed exposure to herbicide agents, including Agent Orange, during active service? Why or why not? c) Is it at least as likely as not (50 percent or greater) that the Veteran's hypertension was either caused or aggravated (i.e. permanently made worse beyond the natural progression of the disability) by his service connected posttraumatic stress disorder (PTSD)? Why or why not?",
"d) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral lower extremity peripheral neuropathy either began during or was otherwise caused by his military service? Why or why not? e) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral lower extremity peripheral neuropathy was caused by his presumed exposure to herbicide agents, including Agent Orange, during active service? Why or why not? In answering this question, the VA examiner should note that the Veteran is presumed to have been exposed to herbicide agents during service. The examiner should discuss the relevance, if any, of the findings by the Committee to Review the Health Effects in Vietnam Veterans of Exposure to Herbicides 2010 report \"Veterans and Agent Orange: Update 2010\" that continued to categorize hypertension as having limited or suggestive evidence of association with herbicide exposure (meaning that epidemiologic evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence).",
"The examiner should provide a rationale and basis for all opinions expressed. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. Note: \"At least as likely as not\" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term \"aggravated\" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.",
"2. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals 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 |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . The present office action is in response to an application filed on august 11/18/2021, wherein claims 1-17 and 19-21 have been filed with this application. Hence claims 1-17 and 19-21 are pending and ready for examination.
Information Disclosure Statement The information disclosure statement (IDS) submitted on 09/23/2021 and 11/18/2021 were filed after the mailing date of the Non-Final on 11/10/2020. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner. Double Patenting The applicant has filed Terminal Disclaimer (TD), hence the nonstatutory double patenting rejection has been withdrawn. Claim Rejections - 35 USC § 112 The rejection under 35 U.S.C. 112(b) have been withdrawn. Response to Arguments Applicant’s arguments with respect to claims 1-17 and 18-21 have been fully considered but are not persuasive. The reasons are set forth below: Applicant’s arguments and Examiner’s response:
(i) Examiner’s response 1: The examiner respectfully disagrees. The examiner interpret each claim limitations under the broadest reasonable interpretation (BRI). In response to the argument the examiner’s rejection is based on the recited claim interpretation. And the applicant did not provide any definition of said state information in the body of the claims. And there was none of the statement that put bar on “link state information” to be considered as a “state information” as it was recited in the claims. Therefore, the arguments are traversed. Hence the arguments are not persuasive. (II) Applicant’s arguments 1: Applicant’s arguments in page 5-6, recites, “The Office Action also alleged Medved describes "the second state information comprising second service availability information indicating the availability of the service through the first router," as recited in claim 1. In particular, the Office Action alleged Medved paragraph [0065] describes these features because the "link delays or load" of router interfaces for routers as described in Medved is equivalent to the "second service information." As similarly described above, Medved paragraph [0065] describes delays or load of a link. The delay of a link or a load of a link is not the same as the availability of a service, as set forth in claim 1. Accordingly, the cited paragraphs of Medved do not describe or suggest "the second state information comprising second service availability information indicating the availability of the service through the first router," as recited in claim 1.”...
(III) Applicant’s arguments 1: Applicant’s arguments in page 6, recites, “In general, Agarwal paragraphs [0038]-[0041] describe a first topology (e.g., DAG 41) and a second, misconfigured topology (e.g., DAG 510). Aggarwal paragraph [0056] describes a node notifying a computing device of any neighbor list changes or preferred/selected parent node changes. While Agarwal states "the corresponding node may notify the computing device of neighbor list or preferred/selected parent change," at best describes a change in topology state information, the change is not between the "first state information comprising first service availability information indicating an availability of a service through the first router and first service topology information" and a "second state information comprising second service availability information indicating the availability of the service through the first router and second service topology information," as recited in claim 1”... (iii) Examiner’s response 1: The examiner respectfully disagrees. The examiner interpret each claim limitations under the broadest reasonable interpretation (BRI). In reference to the arguments stated above, the examiner did not intend to reject the limitation, “a second topology” using Agarwal, however, said limitation was rejected in view of Medved, see para [0065], However, Medved explicitly does not teach, “responsive to the determination of the at least one change between the first state information and the second state information, publish to a second router of the plurality of routers that is subscribed to the server to receive 2Application Number 16/410,122Response to Final Office Action mailed November 10, 2020changes ....”, Agarwal teaches, responsive to the All the remaining arguments are based on the arguments above and are responded to in full.
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, 3, 6, 8-12, 14, 16-17, 19-21 are rejected under 35 U.S.C. 103 as being unpatentable over Medved et al (US 2016/0352631 A1), hereinafter, “Medved” in view of Agarwal et al (US 2013/0191688 A1), hereinafter, “Agarwal”. Regarding claim 1, Medved discloses: a server comprising one or more processors (fig 1, “ALTO Server 12”, para [0015] and [0029], where, in para [0015], the server comprising a control unit having one or more processors and a topology information base); and a plurality of routers (fig 1, para [0037], includes plurality of routers, such as Router 17 and Internal Routers 8A and 8B); wherein a first router of the plurality of routers is configured to transmit, to the server, first state information for the first router (para [0054], where, the link state protocols allows routes to exchange and accumulate “link state information” (Examiner’s Note: The examiner interprets that Link State information may have multiple states e.g., LSA type I informed that state is the router and LSA type II indicate a network state, further the state could be available or unavailable, as per OSPF standard (UP or Down), equivalent to “first state information”) and “RR 17” (equivalent to “first router”) transmit as an routing information to the neighbors including the ALTO Server 12, see further, para [0055]-[0057]), the first state information comprising first service availability information indicating an availability of a service through the first router (para [0054], where, the link state information “describing the various communication links that interconnect routers within the AS 4A. With a typical the link state routing protocol, the routers exchange information related to available interfaces, metrics and other variables associated with network links. This allows a router to construct its own topology or map of the network. Metrics may include, for example, latency, link throughput, “link availability and reliability” (equivalent to “first service available”), path length, load, and communication cost (i.e., price). These metrics are typically expressed as simple integers”), and first service topology information indicating a first network topology for reaching the service via the first router (fig 1, para [0055], where, “the receiving routers may construct and maintain their own “network topologies” (equivalent to “first service topology”) in a routing table (e.g., a link-state database (LSDB)) using the link information exchanged via the LSAs”); and wherein the one or more processors of the server are configured to determine, at least one change between the first state information and second state information for the first router stored by the server (para [0065], where, ALTO Server 12 may receive update route/message indicating path information regarding various links and path interconnecting router of AS 4A when computing ALTO costs for PID pairs of the intra-AS network map. Other parameters for AS 4A incorporated by ALTO server 12 may include “link delays or load on router” (equivalent to “change between first state and second state information”) interfaces for routers of AS 4A. Some parameters may be received from sources external to AS 4A, such as application or other content servers attached to AS 4A in one of prefixes 20); the second state information comprising second service availability information indicating the availability of the service through the first router (fig 1, para [0065], where, “Other parameters for AS 4A incorporated by ALTO server 12 may include “link delays or load” (equivalent to “second service information”) on router interfaces for routers of AS 4A. Some parameters may be received from sources external to AS 4A” and these information is being received by the ALTO Server 12 via “RR 17” equivalent to “first router”); and Medved does not explicitly teach: second service topology information indicating the network topology for reaching the service via the first router However, Agarwal in the same field of endeavor teaches: second service topology information indicating the network topology for reaching the service via the first router (Agarwal: fig 4-5, para [0038]-[0041], where, “he two topologies, it can be seen that both DAGs 410 and 510 provide connectivity to all nodes, but the second topology (DAG 510) does not conform to the low-latency objective. As the network administrator can only check connectivity (e.g., using ping) and no latency data is available for conformance check, this issue is very hard to detect since the more optimum path”); responsive to the determination of the at least one change between the first state information and the second state information, publish to a second router of the plurality of routers that is subscribed to the server to receive 2Application Number 16/410,122Response to Final Office Action mailed November 10, 2020changes in the first state information of the first router the at least one change between the first state information and the second state information (Agarwal: para [0056], where, “any time the neighbor list changes (neighbor addition/removal) or else a preferred/selected parent changes, the corresponding node may notify the computing device of this change, such as via an updated reply message 720 (e.g., a topology-change message) sent as a unicast message directly to the computing device. The computing device may validate this change and accept it to update the reference topology”), Therefore, it would have been obvious to one of ordinary skilled in the art before the effective filing date of the invention to use “responsive to the determination of the at least one change between the first state information and the second state information, publish to a second router of the plurality of routers that is subscribed to the server to receive”, taught by Agarwal into Medved in order to compare the current topology to the reference topology to detect anomalies in the current topology. Regarding claims 3 and 14, Medved further teaches: The system of claim 1, wherein the one or more processors of the server are configured to store the first state information with a path tree database of the server (para [0064], where, teaches path tree and para [0069], where, ALTO server 12 may comprise a routing table with which to store routing information), and wherein the first state information further comprises a path definition specifying a hierarchical organization of the first router within the path tree database (para [0111]-[0113], where, “AS_PATH lengths as specified by the two or more remote PIDs of the first inter-AS network map”). Regarding claims 6 and 16, Medved further teaches: 5The system of claim 1, wherein the one or more processors of the server are further configured to store the first state information in a volatile datastore of the server such that the volatile datastore does not retain the first state information after the server is restarted (fig 1, para [0065], where, “Other parameters for AS 4A incorporated by ALTO server 12 may include “link delays or load” (equivalent to “second service information”) on router interfaces for routers of AS 4A. Some parameters may be received from sources external to AS 4A” and these information is being received by the ALTO Server 12 via “RR 17” equivalent to “first router”)). Regarding claim 8, Medved further teaches: The system of claim 1, wherein one or more first interfaces of the first router are configured with one or more first logical groupings of a plurality of logical groupings, each logical grouping of the plurality of logical groupings comprising one or more labels, wherein each label of the one or more labels is associated with a different Layer-3 network, and wherein service topology information of the first state information comprises a route for one or more second logical groupings of the plurality of logical groupings with which the one or more first interfaces are not configured (para [0051] and para [0090]). Regarding claim 9, Medved further teaches: The system of claim 1, wherein first state information further comprises at least one path metric for a route to the service (para [0007]-[0008], where, the link or path metrics are distance or throughput). Regarding claims 10 and 17, Medved further teaches: The system of claim 1, wherein the one or more processors of the server are further configured to receive, from the second router, a subscription to the changes in the first state information of the first router (para [0103], where, “ master ALTO server 38B uses inter-PID costs computed from a perspective of an AS from which network traffic will originate. For PID pairs in which both members of the pair are local to a particular one of the inter-AS network maps, master ALTO server 38B uses the inter-PID costs specified in the corresponding inter-AS cost map”). Regarding claim 11, Medved further teaches: The system of claim 1, wherein the server is comprising a third router of the plurality of routers that is different from the first router and the second router (fig 1, Internal router “8A and 8B” “equivalent to “third router”, para [0054]). Regarding claim 12, the claim includes features identical to the subject matter mentioned in the rejection to claim 1 above. The claims are mere reformulation of claim 1 in order to define the corresponding service and topology information processing apparatus, and the rejection to claim 1 is applied hereto. Additionally, the claim includes a memory and a processor. However, Medved discloses the memory and the processor. Regarding claims 19 and 20, Medved further teaches: The system of claim 1, wherein the one or more processors are further configured to: determine, based on the first service availability information and the first service topology information of the first state information, a route to the service (para [0007], where, “the ALTO server “assembles topology” (equivalent to “first topology”) information representative of the network. Topology information snooped by the ALTO server may include information that describes the intra-AS topology of the AS that includes the receiving ALTO server”); and distribute the route to the second router of the plurality of routers (para [0007], where, “ Based on the routing protocol update messages, the ALTO server assembles topology information representative of the network. Topology information “snooped” equivalent to “distribute” by the ALTO server may include information that describes the intra-AS topology of the AS that includes the receiving ALTO server, as well as information that describes intra-AS topologies of neighboring autonomous systems and of an inter-AS topology of multiple, interconnected autonomous systems”). Regarding claim 21, the claim includes features identical to the subject matter mentioned in the rejection to claim 1 above. The claims are mere reformulation of claim 1 in order to define the .
Claims 2, 4 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Medved et al (US 2016/0352631 A1), hereinafter, “Medved” in view of Agarwal et al (US 2013/0191688 A1), hereinafter, “Agarwal” further in view of Lakes et al (US 2014/0280919 A1), hereinafter, “Lakes”. Regarding claims 2, and 13, neither Medved nor Agarwal explicitly teach, however, Lakes teaches: The system of claim 1, wherein the one or more processors of the server are configured to publish the at least one change between the first state information and the second state information as at least one JavaScript Object Notation (JSON) patch document (Lakes: para [0137], where, “data may be summarized, parsed, etc. For example, consider changing XML into JSON, eliminating extraneous or unnecessary attributes and/or data, etc”). Therefore, it would have been obvious to one of ordinary skilled in the art before the effective filing date of the invention to use “JSON (JavaScript Object Notation)” taught by Lakes into Medved in order to improve the conversion rates for site owner, e.g., publisher. Regarding claim 4, neither Medved nor Agarwal explicitly teach, however, Lakes further teaches: The system of claim 1, wherein the server comprises a first server, and wherein the system further comprises a second server configured to: receive, from the second router, a request for the first state information for the first router; and transmit, to the first server, a proxy request for the first state information for the first router (Lakes: fig 11, para [0109], “he user is redirected to the appropriate item in their geographically specific store, or into the default (e.g., US) store if their location doesn't have a unique store front 1403. Examples of 3XX redirects include: 301 Moved Permanently; 302 Found; 303 See Other; 304 Not Modified; 305 Use Proxy; 306 Switch Proxy; 307 Temporary Redirect; and 308 Resume Incomplete”). Therefore, it would have been obvious to one of ordinary skilled in the art before the effective filing date of the invention to use “JSON (JavaScript Object Notation)” taught by Lakes into Medved in order to improve the conversion rates for site owner, e.g., publisher. Claims 7 are rejected under 35 U.S.C. 103 as being unpatentable over Medved et al (US 2016/0352631 A1), hereinafter, “Medved” in view of Agarwal et al (US 2013/0191688 A1), hereinafter, “Agarwal” further in view of Tung et al (US 2013/0060933 A1), hereinafter, “Tung”. Regarding claim 7, neither Medved nor Agarwal explicitly teach, however, Tung teaches: The system of claim 1, wherein the first state information further comprises a Service Level Agreement (SLA) requirement for the service and an indication of whether or not the service is within the SLA requirement (Tung: para [0029], where, “The CSMS 102 determines when the state information indicates that the SLA requirement is at risk (128) of noncompliance, and in response, the CSMS 102 dynamically adjusts (130) the SLA rule 120 to increase expectation of compliance of the SLA requirement”); Therefore, it would have been obvious to one of ordinary skilled in the art before the effective filing date of the invention to use “SLA requirements” taught by Tung into Medved in order to measure the service quality and service response. Allowable Subject Matter Claims 5 and 15 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
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 NIZAM U AHMED whose telephone number is (571)272-9561. The examiner can normally be reached Mon-Fry, 7:00 AM-6:00 PM PST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Huy Vu can be reached on 571-272-3155. 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.
NIZAM U. AHMED Examiner Art Unit 2461
/KIBROM T HAILU/Primary Examiner, Art Unit 2461 | 2022-03-06T10:25:44 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . The present office action is in response to an application filed on august 11/18/2021, wherein claims 1-17 and 19-21 have been filed with this application. Hence claims 1-17 and 19-21 are pending and ready for examination. Information Disclosure Statement The information disclosure statement (IDS) submitted on 09/23/2021 and 11/18/2021 were filed after the mailing date of the Non-Final on 11/10/2020. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner. Double Patenting The applicant has filed Terminal Disclaimer (TD), hence the nonstatutory double patenting rejection has been withdrawn.",
"Claim Rejections - 35 USC § 112 The rejection under 35 U.S.C. 112(b) have been withdrawn. Response to Arguments Applicant’s arguments with respect to claims 1-17 and 18-21 have been fully considered but are not persuasive. The reasons are set forth below: Applicant’s arguments and Examiner’s response: (i) Examiner’s response 1: The examiner respectfully disagrees. The examiner interpret each claim limitations under the broadest reasonable interpretation (BRI). In response to the argument the examiner’s rejection is based on the recited claim interpretation. And the applicant did not provide any definition of said state information in the body of the claims. And there was none of the statement that put bar on “link state information” to be considered as a “state information” as it was recited in the claims. Therefore, the arguments are traversed. Hence the arguments are not persuasive.",
"(II) Applicant’s arguments 1: Applicant’s arguments in page 5-6, recites, “The Office Action also alleged Medved describes \"the second state information comprising second service availability information indicating the availability of the service through the first router,\" as recited in claim 1. In particular, the Office Action alleged Medved paragraph [0065] describes these features because the \"link delays or load\" of router interfaces for routers as described in Medved is equivalent to the \"second service information.\" As similarly described above, Medved paragraph [0065] describes delays or load of a link. The delay of a link or a load of a link is not the same as the availability of a service, as set forth in claim 1. Accordingly, the cited paragraphs of Medved do not describe or suggest \"the second state information comprising second service availability information indicating the availability of the service through the first router,\" as recited in claim 1.”... (III) Applicant’s arguments 1: Applicant’s arguments in page 6, recites, “In general, Agarwal paragraphs [0038]-[0041] describe a first topology (e.g., DAG 41) and a second, misconfigured topology (e.g., DAG 510). Aggarwal paragraph [0056] describes a node notifying a computing device of any neighbor list changes or preferred/selected parent node changes. While Agarwal states \"the corresponding node may notify the computing device of neighbor list or preferred/selected parent change,\" at best describes a change in topology state information, the change is not between the \"first state information comprising first service availability information indicating an availability of a service through the first router and first service topology information\" and a \"second state information comprising second service availability information indicating the availability of the service through the first router and second service topology information,\" as recited in claim 1”... (iii) Examiner’s response 1: The examiner respectfully disagrees.",
"The examiner interpret each claim limitations under the broadest reasonable interpretation (BRI). In reference to the arguments stated above, the examiner did not intend to reject the limitation, “a second topology” using Agarwal, however, said limitation was rejected in view of Medved, see para [0065], However, Medved explicitly does not teach, “responsive to the determination of the at least one change between the first state information and the second state information, publish to a second router of the plurality of routers that is subscribed to the server to receive 2Application Number 16/410,122Response to Final Office Action mailed November 10, 2020changes ....”, Agarwal teaches, responsive to the All the remaining arguments are based on the arguments above and are responded to in full. 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, 3, 6, 8-12, 14, 16-17, 19-21 are rejected under 35 U.S.C. 103 as being unpatentable over Medved et al (US 2016/0352631 A1), hereinafter, “Medved” in view of Agarwal et al (US 2013/0191688 A1), hereinafter, “Agarwal”. Regarding claim 1, Medved discloses: a server comprising one or more processors (fig 1, “ALTO Server 12”, para [0015] and [0029], where, in para [0015], the server comprising a control unit having one or more processors and a topology information base); and a plurality of routers (fig 1, para [0037], includes plurality of routers, such as Router 17 and Internal Routers 8A and 8B); wherein a first router of the plurality of routers is configured to transmit, to the server, first state information for the first router (para [0054], where, the link state protocols allows routes to exchange and accumulate “link state information” (Examiner’s Note: The examiner interprets that Link State information may have multiple states e.g., LSA type I informed that state is the router and LSA type II indicate a network state, further the state could be available or unavailable, as per OSPF standard (UP or Down), equivalent to “first state information”) and “RR 17” (equivalent to “first router”) transmit as an routing information to the neighbors including the ALTO Server 12, see further, para [0055]-[0057]), the first state information comprising first service availability information indicating an availability of a service through the first router (para [0054], where, the link state information “describing the various communication links that interconnect routers within the AS 4A.",
"With a typical the link state routing protocol, the routers exchange information related to available interfaces, metrics and other variables associated with network links. This allows a router to construct its own topology or map of the network. Metrics may include, for example, latency, link throughput, “link availability and reliability” (equivalent to “first service available”), path length, load, and communication cost (i.e., price). These metrics are typically expressed as simple integers”), and first service topology information indicating a first network topology for reaching the service via the first router (fig 1, para [0055], where, “the receiving routers may construct and maintain their own “network topologies” (equivalent to “first service topology”) in a routing table (e.g., a link-state database (LSDB)) using the link information exchanged via the LSAs”); and wherein the one or more processors of the server are configured to determine, at least one change between the first state information and second state information for the first router stored by the server (para [0065], where, ALTO Server 12 may receive update route/message indicating path information regarding various links and path interconnecting router of AS 4A when computing ALTO costs for PID pairs of the intra-AS network map.",
"Other parameters for AS 4A incorporated by ALTO server 12 may include “link delays or load on router” (equivalent to “change between first state and second state information”) interfaces for routers of AS 4A. Some parameters may be received from sources external to AS 4A, such as application or other content servers attached to AS 4A in one of prefixes 20); the second state information comprising second service availability information indicating the availability of the service through the first router (fig 1, para [0065], where, “Other parameters for AS 4A incorporated by ALTO server 12 may include “link delays or load” (equivalent to “second service information”) on router interfaces for routers of AS 4A. Some parameters may be received from sources external to AS 4A” and these information is being received by the ALTO Server 12 via “RR 17” equivalent to “first router”); and Medved does not explicitly teach: second service topology information indicating the network topology for reaching the service via the first router However, Agarwal in the same field of endeavor teaches: second service topology information indicating the network topology for reaching the service via the first router (Agarwal: fig 4-5, para [0038]-[0041], where, “he two topologies, it can be seen that both DAGs 410 and 510 provide connectivity to all nodes, but the second topology (DAG 510) does not conform to the low-latency objective. As the network administrator can only check connectivity (e.g., using ping) and no latency data is available for conformance check, this issue is very hard to detect since the more optimum path”); responsive to the determination of the at least one change between the first state information and the second state information, publish to a second router of the plurality of routers that is subscribed to the server to receive 2Application Number 16/410,122Response to Final Office Action mailed November 10, 2020changes in the first state information of the first router the at least one change between the first state information and the second state information (Agarwal: para [0056], where, “any time the neighbor list changes (neighbor addition/removal) or else a preferred/selected parent changes, the corresponding node may notify the computing device of this change, such as via an updated reply message 720 (e.g., a topology-change message) sent as a unicast message directly to the computing device.",
"The computing device may validate this change and accept it to update the reference topology”), Therefore, it would have been obvious to one of ordinary skilled in the art before the effective filing date of the invention to use “responsive to the determination of the at least one change between the first state information and the second state information, publish to a second router of the plurality of routers that is subscribed to the server to receive”, taught by Agarwal into Medved in order to compare the current topology to the reference topology to detect anomalies in the current topology. Regarding claims 3 and 14, Medved further teaches: The system of claim 1, wherein the one or more processors of the server are configured to store the first state information with a path tree database of the server (para [0064], where, teaches path tree and para [0069], where, ALTO server 12 may comprise a routing table with which to store routing information), and wherein the first state information further comprises a path definition specifying a hierarchical organization of the first router within the path tree database (para [0111]-[0113], where, “AS_PATH lengths as specified by the two or more remote PIDs of the first inter-AS network map”).",
"Regarding claims 6 and 16, Medved further teaches: 5The system of claim 1, wherein the one or more processors of the server are further configured to store the first state information in a volatile datastore of the server such that the volatile datastore does not retain the first state information after the server is restarted (fig 1, para [0065], where, “Other parameters for AS 4A incorporated by ALTO server 12 may include “link delays or load” (equivalent to “second service information”) on router interfaces for routers of AS 4A. Some parameters may be received from sources external to AS 4A” and these information is being received by the ALTO Server 12 via “RR 17” equivalent to “first router”)). Regarding claim 8, Medved further teaches: The system of claim 1, wherein one or more first interfaces of the first router are configured with one or more first logical groupings of a plurality of logical groupings, each logical grouping of the plurality of logical groupings comprising one or more labels, wherein each label of the one or more labels is associated with a different Layer-3 network, and wherein service topology information of the first state information comprises a route for one or more second logical groupings of the plurality of logical groupings with which the one or more first interfaces are not configured (para [0051] and para [0090]).",
"Regarding claim 9, Medved further teaches: The system of claim 1, wherein first state information further comprises at least one path metric for a route to the service (para [0007]-[0008], where, the link or path metrics are distance or throughput). Regarding claims 10 and 17, Medved further teaches: The system of claim 1, wherein the one or more processors of the server are further configured to receive, from the second router, a subscription to the changes in the first state information of the first router (para [0103], where, “ master ALTO server 38B uses inter-PID costs computed from a perspective of an AS from which network traffic will originate. For PID pairs in which both members of the pair are local to a particular one of the inter-AS network maps, master ALTO server 38B uses the inter-PID costs specified in the corresponding inter-AS cost map”). Regarding claim 11, Medved further teaches: The system of claim 1, wherein the server is comprising a third router of the plurality of routers that is different from the first router and the second router (fig 1, Internal router “8A and 8B” “equivalent to “third router”, para [0054]).",
"Regarding claim 12, the claim includes features identical to the subject matter mentioned in the rejection to claim 1 above. The claims are mere reformulation of claim 1 in order to define the corresponding service and topology information processing apparatus, and the rejection to claim 1 is applied hereto. Additionally, the claim includes a memory and a processor. However, Medved discloses the memory and the processor. Regarding claims 19 and 20, Medved further teaches: The system of claim 1, wherein the one or more processors are further configured to: determine, based on the first service availability information and the first service topology information of the first state information, a route to the service (para [0007], where, “the ALTO server “assembles topology” (equivalent to “first topology”) information representative of the network. Topology information snooped by the ALTO server may include information that describes the intra-AS topology of the AS that includes the receiving ALTO server”); and distribute the route to the second router of the plurality of routers (para [0007], where, “ Based on the routing protocol update messages, the ALTO server assembles topology information representative of the network. Topology information “snooped” equivalent to “distribute” by the ALTO server may include information that describes the intra-AS topology of the AS that includes the receiving ALTO server, as well as information that describes intra-AS topologies of neighboring autonomous systems and of an inter-AS topology of multiple, interconnected autonomous systems”).",
"Regarding claim 21, the claim includes features identical to the subject matter mentioned in the rejection to claim 1 above. The claims are mere reformulation of claim 1 in order to define the . Claims 2, 4 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Medved et al (US 2016/0352631 A1), hereinafter, “Medved” in view of Agarwal et al (US 2013/0191688 A1), hereinafter, “Agarwal” further in view of Lakes et al (US 2014/0280919 A1), hereinafter, “Lakes”. Regarding claims 2, and 13, neither Medved nor Agarwal explicitly teach, however, Lakes teaches: The system of claim 1, wherein the one or more processors of the server are configured to publish the at least one change between the first state information and the second state information as at least one JavaScript Object Notation (JSON) patch document (Lakes: para [0137], where, “data may be summarized, parsed, etc. For example, consider changing XML into JSON, eliminating extraneous or unnecessary attributes and/or data, etc”). Therefore, it would have been obvious to one of ordinary skilled in the art before the effective filing date of the invention to use “JSON (JavaScript Object Notation)” taught by Lakes into Medved in order to improve the conversion rates for site owner, e.g., publisher. Regarding claim 4, neither Medved nor Agarwal explicitly teach, however, Lakes further teaches: The system of claim 1, wherein the server comprises a first server, and wherein the system further comprises a second server configured to: receive, from the second router, a request for the first state information for the first router; and transmit, to the first server, a proxy request for the first state information for the first router (Lakes: fig 11, para [0109], “he user is redirected to the appropriate item in their geographically specific store, or into the default (e.g., US) store if their location doesn't have a unique store front 1403.",
"Examples of 3XX redirects include: 301 Moved Permanently; 302 Found; 303 See Other; 304 Not Modified; 305 Use Proxy; 306 Switch Proxy; 307 Temporary Redirect; and 308 Resume Incomplete”). Therefore, it would have been obvious to one of ordinary skilled in the art before the effective filing date of the invention to use “JSON (JavaScript Object Notation)” taught by Lakes into Medved in order to improve the conversion rates for site owner, e.g., publisher. Claims 7 are rejected under 35 U.S.C. 103 as being unpatentable over Medved et al (US 2016/0352631 A1), hereinafter, “Medved” in view of Agarwal et al (US 2013/0191688 A1), hereinafter, “Agarwal” further in view of Tung et al (US 2013/0060933 A1), hereinafter, “Tung”.",
"Regarding claim 7, neither Medved nor Agarwal explicitly teach, however, Tung teaches: The system of claim 1, wherein the first state information further comprises a Service Level Agreement (SLA) requirement for the service and an indication of whether or not the service is within the SLA requirement (Tung: para [0029], where, “The CSMS 102 determines when the state information indicates that the SLA requirement is at risk (128) of noncompliance, and in response, the CSMS 102 dynamically adjusts (130) the SLA rule 120 to increase expectation of compliance of the SLA requirement”); Therefore, it would have been obvious to one of ordinary skilled in the art before the effective filing date of the invention to use “SLA requirements” taught by Tung into Medved in order to measure the service quality and service response.",
"Allowable Subject Matter Claims 5 and 15 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 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 NIZAM U AHMED whose telephone number is (571)272-9561. The examiner can normally be reached Mon-Fry, 7:00 AM-6:00 PM PST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Huy Vu can be reached on 571-272-3155. 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. NIZAM U. AHMED Examiner Art Unit 2461 /KIBROM T HAILU/Primary Examiner, Art Unit 2461"
]
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Citation Nr: 0916538
Decision Date: 05/04/09 Archive Date: 05/12/09
DOCKET NO. 08-02 862 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to service connection for a left wrist
disability.
2. Entitlement to an initial compensable rating for
residuals of a left inferior pubic ramus fracture.
ATTORNEY FOR THE BOARD
J. Connolly, Counsel
INTRODUCTION
The Veteran served on active duty from October 2004 to June
2005.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a May 2006 decision of the St. Louis,
Missouri, Regional Office (RO) of the Department of Veterans
Affairs (VA).
FINDINGS OF FACT
1. The Veteran does not have underlying disease or
disability of the left wrist which is attributable to
service.
2. The left inferior pubic ramus disability is not
productive of functional impairment as shown on objective
testing during VA examinations.
CONCLUSIONS OF LAW
1. A left wrist disability was not incurred or aggravated in
active service. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp.
2008); 38 C.F.R. §§ 3.303, 3.304 (2008).
2. The criteria for a compensable rating for left inferior
pubic ramus disability are not met. 38 U.S.C.A. § 1155 (West
2002 & Supp. 2008); 38 C.F.R. §§ 4.7, 4.20, 4.71a, Part 4,
Diagnostic Code 5299-5255 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000 (VCAA)
With respect to the claimant's claim, VA has met all
statutory and regulatory notice and duty to assist
provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.
Prior to the initial adjudication of the claimant's claim, a
letter dated in September 2005 fully satisfied the duty to
notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). The claimant was aware that it was ultimately the
claimant's responsibility to give VA any evidence pertaining
to the claim. The VCAA letter told the claimant to provide
any relevant evidence in the claimant's possession. See
Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004)
(Pelegrini II). ). In particular, the VCAA notification:
(1) informed the claimant about the information and evidence
not of record that is necessary to substantiate the claim;
(2) informed the claimant about the information and evidence
that VA will seek to provide; and (3) informed the claimant
about the information and evidence that the claimant is
expected to provide.
With regard to the claim for a higher rating, in Dingess v.
Nicholson, 19 Vet. App. 473 (2006), the United States Court
of Appeals for Veterans Claims (Court) held that, upon
receipt of an application for a service-connection claim,
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to
review the information and the evidence presented with the
claim and to provide the claimant with notice of what
information and evidence not previously provided, if any,
will assist in substantiating, or is necessary to
substantiate, each of the five elements of the claim,
including notice of what is required to establish service
connection and that a disability rating and an effective date
for the award of benefits will be assigned if service
connection is awarded.
Here, the claimant is challenging the initial evaluation
assigned following the grant of service connection for the
left inferior pubic ramus disability. In Dingess, the Court
held that in cases where service connection has been granted
and an initial disability rating and effective date have been
assigned, the typical service-connection claim has been more
than substantiated, it has been proven, thereby rendering
section 5103(a) notice no longer required because the purpose
that the notice is intended to serve has been fulfilled. Id.
at 490-91. Thus, because the notice that was provided before
service connection was granted was legally sufficient, VA's
duty to notify in this case has been satisfied.
In the claimant's notice of disagreement (NOD), the claimant
took issue with the initial noncompensable disability rating
and is presumed to be seeking the maximum benefits available
under the law. Id.; see also AB v. Brown, 6 Vet. App. 35
(1993). Therefore, in accordance with 38 U.S.C.A. §§ 5103A
and 7105(d), the RO properly issued a November 2007 statement
of the case (SOC) which contained, in pertinent part, the
pertinent criteria for establishing a higher rating. See
38 U.S.C.A. § 7105(d)(1). Therefore, VA complied with the
procedural statutory requirements of 38 U.S.C.A. §§ 5104(b)
and 7105(d), as well as the regulatory requirements in
38 C.F.R. § 3.103(b). See also Dingess/Hartman. The
claimant was allowed a meaningful opportunity to participate
in the adjudication of the claims. Thus, even though the
initial VCAA notice did not address a higher rating,
subsequent documentation addressed this matter; there is no
prejudice to the claimant. See Overton v. Nicholson, 20 Vet.
App. 427, 439-444 (2006).
The United States Court of Appeals for the Federal Circuit
(Federal Circuit) recently held that an SOC or supplemental
statement of the case (SSOC) can constitute a
"readjudication decision" that complies with all applicable
due process and notification requirements if adequate VCAA
notice is provided prior to the SOC or SSOC. See Mayfield v.
Nicholson, 499 F. 3d 1317 (Fed. Cir. 2007) (Mayfield III).
As a matter of law, the provision of adequate VCAA notice
prior to a readjudication "cures" any timing problem
associated with inadequate notice or the lack of notice prior
to an initial adjudication. See Mayfield III, (citing
Mayfield v. Nicholson, 444 F.3d at 1328, 1333-34). In this
case, an SOC has been issued.
In any event, the Board finds that any deficiency in the
notice to the claimant or the timing of these notices is
harmless error. See Overton v. Nicholson, 20 Vet. App. 427,
435 (2006) (finding that the Board erred by relying on
various post-decisional documents to conclude that adequate
38 U.S.C.A. § 5103(a) notice had been provided to the
claimant, the Court found that the evidence established that
the claimant was afforded a meaningful opportunity to
participate in the adjudication of the claim, and found that
the error was harmless, as the Board has done in this case.)
In Sanders v. Nicholson, 487 F. 3d 881 (2007), the Federal
Circuit held that any error by VA in providing the notice
required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1)
is presumed prejudicial, and that once an error is identified
as to any of the four notice elements the burden shifts to VA
to demonstrate that the error was not prejudicial to the
appellant. The Federal Circuit stated that requiring an
appellant to demonstrate prejudice as a result of any notice
error is inconsistent with the purposes of both the VCAA and
VA's uniquely pro-claimant benefits system.
Instead, the Federal Circuit held in Sanders that all VCAA
notice errors are presumed prejudicial and require reversal
unless VA can show that the error did not affect the
essential fairness of the adjudication. To do this, VA must
show that the purpose of the notice was not frustrated, such
as by demonstrating: (1) that any defect was cured by actual
knowledge on the part of the claimant, see Vazquez-Flores v.
Peake, 22 Vet. App. 37 (2008) ("Actual knowledge is
established by statements or actions by the claimant or the
claimant's representative that demonstrate an awareness of
what was necessary to substantiate his or her claim.")
(citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007));
(2) that a reasonable person could be expected to understand
from the notice what was needed; or (3) that a benefit could
not have been awarded as a matter of law. Sanders, 487 F.3d
at 889. Additionally, consideration also should be given to
"whether the post-adjudicatory notice and opportunity to
develop the case that is provided during the extensive
administrative appellate proceedings leading to the final
Board decision and final Agency adjudication of the claim ...
served to render any pre-adjudicatory section 5103(a) notice
error non-prejudicial." Vazquez-Flores.
If any notice deficiency is present in this case, the Board
finds that the presumption of prejudice on VA's part has been
rebutted in this case by the following: (1) based on the
communications sent to the claimant over the course of this
appeal, the claimant clearly has actual knowledge of the
evidence the claimant is required to submit in this case; and
(2) based on the claimant's contentions as well as the
communications provided to the claimant by VA, it is
reasonable to expect that the claimant understands what was
needed to prevail. See Sanders; see also Simmons v.
Nicholson, 487 F. 3d 892 (2007).
VA also fulfilled its duty to obtain all relevant evidence
with respect to the issue on appeal. 38 U.S.C.A. § 5103A;
38 C.F.R. § 3.159. The claimant's service treatment records
have been obtained and she indicated that she has not sought
any post-service treatment. 38 U.S.C.A. § 5103A; 38 C.F.R.
§ 3.159. There is no indication in the record that any
additional evidence, relevant to the issues decided herein,
is available and not part of the claims file. The claimant
was also afforded two VA examinations. 38 C.F.R.
§ 3.159(c)(4). The records satisfy 38 C.F.R. § 3.326. With
regard to the higher rating claim, there is no objective
evidence indicating that there has been a material change in
the service-connected left inferior pubic ramus disability
since the claimant was last examined. 38 C.F.R. § 3.327(a).
The duty to assist does not require that a claim be remanded
solely because of the passage of time since an otherwise
adequate VA examination was conducted. See VAOPGCPREC 11-95.
The examinations in this case are adequate upon which to base
a decision. The records satisfy 38 C.F.R. § 3.326.
Since the Board has concluded that the preponderance of the
evidence is against the claim of service connection and a
higher rating, any questions as to the appropriate disability
rating or effective date to be assigned are rendered moot,
and no further notice is needed. See Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
In summary, the Board finds that "it is difficult to discern
what additional guidance VA could have provided to the
veteran regarding what further evidence he should submit to
substantiate his claim." Conway v. Principi, 353 F.3d 1369
(Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App.
165, 178 (2001) (en banc) (observing that "the VCAA is a
reason to remand many, many claims, but it is not an excuse
to remand all claims."); Reyes v. Brown, 7 Vet. App. 113,
116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991)
(both observing circumstances as to when a remand would not
result in any significant benefit to the claimant).
Competency and Credibility
The Veteran can attest to factual matters of which she had
first-hand knowledge, e.g., experiencing pain in service,
reporting to sick call, being placed on limited duty, and
undergoing physical therapy. See Washington v. Nicholson, 19
Vet. App. 362, 368 (2005). However, the Veteran as a lay
person has not been shown to be capable of making medical
conclusions, thus, her statements regarding causation are not
competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495
(1992). Competent medical evidence means evidence provided
by a person who is qualified through education, training or
experience to offer medical diagnoses, statements or
opinions. See Duenas v. Principi, 18 Vet. App. 512, 520
(2004). A layperson is generally not capable of opining on
matters requiring medical knowledge. Routen v. Brown, 10
Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet.
App. 124, 127 (1998). Thus, while the Veteran is competent
to report what comes to her through her senses, she does not
have medical expertise. See Layno v. Brown, 6 Vet. App. 465
(1994).
However, the Federal Circuit has held that lay evidence is
one type of evidence that must be considered and competent
lay evidence can be sufficient in and of itself. The Board,
however, retains the discretion to make credibility
determinations and otherwise weigh the evidence submitted,
including lay evidence. See Buchanan v. Nicholson, 451 F.3d
1331, 1335 (Fed. Cir. 2006). This would include weighing the
absence of contemporary medical evidence against lay
statements.
In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court
indicated that varicose veins was a condition involving
"veins that are unnaturally distended or abnormally swollen
and tortuous." Such symptomatology, the Court concluded,
was observable and identifiable by lay people. Because
varicose veins "may be diagnosed by their unique and readily
identifiable features, the presence of varicose veins was not
a determination 'medical in nature' and was capable of lay
observation." Thus, the veteran's lay testimony regarding
varicose vein symptomatology in service represented competent
evidence.
In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007),
the Federal Circuit determined that lay evidence can be
competent and sufficient to establish a diagnosis of a
condition when (1) a layperson is competent to identify the
medical condition (noting that sometimes the layperson will
be competent to identify the condition where the condition is
simple, for example a broken leg, and sometimes not, for
example, a form of cancer), (2) the layperson is reporting a
contemporaneous medical diagnosis, or (3) lay testimony
describing symptoms at the time supports a later diagnosis by
a medical professional. The relevance of lay evidence is not
limited to the third situation, but extends to the first two
as well. Whether lay evidence is competent and sufficient in
a particular case is a fact issue.
However, although the Veteran is competent in certain
situations to provide a diagnosis of a simple condition such
as a broken leg or varicose veins, the Veteran is not
competent to provide evidence as to more complex medical
questions. See Woehlaert v. Nicholson, 21 Vet. App. 456
(2007).
Once evidence is determined to be competent, the Board must
determine whether such evidence is also credible. See Layno,
supra (distinguishing between competency ("a legal concept
determining whether testimony may be heard and considered")
and credibility ("a factual determination going to the
probative value of the evidence to be made after the evidence
has been admitted")). See Barr.
The issue does not involve a simple diagnosis. See Jandreau;
see also Woehlaert. The Veteran is not competent to provide
more than simple medical observations. The current diagnosis
regarding the left wrist may not be diagnosed via lay
observation alone and the Veteran is not competent to provide
a complex medical opinion regarding the etiology of the
claimed disability. See Barr. Thus, the Veteran's lay
assertions are not competent or sufficient.
Service Connection
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304.
Further, VA regulation provides that, with chronic disease
shown as such in service (or within an applicable presumptive
period under section 3.307) so as to permit a finding of
service connection, subsequent manifestations of the same
chronic disease at any later date, however remote, are
service connected, unless clearly attributable to
intercurrent causes. For the showing of chronic disease in
service there is required a combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time, as
distinguished from merely isolated findings or a diagnosis
including the word "chronic." When the disease identity is
established (leprosy, tuberculosis, multiple sclerosis,
etc.), there is no requirement of an evidentiary showing of
continuity. Continuity of symptomatology is required only
where the condition noted during service (or in the
presumptive period) is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim. 38 C.F.R.
§ 3.303(b).
In addition, service connection may be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
A claim for service connection generally requires competent
evidence of a current disability; proof as to incurrence or
aggravation of a disease or injury in service, as provided by
either lay or medical evidence, as the situation dictates;
and competent evidence as to a nexus between the inservice
injury or disease and the current disability. Cohen v.
Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet.
App. 465 (1994).
In determining whether service connection is warranted for a
disability, VA 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 the claim, in which
case the claim is denied. Gilbert v. Derwinski, 1 Vet. App.
49 (1990). To do so, the Board must assess the credibility
and weight of all the 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
appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992).
The service treatment records are negative for any left wrist
injury or disease. The Veteran has stated that she injured
her left wrist when doing an exercise during service on a
rappel tower when she hit her left wrist. On her separation
examination, the Veteran denied having any "impaired use"
of her hands, per her Report of Medical History. Her
physical examination did not reveal any left wrist
disability.
Post-service, the Veteran has been afforded two VA
examinations. In November 2005, the Veteran reported the
incident using the rappel tower. No disability was shown on
physical examination. The examiner indicated that the
diagnosis was left wrist sprain, no notation in the claims
file. Thus, if the Veteran's history was accurate, she
sprained her wrist, but there is no documentation thereof in
the service treatment records, and no residual disability on
this examination.
In May 2006, the Veteran was afforded another VA examination.
Physical examination revealed no weakness, stiffness,
swelling, heat, redness, instability, giving way, or locking.
She reported that she had no flare-ups and she did not wear a
brace. There was no history of fracture, dislocation, or
subluxation. Physical examination revealed normal movement
and repetitive motion did not change the range of motion due
to pain, weakness, fatigue, or lack of endurance. There was
no evidence of painful motion, edema, effusion, instability,
weakness, tenderness, redness, heat, abnormal movement, or
guarding of movement. There was no ankylosis or inflammatory
arthritis. The Veteran reported left wrist pain (not shown
on examination) and that it affected her ability to use her
keyboard; however, x-rays were normal and the diagnosis was
"normal left wrist."
The Court has consistently held that, under the law cited
above, "[a] determination of service connection requires a
finding of the existence of a current disability and a
determination of a relationship between that disability and
an injury or disease incurred in service." Watson v. Brown,
4 Vet. App. 309, 314 (1993). This principle has been
repeatedly reaffirmed by the Federal Circuit, which has
stated, "a veteran seeking disability benefits must establish
. . . the existence of a disability [and] a connection
between the veteran's service and the disability." Boyer v.
West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).
The existence of a current disability is the cornerstone of a
claim for VA disability compensation. See Degmetich v.
Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the
Court's interpretation of sections 1110 and 1131 of the
statute as requiring the existence of a present disability
for VA compensation purposes cannot be considered arbitrary
and therefore the decision based on that interpretation must
be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed.
Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992).
For veterans, disability compensation derives from two
statutes, sections 1110 and 1131 of title 38, United States
Code. Both provide for compensation, beginning with the
following words; "For disability resulting from personal
injury suffered or disease contracted in line of duty..."
Thus, in order for a veteran to qualify for compensation
under those statutes, the veteran must prove the existence of
disability and that a disability has resulted from a disease
or injury that occurred in the line of duty. See Sanchez-
Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Stated
differently, a claim fails if there is an absence of
disability or an absence of disease or injury.
"Arthralgia" is defined as pain in a joint. See DeLuca v.
Brown, 6 Vet. App. 321, 322 (1993) (citing Dorland's
Illustrated Medical Dictionary 147 (27th ed. 1988)). The
Court has stated in Clyburn v West, 12 Vet. App. 296, 301
(1999), that continued complaints of pain after service do
not suffice to establish a medical nexus, where the issue at
hand is of etiology, and requires medical opinion evidence.
Pain cannot be compensable in the absence of proof of an in-
service disease or injury to which the current pain can be
connected by medical evidence. See Sanchez-Benitez, supra.
Such a "pain alone" claim must fail when there is no
sufficient factual showing that the pain derives from an
inservice disease or injury. Id.
In this case, there was no documented inservice disease or
injury of the left wrist. Moreover, the Veteran denied left
hand problems on separation and the physical examination was
normal. This contemporaneous evidence is more persuasive
than her current contentions. Post-service, there is
documentation of left wrist pain; however, there is no
current diagnosis beyond pain during any portion of the
Veteran's appeal. A "current disability" means a disability
shown by competent medical evidence to exist. See Chelte v.
Brown, 10 Vet. App. 268 (1997). In the absence of proof of a
present disability, there can be no valid claim. Rabideau v.
Derwinski, 2 Vet. App. 141, 143- 44 (1992).
Accordingly, service connection is not warranted for a left
wrist disability.
The evidence in this case is not so evenly balanced so as to
allow application of the benefit-of-the-doubt rule as
required by law and VA regulations. 38 U.S.C.A. § 5107(b);
38 C.F.R. § 3.102. The preponderance is against the
Veteran's claims, and they must be denied.
Rating
Disability evaluations are determined by comparing a
veteran's present symptomatology with criteria set forth in
the VA's Schedule for Rating Disabilities (Rating Schedule),
which is based on average impairment in earning capacity. 38
U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as
to which of two ratings apply under a particular diagnostic
code, the higher evaluation is assigned if the disability
more closely approximates the criteria for the higher rating.
38 C.F.R. § 4.7. After careful consideration of the
evidence, any reasonable doubt remaining is resolved in favor
of the veteran. 38 C.F.R. § 4.3. 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).
Before proceeding with its analysis of the Veteran's claim,
the Board finds that some discussion of Fenderson v. West, 12
Vet. App 119 (1999) is warranted. In that case, the Court
emphasized the distinction between a new claim for an
increased evaluation of a service-connected disability and a
case (such as this one) in which the veteran expresses
dissatisfaction with the assignment of an initial disability
evaluation where the disability in question has just been
recognized as service-connected. VA must assess the level of
disability from the date of initial application for service
connection and determine whether the level of disability
warrants the assignment of different disability ratings at
different times over the life of the claim-a practice known
as "staged rating." See also Hart v. Mansfield, 21 Vet. App.
505 (2007). In this case, there has not been a material
change in the disability level and a uniform rating is
warranted.
In determining the degree of limitation of motion, the
provisions of 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 are for
consideration. See DeLuca v. Brown, 8 Vet. App. 202, 204-07
(1995). However, in that regard, the Board notes that the
provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should
only be considered in conjunction with the Diagnostic Codes
predicated on limitation of motion. Johnson v. Brown, 9 Vet.
App. 7 (1996).
The provisions of 38 C.F.R. § 4.40 state that a disability
affecting the musculoskeletal system is primarily the
inability, due to damage or inflammation in parts of the
system, to perform normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. Functional loss may be due to the absence of
part, or all, of the necessary bones, joints and muscles, or
associated structures. It may also be due to pain supported
by adequate pathology and evidenced by visible behavior of
the claimant undertaking the motion. See 38 C.F.R. § 4.40.
The Board notes that the intent of the rating schedule is to
recognize painful motion with joint or periarticular
pathology as productive of disability. It is the intention
to recognize actually painful, unstable, or malaligned
joints, due to healed injury, as entitled to at least the
minimum compensable rating for the joint. 38 C.F.R. § 4.59.
Where the particular disability for which the veteran has
been service-connected is not listed, it may be rated by
analogy to a closely related disease in which not only the
functions affected, but also the anatomical location and
symptomatology are closely analogous. 38 C.F.R. §§ 4.20,
4.27.
The Veteran has been granted service connection for residuals
of a left inferior pubic ramus fracture based on inservice x-
rays which showed a fracture in this area.
Post-service, the Veteran maintains that simple things like
jogging, long walks, and even shopping are painful. She
stated further, that after those few simple tasks, her pubic
ramus fracture residuals throb, and she has shooting pain,
and difficulty walking for several days.
The Veteran has been afforded two VA examinations. In
November 2005, the Veteran was afforded the first
examination. She reported that repetitive motion caused
limitation due to pain and fatigue, but no incoordination or
instability. It was noted that the disability affected her
activities of daily living as she was unable to run or
exercise and she could not climb more than 1 flight of
stairs. She also had curtailed sexual activities. She also
changed jobs to obtain sedentary work. Physical examination
revealed good posture. There was no evidence of any balance
problems. The pelvis was level and the Veteran demonstrated
normal hip movement without restriction or pain. The Veteran
did not undergo x-rays since she had recently given birth.
The diagnosis was inferior pubis ramus fracture, evidenced by
military medical record.
The second examination was conducted in May 2006. The
examiner noted that the inservice records noted a delayed
union of the left inferior pubis ramus fracture and that x-
rays showed callous and cortical bridging. However, current
x-rays showed a normal variant presenting fusion of separate
pubic ossification centers. The examiner noted that the
Veteran reported that she had pain in that area and
difficulty with running, climbing stairs, and a grinding
feeling, as well as pain with sexual intercourse and during
the delivery of her baby. Physical examination revealed that
the inferior pubic ramus was situated deeply and was heavily
covered by muscles and tissues. The examiner explained that
this particular part of the anatomy was not accessible to
physical examination or to testing by range of motion. The
diagnosis was abnormality of the left inferior pubic ramus,
not a fracture.
The Veteran has been assigned a non-compensable rating under
Diagnostic Code 5255, by analogy. The provisions of 38
C.F.R. § 4.71a, Diagnostic Codes 5250 to 5255, provide the
criteria for rating hip and thigh disabilities.
Diagnostic Code 5250 requires ankylosis of the hip.
Diagnostic Code 5251 provides a maximum rating of 10 percent
for limitation of extension of the thigh to 5 degrees.
Diagnostic Code 5252 provides a 10 percent rating for
limitation of flexion of the thigh to 45 degrees; a 20
percent rating where flexion is limited to 30 degrees; a
30 percent rating where flexion is limited to 20 degrees; and
a 40 percent rating where flexion is limited to 10 degrees.
Diagnostic Code 5253 provides a 10 percent evaluation when
there is limitation of abduction of the thigh such that the
legs cannot be crossed or there is limitation of rotation
such that it is not possible to toe out more than 15 degrees.
A 20 percent rating requires limitation of abduction with
motion lost beyond 10 degrees.
Higher evaluations under Diagnostic Codes 5254 and 5255
require flail joint, fracture, or malunion of the hip or
femur. Impairment of the femur warrants a 10 percent
evaluation for malunion of the femur with slight knee or hip
disability, and a 20 percent evaluation for malunion of the
femur with moderate knee or hip disability. A 30 percent
evaluation is warranted for malunion of the femur with marked
knee or hip disability. Higher ratings are warranted for
fractures of the femur neck or shaft. 38 C.F.R. § 4.71a,
Diagnostic Code 5255.
In this case, the Veteran reports having pain due to her left
inferior pubic ramus disorder. X-rays reveal abnormality in
that area, but physical examinations have been normal. There
was no demonstrated pain on examination or functional
impairment due to the left inferior pubic ramus abnormality.
This abnormality, as explained by the VA examiner, does not
have a range of motion and is not tested properly in that
regard. Even noting that to be the case, the hip range of
motion was normal and there is no evidence that there has
been any negative effect on the thigh area nor does the
Veteran assert that there is any limitation with the thigh
area.
In sum, the Veteran does not meet the criteria for a
compensable rating given the two post-service physical
examinations demonstrating no residual functional impairment.
In determining whether a higher rating is warranted for
service-connected disability, VA must determine whether the
evidence supports the veteran's claim or is in relative
equipoise, with the veteran prevailing in either event, or
whether a preponderance of the evidence is against the claim,
in which case the claim is denied. In this case, the
preponderance of the evidence is against a compensable
rating.
In denying the claim for a higher rating, the Board also
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. See Fisher v. Principi, 4 Vet.
App. 57, 60 (1993).
According to the regulation, an extraschedular disability
rating is warranted based upon a finding that the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization that would
render impractical the application of the regular schedular
standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case
is said to include such factors as marked interference with
employment or frequent periods of hospitalization as to
render impracticable the application of the regular schedular
standards. See Fanning v. Brown, 4 Vet. App. 225, 229
(1993).
Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-
step inquiry for determining whether a veteran is entitled to
an extraschedular rating. First, the Board must first
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
claimant's level of disability and symptomatology and is
found inadequate, the Board must determine whether the
claimant'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
attendant thereto related factors such as marked interference
with employment or frequent periods of hospitalization, then
the case must be referred to the Under Secretary for Benefits
or the Director of the Compensation and Pension Service to
determine whether, to accord justice, the veteran's
disability picture requires the assignment of an
extraschedular rating.
With respect to the first prong of Thun, the evidence in this
case does not show such an exceptional disability picture
that the available schedular evaluation for the service-
connected disability is inadequate. A comparison between the
level of severity and symptomatology of the Veteran's left
inferior ramus disability with the established criteria found
in the rating schedule shows that the rating criteria
reasonably describes the Veteran's disability level and
symptomatology, as discussed above.
The Board further observes that, even if the available
schedular evaluation for the disability is inadequate (which
it manifestly is not), the Veteran does not exhibit other
related factors such as those provided by the regulation as
"governing norms." The record does not show that the Veteran
has required frequent hospitalizations for her disability.
Indeed, it does not appear from the record that she has been
hospitalized at all for that disability since leaving
service. Additionally, there is not shown to be evidence of
marked interference with employment due to the disability as
she is currently employed and there is no indication of
missed days from work. There is no persuasive in the record
which suggests that the disability itself markedly impacted
her ability to perform her job. Moreover, there is no
evidence in the medical records of an exceptional or unusual
clinical picture.
In short, there is nothing in the record to indicate that
this service-connected disability on appeal causes impairment
with employment over and above that which is contemplated in
the assigned schedular rating. See Van Hoose v. Brown, 4
Vet. App. 361, 363 (1993) [noting that the disability rating
itself is recognition that industrial capabilities are
impaired]. The Board therefore has determined that referral
of this case for extra-schedular consideration pursuant to 38
C.F.R. 3.321(b)(1) is not warranted.
Further, 38 C.F.R. § 4.1 specifically sets out that
"[g]enerally, the degrees of disability specified are
considered adequate to compensate for considerable loss of
working time from exacerbations or illnesses proportionate to
the severity of the several grades of disability." Factors
such as requiring periodic medical attention are clearly
contemplated in the Schedule and provided for in the
evaluations assigned herein. What the evidence in this case
does not show is that the manifestations of the Veteran's
service-connected disability have resulted in unusual
disability or impairment that has rendered the criteria
and/or degrees of disability contemplated in the Schedule
impractical or inadequate. Accordingly, consideration of 38
C.F.R. § 3.321(b)(1) is not warranted in this case.
ORDER
Service connection for a left wrist disability is denied.
Entitlement to an initial compensable rating for residuals of
a left inferior pubic ramus fracture is denied.
____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 05-04-2009 | [
"Citation Nr: 0916538 Decision Date: 05/04/09 Archive Date: 05/12/09 DOCKET NO. 08-02 862 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a left wrist disability. 2. Entitlement to an initial compensable rating for residuals of a left inferior pubic ramus fracture. ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from October 2004 to June 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2006 decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The Veteran does not have underlying disease or disability of the left wrist which is attributable to service. 2.",
"The left inferior pubic ramus disability is not productive of functional impairment as shown on objective testing during VA examinations. CONCLUSIONS OF LAW 1. A left wrist disability was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.304 (2008). 2. The criteria for a compensable rating for left inferior pubic ramus disability are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2008); 38 C.F.R. §§ 4.7, 4.20, 4.71a, Part 4, Diagnostic Code 5299-5255 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the claimant's claim, a letter dated in September 2005 fully satisfied the duty to notify provisions.",
"38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The VCAA letter told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). ). In particular, the VCAA notification: (1) informed the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informed the claimant about the information and evidence that VA will seek to provide; and (3) informed the claimant about the information and evidence that the claimant is expected to provide.",
"With regard to the claim for a higher rating, in Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the claimant is challenging the initial evaluation assigned following the grant of service connection for the left inferior pubic ramus disability. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.",
"Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. In the claimant's notice of disagreement (NOD), the claimant took issue with the initial noncompensable disability rating and is presumed to be seeking the maximum benefits available under the law. Id. ; see also AB v. Brown, 6 Vet. App. 35 (1993). Therefore, in accordance with 38 U.S.C.A. §§ 5103A and 7105(d), the RO properly issued a November 2007 statement of the case (SOC) which contained, in pertinent part, the pertinent criteria for establishing a higher rating. See 38 U.S.C.A. § 7105(d)(1). Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R.",
"§ 3.103(b). See also Dingess/Hartman. The claimant was allowed a meaningful opportunity to participate in the adjudication of the claims. Thus, even though the initial VCAA notice did not address a higher rating, subsequent documentation addressed this matter; there is no prejudice to the claimant. See Overton v. Nicholson, 20 Vet. App. 427, 439-444 (2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that an SOC or supplemental statement of the case (SSOC) can constitute a \"readjudication decision\" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC.",
"See Mayfield v. Nicholson, 499 F. 3d 1317 (Fed. Cir. 2007) (Mayfield III). As a matter of law, the provision of adequate VCAA notice prior to a readjudication \"cures\" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See Mayfield III, (citing Mayfield v. Nicholson, 444 F.3d at 1328, 1333-34). In this case, an SOC has been issued. In any event, the Board finds that any deficiency in the notice to the claimant or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet.",
"App. 427, 435 (2006) (finding that the Board erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the claimant, the Court found that the evidence established that the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and found that the error was harmless, as the Board has done in this case.) In Sanders v. Nicholson, 487 F. 3d 881 (2007), the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication.",
"To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (\"Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.\") (citing Dalton v. Nicholson, 21 Vet. App.",
"23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to \"whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial.\" Vazquez-Flores. If any notice deficiency is present in this case, the Board finds that the presumption of prejudice on VA's part has been rebutted in this case by the following: (1) based on the communications sent to the claimant over the course of this appeal, the claimant clearly has actual knowledge of the evidence the claimant is required to submit in this case; and (2) based on the claimant's contentions as well as the communications provided to the claimant by VA, it is reasonable to expect that the claimant understands what was needed to prevail. See Sanders; see also Simmons v. Nicholson, 487 F. 3d 892 (2007).",
"VA also fulfilled its duty to obtain all relevant evidence with respect to the issue on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claimant's service treatment records have been obtained and she indicated that she has not sought any post-service treatment. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. The claimant was also afforded two VA examinations.",
"38 C.F.R. § 3.159(c)(4). The records satisfy 38 C.F.R. § 3.326. With regard to the higher rating claim, there is no objective evidence indicating that there has been a material change in the service-connected left inferior pubic ramus disability since the claimant was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The examinations in this case are adequate upon which to base a decision. The records satisfy 38 C.F.R. § 3.326. Since the Board has concluded that the preponderance of the evidence is against the claim of service connection and a higher rating, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed.",
"See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In summary, the Board finds that \"it is difficult to discern what additional guidance VA could have provided to the veteran regarding what further evidence he should submit to substantiate his claim.\" Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that \"the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims.",
"\"); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant). Competency and Credibility The Veteran can attest to factual matters of which she had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran as a lay person has not been shown to be capable of making medical conclusions, thus, her statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App.",
"183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). Thus, while the Veteran is competent to report what comes to her through her senses, she does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed.",
"Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court indicated that varicose veins was a condition involving \"veins that are unnaturally distended or abnormally swollen and tortuous.\" Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins \"may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation.\"",
"Thus, the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the Veteran is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App.",
"456 (2007). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency (\"a legal concept determining whether testimony may be heard and considered\") and credibility (\"a factual determination going to the probative value of the evidence to be made after the evidence has been admitted\")). See Barr. The issue does not involve a simple diagnosis. See Jandreau; see also Woehlaert. The Veteran is not competent to provide more than simple medical observations. The current diagnosis regarding the left wrist may not be diagnosed via lay observation alone and the Veteran is not competent to provide a complex medical opinion regarding the etiology of the claimed disability.",
"See Barr. Thus, the Veteran's lay assertions are not competent or sufficient. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word \"chronic.\" When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc. ), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R.",
"§ 3.303(b). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). In determining whether service connection is warranted for a disability, VA 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 the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App.",
"49 (1990). To do so, the Board must assess the credibility and weight of all the 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 appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). The service treatment records are negative for any left wrist injury or disease. The Veteran has stated that she injured her left wrist when doing an exercise during service on a rappel tower when she hit her left wrist. On her separation examination, the Veteran denied having any \"impaired use\" of her hands, per her Report of Medical History. Her physical examination did not reveal any left wrist disability. Post-service, the Veteran has been afforded two VA examinations. In November 2005, the Veteran reported the incident using the rappel tower.",
"No disability was shown on physical examination. The examiner indicated that the diagnosis was left wrist sprain, no notation in the claims file. Thus, if the Veteran's history was accurate, she sprained her wrist, but there is no documentation thereof in the service treatment records, and no residual disability on this examination. In May 2006, the Veteran was afforded another VA examination. Physical examination revealed no weakness, stiffness, swelling, heat, redness, instability, giving way, or locking. She reported that she had no flare-ups and she did not wear a brace. There was no history of fracture, dislocation, or subluxation.",
"Physical examination revealed normal movement and repetitive motion did not change the range of motion due to pain, weakness, fatigue, or lack of endurance. There was no evidence of painful motion, edema, effusion, instability, weakness, tenderness, redness, heat, abnormal movement, or guarding of movement. There was no ankylosis or inflammatory arthritis. The Veteran reported left wrist pain (not shown on examination) and that it affected her ability to use her keyboard; however, x-rays were normal and the diagnosis was \"normal left wrist.\" The Court has consistently held that, under the law cited above, \"[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.\"",
"Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated, \"a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability.\" Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet.",
"App. 223, 225 (1992). For veterans, disability compensation derives from two statutes, sections 1110 and 1131 of title 38, United States Code. Both provide for compensation, beginning with the following words; \"For disability resulting from personal injury suffered or disease contracted in line of duty...\" Thus, in order for a veteran to qualify for compensation under those statutes, the veteran must prove the existence of disability and that a disability has resulted from a disease or injury that occurred in the line of duty. See Sanchez- Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Stated differently, a claim fails if there is an absence of disability or an absence of disease or injury. \"Arthralgia\" is defined as pain in a joint. See DeLuca v. Brown, 6 Vet. App.",
"321, 322 (1993) (citing Dorland's Illustrated Medical Dictionary 147 (27th ed. 1988)). The Court has stated in Clyburn v West, 12 Vet. App. 296, 301 (1999), that continued complaints of pain after service do not suffice to establish a medical nexus, where the issue at hand is of etiology, and requires medical opinion evidence. Pain cannot be compensable in the absence of proof of an in- service disease or injury to which the current pain can be connected by medical evidence. See Sanchez-Benitez, supra. Such a \"pain alone\" claim must fail when there is no sufficient factual showing that the pain derives from an inservice disease or injury. Id. In this case, there was no documented inservice disease or injury of the left wrist. Moreover, the Veteran denied left hand problems on separation and the physical examination was normal.",
"This contemporaneous evidence is more persuasive than her current contentions. Post-service, there is documentation of left wrist pain; however, there is no current diagnosis beyond pain during any portion of the Veteran's appeal. A \"current disability\" means a disability shown by competent medical evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). In the absence of proof of a present disability, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). Accordingly, service connection is not warranted for a left wrist disability. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations.",
"38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claims, and they must be denied. Rating Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R.",
"§ 4.3. 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). Before proceeding with its analysis of the Veteran's claim, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted. In that case, the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which the veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as \"staged rating.\" See also Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, there has not been a material change in the disability level and a uniform rating is warranted. In determining the degree of limitation of motion, the provisions of 38 C.F.R.",
"§§ 4.10, 4.40, 4.45, 4.59 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). However, in that regard, the Board notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The provisions of 38 C.F.R. § 4.40 state that a disability affecting the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.",
"See 38 C.F.R. § 4.40. The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where the particular disability for which the veteran has been service-connected is not listed, it may be rated by analogy to a closely related disease in which not only the functions affected, but also the anatomical location and symptomatology are closely analogous.",
"38 C.F.R. §§ 4.20, 4.27. The Veteran has been granted service connection for residuals of a left inferior pubic ramus fracture based on inservice x- rays which showed a fracture in this area. Post-service, the Veteran maintains that simple things like jogging, long walks, and even shopping are painful. She stated further, that after those few simple tasks, her pubic ramus fracture residuals throb, and she has shooting pain, and difficulty walking for several days. The Veteran has been afforded two VA examinations. In November 2005, the Veteran was afforded the first examination. She reported that repetitive motion caused limitation due to pain and fatigue, but no incoordination or instability. It was noted that the disability affected her activities of daily living as she was unable to run or exercise and she could not climb more than 1 flight of stairs. She also had curtailed sexual activities.",
"She also changed jobs to obtain sedentary work. Physical examination revealed good posture. There was no evidence of any balance problems. The pelvis was level and the Veteran demonstrated normal hip movement without restriction or pain. The Veteran did not undergo x-rays since she had recently given birth. The diagnosis was inferior pubis ramus fracture, evidenced by military medical record. The second examination was conducted in May 2006. The examiner noted that the inservice records noted a delayed union of the left inferior pubis ramus fracture and that x- rays showed callous and cortical bridging. However, current x-rays showed a normal variant presenting fusion of separate pubic ossification centers. The examiner noted that the Veteran reported that she had pain in that area and difficulty with running, climbing stairs, and a grinding feeling, as well as pain with sexual intercourse and during the delivery of her baby. Physical examination revealed that the inferior pubic ramus was situated deeply and was heavily covered by muscles and tissues. The examiner explained that this particular part of the anatomy was not accessible to physical examination or to testing by range of motion.",
"The diagnosis was abnormality of the left inferior pubic ramus, not a fracture. The Veteran has been assigned a non-compensable rating under Diagnostic Code 5255, by analogy. The provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5250 to 5255, provide the criteria for rating hip and thigh disabilities. Diagnostic Code 5250 requires ankylosis of the hip. Diagnostic Code 5251 provides a maximum rating of 10 percent for limitation of extension of the thigh to 5 degrees. Diagnostic Code 5252 provides a 10 percent rating for limitation of flexion of the thigh to 45 degrees; a 20 percent rating where flexion is limited to 30 degrees; a 30 percent rating where flexion is limited to 20 degrees; and a 40 percent rating where flexion is limited to 10 degrees.",
"Diagnostic Code 5253 provides a 10 percent evaluation when there is limitation of abduction of the thigh such that the legs cannot be crossed or there is limitation of rotation such that it is not possible to toe out more than 15 degrees. A 20 percent rating requires limitation of abduction with motion lost beyond 10 degrees. Higher evaluations under Diagnostic Codes 5254 and 5255 require flail joint, fracture, or malunion of the hip or femur. Impairment of the femur warrants a 10 percent evaluation for malunion of the femur with slight knee or hip disability, and a 20 percent evaluation for malunion of the femur with moderate knee or hip disability.",
"A 30 percent evaluation is warranted for malunion of the femur with marked knee or hip disability. Higher ratings are warranted for fractures of the femur neck or shaft. 38 C.F.R. § 4.71a, Diagnostic Code 5255. In this case, the Veteran reports having pain due to her left inferior pubic ramus disorder. X-rays reveal abnormality in that area, but physical examinations have been normal. There was no demonstrated pain on examination or functional impairment due to the left inferior pubic ramus abnormality. This abnormality, as explained by the VA examiner, does not have a range of motion and is not tested properly in that regard. Even noting that to be the case, the hip range of motion was normal and there is no evidence that there has been any negative effect on the thigh area nor does the Veteran assert that there is any limitation with the thigh area. In sum, the Veteran does not meet the criteria for a compensable rating given the two post-service physical examinations demonstrating no residual functional impairment. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the veteran's claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.",
"In this case, the preponderance of the evidence is against a compensable rating. In denying the claim for a higher rating, the Board also 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1).",
"An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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 attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service- connected disability is inadequate.",
"A comparison between the level of severity and symptomatology of the Veteran's left inferior ramus disability with the established criteria found in the rating schedule shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as \"governing norms.\" The record does not show that the Veteran has required frequent hospitalizations for her disability. Indeed, it does not appear from the record that she has been hospitalized at all for that disability since leaving service. Additionally, there is not shown to be evidence of marked interference with employment due to the disability as she is currently employed and there is no indication of missed days from work. There is no persuasive in the record which suggests that the disability itself markedly impacted her ability to perform her job.",
"Moreover, there is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that this service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. The Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Further, 38 C.F.R. § 4.1 specifically sets out that \"[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.\"",
"Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned herein. What the evidence in this case does not show is that the manifestations of the Veteran's service-connected disability have resulted in unusual disability or impairment that has rendered the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate. Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. ORDER Service connection for a left wrist disability is denied. Entitlement to an initial compensable rating for residuals of a left inferior pubic ramus fracture is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs"
]
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Mr. Justice Cox delivered the opinion of the court. In this case the record shows that on the 25th of November, 1885, Geyer recovered judgment against Barrick for $140 damages and $22.55 costs; and on the 18th of December, 1885, Barrick recovered a judgment against Geyer for $25 damages and $143 costs, the latter judgment being about $6 more than the other. Geyer then came into court and moved that the court credit the judgment in the case against him on the judgment in his favor, the motion being in the following words: “And now conies the defendant by his attorneys and shows the court that a judgment has been rendered in this cause against him for $25; and that heretofore in this court, in cause No. 24,750 at law, he obtained a judgment against the plaintiff for $140. He therefore moves the court to order the credit of the judgment in this case against him on the judgment in his favor in No. 24,750 at law, and to order this judgment entered satisfied.” But the court, instead of doing that, ordered the whole of the judgment against him to be credited on his judgment, including $143 for witness fees. That paid him off and left him a little in debt. Not liking that, he appealed *33from the action of the court on the ground that Barrick did not own the witness fees, and therefore was not entitled to set them off against this judgment of $140. But we think the court was right, because the judgment was an entirety and the whole amount, including the costs and witness fees, belongs to the plaintiff with the single exception that the court will not allow the taxable attorney’s fees to be set off against the mutual debts of the parties. They can have the benefit of the witness fees and treat that part of the judgment as belonging to them. The law has provided another remedy for witnesses. They may sue before a justice of the peace for their fees. But the whole of the judgment including witness fees belongs to the plaintiff, and the court was right in setting off the whole of the judgment. That is the only point in the case. The judgment is affirmed. | 07-26-2022 | [
"Mr. Justice Cox delivered the opinion of the court. In this case the record shows that on the 25th of November, 1885, Geyer recovered judgment against Barrick for $140 damages and $22.55 costs; and on the 18th of December, 1885, Barrick recovered a judgment against Geyer for $25 damages and $143 costs, the latter judgment being about $6 more than the other. Geyer then came into court and moved that the court credit the judgment in the case against him on the judgment in his favor, the motion being in the following words: “And now conies the defendant by his attorneys and shows the court that a judgment has been rendered in this cause against him for $25; and that heretofore in this court, in cause No. 24,750 at law, he obtained a judgment against the plaintiff for $140.",
"He therefore moves the court to order the credit of the judgment in this case against him on the judgment in his favor in No. 24,750 at law, and to order this judgment entered satisfied.” But the court, instead of doing that, ordered the whole of the judgment against him to be credited on his judgment, including $143 for witness fees. That paid him off and left him a little in debt. Not liking that, he appealed *33from the action of the court on the ground that Barrick did not own the witness fees, and therefore was not entitled to set them off against this judgment of $140. But we think the court was right, because the judgment was an entirety and the whole amount, including the costs and witness fees, belongs to the plaintiff with the single exception that the court will not allow the taxable attorney’s fees to be set off against the mutual debts of the parties. They can have the benefit of the witness fees and treat that part of the judgment as belonging to them.",
"The law has provided another remedy for witnesses. They may sue before a justice of the peace for their fees. But the whole of the judgment including witness fees belongs to the plaintiff, and the court was right in setting off the whole of the judgment. That is the only point in the case. The judgment is affirmed."
]
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522 F. Supp. 559 (1981) Celia and Enrique ESPINOZA, et al., Plaintiffs, v. HILLWOOD SQUARE MUTUAL ASSOCIATION, et al., Defendants. Civ. A. No. 81-0303-A. United States District Court, E. D. Virginia, Alexandria Division. September 16, 1981. *560 Bradley S. Stetler, Norman A. Townsend, Graber, Stetler & Townsend, Alexandria, Va., for plaintiffs Espinozas. Robert S. Blacher, Terris & Sunderland, Washington, D. C., for plaintiffs Espinozas and Rajpal. Brian P. Gettings, Mark D. Cummings, Cohen, Gettings & Sher, Arlington, Va., for defendants Hillwood Square and Joan Fling.
MEMORANDUM OPINION RICHARD L. WILLIAMS, District Judge. This matter comes before the court on the plaintiffs' joint motion for partial summary judgment under Rule 56(a). See Fed. R.Civ.P. 56(a). The plaintiffs contend that no material issues of fact remain with respect to their section 1981 claims. See 42 U.S.C. § 1981 (1976). They, therefore, move for summary judgment on the liability issue of that portion of their suit. The defendants have countered with a joint motion under Rule 12(b)(6) to dismiss the plaintiffs' Fair Housing Act allegations for failure to state a cognizable claim. See Fed.R.Civ.P. 12(b)(6). For the reasons stated below, the court denies both the plaintiffs' summary judgment motion and the defendants' dismissal motion.
I. STATEMENT OF FACTS Defendant Hillwood Square Mutual Association (Hillwood) is a cooperative housing association incorporated in Virginia. It owns and manages a townhouse subdivision in Falls Church, Virginia. The residents of Hillwood's subdivision do not own the townhouses in which they live. They, instead, are members of the association, which in turn owns all of the dwelling units. Each member is entitled to perpetual use of a townhouse in accordance with a contract between the member and Hillwood. Since 1977, the association has maintained a policy of refusing membership to aliens. See Minutes of Special Meeting of Board of Directors, Hillwood Square Mutual Association, September 12, 1977, at 1. At all relevant times, defendant Joan Fling has been the manager of Hillwood's subdivision. Celia and Enrique Espinoza, alien residents of the United States, attempted to apply for membership in Hillwood on April 7, 1980. Fling denied them an application. A few days later, Fling again refused to give the Espinozas an application. On April 19, 1980, the Espinozas filed a complaint with the Human Rights Commission of Fairfax County, Virginia. In that complaint, they alleged that Hillwood had denied them membership because of their citizenship. Vinod Rajpal, an alien resident of the United States, first attempted to become a member of Hillwood on June 25, 1980. At that time, Fling allegedly told him that he could not become a member due to his foreign citizenship. Hillwood subsequently denied membership to Rajpal on three more occasions. These refusals occurred on October 16, 1980, December 10, 1980, and February 12, 1981. *561 On April 6, 1981, the Espinozas and Rajpal filed suit against Hillwood in this court. The plaintiffs claim that Hillwood's citizenship policy violates both section 1981, 42 U.S.C. § 1981 (1976), and the Fair Housing Act, id. §§ 3601-3619. In particular, they allege that Hillwood's conduct constitutes discrimination on the basis of alienage and national origin. See id. §§ 1981, 3604(a). The plaintiffs contend that their suit qualifies as a class action. See Fed.R.Civ.P. 23. They seek both injunctive relief and damages. On July 31, 1981, the Espinozas and Rajpal moved under Rule 56(a) for partial summary judgment on their section 1981 claims. They argue that no factual issues material to these claims remain unresolved. They ask the court to hold as a matter of law that the association's citizenship policy violates section 1981. Hillwood has responded with two allegations: first, it contends that it denied membership to Rajpal for reasons unrelated to his citizenship; and, second, it argues that the Espinozas had no basis for applying for membership, because they had not entered into a valid contract to purchase a townhouse. On August 11, 1981, Hillwood countered with a motion to dismiss the plaintiffs' Fair Housing Act claims under Rule 12(b)(6). The association argues that the 180-day limitation period of section 3612(a) bars these claims. See 42 U.S.C. § 3612(a) (1976). In addition, it contends that an allegation of alienage discrimination fails to state a cognizable claim under the Fair Housing Act.
II. THE PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON THEIR SECTION 1981 CLAIM The plaintiffs' summary judgment motion presents the issue of whether section 1981 reaches private discrimination based on citizenship. The court holds that an allegation of such discrimination does state a viable claim under section 1981. The court, however, must deny the plaintiffs' motion, because material factual issues remain unresolved. Section 1981 provides: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. 42 U.S.C. § 1981 (1976). In Runyon v. McCrary, 427 U.S. 160, 96 S. Ct. 2586, 49 L. Ed. 2d 415 (1976), the Supreme Court held that this section reaches purely private acts of racial discrimination. See id. at 168-72, 96 S. Ct. at 2593-95. While the court has ruled that section 1981 also prohibits alienage discrimination involving state action, see Takahashi v. Fish & Game Commission, 334 U.S. 410, 419, 68 S. Ct. 1138, 1142, 92 L. Ed. 1478 (1948), the courts are divided on the issue of whether the section applies to purely private alienage discrimination. The Fifth Circuit and several district courts have held that the section does encompass such private discrimination. See, e. g., Guerra v. Manchester Terminal Corp., 498 F.2d 641 (5th Cir. 1974); Ortega v. Merit Insurance Co., 433 F. Supp. 135 (N.D.Ill.1977). One district court, however, has ruled that the legislative history requires a contrary conclusion. DeMalherbe v. International Union of Elevator Constructors, 438 F. Supp. 1121 (N.D.Cal.1977). Section 1981 is derived from section 1 of the Civil Rights Act of 1866 (1866 Act) and section 16 of the Civil Rights Act of 1870 (1870 Act). Section 1 of the 1866 Act provided: That all persons born in the United States and not subject to any foreign power ... are hereby declared to be citizens of the United States; and such citizens, of every race and color, ... shall have the same right ... to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens .... *562 Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27. This section was passed under section 2 of the thirteenth amendment to eliminate the badges and incidents of slavery. It applied only to discrimination based upon race. See Runyon v. McCrary, 427 U.S. at 168-72, 96 S. Ct. at 2593-95. In 1869, Senator Stewart of Nevada initiated legislation to extend the protection of the 1866 Act to aliens. He first introduced the following resolution, which the Senate unanimously approved on December 6, 1869:
Resolved, That the Committee on the Judiciary be requested to inquire if any States are denying to any class of persons within their jurisdiction the equal protection of the law, in violation of treaty obligations with foreign nations and of section one of the fourteenth amendment to the Constitution, and if so, what legislation is necessary to enforce such treaty obligations and such amendment, and to report by bill or otherwise. Cong. Globe, 41st Cong., 2d Sess. 3 (1869). On January 10, 1870, Stewart introduced S. 365.[1]See id. at 323 (1870). In February, 1870, he moved for consideration of the bill and explained its relationship to section 1 of the 1866 Act: The original civil rights bill protected all persons born in the United States in the equal protection of the laws. This bill extends it to aliens, so that all persons who are in the United States shall have the equal protection of our laws. It extends the operation of the civil rights bill, which is well known in the Senate and to the country, to all persons within the jurisdiction of the United States. That is all there is in the bill. Id. at 1536. On May 16, 1870, when the Senate commenced debate on S. 810, a bill to enforce the voting rights secured by the fifteenth amendment, Stewart offered S. 365 as an amendment. See id. at 3480. After the House passed H.R. 1293, a voting rights bill similar to S. 810, the Senate took up H.R. 1293 rather than S. 810. H.R. 1293 did not contain a provision equivalent to S. 365, so Stewart offered S. 810, with his amendment, as a substitute. See id. at 3561. On May 20, 1870, Senator Stewart explained the purpose of his amendment to S. 810: We are inviting to our shores, or allowing them to come, Asiatics. We have got a treaty allowing them to come .... While they are here I say it is our duty to protect them .... It is as solemn a duty as can be devolved upon this Congress to see that those people are protected, to see that they have the equal protection of the laws, notwithstanding that they are aliens. They, or any other aliens, who may come here are entitled to that protection. *563 If the State courts do not give them the equal protection of the law, if public sentiment is so inhuman as to rob them of their ordinary civil rights, I say I would be less than [a] man if I did not insist, and I do here insist that that provision shall go on this bill; and that the pledge of this nation shall be redeemed, that we will protect Chinese aliens or any other aliens whom we allow to come here .... Id. at 3658. The Senate passed H.R. 1293 as amended by Stewart's substitute. See id. at 3690. A conference was held to reconcile the differences in the Senate and House bills. It recommended adoption of Stewart's substitute without significant change. See id. at 3752. The Senate approved the conference report on May 25, 1870. See id. at 3809. The House approved the conference report on May 27, 1870. See id. at 3884. The President signed the bill on May 31, 1870. As enacted, Stewart's original bill became sections 16 through 18 of the Civil Rights Act of 1870: SEC. 16. And be it further enacted, That all persons within the jurisdiction of the United States shall have the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding. No tax or charge shall be imposed or enforced by any State upon any person immigrating thereto from a foreign country which is not equally imposed and enforced upon every person immigrating to such State from any other foreign country; and any law of any State in conflict with this provision is hereby declared null and void. SEC. 17. And be it further enacted, That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by the last preceding section of this act, or to different punishment, pains, or penalties on account of such person being an alien, or by reason of his color or race, than is prescribed for the punishment of citizens, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court. SEC. 18. And be it further enacted, That the act to protect all persons in the United States in their civil rights, and furnish the means of their vindication, passed April nine, eighteen hundred and sixty-six, is hereby re-enacted; and sections sixteen and seventeen hereof shall be enforced according to the provisions of said Act. Civil Rights Act of 1870, ch. 114, §§ 16-18, 16 Stat. 140. In 1866 and 1874, Congress authorized codification of federal statutory law. See Act of June 27, 1866, ch. 140, 14 Stat. 74; Act of June 20, 1874, ch. 333, 18 Stat. 113. The codifiers were aware that section 16 of the 1870 Act did not provide aliens with the property rights protection secured by section 1. They, therefore, split section 1 between what is now sections 1981 and 1982 of Title 42. See 42 U.S.C. §§ 1981-1982 (1976). The courts have construed section 1982 as prohibiting racial discrimination only. See, e. g., Arnold v. Tiffany, 359 F. Supp. 1034, 1035 (C.D.Cal.); aff'd, 487 F.2d 216 (9th Cir. 1973), cert. denied, 415 U.S. 984, 94 S. Ct. 1578, 39 L. Ed. 2d 881 (1974). Section 1981, however, reaches discrimination based upon alienage. See Graham v. Richardson, 403 U.S. 365, 377-78, 91 S. Ct. 1848, 1854-55, 29 L. Ed. 2d 534 (1971); Takahashi v. Fish & Game Commission, 334 U.S. 410, 419, 68 S. Ct. 1138, 1142, 92 L. Ed. 1478 (1948). The Supreme Court has held that section 1981 reaches purely private racial discrimination. See Runyon v. McCrary, 427 U.S. *564 at 168-72, 96 S. Ct. at 2593-95. Hillwood, nonetheless, argues that, with respect to alienage discrimination, section 16 of the 1870 Act reaches only state action. This court, however, rules that the legislative history demonstrates that section 16 applied to purely private alienage discrimination, as well as to that involving state action. Senator Stewart's comments indicate that he intended the new act to extend the protection of the 1866 Act to aliens. See Cong. Globe, 41st Cong., 2d Sess. 3658 (1870). The close parallel between the language of section 16 and that of section 1 supports this conclusion. The codifiers who combined the two sections to form section 1981 obviously felt that Congress had intended no distinction between the scopes of protection provided by the two sections. The structures of the 1866 and 1870 Acts also indicate that section 1981 prohibits private alienage discrimination. Section 1 of the 1866 Act and section 16 of the 1870 Act enumerate the individuals and the rights protected. Section 2 of the 1866 Act and section 17 of the 1870 Act provide criminal penalties for violations of the protected rights if committed "under color of state law." As the Supreme Court stated in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S. Ct. 2186, 20 L. Ed. 2d 1189 (1968): [I]f § 1 [of the 1866 Act] had been intended to grant nothing more than an immunity from governmental interference, then much of § 2 would have made no sense at all. For that section, which provided fines and prison terms for certain individuals who deprived others of rights "secured or protected" by § 1, was carefully drafted to exempt private violations of § 1 from the criminal sanctions it imposed. There would, of course, have been no private violations to exempt if the only "right" granted by § 1 had been a right to be free of discrimination by public officials. Id. at 424-26, 88 S. Ct. at 2195 (footnotes omitted). The Court's analysis of the 1866 Act applies with equal force to the structure of the 1870 Act. See Guerra v. Manchester Terminal Corp., 350 F. Supp. 529, 538 (S.D.Tex.1972), aff'd in part and rev'd in part, 498 F.2d 641 (5th Cir. 1974). Hillwood also argues that Congress enacted section 16 of the 1870 Act pursuant to the fourteenth amendment. It contends that section 16, therefore, could not constitutionally reach private discrimination, because the fourteenth amendment itself applies only to state action. Like the Fifth Circuit, this court "respectfully decline[s] to embrace that reductio ad absurdum." 498 F.2d at 654 n.32. Regardless of which part of the Constitution the 41st Congress actually relied upon, it had the authority to prohibit private discrimination under its plenary power over immigration and naturalization.[2]See Graham v. Richardson, 403 U.S. at 377, 91 S. Ct. at 1854; Takahashi v. Fish & Game Commission, 334 U.S. at 419, 68 S. Ct. at 1142; Guerra v. Manchester Terminal Corp., 498 F.2d at 654 n.32. The court, therefore, holds that section 1981 reaches purely private alienage discrimination. Two material factual issues, however, remain unresolved: first, a dispute exists as to whether Hillwood denied membership to Rajpal because of his citizenship; and, second, it is unclear whether the Espinozas had entered into a valid purchase contract at the time that they requested membership. Because of these material factual issues, the court must deny the plaintiffs' motion for partial summary judgment.
III. HILLWOOD'S MOTION TO DISMISS PLAINTIFFS' FAIR HOUSING CLAIM The Espinozas and Rajpal claim that Hillwood violated section 3604(a) of the Fair *565 Housing Act by refusing to sell residences to them. See 42 U.S.C. § 3604(a) (1976). They allege that Hillwood based its refusal solely on their citizenship. The plaintiffs argue that this citizenship policy constitutes discrimination on the basis of national origin. Hillwood has moved under Rule 12(b)(6) to dismiss this Fair Housing claim on two grounds. First, it contends that the 180-day limitation period of section 3612(a) bars the claim. See id. § 3612(a). Second, Hillwood argues that discrimination on the basis of citizenship is not a violation of section 3604(a). The court denies the defendants' motion to dismiss the Fair Housing Act portion of the complaint, because relevant factual issues remain unresolved.
A. The Limitation Period Issue
The Espinozas and Rajpal rely on section 3612(a) as the basis for this court's jurisdiction over their Fair Housing Act claims. See Plaintiffs' Complaint ¶ 2. Section 3610 provides an alternative route for bringing such claims into federal court, see Trafficante v. Metropolitan Life Insurance Co., 446 F.2d 1158, 1161 (9th Cir. 1971), rev'd on other grounds, 409 U.S. 205, 93 S. Ct. 364, 34 L. Ed. 2d 415 (1972), but it is not available in this case. It contains a proviso that blocks access to the federal courts if the aggrieved party has a judicial remedy under a state or local law "substantially equivalent" to the Fair Housing Act. See 42 U.S.C. § 3610(d) (1976). Virginia has enacted such a "substantially equivalent" law. See Va.Code §§ 36-86 to -96 (1976). As a consequence, section 3610 cannot serve as a jurisdictional basis in this case. Section 3612(a) provides an aggrieved party with direct access to the federal courts. See 42 U.S.C. § 3612(a) (1976). This section, however, requires that any civil action "be commenced within one hundred and eighty days after the alleged discriminatory housing practice occurred." Id. The section also contains a proviso that authorizes a district court to stay a civil action to allow further conciliation efforts. See id. The key issue in determining whether section 3612 bars the plaintiffs' Fair Housing claims in this case is when does the 180-day period begin to run. The Espinozas and Rajpal allege that Hillwood has a formal policy of refusing to sell residences to persons who are not United States citizens. The plaintiffs argue that the effect of this policy is to create a continuous denial of their residence applications from the date of first refusal until at least the date of last refusal. Section 3612(a) states that the limitation period runs from the time when the "discriminatory housing practice occurred." Id. The question in this case is when does a continuing discriminatory practice "occur" for purposes of the limitation provision. The Fair Housing Act does not define an occurrence. As a consequence of this definitional gap, two divergent views of when a continuing practice occurs have arisen.
1. The Coles and Pennypack Approaches to Section 3612(a) The first view to develop was that the initial refusal to sell to a particular party triggers the running of the limitation period for that party. In Meyers v. Pennypack Woods Home Ownership Association, 559 F.2d 894 (3d Cir. 1977), a home ownership association first refused to permit the sale of a house to the plaintiff buyer on September 6, 1971. See id. at 897. The buyer then attempted to negotiate with the association until December, 1974. See id. at 899. He brought a Fair Housing Act suit on January 3, 1975. See id. at 897. The Third Circuit held that the limitation period of section 3612 barred the buyer's claim. See id. at 899. It reasoned that the 180-day period must run from the date of first refusal in order to avoid circumvention of the limitation: If such futile attempts at settlement or negotiation by the alleged injured party were allowed to breathe life into a claim long dead, the 180 day limitation established by Congress would have little significance. Such a tactic, if permitted, would enable a victim of alleged discrimination to circumvent the statute of limitations merely by provoking his adversary into another refusal to sell or rent. *566 We cannot believe that Congress intended the 180 day limitation of section 3612(a) to operate in such a fashion. Id. Thus, the Third Circuit began the running of the limitation period at the time of the first refusal, because it believed that an aggrieved party should not be able to keep a claim alive by the simple device of reapplying for housing. See also Stingley v. City of Lincoln Park, 429 F. Supp. 1379, 1390-91 (E.D.Mich.1977). In Coles v. Havens Realty Corp., 633 F.2d 384 (4th Cir. 1980), cert. denied, ___ U.S. ___, 101 S. Ct. 1972, 68 L. Ed. 2d 293 (1981), the Fourth Circuit provided a second view of when the limitation period starts to run. The plaintiffs in that case were three employees of an organization seeking to equalize housing opportunities. See 633 F.2d at 385. The employees individually were refused housing by a rental agent on several occasions between March 14, 1978, and July 13, 1978. See id. at 386. They brought a class action against the rental agent on January 9, 1979. See id. Of the several discriminatory acts, only the final refusal to rent to one of the employees on July 13 occurred within 180 days of the filing of the suit. The Fourth Circuit, however, held that section 3612 did not bar any of the plaintiffs' allegations. See id. at 391-92. The court found that the rental agent was engaged in a "continued violation of section 3604." Id. at 393. See also Fair Housing Council of Bergen County, Inc. v. East Bergen County Multiple Listing Service, Inc., 422 F. Supp. 1071, 1078 (D.N.J. 1976). It ruled, therefore, that "the violations continued to `occur' until the last act of July 13, 1978." Id., 633 F.2d at 393. The court adopted this construction to insure the eradication of the discriminatory practice in question. See id. The Pennypack and Coles decisions present irreconcilable interpretations of the limitation provision of section 3612(a). Pennypack supports a strict construction of the limitation clause. The purpose of this approach is to force a party to bring a claim within 180 days of the first discriminatory act against that party. The penalty for failing to do so is forfeiture of all Fair Housing Act remedies against the violator. This policy encourages rapid prosecution or settlement of claims. The Coles approach, on the other hand, is an attempt to effectuate the broad remedial goals of Title VIII. See id. at 392. It allows an aggrieved party to revive all Fair Housing Act claims against a violator simply by reapplying for housing with the violator. This court believes that both the Pennypack and Coles approaches to the Fair Housing limitation period are incorrect. The Pennypack interpretation of section 3612(a) is overly strict. Under this construction, many valid Title VIII claims would go unremedied. If the holder of a valid claim fails to file suit within 180 days of the violator's first discriminatory act against him, the holder is barred from suing regardless of how many times the violator later discriminates against him. This interpretation is too narrow, because it permits a violator's policy of discrimination to continue unchecked. It, therefore, does not properly effectuate the broad remedial purposes of Title VIII. The Coles approach is also wrong. It effectively writes the 180-day limitation out of the statute, because it allows an aggrieved party to revive all claims against a violator simply by reapplying for housing. Thus, the Coles interpretation is too broad. This court feels that the proper interpretation of section 3612(a) is to bar all claims not based on discriminatory acts occurring within 180 days of filing suit. This construction is a middle road between Coles and Pennypack. It would not prevent an aggrieved party from seeking relief simply because he had failed to file suit within 180 days of the violator's first refusal. On the other hand, it would not allow revival of claims based on discriminatory acts occurring outside the 180-day period. Cf. Player v. State of Alabama Department of Pensions & Security, 400 F. Supp. 249, 266-67 (M.D.Ala.1975), aff'd, 536 F.2d 1385 (5th Cir. 1976) (§ 3612 bars claim unless discriminatory act within 180 days of filing suit). Unfortunately, however, this court is bound *567 by the Fourth Circuit's opinion in Coles. Therefore, it must adopt a construction of section 3612(a) that it feels is not altogether correct.
2. Application of Coles to Rajpal The portion of the Coles opinion dealing with section 3612(a) applies whenever there is an "allegation of a continuing violation or a pattern of violations." In the present case, Hillwood had a formal policy of denying membership to aliens. Thus, Coles provides the controlling authority. Under the Coles approach to section 3612(a), Rajpal may bring claims based on all four of Hillwood's refusals. The last three refusals occurred within 180 days of the filing of this suit. Rajpal's claims based on these acts clearly are not barred. In addition, Coles allows him to revive claims based on the first refusal by reapplying for housing within the 180-day period. Because Rajpal did reapply, none of his claims are time-barred under section 3612(a).
3. Application of Coles to the Espinozas Hillwood denied the Espinozas' application for housing on April 7, 1980. Rajpal's reapplications with Hillwood do not revive the Espinozas' claim based on the April 7, 1980 refusal. In Coles, the Fourth Circuit held that a reapplication by one of the employees of the fair housing organization revived the claims of the other two employees. The employees, however, "were involved in active, consecutive, connected, and continuing attempts to secure or determine compliance." Coles v. Havens Realty Corp., 633 F.2d at 392. This court holds that one complainant's reapplication for housing can revive another's claims only if the two complainants are working together to determine whether a party is violating Title VIII. In the present case, there is no indication that the Espinozas and Rajpal were participating in a common scheme to investigate Hillwood. Rajpal's three reapplications, therefore, cannot revive the Espinozas' Fair Housing Act claims based on the April 7th refusal. Section 3612(a) does not bar the Espinozas' Fair Housing Act claims only if Hillwood refused membership to them within 180 days of the filing of this suit. The Espinozas allege that they have continued to seek housing from Hillwood through the Human Rights Commission of Fairfax County, Virginia. See Plaintiffs' Complaint ¶ 13. Hillwood, however, contends that it has not denied housing to the Espinozas since April 7, 1980. See Defendants' Supplemental Memorandum in Support of Their Motion to Dismiss Plaintiffs' Claims Under 42 U.S.C. § 3601 et seq., at 2. Thus, a material factual issue remains as to whether Hillwood committed a discriminatory act against the Espinozas within 180 days of the filing of this suit.
B. The Issue of Whether the Plaintiffs Have Stated A Cognizable Claim Under Section 3604(a)
The Espinozas and Rajpal contend that Hillwood's refusal to sell housing to them constitutes a violation of section 3604(a). This section makes it unlawful "to refuse to sell or rent ... a dwelling to any person because of race, color, religion, or national origin." 42 U.S.C. § 3604(a) (1976). The plaintiffs allege that Hillwood's citizenship policy has the purpose or effect of discriminating on the basis of national origin. See Plaintiffs' Complaint ¶¶ 29, 33. Hillwood, in turn, denies this allegation. Hillwood has moved under Rule 12(b)(6) to dismiss the plaintiffs' Fair Housing Act counts for failure to state a claim under section 3604(a). The defendant argues that alienage discrimination is not a per se violation of Title VIII, because national origin and alienage are not synonymous terms. Hillwood further contends that it has applied its citizenship policy even-handedly among national-origin groups. It concludes that the court, therefore, ought to dismiss the Fair Housing Act claims. The court agrees with Hillwood that alienage discrimination is not a per se violation of section 3604(a). In Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 94 S. Ct. 334, 38 L. Ed. 2d 287 (1973), an alien brought a Title VII action alleging that a company had refused to hire her because of her "national *568 origin." Id. at 87, 94 S. Ct. at 336. The provision upon which the alien relied, like section 3604(a), prohibits discrimination on the basis of national origin, but not alienage discrimination. See 42 U.S.C. § 2000e-2(a)(1) (1976). The Supreme Court ruled that the term "national origin" in Title VII refers to a person's ancestry, and not his citizenship. See 414 U.S. at 88, 94 S. Ct. at 336. The Court held, therefore, that alienage discrimination alone does not constitute discrimination on the basis of national origin. See id. at 88-91, 94 S. Ct. at 336-338. The Farah opinion, of course, does not directly address the Fair Housing Act, but the analogy between the discrimination provisions of Titles VII and VIII is extremely close. This court holds, therefore, that the Farah ruling on national origin applies to the Fair Housing Act, as well as to Title VII. The court finds support for this determination in Boyd v. Lefrak Organization, 509 F.2d 1110 (2d Cir.), cert. denied, 423 U.S. 896, 96 S. Ct. 197, 46 L. Ed. 2d 129 (1975). In that case, the plaintiffs brought a Fair Housing Act suit alleging economic discrimination. See 509 F.2d at 1111. The Second Circuit reversed a judgment for the plaintiffs on the ground that section 3604 does not forbid economic discrimination. In doing so, the court held that "[a] landlord in the private sector is entitled to choose whom he will accept as tenants as long as he does not discriminate on one of the statutorily condemned bases." Id. at 1114. See also Madison v. Jeffers, 494 F.2d 114, 117 (4th Cir. 1974). This court rules on the basis of Farah and Lefrak that Hillwood's citizenship policy is not a per se violation of section 3604(a). Dismissal under Rule 12(b)(6), however, is not proper at this time. The plaintiffs have alleged that the citizenship policy in question had the effect of discriminating on the basis of national origin. In Farah, the Supreme Court stated: In some instances, for example, a citizenship requirement might be but one part of a wider scheme of unlawful national-origin discrimination. In other cases, an employer might use a citizenship test as a pretext to disguise what is in fact national-origin discrimination. Certainly Title VII prohibits discrimination on the basis of citizenship whenever it has the purpose or effect of discriminating on the basis of national origin. 414 U.S. at 92, 94 S. Ct. at 338. Thus, a material factual issue remains in the present case as to whether Hillwood's citizenship policy was a pretext for national-origin discrimination.
IV. CONCLUSION For the reasons stated above, the court denies the plaintiffs' motion for partial summary judgment. The plaintiffs have stated a cognizable claim under section 1981. There remain, however, two material factual issues, which the parties ought to resolve at trial. First, a dispute exists as to whether Hillwood denied membership to Rajpal because of his citizenship. Second, the parties disagree on the question of whether the Espinozas had entered into a valid purchase contract at the time that they requested membership. The court also denies the defendants' motion to dismiss the Fair Housing Act portion of the complaint. Section 3612(a) does not bar any of Rajpal's claims. In addition, the court cannot dismiss the Espinozas' Title VIII claims as time-barred, because it is unclear whether Hillwood refused membership to them within 180 days of the filing of this suit. Finally, the court rules that the plaintiffs have stated a cognizable claim under section 3604(a). The terms "national origin" and "alienage," however, are not synonymous. Thus, the plaintiffs must demonstrate that Hillwood's citizenship policy had the effect of discriminating on the basis of ancestry. Let the Clerk mail a copy of this Memorandum Opinion to counsel of record for the parties. NOTES [1] As proposed, S. 365 provided:
Be it enacted, etc., That all persons within the jurisdiction of the United States, Indians not taxed excepted, shall have the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishments, pains, penalties, taxes, licenses, and exactions of every kind and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding. No tax or charge shall be imposed or enforced by any State upon any person emigrating to such State from any other foreign country, and any law of any State in conflict with this provision is hereby declared null and void. Sec. 2. And be it further enacted, That any person who, under color of any law, statute, ordinance, regulation, or custom shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person being an alien, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding $1,000 or imprisonment not exceeding one year, or both, in the discretion of the court. Sec. 3. And be it further enacted, That the act to protect all persons in the United States in their civil rights, and furnish the means of their vindication, passed April 9, 1866, is hereby reenacted, and said act, except the first and second sections thereof, is hereby referred to and made a part of this act. Cong. Globe, 41st Cong., 2d Sess. 323 (1870). [2] The Fourth Circuit has reached an analogous conclusion in a recent case. In Ward v. Connor, 657 F.2d 45 (4th Cir. 1981), the court held that 42 U.S.C. § 1985(c) reaches private conspiracies to deprive a white man of his right to free exercise of religion. See id., slip op. at 48. It ruled that, despite the role of the thirteenth amendment in the passage of the predecessor to § 1985(c), the section reaches private conspiracies motivated by reasons other than race. See id. at 47-48. The court concluded that Congress' power stemmed from its control over interstate travel. See id. at 48-49. | 10-30-2013 | [
"522 F. Supp. 559 (1981) Celia and Enrique ESPINOZA, et al., Plaintiffs, v. HILLWOOD SQUARE MUTUAL ASSOCIATION, et al., Defendants. Civ. A. No. 81-0303-A. United States District Court, E. D. Virginia, Alexandria Division. September 16, 1981. *560 Bradley S. Stetler, Norman A. Townsend, Graber, Stetler & Townsend, Alexandria, Va., for plaintiffs Espinozas. Robert S. Blacher, Terris & Sunderland, Washington, D. C., for plaintiffs Espinozas and Rajpal. Brian P. Gettings, Mark D. Cummings, Cohen, Gettings & Sher, Arlington, Va., for defendants Hillwood Square and Joan Fling. MEMORANDUM OPINION RICHARD L. WILLIAMS, District Judge. This matter comes before the court on the plaintiffs' joint motion for partial summary judgment under Rule 56(a). See Fed. R.Civ.P. 56(a). The plaintiffs contend that no material issues of fact remain with respect to their section 1981 claims. See 42 U.S.C.",
"§ 1981 (1976). They, therefore, move for summary judgment on the liability issue of that portion of their suit. The defendants have countered with a joint motion under Rule 12(b)(6) to dismiss the plaintiffs' Fair Housing Act allegations for failure to state a cognizable claim. See Fed.R.Civ.P. 12(b)(6). For the reasons stated below, the court denies both the plaintiffs' summary judgment motion and the defendants' dismissal motion. I. STATEMENT OF FACTS Defendant Hillwood Square Mutual Association (Hillwood) is a cooperative housing association incorporated in Virginia. It owns and manages a townhouse subdivision in Falls Church, Virginia. The residents of Hillwood's subdivision do not own the townhouses in which they live. They, instead, are members of the association, which in turn owns all of the dwelling units.",
"Each member is entitled to perpetual use of a townhouse in accordance with a contract between the member and Hillwood. Since 1977, the association has maintained a policy of refusing membership to aliens. See Minutes of Special Meeting of Board of Directors, Hillwood Square Mutual Association, September 12, 1977, at 1. At all relevant times, defendant Joan Fling has been the manager of Hillwood's subdivision. Celia and Enrique Espinoza, alien residents of the United States, attempted to apply for membership in Hillwood on April 7, 1980. Fling denied them an application. A few days later, Fling again refused to give the Espinozas an application. On April 19, 1980, the Espinozas filed a complaint with the Human Rights Commission of Fairfax County, Virginia. In that complaint, they alleged that Hillwood had denied them membership because of their citizenship. Vinod Rajpal, an alien resident of the United States, first attempted to become a member of Hillwood on June 25, 1980.",
"At that time, Fling allegedly told him that he could not become a member due to his foreign citizenship. Hillwood subsequently denied membership to Rajpal on three more occasions. These refusals occurred on October 16, 1980, December 10, 1980, and February 12, 1981. *561 On April 6, 1981, the Espinozas and Rajpal filed suit against Hillwood in this court. The plaintiffs claim that Hillwood's citizenship policy violates both section 1981, 42 U.S.C. § 1981 (1976), and the Fair Housing Act, id. §§ 3601-3619. In particular, they allege that Hillwood's conduct constitutes discrimination on the basis of alienage and national origin.",
"See id. §§ 1981, 3604(a). The plaintiffs contend that their suit qualifies as a class action. See Fed.R.Civ.P. 23. They seek both injunctive relief and damages. On July 31, 1981, the Espinozas and Rajpal moved under Rule 56(a) for partial summary judgment on their section 1981 claims. They argue that no factual issues material to these claims remain unresolved. They ask the court to hold as a matter of law that the association's citizenship policy violates section 1981. Hillwood has responded with two allegations: first, it contends that it denied membership to Rajpal for reasons unrelated to his citizenship; and, second, it argues that the Espinozas had no basis for applying for membership, because they had not entered into a valid contract to purchase a townhouse. On August 11, 1981, Hillwood countered with a motion to dismiss the plaintiffs' Fair Housing Act claims under Rule 12(b)(6). The association argues that the 180-day limitation period of section 3612(a) bars these claims.",
"See 42 U.S.C. § 3612(a) (1976). In addition, it contends that an allegation of alienage discrimination fails to state a cognizable claim under the Fair Housing Act. II. THE PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON THEIR SECTION 1981 CLAIM The plaintiffs' summary judgment motion presents the issue of whether section 1981 reaches private discrimination based on citizenship. The court holds that an allegation of such discrimination does state a viable claim under section 1981. The court, however, must deny the plaintiffs' motion, because material factual issues remain unresolved. Section 1981 provides: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. 42 U.S.C.",
"§ 1981 (1976). In Runyon v. McCrary, 427 U.S. 160, 96 S. Ct. 2586, 49 L. Ed. 2d 415 (1976), the Supreme Court held that this section reaches purely private acts of racial discrimination. See id. at 168-72, 96 S. Ct. at 2593-95. While the court has ruled that section 1981 also prohibits alienage discrimination involving state action, see Takahashi v. Fish & Game Commission, 334 U.S. 410, 419, 68 S. Ct. 1138, 1142, 92 L. Ed. 1478 (1948), the courts are divided on the issue of whether the section applies to purely private alienage discrimination. The Fifth Circuit and several district courts have held that the section does encompass such private discrimination. See, e. g., Guerra v. Manchester Terminal Corp., 498 F.2d 641 (5th Cir. 1974); Ortega v. Merit Insurance Co., 433 F. Supp. 135 (N.D.Ill.1977). One district court, however, has ruled that the legislative history requires a contrary conclusion. DeMalherbe v. International Union of Elevator Constructors, 438 F. Supp. 1121 (N.D.Cal.1977).",
"Section 1981 is derived from section 1 of the Civil Rights Act of 1866 (1866 Act) and section 16 of the Civil Rights Act of 1870 (1870 Act). Section 1 of the 1866 Act provided: That all persons born in the United States and not subject to any foreign power ... are hereby declared to be citizens of the United States; and such citizens, of every race and color, ... shall have the same right ... to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens .... *562 Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27. This section was passed under section 2 of the thirteenth amendment to eliminate the badges and incidents of slavery. It applied only to discrimination based upon race.",
"See Runyon v. McCrary, 427 U.S. at 168-72, 96 S. Ct. at 2593-95. In 1869, Senator Stewart of Nevada initiated legislation to extend the protection of the 1866 Act to aliens. He first introduced the following resolution, which the Senate unanimously approved on December 6, 1869: Resolved, That the Committee on the Judiciary be requested to inquire if any States are denying to any class of persons within their jurisdiction the equal protection of the law, in violation of treaty obligations with foreign nations and of section one of the fourteenth amendment to the Constitution, and if so, what legislation is necessary to enforce such treaty obligations and such amendment, and to report by bill or otherwise. Cong. Globe, 41st Cong., 2d Sess. 3 (1869).",
"On January 10, 1870, Stewart introduced S. 365. [1]See id. at 323 (1870). In February, 1870, he moved for consideration of the bill and explained its relationship to section 1 of the 1866 Act: The original civil rights bill protected all persons born in the United States in the equal protection of the laws. This bill extends it to aliens, so that all persons who are in the United States shall have the equal protection of our laws. It extends the operation of the civil rights bill, which is well known in the Senate and to the country, to all persons within the jurisdiction of the United States. That is all there is in the bill. Id.",
"at 1536. On May 16, 1870, when the Senate commenced debate on S. 810, a bill to enforce the voting rights secured by the fifteenth amendment, Stewart offered S. 365 as an amendment. See id. at 3480. After the House passed H.R. 1293, a voting rights bill similar to S. 810, the Senate took up H.R. 1293 rather than S. 810. H.R. 1293 did not contain a provision equivalent to S. 365, so Stewart offered S. 810, with his amendment, as a substitute.",
"See id. at 3561. On May 20, 1870, Senator Stewart explained the purpose of his amendment to S. 810: We are inviting to our shores, or allowing them to come, Asiatics. We have got a treaty allowing them to come .... While they are here I say it is our duty to protect them .... It is as solemn a duty as can be devolved upon this Congress to see that those people are protected, to see that they have the equal protection of the laws, notwithstanding that they are aliens. They, or any other aliens, who may come here are entitled to that protection. *563 If the State courts do not give them the equal protection of the law, if public sentiment is so inhuman as to rob them of their ordinary civil rights, I say I would be less than [a] man if I did not insist, and I do here insist that that provision shall go on this bill; and that the pledge of this nation shall be redeemed, that we will protect Chinese aliens or any other aliens whom we allow to come here .... Id. at 3658.",
"The Senate passed H.R. 1293 as amended by Stewart's substitute. See id. at 3690. A conference was held to reconcile the differences in the Senate and House bills. It recommended adoption of Stewart's substitute without significant change. See id. at 3752. The Senate approved the conference report on May 25, 1870. See id. at 3809. The House approved the conference report on May 27, 1870. See id. at 3884. The President signed the bill on May 31, 1870. As enacted, Stewart's original bill became sections 16 through 18 of the Civil Rights Act of 1870: SEC. 16. And be it further enacted, That all persons within the jurisdiction of the United States shall have the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding. No tax or charge shall be imposed or enforced by any State upon any person immigrating thereto from a foreign country which is not equally imposed and enforced upon every person immigrating to such State from any other foreign country; and any law of any State in conflict with this provision is hereby declared null and void.",
"SEC. 17. And be it further enacted, That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by the last preceding section of this act, or to different punishment, pains, or penalties on account of such person being an alien, or by reason of his color or race, than is prescribed for the punishment of citizens, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court. SEC. 18. And be it further enacted, That the act to protect all persons in the United States in their civil rights, and furnish the means of their vindication, passed April nine, eighteen hundred and sixty-six, is hereby re-enacted; and sections sixteen and seventeen hereof shall be enforced according to the provisions of said Act.",
"Civil Rights Act of 1870, ch. 114, §§ 16-18, 16 Stat. 140. In 1866 and 1874, Congress authorized codification of federal statutory law. See Act of June 27, 1866, ch. 140, 14 Stat. 74; Act of June 20, 1874, ch. 333, 18 Stat. 113. The codifiers were aware that section 16 of the 1870 Act did not provide aliens with the property rights protection secured by section 1. They, therefore, split section 1 between what is now sections 1981 and 1982 of Title 42. See 42 U.S.C. §§ 1981-1982 (1976). The courts have construed section 1982 as prohibiting racial discrimination only. See, e. g., Arnold v. Tiffany, 359 F. Supp. 1034, 1035 (C.D.Cal. ); aff'd, 487 F.2d 216 (9th Cir.",
"1973), cert. denied, 415 U.S. 984, 94 S. Ct. 1578, 39 L. Ed. 2d 881 (1974). Section 1981, however, reaches discrimination based upon alienage. See Graham v. Richardson, 403 U.S. 365, 377-78, 91 S. Ct. 1848, 1854-55, 29 L. Ed. 2d 534 (1971); Takahashi v. Fish & Game Commission, 334 U.S. 410, 419, 68 S. Ct. 1138, 1142, 92 L. Ed. 1478 (1948). The Supreme Court has held that section 1981 reaches purely private racial discrimination. See Runyon v. McCrary, 427 U.S. *564 at 168-72, 96 S. Ct. at 2593-95. Hillwood, nonetheless, argues that, with respect to alienage discrimination, section 16 of the 1870 Act reaches only state action. This court, however, rules that the legislative history demonstrates that section 16 applied to purely private alienage discrimination, as well as to that involving state action.",
"Senator Stewart's comments indicate that he intended the new act to extend the protection of the 1866 Act to aliens. See Cong. Globe, 41st Cong., 2d Sess. 3658 (1870). The close parallel between the language of section 16 and that of section 1 supports this conclusion. The codifiers who combined the two sections to form section 1981 obviously felt that Congress had intended no distinction between the scopes of protection provided by the two sections. The structures of the 1866 and 1870 Acts also indicate that section 1981 prohibits private alienage discrimination. Section 1 of the 1866 Act and section 16 of the 1870 Act enumerate the individuals and the rights protected.",
"Section 2 of the 1866 Act and section 17 of the 1870 Act provide criminal penalties for violations of the protected rights if committed \"under color of state law.\" As the Supreme Court stated in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S. Ct. 2186, 20 L. Ed. 2d 1189 (1968): [I]f § 1 [of the 1866 Act] had been intended to grant nothing more than an immunity from governmental interference, then much of § 2 would have made no sense at all. For that section, which provided fines and prison terms for certain individuals who deprived others of rights \"secured or protected\" by § 1, was carefully drafted to exempt private violations of § 1 from the criminal sanctions it imposed. There would, of course, have been no private violations to exempt if the only \"right\" granted by § 1 had been a right to be free of discrimination by public officials. Id. at 424-26, 88 S. Ct. at 2195 (footnotes omitted). The Court's analysis of the 1866 Act applies with equal force to the structure of the 1870 Act. See Guerra v. Manchester Terminal Corp., 350 F. Supp.",
"529, 538 (S.D.Tex.1972), aff'd in part and rev'd in part, 498 F.2d 641 (5th Cir. 1974). Hillwood also argues that Congress enacted section 16 of the 1870 Act pursuant to the fourteenth amendment. It contends that section 16, therefore, could not constitutionally reach private discrimination, because the fourteenth amendment itself applies only to state action. Like the Fifth Circuit, this court \"respectfully decline[s] to embrace that reductio ad absurdum.\" 498 F.2d at 654 n.32. Regardless of which part of the Constitution the 41st Congress actually relied upon, it had the authority to prohibit private discrimination under its plenary power over immigration and naturalization. [2]See Graham v. Richardson, 403 U.S. at 377, 91 S. Ct. at 1854; Takahashi v. Fish & Game Commission, 334 U.S. at 419, 68 S. Ct. at 1142; Guerra v. Manchester Terminal Corp., 498 F.2d at 654 n.32.",
"The court, therefore, holds that section 1981 reaches purely private alienage discrimination. Two material factual issues, however, remain unresolved: first, a dispute exists as to whether Hillwood denied membership to Rajpal because of his citizenship; and, second, it is unclear whether the Espinozas had entered into a valid purchase contract at the time that they requested membership. Because of these material factual issues, the court must deny the plaintiffs' motion for partial summary judgment. III. HILLWOOD'S MOTION TO DISMISS PLAINTIFFS' FAIR HOUSING CLAIM The Espinozas and Rajpal claim that Hillwood violated section 3604(a) of the Fair *565 Housing Act by refusing to sell residences to them. See 42 U.S.C. § 3604(a) (1976). They allege that Hillwood based its refusal solely on their citizenship. The plaintiffs argue that this citizenship policy constitutes discrimination on the basis of national origin.",
"Hillwood has moved under Rule 12(b)(6) to dismiss this Fair Housing claim on two grounds. First, it contends that the 180-day limitation period of section 3612(a) bars the claim. See id. § 3612(a). Second, Hillwood argues that discrimination on the basis of citizenship is not a violation of section 3604(a). The court denies the defendants' motion to dismiss the Fair Housing Act portion of the complaint, because relevant factual issues remain unresolved. A. The Limitation Period Issue The Espinozas and Rajpal rely on section 3612(a) as the basis for this court's jurisdiction over their Fair Housing Act claims. See Plaintiffs' Complaint ¶ 2. Section 3610 provides an alternative route for bringing such claims into federal court, see Trafficante v. Metropolitan Life Insurance Co., 446 F.2d 1158, 1161 (9th Cir. 1971), rev'd on other grounds, 409 U.S. 205, 93 S. Ct. 364, 34 L. Ed. 2d 415 (1972), but it is not available in this case. It contains a proviso that blocks access to the federal courts if the aggrieved party has a judicial remedy under a state or local law \"substantially equivalent\" to the Fair Housing Act.",
"See 42 U.S.C. § 3610(d) (1976). Virginia has enacted such a \"substantially equivalent\" law. See Va.Code §§ 36-86 to -96 (1976). As a consequence, section 3610 cannot serve as a jurisdictional basis in this case. Section 3612(a) provides an aggrieved party with direct access to the federal courts. See 42 U.S.C. § 3612(a) (1976). This section, however, requires that any civil action \"be commenced within one hundred and eighty days after the alleged discriminatory housing practice occurred.\" Id. The section also contains a proviso that authorizes a district court to stay a civil action to allow further conciliation efforts. See id. The key issue in determining whether section 3612 bars the plaintiffs' Fair Housing claims in this case is when does the 180-day period begin to run. The Espinozas and Rajpal allege that Hillwood has a formal policy of refusing to sell residences to persons who are not United States citizens.",
"The plaintiffs argue that the effect of this policy is to create a continuous denial of their residence applications from the date of first refusal until at least the date of last refusal. Section 3612(a) states that the limitation period runs from the time when the \"discriminatory housing practice occurred.\" Id. The question in this case is when does a continuing discriminatory practice \"occur\" for purposes of the limitation provision. The Fair Housing Act does not define an occurrence. As a consequence of this definitional gap, two divergent views of when a continuing practice occurs have arisen.",
"1. The Coles and Pennypack Approaches to Section 3612(a) The first view to develop was that the initial refusal to sell to a particular party triggers the running of the limitation period for that party. In Meyers v. Pennypack Woods Home Ownership Association, 559 F.2d 894 (3d Cir. 1977), a home ownership association first refused to permit the sale of a house to the plaintiff buyer on September 6, 1971. See id. at 897. The buyer then attempted to negotiate with the association until December, 1974. See id. at 899. He brought a Fair Housing Act suit on January 3, 1975. See id. at 897.",
"The Third Circuit held that the limitation period of section 3612 barred the buyer's claim. See id. at 899. It reasoned that the 180-day period must run from the date of first refusal in order to avoid circumvention of the limitation: If such futile attempts at settlement or negotiation by the alleged injured party were allowed to breathe life into a claim long dead, the 180 day limitation established by Congress would have little significance. Such a tactic, if permitted, would enable a victim of alleged discrimination to circumvent the statute of limitations merely by provoking his adversary into another refusal to sell or rent. *566 We cannot believe that Congress intended the 180 day limitation of section 3612(a) to operate in such a fashion.",
"Id. Thus, the Third Circuit began the running of the limitation period at the time of the first refusal, because it believed that an aggrieved party should not be able to keep a claim alive by the simple device of reapplying for housing. See also Stingley v. City of Lincoln Park, 429 F. Supp. 1379, 1390-91 (E.D.Mich.1977). In Coles v. Havens Realty Corp., 633 F.2d 384 (4th Cir. 1980), cert. denied, ___ U.S. ___, 101 S. Ct. 1972, 68 L. Ed. 2d 293 (1981), the Fourth Circuit provided a second view of when the limitation period starts to run. The plaintiffs in that case were three employees of an organization seeking to equalize housing opportunities.",
"See 633 F.2d at 385. The employees individually were refused housing by a rental agent on several occasions between March 14, 1978, and July 13, 1978. See id. at 386. They brought a class action against the rental agent on January 9, 1979. See id. Of the several discriminatory acts, only the final refusal to rent to one of the employees on July 13 occurred within 180 days of the filing of the suit. The Fourth Circuit, however, held that section 3612 did not bar any of the plaintiffs' allegations.",
"See id. at 391-92. The court found that the rental agent was engaged in a \"continued violation of section 3604.\" Id. at 393. See also Fair Housing Council of Bergen County, Inc. v. East Bergen County Multiple Listing Service, Inc., 422 F. Supp. 1071, 1078 (D.N.J. 1976). It ruled, therefore, that \"the violations continued to `occur' until the last act of July 13, 1978.\" Id., 633 F.2d at 393. The court adopted this construction to insure the eradication of the discriminatory practice in question. See id. The Pennypack and Coles decisions present irreconcilable interpretations of the limitation provision of section 3612(a). Pennypack supports a strict construction of the limitation clause. The purpose of this approach is to force a party to bring a claim within 180 days of the first discriminatory act against that party.",
"The penalty for failing to do so is forfeiture of all Fair Housing Act remedies against the violator. This policy encourages rapid prosecution or settlement of claims. The Coles approach, on the other hand, is an attempt to effectuate the broad remedial goals of Title VIII. See id. at 392. It allows an aggrieved party to revive all Fair Housing Act claims against a violator simply by reapplying for housing with the violator. This court believes that both the Pennypack and Coles approaches to the Fair Housing limitation period are incorrect. The Pennypack interpretation of section 3612(a) is overly strict. Under this construction, many valid Title VIII claims would go unremedied. If the holder of a valid claim fails to file suit within 180 days of the violator's first discriminatory act against him, the holder is barred from suing regardless of how many times the violator later discriminates against him.",
"This interpretation is too narrow, because it permits a violator's policy of discrimination to continue unchecked. It, therefore, does not properly effectuate the broad remedial purposes of Title VIII. The Coles approach is also wrong. It effectively writes the 180-day limitation out of the statute, because it allows an aggrieved party to revive all claims against a violator simply by reapplying for housing. Thus, the Coles interpretation is too broad. This court feels that the proper interpretation of section 3612(a) is to bar all claims not based on discriminatory acts occurring within 180 days of filing suit. This construction is a middle road between Coles and Pennypack.",
"It would not prevent an aggrieved party from seeking relief simply because he had failed to file suit within 180 days of the violator's first refusal. On the other hand, it would not allow revival of claims based on discriminatory acts occurring outside the 180-day period. Cf. Player v. State of Alabama Department of Pensions & Security, 400 F. Supp. 249, 266-67 (M.D.Ala.1975), aff'd, 536 F.2d 1385 (5th Cir. 1976) (§ 3612 bars claim unless discriminatory act within 180 days of filing suit). Unfortunately, however, this court is bound *567 by the Fourth Circuit's opinion in Coles. Therefore, it must adopt a construction of section 3612(a) that it feels is not altogether correct. 2.",
"Application of Coles to Rajpal The portion of the Coles opinion dealing with section 3612(a) applies whenever there is an \"allegation of a continuing violation or a pattern of violations.\" In the present case, Hillwood had a formal policy of denying membership to aliens. Thus, Coles provides the controlling authority. Under the Coles approach to section 3612(a), Rajpal may bring claims based on all four of Hillwood's refusals. The last three refusals occurred within 180 days of the filing of this suit. Rajpal's claims based on these acts clearly are not barred. In addition, Coles allows him to revive claims based on the first refusal by reapplying for housing within the 180-day period. Because Rajpal did reapply, none of his claims are time-barred under section 3612(a).",
"3. Application of Coles to the Espinozas Hillwood denied the Espinozas' application for housing on April 7, 1980. Rajpal's reapplications with Hillwood do not revive the Espinozas' claim based on the April 7, 1980 refusal. In Coles, the Fourth Circuit held that a reapplication by one of the employees of the fair housing organization revived the claims of the other two employees. The employees, however, \"were involved in active, consecutive, connected, and continuing attempts to secure or determine compliance.\"",
"Coles v. Havens Realty Corp., 633 F.2d at 392. This court holds that one complainant's reapplication for housing can revive another's claims only if the two complainants are working together to determine whether a party is violating Title VIII. In the present case, there is no indication that the Espinozas and Rajpal were participating in a common scheme to investigate Hillwood. Rajpal's three reapplications, therefore, cannot revive the Espinozas' Fair Housing Act claims based on the April 7th refusal. Section 3612(a) does not bar the Espinozas' Fair Housing Act claims only if Hillwood refused membership to them within 180 days of the filing of this suit.",
"The Espinozas allege that they have continued to seek housing from Hillwood through the Human Rights Commission of Fairfax County, Virginia. See Plaintiffs' Complaint ¶ 13. Hillwood, however, contends that it has not denied housing to the Espinozas since April 7, 1980. See Defendants' Supplemental Memorandum in Support of Their Motion to Dismiss Plaintiffs' Claims Under 42 U.S.C. § 3601 et seq., at 2. Thus, a material factual issue remains as to whether Hillwood committed a discriminatory act against the Espinozas within 180 days of the filing of this suit. B. The Issue of Whether the Plaintiffs Have Stated A Cognizable Claim Under Section 3604(a) The Espinozas and Rajpal contend that Hillwood's refusal to sell housing to them constitutes a violation of section 3604(a).",
"This section makes it unlawful \"to refuse to sell or rent ... a dwelling to any person because of race, color, religion, or national origin.\" 42 U.S.C. § 3604(a) (1976). The plaintiffs allege that Hillwood's citizenship policy has the purpose or effect of discriminating on the basis of national origin. See Plaintiffs' Complaint ¶¶ 29, 33. Hillwood, in turn, denies this allegation. Hillwood has moved under Rule 12(b)(6) to dismiss the plaintiffs' Fair Housing Act counts for failure to state a claim under section 3604(a). The defendant argues that alienage discrimination is not a per se violation of Title VIII, because national origin and alienage are not synonymous terms. Hillwood further contends that it has applied its citizenship policy even-handedly among national-origin groups.",
"It concludes that the court, therefore, ought to dismiss the Fair Housing Act claims. The court agrees with Hillwood that alienage discrimination is not a per se violation of section 3604(a). In Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 94 S. Ct. 334, 38 L. Ed. 2d 287 (1973), an alien brought a Title VII action alleging that a company had refused to hire her because of her \"national *568 origin.\" Id. at 87, 94 S. Ct. at 336. The provision upon which the alien relied, like section 3604(a), prohibits discrimination on the basis of national origin, but not alienage discrimination. See 42 U.S.C. § 2000e-2(a)(1) (1976). The Supreme Court ruled that the term \"national origin\" in Title VII refers to a person's ancestry, and not his citizenship.",
"See 414 U.S. at 88, 94 S. Ct. at 336. The Court held, therefore, that alienage discrimination alone does not constitute discrimination on the basis of national origin. See id. at 88-91, 94 S. Ct. at 336-338. The Farah opinion, of course, does not directly address the Fair Housing Act, but the analogy between the discrimination provisions of Titles VII and VIII is extremely close. This court holds, therefore, that the Farah ruling on national origin applies to the Fair Housing Act, as well as to Title VII. The court finds support for this determination in Boyd v. Lefrak Organization, 509 F.2d 1110 (2d Cir. ), cert. denied, 423 U.S. 896, 96 S. Ct. 197, 46 L. Ed. 2d 129 (1975). In that case, the plaintiffs brought a Fair Housing Act suit alleging economic discrimination.",
"See 509 F.2d at 1111. The Second Circuit reversed a judgment for the plaintiffs on the ground that section 3604 does not forbid economic discrimination. In doing so, the court held that \"[a] landlord in the private sector is entitled to choose whom he will accept as tenants as long as he does not discriminate on one of the statutorily condemned bases.\" Id. at 1114. See also Madison v. Jeffers, 494 F.2d 114, 117 (4th Cir. 1974). This court rules on the basis of Farah and Lefrak that Hillwood's citizenship policy is not a per se violation of section 3604(a). Dismissal under Rule 12(b)(6), however, is not proper at this time. The plaintiffs have alleged that the citizenship policy in question had the effect of discriminating on the basis of national origin. In Farah, the Supreme Court stated: In some instances, for example, a citizenship requirement might be but one part of a wider scheme of unlawful national-origin discrimination. In other cases, an employer might use a citizenship test as a pretext to disguise what is in fact national-origin discrimination. Certainly Title VII prohibits discrimination on the basis of citizenship whenever it has the purpose or effect of discriminating on the basis of national origin.",
"414 U.S. at 92, 94 S. Ct. at 338. Thus, a material factual issue remains in the present case as to whether Hillwood's citizenship policy was a pretext for national-origin discrimination. IV. CONCLUSION For the reasons stated above, the court denies the plaintiffs' motion for partial summary judgment. The plaintiffs have stated a cognizable claim under section 1981. There remain, however, two material factual issues, which the parties ought to resolve at trial. First, a dispute exists as to whether Hillwood denied membership to Rajpal because of his citizenship.",
"Second, the parties disagree on the question of whether the Espinozas had entered into a valid purchase contract at the time that they requested membership. The court also denies the defendants' motion to dismiss the Fair Housing Act portion of the complaint. Section 3612(a) does not bar any of Rajpal's claims. In addition, the court cannot dismiss the Espinozas' Title VIII claims as time-barred, because it is unclear whether Hillwood refused membership to them within 180 days of the filing of this suit. Finally, the court rules that the plaintiffs have stated a cognizable claim under section 3604(a). The terms \"national origin\" and \"alienage,\" however, are not synonymous. Thus, the plaintiffs must demonstrate that Hillwood's citizenship policy had the effect of discriminating on the basis of ancestry.",
"Let the Clerk mail a copy of this Memorandum Opinion to counsel of record for the parties. NOTES [1] As proposed, S. 365 provided: Be it enacted, etc., That all persons within the jurisdiction of the United States, Indians not taxed excepted, shall have the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishments, pains, penalties, taxes, licenses, and exactions of every kind and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.",
"No tax or charge shall be imposed or enforced by any State upon any person emigrating to such State from any other foreign country, and any law of any State in conflict with this provision is hereby declared null and void. Sec. 2. And be it further enacted, That any person who, under color of any law, statute, ordinance, regulation, or custom shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person being an alien, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding $1,000 or imprisonment not exceeding one year, or both, in the discretion of the court. Sec.",
"3. And be it further enacted, That the act to protect all persons in the United States in their civil rights, and furnish the means of their vindication, passed April 9, 1866, is hereby reenacted, and said act, except the first and second sections thereof, is hereby referred to and made a part of this act. Cong. Globe, 41st Cong., 2d Sess. 323 (1870). [2] The Fourth Circuit has reached an analogous conclusion in a recent case. In Ward v. Connor, 657 F.2d 45 (4th Cir. 1981), the court held that 42 U.S.C. § 1985(c) reaches private conspiracies to deprive a white man of his right to free exercise of religion. See id., slip op. at 48. It ruled that, despite the role of the thirteenth amendment in the passage of the predecessor to § 1985(c), the section reaches private conspiracies motivated by reasons other than race. See id. at 47-48.",
"The court concluded that Congress' power stemmed from its control over interstate travel. See id. at 48-49."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1519721/ | 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 Newly submitted claims 21-24 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: Claims 21-24 are directed to determining whether a component or device coupled to the IHS has an ability to persist license data and at least one of: (a) in response to the component or device lacking the ability to persist license data, executing a command as a get license command, or (b) in response to the component or device having the ability to persist license data, executing the command as a verify license command. Claims 21-24 are not directed to the originally presented invention because they are not directed to at least one of: (a) in response to the component or device lacking license data stored therein, executing the command as a get license command, or (b) in response to the component or device having license data stored therein, executing the command as a verify license command. Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 21-24 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
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.
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 1-4, 6 are rejected under 35 U.S.C. 103 as being unpatentable over Tonry et al. (US 2015/0370575 A1) in view of Brundridge et al. (US 10,467,388) and Challener et al. (US 2003/0208338 A1). Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Tonry et al./Brundridge et al./Challener et al. in view of Zimmer et al. (US 2006/0129675 A1) and Huang et al. (US 2017/0220802 A1). Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Tonry et al./Brundridge et al./ Challenger et al. in view of Zimmer et al.. As per claim 1, Tonry teaches a method (200, FIG. 2), comprising: loading, by a processor of an Information Handling System (IHS) in response to execution of Basic System Input/Output (BIOS) code and prior to the booting of any Operating System (OS) by the IHS, a Unified Extensible Firmware Interface (UEFI) driver [processor (120, FIG. 1); Information Handling System (100, FIG. 1; [0024], line 7); in response to execution of BIOS code (BIOS firmware 192 may be launched and may execute ([0027], lines 2-3); When BIOS firmware 192 executes, BIOS firmware 192 may be enabled to receive requests for license activation ([0027], lines 8-10)); prior to the booting of any Operating System by the IHS (BIOS firmware 192 representing pre-boot instructions executable by processor subsystem 120 ([0026], lines 4-5) for preparing information handling system to boot…in preparation of launching operating system 132 for execution ([0026], lines 4-8)); Unified Extensible Firmware Interface (UEFI) driver (BIOS 190 complies with UEFI specification ([0026], lines 9-10); license manager driver (stored in BIOS 190 is license information 194 which may be employed for license management by BIOS firmware 192 ([0026], lines 12-14); license information may include…executable code for managing a particular license ([0030], lines 11-14)); license manager driver needs to be loaded by the processor for performing license management]; and executing, by the processor, a command received from a device coupled to the IHS [command is request received at a user interface implemented by the BIOS ([0030], lines 1-5); user interface suggests a device coupled to the IHS – hence a command received from a device coupled to the IHS; command is executed to retrieve license information (204, FIG. 2)], wherein the command follows a license management protocol provided by the UEFI driver [BIOS complies with UEFI ([0026], lines 9-10) suggests protocol provided by the UEFI driver; command received by the BIOS (202, FIG. 2) being executed to retrieve license information (204, FIG. 2) suggests license management protocol provided by the UEFI driver; received command needs to follow license management protocol provided by the UEFI driver in order to retrieve license information at 204 (FIG. 2)]. Tonry further teaches the command obtaining a license with license data to activate the license [204, FIG. 2; [0030], lines 5-8]. Tonry does not teach (a) executing the command received from the device coupled to the IHS as a get license command in response to the device lacking license data stored therein. Brundridge teaches executing a command received from a device coupled to an IHS as a get license command in response to the device lacking license data stored therein - to obtain a license with license data to activate a licensable feature of the device [request for a license sent…from a component (claim 1, lines 7-8) is command received from the device; component/device is coupled to an IHS (components 108, 110, 112 are coupled to IHS 102 – FIG. 1); command is executed as a get license command in response to the device lacking license data stored therein - to obtain a license with license data to activate a licensable feature of the device (claim 1, last 9 lines)]. Brundridge would have suggested to one skilled in the art before the effective filing date of the claimed invention to execute a command received from a device coupled to an IHS (one of devices 140, 150, 160, 170 – FIG. 1 of Tonry) as a get license command in response to the device lacking license data stored therein - to obtain a license with license data to activate a licensable feature of the device. Tonry/Brundridge does not teach rebooting the IHS in response to a request from the device indicating that the license data requires a reboot in order to take effect. It was known in the art before the effective filing date of the claimed invention for a device to indicate that its configuration data requires a reboot to take effect. It would have been obvious to one skilled in the art before the effective filing date of the claimed invention for the device of Tonry/Brundridge to indicate that the license data requires a reboot in order to take effect because license data is no more than a configuration data for the device. It would have been further obvious to one skilled in the art before the effective filing date of the claimed invention to reboot the IHS in response to the device indicating that the license data requires a reboot in order to take effect - to allow the license data to take effect. Tonry/Brundridge, however, does not suggest rebooting the IHS to allow the license data to take effect prior to the booting of any OS. Challener suggests rebooting an IHS prior to booting any OS to allow a functionality to take effect ([0025], last 5 lines). Challener would have suggested to one skilled in the art before the effective filing date of the claimed invention to reboot the IHS to allow the license data to take effect prior to the booting of any OS because obtaining license data are no more than functionalities associated with the device. As per claim 2, Tonry teaches the license data being obtained [license data is obtained by BIOS (204, FIG. 2)] prior to the booting of any OS by the IHS being completed [BIOS firmware 192 representing pre-boot instructions executable by processor subsystem 120 ([0026], lines 4-5) for preparing information handling system to boot…in preparation of launching operating system 132 for execution ([0026], lines 4-8) suggests license data being obtained prior to launching operating system – hence prior to the booting of any OS by the IHS being completed]. As per claim 3, Tonry does not teach loading, by the processor, an Option Read Only Memory (ROM) of a device coupled to the IHS by starting a UEFI binding process. Brundridge teaches loading an Option Read Only Memory (ROM) of a device coupled to the IHS by starting a binding process to activate the device [Option ROM of a component coupled to the IHS is non-volatile flash memory (col. 7, lines 45-46) containing data to be used in the licensing process such as unique identification number for the component (col. 7, lines 48-51); binding process is process in which data in the non-volatile flash memory is matched with data supplied to the component (col. 7, lines 52-54); binding process is started before the component can be activated (col. 7, lines 52-54); data to be used in the licensing process is provided with loading of the non-volatile flash memory]. Brundridge, in combination with Tonry suggesting compliance with UEFI ([0026], lines 9-10), would have suggested to one skilled in the art before the effective filing date of the claimed invention to load an Option ROM of a device coupled to the IHS by starting a UEFI binding process in order to activate the device. As per claim 4, Tonry does not specifically teach the license data being configured to allow the device to enable a corresponding feature in the device. Brundridge teaches a license for a component delineating specific list of features of the component [col. 4, lines 4-6] – hence the license data being configured to allow a device to enable a feature in the device. Brundridge would have suggested to one skilled in the art before the effective filing date of the claimed invention to use its license data to allow the device to enable a feature in the device. As per claim 5, Tonry does not teach the command including an Intelligent Platform Management Interface (IPMI) or Shared Memory Access (SMA) command. Zimmer teaches remote agents communicating via a network with a BMC [[0021], last 5 lines] coupled to an IHS [300, FIG. 3]. Zimmer would have suggested to one skilled in the art before the effective filing date of the claimed invention to couple a BMC to the IHS of Tonry to allow for communication with remote agents. Huang teaches communication between a UEFI BIOS and BMC firmware being performed with Intelligent Platform Management Interface (IPMI) commands [[0047], lines 4-7]. Huang would have suggested to one skilled in the art before the effective filing date of the claimed invention to implement commands of Tonry/Zimmer as IPMI commands to allow for communication with remote agents via the BMC. As per claim 6, Tonry teaches executing the command including communicating with a license store [BIOS firmware may enable a user to purchase a license ([0027], lines 16-17); purchase of a license contract from a vendor of the license ([0030], lines 19-21)]. As per claim 7, Tonry does not teach the license store being provided by a baseboard management controller (BMC) coupled to the IHS. Zimmer teaches remote agents communicating via a network with a BMC [[0021], last 5 lines] coupled to an IHS [300, FIG. 3]. Zimmer would have suggested to one skilled in the art before the effective filing date of the claimed invention to couple a BMC to the IHS of Tonry to allow a remote license store to communicate with the IHS via a network.
Response to Arguments Applicant’s arguments with respect to the elected claims have been considered but are moot in view of the current rejection.
Note that “a RAID component or device coupled to the IHS” in lines 6-7 of claim 1 is interpreted as a RAID component coupled to the IHS or a device coupled to the IHS (i.e. not interpreted as a RAID component coupled to the IHS or a RAID device coupled to the IHS; i.e. not interpreted as a RAID component not necessarily coupled to the IHS or a device coupled to the IHS; i.e. not interpreted as a RAID component not necessarily coupled to the IHS or a RAID device coupled to the IHS).
Note that the well-known statement is taken to be admitted prior art because applicant did not traverse the well-known statement, in re Chevenard, 139 F.2d 711, 713, 80 USPQ 239, 241 (CCPA 1943).
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 TANH Q NGUYEN whose telephone number is (571)272-4154. The examiner can normally be reached on M-F (10:30AM-6:30PM). 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, 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 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.
/TANH Q NGUYEN/Primary Examiner, Art Unit 2187 TQN: April 16, 2021 | 2021-04-20T05:41:38 | [
"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 Newly submitted claims 21-24 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: Claims 21-24 are directed to determining whether a component or device coupled to the IHS has an ability to persist license data and at least one of: (a) in response to the component or device lacking the ability to persist license data, executing a command as a get license command, or (b) in response to the component or device having the ability to persist license data, executing the command as a verify license command. Claims 21-24 are not directed to the originally presented invention because they are not directed to at least one of: (a) in response to the component or device lacking license data stored therein, executing the command as a get license command, or (b) in response to the component or device having license data stored therein, executing the command as a verify license command.",
"Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 21-24 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03. 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. 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 1-4, 6 are rejected under 35 U.S.C. 103 as being unpatentable over Tonry et al. (US 2015/0370575 A1) in view of Brundridge et al. (US 10,467,388) and Challener et al.",
"(US 2003/0208338 A1). Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Tonry et al./Brundridge et al./Challener et al. in view of Zimmer et al. (US 2006/0129675 A1) and Huang et al. (US 2017/0220802 A1). Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Tonry et al./Brundridge et al./ Challenger et al. in view of Zimmer et al.. As per claim 1, Tonry teaches a method (200, FIG. 2), comprising: loading, by a processor of an Information Handling System (IHS) in response to execution of Basic System Input/Output (BIOS) code and prior to the booting of any Operating System (OS) by the IHS, a Unified Extensible Firmware Interface (UEFI) driver [processor (120, FIG. 1); Information Handling System (100, FIG. 1; [0024], line 7); in response to execution of BIOS code (BIOS firmware 192 may be launched and may execute ([0027], lines 2-3); When BIOS firmware 192 executes, BIOS firmware 192 may be enabled to receive requests for license activation ([0027], lines 8-10)); prior to the booting of any Operating System by the IHS (BIOS firmware 192 representing pre-boot instructions executable by processor subsystem 120 ([0026], lines 4-5) for preparing information handling system to boot…in preparation of launching operating system 132 for execution ([0026], lines 4-8)); Unified Extensible Firmware Interface (UEFI) driver (BIOS 190 complies with UEFI specification ([0026], lines 9-10); license manager driver (stored in BIOS 190 is license information 194 which may be employed for license management by BIOS firmware 192 ([0026], lines 12-14); license information may include…executable code for managing a particular license ([0030], lines 11-14)); license manager driver needs to be loaded by the processor for performing license management]; and executing, by the processor, a command received from a device coupled to the IHS [command is request received at a user interface implemented by the BIOS ([0030], lines 1-5); user interface suggests a device coupled to the IHS – hence a command received from a device coupled to the IHS; command is executed to retrieve license information (204, FIG.",
"2)], wherein the command follows a license management protocol provided by the UEFI driver [BIOS complies with UEFI ([0026], lines 9-10) suggests protocol provided by the UEFI driver; command received by the BIOS (202, FIG. 2) being executed to retrieve license information (204, FIG. 2) suggests license management protocol provided by the UEFI driver; received command needs to follow license management protocol provided by the UEFI driver in order to retrieve license information at 204 (FIG. 2)]. Tonry further teaches the command obtaining a license with license data to activate the license [204, FIG. 2; [0030], lines 5-8]. Tonry does not teach (a) executing the command received from the device coupled to the IHS as a get license command in response to the device lacking license data stored therein. Brundridge teaches executing a command received from a device coupled to an IHS as a get license command in response to the device lacking license data stored therein - to obtain a license with license data to activate a licensable feature of the device [request for a license sent…from a component (claim 1, lines 7-8) is command received from the device; component/device is coupled to an IHS (components 108, 110, 112 are coupled to IHS 102 – FIG.",
"1); command is executed as a get license command in response to the device lacking license data stored therein - to obtain a license with license data to activate a licensable feature of the device (claim 1, last 9 lines)]. Brundridge would have suggested to one skilled in the art before the effective filing date of the claimed invention to execute a command received from a device coupled to an IHS (one of devices 140, 150, 160, 170 – FIG. 1 of Tonry) as a get license command in response to the device lacking license data stored therein - to obtain a license with license data to activate a licensable feature of the device. Tonry/Brundridge does not teach rebooting the IHS in response to a request from the device indicating that the license data requires a reboot in order to take effect. It was known in the art before the effective filing date of the claimed invention for a device to indicate that its configuration data requires a reboot to take effect. It would have been obvious to one skilled in the art before the effective filing date of the claimed invention for the device of Tonry/Brundridge to indicate that the license data requires a reboot in order to take effect because license data is no more than a configuration data for the device.",
"It would have been further obvious to one skilled in the art before the effective filing date of the claimed invention to reboot the IHS in response to the device indicating that the license data requires a reboot in order to take effect - to allow the license data to take effect. Tonry/Brundridge, however, does not suggest rebooting the IHS to allow the license data to take effect prior to the booting of any OS. Challener suggests rebooting an IHS prior to booting any OS to allow a functionality to take effect ([0025], last 5 lines). Challener would have suggested to one skilled in the art before the effective filing date of the claimed invention to reboot the IHS to allow the license data to take effect prior to the booting of any OS because obtaining license data are no more than functionalities associated with the device.",
"As per claim 2, Tonry teaches the license data being obtained [license data is obtained by BIOS (204, FIG. 2)] prior to the booting of any OS by the IHS being completed [BIOS firmware 192 representing pre-boot instructions executable by processor subsystem 120 ([0026], lines 4-5) for preparing information handling system to boot…in preparation of launching operating system 132 for execution ([0026], lines 4-8) suggests license data being obtained prior to launching operating system – hence prior to the booting of any OS by the IHS being completed]. As per claim 3, Tonry does not teach loading, by the processor, an Option Read Only Memory (ROM) of a device coupled to the IHS by starting a UEFI binding process.",
"Brundridge teaches loading an Option Read Only Memory (ROM) of a device coupled to the IHS by starting a binding process to activate the device [Option ROM of a component coupled to the IHS is non-volatile flash memory (col. 7, lines 45-46) containing data to be used in the licensing process such as unique identification number for the component (col. 7, lines 48-51); binding process is process in which data in the non-volatile flash memory is matched with data supplied to the component (col. 7, lines 52-54); binding process is started before the component can be activated (col. 7, lines 52-54); data to be used in the licensing process is provided with loading of the non-volatile flash memory]. Brundridge, in combination with Tonry suggesting compliance with UEFI ([0026], lines 9-10), would have suggested to one skilled in the art before the effective filing date of the claimed invention to load an Option ROM of a device coupled to the IHS by starting a UEFI binding process in order to activate the device.",
"As per claim 4, Tonry does not specifically teach the license data being configured to allow the device to enable a corresponding feature in the device. Brundridge teaches a license for a component delineating specific list of features of the component [col. 4, lines 4-6] – hence the license data being configured to allow a device to enable a feature in the device. Brundridge would have suggested to one skilled in the art before the effective filing date of the claimed invention to use its license data to allow the device to enable a feature in the device. As per claim 5, Tonry does not teach the command including an Intelligent Platform Management Interface (IPMI) or Shared Memory Access (SMA) command. Zimmer teaches remote agents communicating via a network with a BMC [[0021], last 5 lines] coupled to an IHS [300, FIG.",
"3]. Zimmer would have suggested to one skilled in the art before the effective filing date of the claimed invention to couple a BMC to the IHS of Tonry to allow for communication with remote agents. Huang teaches communication between a UEFI BIOS and BMC firmware being performed with Intelligent Platform Management Interface (IPMI) commands [[0047], lines 4-7]. Huang would have suggested to one skilled in the art before the effective filing date of the claimed invention to implement commands of Tonry/Zimmer as IPMI commands to allow for communication with remote agents via the BMC. As per claim 6, Tonry teaches executing the command including communicating with a license store [BIOS firmware may enable a user to purchase a license ([0027], lines 16-17); purchase of a license contract from a vendor of the license ([0030], lines 19-21)]. As per claim 7, Tonry does not teach the license store being provided by a baseboard management controller (BMC) coupled to the IHS. Zimmer teaches remote agents communicating via a network with a BMC [[0021], last 5 lines] coupled to an IHS [300, FIG.",
"3]. Zimmer would have suggested to one skilled in the art before the effective filing date of the claimed invention to couple a BMC to the IHS of Tonry to allow a remote license store to communicate with the IHS via a network. Response to Arguments Applicant’s arguments with respect to the elected claims have been considered but are moot in view of the current rejection. Note that “a RAID component or device coupled to the IHS” in lines 6-7 of claim 1 is interpreted as a RAID component coupled to the IHS or a device coupled to the IHS (i.e.",
"not interpreted as a RAID component coupled to the IHS or a RAID device coupled to the IHS; i.e. not interpreted as a RAID component not necessarily coupled to the IHS or a device coupled to the IHS; i.e. not interpreted as a RAID component not necessarily coupled to the IHS or a RAID device coupled to the IHS). Note that the well-known statement is taken to be admitted prior art because applicant did not traverse the well-known statement, in re Chevenard, 139 F.2d 711, 713, 80 USPQ 239, 241 (CCPA 1943).",
"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 TANH Q NGUYEN whose telephone number is (571)272-4154. The examiner can normally be reached on M-F (10:30AM-6:30PM).",
"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, 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 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. /TANH Q NGUYEN/Primary Examiner, Art Unit 2187 TQN: April 16, 2021"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-04-25.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Holmes, Judge, delivered the opinion of the court. In the case of Vasquez v. Ewing, 24 Mo. 31, in which the plaintiff stood upon the same list and survey which are again presented in this record, it was decided that the commons title, under the act of June 13, 1812, with an approved survey, was equivalent to a patent, and must prevail, unless the plaintiff could prove the facts necessary to show that no title passed; and it was conceded that this might be done by actual proof that the claimant had inhabited, cultivated, or possessed a lot, within the meaning of that act, prior to the 20th day of December, 1803, situated within the boundaries of the survey of the commons; for that if the land were an out-lot it could not have been commons. In this case, besides the documents mentioned, the plaintiffs introduced the recorder’s certificate No. 78, dated February 17, 1852, accompanied by the plat and description of the survey No. 2965, and certifying that, under the acts of Congress of 1812 and 1824, “the legal representatives of Benito Yasquez have been confirmed in their claim to an 1 out-lot ’ south of and near to the town of St. Louis, containing four arpents front by eight in depth, so as to include the spring usually called Benito’s *256Spring,” and that the feaid out-lot had been regularly surveyed, as appeared from the accompanying plat and description. The testimony of witnesses was also offered to prove the existence of the facts prior to 1803, which were necessary to be proved in order to bring the land in controversy within the operation of the act of Congress of the 13th of June, 1812, as a grant of title to this land as an out-lot of the town of St. Louis, within the meaning of the act. It is obvious that if this land had been such an out-lot it could not have been commons. The plaintiff undertook to establish the fact that it had been and was an out-lot, within the direct operation of that act. It has been settled that the existence of the facts necessary to constitute such a lot is a matter of fact for the jury to determine, but that what facts will constitute an out-lot is a question of law for the court. (Page v. Scheibel, 11 Mo. 182; City v. Toney, 21 Mo. 256.) To constitute such a lot it must be shown to have had an existence, as such, under the former government, prior to the 20th day of December, 1803, with a definite location and boundaries. Such is the theory upon which the uniform course of decision, in cases arising under these acts, has proceeded. Town lots, out-lots, common field lots, and commons, were known and recognized parts of the Spanish town or commune (del commune) of St. Louis. They existed by public authority, whether by concession, custom, or permission. It has been held not necessary to prove any concession or permission of the authorities. The legal history of the country would doubtless show that they never existed without permission; but whenever the fact of claim, inhabitation, cultivation, or possession of such a lot, adjoining and belonging to the town, with ascertained or ascertainable location and boundaries, prior to 1803, can be proved, the permission of the authorities may be implied, and is to be presumed. (Harrison v. Page, 16 Mo. 205; Guitard v. Stoddard, 16 How. 494; Fine v. Schools, 30 Mo. 176.) It is not enough merely to prove inhabitation, cultivation, or possession, somewhere on the land claimed. (City v. Toney, 21 Mo. 255.) It would be evidence to go to the jury to prove that particular fact. There must also be *257evidence of the location and boundaries of the lot claimed. The act of 1812 was not a grant of lands to be located by survey. It was not a floating grant. The documentary evidence might be disposed of upon the authority of Vasquez v. Ewing, 24 Mo. 31, without more. It was held that prima facie evidence only was not enough to surmount the commons title, and it was deemed that “ Congress may pass a title, and then, by a subsequent act, require less evidence to defeat that title than was required when it was first conveyed.” In truth, these documents, when admitted, furnished no evidence of the existence of any definite location and boundaries of this supposed out - lot. They did not prove all the necessary facts. Whatever prima facie effect they might have in any case, that effect in this case was rebutted and .disproved as against the defendant, who stood in a position to call their validity in question. The extract from Hunt’s list describes the lot as “ four arpents in front, eight deep, bounded in front by the commons or vacant land; then running back eight arpents, so as to include the spring usually called Benito’s Spring.” It does not appear that any other location, boundaries, or description, was proven before the recorder. Here we have a parallelogram of four by eight arpents, lying in an eastwardly and westwgrdly direction, so as to include the spring. There was a given outline, but no fixed, no ascertainable location. It is a floating claim merely, which could be located only by the political government acting through the Surveyor-General. This officer had no authority by law to assign a location to such a claim. He had authority only to survey such lots by their definite location and boundaries, as they had actually existed prior to 1803, or as the same had been proved before the recorder. It does not appear that he had any other basis for his action than this extract from the list which had been transmitted to him by that officer. He could derive none from instructions. Of fixed or ascertainable landmarks or boundaries that had existed before the change of government, there were none. The survey does not purport to have found any such landmarks or ealls, nor to have ascertained them by any evidence, on the ground. The springs and the remains of the cabin furnished no evidence of *258boundaries. The field notes show that the surveyor adjusted the variation of his compass by the lines of a former survey in the neighborhood, and began this survey at a point forty-five links south of the south boundary of that survey, where he established a corner and ran off a parallelogram so as to include the spring and the cabin site. This parallelogram was made to lay more southeastwardly than eastwardly. No reason appears for his starting at that point rather than any other that would make the survey include the spring. It is evident that his proceeding was wholly arbitrary. Nor had his superior officers of the land office any authority by lair to create by instructions a definite location and boundaries for such a lot, where none existed before. The certificate, independently of the survey annexed, was no more definite than the list. We think it is apparent that these documents, even if admissible as prima facie evidence of what they could show, furnished no proof of any definite location for this lot. At most, they show only an inhabitation, cultivation, and prossession, prior to 1803, and a claim made of a tract of four by eight arpents of land, lying somewhere around the Benito Spring. This was no tract of land, and no out-lot. (Menard v. Massey, 8 How. 309; Stanford v. Taylor, 18 How. 412; United States v. Lawton, 5 How. 28.) If this had been a grant of land to be located by official survey, there is no doubt such a survey as this would have been binding on the government and the parties occupying it. In this class of cases, however, the political power to locate the claim was not retained by the government ; the question of location and boundaries was left to the courts. The location that was made can be regarded only as the arbitrary and unauthorized determination of the surveyor. (Ott v. Soulard, 9 Mo. 595.) It is the right and claim that is confirmed by the act, and not merely the possession or cultivation ; but there can be no right and claim to an out-lot without boundaries and location. The act of May 26, 1824, directed .the individual owners or claimants to designate their said lots by proving “ the fact of such inhabitation, cultivation, or possession, and the boundaries and ¡extent of each claim, so as to enable the Surveyor-General to *259distinguish the private from the vacant lots ; ” and the recorder was directed to furnish the Surveyor-General with a list of the lots so proved, “ to serve as his guide in distinguishing them from the vacant lots” to be set apart for schools. (4 U. S. Stat. 65, §§ 1, 3.) These provisions presuppose that such lots already had an existence, with a location, extent, and boundaries, capable of being ascertained and distinguished by the Surveyor-General. It is not doubted that authority was conferred upon him to survey these lots for the purposes of the act; but there is still no ground for the inference that he was empowered to create a lot by assigning a location or boundaries where none existed before, or where none had been proven before the recorder. The owners or claimants were to prove the extent and boundaries of their lots, and the recorder was to furnish a list of the lots so proved. It is manifest that if the proof made failed to show any ascertainable boundaries, the list furnished could not enable the surveyor to perform the duty required of him. It would be all the same thing as if no proof had been made and no list furnished. Such being the case here, the survey that was made can have no validity against the defendant. It is believed that in all the cases in which the certificate of confirmation has been held to be prima facie evidence of the facts required to be proved, the record of the proof made, or the registry or list of claims proved, or the certificate itself, when issued by the recorder before a survey, contained calls and description of location, extent, and boundaries, that were capable of being ascertained and identified on the ground by survey, or by the calls and landmarks, or description, without a survey. In some of the cases the calls and description were somewhat indefinite, but it was still practicable to ascertain the location and fix the boundaries indicated by evidence of identification by the calls, description, and character of the lot. (City v. Toney, 21 Mo. 243; Harrison v. Page, 16 Mo. 182; Page v. Scheibel, 11 Mo. 187.) In these cases, the sufficiency of the calls and description contained in the certificate or the tabular list, to admit of identifica - tion, was not questioned. In the case of Gamache v. Pequignot, 17 Mo. 310, the supple*260mentary list and certificate, being acts of Hunt’s successor in office, based upon the minutes, were held void, as done without authority of law, for the reason that the recorder had omitted to enter the claim on his registry or list as a claim proved, and the Land Department had refused to record the survey; but we are not aware that it has ever been maintained that the mere fact that a claim was placed in that list was to be taken as evidence that the lot had been proved, as required, as to extent and boundaries, whether such extent and boundaries were shown by it or not, or where none were shown. The list has been held admissible to prove the same facts as the certificate. Aside from the survey, this certificate proves no more than the list. The minutes and the list were the only evidence that remained in the office of the recorder by which it could be made -to appear to a successor in the office that such proof had been made before the recorder within the eighteen months, or at any time. The list is the only evidence produced here to show that such proof had been made. It appears to have been the sole basis of the action of the Surveyor-General, and of the recorder, who issued the certificate upon the return of the survey to his office, in 1852. The list did not show any ascertainable location, nor any boundaries that were capable of being identified on the ground. There was, then, no foundation or warrant for this action of the surveyor or recorder. Whatever prima facie effect might be due to the certificate in the first instance, when offered in evidence, was effectually rebutted and disproved, as to location and boundaries, by the list and survey that were produced with it. The list was the only legal warrant for the surveyor. He might resort to other evidence to enable him to execute what he was authorized to do; but he was not authorized to locate a floating claim. It does not appear by the survey, nor by the field notes, that he had any other record evidence before him but this list,- nor that he ascertained any calls whatever for location of boundaries, otherwise than by a purely arbitrary proceeding of his own. The recorder could act only upon the records remaining in his office. It was not denied, in Gamache v. Pequignot, that the recorder might act upon claims proved before his predecessor in office, but it was held that when *261the first incumbent of the office had acted, and furnished a list to the surveyor, the law would draw the conclusion that claims not within the list were claims not proved to his satisfaction. The claim which the plaintiff presents here, so far as the location and boundaries are in question, was not embraced in the list. The conclusion to be drawn from this evidence must be that no location and boundaries were proved before the recorder. It must follow that the claim of the plaintiff to this land as an out-lot was never proved before that officer, and that the documents furnished no sufficient evidence to entitle the plaintiff to recover, as against this defendant, standing on the commons title. Nor could this survey be properly regarded as evidence of boundaries, in connection with the actual proof of inhabitation, cultivation, or possession of a part by one claiming the whole. We have next to consider how the case stands upon the parol evidence of facts in pais. It may be conceded that if this land were an out-lot at all, the proof would sufficiently show that it was situated “in, adjoining, and belonging to, the town.” It must have been a part of the commons or civil dependency of the Spanish town. (Eberle v. Schools, 11 Mo. 265; City v. Toney, 21 Mo. 243; 3 Codigos Espagnoles, 336, lines 9-10, tit. 28, partidas 3.) The authorities recognize the theory that when a lot of this kind is to be proved by evidence of facts in pais, it must be shown to have existed, in the character of an out-lot, prior to 1803, with designated and ascertainable location and boundaries, though actual occupancy or cultivation may not be essential to establish the existence of such lot. (Trotter v. Schools, 9 Mo. 86.) The act of 1812 operated to confirm “ an existing and recognized claim or title, with ascertained boundaries, or boundaries which could be ascertained.” (Guitard v. Stoddard, 16 How. 512.) Where such boundaries can be proved, a survey is not necessary to the perfection of the title. In cases of lots assigned to the schools, it has been held that where a vacant piece of land, marked out only by surrounding surveys or by other lots, has been designated and set apart to the schools as a vacant lot, the survey and assignment will prove that the land was a lot, until some third *262party can show a better title. (Kissell v Schools, 18 How. 25; 16 Mo. 553.) This principle can have no application to a case like this. There was no such designation of boundaries for this lot. The plaintiff must establish by proof that the land claimed had the character of an out-lot, with definite location and boundaries, and was claimed, inhabited, cultivated, or possessed, as such out-lot, prior to the 20th day of December, 1803. Actual proof is made of inhabitation, cultivation, and possession, on ground within this claim; but there is no actual proof of the location and boundaries of the whole lot claimed, nor that any such out-lot ever existed prior to that date, with the location and boundaries that are now claimed. It may be said, in general terms, that this testimony was no more effective or complete than the documentary evidence. It afforded no additional proof as to the definite location and boundaries. The witnesses speak of the springs, an old cabin on rising ground, and a fence inclosing the cabin and three or four arpents of land north of the spring. The proof of inhabitation, cultivation, or possession, is confined to these facts. There is not the least indication of any boundaries or any definite location of a lot of four by eight arpents. The situation of the fence mentioned is not ascertained with any certainty as to its locality. There is nothing in the whole testimony by which the outline of the given parallelogram would be anywhere definitely fixed on the earth’s surface. It ascertains no metes and bounds. It designates no calls or description of boundary. No facts are proved by which the location and boundaries could possibly be made certain. The proof wholly failed in this essential element: in the character and description of an out-lot, within the meaning of the act of Congress. This was a question of law. It was not a matter of fact to be determined by the jury, when there was no evidence of the fact before them. The concession offered in evidence by the defendant has no material effect upon the case. It gave no definite location and boundaries, though boundaries might have been established under it by actual possession and fixed landmarks. But it was re-annexed to the royal domain. The marginal entry of the Lieutenant-*263Governor was a part of the official document. Such entries in relation to other lots than the one in litigation have been held to be admissible evidence to show that the practice of abandonment and re-annexation prevailed under the former government, and, a fortiori, it must be competent to show an actual re-annexation of the very land conceded. This land may have been conceded again, or a claim and possession might have been subsequently established. There can be no question of an abandonment until a claim to the land, as an out-lot, has been established by proof. There was some evidence, on the part of the defendant, that Yasquez had been required by the public authorities to remove his cabin and fence from this ground, and that they were removed to his farm on the river, beyond the area of the claim for commons. It is a part of the legal history of the town that other persons were compelled, in like manner, to give»up their possessions on land lying within the limits of the commons, as unlawfully interfering with the public right of commons. This course was sanctioned by the Spanish laws, usages, and customs. Trespassers were driven off and were liable to punishment. Allowing to the proof made all the force it must reasonably be entitled to, it would show scarcely more than that Yasquez or his negroes had been suffered for a time to continue a cultivation and possession, and an actual occupancy, on an indefinite spot of ground near the spring, within the area of the public commons, which was treated by the authorities of the former government, and ought to be considered here, as an unwarrantable interference with the commons right of claim. But we do not rest our decision upon this part of the case. However this fact may have been, we are satisfied, upon a careful examination of the whole evidence, that it was not sufficient in law to warrant a jury in finding a verdict for the plaintiff, and the jury might properly have been so instructed. An instruction was refused for the defendant, which read as follows: ‘‘The act of Congress of the 13th June, 1812, by its own force, confirmed to individuals only their rights, titles,.and claims to town or village lots, out-lots, and common field lots,In1, adjoin*264ing, or belonging to the town; and there is no evidence here to prove that the tract of land here sued for is either a town lot, an out-lot, or a common field lot.” According to the view we have taken of the case, this instruction should have been given. The defendant, standing upon a title from the United States, which must be deemed equivalent to a patent, of the date of the 13th of June, 1812, was in a position to call in question the validity and effect of the documentary evidence issued from the office of the Surveyor - General and Register of Land Titles. (McGill v. Somers, 15 Mo. 80; Robbins v. Eckler, 36 Mo. 506; Ott v. Soulard, 9 Mo. 595.) The first instruction given for the plaintiffs was erroneous in assuming that there was evidence before the jury from which they might infer the existence of the land in dispute as an out - lot, with definite location and boundaries, prior to 1803. It is not deemed necessary to notice the other instructions in detail. The judgment will be reversed and the cause remanded. The other judges concur. | 09-09-2022 | [
"Holmes, Judge, delivered the opinion of the court. In the case of Vasquez v. Ewing, 24 Mo. 31, in which the plaintiff stood upon the same list and survey which are again presented in this record, it was decided that the commons title, under the act of June 13, 1812, with an approved survey, was equivalent to a patent, and must prevail, unless the plaintiff could prove the facts necessary to show that no title passed; and it was conceded that this might be done by actual proof that the claimant had inhabited, cultivated, or possessed a lot, within the meaning of that act, prior to the 20th day of December, 1803, situated within the boundaries of the survey of the commons; for that if the land were an out-lot it could not have been commons.",
"In this case, besides the documents mentioned, the plaintiffs introduced the recorder’s certificate No. 78, dated February 17, 1852, accompanied by the plat and description of the survey No. 2965, and certifying that, under the acts of Congress of 1812 and 1824, “the legal representatives of Benito Yasquez have been confirmed in their claim to an 1 out-lot ’ south of and near to the town of St. Louis, containing four arpents front by eight in depth, so as to include the spring usually called Benito’s *256Spring,” and that the feaid out-lot had been regularly surveyed, as appeared from the accompanying plat and description.",
"The testimony of witnesses was also offered to prove the existence of the facts prior to 1803, which were necessary to be proved in order to bring the land in controversy within the operation of the act of Congress of the 13th of June, 1812, as a grant of title to this land as an out-lot of the town of St. Louis, within the meaning of the act. It is obvious that if this land had been such an out-lot it could not have been commons. The plaintiff undertook to establish the fact that it had been and was an out-lot, within the direct operation of that act. It has been settled that the existence of the facts necessary to constitute such a lot is a matter of fact for the jury to determine, but that what facts will constitute an out-lot is a question of law for the court. (Page v. Scheibel, 11 Mo.",
"182; City v. Toney, 21 Mo. 256.) To constitute such a lot it must be shown to have had an existence, as such, under the former government, prior to the 20th day of December, 1803, with a definite location and boundaries. Such is the theory upon which the uniform course of decision, in cases arising under these acts, has proceeded. Town lots, out-lots, common field lots, and commons, were known and recognized parts of the Spanish town or commune (del commune) of St. Louis. They existed by public authority, whether by concession, custom, or permission. It has been held not necessary to prove any concession or permission of the authorities. The legal history of the country would doubtless show that they never existed without permission; but whenever the fact of claim, inhabitation, cultivation, or possession of such a lot, adjoining and belonging to the town, with ascertained or ascertainable location and boundaries, prior to 1803, can be proved, the permission of the authorities may be implied, and is to be presumed.",
"(Harrison v. Page, 16 Mo. 205; Guitard v. Stoddard, 16 How. 494; Fine v. Schools, 30 Mo. 176.) It is not enough merely to prove inhabitation, cultivation, or possession, somewhere on the land claimed. (City v. Toney, 21 Mo. 255.) It would be evidence to go to the jury to prove that particular fact. There must also be *257evidence of the location and boundaries of the lot claimed. The act of 1812 was not a grant of lands to be located by survey. It was not a floating grant. The documentary evidence might be disposed of upon the authority of Vasquez v. Ewing, 24 Mo. 31, without more. It was held that prima facie evidence only was not enough to surmount the commons title, and it was deemed that “ Congress may pass a title, and then, by a subsequent act, require less evidence to defeat that title than was required when it was first conveyed.” In truth, these documents, when admitted, furnished no evidence of the existence of any definite location and boundaries of this supposed out - lot. They did not prove all the necessary facts. Whatever prima facie effect they might have in any case, that effect in this case was rebutted and .disproved as against the defendant, who stood in a position to call their validity in question.",
"The extract from Hunt’s list describes the lot as “ four arpents in front, eight deep, bounded in front by the commons or vacant land; then running back eight arpents, so as to include the spring usually called Benito’s Spring.” It does not appear that any other location, boundaries, or description, was proven before the recorder. Here we have a parallelogram of four by eight arpents, lying in an eastwardly and westwgrdly direction, so as to include the spring. There was a given outline, but no fixed, no ascertainable location. It is a floating claim merely, which could be located only by the political government acting through the Surveyor-General. This officer had no authority by law to assign a location to such a claim. He had authority only to survey such lots by their definite location and boundaries, as they had actually existed prior to 1803, or as the same had been proved before the recorder. It does not appear that he had any other basis for his action than this extract from the list which had been transmitted to him by that officer. He could derive none from instructions.",
"Of fixed or ascertainable landmarks or boundaries that had existed before the change of government, there were none. The survey does not purport to have found any such landmarks or ealls, nor to have ascertained them by any evidence, on the ground. The springs and the remains of the cabin furnished no evidence of *258boundaries. The field notes show that the surveyor adjusted the variation of his compass by the lines of a former survey in the neighborhood, and began this survey at a point forty-five links south of the south boundary of that survey, where he established a corner and ran off a parallelogram so as to include the spring and the cabin site. This parallelogram was made to lay more southeastwardly than eastwardly.",
"No reason appears for his starting at that point rather than any other that would make the survey include the spring. It is evident that his proceeding was wholly arbitrary. Nor had his superior officers of the land office any authority by lair to create by instructions a definite location and boundaries for such a lot, where none existed before. The certificate, independently of the survey annexed, was no more definite than the list. We think it is apparent that these documents, even if admissible as prima facie evidence of what they could show, furnished no proof of any definite location for this lot. At most, they show only an inhabitation, cultivation, and prossession, prior to 1803, and a claim made of a tract of four by eight arpents of land, lying somewhere around the Benito Spring. This was no tract of land, and no out-lot. (Menard v. Massey, 8 How. 309; Stanford v. Taylor, 18 How. 412; United States v. Lawton, 5 How.",
"28.) If this had been a grant of land to be located by official survey, there is no doubt such a survey as this would have been binding on the government and the parties occupying it. In this class of cases, however, the political power to locate the claim was not retained by the government ; the question of location and boundaries was left to the courts. The location that was made can be regarded only as the arbitrary and unauthorized determination of the surveyor. (Ott v. Soulard, 9 Mo. 595.) It is the right and claim that is confirmed by the act, and not merely the possession or cultivation ; but there can be no right and claim to an out-lot without boundaries and location. The act of May 26, 1824, directed .the individual owners or claimants to designate their said lots by proving “ the fact of such inhabitation, cultivation, or possession, and the boundaries and ¡extent of each claim, so as to enable the Surveyor-General to *259distinguish the private from the vacant lots ; ” and the recorder was directed to furnish the Surveyor-General with a list of the lots so proved, “ to serve as his guide in distinguishing them from the vacant lots” to be set apart for schools.",
"(4 U. S. Stat. 65, §§ 1, 3.) These provisions presuppose that such lots already had an existence, with a location, extent, and boundaries, capable of being ascertained and distinguished by the Surveyor-General. It is not doubted that authority was conferred upon him to survey these lots for the purposes of the act; but there is still no ground for the inference that he was empowered to create a lot by assigning a location or boundaries where none existed before, or where none had been proven before the recorder. The owners or claimants were to prove the extent and boundaries of their lots, and the recorder was to furnish a list of the lots so proved. It is manifest that if the proof made failed to show any ascertainable boundaries, the list furnished could not enable the surveyor to perform the duty required of him.",
"It would be all the same thing as if no proof had been made and no list furnished. Such being the case here, the survey that was made can have no validity against the defendant. It is believed that in all the cases in which the certificate of confirmation has been held to be prima facie evidence of the facts required to be proved, the record of the proof made, or the registry or list of claims proved, or the certificate itself, when issued by the recorder before a survey, contained calls and description of location, extent, and boundaries, that were capable of being ascertained and identified on the ground by survey, or by the calls and landmarks, or description, without a survey. In some of the cases the calls and description were somewhat indefinite, but it was still practicable to ascertain the location and fix the boundaries indicated by evidence of identification by the calls, description, and character of the lot. (City v. Toney, 21 Mo.",
"243; Harrison v. Page, 16 Mo. 182; Page v. Scheibel, 11 Mo. 187.) In these cases, the sufficiency of the calls and description contained in the certificate or the tabular list, to admit of identifica - tion, was not questioned. In the case of Gamache v. Pequignot, 17 Mo. 310, the supple*260mentary list and certificate, being acts of Hunt’s successor in office, based upon the minutes, were held void, as done without authority of law, for the reason that the recorder had omitted to enter the claim on his registry or list as a claim proved, and the Land Department had refused to record the survey; but we are not aware that it has ever been maintained that the mere fact that a claim was placed in that list was to be taken as evidence that the lot had been proved, as required, as to extent and boundaries, whether such extent and boundaries were shown by it or not, or where none were shown.",
"The list has been held admissible to prove the same facts as the certificate. Aside from the survey, this certificate proves no more than the list. The minutes and the list were the only evidence that remained in the office of the recorder by which it could be made -to appear to a successor in the office that such proof had been made before the recorder within the eighteen months, or at any time. The list is the only evidence produced here to show that such proof had been made. It appears to have been the sole basis of the action of the Surveyor-General, and of the recorder, who issued the certificate upon the return of the survey to his office, in 1852.",
"The list did not show any ascertainable location, nor any boundaries that were capable of being identified on the ground. There was, then, no foundation or warrant for this action of the surveyor or recorder. Whatever prima facie effect might be due to the certificate in the first instance, when offered in evidence, was effectually rebutted and disproved, as to location and boundaries, by the list and survey that were produced with it. The list was the only legal warrant for the surveyor. He might resort to other evidence to enable him to execute what he was authorized to do; but he was not authorized to locate a floating claim. It does not appear by the survey, nor by the field notes, that he had any other record evidence before him but this list,- nor that he ascertained any calls whatever for location of boundaries, otherwise than by a purely arbitrary proceeding of his own. The recorder could act only upon the records remaining in his office. It was not denied, in Gamache v. Pequignot, that the recorder might act upon claims proved before his predecessor in office, but it was held that when *261the first incumbent of the office had acted, and furnished a list to the surveyor, the law would draw the conclusion that claims not within the list were claims not proved to his satisfaction.",
"The claim which the plaintiff presents here, so far as the location and boundaries are in question, was not embraced in the list. The conclusion to be drawn from this evidence must be that no location and boundaries were proved before the recorder. It must follow that the claim of the plaintiff to this land as an out-lot was never proved before that officer, and that the documents furnished no sufficient evidence to entitle the plaintiff to recover, as against this defendant, standing on the commons title. Nor could this survey be properly regarded as evidence of boundaries, in connection with the actual proof of inhabitation, cultivation, or possession of a part by one claiming the whole.",
"We have next to consider how the case stands upon the parol evidence of facts in pais. It may be conceded that if this land were an out-lot at all, the proof would sufficiently show that it was situated “in, adjoining, and belonging to, the town.” It must have been a part of the commons or civil dependency of the Spanish town. (Eberle v. Schools, 11 Mo. 265; City v. Toney, 21 Mo. 243; 3 Codigos Espagnoles, 336, lines 9-10, tit. 28, partidas 3.) The authorities recognize the theory that when a lot of this kind is to be proved by evidence of facts in pais, it must be shown to have existed, in the character of an out-lot, prior to 1803, with designated and ascertainable location and boundaries, though actual occupancy or cultivation may not be essential to establish the existence of such lot. (Trotter v. Schools, 9 Mo.",
"86.) The act of 1812 operated to confirm “ an existing and recognized claim or title, with ascertained boundaries, or boundaries which could be ascertained.” (Guitard v. Stoddard, 16 How. 512.) Where such boundaries can be proved, a survey is not necessary to the perfection of the title. In cases of lots assigned to the schools, it has been held that where a vacant piece of land, marked out only by surrounding surveys or by other lots, has been designated and set apart to the schools as a vacant lot, the survey and assignment will prove that the land was a lot, until some third *262party can show a better title.",
"(Kissell v Schools, 18 How. 25; 16 Mo. 553.) This principle can have no application to a case like this. There was no such designation of boundaries for this lot. The plaintiff must establish by proof that the land claimed had the character of an out-lot, with definite location and boundaries, and was claimed, inhabited, cultivated, or possessed, as such out-lot, prior to the 20th day of December, 1803. Actual proof is made of inhabitation, cultivation, and possession, on ground within this claim; but there is no actual proof of the location and boundaries of the whole lot claimed, nor that any such out-lot ever existed prior to that date, with the location and boundaries that are now claimed.",
"It may be said, in general terms, that this testimony was no more effective or complete than the documentary evidence. It afforded no additional proof as to the definite location and boundaries. The witnesses speak of the springs, an old cabin on rising ground, and a fence inclosing the cabin and three or four arpents of land north of the spring. The proof of inhabitation, cultivation, or possession, is confined to these facts. There is not the least indication of any boundaries or any definite location of a lot of four by eight arpents. The situation of the fence mentioned is not ascertained with any certainty as to its locality. There is nothing in the whole testimony by which the outline of the given parallelogram would be anywhere definitely fixed on the earth’s surface.",
"It ascertains no metes and bounds. It designates no calls or description of boundary. No facts are proved by which the location and boundaries could possibly be made certain. The proof wholly failed in this essential element: in the character and description of an out-lot, within the meaning of the act of Congress. This was a question of law. It was not a matter of fact to be determined by the jury, when there was no evidence of the fact before them. The concession offered in evidence by the defendant has no material effect upon the case. It gave no definite location and boundaries, though boundaries might have been established under it by actual possession and fixed landmarks.",
"But it was re-annexed to the royal domain. The marginal entry of the Lieutenant-*263Governor was a part of the official document. Such entries in relation to other lots than the one in litigation have been held to be admissible evidence to show that the practice of abandonment and re-annexation prevailed under the former government, and, a fortiori, it must be competent to show an actual re-annexation of the very land conceded. This land may have been conceded again, or a claim and possession might have been subsequently established. There can be no question of an abandonment until a claim to the land, as an out-lot, has been established by proof. There was some evidence, on the part of the defendant, that Yasquez had been required by the public authorities to remove his cabin and fence from this ground, and that they were removed to his farm on the river, beyond the area of the claim for commons.",
"It is a part of the legal history of the town that other persons were compelled, in like manner, to give»up their possessions on land lying within the limits of the commons, as unlawfully interfering with the public right of commons. This course was sanctioned by the Spanish laws, usages, and customs. Trespassers were driven off and were liable to punishment. Allowing to the proof made all the force it must reasonably be entitled to, it would show scarcely more than that Yasquez or his negroes had been suffered for a time to continue a cultivation and possession, and an actual occupancy, on an indefinite spot of ground near the spring, within the area of the public commons, which was treated by the authorities of the former government, and ought to be considered here, as an unwarrantable interference with the commons right of claim. But we do not rest our decision upon this part of the case. However this fact may have been, we are satisfied, upon a careful examination of the whole evidence, that it was not sufficient in law to warrant a jury in finding a verdict for the plaintiff, and the jury might properly have been so instructed.",
"An instruction was refused for the defendant, which read as follows: ‘‘The act of Congress of the 13th June, 1812, by its own force, confirmed to individuals only their rights, titles,.and claims to town or village lots, out-lots, and common field lots,In1, adjoin*264ing, or belonging to the town; and there is no evidence here to prove that the tract of land here sued for is either a town lot, an out-lot, or a common field lot.” According to the view we have taken of the case, this instruction should have been given. The defendant, standing upon a title from the United States, which must be deemed equivalent to a patent, of the date of the 13th of June, 1812, was in a position to call in question the validity and effect of the documentary evidence issued from the office of the Surveyor - General and Register of Land Titles. (McGill v. Somers, 15 Mo. 80; Robbins v. Eckler, 36 Mo.",
"506; Ott v. Soulard, 9 Mo. 595.) The first instruction given for the plaintiffs was erroneous in assuming that there was evidence before the jury from which they might infer the existence of the land in dispute as an out - lot, with definite location and boundaries, prior to 1803. It is not deemed necessary to notice the other instructions in detail. The judgment will be reversed and the cause remanded. The other judges concur."
]
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Exhibit 31.1 I, Michael L. Kubacki, Chief Executive Officer of the Company, certify that: 1.I have reviewed this quarterly report on Form10-Q of Lakeland Financial Corporation; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purpose in accordance with generally accepted accounting principles; c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by this report based on such evaluation; and d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting, and; 5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent function): a) All significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize, and report financial information; and b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. Date:August 8, 2012 /s/Michael L. Kubacki Michael L. Kubacki Chief Executive Officer | [
"Exhibit 31.1 I, Michael L. Kubacki, Chief Executive Officer of the Company, certify that: 1.I have reviewed this quarterly report on Form10-Q of Lakeland Financial Corporation; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purpose in accordance with generally accepted accounting principles; c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by this report based on such evaluation; and d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting, and; 5.",
"The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent function): a) All significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize, and report financial information; and b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.",
"Date:August 8, 2012 /s/Michael L. Kubacki Michael L. Kubacki Chief Executive Officer"
]
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LEIGH M. CLARK, Supernumerary Circuit Judge. Appellant was convicted under a count of an indictment charging him with manufacturing, selling, giving away or having in his possession a still, apparatus, appliance or any device or substitute therefor, to be used for the purpose of manufacturing prohibited liquors or beverages. The offense is proscribed by Code of Alabama 1940, Title 29, § 131, and by Title 29, § 133, it is made punishable by imprisonment in the penitentiary “for not less than one year, nor longer than five years, to be *409fixed within these limits by the court.” The indictment originally consisted of two counts, to which defendant had pleaded not guilty, but the other count, which charged him with distilling, was nol-prossed on motion of the State at the commencement of the trial. Two defendants were charged in the indictment, but appellant was tried, alone, upon request of his attorney for a separate trial. After imposition of a sentence of imprisonment for four years in the penitentiary and the denial of a request for probation, this appeal was taken. Two employees of the United States Treasury Department testified that in April, 1973, they found a still in Lawrence County; they noted four fuel cans nearby, and one of them made identifying marks on the cans. Later during the month, while maintaining surveillance of the still, they saw two men approach it and begin working on it. The two men fired the burners and began processing illegal alcohol, but after an hour the men left the still. The two employees of the Treasury Department identified the appellant as one of the men. The two witnesses said they had heard an automobile come down a log road near the still and stop; soon thereafter they saw the appellant and the other man come along a path to the still and, after they had busied themselves at the still as stated above, they left by the same path, going in the direction from which they had arrived and taking the fuel cans with them. By prearrangement, the two government agents radioed the sheriff of Lawrence County and another government agent of the Treasury Department, gave them a description of the two men seen at the still and requested that they be arrested as they came out of the log road to the ridge road, where the sheriff and the other government agent were waiting in an automobile. The two witnesses who had witnessed the conduct of the defendants at the still soon joined the sheriff and the other government agent at the ridge road, where they had arrested defendant. One of the agents took the keys of the automobile and unlocked the trunk and found the four fuel cans as marked for identification at the still. Appellant and his codefendant testified they were in the vicinity of the still at the time stated by the agents of the Treasury Department in an effort to find where turkeys had been scratching, in the hope that they would be able to have a successful hunt in that territory the next day. They denied ownership, possession, prior knowledge of, and any connection with, the still. They said they noticed the fuel cans and picked them up to give to the brother of appellant’s codefendant. They took them to the automobile, which belonged to appellant’s codefendant, drove off in the automobile toward the ridge road where they were arrested. Other details of the testimony seen unnecessary. The record fails to show any contention that the evidence in the case was not sufficient to support the verdict of the jury, and we are convinced that there is no reasonable basis for such a contention. Defendant on the trial stoutly objected to the admission in evidence of the four fuel cans and to the oral testimony relative to the cans. It was urged that they constituted fruits of an illegal search of the automobile of appellant’s codefendant. Aside from the question of the standing of appellant to raise the point, especially in the light of some testimony to the effect that appellant’s codefendant consented to the search, it is our view that the search was not illegal. In Bassett v. State, 49 Ala.App. 733, 275 So.2d 713, we stated: . . In relation to the initial search of appellant’s car on the street, the case of Dyke v. Taylor Implement Manufacturing Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538, is in point. There, the court stated that a warrant-less search of an automobile may be *410made where ‘officers conducting the search have “reasonable or probable cause” to believe that they will find the instrumentality of a crime or evidence pertaining to a crime.’ ”, which statement is not impaired by the reversal of the case in 290 Ala. 259, 275 So.2d 720, or the remand thereof in 49 Ala.App. 749, 275 So.2d 724. The quoted statement, referable to a warrantless search of an automobile on a public road or street while the occupants are being lawfully arrested, is controlling against appellant in this case. During the closing argument of counsel for the State, defendant moved for a mistrial, as shown by the following portion of the record: “MR. GRAHAM: We object to that statement. It’s prejudicial and— “MR. PETTUS: If it’s— “MR. GRAHAM: Just a minute. “MR. PETTUS: —improper, I will withdraw it. “MR. GRAHAM: Well, I want it for the record. We respectfully ask the Court to declare a mistrial on the basis of a prejudicial statement that the District Attorney just made, ‘That if this man is found not guilty, I don’t expect to try Mr. Montgomery.’ That is calculated to prejudice the minds of the jury and for no other purpose and, because of that, we respectfully ask the Court to declare a mistrial. “THE COURT: Do you really want one? “MR. GRAHAM: Yes, sir. “THE COURT: Well, overruled. “MR. GRAHAM: We except. We ask now that the Court instruct the jury not to— “THE COURT: Well, ladies and gentlemen of the jury, that is not part of the evidence in the case. We just try them one at a time, but I will give you instructions pertaining to that later on.” The record does not contain a transcript of the entire closing argument of the State. It does not show the context of the statement attributed to the District Attorney, “That if this man is found not guilty I don’t expect to try Mr. Montgomery.”, who was appellant’s co-defendant. We are unable to find in the record a justification for the argument, but we cannot see that it injected prejudicial matter into the case. It is to be noted that Mr. Montgomery was not tried jointly with appellant by reason of appellant’s demand for a severance. We can see the likelihood of some discussion in arguments of counsel as to that fact, which is not revealed by the record. The statement could hardly have been “an island, entire of itself.” Without the benefit of the context or some explanation for the statement, we are unable to say that injury probably resulted from it. There was a withdrawal or conditional withdrawal of the statement by counsel for the State and a partial compliance, at least, with the request of counsel for defendant that the jury be instructed on the subject. The record does not show that the court would have been justified in declaring a mistrial, and we are convinced that the trial court’s action in respect to the matter does not constitute prejudicial error. Any disposition otherwise on our part would and should be outweighed by due consideration of the vantage point of the trial judge to reach a correct determination of a question of this nature. Ballard v. State, 51 Ala.App. 393, 286 So.2d 68, cert. denied 291 Ala. 772, 286 So.2d 72; Carroll v. State, 45 Ala.App. 92, 225 So.2d 198, cert. denied 284 Ala. 727, 225 So.2d 200. Pursuant to our duty under Title 15, § 389, Code of Alabama 1940, we have searched the record and find no prejudicial error to appellant. The judgment of the trial court should be affirmed. *411The foregoing opinion was prepared by Hon. LEIGH M. CLARK, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment below is hereby Affirmed. All the Judges concur. | 07-19-2022 | [
"LEIGH M. CLARK, Supernumerary Circuit Judge. Appellant was convicted under a count of an indictment charging him with manufacturing, selling, giving away or having in his possession a still, apparatus, appliance or any device or substitute therefor, to be used for the purpose of manufacturing prohibited liquors or beverages. The offense is proscribed by Code of Alabama 1940, Title 29, § 131, and by Title 29, § 133, it is made punishable by imprisonment in the penitentiary “for not less than one year, nor longer than five years, to be *409fixed within these limits by the court.” The indictment originally consisted of two counts, to which defendant had pleaded not guilty, but the other count, which charged him with distilling, was nol-prossed on motion of the State at the commencement of the trial. Two defendants were charged in the indictment, but appellant was tried, alone, upon request of his attorney for a separate trial. After imposition of a sentence of imprisonment for four years in the penitentiary and the denial of a request for probation, this appeal was taken. Two employees of the United States Treasury Department testified that in April, 1973, they found a still in Lawrence County; they noted four fuel cans nearby, and one of them made identifying marks on the cans.",
"Later during the month, while maintaining surveillance of the still, they saw two men approach it and begin working on it. The two men fired the burners and began processing illegal alcohol, but after an hour the men left the still. The two employees of the Treasury Department identified the appellant as one of the men. The two witnesses said they had heard an automobile come down a log road near the still and stop; soon thereafter they saw the appellant and the other man come along a path to the still and, after they had busied themselves at the still as stated above, they left by the same path, going in the direction from which they had arrived and taking the fuel cans with them.",
"By prearrangement, the two government agents radioed the sheriff of Lawrence County and another government agent of the Treasury Department, gave them a description of the two men seen at the still and requested that they be arrested as they came out of the log road to the ridge road, where the sheriff and the other government agent were waiting in an automobile. The two witnesses who had witnessed the conduct of the defendants at the still soon joined the sheriff and the other government agent at the ridge road, where they had arrested defendant. One of the agents took the keys of the automobile and unlocked the trunk and found the four fuel cans as marked for identification at the still. Appellant and his codefendant testified they were in the vicinity of the still at the time stated by the agents of the Treasury Department in an effort to find where turkeys had been scratching, in the hope that they would be able to have a successful hunt in that territory the next day.",
"They denied ownership, possession, prior knowledge of, and any connection with, the still. They said they noticed the fuel cans and picked them up to give to the brother of appellant’s codefendant. They took them to the automobile, which belonged to appellant’s codefendant, drove off in the automobile toward the ridge road where they were arrested. Other details of the testimony seen unnecessary. The record fails to show any contention that the evidence in the case was not sufficient to support the verdict of the jury, and we are convinced that there is no reasonable basis for such a contention. Defendant on the trial stoutly objected to the admission in evidence of the four fuel cans and to the oral testimony relative to the cans. It was urged that they constituted fruits of an illegal search of the automobile of appellant’s codefendant. Aside from the question of the standing of appellant to raise the point, especially in the light of some testimony to the effect that appellant’s codefendant consented to the search, it is our view that the search was not illegal. In Bassett v. State, 49 Ala.App. 733, 275 So.2d 713, we stated: . .",
"In relation to the initial search of appellant’s car on the street, the case of Dyke v. Taylor Implement Manufacturing Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538, is in point. There, the court stated that a warrant-less search of an automobile may be *410made where ‘officers conducting the search have “reasonable or probable cause” to believe that they will find the instrumentality of a crime or evidence pertaining to a crime.’ ”, which statement is not impaired by the reversal of the case in 290 Ala. 259, 275 So.2d 720, or the remand thereof in 49 Ala.App.",
"749, 275 So.2d 724. The quoted statement, referable to a warrantless search of an automobile on a public road or street while the occupants are being lawfully arrested, is controlling against appellant in this case. During the closing argument of counsel for the State, defendant moved for a mistrial, as shown by the following portion of the record: “MR. GRAHAM: We object to that statement. It’s prejudicial and— “MR. PETTUS: If it’s— “MR. GRAHAM: Just a minute. “MR. PETTUS: —improper, I will withdraw it. “MR. GRAHAM: Well, I want it for the record. We respectfully ask the Court to declare a mistrial on the basis of a prejudicial statement that the District Attorney just made, ‘That if this man is found not guilty, I don’t expect to try Mr. Montgomery.’ That is calculated to prejudice the minds of the jury and for no other purpose and, because of that, we respectfully ask the Court to declare a mistrial. “THE COURT: Do you really want one? “MR. GRAHAM: Yes, sir. “THE COURT: Well, overruled.",
"“MR. GRAHAM: We except. We ask now that the Court instruct the jury not to— “THE COURT: Well, ladies and gentlemen of the jury, that is not part of the evidence in the case. We just try them one at a time, but I will give you instructions pertaining to that later on.” The record does not contain a transcript of the entire closing argument of the State. It does not show the context of the statement attributed to the District Attorney, “That if this man is found not guilty I don’t expect to try Mr. Montgomery.”, who was appellant’s co-defendant. We are unable to find in the record a justification for the argument, but we cannot see that it injected prejudicial matter into the case.",
"It is to be noted that Mr. Montgomery was not tried jointly with appellant by reason of appellant’s demand for a severance. We can see the likelihood of some discussion in arguments of counsel as to that fact, which is not revealed by the record. The statement could hardly have been “an island, entire of itself.” Without the benefit of the context or some explanation for the statement, we are unable to say that injury probably resulted from it. There was a withdrawal or conditional withdrawal of the statement by counsel for the State and a partial compliance, at least, with the request of counsel for defendant that the jury be instructed on the subject. The record does not show that the court would have been justified in declaring a mistrial, and we are convinced that the trial court’s action in respect to the matter does not constitute prejudicial error.",
"Any disposition otherwise on our part would and should be outweighed by due consideration of the vantage point of the trial judge to reach a correct determination of a question of this nature. Ballard v. State, 51 Ala.App. 393, 286 So.2d 68, cert. denied 291 Ala. 772, 286 So.2d 72; Carroll v. State, 45 Ala.App. 92, 225 So.2d 198, cert. denied 284 Ala. 727, 225 So.2d 200. Pursuant to our duty under Title 15, § 389, Code of Alabama 1940, we have searched the record and find no prejudicial error to appellant. The judgment of the trial court should be affirmed. *411The foregoing opinion was prepared by Hon. LEIGH M. CLARK, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment below is hereby Affirmed. All the Judges concur."
]
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Citation Nr: 1300299
Decision Date: 01/04/13 Archive Date: 01/11/13
DOCKET NO. 10-15 556 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for the cause of the Veteran's death.
2. Entitlement to burial benefits.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and D.C.
ATTORNEY FOR THE BOARD
M. Moore, Associate Counsel
INTRODUCTION
The Veteran served on active duty from December 1964 to July 1979. He died in December 2008. The appellant is the Veteran's surviving spouse.
These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, which denied service connection for the cause of the Veteran's death, and a May 2009 letter from the St. Petersburg RO, which denied entitlement to burial benefits. In June 2009, the appellant submitted a notice of disagreement and subsequently perfected her appeal in April 2010.
In December 2011, the appellant presented sworn testimony during a Travel Board hearing in St. Petersburg, Florida, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on her part is required.
REMAND
After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the appellant's claims of entitlement to service connection for the cause of the Veteran's death and burial benefits.
The Veteran's death certificate lists his cause of death as cecal mass with hepatic metastasis. Exposure to Agent Orange as a significant condition that contributed to the cause of death. Notwithstanding the death certificate, a December 2011 letter from the Veteran's private physician (S. Naoumoff, M.D.) indicates that his actual cause of death was the result of his long-standing diabetes mellitus, which was complicated by coronary artery disease. He explained that the Veteran was hospitalized at Cape Canaveral Hospital with an acute myocardial infarction and heart failure in November 2008, and that he eventually died (less than a month later) as a result of that event. Dr. Naoumoff said that the hepatic cancer was discovered during his November 2008 hospitalization and was ultimately an incidental finding. He added that he was out of the country at the time of the Veteran's death, and that the physician who completed the certificate of death was unfamiliar/unaware of the particulars of the Veteran's health.
Records from Dr. Naoumoff document that he treated the Veteran for both diabetes mellitus and coronary artery disease. The Veteran's past medical history also shows that he suffered myocardial infarctions in 2002 and 2005 that corresponded in cerebrovascular accidents. A stent placement was performed in 2002. He underwent a coronary artery bypass graft in April 2005.
As the Veteran served in the Republic of Vietnam, he was presumed to have been exposed to Agent Orange. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). Ischemic heart disease, including coronary artery disease, and diabetes mellitus are both conditions presumed to be related to Agent Orange exposure. See 38 C.F.R. § 3.309(e) (2012). However, the claims file is negative for any treatment records from Cape Canaveral Hospital during the period immediately prior to the Veteran's death, which would lend credence to the statement provided by Dr. Naoumoff. In order to evaluate the probative value of the private physician's opinion, the Board must review these records. A remand to attempt to obtain these records is necessary.
Additionally, the duty to assist includes obtaining a medical opinion when it is necessary to make a decision on a claim. With regard to cause of death claims, the duty to assist requires VA to make "reasonable efforts" to provide assistance, to include obtaining a medical opinion. See 38 U.S.C.A. § 5103(a) (West 2002); see also DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). After obtaining any available treatment records from Cape Canaveral Hospital, a VA medical opinion should be obtained to address the cause of the Veteran's death.
With regard to the appellant's claim of entitlement to burial benefits, the Board notes that the readjudication of her claim for service connection for the cause of the Veteran's death may impact this claim. Therefore, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). As such, following the development and readjudication of the appellant's cause of death claim, the AMC must readjudicate her claim for burial benefits.
Accordingly, the case is REMANDED for the following actions:
1. Contact the appellant and ask her to provide a signed release of information for treatment records from the Cape Canaveral Hospital for treatment received by the Veteran in the two months prior to his death, as well as any other facilities or treatment providers that are relevant to the appellant's claim. Additional records from Dr. Naoumoff from November and December 2008 should also be requested. If the appellant returns completed release(s) of information, the AMC should obtain these records and associate them with the claims file.
2. After completion of the above, the claims file should be sent to an appropriate VA physician to provide an opinion on the cause of the Veteran's death. The physician must review the entire claims file, including the death certificate, a March 2007 medical abstract relating diabetes mellitus to pancreatic cancer, and the December 2011 opinion from Dr. Naoumoff. That such a review was conducted must be noted in the opinion.
The physician should provide an opinion as to whether it is as likely as not that the Veteran's Type II diabetes mellitus or coronary artery disease was a principal (primary) or contributory (contributed materially or substantially) cause of the Veteran's death. Please address Dr. Naoumoff's statement that the Veteran's hepatoid adenocarcinoma was an "incidental finding" and not the cause of the Veteran's death as stated by the certificate of death, and that his diabetes mellitus and coronary artery disease were the principal causes of death.
The physician should also state whether it is as likely as not that the Veteran's diabetes mellitus caused or aggravated his hepatic cancer. Further, the physician should comment on whether it is at least as likely as not that the Veteran's presumed herbicide exposure caused or aggravated his cecal mass, hepatic metastasis, or any other identified cause of death.
It would be helpful if the physician would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood).
The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.
Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).
3. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim of entitlement to service connection for the cause of the Veteran's death should be readjudicated. Thereafter, the claim of entitlement to burial benefits should be readjudicated. If either of the claims remains denied, a supplemental statement of the case should be provided to the appellant and her representative. After they have had an adequate opportunity to respond, all issues properly on appeal should be returned to the Board for further appellate review.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012).
_________________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. See 38 C.F.R. § 20.1100(b) (2012). | 01-04-2013 | [
"Citation Nr: 1300299 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 10-15 556 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to burial benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and D.C. ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1964 to July 1979. He died in December 2008. The appellant is the Veteran's surviving spouse.",
"These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, which denied service connection for the cause of the Veteran's death, and a May 2009 letter from the St. Petersburg RO, which denied entitlement to burial benefits. In June 2009, the appellant submitted a notice of disagreement and subsequently perfected her appeal in April 2010. In December 2011, the appellant presented sworn testimony during a Travel Board hearing in St. Petersburg, Florida, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on her part is required.",
"REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the appellant's claims of entitlement to service connection for the cause of the Veteran's death and burial benefits. The Veteran's death certificate lists his cause of death as cecal mass with hepatic metastasis. Exposure to Agent Orange as a significant condition that contributed to the cause of death. Notwithstanding the death certificate, a December 2011 letter from the Veteran's private physician (S. Naoumoff, M.D.) indicates that his actual cause of death was the result of his long-standing diabetes mellitus, which was complicated by coronary artery disease. He explained that the Veteran was hospitalized at Cape Canaveral Hospital with an acute myocardial infarction and heart failure in November 2008, and that he eventually died (less than a month later) as a result of that event.",
"Dr. Naoumoff said that the hepatic cancer was discovered during his November 2008 hospitalization and was ultimately an incidental finding. He added that he was out of the country at the time of the Veteran's death, and that the physician who completed the certificate of death was unfamiliar/unaware of the particulars of the Veteran's health. Records from Dr. Naoumoff document that he treated the Veteran for both diabetes mellitus and coronary artery disease. The Veteran's past medical history also shows that he suffered myocardial infarctions in 2002 and 2005 that corresponded in cerebrovascular accidents. A stent placement was performed in 2002.",
"He underwent a coronary artery bypass graft in April 2005. As the Veteran served in the Republic of Vietnam, he was presumed to have been exposed to Agent Orange. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). Ischemic heart disease, including coronary artery disease, and diabetes mellitus are both conditions presumed to be related to Agent Orange exposure. See 38 C.F.R. § 3.309(e) (2012). However, the claims file is negative for any treatment records from Cape Canaveral Hospital during the period immediately prior to the Veteran's death, which would lend credence to the statement provided by Dr. Naoumoff. In order to evaluate the probative value of the private physician's opinion, the Board must review these records. A remand to attempt to obtain these records is necessary.",
"Additionally, the duty to assist includes obtaining a medical opinion when it is necessary to make a decision on a claim. With regard to cause of death claims, the duty to assist requires VA to make \"reasonable efforts\" to provide assistance, to include obtaining a medical opinion. See 38 U.S.C.A. § 5103(a) (West 2002); see also DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). After obtaining any available treatment records from Cape Canaveral Hospital, a VA medical opinion should be obtained to address the cause of the Veteran's death. With regard to the appellant's claim of entitlement to burial benefits, the Board notes that the readjudication of her claim for service connection for the cause of the Veteran's death may impact this claim.",
"Therefore, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). As such, following the development and readjudication of the appellant's cause of death claim, the AMC must readjudicate her claim for burial benefits. Accordingly, the case is REMANDED for the following actions: 1. Contact the appellant and ask her to provide a signed release of information for treatment records from the Cape Canaveral Hospital for treatment received by the Veteran in the two months prior to his death, as well as any other facilities or treatment providers that are relevant to the appellant's claim. Additional records from Dr. Naoumoff from November and December 2008 should also be requested. If the appellant returns completed release(s) of information, the AMC should obtain these records and associate them with the claims file. 2. After completion of the above, the claims file should be sent to an appropriate VA physician to provide an opinion on the cause of the Veteran's death. The physician must review the entire claims file, including the death certificate, a March 2007 medical abstract relating diabetes mellitus to pancreatic cancer, and the December 2011 opinion from Dr. Naoumoff.",
"That such a review was conducted must be noted in the opinion. The physician should provide an opinion as to whether it is as likely as not that the Veteran's Type II diabetes mellitus or coronary artery disease was a principal (primary) or contributory (contributed materially or substantially) cause of the Veteran's death. Please address Dr. Naoumoff's statement that the Veteran's hepatoid adenocarcinoma was an \"incidental finding\" and not the cause of the Veteran's death as stated by the certificate of death, and that his diabetes mellitus and coronary artery disease were the principal causes of death. The physician should also state whether it is as likely as not that the Veteran's diabetes mellitus caused or aggravated his hepatic cancer. Further, the physician should comment on whether it is at least as likely as not that the Veteran's presumed herbicide exposure caused or aggravated his cecal mass, hepatic metastasis, or any other identified cause of death. It would be helpful if the physician would use the following language, as may be appropriate: \"more likely than not\" (meaning likelihood greater than 50%), \"at least as likely as not\" (meaning likelihood of at least 50%), or \"less likely than not\" or \"unlikely\" (meaning that there is a less than 50% likelihood).",
"The term \"at least as likely as not\" does not mean \"within the realm of medical possibility.\" Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.",
"In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim of entitlement to service connection for the cause of the Veteran's death should be readjudicated. Thereafter, the claim of entitlement to burial benefits should be readjudicated. If either of the claims remains denied, a supplemental statement of the case should be provided to the appellant and her representative. After they have had an adequate opportunity to respond, all issues properly on appeal should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.",
"See Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court.",
"This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. See 38 C.F.R. § 20.1100(b) (2012)."
]
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DETAILED ACTION
Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Examiner Notes The amendments of claims 1, 3-5, 6, and 9-11; cancellation of claim 5; and addition of claim 14 are acknowledged.
Information Disclosure Statement The information disclosure statement(s) (IDS) submitted on 05/25/2022 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the IDS is being considered by the examiner.
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.
Claims 3 and 10 are 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 insert is partially overmolded in the main body however, claim 1 from which claim 3 depends recites that the insert is overmolded in the main body suggesting full overmolding of the insert. Thus, claim 3 fails to further limit the subject matter of claim 1 as if the insert is overmolded in the main body it cannot also be partially overmolded in the main body. For sake of further examination, claim 1 will be viewed as controlling, thus if the insert is overmolded in the main body it will be viewed as also being partially overmolded. Claim 10 recites the part forming at least one of a tailgate, a roof, a door, and a fender, however, claim 1, from which claim 10 depends recites that the part forms a front of a rear bumper of a motor vehicle. The part cannot form both a bumper and at least one of a tailgate, roof, door, or fender. For sake of further examination, if the part can form a front of rear bumper it will be viewed as also being able to form a tailgate, roof, door, or fender.
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 § 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.
(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) 1, 3, 7-8, and 10-11 are rejected under 35 U.S.C. 102(a)(1) and/or 35 U.S.C. 102(a)(2) as being anticipated by Munro et al. (US 2015/0010765). Regarding claims 1, 3, 7-8, and 11, Munro discloses a composition for an article for automotive applications including for a front or rear bumper (0045). The composition suitable for overmolded goods (0001) and comprising an olefin block copolymer formed of a monomer such as cyclo-olefins (0025). Cyclo-olefin-copolymers are taught as exemplary amorphous polyolefins (see claims 7 and 8 as well as the specification, paragraph 0017), thus the olefin block copolymers of Munro is an amorphous polyolefin as claimed. The polymer overmolded over a substrate (instant main body) of polypropylene (0045 and 0046). Please note, claim 1includes product by process language regarding the recitation of “overmolded”. The above arguments establish a rationale tending to show the claimed product is the same as what is taught by the prior art. “[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, 227 USPQ 964,966). Once the Examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious different between the claimed product and the prior art product. In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir. 1983), MPEP 2113. Regarding claim 10, Munro discloses the article further including automotive doors and grill components (0045).
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 2 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Munro as applied to claim 1 above and further in view of Hayes et al. (US 2011/0002138). Regarding claims 2 and 9, Munro discloses the limitations of claim 1 as discussed above. Munro teaches composition further including filler including elastomeric filler (0044), glass fibers (0045), or dye (0043). Munro does not disclose the composition having a transmittance greater than 50%, or being transparent or translucent. Hayes, in the analogous field of vehicle bodywork parts (0001), discloses an automotive interior and exterior trim/applique comprising an outer layer of transparent polymer material (0010). A person of ordinary skill in the art, before the effective filing date of the claimed invention would have found it obvious for the composition of Munro to be transparent (i.e., transmittance of 100%), as taught by Hayes, enhancing the appearance of the part (0040).
Claims 4 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Munro. Regarding claims 4 and 14, Munro teaches that the composition may be formed into an article or a component of an article including individual parts of the articles including for automotive applications (0045). Thus, a person of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious the composition, which necessarily comprises a surface visible from outside a vehicle and an opposite surface, for both surfaces to not be entirely covered by the plastic material of the main body.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Munro as applied to claim 4 above and further in view of Schoemann et al. (US 2005/0183262). Regarding claim 6, Munro discloses the limitations of claim 4 as discussed above. Munro does not disclose at least one surface being grained. Schoemann, in the analogous field of motor vehicle trim parts (0001), teaches a first mold material (insert) having a grained surface (0004). A person of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious for the composition of Munro to have a grained surface, as taught by Schoemann, to create a material with a desired look and feel (0003).
Response to Arguments Applicant’s arguments over Moeller (DE10221286A1) have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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 ALICIA SAWDON whose telephone number is (571)270-1727. The examiner can normally be reached M-Th 9-4. 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, Frank Vineis can be reached on 571-270-1547. 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.
/ALICIA J SAWDON/Primary Examiner, Art Unit 1781 | 2022-07-13T12:27:07 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Examiner Notes The amendments of claims 1, 3-5, 6, and 9-11; cancellation of claim 5; and addition of claim 14 are acknowledged. Information Disclosure Statement The information disclosure statement(s) (IDS) submitted on 05/25/2022 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the IDS is being considered by the examiner.",
"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. Claims 3 and 10 are 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 insert is partially overmolded in the main body however, claim 1 from which claim 3 depends recites that the insert is overmolded in the main body suggesting full overmolding of the insert. Thus, claim 3 fails to further limit the subject matter of claim 1 as if the insert is overmolded in the main body it cannot also be partially overmolded in the main body. For sake of further examination, claim 1 will be viewed as controlling, thus if the insert is overmolded in the main body it will be viewed as also being partially overmolded.",
"Claim 10 recites the part forming at least one of a tailgate, a roof, a door, and a fender, however, claim 1, from which claim 10 depends recites that the part forms a front of a rear bumper of a motor vehicle. The part cannot form both a bumper and at least one of a tailgate, roof, door, or fender. For sake of further examination, if the part can form a front of rear bumper it will be viewed as also being able to form a tailgate, roof, door, or fender.",
"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 § 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.",
"(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) 1, 3, 7-8, and 10-11 are rejected under 35 U.S.C. 102(a)(1) and/or 35 U.S.C. 102(a)(2) as being anticipated by Munro et al. (US 2015/0010765). Regarding claims 1, 3, 7-8, and 11, Munro discloses a composition for an article for automotive applications including for a front or rear bumper (0045).",
"The composition suitable for overmolded goods (0001) and comprising an olefin block copolymer formed of a monomer such as cyclo-olefins (0025). Cyclo-olefin-copolymers are taught as exemplary amorphous polyolefins (see claims 7 and 8 as well as the specification, paragraph 0017), thus the olefin block copolymers of Munro is an amorphous polyolefin as claimed. The polymer overmolded over a substrate (instant main body) of polypropylene (0045 and 0046). Please note, claim 1includes product by process language regarding the recitation of “overmolded”.",
"The above arguments establish a rationale tending to show the claimed product is the same as what is taught by the prior art. “[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, 227 USPQ 964,966). Once the Examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious different between the claimed product and the prior art product.",
"In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir. 1983), MPEP 2113. Regarding claim 10, Munro discloses the article further including automotive doors and grill components (0045). 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 2 and 9 are rejected under 35 U.S.C.",
"103 as being unpatentable over Munro as applied to claim 1 above and further in view of Hayes et al. (US 2011/0002138). Regarding claims 2 and 9, Munro discloses the limitations of claim 1 as discussed above. Munro teaches composition further including filler including elastomeric filler (0044), glass fibers (0045), or dye (0043). Munro does not disclose the composition having a transmittance greater than 50%, or being transparent or translucent. Hayes, in the analogous field of vehicle bodywork parts (0001), discloses an automotive interior and exterior trim/applique comprising an outer layer of transparent polymer material (0010). A person of ordinary skill in the art, before the effective filing date of the claimed invention would have found it obvious for the composition of Munro to be transparent (i.e., transmittance of 100%), as taught by Hayes, enhancing the appearance of the part (0040).",
"Claims 4 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Munro. Regarding claims 4 and 14, Munro teaches that the composition may be formed into an article or a component of an article including individual parts of the articles including for automotive applications (0045). Thus, a person of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious the composition, which necessarily comprises a surface visible from outside a vehicle and an opposite surface, for both surfaces to not be entirely covered by the plastic material of the main body.",
"Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Munro as applied to claim 4 above and further in view of Schoemann et al. (US 2005/0183262). Regarding claim 6, Munro discloses the limitations of claim 4 as discussed above. Munro does not disclose at least one surface being grained. Schoemann, in the analogous field of motor vehicle trim parts (0001), teaches a first mold material (insert) having a grained surface (0004). A person of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious for the composition of Munro to have a grained surface, as taught by Schoemann, to create a material with a desired look and feel (0003). Response to Arguments Applicant’s arguments over Moeller (DE10221286A1) have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. 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 ALICIA SAWDON whose telephone number is (571)270-1727. The examiner can normally be reached M-Th 9-4. 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, Frank Vineis can be reached on 571-270-1547. 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. /ALICIA J SAWDON/Primary Examiner, Art Unit 1781"
]
| 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 |
LOWELL, District Judge. Mr. Smith was a partner with the bankrupt, and left in the business $1,000, because it would destroy the business to withdraw it. All the evidence shows that Gray was insolvent, and that Smith must have known it. Indeed, a creditor who takes security upon the whole stock of a trader for an antecedent debt has never yet succeeded, in any case within my knowledge, in explaining the transaction, excepting by evidence of the actual solvency of the tinder at the time; such a mortgage is taken at the risk of bankruptcy occurring within four months A nice question is, whether the mortgage ought to stand as valid for the $300. In Denny v. Dana, 2 Cush. 160, a mortgage bad in part, becatise given by way of preference, was hold to be wholly void. And it has been held that where an old mortgage was cancelled, and a new one taken, which was partly on newly acquired property, and was void for preference, the mortgagee could hold under neither. Paine v. Waite, 11 Gray, 190. These were eases at law. The rule in equity is very different. In that jurisdiction one may always hold by his best title, and a cancelled security which was valid will not be merged in a new one which is void. There are many decisions that, in the absence of a fraud in fact, participated in by the holder, a security-may stand good for part and be rejected for the remainder. See, per Swayne, J., Clements v. Moore, 6 Wall. [73 U. S.] 299, 312, and the eases there cited; and Herschfeldt v. George, 6 Mich. 456; Bullett v. Worthington, 3 Md. Ch. 99. affirmed 6 Md. 172; Boyd v. Dunlap, 1 Johns. Ch. 478; Bean v. Smith [Case No. 1,174], This is a case for the application of that practice; for the evidence is that the new mortgage was taken as a matter of convenience, and the transaction, though a preference as to the old debt, under the decisions, was not fraudulent in the usual sense of that term. The mortgage may, therefore, stand as security for the advance of $300. The mortgage to Payne was unnecessary, because a person who in fact advances his own money for the1 fees in bankruptcy has a first lien on the assets for its repayment. Payne’s mortgage is of no use to him, and whether it should be affirmed or annulled, he has a right to receive back his lawful advances. Decree that the mortgage to the defendant Smith is a valid security for the $300 advanced October, 1871, and interest, and invalid as to all other sums purporting to be secured by it; that Payne has a right to be reimbursed out of the assets any sums he may have advanced, for proper fees in bankruptcy; that the assignee have power to sell the mortgaged property, free of the incumbrance of the mortgages, and that he pay into court for the use of the defendants the sums so due to them respectively, and keep the remainder as assets in the bankruptcy. If there should be any dispute as to the amounts, they can be settled before the final draft of the decree. | 11-24-2022 | [
"LOWELL, District Judge. Mr. Smith was a partner with the bankrupt, and left in the business $1,000, because it would destroy the business to withdraw it. All the evidence shows that Gray was insolvent, and that Smith must have known it. Indeed, a creditor who takes security upon the whole stock of a trader for an antecedent debt has never yet succeeded, in any case within my knowledge, in explaining the transaction, excepting by evidence of the actual solvency of the tinder at the time; such a mortgage is taken at the risk of bankruptcy occurring within four months A nice question is, whether the mortgage ought to stand as valid for the $300. In Denny v. Dana, 2 Cush. 160, a mortgage bad in part, becatise given by way of preference, was hold to be wholly void.",
"And it has been held that where an old mortgage was cancelled, and a new one taken, which was partly on newly acquired property, and was void for preference, the mortgagee could hold under neither. Paine v. Waite, 11 Gray, 190. These were eases at law. The rule in equity is very different. In that jurisdiction one may always hold by his best title, and a cancelled security which was valid will not be merged in a new one which is void. There are many decisions that, in the absence of a fraud in fact, participated in by the holder, a security-may stand good for part and be rejected for the remainder. See, per Swayne, J., Clements v. Moore, 6 Wall. [73 U. S.] 299, 312, and the eases there cited; and Herschfeldt v. George, 6 Mich. 456; Bullett v. Worthington, 3 Md.",
"Ch. 99. affirmed 6 Md. 172; Boyd v. Dunlap, 1 Johns. Ch. 478; Bean v. Smith [Case No. 1,174], This is a case for the application of that practice; for the evidence is that the new mortgage was taken as a matter of convenience, and the transaction, though a preference as to the old debt, under the decisions, was not fraudulent in the usual sense of that term. The mortgage may, therefore, stand as security for the advance of $300. The mortgage to Payne was unnecessary, because a person who in fact advances his own money for the1 fees in bankruptcy has a first lien on the assets for its repayment. Payne’s mortgage is of no use to him, and whether it should be affirmed or annulled, he has a right to receive back his lawful advances. Decree that the mortgage to the defendant Smith is a valid security for the $300 advanced October, 1871, and interest, and invalid as to all other sums purporting to be secured by it; that Payne has a right to be reimbursed out of the assets any sums he may have advanced, for proper fees in bankruptcy; that the assignee have power to sell the mortgaged property, free of the incumbrance of the mortgages, and that he pay into court for the use of the defendants the sums so due to them respectively, and keep the remainder as assets in the bankruptcy. If there should be any dispute as to the amounts, they can be settled before the final draft of the decree."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8639920/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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