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b"No. _______\n\nIN THE\nSUPREME COURT OF THE UNITED STATES\n___________\nTRAVON NIKEITH JOHNSON,\nPetitioner\nv.\nUNITED STATES OF AMERICA\nRespondent\n___________\nAPPENDIX\n___________\n\n\x0cINDEX TO APPENDICES\nAppendix A\n\nJudgment and Opinion of Fifth Circuit\n\nAppendix B\n\nJudgment and Sentence of the United States District Court for the Northern\nDistrict of Texas\n\nAppendix C\n\nJudgement Revoking Supervised Release\n\n\x0cAPPENDIX A\n\n\x0cCase: 19-10517\n\nDocument: 00515321148\n\nPage: 1\n\nDate Filed: 02/26/2020\n\nIN THE UNITED STATES COURT OF APPEALS\nFOR THE FIFTH CIRCUIT\nUnited States Court of Appeals\nFifth Circuit\n\nNo. 19-10517\nSummary Calendar\n\nFILED\nFebruary 26, 2020\nLyle W. Cayce\nClerk\n\nUNITED STATES OF AMERICA,\nPlaintiff-Appellee\nv.\nTRAVON NIKEITH JOHNSON,\nDefendant-Appellant\nAppeal from the United States District Court\nfor the Northern District of Texas\nUSDC No. 4:18-CR-117-1\nBefore WIENER, HAYNES, and COSTA, Circuit Judges.\nPER CURIAM: *\nDefendant-Appellant Travon Nikeith Johnson appeals his aboveguidelines sentence of 24 months of imprisonment and 30 months of supervised\nrelease that he received on revocation of his initial term of supervised release.\nIn reaching its decision during the revocation and sentencing hearing, the\ndistrict court stated that it considered his criminal history, \xe2\x80\x9chis ongoing\nactivity in assaulting a family member,\xe2\x80\x9d and the sentencing factors under\n\nPursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not\nbe published and is not precedent except under the limited circumstances set forth in 5TH\nCIR. R. 47.5.4.\n*\n\n\x0cCase: 19-10517\n\nDocument: 00515321148\n\nPage: 2\n\nDate Filed: 02/26/2020\n\nNo. 19-10517\n18 U.S.C. \xc2\xa7 3553(a).\n\nAlthough the district court initially announced its\n\nsentence before permitting allocution, the court withdrew its sentence after\nJohnson objected, heard allocution, then imposed the same sentence.\nJohnson raises two issues on appeal. He first contends that the district\ncourt deprived him of a meaningful opportunity to allocute by making its\nstatements to him that tended to indicate that he had an \xe2\x80\x9cuphill battle\xe2\x80\x9d in\ntrying to change the court\xe2\x80\x99s mind.\nPlain error review applies because Johnson did nothing to indicate that\nhe \xe2\x80\x9ctook exception\xe2\x80\x9d to how the district court handled his initial allocution\nobjection. See United States v. Salinas, 480 F.3d 750, 755-56 (5th Cir. 2007).\nThere was no \xe2\x80\x9cclear or obvious\xe2\x80\x9d error. Puckett v. United States, 556 U.S. 129,\n135 (2009). The district court was permitted to state its intentions to impose\na particular sentence before giving Johnson the opportunity to speak. United\nStates v. Pittsinger, 874 F.3d 446, 452 (5th Cir. 2017). It is not clear or obvious\nthat the district court\xe2\x80\x99s language constituted \xe2\x80\x9ca definitive and conclusive\nstatement regarding the sentence to be imposed.\xe2\x80\x9d Id. at 453.\nJohnson next maintains that the district court failed to consider the\nextent of the deviation from the applicable guidelines range in sentencing him\nto an above-guidelines sentence of imprisonment after ascertaining the correct\nrange.\n\nAlthough Johnson concedes that a court which initially chooses a\n\nsentence above an 18-month maximum range probably would not sentence\nbeneath a 12-month maximum on the same facts, he argues that it does not\nfollow that the ultimate sentence should necessarily be the same.\nAssuming arguendo that the district court committed a clear or obvious\nerror, Johnson still fails to show that such an error affected his substantial\nrights. The Supreme Court has said that \xe2\x80\x9c[i]n most cases a defendant who has\nshown that the district court mistakenly deemed applicable an incorrect,\n\n2\n\n\x0cCase: 19-10517\n\nDocument: 00515321148\n\nPage: 3\n\nDate Filed: 02/26/2020\n\nNo. 19-10517\nhigher Guidelines range has demonstrated a reasonable probability of a\ndifferent outcome.\xe2\x80\x9d Molina-Martinez v. United States, 136 S. Ct. 1338, 1346\n(2016). Here, however, the district court considered the correct guidelines\nrange before imposing Johnson\xe2\x80\x99s sentence and had chosen its initial sentence\nwith reference to the statutory limits on the revocation sentence and not the\napplicable guidelines range.\n\nIn sentencing Johnson, the district court\n\nemphasized his criminal history and \xe2\x80\x9chis ongoing activity in assaulting a\nfamily member\xe2\x80\x9d as opposed to the sentencing range. Johnson has not pointed\nto anything in the record that tends to show that the outcome would have been\ndifferent had the district court explicitly considered the extent of the deviation.\nAs such, he has failed to show that the district court plainly erred.\nsentence is AFFIRMED.\n\n3\n\nHis\n\n\x0cAPPENDIX B\n\n\x0cCase 4:13-cr-00233-MAC-CAN Document 923 Filed 01/12/16 Page 1 of 6 PageID #: 3413\nCase 4:18-cr-00117-A Document 2 Filed 05/22/18 Page 24 of 29 PageID 27\n\nUNITED STATES DISTRICT COURT\nEASTERN DISTRICT OF TEXAS SHERMAN DIVISION\n\n\xc2\xa7\n\xc2\xa7\n\xc2\xa7\n\xc2\xa7\n\xc2\xa7\n\xc2\xa7\n\xc2\xa7\n\nUNITED STATES OF AMERICA\nv.\nTRAVON NIKEITH JOHNSON\n\nJUDGMENT IN A CRIMINAL CASE\n\nCase Number: 4:13-CR-00233-MAC-DDB(15)\nUSM Number: 22281-078\nRonald Wayne Uselton\nDefendant\xe2\x80\x99s Attorney\n\nTHE DEFENDANT:\n\xe2\x98\x90 pleaded guilty to count(s)\npleaded guilty to count(s) before a U.S. Magistrate\n\n\xe2\x98\x92 Judge, which was accepted by the court.\n\xe2\x98\x90\n\xe2\x98\x90\n\n1 of the Indictment\n\npleaded nolo contendere to count(s) which was\naccepted by the court\nwas found guilty on count(s) after a plea of not\nguilty\n\nThe defendant is adjudicated guilty of these offenses:\nTitle & Section / Nature of Offense\n\nOffense Ended\n\nCount\n\n18:1349.F Attempt and Conspiracy To Commit Bank Fraud; 18:2 Aiding and Abetting\n\n09/11/2013\n\n1\n\nThe defendant is sentenced as provided in pages 2 through 6 of this judgment. The sentence is imposed pursuant to the Sentencing\nReform Act of 1984.\n\n\xe2\x98\x90 The defendant has been found not guilty on count(s)\n\xe2\x98\x90 Count(s) \xe2\x98\x90 is \xe2\x98\x90 are dismissed on the motion of the United States\nIt is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name,\nresidence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If\nordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic\ncircumstances.\n\nJanuary 5, 2016\nDate of Imposition of Judgment\n\nSignature of Judge\n\nMARCIA CRONE\nUNITED STATES DISTRICT JUDGE\nName and Title of Judge\n\nHello This is a Test\n\n1/11/16\nDate\n\n2/15/05\n\n19-10517.32\n\n\x0cCase 4:13-cr-00233-MAC-CAN Document 923 Filed 01/12/16 Page 2 of 6 PageID #: 3414\nCase 4:18-cr-00117-A Document 2 Filed 05/22/18 Page 25 of 29 PageID 28\n\nAO 245B (Rev. TXN 10/12) Judgment in a Criminal Case\n\nDEFENDANT:\nCASE NUMBER:\n\nJudgment -- Page 2 of 6\n\nTRAVON NIKEITH JOHNSON\n4:13-CR-00233-MAC-DDB(15)\n\nIMPRISONMENT\nThe defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of:\n14 MONTHS.\n\n\xe2\x98\x92 The court makes the following recommendations to the Bureau of Prisons:\nThe Court recommends that the defendant receive appropriate drug treatment while imprisoned and that\ndefendant be incarcerated in FCI, Fort Worth, TX, if available and defendant is eligible.\n\n\xe2\x98\x92 The defendant is remanded to the custody of the United States Marshal.\n\xe2\x98\x90 The defendant shall surrender to the United States Marshal for this district:\n\xe2\x98\x90 at\n\n\xe2\x98\x90\n\na.m.\n\n\xe2\x98\x90\n\np.m.\n\non\n\n\xe2\x98\x90 as notified by the United States Marshal.\n\xe2\x98\x90 The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:\n\xe2\x98\x90 before 2 p.m. on\n\xe2\x98\x90 as notified by the United States Marshal.\n\xe2\x98\x90 as notified by the Probation or Pretrial Services Office.\n\nRETURN\nI have executed this judgment as follows:\n\nDefendant delivered on\n\nat\n\nto\n\n, with a certified copy of this judgment.\n\nUNITED STATES MARSHAL\n\nBy\nDEPUTY UNITED STATES MARSHAL\n\n19-10517.33\n\n\x0cCase 4:13-cr-00233-MAC-CAN Document 923 Filed 01/12/16 Page 3 of 6 PageID #: 3415\nCase 4:18-cr-00117-A Document 2 Filed 05/22/18 Page 26 of 29 PageID 29\n\nAO 245B (Rev. TXN 10/12) Judgment in a Criminal Case\n\nDEFENDANT:\nCASE NUMBER:\n\nJudgment -- Page 3 of 6\n\nTRAVON NIKEITH JOHNSON\n4:13-CR-00233-MAC-DDB(15)\n\nSUPERVISED RELEASE\nUpon release from imprisonment, the defendant shall be on supervised release for a term of: 5 YEARS.\nThe defendant must report to the probation office in the district to which the defendant is released within 72 hours of release\nfrom the custody of the Bureau of Prisons.\nThe defendant shall not commit another federal, state or local crime.\nThe defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a controlled\nsubstance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug\ntests thereafter, as determined by the court.\n\n\xe2\x98\x90 The above drug testing condition is suspended, based on the court\xe2\x80\x99s determination that the defendant poses a low risk of future\nsubstance abuse. (Check, if applicable.)\nThe defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon.\n\n(Check, if applicable.)\n\xe2\x98\x92\n\xe2\x98\x92 The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable.)\n\xe2\x98\x90 The defendant shall comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. \xc2\xa7 16901, et\n\n\xe2\x98\x90\n\nseq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which he or she\nresides, works, is a student, or was convicted of a qualifying offense. (Check, if applicable.)\nThe defendant shall participate in an approved program for domestic violence. (Check, if applicable.)\n\nIf this judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance with\nthe Schedule of Payments sheet of this judgment.\nThe defendant must comply with the standard conditions that have been adopted by this court as well as with any additional\nconditions on the attached page.\n\nSTANDARD CONDITIONS OF SUPERVISION\n1.\n2.\n3.\n4.\n5.\n6.\n7.\n8.\n9.\n10.\n11.\n12.\n13.\n\nthe defendant shall not leave the judicial district without the permission of the court or probation officer;\nthe defendant shall report to the probation officer in a manner and frequency directed by the court or probation officer;\nthe defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer;\nthe defendant shall support his or her dependents and meet other family responsibilities;\nthe defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other\nacceptable reasons;\nthe defendant shall notify the probation officer at least ten days prior to any change in residence or employment;\nthe defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled\nsubstance or any paraphernalia related to any controlled substances, except as prescribed by a physician;\nthe defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered;\nthe defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a\nfelony, unless granted permission to do so by the probation officer;\nthe defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any\ncontraband observed in plain view of the probation officer;\nthe defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer;\nthe defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the\npermission of the court; and\nas directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant\xe2\x80\x99s criminal\nrecord or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant\xe2\x80\x99s\ncompliance with such notification requirement.\n\n19-10517.34\n\n\x0cCase 4:13-cr-00233-MAC-CAN Document 923 Filed 01/12/16 Page 4 of 6 PageID #: 3416\nCase 4:18-cr-00117-A Document 2 Filed 05/22/18 Page 27 of 29 PageID 30\n\nAO 245B (Rev. TXN 10/12) Judgment in a Criminal Case\n\nDEFENDANT:\nCASE NUMBER:\n\nJudgment -- Page 4 of 6\n\nTRAVON NIKEITH JOHNSON\n4:13-CR-00233-MAC-DDB(15)\n\nSPECIAL CONDITIONS OF SUPERVISION\nThe defendant shall provide probation officer with access to any requested financial\ninformation for purposes of monitoring fine/restitution payments and employment.\nThe defendant shall not incur new credit charges or open additional lines of credit\nwithout the approval of the probation officer unless payment of any financial obligation\nordered by the Court has been paid in full.\nThe defendant shall not participate in any form of gambling unless payment of any\nfinancial obligation ordered by the Court has been paid in full.\nThe defendant shall participate in a program of testing and treatment for drug abuse,\nunder the guidance and direction of the U.S. Probation Office, until such time as the\ndefendant is released from the program by the probation officer. The defendant shall\npay any cost associated with treatment and testing.\n\n19-10517.35\n\n\x0cCase 4:13-cr-00233-MAC-CAN Document 923 Filed 01/12/16 Page 5 of 6 PageID #: 3417\nCase 4:18-cr-00117-A Document 2 Filed 05/22/18 Page 28 of 29 PageID 31\n\nAO 245B (Rev. TXN 10/12) Judgment in a Criminal Case\n\nDEFENDANT:\nCASE NUMBER:\n\nJudgment -- Page 5 of 6\n\nTRAVON NIKEITH JOHNSON\n4:13-CR-00233-MAC-DDB(15)\n\nCRIMINAL MONETARY PENALTIES\nThe defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.\nFine\nAssessment\n$100.00\n$500.00\nTOTALS\n\nRestitution\n$6,269.50\n\n\xe2\x98\x90 The determination of restitution is deferred until\n\nAn Amended Judgment in a Criminal Case (AO245C) will be entered\nafter such determination.\n\xef\x81\xb8\xef\x80\xa0The defendant must make restitution (including community restitution) to the following payees in the amount listed below.\nIf the defendant makes a partial payment, each payee shall receive an approximately proportioned payment. However, pursuant to 18\nU.S.C. \xc2\xa7 3664(i), all nonfederal victims must be paid before the United States is paid.\n\nRestitution of $6,269.50, jointly and severally with co-defendant Arthur Freddie-Lee Allen (4:13-cr-00104-002), to:\nBank of America\n\n\xe2\x98\x90 Restitution amount ordered pursuant to plea agreement $\n\xe2\x98\x90 The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before\n\xe2\x98\x92\n\nthe fifteenth day after the date of the judgment, pursuant to 18 U.S.C. \xc2\xa7 3612(f). All of the payment options on Sheet 6 may be\nsubject to penalties for delinquency and default, pursuant to 18 U.S.C. \xc2\xa7 3612(g).\nThe court determined that the defendant does not have the ability to pay interest and it is ordered that:\n\xe2\x98\x92 the interest requirement is waived for the\n\xe2\x98\x90 fine\n\xe2\x98\x92 restitution\n\n\xe2\x98\x90 the interest requirement for the\n\n\xe2\x98\x90 fine\n\n\xe2\x98\x90 restitution is modified as follows:\n\n* Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after\nSeptember 13, 1994, but before April 23, 1996.\n\n19-10517.36\n\n\x0cCase 4:13-cr-00233-MAC-CAN Document 923 Filed 01/12/16 Page 6 of 6 PageID #: 3418\nCase 4:18-cr-00117-A Document 2 Filed 05/22/18 Page 29 of 29 PageID 32\n\nAO 245B (Rev. TXN 10/12) Judgment in a Criminal Case\n\nDEFENDANT:\nCASE NUMBER:\n\nJudgment -- Page 6 of 6\n\nTRAVON NIKEITH JOHNSON\n4:13-CR-00233-MAC-DDB(15)\n\nSCHEDULE OF PAYMENTS\nHaving assessed the defendant\xe2\x80\x99s ability to pay, payment of the total criminal monetary penalties is due as follows:\nA\n\n\xe2\x98\x92 Lump sum payments of $ 6,869.50 due immediately, balance due\n\xe2\x98\x90 not later than\n\xe2\x98\x92 in accordance\n\n, or\n\n\xe2\x98\x90\n\nC,\n\n\xe2\x98\x90\n\nD,\n\nB\n\n\xe2\x98\x90 Payment to begin immediately (may be combined with\n\nC\n\n\xe2\x98\x90 Payment in equal\n\xe2\x98\x90 Payment in equal\n\nE, or\n\n\xe2\x98\x92\n\nF below; or\n\n\xe2\x98\x90\n\nC,\n\n\xe2\x98\x90\n\nD, or\n\n(e.g., weekly, monthly, quarterly) installments of $\n(e.g., months or years), to commence\n\nD\n\n\xe2\x98\x90\n\nF below); or\n\nover a period of\n\n(e.g., 30 or 60 days) after the date of this judgment; or\n\n(e.g., weekly, monthly, quarterly) installments of $\n\n(e.g., months or years), to commence\nto a term of supervision; or\n\n\xe2\x98\x90\n\nover a period of\n\n(e.g., 30 or 60 days) after release from imprisonment\n\nE\n\n\xe2\x98\x90 Payment during the term of supervised release will commence within\n\nF\n\n\xe2\x98\x92 Special instructions regarding the payment of criminal monetary penalties:\n\n(e.g., 30 or 60 days) after release\nfrom imprisonment. The court will set the payment plan based on an assessment of the defendant\xe2\x80\x99s ability to pay at that\ntime; or\n\nIt is ordered that the Defendant shall pay to the United States a special assessment of $100.00 for Count 1 which\nshall be due immediately. Said special assessment shall be paid to the Clerk, U.S. District Court. Any restitution\namount that remains unpaid when the defendant's supervision commences is to be paid on a monthly basis at a rate of at\nleast 10% of the defendant's gross income, to be changed during supervision, if needed, based on the defendant's changed\ncircumstances, pursuant to 18 U.S.C. \xc2\xa7 3572(d)(3). If the defendant receives an inheritance, any settlements (including\ndivorce settlement and personal injury settlement), gifts, tax refunds, bonuses, lawsuit awards, and any other receipt of\nmoney (to include, but not be limited to, gambling proceeds, lottery winnings, and money found or discovered) the\ndefendant must, within 5 days of receipt, apply 100% of the value of such resources to any restitution or fine still owed.\nUnless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is\ndue during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons\xe2\x80\x99\nInmate Financial Responsibility Program, are made to: U.S. District Court. Fine & Restitution. 1910 E SE Loop 323 No 287. Tyler, TX 75701\nThe defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.\n\xef\x81\xb8\xef\x80\xa0 Joint and Several\nSee above for Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and\nSeveral Amount, and corresponding payee, if appropriate.\nRestitution of $6,269.50, jointly and severally with co-defendant Arthur Freddie-Lee Allen (4:13-cr-00104-002), to:\nBank of America\n\n\xe2\x98\x90\n\nDefendant shall receive credit on his restitution obligation for recovery from other defendants who contributed to the same loss\nthat gave rise to defendant's restitution obligation.\n\n\xe2\x98\x90 The defendant shall forfeit the defendant\xe2\x80\x99s interest in the following property to the United States:\n\nPayments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal,\n(5) fine interest, (6) community restitution, (7) penalties, and (8) costs, including cost of prosecution and court costs.\n\n19-10517.37\n\n\x0cAPPENDIX C\n\n\x0cCase 4:18-cr-00117-A Document 24 Filed 05/02/19\n\nPage 1 of 6 PageID 130\n\n\x0cCase 4:18-cr-00117-A Document 24 Filed 05/02/19\n\nPage 2 of 6 PageID 131\n\n\x0cCase 4:18-cr-00117-A Document 24 Filed 05/02/19\n\nPage 3 of 6 PageID 132\n\n\x0cCase 4:18-cr-00117-A Document 24 Filed 05/02/19\n\nPage 4 of 6 PageID 133\n\n\x0cCase 4:18-cr-00117-A Document 24 Filed 05/02/19\n\nPage 5 of 6 PageID 134\n\n\x0cCase 4:18-cr-00117-A Document 24 Filed 05/02/19\n\nPage 6 of 6 PageID 135\n\n\x0c" | 07-27-2020 | [
"b\"No. _______\\n\\nIN THE\\nSUPREME COURT OF THE UNITED STATES\\n___________\\nTRAVON NIKEITH JOHNSON,\\nPetitioner\\nv.\\nUNITED STATES OF AMERICA\\nRespondent\\n___________\\nAPPENDIX\\n___________\\n\\n\\x0cINDEX TO APPENDICES\\nAppendix A\\n\\nJudgment and Opinion of Fifth Circuit\\n\\nAppendix B\\n\\nJudgment and Sentence of the United States District Court for the Northern\\nDistrict of Texas\\n\\nAppendix C\\n\\nJudgement Revoking Supervised Release\\n\\n\\x0cAPPENDIX A\\n\\n\\x0cCase: 19-10517\\n\\nDocument: 00515321148\\n\\nPage: 1\\n\\nDate Filed: 02/26/2020\\n\\nIN THE UNITED STATES COURT OF APPEALS\\nFOR THE FIFTH CIRCUIT\\nUnited States Court of Appeals\\nFifth Circuit\\n\\nNo. 19-10517\\nSummary Calendar\\n\\nFILED\\nFebruary 26, 2020\\nLyle W. Cayce\\nClerk\\n\\nUNITED STATES OF AMERICA,\\nPlaintiff-Appellee\\nv.\\nTRAVON NIKEITH JOHNSON,\\nDefendant-Appellant\\nAppeal from the United States District Court\\nfor the Northern District of Texas\\nUSDC No. 4:18-CR-117-1\\nBefore WIENER, HAYNES, and COSTA, Circuit Judges.\\nPER CURIAM: *\\nDefendant-Appellant Travon Nikeith Johnson appeals his aboveguidelines sentence of 24 months of imprisonment and 30 months of supervised\\nrelease that he received on revocation of his initial term of supervised release.\\nIn reaching its decision during the revocation and sentencing hearing, the\\ndistrict court stated that it considered his criminal history, \\xe2\\x80\\x9chis ongoing\\nactivity in assaulting a family member,\\xe2\\x80\\x9d and the sentencing factors under\\n\\nPursuant to 5TH CIR.",
"R. 47.5, the court has determined that this opinion should not\\nbe published and is not precedent except under the limited circumstances set forth in 5TH\\nCIR. R. 47.5.4.\\n*\\n\\n\\x0cCase: 19-10517\\n\\nDocument: 00515321148\\n\\nPage: 2\\n\\nDate Filed: 02/26/2020\\n\\nNo. 19-10517\\n18 U.S.C. \\xc2\\xa7 3553(a).\\n\\nAlthough the district court initially announced its\\n\\nsentence before permitting allocution, the court withdrew its sentence after\\nJohnson objected, heard allocution, then imposed the same sentence.\\nJohnson raises two issues on appeal. He first contends that the district\\ncourt deprived him of a meaningful opportunity to allocute by making its\\nstatements to him that tended to indicate that he had an \\xe2\\x80\\x9cuphill battle\\xe2\\x80\\x9d in\\ntrying to change the court\\xe2\\x80\\x99s mind.\\nPlain error review applies because Johnson did nothing to indicate that\\nhe \\xe2\\x80\\x9ctook exception\\xe2\\x80\\x9d to how the district court handled his initial allocution\\nobjection.",
"See United States v. Salinas, 480 F.3d 750, 755-56 (5th Cir. 2007).\\nThere was no \\xe2\\x80\\x9cclear or obvious\\xe2\\x80\\x9d error. Puckett v. United States, 556 U.S. 129,\\n135 (2009). The district court was permitted to state its intentions to impose\\na particular sentence before giving Johnson the opportunity to speak. United\\nStates v. Pittsinger, 874 F.3d 446, 452 (5th Cir. 2017). It is not clear or obvious\\nthat the district court\\xe2\\x80\\x99s language constituted \\xe2\\x80\\x9ca definitive and conclusive\\nstatement regarding the sentence to be imposed.\\xe2\\x80\\x9d Id. at 453.\\nJohnson next maintains that the district court failed to consider the\\nextent of the deviation from the applicable guidelines range in sentencing him\\nto an above-guidelines sentence of imprisonment after ascertaining the correct\\nrange.\\n\\nAlthough Johnson concedes that a court which initially chooses a\\n\\nsentence above an 18-month maximum range probably would not sentence\\nbeneath a 12-month maximum on the same facts, he argues that it does not\\nfollow that the ultimate sentence should necessarily be the same.\\nAssuming arguendo that the district court committed a clear or obvious\\nerror, Johnson still fails to show that such an error affected his substantial\\nrights.",
"The Supreme Court has said that \\xe2\\x80\\x9c[i]n most cases a defendant who has\\nshown that the district court mistakenly deemed applicable an incorrect,\\n\\n2\\n\\n\\x0cCase: 19-10517\\n\\nDocument: 00515321148\\n\\nPage: 3\\n\\nDate Filed: 02/26/2020\\n\\nNo. 19-10517\\nhigher Guidelines range has demonstrated a reasonable probability of a\\ndifferent outcome.\\xe2\\x80\\x9d Molina-Martinez v. United States, 136 S. Ct. 1338, 1346\\n(2016). Here, however, the district court considered the correct guidelines\\nrange before imposing Johnson\\xe2\\x80\\x99s sentence and had chosen its initial sentence\\nwith reference to the statutory limits on the revocation sentence and not the\\napplicable guidelines range.\\n\\nIn sentencing Johnson, the district court\\n\\nemphasized his criminal history and \\xe2\\x80\\x9chis ongoing activity in assaulting a\\nfamily member\\xe2\\x80\\x9d as opposed to the sentencing range.",
"Johnson has not pointed\\nto anything in the record that tends to show that the outcome would have been\\ndifferent had the district court explicitly considered the extent of the deviation.\\nAs such, he has failed to show that the district court plainly erred.\\nsentence is AFFIRMED.\\n\\n3\\n\\nHis\\n\\n\\x0cAPPENDIX B\\n\\n\\x0cCase 4:13-cr-00233-MAC-CAN Document 923 Filed 01/12/16 Page 1 of 6 PageID #: 3413\\nCase 4:18-cr-00117-A Document 2 Filed 05/22/18 Page 24 of 29 PageID 27\\n\\nUNITED STATES DISTRICT COURT\\nEASTERN DISTRICT OF TEXAS SHERMAN DIVISION\\n\\n\\xc2\\xa7\\n\\xc2\\xa7\\n\\xc2\\xa7\\n\\xc2\\xa7\\n\\xc2\\xa7\\n\\xc2\\xa7\\n\\xc2\\xa7\\n\\nUNITED STATES OF AMERICA\\nv.\\nTRAVON NIKEITH JOHNSON\\n\\nJUDGMENT IN A CRIMINAL CASE\\n\\nCase Number: 4:13-CR-00233-MAC-DDB(15)\\nUSM Number: 22281-078\\nRonald Wayne Uselton\\nDefendant\\xe2\\x80\\x99s Attorney\\n\\nTHE DEFENDANT:\\n\\xe2\\x98\\x90 pleaded guilty to count(s)\\npleaded guilty to count(s) before a U.S. Magistrate\\n\\n\\xe2\\x98\\x92 Judge, which was accepted by the court.\\n\\xe2\\x98\\x90\\n\\xe2\\x98\\x90\\n\\n1 of the Indictment\\n\\npleaded nolo contendere to count(s) which was\\naccepted by the court\\nwas found guilty on count(s) after a plea of not\\nguilty\\n\\nThe defendant is adjudicated guilty of these offenses:\\nTitle & Section / Nature of Offense\\n\\nOffense Ended\\n\\nCount\\n\\n18:1349.F Attempt and Conspiracy To Commit Bank Fraud; 18:2 Aiding and Abetting\\n\\n09/11/2013\\n\\n1\\n\\nThe defendant is sentenced as provided in pages 2 through 6 of this judgment.",
"The sentence is imposed pursuant to the Sentencing\\nReform Act of 1984.\\n\\n\\xe2\\x98\\x90 The defendant has been found not guilty on count(s)\\n\\xe2\\x98\\x90 Count(s) \\xe2\\x98\\x90 is \\xe2\\x98\\x90 are dismissed on the motion of the United States\\nIt is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name,\\nresidence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid.",
"If\\nordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic\\ncircumstances.\\n\\nJanuary 5, 2016\\nDate of Imposition of Judgment\\n\\nSignature of Judge\\n\\nMARCIA CRONE\\nUNITED STATES DISTRICT JUDGE\\nName and Title of Judge\\n\\nHello This is a Test\\n\\n1/11/16\\nDate\\n\\n2/15/05\\n\\n19-10517.32\\n\\n\\x0cCase 4:13-cr-00233-MAC-CAN Document 923 Filed 01/12/16 Page 2 of 6 PageID #: 3414\\nCase 4:18-cr-00117-A Document 2 Filed 05/22/18 Page 25 of 29 PageID 28\\n\\nAO 245B (Rev. TXN 10/12) Judgment in a Criminal Case\\n\\nDEFENDANT:\\nCASE NUMBER:\\n\\nJudgment -- Page 2 of 6\\n\\nTRAVON NIKEITH JOHNSON\\n4:13-CR-00233-MAC-DDB(15)\\n\\nIMPRISONMENT\\nThe defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of:\\n14 MONTHS.\\n\\n\\xe2\\x98\\x92 The court makes the following recommendations to the Bureau of Prisons:\\nThe Court recommends that the defendant receive appropriate drug treatment while imprisoned and that\\ndefendant be incarcerated in FCI, Fort Worth, TX, if available and defendant is eligible.\\n\\n\\xe2\\x98\\x92 The defendant is remanded to the custody of the United States Marshal.\\n\\xe2\\x98\\x90 The defendant shall surrender to the United States Marshal for this district:\\n\\xe2\\x98\\x90 at\\n\\n\\xe2\\x98\\x90\\n\\na.m.\\n\\n\\xe2\\x98\\x90\\n\\np.m.\\n\\non\\n\\n\\xe2\\x98\\x90 as notified by the United States Marshal.\\n\\xe2\\x98\\x90 The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:\\n\\xe2\\x98\\x90 before 2 p.m. on\\n\\xe2\\x98\\x90 as notified by the United States Marshal.\\n\\xe2\\x98\\x90 as notified by the Probation or Pretrial Services Office.\\n\\nRETURN\\nI have executed this judgment as follows:\\n\\nDefendant delivered on\\n\\nat\\n\\nto\\n\\n, with a certified copy of this judgment.\\n\\nUNITED STATES MARSHAL\\n\\nBy\\nDEPUTY UNITED STATES MARSHAL\\n\\n19-10517.33\\n\\n\\x0cCase 4:13-cr-00233-MAC-CAN Document 923 Filed 01/12/16 Page 3 of 6 PageID #: 3415\\nCase 4:18-cr-00117-A Document 2 Filed 05/22/18 Page 26 of 29 PageID 29\\n\\nAO 245B (Rev.",
"TXN 10/12) Judgment in a Criminal Case\\n\\nDEFENDANT:\\nCASE NUMBER:\\n\\nJudgment -- Page 3 of 6\\n\\nTRAVON NIKEITH JOHNSON\\n4:13-CR-00233-MAC-DDB(15)\\n\\nSUPERVISED RELEASE\\nUpon release from imprisonment, the defendant shall be on supervised release for a term of: 5 YEARS.\\nThe defendant must report to the probation office in the district to which the defendant is released within 72 hours of release\\nfrom the custody of the Bureau of Prisons.\\nThe defendant shall not commit another federal, state or local crime.\\nThe defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a controlled\\nsubstance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug\\ntests thereafter, as determined by the court.\\n\\n\\xe2\\x98\\x90 The above drug testing condition is suspended, based on the court\\xe2\\x80\\x99s determination that the defendant poses a low risk of future\\nsubstance abuse. (Check, if applicable. )\\nThe defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon.\\n\\n(Check, if applicable. )\\n\\xe2\\x98\\x92\\n\\xe2\\x98\\x92 The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable. )\\n\\xe2\\x98\\x90 The defendant shall comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. \\xc2\\xa7 16901, et\\n\\n\\xe2\\x98\\x90\\n\\nseq.)",
"as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which he or she\\nresides, works, is a student, or was convicted of a qualifying offense. (Check, if applicable. )\\nThe defendant shall participate in an approved program for domestic violence. (Check, if applicable.",
")\\n\\nIf this judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance with\\nthe Schedule of Payments sheet of this judgment.\\nThe defendant must comply with the standard conditions that have been adopted by this court as well as with any additional\\nconditions on the attached page.\\n\\nSTANDARD CONDITIONS OF SUPERVISION\\n1.\\n2.\\n3.\\n4.\\n5.\\n6.\\n7.\\n8.\\n9.\\n10.\\n11.\\n12.\\n13.\\n\\nthe defendant shall not leave the judicial district without the permission of the court or probation officer;\\nthe defendant shall report to the probation officer in a manner and frequency directed by the court or probation officer;\\nthe defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer;\\nthe defendant shall support his or her dependents and meet other family responsibilities;\\nthe defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other\\nacceptable reasons;\\nthe defendant shall notify the probation officer at least ten days prior to any change in residence or employment;\\nthe defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled\\nsubstance or any paraphernalia related to any controlled substances, except as prescribed by a physician;\\nthe defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered;\\nthe defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a\\nfelony, unless granted permission to do so by the probation officer;\\nthe defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any\\ncontraband observed in plain view of the probation officer;\\nthe defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer;\\nthe defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the\\npermission of the court; and\\nas directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant\\xe2\\x80\\x99s criminal\\nrecord or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant\\xe2\\x80\\x99s\\ncompliance with such notification requirement.\\n\\n19-10517.34\\n\\n\\x0cCase 4:13-cr-00233-MAC-CAN Document 923 Filed 01/12/16 Page 4 of 6 PageID #: 3416\\nCase 4:18-cr-00117-A Document 2 Filed 05/22/18 Page 27 of 29 PageID 30\\n\\nAO 245B (Rev.",
"TXN 10/12) Judgment in a Criminal Case\\n\\nDEFENDANT:\\nCASE NUMBER:\\n\\nJudgment -- Page 4 of 6\\n\\nTRAVON NIKEITH JOHNSON\\n4:13-CR-00233-MAC-DDB(15)\\n\\nSPECIAL CONDITIONS OF SUPERVISION\\nThe defendant shall provide probation officer with access to any requested financial\\ninformation for purposes of monitoring fine/restitution payments and employment.\\nThe defendant shall not incur new credit charges or open additional lines of credit\\nwithout the approval of the probation officer unless payment of any financial obligation\\nordered by the Court has been paid in full.\\nThe defendant shall not participate in any form of gambling unless payment of any\\nfinancial obligation ordered by the Court has been paid in full.\\nThe defendant shall participate in a program of testing and treatment for drug abuse,\\nunder the guidance and direction of the U.S. Probation Office, until such time as the\\ndefendant is released from the program by the probation officer.",
"The defendant shall\\npay any cost associated with treatment and testing.\\n\\n19-10517.35\\n\\n\\x0cCase 4:13-cr-00233-MAC-CAN Document 923 Filed 01/12/16 Page 5 of 6 PageID #: 3417\\nCase 4:18-cr-00117-A Document 2 Filed 05/22/18 Page 28 of 29 PageID 31\\n\\nAO 245B (Rev. TXN 10/12) Judgment in a Criminal Case\\n\\nDEFENDANT:\\nCASE NUMBER:\\n\\nJudgment -- Page 5 of 6\\n\\nTRAVON NIKEITH JOHNSON\\n4:13-CR-00233-MAC-DDB(15)\\n\\nCRIMINAL MONETARY PENALTIES\\nThe defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.\\nFine\\nAssessment\\n$100.00\\n$500.00\\nTOTALS\\n\\nRestitution\\n$6,269.50\\n\\n\\xe2\\x98\\x90 The determination of restitution is deferred until\\n\\nAn Amended Judgment in a Criminal Case (AO245C) will be entered\\nafter such determination.\\n\\xef\\x81\\xb8\\xef\\x80\\xa0The defendant must make restitution (including community restitution) to the following payees in the amount listed below.\\nIf the defendant makes a partial payment, each payee shall receive an approximately proportioned payment. However, pursuant to 18\\nU.S.C.",
"\\xc2\\xa7 3664(i), all nonfederal victims must be paid before the United States is paid.\\n\\nRestitution of $6,269.50, jointly and severally with co-defendant Arthur Freddie-Lee Allen (4:13-cr-00104-002), to:\\nBank of America\\n\\n\\xe2\\x98\\x90 Restitution amount ordered pursuant to plea agreement $\\n\\xe2\\x98\\x90 The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before\\n\\xe2\\x98\\x92\\n\\nthe fifteenth day after the date of the judgment, pursuant to 18 U.S.C. \\xc2\\xa7 3612(f). All of the payment options on Sheet 6 may be\\nsubject to penalties for delinquency and default, pursuant to 18 U.S.C. \\xc2\\xa7 3612(g).\\nThe court determined that the defendant does not have the ability to pay interest and it is ordered that:\\n\\xe2\\x98\\x92 the interest requirement is waived for the\\n\\xe2\\x98\\x90 fine\\n\\xe2\\x98\\x92 restitution\\n\\n\\xe2\\x98\\x90 the interest requirement for the\\n\\n\\xe2\\x98\\x90 fine\\n\\n\\xe2\\x98\\x90 restitution is modified as follows:\\n\\n* Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after\\nSeptember 13, 1994, but before April 23, 1996.\\n\\n19-10517.36\\n\\n\\x0cCase 4:13-cr-00233-MAC-CAN Document 923 Filed 01/12/16 Page 6 of 6 PageID #: 3418\\nCase 4:18-cr-00117-A Document 2 Filed 05/22/18 Page 29 of 29 PageID 32\\n\\nAO 245B (Rev.",
"TXN 10/12) Judgment in a Criminal Case\\n\\nDEFENDANT:\\nCASE NUMBER:\\n\\nJudgment -- Page 6 of 6\\n\\nTRAVON NIKEITH JOHNSON\\n4:13-CR-00233-MAC-DDB(15)\\n\\nSCHEDULE OF PAYMENTS\\nHaving assessed the defendant\\xe2\\x80\\x99s ability to pay, payment of the total criminal monetary penalties is due as follows:\\nA\\n\\n\\xe2\\x98\\x92 Lump sum payments of $ 6,869.50 due immediately, balance due\\n\\xe2\\x98\\x90 not later than\\n\\xe2\\x98\\x92 in accordance\\n\\n, or\\n\\n\\xe2\\x98\\x90\\n\\nC,\\n\\n\\xe2\\x98\\x90\\n\\nD,\\n\\nB\\n\\n\\xe2\\x98\\x90 Payment to begin immediately (may be combined with\\n\\nC\\n\\n\\xe2\\x98\\x90 Payment in equal\\n\\xe2\\x98\\x90 Payment in equal\\n\\nE, or\\n\\n\\xe2\\x98\\x92\\n\\nF below; or\\n\\n\\xe2\\x98\\x90\\n\\nC,\\n\\n\\xe2\\x98\\x90\\n\\nD, or\\n\\n(e.g., weekly, monthly, quarterly) installments of $\\n(e.g., months or years), to commence\\n\\nD\\n\\n\\xe2\\x98\\x90\\n\\nF below); or\\n\\nover a period of\\n\\n(e.g., 30 or 60 days) after the date of this judgment; or\\n\\n(e.g., weekly, monthly, quarterly) installments of $\\n\\n(e.g., months or years), to commence\\nto a term of supervision; or\\n\\n\\xe2\\x98\\x90\\n\\nover a period of\\n\\n(e.g., 30 or 60 days) after release from imprisonment\\n\\nE\\n\\n\\xe2\\x98\\x90 Payment during the term of supervised release will commence within\\n\\nF\\n\\n\\xe2\\x98\\x92 Special instructions regarding the payment of criminal monetary penalties:\\n\\n(e.g., 30 or 60 days) after release\\nfrom imprisonment. The court will set the payment plan based on an assessment of the defendant\\xe2\\x80\\x99s ability to pay at that\\ntime; or\\n\\nIt is ordered that the Defendant shall pay to the United States a special assessment of $100.00 for Count 1 which\\nshall be due immediately.",
"Said special assessment shall be paid to the Clerk, U.S. District Court. Any restitution\\namount that remains unpaid when the defendant's supervision commences is to be paid on a monthly basis at a rate of at\\nleast 10% of the defendant's gross income, to be changed during supervision, if needed, based on the defendant's changed\\ncircumstances, pursuant to 18 U.S.C. \\xc2\\xa7 3572(d)(3). If the defendant receives an inheritance, any settlements (including\\ndivorce settlement and personal injury settlement), gifts, tax refunds, bonuses, lawsuit awards, and any other receipt of\\nmoney (to include, but not be limited to, gambling proceeds, lottery winnings, and money found or discovered) the\\ndefendant must, within 5 days of receipt, apply 100% of the value of such resources to any restitution or fine still owed.\\nUnless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is\\ndue during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons\\xe2\\x80\\x99\\nInmate Financial Responsibility Program, are made to: U.S. District Court. Fine & Restitution. 1910 E SE Loop 323 No 287. Tyler, TX 75701\\nThe defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.\\n\\xef\\x81\\xb8\\xef\\x80\\xa0 Joint and Several\\nSee above for Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and\\nSeveral Amount, and corresponding payee, if appropriate.\\nRestitution of $6,269.50, jointly and severally with co-defendant Arthur Freddie-Lee Allen (4:13-cr-00104-002), to:\\nBank of America\\n\\n\\xe2\\x98\\x90\\n\\nDefendant shall receive credit on his restitution obligation for recovery from other defendants who contributed to the same loss\\nthat gave rise to defendant's restitution obligation.\\n\\n\\xe2\\x98\\x90 The defendant shall forfeit the defendant\\xe2\\x80\\x99s interest in the following property to the United States:\\n\\nPayments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal,\\n(5) fine interest, (6) community restitution, (7) penalties, and (8) costs, including cost of prosecution and court costs.\\n\\n19-10517.37\\n\\n\\x0cAPPENDIX C\\n\\n\\x0cCase 4:18-cr-00117-A Document 24 Filed 05/02/19\\n\\nPage 1 of 6 PageID 130\\n\\n\\x0cCase 4:18-cr-00117-A Document 24 Filed 05/02/19\\n\\nPage 2 of 6 PageID 131\\n\\n\\x0cCase 4:18-cr-00117-A Document 24 Filed 05/02/19\\n\\nPage 3 of 6 PageID 132\\n\\n\\x0cCase 4:18-cr-00117-A Document 24 Filed 05/02/19\\n\\nPage 4 of 6 PageID 133\\n\\n\\x0cCase 4:18-cr-00117-A Document 24 Filed 05/02/19\\n\\nPage 5 of 6 PageID 134\\n\\n\\x0cCase 4:18-cr-00117-A Document 24 Filed 05/02/19\\n\\nPage 6 of 6 PageID 135\\n\\n\\x0c\""
]
| http://www.supremecourt.gov/DocketPDF/20/20-5222/148721/20200727122751239_Johnson_Cert%20Appendix_7-27-20.pdf | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DEBORAH MCCALL, No. 4:18-CV-01350 Individually and as Personal Representative of the Estate of Ryan (Judge Brann) Lee McCall, WANCHART MCCALL, Individually and as Personal Representative of the Estate of Ryan Lee McCall,
Plaintiffs, v.
AVCO CORPORATION, LYCOMING ENGINES, and AVCO LYCOMING-TEXTRON WILLIAMSPORT,
Defendants.
ORDER
MAY 7, 2019
I. BACKGROUND
Ryan Lee McCall died as a result of a small aircraft accident on March 29,
2015 shortly after takeoff from an Orange County, Virginia airport. At the time of
this tragedy, McCall was a student pilot operating a Piper PA-28 model aircraft.
His parents, Deborah and Wanchart McCall, the Plaintiffs in the matter before the
Court, instituted suit alleging that the crash of the Piper PA-28, and their son’s
death, was caused by defective products manufactured and designed by Defendants Avco Corporation, Lycoming Engines, and Avco Lycoming-Textron Williamsport;
these products are alleged to have been installed on this aircraft.
Plaintiffs first filed a civil action against the Defendants, and others, in the
Circuit Court of Fairfax County,1 Virginia. Because Defendants preserved an
objection to personal jurisdiction in the Virginia action, Plaintiffs then filed the
instant suit as a savings action in the Court of Common Pleas of Philadelphia
County. Defendants timely removed the case to the Eastern District of
Pennsylvania, which subsequently transferred venue to this Court on July 6, 2018.
Two motions are currently pending, a motion to lift a stay of this action and
a motion to remand the matter to the Court of Common Pleas of Philadelphia
County. Both motions are now ripe for disposition.
II. DISCUSSION
A. The Stay
It is well-established that “the power to stay proceedings is incidental to the
power inherent in every court to control the disposition of the causes on its docket
with economy of time and effort for itself, for counsel, and for litigants.”2
Moreover, “the same court that imposes a stay of litigation has the inherent power
1 Later transferred to Orange County, Virginia. 2 Landis v. N. American Co., 299 U.S. 248, 254 (1936). -2- and discretion to lift the stay.”3 I granted a stay in this matter by Order dated
November 5, 2018. I considered the following four factors when the stay was
granted: (1) the length of the requested stay; (2) the hardship that the moving party
would face in going forward with the litigation; (3) the injury that a stay would
cause the non-moving party; (4) and whether a stay will simplify issues and
promote judicial economy.4
However, “when circumstances have changed such that the court’s reasons
for imposing the stay no longer exist or are inappropriate, the court may lift the
stay.”5 At the time that the stay was granted, this Court was motivated primarily
by the fact that the stay would promote judicial economy; I found a lack of
hardship or injury to either party because the first-filed action pending now in the
Circuit Court of Orange County, Virginia was between the same parties and
concerned the same subject matter. Moreover, it was anticipated that the Virginia
matter would proceed to trial by February 1, 2019. Because the Virginia action
remains in discovery, with apparently no set trial date, the circumstances have
changed such that the stay will be lifted in this matter.
3 Air Vent, Inc. v. Owens Corning Corp., No. 02:10-CV-01699, 2013 WL 1102811, at *2 (W.D. Pa. Mar. 15, 2013) quoting Canady v. Erbe Elektromedizin GmbH, 271 F.Supp.2d 64, 74 (D.D.C.2002). 4 Structural Group, Inc. v. Liberty Mut. Ins. Co., 2008 WL 4616843, *4 (M.D. Pa. October 16, 2008) (citing Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). 5 Air Vent, Inc., at * 2. -3- That said, however, this action was filed merely as a savings action by
Plaintiffs solely because Defendants refuse to concede personal jurisdiction in
Virginia.6 Thus, to “avoid the possibility of multiple trials on [the same set of
facts] that [] would involve substantially the same defenses, evidence, and
witnesses,”7 the stay is lifted as to discovery only. Dispositive motions deadlines
and trial dates in this matter will be set, if necessary, at the conclusion of the
Virginia litigation.
To that end, I respectfully suggest that the parties consider stipulating to an
administrative closing of this matter, with the understanding that this action may be
re-opened within a rejoinder period (to be determined by the parties), in the event
that one or more of the Defendants contests personal jurisdiction in the Virginia
lawsuit.8
B. Remand
Additionally, Plaintiffs move to remand, alleging that Lycoming Engines is
a Pennsylvania Defendant. As noted above, Defendants removed this action from
the Philadelphia Court of Common Pleas asserting that this Court has jurisdiction
on the basis of diversity, pursuant to 28 U.S.C. § 1332(a) and § 1441. The removal
6 See ECF No. 27 at 1 and 39-1 at 3. 7 Sprint Commc’ns Co. L.P. v. Comcast Cable Commc’ns LLC, No. 11-2684-JWL, 2015 WL 5883716, at *1 (D. Kan. Oct. 8, 2015). 8 See, e.g., Holleran v. Avco Corp., et. al., No. 4:07-CV-02249-JEJ, March 31, 2008, ECF No. 17. A copy of the stipulated Order from Holleran has been attached to the instant Order. -4- was timely under 28 U.S.C. §1446; Plaintiffs’ motion to remand was also timely
filed under 28 U.S.C. § 1447(c).
Plaintiffs contend that Defendants are headquartered in Pennsylvania,
despite Defendants’ assertions to the contrary. As such, Plaintiffs argue that
remand is proper because Defendants were properly sued in the Court of Common
Pleas of Philadelphia County.
Plaintiffs attempt to advance the ‘forum defendant rule’ of 28 U.S.C. §
1446(b)(2), which states “a civil action otherwise removable solely on the basis of
the jurisdiction under section 1332(a) of this title may not be removed if any of the
parties in interest properly joined and served as defendants is a citizen of the State
in which such action is brought.” The forum defendant rule “makes diversity
jurisdiction in a removal case narrower than if the case was originally filed in
federal court by the plaintiff.”9
“Under the ‘forum defendant rule,’ a defendant can remove a case based on
diversity jurisdiction only if none of the parties in interest properly joined and
served as defendants is a citizen of the State in which such action is brought.”10
“Federal courts lack diversity jurisdiction over a removed case in which one of the
9 Perez v. Forest Labs., Inc., 902 F. Supp. 2d 1238, 1241 (E.D. Mo. 2012), see also Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147, 152 (3d Cir. 2018). 10 Id. citing Lincoln Prop. Co. v. Roche, 546 U.S. 81, 90 (2005). -5- defendants is a citizen of the forum state.”11 “The forum defendant rule
‘recognizes that the rationale for diversity jurisdiction no longer exists when one of
the defendants is a citizen of the forum state since the likelihood of local bias is
reduced, if not eliminated.’”12
It is clear that “on a motion to remand, the removing party bears the burden
of establishing the propriety of removal.”13 “Removal statutes are to be strictly
construed against removal and all doubts resolved in favor of remand.”14
Here, Plaintiffs suggest that there is a lack of diversity jurisdiction, citing
holdings from the Eastern District of Pennsylvania. However, as the undersigned
sits in the Middle District of Pennsylvania, I am more persuaded by the reasoning
of my colleague, the Honorable Yvette Kane, in holding that “Defendant Textron
is a citizen of Delaware and Rhode Island; Defendant AVCO is a citizen of
11 Id. The ‘forum defendant rule’ has been perplexing to Courts, as diversity jurisdiction does exist if Plaintiff filed a diversity action against an in-state Defendant in federal court, and the Third Circuit has postulated the reason for the forum defendant rule as follows: The legislative history provides no guidance; however, courts and commentators have determined that Congress enacted the rule “to prevent a plaintiff from blocking removal by joining as a defendant a resident party against whom it does not intend to proceed, and whom it does not even serve.” Arthur Hellman, et al., Neutralizing the Strategem of “Snap Removal”: A Proposed Amendment to the Judicial Code, 9 Fed. Cts. L. Rev. 103, 108 (2016) (quoting Sullivan v. Novartis Pharms. Corp., 575 F.Supp.2d 640, 645 (D.N.J. 2008 ); see also Goodwin v. Reynolds, 757 F.3d 1216, 1221 (11th Cir. 2014) (noting the same). Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147, 153 (3d Cir. 2018). 12 Figured v. Davies, No. 3:16-CV-467, 2016 WL 3148392, at *2 (M.D. Pa. June 2, 2016) (Caputo, J.) (internal citation and quotation omitted). 13 Id. citing Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert. denied, 498 U.S. 1085, 111 S. Ct. 959, 112 L.Ed. 2d 1046 (1991). 14 Id. -6- Delaware and [Rhode Island].15 Defendant Lycoming Engines is a division of
AVCO and as such it shares citizenship with that company.”16
In this matter, Plaintiffs are both citizens of Virginia, complete diversity of
citizenship exists between the parties, and diversity jurisdiction is appropriate in
this Court, as the amount in controversy exceeds the $75,000 jurisdictional
requirement.
III. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that:
1. Defendant Avco Corporation’s Motion to Lift Stay, February 12, 2019,
ECF No. 37, is GRANTED, to the extent discussed herein.
2. Plaintiffs’ Motion to Remand, July 24, 2018, ECF No. 16, is DENIED.
3. Plaintiffs’ request for attorneys’ fees, costs, and expenses pursuant to 28
U.S.C. § 1447(c) is also DENIED.
BY THE COURT:
s/ Matthew W. Brann Matthew W. Brann United States District Judge
15 At the time of the Judge Kane opinion in 3CG, LLC v. Textron, Inc., et al, Avco was headquartered in Massachusetts. In 2012, Avco moved its headquarters to 40 Westminster St., Providence, Rhode Island. This has no effect on the issue of diversity here, as Plaintiffs are not residents of either Massachusetts or Rhode Island. 16 3CG, LLC v. Textron, Inc., No. 4:11-CV-00880, 2011 WL 3627682, at *2 (M.D. Pa. Aug. 16, 2011) (Kane, J.). -7- Case 4:07-cv-02249-JEJ Document 17 Filed 03/31/08 Page 1 of 5 Case 4:07-cv-02249-JEJ Document 17 Filed 03/31/08 Page 2 of 5 Case 4:07-cv-02249-JEJ Document 17 Filed 03/31/08 Page 3 of 5 Case 4:07-cv-02249-JEJ Document 17 Filed 03/31/08 Page 4 of 5 Case 4:07-cv-02249-JEJ Document 17 Filed 03/31/08 Page 5 of 5 | 2019-05-07 | [
"IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA DEBORAH MCCALL, No. 4:18-CV-01350 Individually and as Personal Representative of the Estate of Ryan (Judge Brann) Lee McCall, WANCHART MCCALL, Individually and as Personal Representative of the Estate of Ryan Lee McCall, Plaintiffs, v. AVCO CORPORATION, LYCOMING ENGINES, and AVCO LYCOMING-TEXTRON WILLIAMSPORT, Defendants. ORDER MAY 7, 2019 I. BACKGROUND Ryan Lee McCall died as a result of a small aircraft accident on March 29, 2015 shortly after takeoff from an Orange County, Virginia airport. At the time of this tragedy, McCall was a student pilot operating a Piper PA-28 model aircraft. His parents, Deborah and Wanchart McCall, the Plaintiffs in the matter before the Court, instituted suit alleging that the crash of the Piper PA-28, and their son’s death, was caused by defective products manufactured and designed by Defendants Avco Corporation, Lycoming Engines, and Avco Lycoming-Textron Williamsport; these products are alleged to have been installed on this aircraft.",
"Plaintiffs first filed a civil action against the Defendants, and others, in the Circuit Court of Fairfax County,1 Virginia. Because Defendants preserved an objection to personal jurisdiction in the Virginia action, Plaintiffs then filed the instant suit as a savings action in the Court of Common Pleas of Philadelphia County. Defendants timely removed the case to the Eastern District of Pennsylvania, which subsequently transferred venue to this Court on July 6, 2018. Two motions are currently pending, a motion to lift a stay of this action and a motion to remand the matter to the Court of Common Pleas of Philadelphia County. Both motions are now ripe for disposition. II. DISCUSSION A. The Stay It is well-established that “the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.”2 Moreover, “the same court that imposes a stay of litigation has the inherent power 1 Later transferred to Orange County, Virginia.",
"2 Landis v. N. American Co., 299 U.S. 248, 254 (1936). -2- and discretion to lift the stay.”3 I granted a stay in this matter by Order dated November 5, 2018. I considered the following four factors when the stay was granted: (1) the length of the requested stay; (2) the hardship that the moving party would face in going forward with the litigation; (3) the injury that a stay would cause the non-moving party; (4) and whether a stay will simplify issues and promote judicial economy.4 However, “when circumstances have changed such that the court’s reasons for imposing the stay no longer exist or are inappropriate, the court may lift the stay.”5 At the time that the stay was granted, this Court was motivated primarily by the fact that the stay would promote judicial economy; I found a lack of hardship or injury to either party because the first-filed action pending now in the Circuit Court of Orange County, Virginia was between the same parties and concerned the same subject matter.",
"Moreover, it was anticipated that the Virginia matter would proceed to trial by February 1, 2019. Because the Virginia action remains in discovery, with apparently no set trial date, the circumstances have changed such that the stay will be lifted in this matter. 3 Air Vent, Inc. v. Owens Corning Corp., No. 02:10-CV-01699, 2013 WL 1102811, at *2 (W.D. Pa. Mar. 15, 2013) quoting Canady v. Erbe Elektromedizin GmbH, 271 F.Supp.2d 64, 74 (D.D.C.2002). 4 Structural Group, Inc. v. Liberty Mut. Ins. Co., 2008 WL 4616843, *4 (M.D. Pa. October 16, 2008) (citing Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)).",
"5 Air Vent, Inc., at * 2. -3- That said, however, this action was filed merely as a savings action by Plaintiffs solely because Defendants refuse to concede personal jurisdiction in Virginia.6 Thus, to “avoid the possibility of multiple trials on [the same set of facts] that [] would involve substantially the same defenses, evidence, and witnesses,”7 the stay is lifted as to discovery only. Dispositive motions deadlines and trial dates in this matter will be set, if necessary, at the conclusion of the Virginia litigation. To that end, I respectfully suggest that the parties consider stipulating to an administrative closing of this matter, with the understanding that this action may be re-opened within a rejoinder period (to be determined by the parties), in the event that one or more of the Defendants contests personal jurisdiction in the Virginia lawsuit.8 B. Remand Additionally, Plaintiffs move to remand, alleging that Lycoming Engines is a Pennsylvania Defendant. As noted above, Defendants removed this action from the Philadelphia Court of Common Pleas asserting that this Court has jurisdiction on the basis of diversity, pursuant to 28 U.S.C. § 1332(a) and § 1441.",
"The removal 6 See ECF No. 27 at 1 and 39-1 at 3. 7 Sprint Commc’ns Co. L.P. v. Comcast Cable Commc’ns LLC, No. 11-2684-JWL, 2015 WL 5883716, at *1 (D. Kan. Oct. 8, 2015). 8 See, e.g., Holleran v. Avco Corp., et. al., No. 4:07-CV-02249-JEJ, March 31, 2008, ECF No. 17. A copy of the stipulated Order from Holleran has been attached to the instant Order. -4- was timely under 28 U.S.C. §1446; Plaintiffs’ motion to remand was also timely filed under 28 U.S.C. § 1447(c). Plaintiffs contend that Defendants are headquartered in Pennsylvania, despite Defendants’ assertions to the contrary.",
"As such, Plaintiffs argue that remand is proper because Defendants were properly sued in the Court of Common Pleas of Philadelphia County. Plaintiffs attempt to advance the ‘forum defendant rule’ of 28 U.S.C. § 1446(b)(2), which states “a civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” The forum defendant rule “makes diversity jurisdiction in a removal case narrower than if the case was originally filed in federal court by the plaintiff.”9 “Under the ‘forum defendant rule,’ a defendant can remove a case based on diversity jurisdiction only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”10 “Federal courts lack diversity jurisdiction over a removed case in which one of the 9 Perez v. Forest Labs., Inc., 902 F. Supp. 2d 1238, 1241 (E.D. Mo. 2012), see also Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147, 152 (3d Cir.",
"2018). 10 Id. citing Lincoln Prop. Co. v. Roche, 546 U.S. 81, 90 (2005). -5- defendants is a citizen of the forum state.”11 “The forum defendant rule ‘recognizes that the rationale for diversity jurisdiction no longer exists when one of the defendants is a citizen of the forum state since the likelihood of local bias is reduced, if not eliminated.’”12 It is clear that “on a motion to remand, the removing party bears the burden of establishing the propriety of removal.”13 “Removal statutes are to be strictly construed against removal and all doubts resolved in favor of remand.”14 Here, Plaintiffs suggest that there is a lack of diversity jurisdiction, citing holdings from the Eastern District of Pennsylvania.",
"However, as the undersigned sits in the Middle District of Pennsylvania, I am more persuaded by the reasoning of my colleague, the Honorable Yvette Kane, in holding that “Defendant Textron is a citizen of Delaware and Rhode Island; Defendant AVCO is a citizen of 11 Id. The ‘forum defendant rule’ has been perplexing to Courts, as diversity jurisdiction does exist if Plaintiff filed a diversity action against an in-state Defendant in federal court, and the Third Circuit has postulated the reason for the forum defendant rule as follows: The legislative history provides no guidance; however, courts and commentators have determined that Congress enacted the rule “to prevent a plaintiff from blocking removal by joining as a defendant a resident party against whom it does not intend to proceed, and whom it does not even serve.” Arthur Hellman, et al., Neutralizing the Strategem of “Snap Removal”: A Proposed Amendment to the Judicial Code, 9 Fed. Cts.",
"L. Rev. 103, 108 (2016) (quoting Sullivan v. Novartis Pharms. Corp., 575 F.Supp.2d 640, 645 (D.N.J. 2008 ); see also Goodwin v. Reynolds, 757 F.3d 1216, 1221 (11th Cir. 2014) (noting the same). Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147, 153 (3d Cir. 2018). 12 Figured v. Davies, No. 3:16-CV-467, 2016 WL 3148392, at *2 (M.D. Pa. June 2, 2016) (Caputo, J.) (internal citation and quotation omitted). 13 Id. citing Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert. denied, 498 U.S. 1085, 111 S. Ct. 959, 112 L.Ed.",
"2d 1046 (1991). 14 Id. -6- Delaware and [Rhode Island].15 Defendant Lycoming Engines is a division of AVCO and as such it shares citizenship with that company.”16 In this matter, Plaintiffs are both citizens of Virginia, complete diversity of citizenship exists between the parties, and diversity jurisdiction is appropriate in this Court, as the amount in controversy exceeds the $75,000 jurisdictional requirement. III. CONCLUSION For the foregoing reasons, IT IS HEREBY ORDERED that: 1. Defendant Avco Corporation’s Motion to Lift Stay, February 12, 2019, ECF No. 37, is GRANTED, to the extent discussed herein. 2. Plaintiffs’ Motion to Remand, July 24, 2018, ECF No.",
"16, is DENIED. 3. Plaintiffs’ request for attorneys’ fees, costs, and expenses pursuant to 28 U.S.C. § 1447(c) is also DENIED. BY THE COURT: s/ Matthew W. Brann Matthew W. Brann United States District Judge 15 At the time of the Judge Kane opinion in 3CG, LLC v. Textron, Inc., et al, Avco was headquartered in Massachusetts. In 2012, Avco moved its headquarters to 40 Westminster St., Providence, Rhode Island. This has no effect on the issue of diversity here, as Plaintiffs are not residents of either Massachusetts or Rhode Island. 16 3CG, LLC v. Textron, Inc., No. 4:11-CV-00880, 2011 WL 3627682, at *2 (M.D.",
"Pa. Aug. 16, 2011) (Kane, J.). -7- Case 4:07-cv-02249-JEJ Document 17 Filed 03/31/08 Page 1 of 5 Case 4:07-cv-02249-JEJ Document 17 Filed 03/31/08 Page 2 of 5 Case 4:07-cv-02249-JEJ Document 17 Filed 03/31/08 Page 3 of 5 Case 4:07-cv-02249-JEJ Document 17 Filed 03/31/08 Page 4 of 5 Case 4:07-cv-02249-JEJ Document 17 Filed 03/31/08 Page 5 of 5"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/71977524/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Title: To James Madison from Alexander Spotswood, 11 February 1792 From: Spotswood, Alexander To: Madison, James
Dear SirFebruary 11th. 1792 I Find that there is something due to me for my Services while in the army. Here Follows—the time I entered the army, the times of my Several promotions, and the time of my resignation.
August. 1775.Entered the Army with the rank of Major In the 2d. Virginia regiment under the Command of Woodford the Colo. & Scott Lt. Colo. March 1776.Colo. Henry Commanding the First Regiment resigned. When the Following Promotion Took place—Major Epps to the rank of Lt. Colo., which left me the Eldest Major in the line. April 20th. 1776—Lt. Colo. Epps died, which on that day made a Vacancy, and entitled me to the rank of Lt. Colo—but I did not get my Commission until June and dated June 19. 1776. Marked No. 1. September 1776—Colo. Woodford Resigned, which on that day, Intitled me to the rank of Full Colonel, tho I did not get my Commission until 1777—the time I do not recollect. April 20th. 1776—my Lt. Colo. Commission Ought to bear date, by death of Lt. Colo. Epps. Septr. 1776—my Commission as Colonel Ought to bear date by the resignation of Colo. Woodford—to prove that my two Commissions Ought to have been dated as above, I refer you to Resolve of Congress October 10th. 1776. in 1776—General Lee, as forrage was Scarce—and wishing to have plenty for his own horses—forbid the Issuing of any more to the Feild officers, So that from april or may 1776—I supported my horses, out of my own Pay—until february 1777—as well as I recollect, I never drew any Rations for my two Servants while in the Army—and drew but trifling myself.
I quitted the army October 9th. 1777—(At any rate I am intitled to my additional pay as Colo. from Septr. 1776—to Jany. 1st. 1777—which I am very certain I never drew—only as Lt. Colo—and to my depredation of pay as Colonel from Jy. 1st. 1777—to 9th. of October following when I resigned. I will thank you Sir to Speak to Colo. Hambleton on the Subject—& inform me what I am Intitled to—and if it is Necessary to forward any Certificates. When I commanded at Bristol, I ordered to Commissary to deliver a barrel of Pork—to a poor distressed family that was drove from new York—I mention this for fear the Commissary may have charged it to me—which Ought not to be the case. Your favour respecting my Son, I Answered—requesting—that you would with the Other Gentlemen, Speak to those in the India line, to Countenance him, when he comes up to Philadelphia in the Spring. I am dr sr yr oblidged Hb St Alexander Spotswood | 02-11-1792 | [
"Title: To James Madison from Alexander Spotswood, 11 February 1792 From: Spotswood, Alexander To: Madison, James Dear SirFebruary 11th. 1792 I Find that there is something due to me for my Services while in the army. Here Follows—the time I entered the army, the times of my Several promotions, and the time of my resignation. August. 1775.Entered the Army with the rank of Major In the 2d. Virginia regiment under the Command of Woodford the Colo. & Scott Lt. Colo. March 1776.Colo. Henry Commanding the First Regiment resigned. When the Following Promotion Took place—Major Epps to the rank of Lt. Colo., which left me the Eldest Major in the line. April 20th. 1776—Lt. Colo. Epps died, which on that day made a Vacancy, and entitled me to the rank of Lt. Colo—but I did not get my Commission until June and dated June 19.",
"1776. Marked No. 1. September 1776—Colo. Woodford Resigned, which on that day, Intitled me to the rank of Full Colonel, tho I did not get my Commission until 1777—the time I do not recollect. April 20th. 1776—my Lt. Colo. Commission Ought to bear date, by death of Lt. Colo. Epps. Septr. 1776—my Commission as Colonel Ought to bear date by the resignation of Colo. Woodford—to prove that my two Commissions Ought to have been dated as above, I refer you to Resolve of Congress October 10th. 1776. in 1776—General Lee, as forrage was Scarce—and wishing to have plenty for his own horses—forbid the Issuing of any more to the Feild officers, So that from april or may 1776—I supported my horses, out of my own Pay—until february 1777—as well as I recollect, I never drew any Rations for my two Servants while in the Army—and drew but trifling myself. I quitted the army October 9th. 1777—(At any rate I am intitled to my additional pay as Colo. from Septr.",
"1776—to Jany. 1st. 1777—which I am very certain I never drew—only as Lt. Colo—and to my depredation of pay as Colonel from Jy. 1st. 1777—to 9th. of October following when I resigned. I will thank you Sir to Speak to Colo. Hambleton on the Subject—& inform me what I am Intitled to—and if it is Necessary to forward any Certificates. When I commanded at Bristol, I ordered to Commissary to deliver a barrel of Pork—to a poor distressed family that was drove from new York—I mention this for fear the Commissary may have charged it to me—which Ought not to be the case. Your favour respecting my Son, I Answered—requesting—that you would with the Other Gentlemen, Speak to those in the India line, to Countenance him, when he comes up to Philadelphia in the Spring.",
"I am dr sr yr oblidged Hb St Alexander Spotswood"
]
| https://founders.archives.gov/API/docdata/Madison/01-14-02-0199 | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
J-S20025-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
JOHNNY RAY LOGSDON, JR.
Appellant No. 1251 WDA 2015
Appeal from the Judgment of Sentence July 1, 2015 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000387-2013
BEFORE: PANELLA, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED MARCH 29, 2016
Appellant, Johnny Ray Logsdon, Jr., appeals from the judgment of
sentence entered on April 28, 2015 following the revocation of his probation.
We affirm.
The certified record establishes the following factual and procedural
history. On March 5, 2014, the trial court sentenced Appellant to five years’
probation after accepting his guilty plea to one count of unauthorized use of
an access device (18 Pa.C.S.A. § 4106(a)). While serving this probationary
sentence, Appellant was convicted of new charges, including possession of a
controlled substance (35 P.S. § 780-113(a)(16)) and presenting false
identification to law enforcement officers (18 Pa.C.S.A. § 4914). The trial
court found Appellant to be in violation of the terms of his probation and, on
August 12, 2014, modified his probationary sentence to include 60 days’
*Retired Senior Judge assigned to the Superior Court. J-S20025-16
incarceration in the Jefferson County Jail. Pursuant to the terms of the trial
court’s August 12, 2014 order, Appellant was to serve his sentence
“beginning August 22 through August 24, 2014 and each weekend thereafter
until his sentence [was] complete.” Trial Court Order, 8/12/14.
On April 20, 2015, while on work release, Appellant tested positive for
opiates in violation of the conditions of his probation and the terms of his
work release. Because of this violation, the trial court, on July 1, 2015,
docketed an order that revoked Appellant’s probation and sentenced him to
three and one-half to seven years’ imprisonment in a state correctional
facility, with credit for time served. Gagnon Order, 7/2/15. On July 15,
2015, Appellant filed a motion for reconsideration of his sentence, which the
court denied on that same date. Appellant filed a notice of appeal on July
30, 2015.1
Appellant presents one issue for our review:
Whether the trial court abused its discretion when it revoked Appellant’s probation and resentenced him to serve a sentence of incarceration in [a] [s]tate [c]orrectional [i]nstitution for a minimum of three and one-half (3½) years to a maximum of seven (7) years for [A]ppellant’s violation of probation[?]
Appellant’s Brief at 6.
____________________________________________
1 On July 31, 2015, the trial court ordered Appellant to file a concise statement of errors complained of on appeal (“concise statement”). See Pa.R.A.P. 1925(a). On August 11, 2015, Appellant filed his concise statement. The trial court issued its Rule 1925(a) opinion on September 25, 2015.
-2- J-S20025-16
Appellant’s lone issue challenges the discretionary aspects of his
sentence.2 See Commonwealth v. Haynes, 125 A.3d 800, 806 (Pa.
Super. 2015). Pursuant to statute, Appellant does not have an automatic
right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A.
§ 9781(b). Instead, Appellant must petition this Court for permission to
appeal the discretionary aspects of his sentence. Id. As this Court has
explained, in order to reach the merits of a discretionary aspects claim,
[w]e conduct a four-part analysis to determine: (1) whether [the] appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [708]; (3) whether [the] appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation
omitted).
On July 30, 2015, Appellant filed a timely notice of appeal to the
judgment of sentence issued on July 1, 2015. See Pa.R.A.P. 903(a) (“notice
of appeal required by Rule 902 (manner of taking appeal) shall be filed
within 30 days after the entry of the order from which the appeal is taken”);
Pa.R.Crim.P. 708(E) (motion to modify revocation sentence does not toll
30-day appeal period). In addition, Appellant included within his brief a ____________________________________________
2 By now, it is well-settled that a challenge to the discretionary aspects of a revocation sentence represents a cognizable issue on appeal. See Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc).
-3- J-S20025-16
statement pursuant to Pa.R.A.P. 2119(f). Hence, Appellant satisfied the first
and third prongs of the foregoing test.
The fourth prong of the foregoing test asks whether the appellant
raises a substantial question as to whether his sentence is appropriate under
the Sentencing Code. “An appellant must, pursuant to [Pa.R.A.P.] 2119(f),
articulate the manner in which the sentence violates either a specific
provision of the sentencing scheme set forth in the Sentencing Code or a
particular fundamental norm underlying the sentencing process.”
Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006)
(internal citations and quotations omitted). Whether a substantial question
exists focuses “on the reasons for which the appeal is sought, in contrast to
the facts underlying the appeal, which are necessary only to decide the
appeal on the merits.” Id.
In his Rule 2119(f) statement, Appellant argues that his sentence is
unreasonable because it constituted too severe a punishment in light of the
nature of his probation violation. Appellant also claims that the court’s
explanation for the sentence did not justify its severity. We read Appellant’s
contentions as alleging that the court failed to consider the sentencing
factors delineated in 42 Pa.C.S.A. § 9721(b). As such, we hold that
Appellant raises a substantial question. See Cartrette, 83 A.3d 1042-1043
(claim that trial court's sentence is inconsistent with gravity of probation
violation, the need for public protection, or defendant’s rehabilitative needs
-4- J-S20025-16
is tantamount to assertion that sentencing court did not consider the
appropriate sentencing factors delineated in 42 Pa.C.S. § 9721(b), which
raises a substantial question).
We now consider the second prong of the foregoing test; i.e., whether
Appellant properly preserved his discretionary sentencing challenge before
the trial court. In this case, Appellant failed to object to the discretionary
aspects of his sentence at the July 1, 2015 resentencing hearing. See N.T.,
7/1/15, at 2-4. However, on July 15, 2015, Appellant filed a post-sentence
motion seeking modification of his sentence. The trial court denied the
motion on that same date. Under Pa.R.Crim.P. 708(E), “A motion to modify
a sentence imposed after a revocation shall be filed within 10 days of the
date of imposition.” Pa.R.Crim.P. 708(E). Thus, Appellant’s motion for
modification was due on or before Monday, July 13, 2015. See 1 Pa.C.S.A.
§ 1908 (computation of time). Because Appellant did not seek modification
of his sentence until July 15, 2015, his discretionary sentencing challenge is
waived since his post-sentence motion was untimely and, therefore, was not
properly preserved before the trial court. Nonetheless, even if we were to
reach the merits of Appellant’s discretionary sentencing claim, we conclude
that he is not entitled to relief.
Appellant argues that his maximum sentence for a technical violation
is manifestly unreasonable. Specifically, he claims that the trial court failed
-5- J-S20025-16
to explain why a lesser sentence would not have been sufficient to vindicate
the court’s authority.
“Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal absent a
manifest abuse of discretion.” Commonwealth v. Clarke, 70 A.3d 1281,
1287 (Pa. Super. 2013) (citation omitted). The sentencing court must
“follow the general principle that the sentence imposed should call for
confinement that is consistent with the protection of the public, the gravity
of the offense as it relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.A.
§ 9721(b). In addition, in all cases where the court “resentences an
offender following revocation of probation …, the court shall make as a part
of the record, and disclose in open court at the time of sentencing, a
statement of the reason or reasons for the sentence imposed.” Id.
In its Rule 1925(a) opinion, the trial court offered the following
explanation for imposing its sentence of three and one-half to seven years’
total confinement following Appellant’s probation violation.
Pursuant to 42 Pa.C.S.A. § 9771(c), a sentence of total incarceration is warranted if it is deemed to be necessary to vindicate the authority of the court. As the [trial c]ourt stated on the record, that was the case here. [Appellant] was on work release – an opportunity many inmates do not enjoy – when he violated his probation by ingesting opiates. What he thereby accomplished was to convince the [c]ourt that he had no respect or concern for its authority. He had already violated his original probationary sentence and was serving weekends in the county jail because of it. That lesser penalty clearly did not make the
-6- J-S20025-16
desired impression, though. Something more was required. And something more is what the [c]ourt gave [Appellant] on July 1, 2015. As well as addressing the nature of the violation itself, the [trial c]ourt advised [Appellant] that it [] reviewed the presentence investigation report and [considered] his individual circumstances in fashioning his sentence. In doing so, [the trial court] adequately articulated its reasons for the sentence, which, incidentally, included the boot camp recommendation he requested.
Trial Court Opinion, 9/25/15, at 1-2.
We perceive no abuse of discretion in the sentence imposed by the
trial court. Indeed, the record reflects that the court considered the
sentencing code, the circumstances of Appellant’s probation violation, a
presentence investigation report, and the individual character of the
offender. N.T., 7/1/15, at 3. Apart from boilerplate characterizations of the
sentence as “harsh” and “excessive,” Appellant does not challenge the
factual findings rendered by the court or allege that the court overlooked or
ignored relevant factors pertaining to the discretionary aspects of his
sentence. Significantly, Appellant points to no evidence that the trial court
harbored any bias, ill will, or prejudice towards him. We also bear in mind
that the court confronted a situation in which Appellant committed a second
probation violation. As the trial court determined, Appellant’s repeat
violation manifested a direct affront to the court’s authority and
demonstrated Appellant’s inability or unwillingness to refrain from criminal
activity, even while under judicial supervision. In such circumstances, we
-7- J-S20025-16
see no grounds for finding an abuse of discretion that allows us to disturb
the trial court’s sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/29/2016
-8- | 03-30-2016 | [
"J-S20025-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JOHNNY RAY LOGSDON, JR. Appellant No. 1251 WDA 2015 Appeal from the Judgment of Sentence July 1, 2015 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000387-2013 BEFORE: PANELLA, OLSON and PLATT,* JJ. MEMORANDUM BY OLSON, J.: FILED MARCH 29, 2016 Appellant, Johnny Ray Logsdon, Jr., appeals from the judgment of sentence entered on April 28, 2015 following the revocation of his probation. We affirm. The certified record establishes the following factual and procedural history. On March 5, 2014, the trial court sentenced Appellant to five years’ probation after accepting his guilty plea to one count of unauthorized use of an access device (18 Pa.C.S.A. § 4106(a)). While serving this probationary sentence, Appellant was convicted of new charges, including possession of a controlled substance (35 P.S. § 780-113(a)(16)) and presenting false identification to law enforcement officers (18 Pa.C.S.A.",
"§ 4914). The trial court found Appellant to be in violation of the terms of his probation and, on August 12, 2014, modified his probationary sentence to include 60 days’ *Retired Senior Judge assigned to the Superior Court. J-S20025-16 incarceration in the Jefferson County Jail. Pursuant to the terms of the trial court’s August 12, 2014 order, Appellant was to serve his sentence “beginning August 22 through August 24, 2014 and each weekend thereafter until his sentence [was] complete.” Trial Court Order, 8/12/14. On April 20, 2015, while on work release, Appellant tested positive for opiates in violation of the conditions of his probation and the terms of his work release. Because of this violation, the trial court, on July 1, 2015, docketed an order that revoked Appellant’s probation and sentenced him to three and one-half to seven years’ imprisonment in a state correctional facility, with credit for time served.",
"Gagnon Order, 7/2/15. On July 15, 2015, Appellant filed a motion for reconsideration of his sentence, which the court denied on that same date. Appellant filed a notice of appeal on July 30, 2015.1 Appellant presents one issue for our review: Whether the trial court abused its discretion when it revoked Appellant’s probation and resentenced him to serve a sentence of incarceration in [a] [s]tate [c]orrectional [i]nstitution for a minimum of three and one-half (3½) years to a maximum of seven (7) years for [A]ppellant’s violation of probation[?] Appellant’s Brief at 6. ____________________________________________ 1 On July 31, 2015, the trial court ordered Appellant to file a concise statement of errors complained of on appeal (“concise statement”). See Pa.R.A.P. 1925(a). On August 11, 2015, Appellant filed his concise statement. The trial court issued its Rule 1925(a) opinion on September 25, 2015.",
"-2- J-S20025-16 Appellant’s lone issue challenges the discretionary aspects of his sentence.2 See Commonwealth v. Haynes, 125 A.3d 800, 806 (Pa. Super. 2015). Pursuant to statute, Appellant does not have an automatic right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for permission to appeal the discretionary aspects of his sentence. Id. As this Court has explained, in order to reach the merits of a discretionary aspects claim, [w]e conduct a four-part analysis to determine: (1) whether [the] appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [708]; (3) whether [the] appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation omitted).",
"On July 30, 2015, Appellant filed a timely notice of appeal to the judgment of sentence issued on July 1, 2015. See Pa.R.A.P. 903(a) (“notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken”); Pa.R.Crim.P. 708(E) (motion to modify revocation sentence does not toll 30-day appeal period). In addition, Appellant included within his brief a ____________________________________________ 2 By now, it is well-settled that a challenge to the discretionary aspects of a revocation sentence represents a cognizable issue on appeal. See Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc). -3- J-S20025-16 statement pursuant to Pa.R.A.P. 2119(f).",
"Hence, Appellant satisfied the first and third prongs of the foregoing test. The fourth prong of the foregoing test asks whether the appellant raises a substantial question as to whether his sentence is appropriate under the Sentencing Code. “An appellant must, pursuant to [Pa.R.A.P.] 2119(f), articulate the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process.” Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006) (internal citations and quotations omitted). Whether a substantial question exists focuses “on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits.” Id. In his Rule 2119(f) statement, Appellant argues that his sentence is unreasonable because it constituted too severe a punishment in light of the nature of his probation violation. Appellant also claims that the court’s explanation for the sentence did not justify its severity. We read Appellant’s contentions as alleging that the court failed to consider the sentencing factors delineated in 42 Pa.C.S.A.",
"§ 9721(b). As such, we hold that Appellant raises a substantial question. See Cartrette, 83 A.3d 1042-1043 (claim that trial court's sentence is inconsistent with gravity of probation violation, the need for public protection, or defendant’s rehabilitative needs -4- J-S20025-16 is tantamount to assertion that sentencing court did not consider the appropriate sentencing factors delineated in 42 Pa.C.S. § 9721(b), which raises a substantial question). We now consider the second prong of the foregoing test; i.e., whether Appellant properly preserved his discretionary sentencing challenge before the trial court. In this case, Appellant failed to object to the discretionary aspects of his sentence at the July 1, 2015 resentencing hearing. See N.T., 7/1/15, at 2-4. However, on July 15, 2015, Appellant filed a post-sentence motion seeking modification of his sentence. The trial court denied the motion on that same date. Under Pa.R.Crim.P. 708(E), “A motion to modify a sentence imposed after a revocation shall be filed within 10 days of the date of imposition.” Pa.R.Crim.P.",
"708(E). Thus, Appellant’s motion for modification was due on or before Monday, July 13, 2015. See 1 Pa.C.S.A. § 1908 (computation of time). Because Appellant did not seek modification of his sentence until July 15, 2015, his discretionary sentencing challenge is waived since his post-sentence motion was untimely and, therefore, was not properly preserved before the trial court. Nonetheless, even if we were to reach the merits of Appellant’s discretionary sentencing claim, we conclude that he is not entitled to relief. Appellant argues that his maximum sentence for a technical violation is manifestly unreasonable.",
"Specifically, he claims that the trial court failed -5- J-S20025-16 to explain why a lesser sentence would not have been sufficient to vindicate the court’s authority. “Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion.” Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013) (citation omitted). The sentencing court must “follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). In addition, in all cases where the court “resentences an offender following revocation of probation …, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed.” Id. In its Rule 1925(a) opinion, the trial court offered the following explanation for imposing its sentence of three and one-half to seven years’ total confinement following Appellant’s probation violation. Pursuant to 42 Pa.C.S.A. § 9771(c), a sentence of total incarceration is warranted if it is deemed to be necessary to vindicate the authority of the court.",
"As the [trial c]ourt stated on the record, that was the case here. [Appellant] was on work release – an opportunity many inmates do not enjoy – when he violated his probation by ingesting opiates. What he thereby accomplished was to convince the [c]ourt that he had no respect or concern for its authority. He had already violated his original probationary sentence and was serving weekends in the county jail because of it. That lesser penalty clearly did not make the -6- J-S20025-16 desired impression, though. Something more was required. And something more is what the [c]ourt gave [Appellant] on July 1, 2015. As well as addressing the nature of the violation itself, the [trial c]ourt advised [Appellant] that it [] reviewed the presentence investigation report and [considered] his individual circumstances in fashioning his sentence. In doing so, [the trial court] adequately articulated its reasons for the sentence, which, incidentally, included the boot camp recommendation he requested.",
"Trial Court Opinion, 9/25/15, at 1-2. We perceive no abuse of discretion in the sentence imposed by the trial court. Indeed, the record reflects that the court considered the sentencing code, the circumstances of Appellant’s probation violation, a presentence investigation report, and the individual character of the offender. N.T., 7/1/15, at 3. Apart from boilerplate characterizations of the sentence as “harsh” and “excessive,” Appellant does not challenge the factual findings rendered by the court or allege that the court overlooked or ignored relevant factors pertaining to the discretionary aspects of his sentence. Significantly, Appellant points to no evidence that the trial court harbored any bias, ill will, or prejudice towards him.",
"We also bear in mind that the court confronted a situation in which Appellant committed a second probation violation. As the trial court determined, Appellant’s repeat violation manifested a direct affront to the court’s authority and demonstrated Appellant’s inability or unwillingness to refrain from criminal activity, even while under judicial supervision. In such circumstances, we -7- J-S20025-16 see no grounds for finding an abuse of discretion that allows us to disturb the trial court’s sentence. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq.",
"Prothonotary Date: 3/29/2016 -8-"
]
| https://www.courtlistener.com/api/rest/v3/opinions/3189712/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
ROBERT SPOKLIE, Individually; SPOKLIE ENTERPRISES, L.L.C., a Montana Limited Liability Company; KIM J. KAFKA, Esq.; CINDY R. KAFKA, individually, and as husband and wife, and as members of Diamond K Ranch Enterprises, L.L.C.; DIAMOND K RANCH ENTERPRISES, LLC, a Montana Limited Liability Company, on behalf of themselves No. 03-35857 and others similarly situated, Plaintiffs-Appellants, D.C. No. CV-02-00102-SEH v. OPINION STATE OF MONTANA; STATE OF MONTANA, DEPARTMENT OF FISH, WILDLIFE AND PARKS; JEFF HAGENER, Director of the Montana Department of Fish, Wildlife and Parks, in his individual capacity, Defendants-Appellees. SPORTSMEN FOR I-143, MONTANA WILDLIFE FEDERATION, Intervenor-Appellee. Appeal from the United States District Court for the District of Montana Sam E. Haddon, District Judge, Presiding
Argued and Submitted November 1, 2004—Seattle, Washington
6911 6912 SPOKLIE v. STATE OF MONTANA Filed June 13, 2005
Before: Arthur L. Alarcón, William A. Fletcher, and Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge William A. Fletcher SPOKLIE v. STATE OF MONTANA 6915
COUNSEL
John E. Bloomquist and Suzanne Taylor, Doney Crowley Bloomquist UDA, Helena, Montana, Sarah K. McMillan, Tuholske Law Office, Missoula, Montana, for the plain- tiffs-appellants.
Robert N. Lane, Fish Wildlife & Parks, Helena, Montana, Mike McGrath, Office of the Attorney General, Helena, Mon- tana, for the defendants-appellees.
OPINION
W. FLETCHER, Circuit Judge:
Appellants Kim J. and Cindy R. Kafka, Diamond K Ranch Enterprises L.L.C., Robert Spoklie, and Spoklie Enterprises L.L.C. challenge a Montana ballot initiative, Proposition I- 143, on federal and state constitutional grounds. We affirm the district court’s denial of a motion to stay proceedings in the federal court pursuant to Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941). We hold that the Kaf- kas’ claims against the State of Montana and the Montana Department of Fish, Wildlife and Parks are precluded by the final judgment previously entered in their parallel state court case. Finally, we affirm the district court’s dismissal of all remaining claims. 6916 SPOKLIE v. STATE OF MONTANA I. Background
Appellants Kim J. Kafka, Cindy R. Kafka, and Diamond K. Ranch Enterprises (collectively “the Kafkas”), and Robert Spoklie and Spoklie Enterprises (collectively “Spoklie”), for- merly owned and operated “alternative livestock” ranches in Montana, on which they raised elk, deer, bighorn sheep, mountain goats, and bison. Montana defines alternative live- stock as “privately owned caribou, white-tailed deer, mule deer, elk, moose, antelope, mountain sheep, or mountain goat[s] indigenous to the state of Montana, . . . privately owned reindeer, or any other cloven-hoofed ungulate as clas- sified by the department.” Mont. Rev. Code § 87-4-406(1). Kim and Cindy Kafka own one alternative livestock ranch, the Diamond K Ranch. Robert Spoklie owns one alternative livestock ranch, Spoklie Enterprises, and is the co-owner of another, Spoklie Elk Ranches. Until the passage of Proposi- tion I-143 (“I-143”), the income from the Kafka and Spoklie ranches came primarily from “fee shooting,” a practice by which members of the public, many of them from out of state, paid to shoot a pre-selected animal on the ranch under the supervision of a guide.
In October 1999, an animal on a Montana game farm ranch was diagnosed with chronic wasting disease. Concerned about the risk of the disease spreading among stocks of alternative livestock, the legislature imposed a moratorium on applica- tions for new alternative livestock ranches in May 2000. Meanwhile, opponents of fee shooting collected enough sig- natures to qualify I-143 for the November 2000 statewide bal- lot. Montana voters passed I-143 on November 7, 2000. It became effective immediately.
I-143 changed Montana law applicable to alternative live- stock ranches in three major ways. First, it prohibited operat- ing an alternative livestock ranch without a license obtained prior to November 7, 2000, and it prohibited the issuance of new licenses. Mont. Code Ann. § 87-4-407(1). Second, it pro- SPOKLIE v. STATE OF MONTANA 6917 hibited the transfer of “[an] alternative livestock ranch license for a specific facility.” Id. at § 87-4-412(2). Finally, it pro- vided that an alternative livestock licensee “may not allow the shooting of game animals or alternative livestock . . . for a fee or other remuneration on an alternative livestock facility.” Id. at § 87-4-414(2). However, existing holders of alternative livestock licenses were permitted to “acquire, breed, grow, keep, pursue, handle, harvest, use, sell, or dispose of the alter- native livestock and their progeny in any quantity and at any time of year.” Id.
Appellants filed several lawsuits challenging I-143 in fed- eral and state court. In February 2001, the Kafkas sued Jeff Hagener, Director of the Montana Department of Fish, Wild- life and Parks (“DFWP”), and Marc Bridges, Executive Offi- cer of the Montana Department of Livestock, in their individual and official capacities, in federal district court. They sought a preliminary injunction against enforcement of I-143 on federal and state constitutional grounds. The district court denied the injunction on October 5, 2001. See Kafka v. Hagener, 176 F. Supp. 2d 1037 (D. Mont. 2001). The Kafkas voluntarily dismissed this suit on November 7, 2001.
On April 8, 2002, the Kafkas sued the State of Montana and DFWP in Montana state court on several of the same fed- eral and state constitutional grounds raised in their federal suit, as well as on several additional federal and state grounds. In late 2002, the state trial court dismissed all claims other than the takings claims under the federal and the state Consti- tutions. Kafka v. Montana Dept. of Fish, Wildlife and Parks, DV-02-059 (October 21, 2002). [SER 102-113] On February 8, 2005, the state court dismissed the Kafkas’ federal and state takings claims. Kafka v. Montana Dep’t of Fish, Wildlife, and Parks, DV 02-059 (Feb. 8, 2005). [Feb. 17, 2005, Rule 28(j) letter]
On September 28, 2001, Spoklie sued the DFWP in state court, challenging its interpretation of I-143. The state court 6918 SPOKLIE v. STATE OF MONTANA granted Spoklie a preliminary injunction, but the Montana Supreme Court reversed. Spoklie v. Mont. Dep’t of Fish, Wildlife & Parks, 56 P.3d 349 (Mont. 2002). Spoklie then amended his state court complaint to include federal and state constitutional claims. So far as we are aware, no final judg- ment has been entered in that suit.
On November 6, 2002, the Kafkas and Spoklie filed this action in federal district court against the State of Montana, DFWP, and Jeff Hagener, Director of DFWP, in his individ- ual capacity, challenging I-143 under the federal and state Constitutions. Shortly thereafter, the Kafkas and Spoklie moved to stay their federal action pursuant to the Pullman abstention doctrine, pending resolution of their state-court suits. On December 30, 2002, the district court denied the motion to stay. On September 11, 2003, the district court dis- missed appellants’ claims in their entirety. They timely appealed.
II. Pullman Abstention
[1] Before reaching the merits, we consider Appellants’ argument that the district court should have abstained under Pullman. Abstention under Pullman is “an equitable doctrine that allows federal courts to refrain from deciding sensitive federal constitutional questions when state law issues may moot or narrow the constitutional questions.” San Remo Hotel v. City and County of San Francisco, 145 F.3d 1095, 1104 (9th Cir. 1998). Pullman abstention is appropriate when: “(1) the federal plaintiff’s complaint requires resolution of a sensi- tive question of federal constitutional law; (2) the constitu- tional question could be mooted or narrowed by a definitive ruling on the state law issues; and (3) the possibly determina- tive issue of state law is unclear.” Id. Although it is unusual for the party that has chosen the federal forum to invoke the abstention doctrine, no bar exists to either party doing so. Id. at 1105. We review de novo the question of whether the SPOKLIE v. STATE OF MONTANA 6919 requirements for Pullman abstention are met. Fireman’s Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 939 (9th Cir. 2002).
[2] We may make short work of Appellants’ argument under Pullman. We hold that the third element of the test, supra, has not been satisfied, which makes it unnecessary to address the first and second elements. When the district court denied the motion to stay under Pullman, the Montana trial court in the Kafkas’ case had already ruled adversely on most of their state law claims, and the federal district court in the Kafkas’ case had ruled adversely on one of them. Kafka, 176 F. Supp. 2d at 1043 (holding that the fee-shooting ban did not implicate any fundamental rights under the Montana Constitu- tion). Further, the Montana Supreme Court in Spoklie’s case had already sustained DFWP’s interpretation of I-143. See Spoklie, 56 P.3d at 356. Under these circumstances, the dis- trict court was entirely justified in concluding that Appellants had not shown that state law was unclear.
III. Preclusion Against the Kafkas
We next consider whether the Kafkas’ claims against the State of Montana, DFWP, and Jeff Hagener are barred by claim preclusion. The Kafkas have brought two earlier suits against these defendants, one in state court and one in federal court.
A. The Kafkas’ State Court Suit: Preclusion of Claims Against the State of Montana and DFWP
[3] When the district court decided this case, no final judg- ment had been entered in the Kafkas’ state court suit. How- ever, the state trial court has now entered a final judgment dismissing their suit in its entirety. Kafka v. Montana Dep’t of Fish, Wildlife and Parks, DV-02-059 (February 8, 2005). In determining the preclusive effect of the Montana judgment, we apply Montana law. 28 U.S.C. § 1738. The final judgment of a trial court is entitled to preclusive effect. Hollister v. For- 6920 SPOKLIE v. STATE OF MONTANA sythe, 918 P.2d 665, 667 (Mont. 1996); Meagher County Newlan Creek Water Dist. v. Walter, 547 P.2d 850, 852 (Mont. 1976). Under Montana preclusion law, “claims liti- gated in a former action as well as . . . claims which might have been litigated” are barred. Balyeat Law, P.C. v. Hatch, 942 P.2d 716, 717 (Mont. 1997). “A resolved claim will be res judicata as to subsequent claims if: (1) the parties are the same; (2) the subject matter is the same; (3) the issues are the same and relate to the same subject matter; and (4) the capaci- ties of the persons are the same in reference to the subject matter and issues.” Id.; see also Loney v. Milodragovich, Dale & Dye, P.C., 905 P.2d 158, 161 (Mont. 1995); Troutt v. Colo- rado Western Ins. Co., 246 F.3d 1150, 1156 (9th Cir. 2001).
[4] All four requirements are easily met here. First, the defendants in both cases are the State of Montana and DFWP. Second, the subject in both cases is I-143. Third, the issue in both cases is the legality of I-143. The Kafkas have added a federal Commerce Clause claim to this suit, but this claim arises out of the same subject and “might have been litigated” in their state court suit. Finally, the Kafkas are suing the same state defendants.
The Kafkas nevertheless contend that the state trial court’s dismissal of their takings claims should not preclude their fed- eral takings claim. They point out that the United States Supreme Court has granted certiorari in San Remo Hotel, L.P. v. San Francisco City and County, 364 F.3d 1088 (9th Cir. 2004), in which we held that issues decided by a state court in resolving a state takings claim are preclusive in a later fed- eral suit asserting an “equivalent” federal takings claim. The Kafkas ask that we defer decision on claim preclusion of their federal takings claim pending the Supreme Court’s decision in San Remo Hotel.
[5] Whatever the Supreme Court might decide in San Remo Hotel, the case is inapposite for two reasons. First, the state court in San Remo Hotel decided only a state law takings SPOKLIE v. STATE OF MONTANA 6921 claim. In this case, by contrast, the state court decided both state and federal takings claims. Second, the question in fed- eral court in San Remo Hotel was issue preclusion. In this case, by contrast, the question is claim preclusion. In this case, the Kafkas brought their federal takings claim directly in state court, and the state court entered a final judgment rejecting it. Cf. England v. Louisiana State Bd. of Med. Exam- iners, 375 U.S. 411, 415 (1964). We are precluded by Mon- tana law from redeciding that claim.
B. The Kafkas’ Federal Court Suit: No Preclusion of Claim Against Hagener
[6] The Kafkas brought suit in federal district court against Jeff Hagener, the Director of DFWP, in both his individual and official capacities, asserting that I-143 violated both state and federal law. The district court denied a preliminary injunction on October 5, 2001. On November 7, 2001, the Kafkas voluntarily dismissed their complaint. It is not clear from the record before us whether this dismissal was with or without prejudice. We are therefore unable to conclude on this record that the dismissal of the district court against Hagener precludes claims against him in the case before us.
IV. Spoklie’s Claims against the State of Montana and DFWP
The district court dismissed Spoklie’s federal takings claim against the State of Montana and DFWP on the ground that it was not ripe, and dismissed his remaining claims pursuant to Federal Rule of Civil Procedure 12(b)(6). We review de novo a dismissal on ripeness grounds. Citizens for Better For- estry v. United States Dep’t of Agric., 341 F.3d 961, 969 (9th Cir. 2003). We review de novo a dismissal for failure to state a claim pursuant to Rule 12(b)(6). Decker v. Advantage Fund, Ltd., 362 F.3d 593, 595-96 (9th Cir. 2004). 6922 SPOKLIE v. STATE OF MONTANA A. Eleventh Amendment
[7] Spoklie has sued the State of Montana and DFWP both for damages and for declaratory and injunctive relief. DFWP is a department of the State, and is the equivalent of the State for purposes of the Eleventh Amendment. Austin v. State Indus. Ins. Sys., 939 F.2d 676, 677 (9th Cir. 1991). In his brief for the Appellees, the State Attorney General asserts that the State and DFWP are immune from an unconsented suit for damages, but “concede[s] that the Eleventh Amendment does not bar Plaintiffs’ claims for prospective declaratory and injunctive relief under [Ex parte Young, 209 U.S. 123 (1908)].” We treat the Attorney General’s “concession” as a waiver of the defense that Spoklie should not have named the State and DFWP as parties in seeking relief under Ex parte Young. See Austin, 939 F.2d at 677 (a state may consent to a suit that would otherwise be barred by the Eleventh Amend- ment).
B. Spoklie’s Federal Claims
1. Takings
[8] The district court dismissed Spoklie’s federal takings claim for lack of ripeness, noting that he had failed to show that I-143 deprived him of all economically viable use of his property. A federal takings claim is not ripe until a litigant has “[sought] compensation through the procedures the State has provided for doing so.” Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 194 (1985). This requirement applies to facial challenges as well as to as- applied challenges. Southern Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 505-06 (9th Cir. 1990) (“[A] claim alleging that mere enactment of a statute effects an unconsti- tutional taking is unripe unless and until it is known what, if any, compensation is available.”) Spoklie has filed suit in state court challenging I-143 under the federal and state tak- ings clauses, but so far as we are aware, no decision has been SPOKLIE v. STATE OF MONTANA 6923 rendered in that suit. Until the state court has finally ruled on the state takings claim, the federal takings claim is not ripe. See Williamson County, 473 U.S. at 195.
It is true that we have previously held that one aspect of a facial takings claim is exempt from the Williamson County ripeness requirement. In Sinclair Oil Corp. v. County of Santa Barbara, 96 F.3d 401 (9th Cir. 1996), we observed that a plaintiff could bring a takings claim under either of two theo- ries. Either a plaintiff could show that the challenged land use restriction deprived him of all economically viable use of his land, or he could show that the action did not “substantially advance a legitimate state interest.” Id. at 406-07. We found that, while the first showing required that the plaintiff comply with the ripeness criterion of Williamson County, the second showing did not.
[9] Spoklie’s takings claim appears to be based in part on the theory that I-143 does not substantially advance a legiti- mate state interest. However, to the extent Spoklie’s takings claim is premised on this theory, it must be dismissed. In Lingle v. Chevron U.S.A. Inc., No. 04-163, 2005 WL 1200710 (May 23, 2005), at *14, the Supreme Court has just dis- avowed the use of the “substantially advances” test in takings claims, holding that “the ‘substantially advances’ formula is not a valid takings test, and . . . it has no proper place in our takings jurisprudence.” To the extent that Spoklie’s takings claim is premised on an asserted failure of I-143 to satisfy the “substantially advances” test, Lingle requires that his claim be dismissed with prejudice. We affirm the district court’s dis- missal on this ground. Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir. 2003) (per curiam) (a court may affirm on any ground evident from the record).
Because we hold that Spoklie has failed to establish that there has been a taking, we do not need to address the ques- tion whether a state may be sued for damages under the Tak- ings Clause of the Fifth Amendment in the absence of its 6924 SPOKLIE v. STATE OF MONTANA consent. Compare First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 316 n.9 (1987) (find- ing that, notwithstanding “principles of sovereign immunity,” the Constitution “dictates” a damages remedy in takings cases, but not specifically addressing whether suits against states for damages may be maintained in takings cases consis- tent with the Eleventh Amendment), with Broughton Lumber Co. v. Columbia River Gorge Comm’n, 975 F.2d 616 (9th Cir. 1992) (applying the Eleventh Amendment to a takings claim against the state).
2. Retroactivity
[10] The district court correctly dismissed Spoklie’s claim that I-143 is invalid because it is impermissibly retroactive legislation. The Supreme Court has noted that “the presump- tion against retroactive legislation is deeply rooted in our jurisprudence” and “finds expression in several provisions of our Constitution.” Landgraf v. USI Film Prods., 511 U.S. 244, 265-66 (1994). The relevant provision in this case is Art. I, § 10, cl. 1, which provides that “[n]o State shall . . . pass any . . . ex post facto Law.” However, “[t]he Constitution’s restrictions . . . are of limited scope,” id. at 267, and “[a] stat- ute does not operate ‘retrospectively’ merely because it . . . upsets expectations based in prior law.” Id. at 269. Instead, the relevant question is “whether the new provision attaches new legal consequences to events completed before its enact- ment.” Id. at 270. Under this standard, many statutes that “un- settle expectations and impose burdens on past conduct” are nonetheless “uncontroversially prospective.” Id. at 269 n.24. For example, a ban on gambling is not impermissibly retro- spective simply because it “harms the person who had begun to construct a casino before the law’s enactment.” Id.
Spoklie argues that I-143 has had impermissible retroactive effect because it has caused him to lose “vested rights” in his animals, ranches, alternative livestock licenses, and business goodwill. While these business losses are potentially relevant SPOKLIE v. STATE OF MONTANA 6925 to Spoklie’s takings claim, they provide no basis for arguing that the state’s abolition of formerly legal fee shooting prac- tices is impermissibly retroactive. A state may outlaw a for- merly legal business even if it causes hardship to those who relied on the earlier law. See Mugler v. Kansas, 123 U.S. 623, 669 (1887) (Kansas ban on the sale of beer was constitutional even though Kansas had allowed the sale of beer at the time the plaintiffs constructed their breweries). Indeed, Montana law specifically warns Montana citizens not to rely on the expectation that the law will never be changed. Mont. Code Ann. § 1-2-110 (“Any statute may be repealed at any time except when it is otherwise provided therein. Persons acting under any statute are deemed to have acted in contemplation of this power of repeal.”).
3. Substantive Due Process
[11] The district court correctly dismissed Spoklie’s sub- stantive due process claim, which is based on his theory that I-143 is an “irrational and arbitrary” law. Substantive due pro- cess provides no basis for overturning validly enacted state statutes unless they are “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926). If the legislature “could have concluded rationally” that certain facts supporting its decision were true, courts may not question its judgment. Vance v. Bradley, 440 U.S. 93, 111 (1979) (internal citations and quotation marks omitted).
The justifications the State has offered for I-143 far exceed what is necessary to meet this minimal standard. Voters who supported I-143 could rationally have concluded that the proposition would promote environmentally sound resource management by encouraging sport hunting in preference to fee hunting, and that it would prevent transmission of disease from the interbreeding of game farm and wild populations. Supporters could also rationally have concluded, as advocates 6926 SPOKLIE v. STATE OF MONTANA of I-143 urged in their pre-election arguments, that fee hunt- ing created an “unacceptable, bankrupt image of hunting por- trayed by the paid shooting of captive animals,” thereby threatening the state’s “strong economy based on the public pursuit and enjoyment of wild, free-ranging public wildlife.” None of these rationales is clearly arbitrary or pretextual, and all implicate issues of safety, health, and welfare that are within a state’s legitimate police power. See Euclid, 272 U.S. at 395.
4. Commerce Clause
[12] The district court properly rejected Spoklie’s argument that I-143 places an unconstitutional burden on interstate commerce. When a state statute affects interstate commerce, courts assess whether the statute “regulates even-handedly to effectuate a legitimate local public interest” and whether “its effects on interstate commerce are only incidental.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). If so, the stat- ute “will be upheld unless the burden imposed on such com- merce is clearly excessive in relation to the putative local benefits.” Id. States enacting statutes affecting interstate com- merce “are not required to convince the courts of the correct- ness of their legislative judgments.” Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981). Instead, “those challenging the legislative judgment must convince the court that the legislative facts on which the classification is appar- ently based could not reasonably be conceived to be true by the governmental decisionmaker.” Id. (citation and internal quotation marks omitted).
As discussed above, a rational legislator could have found that I-143 serves a legitimate public interest. Spoklie con- cedes that I-143 does not discriminate overtly against inter- state commerce, and he has not plausibly alleged that I-143 imposes more than incidental burdens on interstate commerce. The only basis for Spoklie’s assertion that I-143 unduly bur- dens interstate commerce is his claim that fee shooting pri- SPOKLIE v. STATE OF MONTANA 6927 marily attracts out-of-state residents. That a particular service or recreation appeals to out-of-staters, however, does not impose on states an obligation to permit it.
Spoklie argues that a state law whose actual goal is eco- nomic protectionism is subject to a “virtually per se rule of invalidity.” See Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978). However, this rule applies only when no legisla- tive objectives other than protectionist ones are “credibly advanced” or where legislation results in “patent discrimina- tion against interstate trade.” Id. Here, appellees have advanced several credible non-protectionist motives, while appellants have asserted no plausible protectionist ones. Indeed, to the extent that fee hunting is particularly popular with out-of-staters, I-143 removes one way in which Montana businesses can attract out-of-state dollars. It thus accom- plishes virtually the opposite of economic protectionism. See Clover Leaf, 449 U.S. at 473 n.17 (“The existence of major in-state interests adversely affected by the [challenged statute] is a powerful safeguard against legislative abuse.”)
C. Spoklie’s State Claim
[13] Spoklie claims that I-143 violates his property rights under Article II, section 3, of the Montana Constitution. How- ever, the Eleventh Amendment prevents him from asserting that claim in federal court. To the extent he seeks damages from the State and from DFWP, the Eleventh Amendment stands directly in his way. To the extent that he seeks declara- tory and injunctive relief under Ex parte Young, he is twenty- one years too late. In 1984, in Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 104 (1984), the Supreme Court announced that Ex parte Young allows prospective relief against state officers only to vindicate rights under fed- eral law. Since Spoklie seeks to vindicate an asserted right under state rather than federal law, Pennhurst dictates that this claim must be dismissed. 6928 SPOKLIE v. STATE OF MONTANA V. Appellants’ Claim against Hagener
Appellants sue Jeff Hagener, Director of DFWP, in his individual capacity, alleging that he “acted under color of state law to deprive Plaintiffs of their constitutional rights secured by the Constitution of the United States” including their federal rights of due process, protection against retro- spective laws, and protection against takings of private prop- erty without just compensation. To establish that a state official is personally liable in an action under 42 U.S.C. § 1983, a plaintiff must show that “the official, acting under color of state law, caused the deprivation of a federal right.” Hafer v. Melo, 502 U.S. 21, 25 (1991) (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)). State officials have qual- ified immunity from civil liability under § 1983 “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Jensen v. City of Oxnard, 145 F.3d 1078, 1085 (9th Cir. 1998) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
[14] Appellants have failed to show that any of their federal constitutional rights have been violated. Since their § 1983 claim against Hagener is premised on the argument that I-143 violates their federal constitutional rights, that claim necessar- ily fails. We therefore affirm the district court’s dismissal of Appellants’ § 1983 claim against Hagener.
For the foregoing reasons, the district court’s dismissal of all of Appellants’ claims is AFFIRMED. | 10-13-2015 | [
"FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERT SPOKLIE, Individually; SPOKLIE ENTERPRISES, L.L.C., a Montana Limited Liability Company; KIM J. KAFKA, Esq. ; CINDY R. KAFKA, individually, and as husband and wife, and as members of Diamond K Ranch Enterprises, L.L.C. ; DIAMOND K RANCH ENTERPRISES, LLC, a Montana Limited Liability Company, on behalf of themselves No. 03-35857 and others similarly situated, Plaintiffs-Appellants, D.C. No. CV-02-00102-SEH v. OPINION STATE OF MONTANA; STATE OF MONTANA, DEPARTMENT OF FISH, WILDLIFE AND PARKS; JEFF HAGENER, Director of the Montana Department of Fish, Wildlife and Parks, in his individual capacity, Defendants-Appellees. SPORTSMEN FOR I-143, MONTANA WILDLIFE FEDERATION, Intervenor-Appellee. Appeal from the United States District Court for the District of Montana Sam E. Haddon, District Judge, Presiding Argued and Submitted November 1, 2004—Seattle, Washington 6911 6912 SPOKLIE v. STATE OF MONTANA Filed June 13, 2005 Before: Arthur L. Alarcón, William A. Fletcher, and Johnnie B. Rawlinson, Circuit Judges. Opinion by Judge William A. Fletcher SPOKLIE v. STATE OF MONTANA 6915 COUNSEL John E. Bloomquist and Suzanne Taylor, Doney Crowley Bloomquist UDA, Helena, Montana, Sarah K. McMillan, Tuholske Law Office, Missoula, Montana, for the plain- tiffs-appellants.",
"Robert N. Lane, Fish Wildlife & Parks, Helena, Montana, Mike McGrath, Office of the Attorney General, Helena, Mon- tana, for the defendants-appellees. OPINION W. FLETCHER, Circuit Judge: Appellants Kim J. and Cindy R. Kafka, Diamond K Ranch Enterprises L.L.C., Robert Spoklie, and Spoklie Enterprises L.L.C. challenge a Montana ballot initiative, Proposition I- 143, on federal and state constitutional grounds. We affirm the district court’s denial of a motion to stay proceedings in the federal court pursuant to Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941). We hold that the Kaf- kas’ claims against the State of Montana and the Montana Department of Fish, Wildlife and Parks are precluded by the final judgment previously entered in their parallel state court case. Finally, we affirm the district court’s dismissal of all remaining claims.",
"6916 SPOKLIE v. STATE OF MONTANA I. Background Appellants Kim J. Kafka, Cindy R. Kafka, and Diamond K. Ranch Enterprises (collectively “the Kafkas”), and Robert Spoklie and Spoklie Enterprises (collectively “Spoklie”), for- merly owned and operated “alternative livestock” ranches in Montana, on which they raised elk, deer, bighorn sheep, mountain goats, and bison. Montana defines alternative live- stock as “privately owned caribou, white-tailed deer, mule deer, elk, moose, antelope, mountain sheep, or mountain goat[s] indigenous to the state of Montana, . . . privately owned reindeer, or any other cloven-hoofed ungulate as clas- sified by the department.” Mont. Rev. Code § 87-4-406(1). Kim and Cindy Kafka own one alternative livestock ranch, the Diamond K Ranch. Robert Spoklie owns one alternative livestock ranch, Spoklie Enterprises, and is the co-owner of another, Spoklie Elk Ranches.",
"Until the passage of Proposi- tion I-143 (“I-143”), the income from the Kafka and Spoklie ranches came primarily from “fee shooting,” a practice by which members of the public, many of them from out of state, paid to shoot a pre-selected animal on the ranch under the supervision of a guide. In October 1999, an animal on a Montana game farm ranch was diagnosed with chronic wasting disease. Concerned about the risk of the disease spreading among stocks of alternative livestock, the legislature imposed a moratorium on applica- tions for new alternative livestock ranches in May 2000. Meanwhile, opponents of fee shooting collected enough sig- natures to qualify I-143 for the November 2000 statewide bal- lot. Montana voters passed I-143 on November 7, 2000. It became effective immediately.",
"I-143 changed Montana law applicable to alternative live- stock ranches in three major ways. First, it prohibited operat- ing an alternative livestock ranch without a license obtained prior to November 7, 2000, and it prohibited the issuance of new licenses. Mont. Code Ann. § 87-4-407(1). Second, it pro- SPOKLIE v. STATE OF MONTANA 6917 hibited the transfer of “[an] alternative livestock ranch license for a specific facility.” Id. at § 87-4-412(2). Finally, it pro- vided that an alternative livestock licensee “may not allow the shooting of game animals or alternative livestock . . . for a fee or other remuneration on an alternative livestock facility.” Id.",
"at § 87-4-414(2). However, existing holders of alternative livestock licenses were permitted to “acquire, breed, grow, keep, pursue, handle, harvest, use, sell, or dispose of the alter- native livestock and their progeny in any quantity and at any time of year.” Id. Appellants filed several lawsuits challenging I-143 in fed- eral and state court. In February 2001, the Kafkas sued Jeff Hagener, Director of the Montana Department of Fish, Wild- life and Parks (“DFWP”), and Marc Bridges, Executive Offi- cer of the Montana Department of Livestock, in their individual and official capacities, in federal district court. They sought a preliminary injunction against enforcement of I-143 on federal and state constitutional grounds. The district court denied the injunction on October 5, 2001.",
"See Kafka v. Hagener, 176 F. Supp. 2d 1037 (D. Mont. 2001). The Kafkas voluntarily dismissed this suit on November 7, 2001. On April 8, 2002, the Kafkas sued the State of Montana and DFWP in Montana state court on several of the same fed- eral and state constitutional grounds raised in their federal suit, as well as on several additional federal and state grounds. In late 2002, the state trial court dismissed all claims other than the takings claims under the federal and the state Consti- tutions. Kafka v. Montana Dept. of Fish, Wildlife and Parks, DV-02-059 (October 21, 2002). [SER 102-113] On February 8, 2005, the state court dismissed the Kafkas’ federal and state takings claims.",
"Kafka v. Montana Dep’t of Fish, Wildlife, and Parks, DV 02-059 (Feb. 8, 2005). [Feb. 17, 2005, Rule 28(j) letter] On September 28, 2001, Spoklie sued the DFWP in state court, challenging its interpretation of I-143. The state court 6918 SPOKLIE v. STATE OF MONTANA granted Spoklie a preliminary injunction, but the Montana Supreme Court reversed. Spoklie v. Mont. Dep’t of Fish, Wildlife & Parks, 56 P.3d 349 (Mont. 2002). Spoklie then amended his state court complaint to include federal and state constitutional claims. So far as we are aware, no final judg- ment has been entered in that suit.",
"On November 6, 2002, the Kafkas and Spoklie filed this action in federal district court against the State of Montana, DFWP, and Jeff Hagener, Director of DFWP, in his individ- ual capacity, challenging I-143 under the federal and state Constitutions. Shortly thereafter, the Kafkas and Spoklie moved to stay their federal action pursuant to the Pullman abstention doctrine, pending resolution of their state-court suits. On December 30, 2002, the district court denied the motion to stay. On September 11, 2003, the district court dis- missed appellants’ claims in their entirety. They timely appealed. II. Pullman Abstention [1] Before reaching the merits, we consider Appellants’ argument that the district court should have abstained under Pullman. Abstention under Pullman is “an equitable doctrine that allows federal courts to refrain from deciding sensitive federal constitutional questions when state law issues may moot or narrow the constitutional questions.” San Remo Hotel v. City and County of San Francisco, 145 F.3d 1095, 1104 (9th Cir. 1998).",
"Pullman abstention is appropriate when: “(1) the federal plaintiff’s complaint requires resolution of a sensi- tive question of federal constitutional law; (2) the constitu- tional question could be mooted or narrowed by a definitive ruling on the state law issues; and (3) the possibly determina- tive issue of state law is unclear.” Id. Although it is unusual for the party that has chosen the federal forum to invoke the abstention doctrine, no bar exists to either party doing so. Id. at 1105. We review de novo the question of whether the SPOKLIE v. STATE OF MONTANA 6919 requirements for Pullman abstention are met. Fireman’s Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 939 (9th Cir. 2002). [2] We may make short work of Appellants’ argument under Pullman. We hold that the third element of the test, supra, has not been satisfied, which makes it unnecessary to address the first and second elements. When the district court denied the motion to stay under Pullman, the Montana trial court in the Kafkas’ case had already ruled adversely on most of their state law claims, and the federal district court in the Kafkas’ case had ruled adversely on one of them. Kafka, 176 F. Supp.",
"2d at 1043 (holding that the fee-shooting ban did not implicate any fundamental rights under the Montana Constitu- tion). Further, the Montana Supreme Court in Spoklie’s case had already sustained DFWP’s interpretation of I-143. See Spoklie, 56 P.3d at 356. Under these circumstances, the dis- trict court was entirely justified in concluding that Appellants had not shown that state law was unclear. III. Preclusion Against the Kafkas We next consider whether the Kafkas’ claims against the State of Montana, DFWP, and Jeff Hagener are barred by claim preclusion. The Kafkas have brought two earlier suits against these defendants, one in state court and one in federal court. A. The Kafkas’ State Court Suit: Preclusion of Claims Against the State of Montana and DFWP [3] When the district court decided this case, no final judg- ment had been entered in the Kafkas’ state court suit.",
"How- ever, the state trial court has now entered a final judgment dismissing their suit in its entirety. Kafka v. Montana Dep’t of Fish, Wildlife and Parks, DV-02-059 (February 8, 2005). In determining the preclusive effect of the Montana judgment, we apply Montana law. 28 U.S.C. § 1738. The final judgment of a trial court is entitled to preclusive effect. Hollister v. For- 6920 SPOKLIE v. STATE OF MONTANA sythe, 918 P.2d 665, 667 (Mont. 1996); Meagher County Newlan Creek Water Dist. v. Walter, 547 P.2d 850, 852 (Mont.",
"1976). Under Montana preclusion law, “claims liti- gated in a former action as well as . . . claims which might have been litigated” are barred. Balyeat Law, P.C. v. Hatch, 942 P.2d 716, 717 (Mont. 1997). “A resolved claim will be res judicata as to subsequent claims if: (1) the parties are the same; (2) the subject matter is the same; (3) the issues are the same and relate to the same subject matter; and (4) the capaci- ties of the persons are the same in reference to the subject matter and issues.” Id. ; see also Loney v. Milodragovich, Dale & Dye, P.C., 905 P.2d 158, 161 (Mont. 1995); Troutt v. Colo- rado Western Ins.",
"Co., 246 F.3d 1150, 1156 (9th Cir. 2001). [4] All four requirements are easily met here. First, the defendants in both cases are the State of Montana and DFWP. Second, the subject in both cases is I-143. Third, the issue in both cases is the legality of I-143. The Kafkas have added a federal Commerce Clause claim to this suit, but this claim arises out of the same subject and “might have been litigated” in their state court suit. Finally, the Kafkas are suing the same state defendants. The Kafkas nevertheless contend that the state trial court’s dismissal of their takings claims should not preclude their fed- eral takings claim. They point out that the United States Supreme Court has granted certiorari in San Remo Hotel, L.P. v. San Francisco City and County, 364 F.3d 1088 (9th Cir. 2004), in which we held that issues decided by a state court in resolving a state takings claim are preclusive in a later fed- eral suit asserting an “equivalent” federal takings claim. The Kafkas ask that we defer decision on claim preclusion of their federal takings claim pending the Supreme Court’s decision in San Remo Hotel.",
"[5] Whatever the Supreme Court might decide in San Remo Hotel, the case is inapposite for two reasons. First, the state court in San Remo Hotel decided only a state law takings SPOKLIE v. STATE OF MONTANA 6921 claim. In this case, by contrast, the state court decided both state and federal takings claims. Second, the question in fed- eral court in San Remo Hotel was issue preclusion. In this case, by contrast, the question is claim preclusion. In this case, the Kafkas brought their federal takings claim directly in state court, and the state court entered a final judgment rejecting it. Cf. England v. Louisiana State Bd. of Med. Exam- iners, 375 U.S. 411, 415 (1964). We are precluded by Mon- tana law from redeciding that claim.",
"B. The Kafkas’ Federal Court Suit: No Preclusion of Claim Against Hagener [6] The Kafkas brought suit in federal district court against Jeff Hagener, the Director of DFWP, in both his individual and official capacities, asserting that I-143 violated both state and federal law. The district court denied a preliminary injunction on October 5, 2001. On November 7, 2001, the Kafkas voluntarily dismissed their complaint. It is not clear from the record before us whether this dismissal was with or without prejudice. We are therefore unable to conclude on this record that the dismissal of the district court against Hagener precludes claims against him in the case before us. IV. Spoklie’s Claims against the State of Montana and DFWP The district court dismissed Spoklie’s federal takings claim against the State of Montana and DFWP on the ground that it was not ripe, and dismissed his remaining claims pursuant to Federal Rule of Civil Procedure 12(b)(6).",
"We review de novo a dismissal on ripeness grounds. Citizens for Better For- estry v. United States Dep’t of Agric., 341 F.3d 961, 969 (9th Cir. 2003). We review de novo a dismissal for failure to state a claim pursuant to Rule 12(b)(6). Decker v. Advantage Fund, Ltd., 362 F.3d 593, 595-96 (9th Cir. 2004). 6922 SPOKLIE v. STATE OF MONTANA A. Eleventh Amendment [7] Spoklie has sued the State of Montana and DFWP both for damages and for declaratory and injunctive relief. DFWP is a department of the State, and is the equivalent of the State for purposes of the Eleventh Amendment.",
"Austin v. State Indus. Ins. Sys., 939 F.2d 676, 677 (9th Cir. 1991). In his brief for the Appellees, the State Attorney General asserts that the State and DFWP are immune from an unconsented suit for damages, but “concede[s] that the Eleventh Amendment does not bar Plaintiffs’ claims for prospective declaratory and injunctive relief under [Ex parte Young, 209 U.S. 123 (1908)].” We treat the Attorney General’s “concession” as a waiver of the defense that Spoklie should not have named the State and DFWP as parties in seeking relief under Ex parte Young. See Austin, 939 F.2d at 677 (a state may consent to a suit that would otherwise be barred by the Eleventh Amend- ment). B. Spoklie’s Federal Claims 1. Takings [8] The district court dismissed Spoklie’s federal takings claim for lack of ripeness, noting that he had failed to show that I-143 deprived him of all economically viable use of his property.",
"A federal takings claim is not ripe until a litigant has “[sought] compensation through the procedures the State has provided for doing so.” Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 194 (1985). This requirement applies to facial challenges as well as to as- applied challenges. Southern Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 505-06 (9th Cir. 1990) (“[A] claim alleging that mere enactment of a statute effects an unconsti- tutional taking is unripe unless and until it is known what, if any, compensation is available.”) Spoklie has filed suit in state court challenging I-143 under the federal and state tak- ings clauses, but so far as we are aware, no decision has been SPOKLIE v. STATE OF MONTANA 6923 rendered in that suit. Until the state court has finally ruled on the state takings claim, the federal takings claim is not ripe.",
"See Williamson County, 473 U.S. at 195. It is true that we have previously held that one aspect of a facial takings claim is exempt from the Williamson County ripeness requirement. In Sinclair Oil Corp. v. County of Santa Barbara, 96 F.3d 401 (9th Cir. 1996), we observed that a plaintiff could bring a takings claim under either of two theo- ries. Either a plaintiff could show that the challenged land use restriction deprived him of all economically viable use of his land, or he could show that the action did not “substantially advance a legitimate state interest.” Id. at 406-07. We found that, while the first showing required that the plaintiff comply with the ripeness criterion of Williamson County, the second showing did not. [9] Spoklie’s takings claim appears to be based in part on the theory that I-143 does not substantially advance a legiti- mate state interest. However, to the extent Spoklie’s takings claim is premised on this theory, it must be dismissed. In Lingle v. Chevron U.S.A. Inc., No. 04-163, 2005 WL 1200710 (May 23, 2005), at *14, the Supreme Court has just dis- avowed the use of the “substantially advances” test in takings claims, holding that “the ‘substantially advances’ formula is not a valid takings test, and . .",
". it has no proper place in our takings jurisprudence.” To the extent that Spoklie’s takings claim is premised on an asserted failure of I-143 to satisfy the “substantially advances” test, Lingle requires that his claim be dismissed with prejudice. We affirm the district court’s dis- missal on this ground. Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir. 2003) (per curiam) (a court may affirm on any ground evident from the record). Because we hold that Spoklie has failed to establish that there has been a taking, we do not need to address the ques- tion whether a state may be sued for damages under the Tak- ings Clause of the Fifth Amendment in the absence of its 6924 SPOKLIE v. STATE OF MONTANA consent. Compare First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 316 n.9 (1987) (find- ing that, notwithstanding “principles of sovereign immunity,” the Constitution “dictates” a damages remedy in takings cases, but not specifically addressing whether suits against states for damages may be maintained in takings cases consis- tent with the Eleventh Amendment), with Broughton Lumber Co. v. Columbia River Gorge Comm’n, 975 F.2d 616 (9th Cir.",
"1992) (applying the Eleventh Amendment to a takings claim against the state). 2. Retroactivity [10] The district court correctly dismissed Spoklie’s claim that I-143 is invalid because it is impermissibly retroactive legislation. The Supreme Court has noted that “the presump- tion against retroactive legislation is deeply rooted in our jurisprudence” and “finds expression in several provisions of our Constitution.” Landgraf v. USI Film Prods., 511 U.S. 244, 265-66 (1994). The relevant provision in this case is Art. I, § 10, cl. 1, which provides that “[n]o State shall . .",
". pass any . . . ex post facto Law.” However, “[t]he Constitution’s restrictions . . . are of limited scope,” id. at 267, and “[a] stat- ute does not operate ‘retrospectively’ merely because it . . . upsets expectations based in prior law.” Id. at 269. Instead, the relevant question is “whether the new provision attaches new legal consequences to events completed before its enact- ment.” Id. at 270. Under this standard, many statutes that “un- settle expectations and impose burdens on past conduct” are nonetheless “uncontroversially prospective.” Id. at 269 n.24. For example, a ban on gambling is not impermissibly retro- spective simply because it “harms the person who had begun to construct a casino before the law’s enactment.” Id. Spoklie argues that I-143 has had impermissible retroactive effect because it has caused him to lose “vested rights” in his animals, ranches, alternative livestock licenses, and business goodwill. While these business losses are potentially relevant SPOKLIE v. STATE OF MONTANA 6925 to Spoklie’s takings claim, they provide no basis for arguing that the state’s abolition of formerly legal fee shooting prac- tices is impermissibly retroactive.",
"A state may outlaw a for- merly legal business even if it causes hardship to those who relied on the earlier law. See Mugler v. Kansas, 123 U.S. 623, 669 (1887) (Kansas ban on the sale of beer was constitutional even though Kansas had allowed the sale of beer at the time the plaintiffs constructed their breweries). Indeed, Montana law specifically warns Montana citizens not to rely on the expectation that the law will never be changed. Mont. Code Ann. § 1-2-110 (“Any statute may be repealed at any time except when it is otherwise provided therein. Persons acting under any statute are deemed to have acted in contemplation of this power of repeal.”). 3. Substantive Due Process [11] The district court correctly dismissed Spoklie’s sub- stantive due process claim, which is based on his theory that I-143 is an “irrational and arbitrary” law. Substantive due pro- cess provides no basis for overturning validly enacted state statutes unless they are “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926). If the legislature “could have concluded rationally” that certain facts supporting its decision were true, courts may not question its judgment.",
"Vance v. Bradley, 440 U.S. 93, 111 (1979) (internal citations and quotation marks omitted). The justifications the State has offered for I-143 far exceed what is necessary to meet this minimal standard. Voters who supported I-143 could rationally have concluded that the proposition would promote environmentally sound resource management by encouraging sport hunting in preference to fee hunting, and that it would prevent transmission of disease from the interbreeding of game farm and wild populations. Supporters could also rationally have concluded, as advocates 6926 SPOKLIE v. STATE OF MONTANA of I-143 urged in their pre-election arguments, that fee hunt- ing created an “unacceptable, bankrupt image of hunting por- trayed by the paid shooting of captive animals,” thereby threatening the state’s “strong economy based on the public pursuit and enjoyment of wild, free-ranging public wildlife.” None of these rationales is clearly arbitrary or pretextual, and all implicate issues of safety, health, and welfare that are within a state’s legitimate police power.",
"See Euclid, 272 U.S. at 395. 4. Commerce Clause [12] The district court properly rejected Spoklie’s argument that I-143 places an unconstitutional burden on interstate commerce. When a state statute affects interstate commerce, courts assess whether the statute “regulates even-handedly to effectuate a legitimate local public interest” and whether “its effects on interstate commerce are only incidental.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). If so, the stat- ute “will be upheld unless the burden imposed on such com- merce is clearly excessive in relation to the putative local benefits.” Id. States enacting statutes affecting interstate com- merce “are not required to convince the courts of the correct- ness of their legislative judgments.” Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981).",
"Instead, “those challenging the legislative judgment must convince the court that the legislative facts on which the classification is appar- ently based could not reasonably be conceived to be true by the governmental decisionmaker.” Id. (citation and internal quotation marks omitted). As discussed above, a rational legislator could have found that I-143 serves a legitimate public interest. Spoklie con- cedes that I-143 does not discriminate overtly against inter- state commerce, and he has not plausibly alleged that I-143 imposes more than incidental burdens on interstate commerce. The only basis for Spoklie’s assertion that I-143 unduly bur- dens interstate commerce is his claim that fee shooting pri- SPOKLIE v. STATE OF MONTANA 6927 marily attracts out-of-state residents. That a particular service or recreation appeals to out-of-staters, however, does not impose on states an obligation to permit it. Spoklie argues that a state law whose actual goal is eco- nomic protectionism is subject to a “virtually per se rule of invalidity.” See Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978).",
"However, this rule applies only when no legisla- tive objectives other than protectionist ones are “credibly advanced” or where legislation results in “patent discrimina- tion against interstate trade.” Id. Here, appellees have advanced several credible non-protectionist motives, while appellants have asserted no plausible protectionist ones. Indeed, to the extent that fee hunting is particularly popular with out-of-staters, I-143 removes one way in which Montana businesses can attract out-of-state dollars.",
"It thus accom- plishes virtually the opposite of economic protectionism. See Clover Leaf, 449 U.S. at 473 n.17 (“The existence of major in-state interests adversely affected by the [challenged statute] is a powerful safeguard against legislative abuse.”) C. Spoklie’s State Claim [13] Spoklie claims that I-143 violates his property rights under Article II, section 3, of the Montana Constitution. How- ever, the Eleventh Amendment prevents him from asserting that claim in federal court. To the extent he seeks damages from the State and from DFWP, the Eleventh Amendment stands directly in his way. To the extent that he seeks declara- tory and injunctive relief under Ex parte Young, he is twenty- one years too late.",
"In 1984, in Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 104 (1984), the Supreme Court announced that Ex parte Young allows prospective relief against state officers only to vindicate rights under fed- eral law. Since Spoklie seeks to vindicate an asserted right under state rather than federal law, Pennhurst dictates that this claim must be dismissed. 6928 SPOKLIE v. STATE OF MONTANA V. Appellants’ Claim against Hagener Appellants sue Jeff Hagener, Director of DFWP, in his individual capacity, alleging that he “acted under color of state law to deprive Plaintiffs of their constitutional rights secured by the Constitution of the United States” including their federal rights of due process, protection against retro- spective laws, and protection against takings of private prop- erty without just compensation. To establish that a state official is personally liable in an action under 42 U.S.C. § 1983, a plaintiff must show that “the official, acting under color of state law, caused the deprivation of a federal right.” Hafer v. Melo, 502 U.S. 21, 25 (1991) (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)). State officials have qual- ified immunity from civil liability under § 1983 “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Jensen v. City of Oxnard, 145 F.3d 1078, 1085 (9th Cir.",
"1998) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). [14] Appellants have failed to show that any of their federal constitutional rights have been violated. Since their § 1983 claim against Hagener is premised on the argument that I-143 violates their federal constitutional rights, that claim necessar- ily fails. We therefore affirm the district court’s dismissal of Appellants’ § 1983 claim against Hagener. For the foregoing reasons, the district court’s dismissal of all of Appellants’ claims is AFFIRMED."
]
| https://www.courtlistener.com/api/rest/v3/opinions/3032189/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . This action supplements the Notice of Allowance mailed January 1, 2021 to consider the new Information Disclosure Statement of January 13, 2021. Claims 1-17 and 47 are pending. Claim 1 is amended. Claim 47 is new. Claims 18-46 are canceled by Examiner’s Amendments. Claims 1 and 47 are independent. Continued Examination Under 37 CFR 1.114 After Final Rejection 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 December 3, 2020 has been entered. Information Disclosure Statement Acknowledgment is made of applicant’s Information Disclosure Statement (IDS) filed on January 13, 2021. This IDS has been considered. 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. Timothy W. Lohse (Reg. No. 35,255) on December 14, 2020. In the Claims, cancel claims 18-46. Allowable Subject Matter Claims 1-17 and 47 are allowed. The following is an examiner’s statement of reasons for allowance: With respect to independent claim 1, there is no teaching or suggestion in the prior art of record to provide the recited read bit line configured to provide read access to the storage cell data or the storage cell complementary data of each memory cell and the read word line and complementary read word line of the at least two memory cells are configured to be activated concurrently to form an exclusive logic function signal output from one of the at least two memory cells on the at least one read bit line, in combination with the other limitations. With respect to independent claim 47, there is no teaching or suggestion in the prior art of record to provide the recited one of the at least two memory cells forms, when the read word line and complementary read word line are activated concurrently, and exclusive logic function signal output from the one of the at least two memory cells on the at least one read bit line, in combination with the other limitations. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALFREDO BERMUDEZ LOZADA whose telephone number is (571)272-0877. The examiner can normally be reached on 7:00AM-3:30PM EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alexander G Sofocleous can be reached on 571-272-0635. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. | 2021-01-28T13:05:38 | [
"DETAILED ACTION Notice of AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . This action supplements the Notice of Allowance mailed January 1, 2021 to consider the new Information Disclosure Statement of January 13, 2021. Claims 1-17 and 47 are pending. Claim 1 is amended. Claim 47 is new. Claims 18-46 are canceled by Examiner’s Amendments.",
"Claims 1 and 47 are independent. Continued Examination Under 37 CFR 1.114 After Final Rejection 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 December 3, 2020 has been entered.",
"Information Disclosure Statement Acknowledgment is made of applicant’s Information Disclosure Statement (IDS) filed on January 13, 2021. This IDS has been considered. 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. Timothy W. Lohse (Reg. No. 35,255) on December 14, 2020. In the Claims, cancel claims 18-46. Allowable Subject Matter Claims 1-17 and 47 are allowed. The following is an examiner’s statement of reasons for allowance: With respect to independent claim 1, there is no teaching or suggestion in the prior art of record to provide the recited read bit line configured to provide read access to the storage cell data or the storage cell complementary data of each memory cell and the read word line and complementary read word line of the at least two memory cells are configured to be activated concurrently to form an exclusive logic function signal output from one of the at least two memory cells on the at least one read bit line, in combination with the other limitations.",
"With respect to independent claim 47, there is no teaching or suggestion in the prior art of record to provide the recited one of the at least two memory cells forms, when the read word line and complementary read word line are activated concurrently, and exclusive logic function signal output from the one of the at least two memory cells on the at least one read bit line, in combination with the other limitations. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALFREDO BERMUDEZ LOZADA whose telephone number is (571)272-0877. The examiner can normally be reached on 7:00AM-3:30PM EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alexander G Sofocleous can be reached on 571-272-0635.",
"The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000."
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-01-31.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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 11 April 2022 has been entered with the RCE of 6 May 2022.
Claim Objections Claim 1 is objected to, as the recitation regarding placement of the liquid optically clear adhesive and the separation space would be better phrased as: “said first liquid optically clear adhesive is contained inside the separation space and is surrounded by the perimeter seal”. Appropriate correction is required.
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 of this title, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 5, 6, 9, and 14 are rejected under 35 U.S.C. 103 as unpatentable over WO 2017/071911 A1 (referenced below using its U.S. counterpart publication, U.S. 2019/0366811 A1, “O’Keeffe”) in view of U.S. 2020/0201113 A1 (“Baierl”, made of record with previous advisory action and subject of discussion of a previous interview) and as evidenced by NPLs on optical bonding from Taica. Considering claims 1, 5, and 9, O’Keeffe discloses a switchable laminated glazing that may constitute a roof of a vehicle, wherein the switchable laminated glazing comprises three glass layers 155 (henceforth referred to as 155-O, 155-C, and 155-I, respectively for the outermost, central, and innermost glass layers), and wherein glass layer 155-O is joined to glass layer 155-C via a PVB interlayer 148; O’Keeffe ¶ 0101, 0131, and 0132; Figs. 5 and 8. This arrangement thus reads on the claimed first stack. O’Keeffe is analogous, as it is from the same field of endeavor as that of the instant application (switchable automotive glazing). O’Keeffe discloses that located between glass layers 155-C and 155-I is a light modulator 115, which is adhered to 155-C and 155-I via respective adhesive layers 145, each of which may be in the form of an optical clear resin (OCR) (id. ¶ 0132-0134). It is hereby noted that the term “liquid optically clear adhesive” is interpreted under broadest reasonable interpretation, and the term is considered to refer to any liquid, optically clear material that can effect bonding upon curing. With this in mind, person having ordinary skill in the art would understand OCR to refer to an optically clear bonding agent that is in liquid form prior to usage, wherein the material is cured to effect bonding (see Technical Glossary entries on Optical Bonding, Optical Clear Adhesive, and Optical Clear Resin from Taica). As such, when O’Keeffe discloses the usage of OCR to effect bonding of the various components disclosed therein, O’Keeffe has essentially disclosed the usage of a liquid optical bonding material that effects bonding of adherends after said liquid optical bonding material is cured, thereby reading on the limitation regarding the presence of a cured material formed from curing a liquid optical clear adhesive. O’Keeffe is considered to have disclosed the usage of OCR with sufficient specificity, as O’Keeffe discloses only two possibilities (OCA and OCR); alternatively, if this were not deemed to be the case (which is not conceded), the usage of OCR is obvious, at least because O’Keeffe expressly discloses it. O’Keeffe discloses that the light modulator 115 may be a liquid crystal device (id. ¶ 0021), and that the specific light modulator used may be one from the embodiment as shown in Fig. 6 of the same reference (id. ¶ 0132). Specifically, for the embodiment in Fig. 6, O’Keeffe discloses a laminated glazing that comprises two glass layer, in between which is located a light modulator 115. O’Keeffe clearly discloses that the light modulator 115 is made of a functional cell 275, electrode-coated substrates located on opposing major surface of the functional cell, and a sealant surrounding the respective minor surfaces (viz. perimeters) of the functional cell and the electrode-coated substrates, wherein the outer lateral surfaces of the perimeter sealant is coplanar with respective minor surfaces of the two glass layers (id. ¶ 0125-0128 and Fig. 6). It is noted that the limitation “perimeter seal” is interpreted under BRI, and in the instant case, the limitation is considered to refer to a sealant located on the perimeter on an element. It is clear that the sealant of O’Keefe is located on a perimeter of the light modulator (not to mention that the sealant itself constitutes a perimeter of the overall glazing). The disclosure re: the specific arrangement of the light modulator between two glass sheets thus reads on limitations concerning the claimed second stack of component and the perimeter seal. Given that O’Keefe expressly states that the configuration as shown in Fig. 6 thereof may be incorporated into the configuration as disclosed in Fig. 8 thereof, the combination of the features from the embodiments is considered to have been disclosed with sufficient specificity. Alternatively, if this were not deemed to be the case (which is not conceded), then the express teaching in ¶ 0132 of O’Keefe would provide motivation for person having ordinary skill in the art to combine the disclosures of these two embodiment. O’Keefe differs from the claimed invention, as O’Keefe does not disclose its adhesive layers to be interior of the space surrounded by its sealant. Baierl teaches a vehicle window having two glass panes and a liquid crystal layer located between the panes, wherein the vehicle window comprises edge seal 36 located between and immediately contacting the panes, thereby sealing off a space enclosed and defined by the seal and the panes (Baierl ¶ 0074-0084 and Fig. 2a). Baierl is analogous, as it is from the same field of endeavor as that of the instant application (laminated glazing having a liquid crystal layer). In particular, Baierl teaches that adhesive layers 28, 30 and 34 may be made of materials making them suitable for optical bonding and expressly states that these types of materials may be polyurethanes, acrylates, or epoxies (id. ¶ 0050). The usage of adhesive materials suitable for optical bonding is compatible with the usage of optically clear resins, thereby providing person having ordinary skill in the art reasonable expectation of success that the teachings of Baierl could be combined with that of O’Keefe. It would have been obvious to one of ordinary skill in the art, at the effective filing date of the invention, to have placed adhesive layer located within a space defined and enclosed by edge seal (so that minor surfaces of the adhesive layers contact interior facing surface(s) of the edge seal), because doing so protects the adhesive layer from humidity and oxygen (id. ¶ 0030). O’Keefe as modified by Baierl renders obvious claims 1, 5, and 9. Considering claim 6, O’Keefe teaches the usage of interlayer having high UV absorption (id. ¶ 0128). Considering claim 14, O’Keeffe discloses that the laminated glazing may exhibit curvature (id. ¶ 0125), which means that one used as a vehicle roof may also exhibit curvature.
Claims 2 and 3 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2017/071911 A1 (referenced below using its U.S. counterpart publication, U.S. 2019/0366811 A1, “O’Keeffe”) and Baierl and as evidenced by the NPLs from Taica, as applied to claim 1 above, and further in view of U.S. 2013/0265511 A1 (“Poix”). Considering claims 2 and 3, O’Keeffe as discussed above is silent regarding specific components of the liquid crystal modulator such as spacers and an edge seal for the liquid crystals per se. However, the provisions of such components is well-known in the art of liquid crystal materials used in glazings. Specifically, Poix teaches usage of both spacers within a liquid crystal layer and edge gasket for the liquid crystal layer in the usage of a liquid crystal material in a switchable glazing (Poix ¶ 0205 – 0215 and Fig. 1). Furthermore, Poix teaches that the thickness of the liquid crystal layer, which represents the gap between substrates, is about 15 to 60 µm (id. ¶ 0213). Poix is analogous, as it is from the same field of endeavor as that of the instant application (switchable glazing utilizing liquid crystal). Person having ordinary skill in the art would have been motivated to adopt the teachings from Poix to the liquid crystal layer employed in O’Keefe, as Poix is considered to have demonstrated that these liquid crystal related components are known in the art for switchable glazings. This rationale for supporting a finding of obviousness, where one reference demonstrates that a particular material is suitable for a particular intended use, is considered appropriate under the guidelines set forth in MPEP 2144.07.
Claims 7 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2017/071911 A1 (referenced below using its U.S. counterpart publication, U.S. 2019/0366811 A1, “O’Keeffe”) and Baierl and as evidenced by the NPLs from Taica, as applied to claim 1 above, and further in view of U.S. 2014/0295150 A1 (“Bower”). Considering claims 7 and 8, although O’Keeffe as discussed above discloses the usage of OCR (which, as discussed above, is a liquid optically clear material cured to effect bonding), O’Keeffe is silent regarding an adhesive formed by curing a liquid optically clear adhesive using UV radiation and another curing mechanism. However, in the field of optical bonding (including for bonding of glass substrates and liquid crystal layers), it is known to use a liquid optically clear adhesive that is cured via both UV radiation on heat (Bower ¶ 0024 and 0030). Bower is analogous, as it attempts to address the same issue(s) as addressed by the inventors of the instant application (namely, usage of liquid optically clear adhesive to effect bonding of optical layers). Person having ordinary skill in the art would have been motivated to use a dual-cure liquid optically clear adhesive taught in Bower as the bonding agent used to form layers 145 in O’Keeffe, as O’Keeffe discloses the usage of OCR (viz. broad genus) and Bower teaches a specific type of liquid optically clear material (viz. a species) suitable for effecting optical bonding. This rationale for supporting a finding of obviousness, where one reference demonstrates that a particular material is suitable for a particular intended use, is considered appropriate under the guidelines set forth in MPEP 2144.07. As the liquid optically clear adhesive is cured using UV radiation, it is clear that it can absorb UV radiation.
Claims 10-12 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2017/071911 A1 (referenced below using its U.S. counterpart publication, U.S. 2019/0366811 A1, “O’Keeffe”) and Baierl and as evidenced by the NPLs from Taica, as applied to claim 1 above, and further in view of U.S. 2015/0331296 A1 (“Mennig”). Considering claims 10-12, O’Keeffe as discussed above does not disclose the inclusion of a low-emissivity coating. However, provision of a low-emissivity coating on the inward-facing surface of the outermost pane of a switchable laminated glazing is known, as is taught in Mennig. Specifically, Mennig teaches that such a coating may be applied onto the outer pane and adjacent an intermediate layer (Mennig ¶ 0048 and Fig. 1). Mennig is analogous, as it is from the same field of endeavor as that of the instant application (laminated glazings, in particular one having low-emissivity coatings). It would have been obvious to one of ordinary skill in the art, at the effective filing date of the invention, to have included such a low-emissivity coating onto the inward facing surface of glass layer 155-O of the glazing of O’Keeffe, as doing so reduces infrared transmission.
Response to Arguments Applicant’s arguments with respect to all prior art rejections in the previous Final Office Action relying upon at least O’Keefe (pg. 10 ¶ 1+ of response filed on 11 April 2022, henceforth “Response”) have been fully considered. In view of amendments to claim 1, all prior art rejections in the previous Final Office Action relying upon at least O’Keefe have been withdrawn. Of the contentions in the Response, the only one applicable to the rejections set forth is Applicant’s allegation that the teachings regarding usage of OCR and OCA is applicable solely to the embodiments related to Fig. 7 of O’Keeffe (Response pg. 10 ¶ 2-4). However, this allegation is not deemed to be based on the actual teachings of O’Keeffe, as O’Keeffe clearly states that optical bonding is applicable to the embodiments related to Figs. 6-8 thereof, and with O’Keeffe’s discussion that both OCA and OCR can be used to effect optical bonding, person having ordinary skill in the art would understand that OCR can be applied to at least the configurations of Figs. 6-8 of O’Keeffe (O’Keeffe ¶ 0121 and 0131). As the interview held on 14 June 2022 is made of record, Examiner also incorporates responses to contentions raised by Applicant during the interview and reiterates the position that though it is acknowledged that Baierl appears to prefer (if it could be characterized as such) an autoclaving lamination process, the broader teachings of Baierl nevertheless states that optical bonding is an alternative means of laminating the constituent layers. Applicant is hereby reminded that a prior art is relevant for all it contains, and that nonpreferred and alternative embodiments a) constitute prior art and b) are not considered to teach away; see MPEP 2123.
Concluding Remarks Any inquiry concerning this communication or earlier communications from the examiner should be directed to Zheren Jim Yang whose telephone number is (571)272-6604. The examiner can normally be reached on M-F 9:30-7. 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 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.
/Z. Jim Yang/Primary Examiner, Art Unit 1781 | 2022-08-10T22:29:16 | [
"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 11 April 2022 has been entered with the RCE of 6 May 2022. Claim Objections Claim 1 is objected to, as the recitation regarding placement of the liquid optically clear adhesive and the separation space would be better phrased as: “said first liquid optically clear adhesive is contained inside the separation space and is surrounded by the perimeter seal”. Appropriate correction is required.",
"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 of this title, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made. The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3.",
"Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. Claims 1, 5, 6, 9, and 14 are rejected under 35 U.S.C. 103 as unpatentable over WO 2017/071911 A1 (referenced below using its U.S. counterpart publication, U.S. 2019/0366811 A1, “O’Keeffe”) in view of U.S. 2020/0201113 A1 (“Baierl”, made of record with previous advisory action and subject of discussion of a previous interview) and as evidenced by NPLs on optical bonding from Taica.",
"Considering claims 1, 5, and 9, O’Keeffe discloses a switchable laminated glazing that may constitute a roof of a vehicle, wherein the switchable laminated glazing comprises three glass layers 155 (henceforth referred to as 155-O, 155-C, and 155-I, respectively for the outermost, central, and innermost glass layers), and wherein glass layer 155-O is joined to glass layer 155-C via a PVB interlayer 148; O’Keeffe ¶ 0101, 0131, and 0132; Figs. 5 and 8. This arrangement thus reads on the claimed first stack. O’Keeffe is analogous, as it is from the same field of endeavor as that of the instant application (switchable automotive glazing). O’Keeffe discloses that located between glass layers 155-C and 155-I is a light modulator 115, which is adhered to 155-C and 155-I via respective adhesive layers 145, each of which may be in the form of an optical clear resin (OCR) (id. ¶ 0132-0134). It is hereby noted that the term “liquid optically clear adhesive” is interpreted under broadest reasonable interpretation, and the term is considered to refer to any liquid, optically clear material that can effect bonding upon curing. With this in mind, person having ordinary skill in the art would understand OCR to refer to an optically clear bonding agent that is in liquid form prior to usage, wherein the material is cured to effect bonding (see Technical Glossary entries on Optical Bonding, Optical Clear Adhesive, and Optical Clear Resin from Taica).",
"As such, when O’Keeffe discloses the usage of OCR to effect bonding of the various components disclosed therein, O’Keeffe has essentially disclosed the usage of a liquid optical bonding material that effects bonding of adherends after said liquid optical bonding material is cured, thereby reading on the limitation regarding the presence of a cured material formed from curing a liquid optical clear adhesive. O’Keeffe is considered to have disclosed the usage of OCR with sufficient specificity, as O’Keeffe discloses only two possibilities (OCA and OCR); alternatively, if this were not deemed to be the case (which is not conceded), the usage of OCR is obvious, at least because O’Keeffe expressly discloses it.",
"O’Keeffe discloses that the light modulator 115 may be a liquid crystal device (id. ¶ 0021), and that the specific light modulator used may be one from the embodiment as shown in Fig. 6 of the same reference (id. ¶ 0132). Specifically, for the embodiment in Fig. 6, O’Keeffe discloses a laminated glazing that comprises two glass layer, in between which is located a light modulator 115. O’Keeffe clearly discloses that the light modulator 115 is made of a functional cell 275, electrode-coated substrates located on opposing major surface of the functional cell, and a sealant surrounding the respective minor surfaces (viz. perimeters) of the functional cell and the electrode-coated substrates, wherein the outer lateral surfaces of the perimeter sealant is coplanar with respective minor surfaces of the two glass layers (id. ¶ 0125-0128 and Fig.",
"6). It is noted that the limitation “perimeter seal” is interpreted under BRI, and in the instant case, the limitation is considered to refer to a sealant located on the perimeter on an element. It is clear that the sealant of O’Keefe is located on a perimeter of the light modulator (not to mention that the sealant itself constitutes a perimeter of the overall glazing). The disclosure re: the specific arrangement of the light modulator between two glass sheets thus reads on limitations concerning the claimed second stack of component and the perimeter seal. Given that O’Keefe expressly states that the configuration as shown in Fig. 6 thereof may be incorporated into the configuration as disclosed in Fig. 8 thereof, the combination of the features from the embodiments is considered to have been disclosed with sufficient specificity. Alternatively, if this were not deemed to be the case (which is not conceded), then the express teaching in ¶ 0132 of O’Keefe would provide motivation for person having ordinary skill in the art to combine the disclosures of these two embodiment.",
"O’Keefe differs from the claimed invention, as O’Keefe does not disclose its adhesive layers to be interior of the space surrounded by its sealant. Baierl teaches a vehicle window having two glass panes and a liquid crystal layer located between the panes, wherein the vehicle window comprises edge seal 36 located between and immediately contacting the panes, thereby sealing off a space enclosed and defined by the seal and the panes (Baierl ¶ 0074-0084 and Fig. 2a). Baierl is analogous, as it is from the same field of endeavor as that of the instant application (laminated glazing having a liquid crystal layer).",
"In particular, Baierl teaches that adhesive layers 28, 30 and 34 may be made of materials making them suitable for optical bonding and expressly states that these types of materials may be polyurethanes, acrylates, or epoxies (id. ¶ 0050). The usage of adhesive materials suitable for optical bonding is compatible with the usage of optically clear resins, thereby providing person having ordinary skill in the art reasonable expectation of success that the teachings of Baierl could be combined with that of O’Keefe. It would have been obvious to one of ordinary skill in the art, at the effective filing date of the invention, to have placed adhesive layer located within a space defined and enclosed by edge seal (so that minor surfaces of the adhesive layers contact interior facing surface(s) of the edge seal), because doing so protects the adhesive layer from humidity and oxygen (id. ¶ 0030). O’Keefe as modified by Baierl renders obvious claims 1, 5, and 9. Considering claim 6, O’Keefe teaches the usage of interlayer having high UV absorption (id. ¶ 0128).",
"Considering claim 14, O’Keeffe discloses that the laminated glazing may exhibit curvature (id. ¶ 0125), which means that one used as a vehicle roof may also exhibit curvature. Claims 2 and 3 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2017/071911 A1 (referenced below using its U.S. counterpart publication, U.S. 2019/0366811 A1, “O’Keeffe”) and Baierl and as evidenced by the NPLs from Taica, as applied to claim 1 above, and further in view of U.S. 2013/0265511 A1 (“Poix”). Considering claims 2 and 3, O’Keeffe as discussed above is silent regarding specific components of the liquid crystal modulator such as spacers and an edge seal for the liquid crystals per se.",
"However, the provisions of such components is well-known in the art of liquid crystal materials used in glazings. Specifically, Poix teaches usage of both spacers within a liquid crystal layer and edge gasket for the liquid crystal layer in the usage of a liquid crystal material in a switchable glazing (Poix ¶ 0205 – 0215 and Fig. 1). Furthermore, Poix teaches that the thickness of the liquid crystal layer, which represents the gap between substrates, is about 15 to 60 µm (id. ¶ 0213). Poix is analogous, as it is from the same field of endeavor as that of the instant application (switchable glazing utilizing liquid crystal). Person having ordinary skill in the art would have been motivated to adopt the teachings from Poix to the liquid crystal layer employed in O’Keefe, as Poix is considered to have demonstrated that these liquid crystal related components are known in the art for switchable glazings. This rationale for supporting a finding of obviousness, where one reference demonstrates that a particular material is suitable for a particular intended use, is considered appropriate under the guidelines set forth in MPEP 2144.07. Claims 7 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2017/071911 A1 (referenced below using its U.S. counterpart publication, U.S. 2019/0366811 A1, “O’Keeffe”) and Baierl and as evidenced by the NPLs from Taica, as applied to claim 1 above, and further in view of U.S. 2014/0295150 A1 (“Bower”).",
"Considering claims 7 and 8, although O’Keeffe as discussed above discloses the usage of OCR (which, as discussed above, is a liquid optically clear material cured to effect bonding), O’Keeffe is silent regarding an adhesive formed by curing a liquid optically clear adhesive using UV radiation and another curing mechanism. However, in the field of optical bonding (including for bonding of glass substrates and liquid crystal layers), it is known to use a liquid optically clear adhesive that is cured via both UV radiation on heat (Bower ¶ 0024 and 0030). Bower is analogous, as it attempts to address the same issue(s) as addressed by the inventors of the instant application (namely, usage of liquid optically clear adhesive to effect bonding of optical layers).",
"Person having ordinary skill in the art would have been motivated to use a dual-cure liquid optically clear adhesive taught in Bower as the bonding agent used to form layers 145 in O’Keeffe, as O’Keeffe discloses the usage of OCR (viz. broad genus) and Bower teaches a specific type of liquid optically clear material (viz. a species) suitable for effecting optical bonding. This rationale for supporting a finding of obviousness, where one reference demonstrates that a particular material is suitable for a particular intended use, is considered appropriate under the guidelines set forth in MPEP 2144.07. As the liquid optically clear adhesive is cured using UV radiation, it is clear that it can absorb UV radiation. Claims 10-12 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2017/071911 A1 (referenced below using its U.S. counterpart publication, U.S. 2019/0366811 A1, “O’Keeffe”) and Baierl and as evidenced by the NPLs from Taica, as applied to claim 1 above, and further in view of U.S. 2015/0331296 A1 (“Mennig”).",
"Considering claims 10-12, O’Keeffe as discussed above does not disclose the inclusion of a low-emissivity coating. However, provision of a low-emissivity coating on the inward-facing surface of the outermost pane of a switchable laminated glazing is known, as is taught in Mennig. Specifically, Mennig teaches that such a coating may be applied onto the outer pane and adjacent an intermediate layer (Mennig ¶ 0048 and Fig. 1). Mennig is analogous, as it is from the same field of endeavor as that of the instant application (laminated glazings, in particular one having low-emissivity coatings). It would have been obvious to one of ordinary skill in the art, at the effective filing date of the invention, to have included such a low-emissivity coating onto the inward facing surface of glass layer 155-O of the glazing of O’Keeffe, as doing so reduces infrared transmission. Response to Arguments Applicant’s arguments with respect to all prior art rejections in the previous Final Office Action relying upon at least O’Keefe (pg.",
"10 ¶ 1+ of response filed on 11 April 2022, henceforth “Response”) have been fully considered. In view of amendments to claim 1, all prior art rejections in the previous Final Office Action relying upon at least O’Keefe have been withdrawn. Of the contentions in the Response, the only one applicable to the rejections set forth is Applicant’s allegation that the teachings regarding usage of OCR and OCA is applicable solely to the embodiments related to Fig. 7 of O’Keeffe (Response pg. 10 ¶ 2-4). However, this allegation is not deemed to be based on the actual teachings of O’Keeffe, as O’Keeffe clearly states that optical bonding is applicable to the embodiments related to Figs. 6-8 thereof, and with O’Keeffe’s discussion that both OCA and OCR can be used to effect optical bonding, person having ordinary skill in the art would understand that OCR can be applied to at least the configurations of Figs. 6-8 of O’Keeffe (O’Keeffe ¶ 0121 and 0131).",
"As the interview held on 14 June 2022 is made of record, Examiner also incorporates responses to contentions raised by Applicant during the interview and reiterates the position that though it is acknowledged that Baierl appears to prefer (if it could be characterized as such) an autoclaving lamination process, the broader teachings of Baierl nevertheless states that optical bonding is an alternative means of laminating the constituent layers. Applicant is hereby reminded that a prior art is relevant for all it contains, and that nonpreferred and alternative embodiments a) constitute prior art and b) are not considered to teach away; see MPEP 2123. Concluding Remarks Any inquiry concerning this communication or earlier communications from the examiner should be directed to Zheren Jim Yang whose telephone number is (571)272-6604. The examiner can normally be reached on M-F 9:30-7.",
"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 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. /Z. Jim Yang/Primary Examiner, Art Unit 1781"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-08-14.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
OPINION & ORDER KATHERINE B. FORREST, District Judge:' Plaintiffs John Copeland, Pedro Perez, and Native Leather, Inc. (“Native Leather”) assert an as-applied constitutional challenge to the validity of New York Penal Law §§ 265.00(5) and 265.01(1), which criminalize the possession of gravity knives (the “Gravity Knife Law” or “Gravity Knife Statute”). (See Amended Complaint ¶¶ 59-60, ECF No. 61.) The Gravity Knife Statute defines a gravity knife as “any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.” N.Y. Penal Law § 265.00(5). Defendants employ a functional test—referenced as the “Wrist-Flick test”—to determine whether a knife falls within the prohibitions of the Gravity Knife Law. Under the New York Penal Law, a person who possesses a gravity knife is “guilty of criminal possession of a weapon in the fourth degree.” N.Y. Penal Law § 265.01(1). Plaintiffs contend that the definition of a gravity knife in the Gravity Knife Statute, as measured by the WrisUFlick test, is unconstitutionally vague in violation of the Fourteenth Amendment. Specifically, plaintiffs argue that the Gravity Knife Statute is unconstitutionally vague as applied to “Common Folding Knives,” which plaintiffs define as “folding pocket knives that are designed to resist opening from the closed position.” (Amended Complaint ¶1.) The core of plaintiffs’ challenge is that enforcement of the Gravity Knife Statute through use of the Wrist-Flick test prevents an individual from ever knowing whether a Common Folding Knife that they possess (or would like to possess) is an illegal gravity knife. This is so, accord*236ing to plaintiffs, primarily because the Wrisb-Flick test is inherently subjective and indeterminate in that outcomes of the test necessarily reflect personal characteristics of the tester such as skill and dexterity. In support .of their position, plaintiffs proffer various hypotheticals. For example, plaintiffs argue that “[a] person’s ability to flick open a knife will vary based on degree of tiredness, injury, etc.... Suppose a person has a blister or cut on his strong hand, or has injured his hand or arm. That person will be entirely unable to perform the Wrist Flick [t]est, or his ability will be diminished.” Plaintiffs likewise argue that someone might be arrested for possession of a gravity knife if they encounter a strong and well rested police officer, whereas they might not be arrested if they encountered a weak and tired officer. Based on these and other hypotheticals, plaintiffs conclude that application of the Gravity Knife Law to Common Folding Knives is void for vagueness under the Fourteenth Amendment because no one can determine with any reasonable degree of certainty which Common Folding Knives are legal to possess and/or sell. Plaintiffs assert that the Gravity Knife Law ought to prohibit only those knives that can open by the force of gravity alone, using as their prototypical example “German Paratrooper Knives.” After careful review and consideration, the Court determines that plaintiffs’ as-applied vagueness challenge fails and judgment must be entered for defendants. In reaching this determination, the Court hews closely to the facts relating to the particular plaintiffs now before the Court. As to these plaintiffs, the statute provided sufficient notice that their conduct was prohibited. With regard to plaintiffs’ claims of future harm due to alleged vagueness inherent in the Wrisb-Flick test, the Court finds that none of the plaintiffs has demonstrated that the many hypothet-icals that the parties have so vigorously debated is in fact reasonably likely to occur to him or her. Furthermore, the Court concludes that the Gravity Knife Law provides sufficiently clear standards for law enforcement, and that in any event, plaintiffs’ conduct fell within the core of the statute’s prohibitions. 1. PROCEDURAL HISTORY This case was initially filed on June 9, 2011. After a trip to the Second Circuit and back,1 the parties conducted discovery and proceeded to trial. The parties agreed to a trial proceeding that was largely on the papers. Plaintiffs presented affirmative evidence in the form of written submissions. Specifically, plaintiffs presented declarations from each of plaintiffs John Copeland, Pedro Perez, and Carol Walsh (for Native Leather); declarations from experts Bruce Voyles and Paul Tsujimoto; and a declaration from Douglas S. Ritter. Defendants also presented evidence in the form of written submissions. Defendants presented declarations from Assistant District Attorney Dan Rather and the following members of the New York Police Department: Sergeant Tomas Acosta, Lieutenant Daniel Albano, Sergeant Noel Gutierrez, Detective Ioannis Kyrkos, and Lieutenant Edward Luke. The Court also received deposition designations for Captain Michael Tighe, Lieutenant Albano, Sergeant Acosta, Assistant D.A. Rather, Walsh, and Tsujimoto.2 *237In addition to receiving written submissions, the Court held a live evidentiary-hearing on June 16, 2016, which included a presentation by Douglas Ritter3 (subject to cross-examination) and a cross-examination of Assistant District Attorney Rather. Both sides also presented closing arguments. II. FINDINGS OF FACT4 A. Statutory Framework 1. New York Penal Law §§ 265.00(5) and 265.01(1) Under the New York Penal Law, “[a] person is guilty of criminal possession of a weapon in the fourth degree when: (1) he or she possesses any ... gravity knife.” N.Y. Penal Law § 265.01(1). Criminal possession of a weapon in the fourth degree is a class A misdemeanor. N.Y. Penal Law § 265.01. The statute defines a gravity knife as “any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.” N.Y. Penal Law § 265.00(5) (together with § 265.01(1), the “Gravity Knife Law” or “Gravity Knife Statute”).5 Thus, the Gravity Knife Statute consists of two separate requirements: (1) a knife must open by force of gravity or the application of centrifugal force, and (2) once the blade of the knife is released, it must lock in place by means of a button, spring, lever or other device. See N.Y. Penal Law § 265.00(5). To meet the first statutory requirement of the Gravity Knife Law, it is clear that a knife need not open by both gravity and the application of centrifugal force; if a knife opens by centrifugal force alone and the blade locks in place once released, the knife is an illegal gravity knife. See U.S. Customs Serv., Region II v. Fed. Labor Relations Auth., 739 F.2d 829, 832 (2d Cir. 1984) (“When ‘or’ is inserted between two clauses, the clauses are treated disjunctively rather than conjunctively.”); see also Mizrahi v. Gonzales, 492 F.3d 156, 164 (2d Cir. 2007) (“It is a standard canon of statutory construction that words separated by the disjunctive [‘or’] are intended to convey different meanings unless the *238context indicates otherwise.”)- As described below, the Court finds that the Wrisb-Flick test measures whether a knife opens by centrifugal force. 2. The “Wrisb-Flick test” There is no dispute that the definition of a gravity knife, as drafted in the statute, is a functional one. To determine whether a particular knife meets that statutory definition, defendants utilize the “Wrist-Flick test.” The Wrisb-Flick test is just what its name suggests: using the force of a one-handed flick-of-the-wrist to determine whether a knife will open from a closed position. Both the statutory text6 and existing New York precedent make clear that the Wrist-Flick test measures whether a knife opens by centrifugal force. Centrifugal force is defined as “the apparent force that is felt by an object moving in a curved path that acts outwardly away from the center of rotation.” Centrifugal force, Merriam-Webster Online Dictionary, https ://www.merriamwebster. com/ dictionary/centrifugal% 20force (last visited Dec. 22, 2016). At trial, plaintiffs’ counsel and Douglas Ritter both repeatedly sought to demonstrate what they purported was the Wrist-Flick test.7 The New York Court of Appeals recently confirmed that a knife that opens via the Wrist-Flick test meets the statutory definition of a gravity knife.8 See People v. Sans, 26 N.Y.3d 13, 17, 41 N.E.3d 333 (2015) (statement in criminal complaint that the defendant’s knife opened “with centrifugal force” conveyed that the officer “flicked the knife open with his wrist”); see also People v. Herbin, 86 A.D.3d 446, 927 N.Y.S.2d 54, 55-56 (1st Dep’t 2011) (statutory definition of a gravity knife, satisfied *239where “officers release the blade simply by flicking the knife with their wrists”); People v. Neal, 79 A.D.3d 523, 913 N.Y.S.2d 192, 194 (1st Dep’t 2010) (operability of knife conformed to statute where officer opened the knife “by centrifugal force, created by flicking his wrist”); Johnson v. New York, 1988 WL 96034, *1 n.1, 1988 U.S. Dist. LEXIS 9397, at *2 n.1. (S.D.N.Y. Aug. 25, 1988) (“A ‘gravity knife’ is one in which the blade is exposed by a simple flick of the wrist in a downward motion, locking the blade into position.”). As the statutory text and above analysis illustrates, New York Penal Law § 265.00(5) employs a functional test to identify a gravity knife. “The intended use or design of the knife by its manufacturer is not an element of the crime and is irrelevant to the issue of whether the knife is a gravity knife.” People v. Fana, 23 Misc.3d 1114(A), 2009 WL 1098984, *3, 2009 N.Y. Misc. LEXIS 956, at *9 (N.Y. County Crim. Ct. 2009). By contrast, other Penal Law provisions incorporate the design of a weapon into their definitions. See, e.g., Penal Law § 265.00(11) (“ ‘Rifle’ means a weapon designed ... ”); § 265.00(12) (“ ‘Shotgun’ means a weapon designed ...”); § 265.00(14) (“‘Chuka stick’ means a weapon designed ...”); § 265.00(15-a) (“ ‘Electric dart gun’ means any device designed ... ”). Furthermore, under the Gravity Knife Statute, a gravity knife is a per se illegal weapon: if a person possesses one, whether or not he knows that it is a gravity knife, he is in violation of § 265.01(1). See N.Y. Penal Law § 265.00(5). Throughout this case, plaintiffs have maintained that the WrisL-Flick test inappropriately expands the boundaries of the Gravity Knife Statute and that, in fact, gravity knives are and should be limited to a very specific subset of knives—those that are capable of opening solely as a result of gravity, that is, holding the knife upside down. According to plaintiffs, “Common Folding Knives”—which plaintiffs define as “folding pocket knives that are designed to resist opening from the closed position”—are not gravity knives.9 In support of this argument, plaintiffs point to the legislative history of the Gravity Knife Statute10 and have proffered expert opinions from Paul Tsujimoto, who is an expert in knife design,11 and Bruce Voyles, who has experience in the history of knives.12 *240Plaintiffs have also offered testimony from Douglas Rittér, who is the founder and Chairman of Knife Rights, Ine., a former plaintiff in this case. Tsujimoto and Voyles purport to offer factual, not legal opinions. Yet, their opinions are primarily directed at how the Gravity Knife Statute should be interpreted in order to implement what they describe as the historical origins of gravity knives and the historical usage of the term “gravity knives.” Before proceeding further, the Court therefore notes that it could largely ignore Tsujimoto and Voyles’s opinions on relevancy grounds alone, as the legal interpretation of the Gravity Knife Statute is beyond the proper scope of their expertise. The Court nevertheless provides an overview of Tsujimoto and Voyles’s opinions, as plaintiffs rely heavily upon them. These opinions do not alter the Court’s conclusion that the Wrist-Flick test appropriately applies centrifugal force under the Gravity Knife Statute to determine whether Common Folding Knives are illegal gravity knives. Tsujimoto opines that the Wrist-Flick Test “is not a true test for centrifugal force” but rather involves “a misinterpretation of the term ‘centrifugal force.’ ” (Tsujimoto Deck ¶¶ 44, 50.) Tsujimoto does not deny that the Wrist-Flick test employs the use of centrifugal force; he concedes that centrifugal force is “imparted during the initial arm and wrist movement.” (Id. ¶ 50.) Rather, Tsujimoto opines that “[i]t is th[e] sudden stopping of the blade and the inertia of the blade continuing to move, not centrifugal force, which opens the blade.” (Id. ¶ 51) According to Tsujimoto, the statute covers only knives that open without “the sudden stopping of the arm and wrist” that Tsujimoto alleges is involved in the “second part of the [Wrist-Flick test].” (⅛) Tsujimoto concludes that the statute covers only knives similar to German Paratrooper Knives. (Tsujimoto Deck ¶ 26.) Tsujimoto states that this is “the understanding that knife companies have had since the 1950’s.” (Id. ¶¶ 11-26, 52.) Voyles reaches a similar conclusion.13 (Voyles Deck ¶¶ 8-10, 16.) Voyles bases his opinion on his “more than 35 years in the cutlery trade” and his review of historical references to gravity knives. (Id. ¶ 10, 15-24, 37-40.) Tsujimoto explains that, by design, the German Paratrooper Knife easily slides out from the handle based on gravity alone—that is, holding it upside down causes the knife to slide out. (Tsujimoto Deck ¶ 26; see also Voyles Deck ¶ 16.) Tsujimoto further explains that a German Paratrooper Knife also easily slides out from the handle if one were to hold the knife handle pointing outward, away from their body, and rotate the arm around the shoulder, such as in a chair seat so that the individual spins around on the chair frame (what Tsujimoto describes as the “Swivel Chair Test”). (Tsujimoto Deck ¶¶ 22, 51.) Tsujimoto opines that the type of centrifugal force intended by the Gravity Knife Statute must be only that which is necessary to open a German Paratrooper Knife via the Swivel Chair Test. (Jd. ¶ 51.) Voyles also reaches a similar conclusion. (See Voyles Deck ¶ 8-10.) The Court notes that despite this testimony from Tsujimoto and Voyles, plaintiffs did not argue that the Gravity Knife Statute is unconstitutionally vague because it does not involve *241the application of centrifugal force to open a knife. In fact, plaintiffs forfeited any such argument. (Plaintiffs’ Reply/Rebuttal Trial Brief, Objections, and Opposition to Motion to Strike/Motion in Limine (“Reply Mem.”), EOF No. 153, at 12.)14 Furthermore, how a German Paratrooper Knife functions is a point that defendants do not contest but assert is irrelevant. The Court agrees. Relatedly, plaintiffs spent a fair amount of time on evidence regarding “bias” as it relates to the blade of a knife: “bias toward opening” and its opposite, “bias toward closure.” Tsujimoto explains that switchblades and German Paratrooper Knives are examples of knives with a “bias toward opening.” (Tsujimoto Decl. ¶ 28; see also Voyles Decl. ¶ 14; Ritter Decl. ¶ 15.) In contrast, according to Tsujimoto, “folding knives” (such as slip joints, lock backs, and liner locks) have a “bias toward closure.” (Tsujimoto Decl. ¶ 29.) Different types of locking mechanisms—including liner locks and lock backs—correspond with differences in resistance to opening. (Id. ¶¶ 35, 46(1).)15 Knives which have a bias toward closure feature blades that are held in the closed position by a spring or other mechanism, and the blade will remain in the closed position until the blade is manipulated to overcome the closing tension. (Id. ¶ 34.) Plaintiffs have submitted evidence that differences in the manufacturing process can result in differences between how knives of the same brand and model open. (Tsujimoto Decl. ¶ 46(2).) Defendants did not contest this evidence. (See Rather Decl. ¶ 23.) It is also clear that use of a knife over time may create differences in how the same knife opens at one point in time versus another. (Tsujimoto Decl. ¶46(3).) Loosening in joints and screws, resulting from, inter alia, use over time, may result in a knife opening by centrifugal force with a Wrist-Flick when it had not previously. By the same token, a knife that once opened with application of the Wrist-Flick test may not later. For example, if the knife has been stored continuously in a cold or arid location, or the knife has been exposed to moisture causing corrosion on the blade or in the handle. (Rather Decl. ¶ 24.) Tsujimoto concludes that folding knives with a “bias toward closure” will not open with what he describes as “centrifugal force” (i.e., via the Swivel Chair Test), and therefore, in his opinion, should not meet the statutory definition of a gravity knife. (Id. ¶¶ 34, 49.) These opinions are here, again, largely irrelevant to the issues before the Court. Despite plaintiffs’ vigorous arguments as to how they would like to reinterpret the Gravity Knife Statute,16 basic statutory interpretation is a legal, not factual, question. The application of centrifugal force through the Wrist-Flick test may result in the opening of a knife with bias toward opening or closure. While the *242knife design industry may differentiate between knives just as Tsujimoto and Voyles state, those opinions do not mean that the legal definition of a gravity knife under the Gravity Knife Statute tracks those views. 3. Enforcement While being trained at the Police Academy, officers of the New York Police Department (“NYPD”) are instructed on the Penal Law definition of a gravity knife and the charges to be imposed for its possession. (Acosta Dep. at 28:06-30:09; Gutierrez Decl. ¶ 15; Kyrkos Decl. ¶ 14.) The law enforcement personnel involved in testing the knives possessed by plaintiffs here had such training. The evidence at trial made it clear that the same Wrisb-Flick test has been used by the NYPD to identify gravity knives since the statute’s effective date. The evidence supports consistent, continued application of this historical practice under the current New York District Attorney, Cyrus Vance, Jr. New police officers are trained to use the same test that officers were trained to use decades ago. Moreover, there is no evidence that the manner of conducting the Wrist-Flick test is, in fact, different from officer to officer.17 Finally, there is no evidence in the record that two different police officers—each applying the Wrist-Flick test to a knife (either plaintiffs’ or any other person’s) on the same occasion—had different outcomes.18 In other words, while plaintiffs have described hypothetical scenarios that are possible, they did not introduce sufficient evidence for the Court to find that any of the scenarios are probable as to plaintiffs or anyone else. There was no evidence, for instance, that a strong or well rested officer was once able to open a knife with the Wrist-Flick test while a weaker or tired officer was not; there was likewise no evidence that dexterity resulted in different outcomes.19 In short, the evidence supports a known, consistent functional test for determining whether a knife fits the definition of a “gravity knife” and does not support inconsistent outcomes under that test. Prosecutions charging gravity knife possession constitute a very small fraction of the total number of misdemeanor prosecutions commenced in New York County each year. (Rather Decl. ¶¶ 33-34.) The record fully supports that arrests and prosecutions for possession of a gravity knife only occur once a knife has opened in response to the Wrist-Flick test. Prosecutions are not—and were not with regard to *243plaintiffs here—initiated based on a theoretical possibility that a knife could, might, or should open in response to a Wrist-Flick; they are commenced only if and when a knife does. (Rather Deck ¶ 25.) B. The Plaintiffs 1. Native Leather Native Leather is a corporation organized under New York law that operates a retail store (with the same name) in Manhattan. (Walsh Decl. ¶ 2.) The retail store sells mostly men’s accessories and leather goods, including, inter alia, folding pocket knives. (Id.) Carol Walsh is the owner and President of Native Leather. (Walsh Deck ¶1.) In 2010, during an investigation by the New York District Attorney’s Office, investigators purchased knives from Native Leather and subjected them to the Wrist-Flick test. Upon application of the Wrists Flick test, investigators determined that Native Leather was, in fact, offering gravity knives for sale to the public. (Rather Deck ¶ 42.) The D.A.’s Office then issued a subpoena to Native Leather, which required it to produce those knives in its inventory that met the statutory definition of a gravity knife under the New York Penal Law. (Ex. P-1; see Rather Dep. at 16:11-19, 37:8-23; Walsh Deck ¶4.) After she received the subpoena, Walsh reviewed the Gravity Knife Statute and understood that she could not sell knives that met the description of what “the DA’s Office was looking for,” but that she could sell anything outside of that description. (Walsh Dep. at 9:14-22; see also id. at 57:4-12.) Even though she had been in business for a number of years, Walsh was not certain that she had ever read the definition of a gravity knife in the Penal Law before this time. (Walsh Dep. at 57:4-12.)20 In response to the subpoena, Walsh collected and provided to the D.A.’s Office “almost every folding knife that [she] thought could be opened with one hand, with or without gravity or centrifugal force,” for a total of over three hundred knives. (Walsh Dep. at 64:17-65:10.) The D.A.’s Office subjected each knife to the WrisL-Flick test. Assistant D.A. Rather either personally tested each knife or observed other members of the District Attorney’s staff personally test each knife. (Rather Deck ¶ 45.) A number opened. It appears that one or more of those knives opened only after multiple attempts of the WrisKFlick test by different individuals. (Rather Dep. 43:15-44:06.) However, the record contains significant ambiguity on this point, and in particular, regarding the number of WrisWHick attempts applied to any particular knife, whether two different individuals had different outcomes, and whether in all events knives requiring multiple attempts were designated as gravity knives or were returned to Native Leather. In short, the Rather testimony on this issue was never clarified by plaintiffs and is therefore useless as proof of any particular point with respect to plaintiffs’ specific knives. For instance, during questioning regarding Native Leather his deposition, plaintiffs asked D.A. Rather: “And did you ever have the circumstance arise where a knife passed the functional test with one person, but failed it with another?” (Rather Dep. 43:15-17.) D.A. Rather responded: “In a fashion. Gravity knives by law don’t have to open each and every time.... ” (Rather Dep. 43:18-20.) Plaintiffs continued to question D.A. Rather but framed their questions as hypotheticals instead of *244focusing specifically on the events that occurred with regard to Native Leather. The D.A.’s Office retained those knives submitted by Native Leather that the D.A.’s office determined, by application of the WrisWFlick test, to be illegal gravity knives. (Rather Dep. at 39:16-40:17, 41:24-43:11; Rather Decl. ¶¶ 45-46; Walsh Dep. at 65:11-23.) None of the knives that Native Leather provided to the D.A.’s Office were German Paratrooper Knives. (Rather Decl. ¶ 48.) Each of the knives that functioned as a gravity knife could also be described as a type of folding knife.21 (Rather Decl. ¶ 47.) On June 15, 2010, Walsh entered into a deferred prosecution agreement with the D.A.’s Office. (Ex. P-2; see Walsh Decl. ¶ 12.) She agreed, inter alia, not to sell gravity knives and to personally test Native Leather’s inventory for gravity knives. (Walsh Decl. ¶¶ 13,15.) Walsh tests knives that she determines need testing based on her experience selling knives for “many, many years.” (Walsh Dep. at 23:9-24:5; see also id. at 66:21-67:4.) For example, Walsh testified that a knife that does not lock in the open position—such as a Swiss Army knife—does not need to be tested because there is no way it will lock automatically upon opening. (Walsh Dep. at 23:14-24.) Similarly, she testified that a knife that locks in the closed position does not need to be tested because there is no way it could be opened with one hand. (Walsh Dep. at 23:14-21.) Walsh began testing Native Leather’s knives herself in September 2010. (Walsh Dep. at 42:2-12.) After identifying which knives need to be tested, Walsh applies the Wrist-Flick test. (Walsh Dep. at 24:15-25:10.) If Walsh can’t open a particular knife using the WrisL-Flick test but determines that a “stocky [man]” could open the knife with a Wrist-Flick, she rejects it and does not place it in her inventory for sale. (Walsh Dep. at 21:15-25:10.) Walsh testified that she understands that certain knives, while not designed to open by the application of gravity or centrifugal force, may nonetheless function as gravity knives. (Walsh Dep. at 67:16-68:16.) As part of the deferred prosecution agreement, Walsh also agreed to the appointment of an independent monitor to inspect the books, records, and inventory of Native Leather. (Walsh Decl. ¶ 13.) Kroll Inc. was selected by the D.A.’s Office to fulfill that role. (Walsh Decl. ¶ 17; Rather Dep. at 35:13-15.) In May 2011, Kroll employees tested certain of Native Leather’s knives employing the WrisL-Flick test. (Walsh Decl. ¶20.) Walsh was present at the time. According to Walsh, “if the blade swung out of the knife, it was loose enough to be called a gravity knife”; conversely, “if the blade was snug into the handle [and] it wouldn’t come out,” the Kroll employees would not classify the knife as a gravity knife. (Walsh Dep. at 18:2-19:3.) 2. John Copeland John Copeland is a resident of Manhattan. In October 2009, Copeland purchased a Benchmade brand knife at Paragon Sports in Manhattan. (Copeland Decl. ¶ 3.) In his trial declaration, Copeland states that shortly after purchasing the knife, he showed it to two different NYPD officers and that both officers applied the Wrist-Flick test to the knife. (Copeland Decl. ¶ 5.) Copeland testified that because both officers could not open the knife using the WrisL-Flick test, they told him that the knife was legal and returned it to him. (¾) *245Thereafter, Copeland regularly used the knife in connection with his work as a painter and sculptor. (Copeland Decl. ¶¶ 1, 4.) A year after his initial purchase of the knife, Copeland had the knife clipped to his pocket and was stopped in Manhattan by Sergeant Noel Gutierrez and Detective Ioannis Kyrkos of the NYPD. (Copeland Decl. ¶ 7; Gutierrez Decl. ¶¶ 4-5, Kyrkos Decl. ¶¶ 4-5.) According to Sergeant Gutierrez and Detective Kyrkos, Copeland told the officers that he used the knife in connection with his employment as a mechanic. (Gutierrez Decl. ¶ 7; Kyrkos Decl. ¶ 9.) In Copeland’s presence, Detective Kyrkos applied the Wrist-Flick test to Copeland’s knife by gripping the handle of the knife and flicking his wrist in a downward motion. (Gutierrez Decl. ¶¶ 8-9, Kyr-kos Decl. ¶¶ 7-8.) The knife opened on the first attempt and the blade locked into place. (Gutierrez Decl. ¶8, Kyrkos Decl. ¶ 7.) The officers then placed Copeland under arrest for Criminal Possession of a Weapon in the Fourth Degree in violation of New York Penal Law § 265.01(1). (Gutierrez Decl. ¶ 11, Kyrkos Decl. ¶ 11.) Prior to the events giving rise to his arrest for gravity knife possession, Copeland knew that the New York Police Department employed the Wrist-Flick test to identify illegal gravity knives. (Copeland Decl. ¶ 5.) The Court finds that Copeland’s knife met the definition of a gravity knife and the ability of Copeland’s knife to open by application of the Wrist-Flick test immediately prior to his arrest, as compared to its inability to open a year earlier, was due to usage over time. At the precinct, Copeland was given a Desk Appearance ticket and was then released. (Copeland Decl. ¶ 7, Gutierrez Decl. ¶¶ 11-12.) On November 3, 2010, Sergeant Gutierrez signed a criminal court complaint charging Copeland with possession of a gravity knife. (Gutierrez Decl. ¶¶ 13, 22-25; Ex. D-3.) On January 26, 2011, Copeland accepted an Adjournment in Contemplation of Dismissal. (Copeland Decl. ¶ 9.) Both Sergeant Gutierrez and Detective Kyrkos submitted trial declarations stating that they apply the Wrisb-Flick test to determine whether a knife is a gravity knife. (Gutierrez Decl. ¶¶ 13, 17; Kyrkos Decl. ¶¶ 13, 16-17.) Both officers testified that they hold the handle of a knife and flick their wrist to apply centrifugal force—if the blade exits the handle and locks into place, the knife is a gravity knife. (Gutierrez Decl. ¶ 17; Kyrkos Decl. ¶ 17.) Sergeant Gutierrez and Detective Kyrkos learned how to apply the Wrist-Flick test during their time as probationary officers by observing other officers use the test, as well as through their own firsthand experience during that time. (Gutierrez Decl. ¶ 16; Kyrkos Decl. ¶ 15.) Both Sergeant Gutierrez and Detective Kyrkos have consistently, and exclusively, used the Wrist-Flick test to identify gravity knives over the course of their careers. (Gutierrez Decl. ¶¶ 17-18, Kyrkos Decl. ¶¶ 16-18.) In his trial declaration, Copeland states that he will not purchase a folding knife in New York similar to the Benchmade brand knife that he was previously arrested for because he fears future arrest and prosecution. (Copeland Dec. ¶ 11.) 3. Pedro Perez Pedro Perez also resides in Manhattan. In approximately April 2008, he purchased a Gerber brand folding knife from a retailer in Manhattan. (Perez Decl. ¶ 4.) The knife had a stud mounted on the blade that enabled the user to open it with one hand by “swivel[ing]” the blade open with his thumb. (Perez Decl. ¶ 5.) Perez, who is a “purveyor of fine arts,” regularly used the knife to cut canvas and open packaging. (Perez Decl. ¶¶ 1, 3, 5.) Two years after Perez purchased the knife, on April 15, 2010, Lieutenant Luke observed the knife clipped to the pocket of Perez’s pants and *246stopped Perez inside a New York City subway station. (Perez Decl. ¶ 6; Luke Decl. ¶¶ 4-11.) Police Officers Julissa Sanchez and Ray Dejesus were present with Lieutenant Luke when he stopped Perez. (Luke Decl. ¶ 4-11.) All three officers were assigned to the Anti-Crime Unit. (Luke Decl. ¶4.) In Perez’s presence, Lieutenant Luke applied the WrisWFlick test to Perez’s knife by gripping the handle of the knife and flicking his wrist in a downward motion away from his body.22 (Luke Decl. ¶ 12.) The knife opened on the first application of the Wrist-Flick test and the blade locked in place automatically. (Luke Decl. ¶ 13.) Perez was then arrested. (Luke Decl. ¶ 15.) The arrest was assigned to Police Officer Angel Guerrero, who completed a Desk Appearance ticket charging Perez with possession of a gravity knife in violation of Penal Law § 265.01. (Luke Decl. ¶ 16; see also Perez Decl. ¶ 7.) The Court finds that Perez’s knife met the definition of a gravity knife. In his trial declaration, Perez states that the officers who arrested him could not open Perez’s knife using the Wrist-Flick test but inexplicably charged him with possession of a gravity knife because it was “theoretically” possible to do so. (Perez Decl. ¶ 7.) The Court has no basis to credit this statement over the sworn statement of Lieutenant Luke, who was present on the scene at the time of the arrest. Perez did not contest the charge and accepted an Adjournment in Contemplation of Dismissal and agreed to perform seven days of community service. (Perez Decl. ¶ 8.) Indeed, the Court views this fact as some evidence that Perez understood his knife functioned as a gravity knife. But, in addition, the plaintiff carries the burden of proof in this matter and so when weighing statements of equal credibility, a tie goes to the defendants. In his trial declaration, Perez states that he will not purchase a folding knife in New York similar to the Gerber brand knife that he was previously arrested for because he fears future arrest and prosecution. (Perez Dec. ¶ 10.) III. CONCLUSIONS OF LAW As the factual findings above detail, each of plaintiffs’ knives met both of the statutory requirements under the Gravity Knife Law. The knives which plaintiffs possessed at the time of their arrests (or, in the case of Native Leather, those retained by the D.A.’s Office after compliance with the subpoena), opened with application of the Wrist-Flick test. Upon opening, the blades of such knives locked in place. *247Plaintiffs now assert an as-applied constitutional challenge to the validity of the Gravity Knife Statute. The Gravity Knife Statute has been subject to a number of previous vagueness challenges, including as to the definitional provision. See, e.g., Herbin, 86 A.D.3d at 446-447, 927 N.Y.S.2d 54. Challenges to the constitutionality of a criminal statute on the basis of vagueness are brought pursuant to the guarantee in the Fourteenth Amendment that “No State shall ... deprive any person of life, liberty, or property, without due process of law[.]” U.S. Const. Amend. XIV, § 1. “[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926); accord Farrell v. Burke, 449 F.3d 470, 485 (2d Cir. 2006). A law that burdens constitutional rights or that imposes criminal penalties must meet a higher standard of specificity than a law that merely regulates economic concerns. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982); see also N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 265 (2d Cir. 2015), cert. denied sub nom. Shew v. Malloy, — U.S.—, 136 S.Ct. 2486, 195 L.Ed.2d 822, 195 (2016). This higher standard applies here because the Gravity Knife Law at issue imposes criminal penalties. Based on these principles, the void-for-vagueness doctrine requires that “a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” N.Y. State Rifle & Pistol Ass’n, Inc., 804 F.3d at 265 (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)). Accordingly, “[a] statute can be impermissi-bly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.” VIP of Berlin, LLC v. Town of Berlin, 593 F.3d 179, 186 (2d Cir. 2010) (quoting Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000)). Throughout this litigation, plaintiffs have consistently characterized their claim as an “as-applied” challenge to the Gravity Knife Statute. (See, e.g., Amended Complaint ¶ 60) (“The Due Process Clause of the Fourteenth Amendment invalidates Penal Law §§ 265.01(1) and 265.00(5) as void for vagueness, as applied to Common Folding Knives that are designed to resist opening from their folded and closed position.”); Pltfs’ PFOF, at 43 (“Plaintiffs’ claim is straightforward. Plaintiffs assert that application of the Gravity Knife Law to Common Folding Knives is void for vagueness under the Fourteenth Amendment because no one can determine with any reasonable degree of certainty which Common Folding Knives are legal to possess and/or sell.”) This characterization, however, “is in significant tension with [plaintiffs’] general failure to focus narrowly on the actual conduct in which they are engaged or would like to be engaged.” Expressions Hair Design v. Schneiderman, 808 F.3d 118, 130 (2d Cir. 2015), cert. granted, — U.S.—, 137 S.Ct. 30, 195 L.Ed.2d 902 (2016). “A facial challenge is an attack on a statute itself as opposed to a particular application.” City of Los Angeles, Calif. v. Patel, — U.S. —, 135 S.Ct. 2443, *2482449, 192 L.Ed.2d 435 (2015). Such challenges “are generally disfavored,” Dickerson v. Napolitano, 604 F.3d 732, 741 (2d Cir. 2010), and are “the most difficult ... to mount successfully.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Outside of the First Amendment context, a facial challenge generally must show that “no set of circumstances exits under which the [law] would be Valid.” Dickerson, 604 F.3d at 743 (alteration in original) (quoting Salerno, 481 U.S. at 745, 107 S.Ct. 2095); see Vill. of Hoffman Estates, 455 U.S. at 497, 102 S.Ct. 1186. In contrast, an as-applied challenge requires that a plaintiff show that the challenged statute is unconstitutional when applied to the particular facts of his or her case. See Farrell, 449 F.3d at 486; see also Dickerson, 604 F.3d at 745 (“To successfully make an as-applied vagueness challenge, the plaintiff must show that section 14-107 either failed to provide them with notice that the possession of their badges was prohibited or failed to limit sufficiently the discretion of the officers who arrested them under the statute.”) (emphasis in original). As noted above, plaintiffs frame their challenge to the Gravity Knife Statute as an applied challenge to all Common Folding Knives—defined by plaintiffs as knives that are “designed to resist opening from the closed position.” Plaintiffs have not narrowed their challenge, however, to their specific conduct or specific Common Folding Knives (i.e. those that prompted the previous enforcement actions against plaintiffs).23 (See, e.g., Pltfs’ PFOF at 1 (“[N]o-one can determine any longer whether a particular knife in their possession will be deemed illegal or prohibited”); Pltfs’ PFOF at 53 ¶ 55 (“At its core, this entire case comes down to one simple question. How can a person draw the conclusion that a given locking, folding knife (Common Folding Knife) can never be flicked open by anyone? No one can ever draw that conclusion.”)) In this way, plaintiffs’ challenge resembles a pre-enforcement facial challenge. See N.Y., State Rifle & Pistol Ass’n, Inc., 804 F.3d at 265 (“Because plaintiffs pursue this ‘pre-enforcement’ appeal before they have been charged with any violation of law, it constitutes a ‘facial,’ rather than ‘as-applied,’ challenge.”) This has caused some confusion in this case, which the Court sought to address during the closing-arguments. In all events, for the reasons described below, plaintiffs’ challenge fails whether it is considered an as-applied challenge or a facial challenge. On the record before it, the Court concludes that the Gravity Knife Statute was, and will continue to be, constitutionally applied to plaintiffs. This determination necessarily means that the Gravity Knife Statute is not unconstitutional in all of its applications (i.e. on its face).24 The Court finds that none of the plaintiffs has demonstrated that the many hypothetieals the parties have so vigorously debated are in fact reasonably likely to occur to him or her. A. Notice “The first way that a law may be unconstitutionally vague as applied to *249the conduct of certain individuals is ‘if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct' it prohibits.’ ” VIP of Berlin, LLC, 593 F.3d at 187 (quoting Hill, 530 U.S. at 732, 120 S.Ct. 2480). In determining whether a statute fails to provide people of ordinary intelligence with a reasonable opportunity to understand what conduct it prohibits, courts look to see whether individuals had fair notice or warning of such prohibitions. Hill, 530 U.S. at 732, 120 S.Ct. 2480; see VIP of Berlin, LLC, 593 F.3d at 187. The Court asks whether “the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” VIP of Berlin, LLC, 593 F.3d at 187; see also Rubin v. Garvin, 544 F.3d 461, 467 (2d Cir. 2008). To comply with the notice element requires that “[the] statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant’s conduct was criminal.” Mannix v. Phillips, 619 F.3d 187, 197 (2d Cir. 2010) (quotation marks omitted). The standard is objective and it is therefore irrelevant “whether a particular plaintiff actually received a warning that alerted him or her to the danger of being held to account for the behavior in question.” Dickerson, 604 F.3d at 745. “[T]he test does not demand meticulous specificity in the identification of the proscribed conduct.” United States v. Coppola, 671 F.3d 220, 235 (2d Cir. 2012) (quotation omitted). Only an “unexpected and indefensible” interpretation of a statute that gives a defendant “no reason to even suspect that his [or her] conduct might be within its scope” will violate the notice element. United States v. Smith, 985 F.Supp.2d 547, 588 (S.D.N.Y. 2014) (quotations omitted); see Mannix, 619 F.3d at 199 (rejecting vagueness claim where New York courts had previously ruled that conduct similar to the defendants’ satisfied the elements of the challenged statute); see also Smith, 985 F.Supp.2d at 588 (“[I]t is not only the language of a statute that can provide the requisite fair notice; judicial decisions interpreting that statute can do so as well”). The Court finds that plaintiffs’ had adequate notice that their conduct was prohibited under the Gravity Knife Statute. Each of plaintiff Copeland and Perez’s knives opened on the first Wrist-Flick test applied. The knives confiscated from plaintiff Native Leather also opened by application of the Wrist-Flick test. As the Court has already explained, it is clear from the statutory text that the Wrist-Flick test involves the use of centrifugal force. Furthermore, the New York Court of Appeals, as well as lower New York courts and juries have all found the existence of centrifugal force based on the Wrist-Flick test. See, e.g., Sans, 26 N.Y.3d at 17, 19 N.Y.S.3d 468, 41 N.E.3d 333; Herbin, 927 N.Y.S.2d 54; Neal, 79 A.D.3d 523, 913 N.Y.S.2d 192, 194 (1st Dep’t 2010). Both the statutory text and these judicial decisions provided plaintiffs with the requisite notice that their conduct-was prohibited. In support of their position, plaintiffs have proffered numerous hypotheticals throughout this litigation. For example, plaintiffs argue that “[a] person’s ability to flick open a knife will vary based on degree of tiredness, injury, etc.... Suppose a person has a blister or cut on his strong hand, or has injured his hand, or arm. That person will be entirely unable to perform the Wrist Flick [t]est, or his ability will be diminished.” (Reply Mem. at 7-8.) Plaintiffs also imagine a situation where someone buys a knife, tests such knife inside the store and the knife fails the Wrist-Flick test, but then exits the store moments later where an officer is able to successfully perform the Wrist-Flick test to the same knife. (See June 16, 2016, Tr., *250EOF No. 191, at 25:07-21.) Plaintiffs claim that no one possessing a folding knife “can ever be sure he possesses a legal pocket knife versus an illegal gravity knife, because the test results are highly dependent on the strength, dexterity, skill, and training of the individual employing the test, the particular specimen of the knife, and other highly variable and uncertain characteristics.” (Id.) Similarly, plaintiffs argue that “there is no number of people a person can consult to determine that his Common Folding Knife is not an illegal gravity knife, because no matter how many individuals fail to flick it open, the very next person might be able to do so, and the person in possession of that knife will be subject to arrest and prosecution.” (Pltfs’ PFOF, at 47 ¶ 19.) With regards to Copeland and Perez, plaintiffs claim that “no matter how many times [they] tr[y] and fail[ ] to flick a folding knife open, as long as any police officer, anywhere, at any time in the future can flick the knife open using the technique the police use to test folding knives, [they] would be subject to arrest.” (Pltfs’ PFOF at 19 ¶ 55, 21 ¶ 64.) Defendants assert, with effect, that the many interesting hypotheticals that plaintiffs have described are just that—hypo-theticals. Ultimately, according to defendants, the particular plaintiffs before the Court bear the burden of proving that the statute is unconstitutional as to them, and this plaintiffs have not done. See VIP of Berlin, LLC, 593 F.3d at 189 (noting that the “pertinent issue [ ] is not whether a reasonable person ... in general” would know what the statute prohibits, but rather whether a reasonable person in the plaintiffs specific circumstance would know that their conduct was prohibited). The Court agrees. Despite the various hypo-theticals raised by plaintiffs, there is no evidence that any of the plaintiffs tried but were unable to open their knives by application of the Wrist-Flick test.25 Nor is there evidence that the officers who arrested plaintiffs Copeland and Perez, as well as those individuals at the D.A.’s Office who tested the knives confiscated from plaintiff Native Leather, possessed any special strength, skill, or dexterity. “What renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is.” United States v. Williams, 553 U.S. 285, 306, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). The Gravity Knife Statute provides clear notice of the “incriminating fact” to be proven—namely, the blade of the knife must open and lock into place in response to gravity or centrifugal force—and the statute does not run afoul of the Fourteenth Amendment simply because the owner claims “difficultly]” determining whether that fact has been proven. In an analogous case, the Supreme Court rejected a vagueness challenge to a statute that criminalized the mailing of firearms that “could be concealed on the person.” United States v. Powell, 423 U.S. 87, 88, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975). The defendant, a female, was convicted for mailing a sawed-off shotgun that was twenty-two inches in length. Id at 93, 96 S.Ct. 316. The statute did not specify whether the “person” against whom to measure capability of concealment was to be “the person mailing the firearm, the *251person receiving the firearm, or, perhaps, an average person, male or female, wearing whatever garb might be reasonably appropriate, wherever the place and whatever the season.” Id. (quotation omitted). Attributing the “commonsense meaning” to the statute that the person would be of “average” stature and dress, the Court upheld the statute and further noted that the defendant, in mailing the shotgun, assumed the risk that a jury would conclude that her conduct fell within the statute. Id. at 93-94, 96 S.Ct. 316. New York’s Gravity Knife Law criminalizing knives that have “a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force” gives no less adequate notice—and, as discussed below, no less sufficient standards for enforcement—than a law that proscribes the mailing of a “concealable firearm.” Plaintiffs assert that the current District Attorney, Cyrus Vance, Jr., and the City have moved away from an interpretation of the Gravity Knife Statute that had been enforced with “clarity and predictability” for fifty years to one that treats “nearly any ordinary folding knife as an illegal ‘gravity knife.’ ” (Pltfs’ PFOF at 1.) According to plaintiffs, this alteration of a decades-old interpretation has led to unconstitutional unpredictability and “no-one can determine any longer whether a particular knife in their possession will be deemed illegal or prohibited.” (Id.) The record contradicts these arguments, however. As noted, the evidence supports consistent, continued 'application of Wrist-Flick test. As defendants asserted, that same application was applied to plaintiffs, and there is no factual basis to believe that it will not be applied similarly to plaintiffs in the future. B. Arbitrary and Discriminatory Enforcement “The second way in which a statute can be found unconstitutionally vague is if the statute does not ‘provide explicit standards for those who apply it’ ” in order to avoid arbitrary and discriminatory enforcement. VIP of Berlin, LLC, 593 F.3d at 191 (quoting Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir. 2007)). Having concluded that the Gravity Knife Statute provided plaintiffs with sufficient notice, the Court asks: whether “(1) the ‘statute as a general matter provides sufficiently clear standards to eliminate the risk of arbitrary enforcement;’ or (2) ‘even in the absence of such standards, the conduct at issue falls within the core of the statute’s prohibition, so that enforcement before the court was not the result of the unfettered latitude that law enforcement officers and factfinders might have in other, hypothetical applications of the statute.’ ” Id. (quoting Farrell, 449 F.3d at 494); see also Dickerson, 604 F.3d at 748. For largely the same reasons that the statute gave plaintiffs sufficient notice, on the record before the Court, the Court concludes that the' Gravity Knife Statute provides sufficiently clear standards. There is no evidence of any arbitrary and discriminatory enforcement of the Gravity Knife Law. To the contrary, the record contains ample evidence that NYPD officers are trained in an appropriate manner on the correct definition of a gravity knife under applicable law. The record fully supports that the NYPD generally, and with respect to plaintiffs here, apply that definition via the Wrisb-Flick test in a consistent manner. Again, plaintiffs assert that the Wrist-Flick test is “subjective, variable and indeterminate.” (Pltfs’ PFOF at 3.) According to plaintiffs, the Wrist-Flick test allows for the possibility that different units of the same model knife could have different legal statuses: one unit could pass the Wrist-Flick test (e.g. not open) and be deemed lawful; another unit could fail and *252be deemed to be a gravity knife and therefore unlawful. Or, worse still, if two different people perform the test one after another, with the first Wrisk-Flick test failing to open the blade and the second succeeding, the same knife, tested at relatively the same time, could be both a lawful folding knife and an unlawful gravity knife. (Id.) Similarly, plaintiffs argue: “If a person encounters an NYPD officer on a day the officer is rested and strong, he may be arrested for possession of a gravity knife, while another person may encounter the same officer at the end of his shift when he is tired. Both individuals could be in possession of identical knives, yet one could be arrested and the other not, merely due to the officer’s physical state at the time.” (Id. at 8.) Again, the Court emphasizes that the various hypotheticals plaintiffs present are not supported by the record. Rather, the record establishes that NYPD officers are trained in an appropriate manner and apply the Wrist-Flick test in a consistent manner. If one of the many hypotheticals that plaintiffs describe does indeed arise, plaintiffs “could bring an ‘as applied’ vagueness challenge, grounded in the facts and context of [that] particular set of charges.” N.Y. State Rifle & Pistol Ass’n, Inc., 804 F.3d at 266. The hypotheticals plaintiffs raise cannot, however, support their challenge here. See id. Alternatively, even a statute that provides “what may be unconstitutionally broad discretion if subjected to a facial challenge” may still be upheld on an as-applied challenge “if the particular enforcement at issue [is] consistent with the core concerns underlying the [statute] such that the enforcement did not represent an abuse of the discretion afforded under the statute.” Dickerson, 604 F.3d at 748 (citations and internal quotation marks omitted). Here, plaintiffs’ conduct plainly fell within the core of the Gravity Knife Statute. As previously noted, plaintiff Copeland and Perez’s knives opened on the first application of the Wrist-Flick test. And plaintiffs did not adduce evidence regarding how many applications of the Wrists Flick test were necessary to open those knives confiscated from native leather that did not open on the first application of the Wrist-Flick test. Furthermore, the officers who arrested plaintiffs Copeland and Perez, as well as those individuals at the D.A.’s Office who tested the knives confiscated from plaintiff Native Leather, were nothing but average in all relevant respects and did not possess any special strength, skill, or dexterity. Prohibiting knives that open by the use of centrifugal force in the manner that plaintiffs’ knives opened falls squarely within the core concerns underlying the Gravity Knife Statute. Even if the Gravity Knife Statute does not provide clear enforcement standards, its enforcement against plaintiffs “was not the result of ‘unfettered latitude that law enforcement officers and factfinders might have in other, hypothetical applications of the statute.’ ” VIP of Berlin, LLC, 593 F.3d at 193 (quoting Farrell, 449 F.3d at 494); see Thibodeau, 486 F.3d at 69. In short, this is not a case where one of the many implausible hypotheticals that plaintiffs present actually occurred. IV. CONCLUSION The Clerk of Court is directed to enter judgment for defendants and to terminate this action. SO ORDERED.
. This Court initially dismissed plaintiffs’ complaint for lack of standing. (ECF No. 80; see also ECF No. 95.) The Second Circuit vacated and remanded that decision in part, finding that although one of the plaintiffs did not have standing, plaintiffs Copeland, Perez, and Native Leather had standing to bring the instant challenge. See Knife Rights, Inc. v. Vance, 802 F.3d 377 (2d Cir. 2015).
. In addition to the papers submitted by the parties, the Court received a motion to file an *237amicus curiae brief by the Legal Aid Society. (ECF No. 159.) The Legal Aid Society submitted their proposed amicus curiae brief alongside their motion papers. (ECF No. 159-1.) The Court also received an opposition to the motion from defendants (ECF No. 162) as well as a reply from the Legal Aid Society (ECF No. 163). Having considered these submissions, the Court denies the motion by the Legal Aid Society (ECF No. 159). District courts have discretion in deciding whether to accept amicus briefs. Under the particular circumstances presented here, the Court declines to entertain or accept the filing. In their proposed amicus curiae brief, the Legal Aid Society presents various facts outside of the trial record and relating to individuals other than plaintiffs here. In all events, neither the facts presented nor the arguments would alter the outcome of this matter.
. Ritter is the founder and Chairman of Knife Rights, a former plaintiff in this case. (Ritter Decl. ¶ 1.)
. The majority of the facts in the trial record are undisputed. To the extent that the Court must make a finding as between competing assertions, it does so based upon the preponderance of the evidence.
. New York first prohibited gravity knives in 1958, and the definition of such knives remains the same today. See 1958 N.Y. Laws ch. 107, sec. 1, § 1896. The Court notes that on December 31, 2016, Governor Andrew Cuomo vetoed Assembly Bill 9042-A, entitled: "AN ACT to amend the penal law, in relation to definitions of a switchblade knife and a gravity knife.” (See ECF No. 193.) The vetoed bill, which would have altered the statutory definition of a gravity knife, has no effect on the issues before the Court (and no impact on the Court’s decision).
. The Court also notes that at least some of the Gravity Knife Statute's legislative history supports this conclusion. The 1957 Bill Jacket of the Gravity Knife Law included a New York Times article from December 1957 that describes a sponsor of the statute opening a gravity knife by "flick[ing] his wrist sharply downward.” (Ex. D-4 at 20.) Then, as now, knives which could be opened by a flick of the wrist were considered to be particularly dangerous.
. Portions of this demonstration were videotaped. Plaintiffs' counsel and Mr. Ritter demonstrated a number of knives, none of which were the make and model of the knives possessed by Copeland and Perez at the time of their arrests. (See June 16, 2016, Tr., ECF No. 191, at 26:09-22.) Furthermore, there was no evidence that either of these two plaintiffs would purchase one of the specific knives demonstrated if allowed to do so. Of the knives demonstrated, only one—a "Buck Crosslock”—was specifically identified as a knife that may have been confiscated from Native Leather or was a knife that Native Leather would sell. (See id. at 24:12-25:10, 26:23-27:04; see also Walsh Deck ¶ 21.) In all events, there was a distinct difference between the maneuver employed by plaintiffs’ counsel and Ritter and the Wrist-Flick test that is employed by NYPD officers and the D.A.’s Office. Assistant D.A. Rather testified credibly on this point. (See June 16, 2016, Tr., at 72:23-73:18.) Rather testified, and the Court credits, that the motion utilized by plaintiffs’ counsel and Ritter was exaggerated and was not the Wrist-Flick test. (See id.) Accordingly, the Court found the demonstration interesting, but not relevant to the question of whether different applications of the Wrist-Flick test would have different outcomes.
.Courts have examined whether a knife must open on every attempt in order to be considered a gravity knife and have found that it does not. See, e.g., People v. Smith, 309 A.D.2d 608, 609, 765 N.Y.S.2d 777 (1st Dep't 2003) (upholding conviction under the Gravity Knife Statute against evidentiary challenge where "the knife malfunctioned on some of the detective's attempts to operate it”); see also Carter v. McKoy, 2010 U.S. Dist. LEXIS 83246 at *13, 2010 WL 3290989, *5 (S.D.N.Y. Aug. 9, 2010) (noting that “under New York law, a knife need not work consistently in order to support the finding that it is a gravity knife”). This is plainly correct as the statute does not, on its face, require any particular number of applications of gravity or centrifugal force.
. The term "Common Folding Knife” used by plaintiffs has no meaning under New York law.
. Plaintiffs also cite United States v. Irrizary, 509 F.Supp.2d 198 (E.D.N.Y. 2007) to argue that a folding knife cannot be classified as a gravity knife because of its design. (Plaintiffs' Opening Trial Brief and Proposed Findings of Fact and Conclusions of Law (“Pltfs' PFOF”), ECF No. 128, at 14 ¶ 32.) Irizarry did not involve a vagueness challenge, or a challenge to law enforcement's practice of using the Wrist-Flick test to identify gravity knives. Rather, in that case, the court held that the arresting officer did not have probable cause to believe that the defendant's knife was a gravity knife—despite the fact that it opened by application of the -Wrist-Flick test—because the knife was “designed, sold, and used as a folding knife” and "was obviously not designed to be opened [by a Wrist-Flick] and does not readily open through such force.” Irizarry, 509 F.Supp.2d at 210. The facts of that case are important and distinguishable from those here. There, the arresting officer could not "readily open” the defendant's knife by application of the Wrist-Flick test and required "three strenuous attempts” to do so. Irizarry, 509 F.Supp.2d at 204, 210. In addition, and perhaps based on its particular facts which rendered certain distinctions less meaningful, the court then stated that the knife at issue "was designed and sold as a folding knife,” when the test is functional and not design based.
. Tsujimoto is currently Vice President of Engineering for Ontario Knife Company and states that he has "spent the last 27 years of [his] 39 year working career in the cutlery industry.” (Tsujimoto Decl. ¶ 3.)
. Voyles is currently Editor-at-Large at Knife Magazine, and states that he has been a *240cutlery journalist and writer since 1977 and has owned a knife auction company since 1999. (Voyles Deck ¶¶ 4-5.)
. Voyles traces the history of gravity knives back to the 1800’s and states that original gravity knives were similar to "German Paratrooper Knives” prevalent during WWII. (See Voyles Deck ¶¶ 11-13.)
. Plaintiffs state: “Whether or not a folding knife actually opens by centrifugal force (as engineers and physicists understand the term) or opens by inertia or a combination of the two has no impact on the vagueness argument.”
. In both types of knives, the same device that creates tension on the blade also locks it in place once open. (Tsujimoto Dep. at 85:7— 86:1.) In a liner lock, that device is a metal cutout in the side of the handle, called the liner, which snaps across the back side of the blade as the blade opens to lock it in the open position. (Tsujimoto Dep. at 85:7-15; Tsujim-oto Decl. ¶ 35; Ex. P-12.) In a lock back, that device is a spring-loaded bar that wedges itself into a notch on the blade to prevent it from closing. (Tsujimoto Dep. at 84:17-22, 102:21-103:10; Tsujimoto Decl. ¶ 35; Ex. P-11.)
.Plaintiffs acknowledge, as they must, that "it is clear that under New York law, a Common Folding Knife can be considered a gravity knife.” (Reply Mem. at 3.)
. In his trial declaration, Ritter claims that in his experience, "every individual who attempted a wrist flick maneuver executed it in their own individual manner. There was never any obvious consistency in execution between individuals nor often consistency even by the same individual when conducting multiple attempts at such maneuvers." (Ritter Decl. ¶ 20.) The Court does not credit this testimony, and finds that the record supports consistent application of the Wrist-Flick test.
. There was evidence that when Assistant D.A. Rather and his staff were testing Native Leather’s array of knives, there were some that had different outcomes under the Wrist-Flick test after multiple attempts by different individuals. However, in the sole specific example Rather gave, he discussed a knife that opened only once in ten attempts. (See Rather Dep. 43:12-44:6.) Rather specifically stated that such a knife was not one that the D.A’s office was "going to determine to be a gravity knife.” (Id. 44:07-45:2.) Plaintiffs did not pursue whether there were specific Native Leather knives tested fewer times with different outcomes that were nonetheless deemed gravity knives.
.Ritter also claims in his trial declaration that on many occasions he was able to open a Common Folding Knife by application of the Wrist-Flick .test where someone else was not. (Ritter Decl. ¶ 16.) The Court finds that, even accepting this testimony, the record supports consistent application of the Wrist-Flick test. As a whole, the record does not suggest that the manner of conducting the Wrist-Flick test is, in fact, different from officer to officer.
. Prior to receiving the subpoena, the only precaution Walsh took to ensure that she was not selling illegal gravity knives was a trip to the 6th precinct, in early 2000, to inquire about "Iceberg Army Navy,” another retail store that had its knife inventory "confiscated” (or so she had heard). (Walsh Dep. at 57:13-59:1.)
. Defendants submitted demonstrative videos of counsel opening certain of Native Leather's knives with application of the Wrist-Flick test. (Rather Decl. ¶¶ 53-55, 58-59, 63, 66; Exs. D-10, D-ll, D-14, D-15, D-18, D-20, D-21.)
. Lieutenant Luke, who is now retired, served as an officer in the New York Police Department for twenty-two years and has been involved in approximately one hundred and fifty arrests for possession of a gravity knife. (Luke Decl. ¶¶ 1, 3, 21.) Lieutenant Luke consistently and exclusively used the Wrist-Flick test to identify gravity knives over the course of his career. (Luke Decl. ¶ 28.) Lieutenant Luke estimates that he has personally tested between forty and fifty gravity knives. (Luke Decl. ¶ 24.) Based on his training and experience, Lieutenant Luke understands a gravity knife to be a folding knife that possesses two characteristics: the knife will open via gravity or the application of centrifugal force and, once open, the blade will lock into place automatically. (Luke Decl. ¶ 25.) Without exception, the gravity knives that Lieutenant Luke encountered during his career were folding knives. (Luke Decl. ¶ 24.) In Lieutenant Luke’s experience, the resistance in a folding knife such as the one carried by Perez can change over time, either through regular use or intentional modification. (Luke Decl. ¶ 30.) Lieutenant Luke never charged someone with possession of a gravity knife if the knife in question did not open after the first or second application of the Wrist-Flick test, nor would he charge someone with possession of a gravity knife if Lieutenant Luke could open the knife via the Wrist-Flick test but another officer could not. (Luke Decl. ¶ 31.)
. As explained by the Second Circuit, plaintiffs’ standing to bring the instant challenge is predicated on their desire "to engage in the very conduct that prompted defendants' prior enforcement actionjs].” Knife Rights, Inc., 802 F.3d at 385, 387 (emphasis added).
. Similarly, the Court finds that the statute is not “permeated with vagueness.” N.Y. State Rifle & Pistol Ass'n, Inc., 804 F.3d at 265; see City of Chicago v. Morales, 527 U.S. 41, 55, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (plurality). This is not to say, however, that the statute could not be improved upon. Many statutes that pass constitutional muster may nonetheless benefit from close attention to possible improvements. That is so here.
. The Court noted in its Findings of Fact that two NYPD officers applying the Wrist-Flick test a year before plaintiff Copeland’s arrest were unsuccessful in causing the blade of his knife to open. As the Court found above, however, the ability of Copeland's knife to open by application of the Wrist-Flick test by Detective Kyrkos immediately prior to his arrest, as compared to its inability to open a year earlier, was due to usage over time. | 07-25-2022 | [
"OPINION & ORDER KATHERINE B. FORREST, District Judge:' Plaintiffs John Copeland, Pedro Perez, and Native Leather, Inc. (“Native Leather”) assert an as-applied constitutional challenge to the validity of New York Penal Law §§ 265.00(5) and 265.01(1), which criminalize the possession of gravity knives (the “Gravity Knife Law” or “Gravity Knife Statute”). (See Amended Complaint ¶¶ 59-60, ECF No. 61.) The Gravity Knife Statute defines a gravity knife as “any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.” N.Y. Penal Law § 265.00(5). Defendants employ a functional test—referenced as the “Wrist-Flick test”—to determine whether a knife falls within the prohibitions of the Gravity Knife Law. Under the New York Penal Law, a person who possesses a gravity knife is “guilty of criminal possession of a weapon in the fourth degree.” N.Y.",
"Penal Law § 265.01(1). Plaintiffs contend that the definition of a gravity knife in the Gravity Knife Statute, as measured by the WrisUFlick test, is unconstitutionally vague in violation of the Fourteenth Amendment. Specifically, plaintiffs argue that the Gravity Knife Statute is unconstitutionally vague as applied to “Common Folding Knives,” which plaintiffs define as “folding pocket knives that are designed to resist opening from the closed position.” (Amended Complaint ¶1.) The core of plaintiffs’ challenge is that enforcement of the Gravity Knife Statute through use of the Wrist-Flick test prevents an individual from ever knowing whether a Common Folding Knife that they possess (or would like to possess) is an illegal gravity knife. This is so, accord*236ing to plaintiffs, primarily because the Wrisb-Flick test is inherently subjective and indeterminate in that outcomes of the test necessarily reflect personal characteristics of the tester such as skill and dexterity. In support .of their position, plaintiffs proffer various hypotheticals.",
"For example, plaintiffs argue that “[a] person’s ability to flick open a knife will vary based on degree of tiredness, injury, etc.... Suppose a person has a blister or cut on his strong hand, or has injured his hand or arm. That person will be entirely unable to perform the Wrist Flick [t]est, or his ability will be diminished.” Plaintiffs likewise argue that someone might be arrested for possession of a gravity knife if they encounter a strong and well rested police officer, whereas they might not be arrested if they encountered a weak and tired officer. Based on these and other hypotheticals, plaintiffs conclude that application of the Gravity Knife Law to Common Folding Knives is void for vagueness under the Fourteenth Amendment because no one can determine with any reasonable degree of certainty which Common Folding Knives are legal to possess and/or sell.",
"Plaintiffs assert that the Gravity Knife Law ought to prohibit only those knives that can open by the force of gravity alone, using as their prototypical example “German Paratrooper Knives.” After careful review and consideration, the Court determines that plaintiffs’ as-applied vagueness challenge fails and judgment must be entered for defendants. In reaching this determination, the Court hews closely to the facts relating to the particular plaintiffs now before the Court. As to these plaintiffs, the statute provided sufficient notice that their conduct was prohibited. With regard to plaintiffs’ claims of future harm due to alleged vagueness inherent in the Wrisb-Flick test, the Court finds that none of the plaintiffs has demonstrated that the many hypothet-icals that the parties have so vigorously debated is in fact reasonably likely to occur to him or her. Furthermore, the Court concludes that the Gravity Knife Law provides sufficiently clear standards for law enforcement, and that in any event, plaintiffs’ conduct fell within the core of the statute’s prohibitions.",
"1. PROCEDURAL HISTORY This case was initially filed on June 9, 2011. After a trip to the Second Circuit and back,1 the parties conducted discovery and proceeded to trial. The parties agreed to a trial proceeding that was largely on the papers. Plaintiffs presented affirmative evidence in the form of written submissions. Specifically, plaintiffs presented declarations from each of plaintiffs John Copeland, Pedro Perez, and Carol Walsh (for Native Leather); declarations from experts Bruce Voyles and Paul Tsujimoto; and a declaration from Douglas S. Ritter. Defendants also presented evidence in the form of written submissions.",
"Defendants presented declarations from Assistant District Attorney Dan Rather and the following members of the New York Police Department: Sergeant Tomas Acosta, Lieutenant Daniel Albano, Sergeant Noel Gutierrez, Detective Ioannis Kyrkos, and Lieutenant Edward Luke. The Court also received deposition designations for Captain Michael Tighe, Lieutenant Albano, Sergeant Acosta, Assistant D.A. Rather, Walsh, and Tsujimoto.2 *237In addition to receiving written submissions, the Court held a live evidentiary-hearing on June 16, 2016, which included a presentation by Douglas Ritter3 (subject to cross-examination) and a cross-examination of Assistant District Attorney Rather. Both sides also presented closing arguments. II.",
"FINDINGS OF FACT4 A. Statutory Framework 1. New York Penal Law §§ 265.00(5) and 265.01(1) Under the New York Penal Law, “[a] person is guilty of criminal possession of a weapon in the fourth degree when: (1) he or she possesses any ... gravity knife.” N.Y. Penal Law § 265.01(1). Criminal possession of a weapon in the fourth degree is a class A misdemeanor. N.Y. Penal Law § 265.01.",
"The statute defines a gravity knife as “any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.” N.Y. Penal Law § 265.00(5) (together with § 265.01(1), the “Gravity Knife Law” or “Gravity Knife Statute”).5 Thus, the Gravity Knife Statute consists of two separate requirements: (1) a knife must open by force of gravity or the application of centrifugal force, and (2) once the blade of the knife is released, it must lock in place by means of a button, spring, lever or other device. See N.Y. Penal Law § 265.00(5). To meet the first statutory requirement of the Gravity Knife Law, it is clear that a knife need not open by both gravity and the application of centrifugal force; if a knife opens by centrifugal force alone and the blade locks in place once released, the knife is an illegal gravity knife.",
"See U.S. Customs Serv., Region II v. Fed. Labor Relations Auth., 739 F.2d 829, 832 (2d Cir. 1984) (“When ‘or’ is inserted between two clauses, the clauses are treated disjunctively rather than conjunctively.”); see also Mizrahi v. Gonzales, 492 F.3d 156, 164 (2d Cir. 2007) (“It is a standard canon of statutory construction that words separated by the disjunctive [‘or’] are intended to convey different meanings unless the *238context indicates otherwise.”)- As described below, the Court finds that the Wrisb-Flick test measures whether a knife opens by centrifugal force. 2. The “Wrisb-Flick test” There is no dispute that the definition of a gravity knife, as drafted in the statute, is a functional one. To determine whether a particular knife meets that statutory definition, defendants utilize the “Wrist-Flick test.” The Wrisb-Flick test is just what its name suggests: using the force of a one-handed flick-of-the-wrist to determine whether a knife will open from a closed position. Both the statutory text6 and existing New York precedent make clear that the Wrist-Flick test measures whether a knife opens by centrifugal force.",
"Centrifugal force is defined as “the apparent force that is felt by an object moving in a curved path that acts outwardly away from the center of rotation.” Centrifugal force, Merriam-Webster Online Dictionary, https ://www.merriamwebster. com/ dictionary/centrifugal% 20force (last visited Dec. 22, 2016). At trial, plaintiffs’ counsel and Douglas Ritter both repeatedly sought to demonstrate what they purported was the Wrist-Flick test.7 The New York Court of Appeals recently confirmed that a knife that opens via the Wrist-Flick test meets the statutory definition of a gravity knife.8 See People v. Sans, 26 N.Y.3d 13, 17, 41 N.E.3d 333 (2015) (statement in criminal complaint that the defendant’s knife opened “with centrifugal force” conveyed that the officer “flicked the knife open with his wrist”); see also People v. Herbin, 86 A.D.3d 446, 927 N.Y.S.2d 54, 55-56 (1st Dep’t 2011) (statutory definition of a gravity knife, satisfied *239where “officers release the blade simply by flicking the knife with their wrists”); People v. Neal, 79 A.D.3d 523, 913 N.Y.S.2d 192, 194 (1st Dep’t 2010) (operability of knife conformed to statute where officer opened the knife “by centrifugal force, created by flicking his wrist”); Johnson v. New York, 1988 WL 96034, *1 n.1, 1988 U.S. Dist. LEXIS 9397, at *2 n.1.",
"(S.D.N.Y. Aug. 25, 1988) (“A ‘gravity knife’ is one in which the blade is exposed by a simple flick of the wrist in a downward motion, locking the blade into position.”). As the statutory text and above analysis illustrates, New York Penal Law § 265.00(5) employs a functional test to identify a gravity knife. “The intended use or design of the knife by its manufacturer is not an element of the crime and is irrelevant to the issue of whether the knife is a gravity knife.” People v. Fana, 23 Misc.3d 1114(A), 2009 WL 1098984, *3, 2009 N.Y. Misc. LEXIS 956, at *9 (N.Y. County Crim. Ct. 2009). By contrast, other Penal Law provisions incorporate the design of a weapon into their definitions. See, e.g., Penal Law § 265.00(11) (“ ‘Rifle’ means a weapon designed ... ”); § 265.00(12) (“ ‘Shotgun’ means a weapon designed ...”); § 265.00(14) (“‘Chuka stick’ means a weapon designed ...”); § 265.00(15-a) (“ ‘Electric dart gun’ means any device designed ... ”).",
"Furthermore, under the Gravity Knife Statute, a gravity knife is a per se illegal weapon: if a person possesses one, whether or not he knows that it is a gravity knife, he is in violation of § 265.01(1). See N.Y. Penal Law § 265.00(5). Throughout this case, plaintiffs have maintained that the WrisL-Flick test inappropriately expands the boundaries of the Gravity Knife Statute and that, in fact, gravity knives are and should be limited to a very specific subset of knives—those that are capable of opening solely as a result of gravity, that is, holding the knife upside down. According to plaintiffs, “Common Folding Knives”—which plaintiffs define as “folding pocket knives that are designed to resist opening from the closed position”—are not gravity knives.9 In support of this argument, plaintiffs point to the legislative history of the Gravity Knife Statute10 and have proffered expert opinions from Paul Tsujimoto, who is an expert in knife design,11 and Bruce Voyles, who has experience in the history of knives.12 *240Plaintiffs have also offered testimony from Douglas Rittér, who is the founder and Chairman of Knife Rights, Ine., a former plaintiff in this case.",
"Tsujimoto and Voyles purport to offer factual, not legal opinions. Yet, their opinions are primarily directed at how the Gravity Knife Statute should be interpreted in order to implement what they describe as the historical origins of gravity knives and the historical usage of the term “gravity knives.” Before proceeding further, the Court therefore notes that it could largely ignore Tsujimoto and Voyles’s opinions on relevancy grounds alone, as the legal interpretation of the Gravity Knife Statute is beyond the proper scope of their expertise. The Court nevertheless provides an overview of Tsujimoto and Voyles’s opinions, as plaintiffs rely heavily upon them.",
"These opinions do not alter the Court’s conclusion that the Wrist-Flick test appropriately applies centrifugal force under the Gravity Knife Statute to determine whether Common Folding Knives are illegal gravity knives. Tsujimoto opines that the Wrist-Flick Test “is not a true test for centrifugal force” but rather involves “a misinterpretation of the term ‘centrifugal force.’ ” (Tsujimoto Deck ¶¶ 44, 50.) Tsujimoto does not deny that the Wrist-Flick test employs the use of centrifugal force; he concedes that centrifugal force is “imparted during the initial arm and wrist movement.” (Id. ¶ 50.) Rather, Tsujimoto opines that “[i]t is th[e] sudden stopping of the blade and the inertia of the blade continuing to move, not centrifugal force, which opens the blade.” (Id. ¶ 51) According to Tsujimoto, the statute covers only knives that open without “the sudden stopping of the arm and wrist” that Tsujimoto alleges is involved in the “second part of the [Wrist-Flick test].” (⅛) Tsujimoto concludes that the statute covers only knives similar to German Paratrooper Knives. (Tsujimoto Deck ¶ 26.)",
"Tsujimoto states that this is “the understanding that knife companies have had since the 1950’s.” (Id. ¶¶ 11-26, 52.) Voyles reaches a similar conclusion.13 (Voyles Deck ¶¶ 8-10, 16.) Voyles bases his opinion on his “more than 35 years in the cutlery trade” and his review of historical references to gravity knives. (Id. ¶ 10, 15-24, 37-40.) Tsujimoto explains that, by design, the German Paratrooper Knife easily slides out from the handle based on gravity alone—that is, holding it upside down causes the knife to slide out. (Tsujimoto Deck ¶ 26; see also Voyles Deck ¶ 16.) Tsujimoto further explains that a German Paratrooper Knife also easily slides out from the handle if one were to hold the knife handle pointing outward, away from their body, and rotate the arm around the shoulder, such as in a chair seat so that the individual spins around on the chair frame (what Tsujimoto describes as the “Swivel Chair Test”).",
"(Tsujimoto Deck ¶¶ 22, 51.) Tsujimoto opines that the type of centrifugal force intended by the Gravity Knife Statute must be only that which is necessary to open a German Paratrooper Knife via the Swivel Chair Test. (Jd. ¶ 51.) Voyles also reaches a similar conclusion. (See Voyles Deck ¶ 8-10.) The Court notes that despite this testimony from Tsujimoto and Voyles, plaintiffs did not argue that the Gravity Knife Statute is unconstitutionally vague because it does not involve *241the application of centrifugal force to open a knife. In fact, plaintiffs forfeited any such argument. (Plaintiffs’ Reply/Rebuttal Trial Brief, Objections, and Opposition to Motion to Strike/Motion in Limine (“Reply Mem.”), EOF No.",
"153, at 12. )14 Furthermore, how a German Paratrooper Knife functions is a point that defendants do not contest but assert is irrelevant. The Court agrees. Relatedly, plaintiffs spent a fair amount of time on evidence regarding “bias” as it relates to the blade of a knife: “bias toward opening” and its opposite, “bias toward closure.” Tsujimoto explains that switchblades and German Paratrooper Knives are examples of knives with a “bias toward opening.” (Tsujimoto Decl. ¶ 28; see also Voyles Decl. ¶ 14; Ritter Decl. ¶ 15.) In contrast, according to Tsujimoto, “folding knives” (such as slip joints, lock backs, and liner locks) have a “bias toward closure.” (Tsujimoto Decl. ¶ 29.)",
"Different types of locking mechanisms—including liner locks and lock backs—correspond with differences in resistance to opening. (Id. ¶¶ 35, 46(1). )15 Knives which have a bias toward closure feature blades that are held in the closed position by a spring or other mechanism, and the blade will remain in the closed position until the blade is manipulated to overcome the closing tension. (Id. ¶ 34.) Plaintiffs have submitted evidence that differences in the manufacturing process can result in differences between how knives of the same brand and model open. (Tsujimoto Decl. ¶ 46(2).) Defendants did not contest this evidence. (See Rather Decl. ¶ 23.)",
"It is also clear that use of a knife over time may create differences in how the same knife opens at one point in time versus another. (Tsujimoto Decl. ¶46(3).) Loosening in joints and screws, resulting from, inter alia, use over time, may result in a knife opening by centrifugal force with a Wrist-Flick when it had not previously. By the same token, a knife that once opened with application of the Wrist-Flick test may not later. For example, if the knife has been stored continuously in a cold or arid location, or the knife has been exposed to moisture causing corrosion on the blade or in the handle. (Rather Decl.",
"¶ 24.) Tsujimoto concludes that folding knives with a “bias toward closure” will not open with what he describes as “centrifugal force” (i.e., via the Swivel Chair Test), and therefore, in his opinion, should not meet the statutory definition of a gravity knife. (Id. ¶¶ 34, 49.) These opinions are here, again, largely irrelevant to the issues before the Court. Despite plaintiffs’ vigorous arguments as to how they would like to reinterpret the Gravity Knife Statute,16 basic statutory interpretation is a legal, not factual, question. The application of centrifugal force through the Wrist-Flick test may result in the opening of a knife with bias toward opening or closure. While the *242knife design industry may differentiate between knives just as Tsujimoto and Voyles state, those opinions do not mean that the legal definition of a gravity knife under the Gravity Knife Statute tracks those views. 3.",
"Enforcement While being trained at the Police Academy, officers of the New York Police Department (“NYPD”) are instructed on the Penal Law definition of a gravity knife and the charges to be imposed for its possession. (Acosta Dep. at 28:06-30:09; Gutierrez Decl. ¶ 15; Kyrkos Decl. ¶ 14.) The law enforcement personnel involved in testing the knives possessed by plaintiffs here had such training. The evidence at trial made it clear that the same Wrisb-Flick test has been used by the NYPD to identify gravity knives since the statute’s effective date. The evidence supports consistent, continued application of this historical practice under the current New York District Attorney, Cyrus Vance, Jr. New police officers are trained to use the same test that officers were trained to use decades ago. Moreover, there is no evidence that the manner of conducting the Wrist-Flick test is, in fact, different from officer to officer.17 Finally, there is no evidence in the record that two different police officers—each applying the Wrist-Flick test to a knife (either plaintiffs’ or any other person’s) on the same occasion—had different outcomes.18 In other words, while plaintiffs have described hypothetical scenarios that are possible, they did not introduce sufficient evidence for the Court to find that any of the scenarios are probable as to plaintiffs or anyone else.",
"There was no evidence, for instance, that a strong or well rested officer was once able to open a knife with the Wrist-Flick test while a weaker or tired officer was not; there was likewise no evidence that dexterity resulted in different outcomes.19 In short, the evidence supports a known, consistent functional test for determining whether a knife fits the definition of a “gravity knife” and does not support inconsistent outcomes under that test. Prosecutions charging gravity knife possession constitute a very small fraction of the total number of misdemeanor prosecutions commenced in New York County each year. (Rather Decl. ¶¶ 33-34.) The record fully supports that arrests and prosecutions for possession of a gravity knife only occur once a knife has opened in response to the Wrist-Flick test.",
"Prosecutions are not—and were not with regard to *243plaintiffs here—initiated based on a theoretical possibility that a knife could, might, or should open in response to a Wrist-Flick; they are commenced only if and when a knife does. (Rather Deck ¶ 25.) B. The Plaintiffs 1. Native Leather Native Leather is a corporation organized under New York law that operates a retail store (with the same name) in Manhattan. (Walsh Decl. ¶ 2.) The retail store sells mostly men’s accessories and leather goods, including, inter alia, folding pocket knives. (Id.) Carol Walsh is the owner and President of Native Leather. (Walsh Deck ¶1.) In 2010, during an investigation by the New York District Attorney’s Office, investigators purchased knives from Native Leather and subjected them to the Wrist-Flick test. Upon application of the Wrists Flick test, investigators determined that Native Leather was, in fact, offering gravity knives for sale to the public.",
"(Rather Deck ¶ 42.) The D.A.’s Office then issued a subpoena to Native Leather, which required it to produce those knives in its inventory that met the statutory definition of a gravity knife under the New York Penal Law. (Ex. P-1; see Rather Dep. at 16:11-19, 37:8-23; Walsh Deck ¶4.) After she received the subpoena, Walsh reviewed the Gravity Knife Statute and understood that she could not sell knives that met the description of what “the DA’s Office was looking for,” but that she could sell anything outside of that description. (Walsh Dep. at 9:14-22; see also id. at 57:4-12.) Even though she had been in business for a number of years, Walsh was not certain that she had ever read the definition of a gravity knife in the Penal Law before this time.",
"(Walsh Dep. at 57:4-12. )20 In response to the subpoena, Walsh collected and provided to the D.A.’s Office “almost every folding knife that [she] thought could be opened with one hand, with or without gravity or centrifugal force,” for a total of over three hundred knives. (Walsh Dep. at 64:17-65:10.) The D.A.’s Office subjected each knife to the WrisL-Flick test. Assistant D.A. Rather either personally tested each knife or observed other members of the District Attorney’s staff personally test each knife. (Rather Deck ¶ 45.) A number opened. It appears that one or more of those knives opened only after multiple attempts of the WrisKFlick test by different individuals. (Rather Dep. 43:15-44:06.) However, the record contains significant ambiguity on this point, and in particular, regarding the number of WrisWHick attempts applied to any particular knife, whether two different individuals had different outcomes, and whether in all events knives requiring multiple attempts were designated as gravity knives or were returned to Native Leather. In short, the Rather testimony on this issue was never clarified by plaintiffs and is therefore useless as proof of any particular point with respect to plaintiffs’ specific knives.",
"For instance, during questioning regarding Native Leather his deposition, plaintiffs asked D.A. Rather: “And did you ever have the circumstance arise where a knife passed the functional test with one person, but failed it with another?” (Rather Dep. 43:15-17.) D.A. Rather responded: “In a fashion. Gravity knives by law don’t have to open each and every time.... ” (Rather Dep. 43:18-20.) Plaintiffs continued to question D.A. Rather but framed their questions as hypotheticals instead of *244focusing specifically on the events that occurred with regard to Native Leather. The D.A.’s Office retained those knives submitted by Native Leather that the D.A.’s office determined, by application of the WrisWFlick test, to be illegal gravity knives.",
"(Rather Dep. at 39:16-40:17, 41:24-43:11; Rather Decl. ¶¶ 45-46; Walsh Dep. at 65:11-23.) None of the knives that Native Leather provided to the D.A.’s Office were German Paratrooper Knives. (Rather Decl. ¶ 48.) Each of the knives that functioned as a gravity knife could also be described as a type of folding knife.21 (Rather Decl. ¶ 47.) On June 15, 2010, Walsh entered into a deferred prosecution agreement with the D.A.’s Office. (Ex. P-2; see Walsh Decl. ¶ 12.) She agreed, inter alia, not to sell gravity knives and to personally test Native Leather’s inventory for gravity knives.",
"(Walsh Decl. ¶¶ 13,15.) Walsh tests knives that she determines need testing based on her experience selling knives for “many, many years.” (Walsh Dep. at 23:9-24:5; see also id. at 66:21-67:4.) For example, Walsh testified that a knife that does not lock in the open position—such as a Swiss Army knife—does not need to be tested because there is no way it will lock automatically upon opening. (Walsh Dep. at 23:14-24.) Similarly, she testified that a knife that locks in the closed position does not need to be tested because there is no way it could be opened with one hand. (Walsh Dep. at 23:14-21.) Walsh began testing Native Leather’s knives herself in September 2010.",
"(Walsh Dep. at 42:2-12.) After identifying which knives need to be tested, Walsh applies the Wrist-Flick test. (Walsh Dep. at 24:15-25:10.) If Walsh can’t open a particular knife using the WrisL-Flick test but determines that a “stocky [man]” could open the knife with a Wrist-Flick, she rejects it and does not place it in her inventory for sale. (Walsh Dep. at 21:15-25:10.) Walsh testified that she understands that certain knives, while not designed to open by the application of gravity or centrifugal force, may nonetheless function as gravity knives. (Walsh Dep.",
"at 67:16-68:16.) As part of the deferred prosecution agreement, Walsh also agreed to the appointment of an independent monitor to inspect the books, records, and inventory of Native Leather. (Walsh Decl. ¶ 13.) Kroll Inc. was selected by the D.A.’s Office to fulfill that role. (Walsh Decl. ¶ 17; Rather Dep. at 35:13-15.) In May 2011, Kroll employees tested certain of Native Leather’s knives employing the WrisL-Flick test. (Walsh Decl. ¶20.) Walsh was present at the time.",
"According to Walsh, “if the blade swung out of the knife, it was loose enough to be called a gravity knife”; conversely, “if the blade was snug into the handle [and] it wouldn’t come out,” the Kroll employees would not classify the knife as a gravity knife. (Walsh Dep. at 18:2-19:3.) 2. John Copeland John Copeland is a resident of Manhattan. In October 2009, Copeland purchased a Benchmade brand knife at Paragon Sports in Manhattan. (Copeland Decl. ¶ 3.) In his trial declaration, Copeland states that shortly after purchasing the knife, he showed it to two different NYPD officers and that both officers applied the Wrist-Flick test to the knife.",
"(Copeland Decl. ¶ 5.) Copeland testified that because both officers could not open the knife using the WrisL-Flick test, they told him that the knife was legal and returned it to him. (¾) *245Thereafter, Copeland regularly used the knife in connection with his work as a painter and sculptor. (Copeland Decl. ¶¶ 1, 4.) A year after his initial purchase of the knife, Copeland had the knife clipped to his pocket and was stopped in Manhattan by Sergeant Noel Gutierrez and Detective Ioannis Kyrkos of the NYPD. (Copeland Decl. ¶ 7; Gutierrez Decl.",
"¶¶ 4-5, Kyrkos Decl. ¶¶ 4-5.) According to Sergeant Gutierrez and Detective Kyrkos, Copeland told the officers that he used the knife in connection with his employment as a mechanic. (Gutierrez Decl. ¶ 7; Kyrkos Decl. ¶ 9.) In Copeland’s presence, Detective Kyrkos applied the Wrist-Flick test to Copeland’s knife by gripping the handle of the knife and flicking his wrist in a downward motion. (Gutierrez Decl. ¶¶ 8-9, Kyr-kos Decl. ¶¶ 7-8.) The knife opened on the first attempt and the blade locked into place. (Gutierrez Decl. ¶8, Kyrkos Decl. ¶ 7.) The officers then placed Copeland under arrest for Criminal Possession of a Weapon in the Fourth Degree in violation of New York Penal Law § 265.01(1). (Gutierrez Decl. ¶ 11, Kyrkos Decl.",
"¶ 11.) Prior to the events giving rise to his arrest for gravity knife possession, Copeland knew that the New York Police Department employed the Wrist-Flick test to identify illegal gravity knives. (Copeland Decl. ¶ 5.) The Court finds that Copeland’s knife met the definition of a gravity knife and the ability of Copeland’s knife to open by application of the Wrist-Flick test immediately prior to his arrest, as compared to its inability to open a year earlier, was due to usage over time. At the precinct, Copeland was given a Desk Appearance ticket and was then released. (Copeland Decl. ¶ 7, Gutierrez Decl.",
"¶¶ 11-12.) On November 3, 2010, Sergeant Gutierrez signed a criminal court complaint charging Copeland with possession of a gravity knife. (Gutierrez Decl. ¶¶ 13, 22-25; Ex. D-3.) On January 26, 2011, Copeland accepted an Adjournment in Contemplation of Dismissal. (Copeland Decl. ¶ 9.) Both Sergeant Gutierrez and Detective Kyrkos submitted trial declarations stating that they apply the Wrisb-Flick test to determine whether a knife is a gravity knife. (Gutierrez Decl. ¶¶ 13, 17; Kyrkos Decl. ¶¶ 13, 16-17.)",
"Both officers testified that they hold the handle of a knife and flick their wrist to apply centrifugal force—if the blade exits the handle and locks into place, the knife is a gravity knife. (Gutierrez Decl. ¶ 17; Kyrkos Decl. ¶ 17.) Sergeant Gutierrez and Detective Kyrkos learned how to apply the Wrist-Flick test during their time as probationary officers by observing other officers use the test, as well as through their own firsthand experience during that time. (Gutierrez Decl. ¶ 16; Kyrkos Decl. ¶ 15.) Both Sergeant Gutierrez and Detective Kyrkos have consistently, and exclusively, used the Wrist-Flick test to identify gravity knives over the course of their careers. (Gutierrez Decl. ¶¶ 17-18, Kyrkos Decl. ¶¶ 16-18.) In his trial declaration, Copeland states that he will not purchase a folding knife in New York similar to the Benchmade brand knife that he was previously arrested for because he fears future arrest and prosecution.",
"(Copeland Dec. ¶ 11.) 3. Pedro Perez Pedro Perez also resides in Manhattan. In approximately April 2008, he purchased a Gerber brand folding knife from a retailer in Manhattan. (Perez Decl. ¶ 4.) The knife had a stud mounted on the blade that enabled the user to open it with one hand by “swivel[ing]” the blade open with his thumb. (Perez Decl. ¶ 5.) Perez, who is a “purveyor of fine arts,” regularly used the knife to cut canvas and open packaging. (Perez Decl. ¶¶ 1, 3, 5.) Two years after Perez purchased the knife, on April 15, 2010, Lieutenant Luke observed the knife clipped to the pocket of Perez’s pants and *246stopped Perez inside a New York City subway station.",
"(Perez Decl. ¶ 6; Luke Decl. ¶¶ 4-11.) Police Officers Julissa Sanchez and Ray Dejesus were present with Lieutenant Luke when he stopped Perez. (Luke Decl. ¶ 4-11.) All three officers were assigned to the Anti-Crime Unit. (Luke Decl. ¶4.) In Perez’s presence, Lieutenant Luke applied the WrisWFlick test to Perez’s knife by gripping the handle of the knife and flicking his wrist in a downward motion away from his body.22 (Luke Decl. ¶ 12.) The knife opened on the first application of the Wrist-Flick test and the blade locked in place automatically. (Luke Decl. ¶ 13.) Perez was then arrested. (Luke Decl. ¶ 15.) The arrest was assigned to Police Officer Angel Guerrero, who completed a Desk Appearance ticket charging Perez with possession of a gravity knife in violation of Penal Law § 265.01. (Luke Decl. ¶ 16; see also Perez Decl. ¶ 7.)",
"The Court finds that Perez’s knife met the definition of a gravity knife. In his trial declaration, Perez states that the officers who arrested him could not open Perez’s knife using the Wrist-Flick test but inexplicably charged him with possession of a gravity knife because it was “theoretically” possible to do so. (Perez Decl. ¶ 7.) The Court has no basis to credit this statement over the sworn statement of Lieutenant Luke, who was present on the scene at the time of the arrest. Perez did not contest the charge and accepted an Adjournment in Contemplation of Dismissal and agreed to perform seven days of community service. (Perez Decl. ¶ 8.) Indeed, the Court views this fact as some evidence that Perez understood his knife functioned as a gravity knife. But, in addition, the plaintiff carries the burden of proof in this matter and so when weighing statements of equal credibility, a tie goes to the defendants.",
"In his trial declaration, Perez states that he will not purchase a folding knife in New York similar to the Gerber brand knife that he was previously arrested for because he fears future arrest and prosecution. (Perez Dec. ¶ 10.) III. CONCLUSIONS OF LAW As the factual findings above detail, each of plaintiffs’ knives met both of the statutory requirements under the Gravity Knife Law. The knives which plaintiffs possessed at the time of their arrests (or, in the case of Native Leather, those retained by the D.A.’s Office after compliance with the subpoena), opened with application of the Wrist-Flick test. Upon opening, the blades of such knives locked in place.",
"*247Plaintiffs now assert an as-applied constitutional challenge to the validity of the Gravity Knife Statute. The Gravity Knife Statute has been subject to a number of previous vagueness challenges, including as to the definitional provision. See, e.g., Herbin, 86 A.D.3d at 446-447, 927 N.Y.S.2d 54. Challenges to the constitutionality of a criminal statute on the basis of vagueness are brought pursuant to the guarantee in the Fourteenth Amendment that “No State shall ... deprive any person of life, liberty, or property, without due process of law[. ]” U.S. Const. Amend.",
"XIV, § 1. “[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926); accord Farrell v. Burke, 449 F.3d 470, 485 (2d Cir. 2006). A law that burdens constitutional rights or that imposes criminal penalties must meet a higher standard of specificity than a law that merely regulates economic concerns. Vill.",
"of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982); see also N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 265 (2d Cir. 2015), cert. denied sub nom. Shew v. Malloy, — U.S.—, 136 S.Ct. 2486, 195 L.Ed.2d 822, 195 (2016). This higher standard applies here because the Gravity Knife Law at issue imposes criminal penalties. Based on these principles, the void-for-vagueness doctrine requires that “a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” N.Y. State Rifle & Pistol Ass’n, Inc., 804 F.3d at 265 (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct.",
"1855, 75 L.Ed.2d 903 (1983)). Accordingly, “[a] statute can be impermissi-bly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.” VIP of Berlin, LLC v. Town of Berlin, 593 F.3d 179, 186 (2d Cir. 2010) (quoting Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct.",
"2480, 147 L.Ed.2d 597 (2000)). Throughout this litigation, plaintiffs have consistently characterized their claim as an “as-applied” challenge to the Gravity Knife Statute. (See, e.g., Amended Complaint ¶ 60) (“The Due Process Clause of the Fourteenth Amendment invalidates Penal Law §§ 265.01(1) and 265.00(5) as void for vagueness, as applied to Common Folding Knives that are designed to resist opening from their folded and closed position.”); Pltfs’ PFOF, at 43 (“Plaintiffs’ claim is straightforward. Plaintiffs assert that application of the Gravity Knife Law to Common Folding Knives is void for vagueness under the Fourteenth Amendment because no one can determine with any reasonable degree of certainty which Common Folding Knives are legal to possess and/or sell.”) This characterization, however, “is in significant tension with [plaintiffs’] general failure to focus narrowly on the actual conduct in which they are engaged or would like to be engaged.” Expressions Hair Design v. Schneiderman, 808 F.3d 118, 130 (2d Cir.",
"2015), cert. granted, — U.S.—, 137 S.Ct. 30, 195 L.Ed.2d 902 (2016). “A facial challenge is an attack on a statute itself as opposed to a particular application.” City of Los Angeles, Calif. v. Patel, — U.S. —, 135 S.Ct. 2443, *2482449, 192 L.Ed.2d 435 (2015). Such challenges “are generally disfavored,” Dickerson v. Napolitano, 604 F.3d 732, 741 (2d Cir. 2010), and are “the most difficult ... to mount successfully.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Outside of the First Amendment context, a facial challenge generally must show that “no set of circumstances exits under which the [law] would be Valid.” Dickerson, 604 F.3d at 743 (alteration in original) (quoting Salerno, 481 U.S. at 745, 107 S.Ct. 2095); see Vill. of Hoffman Estates, 455 U.S. at 497, 102 S.Ct. 1186. In contrast, an as-applied challenge requires that a plaintiff show that the challenged statute is unconstitutional when applied to the particular facts of his or her case.",
"See Farrell, 449 F.3d at 486; see also Dickerson, 604 F.3d at 745 (“To successfully make an as-applied vagueness challenge, the plaintiff must show that section 14-107 either failed to provide them with notice that the possession of their badges was prohibited or failed to limit sufficiently the discretion of the officers who arrested them under the statute.”) (emphasis in original). As noted above, plaintiffs frame their challenge to the Gravity Knife Statute as an applied challenge to all Common Folding Knives—defined by plaintiffs as knives that are “designed to resist opening from the closed position.” Plaintiffs have not narrowed their challenge, however, to their specific conduct or specific Common Folding Knives (i.e. those that prompted the previous enforcement actions against plaintiffs).23 (See, e.g., Pltfs’ PFOF at 1 (“[N]o-one can determine any longer whether a particular knife in their possession will be deemed illegal or prohibited”); Pltfs’ PFOF at 53 ¶ 55 (“At its core, this entire case comes down to one simple question. How can a person draw the conclusion that a given locking, folding knife (Common Folding Knife) can never be flicked open by anyone? No one can ever draw that conclusion.”)) In this way, plaintiffs’ challenge resembles a pre-enforcement facial challenge. See N.Y., State Rifle & Pistol Ass’n, Inc., 804 F.3d at 265 (“Because plaintiffs pursue this ‘pre-enforcement’ appeal before they have been charged with any violation of law, it constitutes a ‘facial,’ rather than ‘as-applied,’ challenge.”) This has caused some confusion in this case, which the Court sought to address during the closing-arguments.",
"In all events, for the reasons described below, plaintiffs’ challenge fails whether it is considered an as-applied challenge or a facial challenge. On the record before it, the Court concludes that the Gravity Knife Statute was, and will continue to be, constitutionally applied to plaintiffs. This determination necessarily means that the Gravity Knife Statute is not unconstitutional in all of its applications (i.e. on its face).24 The Court finds that none of the plaintiffs has demonstrated that the many hypothetieals the parties have so vigorously debated are in fact reasonably likely to occur to him or her.",
"A. Notice “The first way that a law may be unconstitutionally vague as applied to *249the conduct of certain individuals is ‘if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct' it prohibits.’ ” VIP of Berlin, LLC, 593 F.3d at 187 (quoting Hill, 530 U.S. at 732, 120 S.Ct. 2480). In determining whether a statute fails to provide people of ordinary intelligence with a reasonable opportunity to understand what conduct it prohibits, courts look to see whether individuals had fair notice or warning of such prohibitions. Hill, 530 U.S. at 732, 120 S.Ct. 2480; see VIP of Berlin, LLC, 593 F.3d at 187. The Court asks whether “the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” VIP of Berlin, LLC, 593 F.3d at 187; see also Rubin v. Garvin, 544 F.3d 461, 467 (2d Cir. 2008).",
"To comply with the notice element requires that “[the] statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant’s conduct was criminal.” Mannix v. Phillips, 619 F.3d 187, 197 (2d Cir. 2010) (quotation marks omitted). The standard is objective and it is therefore irrelevant “whether a particular plaintiff actually received a warning that alerted him or her to the danger of being held to account for the behavior in question.” Dickerson, 604 F.3d at 745. “[T]he test does not demand meticulous specificity in the identification of the proscribed conduct.” United States v. Coppola, 671 F.3d 220, 235 (2d Cir. 2012) (quotation omitted). Only an “unexpected and indefensible” interpretation of a statute that gives a defendant “no reason to even suspect that his [or her] conduct might be within its scope” will violate the notice element. United States v. Smith, 985 F.Supp.2d 547, 588 (S.D.N.Y. 2014) (quotations omitted); see Mannix, 619 F.3d at 199 (rejecting vagueness claim where New York courts had previously ruled that conduct similar to the defendants’ satisfied the elements of the challenged statute); see also Smith, 985 F.Supp.2d at 588 (“[I]t is not only the language of a statute that can provide the requisite fair notice; judicial decisions interpreting that statute can do so as well”). The Court finds that plaintiffs’ had adequate notice that their conduct was prohibited under the Gravity Knife Statute. Each of plaintiff Copeland and Perez’s knives opened on the first Wrist-Flick test applied.",
"The knives confiscated from plaintiff Native Leather also opened by application of the Wrist-Flick test. As the Court has already explained, it is clear from the statutory text that the Wrist-Flick test involves the use of centrifugal force. Furthermore, the New York Court of Appeals, as well as lower New York courts and juries have all found the existence of centrifugal force based on the Wrist-Flick test. See, e.g., Sans, 26 N.Y.3d at 17, 19 N.Y.S.3d 468, 41 N.E.3d 333; Herbin, 927 N.Y.S.2d 54; Neal, 79 A.D.3d 523, 913 N.Y.S.2d 192, 194 (1st Dep’t 2010). Both the statutory text and these judicial decisions provided plaintiffs with the requisite notice that their conduct-was prohibited.",
"In support of their position, plaintiffs have proffered numerous hypotheticals throughout this litigation. For example, plaintiffs argue that “[a] person’s ability to flick open a knife will vary based on degree of tiredness, injury, etc.... Suppose a person has a blister or cut on his strong hand, or has injured his hand, or arm. That person will be entirely unable to perform the Wrist Flick [t]est, or his ability will be diminished.” (Reply Mem. at 7-8.) Plaintiffs also imagine a situation where someone buys a knife, tests such knife inside the store and the knife fails the Wrist-Flick test, but then exits the store moments later where an officer is able to successfully perform the Wrist-Flick test to the same knife. (See June 16, 2016, Tr., *250EOF No.",
"191, at 25:07-21.) Plaintiffs claim that no one possessing a folding knife “can ever be sure he possesses a legal pocket knife versus an illegal gravity knife, because the test results are highly dependent on the strength, dexterity, skill, and training of the individual employing the test, the particular specimen of the knife, and other highly variable and uncertain characteristics.” (Id.) Similarly, plaintiffs argue that “there is no number of people a person can consult to determine that his Common Folding Knife is not an illegal gravity knife, because no matter how many individuals fail to flick it open, the very next person might be able to do so, and the person in possession of that knife will be subject to arrest and prosecution.” (Pltfs’ PFOF, at 47 ¶ 19.)",
"With regards to Copeland and Perez, plaintiffs claim that “no matter how many times [they] tr[y] and fail[ ] to flick a folding knife open, as long as any police officer, anywhere, at any time in the future can flick the knife open using the technique the police use to test folding knives, [they] would be subject to arrest.” (Pltfs’ PFOF at 19 ¶ 55, 21 ¶ 64.)",
"Defendants assert, with effect, that the many interesting hypotheticals that plaintiffs have described are just that—hypo-theticals. Ultimately, according to defendants, the particular plaintiffs before the Court bear the burden of proving that the statute is unconstitutional as to them, and this plaintiffs have not done. See VIP of Berlin, LLC, 593 F.3d at 189 (noting that the “pertinent issue [ ] is not whether a reasonable person ... in general” would know what the statute prohibits, but rather whether a reasonable person in the plaintiffs specific circumstance would know that their conduct was prohibited). The Court agrees. Despite the various hypo-theticals raised by plaintiffs, there is no evidence that any of the plaintiffs tried but were unable to open their knives by application of the Wrist-Flick test.25 Nor is there evidence that the officers who arrested plaintiffs Copeland and Perez, as well as those individuals at the D.A.’s Office who tested the knives confiscated from plaintiff Native Leather, possessed any special strength, skill, or dexterity. “What renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is.” United States v. Williams, 553 U.S. 285, 306, 128 S.Ct.",
"1830, 170 L.Ed.2d 650 (2008). The Gravity Knife Statute provides clear notice of the “incriminating fact” to be proven—namely, the blade of the knife must open and lock into place in response to gravity or centrifugal force—and the statute does not run afoul of the Fourteenth Amendment simply because the owner claims “difficultly]” determining whether that fact has been proven. In an analogous case, the Supreme Court rejected a vagueness challenge to a statute that criminalized the mailing of firearms that “could be concealed on the person.” United States v. Powell, 423 U.S. 87, 88, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975).",
"The defendant, a female, was convicted for mailing a sawed-off shotgun that was twenty-two inches in length. Id at 93, 96 S.Ct. 316. The statute did not specify whether the “person” against whom to measure capability of concealment was to be “the person mailing the firearm, the *251person receiving the firearm, or, perhaps, an average person, male or female, wearing whatever garb might be reasonably appropriate, wherever the place and whatever the season.” Id. (quotation omitted). Attributing the “commonsense meaning” to the statute that the person would be of “average” stature and dress, the Court upheld the statute and further noted that the defendant, in mailing the shotgun, assumed the risk that a jury would conclude that her conduct fell within the statute.",
"Id. at 93-94, 96 S.Ct. 316. New York’s Gravity Knife Law criminalizing knives that have “a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force” gives no less adequate notice—and, as discussed below, no less sufficient standards for enforcement—than a law that proscribes the mailing of a “concealable firearm.” Plaintiffs assert that the current District Attorney, Cyrus Vance, Jr., and the City have moved away from an interpretation of the Gravity Knife Statute that had been enforced with “clarity and predictability” for fifty years to one that treats “nearly any ordinary folding knife as an illegal ‘gravity knife.’ ” (Pltfs’ PFOF at 1.) According to plaintiffs, this alteration of a decades-old interpretation has led to unconstitutional unpredictability and “no-one can determine any longer whether a particular knife in their possession will be deemed illegal or prohibited.” (Id.) The record contradicts these arguments, however.",
"As noted, the evidence supports consistent, continued 'application of Wrist-Flick test. As defendants asserted, that same application was applied to plaintiffs, and there is no factual basis to believe that it will not be applied similarly to plaintiffs in the future. B. Arbitrary and Discriminatory Enforcement “The second way in which a statute can be found unconstitutionally vague is if the statute does not ‘provide explicit standards for those who apply it’ ” in order to avoid arbitrary and discriminatory enforcement. VIP of Berlin, LLC, 593 F.3d at 191 (quoting Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir. 2007)). Having concluded that the Gravity Knife Statute provided plaintiffs with sufficient notice, the Court asks: whether “(1) the ‘statute as a general matter provides sufficiently clear standards to eliminate the risk of arbitrary enforcement;’ or (2) ‘even in the absence of such standards, the conduct at issue falls within the core of the statute’s prohibition, so that enforcement before the court was not the result of the unfettered latitude that law enforcement officers and factfinders might have in other, hypothetical applications of the statute.’ ” Id.",
"(quoting Farrell, 449 F.3d at 494); see also Dickerson, 604 F.3d at 748. For largely the same reasons that the statute gave plaintiffs sufficient notice, on the record before the Court, the Court concludes that the' Gravity Knife Statute provides sufficiently clear standards. There is no evidence of any arbitrary and discriminatory enforcement of the Gravity Knife Law. To the contrary, the record contains ample evidence that NYPD officers are trained in an appropriate manner on the correct definition of a gravity knife under applicable law. The record fully supports that the NYPD generally, and with respect to plaintiffs here, apply that definition via the Wrisb-Flick test in a consistent manner. Again, plaintiffs assert that the Wrist-Flick test is “subjective, variable and indeterminate.” (Pltfs’ PFOF at 3.) According to plaintiffs, the Wrist-Flick test allows for the possibility that different units of the same model knife could have different legal statuses: one unit could pass the Wrist-Flick test (e.g. not open) and be deemed lawful; another unit could fail and *252be deemed to be a gravity knife and therefore unlawful.",
"Or, worse still, if two different people perform the test one after another, with the first Wrisk-Flick test failing to open the blade and the second succeeding, the same knife, tested at relatively the same time, could be both a lawful folding knife and an unlawful gravity knife. (Id.) Similarly, plaintiffs argue: “If a person encounters an NYPD officer on a day the officer is rested and strong, he may be arrested for possession of a gravity knife, while another person may encounter the same officer at the end of his shift when he is tired. Both individuals could be in possession of identical knives, yet one could be arrested and the other not, merely due to the officer’s physical state at the time.” (Id. at 8.)",
"Again, the Court emphasizes that the various hypotheticals plaintiffs present are not supported by the record. Rather, the record establishes that NYPD officers are trained in an appropriate manner and apply the Wrist-Flick test in a consistent manner. If one of the many hypotheticals that plaintiffs describe does indeed arise, plaintiffs “could bring an ‘as applied’ vagueness challenge, grounded in the facts and context of [that] particular set of charges.” N.Y. State Rifle & Pistol Ass’n, Inc., 804 F.3d at 266. The hypotheticals plaintiffs raise cannot, however, support their challenge here. See id. Alternatively, even a statute that provides “what may be unconstitutionally broad discretion if subjected to a facial challenge” may still be upheld on an as-applied challenge “if the particular enforcement at issue [is] consistent with the core concerns underlying the [statute] such that the enforcement did not represent an abuse of the discretion afforded under the statute.” Dickerson, 604 F.3d at 748 (citations and internal quotation marks omitted). Here, plaintiffs’ conduct plainly fell within the core of the Gravity Knife Statute. As previously noted, plaintiff Copeland and Perez’s knives opened on the first application of the Wrist-Flick test.",
"And plaintiffs did not adduce evidence regarding how many applications of the Wrists Flick test were necessary to open those knives confiscated from native leather that did not open on the first application of the Wrist-Flick test. Furthermore, the officers who arrested plaintiffs Copeland and Perez, as well as those individuals at the D.A.’s Office who tested the knives confiscated from plaintiff Native Leather, were nothing but average in all relevant respects and did not possess any special strength, skill, or dexterity. Prohibiting knives that open by the use of centrifugal force in the manner that plaintiffs’ knives opened falls squarely within the core concerns underlying the Gravity Knife Statute. Even if the Gravity Knife Statute does not provide clear enforcement standards, its enforcement against plaintiffs “was not the result of ‘unfettered latitude that law enforcement officers and factfinders might have in other, hypothetical applications of the statute.’ ” VIP of Berlin, LLC, 593 F.3d at 193 (quoting Farrell, 449 F.3d at 494); see Thibodeau, 486 F.3d at 69.",
"In short, this is not a case where one of the many implausible hypotheticals that plaintiffs present actually occurred. IV. CONCLUSION The Clerk of Court is directed to enter judgment for defendants and to terminate this action. SO ORDERED. . This Court initially dismissed plaintiffs’ complaint for lack of standing. (ECF No. 80; see also ECF No. 95.) The Second Circuit vacated and remanded that decision in part, finding that although one of the plaintiffs did not have standing, plaintiffs Copeland, Perez, and Native Leather had standing to bring the instant challenge. See Knife Rights, Inc. v. Vance, 802 F.3d 377 (2d Cir. 2015).",
". In addition to the papers submitted by the parties, the Court received a motion to file an *237amicus curiae brief by the Legal Aid Society. (ECF No. 159.) The Legal Aid Society submitted their proposed amicus curiae brief alongside their motion papers. (ECF No. 159-1.) The Court also received an opposition to the motion from defendants (ECF No. 162) as well as a reply from the Legal Aid Society (ECF No. 163). Having considered these submissions, the Court denies the motion by the Legal Aid Society (ECF No. 159). District courts have discretion in deciding whether to accept amicus briefs.",
"Under the particular circumstances presented here, the Court declines to entertain or accept the filing. In their proposed amicus curiae brief, the Legal Aid Society presents various facts outside of the trial record and relating to individuals other than plaintiffs here. In all events, neither the facts presented nor the arguments would alter the outcome of this matter. . Ritter is the founder and Chairman of Knife Rights, a former plaintiff in this case. (Ritter Decl.",
"¶ 1.) . The majority of the facts in the trial record are undisputed. To the extent that the Court must make a finding as between competing assertions, it does so based upon the preponderance of the evidence. . New York first prohibited gravity knives in 1958, and the definition of such knives remains the same today. See 1958 N.Y. Laws ch. 107, sec. 1, § 1896. The Court notes that on December 31, 2016, Governor Andrew Cuomo vetoed Assembly Bill 9042-A, entitled: \"AN ACT to amend the penal law, in relation to definitions of a switchblade knife and a gravity knife.” (See ECF No. 193.) The vetoed bill, which would have altered the statutory definition of a gravity knife, has no effect on the issues before the Court (and no impact on the Court’s decision). . The Court also notes that at least some of the Gravity Knife Statute's legislative history supports this conclusion. The 1957 Bill Jacket of the Gravity Knife Law included a New York Times article from December 1957 that describes a sponsor of the statute opening a gravity knife by \"flick[ing] his wrist sharply downward.” (Ex. D-4 at 20.)",
"Then, as now, knives which could be opened by a flick of the wrist were considered to be particularly dangerous. . Portions of this demonstration were videotaped. Plaintiffs' counsel and Mr. Ritter demonstrated a number of knives, none of which were the make and model of the knives possessed by Copeland and Perez at the time of their arrests. (See June 16, 2016, Tr., ECF No. 191, at 26:09-22.) Furthermore, there was no evidence that either of these two plaintiffs would purchase one of the specific knives demonstrated if allowed to do so. Of the knives demonstrated, only one—a \"Buck Crosslock”—was specifically identified as a knife that may have been confiscated from Native Leather or was a knife that Native Leather would sell. (See id. at 24:12-25:10, 26:23-27:04; see also Walsh Deck ¶ 21.) In all events, there was a distinct difference between the maneuver employed by plaintiffs’ counsel and Ritter and the Wrist-Flick test that is employed by NYPD officers and the D.A.’s Office.",
"Assistant D.A. Rather testified credibly on this point. (See June 16, 2016, Tr., at 72:23-73:18.) Rather testified, and the Court credits, that the motion utilized by plaintiffs’ counsel and Ritter was exaggerated and was not the Wrist-Flick test. (See id.) Accordingly, the Court found the demonstration interesting, but not relevant to the question of whether different applications of the Wrist-Flick test would have different outcomes. .Courts have examined whether a knife must open on every attempt in order to be considered a gravity knife and have found that it does not. See, e.g., People v. Smith, 309 A.D.2d 608, 609, 765 N.Y.S.2d 777 (1st Dep't 2003) (upholding conviction under the Gravity Knife Statute against evidentiary challenge where \"the knife malfunctioned on some of the detective's attempts to operate it”); see also Carter v. McKoy, 2010 U.S. Dist. LEXIS 83246 at *13, 2010 WL 3290989, *5 (S.D.N.Y. Aug. 9, 2010) (noting that “under New York law, a knife need not work consistently in order to support the finding that it is a gravity knife”). This is plainly correct as the statute does not, on its face, require any particular number of applications of gravity or centrifugal force.",
". The term \"Common Folding Knife” used by plaintiffs has no meaning under New York law. . Plaintiffs also cite United States v. Irrizary, 509 F.Supp.2d 198 (E.D.N.Y. 2007) to argue that a folding knife cannot be classified as a gravity knife because of its design. (Plaintiffs' Opening Trial Brief and Proposed Findings of Fact and Conclusions of Law (“Pltfs' PFOF”), ECF No. 128, at 14 ¶ 32.) Irizarry did not involve a vagueness challenge, or a challenge to law enforcement's practice of using the Wrist-Flick test to identify gravity knives. Rather, in that case, the court held that the arresting officer did not have probable cause to believe that the defendant's knife was a gravity knife—despite the fact that it opened by application of the -Wrist-Flick test—because the knife was “designed, sold, and used as a folding knife” and \"was obviously not designed to be opened [by a Wrist-Flick] and does not readily open through such force.” Irizarry, 509 F.Supp.2d at 210.",
"The facts of that case are important and distinguishable from those here. There, the arresting officer could not \"readily open” the defendant's knife by application of the Wrist-Flick test and required \"three strenuous attempts” to do so. Irizarry, 509 F.Supp.2d at 204, 210. In addition, and perhaps based on its particular facts which rendered certain distinctions less meaningful, the court then stated that the knife at issue \"was designed and sold as a folding knife,” when the test is functional and not design based. . Tsujimoto is currently Vice President of Engineering for Ontario Knife Company and states that he has \"spent the last 27 years of [his] 39 year working career in the cutlery industry.” (Tsujimoto Decl.",
"¶ 3.) . Voyles is currently Editor-at-Large at Knife Magazine, and states that he has been a *240cutlery journalist and writer since 1977 and has owned a knife auction company since 1999. (Voyles Deck ¶¶ 4-5.) . Voyles traces the history of gravity knives back to the 1800’s and states that original gravity knives were similar to \"German Paratrooper Knives” prevalent during WWII. (See Voyles Deck ¶¶ 11-13.) .",
"Plaintiffs state: “Whether or not a folding knife actually opens by centrifugal force (as engineers and physicists understand the term) or opens by inertia or a combination of the two has no impact on the vagueness argument.” . In both types of knives, the same device that creates tension on the blade also locks it in place once open. (Tsujimoto Dep. at 85:7— 86:1.) In a liner lock, that device is a metal cutout in the side of the handle, called the liner, which snaps across the back side of the blade as the blade opens to lock it in the open position. (Tsujimoto Dep. at 85:7-15; Tsujim-oto Decl. ¶ 35; Ex. P-12.) In a lock back, that device is a spring-loaded bar that wedges itself into a notch on the blade to prevent it from closing. (Tsujimoto Dep. at 84:17-22, 102:21-103:10; Tsujimoto Decl. ¶ 35; Ex. P-11.) .Plaintiffs acknowledge, as they must, that \"it is clear that under New York law, a Common Folding Knife can be considered a gravity knife.” (Reply Mem.",
"at 3.) . In his trial declaration, Ritter claims that in his experience, \"every individual who attempted a wrist flick maneuver executed it in their own individual manner. There was never any obvious consistency in execution between individuals nor often consistency even by the same individual when conducting multiple attempts at such maneuvers.\" (Ritter Decl. ¶ 20.) The Court does not credit this testimony, and finds that the record supports consistent application of the Wrist-Flick test. . There was evidence that when Assistant D.A. Rather and his staff were testing Native Leather’s array of knives, there were some that had different outcomes under the Wrist-Flick test after multiple attempts by different individuals.",
"However, in the sole specific example Rather gave, he discussed a knife that opened only once in ten attempts. (See Rather Dep. 43:12-44:6.) Rather specifically stated that such a knife was not one that the D.A’s office was \"going to determine to be a gravity knife.” (Id. 44:07-45:2.) Plaintiffs did not pursue whether there were specific Native Leather knives tested fewer times with different outcomes that were nonetheless deemed gravity knives. .Ritter also claims in his trial declaration that on many occasions he was able to open a Common Folding Knife by application of the Wrist-Flick .test where someone else was not. (Ritter Decl. ¶ 16.) The Court finds that, even accepting this testimony, the record supports consistent application of the Wrist-Flick test. As a whole, the record does not suggest that the manner of conducting the Wrist-Flick test is, in fact, different from officer to officer.",
". Prior to receiving the subpoena, the only precaution Walsh took to ensure that she was not selling illegal gravity knives was a trip to the 6th precinct, in early 2000, to inquire about \"Iceberg Army Navy,” another retail store that had its knife inventory \"confiscated” (or so she had heard). (Walsh Dep. at 57:13-59:1.) . Defendants submitted demonstrative videos of counsel opening certain of Native Leather's knives with application of the Wrist-Flick test. (Rather Decl. ¶¶ 53-55, 58-59, 63, 66; Exs. D-10, D-ll, D-14, D-15, D-18, D-20, D-21.) . Lieutenant Luke, who is now retired, served as an officer in the New York Police Department for twenty-two years and has been involved in approximately one hundred and fifty arrests for possession of a gravity knife.",
"(Luke Decl. ¶¶ 1, 3, 21.) Lieutenant Luke consistently and exclusively used the Wrist-Flick test to identify gravity knives over the course of his career. (Luke Decl. ¶ 28.) Lieutenant Luke estimates that he has personally tested between forty and fifty gravity knives. (Luke Decl. ¶ 24.) Based on his training and experience, Lieutenant Luke understands a gravity knife to be a folding knife that possesses two characteristics: the knife will open via gravity or the application of centrifugal force and, once open, the blade will lock into place automatically. (Luke Decl. ¶ 25.) Without exception, the gravity knives that Lieutenant Luke encountered during his career were folding knives. (Luke Decl. ¶ 24.)",
"In Lieutenant Luke’s experience, the resistance in a folding knife such as the one carried by Perez can change over time, either through regular use or intentional modification. (Luke Decl. ¶ 30.) Lieutenant Luke never charged someone with possession of a gravity knife if the knife in question did not open after the first or second application of the Wrist-Flick test, nor would he charge someone with possession of a gravity knife if Lieutenant Luke could open the knife via the Wrist-Flick test but another officer could not. (Luke Decl.",
"¶ 31.) . As explained by the Second Circuit, plaintiffs’ standing to bring the instant challenge is predicated on their desire \"to engage in the very conduct that prompted defendants' prior enforcement actionjs].” Knife Rights, Inc., 802 F.3d at 385, 387 (emphasis added). . Similarly, the Court finds that the statute is not “permeated with vagueness.” N.Y. State Rifle & Pistol Ass'n, Inc., 804 F.3d at 265; see City of Chicago v. Morales, 527 U.S. 41, 55, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (plurality).",
"This is not to say, however, that the statute could not be improved upon. Many statutes that pass constitutional muster may nonetheless benefit from close attention to possible improvements. That is so here. . The Court noted in its Findings of Fact that two NYPD officers applying the Wrist-Flick test a year before plaintiff Copeland’s arrest were unsuccessful in causing the blade of his knife to open. As the Court found above, however, the ability of Copeland's knife to open by application of the Wrist-Flick test by Detective Kyrkos immediately prior to his arrest, as compared to its inability to open a year earlier, was due to usage over time."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7241732/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
GREGORY, Judge: In his single assignment of error on appeal, appellant contends that the military judge made an inadequate inquiry into the existence of a plea bargain. On two occasions, the military judge inquired whether a pretrial agreement existed in this case and was advised by the trial counsel that there was none. (R. 5, 10). Nothing was heard from appellant or his counsel on this point. Appellant argues that this questioning by the military judge was not complete enough to satisfy the requirements of United States v. Green, 1 M.J. 453 (C.M.A.1976). He notes that Green requires the military judge to ascertain whether a “plea bargain” exists and that in military practice the term “pretrial agreement” has come to connote merely a written document. See United States v. Johnson, 2 M.J. 541, n.1 (A.C.M.R.1976). He indicates “plea bargain” includes more than “pretrial agreement.” Appellant contends the military judge in this case was obligated to inquire also of the accused and his counsel to determine whether any informal agreements existed between counsel or between the accused and the convening authority. An almost identical issue was presented and found to be without merit in United States v. May, No. 78 0149 (N.C.M.R. 22 August 1978). Although we considered a military judge to be well-advised to address the existence of a plea bargain with the accused personally, we found no error in a failure to do so. We also indicated that we considered it almost impossible that an accused could enter into an agreement concerning his trial or his pleas without his counsel’s knowledge. Finally, we noted that counsel are under an ethical duty to respond truthfully to a military judge’s in*807quiry and that an opposing counsel would be obligated to come forward and inform the military judge if he was not in agreement with his trial counterpart’s representations to the military judge. Cf. United States v. Bobko, No. 77 2250 (N.C.M.R. 28 March 1978). A military judge is justified in relying on the responses he receives from counsel. In this case, it was proper for the military judge to infer from the response of trial counsel that no agreements of any kind existed. No further inquiry was required. United States v. May, supra; United States v. Hlavaty, No. 77 1671 (N.C.M.R. 10 March 1978), pet. denied 5 M.J. 270 (C.M.A.1978). Accordingly, the findings of guilty and the sentence as approved on review below are affirmed. Senior Judge DUNBAR and Judge GLADIS concur. | 11-24-2022 | [
"GREGORY, Judge: In his single assignment of error on appeal, appellant contends that the military judge made an inadequate inquiry into the existence of a plea bargain. On two occasions, the military judge inquired whether a pretrial agreement existed in this case and was advised by the trial counsel that there was none. (R. 5, 10). Nothing was heard from appellant or his counsel on this point. Appellant argues that this questioning by the military judge was not complete enough to satisfy the requirements of United States v. Green, 1 M.J. 453 (C.M.A.1976). He notes that Green requires the military judge to ascertain whether a “plea bargain” exists and that in military practice the term “pretrial agreement” has come to connote merely a written document. See United States v. Johnson, 2 M.J. 541, n.1 (A.C.M.R.1976). He indicates “plea bargain” includes more than “pretrial agreement.” Appellant contends the military judge in this case was obligated to inquire also of the accused and his counsel to determine whether any informal agreements existed between counsel or between the accused and the convening authority. An almost identical issue was presented and found to be without merit in United States v. May, No. 78 0149 (N.C.M.R.",
"22 August 1978). Although we considered a military judge to be well-advised to address the existence of a plea bargain with the accused personally, we found no error in a failure to do so. We also indicated that we considered it almost impossible that an accused could enter into an agreement concerning his trial or his pleas without his counsel’s knowledge. Finally, we noted that counsel are under an ethical duty to respond truthfully to a military judge’s in*807quiry and that an opposing counsel would be obligated to come forward and inform the military judge if he was not in agreement with his trial counterpart’s representations to the military judge. Cf. United States v. Bobko, No. 77 2250 (N.C.M.R. 28 March 1978). A military judge is justified in relying on the responses he receives from counsel. In this case, it was proper for the military judge to infer from the response of trial counsel that no agreements of any kind existed.",
"No further inquiry was required. United States v. May, supra; United States v. Hlavaty, No. 77 1671 (N.C.M.R. 10 March 1978), pet. denied 5 M.J. 270 (C.M.A.1978). Accordingly, the findings of guilty and the sentence as approved on review below are affirmed. Senior Judge DUNBAR and Judge GLADIS concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8642781/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
969 N.E.2d 44 (2012) In the Matter of Robert C. SZILAGYI, Respondent. No. 46S00-1204-DI-217. Supreme Court of Indiana. June 20, 2012.
PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a "Statement of Circumstances and Conditional Agreement for Discipline" stipulating agreed facts and proposed discipline as summarized below: Stipulated Facts: As part of Respondent's 2009 divorce decree, his wife's last name was restored to her name prior to the marriage and Respondent was awarded the marital home. Later that year, Respondent pursued refinancing of the home, which required his former wife to execute a quitclaim deed of her interest to him. Respondent's secretary prepared the deed using the former wife's restored name rather than her married name as reflected on the title. The secretary sent *45 the quitclaim deed to the former wife, who signed it with her restored name and returned it without being notarized. Respondent did not review the quitclaim deed until the day of the closing. When he discovered the problems, he asked his secretary to prepare a new deed. He then signed his former wife's married name on the deed, signed his secretary's name as notary, and used his secretary's notary stamp on the deed, all without the knowledge of consent of either his former wife or his secretary. As a result, the secretary became the subject of an investigation by the Indiana Secretary of State into the authenticity of the notarization. The parties cite the following facts in aggravation: (1) Respondent's misconduct was due to a dishonest or selfish motive, i.e., the wish to avoid an unpleasant conversation with his former wife to explain his urgent need for her assistance; and (2) Respondent, having practiced law for over 30 years, should have known the importance of authentic legal documents and how this type of misconduct can impugn the reputation of lawyers and the integrity of the legal system. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; and (2) Respondent is remorseful and accepts responsibility for his actions. Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct: 8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. 8.4(d): Engaging in conduct prejudicial to the administration of justice. Discipline: The parties propose the appropriate discipline is a sixty-day suspension with automatic reinstatement. The Court, having considered the submissions of the parties, now approves the agreed discipline. For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of sixty days, beginning August 1, 2012. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the period of suspension, provided there are no other suspensions then in effect, Respondent shall be automatically reinstated to the practice of law, subject to the conditions of Admission and Discipline Rule 23(4)(c). The costs of this proceeding are assessed against Respondent. The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court's website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court's decisions. All Justices concur. | 10-30-2013 | [
"969 N.E.2d 44 (2012) In the Matter of Robert C. SZILAGYI, Respondent. No. 46S00-1204-DI-217. Supreme Court of Indiana. June 20, 2012. PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a \"Statement of Circumstances and Conditional Agreement for Discipline\" stipulating agreed facts and proposed discipline as summarized below: Stipulated Facts: As part of Respondent's 2009 divorce decree, his wife's last name was restored to her name prior to the marriage and Respondent was awarded the marital home. Later that year, Respondent pursued refinancing of the home, which required his former wife to execute a quitclaim deed of her interest to him. Respondent's secretary prepared the deed using the former wife's restored name rather than her married name as reflected on the title. The secretary sent *45 the quitclaim deed to the former wife, who signed it with her restored name and returned it without being notarized. Respondent did not review the quitclaim deed until the day of the closing.",
"When he discovered the problems, he asked his secretary to prepare a new deed. He then signed his former wife's married name on the deed, signed his secretary's name as notary, and used his secretary's notary stamp on the deed, all without the knowledge of consent of either his former wife or his secretary. As a result, the secretary became the subject of an investigation by the Indiana Secretary of State into the authenticity of the notarization.",
"The parties cite the following facts in aggravation: (1) Respondent's misconduct was due to a dishonest or selfish motive, i.e., the wish to avoid an unpleasant conversation with his former wife to explain his urgent need for her assistance; and (2) Respondent, having practiced law for over 30 years, should have known the importance of authentic legal documents and how this type of misconduct can impugn the reputation of lawyers and the integrity of the legal system. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; and (2) Respondent is remorseful and accepts responsibility for his actions. Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct: 8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. 8.4(d): Engaging in conduct prejudicial to the administration of justice. Discipline: The parties propose the appropriate discipline is a sixty-day suspension with automatic reinstatement.",
"The Court, having considered the submissions of the parties, now approves the agreed discipline. For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of sixty days, beginning August 1, 2012. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the period of suspension, provided there are no other suspensions then in effect, Respondent shall be automatically reinstated to the practice of law, subject to the conditions of Admission and Discipline Rule 23(4)(c). The costs of this proceeding are assessed against Respondent. The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court's website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court's decisions.",
"All Justices concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2438042/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
*35 Curia, per
Richardson, J.' The plaintiff sues in the right of J. B. Glenn, and the question is, could J. B. Glenn himself have maintained such an action.' One would surmise that, the contract sued upon was intended to indicate the liability of all the signers to the Glenn Spring Company. But, from the form of the contract adopted, Glenn’s position was this; he and fifteen other persons signed the written instrument called a note, and made' it payable to himself, J. B. Glenn. Upon this note, his representative brings suit against J. R. B. Sims, one of the joint and several signers. But if any one was liable to Glenn, upon the note, he was himself equally liable. J. B. Glenn is therefore promiser and promisee, and liable, like each of his joint promisers, for the whole amount of the so called note. He evidently, then, united, in his own person, both the character of plaintiff and defendant, being maker and payee too. Such a position is ’ inconsistent; satisfaction lies in his own hands; he has only to do what he promised, and the note is discharged. If the defendant, Sims, had paid it, it could be no more. They are presented as if co-partners. Such a case is very like that of a testator making his debtor his executor. The executor cannot sue himself at law. Such action is released by the appointment and acceptance of the executor; 1 Com. Digest, 336 Toller, 230 ; or that of a feme sole taking her own debtor to husband; or where one of two femes sole marries'their obligor, the action at law is released. 2 Coke Lit. 264 b. See, also, our own decision in the case of Livingston, executor of Bostick, against himself as ordinary of Abbeville district, 2 Mills C. R. 428. In all such cases, the proper relief is administered by the Court of Equity, which has power to proceed upon the original contract, as in this case, perhaps, to contribute or pay for the use of the Glenn Spring Company; while this court is confined to the written form to which such contract has been reduced, without regard to parties who may be truly concerned in the recovery of the debt. The special plea in bar must, therefore, prevail, and the judgment be arrested. QNeall, Butler and Wardlaw, JJ. concurred. | 07-29-2022 | [
"*35 Curia, per Richardson, J.' The plaintiff sues in the right of J. B. Glenn, and the question is, could J. B. Glenn himself have maintained such an action.' One would surmise that, the contract sued upon was intended to indicate the liability of all the signers to the Glenn Spring Company. But, from the form of the contract adopted, Glenn’s position was this; he and fifteen other persons signed the written instrument called a note, and made' it payable to himself, J. B. Glenn. Upon this note, his representative brings suit against J. R. B. Sims, one of the joint and several signers. But if any one was liable to Glenn, upon the note, he was himself equally liable.",
"J. B. Glenn is therefore promiser and promisee, and liable, like each of his joint promisers, for the whole amount of the so called note. He evidently, then, united, in his own person, both the character of plaintiff and defendant, being maker and payee too. Such a position is ’ inconsistent; satisfaction lies in his own hands; he has only to do what he promised, and the note is discharged. If the defendant, Sims, had paid it, it could be no more. They are presented as if co-partners. Such a case is very like that of a testator making his debtor his executor. The executor cannot sue himself at law. Such action is released by the appointment and acceptance of the executor; 1 Com. Digest, 336 Toller, 230 ; or that of a feme sole taking her own debtor to husband; or where one of two femes sole marries'their obligor, the action at law is released.",
"2 Coke Lit. 264 b. See, also, our own decision in the case of Livingston, executor of Bostick, against himself as ordinary of Abbeville district, 2 Mills C. R. 428. In all such cases, the proper relief is administered by the Court of Equity, which has power to proceed upon the original contract, as in this case, perhaps, to contribute or pay for the use of the Glenn Spring Company; while this court is confined to the written form to which such contract has been reduced, without regard to parties who may be truly concerned in the recovery of the debt. The special plea in bar must, therefore, prevail, and the judgment be arrested. QNeall, Butler and Wardlaw, JJ. concurred."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7391138/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
39 Wash. App. 792 (1985) 695 P.2d 1010 GREGORY MOTT, Appellant, v. ENDICOTT SCHOOL DISTRICT NO. 308, Respondent. No. 6095-1-III. The Court of Appeals of Washington, Division Three. February 14, 1985. William J. Powell and Powell & Morris, for appellant. Charles D. Williams and Williams & Terry, for respondent. McINTURFF, J. Gregory Mott appeals a superior court judgment which affirmed in part and reversed in part a hearing officer's determination that Endicott School District had sufficient cause to dismiss him from his teaching position. We reverse the Superior Court and a portion of *793 the hearing officer's decision, and order Mr. Mott reinstated. Mr. Mott graduated cum laude from Washington State University with a major in mathematics and co-minors in social science, music and science. In 1979, the District employed him as a full-time teacher. Up until January 1982, Mr. Mott's teaching evaluations were generally good. Then, in the middle of his third year he was placed on probation for, inter alia, unsatisfactory performance in handling student discipline and attendant problems. The superintendent's letter notifying Mr. Mott of his probationary status specified: You have not adequately established parameters for student "in-classroom" conduct and made these expectations known to students. You have not demonstrated that you assist students toward self-discipline and acceptable standards of student behavior. The letter incorporated Principal Audrian Fowler's observation and evaluation report which, in terms of discipline, focused on Mr. Mott's band classes where she observed students using their band instruments and making inappropriate comments while Mr. Mott was talking. This evaluation affirmatively stated that Mr. Mott "resolves discipline problems in accordance with law, school board policy and administrative regulations." (Italics ours.) Principal Fowler stated she would have recommended that the superintendent remove Mr. Mott from probation at the end of the school year save for the reports she received from four students on April 22, 1982. In summary, J.S., D.S. and S.W. alleged Mr. Mott disciplined them by striking them in the testicles at a band party held in Mr. Mott's home in March 1982. S.W. further alleged Mr. Mott struck him in the same area the night of the band concert, April 21, again in the context of disciplinary action for misconduct. Finally, D.S. and D.B. told of separate incidents at the beginning of the school year in which Mr. Mott struck them in the testicles for being rowdy in band. In the past, the District had experienced discipline problems with all *794 four boys. However, Mr. Mott had been able to develop and maintain a close relationship with J.S., D.S. and D.B. When initially confronted, Mr. Mott said the touchings could have occurred while he was wrestling with the boys. However, when advised that all four boys stated he struck them in an attempt at discipline, he denied their allegations. School board policy prescribes certain conditions for the administration of corporal punishment: Corporal punishment of a moderate and reasonable nature may be administered only with the consent of the building principal and it shall be administered only by a certificated person in the presence of and witnessed by another certificated person. Any teacher who has administered such punishment shall promptly notify, by telephone or by letter, the parent or guardian of the child stating the situation which led to the punishment. The Board of Directors met the day the boys registered their complaints, and suspended Mr. Mott pending an investigation. S.W.'s father attended the meeting and threatened to call the sheriff on the charges. By letter dated May 12, 1982, the school superintendent notified Mr. Mott of his determination that probable cause existed (1) to nonrenew his contract, and (2) for discharge. The superintendent specifically noted: 1. Your failure to satisfactorily complete the probationary period established on January 29, 1982 (said failure being a failure to provide and maintain proper perameters [sic] for student conduct in your handling of student discipline problems). 2. Your holding an unauthorized party at your home for your band students, contrary to school district policy. 3. Your striking of students [S.W., J.S. and D.S.] at that party. 4. Your striking of [D.B.] at school. 5. Your striking of [S.W.] at the Band Concert. 6. Your failure to reasonably report either [S.W.'s] or your inappropriate behavior at that Band Concert. 7. Your discussion of discipline problems you had in relation to [S.W.] with the entire band. He concluded:
*795 To the extent that these causes are seen as remediable teaching deficiencies, you have been given an opportunity to remediate them, and have not done so. To the extent that these causes may not be remediable teaching deficiencies, they constitute cause for discharge. Pursuant to RCW 28A.58.450, Mr. Mott requested a hearing to determine sufficient cause. The hearing officer found that the alleged strikings, in the nature of light taps, occurred, that Mr. Mott's conduct was unprofessional, that the conduct constituted a remediable deficiency, but that it would be impossible for the District to provide probation. He reasoned that because of the District's small size, Mr. Mott's presence in the school would result in frequent contact with the four boys and that "[t]his contact could not be prevented without disrupting the educational duties of the District." Hence, he concluded the District had established sufficient cause to discharge Mr. Mott. On the other hand, the hearing examiner concluded the District had failed to establish sufficient cause for nonrenewal. He found the original January 1982 notice of probationary status did not cite violation of the District's policy on corporal punishment as a reason for the probation and that the evidence demonstrated Mr. Mott had improved to the satisfaction of the principal in the cited areas. Mr. Mott appealed to Superior Court, which held the District had sufficient cause both to nonrenew and discharge Mr. Mott. According to the court, Mr. Mott's earlier probation for disciplinary shortcomings was broad enough to include the strikings. As to the issue of sufficient cause for discharge, the Superior Court stated in its memorandum opinion: Striking students in the groin area, even though apparently done with fairly light force, seems to the court to fall within the category of unacceptable professional conduct of a nonremediable nature. (Italics ours.) First, Mr. Mott contends the District did not prove by a preponderance of the evidence that he intentionally struck *796 the four boys for disciplinary reasons. In his view, the boys' uncorroborated testimony was insufficient to satisfy the broader and more intensive review of an agency's factual determinations. We disagree. [1] RCW 28A.58.455(8) provides that the hearing examiner's decision to nonrenew or discharge shall be established by a preponderance of the evidence at the hearing. Review of the hearing examiner's decision is conducted on the entire record. [T]he reviewing court can declare a finding to be clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Franklin Cy. Sheriff's Office v. Sellers, 97 Wash. 2d 317, 324, 646 P.2d 113 (1982) (quoting Ancheta v. Daly, 77 Wash. 2d 255, 259-60, 461 P.2d 531 (1969)), cert. denied, 459 U.S. 1106 (1983). The hearing examiner's findings that Mr. Mott struck the four boys for disciplinary purposes are not clearly erroneous. Each boy originally gave a separate, handwritten statement to the Principal describing the particular incident in which Mr. Mott struck them. Their statements at trial were consistent with these handwritten statements. While it is true they came to the Principal in a group and at the request of S.W., who had just had a confrontation with Mr. Mott, these circumstances do not lead to the single conclusion that the boys concocted their stories. After reviewing the entire record, we are not left with a "definite and firm conviction that a mistake has been committed." Franklin Cy. [2] Second, Mr. Mott asserts the court erred when it held (1) his actions constituted unacceptable professional conduct of a nonremediable nature, and (2) his prior probation was broad enough to include the misconduct in question. We agree with Mr. Mott. RCW 28A.67.065 provides in part:
*797 Every employee whose work is judged unsatisfactory based on district evaluation criteria [which include classroom management and handling of student discipline and attendant problems as categories for evaluation] shall be notified in writing of stated specific areas of deficiencies along with a suggested specific and reasonable program for improvement ... A probationary period shall be established ... It has been held that conduct ... which can fairly be characterized as remediable teaching deficiencies fall[s] within the purview of the statute [RCW 28A.67.065], and cannot constitute "sufficient cause" for discharge unless its notice and probationary procedures are complied with. Wojt v. Chimacum Sch. Dist. 49, 9 Wash. App. 857, 862, 516 P.2d 1099 (1973). Nevertheless, probation is not required where the record evidences a pattern of teacher conduct which continues following reprimands and/or probationary periods, Sargent v. Selah Sch. Dist. 119, 23 Wash. App. 916, 925, 599 P.2d 25 (1979), or where the conduct has no legitimate professional purpose and is inherently harmful to the student-teacher relationship. Potter v. Kalama Pub. Sch. Dist. 402, 31 Wash. App. 838, 842, 644 P.2d 1229 (1982); Pryse v. Yakima Sch. Dist. 7, 30 Wash. App. 16, 24, 632 P.2d 60 (1981); Coupeville Sch. Dist. 204 v. Vivian, 36 Wash. App. 728, 730, 677 P.2d 192 (1984). We hold the misconduct here constituted a remediable teaching deficiency. Mr. Mott was motivated by a proper disciplinary purpose; only his method of administering the discipline was deficient. Deficiencies in methodology can be remedied by a program for improvement during a probationary period as provided in RCW 28A.67.065. Nor do the strikings fall within the exceptions to the requirement of probation set forth in Sargent, Potter, and Pryse. One, the boys' testimony was that Mr. Mott acted in a disciplinary context. The "light taps" they describe are not of an exploitive or abusive nature so as to suggest inherent harm to the teacher-student relationship. Moreover, nothing in the record indicates the incidents had sexual *798 overtones. Two, the evidence does not indicate a pattern of misconduct continuing despite warnings by the District. While Mr. Mott's prior probation generally cited his handling of student discipline, it specifically noted he resolved discipline problems in accordance with law and school policy. Consequently, we hold the School District failed to establish sufficient cause for either the discharge or nonrenewal of Mr. Mott.[1] This holding necessitates our review of the hearing examiner's decision that it would be impossible for the District to provide a period of probation for Mr. Mott. The examiner's finding that it would be difficult to employ Mr. Mott in a teaching position without bringing him into contact with the four boys is supported by the record. However, his underlying rationale that such contact would be harmful is not. In fact, three of the four boys stated that they had maintained a good relationship with Mr. Mott, despite the fact that they had presented disciplinary problems to him in the past. Thus, no valid reason exists for denying Mr. Mott probation. The judgment of the Superior Court is reversed; Mr. Mott is reinstated to his teaching position; and the case is remanded to Superior Court for determination of damages and of reasonable attorney fees under RCW 28A.58.490. GREEN, C.J., and THOMPSON, J., concur. Review granted by Supreme Court May 10, 1985. NOTES [1] Nor do the other items cited in the superintendent's nonrenewal/discharge letter amount to sufficient cause. See hearing examiner's conclusion of law 6, which is supported by his findings and the evidence. | 10-30-2013 | [
"39 Wash. App. 792 (1985) 695 P.2d 1010 GREGORY MOTT, Appellant, v. ENDICOTT SCHOOL DISTRICT NO. 308, Respondent. No. 6095-1-III. The Court of Appeals of Washington, Division Three. February 14, 1985. William J. Powell and Powell & Morris, for appellant. Charles D. Williams and Williams & Terry, for respondent. McINTURFF, J. Gregory Mott appeals a superior court judgment which affirmed in part and reversed in part a hearing officer's determination that Endicott School District had sufficient cause to dismiss him from his teaching position. We reverse the Superior Court and a portion of *793 the hearing officer's decision, and order Mr. Mott reinstated.",
"Mr. Mott graduated cum laude from Washington State University with a major in mathematics and co-minors in social science, music and science. In 1979, the District employed him as a full-time teacher. Up until January 1982, Mr. Mott's teaching evaluations were generally good. Then, in the middle of his third year he was placed on probation for, inter alia, unsatisfactory performance in handling student discipline and attendant problems. The superintendent's letter notifying Mr. Mott of his probationary status specified: You have not adequately established parameters for student \"in-classroom\" conduct and made these expectations known to students. You have not demonstrated that you assist students toward self-discipline and acceptable standards of student behavior. The letter incorporated Principal Audrian Fowler's observation and evaluation report which, in terms of discipline, focused on Mr. Mott's band classes where she observed students using their band instruments and making inappropriate comments while Mr. Mott was talking. This evaluation affirmatively stated that Mr. Mott \"resolves discipline problems in accordance with law, school board policy and administrative regulations.\"",
"(Italics ours.) Principal Fowler stated she would have recommended that the superintendent remove Mr. Mott from probation at the end of the school year save for the reports she received from four students on April 22, 1982. In summary, J.S., D.S. and S.W. alleged Mr. Mott disciplined them by striking them in the testicles at a band party held in Mr. Mott's home in March 1982. S.W. further alleged Mr. Mott struck him in the same area the night of the band concert, April 21, again in the context of disciplinary action for misconduct. Finally, D.S. and D.B. told of separate incidents at the beginning of the school year in which Mr. Mott struck them in the testicles for being rowdy in band. In the past, the District had experienced discipline problems with all *794 four boys. However, Mr. Mott had been able to develop and maintain a close relationship with J.S., D.S. and D.B. When initially confronted, Mr. Mott said the touchings could have occurred while he was wrestling with the boys.",
"However, when advised that all four boys stated he struck them in an attempt at discipline, he denied their allegations. School board policy prescribes certain conditions for the administration of corporal punishment: Corporal punishment of a moderate and reasonable nature may be administered only with the consent of the building principal and it shall be administered only by a certificated person in the presence of and witnessed by another certificated person. Any teacher who has administered such punishment shall promptly notify, by telephone or by letter, the parent or guardian of the child stating the situation which led to the punishment. The Board of Directors met the day the boys registered their complaints, and suspended Mr. Mott pending an investigation.",
"S.W. 's father attended the meeting and threatened to call the sheriff on the charges. By letter dated May 12, 1982, the school superintendent notified Mr. Mott of his determination that probable cause existed (1) to nonrenew his contract, and (2) for discharge. The superintendent specifically noted: 1. Your failure to satisfactorily complete the probationary period established on January 29, 1982 (said failure being a failure to provide and maintain proper perameters [sic] for student conduct in your handling of student discipline problems). 2. Your holding an unauthorized party at your home for your band students, contrary to school district policy. 3. Your striking of students [S.W., J.S. and D.S.] at that party. 4.",
"Your striking of [D.B.] at school. 5. Your striking of [S.W.] at the Band Concert. 6. Your failure to reasonably report either [S.W. 's] or your inappropriate behavior at that Band Concert. 7. Your discussion of discipline problems you had in relation to [S.W.] with the entire band. He concluded: *795 To the extent that these causes are seen as remediable teaching deficiencies, you have been given an opportunity to remediate them, and have not done so. To the extent that these causes may not be remediable teaching deficiencies, they constitute cause for discharge. Pursuant to RCW 28A.58.450, Mr. Mott requested a hearing to determine sufficient cause. The hearing officer found that the alleged strikings, in the nature of light taps, occurred, that Mr. Mott's conduct was unprofessional, that the conduct constituted a remediable deficiency, but that it would be impossible for the District to provide probation. He reasoned that because of the District's small size, Mr. Mott's presence in the school would result in frequent contact with the four boys and that \"[t]his contact could not be prevented without disrupting the educational duties of the District.\"",
"Hence, he concluded the District had established sufficient cause to discharge Mr. Mott. On the other hand, the hearing examiner concluded the District had failed to establish sufficient cause for nonrenewal. He found the original January 1982 notice of probationary status did not cite violation of the District's policy on corporal punishment as a reason for the probation and that the evidence demonstrated Mr. Mott had improved to the satisfaction of the principal in the cited areas. Mr. Mott appealed to Superior Court, which held the District had sufficient cause both to nonrenew and discharge Mr. Mott. According to the court, Mr. Mott's earlier probation for disciplinary shortcomings was broad enough to include the strikings. As to the issue of sufficient cause for discharge, the Superior Court stated in its memorandum opinion: Striking students in the groin area, even though apparently done with fairly light force, seems to the court to fall within the category of unacceptable professional conduct of a nonremediable nature. (Italics ours.)",
"First, Mr. Mott contends the District did not prove by a preponderance of the evidence that he intentionally struck *796 the four boys for disciplinary reasons. In his view, the boys' uncorroborated testimony was insufficient to satisfy the broader and more intensive review of an agency's factual determinations. We disagree. [1] RCW 28A.58.455(8) provides that the hearing examiner's decision to nonrenew or discharge shall be established by a preponderance of the evidence at the hearing. Review of the hearing examiner's decision is conducted on the entire record. [T]he reviewing court can declare a finding to be clearly erroneous \"when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.\" Franklin Cy. Sheriff's Office v. Sellers, 97 Wash. 2d 317, 324, 646 P.2d 113 (1982) (quoting Ancheta v. Daly, 77 Wash. 2d 255, 259-60, 461 P.2d 531 (1969)), cert.",
"denied, 459 U.S. 1106 (1983). The hearing examiner's findings that Mr. Mott struck the four boys for disciplinary purposes are not clearly erroneous. Each boy originally gave a separate, handwritten statement to the Principal describing the particular incident in which Mr. Mott struck them. Their statements at trial were consistent with these handwritten statements. While it is true they came to the Principal in a group and at the request of S.W., who had just had a confrontation with Mr. Mott, these circumstances do not lead to the single conclusion that the boys concocted their stories. After reviewing the entire record, we are not left with a \"definite and firm conviction that a mistake has been committed.\"",
"Franklin Cy. [2] Second, Mr. Mott asserts the court erred when it held (1) his actions constituted unacceptable professional conduct of a nonremediable nature, and (2) his prior probation was broad enough to include the misconduct in question. We agree with Mr. Mott. RCW 28A.67.065 provides in part: *797 Every employee whose work is judged unsatisfactory based on district evaluation criteria [which include classroom management and handling of student discipline and attendant problems as categories for evaluation] shall be notified in writing of stated specific areas of deficiencies along with a suggested specific and reasonable program for improvement ... A probationary period shall be established ... It has been held that conduct ... which can fairly be characterized as remediable teaching deficiencies fall[s] within the purview of the statute [RCW 28A.67.065], and cannot constitute \"sufficient cause\" for discharge unless its notice and probationary procedures are complied with.",
"Wojt v. Chimacum Sch. Dist. 49, 9 Wash. App. 857, 862, 516 P.2d 1099 (1973). Nevertheless, probation is not required where the record evidences a pattern of teacher conduct which continues following reprimands and/or probationary periods, Sargent v. Selah Sch. Dist. 119, 23 Wash. App. 916, 925, 599 P.2d 25 (1979), or where the conduct has no legitimate professional purpose and is inherently harmful to the student-teacher relationship. Potter v. Kalama Pub. Sch. Dist.",
"402, 31 Wash. App. 838, 842, 644 P.2d 1229 (1982); Pryse v. Yakima Sch. Dist. 7, 30 Wash. App. 16, 24, 632 P.2d 60 (1981); Coupeville Sch. Dist. 204 v. Vivian, 36 Wash. App. 728, 730, 677 P.2d 192 (1984). We hold the misconduct here constituted a remediable teaching deficiency. Mr. Mott was motivated by a proper disciplinary purpose; only his method of administering the discipline was deficient. Deficiencies in methodology can be remedied by a program for improvement during a probationary period as provided in RCW 28A.67.065. Nor do the strikings fall within the exceptions to the requirement of probation set forth in Sargent, Potter, and Pryse. One, the boys' testimony was that Mr. Mott acted in a disciplinary context. The \"light taps\" they describe are not of an exploitive or abusive nature so as to suggest inherent harm to the teacher-student relationship.",
"Moreover, nothing in the record indicates the incidents had sexual *798 overtones. Two, the evidence does not indicate a pattern of misconduct continuing despite warnings by the District. While Mr. Mott's prior probation generally cited his handling of student discipline, it specifically noted he resolved discipline problems in accordance with law and school policy. Consequently, we hold the School District failed to establish sufficient cause for either the discharge or nonrenewal of Mr. Mott. [1] This holding necessitates our review of the hearing examiner's decision that it would be impossible for the District to provide a period of probation for Mr. Mott. The examiner's finding that it would be difficult to employ Mr. Mott in a teaching position without bringing him into contact with the four boys is supported by the record.",
"However, his underlying rationale that such contact would be harmful is not. In fact, three of the four boys stated that they had maintained a good relationship with Mr. Mott, despite the fact that they had presented disciplinary problems to him in the past. Thus, no valid reason exists for denying Mr. Mott probation. The judgment of the Superior Court is reversed; Mr. Mott is reinstated to his teaching position; and the case is remanded to Superior Court for determination of damages and of reasonable attorney fees under RCW 28A.58.490. GREEN, C.J., and THOMPSON, J., concur. Review granted by Supreme Court May 10, 1985. NOTES [1] Nor do the other items cited in the superintendent's nonrenewal/discharge letter amount to sufficient cause. See hearing examiner's conclusion of law 6, which is supported by his findings and the evidence."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1169347/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
PER CURIAM. We have for review J.A. v. State, 779 So.2d 390 (Fla. 2d DCA 2000), in which the Second District Court of Appeal certified the following questions to be of great public importance: WHAT LEVEL OF SCRUTINY MUST A COURT APPLY WHEN REVIEWING THE CONSTITUTIONALITY OF A JUVENILE CURFEW ORDINANCE? WHETHER THE TAMPA JUVENILE CURFEW ORDINANCE IS CONSTITUTIONAL!;.] Id. at 390-91. We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution. In T.M. v. State, 784 So.2d 442 (Fla.2001), we answered the first certified question by holding that strict scrutiny applies to juvenile curfew ordinances. As in T.M., we decline to answer the second certified question, quash the decision of the district court, and remand this case for further proceedings. It is so ordered. WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur. | 07-30-2022 | [
"PER CURIAM. We have for review J.A. v. State, 779 So.2d 390 (Fla. 2d DCA 2000), in which the Second District Court of Appeal certified the following questions to be of great public importance: WHAT LEVEL OF SCRUTINY MUST A COURT APPLY WHEN REVIEWING THE CONSTITUTIONALITY OF A JUVENILE CURFEW ORDINANCE? WHETHER THE TAMPA JUVENILE CURFEW ORDINANCE IS CONSTITUTIONAL!;.] Id. at 390-91.",
"We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution. In T.M. v. State, 784 So.2d 442 (Fla.2001), we answered the first certified question by holding that strict scrutiny applies to juvenile curfew ordinances. As in T.M., we decline to answer the second certified question, quash the decision of the district court, and remand this case for further proceedings. It is so ordered. WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur."
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| https://www.courtlistener.com/api/rest/v3/opinions/7741718/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Title: To George Washington from Major General Israel Putnam, 28 November 1777 From: Putnam, Israel To: Washington, George
Dr General New Rochal [N.Y.] 28 Novr 1777
Since I wrote my Last nothing particular has happened in this Quarter. some days ago I had made a Desposition to Cross over to Long Island, and Attackt the Forts Huntington & Setauket. but before Matters could be got Ready for the Expedition, they Evacuated both Forts and are now Making very strong Works at the Upper End of the Island. I Recd a Letter the other Day from Genl Dickenson Acquainting me that his Intentions was yesterday to make a Decent upon Statten Island, upon which I orderd Genls Parsons & Warners Brigades to March down towards Kings Bridge to Make a Diversion in his favour, which I
hope had the desired Effect. I am in haste Dr Genl Your Most Obedt Hble Sert
Israel Putnam | 11-28-1777 | [
"Title: To George Washington from Major General Israel Putnam, 28 November 1777 From: Putnam, Israel To: Washington, George Dr General New Rochal [N.Y.] 28 Novr 1777 Since I wrote my Last nothing particular has happened in this Quarter. some days ago I had made a Desposition to Cross over to Long Island, and Attackt the Forts Huntington & Setauket. but before Matters could be got Ready for the Expedition, they Evacuated both Forts and are now Making very strong Works at the Upper End of the Island. I Recd a Letter the other Day from Genl Dickenson Acquainting me that his Intentions was yesterday to make a Decent upon Statten Island, upon which I orderd Genls Parsons & Warners Brigades to March down towards Kings Bridge to Make a Diversion in his favour, which I hope had the desired Effect.",
"I am in haste Dr Genl Your Most Obedt Hble Sert Israel Putnam"
]
| https://founders.archives.gov/API/docdata/Washington/03-12-02-0431 | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
477 So. 2d 928 (1985) Roy C. BELLAMY v. Milton W. JANSSEN. No. CA-3213. Court of Appeal of Louisiana, Fourth Circuit. October 11, 1985. *929 Michael E. Souleau, Covington, for appellee. Terrence J. Lestelle, Andrea S. Lestelle, New Orleans, for appellant. Before WILLIAMS and ARMSTRONG, JJ., and PRESTON H. HUFFT, J., Pro Tempore. PRESTON H. HUFFT, Judge Pro Tempore. In this legal malpractice action for an allegedly improper and negligent settlement of a personal injury claim, plaintiff appeals from a judgment of dismissal on an exception of one-year prescription. We affirm. On January 12, 1976, Roy C. Bellamy, a Jones Act seaman, was injured in a two-vessel collision. On March 14, 1977, Bellamy retained defendant-attorney Milton W. Janssen to pursue his legal rights. Janssen's negotiations with Bellamy's employer, Penwalt Corporation/Automatic Power Inc., owner of one of the vessels involved, resulted in a $58,544.00 settlement on May 18, 1977, whereby Bellamy signed a release and subrogation in favor of his employer and its insurers, but reserved his claim against the owner and operator of the second vessel. In 1979, Bellamy consulted another attorney, Leonard A. Radlauer, concerning his rights against Garber Brothers, the owner of the second vessel involved.[1] In the course of investigating this claim, Radlauer reached the opinion that Bellamy might have a malpractice claim against his former attorney, Janssen, for improperly advising his client to settle for the inadequate sum of $58,544.00, where Bellamy's Jones Act and maritime claims were valued by Radlauer to be at least five times greater than the settlement figure. According to Radlauer, he advised Bellamy in early September, 1980 of the potential malpractice, and filed suit against Janssen shortly thereafter on September 17, 1980.[2] Plaintiff's malpractice action was met with an exception of no cause of action. The trial judge maintained the exception and Bellamy appealed to this court. On March 14, 1984, in an unpublished opinion in NO. CA-1319, Bellamy v. Janssen, another panel of this court reversed the trial court and remanded the case for trial on the merits, concluding that the petition had sufficiently alleged acts of negligence against Janssen. Thereafter, Janssen filed an exception of one-year tort prescription on the grounds that the settlement in question had been signed on May 18, 1977, and that the malpractice action filed over three years later, on September 17, 1980, was untimely. The trial judge maintained the exception and dismissed the malpractice suit without oral or written reasons. *930 Appealing, Bellamy contends that the prescriptive period did not commence to run until he knew or should have known of facts enabling him to conclude that malpractice had been committed. According to Bellamy, the deposition and affidavit of his attorney Radlauer, which were filed in opposition to the exception, establish that he was not able to determine the existence of malpractice until early September, 1980, when Radlauer advised him of it. In this regard, Bellamy asserts that his lack of legal expertise in evaluating personal injury claims and his mere participation in the settlement did not afford him knowledge sufficient to commence the running of prescription. Alternatively, Bellamy contends that his malpractice claim is subject to the ten-year prescriptive period for contracts because it is based on his attorney-client contract with Janssen, who strongly recommended that he take the $58,544 and thereby expressly warranted or guaranteed a particular result in the case. We disagree. At the outset, we reject plaintiff's argument that the prescriptive period began when the new attorney, Radlauer, informed him of his opinion that malpractice had occurred. Although prescription does not begin to run until a plaintiff has knowledge of both the tort and the result in damages, i.e., until a cause of action has manifested itself with sufficient certainty to be capable of proof in a court of law, this doctrine applies only if a plaintiff's ignorance is not willful and does not result from his own negligence. Henderson v. Diamond Datsun, Inc., 413 So. 2d 542 (La. App. 4th Cir.1982). It is not necessary that a party have actual knowledge of the conditions as long as there is "constructive notice" to excite his attention and put him on inquiry, which is tantamount to knowledge or notice of everything to which inquiry may lead and is sufficient to start the running of prescription. Cartwright v. Chrysler Corporation, 255 La. 598, 232 So. 2d 285 (1970); Sturm v. Zelden and Zelden, 445 So. 2d 32 (La.App. 4th Cir.1984). In the absence of fraud or concealment, a plaintiff's mere ignorance of his rights will not toll the statute of limitations. Martin v. Mud Supply Company, 239 La. 616, 119 So. 2d 484 (La.1960); Wingate v. National Union Fire Ins. Co., 435 So. 2d 594 (La. App. 3rd Cir.1983), writ denied 440 So. 2d 762 (La.1983). Applying these principles to the instant case, we conclude that Bellamy had at least constructive notice of the conditions giving rise to the alleged malpractice as early as May 18, 1977, the very day the release was signed. Although Bellamy is a layman unschooled in legal matters, he could just have easily have consulted a second attorney to examine the facts and evaluate the claim for him on the day after the settlement, as on a day over three years later, when attorney Radlauer examined the case and advised him to file a malpractice claim. The alleged acts of malpractice and the circumstances giving rise to the cause of action were apparent and obvious to anyone seeking to examine the record. The settlement amount, the extent of plaintiff's personal injuries from the maritime collision, and the alleged inadequacy of the settlement terms were either known or discoverable at the time the release was signed. Bellamy was not confronted with a latent injury or any other circumstances hindering a reasonable person from evaluating the case. His cause of action in malpractice therefore arose on the day of the settlement, and the one-year prescriptive period in tort commenced from that date. Indeed, to accept Bellamy's argument and to conclude that plaintiff has timely filed his suit under these circumstances would impugn the finality of every pretrial settlement now in existence. To allow a client to file a malpractice suit against his former attorney three years after a settlement of litigation based upon a second attorney's opinion that the settlement figure was too low and the prior attorney's negotiations and advice were negligent would defeat the utility of amicable settlements as a desirable means of resolving legal disputes and would emasculate the entire *931 concept of liberative tort prescription. We cannot countenance such a result. We likewise reject plaintiff's argument that his suit for malpractice is subject to a ten-year prescriptive period in contract rather than the one-year period in tort. Although actions based on legal malpractice can be either contractural or delictual or both in nature, an attorney's duty to use his best professional skill and judgment is a legal rather than contractual one, and a breach of this duty amounts to a tort, except when the attorney breaches an express warranty of result. Sturm v. Zelden and Zelden, supra; Corceller v. Brooks, 347 So. 2d 274 (La.App. 4th Cir.1977), writ denied 350 So. 2d 1223 (La.1977). Cherokee Restaurant, Inc. v. Pierson, 428 So. 2d 995 (La.App. 1st Cir.1983), writ denied 431 So. 2d 773 (La.1983). As this court pointed out in Corceller v. Brooks, supra, a warranty or guarantee by an attorney of a particular result of a litigious claim is foreign to the nature of the legal profession, although it is conceivable that an attorney may guarantee that he will follow a particular course of action or do a specific thing on the client's behalf. In the instant case, although a contract existed for legal representation between Janssen and his client, there is no evidence that Janssen warranted or guaranteed a particular result to Bellamy at the beginning of their attorney-client relationship. Despite plaintiff's arguments that Janssen subsequently urged him to sign the release of Bellamy's employer and represented to him that the settlement figure was the best possible result in the case, such advice was not a warranty or guarantee of a favorable result, but rather was in the nature of legal services delivered by Janssen as attorney and counsellor to his client. Bellamy's allegation that Janssen's settlement advice was improper is essentially an allegation that the attorney negligently failed to exercise the degree of care, skill, and diligence exercised by prudent practicing attorneys in the locality in negotiating in behalf of their clients and advising them of their legal rights. See Ramp v. St. Paul Fire and Marine Insurance Company, 263 La. 774, 269 So. 2d 239 (1972). This court implicity recognized as much in its earlier, unpublished opinion on the exception of no cause of action, supra, by holding that Bellamy had alleged "acts of negligence" against the defendant attorney. There is no mention in our earlier opinion of any cause of action in contract against Janssen. Accordingly, we conclude that plaintiff's cause of action in malpractice arose in tort rather than in contract and was therefore subject to a one-year prescriptive period. Plaintiff's malpractice suit filed in excess of one year following the date of the pretrial settlement is therefore untimely. Accordingly, the judgment is affirmed. AFFIRMED. NOTES [1] Penwalt Corporation/Automatic Power Inc.'s insurer, Atlantic Mutual Insurance Company, subsequently filed an action in subrogation against Garber Brothers (Civil Action No. 77-1882 in Federal District Court E.D.La.). Bellamy, who was no longer represented by Janssen, filed a third party claim in that federal court action and also filed his own separate claim against Garber Brothers in Louisiana State Court (No. 79-11359, Civil District Court, Orleans Parish). [2] Radlauer also filed an action in federal court to set aside the settlement negotiated by Janssen, but the agreement was upheld and the suit was dismissed on summary judgment. (Civil Action No. 79-3851, Federal District Court, E.D. La.). | 10-30-2013 | [
"477 So. 2d 928 (1985) Roy C. BELLAMY v. Milton W. JANSSEN. No. CA-3213. Court of Appeal of Louisiana, Fourth Circuit. October 11, 1985. *929 Michael E. Souleau, Covington, for appellee. Terrence J. Lestelle, Andrea S. Lestelle, New Orleans, for appellant. Before WILLIAMS and ARMSTRONG, JJ., and PRESTON H. HUFFT, J., Pro Tempore. PRESTON H. HUFFT, Judge Pro Tempore. In this legal malpractice action for an allegedly improper and negligent settlement of a personal injury claim, plaintiff appeals from a judgment of dismissal on an exception of one-year prescription. We affirm. On January 12, 1976, Roy C. Bellamy, a Jones Act seaman, was injured in a two-vessel collision. On March 14, 1977, Bellamy retained defendant-attorney Milton W. Janssen to pursue his legal rights. Janssen's negotiations with Bellamy's employer, Penwalt Corporation/Automatic Power Inc., owner of one of the vessels involved, resulted in a $58,544.00 settlement on May 18, 1977, whereby Bellamy signed a release and subrogation in favor of his employer and its insurers, but reserved his claim against the owner and operator of the second vessel. In 1979, Bellamy consulted another attorney, Leonard A. Radlauer, concerning his rights against Garber Brothers, the owner of the second vessel involved.",
"[1] In the course of investigating this claim, Radlauer reached the opinion that Bellamy might have a malpractice claim against his former attorney, Janssen, for improperly advising his client to settle for the inadequate sum of $58,544.00, where Bellamy's Jones Act and maritime claims were valued by Radlauer to be at least five times greater than the settlement figure. According to Radlauer, he advised Bellamy in early September, 1980 of the potential malpractice, and filed suit against Janssen shortly thereafter on September 17, 1980.",
"[2] Plaintiff's malpractice action was met with an exception of no cause of action. The trial judge maintained the exception and Bellamy appealed to this court. On March 14, 1984, in an unpublished opinion in NO. CA-1319, Bellamy v. Janssen, another panel of this court reversed the trial court and remanded the case for trial on the merits, concluding that the petition had sufficiently alleged acts of negligence against Janssen. Thereafter, Janssen filed an exception of one-year tort prescription on the grounds that the settlement in question had been signed on May 18, 1977, and that the malpractice action filed over three years later, on September 17, 1980, was untimely. The trial judge maintained the exception and dismissed the malpractice suit without oral or written reasons. *930 Appealing, Bellamy contends that the prescriptive period did not commence to run until he knew or should have known of facts enabling him to conclude that malpractice had been committed.",
"According to Bellamy, the deposition and affidavit of his attorney Radlauer, which were filed in opposition to the exception, establish that he was not able to determine the existence of malpractice until early September, 1980, when Radlauer advised him of it. In this regard, Bellamy asserts that his lack of legal expertise in evaluating personal injury claims and his mere participation in the settlement did not afford him knowledge sufficient to commence the running of prescription. Alternatively, Bellamy contends that his malpractice claim is subject to the ten-year prescriptive period for contracts because it is based on his attorney-client contract with Janssen, who strongly recommended that he take the $58,544 and thereby expressly warranted or guaranteed a particular result in the case.",
"We disagree. At the outset, we reject plaintiff's argument that the prescriptive period began when the new attorney, Radlauer, informed him of his opinion that malpractice had occurred. Although prescription does not begin to run until a plaintiff has knowledge of both the tort and the result in damages, i.e., until a cause of action has manifested itself with sufficient certainty to be capable of proof in a court of law, this doctrine applies only if a plaintiff's ignorance is not willful and does not result from his own negligence. Henderson v. Diamond Datsun, Inc., 413 So. 2d 542 (La. App. 4th Cir.1982). It is not necessary that a party have actual knowledge of the conditions as long as there is \"constructive notice\" to excite his attention and put him on inquiry, which is tantamount to knowledge or notice of everything to which inquiry may lead and is sufficient to start the running of prescription.",
"Cartwright v. Chrysler Corporation, 255 La. 598, 232 So. 2d 285 (1970); Sturm v. Zelden and Zelden, 445 So. 2d 32 (La.App. 4th Cir.1984). In the absence of fraud or concealment, a plaintiff's mere ignorance of his rights will not toll the statute of limitations. Martin v. Mud Supply Company, 239 La. 616, 119 So. 2d 484 (La.1960); Wingate v. National Union Fire Ins. Co., 435 So. 2d 594 (La. App. 3rd Cir.1983), writ denied 440 So. 2d 762 (La.1983). Applying these principles to the instant case, we conclude that Bellamy had at least constructive notice of the conditions giving rise to the alleged malpractice as early as May 18, 1977, the very day the release was signed.",
"Although Bellamy is a layman unschooled in legal matters, he could just have easily have consulted a second attorney to examine the facts and evaluate the claim for him on the day after the settlement, as on a day over three years later, when attorney Radlauer examined the case and advised him to file a malpractice claim. The alleged acts of malpractice and the circumstances giving rise to the cause of action were apparent and obvious to anyone seeking to examine the record. The settlement amount, the extent of plaintiff's personal injuries from the maritime collision, and the alleged inadequacy of the settlement terms were either known or discoverable at the time the release was signed.",
"Bellamy was not confronted with a latent injury or any other circumstances hindering a reasonable person from evaluating the case. His cause of action in malpractice therefore arose on the day of the settlement, and the one-year prescriptive period in tort commenced from that date. Indeed, to accept Bellamy's argument and to conclude that plaintiff has timely filed his suit under these circumstances would impugn the finality of every pretrial settlement now in existence. To allow a client to file a malpractice suit against his former attorney three years after a settlement of litigation based upon a second attorney's opinion that the settlement figure was too low and the prior attorney's negotiations and advice were negligent would defeat the utility of amicable settlements as a desirable means of resolving legal disputes and would emasculate the entire *931 concept of liberative tort prescription.",
"We cannot countenance such a result. We likewise reject plaintiff's argument that his suit for malpractice is subject to a ten-year prescriptive period in contract rather than the one-year period in tort. Although actions based on legal malpractice can be either contractural or delictual or both in nature, an attorney's duty to use his best professional skill and judgment is a legal rather than contractual one, and a breach of this duty amounts to a tort, except when the attorney breaches an express warranty of result. Sturm v. Zelden and Zelden, supra; Corceller v. Brooks, 347 So. 2d 274 (La.App. 4th Cir.1977), writ denied 350 So. 2d 1223 (La.1977). Cherokee Restaurant, Inc. v. Pierson, 428 So. 2d 995 (La.App. 1st Cir.1983), writ denied 431 So.",
"2d 773 (La.1983). As this court pointed out in Corceller v. Brooks, supra, a warranty or guarantee by an attorney of a particular result of a litigious claim is foreign to the nature of the legal profession, although it is conceivable that an attorney may guarantee that he will follow a particular course of action or do a specific thing on the client's behalf. In the instant case, although a contract existed for legal representation between Janssen and his client, there is no evidence that Janssen warranted or guaranteed a particular result to Bellamy at the beginning of their attorney-client relationship. Despite plaintiff's arguments that Janssen subsequently urged him to sign the release of Bellamy's employer and represented to him that the settlement figure was the best possible result in the case, such advice was not a warranty or guarantee of a favorable result, but rather was in the nature of legal services delivered by Janssen as attorney and counsellor to his client. Bellamy's allegation that Janssen's settlement advice was improper is essentially an allegation that the attorney negligently failed to exercise the degree of care, skill, and diligence exercised by prudent practicing attorneys in the locality in negotiating in behalf of their clients and advising them of their legal rights.",
"See Ramp v. St. Paul Fire and Marine Insurance Company, 263 La. 774, 269 So. 2d 239 (1972). This court implicity recognized as much in its earlier, unpublished opinion on the exception of no cause of action, supra, by holding that Bellamy had alleged \"acts of negligence\" against the defendant attorney. There is no mention in our earlier opinion of any cause of action in contract against Janssen. Accordingly, we conclude that plaintiff's cause of action in malpractice arose in tort rather than in contract and was therefore subject to a one-year prescriptive period.",
"Plaintiff's malpractice suit filed in excess of one year following the date of the pretrial settlement is therefore untimely. Accordingly, the judgment is affirmed. AFFIRMED. NOTES [1] Penwalt Corporation/Automatic Power Inc.'s insurer, Atlantic Mutual Insurance Company, subsequently filed an action in subrogation against Garber Brothers (Civil Action No. 77-1882 in Federal District Court E.D.La.). Bellamy, who was no longer represented by Janssen, filed a third party claim in that federal court action and also filed his own separate claim against Garber Brothers in Louisiana State Court (No. 79-11359, Civil District Court, Orleans Parish). [2] Radlauer also filed an action in federal court to set aside the settlement negotiated by Janssen, but the agreement was upheld and the suit was dismissed on summary judgment. (Civil Action No. 79-3851, Federal District Court, E.D.",
"La. )."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1723355/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Name: 97/382/EC, ECSC, Euratom: European Parliament Decision of 10 April 1997 giving discharge to the Commission in respect of the implementation of the general budget of the European Union for the 1995 financial year as regards Sections I - Parliament, II - Council, III - Commission, IV - Court of Justice, V - Court of Auditors and VI - Economic and Social Committee/Committee of the Regions Type: Decision Subject Matter: EU finance; budget; EU institutions and European civil service Date Published: 1997-06-19
Avis juridique important|31997D038297/382/EC, ECSC, Euratom: European Parliament Decision of 10 April 1997 giving discharge to the Commission in respect of the implementation of the general budget of the European Union for the 1995 financial year as regards Sections I - Parliament, II - Council, III - Commission, IV - Court of Justice, V - Court of Auditors and VI - Economic and Social Committee/Committee of the Regions Official Journal L 162 , 19/06/1997 P. 0029 - 0038EUROPEAN PARLIAMENT DECISION of 10 April 1997 giving discharge to the Commission in respect of the implementation of the general budget of the European Union for the 1995 financial year as regards Sections I - Parliament, II - Council, III - Commission, IV - Court of Justice, V - Court of Auditors and VI - Economic and Social Committee/Committee of the Regions (97/382/ECSC, EC, Euratom) THE EUROPEAN PARLIAMENT,- Having regard to the ECSC Treaty and in particular Article 78g thereof,- Having regard to the EC Treaty, and in particular Article 206 thereof,- Having regard to the EAEC Treaty, and in particular Article 180b thereof,- Having regard to the budget for the 1995 financial year,- Having regard to the revenue and expenditure accounts and the financial statement of the European Union for the 1995 financial year (SEC(96) 0421 - C4-0280/96, SEC(96) 0422 - C4-0281/96, SEC(96) 0423 - C4-0282/96, SEC(96) 0424 - C4-0283/96),- Having regard to the report of the Court of Auditors for the 1995 financial year and the replies of the institutions (C4-0585/96) (1), and the Court of Auditors' special reports,- Having regard to the Statement of Assurance presented by the Court of Auditors concerning activities financed from the general budget for the 1995 financial year and the special report on this matter (C4-0110/97) (2), and the Council Statement thereto (C4-0137/97),- Having regard to the Council recommendation of 17 March 1997 (C4-0133/97),- Having regard to the report of the Committee on Budgetary Control and the opinions of the Committees on Economic and Monetary Affairs and Industrial Policy, on External Economic Relations, on Research, Technological Development and Energy, on Employment and Social Affairs, on Regional Policy, on Transport and Tourism, on the Environment, Public Health and Consumer Protection, on Development and Cooperation, on Civil Liberties and Internal Affairs, on Fisheries, on Women's Rights and on Culture, Youth, Education and the Media (A4-0120/97),1. Notes that the authorized revenue and expenditure for the 1995 financial year amounted to:>TABLE>2. Gives the Commission discharge in respect of the implementation of the following amounts:>TABLE>3. Accepts that final checks still have to be made of EAGGF expenditure reported by the Member States and that corrections to the figures may yet have to be made;4. Reserves, therefore, the right to re-examine the amounts above in so far as they relate to expenditure in the EAGGF Guarantee Section in the light of the clearance of accounts decision for the 1995 financial year, which shall be forwarded to the European Parliament for a decision complementary to this discharge decision;5. Records its comments in the resolution which forms an integral part of this decision;6. Instructs its President to forward this decision and the resolution containing its comments to the Commission, the Council, the Court of Justice, the Court of Auditors, the Economic and Social Committee, the Committee of the Regions and the European Investment Bank and to have them published in the Official Journal of the European Communities (L series).The Secretary-GeneralJulian PRIESTLEYThe PresidentJosà © Marà a GIL-ROBLES(1) OJ No C 340, 12. 11. 1996.(2) OJ No C 395, 31. 12. 1996.RESOLUTION containing the comments which form part of the Decision giving discharge to the Commission in respect of the implementation of the general budget of the European Union for the financial year 1995 THE EUROPEAN PARLIAMENT,- Having regard to Article 206 of the Treaty establishing the European Community,- Having regard to Article 89 of the Financial Regulation applicable to the general budget of the European Communities, under which the Commission and the other Institutions are required to take all appropriate steps to take account of the European Parliament's comments on the implementation of expenditure,- Whereas, under the same Article, the institutions are also required to report, at Parliament's request, on the measures taken in the light of these comments and, in particular, on the instructions given to those of their departments which are responsible for the implementation of the budget,- Having regard to the Council recommendation of 17 March 1997 (C4-0133/97),- Having regard to the report of the Committee on Budgetary Control and the other documents referred to in the discharge decision (A4-0120/97),General comments 1. Welcomes the spirit of constructive cooperation between the Commission and the Court of Auditors which has again been visible in the discharge procedure for 1995 and which can only have a beneficial effect on the implementation of the Union budget;2. Deplores the fact that the Council adopted its recommendation only on 17 March 1997, thus rendering impossible any constructive dialogue with Parliament and its competent committees on discharge-related matters;3. Reaffirms its support for the Commission's efforts under the SEM 2000 initiative to carry through a new finance and management culture; realizes that this process did not get underway until the financial year 1995 and the results can be evaluated only in the light of experience in subsequent financial years;4. Recalls that 80 % of Community funding (basically agricultural expenditure and Structural Funds) is managed on a decentralized basis in the Member States and that the latter therefore bear particular responsibility, in the light of Article 209 (a) of the Treaty, for ensuring that the funding is utilized as effectively and as prudently as possible;5. Points out, however, that this does not release the Commission from its obligation to take every possible step to make certain that the Member States spend funding properly and to ensure that errors are corrected;6. Calls on the Member States to inform the Commission of the measures they have taken in the light of the observations by the Court of Auditors so that the Commission can incorporate them in its report on the action taken following the discharge;7. Calls on the Commission in future to forward its report on the action taken following the discharge to Parliament at the latest six months following the latter's discharge decision;8. Stresses that the Council's recommendation on the discharge to be given to the Commission in respect of the implementation of the general budget of the European Union for the financial year 1995 does not form part of the discharge decision until such time as it has been approved by Parliament;Statement of Assurance (DAS) 9. Welcomes the fact that the Court could obtain a reasonable assurance that the operations underlying the commitments and the revenue entered in the accounts were legal and regular;10. Welcomes the fact that the Court's audit revealed that improvements had been made since the financial year 1994 to the consolidated revenue and expenditure account;11. Notes that the handling of payment appropriations again gave rise to too high a number of formal and substantial errors;12. Welcomes the fact that the Court has started to comment in greater detail on specific fields of expenditure thus providing important help to tackle the problems detected by the DAS audit;13. Points out that it would prefer the Court to make even more in-depth analyses of specific sectors and to give serious consideration to the possibility of drawing up statements of assurance on expenditure in individual Member States and of cooperating closely with the national audit institutions in connection with those analyses; recognizing the limitations of current resources, invites the Court to discuss with Parliament how best to achieve this;14. Expects the Court to continue, in consultation with the Commission, its efforts to develop the methodology and presentation of the DAS with a view to increasing its usefulness in the context of actions aimed at improving the management and control of Community expenditure;15. Calls on the Court of Auditors, with a view to achieving greater consistency and greater transparency, to present the results of its work in connection with the DAS in the form of an additional chapter in its annual report;Own resources 16. Calls on the Commission to propose regulatory and administrative measures aimed at strengthening accounting controls and checks on the national control and management systems with regard to traditional own resources;17. Requests the Commission to publish, in an annex to the annual balance sheet (revenue and expenditure account) the position, for each Member State, with regard to debts to the Community not recovered or written off, with explanations for each situation;18. Notes the complexity of customs arrangements described in the Court of Auditors' report and the report of the Temporary Committee of Inquiry into the Community Transit System; asks its relevant committees, in the light of the conclusions and recommendations drawn up by the Temporary Committee of Inquiry, to investigate how these arrangements can be simplified in order to be better monitored and controlled;19. Asks its relevant committees to consider the effects on own resources of future Customs Union agreements in the light of the Court of Auditors' findings with regard to the application of the EEC-Turkey agreement;20. Calls on the Court of Auditors to apply itself, as a matter of priority, to checking the reliability and exhaustiveness of the VAT own resource assessment base;21. Calls on the Commission to develop an appropriate statistical and mathematical tool with a view to contributing to measuring the reliability of the GNP aggregates of the Member States, whose data are the basis for the Community's finances; calls on Eurostat to clarify its role in that development process;22. Calls on the Commission to submit to Parliament and the Council a proposal for a Regulation with a view to establishing an action programme designed to improve, in a manner consistent with the powers of the Member States, the effectiveness of the administrations of the Member States in collecting or recovering sums of all kinds due to the Community budget; hopes that this programme will foster the reorganization measures which the Member States regard as essential to make their efforts more cohesive and will encourage the Member States to increase the number of staff responsible for recovery and to improve their professional training;Agricultural spending 23. Notes that the ECU 34,5 billion of the European Agricultural Guidance and Guarantee Fund (EAGGF) Guarantee Section spending in 1995 was appreciably below the financial perspective ceiling, but at 52 % still accounted for more than half of all payments;24. Notes that as part of the reform of the common agricultural policy in the cereals and arable crops sectors direct income support payments were progressively introduced during a transitional period from 1992 to 1996 in order to compensate for the fall in institutional prices in these sectors and that a temporary increase in expenditure was inevitable as a result of the adjustment of the system; notes further that in spite of the increase in expenditure in the 1995 financial year spending was well below the agricultural guideline and actual agricultural expenditure in the EAGGF Guarantee Section was 11 % below the amount budgeted; reaffirms that the commitments arising from the decisions of the Edinburgh European Council in 1992 must be discharged in full and that the agricultural guideline must also be complied with in future;25. Establishes that the Commission and the Member States have made scant progress in improving application of the rules governing the common organization of the market (COM) in olive oil; urges the Commission, therefore, to apply immediately all the controls made available by the legislation in force instead of deferring resolution of the problem to a future reform of the COM, the initial outline of which, moreover, does not afford sufficient guarantee that expenditure will be controlled;26. Recalls its resolution of 21 April 1993 containing the comments which form part of the decision giving discharge to the Commission in respect of the implementation of the general budget of the European Communities for the 1991 financial year (1), in which it called upon the Commission to suspend payments in respect of olive oil if satisfactory controls were not guaranteed by the Member States within a reasonable timescale;Integrated control system27. Notes that, even after the EP granted a one-year extension to the time limit, the integrated control system for the payment of premiums for livestock and land areas, which originally was to have been introduced in all Member States by the end of 1995, is still not fully operational in some Member States; calls therefore on the Commission to establish, in connection with the clearance of accounts process, the resulting loss risk for the Community budget and to make financial corrections at an appropriate level vis-à -vis the Member States concerned;28. Asks the Court of Auditors to investigate as soon as possible the effectiveness of the integrated control system; calls on the Commission, where appropriate, to make proposals for improvements;29. Points out that the Court of Auditors has found that there is currently no satisfactory system for the identification of sheep and goats, and, in the light of the volume of premiums disbursed (approximately ECU 2 billion), calls on the Commission to submit a proposal by the end of the year, modelled on the proposal for a Council Regulation for the identification of bovine animals, for a Council Regulation for the marking of sheep and goats too;Clearance of accounts30. Notes that the correction amounts to be set by the Commission in connection with the clearance of accounts should be geared exclusively to the level of actual losses to the Community budget or, as the case may be, to the level of the loss risk and must not be negotiable on the basis of other criteria;31. Believes that the fact that the EAGGF Guarantee Section still accounts for 36 % of the substantial errors detected by the Statement of Assurance, involving an amount in excess of ECU 1,5 billion, cannot be ignored and draws attention to the fact that, unlike in other sectors, this involves undue payments already made, and thus, recovery of these amounts for the EU budget is problematic;32. Asks the Commission to forward as soon as possible the results of the enquiry about the legality and regularity of refund claims on the export of feta cheese from Denmark in order to establish the amount which will be disallowed from Community financing;33. Calls on the Commission to check, in connection with the clearance of accounts procedure, that EAGGF appropriations directly or indirectly earmarked for the prevention and treatment of BSE over the last five years have been utilized correctly;Miscellaneous34. Asks the Commission to inform Parliament on action taken against those responsible for the widespread abuse of the aid system for cotton, on the amounts of unduly paid aid recovered and on the effectiveness of the new measures for monitoring and control of the common market organization for cotton;35. Believes that intensive pig producers should contribute in greater degree towards the measures to combat classical swine fever; therefore asks the Commission to bring forward a review of the Regulations in force;36. Notes that it must check whether it is still justifiable to maintain some ECU 40 million of EU grants for whisky makers each year; points out that there must be clarification in this connection as to whether abolition of the aids really would conflict with Protocol No 19 to the Treaty concerning the Accession of the United Kingdom to the European Communities;Common fisheries policy 37. Asks its relevant committees to examine whether the considerable funding which the Community has made available for stepping up the monitoring of fishing activities actually has led to enhanced effectiveness of controls;38. Disapproves of the fact that Community aids have been used to assist the construction or modernization of processing plants which subsequently have not been usable because provision had not been made for the requisite disposal infrastructure or because there was no guarantee of regular fish supplies; calls on the Commission not simply, in future, to accept all formally correct projects, but, rather, to try to obtain reasonable assurance that there will be a return on the assisted investment;Structural Funds 39. Is concerned at the degree of utilization of the available funding, which, in some respects, is most unsatisfactory; instructs its relevant committees to examine the extent and implications of the problem more closely and to draw up recommendations;40. Is concerned at the Court of Auditors' finding that the rate of substantial errors in respect of the Structural Funds is significantly higher than the average for budget payments as a whole;41. Asks the Commission to propose a solution for the programming problems, including the need for ex-ante and ex-post evaluation;42. Asks the Commission to present its accounting records in such a way that it will be possible for Parliament to:- identify the statutory framework to which commitments and payments relate,- determine whether payments have actually been effected,- be kept/stay informed on the backlog in commitments and payments and the amount of outstanding commitments;43. Asks the Commission, once again, to make a proposal for Article 24 of Council Regulation (EEC) No 4253/88 (2) to be changed in such a way that effective corrective action, leading to recovery where this is due, will be possible and compulsory:- when there is suspicion that any irregularity (ineligibility, breach of any Community provision, non-compliance with the reporting obligations, non-implementation of compensatory measures, etc.) occurred, money for that project/programme should be frozen for a certain period, during which the Commission should carry out an investigation,- after the investigation corrections by the final beneficiary and/or the Member State will take place within a fixed period, failing which the sums already paid out will be considered to have been unduly paid;44. Awaits the draft Regulation promised by the Commission on Article 23 of Regulation (EEC) No 4253/88; expects this proposal to contain amongst others obligations of the Member States with regard to communication of information at all stages and down to the level of individual projects;45. Calls on the Commission to introduce a system for the clearance of accounts which would enable flat-rate corrections to be made, where these appeared justified in the light of shortcomings in Member States' systems for selection, management, monitoring and control;Internal policy areas 46. Reiterates its request that the Court of Auditors incorporate in its annual report a chapter covering the Union's internal policies as a whole and also dealing with issues that are common to the various activities financed by heading 3 of the financial perspective;Research and technological development (RTD)47. Calls on the Commission to establish a coordinated audit system and to provide sufficient staff for checking the RTD contracts;48. Calls on the Commission to exclude participants in the RTD programmes who do not fulfil their financial obligations or who offend considerably against rules of an RTD contract from any further contract with Commission services;49. Asks the Court of Auditors to carry out for 1996 and subsequent years a precise evaluation of the administrative costs of specific research programmes under the fourth framework programme incurred not only by the Commission and its external consultants but also by those in receipt of appropriations;Pacte and Recite50. Notes that the decentralized structure in the management of the regional programmes Pacte and Recite has led to lack of control, mismanagement and substantial delays in payment from the Commission to the regional partners; calls on the Commission to introduce technical and legal instruments to ensure a better management structure;Advanced television services51. Notes the Court of Auditors' suggestion that permanent financing of advanced television services from the Community budget should be avoided; therefore instructs its relevant committees to discuss thoroughly the future of the action plan for advanced television services before the first reading of the 1998 budget;European Vocational Training Policy52. Supports the Court of Auditors, with regard to the Community Action Programme for a European Vocational Training Policy, in advocating the establishment of a single selection procedure under the direct responsibility of the Commission; calls on the latter to make proposals for a change in its forthcoming interim report on the implementation of the programme with the aim of simplifying the application procedures;Justice and home affairs53. Regrets the improvised and disparate nature of the projects accepted by the Council in the area of justice and home affairs;54. Regrets the manner in which the Council, by Council Decision 95/402/JAI (3), has reduced the role of the Commission to that of a mere budgetary agent in the management of appropriations intended for cooperation in the area of justice and home affairs;55. Regrets that of a total of 23 projects chargeable to budget Article B5-8 0 0, only five were submitted by the Commission; therefore calls on the Commission to make more use of its power of initiative in the areas covered by Article K.1 (1) to (6) of the Treaty;Lending and borrowing 56. Calls on the Commission, in its capacity as representative of the European Community shareholding in the European Investment Fund (EIF), to ensure the introduction of transparent public audit and control arrangements providing the taxpayer-investor with the necessary assurances as to the accountability of the EIF for its use of public funds;57. Asks the Court of Auditors and the Commission to report to Parliament at the soonest opportunity on the management and effectiveness of the Copenhagen facility, with particular reference to the functioning of the job creation criteria applied to interest rate subsidies;58. Calls on the Commission to submit proposals to the Intergovernmental Conference specifying that the audit rights of the Court of Auditors shall extend to include the financial management systems of all organizations managing Community funds;External policy areas 59. Is alarmed by the growing imbalance between the size and diversity of the programmes and the capacity to implement them with, as a result, a very rapid increase in outstanding commitments and considerable problems with the spending of the appropriations available;60. Instructs its relevant committees to consider against this background whether it might be worthwhile to separate political decision-making from the task of programme management and project implementation;61. Instructs its relevant committees to investigate how the independence and credibility of the evaluation of projects and programmes funded from the Community budget can be enhanced and how the results from the evaluation can be effectively fed back into the Community's decision-making process;62. Calls on the Commission to harmonize procedures for procurement within the different Directorates-General in charge of external policies;63. Asks the Court of Auditors to include in its work programme an enquiry on the adequacy and the effectiveness of the Commission's structure, procedures and allocation of human resources relating to development cooperation;Phare64. Deplores the lack of any clear political vision within the Commission either as to the achievements and effectiveness of Phare expenditure or as to its future role in contributing to the accession of applicant countries in central and eastern Europe to the EU; calls once again for an analysis of Phare's global impact on these countries over the last six years and a clear strategy for the next five years;Tacis65. Supports the Commission's intention to concentrate its activities under Tacis indicative programmes into no more than two sectors of intervention per beneficiary country: believes that, it effectively applied, this restriction should enable Tacis assistance to be used in a more focused and efficient manner; asks the Commission to report in detail on the outcome of this initiative in its follow-up report to this resolution;66. Continues to note with concern the chronic instability of staffing within the Commission's Directorate-General with responsibility for the management of Tacis and the difficulties this causes for the efficient management of the programme; calls on the Commission, in the absence of any serious prospect of new staff becoming available, to review the deployment of staff within DG 1A and, within the context of its efforts to concentrate Tacis interventions in fewer sectors, sharply to reduce the number of projects handled;67. Expresses its deep concern at the inordinate slowness of the commitment, contracting and disbursement process under the Tacis programme; believes that no more than a year should ever normally elapse between the commitment of Tacis funds and the signing of the relevant contract; to this end, asks the Commission to introduce automatic procedures whereby commitments lapse if not contracted within 18 months;68. Asks the Commission to maximize, within the scope of the Tacis Regulation, its contributions to public investment projects, especially those co-financed with other donors;69. Re-emphasizes the extreme importance it attaches to the nuclear safety programmes; feels therefore great disquiet at the inability of the Commission to implement this policy meaningfully in the context of the Phare and Tacis programmes; calls on the Commission to set up a task force with responsibility, on an inter-departmental basis, for pooling and employing more effectively Commission resources in this sphere and to give the removal of the administrative, procedural and legal obstacles to the implementation of the programme absolute political priority and to bring all appropriate pressure to bear on beneficiary countries to this end;Development cooperation70. Stresses the need for more expertise staff in the policy fields related to poverty eradication, including social development, gender, the environment and macro-economic policy;71. Calls on the Commission to clarify whether it has financed any part of the EDF from the EU budget;72. Calls on the Commission to clarify the objectives of budgetary aid to ensure both that it is used in social areas in ways that benefit people living in poverty, and that budgetary aid results in lager quantities of the budget of the recipient country being spent in basic social areas;73. Believes that the budgetary authority, with the assistance of the Commission, should simplify the procedures for releasing appropriations from the humanitarian aid reserve in order to speed up the mobilization thereof and thus avoid carrying over unused appropriations by ECHO to the following year;74. In the light of known information, directs its committees responsible to clearly investigate whether women are benefiting from the development programmes implemented by the Commission, in accordance with the Council's resolution of 20 December 1995 on gender and development;75. Calls on the Commission to ensure that ECU 2 million is spent on sports development projects in the townships in South Africa and requests a detailed report on how this is carried out;Common foreign and security policy76. Considers the special reports by the Court of Auditors on the European Union administration in Mostar and election observation in Palestine as confirming its view that the common foreign and security policy (CFSP) has brought about a dangerous blurring of responsibilities between the Council and the Commission which hinders Parliament in carrying out its task of calling the Commission to account in the context of the discharge procedure;77. Calls for the organization and supervision of all future joint actions to be placed, from the date of the initial decision onwards, under the untrammelled responsibility of the Commission so as to guarantee transparency, continuity and effectiveness;78. Calls on the Commission to join with the Member States in setting up a preparatory group to develop, on the basis of experience of joint actions hitherto, procedures under which the organizational and financial technicalities of joint actions can be made to operate as rapidly and smoothly as possible;Administrative expenditure 79. Calls on the Commission to report to it on the circumstances which led it, following the evacuation of the Berlaymont building, to enter into a commitment, contrary to the promises made by the Belgian Government throughout the negotiations, to pay various property taxes in respect of the rental of buildings which it does not own;Subsidy to CERI80. Following a delegation visit to CERI in Florence, recommends that the Committee on Budgets retain in the reserve its funding for the 1997 financial year, pending receipt of a further report from the Committee on Employment and Social Affairs;Decentralized community agencies 81. Thanks the Court of Auditors for the service of annual reports covering part of 1994 and the 1995 year;82. Supports the Committee on Budgets in its intention to bring the various statutes into a structure whereby the Commission exercises financial control, the European Parliament gives discharge, and income to agencies is classified as own resources;83. Insists, despite the low staff numbers, on separation of powers between authorizing officer and accounting officer because financial control is an essential prerequisite to receive Community funds;84. Recognizes to this end that the separation of powers is honoured as far as personnel are concerned, and looks forward to a new common accounting system which will exercise separation in the accounting function; welcomes the proposal of such an accounting system which could enable financial control to grant authorizations on an on-line basis from the Commission in Brussels;85. Calls upon the Commission, in the meanwhile, to implement Parliament's suggestion of part-time financial controllers to assist the agencies;SEM 2000 86. Invites the Commission to revise internal procedures for the selection, management and monitoring of measures funded directly by the Commission and for the payment of balances or recovery of incorrect payments;87. Is of the opinion that the question of interest earned on Community monies, already touched on in connection with SEM 2000, requires in-depth consideration across the board; calls upon the Commission to draw up Regulations concerning the use or, as the case may be, recovery of interest earned on Community monies; meanwhile, instructs its Committee on Budgetary Control to draw up a report in this connection;88. Urges the Commission to carry into effect its announcement to apply the rules on eligibility, as established in the framework of SEM 2000; asks for a review of these eligibility criteria before starting the next programming period;89. Requests the Court of Auditors to publish a special report covering mainstreaming and measures to promote equal opportunities;90. Reiterates its call to the Court of Auditors to publish, as part of its annual report, a list setting out all refusals of approval by the institutions' financial controllers and, where appropriate, the overrule decisions.(1) OJ No C 150, 31. 5. 1993, p. 104.(2) OJ No L 374, 31. 12. 1988, p. 1.(3) OJ No L 238, 6. 10. 1995, p. 2. | 1997-06-19 | [
"Name: 97/382/EC, ECSC, Euratom: European Parliament Decision of 10 April 1997 giving discharge to the Commission in respect of the implementation of the general budget of the European Union for the 1995 financial year as regards Sections I - Parliament, II - Council, III - Commission, IV - Court of Justice, V - Court of Auditors and VI - Economic and Social Committee/Committee of the Regions Type: Decision Subject Matter: EU finance; budget; EU institutions and European civil service Date Published: 1997-06-19 Avis juridique important|31997D038297/382/EC, ECSC, Euratom: European Parliament Decision of 10 April 1997 giving discharge to the Commission in respect of the implementation of the general budget of the European Union for the 1995 financial year as regards Sections I - Parliament, II - Council, III - Commission, IV - Court of Justice, V - Court of Auditors and VI - Economic and Social Committee/Committee of the Regions Official Journal L 162 , 19/06/1997 P. 0029 - 0038EUROPEAN PARLIAMENT DECISION of 10 April 1997 giving discharge to the Commission in respect of the implementation of the general budget of the European Union for the 1995 financial year as regards Sections I - Parliament, II - Council, III - Commission, IV - Court of Justice, V - Court of Auditors and VI - Economic and Social Committee/Committee of the Regions (97/382/ECSC, EC, Euratom) THE EUROPEAN PARLIAMENT,- Having regard to the ECSC Treaty and in particular Article 78g thereof,- Having regard to the EC Treaty, and in particular Article 206 thereof,- Having regard to the EAEC Treaty, and in particular Article 180b thereof,- Having regard to the budget for the 1995 financial year,- Having regard to the revenue and expenditure accounts and the financial statement of the European Union for the 1995 financial year (SEC(96) 0421 - C4-0280/96, SEC(96) 0422 - C4-0281/96, SEC(96) 0423 - C4-0282/96, SEC(96) 0424 - C4-0283/96),- Having regard to the report of the Court of Auditors for the 1995 financial year and the replies of the institutions (C4-0585/96) (1), and the Court of Auditors' special reports,- Having regard to the Statement of Assurance presented by the Court of Auditors concerning activities financed from the general budget for the 1995 financial year and the special report on this matter (C4-0110/97) (2), and the Council Statement thereto (C4-0137/97),- Having regard to the Council recommendation of 17 March 1997 (C4-0133/97),- Having regard to the report of the Committee on Budgetary Control and the opinions of the Committees on Economic and Monetary Affairs and Industrial Policy, on External Economic Relations, on Research, Technological Development and Energy, on Employment and Social Affairs, on Regional Policy, on Transport and Tourism, on the Environment, Public Health and Consumer Protection, on Development and Cooperation, on Civil Liberties and Internal Affairs, on Fisheries, on Women's Rights and on Culture, Youth, Education and the Media (A4-0120/97),1.",
"Notes that the authorized revenue and expenditure for the 1995 financial year amounted to:>TABLE>2. Gives the Commission discharge in respect of the implementation of the following amounts:>TABLE>3. Accepts that final checks still have to be made of EAGGF expenditure reported by the Member States and that corrections to the figures may yet have to be made;4. Reserves, therefore, the right to re-examine the amounts above in so far as they relate to expenditure in the EAGGF Guarantee Section in the light of the clearance of accounts decision for the 1995 financial year, which shall be forwarded to the European Parliament for a decision complementary to this discharge decision;5. Records its comments in the resolution which forms an integral part of this decision;6. Instructs its President to forward this decision and the resolution containing its comments to the Commission, the Council, the Court of Justice, the Court of Auditors, the Economic and Social Committee, the Committee of the Regions and the European Investment Bank and to have them published in the Official Journal of the European Communities (L series).The Secretary-GeneralJulian PRIESTLEYThe PresidentJosà © Marà a GIL-ROBLES(1) OJ No C 340, 12. 11. 1996. (2) OJ No C 395, 31. 12. 1996.RESOLUTION containing the comments which form part of the Decision giving discharge to the Commission in respect of the implementation of the general budget of the European Union for the financial year 1995 THE EUROPEAN PARLIAMENT,- Having regard to Article 206 of the Treaty establishing the European Community,- Having regard to Article 89 of the Financial Regulation applicable to the general budget of the European Communities, under which the Commission and the other Institutions are required to take all appropriate steps to take account of the European Parliament's comments on the implementation of expenditure,- Whereas, under the same Article, the institutions are also required to report, at Parliament's request, on the measures taken in the light of these comments and, in particular, on the instructions given to those of their departments which are responsible for the implementation of the budget,- Having regard to the Council recommendation of 17 March 1997 (C4-0133/97),- Having regard to the report of the Committee on Budgetary Control and the other documents referred to in the discharge decision (A4-0120/97),General comments 1.",
"Welcomes the spirit of constructive cooperation between the Commission and the Court of Auditors which has again been visible in the discharge procedure for 1995 and which can only have a beneficial effect on the implementation of the Union budget;2. Deplores the fact that the Council adopted its recommendation only on 17 March 1997, thus rendering impossible any constructive dialogue with Parliament and its competent committees on discharge-related matters;3. Reaffirms its support for the Commission's efforts under the SEM 2000 initiative to carry through a new finance and management culture; realizes that this process did not get underway until the financial year 1995 and the results can be evaluated only in the light of experience in subsequent financial years;4.",
"Recalls that 80 % of Community funding (basically agricultural expenditure and Structural Funds) is managed on a decentralized basis in the Member States and that the latter therefore bear particular responsibility, in the light of Article 209 (a) of the Treaty, for ensuring that the funding is utilized as effectively and as prudently as possible;5. Points out, however, that this does not release the Commission from its obligation to take every possible step to make certain that the Member States spend funding properly and to ensure that errors are corrected;6. Calls on the Member States to inform the Commission of the measures they have taken in the light of the observations by the Court of Auditors so that the Commission can incorporate them in its report on the action taken following the discharge;7.",
"Calls on the Commission in future to forward its report on the action taken following the discharge to Parliament at the latest six months following the latter's discharge decision;8. Stresses that the Council's recommendation on the discharge to be given to the Commission in respect of the implementation of the general budget of the European Union for the financial year 1995 does not form part of the discharge decision until such time as it has been approved by Parliament;Statement of Assurance (DAS) 9. Welcomes the fact that the Court could obtain a reasonable assurance that the operations underlying the commitments and the revenue entered in the accounts were legal and regular;10. Welcomes the fact that the Court's audit revealed that improvements had been made since the financial year 1994 to the consolidated revenue and expenditure account;11. Notes that the handling of payment appropriations again gave rise to too high a number of formal and substantial errors;12.",
"Welcomes the fact that the Court has started to comment in greater detail on specific fields of expenditure thus providing important help to tackle the problems detected by the DAS audit;13. Points out that it would prefer the Court to make even more in-depth analyses of specific sectors and to give serious consideration to the possibility of drawing up statements of assurance on expenditure in individual Member States and of cooperating closely with the national audit institutions in connection with those analyses; recognizing the limitations of current resources, invites the Court to discuss with Parliament how best to achieve this;14.",
"Expects the Court to continue, in consultation with the Commission, its efforts to develop the methodology and presentation of the DAS with a view to increasing its usefulness in the context of actions aimed at improving the management and control of Community expenditure;15. Calls on the Court of Auditors, with a view to achieving greater consistency and greater transparency, to present the results of its work in connection with the DAS in the form of an additional chapter in its annual report;Own resources 16. Calls on the Commission to propose regulatory and administrative measures aimed at strengthening accounting controls and checks on the national control and management systems with regard to traditional own resources;17. Requests the Commission to publish, in an annex to the annual balance sheet (revenue and expenditure account) the position, for each Member State, with regard to debts to the Community not recovered or written off, with explanations for each situation;18. Notes the complexity of customs arrangements described in the Court of Auditors' report and the report of the Temporary Committee of Inquiry into the Community Transit System; asks its relevant committees, in the light of the conclusions and recommendations drawn up by the Temporary Committee of Inquiry, to investigate how these arrangements can be simplified in order to be better monitored and controlled;19. Asks its relevant committees to consider the effects on own resources of future Customs Union agreements in the light of the Court of Auditors' findings with regard to the application of the EEC-Turkey agreement;20.",
"Calls on the Court of Auditors to apply itself, as a matter of priority, to checking the reliability and exhaustiveness of the VAT own resource assessment base;21. Calls on the Commission to develop an appropriate statistical and mathematical tool with a view to contributing to measuring the reliability of the GNP aggregates of the Member States, whose data are the basis for the Community's finances; calls on Eurostat to clarify its role in that development process;22.",
"Calls on the Commission to submit to Parliament and the Council a proposal for a Regulation with a view to establishing an action programme designed to improve, in a manner consistent with the powers of the Member States, the effectiveness of the administrations of the Member States in collecting or recovering sums of all kinds due to the Community budget; hopes that this programme will foster the reorganization measures which the Member States regard as essential to make their efforts more cohesive and will encourage the Member States to increase the number of staff responsible for recovery and to improve their professional training;Agricultural spending 23. Notes that the ECU 34,5 billion of the European Agricultural Guidance and Guarantee Fund (EAGGF) Guarantee Section spending in 1995 was appreciably below the financial perspective ceiling, but at 52 % still accounted for more than half of all payments;24. Notes that as part of the reform of the common agricultural policy in the cereals and arable crops sectors direct income support payments were progressively introduced during a transitional period from 1992 to 1996 in order to compensate for the fall in institutional prices in these sectors and that a temporary increase in expenditure was inevitable as a result of the adjustment of the system; notes further that in spite of the increase in expenditure in the 1995 financial year spending was well below the agricultural guideline and actual agricultural expenditure in the EAGGF Guarantee Section was 11 % below the amount budgeted; reaffirms that the commitments arising from the decisions of the Edinburgh European Council in 1992 must be discharged in full and that the agricultural guideline must also be complied with in future;25.",
"Establishes that the Commission and the Member States have made scant progress in improving application of the rules governing the common organization of the market (COM) in olive oil; urges the Commission, therefore, to apply immediately all the controls made available by the legislation in force instead of deferring resolution of the problem to a future reform of the COM, the initial outline of which, moreover, does not afford sufficient guarantee that expenditure will be controlled;26. Recalls its resolution of 21 April 1993 containing the comments which form part of the decision giving discharge to the Commission in respect of the implementation of the general budget of the European Communities for the 1991 financial year (1), in which it called upon the Commission to suspend payments in respect of olive oil if satisfactory controls were not guaranteed by the Member States within a reasonable timescale;Integrated control system27. Notes that, even after the EP granted a one-year extension to the time limit, the integrated control system for the payment of premiums for livestock and land areas, which originally was to have been introduced in all Member States by the end of 1995, is still not fully operational in some Member States; calls therefore on the Commission to establish, in connection with the clearance of accounts process, the resulting loss risk for the Community budget and to make financial corrections at an appropriate level vis-Ã -vis the Member States concerned;28.",
"Asks the Court of Auditors to investigate as soon as possible the effectiveness of the integrated control system; calls on the Commission, where appropriate, to make proposals for improvements;29. Points out that the Court of Auditors has found that there is currently no satisfactory system for the identification of sheep and goats, and, in the light of the volume of premiums disbursed (approximately ECU 2 billion), calls on the Commission to submit a proposal by the end of the year, modelled on the proposal for a Council Regulation for the identification of bovine animals, for a Council Regulation for the marking of sheep and goats too;Clearance of accounts30. Notes that the correction amounts to be set by the Commission in connection with the clearance of accounts should be geared exclusively to the level of actual losses to the Community budget or, as the case may be, to the level of the loss risk and must not be negotiable on the basis of other criteria;31. Believes that the fact that the EAGGF Guarantee Section still accounts for 36 % of the substantial errors detected by the Statement of Assurance, involving an amount in excess of ECU 1,5 billion, cannot be ignored and draws attention to the fact that, unlike in other sectors, this involves undue payments already made, and thus, recovery of these amounts for the EU budget is problematic;32.",
"Asks the Commission to forward as soon as possible the results of the enquiry about the legality and regularity of refund claims on the export of feta cheese from Denmark in order to establish the amount which will be disallowed from Community financing;33. Calls on the Commission to check, in connection with the clearance of accounts procedure, that EAGGF appropriations directly or indirectly earmarked for the prevention and treatment of BSE over the last five years have been utilized correctly;Miscellaneous34. Asks the Commission to inform Parliament on action taken against those responsible for the widespread abuse of the aid system for cotton, on the amounts of unduly paid aid recovered and on the effectiveness of the new measures for monitoring and control of the common market organization for cotton;35. Believes that intensive pig producers should contribute in greater degree towards the measures to combat classical swine fever; therefore asks the Commission to bring forward a review of the Regulations in force;36. Notes that it must check whether it is still justifiable to maintain some ECU 40 million of EU grants for whisky makers each year; points out that there must be clarification in this connection as to whether abolition of the aids really would conflict with Protocol No 19 to the Treaty concerning the Accession of the United Kingdom to the European Communities;Common fisheries policy 37.",
"Asks its relevant committees to examine whether the considerable funding which the Community has made available for stepping up the monitoring of fishing activities actually has led to enhanced effectiveness of controls;38. Disapproves of the fact that Community aids have been used to assist the construction or modernization of processing plants which subsequently have not been usable because provision had not been made for the requisite disposal infrastructure or because there was no guarantee of regular fish supplies; calls on the Commission not simply, in future, to accept all formally correct projects, but, rather, to try to obtain reasonable assurance that there will be a return on the assisted investment;Structural Funds 39. Is concerned at the degree of utilization of the available funding, which, in some respects, is most unsatisfactory; instructs its relevant committees to examine the extent and implications of the problem more closely and to draw up recommendations;40. Is concerned at the Court of Auditors' finding that the rate of substantial errors in respect of the Structural Funds is significantly higher than the average for budget payments as a whole;41.",
"Asks the Commission to propose a solution for the programming problems, including the need for ex-ante and ex-post evaluation;42. Asks the Commission to present its accounting records in such a way that it will be possible for Parliament to:- identify the statutory framework to which commitments and payments relate,- determine whether payments have actually been effected,- be kept/stay informed on the backlog in commitments and payments and the amount of outstanding commitments;43. Asks the Commission, once again, to make a proposal for Article 24 of Council Regulation (EEC) No 4253/88 (2) to be changed in such a way that effective corrective action, leading to recovery where this is due, will be possible and compulsory:- when there is suspicion that any irregularity (ineligibility, breach of any Community provision, non-compliance with the reporting obligations, non-implementation of compensatory measures, etc.) occurred, money for that project/programme should be frozen for a certain period, during which the Commission should carry out an investigation,- after the investigation corrections by the final beneficiary and/or the Member State will take place within a fixed period, failing which the sums already paid out will be considered to have been unduly paid;44. Awaits the draft Regulation promised by the Commission on Article 23 of Regulation (EEC) No 4253/88; expects this proposal to contain amongst others obligations of the Member States with regard to communication of information at all stages and down to the level of individual projects;45.",
"Calls on the Commission to introduce a system for the clearance of accounts which would enable flat-rate corrections to be made, where these appeared justified in the light of shortcomings in Member States' systems for selection, management, monitoring and control;Internal policy areas 46. Reiterates its request that the Court of Auditors incorporate in its annual report a chapter covering the Union's internal policies as a whole and also dealing with issues that are common to the various activities financed by heading 3 of the financial perspective;Research and technological development (RTD)47. Calls on the Commission to establish a coordinated audit system and to provide sufficient staff for checking the RTD contracts;48. Calls on the Commission to exclude participants in the RTD programmes who do not fulfil their financial obligations or who offend considerably against rules of an RTD contract from any further contract with Commission services;49. Asks the Court of Auditors to carry out for 1996 and subsequent years a precise evaluation of the administrative costs of specific research programmes under the fourth framework programme incurred not only by the Commission and its external consultants but also by those in receipt of appropriations;Pacte and Recite50. Notes that the decentralized structure in the management of the regional programmes Pacte and Recite has led to lack of control, mismanagement and substantial delays in payment from the Commission to the regional partners; calls on the Commission to introduce technical and legal instruments to ensure a better management structure;Advanced television services51.",
"Notes the Court of Auditors' suggestion that permanent financing of advanced television services from the Community budget should be avoided; therefore instructs its relevant committees to discuss thoroughly the future of the action plan for advanced television services before the first reading of the 1998 budget;European Vocational Training Policy52. Supports the Court of Auditors, with regard to the Community Action Programme for a European Vocational Training Policy, in advocating the establishment of a single selection procedure under the direct responsibility of the Commission; calls on the latter to make proposals for a change in its forthcoming interim report on the implementation of the programme with the aim of simplifying the application procedures;Justice and home affairs53. Regrets the improvised and disparate nature of the projects accepted by the Council in the area of justice and home affairs;54. Regrets the manner in which the Council, by Council Decision 95/402/JAI (3), has reduced the role of the Commission to that of a mere budgetary agent in the management of appropriations intended for cooperation in the area of justice and home affairs;55.",
"Regrets that of a total of 23 projects chargeable to budget Article B5-8 0 0, only five were submitted by the Commission; therefore calls on the Commission to make more use of its power of initiative in the areas covered by Article K.1 (1) to (6) of the Treaty;Lending and borrowing 56. Calls on the Commission, in its capacity as representative of the European Community shareholding in the European Investment Fund (EIF), to ensure the introduction of transparent public audit and control arrangements providing the taxpayer-investor with the necessary assurances as to the accountability of the EIF for its use of public funds;57. Asks the Court of Auditors and the Commission to report to Parliament at the soonest opportunity on the management and effectiveness of the Copenhagen facility, with particular reference to the functioning of the job creation criteria applied to interest rate subsidies;58. Calls on the Commission to submit proposals to the Intergovernmental Conference specifying that the audit rights of the Court of Auditors shall extend to include the financial management systems of all organizations managing Community funds;External policy areas 59.",
"Is alarmed by the growing imbalance between the size and diversity of the programmes and the capacity to implement them with, as a result, a very rapid increase in outstanding commitments and considerable problems with the spending of the appropriations available;60. Instructs its relevant committees to consider against this background whether it might be worthwhile to separate political decision-making from the task of programme management and project implementation;61. Instructs its relevant committees to investigate how the independence and credibility of the evaluation of projects and programmes funded from the Community budget can be enhanced and how the results from the evaluation can be effectively fed back into the Community's decision-making process;62. Calls on the Commission to harmonize procedures for procurement within the different Directorates-General in charge of external policies;63.",
"Asks the Court of Auditors to include in its work programme an enquiry on the adequacy and the effectiveness of the Commission's structure, procedures and allocation of human resources relating to development cooperation;Phare64. Deplores the lack of any clear political vision within the Commission either as to the achievements and effectiveness of Phare expenditure or as to its future role in contributing to the accession of applicant countries in central and eastern Europe to the EU; calls once again for an analysis of Phare's global impact on these countries over the last six years and a clear strategy for the next five years;Tacis65. Supports the Commission's intention to concentrate its activities under Tacis indicative programmes into no more than two sectors of intervention per beneficiary country: believes that, it effectively applied, this restriction should enable Tacis assistance to be used in a more focused and efficient manner; asks the Commission to report in detail on the outcome of this initiative in its follow-up report to this resolution;66. Continues to note with concern the chronic instability of staffing within the Commission's Directorate-General with responsibility for the management of Tacis and the difficulties this causes for the efficient management of the programme; calls on the Commission, in the absence of any serious prospect of new staff becoming available, to review the deployment of staff within DG 1A and, within the context of its efforts to concentrate Tacis interventions in fewer sectors, sharply to reduce the number of projects handled;67.",
"Expresses its deep concern at the inordinate slowness of the commitment, contracting and disbursement process under the Tacis programme; believes that no more than a year should ever normally elapse between the commitment of Tacis funds and the signing of the relevant contract; to this end, asks the Commission to introduce automatic procedures whereby commitments lapse if not contracted within 18 months;68. Asks the Commission to maximize, within the scope of the Tacis Regulation, its contributions to public investment projects, especially those co-financed with other donors;69. Re-emphasizes the extreme importance it attaches to the nuclear safety programmes; feels therefore great disquiet at the inability of the Commission to implement this policy meaningfully in the context of the Phare and Tacis programmes; calls on the Commission to set up a task force with responsibility, on an inter-departmental basis, for pooling and employing more effectively Commission resources in this sphere and to give the removal of the administrative, procedural and legal obstacles to the implementation of the programme absolute political priority and to bring all appropriate pressure to bear on beneficiary countries to this end;Development cooperation70.",
"Stresses the need for more expertise staff in the policy fields related to poverty eradication, including social development, gender, the environment and macro-economic policy;71. Calls on the Commission to clarify whether it has financed any part of the EDF from the EU budget;72. Calls on the Commission to clarify the objectives of budgetary aid to ensure both that it is used in social areas in ways that benefit people living in poverty, and that budgetary aid results in lager quantities of the budget of the recipient country being spent in basic social areas;73. Believes that the budgetary authority, with the assistance of the Commission, should simplify the procedures for releasing appropriations from the humanitarian aid reserve in order to speed up the mobilization thereof and thus avoid carrying over unused appropriations by ECHO to the following year;74. In the light of known information, directs its committees responsible to clearly investigate whether women are benefiting from the development programmes implemented by the Commission, in accordance with the Council's resolution of 20 December 1995 on gender and development;75. Calls on the Commission to ensure that ECU 2 million is spent on sports development projects in the townships in South Africa and requests a detailed report on how this is carried out;Common foreign and security policy76. Considers the special reports by the Court of Auditors on the European Union administration in Mostar and election observation in Palestine as confirming its view that the common foreign and security policy (CFSP) has brought about a dangerous blurring of responsibilities between the Council and the Commission which hinders Parliament in carrying out its task of calling the Commission to account in the context of the discharge procedure;77.",
"Calls for the organization and supervision of all future joint actions to be placed, from the date of the initial decision onwards, under the untrammelled responsibility of the Commission so as to guarantee transparency, continuity and effectiveness;78. Calls on the Commission to join with the Member States in setting up a preparatory group to develop, on the basis of experience of joint actions hitherto, procedures under which the organizational and financial technicalities of joint actions can be made to operate as rapidly and smoothly as possible;Administrative expenditure 79. Calls on the Commission to report to it on the circumstances which led it, following the evacuation of the Berlaymont building, to enter into a commitment, contrary to the promises made by the Belgian Government throughout the negotiations, to pay various property taxes in respect of the rental of buildings which it does not own;Subsidy to CERI80. Following a delegation visit to CERI in Florence, recommends that the Committee on Budgets retain in the reserve its funding for the 1997 financial year, pending receipt of a further report from the Committee on Employment and Social Affairs;Decentralized community agencies 81.",
"Thanks the Court of Auditors for the service of annual reports covering part of 1994 and the 1995 year;82. Supports the Committee on Budgets in its intention to bring the various statutes into a structure whereby the Commission exercises financial control, the European Parliament gives discharge, and income to agencies is classified as own resources;83. Insists, despite the low staff numbers, on separation of powers between authorizing officer and accounting officer because financial control is an essential prerequisite to receive Community funds;84. Recognizes to this end that the separation of powers is honoured as far as personnel are concerned, and looks forward to a new common accounting system which will exercise separation in the accounting function; welcomes the proposal of such an accounting system which could enable financial control to grant authorizations on an on-line basis from the Commission in Brussels;85. Calls upon the Commission, in the meanwhile, to implement Parliament's suggestion of part-time financial controllers to assist the agencies;SEM 2000 86. Invites the Commission to revise internal procedures for the selection, management and monitoring of measures funded directly by the Commission and for the payment of balances or recovery of incorrect payments;87. Is of the opinion that the question of interest earned on Community monies, already touched on in connection with SEM 2000, requires in-depth consideration across the board; calls upon the Commission to draw up Regulations concerning the use or, as the case may be, recovery of interest earned on Community monies; meanwhile, instructs its Committee on Budgetary Control to draw up a report in this connection;88. Urges the Commission to carry into effect its announcement to apply the rules on eligibility, as established in the framework of SEM 2000; asks for a review of these eligibility criteria before starting the next programming period;89.",
"Requests the Court of Auditors to publish a special report covering mainstreaming and measures to promote equal opportunities;90. Reiterates its call to the Court of Auditors to publish, as part of its annual report, a list setting out all refusals of approval by the institutions' financial controllers and, where appropriate, the overrule decisions. (1) OJ No C 150, 31. 5. 1993, p. 104. (2) OJ No L 374, 31. 12.",
"1988, p. 1. (3) OJ No L 238, 6. 10. 1995, p. 2."
]
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Citation Nr: 1116230
Decision Date: 04/26/11 Archive Date: 05/05/11
DOCKET NO. 10-19 031 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York
THE ISSUE
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Rebecca Feinberg, Counsel
INTRODUCTION
The Veteran had service from January 1951 to October 1952.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).
In July 2010, the Veteran and his representative participated in an informal conference with a Decision Review Officer at the RO. A report of this conference is of record.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. The Veteran has been granted service connection for posttraumatic stress disorder (PTSD), rated as 50 percent disabling, and shrapnel wound, right shoulder, involving muscle group II, rated as 30 percent disabling. His combined rating is 70 percent.
2. The competent evidence is at least evenly balanced on the question of whether the nature and severity of the Veteran's service-connected disabilities prevent him from obtaining and retaining substantially gainful employment.
CONCLUSION OF LAW
The criteria for a TDIU are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Given the full grant of the benefit sought on appeal, the Board finds that any discussion of the duties to notify and assist is unnecessary.
Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2010).
In this case, the Veteran meets the objective, minimum percentage requirements, set forth in 38 C.F.R. § 4.16(a), for consideration of a TDIU, as service connection is in effect for PTSD, rated as 50 percent disabling, and shrapnel wound, right shoulder, involving muscle group II, rated as 30 percent disabling. However, the remaining question is whether the Veteran's service-connected disabilities, in fact, render him unemployable. See 38 C.F.R. §§ 3.340, 3.341, 4.16.
The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2010); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).
In various written statements, the Veteran indicated that he could not work due to his service-connected disabilities. He also submitted a copy of an April 1989 letter to his former employer, in which he stated that he was retiring for health reasons, which were not specified.
During the course of this appeal, the Veteran was afforded several VA examinations. In October 2009, he underwent separate VA PTSD and muscle examinations. At that time, the PTSD examiner indicated that the Veteran did not demonstrate total occupational and social impairment due to PTSD. Instead, there was reduced reliability and productivity due to PTSD. Noted symptoms included rambling speech, distant relationships with his wife and children, social withdrawal resulting in no friends, few leisure activities, a history of suicide attempts, bizarre and disheveled clothing, easy distraction, loosening of executive cognitive functions, partial insight, nightmares, inappropriate behavior, panic attacks, an inability to maintain hygiene, interference with activities of daily living, and impaired remote and immediate memory. The muscles examiner indicated that the Veteran's right shoulder disability had a significant occupational effect.
In August 2010, the Veteran again underwent VA PTSD and muscles examination. During the PTSD examination, impairment of speech, appearance, affect, mood, orientation, thought process, and thought content was shown. He reported suicidal thoughts and panic attacks. The examiner noted that impairment of memory and a decline in cognitive functioning seemed to be age-related. The examiner opined that there was total occupational and social impairment due to PTSD but then clarified that occupational impairment was not solely related to PTSD. The Veteran's current cognitive impairment would preclude resuming any employment that might require periods of disciplined and cogent social interaction. The August 2010 VA examiner that conducted the muscles examination opined that it had a significant occupational effect. The examiner then clarified that the shoulder disability should not preclude him from working as a teacher. It would more likely than not preclude physical employment but should not affect sedentary employment.
None of the VA examination reports, nor any other evidence of record, contained an opinion as to whether the Veteran's service-connected disabilities, together, caused him to be unemployable.
However, evaluating the evidence of record, the Board finds that the evidence is at least evenly balance as to whether the Veteran's service-connected disabilities, together, render him unable to obtain or maintain substantially gainful employment. Specifically, the August 2010 VA PTSD examiner opined that the Veteran's PTSD, at least in part, caused total occupational and social impairment. While his age-related cognitive difficulties also played a part, the examiner did not separate which symptoms are attributable to each psychiatric disability. Furthermore, the August 2010 VA muscles examiner opined that the Veteran would be precluded from physical employment due to his right shoulder disability. Evaluating these opinions together, and in the absence of an opinion addressing both disabilities, the Board finds that the competent evidence of record establishes that the Veteran is unable to perform physical employment due to his right shoulder disability and demonstrates total occupational and social impairment due, at least in part, to his PTSD. As such, the evidence is at least in equipoise as to whether the Veteran has been rendered unemployable as a result of his service-connected disabilities. The claim is granted.
ORDER
Entitlement to a TDIU is granted, subject to the laws and regulations governing the payment of VA benefits.
____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 04-26-2011 | [
"Citation Nr: 1116230 Decision Date: 04/26/11 Archive Date: 05/05/11 DOCKET NO. 10-19 031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had service from January 1951 to October 1952. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2010, the Veteran and his representative participated in an informal conference with a Decision Review Officer at the RO. A report of this conference is of record.",
"Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has been granted service connection for posttraumatic stress disorder (PTSD), rated as 50 percent disabling, and shrapnel wound, right shoulder, involving muscle group II, rated as 30 percent disabling. His combined rating is 70 percent. 2. The competent evidence is at least evenly balanced on the question of whether the nature and severity of the Veteran's service-connected disabilities prevent him from obtaining and retaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R.",
"§§ 3.102, 3.340, 3.341, 4.16 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Given the full grant of the benefit sought on appeal, the Board finds that any discussion of the duties to notify and assist is unnecessary. Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.",
"See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2010). In this case, the Veteran meets the objective, minimum percentage requirements, set forth in 38 C.F.R. § 4.16(a), for consideration of a TDIU, as service connection is in effect for PTSD, rated as 50 percent disabling, and shrapnel wound, right shoulder, involving muscle group II, rated as 30 percent disabling. However, the remaining question is whether the Veteran's service-connected disabilities, in fact, render him unemployable. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is \"whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability.\" See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).",
"Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2010); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). In various written statements, the Veteran indicated that he could not work due to his service-connected disabilities. He also submitted a copy of an April 1989 letter to his former employer, in which he stated that he was retiring for health reasons, which were not specified. During the course of this appeal, the Veteran was afforded several VA examinations.",
"In October 2009, he underwent separate VA PTSD and muscle examinations. At that time, the PTSD examiner indicated that the Veteran did not demonstrate total occupational and social impairment due to PTSD. Instead, there was reduced reliability and productivity due to PTSD. Noted symptoms included rambling speech, distant relationships with his wife and children, social withdrawal resulting in no friends, few leisure activities, a history of suicide attempts, bizarre and disheveled clothing, easy distraction, loosening of executive cognitive functions, partial insight, nightmares, inappropriate behavior, panic attacks, an inability to maintain hygiene, interference with activities of daily living, and impaired remote and immediate memory. The muscles examiner indicated that the Veteran's right shoulder disability had a significant occupational effect.",
"In August 2010, the Veteran again underwent VA PTSD and muscles examination. During the PTSD examination, impairment of speech, appearance, affect, mood, orientation, thought process, and thought content was shown. He reported suicidal thoughts and panic attacks. The examiner noted that impairment of memory and a decline in cognitive functioning seemed to be age-related. The examiner opined that there was total occupational and social impairment due to PTSD but then clarified that occupational impairment was not solely related to PTSD. The Veteran's current cognitive impairment would preclude resuming any employment that might require periods of disciplined and cogent social interaction.",
"The August 2010 VA examiner that conducted the muscles examination opined that it had a significant occupational effect. The examiner then clarified that the shoulder disability should not preclude him from working as a teacher. It would more likely than not preclude physical employment but should not affect sedentary employment. None of the VA examination reports, nor any other evidence of record, contained an opinion as to whether the Veteran's service-connected disabilities, together, caused him to be unemployable. However, evaluating the evidence of record, the Board finds that the evidence is at least evenly balance as to whether the Veteran's service-connected disabilities, together, render him unable to obtain or maintain substantially gainful employment. Specifically, the August 2010 VA PTSD examiner opined that the Veteran's PTSD, at least in part, caused total occupational and social impairment. While his age-related cognitive difficulties also played a part, the examiner did not separate which symptoms are attributable to each psychiatric disability. Furthermore, the August 2010 VA muscles examiner opined that the Veteran would be precluded from physical employment due to his right shoulder disability.",
"Evaluating these opinions together, and in the absence of an opinion addressing both disabilities, the Board finds that the competent evidence of record establishes that the Veteran is unable to perform physical employment due to his right shoulder disability and demonstrates total occupational and social impairment due, at least in part, to his PTSD. As such, the evidence is at least in equipoise as to whether the Veteran has been rendered unemployable as a result of his service-connected disabilities. The claim is granted. ORDER Entitlement to a TDIU is granted, subject to the laws and regulations governing the payment of VA benefits. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs"
]
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Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 1 of 23
EXHIBIT A Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 2 of 23
S gay Alan C. Brandt
arpe LLP Emaiugé‘iiig'gifis‘iigiiigm . ., 4
Intellectual Property Law Dirac, 3159;555:995
— Email: mwillis@faysharpe.com
FOR SETTLEMENT PURPOSES ONLY
SUBJECT TO FEDERAL RULE OF EVIDENCE 408
April 25, 2017 Via Email (ondaswimming@gmail.com) U.S. First Class Mail
(Tracking No. 9114 9014 9645 1169 6150 75)
Rolandus Gimbutis
Oakland Undercurrent Swim Team
4096 Piedmont Ave #181
Oakland, CA 94611
Re: Unauthorized Copying and Distribution of Winning Isn't Normal and
Unauthorized Use of the WINNING ISN’T NORMAL Trademark FS Ref. No. BELK 900129USO1
Dear Mr. Gimbutis:
Our firm represents Dr. Keith Bell regarding the above captioned matter. Having received no
response to our initial letter e-mailed to you on April 4, 2017, we are resending our initial letter herewith via e-mail and U.S. First Class Mail. Please see the enclosed copy of our initial letter for additional information. Since it appears that you may not have received or may not have
opened our previous correspondence, our client is willing to extend the offer and associated conditions of our initial letter. Please provide your response by May 9, 2017. Even if you do not agree with certain portions of our initial letter, a response indicating your disagreements
would be useful in resolving this matter through further dialog and negotiations.
Nothing contained or omitted from this letter will be deemed to be an admission of any fact or waiver of any rights or remedies with respect to the subject of this letter, all of which rights and
remedies are expressly reserved.
Very truly yours,
Fay Sharpe LLP
24L adbwwflw Alan C. Brandt
Mandy B. Willis
BELK 9001290301 4027322 1
The Halls Building, 5th Floor I 1228
Telephone: 216.363.9000 I Facslml
PROTECTING IDEAS SI Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 3 of 23
ay Alan C. Brandt S ar e LLP . Direct Dial: 216.363.9114 Email: abrandtafaysharpecom
Intellectual Property Law Mandy B. Willls Direct Dial: 216.363.9176 — Email: mwillis@taysharpe.com
FOR SE1TLEMENT PURPOSES ONLY
SUBJECT TO FEDERAL RULE OF EVIDENCE 408
April 4, 2017 Via Email (ondaswimming @ gmail.com)
Rolandus Gimbutis Oakland Undercurrent Swim Team 4096 Piedmont Ave #181
Oakland, CA 94611
Re: Unauthorized Copying and Distribution of Winning Isn't Normal and
Unauthorized Use of the WINNING ISN'T NORMAL Trademark
FS Ref. No. BELK 900129USO1
Dear Mr. Gimbutis:
Our firm represents Dr. Keith Bell regarding the above captioned matter. Dr. Bell is the author
and owner of the copyright for a literary work entitled Winning Isn’t Normal (see Exhibit A -
Reg. No. TX0002672644). This copyrighted literary work is from Dr. Bell's Winning Isn’t NormalU series of literary works that are sold online through various outlets and distributed nationwide. For example, the Winning Isn’t Normal book as well as posters and t-shirts with
representations of the book’s page 8 are sold via Keel Publications (see Exhibit B). Keel provides Dr. Bell’s contact information for those interested in obtaining permissions and/or licenses authorizing copying and distribution of the copyrighted literary works. As emphasized
by the posters and t-shirts, Winning Isn’t Normal and the content of page 8 (see Exhibit 0) reflect the thesis for an approach to motivate winning (Le, success) that transcends
competitive sports to other fields in which success is desirable. Dr. Bell also has a federally registered trademark WINNING ISN'TNORMAL (see Exhibit D - Reg. No. 4,630,749) for printed matter, namely, non-fiction publications, namely, books, booklets, pamphlets articles manuals and posters in the field of sports, fitness, and competitive performance am;
psychology. Our client has expressed concern that the Oakland Undercurrent Swim Team (Oakland Undercurrent), 0r_PerhaPS an associate, has engaged In unauthorized copying a d distribution of a representation of page 8 of Winning Isn’t Normal and unauthorized n trademark. thereby infringing his copyright and trademark. use Of his
cember 23, 2015, an image representation of page 3 of WI . ’ On or about De Oakland Undercurrent’s Twrtter account (@ONDASS? ["9 lsn t Normal
was P05“ad on without proper attribution (see Exhibit E). The posted ima mteam) Without - ' nd ' ' '
aumonzamn ah of a textual representation of page 8- “We the congretrggrg‘seerigtion
not Identical to page_8. there are 0" r Chan es . . age - - ' IV mino
representation '5 - substantially similar to the content or Page 8. 'Ehus'?t:§;ggg and ’ T8 at
r I 1226 Euclid Avenue I Cleveland, OH 44115 . - ’ 5th Flog ' ,‘1
The Halle Bwldlng Facsimile: 363.9001 . www.myshamuom
Telephone: 216.363.9000 I Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 4 of 23
to M90 3 "id phOiocrephed the derivative textual
“3:222:22:testament: Wm «we .. this letter, the infringing post was ell an ndercurrent TWItter account. At the time of
UndercurrentsTwitter profile (See Exhibit F). , ll viewable and publicly accessible via the Oakland Our client was never contacted by Oakland Undercurrent or anyone else requesting permission to create the above-described derivati vs representations of page B or to post the derivative image representation anywhere on the lntemet. Moreover, the Image was posted on the Oakland Undercurrent Twitter account with no attribution to anyone. This leads
viewers of the post to believe incorrectly that Oakland Undercurrent is the author and/or
copyright owner or at least authorized to post the derivative image representation.
In the context of copyright infringement. willfulness is demonstrated by showing that an
infringer recklessly disregarded the possibility that its conduct represented infringement. The copyright owner is not required to show the infringer had knowledge that its actions constituted an Infringement. The test for willful copyright infringement is “objective recklessness“ OR “subjective intent." The concepts of “blind-eye intent" and "willful blindness" have also been used to explain the “recklessness” prong.
Under these circumstances. posting the derivative image representation of page a on the Oakland Undercurrent Twitter account is considered willful infringement. We also note that
Twitter warns users in its terms of service not to post content or take any action that infringes
or violates someone else's rights. Twitter users that post or share content that is generated
by someone else do so at their own risk. Depending on the circumstances, the posting of Infringing content can create liability for willful copyright infringement. Moreover, in addition to liability for direct infringement arising from the post, Oakland Undercurrent could be liable for creating unauthorized derivative works if Oakland Undercurrent personnel and/or an associate created any of the unauthorized derivative representations.
In view of the facts and information provided above, Oakland Undercurrent is liable for at least direct copyright infringement and trademark infringement. Our client would like to resolve this matter amicably without resorting to litigation. In order to do so, we require that Oakland Undercurrent take the following steps: . . ‘ d excerpts or re rese t ti
1) 2:;mediatel i denti 6;" remove public displays or substantially of any similar to any portion unauthonze _ . of Winning p Isn't Normal orn aany one of that our
client's other works and any unauthorized uses Of the registered trademark; . ‘ ‘ ‘ i an unauth ‘
cease and deem further dissemination o y orized excer ts or 2) itpri‘eesdeihttealtions that are identical or substantially similar to any portion of p . Winnin Isn’t
Normal or any of our client's other works and any unauthorized uses of the regigtered trademark; t from acqumng any Una th rt cease and deSIS . u 0‘ 29d axes ts 3) lmrgggziitions that are identical or substantially similar to any Portion of Winngg I53;
mane! or any of our client's other works, ions 0‘ any unauth i stro all electronic vars. or 4) lmri'r‘eesdeifittaailtiongathatyare identical or substantially similar to any pom re
. r"
non SETTLEMENT PURPOSES ONLY i su|3JIECT To Elisa“. RULE OF EVIDENCE 403 Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 5 of 23 Oakland Undercurrent SWIm I earn
April 4, 2017 Page 3 ed uses of the registered
Normal or any of our client’s other works and any unauthoriz trademark; ts of all distributions,
5) Provide us with an explanation ofons the ofnature, duration, excerpts unauthorized and amounor representations by displays, and other disseminati Oakland Undercurrent that are identical or substantially similar to any portion of the copyrighted literary work Winning Isn’t Normal or any of our client’s other works and any unauthorized uses of the registered trademark;
6) If any of the unauthorize presentations of page 8 of Winning Isn’t Normal were not created by Oakland Undercurrent personnel or an associate, provide us hich such unauthorized derivative repress ' ' ' with the source from w xed copies of any unauthorized excerpts or representations 7) Deliver all paper and other fl r to any portion of the copyrighted literary work
that are identical or substantially simila f our client’s other works and any unauthorized uses of the Winning Isn’t Normal or any 0 registered trademark to our office for destruction; and n exchange for releasing Oakland nt to our office i ement associated with the 8) Send a $25,000 settlement payme Undercurrent from liability for copyright and trademark infring actions described above. lopment and authorized invested significant funds we are prepared to take aggressive Our client has d literary work. As such, If Oakland Undercurrent dissemination of his copyrights east initiate best efforts in legal action to protect our client’s Winning Isn’t Normal copyright. t reserves the right to seek all does not take the steps enumerated above or does not at I
negotiating a reasonable settlement of this matter, our clien remedies provided by law, including injunctions; actual damages; statutory damages; fun hie attorneys’ fees. the $25,000 settlement offer and the other steps
Please advrs 'I 18, 2017. Once we hear from you, we shall provide a settlement liability for copyright and trademark Oakland Undercurrent from ent fee and performance of the above es terms, please let us know.
ned or omitted from eemed to be an admission of any fact or Nothing contai th respect to the su ights or remedies WI bject of this letter. all of which rights and waiver of any r xpressly reserved. remedies are e Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 6 of 23
EXHIBIT A Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 7 of 23 v. —‘—__-v--—._-.v._ -v-—v— —v‘ 7
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EXHIBIT B Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 9 of 23
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319.95 “9.95
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EXHIBIT C Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 16 of 23
Winning Isn’t Normal Winning isn't normal. That doesn't mean there's anything
wrong with winning. It just isn't the norm. It's highly unusual.
Every race only has one winner. No matter how many
people are entered (not to mention all those who tried and failed to make cuts), only one person (or one relay) wrns each event.
Winning is unusual. As such, it requires unusual action. In order to win, you must do extraordinary things. You can't
just be one of the crowd. The crowd doesn't wrn. You have to be willing to stand out and act differently.
Your actions need to reflect unusual values and priorities.
You have to value success morethan others do. You have to
want it more. (Now, take note! Wanting it more is a decision
you make and act upon -— not some inherent quality or burning inner drive or inspiration!) And you have. to make that value
a priority.
You can't train like everyone else. You have to train more
and train better. You can't talk like everyone else. You can't think like every-
one else. You can't be too willing to join the crowd, to do What
is expected, to act in a socially accepted manner, to do what's
You need to be willing to stand out in the crowd and
consistantly take exceptional action. If you want to win, you need to accept the risks and perhaps the loneliness . . . because Winning isn 't normalll Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 17 of 23 Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 18 of 23
“min étates of am Mitzi! States 3mm aim Hirahemark @ftite til}?
WINNING ISN'T NORMAL
Reg. No. 4,630,749 BELL. KEITH FRANK (UNITED STATES INDIVIDUAL) . 3101 MSTYGLEN CIRCLE
Registered Nov. 4, 2014 AUSTIN,Tx7s146
Int. CL: 16 FOR: PRINTED MA'ITER. NAMELY, NON-FICTION PUBLICATIONS, NAMELY, BOOKS, BOOKLETS, PAMPHLBTS.ARITcu-:s, MANUALS AND POSTERS IN THE FIELD OF SPORTS, FITNESS, AND COMPETITIVE PERFORMANCE AND PSYCHOLOGY, IN CLASS TRADEMARK 16 (U.S. CLS. 2. s, 22, 23, 29, 37. 38 AND 50).
PRINCIPAL REGISTER FIRST USE 9-73.1978; IN COMMERCE 12-31-1982.
THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY PAR-
TICU'LAR FONT. STYLE, SlZE. OR COLOR
SER. NO. 85-947.685, FILED 5-31-2013.
SUSAN STIGLITZ, EXAMINING ATTORNEY
mmmmuuwm MHTr-Icmukotnu Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 19 of 23
EXHIBIT E Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 20 of 23 1/2/16. 1355 ’1 Oaumdlhduwmtmmunolw
Oakland Undercurrent wrists FO;;O\‘.‘ERS LIKES LISTS eONDAsm'mteam 244 37 5 1 2: Follow
‘5’ oaklandundercurrentorg Oaldand UM i‘ONDAswimteam - 23 Dec 2015 Joined July 2013 Winning isn't normal...
to 191 Photos and videos
Winning isn't normal. That doesn't mean there is anything wrong wrth wining. it just isn't normal. It's highly unusual.
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Oakland Undercurrent ‘ONDAswimteam - 25 Nov 2015
Social kick to finish pre thanksgiving
practice. Special guest today @noshirtmike V l
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’4 NC‘. 20‘5 Oakland Undercurrent CNDAs 2"”.3‘"
Surprise tent visit by AnthonyErvin at swim meet this weekend.
Oakland Undercurrent of‘mAsWimteam - 7 Nov 2015
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Winning isn't normal...
WINNING ISN’T NORMAL . .AJ\
Winmng isn'I normal. That doesn’t mean Ihere is anything <.
wrong with winning. It just isn't normal. It's highly unusual.
Every competition has only one winner. No matter how many 4‘ mph: are enrered. only one person or team wins the championship.
Winning is unusml - as such it requires unusual action.
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I! more. WANTle IT MORE IS A DECISION YOU MAKE
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"Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 1 of 23 EXHIBIT A Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 2 of 23 S gay Alan C. Brandt arpe LLP Emaiugé‘iiig'gifis‘iigiiigm . ., 4 Intellectual Property Law Dirac, 3159;555:995 — Email: mwillis@faysharpe.com FOR SETTLEMENT PURPOSES ONLY SUBJECT TO FEDERAL RULE OF EVIDENCE 408 April 25, 2017 Via Email (ondaswimming@gmail.com) U.S. First Class Mail (Tracking No. 9114 9014 9645 1169 6150 75) Rolandus Gimbutis Oakland Undercurrent Swim Team 4096 Piedmont Ave #181 Oakland, CA 94611 Re: Unauthorized Copying and Distribution of Winning Isn't Normal and Unauthorized Use of the WINNING ISN’T NORMAL Trademark FS Ref.",
"No. BELK 900129USO1 Dear Mr. Gimbutis: Our firm represents Dr. Keith Bell regarding the above captioned matter. Having received no response to our initial letter e-mailed to you on April 4, 2017, we are resending our initial letter herewith via e-mail and U.S. First Class Mail. Please see the enclosed copy of our initial letter for additional information. Since it appears that you may not have received or may not have opened our previous correspondence, our client is willing to extend the offer and associated conditions of our initial letter. Please provide your response by May 9, 2017. Even if you do not agree with certain portions of our initial letter, a response indicating your disagreements would be useful in resolving this matter through further dialog and negotiations. Nothing contained or omitted from this letter will be deemed to be an admission of any fact or waiver of any rights or remedies with respect to the subject of this letter, all of which rights and remedies are expressly reserved.",
"Very truly yours, Fay Sharpe LLP 24L adbwwflw Alan C. Brandt Mandy B. Willis BELK 9001290301 4027322 1 The Halls Building, 5th Floor I 1228 Telephone: 216.363.9000 I Facslml PROTECTING IDEAS SI Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 3 of 23 ay Alan C. Brandt S ar e LLP . Direct Dial: 216.363.9114 Email: abrandtafaysharpecom Intellectual Property Law Mandy B. Willls Direct Dial: 216.363.9176 — Email: mwillis@taysharpe.com FOR SE1TLEMENT PURPOSES ONLY SUBJECT TO FEDERAL RULE OF EVIDENCE 408 April 4, 2017 Via Email (ondaswimming @ gmail.com) Rolandus Gimbutis Oakland Undercurrent Swim Team 4096 Piedmont Ave #181 Oakland, CA 94611 Re: Unauthorized Copying and Distribution of Winning Isn't Normal and Unauthorized Use of the WINNING ISN'T NORMAL Trademark FS Ref.",
"No. BELK 900129USO1 Dear Mr. Gimbutis: Our firm represents Dr. Keith Bell regarding the above captioned matter. Dr. Bell is the author and owner of the copyright for a literary work entitled Winning Isn’t Normal (see Exhibit A - Reg. No. TX0002672644). This copyrighted literary work is from Dr. Bell's Winning Isn’t NormalU series of literary works that are sold online through various outlets and distributed nationwide. For example, the Winning Isn’t Normal book as well as posters and t-shirts with representations of the book’s page 8 are sold via Keel Publications (see Exhibit B).",
"Keel provides Dr. Bell’s contact information for those interested in obtaining permissions and/or licenses authorizing copying and distribution of the copyrighted literary works. As emphasized by the posters and t-shirts, Winning Isn’t Normal and the content of page 8 (see Exhibit 0) reflect the thesis for an approach to motivate winning (Le, success) that transcends competitive sports to other fields in which success is desirable. Dr. Bell also has a federally registered trademark WINNING ISN'TNORMAL (see Exhibit D - Reg. No. 4,630,749) for printed matter, namely, non-fiction publications, namely, books, booklets, pamphlets articles manuals and posters in the field of sports, fitness, and competitive performance am; psychology. Our client has expressed concern that the Oakland Undercurrent Swim Team (Oakland Undercurrent), 0r_PerhaPS an associate, has engaged In unauthorized copying a d distribution of a representation of page 8 of Winning Isn’t Normal and unauthorized n trademark. thereby infringing his copyright and trademark. use Of his cember 23, 2015, an image representation of page 3 of WI . ’ On or about De Oakland Undercurrent’s Twrtter account (@ONDASS? [\"9 lsn t Normal was P05“ad on without proper attribution (see Exhibit E). The posted ima mteam) Without - ' nd ' ' ' aumonzamn ah of a textual representation of page 8- “We the congretrggrg‘seerigtion not Identical to page_8.",
"there are 0\" r Chan es . . age - - ' IV mino representation '5 - substantially similar to the content or Page 8. 'Ehus'?t:§;ggg and ’ T8 at r I 1226 Euclid Avenue I Cleveland, OH 44115 . - ’ 5th Flog ' ,‘1 The Halle Bwldlng Facsimile: 363.9001 . www.myshamuom Telephone: 216.363.9000 I Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 4 of 23 to M90 3 \"id phOiocrephed the derivative textual “3:222:22:testament: Wm «we .. this letter, the infringing post was ell an ndercurrent TWItter account. At the time of UndercurrentsTwitter profile (See Exhibit F). , ll viewable and publicly accessible via the Oakland Our client was never contacted by Oakland Undercurrent or anyone else requesting permission to create the above-described derivati vs representations of page B or to post the derivative image representation anywhere on the lntemet. Moreover, the Image was posted on the Oakland Undercurrent Twitter account with no attribution to anyone. This leads viewers of the post to believe incorrectly that Oakland Undercurrent is the author and/or copyright owner or at least authorized to post the derivative image representation.",
"In the context of copyright infringement. willfulness is demonstrated by showing that an infringer recklessly disregarded the possibility that its conduct represented infringement. The copyright owner is not required to show the infringer had knowledge that its actions constituted an Infringement. The test for willful copyright infringement is “objective recklessness“ OR “subjective intent.\" The concepts of “blind-eye intent\" and \"willful blindness\" have also been used to explain the “recklessness” prong. Under these circumstances. posting the derivative image representation of page a on the Oakland Undercurrent Twitter account is considered willful infringement. We also note that Twitter warns users in its terms of service not to post content or take any action that infringes or violates someone else's rights. Twitter users that post or share content that is generated by someone else do so at their own risk. Depending on the circumstances, the posting of Infringing content can create liability for willful copyright infringement. Moreover, in addition to liability for direct infringement arising from the post, Oakland Undercurrent could be liable for creating unauthorized derivative works if Oakland Undercurrent personnel and/or an associate created any of the unauthorized derivative representations. In view of the facts and information provided above, Oakland Undercurrent is liable for at least direct copyright infringement and trademark infringement.",
"Our client would like to resolve this matter amicably without resorting to litigation. In order to do so, we require that Oakland Undercurrent take the following steps: . . ‘ d excerpts or re rese t ti 1) 2:;mediatel i denti 6;\" remove public displays or substantially of any similar to any portion unauthonze _ . of Winning p Isn't Normal orn aany one of that our client's other works and any unauthorized uses Of the registered trademark; . ‘ ‘ ‘ i an unauth ‘ cease and deem further dissemination o y orized excer ts or 2) itpri‘eesdeihttealtions that are identical or substantially similar to any portion of p . Winnin Isn’t Normal or any of our client's other works and any unauthorized uses of the regigtered trademark; t from acqumng any Una th rt cease and deSIS . u 0‘ 29d axes ts 3) lmrgggziitions that are identical or substantially similar to any Portion of Winngg I53; mane! or any of our client's other works, ions 0‘ any unauth i stro all electronic vars.",
"or 4) lmri'r‘eesdeifittaailtiongathatyare identical or substantially similar to any pom re . r\" non SETTLEMENT PURPOSES ONLY i su|3JIECT To Elisa“. RULE OF EVIDENCE 403 Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 5 of 23 Oakland Undercurrent SWIm I earn April 4, 2017 Page 3 ed uses of the registered Normal or any of our client’s other works and any unauthoriz trademark; ts of all distributions, 5) Provide us with an explanation ofons the ofnature, duration, excerpts unauthorized and amounor representations by displays, and other disseminati Oakland Undercurrent that are identical or substantially similar to any portion of the copyrighted literary work Winning Isn’t Normal or any of our client’s other works and any unauthorized uses of the registered trademark; 6) If any of the unauthorize presentations of page 8 of Winning Isn’t Normal were not created by Oakland Undercurrent personnel or an associate, provide us hich such unauthorized derivative repress ' ' ' with the source from w xed copies of any unauthorized excerpts or representations 7) Deliver all paper and other fl r to any portion of the copyrighted literary work that are identical or substantially simila f our client’s other works and any unauthorized uses of the Winning Isn’t Normal or any 0 registered trademark to our office for destruction; and n exchange for releasing Oakland nt to our office i ement associated with the 8) Send a $25,000 settlement payme Undercurrent from liability for copyright and trademark infring actions described above.",
"lopment and authorized invested significant funds we are prepared to take aggressive Our client has d literary work. As such, If Oakland Undercurrent dissemination of his copyrights east initiate best efforts in legal action to protect our client’s Winning Isn’t Normal copyright. t reserves the right to seek all does not take the steps enumerated above or does not at I negotiating a reasonable settlement of this matter, our clien remedies provided by law, including injunctions; actual damages; statutory damages; fun hie attorneys’ fees. the $25,000 settlement offer and the other steps Please advrs 'I 18, 2017. Once we hear from you, we shall provide a settlement liability for copyright and trademark Oakland Undercurrent from ent fee and performance of the above es terms, please let us know. ned or omitted from eemed to be an admission of any fact or Nothing contai th respect to the su ights or remedies WI bject of this letter. all of which rights and waiver of any r xpressly reserved.",
"remedies are e Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 6 of 23 EXHIBIT A Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 7 of 23 v. —‘—__-v--—._-.v._ -v-—v— —v‘ 7 name STAKE COUVQICNT 05:40: This certificate, insured under the seal of the Compton ugemnmuuqaan mmmme wiinihearovtelomoiumlcneiom ' 1’ ‘f at we 17. United Sim Code. mas Il'iatmpyrlphtmg- TX .2 '67‘2 m iwmnmbunmmmmmniimmw.m immmmmmmnmmupwunn £0:me WWII”?! REGISTERG‘OOPTFHGMS 0‘ my“: ae- ? 3W— UFHUAL SEAL W Status of America mummmamauct rmummnzmuuaemmcmmoum 1 mormrswoutv Hm: he's Hamel ' FIEVIOUSORAIIERNA‘ITVETITLES' mucxnm ASACDNTIIB‘UTIDN imam rupIIIiIHIeIunMWIoept-ml. “MprmlmiIdb alien-n- \"A. u- what- \"id mutt-um app-nod Title I! Connie-M. upmarnapwuorwlpvrmo' WV “at? an.» NAME OF AII’THOIV DEBS aim AN!) m - ‘MI was D\"! V ,1 Kent: Frank Bell ' T3235 _ m: uunmlmwn lo the won- in :mm “mm a “Emu ms THIS RUTH 'qul nub fun but\" 'W’M’ ll 8 A THE WORK \"II-“u- 3“. “lmd'W WP DhENO No WEI Wmmn‘ Cl 'II- B No 3.2::— NOW A ISIIII’ [nifty dumb: mun ed the magnum it this Run“ in w “We is data-d V wan-u Entire Text “'H‘i‘me ' mm n , NAME Of AUTHOR V amt); ‘anv HIIW‘ } Mm itm rnnl‘mlnn in tun-1’s; m NATDNAUTY 0‘ 0094K“!",
"mm & “AUTHOR‘S (BMW [3 1,, \"‘b Cur-nut} mnm‘ D R: D (so a. UN\" MMJ-nbw— Mmm Chum, «zip-.1.“ ' ' ' “hi TIES Of AETEDRSHIP lair mesa-1b: Haired the mental and b, ill-hither a ulna new. Hm {U DATES . . , g E: 3:70: Ill\"! AND‘gsgl'}! .. S C a .\" ' \"damn\" I its tantra AUTHOR'S NATIONALITY on Donnell; \" M r Uh lhl M‘M «I: M- Mr, NM (03:53:;(5 It}: walls.‘ ms comm N g I] ‘tn memoir math-m. Malaysian,» E Li h M D Li V\" Ni: ‘me he 1:; 5‘an Multan... APR-CATIOH “GEM ,- 4 01 Hist lea Circle . ' V m as to an“; t“: :1” 1\" l : - [Fl FD Dl‘n “litl . 1598 Uinfnl’d AVQ gm ism“, 7ng .- ram c“ 93°“ 5% alto-CM ' ' .",
"l. mill“ uni. menu MM M;?Jp:,minuuuu mama-r h uwlmweW-uiemlalm Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 8 of 23 EXHIBIT B Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 9 of 23 cl Publications omw78716 / EL PM”: 126274280 - P0 sax 16065 lsn 1 Normal. Series Winning by Dr. Keith Bell Dr. Bell has hclpcd tens ‘ y their pursuit of excellence. ‘ New Zealand. Hong Kong, 76 Rule: The Punt“! Guido 319.95 “9.95 Sam e—Day Shipping this week! ORDER BELOW cormcnrnomAiimW-dmmmm pol-dd U W wwwdmmwotpmmmmmmm Mu-mmtmm'o WWII! MW \"IV whyWUOVU'N-r '3“ “M m .uiw‘vmw“ mumyawmm WINNING I var l 39-” 93”\" $19.95 soltco bestseller motivates the reader to do what it takes to win This timeless .",
"cd of short early-reed Ind easily-applied 52:13:11: ' and to pursuit of exec report the reader for optimal pedal-mane: lb wisdom in order to p this book bursts WI tin-limiting, nod more. The smmgie; taking charge. creating a winning environment, performmg ms, or most any 0 any sport, as well as business, are readily applied t endeavor. 72 pages. comment: Bolts of PSYCHOLOGY FOR SWIMMERs The Not! 8‘ m I $9.99 monk $19.95 loltco 03y for swimmers,\" this classic beams“ er» Referred to as \"the bible of sports psychol comprised ofshort, casy-to-reod, easily-applied training, sections, competing more off\"; theInd climax m _ “P1533 for troinig better, enjoyment of ' American-Statesman reports: Mob” fo r winning strategies. The Austm Swmuncrs could just as easily apply to any sport or any “deem in whi performance is desired\" and Runner's World concurS. Stating: Imp.““mm nth iIt'lliit‘ovins ingot/3nd,: 'swrmmer With 'runner’ and you‘c got your runncr‘s book.\" 72 ° ‘ W\"!",
"or I We _ OLD: Goal Setting for Swimmers ‘1 0M3“! .1, TARGET ON G 80mm $19.95 Ioftcovcr | $9.99 030011 Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 10 of 23 Keel Publlcatlons nulls-cl. nan I W“ 2\"\" \"Goals are merely excuses for the games. They allow you to play. They bring meaning and excitement to the game of life, A goal provides opportunity for involvement. The better formed the goal and the more highly valued it is, the more complete the or immersion in its pursuit. A total absorption in the quest gets you truly engaged in life, M / W; feeling alive, performing better, reaping the rewards and squem'ng out every drop of meaning life has to offer.\" — Dr. Keith Bell, Target on Gold 76 RULES {or Outperlorming the Competition — $19.95 lntemationally known performance expert, Dr. Keith Bell, presenu 76 rules that comprise a philosophy for excellence.",
"Here is a system of principles devised to take you on the richest and most meaningful ride to outperforming the competition, winning life's individual games, and enjoying all of y9ur pursuits. (eBook coming soon) THE PARENT'S GUIDE u m Proper mam Cm e Fosdhg «a: W Swimmer— $19.95 “MW” PARENTS—hereistheultimateguidetowhattodotohelpyourchildgetthemost out of his competitive swimming experience. learn why swimming is the best choice for your child, what to expect from a team, the coach, yonrswimmer, and the sport. . Practical advice in a quick. easy. enjoyable read. Cm / Baum (eBook coming soon) THE SWIM TO WIN PLAYBOOK — $34.95 Sohcover More than 150 games, drills, and quizzes designed to foster competitive swimming excellence and enjoyment. Complete with sample plays from Olympic quadruple gold @ medalist, Amy Van Dyken, and Olympic triple gold medalists, Sandy Neilson—Bell and Josh Davis.",
"This book will help swimmer: to play their way to victory. Great for mental skills training for the entire team. 256 pages. Workbook. 9mm / mm COACHING EXCELLENCE — $24.95 Sammy“ Maps the path to coaching success. Designed with the busy coach in mind: written in short, easily-digestible sections. For coaches who want to excel at coaching athletes to m excellence. 154 pages. .. ' l .. . Comments RELAXATION TRAINING — CD $19.95 Leamrelaxation mum mmmmmaumyormmwhne CD conserving energy. Great forhandlingpressure, managingpnin, incensed concentration, mental rehearsal, and promoting rat and movay. Side One: N Relaxation/1' ension Contrast. 17 min. Side Two: Relaxation without Tug, 11 min. ‘ m CHAMPIONSHIP SPORTS PSYCHOLOGY A guide to developing psychological skills for peak athletic m_ Pr . i an k .",
"in-depth look at: Championship Ihmhng. Imagmal Practice, Rem Goal 8 . eBoo Comm soon Motivation, Conndence, Pain, Fatigue, and Anxiety Management. 192 m WHAT IT TAKES: mac's aim: YOU ONLY FEEL WET WHEN YOU'RE DDT OF WWW naught on Psychology l COMM: e ' soon Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 11 of 23 i13Bin.wgms5mhau.;18i2sne,zis? “a2n. \"s5:.an Nan“meowmsa ._xi Jmi.nH .Eas4giK9gE3éRuoBxEl: 3:8 Mgavdm =§E. 38 F S£ 5 Bozu mag EII\". : ~$5Na.§3Z3. >202 Logo: . :.53—.5.3 NMSmEoH.m :5. as.is:caue-=3 runs 35£l89a53%? 2.5: 9.3:; ril BoaNEgano n aka 3.: € 3 . 3 : l i t il’.",
"r po lemi uh p n ~5 ch :33 38. . .3 S. Range» $2 RSN\\M U_ E8.meoun q—a x \"B c 4UU Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 12 of 23 . \"t w§3§ . :m §—28 .§3.3 -$th ..33 n S. a: 53 ii €3 nos-ea: mSEagi FVCEO Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 13 of 23 .- wiaxgaligI-I .- Jug-nag «lotiIan-D‘E1, 2.6— 2.3m “on? .3 . gx.8 8&Rum.u 2. R. g . NW N RSQNE Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 14 of 23 i- E2$053:8.0 ome- Guamno 82-Rm. ‘i‘izisgsgisillguio .",
". ,. {Stiahmeuszl-on? : Ex82 {Dligcanh—s8u2% no:a::cRaE3SEh5:uan35o35:. .590 aa 8° i8 ~u=tc>2 :33£0.25:.5 a, : a. T Iai d g k ise g a a9.2re.s. .icaés} awe- m e wam cumNEE—am: an.2.582m2:5 canismcan3.6 9Ea35:H26: 302xom S:E9N gram v z _ z _ 3 3:05.2 a._m,-. m_- .H. :-H.u.8_-§:w m. @mMW§m a~§ $3 2é¥u 2.5 «was.» . 5 RSQNE B.” Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 15 of 23 EXHIBIT C Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 16 of 23 Winning Isn’t Normal Winning isn't normal. That doesn't mean there's anything wrong with winning. It just isn't the norm.",
"It's highly unusual. Every race only has one winner. No matter how many people are entered (not to mention all those who tried and failed to make cuts), only one person (or one relay) wrns each event. Winning is unusual. As such, it requires unusual action. In order to win, you must do extraordinary things. You can't just be one of the crowd. The crowd doesn't wrn. You have to be willing to stand out and act differently. Your actions need to reflect unusual values and priorities. You have to value success morethan others do. You have to want it more.",
"(Now, take note! Wanting it more is a decision you make and act upon -— not some inherent quality or burning inner drive or inspiration!) And you have. to make that value a priority. You can't train like everyone else. You have to train more and train better. You can't talk like everyone else. You can't think like every- one else. You can't be too willing to join the crowd, to do What is expected, to act in a socially accepted manner, to do what's You need to be willing to stand out in the crowd and consistantly take exceptional action. If you want to win, you need to accept the risks and perhaps the loneliness . .",
". because Winning isn 't normalll Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 17 of 23 Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 18 of 23 “min étates of am Mitzi! States 3mm aim Hirahemark @ftite til}? WINNING ISN'T NORMAL Reg. No. 4,630,749 BELL. KEITH FRANK (UNITED STATES INDIVIDUAL) . 3101 MSTYGLEN CIRCLE Registered Nov. 4, 2014 AUSTIN,Tx7s146 Int. CL: 16 FOR: PRINTED MA'ITER. NAMELY, NON-FICTION PUBLICATIONS, NAMELY, BOOKS, BOOKLETS, PAMPHLBTS.ARITcu-:s, MANUALS AND POSTERS IN THE FIELD OF SPORTS, FITNESS, AND COMPETITIVE PERFORMANCE AND PSYCHOLOGY, IN CLASS TRADEMARK 16 (U.S. CLS. 2. s, 22, 23, 29, 37. 38 AND 50). PRINCIPAL REGISTER FIRST USE 9-73.1978; IN COMMERCE 12-31-1982. THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY PAR- TICU'LAR FONT. STYLE, SlZE.",
"OR COLOR SER. NO. 85-947.685, FILED 5-31-2013. SUSAN STIGLITZ, EXAMINING ATTORNEY mmmmuuwm MHTr-Icmukotnu Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 19 of 23 EXHIBIT E Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 20 of 23 1/2/16. 1355 ’1 Oaumdlhduwmtmmunolw Oakland Undercurrent wrists FO;;O\\‘.‘ERS LIKES LISTS eONDAsm'mteam 244 37 5 1 2: Follow ‘5’ oaklandundercurrentorg Oaldand UM i‘ONDAswimteam - 23 Dec 2015 Joined July 2013 Winning isn't normal... to 191 Photos and videos Winning isn't normal. That doesn't mean there is anything wrong wrth wining. it just isn't normal. It's highly unusual.",
"Every competition has only one winner. No matter how many Wmemed,onlyone rsonorte ' _. De amwrnsthe fleet unusual yams . , . more than others doand pnontles. You IT MORE .5 Van have to want mo ACT upon - NOT sous lQHDEEClSloN you MAKE BURNING INNER on. . ENT UALITY make mat yam a \"anion INSPIRA O Q OR o Y“. rm’\" 1\". «A mdnwlttomomlonw Page 1 of 9 Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 21 of 23 1/2/16.",
"1:50 r\"! '~. ‘akland Undercurrent (OONDAswlmteam) | Twitter um\" \"KC evefyone else, Val hay ' me and \"am but\". e to train :3: 5:20! talk we everyone else. You cannot think like do Mm else. You cannot be to mum to loin the crowd- '0 do w h at ls no expected. \"In . You to acttoin bea need socnally Wllllng accepted to rmnncf- stand out in the ‘0 Cl’nwrl an» annular-nun. .. « 1.1 v Oakland Undercurrent ‘ONDAswimteam - 25 Nov 2015 Social kick to finish pre thanksgiving practice. Special guest today @noshirtmike V l h t3 ’4 NC‘. 20‘5 Oakland Undercurrent CNDAs 2\"”.3‘\" Surprise tent visit by AnthonyErvin at swim meet this weekend.",
"Oakland Undercurrent of‘mAsWimteam - 7 Nov 2015 0 Yoga before swimmlng '\"staQVam-COWp/stQonlzc/ Q Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 22 of 23 . E :J m u RSWI man In ?reI_src =strc°$5 EgoogIe‘WlCmcamp xsésérniinzé V Home 9 Mom“. , “wwwkw,” Have an amoun” Log inv 6 Oakland Undercurrent MEETS FOLLOWERS wuss um @ONDAsvnmIoam 317 —— 42 II 1 3- Follow “\" I r , “ Oakland Undorcurrlnl L’rvOIIDAsmmeam 23 Do: 2015 V Winning isn't normal... WINNING ISN’T NORMAL . .AJ\\ Winmng isn'I normal. That doesn’t mean Ihere is anything <. wrong with winning. It just isn't normal. It's highly unusual. Every competition has only one winner. No matter how many 4‘ mph: are enrered.",
"only one person or team wins the championship. Winning is unusml - as such it requires unusual action. In order Io win, you must do nxlraordlnnry things. You cam-rot In“ be on oi Ihe uowd. Ihn crowd doesn't win You have to ‘. be willing lo sand our and an dilierunuy. .. Your anions need Io reflecl unusual values and priorities. You have m wine Megs; more than others do. You have to want I! more. WANTle IT MORE IS A DECISION YOU MAKE AND ACT UPON - NOT SOME INHERENT QUALITY OR BURNING INNER DRIVE OR INSPIRATIONI You luvs lo we \"ml value a gummy. on: A.",
"You came! (mm Ilia ova one on. You mm, wt mac ) ma mun bum. W tour. Q\\ 13 U Oakland Unducumnt ONDAsmmleam 25 Nov ZOIS ‘ . v ,A at\" @ Social kick to finish pre thanksglvmg practice. Special guest today @noshirtmike - at Laney College 7,: rt; Case 4:19-cv-01308-JST Document 68-15 Filed 05/18/20 Page 23 of 23 C! 2“an 2?.«NA E: a: E r53: :26: 5:.",
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"( 4‘2 0 _ 5: . .a m=c :iz,. rag . 5.2.9.5; YI. mEcE> 20.1 1:»t5."
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/148962681/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
The Philadelphia and Camden Ferry Company, one of the complainants herein, operates a ferry between Camden and Philadelphia. At the Camden terminal of the ferry, the ferry company owns a tract of land known as the "Plaza." This plaza is adjacent to the ferry house and extends therefrom easterly to Delaware avenue, and affords the only means of ingress and egress to and from the ferry. Foot passengers use sidewalks on the extreme northerly and southerly side of the plaza, one leading to Market street, Camden, the other to Federal street, and a sidewalk extends across the westerly end of the plaza adjacent to the ferry house. Under a lease from the ferry company, trolley cars operate on the plaza adjacent to each of these two sidewalks, the northerly car line leading to Market street, the southerly line to Federal street; these trolley lines each extend westerly only to a point approximately two hundred feet from the ferry house, thus leaving an unoccupied space adjacent to each sidewalk extending from the *Page 452 trolley tracks to the ferry house. Vehicles to and from the ferry pass over two driveways, one adjacent to the northerly trolley line and leading to Market street, the other adjacent to the southerly trolley line and leading to Federal street, each driveway also connecting with Delaware avenue. The ferry company by contract with its co-complainant, Yellow Cab Company, conferred upon the latter company the exclusive right to maintain a taxicab service at its terminal "for the purpose of soliciting patronage." By its terms the contract is not to interfere with the use of the plaza by other taxicabs or vehicles of any nature. Commercial vehicles may deliver passengers and baggage and meet passengers by engagement, and private vehicles may do the same. The exclusive right conferred upon the Yellow Cab Company is limited to occupying the terminal to solicit patronage. The contract does not specifically define the space the taxicabs of the Yellow Cab Company shall occupy; but the testimony discloses that in operating under the contract the space occupied by the Yellow Cab Company has been the two vacant spaces already referred to, one adjacent to the sidewalk on the southerly side of the plaza and the other adjacent to the sidewalk on the northerly side of the plaza, each space extending from the end of the trolley right of way toward the ferry house approximately one hundred feet, or slightly more than one-half the distance to the ferry house. These spaces have been marked on the pavement and the exclusive use of these spaces has been maintained by the Yellow Cab Company except as interfered with by taxicabs of defendants who claim the right to occupy those spaces and there solicit patronage. The contract contains numerous provisions designed to secure adequate service by the contracting taxicab company. It provides for continuous service adequate to take care of all patrons requiring service; the minimum number of cars to be determined by the ferry company; the reasonableness of the rates to be charged to be passed upon by the ferry company; rates to be posted; the character of the equipment is stipulated and employes objectionable to the ferry company are to be withdrawn. All these and other similar stipulations designed *Page 453 to secure a high class of service and to confer upon the ferry company a supervisory power, are also secured by a bond of the taxicab company. The evidence further discloses that the space in front of the sidewalk adjacent to the ferry house is open for use by private cars or any taxicabs or commercial cars to discharge passengers and baggage and to take on and transfer any passengers ready for transportation; but no cars of any kind are allowed to remain there to solicit patronage. The evidence also discloses that another space is provided where cars of any kind may be parked for a limited period, but not for soliciting commercial patronage, and another space is assigned to and used by buses in discharging passengers and receiving such passengers as are ready for transportation. In this manner adequate facilities appear to be provided for all classes of vehicles and for the traveling public. The only use of the plaza which the restraint now sought will deny is the privilege claimed by defendant taxicab owners to occupy the plaza to solicit patronage. The contract between the ferry company and taxicab company requires the latter company to pay to the former a percentage of its gross receipts, but specifically provides that the taxicab company shall not be deemed the agent of the ferry company and that the latter company shall not be liable for any damages arising through negligence of the taxicab company. Complainant ferry company owes to its patrons the duty to provide means of ingress and egress to and from its ferry. Pursuant to that duty, the territory known as the "Plaza" has been devoted by the ferry company to that specific use. The plaza has thus become a part of the terminal grounds of the ferry company. From that duty of the ferry company springs the right of patrons of the ferry to travel safely over that terminal tract to and from the ferry by appropriate means of travel. That view was made the basis of the decisions in Public Service Railway Co. v. Township of Weehawken, 94 N.J. Eq. 88, and Philadelphia andCamden Ferry Co. v. Johnson, 94 N.J. Eq. 296. But the duty referred to *Page 454 does not embrace a requirement for the ferry company to afford to taxicab owners a place on the plaza to occupy in solicting business; as against those not using the plaza to reach and leave the ferry, the plaza tract is the private property of the ferry company and subject to its control so long as adequate facilities are afforded the ferry patrons. If any part of the tract is capable of use by the ferry company that does not interfere with the discharge of its obligations as a ferry company, that company, as an incident of its ownership, has a right to use or permit others to use the land for any lawful purpose. The views here expressed are little more than a brief summary of the principles defined in Delaware, Lackawanna and Western RailroadCo. v. Town of Morristown, 276 U.S. 182; Donovan v.Pennsylvania Co., 199 U.S. 279; Thompson's Express and StorageCo. v. Mount, 91 N.J. Eq. 497. An injunction will issue pursuant to the prayer of the bill. | 07-05-2016 | [
"The Philadelphia and Camden Ferry Company, one of the complainants herein, operates a ferry between Camden and Philadelphia. At the Camden terminal of the ferry, the ferry company owns a tract of land known as the \"Plaza.\" This plaza is adjacent to the ferry house and extends therefrom easterly to Delaware avenue, and affords the only means of ingress and egress to and from the ferry. Foot passengers use sidewalks on the extreme northerly and southerly side of the plaza, one leading to Market street, Camden, the other to Federal street, and a sidewalk extends across the westerly end of the plaza adjacent to the ferry house. Under a lease from the ferry company, trolley cars operate on the plaza adjacent to each of these two sidewalks, the northerly car line leading to Market street, the southerly line to Federal street; these trolley lines each extend westerly only to a point approximately two hundred feet from the ferry house, thus leaving an unoccupied space adjacent to each sidewalk extending from the *Page 452 trolley tracks to the ferry house. Vehicles to and from the ferry pass over two driveways, one adjacent to the northerly trolley line and leading to Market street, the other adjacent to the southerly trolley line and leading to Federal street, each driveway also connecting with Delaware avenue.",
"The ferry company by contract with its co-complainant, Yellow Cab Company, conferred upon the latter company the exclusive right to maintain a taxicab service at its terminal \"for the purpose of soliciting patronage.\" By its terms the contract is not to interfere with the use of the plaza by other taxicabs or vehicles of any nature. Commercial vehicles may deliver passengers and baggage and meet passengers by engagement, and private vehicles may do the same. The exclusive right conferred upon the Yellow Cab Company is limited to occupying the terminal to solicit patronage. The contract does not specifically define the space the taxicabs of the Yellow Cab Company shall occupy; but the testimony discloses that in operating under the contract the space occupied by the Yellow Cab Company has been the two vacant spaces already referred to, one adjacent to the sidewalk on the southerly side of the plaza and the other adjacent to the sidewalk on the northerly side of the plaza, each space extending from the end of the trolley right of way toward the ferry house approximately one hundred feet, or slightly more than one-half the distance to the ferry house.",
"These spaces have been marked on the pavement and the exclusive use of these spaces has been maintained by the Yellow Cab Company except as interfered with by taxicabs of defendants who claim the right to occupy those spaces and there solicit patronage. The contract contains numerous provisions designed to secure adequate service by the contracting taxicab company. It provides for continuous service adequate to take care of all patrons requiring service; the minimum number of cars to be determined by the ferry company; the reasonableness of the rates to be charged to be passed upon by the ferry company; rates to be posted; the character of the equipment is stipulated and employes objectionable to the ferry company are to be withdrawn.",
"All these and other similar stipulations designed *Page 453 to secure a high class of service and to confer upon the ferry company a supervisory power, are also secured by a bond of the taxicab company. The evidence further discloses that the space in front of the sidewalk adjacent to the ferry house is open for use by private cars or any taxicabs or commercial cars to discharge passengers and baggage and to take on and transfer any passengers ready for transportation; but no cars of any kind are allowed to remain there to solicit patronage. The evidence also discloses that another space is provided where cars of any kind may be parked for a limited period, but not for soliciting commercial patronage, and another space is assigned to and used by buses in discharging passengers and receiving such passengers as are ready for transportation. In this manner adequate facilities appear to be provided for all classes of vehicles and for the traveling public.",
"The only use of the plaza which the restraint now sought will deny is the privilege claimed by defendant taxicab owners to occupy the plaza to solicit patronage. The contract between the ferry company and taxicab company requires the latter company to pay to the former a percentage of its gross receipts, but specifically provides that the taxicab company shall not be deemed the agent of the ferry company and that the latter company shall not be liable for any damages arising through negligence of the taxicab company. Complainant ferry company owes to its patrons the duty to provide means of ingress and egress to and from its ferry. Pursuant to that duty, the territory known as the \"Plaza\" has been devoted by the ferry company to that specific use. The plaza has thus become a part of the terminal grounds of the ferry company. From that duty of the ferry company springs the right of patrons of the ferry to travel safely over that terminal tract to and from the ferry by appropriate means of travel.",
"That view was made the basis of the decisions in Public Service Railway Co. v. Township of Weehawken, 94 N.J. Eq. 88, and Philadelphia andCamden Ferry Co. v. Johnson, 94 N.J. Eq. 296. But the duty referred to *Page 454 does not embrace a requirement for the ferry company to afford to taxicab owners a place on the plaza to occupy in solicting business; as against those not using the plaza to reach and leave the ferry, the plaza tract is the private property of the ferry company and subject to its control so long as adequate facilities are afforded the ferry patrons. If any part of the tract is capable of use by the ferry company that does not interfere with the discharge of its obligations as a ferry company, that company, as an incident of its ownership, has a right to use or permit others to use the land for any lawful purpose.",
"The views here expressed are little more than a brief summary of the principles defined in Delaware, Lackawanna and Western RailroadCo. v. Town of Morristown, 276 U.S. 182; Donovan v.Pennsylvania Co., 199 U.S. 279; Thompson's Express and StorageCo. v. Mount, 91 N.J. Eq. 497. An injunction will issue pursuant to the prayer of the bill."
]
| https://www.courtlistener.com/api/rest/v3/opinions/3557976/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Notice of Pre-AIA or AIA Status The present application is being examined under the pre-AIA first to invent provisions.
DETAILED ACTION 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 8/4/2021 has been entered.
Claim Status Claims 1, 3, 9, 25 and 28-30 are pending. Claims 1 and 28 have been amended. Claims 1, 3, 9, 25 and 28-30 are being examined in this application.
Claim Rejections - 35 USC § 103 The rejection of claims 1, 3, 9 and 28-29 under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Gerber et al. in view of Ogden et al. is withdrawn in view of the amendments to the claims. The rejection of claims 1, 3, 9, 25 and 28-30 under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Gerber et al. in view of Ogden et al. and Plouffe is withdrawn in view of the amendments to the claims. The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action: (a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
This is a new rejection. Claims 1, 3, 9 and 28-29 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Rupp et al. (J Antimicrob Chemother. 2001 May; 47(5):705-707) in view of Ogden et al. (Advance data from vital and health statistics, number 347, October 27, 2004). Rupp et al. teach that a rat central venous catheter (CVC) infection model was used to assess the activity of LY333328 (i.e. oritavancin) against vancomycin-resistant Enterococcus faecium (VRE) (i.e. an Enterococci species) (abstract). Rupp et al. further teach that twenty-four hours after the inoculation of bacteria, eight rats were treated with a single 20 mg/kg injection of LY333328 administered via the CVC (page 705, right column, 2nd para). Rupp et al. also teach that LY333328, administered as a single dose, exhibited excellent activity against VRE1227 in a rat model of CVC infection (page 707, left column, 3rd para). Rupp et al. do not teach: 1) the single dose comprises at least 1200 mg oritavancin; and 2) the subject is human. st para). It would have been obvious to one of ordinary skill in the art to intravenously administer a single dose of 20mg/kg oritavancin to humans suffering from bacterial infections caused by Enterococcus faecium because Rupp et al. teach that a single dose of 20 mg/kg oritavancin exhibited excellent activity against vancomycin-resistant Enterococcus faecium. One of ordinary skill in the art would have been motivated to administer doses ranging from approximately 1480 to 1720 mg because Ogden et al. teach mean weight of humans ranging from approximately 74 kg to 86 kg.
This is a new rejection. Claims 1, 3, 9, 25 and 28-30 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Rupp et al. (J Antimicrob Chemother. 2001 May; 47(5):705-707) in view of Ogden et al. (Advance data from vital and health statistics, number 347, October 27, 2004) as applied to claims 1, 3, 9 and 28-29 above, and further in view of Breedt et al. (Antimicrob Agents Chemother. 2005 Nov; 49(11): 4658–4666). The teachings of Rupp et al. and Ogden et al. with respect to claims 1, 3, 9 and 28-29 have been discussed above. Rupp et al. and Ogden et al. do not teach the bacterial infection is a bacterial skin infection. Enterecoccus faecium (page 4659, left column, 1st para). It would have been obvious to one of ordinary skill in the art at the time of the invention to treat complicated skin and skin structure infection caused by Enterecoccus faecium by administering a single dose of 20 mg/kg oritavancin because Breedt et al. teach that complicated skin and skin structure infection is caused by Enterecoccus faecium, and further because Rupp et al. teach that a single dose of 20 mg/kg oritavancin exhibited excellent activity against vancomycin-resistant Enterococcus faecium.
Double Patenting The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
This is a new rejection. Claims 1, 3, 9 and 28-29 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 5-7, 9, 11-13, 15, and 17-18 of copending Application No. 14/914,792 in view of Rupp et al. (J Antimicrob Chemother. . Although the claims at issue are not identical, they are not patentably distinct from each other because they relate to the same method. '792 claims a method of treating bacteremia (i.e. a bacterial infection) (claim 1), bacteremia and osteomyelitis (claim 7) and endocarditis (claim 13) in a subject comprising administering a therapeutically effective amount of oritavancin, wherein the bacteremia is caused by a Gram-positive organism (claims 3, 9, and 15) and the therapeutically effective amount of oritavancin is at least 1200 mg (claims 5-6, 11-12, and 17-18). The cited claims of '792 do not teach the bacteria recited in instant claims 1 and 28. ‘792 also do not teach intravenous administration. These deficiencies are cured by the teachings of Rupp et al. which establish that intravenous oritavancin is effective in treating vancomycin-resistant Enterococcus faecium (VRE) (i.e. an Enterococci species). Thus, it would have been a prima facie obvious modification of the claims of '792 to use the method of copending '792 to treat VRE infections with a reasonable expectation of success. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
This is a new rejection. Claims 1, 3, 9, 25 and 28-30 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 5-7, 9, 11-13, 15, and 17-18 of copending Application No. 14/914,792 in view of Rupp et al. (J Antimicrob Chemother. 2001 May; 47(5):705-707) and Breedt et al. (Antimicrob Agents Chemother. The teachings of ‘792 and Rupp et al. with respect to claims 1, 3, 9 and 28-29 have been discussed above. ‘792 and Rupp et al. do not teach the bacterial infection is a bacterial skin infection. Breedt et al. teach that complicated skin and skin structure infection is caused by Enterecoccus faecium (page 4659, left column, 1st para). It would have been obvious to one of ordinary skill in the art at the time of the invention to treat complicated skin and skin structure infection caused by Enterecoccus faecium by administering a single dose of 20 mg/kg oritavancin because Breedt et al. teach that complicated skin and skin structure infection is caused by Enterecoccus faecium, and further because Rupp et al. teach that a single dose of 20 mg/kg oritavancin exhibited excellent activity against vancomycin-resistant Enterococcus faecium.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SERGIO COFFA whose telephone number is (571)270-3022. The examiner can normally be reached on M-F: 6AM-4PM. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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.
/SERGIO COFFA Ph.D./ Primary Examiner Art Unit 1658
/SERGIO COFFA/Primary Examiner, Art Unit 1658 | 2021-12-10T07:33:28 | [
"Notice of Pre-AIA or AIA Status The present application is being examined under the pre-AIA first to invent provisions. DETAILED ACTION 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 8/4/2021 has been entered. Claim Status Claims 1, 3, 9, 25 and 28-30 are pending. Claims 1 and 28 have been amended. Claims 1, 3, 9, 25 and 28-30 are being examined in this application. Claim Rejections - 35 USC § 103 The rejection of claims 1, 3, 9 and 28-29 under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Gerber et al. in view of Ogden et al. is withdrawn in view of the amendments to the claims. The rejection of claims 1, 3, 9, 25 and 28-30 under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Gerber et al. in view of Ogden et al. and Plouffe is withdrawn in view of the amendments to the claims.",
"The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action: (a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.",
"Patentability shall not be negatived by the manner in which the invention was made. This is a new rejection. Claims 1, 3, 9 and 28-29 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Rupp et al. (J Antimicrob Chemother. 2001 May; 47(5):705-707) in view of Ogden et al. (Advance data from vital and health statistics, number 347, October 27, 2004). Rupp et al. teach that a rat central venous catheter (CVC) infection model was used to assess the activity of LY333328 (i.e. oritavancin) against vancomycin-resistant Enterococcus faecium (VRE) (i.e. an Enterococci species) (abstract). Rupp et al. further teach that twenty-four hours after the inoculation of bacteria, eight rats were treated with a single 20 mg/kg injection of LY333328 administered via the CVC (page 705, right column, 2nd para). Rupp et al. also teach that LY333328, administered as a single dose, exhibited excellent activity against VRE1227 in a rat model of CVC infection (page 707, left column, 3rd para).",
"Rupp et al. do not teach: 1) the single dose comprises at least 1200 mg oritavancin; and 2) the subject is human. st para). It would have been obvious to one of ordinary skill in the art to intravenously administer a single dose of 20mg/kg oritavancin to humans suffering from bacterial infections caused by Enterococcus faecium because Rupp et al. teach that a single dose of 20 mg/kg oritavancin exhibited excellent activity against vancomycin-resistant Enterococcus faecium. One of ordinary skill in the art would have been motivated to administer doses ranging from approximately 1480 to 1720 mg because Ogden et al.",
"teach mean weight of humans ranging from approximately 74 kg to 86 kg. This is a new rejection. Claims 1, 3, 9, 25 and 28-30 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Rupp et al. (J Antimicrob Chemother. 2001 May; 47(5):705-707) in view of Ogden et al. (Advance data from vital and health statistics, number 347, October 27, 2004) as applied to claims 1, 3, 9 and 28-29 above, and further in view of Breedt et al. (Antimicrob Agents Chemother. 2005 Nov; 49(11): 4658–4666). The teachings of Rupp et al. and Ogden et al. with respect to claims 1, 3, 9 and 28-29 have been discussed above. Rupp et al. and Ogden et al. do not teach the bacterial infection is a bacterial skin infection. Enterecoccus faecium (page 4659, left column, 1st para).",
"It would have been obvious to one of ordinary skill in the art at the time of the invention to treat complicated skin and skin structure infection caused by Enterecoccus faecium by administering a single dose of 20 mg/kg oritavancin because Breedt et al. teach that complicated skin and skin structure infection is caused by Enterecoccus faecium, and further because Rupp et al. teach that a single dose of 20 mg/kg oritavancin exhibited excellent activity against vancomycin-resistant Enterococcus faecium. Double Patenting The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed.",
"Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969). The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens.",
"An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp. This is a new rejection. Claims 1, 3, 9 and 28-29 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 5-7, 9, 11-13, 15, and 17-18 of copending Application No. 14/914,792 in view of Rupp et al. (J Antimicrob Chemother. . Although the claims at issue are not identical, they are not patentably distinct from each other because they relate to the same method. '792 claims a method of treating bacteremia (i.e. a bacterial infection) (claim 1), bacteremia and osteomyelitis (claim 7) and endocarditis (claim 13) in a subject comprising administering a therapeutically effective amount of oritavancin, wherein the bacteremia is caused by a Gram-positive organism (claims 3, 9, and 15) and the therapeutically effective amount of oritavancin is at least 1200 mg (claims 5-6, 11-12, and 17-18).",
"The cited claims of '792 do not teach the bacteria recited in instant claims 1 and 28. ‘792 also do not teach intravenous administration. These deficiencies are cured by the teachings of Rupp et al. which establish that intravenous oritavancin is effective in treating vancomycin-resistant Enterococcus faecium (VRE) (i.e. an Enterococci species). Thus, it would have been a prima facie obvious modification of the claims of '792 to use the method of copending '792 to treat VRE infections with a reasonable expectation of success. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented. This is a new rejection. Claims 1, 3, 9, 25 and 28-30 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 5-7, 9, 11-13, 15, and 17-18 of copending Application No.",
"14/914,792 in view of Rupp et al. (J Antimicrob Chemother. 2001 May; 47(5):705-707) and Breedt et al. (Antimicrob Agents Chemother. The teachings of ‘792 and Rupp et al. with respect to claims 1, 3, 9 and 28-29 have been discussed above. ‘792 and Rupp et al. do not teach the bacterial infection is a bacterial skin infection. Breedt et al. teach that complicated skin and skin structure infection is caused by Enterecoccus faecium (page 4659, left column, 1st para). It would have been obvious to one of ordinary skill in the art at the time of the invention to treat complicated skin and skin structure infection caused by Enterecoccus faecium by administering a single dose of 20 mg/kg oritavancin because Breedt et al.",
"teach that complicated skin and skin structure infection is caused by Enterecoccus faecium, and further because Rupp et al. teach that a single dose of 20 mg/kg oritavancin exhibited excellent activity against vancomycin-resistant Enterococcus faecium. Any inquiry concerning this communication or earlier communications from the examiner should be directed to SERGIO COFFA whose telephone number is (571)270-3022. The examiner can normally be reached on M-F: 6AM-4PM. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool.",
"To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. 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. /SERGIO COFFA Ph.D./ Primary Examiner Art Unit 1658 /SERGIO COFFA/Primary Examiner, Art Unit 1658"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-12-12.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 0634347
Decision Date: 11/07/06 Archive Date: 11/16/06
DOCKET NO. 03-22 589 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for an
acquired psychiatric disorder.
2. Entitlement to service connection for a chronic heart
disorder.
3. Entitlement to service connection for a back disability.
4. Entitlement to service connection for a right knee
disability.
5. Entitlement to service connection for a left knee
disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Stephen L. Sylvester, Counsel
INTRODUCTION
The veteran served on active duty from January 1955 to March
1957.
This case comes before the Board of Veterans' Appeals (Board)
on appeal of an April 2003 decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Buffalo, New
York.
In May 1959, and most recently, in a decision of November
1969, the Board denied entitlement to service connection for
an acquired psychiatric disorder. Since the time of the
November 1969 decision, the veteran has submitted additional
evidence in an attempt to reopen his claim. The RO found
such evidence neither new nor material, and the current
appeal ensued.
For reasons which will become apparent, the appeal as to the
issue of whether new and material evidence has been submitted
sufficient to reopen a previously-denied claim for service
connection for an acquired psychiatric disorder is being
REMANDED to the RO via the Appeals Management Center (AMC) in
Washington, D.C. VA will notify you if further action is
required on your part.
FINDINGS OF FACT
1. A chronic heart disorder is not shown to have been
present in service, or for many years thereafter, nor is it
the result of any incident or incidents of the veteran's
period of active military service.
2. A chronic back disability is not shown to have been
present in service, or for many years thereafter, nor is it
the result of any incident or incidents of the veteran's
period of active military service.
3. A chronic right knee disability is not shown to have been
present in service, or for many years thereafter, nor is it
the result of any incident or incidents of the veteran's
period of active military service.
4. A chronic left knee disability is not shown to have been
present in service, or for many years thereafter, nor is it
the result of any incident or incidents of the veteran's
period of active military service.
CONCLUSIONS OF LAW
1. Chronic heart disease was not incurred in or aggravated
by active military service, nor may such a disability be
presumed to have been so incurred. 38 U.S.C.A. §§ 1101,
1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303,
3.307, 3.309 (2006).
2. A chronic back disorder was not incurred in or aggravated
by active military service, nor may osteoarthritis of the
lumbar spine be presumed to have been so incurred.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West
2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006).
3. A chronic right knee disorder was not incurred in or
aggravated by active military service, nor may osteoarthritis
of the right knee be presumed to have been so incurred.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West
2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006).
4. A chronic left knee disability was not incurred in or
aggravated by active military service, nor may osteoarthritis
of the left knee be presumed to have been so incurred.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West
2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claim Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (Nov. 9, 2000) [codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126
(West 2002)] redefined VA's duty to assist a veteran in the
development of his claims. VA regulations for the
implementation of the VCAA were codified as amended at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006).
The notice requirements of the VCAA require VA to notify a
veteran of any evidence that is necessary to substantiate his
claims, as well as the evidence VA will attempt to obtain and
which evidence his responsible for providing. Quartuccio v.
Principi, 16 Vet App. 183 (2002). The requirements apply to
all five elements of a service connection claim: veteran
status, existence of a disability, connection between the
veteran's service and the disability, degree of disability,
and effective date of disability. Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006). Such notice must be
provided to a claimant before the initial unfavorable
decision on a claim for VA benefits by the agency of original
jurisdiction (in this case, the RO). Id.; see also Pelegrini
v. Principi, 18 Vet. App. 112 (2004). However, the VCAA
notice requirements may be satisfied if any errors in the
timing or content of such notice are not prejudicial to the
claimant. See Pelegrini v. Principi, 18 Vet. App. at 121.
In this case, in correspondence of October 2001, September
2002 and October 2002, the RO provided notice to the veteran
regarding what information and evidence was needed to
substantiate his claims for service connection, as well as
what information and evidence should be submitted by him,
what information and evidence would be obtained by VA, and
the need for the veteran to advise VA of or submit any
further evidence that pertains to his claims.
The record also reflects that VA has made reasonable efforts
to obtain relevant records adequately identified by the
veteran. Specifically, the information and evidence that
have been associated with the claims file includes the
veteran's service medical records, as well as VA and private
inpatient and outpatient treatment records and examination
reports.
As discussed above, the VCAA provisions have been considered
and complied with. There is no indication that there is
additional evidence to obtain, there is no additional notice
that should be provided, and there has been a complete review
of all the evidence without prejudice to the appellant. As
such, there is no indication that there is any prejudice to
the appellant by the order of events in this case. See
Bernard v. Brown, 4 Vet. App. 384 (1993). Moreover, as the
Board concludes below that a preponderance of the evidence is
against the appellant's claims for service connection, any
question as to an appropriate evaluation or effective date to
be assigned is rendered moot. Any error in the sequence of
events or content of the notice is not shown to have had any
effect on the case, or to have caused injury to the claimant.
Thus, any such error is harmless and does not prohibit
consideration of this matter on the merits. See Dingess,
supra.; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549
(Fed. Cir. 1998).
Analysis
In reaching the following determination, the Board has
reviewed all the evidence in the appellant's claims file,
which includes: his multiple contentions; service medical
records; and VA and private medical records and examination
reports. Although the Board has an obligation to provide
reasons and bases supporting its decision, there is no
requirement that the evidence submitted by the appellant or
obtained on his behalf be discussed in detail. Rather, the
Board's analysis below will focus specifically on what
evidence is needed to substantiate each claim and what the
evidence in the claims file shows, or fails to show, with
respect to each claim. See Gonzales v. West, 218 F.3d 1378,
1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet.
App. 122, 128-30 (2000).
The veteran in this case seeks service connection for back
and heart disorders, as well as for a bilateral knee
disability. In pertinent part, it is contended that all of
the aforementioned disabilities had their origin during the
veteran's period of active military service.
In that regard, service connection may be established for a
disability resulting from disease or injury incurred in or
aggravated by service. 38 U.S.C.A. §§ 1110, 1131;
38 C.F.R. § 3.303. Evidence of continuity of symptomatology
from the time of service until the present is required where
the chronicity of a condition manifested during service
either has not been established or might reasonably be
questioned. 38 C.F.R. § 3.303(b). Regulations also provide
that service connection may be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disability
was incurred in service. 38 C.F.R. § 3.303(d).
In order to establish service connection for a claimed
disability, there must be (1) medical evidence of a current
disability; (2) medical, or in certain circumstances lay
evidence of the incurrence or aggravation of a disease or
injury during service; and (3) medical evidence of a nexus
between the claimed inservice disease or injury and the
current disability. Hickson v. West, 12 Vet. App. 247, 253
(1999).
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 cardiovascular (heart) disease
or osteoarthritis becomes manifest to a degree of 10 percent
within one year of 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. This presumption is rebuttable by
affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101,
1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309
(2006).
In the present case, service medical records fail to document
the presence of chronic heart, back, or knee disabilities.
In that regard, while on service entrance examination in
January 1955, there was noted the presence of lordosis, there
is no indication that, at any time during service, the
veteran received a diagnosis of or treatment for a chronic
back disability. While in March 1956, the veteran indicated
that he had injured his back, resulting in a transverse
lumbosacral and left-sided sciatic-type pain, that episode
was, apparently, acute and transitory, and resolved without
residual disability. Significantly, while in May 1956, the
veteran complained of transverse lumbosacral pain with
radiation down his left leg, ankle reflexes at that time were
intact, and motion of the veteran's back and legs was within
normal limits.
The Board concedes that, in August 1956, while in service,
the veteran was felt to have sustained a minimal sprain of
his right knee following a fall into a hole. However, such
symptomatology was likewise acute and transitory, and
required no treatment. Moreover, while in a Report of
Medical Survey dated in early November 1956, the veteran's
blood pressure was 116/98, there is absolutely no indication
that, at that time, or at any time during the veteran's
period of active military service, he received treatment for
or a diagnosis of heart disease. Significantly, that Medical
Survey, conducted just prior to the veteran's separation from
service, yielded no evidence of chronic heart, back, or knee
disability. Moreover, in a private Medical Certificate dated
in January 1968, it was noted that a complete physical
examination showed no evidence of any physical disorder, and
that a neurological evaluation was within normal limits.
The earliest clinical indication of the presence of a right
knee disability is revealed by a VA orthopedic examination
dated in September 1976, many years following the veteran's
period of active service, at which time it was noted that the
veteran had sustained a fracture of the right patella, as
well as of the right tibia and fibula, as the result of a
motor vehicle accident the previous December. There was no
mention of any in-service knee injury. X-ray revealed the
residuals of fracture but was otherwise normal and revealed
smooth appearing margins. His right knee symptoms were
attributed to the fractures. There were no left knee
complaints noted at that time. A left knee disability was
first noted no earlier than the early 1990's, once again,
many years following the veteran's discharge from service.
Regarding the veteran's heart disease, the Board notes that,
as early as 1987, the veteran began to experience an ill-
defined angina. Reportedly, in 1996, a stent was placed for
apparent coronary artery and/or ischemic heart disease.
However, there is no indication that the veteran's current
heart disease had its origin during his period of active
military service. Arthritis of the lumbosacral spine, first
diagnosed in March 1990, has similarly shown no nexus to any
incident or incidents of the veteran's period of active
service.
The Board has taken into consideration the veteran's
contentions regarding the origin of his current heart, back,
and knee disabilities. However, based on the entire evidence
of record, with significant weight accorded to the acute
nature of the findings in service and the negative physical
examination in 1968, 11 years after the fact, there exists no
demonstrated relationship between the claimed disabilities
and the veteran's period of active military service.
Moreover, the lack of complaints or findings at the 1968
examination preponderates against a finding of continuity of
symptomatology. Finally, there is no evidence of arthritis
or heart disease within one year following discharge from
service. Accordingly, service connection on a direct and
presumptive basis must be denied.
In reaching the conclusions above the Board has considered
the applicability of the benefit of the doubt doctrine.
However, as the preponderance of the evidence is against the
veteran's claim, that doctrine is not applicable in the
instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v.
Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v.
Derwinski, 1 Vet. App. 49, 55-57 (1991).
ORDER
Service connection for a chronic heart disability is denied.
Service connection for a chronic back disorder is denied.
Service connection for a right knee disability is denied.
Service connection for a left knee disability is denied.
REMAND
In addition to the aforementioned, the veteran in this case
seeks service connection for an acquired psychiatric
disorder. In pertinent part, it is argued that new and
material evidence has, in fact, been submitted sufficient to
reopen the veteran's previously-denied claim for that
disability.
In that regard, the Board notes that, during the pendency of
this appeal, the United States Court of Appeals for Veterans
Claims (Court) issued a decision in Kent v. Nicholson, 20
Vet. App. 1 (2006). In that decision, the Court held that VA
must notify a claimant of the evidence and information
necessary to reopen a previously denied claim (here, the
claim for service connection for an acquired psychiatric
disorder), as well as the evidence and information necessary
to establish entitlement to the underlying benefit sought,
i.e., service connection. In that case, the Court noted that
VA's obligation to provide a claimant with notice of what
constitutes new and material evidence to reopen a service
connection claim may be affected by the evidence which was of
record at the time that the prior claim was finally denied.
The Court further stated that the VCAA requires, in the
context of a claim to reopen, that the Secretary look at the
bases for the denial in the prior decision(s), and respond
with a notice letter which describes what evidence would be
necessary to substantiate the element or elements required to
establish service connection which were found insufficient in
the previous denials.
The Board observes that, while in correspondence of September
2002, the veteran was furnished with a basic description of
what constitutes "new and material evidence," he has not been
provided notice which fully complies with the newly-specified
criteria as noted in Kent, supra. (i.e., the type of evidence
which would be new and material based on the reasons for the
prior denial). Such notice must be provided to the veteran
prior to a final adjudication of his current claim for
service connection for an acquired psychiatric disorder.
Finally, during the pendency of this appeal, the United
States Court of Appeals for Veterans Claims (Court) issued a
decision in the consolidated appeal of Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA
notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) apply to all five elements of a service connection
claim, including the degree of disability and the effective
date of an award. In the present appeal, the appellant was
provided with notice of what type of information and evidence
was needed to substantiate his claim for service connection,
but he was not provided with notice of the type of evidence
necessary to establish a disability rating or effective date
for the disability on appeal. Thus, on remand the RO should
provide corrective notice.
Accordingly, in light of the aforementioned, the case is
REMANDED to the RO for the following actions:
1. The RO should review the veteran's
claims file, and ensure that all
notification and development action
required by 38 U.S.C.A. §§ 5102, 5103,
and 5103A (West 2002) is fully complied
with and satisfied with respect to the
issue of whether new and material
evidence has been submitted to reopen a
claim of service connection for an
acquired psychiatric disorder. The
notice should also address what evidence
would be necessary to substantiate that
element or elements required to establish
service connection that were found
insufficient in the previous denials, as
outline by the Court in Kent v.
Nicholson, 20 Vet. App. 1 (2006). In
addition, the letter should advise that a
disability rating and effective date will
be assigned if service connection is
granted, as well as the information and
evidence necessary to substantiate such,
as outlined by the Court in
Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006).
2. The RO should obtain the names and
addresses of all medical care providers
who treated the veteran for a psychiatric
disorder since January 2003. After
securing the necessary release, the RO
should obtain these records.
3. The RO should then review the
veteran's claim regarding whether new and
material evidence has been submitted
sufficient to reopen the veteran's
previously-denied claim of service
connection for an acquired psychiatric
disorder. Should the benefit sought on
appeal remain denied, the veteran and his
representative should be provided with a
Supplemental Statement of the Case
(SSOC). The SSOC must contain notice of
all relevant action taken on the claim
for benefits since the issuance of a
Statement of the Case in July 2003. An
appropriate period of time should be
allowed for a response.
Thereafter, the case should be returned to the Board, if in
order. The veteran need take no action until otherwise
notified.
The appellant has the right to submit additional evidence and
argument on the matter or 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. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals`
Department of Veterans Affairs | 11-07-2006 | [
"Citation Nr: 0634347 Decision Date: 11/07/06 Archive Date: 11/16/06 DOCKET NO. 03-22 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for a chronic heart disorder. 3. Entitlement to service connection for a back disability. 4. Entitlement to service connection for a right knee disability.",
"5. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Stephen L. Sylvester, Counsel INTRODUCTION The veteran served on active duty from January 1955 to March 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2003 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In May 1959, and most recently, in a decision of November 1969, the Board denied entitlement to service connection for an acquired psychiatric disorder. Since the time of the November 1969 decision, the veteran has submitted additional evidence in an attempt to reopen his claim. The RO found such evidence neither new nor material, and the current appeal ensued. For reasons which will become apparent, the appeal as to the issue of whether new and material evidence has been submitted sufficient to reopen a previously-denied claim for service connection for an acquired psychiatric disorder is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. FINDINGS OF FACT 1. A chronic heart disorder is not shown to have been present in service, or for many years thereafter, nor is it the result of any incident or incidents of the veteran's period of active military service.",
"2. A chronic back disability is not shown to have been present in service, or for many years thereafter, nor is it the result of any incident or incidents of the veteran's period of active military service. 3. A chronic right knee disability is not shown to have been present in service, or for many years thereafter, nor is it the result of any incident or incidents of the veteran's period of active military service.",
"4. A chronic left knee disability is not shown to have been present in service, or for many years thereafter, nor is it the result of any incident or incidents of the veteran's period of active military service. CONCLUSIONS OF LAW 1. Chronic heart disease was not incurred in or aggravated by active military service, nor may such a disability be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). 2. A chronic back disorder was not incurred in or aggravated by active military service, nor may osteoarthritis of the lumbar spine be presumed to have been so incurred. 38 U.S.C.A.",
"§§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). 3. A chronic right knee disorder was not incurred in or aggravated by active military service, nor may osteoarthritis of the right knee be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). 4. A chronic left knee disability was not incurred in or aggravated by active military service, nor may osteoarthritis of the left knee be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claim Assistance Act of 2000 (VCAA), Pub. L. No.",
"106-475, 114 Stat. 2096 (Nov. 9, 2000) [codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)] redefined VA's duty to assist a veteran in the development of his claims. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006). The notice requirements of the VCAA require VA to notify a veteran of any evidence that is necessary to substantiate his claims, as well as the evidence VA will attempt to obtain and which evidence his responsible for providing. Quartuccio v. Principi, 16 Vet App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, connection between the veteran's service and the disability, degree of disability, and effective date of disability.",
"Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id. ; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini v. Principi, 18 Vet. App. at 121. In this case, in correspondence of October 2001, September 2002 and October 2002, the RO provided notice to the veteran regarding what information and evidence was needed to substantiate his claims for service connection, as well as what information and evidence should be submitted by him, what information and evidence would be obtained by VA, and the need for the veteran to advise VA of or submit any further evidence that pertains to his claims. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran.",
"Specifically, the information and evidence that have been associated with the claims file includes the veteran's service medical records, as well as VA and private inpatient and outpatient treatment records and examination reports. As discussed above, the VCAA provisions have been considered and complied with. There is no indication that there is additional evidence to obtain, there is no additional notice that should be provided, and there has been a complete review of all the evidence without prejudice to the appellant. As such, there is no indication that there is any prejudice to the appellant by the order of events in this case. See Bernard v. Brown, 4 Vet.",
"App. 384 (1993). Moreover, as the Board concludes below that a preponderance of the evidence is against the appellant's claims for service connection, any question as to an appropriate evaluation or effective date to be assigned is rendered moot. Any error in the sequence of events or content of the notice is not shown to have had any effect on the case, or to have caused injury to the claimant. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra. ; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis In reaching the following determination, the Board has reviewed all the evidence in the appellant's claims file, which includes: his multiple contentions; service medical records; and VA and private medical records and examination reports.",
"Although the Board has an obligation to provide reasons and bases supporting its decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The veteran in this case seeks service connection for back and heart disorders, as well as for a bilateral knee disability. In pertinent part, it is contended that all of the aforementioned disabilities had their origin during the veteran's period of active military service.",
"In that regard, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances lay evidence of the incurrence or aggravation of a disease or injury during service; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). 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 cardiovascular (heart) disease or osteoarthritis becomes manifest to a degree of 10 percent within one year of 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. This presumption is rebuttable by affirmative evidence to the contrary.",
"38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2006). In the present case, service medical records fail to document the presence of chronic heart, back, or knee disabilities. In that regard, while on service entrance examination in January 1955, there was noted the presence of lordosis, there is no indication that, at any time during service, the veteran received a diagnosis of or treatment for a chronic back disability. While in March 1956, the veteran indicated that he had injured his back, resulting in a transverse lumbosacral and left-sided sciatic-type pain, that episode was, apparently, acute and transitory, and resolved without residual disability. Significantly, while in May 1956, the veteran complained of transverse lumbosacral pain with radiation down his left leg, ankle reflexes at that time were intact, and motion of the veteran's back and legs was within normal limits. The Board concedes that, in August 1956, while in service, the veteran was felt to have sustained a minimal sprain of his right knee following a fall into a hole. However, such symptomatology was likewise acute and transitory, and required no treatment.",
"Moreover, while in a Report of Medical Survey dated in early November 1956, the veteran's blood pressure was 116/98, there is absolutely no indication that, at that time, or at any time during the veteran's period of active military service, he received treatment for or a diagnosis of heart disease. Significantly, that Medical Survey, conducted just prior to the veteran's separation from service, yielded no evidence of chronic heart, back, or knee disability. Moreover, in a private Medical Certificate dated in January 1968, it was noted that a complete physical examination showed no evidence of any physical disorder, and that a neurological evaluation was within normal limits.",
"The earliest clinical indication of the presence of a right knee disability is revealed by a VA orthopedic examination dated in September 1976, many years following the veteran's period of active service, at which time it was noted that the veteran had sustained a fracture of the right patella, as well as of the right tibia and fibula, as the result of a motor vehicle accident the previous December. There was no mention of any in-service knee injury. X-ray revealed the residuals of fracture but was otherwise normal and revealed smooth appearing margins. His right knee symptoms were attributed to the fractures. There were no left knee complaints noted at that time. A left knee disability was first noted no earlier than the early 1990's, once again, many years following the veteran's discharge from service. Regarding the veteran's heart disease, the Board notes that, as early as 1987, the veteran began to experience an ill- defined angina.",
"Reportedly, in 1996, a stent was placed for apparent coronary artery and/or ischemic heart disease. However, there is no indication that the veteran's current heart disease had its origin during his period of active military service. Arthritis of the lumbosacral spine, first diagnosed in March 1990, has similarly shown no nexus to any incident or incidents of the veteran's period of active service. The Board has taken into consideration the veteran's contentions regarding the origin of his current heart, back, and knee disabilities. However, based on the entire evidence of record, with significant weight accorded to the acute nature of the findings in service and the negative physical examination in 1968, 11 years after the fact, there exists no demonstrated relationship between the claimed disabilities and the veteran's period of active military service. Moreover, the lack of complaints or findings at the 1968 examination preponderates against a finding of continuity of symptomatology.",
"Finally, there is no evidence of arthritis or heart disease within one year following discharge from service. Accordingly, service connection on a direct and presumptive basis must be denied. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet.",
"App. 49, 55-57 (1991). ORDER Service connection for a chronic heart disability is denied. Service connection for a chronic back disorder is denied. Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. REMAND In addition to the aforementioned, the veteran in this case seeks service connection for an acquired psychiatric disorder. In pertinent part, it is argued that new and material evidence has, in fact, been submitted sufficient to reopen the veteran's previously-denied claim for that disability. In that regard, the Board notes that, during the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Kent v. Nicholson, 20 Vet.",
"App. 1 (2006). In that decision, the Court held that VA must notify a claimant of the evidence and information necessary to reopen a previously denied claim (here, the claim for service connection for an acquired psychiatric disorder), as well as the evidence and information necessary to establish entitlement to the underlying benefit sought, i.e., service connection. In that case, the Court noted that VA's obligation to provide a claimant with notice of what constitutes new and material evidence to reopen a service connection claim may be affected by the evidence which was of record at the time that the prior claim was finally denied. The Court further stated that the VCAA requires, in the context of a claim to reopen, that the Secretary look at the bases for the denial in the prior decision(s), and respond with a notice letter which describes what evidence would be necessary to substantiate the element or elements required to establish service connection which were found insufficient in the previous denials.",
"The Board observes that, while in correspondence of September 2002, the veteran was furnished with a basic description of what constitutes \"new and material evidence,\" he has not been provided notice which fully complies with the newly-specified criteria as noted in Kent, supra. (i.e., the type of evidence which would be new and material based on the reasons for the prior denial). Such notice must be provided to the veteran prior to a final adjudication of his current claim for service connection for an acquired psychiatric disorder.",
"Finally, during the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate his claim for service connection, but he was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. Thus, on remand the RO should provide corrective notice. Accordingly, in light of the aforementioned, the case is REMANDED to the RO for the following actions: 1.",
"The RO should review the veteran's claims file, and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) is fully complied with and satisfied with respect to the issue of whether new and material evidence has been submitted to reopen a claim of service connection for an acquired psychiatric disorder. The notice should also address what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denials, as outline by the Court in Kent v. Nicholson, 20 Vet. App. 1 (2006). In addition, the letter should advise that a disability rating and effective date will be assigned if service connection is granted, as well as the information and evidence necessary to substantiate such, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet.",
"App. 473 (2006). 2. The RO should obtain the names and addresses of all medical care providers who treated the veteran for a psychiatric disorder since January 2003. After securing the necessary release, the RO should obtain these records. 3. The RO should then review the veteran's claim regarding whether new and material evidence has been submitted sufficient to reopen the veteran's previously-denied claim of service connection for an acquired psychiatric disorder. Should the benefit sought on appeal remain denied, the veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC).",
"The SSOC must contain notice of all relevant action taken on the claim for benefits since the issuance of a Statement of the Case in July 2003. An appropriate period of time should be allowed for a response. Thereafter, the case should be returned to the Board, if in order. The veteran need take no action until otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals` Department of Veterans Affairs"
]
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Reversing. The appellants, Frank E. Furst, and Fred G. Thomas, are the members composing the partnership of Furst Thomas, whose place of business is Freeport, Illinois, as wholesalers of certain merchandise. They sought by this action, filed in the Carter circuit court, to recover from appellee and defendant below, Elmer *Page 602 Smith, a judgment for $277.66, balance due them from A.G. Smith — the son of defendant, Elmer Smith — and who is a retail merchant engaged in business at Matewan, West Virginia, while his father, the defendant, Elmer Smith, is a merchant at Williard, Carter County, Kentucky. In January, 1932, the son, A.C. Smith, in contemplation of becoming a customer of plaintiffs, signed a written sales contract, or agreement with them under the terms of which he proposed to sell by retail their merchandise at his place of business on terms set out in that contract, or agreement, among which obligations was one that he would make payments from time to time as stipulated therein. It also contained provisions for terminating the agreement by either party notifying the other as therein provided. Plaintiffs' plan was to have its prospective customer executing such a contract to have it guaranteed by a third party, and it prepared its contract with that purpose in mind and furnished one of its prepared forms to the son as its contemplated customer. Therefore, immediately following the signature of the son to that contract there was an addition whereby the surety signing it obligated himself to plaintiffs, in consideration of their promises and agreements to the principal in the contract, that the latter would fully perform it and if not done by him, then the surety became responsible to plaintiffs. To that written guaranty or suretyship the contract, when delivered to plaintiffs by A.C. Smith, contained the signatures of the defendant, Elmer Smith, and one W.M. Copley. Plaintiffs accepted it as so executed and immediately wrote defendant, as guarantor under the contract, of its acceptance thereof, which letter said: "We are pleased to inform you that we have received and accepted the Sales Agreement of Mr. A.C. Smith dated January 12, 1932, which you have signed as sureties. We hope he will do a successful and satisfactory business. If at any time you desire a statement of his account we shall be glad to send it to you upon request." It was a duplicate letter addressed to both guarantors and was registered and the receipt of it from the postmaster at defendant's postoffice bore his signature as well as that of one J.H. Smith, followed by the words "signature addressee's Agent." While not in issue, we conclude it was sufficient to at least raise the presumption that the contents in the letter came to the knowledge *Page 603 of defendant, and especially so when his name appears signed to the receipt as well as that of J.H. Smith with no indication that it was delivered to either in the absence of the other, there being no testimony adduced with reference thereto. No answer to that letter was made by defendant or received by plaintiffs and they thereafter commenced to fulfill their obligations to the principal in the contract in accordance with its terms. The latter defaulted in payments, as agreed to be made, and plaintiffs cancelled the contract when there was a balance due them thereunder of the amount sought to be recovered in this action. They then notified defendant by letter of the unpaid balance, which letter was also registered and receipted for by defendant. The only defense interposed by defendant was a plea of non est factum, to which plaintiff replied by setting up the fact of notifying defendant of its acceptance of the contract with his name thereto as guarantor, their reliance thereon and his failure to respond thereto, as constituting an estoppel to rely on the interposed defense of non est factum. Defendant demurred to that reply, which the court sustained, and plaintiffs failing to plead further their petition was dismissed, followed by their filing a complete transcript of the record in this court with a motion for an appeal. It, therefore, will be seen that the only question involved is one of law, and which is: Did the letter of plaintiffs notifying defendant of their acceptance of the contract as so apparently guaranteed by defendant impose upon him the duty to take action by informing plaintiffs of the alleged forgery of his signature thereto so as to deprive them of their right to rely upon its genuineness and for failure to do so he became estopped to thereafter insist upon the forgery in any action against him on the guarantee? The fundamental principle lying at the bottom of the question is, the creation of an estoppel by silence when it is the duty of the one estopped to speak. That there is in law such a principle by which an estoppel may be created is admitted. It is, however, sparingly applied, but when the facts are such that the one guilty of silence — and because of which the estoppel is urged — should in good conscience speak, then the estoppel becomes as effectual as if created in any other manner known to the law. That principle as so circumscribed *Page 604 is of universal application and has the approval of this court in many cases, some of which are, Jett, v. Jett, 171 Ky. 548,188 S.W. 669; Baird v. Read, 217 Ky. 71, 288 S.W. 1014; Skaggs v. Ferguson, 224 Ky. 775, 7 S.W.2d 213; Jones v. Kentucky Glycerine Company, 226 Ky. 676, 11 S.W.2d 713, and Stein Brothers Boyce v. State Bank, 255 Ky. 270,73 S.W.2d 13. In the Skaggs case our recognition of the rule was thus expressed [224 Ky. 775, 7 S.W.2d 216]: "It is the general rule that a party may not keep silent when he ought to speak and allow other parties to be misled to their prejudice by his silence." In the Jones case [226 Ky. 676, 11 S.W.2d 716] we quoted and approved the text from 21 C. J. 1060, page 1113, Section 116, saying: "This estoppel [by silence when it is the duty to speak] arises when one by his acts, representations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts." The other cited cases, as well as many others not cited, recognize and apply the character of estoppel under consideration when the facts called for its application. But it is insisted that the crux of this case is simply the failure of defendant to answer a letter written to him by plaintiffs, and that there is no duty on the part of an addressee of a letter to answer it and, therefore, defendant's failure to answer plaintiffs' letter of notification of the acceptance of his name as guarantor of his son's contract with plaintiffs was not sufficient to estop him by his silence from thereafter urging the forgery of his name to the contract of guaranty in an action against him based upon it. In support of that contention counsel cite the case of Furst et al. v. Grover H. Carrico, rendered by the Maryland Court of Appeals, and reported in 167 Md. 465, 175 A. 442, 444,96 A.L.R. 375, in which that court held that there was no estoppel under almost identical facts, if not completely so, to those appearing in this case. But the reasoning of that court in arriving at that conclusion is by no means convincing. The opinion practically admitted that if the notification of acceptance of the guarantee contract had been orally made and personally *Page 605 delivered to the guarantor it may have created a duty on his part to speak, since, as stated in the opinion, "Men use the tongue much more readily than the pen." But the underlying principle is not governed by the manner of readiness with which men usually speak, but whether the circumstances are such as to require them to speak, whether it be the most ready manner or the one more seldom employed by them. The duty imposed, if any at all, is that of "speaking" and not the manner by which it may be done. Furthermore, the Maryland opinion cites as chief authority for the conclusion reached a number of opinions in which it was sought to bind the addressee of the involved letter to the truth of some hearsay statements employed therein by the writer thereof, on the ground that it was the duty of the addressee to deny them as so made to the writer by others, and which class of cases involves an entirely different principle of law than the one now in hand, but nevertheless the Maryland Court applied it to the facts of its case. Furthermore, that opinion cites the cases of Strauss Brothers v. Denton, 140 Miss. 745, 106 So. 257, 45 A.L.R. 341; Heberling Co. v. Dalton, 18 La. App. 233, 138 So. 176, and the Canadian case of Dominion Bank v. Ewing, 7 Ont. L. R. 90, 35 Can. Supreme Court, 133, as holding directly contrary to its conclusions under the same or substantially the same facts, and it inserted from the Canadian opinion this statement: "No doubt a man is not bound to answer every letter he receives, or to combat every charge or allegation which the writer may make against him. * * * But a business communication like that in question stands on quite a different footing, and according to the dictates of common sense and fair dealing does require an answer since it must be apparent to the receiver that the future conduct of the sender, in regard to the receiver's supposed obligation, may or will be different if it is a forgery from what it would be if it were the genuine instrument it was taken for." We conclude that the reasoning of that court is sound and unanswerable, and which, in effect, was the conclusion of the courts in the other two cases from Mississippi and Louisiana. A consideration of the facts will so demonstrate, as we conclude. Here — as in the cases supra — plaintiffs demanded a guaranty of performance of their prospective customer according to his contract with them. *Page 606 He delivered to them a contract which on its face was duly executed, containing the signature of defendant as guarantor. They, in fairness to the apparent guarantor, notified him of what had been done and that they had accepted the contract on the faith of what appeared to have been done. Any reasonable man would then, in fairness and good conscience, be called upon to dissipate such appearances upon which action was contemplated, and which he was bound to know was contemplated by the other party. To remain silent, therefore, and to allow such other party, in reliance upon the genuineness of the appearances, to change his position and to accept the contract as genuine, would be, according to our conclusion, a supreme violation of duty for which the silent non actor would become estopped to afterwards repudiate the appearances by denying his obligating signature. As said, the Mississippi, Louisiana and Canadian courts so held, and the only direct authority to the contrary from any Anglo-Saxon court that we have been able to find is the Maryland opinion, but with which we are unable to agree. Having so concluded, it follows that the court erred in sustaining defendant's demurrer to plaintiff's reply, and for which reason the motion for the appeal is sustained, the appeal is granted, and the judgment is reversed, with directions to set it aside, and to overrule the demurrer to the reply, followed by other proceedings consistent with this opinion. | 07-05-2016 | [
"Reversing. The appellants, Frank E. Furst, and Fred G. Thomas, are the members composing the partnership of Furst Thomas, whose place of business is Freeport, Illinois, as wholesalers of certain merchandise. They sought by this action, filed in the Carter circuit court, to recover from appellee and defendant below, Elmer *Page 602 Smith, a judgment for $277.66, balance due them from A.G. Smith — the son of defendant, Elmer Smith — and who is a retail merchant engaged in business at Matewan, West Virginia, while his father, the defendant, Elmer Smith, is a merchant at Williard, Carter County, Kentucky.",
"In January, 1932, the son, A.C. Smith, in contemplation of becoming a customer of plaintiffs, signed a written sales contract, or agreement with them under the terms of which he proposed to sell by retail their merchandise at his place of business on terms set out in that contract, or agreement, among which obligations was one that he would make payments from time to time as stipulated therein. It also contained provisions for terminating the agreement by either party notifying the other as therein provided. Plaintiffs' plan was to have its prospective customer executing such a contract to have it guaranteed by a third party, and it prepared its contract with that purpose in mind and furnished one of its prepared forms to the son as its contemplated customer. Therefore, immediately following the signature of the son to that contract there was an addition whereby the surety signing it obligated himself to plaintiffs, in consideration of their promises and agreements to the principal in the contract, that the latter would fully perform it and if not done by him, then the surety became responsible to plaintiffs. To that written guaranty or suretyship the contract, when delivered to plaintiffs by A.C. Smith, contained the signatures of the defendant, Elmer Smith, and one W.M. Copley. Plaintiffs accepted it as so executed and immediately wrote defendant, as guarantor under the contract, of its acceptance thereof, which letter said: \"We are pleased to inform you that we have received and accepted the Sales Agreement of Mr. A.C. Smith dated January 12, 1932, which you have signed as sureties.",
"We hope he will do a successful and satisfactory business. If at any time you desire a statement of his account we shall be glad to send it to you upon request.\" It was a duplicate letter addressed to both guarantors and was registered and the receipt of it from the postmaster at defendant's postoffice bore his signature as well as that of one J.H. Smith, followed by the words \"signature addressee's Agent.\" While not in issue, we conclude it was sufficient to at least raise the presumption that the contents in the letter came to the knowledge *Page 603 of defendant, and especially so when his name appears signed to the receipt as well as that of J.H. Smith with no indication that it was delivered to either in the absence of the other, there being no testimony adduced with reference thereto. No answer to that letter was made by defendant or received by plaintiffs and they thereafter commenced to fulfill their obligations to the principal in the contract in accordance with its terms. The latter defaulted in payments, as agreed to be made, and plaintiffs cancelled the contract when there was a balance due them thereunder of the amount sought to be recovered in this action. They then notified defendant by letter of the unpaid balance, which letter was also registered and receipted for by defendant.",
"The only defense interposed by defendant was a plea of non est factum, to which plaintiff replied by setting up the fact of notifying defendant of its acceptance of the contract with his name thereto as guarantor, their reliance thereon and his failure to respond thereto, as constituting an estoppel to rely on the interposed defense of non est factum. Defendant demurred to that reply, which the court sustained, and plaintiffs failing to plead further their petition was dismissed, followed by their filing a complete transcript of the record in this court with a motion for an appeal. It, therefore, will be seen that the only question involved is one of law, and which is: Did the letter of plaintiffs notifying defendant of their acceptance of the contract as so apparently guaranteed by defendant impose upon him the duty to take action by informing plaintiffs of the alleged forgery of his signature thereto so as to deprive them of their right to rely upon its genuineness and for failure to do so he became estopped to thereafter insist upon the forgery in any action against him on the guarantee?",
"The fundamental principle lying at the bottom of the question is, the creation of an estoppel by silence when it is the duty of the one estopped to speak. That there is in law such a principle by which an estoppel may be created is admitted. It is, however, sparingly applied, but when the facts are such that the one guilty of silence — and because of which the estoppel is urged — should in good conscience speak, then the estoppel becomes as effectual as if created in any other manner known to the law. That principle as so circumscribed *Page 604 is of universal application and has the approval of this court in many cases, some of which are, Jett, v. Jett, 171 Ky. 548,188 S.W.",
"669; Baird v. Read, 217 Ky. 71, 288 S.W. 1014; Skaggs v. Ferguson, 224 Ky. 775, 7 S.W.2d 213; Jones v. Kentucky Glycerine Company, 226 Ky. 676, 11 S.W.2d 713, and Stein Brothers Boyce v. State Bank, 255 Ky. 270,73 S.W.2d 13. In the Skaggs case our recognition of the rule was thus expressed [224 Ky. 775, 7 S.W.2d 216]: \"It is the general rule that a party may not keep silent when he ought to speak and allow other parties to be misled to their prejudice by his silence.\" In the Jones case [226 Ky. 676, 11 S.W.2d 716] we quoted and approved the text from 21 C. J. 1060, page 1113, Section 116, saying: \"This estoppel [by silence when it is the duty to speak] arises when one by his acts, representations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts.\"",
"The other cited cases, as well as many others not cited, recognize and apply the character of estoppel under consideration when the facts called for its application. But it is insisted that the crux of this case is simply the failure of defendant to answer a letter written to him by plaintiffs, and that there is no duty on the part of an addressee of a letter to answer it and, therefore, defendant's failure to answer plaintiffs' letter of notification of the acceptance of his name as guarantor of his son's contract with plaintiffs was not sufficient to estop him by his silence from thereafter urging the forgery of his name to the contract of guaranty in an action against him based upon it. In support of that contention counsel cite the case of Furst et al. v. Grover H. Carrico, rendered by the Maryland Court of Appeals, and reported in 167 Md.",
"465, 175 A. 442, 444,96 A.L.R. 375, in which that court held that there was no estoppel under almost identical facts, if not completely so, to those appearing in this case. But the reasoning of that court in arriving at that conclusion is by no means convincing. The opinion practically admitted that if the notification of acceptance of the guarantee contract had been orally made and personally *Page 605 delivered to the guarantor it may have created a duty on his part to speak, since, as stated in the opinion, \"Men use the tongue much more readily than the pen.\" But the underlying principle is not governed by the manner of readiness with which men usually speak, but whether the circumstances are such as to require them to speak, whether it be the most ready manner or the one more seldom employed by them. The duty imposed, if any at all, is that of \"speaking\" and not the manner by which it may be done.",
"Furthermore, the Maryland opinion cites as chief authority for the conclusion reached a number of opinions in which it was sought to bind the addressee of the involved letter to the truth of some hearsay statements employed therein by the writer thereof, on the ground that it was the duty of the addressee to deny them as so made to the writer by others, and which class of cases involves an entirely different principle of law than the one now in hand, but nevertheless the Maryland Court applied it to the facts of its case.",
"Furthermore, that opinion cites the cases of Strauss Brothers v. Denton, 140 Miss. 745, 106 So. 257, 45 A.L.R. 341; Heberling Co. v. Dalton, 18 La. App. 233, 138 So. 176, and the Canadian case of Dominion Bank v. Ewing, 7 Ont. L. R. 90, 35 Can. Supreme Court, 133, as holding directly contrary to its conclusions under the same or substantially the same facts, and it inserted from the Canadian opinion this statement: \"No doubt a man is not bound to answer every letter he receives, or to combat every charge or allegation which the writer may make against him. * * * But a business communication like that in question stands on quite a different footing, and according to the dictates of common sense and fair dealing does require an answer since it must be apparent to the receiver that the future conduct of the sender, in regard to the receiver's supposed obligation, may or will be different if it is a forgery from what it would be if it were the genuine instrument it was taken for.\"",
"We conclude that the reasoning of that court is sound and unanswerable, and which, in effect, was the conclusion of the courts in the other two cases from Mississippi and Louisiana. A consideration of the facts will so demonstrate, as we conclude. Here — as in the cases supra — plaintiffs demanded a guaranty of performance of their prospective customer according to his contract with them. *Page 606 He delivered to them a contract which on its face was duly executed, containing the signature of defendant as guarantor. They, in fairness to the apparent guarantor, notified him of what had been done and that they had accepted the contract on the faith of what appeared to have been done. Any reasonable man would then, in fairness and good conscience, be called upon to dissipate such appearances upon which action was contemplated, and which he was bound to know was contemplated by the other party. To remain silent, therefore, and to allow such other party, in reliance upon the genuineness of the appearances, to change his position and to accept the contract as genuine, would be, according to our conclusion, a supreme violation of duty for which the silent non actor would become estopped to afterwards repudiate the appearances by denying his obligating signature. As said, the Mississippi, Louisiana and Canadian courts so held, and the only direct authority to the contrary from any Anglo-Saxon court that we have been able to find is the Maryland opinion, but with which we are unable to agree.",
"Having so concluded, it follows that the court erred in sustaining defendant's demurrer to plaintiff's reply, and for which reason the motion for the appeal is sustained, the appeal is granted, and the judgment is reversed, with directions to set it aside, and to overrule the demurrer to the reply, followed by other proceedings consistent with this opinion."
]
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Case 1:18-cr-00036-JPO Document 368-14 Filed 07/03/19 Page 1 of 2
EXHIBIT 14 Case 1:18-cr-00036-JPO Document 368-14 Filed 07/03/19 Page 2 of 2
February 3, 2019
Honorable J. Paul Oetken
I am writing in support of my best friend, Cindy Holder. I met Cindy in the summer of 1985, when she came to my apartment with a mutual friend to play Trivial Pursuit. We quickly became friends, and I consider myself lucky to call her my best friend, then and now.
One of the things that is special about Cindy is her eagerness and willingness to help. It doesn't matter what the problem is, she is ready to try to find a solution. I remember, early in our friendship, she and a friend pushed my disabled car a mile down the street to a repair shop. There is no home improvement project that she doesn't want to tackle - she has installed my ceiling fans, fixed electrical wiring in my home, repaired my plumbing problems, helped me with various appliance issues - she is always looking for a solution.
But more importantly, Cindy is always there for me, as a friend. When my father died in 2012, she was on a business trip in London. Even though money was tight and she had little time to spare, she flew to Indiana to be with me for several days because she knew she could help me get through this difficult time in my life. She took the time to go through my father's files and summarized various financial and insurance paperwork for me, in addition to helping with the funeral arrangements. I will never forget this - her presence was a huge source of comfort for me.
When I moved back to Houston after being out of the state for a year, Cindy offered her home to me, rent free. I moved in with my 3 dogs and a cat, and lived with her for over 3 years - she never asked me for a dime the entire time.
There are so many other examples of how Cindy wants to help - flying to Indiana to help me with my mother's 85th birthday party - offering moral and financial support when I got laid off from my job - lending a shoulder to cry on when a beloved pet died - I can honestly say she always has my back, and I try to be as good a friend to her as she is to me.
Cindy is a generous person with a huge heart. Whether she is treating a homeless person to a meal at a restaurant, helping stray animals, or volunteering at various local organizations, she tries to bring some kindness into the world. I respectfully ask the court to show mercy and be compassionate in sentencing my best friend. Please do not send her to jail.
Respectfully,
Kathy Sprunger | 2019-07-03 | [
"Case 1:18-cr-00036-JPO Document 368-14 Filed 07/03/19 Page 1 of 2 EXHIBIT 14 Case 1:18-cr-00036-JPO Document 368-14 Filed 07/03/19 Page 2 of 2 February 3, 2019 Honorable J. Paul Oetken I am writing in support of my best friend, Cindy Holder. I met Cindy in the summer of 1985, when she came to my apartment with a mutual friend to play Trivial Pursuit. We quickly became friends, and I consider myself lucky to call her my best friend, then and now. One of the things that is special about Cindy is her eagerness and willingness to help. It doesn't matter what the problem is, she is ready to try to find a solution. I remember, early in our friendship, she and a friend pushed my disabled car a mile down the street to a repair shop. There is no home improvement project that she doesn't want to tackle - she has installed my ceiling fans, fixed electrical wiring in my home, repaired my plumbing problems, helped me with various appliance issues - she is always looking for a solution. But more importantly, Cindy is always there for me, as a friend.",
"When my father died in 2012, she was on a business trip in London. Even though money was tight and she had little time to spare, she flew to Indiana to be with me for several days because she knew she could help me get through this difficult time in my life. She took the time to go through my father's files and summarized various financial and insurance paperwork for me, in addition to helping with the funeral arrangements. I will never forget this - her presence was a huge source of comfort for me. When I moved back to Houston after being out of the state for a year, Cindy offered her home to me, rent free. I moved in with my 3 dogs and a cat, and lived with her for over 3 years - she never asked me for a dime the entire time. There are so many other examples of how Cindy wants to help - flying to Indiana to help me with my mother's 85th birthday party - offering moral and financial support when I got laid off from my job - lending a shoulder to cry on when a beloved pet died - I can honestly say she always has my back, and I try to be as good a friend to her as she is to me.",
"Cindy is a generous person with a huge heart. Whether she is treating a homeless person to a meal at a restaurant, helping stray animals, or volunteering at various local organizations, she tries to bring some kindness into the world. I respectfully ask the court to show mercy and be compassionate in sentencing my best friend. Please do not send her to jail. Respectfully, Kathy Sprunger"
]
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881 A.2d 770 (2005) 380 N.J. Super. 193 CHARLES BESELER COMPANY, Plaintiff-Respondent, v. O'GORMAN & YOUNG, INC., a corporation; Fireman's Fund Insurance Companies and The American Insurance Company, corporations, Defendants, and New Jersey Manufacturers Insurance Company, a corporation, Defendant-Appellant. Superior Court of New Jersey, Appellate Division. Argued March 15, 2005. Decided September 9, 2005. *771 Richard J. Williams, Jr., Morristown, argued the cause for appellant (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Michael J. Marone, of counsel and on the brief; Mr. Williams, on the brief). Thomas W. Sweet, Mentham, argued the cause for respondent. Before Judges STERN, S.L. REISNER and GRAVES. The opinion of the court was delivered by STERN, P.J.A.D. New Jersey Manufacturers Insurance Company (NJM) appeals from an order of April 2, 2004 that granted the insured-employer Charles Beseler's motion for summary judgment, and denied NJM's cross motion, and declared that NJM was obligated to provide a defense and indemnification to Library Bureau Steel (LBS), a division of Beseler, in a personal injury action filed against it by an employee, Malden A. Homar. NJM has assumed that defense under a reservation of rights.[1] NJM contends that it provides "no coverage under [its employer's liability] policy for an intentional-wrong claim." NJM issued a "Workers Compensation and Employers Liability Policy" to LBS. There is no dispute that it provided coverage at the time of the accident. The policy included "Part OneWorkers Compensation Insurance" and "Part TwoEmployers Liability Insurance." Count seven of the underlying Homar complaint against Beseler and LBS alleges: 3. On May 23, 2001, Malden A. Homar was injured while operating a Cincinnati Shaper press brake machine at LBS. 4. At the time of the alleged incident, Beseler was one of the entities responsible for the design, manufacture, inspection, servicing and maintenance of the Cincinnati Shaper Machine, including all of its component parts. 5. Beseler was negligent because it failed to adequately design, inspect, service and maintain the Cincinnati Shaper Machine, including all of its component parts. 6. The actions or inactions of Beseler as set forth hereinabove created a defective and dangerous machine and rendered it unfit, unsafe and unsuitable for its intended or foreseeable users. Count eight of the complaint further alleges: 3. On May 23, 2001, Malden A. Homar was injured while operating a Cincinnati Shaper press brake machine at LBS. 4. At the time of the alleged incident, Malden A. Homar was an employee of LBS. 5. Mr. Homar was removing metal from the brake machine when it unexpectedly cycled again and crashed down upon both of his hands crushing and severing eight of his fingers.
*772 6. As a result of this incident, Malden A. Homar sustained serious injuries. 7. At the time of the alleged incident, LBS was one of the entities responsible for the design, manufacture, inspection, servicing and maintenance of the Cincinnati Shaper Machine, including all of its component parts. 8. At the time of [] this incident, warning labels, safety or protective guards or other similar devices which would have prevented the incident were either missing, disabled or allowed to fall into disrepair. 9. Defendant LBS removed or disabled or caused to be removed or disabled such warning labels, safety or protective guards or other similar devices. 10. LBS failed to inspect and ensure the safety of the press brake machine which caused Mr. Homar's injuries. 11. Defendant LBS knowingly allowed the machine to operate knowing of its unfit, unsafe and dangerous condition. 12. The actions or inactions of LBS as set forth hereinabove created a substantial certainty that plaintiff would be injured and were a proximate cause of the injuries sustained by Malden Homar. 13. The actions and inactions of LBS as set forth hereinabove were in reckless disregard to plaintiff's rights. 14. As a proximate result of the actions and inactions of LBS as set forth hereinabove and as a proximate result of the defective machine, Malden A. Homar sustained amputations of eight fingers, (four on each hand), which required medical treatment, caused pain and suffering and disabled Malden Homar from the performance of usual activities and, which in the future, will similarly require medical treatment, cause him pain and suffering and disable him. The allegations of a complaint generally control for purposes of the obligation to defend; "the complaint should be laid alongside the policy and a determination made as to whether, if the allegations [of the complaint] are sustained, the insurer will be required to pay the resulting judgment." Danek v. Hommer, 28 N.J.Super. 68, 77, 100 A.2d 198 (App.Div.1953), aff'd, 15 N.J. 573, 105 A.2d 677 (1954); see also, e.g., Voorhees v. Preferred Mutual Ins. Co., 128 N.J. 165, 173-74, 607 A.2d 1255 (1992); Salem Group v. Oliver, 128 N.J. 1, 607 A.2d 138 (1992). However, the duty to defend is a contractual obligation controlled by the policy, Hartford Accident & Indemnity Co. v. Aetna Life & Casualty Ins. Co., 98 N.J. 18, 22, 483 A.2d 402 (1984), and here the defense obligation, as embodied in "Part Two" of the policy, which deals with "employer's liability" beyond workers' compensation benefits covered by "Part One" of the policy, limits the obligation to defend to claims covered by the policy:
D. We Will Defend We have the right and duty to defend, at our expense, any claim, proceeding or suit against you for damages payable by this insurance. We have the right to investigate and settle these claims, proceedings and suits. We have no duty to defend a claim, proceeding or suit that is not covered by this insurance. We have no duty to defend or continue defending after we have paid our applicable limit of liability under this insurance. Part Two of the policy covers "damages because of bodily injury to your employees" which the insured "legally must pay," "provided that these damages are the direct consequence of bodily injury that arises out of and in the course of the *773 injured employee's employment," but excludes: 3. bodily injury to an employee while employed in violation of law with your actual knowledge or the actual knowledge of any of your executive officers; 4. any obligation imposed by a workers compensation, occupational disease, unemployment compensation, or disability benefits law, or any similar law; 5. bodily injury intentionally caused or aggravated by you; NJM contends that we have already held, in New Jersey Mfrs. Ins. Co. [NJM] v. Joseph Oat Corp., 287 N.J.Super. 190, 670 A.2d 1071 (App.Div.), certif. denied, 142 N.J. 515, 665 A.2d 1108 (1995), that it has no obligation to defend a claim for intentional wrong by virtue of the "intentionally caused" exclusion of the policy. Specifically, NJM contends that Joseph Oat controls; that the Supreme Court's subsequent opinion in Schmidt v. Smith, 155 N.J. 44, 713 A.2d 1014 (1998), has no application to this case; that there is no "meaningful or relevant distinction between an employer's alleged subjective desire to injure and proof of an employer's intent to injure under the `substantial certainty standard'" as alleged in the employee's underlying complaint; that Beseler had no "reasonable expectation" of coverage; that "public policy favors exclusion of insurance coverage for liability arising out of the wrongful intentional acts of the insured;" and that there is "no duty to defend... because the claims asserted against LBS are not covered by Part Two [of the policy] and there is no obligation to defend where there is no coverage under the standard workers' compensation policy." Part Two of the policy covers acts not covered by the statutory "elective" benefits of the workers' compensation law (covered by Part One of the policy). See N.J.S.A. 34:15-7. By statute, in exchange for the "elective" benefits of the workers' compensation scheme, for which the employee obtains compensation irrespective of fault, the employee waives the right to commence a common-law action "except for intentional wrong[s]." See N.J.S.A. 34:15-8.[2]N.J.S.A. 34:15-8 excepts from the waiver any act or omission which can be deemed an "intentional wrong." Nonetheless, exclusion C5 of Part Two of the policy expressly excludes "bodily injury intentionally caused or aggravated by you." We conclude that the insured plaintiff is entitled to coverage because there is no assertion that the bodily injury was "intentionally caused or aggravated by" the insured, as opposed to an injury caused by an intentional act of the employer that resulted in the injury. An employee can bring a common-law action when the employer intends to injure the employee or knows "that death or injury [of the employee] are substantially certain to result." Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602, 621, 790 A.2d 884 (2002). To proceed the plaintiff must demonstrate "the evidence could lead a jury to conclude the employer acted with knowledge that it was substantially certain that a worker would suffer injury" and the alleged conduct is "outside the purview of the conditions the Legislature would have intended to immunize under the Workers' Compensation bar." Id. at 623, 790 A.2d 884. The Supreme Court permitted Laidlow's common-law action to proceed in a case like this one, in which the employee claimed "that his employer *774 ha[d] removed a safety device from a dangerous machine, knowing that the removal was substantially certain to result in injury to its workers and, in addition, deliberately and systematically deceived safety inspectors into believing that the machine was properly guarded." Id. at 606, 790 A.2d 884. The Supreme Court held that "the employee's allegations, if proven, meet both the conduct and context prongs of Millison [v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 174, 501 A.2d 505 (1985)], thus entitling the employee to pursue his common-law remedies." Ibid. Millison recognized that "industry knowingly exposes workers to the risks of injury and disease," 101 N.J. at 177, 501 A.2d 505, and distinguished between the claims of intentional exposure to asbestos, for which there could be no common-law action, id. at 179, 501 A.2d 505, and the claims of fraudulent concealment of the plaintiff's asbestos-related diseases, for which there could. Id. at 182, 501 A.2d 505. Only the latter could the Legislature "not have intended to insulate ... from tort liability." Ibid. See also Crippen v. Cent. Jersey Concrete Pipe Co., 176 N.J. 397, 405-11, 823 A.2d 789 (2003). In Joseph Oat we reviewed the C5 exclusion involved in this case in the context of a Millison claim and held that there was no coverage. We expressly found no distinction between an intent to injure or injury resulting from circumstances in which injury was substantially certain to occur. Joseph Oat Corp., supra, 287 N.J.Super. at 196-97, 670 A.2d 1071. We noted that under Millison a "deliberate intent to injure can be proved not only by evidence of actual subjective intent to injure, but also by circumstances where injury is a substantial or virtual certainty, i.e., facts `without which an actor cannot be said to intend the harm that his act produces.'" Joseph Oat, supra, 287 N.J.Super. at 197, 670 A.2d 1071, quoting Millison, supra, 101 N.J. at 178, 501 A.2d 505. We added that "[t]here are not, then, two discrete categories of conduct which will satisfy the requirement of an `intentional wrong' to escape the exclusivity of workers' compensation remedies. Both subjective intent and substantial certainty of harm are expressive of the same standard, i.e., deliberate intent to harm." Ibid. Subsequently, in Schmidt v. Smith, 155 N.J. 44, 713 A.2d 1014 (1998), the Supreme Court recognized the purpose of Part Two of the policy as a "gap filler" where the employee has the right to maintain a common-law action. Schmidt, supra, 155 N.J. at 49-50, 713 A.2d 1014. The liability portion of the policy was said "to bridge the gap between the typical workers' compensation obligations and the obligations arising from injuries not covered by the workers' compensation regime." Id. at 51, 713 A.2d 1014. Schmidt required coverage for the employer in a case involving sexual harassment of an employee by a corporate officer, and so held despite the same C5 exclusion involved in this case.[3] In considering a separate exclusion, C7, for damages arising from defamation, harassment, discrimination, personnel action and the like (which is in the Beseler policy, but not raised as an issue in this matter), the Court agreed with our assessment that the "employer would reasonably expect the employer's liability section to provide coverage for the types of injuries [plaintiff] suffered," ibid., and was valid "as long as the liability from those *775 discomforts is not related to bodily injury." Id. at 52, 713 A.2d 1014. Schmidt emphasized that N.J.S.A. 34:15-72 requires an employer to have coverage to protect employees from bodily injury. 155 N.J. at 51-52, 713 A.2d 1014.[4]See Francis X. Garrity, "Is the Laidlow Claim Covered? Whether an Employer's Liability Policy Covers an `Intentional Wrong' Remains to be Seen," 178 N.J.L.J. 524 (November 1, 2004). See also N.J.S.A. 34:15-71. Despite Schmidt, NJM insists Joseph Oat controls. Under NJM's theory Part Two of the policy covers the "gap" caused by the absence of coverage under the elective provisions of N.J.S.A. 34:15-7, that is where there is no requirement that the employee have "elective" coverage, the employee elects to waive workers' compensation protection, see N.J.S.A. 34:15-7, the employee is physically injured by the intentional wrongdoing of a co-worker, see N.J.S.A. 34:15-8, or the injured employee is a minor, N.J.S.A. 34:15-10. In Schmidt, the Supreme Court held that the C5 exclusion, involved in that case and Joseph Oat, was inapplicable. The Supreme Court did not cite Joseph Oat in Schmidt. In our opinion in Schmidt, we distinguished Joseph Oat because no corporate policy or activity was involved as a result of the single employee's wrongdoing, 294 N.J.Super. at 583, 684 A.2d 66. The employer was "vicariously liable for the intentional conduct of its president" and "[p]laintiff never attempted to prove that [the employer] acted intentionally in order to escape the exclusivity provision of N.J.S.A. 34:15-8." 294 N.J.Super. at 585, 684 A.2d 66. We found it significant that the employer was "vicariously liable for the intentional acts of" its president. Id. at 584, 684 A.2d 66. The Supreme Court agreed with us "that Exclusion C5 does not apply because there is no evidence [the employer] intended to harass" the plaintiff. 155 N.J. at 51, 713 A.2d 1014. As previously noted, Joseph Oat rejected the distinction between coverage for "an actual subjective intent to injure" and "circumstances where injury is a substantial or virtual certainty," 287 N.J.Super. at 197, 670 A.2d 1071. While we could technically reconcile the two cases because here there is a claim of direct wrongdoing by the insured-employer, we decline to do so or to distinguish between claims of vicarious and direct liability for purposes of coverage. In Schmidt the Court upheld the carrier's obligation to defend and indemnify the insured where an employee received injuries flowing from its president's intentional misconduct, and Laidlow upholds a common-law action in circumstances like those alleged herein. See also Crippen, supra, 176 N.J. at 408-09, 823 A.2d 789. It has been suggested by plaintiff that Schmidt overruled Joseph Oat and that N.J.S.A. 34:15-71, -72 and -78 mandate coverage "for all occupational injuries" irrespective of intent to injure. See also Garrity, supra, 104 N.J.L.J. at 532. We need not go so far, but conclude that the policy in this case excludes only injuries intentionally caused, and not the type of act alleged in this casean unintended injury caused by an intentional wrong. In light of Schmidt, and the fact exclusions in insurance policies are subject to "strict interpretation," Butler v. Bonner & Barnewall, Inc., 56 N.J. 567, 576, 267 A.2d 527 (1970), we find no exclusion of the type of conduct alleged in this case which was the *776 type of wrongdoing for which a common-law cause of action was recently sustained in Laidlow. Schmidt specifically addressed the "reasonable expectations" of the insured in the context of exclusion C7; the same reasoning applies here. Comparatively little would be covered under Part Two if the C5 exclusion and the concept of "intentional wrong" are as broad and the "gap" as little, for coverage purposes, as NJM contends. In any event, exclusion C5 cannot be read to exclude bodily injuries based on the conduct alleged in this case. See President v. Jenkins, 180 N.J. 550, 563, 853 A.2d 247 (2004) ("[w]hen an insurance policy's language fairly supports two meanings, one that favors the insurer, and the other that favors the insured, the policy should be construed to sustain coverage"). We do not deal with an alleged act designed to purposely injure the employee, coverage for which would offend public policy. Further, in light of Schmidt, the fact Joseph Oat rejected any distinctions between "subjective intent and substantial certainty of harm," Joseph Oat Corp., supra, 287 N.J.Super. at 197, 670 A.2d 1071, must be deemed outdated in this case involving bodily injury. We decide only that the underlying complaint does not allege an intent to injure and that this policy, consistent with statutory and case law authority, does not exclude coverage for intentional acts which are not themselves intended to cause injury. The judgment of the Law Division is affirmed. NJM is ordered to provide coverage in the underlying matter. NOTES [1] The matter has been deemed "final" upon the disposition of all other defendants in the declaratory judgment action. We bypass consideration of whether the declared obligation to defend in the pending personal injury action constitutes a final judgment, because the issue is not raised. See Moon v. Warren Haven Nursing Home, 182 N.J. 507, 867 A.2d 1174 (2005). [2] "Absent a specific election not to be covered, every employee is deemed to have elected the Workers' Compensation remedy for occupational injuries. N.J.S.A. 34:15-9." Schmidt v. Smith, 155 N.J. 44, 49, 713 A.2d 1014 (1998). [3] The Supreme Court affirmed our judgment that the carrier had an obligation to defend the corporate officer, the employer's president, even though it had no duty to indemnify him. Schmidt v. Smith, 294 N.J.Super. 569, 586-91, 684 A.2d 66 (App.Div.1996), aff'd, 155 N.J. 44, 51, 53, 713 A.2d 1014 (1998). [4] The Court noted "[t]here is nothing in the record to suggest that any part of [the employer's] liability stemmed from non-bodily injuries." Id. at 52, n. 1, 713 A.2d 1014. As in this case, it does not appear that the wrongdoer intended to cause the bodily injury. | 10-30-2013 | [
"881 A.2d 770 (2005) 380 N.J. Super. 193 CHARLES BESELER COMPANY, Plaintiff-Respondent, v. O'GORMAN & YOUNG, INC., a corporation; Fireman's Fund Insurance Companies and The American Insurance Company, corporations, Defendants, and New Jersey Manufacturers Insurance Company, a corporation, Defendant-Appellant. Superior Court of New Jersey, Appellate Division. Argued March 15, 2005. Decided September 9, 2005. *771 Richard J. Williams, Jr., Morristown, argued the cause for appellant (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Michael J. Marone, of counsel and on the brief; Mr. Williams, on the brief). Thomas W. Sweet, Mentham, argued the cause for respondent. Before Judges STERN, S.L. REISNER and GRAVES. The opinion of the court was delivered by STERN, P.J.A.D. New Jersey Manufacturers Insurance Company (NJM) appeals from an order of April 2, 2004 that granted the insured-employer Charles Beseler's motion for summary judgment, and denied NJM's cross motion, and declared that NJM was obligated to provide a defense and indemnification to Library Bureau Steel (LBS), a division of Beseler, in a personal injury action filed against it by an employee, Malden A. Homar.",
"NJM has assumed that defense under a reservation of rights. [1] NJM contends that it provides \"no coverage under [its employer's liability] policy for an intentional-wrong claim.\" NJM issued a \"Workers Compensation and Employers Liability Policy\" to LBS. There is no dispute that it provided coverage at the time of the accident. The policy included \"Part OneWorkers Compensation Insurance\" and \"Part TwoEmployers Liability Insurance.\" Count seven of the underlying Homar complaint against Beseler and LBS alleges: 3. On May 23, 2001, Malden A. Homar was injured while operating a Cincinnati Shaper press brake machine at LBS.",
"4. At the time of the alleged incident, Beseler was one of the entities responsible for the design, manufacture, inspection, servicing and maintenance of the Cincinnati Shaper Machine, including all of its component parts. 5. Beseler was negligent because it failed to adequately design, inspect, service and maintain the Cincinnati Shaper Machine, including all of its component parts. 6. The actions or inactions of Beseler as set forth hereinabove created a defective and dangerous machine and rendered it unfit, unsafe and unsuitable for its intended or foreseeable users. Count eight of the complaint further alleges: 3. On May 23, 2001, Malden A. Homar was injured while operating a Cincinnati Shaper press brake machine at LBS. 4. At the time of the alleged incident, Malden A. Homar was an employee of LBS.",
"5. Mr. Homar was removing metal from the brake machine when it unexpectedly cycled again and crashed down upon both of his hands crushing and severing eight of his fingers. *772 6. As a result of this incident, Malden A. Homar sustained serious injuries. 7. At the time of the alleged incident, LBS was one of the entities responsible for the design, manufacture, inspection, servicing and maintenance of the Cincinnati Shaper Machine, including all of its component parts. 8. At the time of [] this incident, warning labels, safety or protective guards or other similar devices which would have prevented the incident were either missing, disabled or allowed to fall into disrepair. 9. Defendant LBS removed or disabled or caused to be removed or disabled such warning labels, safety or protective guards or other similar devices.",
"10. LBS failed to inspect and ensure the safety of the press brake machine which caused Mr. Homar's injuries. 11. Defendant LBS knowingly allowed the machine to operate knowing of its unfit, unsafe and dangerous condition. 12. The actions or inactions of LBS as set forth hereinabove created a substantial certainty that plaintiff would be injured and were a proximate cause of the injuries sustained by Malden Homar. 13. The actions and inactions of LBS as set forth hereinabove were in reckless disregard to plaintiff's rights. 14. As a proximate result of the actions and inactions of LBS as set forth hereinabove and as a proximate result of the defective machine, Malden A. Homar sustained amputations of eight fingers, (four on each hand), which required medical treatment, caused pain and suffering and disabled Malden Homar from the performance of usual activities and, which in the future, will similarly require medical treatment, cause him pain and suffering and disable him.",
"The allegations of a complaint generally control for purposes of the obligation to defend; \"the complaint should be laid alongside the policy and a determination made as to whether, if the allegations [of the complaint] are sustained, the insurer will be required to pay the resulting judgment.\" Danek v. Hommer, 28 N.J.Super. 68, 77, 100 A.2d 198 (App.Div.1953), aff'd, 15 N.J. 573, 105 A.2d 677 (1954); see also, e.g., Voorhees v. Preferred Mutual Ins. Co., 128 N.J. 165, 173-74, 607 A.2d 1255 (1992); Salem Group v. Oliver, 128 N.J. 1, 607 A.2d 138 (1992). However, the duty to defend is a contractual obligation controlled by the policy, Hartford Accident & Indemnity Co. v. Aetna Life & Casualty Ins. Co., 98 N.J. 18, 22, 483 A.2d 402 (1984), and here the defense obligation, as embodied in \"Part Two\" of the policy, which deals with \"employer's liability\" beyond workers' compensation benefits covered by \"Part One\" of the policy, limits the obligation to defend to claims covered by the policy: D. We Will Defend We have the right and duty to defend, at our expense, any claim, proceeding or suit against you for damages payable by this insurance.",
"We have the right to investigate and settle these claims, proceedings and suits. We have no duty to defend a claim, proceeding or suit that is not covered by this insurance. We have no duty to defend or continue defending after we have paid our applicable limit of liability under this insurance. Part Two of the policy covers \"damages because of bodily injury to your employees\" which the insured \"legally must pay,\" \"provided that these damages are the direct consequence of bodily injury that arises out of and in the course of the *773 injured employee's employment,\" but excludes: 3. bodily injury to an employee while employed in violation of law with your actual knowledge or the actual knowledge of any of your executive officers; 4. any obligation imposed by a workers compensation, occupational disease, unemployment compensation, or disability benefits law, or any similar law; 5. bodily injury intentionally caused or aggravated by you; NJM contends that we have already held, in New Jersey Mfrs. Ins. Co. [NJM] v. Joseph Oat Corp., 287 N.J.Super. 190, 670 A.2d 1071 (App.Div. ), certif. denied, 142 N.J. 515, 665 A.2d 1108 (1995), that it has no obligation to defend a claim for intentional wrong by virtue of the \"intentionally caused\" exclusion of the policy.",
"Specifically, NJM contends that Joseph Oat controls; that the Supreme Court's subsequent opinion in Schmidt v. Smith, 155 N.J. 44, 713 A.2d 1014 (1998), has no application to this case; that there is no \"meaningful or relevant distinction between an employer's alleged subjective desire to injure and proof of an employer's intent to injure under the `substantial certainty standard'\" as alleged in the employee's underlying complaint; that Beseler had no \"reasonable expectation\" of coverage; that \"public policy favors exclusion of insurance coverage for liability arising out of the wrongful intentional acts of the insured;\" and that there is \"no duty to defend... because the claims asserted against LBS are not covered by Part Two [of the policy] and there is no obligation to defend where there is no coverage under the standard workers' compensation policy.\" Part Two of the policy covers acts not covered by the statutory \"elective\" benefits of the workers' compensation law (covered by Part One of the policy). See N.J.S.A.",
"34:15-7. By statute, in exchange for the \"elective\" benefits of the workers' compensation scheme, for which the employee obtains compensation irrespective of fault, the employee waives the right to commence a common-law action \"except for intentional wrong[s].\" See N.J.S.A. 34:15-8.[2]N.J.S.A. 34:15-8 excepts from the waiver any act or omission which can be deemed an \"intentional wrong.\" Nonetheless, exclusion C5 of Part Two of the policy expressly excludes \"bodily injury intentionally caused or aggravated by you.\" We conclude that the insured plaintiff is entitled to coverage because there is no assertion that the bodily injury was \"intentionally caused or aggravated by\" the insured, as opposed to an injury caused by an intentional act of the employer that resulted in the injury. An employee can bring a common-law action when the employer intends to injure the employee or knows \"that death or injury [of the employee] are substantially certain to result.\"",
"Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602, 621, 790 A.2d 884 (2002). To proceed the plaintiff must demonstrate \"the evidence could lead a jury to conclude the employer acted with knowledge that it was substantially certain that a worker would suffer injury\" and the alleged conduct is \"outside the purview of the conditions the Legislature would have intended to immunize under the Workers' Compensation bar.\" Id. at 623, 790 A.2d 884. The Supreme Court permitted Laidlow's common-law action to proceed in a case like this one, in which the employee claimed \"that his employer *774 ha[d] removed a safety device from a dangerous machine, knowing that the removal was substantially certain to result in injury to its workers and, in addition, deliberately and systematically deceived safety inspectors into believing that the machine was properly guarded.\" Id. at 606, 790 A.2d 884. The Supreme Court held that \"the employee's allegations, if proven, meet both the conduct and context prongs of Millison [v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 174, 501 A.2d 505 (1985)], thus entitling the employee to pursue his common-law remedies.\"",
"Ibid. Millison recognized that \"industry knowingly exposes workers to the risks of injury and disease,\" 101 N.J. at 177, 501 A.2d 505, and distinguished between the claims of intentional exposure to asbestos, for which there could be no common-law action, id. at 179, 501 A.2d 505, and the claims of fraudulent concealment of the plaintiff's asbestos-related diseases, for which there could. Id. at 182, 501 A.2d 505. Only the latter could the Legislature \"not have intended to insulate ... from tort liability.\" Ibid. See also Crippen v. Cent. Jersey Concrete Pipe Co., 176 N.J. 397, 405-11, 823 A.2d 789 (2003). In Joseph Oat we reviewed the C5 exclusion involved in this case in the context of a Millison claim and held that there was no coverage.",
"We expressly found no distinction between an intent to injure or injury resulting from circumstances in which injury was substantially certain to occur. Joseph Oat Corp., supra, 287 N.J.Super. at 196-97, 670 A.2d 1071. We noted that under Millison a \"deliberate intent to injure can be proved not only by evidence of actual subjective intent to injure, but also by circumstances where injury is a substantial or virtual certainty, i.e., facts `without which an actor cannot be said to intend the harm that his act produces.'\" Joseph Oat, supra, 287 N.J.Super. at 197, 670 A.2d 1071, quoting Millison, supra, 101 N.J. at 178, 501 A.2d 505.",
"We added that \"[t]here are not, then, two discrete categories of conduct which will satisfy the requirement of an `intentional wrong' to escape the exclusivity of workers' compensation remedies. Both subjective intent and substantial certainty of harm are expressive of the same standard, i.e., deliberate intent to harm.\" Ibid. Subsequently, in Schmidt v. Smith, 155 N.J. 44, 713 A.2d 1014 (1998), the Supreme Court recognized the purpose of Part Two of the policy as a \"gap filler\" where the employee has the right to maintain a common-law action. Schmidt, supra, 155 N.J. at 49-50, 713 A.2d 1014.",
"The liability portion of the policy was said \"to bridge the gap between the typical workers' compensation obligations and the obligations arising from injuries not covered by the workers' compensation regime.\" Id. at 51, 713 A.2d 1014. Schmidt required coverage for the employer in a case involving sexual harassment of an employee by a corporate officer, and so held despite the same C5 exclusion involved in this case. [3] In considering a separate exclusion, C7, for damages arising from defamation, harassment, discrimination, personnel action and the like (which is in the Beseler policy, but not raised as an issue in this matter), the Court agreed with our assessment that the \"employer would reasonably expect the employer's liability section to provide coverage for the types of injuries [plaintiff] suffered,\" ibid., and was valid \"as long as the liability from those *775 discomforts is not related to bodily injury.\" Id.",
"at 52, 713 A.2d 1014. Schmidt emphasized that N.J.S.A. 34:15-72 requires an employer to have coverage to protect employees from bodily injury. 155 N.J. at 51-52, 713 A.2d 1014. [4]See Francis X. Garrity, \"Is the Laidlow Claim Covered? Whether an Employer's Liability Policy Covers an `Intentional Wrong' Remains to be Seen,\" 178 N.J.L.J. 524 (November 1, 2004). See also N.J.S.A. 34:15-71. Despite Schmidt, NJM insists Joseph Oat controls. Under NJM's theory Part Two of the policy covers the \"gap\" caused by the absence of coverage under the elective provisions of N.J.S.A. 34:15-7, that is where there is no requirement that the employee have \"elective\" coverage, the employee elects to waive workers' compensation protection, see N.J.S.A. 34:15-7, the employee is physically injured by the intentional wrongdoing of a co-worker, see N.J.S.A.",
"34:15-8, or the injured employee is a minor, N.J.S.A. 34:15-10. In Schmidt, the Supreme Court held that the C5 exclusion, involved in that case and Joseph Oat, was inapplicable. The Supreme Court did not cite Joseph Oat in Schmidt. In our opinion in Schmidt, we distinguished Joseph Oat because no corporate policy or activity was involved as a result of the single employee's wrongdoing, 294 N.J.Super. at 583, 684 A.2d 66. The employer was \"vicariously liable for the intentional conduct of its president\" and \"[p]laintiff never attempted to prove that [the employer] acted intentionally in order to escape the exclusivity provision of N.J.S.A. 34:15-8.\" 294 N.J.Super. at 585, 684 A.2d 66. We found it significant that the employer was \"vicariously liable for the intentional acts of\" its president.",
"Id. at 584, 684 A.2d 66. The Supreme Court agreed with us \"that Exclusion C5 does not apply because there is no evidence [the employer] intended to harass\" the plaintiff. 155 N.J. at 51, 713 A.2d 1014. As previously noted, Joseph Oat rejected the distinction between coverage for \"an actual subjective intent to injure\" and \"circumstances where injury is a substantial or virtual certainty,\" 287 N.J.Super. at 197, 670 A.2d 1071. While we could technically reconcile the two cases because here there is a claim of direct wrongdoing by the insured-employer, we decline to do so or to distinguish between claims of vicarious and direct liability for purposes of coverage. In Schmidt the Court upheld the carrier's obligation to defend and indemnify the insured where an employee received injuries flowing from its president's intentional misconduct, and Laidlow upholds a common-law action in circumstances like those alleged herein. See also Crippen, supra, 176 N.J. at 408-09, 823 A.2d 789. It has been suggested by plaintiff that Schmidt overruled Joseph Oat and that N.J.S.A.",
"34:15-71, -72 and -78 mandate coverage \"for all occupational injuries\" irrespective of intent to injure. See also Garrity, supra, 104 N.J.L.J. at 532. We need not go so far, but conclude that the policy in this case excludes only injuries intentionally caused, and not the type of act alleged in this casean unintended injury caused by an intentional wrong. In light of Schmidt, and the fact exclusions in insurance policies are subject to \"strict interpretation,\" Butler v. Bonner & Barnewall, Inc., 56 N.J. 567, 576, 267 A.2d 527 (1970), we find no exclusion of the type of conduct alleged in this case which was the *776 type of wrongdoing for which a common-law cause of action was recently sustained in Laidlow. Schmidt specifically addressed the \"reasonable expectations\" of the insured in the context of exclusion C7; the same reasoning applies here.",
"Comparatively little would be covered under Part Two if the C5 exclusion and the concept of \"intentional wrong\" are as broad and the \"gap\" as little, for coverage purposes, as NJM contends. In any event, exclusion C5 cannot be read to exclude bodily injuries based on the conduct alleged in this case. See President v. Jenkins, 180 N.J. 550, 563, 853 A.2d 247 (2004) (\"[w]hen an insurance policy's language fairly supports two meanings, one that favors the insurer, and the other that favors the insured, the policy should be construed to sustain coverage\"). We do not deal with an alleged act designed to purposely injure the employee, coverage for which would offend public policy. Further, in light of Schmidt, the fact Joseph Oat rejected any distinctions between \"subjective intent and substantial certainty of harm,\" Joseph Oat Corp., supra, 287 N.J.Super.",
"at 197, 670 A.2d 1071, must be deemed outdated in this case involving bodily injury. We decide only that the underlying complaint does not allege an intent to injure and that this policy, consistent with statutory and case law authority, does not exclude coverage for intentional acts which are not themselves intended to cause injury. The judgment of the Law Division is affirmed. NJM is ordered to provide coverage in the underlying matter. NOTES [1] The matter has been deemed \"final\" upon the disposition of all other defendants in the declaratory judgment action. We bypass consideration of whether the declared obligation to defend in the pending personal injury action constitutes a final judgment, because the issue is not raised. See Moon v. Warren Haven Nursing Home, 182 N.J. 507, 867 A.2d 1174 (2005). [2] \"Absent a specific election not to be covered, every employee is deemed to have elected the Workers' Compensation remedy for occupational injuries. N.J.S.A. 34:15-9.\" Schmidt v. Smith, 155 N.J. 44, 49, 713 A.2d 1014 (1998). [3] The Supreme Court affirmed our judgment that the carrier had an obligation to defend the corporate officer, the employer's president, even though it had no duty to indemnify him. Schmidt v. Smith, 294 N.J.Super.",
"569, 586-91, 684 A.2d 66 (App.Div.1996), aff'd, 155 N.J. 44, 51, 53, 713 A.2d 1014 (1998). [4] The Court noted \"[t]here is nothing in the record to suggest that any part of [the employer's] liability stemmed from non-bodily injuries.\" Id. at 52, n. 1, 713 A.2d 1014. As in this case, it does not appear that the wrongdoer intended to cause the bodily injury."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2329215/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
955 N.E.2d 476 (2011) 353 Ill. Dec. 9 PEOPLE v. LETCHER. No. 112741. Supreme Court of Illinois. September 1, 2001. Disposition of Petition for Leave to Appeal Denied. | 10-30-2013 | [
"955 N.E.2d 476 (2011) 353 Ill. Dec. 9 PEOPLE v. LETCHER. No. 112741. Supreme Court of Illinois. September 1, 2001. Disposition of Petition for Leave to Appeal Denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2531124/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-90,198-03
EX PARTE KEYSHA KEYYOR TUGLER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W16-47527-N(B) IN THE 195TH DISTRICT COURT FROM DALLAS COUNTY
Per curiam.
ORDER
Applicant was convicted of aggravated robbery and sentenced to thirty-seven years’
imprisonment. The Fifth Court of Appeals affirmed her conviction. Tugler v.State, 05-17-00429-
CR (Tex. App.—Dallas July 12, 2018) (not designated for publication). Applicant filed this
application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded
it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.
Applicant contends, among other things, that appellate counsel failed to advise her of her
right to file a pro se petition for discretionary review. Applicant has alleged facts that, if true, might
entitle her to relief. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997); Ex parte Crow, 180 S.W.3d 135 (Tex. Crim. App. 2005). Accordingly, the record should be developed. The trial court 2
is the appropriate forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial
court shall order appellate counsel to respond to Applicant’s claim. In developing the record, the
trial court may use any means set out in Article 11.07, § 3(d). If the trial court elects to hold a
hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wants to be
represented by counsel, the trial court shall appoint counsel to represent her at the hearing. See TEX .
CODE CRIM . PROC. art. 26.04. If counsel is appointed or retained, the trial court shall immediately
notify this Court of counsel’s name.
The trial court shall make findings of fact and conclusions of law as to whether appellate
counsel timely advised Applicant that she had a right to file a pro se petition for discretionary
review. The trial court shall also determine whether Applicant would have timely filed a petition
for discretionary review but for appellate counsel’s alleged deficient performance. The trial court
may make any other findings and conclusions that it deems appropriate in response to Applicant’s
claims.
The trial court shall make findings of fact and conclusions of law within ninety days from
the date of this order. The district clerk shall then immediately forward to this Court the trial court’s
findings and conclusions and the record developed on remand, including, among other things,
affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from
hearings and depositions. See TEX . R. APP . P. 73.4(b)(4). Any extensions of time must be requested
by the trial court and obtained from this Court.
Filed: April 1, 2020
Do not publish | 04-02-2020 | [
"IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-90,198-03 EX PARTE KEYSHA KEYYOR TUGLER, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W16-47527-N(B) IN THE 195TH DISTRICT COURT FROM DALLAS COUNTY Per curiam. ORDER Applicant was convicted of aggravated robbery and sentenced to thirty-seven years’ imprisonment. The Fifth Court of Appeals affirmed her conviction. Tugler v.State, 05-17-00429- CR (Tex. App.—Dallas July 12, 2018) (not designated for publication). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.",
"Applicant contends, among other things, that appellate counsel failed to advise her of her right to file a pro se petition for discretionary review. Applicant has alleged facts that, if true, might entitle her to relief. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997); Ex parte Crow, 180 S.W.3d 135 (Tex. Crim. App. 2005). Accordingly, the record should be developed. The trial court 2 is the appropriate forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order appellate counsel to respond to Applicant’s claim. In developing the record, the trial court may use any means set out in Article 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent.",
"If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent her at the hearing. See TEX . CODE CRIM . PROC. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel’s name. The trial court shall make findings of fact and conclusions of law as to whether appellate counsel timely advised Applicant that she had a right to file a pro se petition for discretionary review. The trial court shall also determine whether Applicant would have timely filed a petition for discretionary review but for appellate counsel’s alleged deficient performance.",
"The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant’s claims. The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court’s findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions.",
"See TEX . R. APP . P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court. Filed: April 1, 2020 Do not publish"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4521584/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
McCALE, District Judge. This is a case in equity. The court below denied the relief sought and dismissed the bill. The plaintiff appealed and assigned error. Wolf creek (sometimes called a county ditch) Hows through the lands of plaintiff and defendant near Barberton, Ohio. The lands of the former lie adjacent to and above that of the latter. It is insisted that a dam, which is maintained across the creek, by the defendant at its plant, impedes the flow of water so that it backs up and prevents the proper drainage of plaintiff’s lands, to his damage. The suit was brought to require the defendant to remove the dam, to- enjoin it from diverting the ditch or water course from the proper line, and restore it to its original and true line, and to its proper and original condition prior to the construction of the dam, so as to allow the water to flow in its proper channel in such a manner as to carry away the sediment, and permit the free drainage of the lands, which drain into the ditch and water course, and, further, that the court ascertain and determine the damage which the plaintiff had sustained, occasioned by the construction of the dam and the consequent injury to his property, and for general relief. At the time the injunctive relief was denied, the court was of the opinion that the plaintiff had a right to equitable relief, by way of compensation, for such definite damage and injury as he had sustained up to that time, and retained the case as a pending suit. The case was referred to a special master, to “take testimony and report what damage the plaintiff had sustained to his lands, because of the defendant’s *478said dam.” The master was instructed to consider the testimony then on file, as well as such other evidence as either party desired to offer on the question of damages. The master viewed the premises, by agreement of counsel for both parties, accompanied by the plaintiff and his counsel, and, after having carefully considered the evidence, reported: “I find that complainant has sustained no definite, material, or substantial damage or injury to his lands, described in the bill of complaint, because of the defendant’s said dam.” ' Exceptions were filed to the report of the master, which were disallowed, and the court concurred in the master’s findings. [1] The findings of the master in chancery, concurred in'by the court, are to be taken as presumptively correct, and should not be dis- ’ turbed, unless clearly wrong. Furrer v. Ferris, 145 U. S. 132, 12 Sup. Ct. 821, 36 L. Ed. 649; Lovewell v. Schoolfield, 217 Fed. 689, 702, 133 C. C. A. 449. In Western Transit Co. v. Davidson, 212 Fed. 701, 129 C. C. A. 232, Judge Denison, speaking for this court, said: “We think, in the ordinary case of a reference by the equity court to its master ‘to take proofs and report his findings of fact arid law,’ * * * it has never been intended to hold that the finding or report should have any greater force than is implied by the criterion, ‘clearly against the weight of the evidence,’ or ‘unless error clearly appears,’ or our own formula, ‘a decided preponderance against the judgment.’ ” Whether the plaintiff’s land had suffered any material damage from the maintenance of the dam by tire defendant is essentially a question of fact, and since we discover no serious nor important mistake in the consideration of the evidence, nor find that the evidence decidedly preponderates against the decree, under the ruling of this court in the above-cited cases, we approve, in this respect, the action of the trial court. [2] The mandatory injunction was denied, as stated in the decree, “because of the conduct and course of dealing of the complainant, and his delay in bringing this suit.” There are two grounds, therefore, as a basis of the decree: First, plaintiff’s conduct and course of dealing with the defendant; and, second, his delay in bringing the suit. Subsequent to 1890, the plaintiff, O. C. Barber, and his colleagues organized a syndicate, known as the Barberton Land & Improvement Company, which became the owner of tire whole tract of land on which the city of Barberton, Ohio, was laid out, as well as large tracts of land immediately surrounding the town site. Barber acquired 40 per cent, of the stock. The business of the syndicate was principally the promotion of the city of Barberton, and its entire energies were devoted to procuring various manufacturing plants to locate there, to selling lots and land owned by it, and also, to selling large tracts of land surrounding the city. The defendant was solicited by members of the syndicate to locate its plant at Barberton. Yielding to the solicitations, the defendant sent its engineer to examine and report upon the suitability of the site proposed by the plaintiff, especially as to whether water in necessary quantities was at all times obtainable. The defendant was assured by *479members of the syndicate that an ample supply of water for its needs could be obtained from Wolf creek and vicinity. A series of experiments on the stream was conducted by the plaintiff and a member or members of the syndicate for a considerable period of time, in order to determine whether the stream during the dry portions of the year could be depended upon to supply the requisite amount of water. It was thus ascertained that by putting a suitable dam across the stream, at the proposed site of defendant’s works, a sufficient quantity of water for its manufacturing needs could be obtained. Was the plaintiff acquainted with these representations and activities by the syndicate? It appears from the record that William A. Johnson was the engineer in the employ of the Barberton Land & Improvement Company, and that he was directed to make some readings of the temperature of Wolf creek and the volume of the flow of water, to ascertain whether there was sufficient water and of proper character for the purposes of the defendant Chemical Company’s uses, and he says that: ‘•Mr. Galt [manager of the defendant company] stated to me, right at the beginning, that water was one of the most important things to be considered in the establishment of that business, and that is why these experiments were conducted over such a long period of time. I discussed the matter with Mr. Barber and my partners, just as I did everything else, and I did not do anything until they were fully informed of everything.” From this and other evidence of like character, we are unable to escape the conclusion that the plaintiff was acquainted with these representations and activities of the syndicate in its effort to induce the defendant to locate its plant at Barberton. Induced by the representations and the experiments as to water, defendant decided to locate its manufacturing plant at Barberton, and for that purpose purchased in 1899 from the Barberton Land & Improvement Company and others the lands now owned by the company and occupied by it, and erected on the premises many large and expensive buildings, filled them with large quantities of costly machinery, bored numerous wells to a salt formation 2,700 feet beneath the surface of the earth, arid made other improvements necessary for its business, amounting now to more than $4,000,000. For the purpose of conducting a portion of the water into its manufacturing plant, located along the banks of the stream, the defendant widened the stream on its premises, on both sides thereof, from its natural width of about 20 feet to 60 feet, and also deepened the channel, throughout its entire works at a heavy cost. Until about 1904, the defendant maintained in the stream a solid dam, for the purpose of conserving the water for its use. At that time it replaced the solid dam with a lift dam, or series of gates, so constructed that when water was plenty the dam could be entirely removed from the stream, by lifting the various gates and thus allowing the water to flow through the channel unimpeded, with a much greater area for such purposes than formerly existed. In dry times, when water was scarce, all the gates or any of them could be lowered and the water conserved for the use of the defendant, except a small portion, was returned to the stream below the dam. *480Thus it appears from the record that the plaintiff knew that the defendant would require large quantities of water; that members of the syndicate represented to the defendant, as an inducement for it to locate at Barberton, that water in abundance from Wolf creek and vicinity could be provided for at the site of the plant, and that it would be necessary in some measure to dam the creek so as to provide a reservoir, to draw upon during the dry season. When we consider the correspondence in the record, that passed between tire plaintiff and the defendant in September, 1905, together with circumstances preceding and subsequent thereto, and recall that the court below found that plaintiff had sustained no damage to his land because of defendant’s dam, it is difficult to escape the conclusion that the plaintiff’s inability to sell to defendant the land under consideration, at about 1,000 per cent, advance over its cost six years previous, was probably the predominant motive that induced plaintiff to bring this suit, rather than because of any real damage he had sustained to his land. In view of the entire record, we are impressed with the idea that the court below was correct in decreeing that the conduct and course of dealing of the plaintiff with the defendant disentitles the plaintiff to injunctive relief. Mr. Justice Brewer, speaking for the Supreme Court of the United States, said: “It is a familiar law that-injunction will not issue to enforce a right that is doubtful, or to restrain an act the injurious consequences of which are merely trifling.” Canal Co. v. Canal Co., 177 U. S. 302, 20 Sup. Ct. 630, 44 L. Ed. 777. Plaintiff’s right to injunctive relief should be made clear, for, if granted, it would very seriously affect, if it did not destroy, defendant’s' manufacturing business at Barberton. A suit for an injunction is an equitable proceeding, and the interests of the defendant are to be considered, as well as those of the plaintiff. Wilson v. Shaw, 204 U. S. 31, 27 Sup. Ct. 233, 51 L. Ed. 351. [3] It was insisted at the hearing that, though it may not have been shown that the dam impeded the flow of water so as to back it up and inundate plaintiff’s land, the evidence did show that the water backed up to such an extent that it prevented the drainage of the land by proper underground tiling. That conclusion is not at all certain— a probability, at most. No effort has been made to use underground tiling for draining the land, and until this has been done, and the result more clearly ascertained, we think the dam should not' be disturbed on that account. The. doctrine of, estoppel, the character of the water course, and other questions are raised upon the record; but we deem it unnecessary to discuss them, since, as we think, they are not material to a proper determination of the case. It results that the decree must be affirmed, with costs, but without prejudice to plaintiff’s right to recover of defendant, by proceeding supplemental to this decree, such damages, if any, as plaintiff may hereafter suffer by reason of any change made by defendant, subsequent to the decree appealed from, affecting the flow in the ditch to the injury of plaintiff’s land, or in case defendant’s present or future *481interference with the flow of the ditch shall actually operate to prevent the drainage of plaintiff’s land (as held under his presently existing title or easement) into the ditch by means of undertiling, if and when such drainage shall be actually attempted. | 11-26-2022 | [
"McCALE, District Judge. This is a case in equity. The court below denied the relief sought and dismissed the bill. The plaintiff appealed and assigned error. Wolf creek (sometimes called a county ditch) Hows through the lands of plaintiff and defendant near Barberton, Ohio. The lands of the former lie adjacent to and above that of the latter. It is insisted that a dam, which is maintained across the creek, by the defendant at its plant, impedes the flow of water so that it backs up and prevents the proper drainage of plaintiff’s lands, to his damage. The suit was brought to require the defendant to remove the dam, to- enjoin it from diverting the ditch or water course from the proper line, and restore it to its original and true line, and to its proper and original condition prior to the construction of the dam, so as to allow the water to flow in its proper channel in such a manner as to carry away the sediment, and permit the free drainage of the lands, which drain into the ditch and water course, and, further, that the court ascertain and determine the damage which the plaintiff had sustained, occasioned by the construction of the dam and the consequent injury to his property, and for general relief.",
"At the time the injunctive relief was denied, the court was of the opinion that the plaintiff had a right to equitable relief, by way of compensation, for such definite damage and injury as he had sustained up to that time, and retained the case as a pending suit. The case was referred to a special master, to “take testimony and report what damage the plaintiff had sustained to his lands, because of the defendant’s *478said dam.” The master was instructed to consider the testimony then on file, as well as such other evidence as either party desired to offer on the question of damages. The master viewed the premises, by agreement of counsel for both parties, accompanied by the plaintiff and his counsel, and, after having carefully considered the evidence, reported: “I find that complainant has sustained no definite, material, or substantial damage or injury to his lands, described in the bill of complaint, because of the defendant’s said dam.” ' Exceptions were filed to the report of the master, which were disallowed, and the court concurred in the master’s findings.",
"[1] The findings of the master in chancery, concurred in'by the court, are to be taken as presumptively correct, and should not be dis- ’ turbed, unless clearly wrong. Furrer v. Ferris, 145 U. S. 132, 12 Sup. Ct. 821, 36 L. Ed. 649; Lovewell v. Schoolfield, 217 Fed. 689, 702, 133 C. C. A. 449. In Western Transit Co. v. Davidson, 212 Fed. 701, 129 C. C. A. 232, Judge Denison, speaking for this court, said: “We think, in the ordinary case of a reference by the equity court to its master ‘to take proofs and report his findings of fact arid law,’ * * * it has never been intended to hold that the finding or report should have any greater force than is implied by the criterion, ‘clearly against the weight of the evidence,’ or ‘unless error clearly appears,’ or our own formula, ‘a decided preponderance against the judgment.’ ” Whether the plaintiff’s land had suffered any material damage from the maintenance of the dam by tire defendant is essentially a question of fact, and since we discover no serious nor important mistake in the consideration of the evidence, nor find that the evidence decidedly preponderates against the decree, under the ruling of this court in the above-cited cases, we approve, in this respect, the action of the trial court. [2] The mandatory injunction was denied, as stated in the decree, “because of the conduct and course of dealing of the complainant, and his delay in bringing this suit.” There are two grounds, therefore, as a basis of the decree: First, plaintiff’s conduct and course of dealing with the defendant; and, second, his delay in bringing the suit.",
"Subsequent to 1890, the plaintiff, O. C. Barber, and his colleagues organized a syndicate, known as the Barberton Land & Improvement Company, which became the owner of tire whole tract of land on which the city of Barberton, Ohio, was laid out, as well as large tracts of land immediately surrounding the town site. Barber acquired 40 per cent, of the stock. The business of the syndicate was principally the promotion of the city of Barberton, and its entire energies were devoted to procuring various manufacturing plants to locate there, to selling lots and land owned by it, and also, to selling large tracts of land surrounding the city. The defendant was solicited by members of the syndicate to locate its plant at Barberton.",
"Yielding to the solicitations, the defendant sent its engineer to examine and report upon the suitability of the site proposed by the plaintiff, especially as to whether water in necessary quantities was at all times obtainable. The defendant was assured by *479members of the syndicate that an ample supply of water for its needs could be obtained from Wolf creek and vicinity. A series of experiments on the stream was conducted by the plaintiff and a member or members of the syndicate for a considerable period of time, in order to determine whether the stream during the dry portions of the year could be depended upon to supply the requisite amount of water. It was thus ascertained that by putting a suitable dam across the stream, at the proposed site of defendant’s works, a sufficient quantity of water for its manufacturing needs could be obtained. Was the plaintiff acquainted with these representations and activities by the syndicate?",
"It appears from the record that William A. Johnson was the engineer in the employ of the Barberton Land & Improvement Company, and that he was directed to make some readings of the temperature of Wolf creek and the volume of the flow of water, to ascertain whether there was sufficient water and of proper character for the purposes of the defendant Chemical Company’s uses, and he says that: ‘•Mr. Galt [manager of the defendant company] stated to me, right at the beginning, that water was one of the most important things to be considered in the establishment of that business, and that is why these experiments were conducted over such a long period of time. I discussed the matter with Mr. Barber and my partners, just as I did everything else, and I did not do anything until they were fully informed of everything.” From this and other evidence of like character, we are unable to escape the conclusion that the plaintiff was acquainted with these representations and activities of the syndicate in its effort to induce the defendant to locate its plant at Barberton. Induced by the representations and the experiments as to water, defendant decided to locate its manufacturing plant at Barberton, and for that purpose purchased in 1899 from the Barberton Land & Improvement Company and others the lands now owned by the company and occupied by it, and erected on the premises many large and expensive buildings, filled them with large quantities of costly machinery, bored numerous wells to a salt formation 2,700 feet beneath the surface of the earth, arid made other improvements necessary for its business, amounting now to more than $4,000,000.",
"For the purpose of conducting a portion of the water into its manufacturing plant, located along the banks of the stream, the defendant widened the stream on its premises, on both sides thereof, from its natural width of about 20 feet to 60 feet, and also deepened the channel, throughout its entire works at a heavy cost. Until about 1904, the defendant maintained in the stream a solid dam, for the purpose of conserving the water for its use.",
"At that time it replaced the solid dam with a lift dam, or series of gates, so constructed that when water was plenty the dam could be entirely removed from the stream, by lifting the various gates and thus allowing the water to flow through the channel unimpeded, with a much greater area for such purposes than formerly existed. In dry times, when water was scarce, all the gates or any of them could be lowered and the water conserved for the use of the defendant, except a small portion, was returned to the stream below the dam. *480Thus it appears from the record that the plaintiff knew that the defendant would require large quantities of water; that members of the syndicate represented to the defendant, as an inducement for it to locate at Barberton, that water in abundance from Wolf creek and vicinity could be provided for at the site of the plant, and that it would be necessary in some measure to dam the creek so as to provide a reservoir, to draw upon during the dry season. When we consider the correspondence in the record, that passed between tire plaintiff and the defendant in September, 1905, together with circumstances preceding and subsequent thereto, and recall that the court below found that plaintiff had sustained no damage to his land because of defendant’s dam, it is difficult to escape the conclusion that the plaintiff’s inability to sell to defendant the land under consideration, at about 1,000 per cent, advance over its cost six years previous, was probably the predominant motive that induced plaintiff to bring this suit, rather than because of any real damage he had sustained to his land.",
"In view of the entire record, we are impressed with the idea that the court below was correct in decreeing that the conduct and course of dealing of the plaintiff with the defendant disentitles the plaintiff to injunctive relief. Mr. Justice Brewer, speaking for the Supreme Court of the United States, said: “It is a familiar law that-injunction will not issue to enforce a right that is doubtful, or to restrain an act the injurious consequences of which are merely trifling.” Canal Co. v. Canal Co., 177 U. S. 302, 20 Sup. Ct. 630, 44 L. Ed. 777. Plaintiff’s right to injunctive relief should be made clear, for, if granted, it would very seriously affect, if it did not destroy, defendant’s' manufacturing business at Barberton. A suit for an injunction is an equitable proceeding, and the interests of the defendant are to be considered, as well as those of the plaintiff.",
"Wilson v. Shaw, 204 U. S. 31, 27 Sup. Ct. 233, 51 L. Ed. 351. [3] It was insisted at the hearing that, though it may not have been shown that the dam impeded the flow of water so as to back it up and inundate plaintiff’s land, the evidence did show that the water backed up to such an extent that it prevented the drainage of the land by proper underground tiling. That conclusion is not at all certain— a probability, at most. No effort has been made to use underground tiling for draining the land, and until this has been done, and the result more clearly ascertained, we think the dam should not' be disturbed on that account. The. doctrine of, estoppel, the character of the water course, and other questions are raised upon the record; but we deem it unnecessary to discuss them, since, as we think, they are not material to a proper determination of the case. It results that the decree must be affirmed, with costs, but without prejudice to plaintiff’s right to recover of defendant, by proceeding supplemental to this decree, such damages, if any, as plaintiff may hereafter suffer by reason of any change made by defendant, subsequent to the decree appealed from, affecting the flow in the ditch to the injury of plaintiff’s land, or in case defendant’s present or future *481interference with the flow of the ditch shall actually operate to prevent the drainage of plaintiff’s land (as held under his presently existing title or easement) into the ditch by means of undertiling, if and when such drainage shall be actually attempted."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8797780/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 9900251
Decision Date: 01/07/99 Archive Date: 01/12/99
DOCKET NO. 96-26 860 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
New York,
New York
THE ISSUES
1. Entitlement to an increased rating for the veteran's
service-connected gastrectomy for peptic ulcer, currently
evaluated as 20 percent disabling.
2. Entitlement to service connection for a urethral
condition as secondary to the gastrectomy for peptic ulcer.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Dennis F. Chiappetta, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1968 to February
1971.
This matter comes before the Board of Veterans Appeals
(Board) on appeal from a December 1994 RO rating decision
which denied the veteran's claim for secondary service
connection for a ureteral condition and denied the veteran's
claim for a rating in excess of 20 percent for his service-
connected gastrectomy for peptic ulcer.
The file contains transcripts of the veteran's July 1997
hearing before a hearing officer at the RO and his September
1998 hearing before a member of the Board.
The RO has variously developed on appeal the issue of service
connection for a ureteral disorder and service connection for
a urethral disorder. As clarified at the September 1998
hearing, the veteran is seeking service connection for a
urethral disorder. Accordingly, the issue has been so framed
by the Board.
REMAND
1. Increased rating for peptic ulcer disorder
A review of the record shows that the veteran underwent an
operation for his peptic ulcer disorder in 1968. By rating
action of March 1971, the RO granted service connection with
a 20 percent disability rating for gastrectomy for peptic
ulcer. The veteran now asserts that his service-connected
peptic ulcer disorder is more severe than indicated by the
current 20 percent rating.
The Board finds the veteran's claim for increased
compensation benefits is well-grounded, meaning plausible,
and based on a review of the file, there is a further VA duty
to assist him in developing the facts pertinent to the claim.
See 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998); 38 C.F.R.
§ 3.159 (1998); Proscelle v. Derwinski, 2 Vet.App. 629, 631-
32 (1992).
On the veteran's August 1997 VA examination report, it was
noted that the veteran had complaints of vomiting and
bloating after meals. On specific evaluation it was noted
that the veteran was at his maximum weight of the year (218),
that the veteran was not anemic, and that the veteran had
periodic vomiting. It was also reported that the veteran had
occasional melena and epigastric pain five to six times per
day and vomiting once a day. Frequency of episodes was every
other day. The diagnoses included peptic ulcer disease and
gastric outlet obstruction. Recent private records indicate
diagnoses including chronic active gastritis (Dr. Yatto,
February 1997) and pyloric channel ulcer with functional
gastric outlet obstruction (Dr. Goodman, September 1998).
Since his last VA examination, the veteran has reported
worsening symptoms including severe nausea and vomiting,
recent weight loss of 15 pounds, diarrhea, bloating, and
spasms. Given the veteran's complaints of a worsening
condition, the additional private diagnoses, and the lack of
any in-depth discussion of the symptomatology of the
veteran's service-connected disorder during his last VA
examination, a new VA examination is in order. See Caffrey
v. Brown, 6 Vet.App. 377, 381 (1994).
The Board notes that there may be additional medical evidence
available that is not already on file. Noted in this regard
is the absence of any clinical records of private treatment
by Dr. Goodman. Copies of any records of ongoing treatment
for the veteran's service-connected peptic ulcer disorder
should be obtained and associated with the claims file before
the veteran undergoes further examination. See Murincsak v.
Derwinski, 2 Vet.App. 363 (1992).
2. Service connection for a urethral disorder as secondary
to the veteran's service-connected peptic ulcer disorder.
The veteran contends that he has a disorder of his urethra
that was caused when a catheter was left inserted for too
long during treatment for his service-connected peptic ulcer
condition in 1968. The veteran's August 1997 VA examination
report did not provide a diagnosis any urethral problem and
it did not include comment as to any possible relationship
between the veteran's current complaints and his undocumented
history of a catheterization.
While records on file show no complaints or findings
indicative of a urethral disorder during service or for many
years thereafter, the Board notes that the veteran has
submitted an August 1998 letter from private physician Edward
F. Reda, M.D., which appears to indicate that the veteran has
been diagnosed with urethral stricture, and that there is a
very strong likelihood that the veteran's catheterization
during his treatment for an emergent gastrectomy could be the
reason for this disorder.
Since this private record provides information that in some
ways conflicts with the evidence already on file, the veteran
should undergo a new VA examination that specifically
addresses any disorder of the urethra and provides a
diagnosis with medical opinion as to the etiology and which
attempts to reconcile any disparity in the medical findings
of record.
Accordingly, the case is hereby REMANDED for the following
actions:
1. The RO should obtain the complete
records of hospitalization of the veteran
for a gastrectomy, apparently in October
1968 at St. Albans Naval Hospital, New
York. Any records obtained should be
associated with the claims folder. If
the RO is unable to obtain the complete
records, the claims file should be so
annotated, along with documentation of
efforts undertaken.
2. The RO should take appropriate action
to contact the veteran and request the
names, addresses, and approximate dates
of treatment of all health care providers
(VA and non-VA) who have treated him for
his peptic ulcer problems and for
problems with the urethra since service.
When the veteran responds and provides
any necessary authorizations, the named
health care providers should be contacted
and asked to submit copies of all medical
records documenting their treatment which
are not already in the claims folder.
All records obtained should be associated
with the claims folder. However, if any
search yields negative results, that fact
should clearly be documented in the
claims file.
3. The RO should schedule the veteran
for an examination of the stomach to
determine the current severity of his
service-connected ulcer condition. Any
necessary special studies should be
performed. If additional
gastrointestinal problems are found, the
examiner should offer an opinion as to
the medical probability that such
problems are a manifestation of,
proximately due to or otherwise a result
of the service-connected peptic ulcer
condition. The claims folder and a
complete copy of this REMAND must be made
available to the examining physician for
review, and the examination report should
reflect consideration of the veterans
pertinent medical history. The
examiners report should fully set forth
all current complaints and pertinent
clinical findings.
4. The RO should schedule the veteran
for an examination of the urethra to
determine the diagnosis and etiology of
the veteran's current complaints. Any
necessary special studies should be
performed. The examiner should also
attempt to reconcile any conflicting
diagnoses or medical findings on record.
The claims folder and a complete copy of
this REMAND must be made available to the
examining physician for review, and the
examination report should reflect
consideration of the veterans pertinent
medical history. The examiners report
should fully set forth all current
complaints and pertinent clinical
findings.
5. The RO should review the examination
reports to determine if they are in
compliance with this REMAND. If
deficient in any manner, the report(s)
should be returned, along with the claims
file, for corrective action.
6. After completion of the foregoing,
the RO should consider the claims on the
basis of all pertinent evidence of
record, and all applicable laws,
regulations, and case law. If the
determinations remain adverse to the
veteran, both he and his representative
should be provided with an appropriate
supplemental statement of the case and be
afforded the applicable time to respond
before the case is returned to the Board
for further appellate review.
The purpose of this REMAND is to obtain additional
development and adjudication, and the Board does not imply
any ultimate outcome. The veteran need take no action until
notified.
These claims must be afforded expeditious treatment by the
RO. The law requires that all claims that are remanded by
the Board of Veterans Appeals or by the United States Court
of Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBAs ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
BARBARA B. COPELAND
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).
- 2 - | 01-07-1999 | [
"Citation Nr: 9900251 Decision Date: 01/07/99 Archive Date: 01/12/99 DOCKET NO. 96-26 860 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUES 1. Entitlement to an increased rating for the veteran's service-connected gastrectomy for peptic ulcer, currently evaluated as 20 percent disabling. 2. Entitlement to service connection for a urethral condition as secondary to the gastrectomy for peptic ulcer. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dennis F. Chiappetta, Associate Counsel INTRODUCTION The veteran served on active duty from May 1968 to February 1971.",
"This matter comes before the Board of Veterans Appeals (Board) on appeal from a December 1994 RO rating decision which denied the veteran's claim for secondary service connection for a ureteral condition and denied the veteran's claim for a rating in excess of 20 percent for his service- connected gastrectomy for peptic ulcer. The file contains transcripts of the veteran's July 1997 hearing before a hearing officer at the RO and his September 1998 hearing before a member of the Board. The RO has variously developed on appeal the issue of service connection for a ureteral disorder and service connection for a urethral disorder. As clarified at the September 1998 hearing, the veteran is seeking service connection for a urethral disorder. Accordingly, the issue has been so framed by the Board.",
"REMAND 1. Increased rating for peptic ulcer disorder A review of the record shows that the veteran underwent an operation for his peptic ulcer disorder in 1968. By rating action of March 1971, the RO granted service connection with a 20 percent disability rating for gastrectomy for peptic ulcer. The veteran now asserts that his service-connected peptic ulcer disorder is more severe than indicated by the current 20 percent rating. The Board finds the veteran's claim for increased compensation benefits is well-grounded, meaning plausible, and based on a review of the file, there is a further VA duty to assist him in developing the facts pertinent to the claim.",
"See 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998); 38 C.F.R. § 3.159 (1998); Proscelle v. Derwinski, 2 Vet.App. 629, 631- 32 (1992). On the veteran's August 1997 VA examination report, it was noted that the veteran had complaints of vomiting and bloating after meals. On specific evaluation it was noted that the veteran was at his maximum weight of the year (218), that the veteran was not anemic, and that the veteran had periodic vomiting. It was also reported that the veteran had occasional melena and epigastric pain five to six times per day and vomiting once a day.",
"Frequency of episodes was every other day. The diagnoses included peptic ulcer disease and gastric outlet obstruction. Recent private records indicate diagnoses including chronic active gastritis (Dr. Yatto, February 1997) and pyloric channel ulcer with functional gastric outlet obstruction (Dr. Goodman, September 1998). Since his last VA examination, the veteran has reported worsening symptoms including severe nausea and vomiting, recent weight loss of 15 pounds, diarrhea, bloating, and spasms. Given the veteran's complaints of a worsening condition, the additional private diagnoses, and the lack of any in-depth discussion of the symptomatology of the veteran's service-connected disorder during his last VA examination, a new VA examination is in order. See Caffrey v. Brown, 6 Vet.App. 377, 381 (1994). The Board notes that there may be additional medical evidence available that is not already on file. Noted in this regard is the absence of any clinical records of private treatment by Dr. Goodman.",
"Copies of any records of ongoing treatment for the veteran's service-connected peptic ulcer disorder should be obtained and associated with the claims file before the veteran undergoes further examination. See Murincsak v. Derwinski, 2 Vet.App. 363 (1992). 2. Service connection for a urethral disorder as secondary to the veteran's service-connected peptic ulcer disorder. The veteran contends that he has a disorder of his urethra that was caused when a catheter was left inserted for too long during treatment for his service-connected peptic ulcer condition in 1968. The veteran's August 1997 VA examination report did not provide a diagnosis any urethral problem and it did not include comment as to any possible relationship between the veteran's current complaints and his undocumented history of a catheterization. While records on file show no complaints or findings indicative of a urethral disorder during service or for many years thereafter, the Board notes that the veteran has submitted an August 1998 letter from private physician Edward F. Reda, M.D., which appears to indicate that the veteran has been diagnosed with urethral stricture, and that there is a very strong likelihood that the veteran's catheterization during his treatment for an emergent gastrectomy could be the reason for this disorder. Since this private record provides information that in some ways conflicts with the evidence already on file, the veteran should undergo a new VA examination that specifically addresses any disorder of the urethra and provides a diagnosis with medical opinion as to the etiology and which attempts to reconcile any disparity in the medical findings of record.",
"Accordingly, the case is hereby REMANDED for the following actions: 1. The RO should obtain the complete records of hospitalization of the veteran for a gastrectomy, apparently in October 1968 at St. Albans Naval Hospital, New York. Any records obtained should be associated with the claims folder. If the RO is unable to obtain the complete records, the claims file should be so annotated, along with documentation of efforts undertaken. 2. The RO should take appropriate action to contact the veteran and request the names, addresses, and approximate dates of treatment of all health care providers (VA and non-VA) who have treated him for his peptic ulcer problems and for problems with the urethra since service. When the veteran responds and provides any necessary authorizations, the named health care providers should be contacted and asked to submit copies of all medical records documenting their treatment which are not already in the claims folder. All records obtained should be associated with the claims folder.",
"However, if any search yields negative results, that fact should clearly be documented in the claims file. 3. The RO should schedule the veteran for an examination of the stomach to determine the current severity of his service-connected ulcer condition. Any necessary special studies should be performed. If additional gastrointestinal problems are found, the examiner should offer an opinion as to the medical probability that such problems are a manifestation of, proximately due to or otherwise a result of the service-connected peptic ulcer condition. The claims folder and a complete copy of this REMAND must be made available to the examining physician for review, and the examination report should reflect consideration of the veterans pertinent medical history. The examiners report should fully set forth all current complaints and pertinent clinical findings. 4. The RO should schedule the veteran for an examination of the urethra to determine the diagnosis and etiology of the veteran's current complaints.",
"Any necessary special studies should be performed. The examiner should also attempt to reconcile any conflicting diagnoses or medical findings on record. The claims folder and a complete copy of this REMAND must be made available to the examining physician for review, and the examination report should reflect consideration of the veterans pertinent medical history. The examiners report should fully set forth all current complaints and pertinent clinical findings. 5. The RO should review the examination reports to determine if they are in compliance with this REMAND. If deficient in any manner, the report(s) should be returned, along with the claims file, for corrective action.",
"6. After completion of the foregoing, the RO should consider the claims on the basis of all pertinent evidence of record, and all applicable laws, regulations, and case law. If the determinations remain adverse to the veteran, both he and his representative should be provided with an appropriate supplemental statement of the case and be afforded the applicable time to respond before the case is returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional development and adjudication, and the Board does not imply any ultimate outcome. The veteran need take no action until notified. These claims must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.",
"§ 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBAs ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. BARBARA B. COPELAND Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1998). - 2 -"
]
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HUGHES, Justice. This suit is brought by the Board of Firemen’s Relief and Retirement Fund Trustees of Texarkana, Texas, to set aside an order of G. F. Williams, Firemen’s Pension Commissioner, awarding Mrs. Joy Ryan, surviving widow of David Ryan, a deceased fireman, a widow’s pension under the provisions of Art. 6243e, Vernon’s Ann.Civ.St., Firemen’s Relief Pension Fund Act. The Pension Commissioner and Mrs. Ryan are appellees. The order of the Commissioner, dated June 4, 1953, was as follows: “Mrs. David (Joy) Ryan is entitled to a widow’s pro rata part of pension, due to the death of her husband, David *909Ryan, on May 11, 1952, which we have found (from the evidence presented to this office) to be as a consequence •of the performance o-f his duties as a Fireman. This payment of pension to Mrs. Ryan to be retroactive to June 1, 1952.” The trial court found that the above ■order was “reasonably supported by substantial evidence on the record made in this Court” and rendered judgment sustaining the order and awarding Mrs. Ryan a monthly pension in accordance with the provisions of the Firemen’s Relief Pension Fund Act. David Ryan had been a member of the 'fire department of Texarkana for about •eleven years prior to his death on May 11, 1952. Prior to the fall of 1950 Mr. Ryan had been a strong, robust man of some 200 pounds weight who frequently hunted and fished. In October, 1950 Mr. Ryan was •overcome by smoke while fighting the “casket factory fire” and in November of that year he was hospitalized for virus pneumonia. Following this illness Mr. Ryan’s health declined, he lost weight, tired easily, suffered moderate hypertension and lessened his hunting and fishing .activities. On February 1, 1952, there was a large ■fire in Texarkana known as the “Mule ¡Barn fire.” Mr. Ryan helped fight this fire and while inside the burning barn was injured by a falling cross timber. The testimony of some of the eyewitnesses to this incident is summarized below: Frank L. Earhart, city fireman: Mr. Earhart was on the hose with Ryan inside the burning building when the timber fell. The timber fell from a point where the roof was the highest, about fifteen feet in height and when it fell it struck both him and Ryan, knocking them to the ground. The timber had to be removed from their bodies, and he, Earhart, was led out of the building by the hand, while two men, one on each side, had to assist Ryan from the building. •C. P. Birmingham, a fire captain at the time but present Chief of the Texarkana Fire Department: Chief Birmingham was present at the fire and saw Earhart and Ryan inside the burning building on the hose line fighting the fire. He saw the timber falling and hollered to them to “look out,” but they failed to hear him. The timber fell “like a tree,” knocking them both down. He helped to remove the timber and helped Earhart out of the building. Ryan was removed by two men holding him up, one from each side, and was thereafter carried to the hospital. The timber which struck Ryan was four or five inches in diameter, which he thought was square in shape. Arthur Jordan, city fireman: Mr. Jordan was present at the Mule Barn fire and saw Ryan inside the burning building fighting the fire. He saw the timber falling, it was a large timber some eight by ten inches in size. The timber fell from about ten to twelve feet in height, striking Ryan across the head and shoulders, knocking him down and he, Jordan, along with another man rushed into the building and helped to remove the timber from Ryan and helped to carry him out of the building. Ryan was staggering and addled, and when they got him out of the building they laid him down behind the fire truck, making a pillow for him with his bunking coat. Ryan was in pain, complaining of his head, and he examined the back of Ryan’s head, and discovered a knot about the size of a golf ball at the base of the hair line. Mr. Jordan had his wife call an ambulance, and upon arrival of the ambulance, he helped to place Ryan in the ambulance for removal to the hospital. ; ■ ■ •' Winfred Owen, a part owner of the Mule Barn: Mr. Owen was at the Mule Barn fire on February 1, 1952. He saw Ryan inside the barn on the hose line spraying water on the large beams used for roof support runners and as the roof burned these big timbers started falling and one of these large timbers fell on Ryan very hard and knocked him down; he ran in the building and assisted others in trying to pull Ryan from under the *910heavy timbers. The heavy timber which fell was one used to support the roof of the barn and fell from a height of thirty or forty feet, injuring Ryan “pretty bad.” After Ryan was carried out of the 'building an ambulance was' called and Ryan was placed in the ambulance for removal to the hospital. A barber testified that he observed a knot on the back of Mr. Ryan’s head when cutting his hair about two weeks after the Mule Barn fire and also noticed the knot in March and May of 1952. There is also evidence that subsequent to this fire Mr. Ryan suffered severe headaches, pains in the chest and nose bleed and was unable to work full time. Mr. Ryan was discharged from the hospital on the day after the Mule Bam fire. He was readmitted to the hospital on April 22, 1952 for four days and readmitted three days later and remained until his death on May 11. It is appellant’s contention, as reflected by its first two points, that there is no causal connection between the injuries received by Mr. Ryan while fighting the Mule Barn fire and his death, the principal basis for which is the testimony of Dr. Kenneth E. McIntyre. Dr. McIntyre who had previously treated Mr. Ryan for monoxide poisoning attended Mr. Ryan in his last illness and attributed his death to a cerebral hemorrhage as a “manifestation of his long-standing vascular disease and was unrelated to injury.” A death certificate was executed and filed by Dr. McIntyre which gave the cause of death as “cerebral hemorrhage — thrombosis femoral artery.” This artery is the chief artery of the thigh. Dr. McIntyre ruled out cerebral embolism saying: “I do not think Mr. Ryan’s death resulted from a cerebral embolism, because there were no sources for the development of such an embolism. Emboli arising in the legs would have been venous in origin and resulted in a pulmonary emboli rather than cerebral. It is, therefore, my opinion that cerebral hemorrhage was more likely the cause of the death of David Ryan, and in my opinion his death was not associated with cerebral embolism.” On the other hand Dr. Wm. E. Jones, an associate of Dr. McIntyre, treated Mr. Ryan for injuries sustained in the Mule Barn fire and who also attended him in his last illness, testified that, in his opinion, the cause of death was “cerebral embolism.” Dr. Jones gave these definitions: “A cerebral hemorrhage is active bleeding from a ruptured blood vessel in the substance of the brain. A cerebral thrombosis is the formation of a clot in the blood vessel of the brain. A cerebral embolism is a blood clot formed elsewhere and lodges in a blood vessel in the brain.” Dr. Jones testified that cerebral embolism could result from trauma on any part of the body and that the normal lapse of time between trauma and cerebral embolism was ten days to two weeks. There was no definite evidence here, Dr. Jones testified, of myocardial infarction prior to April 22, 1952, some 82 days after the injury at the Mule Barn. Dr. Jones further testified, however: “Q. Are there any exceptions to those enumerations you made about a trauma not causing an embolism of the brain, where a blow has been received in some other part of the body and as a consequence of that blow, some time later is it possible or probable an embolism in the brain would result? A. Yes, sir. “Q. Then if a man had had some venous or arterial trouble and had received a heavy blow from a heavy piece of timber falling on his head and shoulders and the exertion of carrying on his activities of fighting a fire, could that have contributed or precipitated the condition that directly *911caused his death on May 11, 1952 ⅞ A. Yes, sir.
“Q. Doctor, if trauma were received on February 1, 1952, and there broke loose tissue or a clot formed, could that clot float around in a man’s blood stream from February 1, 1952 to May 11, 1952? A. It could not float around freely. It could remain in the blood stream attached to the blood vessels or to the wall of the heart. “Q. Would that clot or that tissue —is it possible it could dissolve? A. It is possible it could, yes, sir — not dissolve, but be replaced by fibrous tissue. “Q. It is probable that clots or obstructions remain in the blood stream without dissolving and floating around for as long as three months and eleven days? A. They can remain, not floating around however. “Q. And is that the basis upon which you stated that the trauma could cause the cerebral embolism that resulted in the death of David Ryan? A. Is what the cause? “Q. The blood clot remaining in the blood system? A. Yes, sir.
“Q. Would heavy exertion in fighting a fire and receiving a blow on .the head and shoulders from heavy timber falling in fighting a fire on February 1 have brought on a myocardial infarction? A. The exertion plus the stress and strain on his general system from the trauma could have precipitated a myocardial infarction. “Q. In your opinion, is it probably what happened? Knowing the whole history of the man’s case, from observing him in November, 1950, through December and starting again in February, 1952, up to the time of his death on May 11, and knowing about this injury he received in the fire and the exertion he went through at the fire — is it or not your opinion that probably contributed to the condition that immediately caused his death? A. Yes, sir.
“Q. Is that your opinion from the history of this case and from your observation and your examination of the man, and the history of the entire case? A. From my observation and examination and review of other examinations, it is.
“Q. We are not asking you to testify about them but you did take them into consideration with your own examination, and it is then now your conclusion and opinion that David Ryan’s death on May 11, 1952, probably resulted from the contributing cause of the injuries received and the exertion at the fire February 1, 1952? A. Yes, sir.
“Q. I will ask you this question, Doctor — from your examination of Mr. Ryan after February 1, 1952, up to the time of his death, your knowledge of his physical condition which you found, would you say that it is probable that his death would not have resulted on May 11, 1952, had it not been for the blow he received on February 1,1952, and the exertion of fighting the fire, coupled with the condition which you found — is it probable that he would not have succumbed at that time? A. I think we could say that, yes, sir.” Doctors McIntyre and Jones were associated in the practice of their profession and this record contains no suggestion that either is other than an eminently qualified physician. The testimony of Dr. Jones supports the findings of the Commissioner, sustained by the trial court, and this Court would be wholly unjustified in *912saying that the opinion testimony of Dr. McIntyre is entitled to credence and belief but that the opinion testimony of Dr. Jones is not so entitled. Board of Firemen’s Relief & Retirement Fund Trustees v. Marks, 150 Tex. 433, 242 S.W.2d 181, 27 A.L.R.2d 965. It is our conclusion, from a consideration of the entire record, that the decision of the Commissioner finds reasonable support in substantial evidence. Appellant’s third point is that the court erred in refusing to permit it to impeach Dr. Jones by refusing to admit in evidence prior statements of Dr. Jones inconsistent with his opinion that Mr. Ryan died from cerebral embolism. Dr. Jones testified by deposition only. These were taken by and introduced in evidence by appellant without limitation or reservation. Appellant does not claim surprise. There was no error in refusing to permit impeachment of Dr. Jones in fhe manner proposed since the witness ■ was vouched for by appellant and the element of surprise is lacking. Clary v. Morgan Motor Co., Tex.Civ.App., Fort Worth, 246 S.W.2d 936; 45 Tex.Jur. Witnesses, Sec. 303 et seq. By appellant’s fourth point complaint is made of the "refusal of the trial court to admit in evidence a transcript containing' the evidence introduced at the hearing held by the local Board at Texarkana. If the rule in appeals from an order of the Railroad Commission is applicable then this transcript was not, per se, admissible. Railroad Commission v. Shell Oil Co., 139 Tex. 66, 80, 161 S.W.2d 1022, 1030. Section 18 of Article 6243e merely provides for an appeal to the proper court of Travis County and makes no specifications for the trial. It follows then, we believe, that the rule announced in the Shell Case for appeals from administrative orders generally is applicable in this proceeding. Appellant’s last point is that the court erred in ordering Mrs. Ryan’s pension to commence June 1, 1952. No complaint on this score was made in the trial court. The event which gave rise to Mrs. Ryan’s right to a pension was the death of her husband from causes growing out of or in consequence of the performance of his duties as a fireman. This event, in the absence of any contrary statutory-provision, necessarily fixes the date on which the pension should commence. We do not say that back pensions could not be-, waived nor that prejudice to other pensioners might not create an estoppel to claim back pensions but there is no> evidence of either waiver or estoppel in this record. Finding no error the judgment of the trial court is affirmed. Affirmed. | 10-01-2021 | [
"HUGHES, Justice. This suit is brought by the Board of Firemen’s Relief and Retirement Fund Trustees of Texarkana, Texas, to set aside an order of G. F. Williams, Firemen’s Pension Commissioner, awarding Mrs. Joy Ryan, surviving widow of David Ryan, a deceased fireman, a widow’s pension under the provisions of Art. 6243e, Vernon’s Ann.Civ.St., Firemen’s Relief Pension Fund Act. The Pension Commissioner and Mrs. Ryan are appellees. The order of the Commissioner, dated June 4, 1953, was as follows: “Mrs. David (Joy) Ryan is entitled to a widow’s pro rata part of pension, due to the death of her husband, David *909Ryan, on May 11, 1952, which we have found (from the evidence presented to this office) to be as a consequence •of the performance o-f his duties as a Fireman. This payment of pension to Mrs. Ryan to be retroactive to June 1, 1952.” The trial court found that the above ■order was “reasonably supported by substantial evidence on the record made in this Court” and rendered judgment sustaining the order and awarding Mrs. Ryan a monthly pension in accordance with the provisions of the Firemen’s Relief Pension Fund Act. David Ryan had been a member of the 'fire department of Texarkana for about •eleven years prior to his death on May 11, 1952. Prior to the fall of 1950 Mr. Ryan had been a strong, robust man of some 200 pounds weight who frequently hunted and fished. In October, 1950 Mr. Ryan was •overcome by smoke while fighting the “casket factory fire” and in November of that year he was hospitalized for virus pneumonia.",
"Following this illness Mr. Ryan’s health declined, he lost weight, tired easily, suffered moderate hypertension and lessened his hunting and fishing .activities. On February 1, 1952, there was a large ■fire in Texarkana known as the “Mule ¡Barn fire.” Mr. Ryan helped fight this fire and while inside the burning barn was injured by a falling cross timber. The testimony of some of the eyewitnesses to this incident is summarized below: Frank L. Earhart, city fireman: Mr. Earhart was on the hose with Ryan inside the burning building when the timber fell. The timber fell from a point where the roof was the highest, about fifteen feet in height and when it fell it struck both him and Ryan, knocking them to the ground. The timber had to be removed from their bodies, and he, Earhart, was led out of the building by the hand, while two men, one on each side, had to assist Ryan from the building. •C.",
"P. Birmingham, a fire captain at the time but present Chief of the Texarkana Fire Department: Chief Birmingham was present at the fire and saw Earhart and Ryan inside the burning building on the hose line fighting the fire. He saw the timber falling and hollered to them to “look out,” but they failed to hear him. The timber fell “like a tree,” knocking them both down. He helped to remove the timber and helped Earhart out of the building. Ryan was removed by two men holding him up, one from each side, and was thereafter carried to the hospital. The timber which struck Ryan was four or five inches in diameter, which he thought was square in shape.",
"Arthur Jordan, city fireman: Mr. Jordan was present at the Mule Barn fire and saw Ryan inside the burning building fighting the fire. He saw the timber falling, it was a large timber some eight by ten inches in size. The timber fell from about ten to twelve feet in height, striking Ryan across the head and shoulders, knocking him down and he, Jordan, along with another man rushed into the building and helped to remove the timber from Ryan and helped to carry him out of the building. Ryan was staggering and addled, and when they got him out of the building they laid him down behind the fire truck, making a pillow for him with his bunking coat. Ryan was in pain, complaining of his head, and he examined the back of Ryan’s head, and discovered a knot about the size of a golf ball at the base of the hair line.",
"Mr. Jordan had his wife call an ambulance, and upon arrival of the ambulance, he helped to place Ryan in the ambulance for removal to the hospital. ; ■ ■ •' Winfred Owen, a part owner of the Mule Barn: Mr. Owen was at the Mule Barn fire on February 1, 1952. He saw Ryan inside the barn on the hose line spraying water on the large beams used for roof support runners and as the roof burned these big timbers started falling and one of these large timbers fell on Ryan very hard and knocked him down; he ran in the building and assisted others in trying to pull Ryan from under the *910heavy timbers. The heavy timber which fell was one used to support the roof of the barn and fell from a height of thirty or forty feet, injuring Ryan “pretty bad.” After Ryan was carried out of the 'building an ambulance was' called and Ryan was placed in the ambulance for removal to the hospital.",
"A barber testified that he observed a knot on the back of Mr. Ryan’s head when cutting his hair about two weeks after the Mule Barn fire and also noticed the knot in March and May of 1952. There is also evidence that subsequent to this fire Mr. Ryan suffered severe headaches, pains in the chest and nose bleed and was unable to work full time. Mr. Ryan was discharged from the hospital on the day after the Mule Bam fire. He was readmitted to the hospital on April 22, 1952 for four days and readmitted three days later and remained until his death on May 11.",
"It is appellant’s contention, as reflected by its first two points, that there is no causal connection between the injuries received by Mr. Ryan while fighting the Mule Barn fire and his death, the principal basis for which is the testimony of Dr. Kenneth E. McIntyre. Dr. McIntyre who had previously treated Mr. Ryan for monoxide poisoning attended Mr. Ryan in his last illness and attributed his death to a cerebral hemorrhage as a “manifestation of his long-standing vascular disease and was unrelated to injury.” A death certificate was executed and filed by Dr. McIntyre which gave the cause of death as “cerebral hemorrhage — thrombosis femoral artery.” This artery is the chief artery of the thigh.",
"Dr. McIntyre ruled out cerebral embolism saying: “I do not think Mr. Ryan’s death resulted from a cerebral embolism, because there were no sources for the development of such an embolism. Emboli arising in the legs would have been venous in origin and resulted in a pulmonary emboli rather than cerebral. It is, therefore, my opinion that cerebral hemorrhage was more likely the cause of the death of David Ryan, and in my opinion his death was not associated with cerebral embolism.” On the other hand Dr. Wm. E. Jones, an associate of Dr. McIntyre, treated Mr. Ryan for injuries sustained in the Mule Barn fire and who also attended him in his last illness, testified that, in his opinion, the cause of death was “cerebral embolism.” Dr. Jones gave these definitions: “A cerebral hemorrhage is active bleeding from a ruptured blood vessel in the substance of the brain. A cerebral thrombosis is the formation of a clot in the blood vessel of the brain. A cerebral embolism is a blood clot formed elsewhere and lodges in a blood vessel in the brain.” Dr. Jones testified that cerebral embolism could result from trauma on any part of the body and that the normal lapse of time between trauma and cerebral embolism was ten days to two weeks.",
"There was no definite evidence here, Dr. Jones testified, of myocardial infarction prior to April 22, 1952, some 82 days after the injury at the Mule Barn. Dr. Jones further testified, however: “Q. Are there any exceptions to those enumerations you made about a trauma not causing an embolism of the brain, where a blow has been received in some other part of the body and as a consequence of that blow, some time later is it possible or probable an embolism in the brain would result? A. Yes, sir. “Q. Then if a man had had some venous or arterial trouble and had received a heavy blow from a heavy piece of timber falling on his head and shoulders and the exertion of carrying on his activities of fighting a fire, could that have contributed or precipitated the condition that directly *911caused his death on May 11, 1952 ⅞ A. Yes, sir.",
"“Q. Doctor, if trauma were received on February 1, 1952, and there broke loose tissue or a clot formed, could that clot float around in a man’s blood stream from February 1, 1952 to May 11, 1952? A. It could not float around freely. It could remain in the blood stream attached to the blood vessels or to the wall of the heart. “Q. Would that clot or that tissue —is it possible it could dissolve? A. It is possible it could, yes, sir — not dissolve, but be replaced by fibrous tissue. “Q.",
"It is probable that clots or obstructions remain in the blood stream without dissolving and floating around for as long as three months and eleven days? A. They can remain, not floating around however. “Q. And is that the basis upon which you stated that the trauma could cause the cerebral embolism that resulted in the death of David Ryan? A. Is what the cause? “Q. The blood clot remaining in the blood system? A. Yes, sir. “Q. Would heavy exertion in fighting a fire and receiving a blow on .the head and shoulders from heavy timber falling in fighting a fire on February 1 have brought on a myocardial infarction?",
"A. The exertion plus the stress and strain on his general system from the trauma could have precipitated a myocardial infarction. “Q. In your opinion, is it probably what happened? Knowing the whole history of the man’s case, from observing him in November, 1950, through December and starting again in February, 1952, up to the time of his death on May 11, and knowing about this injury he received in the fire and the exertion he went through at the fire — is it or not your opinion that probably contributed to the condition that immediately caused his death?",
"A. Yes, sir. “Q. Is that your opinion from the history of this case and from your observation and your examination of the man, and the history of the entire case? A. From my observation and examination and review of other examinations, it is. “Q. We are not asking you to testify about them but you did take them into consideration with your own examination, and it is then now your conclusion and opinion that David Ryan’s death on May 11, 1952, probably resulted from the contributing cause of the injuries received and the exertion at the fire February 1, 1952? A. Yes, sir. “Q. I will ask you this question, Doctor — from your examination of Mr. Ryan after February 1, 1952, up to the time of his death, your knowledge of his physical condition which you found, would you say that it is probable that his death would not have resulted on May 11, 1952, had it not been for the blow he received on February 1,1952, and the exertion of fighting the fire, coupled with the condition which you found — is it probable that he would not have succumbed at that time?",
"A. I think we could say that, yes, sir.” Doctors McIntyre and Jones were associated in the practice of their profession and this record contains no suggestion that either is other than an eminently qualified physician. The testimony of Dr. Jones supports the findings of the Commissioner, sustained by the trial court, and this Court would be wholly unjustified in *912saying that the opinion testimony of Dr. McIntyre is entitled to credence and belief but that the opinion testimony of Dr. Jones is not so entitled. Board of Firemen’s Relief & Retirement Fund Trustees v. Marks, 150 Tex. 433, 242 S.W.2d 181, 27 A.L.R.2d 965. It is our conclusion, from a consideration of the entire record, that the decision of the Commissioner finds reasonable support in substantial evidence. Appellant’s third point is that the court erred in refusing to permit it to impeach Dr. Jones by refusing to admit in evidence prior statements of Dr. Jones inconsistent with his opinion that Mr. Ryan died from cerebral embolism. Dr. Jones testified by deposition only.",
"These were taken by and introduced in evidence by appellant without limitation or reservation. Appellant does not claim surprise. There was no error in refusing to permit impeachment of Dr. Jones in fhe manner proposed since the witness ■ was vouched for by appellant and the element of surprise is lacking. Clary v. Morgan Motor Co., Tex.Civ.App., Fort Worth, 246 S.W.2d 936; 45 Tex.Jur. Witnesses, Sec. 303 et seq. By appellant’s fourth point complaint is made of the \"refusal of the trial court to admit in evidence a transcript containing' the evidence introduced at the hearing held by the local Board at Texarkana. If the rule in appeals from an order of the Railroad Commission is applicable then this transcript was not, per se, admissible. Railroad Commission v. Shell Oil Co., 139 Tex. 66, 80, 161 S.W.2d 1022, 1030. Section 18 of Article 6243e merely provides for an appeal to the proper court of Travis County and makes no specifications for the trial. It follows then, we believe, that the rule announced in the Shell Case for appeals from administrative orders generally is applicable in this proceeding. Appellant’s last point is that the court erred in ordering Mrs. Ryan’s pension to commence June 1, 1952.",
"No complaint on this score was made in the trial court. The event which gave rise to Mrs. Ryan’s right to a pension was the death of her husband from causes growing out of or in consequence of the performance of his duties as a fireman. This event, in the absence of any contrary statutory-provision, necessarily fixes the date on which the pension should commence. We do not say that back pensions could not be-, waived nor that prejudice to other pensioners might not create an estoppel to claim back pensions but there is no> evidence of either waiver or estoppel in this record. Finding no error the judgment of the trial court is affirmed. Affirmed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5018563/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Harris, Justice. By the last clause of the 133d section of the code it is provided that no pleading, verified as in that section required, shall be used in a criminal prosecution against the party as proof of a fact admitted or alleged in such pleading. It is supposed by the counsel for the Plaintiff that this clause qualifies the next preceding clause in the section which provides that the verification of a pleading may be omitted when the party would be privileged from testifying as a witness to the same matter; and it is urged that inasmuch as no pleading can be used against a party in a criminal proceeding, no party should be allowed to omit the usual verification of his pleading on the ground that it would tend to criminate Mm. The reasoning is certainly plausible, and I am by no means sure that such was not the intention of the commissioners. But will the language they have employed bear such a construction? The verification maybe omitted, not when the pleading might be used in a criminal prosecution against the party as proof of a fact admitted or *315alleged in the pleading, but when the party, in case he had been called on to testify as a witness, would have been privileged from testifying to the matter embraced in the pleading. The criterion, therefore, by which to determine whether a party may omit to verify his pleading is, to inquire, not whether the pleading may be used against him in a criminal prosecution, bnt whether, if called as a witness to testify to the same matter contained in the pleading, he would be excused from answering. I understand the rule on this subject to be, that a witness is privileged from answering whenever the court can see that his answer may, in any way, tend to criminate him. To determine whether the verification of a pleading may properly be omitted, the material question is, whether the court can see that the matter contained in the pleading is such as might aid in forming a chain of testimony to convict the party of a criminal offence, if properly receivable in evidence. Testing the answer of the Defendants by this rule, was the verification properly omitted ? The answer states, in substance, that the Defendants do not know that the Plaintiff was constable, or that he was engaged in the execution of a warrant for a criminal offence against the Defendants Fitzpatrick and Dalton. The Defendants herein, Connelly and Dalton, also deny any assault or unlawful resistance of the Plaintiff in the discharge of his duty. The Defendant Fitzpatrick says that the Plaintiff made an assault upon him, and that he used no more violence than was necessary to defend himself. The Defendant Fletcher says that whatever he did was done with a view solely of keeping the peace, and preventing the Plaintiff and Fitzpatrick from injuring each other, and that he used no more force or violence than was necessary to separate them. Mow, although it may be, that the matter of the answer would not, if received in evidence, tend to the conviction of any of the Defendants of an assault and battery, yet I cannot say that the facts stated in the answer are not snch as that they might aid in convicting some of the Defendants of an unlawful resistance of a public officer in the discharge of his duty. If so, we have seen that the answer need not be verified. It is enough to excuse the verification if any of the parties would be privileged from testifying to the matter of the pleading, though oilier parties might not be so privileged. FTor is it necessary that all the statements in the pleading should be such as would excuse the party from testifying as a witness. If any part of the pleading is of such a character, I apprehend it need not be verified. There is nothing in the section of the code referred to which can be construed to require one Defendant to verify an answer, while another is excused from such verification, or which would authorise the court in requiring *316that a part of the matters stated in a pleading should be verified, while another part is allowed to stand without verification. It is enough to bring a case within the exception provided in the statute, that any part of the matter of the pleading is such as would entitle any party offering such pleading to excuse himself from testifying to such matter as a witness. If this construction be given to the section of the code requiring pleadings to be verified, it follows that the Defendants are within the exception contained in that section, and were not bound to verify their answer. The Plaintiff’s motion must, therefore, be denied, but he is at liberty to reply to the Defendants’ answer -within twenty days after the entering of the rule upon this motion. | 01-09-2022 | [
"Harris, Justice. By the last clause of the 133d section of the code it is provided that no pleading, verified as in that section required, shall be used in a criminal prosecution against the party as proof of a fact admitted or alleged in such pleading. It is supposed by the counsel for the Plaintiff that this clause qualifies the next preceding clause in the section which provides that the verification of a pleading may be omitted when the party would be privileged from testifying as a witness to the same matter; and it is urged that inasmuch as no pleading can be used against a party in a criminal proceeding, no party should be allowed to omit the usual verification of his pleading on the ground that it would tend to criminate Mm. The reasoning is certainly plausible, and I am by no means sure that such was not the intention of the commissioners. But will the language they have employed bear such a construction?",
"The verification maybe omitted, not when the pleading might be used in a criminal prosecution against the party as proof of a fact admitted or *315alleged in the pleading, but when the party, in case he had been called on to testify as a witness, would have been privileged from testifying to the matter embraced in the pleading. The criterion, therefore, by which to determine whether a party may omit to verify his pleading is, to inquire, not whether the pleading may be used against him in a criminal prosecution, bnt whether, if called as a witness to testify to the same matter contained in the pleading, he would be excused from answering.",
"I understand the rule on this subject to be, that a witness is privileged from answering whenever the court can see that his answer may, in any way, tend to criminate him. To determine whether the verification of a pleading may properly be omitted, the material question is, whether the court can see that the matter contained in the pleading is such as might aid in forming a chain of testimony to convict the party of a criminal offence, if properly receivable in evidence. Testing the answer of the Defendants by this rule, was the verification properly omitted ? The answer states, in substance, that the Defendants do not know that the Plaintiff was constable, or that he was engaged in the execution of a warrant for a criminal offence against the Defendants Fitzpatrick and Dalton.",
"The Defendants herein, Connelly and Dalton, also deny any assault or unlawful resistance of the Plaintiff in the discharge of his duty. The Defendant Fitzpatrick says that the Plaintiff made an assault upon him, and that he used no more violence than was necessary to defend himself. The Defendant Fletcher says that whatever he did was done with a view solely of keeping the peace, and preventing the Plaintiff and Fitzpatrick from injuring each other, and that he used no more force or violence than was necessary to separate them.",
"Mow, although it may be, that the matter of the answer would not, if received in evidence, tend to the conviction of any of the Defendants of an assault and battery, yet I cannot say that the facts stated in the answer are not snch as that they might aid in convicting some of the Defendants of an unlawful resistance of a public officer in the discharge of his duty. If so, we have seen that the answer need not be verified. It is enough to excuse the verification if any of the parties would be privileged from testifying to the matter of the pleading, though oilier parties might not be so privileged. FTor is it necessary that all the statements in the pleading should be such as would excuse the party from testifying as a witness.",
"If any part of the pleading is of such a character, I apprehend it need not be verified. There is nothing in the section of the code referred to which can be construed to require one Defendant to verify an answer, while another is excused from such verification, or which would authorise the court in requiring *316that a part of the matters stated in a pleading should be verified, while another part is allowed to stand without verification. It is enough to bring a case within the exception provided in the statute, that any part of the matter of the pleading is such as would entitle any party offering such pleading to excuse himself from testifying to such matter as a witness.",
"If this construction be given to the section of the code requiring pleadings to be verified, it follows that the Defendants are within the exception contained in that section, and were not bound to verify their answer. The Plaintiff’s motion must, therefore, be denied, but he is at liberty to reply to the Defendants’ answer -within twenty days after the entering of the rule upon this motion."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5467378/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
But the Court (nem. con.) overruled the objection, considering the good behavior as a condition precedent. Verdict for the petitioner. | 10-17-2022 | [
"But the Court (nem. con.) overruled the objection, considering the good behavior as a condition precedent. Verdict for the petitioner."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8316091/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. | 09-09-2022 | [
"Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8162247/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Notice of Pre-AIA or AIA Status 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 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 2. 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 6-8 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 6 ends with a colon “:” not a period “.”.
Claim Rejections - 35 USC § 103 3. The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
s 1, 3, 4, 6-9, 12-14, 16-20, 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Halonen et al. US 20060018715 in view of Clarke, Jr. et al. US 4,789,266. Halonen et al. disclose an apparatus (10) for screeding uncured concrete, the apparatus comprising: A frame assembly (12) having an integral screed head (14). At least three driven wheels (24, 26), at least one said wheel being “steerable”, via an operator’s handle bar (28). A leveling assembly (238) having at least one vertically adjustable leveling leg capable of extension and retraction. [0042-0044]. A controller (242) having a processor, a plurality of inputs such as operator controls, sensor data etc. and a plurality of outputs, such as control signals for frame adjustments, screed head orientation, machine speed and direction. [0006, 0046-0048, 0079-81]. Although Halonen et al. do not explicitly recite the “controller or control system or other control means” includes a memory device, Halonen et al. clearly states “A further aspect of the machine’s control system includes an “auto rake” or “auto raise” controller or control system or other control means that is operable to automatically raise the plow head assembly”. [0078]. It would have been obvious before the effective filing date of the claimed invention, Halonen et al. teaches or reasonably suggests a control system having a memory device and/or capability. Halonen et al. do not disclose all wheels being steerable and height adjustable. However, Clarke, Jr. et al. teach a self-propelled, concrete paving machine configurable to pave roadways, curbs, gutters, sidewalks and other continuous concrete surfaces. The concrete paving machine comprising:
At least three height adjustable legs (12a, 13a, 14a) supported by a respective track or wheel (12, 13, 14). Wherein the height adjustable legs are connected to a respective frame portion (11c, 15a, 15) and configurable to independently raise or lower said respective frame portion. Col. 4, ln. 10-Col. 6, ln. 2. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the concrete paving machine of Halonen et al. with the height adjustable and steerable legs taught by Clarke, Jr. et al. in order to improve mobility and paving over irregular surfaces.
With respect to claims 3, 4 Halonen et al. disclose the use of laser leveling eyes (20) [0016]. While both Halonen et al. see [0043-45, 74-76] and Clarke, Jr. et al. (Col. 4, ln. 60-Col. 5, ln. 55. teach the use of hydraulic cylinders for raising the lowering the frame relative to the wheels.
With respect to claims 6-9 Halonen et al. disclose three driven wheels secured to the frame assembly wherein an opposed pair of wheels are positioned near opposed ends of said frame assembly and wherein a third wheel is positioned proximate a rear of said frame assembly. A steering handle (28) connected to one of said wheels (26) and configured for steering the machine during pavement and transport. Wherein adjustment of the frame and/or screed head is responsive to said laser leveling system (20). The screed head including a plow (18a) and a finishing blade (18b). [0040-44].
With respect to claims 12-14, 17-20, 22 Halonen et al. disclose an internal combustion engine, electric motors, or hydraulic actuators, as well as an electrical system including a rechargeable battery and charging system. [0043-0045]. 5. Claim 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Halonen et al. US 20060018715 in view of Clarke, Jr. et al. US 4,789,266 as applied to claim 1 above, and further in view of Quenzi et al. US 7,121,762. Halonen et al. in view of Clarke, Jr. et al. disclose a slipform paver having height adjustable leveling legs but do not disclose the use of electrically power actuators. However, Quenzi et al. teaches a screeding machine having a plurality of actuators (18). Said actuators can be electrically or hydraulically powered. Col. 4, lns. 42-47; Col. 10, ln. 62-Col. 11, ln. 17. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the screeding apparatus of Halonen et al. in view of Clarke, Jr. et al. with electric actuators, as taught by Quenzi et al., since hydraulic and electric actuators are art recognized equivalents. 6. Claim 5, 10, 11, 15, 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Halonen et al. US 20060018715 in view of Clarke, Jr. et al. US 4,789,266as applied to claim 1 above, and further in view of Jackson US 2005/0207843. Halonen et al. in view of Swisher, Jr. et al. disclose a slipform paver having height adjustable leveling legs but do not disclose what the machine is made of. However, Jackson teaches a lightweight self-leveling automatic screed apparatus made of
aluminum or composite materials. Wherein leveling actuators (21, 24, 27) are powered by rechargeable batteries (76), a power cord or by a hybrid system. See Figs. 1, 2; [0060-61, 65, 0079]. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the screeding apparatus of Halonen et al. in view of Clarke, Jr. et al. to be electrically powered and made from aluminum or carbon fiber, as taught by Jackson, in order to reduce weight and make the device more maneuverable.
7. Claims 15 19, 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Halonen et al. US 20060018715 in view of Clarke, Jr. et al. US 4,789,266 as applied to claims 1, 17 above, and further in view of Braun US 2010/0296868. Halonen et al. in view of Clarke, Jr. et al. disclose a screeding apparatus having an IC engine, laser receivers and electrically actuated hydraulic leveling cylinders. But do not disclose the use of battery or hybrid power generation systems. However, Braun teaches hybrid drive systems for construction machines are known, which include an IC engine, an electric generator/electric motor and at least one battery. See [0008]. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the screeding machine of Halonen et al. in view of Clarke, Jr. et al. with an electric or hybrid/electric power generation system as taught by Braun, in order to save fuel and reduce noise during screeding operations.
Response to Amendment 8. Applicant’s amendment, filed 12/23/20021, with respect to the rejection(s) of claim(s) 1, 3-22 under 35 USC 103 have been fully considered and the final rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Halonen et al. in view of Clarke et al.
Response to Arguments 9. Applicant’s arguments with respect to claim(s) 1, 3-22 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 10. Any inquiry concerning this communication or earlier communications from the examiner should be directed to RAYMOND W ADDIE whose telephone number is (571)272-6986. The examiner can normally be reached on m-f 7:30-12:30, then 6-9pm. 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, Tom Will can be reached on 571-272-6998. 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.
/RAYMOND W ADDIE/Primary Examiner, Art Unit 3671 1/11/2022 | 2022-01-15T10:28:28 | [
"Notice of Pre-AIA or AIA Status 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 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 2. 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 6-8 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 6 ends with a colon “:” not a period “.”. Claim Rejections - 35 USC § 103 3. The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action. s 1, 3, 4, 6-9, 12-14, 16-20, 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Halonen et al. US 20060018715 in view of Clarke, Jr. et al.",
"US 4,789,266. Halonen et al. disclose an apparatus (10) for screeding uncured concrete, the apparatus comprising: A frame assembly (12) having an integral screed head (14). At least three driven wheels (24, 26), at least one said wheel being “steerable”, via an operator’s handle bar (28). A leveling assembly (238) having at least one vertically adjustable leveling leg capable of extension and retraction. [0042-0044]. A controller (242) having a processor, a plurality of inputs such as operator controls, sensor data etc. and a plurality of outputs, such as control signals for frame adjustments, screed head orientation, machine speed and direction. [0006, 0046-0048, 0079-81].",
"Although Halonen et al. do not explicitly recite the “controller or control system or other control means” includes a memory device, Halonen et al. clearly states “A further aspect of the machine’s control system includes an “auto rake” or “auto raise” controller or control system or other control means that is operable to automatically raise the plow head assembly”. [0078]. It would have been obvious before the effective filing date of the claimed invention, Halonen et al. teaches or reasonably suggests a control system having a memory device and/or capability. Halonen et al.",
"do not disclose all wheels being steerable and height adjustable. However, Clarke, Jr. et al. teach a self-propelled, concrete paving machine configurable to pave roadways, curbs, gutters, sidewalks and other continuous concrete surfaces. The concrete paving machine comprising: At least three height adjustable legs (12a, 13a, 14a) supported by a respective track or wheel (12, 13, 14). Wherein the height adjustable legs are connected to a respective frame portion (11c, 15a, 15) and configurable to independently raise or lower said respective frame portion. Col. 4, ln. 10-Col. 6, ln. 2. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the concrete paving machine of Halonen et al. with the height adjustable and steerable legs taught by Clarke, Jr. et al.",
"in order to improve mobility and paving over irregular surfaces. With respect to claims 3, 4 Halonen et al. disclose the use of laser leveling eyes (20) [0016]. While both Halonen et al. see [0043-45, 74-76] and Clarke, Jr. et al. (Col. 4, ln. 60-Col. 5, ln. 55. teach the use of hydraulic cylinders for raising the lowering the frame relative to the wheels. With respect to claims 6-9 Halonen et al.",
"disclose three driven wheels secured to the frame assembly wherein an opposed pair of wheels are positioned near opposed ends of said frame assembly and wherein a third wheel is positioned proximate a rear of said frame assembly. A steering handle (28) connected to one of said wheels (26) and configured for steering the machine during pavement and transport. Wherein adjustment of the frame and/or screed head is responsive to said laser leveling system (20). The screed head including a plow (18a) and a finishing blade (18b). [0040-44]. With respect to claims 12-14, 17-20, 22 Halonen et al. disclose an internal combustion engine, electric motors, or hydraulic actuators, as well as an electrical system including a rechargeable battery and charging system. [0043-0045]. 5. Claim 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Halonen et al. US 20060018715 in view of Clarke, Jr. et al. US 4,789,266 as applied to claim 1 above, and further in view of Quenzi et al.",
"US 7,121,762. Halonen et al. in view of Clarke, Jr. et al. disclose a slipform paver having height adjustable leveling legs but do not disclose the use of electrically power actuators. However, Quenzi et al. teaches a screeding machine having a plurality of actuators (18). Said actuators can be electrically or hydraulically powered. Col. 4, lns. 42-47; Col. 10, ln. 62-Col. 11, ln. 17. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the screeding apparatus of Halonen et al. in view of Clarke, Jr. et al. with electric actuators, as taught by Quenzi et al., since hydraulic and electric actuators are art recognized equivalents.",
"6. Claim 5, 10, 11, 15, 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Halonen et al. US 20060018715 in view of Clarke, Jr. et al. US 4,789,266as applied to claim 1 above, and further in view of Jackson US 2005/0207843. Halonen et al. in view of Swisher, Jr. et al. disclose a slipform paver having height adjustable leveling legs but do not disclose what the machine is made of. However, Jackson teaches a lightweight self-leveling automatic screed apparatus made of aluminum or composite materials. Wherein leveling actuators (21, 24, 27) are powered by rechargeable batteries (76), a power cord or by a hybrid system. See Figs. 1, 2; [0060-61, 65, 0079]. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the screeding apparatus of Halonen et al. in view of Clarke, Jr. et al. to be electrically powered and made from aluminum or carbon fiber, as taught by Jackson, in order to reduce weight and make the device more maneuverable.",
"7. Claims 15 19, 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Halonen et al. US 20060018715 in view of Clarke, Jr. et al. US 4,789,266 as applied to claims 1, 17 above, and further in view of Braun US 2010/0296868. Halonen et al. in view of Clarke, Jr. et al. disclose a screeding apparatus having an IC engine, laser receivers and electrically actuated hydraulic leveling cylinders. But do not disclose the use of battery or hybrid power generation systems. However, Braun teaches hybrid drive systems for construction machines are known, which include an IC engine, an electric generator/electric motor and at least one battery. See [0008]. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the screeding machine of Halonen et al.",
"in view of Clarke, Jr. et al. with an electric or hybrid/electric power generation system as taught by Braun, in order to save fuel and reduce noise during screeding operations. Response to Amendment 8. Applicant’s amendment, filed 12/23/20021, with respect to the rejection(s) of claim(s) 1, 3-22 under 35 USC 103 have been fully considered and the final rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Halonen et al. in view of Clarke et al. Response to Arguments 9. Applicant’s arguments with respect to claim(s) 1, 3-22 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 10. Any inquiry concerning this communication or earlier communications from the examiner should be directed to RAYMOND W ADDIE whose telephone number is (571)272-6986. The examiner can normally be reached on m-f 7:30-12:30, then 6-9pm. 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, Tom Will can be reached on 571-272-6998. 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. /RAYMOND W ADDIE/Primary Examiner, Art Unit 3671 1/11/2022"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-01-16.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
645 F.Supp. 37 (1986) GOODYEAR TIRE & RUBBER CO., Plaintiff, v. FUJI PHOTO FILM CO., LTD., et al., Defendants. No. 86-6145-Civ. United States District Court, S.D. Florida. July 11, 1986. Alan Whitaker, Gunther & Whitaker, P.A., Fort Lauderdale, Fla., Sheldon W. Witcoff, Mark T. Banner, Charles C. Kinne, Allegretti, Newitt, Witcoff & McAndrews, Ltd., Chicago, Ill., for plaintiff. *38 Robert L. Edwards, Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern, Miami, Fla., Max F. Schutzman, Whitman & Ransom, New York City, for defendants.
ORDER DENYING MOTION TO REMAND PAINE, District Judge. This cause is before the Court upon plaintiff's motion for remand. Federal subject matter jurisdiction is predicated on diversity of citizenship, which is not contested. The plaintiff contends that this suit for trademark infringement and unfair trade practices under Florida law should be remanded on the ground that the defendants did not file their petition for removal within thirty (30) days as required by 28 U.S.C. § 1446. Essentially, the plaintiff's argument rests on the assumption that the defendants had received a copy of the complaint through some medium other than legal process and that the thirty-day period for removal began to run on whatever date the defendants did receive a copy of the complaint, and not on the date they were legally served. In making this argument, the plaintiff relies on language in the statute which provides that a defendant must file its petition for removal within thirty (30) days of receipt of a copy of the complaint "through service or otherwise". 28 U.S.C. § 1446. Generally, in such cases, the burden is on the defendant seeking removal to demonstrate that the petition for removal was timely filed. See, Blow v. Liberty Travel, Inc., 550 F.Supp. 375 (E.D. Pa. 1982). In this regard, the defendants have filed an affidavit and other exhibits demonstrating that service upon FUJI PHOTO FILM U.S.A., INC. (the first-served defendant) was accomplished by serving the Secretary of State for the State of Florida on January 27, 1986. The petition for removal was filed thirty (30) days thereafter, on February 26, 1986. The defendants are contending, of course, that the thirty-day period for removal begins to run on the date they are legally served with a copy of the complaint. If we adopt the defendants' interpretation of § 1446, then the evidence submitted amply supports their contention that removal in the case at bar was timely. There is a split of authority among the district courts who have confronted this issue. In Love v. State Farm Mutual Automobile Insurance Co., 542 F.Supp. 65 (N.D. Ga.1982), the Court held that the thirty-day period for removal begins to run when legal service pursuant to the applicable state statute has been perfected. Accord, Skinner v. Old Southern Life Insurance Co., 572 F.Supp. 811 (W.D. La.1983). In both of those cases, the defendant had received a "courtesy copy" of the complaint from the plaintiff, but had not been legally served. In interpreting the "or otherwise" language in § 1446, the court in Love determined that Congress intended to expand the period for removal in cases where state law provided that a suit may be commenced by merely serving a defendant with a summons (as in New York), or where state law appoints a state officer as a nonresident's agent for service of process. Love, 542 F.Supp. at 68. In such cases, the thirty-day period for removal could expire before the defendant ever received a copy of the complaint. However, the "or otherwise" language in the statute "was not intended to diminish the right to removal, by permitting a plaintiff to circumvent the already existing requirement" of proper service of process. Id. Thus, according to Love, there are two prerequisites to the commencement of the removal period: (1) That the defendant actually receives a copy of the complaint "through service or otherwise"; and (2) that the defendant has been properly served under state law. The removal period commences on the date both requirements are satisfied. The plaintiff urges us to adopt the contrary proposition, as enunciated in Raymond's Inc. v. New Amsterdam Casualty Co., 159 F.Supp. 212 (D. Mass.1956). In that case, it was held that legal "service" is not a prerequisite for the commencement *39 of the removal period. The touchstone is the receipt of the complaint by the defendant. If the defendant, by the purest chance, found a copy of the complaint on the street, the removal period would begin to run on the date he picks it up. That is, of course, an extreme example. Nevertheless, it demonstrates the onerous burden on a defendant who must show that he did not receive a copy of the complaint prior to service of it upon him when challenged by a plaintiff seeking remand. The plaintiff lightly dismisses the cases cited by the defendants as "not controlling". While it is true that those cases are "not controlling" in the accepted sense, it is equally true that those cases cited by the plaintiff are "not controlling". At the very least, Love and Skinner represent the latest opinions of the district courts on the precise issue before us and we find them to be persuasive. Therefore, we hold that the thirty-day period for removal commences on the date the defendant has been served pursuant to state law[1] and has also received a copy of the complaint.[2] From the facts before us, we find that defendant FUJI-USA received a copy of the complaint prior to January 27, 1986; however, this defendant was not legally served under Florida Law until January 27, 1986. The petition for removal was filed thirty days later and was therefore timely. Based on the foregoing, it is ORDERED and ADJUDGED that the motion for remand (D.E. 6) is Denied. NOTES [1] We do not imply here that defective service would toll the period for removal. That issue will be confronted when such a circumstance arises. [2] It is axiomatic that a defendant who receives a copy of the complaint prior to legal service upon him may file his petition for removal then. Lack of service of process is not a bar to removal. See, Love v. State Farm Mutual Automobile Insurance Co., 542 F.Supp. 65 (N.D. Ga.1982) and cases cited therein. | 10-30-2013 | [
"645 F.Supp. 37 (1986) GOODYEAR TIRE & RUBBER CO., Plaintiff, v. FUJI PHOTO FILM CO., LTD., et al., Defendants. No. 86-6145-Civ. United States District Court, S.D. Florida. July 11, 1986. Alan Whitaker, Gunther & Whitaker, P.A., Fort Lauderdale, Fla., Sheldon W. Witcoff, Mark T. Banner, Charles C. Kinne, Allegretti, Newitt, Witcoff & McAndrews, Ltd., Chicago, Ill., for plaintiff. *38 Robert L. Edwards, Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern, Miami, Fla., Max F. Schutzman, Whitman & Ransom, New York City, for defendants. ORDER DENYING MOTION TO REMAND PAINE, District Judge. This cause is before the Court upon plaintiff's motion for remand. Federal subject matter jurisdiction is predicated on diversity of citizenship, which is not contested. The plaintiff contends that this suit for trademark infringement and unfair trade practices under Florida law should be remanded on the ground that the defendants did not file their petition for removal within thirty (30) days as required by 28 U.S.C.",
"§ 1446. Essentially, the plaintiff's argument rests on the assumption that the defendants had received a copy of the complaint through some medium other than legal process and that the thirty-day period for removal began to run on whatever date the defendants did receive a copy of the complaint, and not on the date they were legally served. In making this argument, the plaintiff relies on language in the statute which provides that a defendant must file its petition for removal within thirty (30) days of receipt of a copy of the complaint \"through service or otherwise\". 28 U.S.C. § 1446.",
"Generally, in such cases, the burden is on the defendant seeking removal to demonstrate that the petition for removal was timely filed. See, Blow v. Liberty Travel, Inc., 550 F.Supp. 375 (E.D. Pa. 1982). In this regard, the defendants have filed an affidavit and other exhibits demonstrating that service upon FUJI PHOTO FILM U.S.A., INC. (the first-served defendant) was accomplished by serving the Secretary of State for the State of Florida on January 27, 1986. The petition for removal was filed thirty (30) days thereafter, on February 26, 1986. The defendants are contending, of course, that the thirty-day period for removal begins to run on the date they are legally served with a copy of the complaint. If we adopt the defendants' interpretation of § 1446, then the evidence submitted amply supports their contention that removal in the case at bar was timely. There is a split of authority among the district courts who have confronted this issue. In Love v. State Farm Mutual Automobile Insurance Co., 542 F.Supp. 65 (N.D. Ga.1982), the Court held that the thirty-day period for removal begins to run when legal service pursuant to the applicable state statute has been perfected. Accord, Skinner v. Old Southern Life Insurance Co., 572 F.Supp.",
"811 (W.D. La.1983). In both of those cases, the defendant had received a \"courtesy copy\" of the complaint from the plaintiff, but had not been legally served. In interpreting the \"or otherwise\" language in § 1446, the court in Love determined that Congress intended to expand the period for removal in cases where state law provided that a suit may be commenced by merely serving a defendant with a summons (as in New York), or where state law appoints a state officer as a nonresident's agent for service of process.",
"Love, 542 F.Supp. at 68. In such cases, the thirty-day period for removal could expire before the defendant ever received a copy of the complaint. However, the \"or otherwise\" language in the statute \"was not intended to diminish the right to removal, by permitting a plaintiff to circumvent the already existing requirement\" of proper service of process. Id. Thus, according to Love, there are two prerequisites to the commencement of the removal period: (1) That the defendant actually receives a copy of the complaint \"through service or otherwise\"; and (2) that the defendant has been properly served under state law. The removal period commences on the date both requirements are satisfied.",
"The plaintiff urges us to adopt the contrary proposition, as enunciated in Raymond's Inc. v. New Amsterdam Casualty Co., 159 F.Supp. 212 (D. Mass.1956). In that case, it was held that legal \"service\" is not a prerequisite for the commencement *39 of the removal period. The touchstone is the receipt of the complaint by the defendant. If the defendant, by the purest chance, found a copy of the complaint on the street, the removal period would begin to run on the date he picks it up. That is, of course, an extreme example. Nevertheless, it demonstrates the onerous burden on a defendant who must show that he did not receive a copy of the complaint prior to service of it upon him when challenged by a plaintiff seeking remand. The plaintiff lightly dismisses the cases cited by the defendants as \"not controlling\".",
"While it is true that those cases are \"not controlling\" in the accepted sense, it is equally true that those cases cited by the plaintiff are \"not controlling\". At the very least, Love and Skinner represent the latest opinions of the district courts on the precise issue before us and we find them to be persuasive. Therefore, we hold that the thirty-day period for removal commences on the date the defendant has been served pursuant to state law[1] and has also received a copy of the complaint. [2] From the facts before us, we find that defendant FUJI-USA received a copy of the complaint prior to January 27, 1986; however, this defendant was not legally served under Florida Law until January 27, 1986. The petition for removal was filed thirty days later and was therefore timely. Based on the foregoing, it is ORDERED and ADJUDGED that the motion for remand (D.E. 6) is Denied. NOTES [1] We do not imply here that defective service would toll the period for removal.",
"That issue will be confronted when such a circumstance arises. [2] It is axiomatic that a defendant who receives a copy of the complaint prior to legal service upon him may file his petition for removal then. Lack of service of process is not a bar to removal. See, Love v. State Farm Mutual Automobile Insurance Co., 542 F.Supp. 65 (N.D. Ga.1982) and cases cited therein."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1498901/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Name: Commission Regulation (EEC) No 2826/79 of 14 December 1979 laying down special detailed rules in respect of import and export licences in the wine sector Type: Regulation Subject Matter: character(0) Date Published: nan
15. 12. 79 Official Journal of the European Communities No L 320/43 COMMISSION REGULATION (EEC) No 2826/79 of 14 December 1979 laying down special detailed rules in respect of import and export licences in the wine sector Whereas the period of validity of import licences should conform to the practices and delivery periods customary in international trade ; Whereas the third subparagraph of Article 16 (2) of Regulation (EEC) No 337/79 provides that the issue of licences is conditional on the provision of a security, which shall be forfeited, in whole or in part, if the transaction is not effected or is only partially effected ; whereas the amount of the said security should be fixed ; Whereas the purpose of the export licence is more limited than that of the import licence ; whereas it is appropriate to take account of that difference in fixing the amount of the security ; THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Regulation (EEC) No 337/79 of 5 February 1979 on the common organiza tion of the market in wine ( ! ), as last amended by Regulation (EEC) No 2594/79 (2), and in particular Articles 16 (3) and 65 thereof, Whereas Commission Regulation (EEC) No 193/75 (3), as last amended by Regulation (EEC) No 1955/79 (4), laid down common detailed rules for the application of the system of import and export licences and advance-fixing certificates for agricultural products ; Whereas Commission Regulation (EEC) No 2047/75 (5) laid down special detailed rules for the application of the system of import licences in the wine sector ; Whereas, in order that a check may be kept on the volume of wine exports for which a refund is granted, a licence should be required for such exports and Regulation (EEC) No 2047/75 should be supple mented accordingly ; Whereas this opportunity should be taken to re-draft the latter Regulation ; Whereas Article 16 ( 1 ) of Regulation (EEC) No 337/79 provides that imports into the Community of any of the products listed in Article 1 of that Regulation are conditional on the production of an import licence ; Whereas it is necessary, in order that the system of import licences may operate correctly, that a certain minimum amount of information should be given in the licences ; whereas, for that reason , it is essential that the competent authority issuing the licences be informed by the party concerned, within specified time limits, of the country of origin or destination of the product ; Whereas, in order to take account of changes in the alcoholic strength occurring during prolonged trans port, particularly due to loading and unloading, it is necessary to permit a tolerance beyond the margin of error provided for in the analysis method used pursuant to Commission Regulation (EEC) No 2984/78 (6) ; Whereas Article 1 of Commission Regulation (EEC) No 607/77 (7) provides that the Member States shall periodically communicate to the Commission certain information concerning the import licences they issue in the wine sector ; whereas, with a view to consoli dating the provisions on the system of import and export licences in the wine sector within a single instrument, Article 1 of Regulation (EEC) No 607/77 should be incorporated in this Regulation and corres ponding provisions in respect of the information which the Member States must communicate to the Commission concerning the export licences they issue should be laid down ; Whereas the measures provided for in this Regulation are in accordance with the opinion of the Manage ment Committee for Wine,(') OJ No L 54, 5 . 3 . 1979, p. 1 .(2) OJ No L 297, 24. 11 . 1979, p. 4. (3) OJ No L 25, 31 . 1 . 1975, p. 10 . (4) OJ No L 226, 6 . 9 . 1979, p. 13 . 5) OJ No L 213, 11 . 8 . 1975, p. 27. (6) OJ No L 360, 22. 12. 1978 , p. 1 . ( 7) OJ No L 76, 24. 3 . 1977, p. 20 . No L 320/44 Official Journal of the European Communities 15. 12. 79 HAS ADOPTED THIS REGULATION : Tolleranza di 0,4 % vol , Tolerantie van 0,4 % vol . Article 1 1 . All imports into the Community of the products listed in Article 1 (2) (a) and (b) of Regulation (EEC) No 337/79 shall be subject to production of an import licence. 2. Section 14 of the application for an import licence and of the licence itself shall show the country of origin . Section 13 of the application for an export licence and of the licence itself shall show the country of destina tion . 3 . Section 7 of the application for an import licence and of the licence itself shall contain the following supplementary information : (a) the colour of the wine or must ; (b) in the case of Riesling or Sylvaner, the type of vine. 2. All exports from the Community of products in respect of which the exporter claims a refund shall be subject to production of an export licence. Article 2 1 . Where the subheading of the Common Customs Tariff specifies the alcoholic strength of a product, a tolerance of 0.4 % by volume shall be allowed in rela tion to that specification for the purposes of the licence. Article 3 Licences shall be valid from their day of issue, within the meaning of Article 9 ( 1 ) of Regulation (EEC) No 193/75, until the end of the third month following that of issue. For the purposes of the preceding subparagraph one of the following entries shall be made in Section 20 of import licences and Section 1 8 of export licences : Tolerance of 0.4 % vol ', Tolerance 0,4 % vol', Article 4 1 . The rate of the security in respect of import licences shall be as set out in the following table : Toleranz 0,4 % vol , Tolà ©rance de 0,4 % vol , CCT heading No Description Amount of security (per net weight or volume) 20.07 Fruit juices (including grape must) or vegetable juices, whether or not containing added sugar, but unfer mented, and not containing spirit : A Of a specific gravity exceeding 1.33 at 15 °C : I Grape juice (including grape must) 2.50 ECU/100 kg B Of a specific gravity not exceeding 1.33 at 15 °C : I Grape, apple and pear juice (including grape must) ; mixtures of apple and pear juice : a) 1 Of a value exceeding 22 ECU per 100 kg net weight : Grape juice (including grape must) : aa) bb) Concentrated Other 4 00 ECU/ 100 kg 2.50 ECU/ 100 kg b) 1 Of a value not exceeding 22 ECU per 100 kg net weight : Grape juice (including grape must) : aa) bb) Concentrated Other 4 00 ECU/ 100 kg 2.50 ECU/ 100 kg 22.04 Grape must, in fermentation or with fermentation arrested otherwise than by the addition of alcohol 2.50 ECU/hl 15. 12. 79 Official Journal of the European Communities No L 320/45 CCT heading No Description Amount of security (per net weight or volume) 22.05 Wine of fresh grapes ; grape must with fermentation arrested by the addition of alcohol (mistel enclosed) A Sparkling wine 7.50 ECU/hl B Wine in bottles with 'mushroom' stoppers held in place by ties or fastenings and wine otherwise put up with an excess pressure of not less than one atmos phere but less than three atmospheres, measured at a temperature of 20 °C 7.50 ECU/hl C Other : I Of an actual alcoholic strength not exceeding 13% vol 2.50 ECU/hl II Of an actual alcoholic strength exceeding 13 % vol but not exceeding 1 5 % vol 3.50 ECU/hl III Of an actual alcoholic strength exceeding 1 5 % vol but not exceeding 18 % vol 4 00 ECU/hl IV Of an actual alcoholic strength exceeding 18 % vol but not exceeding 22 % vol 4.50 ECU/hl V Of an actual alcoholic strength exceeding 22 % vol 5 00 ECU/hl Additional Note 4 (b) to Chapter 22 Wine fortified for distillation 3.50 ECU/hl Additional Note 4 (c) to Chapter 22 Liqueur wine 9.50 ECU/hl 2. The rate of the security in respect of export licences shall be 1 ECU per hectolitre . Article 5 By way of derogation from the third indent of Article 4(3) of Regulation (EEC) No 193/75, no licence shall be required for transactions relating to a quantity not exceeding one hectolitre or, as appropriate, 100 kilo grams. Article 6 Before the 1 5th day of each month the Member States shall communicate to the Commission, in accordance with the Annex hereto, the quantity of products in respect of which import licences were issued during the previous calendar month . However, if the quanti ties in respect of which applications for import licences have been made in a Member State appear to constitute a risk of disturbance for the market, that Member State shall immediately inform the Commis sion accordingly and communicate to the Commis sion the quantities concerned, broken down by type of product. Article 7 Before the 1 5th day of each month the Member States shall communicate to the Commission the quantities of products in respect of which export licences were issued during the previous calendar month, for each of the countries of destination concerned . Article 8 All references in Community instruments to Articles of Regulation (EEC) No 2047/75 and to Article 1 of Regulation (EEC) No 607/77 shall be construed as references to the corresponding Articles of this Regula tion . Article 9 Regulation (EEC) No 2047/75 and Article 1 of Regula tion (EEC) No 607/77, together with the Annex to the latter Regulation , are hereby repealed . Article 10 This Regulation shall enter into force on 1 January 1980 . No L 320/46 15 . 12. 79Official Journal of the European Communities This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 14 December 1979. For the Commission Finn GUNDELACH Vice-President 15. 12. 79 Official Journal of the European Communities No L 320/47 ANNEX MEMBER STATE : APPLICATION OF ARTICLE 6 OF REGULATION (EEC) No 2826/79 Quantities of products for which import licences have been issued From to Code Country of origin 0 ) (2) (3) (4) (5) (6) (7) (8) (?) ( 10) Total(hi) 036 038 040 042 046 048 050 052 056 064 066 068 204 208 212 390 400 512 528 600 624 800 Switzerland Austria Portugal Spain Malta Yugoslavia Greece Turkey USSR Hungary Romania Bulgaria Morocco Algeria Tunisia South Africa United States of America Chile Argentina Cyprus Israel Australia Other countries All non-member countries (hi) The figures in this table refer to the following products : Col. 1 : Sparkling wines . Col. 2 : Red and rose wines . Col. 3 : White wines other than those referred to under 4. Col. 4 : White wines presented for importation as 'Riesling' or 'Sylvaner'. Col. S : Dessert wines of designated origin : Port, Madeira, sherry , Tokay, Setubal muscatel . Col. 6 : Dessert wines other than those referred to under 5 . Col. 7 : Wines fortified for distillation. Col. 8 : Grape juices (including grape musts). Col. 9 : Concentrated grape juices (including concentrated grape musts). Col. 10 : Other products to be specified in a note . | nan | [
"Name: Commission Regulation (EEC) No 2826/79 of 14 December 1979 laying down special detailed rules in respect of import and export licences in the wine sector Type: Regulation Subject Matter: character(0) Date Published: nan 15. 12. 79 Official Journal of the European Communities No L 320/43 COMMISSION REGULATION (EEC) No 2826/79 of 14 December 1979 laying down special detailed rules in respect of import and export licences in the wine sector Whereas the period of validity of import licences should conform to the practices and delivery periods customary in international trade ; Whereas the third subparagraph of Article 16 (2) of Regulation (EEC) No 337/79 provides that the issue of licences is conditional on the provision of a security, which shall be forfeited, in whole or in part, if the transaction is not effected or is only partially effected ; whereas the amount of the said security should be fixed ; Whereas the purpose of the export licence is more limited than that of the import licence ; whereas it is appropriate to take account of that difference in fixing the amount of the security ; THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Regulation (EEC) No 337/79 of 5 February 1979 on the common organiza tion of the market in wine ( !",
"), as last amended by Regulation (EEC) No 2594/79 (2), and in particular Articles 16 (3) and 65 thereof, Whereas Commission Regulation (EEC) No 193/75 (3), as last amended by Regulation (EEC) No 1955/79 (4), laid down common detailed rules for the application of the system of import and export licences and advance-fixing certificates for agricultural products ; Whereas Commission Regulation (EEC) No 2047/75 (5) laid down special detailed rules for the application of the system of import licences in the wine sector ; Whereas, in order that a check may be kept on the volume of wine exports for which a refund is granted, a licence should be required for such exports and Regulation (EEC) No 2047/75 should be supple mented accordingly ; Whereas this opportunity should be taken to re-draft the latter Regulation ; Whereas Article 16 ( 1 ) of Regulation (EEC) No 337/79 provides that imports into the Community of any of the products listed in Article 1 of that Regulation are conditional on the production of an import licence ; Whereas it is necessary, in order that the system of import licences may operate correctly, that a certain minimum amount of information should be given in the licences ; whereas, for that reason , it is essential that the competent authority issuing the licences be informed by the party concerned, within specified time limits, of the country of origin or destination of the product ; Whereas, in order to take account of changes in the alcoholic strength occurring during prolonged trans port, particularly due to loading and unloading, it is necessary to permit a tolerance beyond the margin of error provided for in the analysis method used pursuant to Commission Regulation (EEC) No 2984/78 (6) ; Whereas Article 1 of Commission Regulation (EEC) No 607/77 (7) provides that the Member States shall periodically communicate to the Commission certain information concerning the import licences they issue in the wine sector ; whereas, with a view to consoli dating the provisions on the system of import and export licences in the wine sector within a single instrument, Article 1 of Regulation (EEC) No 607/77 should be incorporated in this Regulation and corres ponding provisions in respect of the information which the Member States must communicate to the Commission concerning the export licences they issue should be laid down ; Whereas the measures provided for in this Regulation are in accordance with the opinion of the Manage ment Committee for Wine,(') OJ No L 54, 5 .",
"3 . 1979, p. 1 . (2) OJ No L 297, 24. 11 . 1979, p. 4. (3) OJ No L 25, 31 . 1 . 1975, p. 10 . (4) OJ No L 226, 6 . 9 . 1979, p. 13 . 5) OJ No L 213, 11 . 8 . 1975, p. 27. (6) OJ No L 360, 22. 12. 1978 , p. 1 . ( 7) OJ No L 76, 24. 3 . 1977, p. 20 . No L 320/44 Official Journal of the European Communities 15. 12. 79 HAS ADOPTED THIS REGULATION : Tolleranza di 0,4 % vol , Tolerantie van 0,4 % vol . Article 1 1 . All imports into the Community of the products listed in Article 1 (2) (a) and (b) of Regulation (EEC) No 337/79 shall be subject to production of an import licence.",
"2. Section 14 of the application for an import licence and of the licence itself shall show the country of origin . Section 13 of the application for an export licence and of the licence itself shall show the country of destina tion . 3 . Section 7 of the application for an import licence and of the licence itself shall contain the following supplementary information : (a) the colour of the wine or must ; (b) in the case of Riesling or Sylvaner, the type of vine. 2. All exports from the Community of products in respect of which the exporter claims a refund shall be subject to production of an export licence. Article 2 1 . Where the subheading of the Common Customs Tariff specifies the alcoholic strength of a product, a tolerance of 0.4 % by volume shall be allowed in rela tion to that specification for the purposes of the licence. Article 3 Licences shall be valid from their day of issue, within the meaning of Article 9 ( 1 ) of Regulation (EEC) No 193/75, until the end of the third month following that of issue. For the purposes of the preceding subparagraph one of the following entries shall be made in Section 20 of import licences and Section 1 8 of export licences : Tolerance of 0.4 % vol ', Tolerance 0,4 % vol', Article 4 1 .",
"The rate of the security in respect of import licences shall be as set out in the following table : Toleranz 0,4 % vol , Tolà ©rance de 0,4 % vol , CCT heading No Description Amount of security (per net weight or volume) 20.07 Fruit juices (including grape must) or vegetable juices, whether or not containing added sugar, but unfer mented, and not containing spirit : A Of a specific gravity exceeding 1.33 at 15 °C : I Grape juice (including grape must) 2.50 ECU/100 kg B Of a specific gravity not exceeding 1.33 at 15 °C : I Grape, apple and pear juice (including grape must) ; mixtures of apple and pear juice : a) 1 Of a value exceeding 22 ECU per 100 kg net weight : Grape juice (including grape must) : aa) bb) Concentrated Other 4 00 ECU/ 100 kg 2.50 ECU/ 100 kg b) 1 Of a value not exceeding 22 ECU per 100 kg net weight : Grape juice (including grape must) : aa) bb) Concentrated Other 4 00 ECU/ 100 kg 2.50 ECU/ 100 kg 22.04 Grape must, in fermentation or with fermentation arrested otherwise than by the addition of alcohol 2.50 ECU/hl 15. 12.",
"79 Official Journal of the European Communities No L 320/45 CCT heading No Description Amount of security (per net weight or volume) 22.05 Wine of fresh grapes ; grape must with fermentation arrested by the addition of alcohol (mistel enclosed) A Sparkling wine 7.50 ECU/hl B Wine in bottles with 'mushroom' stoppers held in place by ties or fastenings and wine otherwise put up with an excess pressure of not less than one atmos phere but less than three atmospheres, measured at a temperature of 20 °C 7.50 ECU/hl C Other : I Of an actual alcoholic strength not exceeding 13% vol 2.50 ECU/hl II Of an actual alcoholic strength exceeding 13 % vol but not exceeding 1 5 % vol 3.50 ECU/hl III Of an actual alcoholic strength exceeding 1 5 % vol but not exceeding 18 % vol 4 00 ECU/hl IV Of an actual alcoholic strength exceeding 18 % vol but not exceeding 22 % vol 4.50 ECU/hl V Of an actual alcoholic strength exceeding 22 % vol 5 00 ECU/hl Additional Note 4 (b) to Chapter 22 Wine fortified for distillation 3.50 ECU/hl Additional Note 4 (c) to Chapter 22 Liqueur wine 9.50 ECU/hl 2. The rate of the security in respect of export licences shall be 1 ECU per hectolitre . Article 5 By way of derogation from the third indent of Article 4(3) of Regulation (EEC) No 193/75, no licence shall be required for transactions relating to a quantity not exceeding one hectolitre or, as appropriate, 100 kilo grams. Article 6 Before the 1 5th day of each month the Member States shall communicate to the Commission, in accordance with the Annex hereto, the quantity of products in respect of which import licences were issued during the previous calendar month .",
"However, if the quanti ties in respect of which applications for import licences have been made in a Member State appear to constitute a risk of disturbance for the market, that Member State shall immediately inform the Commis sion accordingly and communicate to the Commis sion the quantities concerned, broken down by type of product. Article 7 Before the 1 5th day of each month the Member States shall communicate to the Commission the quantities of products in respect of which export licences were issued during the previous calendar month, for each of the countries of destination concerned .",
"Article 8 All references in Community instruments to Articles of Regulation (EEC) No 2047/75 and to Article 1 of Regulation (EEC) No 607/77 shall be construed as references to the corresponding Articles of this Regula tion . Article 9 Regulation (EEC) No 2047/75 and Article 1 of Regula tion (EEC) No 607/77, together with the Annex to the latter Regulation , are hereby repealed . Article 10 This Regulation shall enter into force on 1 January 1980 . No L 320/46 15 . 12. 79Official Journal of the European Communities This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 14 December 1979.",
"For the Commission Finn GUNDELACH Vice-President 15. 12. 79 Official Journal of the European Communities No L 320/47 ANNEX MEMBER STATE : APPLICATION OF ARTICLE 6 OF REGULATION (EEC) No 2826/79 Quantities of products for which import licences have been issued From to Code Country of origin 0 ) (2) (3) (4) (5) (6) (7) (8) (?) ( 10) Total(hi) 036 038 040 042 046 048 050 052 056 064 066 068 204 208 212 390 400 512 528 600 624 800 Switzerland Austria Portugal Spain Malta Yugoslavia Greece Turkey USSR Hungary Romania Bulgaria Morocco Algeria Tunisia South Africa United States of America Chile Argentina Cyprus Israel Australia Other countries All non-member countries (hi) The figures in this table refer to the following products : Col. 1 : Sparkling wines . Col. 2 : Red and rose wines . Col. 3 : White wines other than those referred to under 4. Col. 4 : White wines presented for importation as 'Riesling' or 'Sylvaner'. Col. S : Dessert wines of designated origin : Port, Madeira, sherry , Tokay, Setubal muscatel . Col. 6 : Dessert wines other than those referred to under 5 .",
"Col. 7 : Wines fortified for distillation. Col. 8 : Grape juices (including grape musts). Col. 9 : Concentrated grape juices (including concentrated grape musts). Col. 10 : Other products to be specified in a note ."
]
| https://dataverse.harvard.edu/dataset.xhtml?persistentId=doi:10.7910/DVN/0EGYWY | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
In re: Oil Spill by the Oil Rig * MDL No. 2179; CA 10-2771 "Deepwater Horizon" in the Gulf * of Mexico, on April 20, 2010 * SECTION: J * Applies to: All Cases * JUDGE BARBIER * * MAGISTRATE SHUSHAN * * * * * * * * * * * *
PRE-TRIAL ORDER NO. 25
[Clarifying the Pleading Bundles, Responsive Pleadings, and the Master Complaints]
At the suggestion and stipulation of Plaintiffs, by and through Plaintiffs' Liaison Counsel
and the Plaintiffs Steering Committee, and of Defendants, by and through Defense Liaison
Counsel,1 in order to clarify Case Management Order No. 1 [PTO No. 11], and to facilitate the
efficient and effective management and prosecution of the coordinated actions herein:
IT IS ORDERED that the scope and effect of the "B1" BUNDLE MASTER COMPLAINT [Doc
879], the "B3" BUNDLE MASTER COMPLAINT [Doc 881], and the "D1" BUNDLE MASTER
COMPLAINT [Doc 880], (collectively referred to herein as "Master Complaints"), are hereby
clarified as follows:
1 The Court notes that Defendant Nalco objects to paragraph 4 of this Pre-Trial Order. 1 1. Pleading Bundle B3, as described in Section III(B) of CMO No. 1 [PTO 11], is
clarified as follows: “Clean-Up, Medical Monitoring, and Post-April 20 Personal Injury
Claims. This pleading bundle will include all claims, of any type, relating to post-explosion
clean-up efforts asserted against Defendants not named in the B1 Master Complaint, as well as
all claims for personal injury and/or medical monitoring for exposure or other injury occurring
after the explosion and fire of April 20, 2010. The Pleading Bundles described in the CMO and
further herein have been created for administrative purposes, and a plaintiff is accordingly
permitted to assert claims within both Pleading Bundle B1 and Pleading Bundle B3 without
being deemed to have “split” his or her cause of action.
2. For the purpose of clarifying the defendants’ obligations to provide responsive
pleadings under the CMO, the cases identified in EXHIBIT 1 shall be deemed to comprise all
cases currently pending in the MDL that fall within Pleading Bundle A as defined in PTO No.
11, and the cases identified in EXHIBIT 2 shall be deemed to comprise all cases currently pending
in the MDL that fall within Pleading Bundle C as defined in PTO No. 11.
3. Any case currently pending in the MDL that does not fall within Pleading Bundles A
or C is deemed to fall within one or more of the following: Pleading Bundle B1, Pleading
Bundle B3, and/or Pleading Bundle D1, as may be applicable.
4. Any individual plaintiff who is a named plaintiff in a case that falls within Pleading
Bundle B1, B3, D1, or D2, or any combination thereof, is deemed to be a plaintiff in the
applicable Master Complaint(s). Plaintiffs Liaison Counsel shall provide to Defense Liaison
2 Counsel a list of plaintiffs included in these bundles within a time period to be agreed to between
Liaison Counsel.
5. For the procedural and administrative purpose of answering or otherwise responding
to the complaints in Pleading Bundles B1, B3 and D1, (and subject to the provisions of
Paragraph 8), as to any Defendant named in one or more Master Complaint(s), the allegations,
claims, theories of recovery and/or prayers for relief contained within the pre-existing petition or
complaint are deemed to be amended, restated, and superseded by the allegations, claims,
theories of recovery, and/or prayers for relief in the respective Master Complaint(s) in which the
Defendant is named that apply to the pre-existing petition or complaint.
6. Subject to the provisions of Paragraph 8, any plaintiff-specific allegations or lack
thereof in an individual petition or complaint covered by a Master Complaint - such as
allegations concerning a plaintiff's domicile and/or residence, whether plaintiff filed an OPA
claim with BP and/or the Gulf Coast Claims Facility, the location and type of real or movable
property at issue, plaintiff's occupation or type of business and allegations of damages and/or
injuries, if any, as asserted by that plaintiff in his individual petition or complaint - may be cited
for illustrative purposes by any defendant in any motion to dismiss the relevant Master
Complaint.
7. As to those cases which are allocated to Pleading Bundle A or C, the 30 day deadline
for any defendant to file any responsive pleadings will not begin to run until the later of (a) the
date such complaint or petition is served upon a defendant or (b) the date classification of such
3 complaint into its appropriate pleading bundle(s) occurs. Nothing in this paragraph shall
preclude the parties from seeking the Court's approval to extend the 30 day deadline for a
defendant to file a responsive pleading to any case which is allocated to Pleading Bundle A or C.
8. All individual petitions or complaints that fall within Pleading Bundles B1, B3, D1, or
D2, whether pre-existing or filed hereafter, are stayed until further order of the Court.
9. Whether through counsel or pro se, any individual or entity who heretofore has not
filed a complaint, petition or claim in limitation arising out of the Deepwater Horizon oil spill
and who desires to bring a claim in Limitation [No. 10-2771] and/or assert a cause of action
subject to one or more of the Master Complaints, [Doc 879 and/or 881], may do so by filing
directly into Civil Action No. 10-8888 the form reflected in EXHIBIT 3 [“short form”] or other
form prepared and supplied by the Plaintiffs' Steering Committee and approved by the Court.
The filing of a short form in Civil Action No. 10-8888 shall be deemed to be a simultaneous
filing of an answer and claim in Civil Action No. 10-2771 and an intervention into one or more
of the Master Complaints [Doc 879 and/or 881] in Civil Action No. 10-md-2179. The filing of
short form joinders shall be fully subject to the provisions of PTO No. 20, addressing Direct
Filing.
10. Subject to the provisions of Paragraph 15 and the Direct Filing Order [PTO No. 20],
the filing of the Master Complaints shall not waive any contentions relating to venue,
jurisdiction, or choice of law, all of which are specifically preserved.
11. The filing of the Master Complaints shall not be deemed to waive or supersede
requests for the certification of one or more class actions (and/or sub-classes) under Rule 23,
4 (which proceedings are currently stayed pursuant to Paragraph VII of CMO No.1 [PTO No. 11]),
except to the extent that such proposed class definitions and/or allegations are covered in one or
more of the Master Complaints, which are hereby deemed to be the operative complaints with
respect to same.
12. Defendants who have been properly served with the applicable Master Complaint(s)
or have agreed to accept or waive such service of process shall have 30 days from the date of this
Order to file any responsive pleadings referenced in Paragraph IV(B) of CMO No. 1 [PTO No.
11]. Likewise, Defendants who have been properly served with any Bundle A individual
complaint listed on Exhibit 1 shall have 30 days from the date of this Order to file any responsive
pleadings referenced in Paragraph IV(B) of CMO No. 1 [PTO No. 11]. Defendants who have
not been properly served with the applicable Master Complaint(s) and who have not agreed to
accept or waive such service of process shall have 30 days from the date of proper service to file
any responsive pleadings referenced in Paragraph IVB of the CMO. Consistent with the CMO,
Memoranda in Opposition to any Rule 12(b)(1), 12(b)(6), or 12(c) motions shall be filed within
30 days of the filing of said motion. Any Reply Briefs shall be filed within 30 days of the filing
of any Memoranda in Opposition. The page limitation for responsive motions and oppositions to
responsive motions shall be set at 50 pages, and the page limitation for replies to oppositions
shall be set at 25 pages.
13. The proper service of any Master Complaint as to any Defendant named therein shall
constitute service on behalf of all plaintiffs who are deemed to be plaintiffs in the respective
Master Complaints as contemplated in Paragraph 4 of this Order.
5 14. Plaintiffs in a pre-existing petition or complaint are not required to file a short form
joinder but should they desire to adopt the short form joinder for the purposes of making a claim
in the Limitation proceeding [No. 10-2771], they may file with the Court and serve upon counsel
through LNFS a short form joinder consistent with the deadlines already established for the
submission of claims in Limitation.
15. In answering or otherwise responding to each Master Complaint, no defenses,
objections, motions or exceptions for lack of jurisdiction, lack of presentment, mootness, lack of
standing, or any other defense that may be specific or unique to any particular plaintiff shall be
waived, and all such defenses, objections, motions and/or exceptions specific to any particular
plaintiff shall be reserved. In addition, any and all rights under the Hague Convention shall not
be deemed to be waived by the entry of this Order, and are hereby preserved.
16. With respect to any new petition or complaint that is filed in or transferred to MDL
No. 2179, the old Plaintiff Fact Sheet [Doc 642-1] is hereby replaced with the Plaintiff Profile
Form attached as EXHIBIT 4. Consistent with the Order Regarding Plaintiff Profile Form [Doc
642], any plaintiff who does not file a short-form joinder [EXHIBIT 3] must serve via LNFS a
completed Plaintiff Profile Form as reflected in EXHIBIT 4 within sixty (60) days of transfer to,
removal to or filing in the Eastern District of Louisiana. However, a plaintiff who files a short-
form joinder does not have to also serve a PPF.
17. The phrase ‘substantially similar’ as used in Paragraph 9 of this Order shall mean all
of the data fields of the attached approved Short Form. That is, without further order of the
Court, the Short Form can be refined in terms of paper or form size, type size, fonts, graphics, etc
6 (so long as it contains all the data fields approved in the attached) to make it clearer, more user-
friendly, less expensive to mail or administer, etc.
18. Paragraph 18 of the "B3" Bundle Master Complaint [Doc 881] is amended to delete
the second sentence of the paragraph in its entirety, such that only the factual allegations of the
B1 Master Complaint are incorporated into and made a part of the B3 Master Complaint, but not
any causes of action. Likewise, Paragraph 55 of the "D1" BUNDLE MASTER COMPLAINT [Doc
880] is clarified to mean that only the factual allegations of the B1 Master Complaint are
incorporated into and made a part of the D1 Master Complaint, but not any causes of action.
19. No provision of this Stipulated Order shall be construed to permit the assertion of
any class actions or class claims as part of the Master Claim in Limitation [No. 10-2771] or
otherwise as part of the Limitation Action [No. 10-2771].
New Orleans, Louisiana this 12th day of January, 2011.
SIGNED this ___ day of -------------,, 2011, in New Orleans, Louisiana.
United States District Judge Hon. Carl J. Barbier U.S. District Court Judge
7 D 1607437 v1-24010/0002 PLEADINGS MDL 2179 In Re: Oil Spill by Deepwater Horizon Pleading Bundle A Cases *List comports with BP and Anadarko lists.
Plaintiff Plaintiff Last Name First Name Case Caption EDLA Docket Filing Attorney
James C. Klick (Herman, Herman, Katz & Becnel Melinda Melinda Becnel v. BP, PLC 2:10-cv-3066 Cotlar)
Anthony G. Buzbee Benton Oleander Oleander Benton v. Transocean, Ltd. 2:10-cv-4226 (The Buzbee Law Firm)
Gerald E. Meunier (Gainsburgh, Benjamin, David, Meunier & Crawford Douglas Douglas Crawford v. BP, PLC 2:10-cv-1540 Warshauer)
Matthew Davis v. Cameron International Anthony G. Buzbee Davis Matthew Corporation 2:10-cv-3169 (The Buzbee Law Firm)
Anthony G. Buzbee Faulk Shane Shane Faulk v. Transocean, Ltd. 2:10-cv-4227 (The Buzbee Law Firm)
Anthony G. Buzbee John Lance Lance John v. Transocean, Ltd. 2:10-cv-4229 (The Buzbee Law Firm)
Robert P. Wynne Johnson Elton Elton Johnson v. BP, PLC 2:10-cv-1674 (Arnold & Itkin, LLP)
John W. deGravelles (deGravelles, Palmintier, Jones Michelle Michelle Jones v. Transocean,, Ltd. 2:10-cv-1196 g ) Holthaus & Fruge)
Brad Jones v. Cameron International Anthony G. Buzbee Jones Brad Corporation 2:10-cv-3184 (The Buzbee Law Firm)
Tracy Kleppinger v. Transocean Steve J. Gordon Kleppinger Tracy Offshore Deepwater Drilling, Inc. 2:10-cv-3168 (Gordon, Elias & Seely)
Joshua Kritzer v. Transocean Offshore Kurt B. Arnold Kritzer Joshua Deepwater Drilling, Inc. 2:10-cv-4427 (Arnold & Itkin)
David P. Bruchhaus Lavergne Carl Carl Lavergne v. Transocean, Ltd. 2:10-cv-4211 (Mudd & Bruchhaus)
Johnny N. Garza, Jr. Heber Morales v. BP Exploration and (Abraham, Watkins, Nichols, Morales Heber Production, Inc. 2:10-cv-4360 Sorrels, Agosto & Friend)
1/12/2011 -1- ~7077790.XLS MDL 2179 In Re: Oil Spill by Deepwater Horizon Pleading Bundle A Cases *List comports with BP and Anadarko lists.
Plaintiff Plaintiff Last Name First Name Case Caption EDLA Docket Filing Attorney
George W. Healy, IV (George W. Healy & Murray Chadwick Chadwick Murray v. Transocean, Ltd. 2:10-cv-2814 Associates)
Soren E. Gisleson (Herman, Herman, Katz & Reed Darrell Darrell Reed v. BP, PLC 2:10-cv-4252 Cotlar)
Karl Rhodes v. Transocean Offshore Rhodes Karl Deepwater Drilling, Inc. 2:10-cv-1502 Richard R. Kennedy
David A. Hilleren Roberts Kenneth Kenneth Roberts v. BP, PLC 2:10-cv-3815 (Hilleren & Hilleren)
Scott R. Bickford Roshto Shane Shane Roshto v. Transocean, Ltd. 2:10-cv-1156 (Martzell & Bickford)
Kelli Taquino v. Transocean Holdings, John H. Smith Taquino Kelli LLC 2:10-cv-1921 (McKernan Law Firm)
Paul M. Sterbcow Lewis, Kullman, Sterbcos & Williams Michael Michael Williams v. Transocean, Ltd. 2:10-cv-1243 Abramson)
1/12/2011 -2- ~7077790.XLS MDL 2179 In Re: Oil Spill by Deepwater Horizon Pleading Bundle C Cases * List comports with BP, HESI and Anadarko lists.
Plaintiff(s) Case Caption EDLA Docket Filing Attorney
City of Greenville, City of Evergreen, City of Jere L. Beasley Georgiana, Town of City of Greenville, City of Evergreen, City of (Beasley, Allen, Crow, McKenzie Georgiana, Town of McKenzie v. BP, PLC 2:10-cv-4185 Methvin, Portis & Miles)
State of Alabama ex rel. Troy King, Attorney Troy King State of Alabama General v. BP, PLC 2:10-cv-4182 (Alabama Attorney General)
State of Alabama ex rel. Troy King, Attorney Troy King State of Alabama General v. Transocean, Ltd. 2:10-cv-4183 (Alabama Attorney General)
Camille A. Morvant, II State of Louisiana v. BP Exploration & (D.A., Parish of Lafourche) State of Louisiana Production, Inc. 2:10-cv-1757 (Lafourche Parish)
Stephen B. Murray State of Louisiana v. BP Exploration & (Murray Law Firm) State of Louisiana Production, Inc. 2:10-cv-1758 (Plaquemines Parish)
Victor L. Marcello (Talbot, Carmouche & State of Louisiana v. BP Exploration & Marcello) State of Louisiana Production, Inc. 2:10-cv-1759 (Terrebone Parish)
Tom W. Thornhill State of Louisiana v. BP Exploration & (Thornhill Law Firm) State of Louisiana Production, Inc. 2:10-cv-1760 (St. Tammany Parish)
Peter J. Butler, Jr. State of Louisiana v. BP Exploration & (Breazeale, Sachse & Wilson) State of Louisiana Production, Inc. 2:10-cv-2087 (St. Bernard Parish)
Victor L. Marcello (Talbot, Carmouche & State of Louisiana v. BP Exploration & Marcello) State of Louisiana Production, Inc. 2:10-cv-2996 (New Iberia Parish)
Victor L. Marcello (Talbot, Carmouche & State of Louisiana v. BP Exploration & Marcello) State of Louisiana Production, Inc. 2:10-cv-2997 (St. Mary Parish)
State of Louisiana v. Triton Asset Leasing James D. "Buddy" Caldwell State of Louisiana GmBH 2:10-cv-3059 (Louisiana Attorney General)
1/12/2011 -1- Bundle C Cases.XLS MDL 2179 In Re: Oil Spill by Deepwater Horizon Pleading Bundle C Cases * List comports with BP, HESI and Anadarko lists.
Plaintiff(s) Case Caption EDLA Docket Filing Attorney
State of Louisiana v. BP Exploration & Leon Cannizzaro, Jr. State of Louisiana Production, Inc. 2:10-cv-2731 (Orleans Parish)
State of Quintana Roo, State of Quintana Roo,Republic of Mexico v. Enrique G. Serna Mexico BP, PLC 2:10-cv-4241 (Serna & Associates)
State of Tamaulipus, State of Tamaulipus, Republic of Mexico v. Enrique G. Serna Mexico BP, PLC 2:10-cv-4240 (Serna & Associates)
State of Veracruz, State of Veracruz, Republic of Mexico v. BP, Enrique G. Serna Mexico PLC 2:10-cv-4239 (Serna & Associates)
United States of America v. BP Exploration & USA Production, Inc. 2:10-cv-4536 Jim Letten
United States of America v. Transocean USA Holdings, LLC 2:10-cv-4397 Jim Letten
1/12/2011 -2- Bundle C Cases.XLS IN RE: OIL SPILL by “Deepwater Horizon” DIRECT FILING SHORT FORM 1 Authorized by Order of the Court, Civil Action No. 10 md 2179 Rec. Doc. 982 (Copies of said Order having also been filed in Civil Actions No. 10-8888 and 10-2771) MDL 2179 SECTION: J JUDGE CARL BARBIER CLAIM IN LIMITATION--JOINDER IN MASTER ANSWER--INTERVENTION AND JOINDER IN MASTER COMPLAINTS – PLAINTIFF/CLAIMANT PROFILE FORM By submitting this document, I am asserting a claim in Complaint and Petition of Triton Asset Leasing GmbH, et al., No. 10-2771; adopt and incorporate the Master Answer [Rec. Doc. 244] to the Complaint and Petition of Triton Asset Leasing Gmbh, et al., in No. 10-2771; and/or intervene into, join and otherwise adopt the Master Complaint [Rec. Doc. 879] for private economic losses (“B1 Bundle”) filed in MDL No. 2179 (10 md 2179); and/or intervene into, join and otherwise adopt the Master Complaint [Rec. Doc. 881] for post-explosion injuries (“B3 Bundle”) filed in MDL No. 2179 (10 md 2179).
Last Name First Name Middle Name/Maiden Suffix
Phone Number E-Mail Address
Address City / State / Zip
INDIVIDUAL CLAIM BUSINESS CLAIM
Employer Name Business Name
Job Title / Description Type of Business
Address Address
City / State / Zip City / State / Zip
Last 4 digits of your Social Security Number Last 4 digits of your Tax ID Number
Attorney Name Firm Name
Address City / State / Zip
Phone Number E-Mail Address
Claim filed with BP? Claim Filed with GCCF?: YES NO YES NO If yes, BP Claim No.: If yes, Claimant Identification No.:
Claim Type (Please check all that apply): Damage or destruction to real or personal property Fear of Future Injury and/or Medical Monitoring Earnings/Profit Loss Loss of Subsistence use of Natural Resources Personal Injury/Death Removal and/or clean-up costs Other: ___________________________________________
1 This form should be filed with the U.S. District Court for the Eastern District of Louisiana, 500 Poydras Street, New Orleans, Louisiana 70130, in Civil Action No. 10‐8888. While this Direct Filing Short Form is to be filed in CA No. 10‐8888, by prior order of the Court, (Rec. Doc. 246, C.A. No. 10‐2771 and Rec. Doc. 982 in MDL 2179), the filing of this form in C.A. No. 10‐8888 shall be deemed to be simultaneously filed in C.A. 10‐2771 and MDL 2179. Plaintiff Liaison Counsel, after being notified electronically by the Clerk of Court of the filing of this Short Form, shall promptly serve this form through the Lexis Nexis service system on Defense Liaison. 1
The filing of this Direct Filing Short Form shall also serve in lieu of the requirement of a Plaintiff to file a Plaintiff Profile Form. Brief Description:
1. For earnings/profit loss, property damage and loss of subsistence use claims, describe the nature of the injury. For claims involving real estate/property, include the property location, type of property (residential/commercial), and whether physical damage occurred. For claims relating to fishing of any type, include the type and location of fishing grounds at issue.
2. For personal injury claims, describe the injury, how and when it was sustained, and identify all health care providers and employers 2008 to present and complete authorization forms for each.
3. For post-explosion claims related to clean-up or removal, include your role in the clean-up activities, the name of your employer, and where you were working.
2
The filing of this Direct Filing Short Form shall also serve in lieu of the requirement of a Plaintiff to file a Plaintiff Profile Form. Please check the box(es) below that you think apply to you and your claims: Non-governmental Economic Loss and Property Damage Claims (Bundle B1) 1. Commercial fisherman, shrimper, crabber, or oysterman, or the owner and operator of a business involving fishing, shrimping, crabbing or oystering.
2. Seafood processor, distributor, retail and seafood market, or restaurant owner and operator, or an employee thereof.
3. Recreational business owner, operator or worker, including a recreational fishing business, commercial guide service, or charter fishing business who earn their living through the use of the Gulf of Mexico.
4. Commercial business, business owner, operator or worker, including commercial divers, offshore oilfield service, repair and supply, real estate agents, and supply companies, or an employee thereof.
5. Recreational sport fishermen, recreational diver, beachgoer, or recreational boater.
6. Plant and dock worker, including commercial seafood plant worker, longshoreman, or ferry operator.
7 Owner, lessor, or lessee of real property alleged to be damaged, harmed or impacted, physically or economically, including lessees of oyster beds.
8. Hotel owner and operator, vacation rental owner and agent, or all those who earn their living from the tourism industry.
9. Bank, financial institution, or retail business that suffered losses as a result of the spill.
10. Person who utilizes natural resources for subsistence.
11. Other:
Post-Explosion Personal Injury, Medical Monitoring, and Property Damage Related to Cleanup (Bundle B3) 1. Boat captain or crew involved in the Vessels of Opportunity program.
2. Worker involved in decontaminating vessels that came into contact with oil and/or chemical dispersants.
3. Vessel captain or crew who was not involved in the Vessels of Opportunity program but who were exposed to harmful chemicals, odors and emissions during post-explosion clean-up activities.
4. Clean-up worker or beach personnel involved in clean-up activities along shorelines and intercoastal and intertidal zones.
5. Resident who lives or works in close proximity to coastal waters.
6. Other:
Both BP and the Gulf Coast Claims Facility (“GCCF”) are hereby authorized to release to the Defendants in MDL 2179 all information and documents submitted by above-named Plaintiff and information regarding the status of any payment on the claim, subject to such information being treated as “Confidential Access Restricted” under the Order Protecting Confidentiality (Pre-Trial Order No. 11), and subject to full copies of same being made available to both the Plaintiff (or his attorney if applicable) filing this form and PSC through Plaintiff Liaison Counsel.
Claimant or Attorney Signature
Print Name
Date
3
The filing of this Direct Filing Short Form shall also serve in lieu of the requirement of a Plaintiff to file a Plaintiff Profile Form. IN RE: OIL SPILL by “Deepwater Horizon” MDL 2179 and Civil Action No. 10-2771 SECTION: J JUDGE CARL BARBIER PLAINTIFF PROFILE FORM [“PPF”] Last Name First Name Middle/Maiden Suffix
Phone Number E-Mail Address
Address City / State / Zip
INDIVIDUAL CLAIM BUSINESS CLAIM Employer Name Business Name
Job Title / Description Type of Business
Address Address
City / State / Zip City / State / Zip
Social Security Number Tax ID Number
Attorney Name Firm Name
Address City / State / Zip
Phone Number E-Mail Address
Claim filed with BP? Claim Filed with GCCF?: YES NO YES NO If yes, BP Claim No.: If yes, Claimant Identification No.:
Claim Type (Please check all that apply): Damage or destruction to real or personal property; Earnings/Profit Loss; Personal Injury/Death; Fear of Future Injury and/or Medical Monitoring; Loss of Subsistence use of Natural Resources; Removal and/or clean-up costs; Other _______________________________________________________
Original Case Caption Original Civil Action Number
Originating Court EDLA Civil Action Number
Please check the box(es) below that you think apply to you and your claims: Non-governmental Economic Loss and Property Damage Claims (Bundle B1)
Commercial fisherman, shrimper, crabber, or oysterman, or the Plant and dock worker, including commercial seafood plant worker, owner and operator of a business involving fishing, shrimping, longshoreman, or ferry operator. crabbing or oystering. Owner, lessor, or lessee of real property alleged to be damaged, Seafood processor, distributor, retail and seafood market, or harmed or impacted, physically or economically, including lessees of restaurant owner and operator, or an employee thereof. oyster beds. Recreational business owner, operator or worker, including a Hotel owner and operator, vacation rental owner and agent, or all recreational fishing business, commercial guide service, or charter those who earn their living from the tourism industry. fishing business who earn their living through the use of the Gulf of Mexico. Bank, financial institution, or retail business that suffered losses as a result of the spill. Commercial business, business owner, operator or worker, including commercial divers, offshore oilfield service, repair and supply, real Person who utilizes natural resources for subsistence. estate agents, and supply companies, or an employee thereof. Other: Recreational sport fishermen, recreational diver, beachgoer, or recreational boater.
Post-Explosion Personal Injury, Medical Monitoring, and Property Damage Related to Cleanup (Bundle B3)
Boat captain or crew involved in the Vessels of Opportunity Clean-up worker or beach personnel involved in clean-up activities program. along shorelines and intercoastal and intertidal zones. Worker involved in decontaminating vessels that came into contact Resident who lives or works in close proximity to coastal waters. with oil and/or chemical dispersants. Other: Vessel captain or crew who was not involved in the Vessels of Opportunity program but who were exposed to harmful chemicals, odors and emissions during post-explosion clean-up activities. Brief Description:
For earnings/profit loss, property damage and loss of subsistence use claims, describe the nature of the injury. For claims involving real estate/property, include the property location, type of property (residential/commercial), and whether physical damage occurred. For claims relating to fishing of any type, include the type and location of fishing grounds at issue.
For personal injury claims, describe the injury, how and when it was sustained, and identify all health care providers and employers 2008 to present and complete authorization forms for each.
For post-explosion claims related to clean-up or removal, include your role in the clean-up activities, the name of your employer, and where you were working.
Both BP and the Gulf Coast Claims Facility (“GCCF”) are hereby authorized to release to the Defendants in MDL 2179 all information and documents submitted by above-named Plaintiff and information regarding the status of any payment on the claim, subject to such information being treated as “Confidential Access Restricted” under the Order Protecting Confidentiality (Pre-Trial Order No. 11), and subject to full copies of same being made available to both the Plaintiff (or his attorney if applicable) filing this form and PSC through Plaintiff Liaison Counsel.
________________________________________________ ___________________________________________ Claimant or Attorney Signature Date | 2020-01-21 | [
"UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA In re: Oil Spill by the Oil Rig * MDL No. 2179; CA 10-2771 \"Deepwater Horizon\" in the Gulf * of Mexico, on April 20, 2010 * SECTION: J * Applies to: All Cases * JUDGE BARBIER * * MAGISTRATE SHUSHAN * * * * * * * * * * * * PRE-TRIAL ORDER NO. 25 [Clarifying the Pleading Bundles, Responsive Pleadings, and the Master Complaints] At the suggestion and stipulation of Plaintiffs, by and through Plaintiffs' Liaison Counsel and the Plaintiffs Steering Committee, and of Defendants, by and through Defense Liaison Counsel,1 in order to clarify Case Management Order No. 1 [PTO No. 11], and to facilitate the efficient and effective management and prosecution of the coordinated actions herein: IT IS ORDERED that the scope and effect of the \"B1\" BUNDLE MASTER COMPLAINT [Doc 879], the \"B3\" BUNDLE MASTER COMPLAINT [Doc 881], and the \"D1\" BUNDLE MASTER COMPLAINT [Doc 880], (collectively referred to herein as \"Master Complaints\"), are hereby clarified as follows: 1 The Court notes that Defendant Nalco objects to paragraph 4 of this Pre-Trial Order.",
"1 1. Pleading Bundle B3, as described in Section III(B) of CMO No. 1 [PTO 11], is clarified as follows: “Clean-Up, Medical Monitoring, and Post-April 20 Personal Injury Claims. This pleading bundle will include all claims, of any type, relating to post-explosion clean-up efforts asserted against Defendants not named in the B1 Master Complaint, as well as all claims for personal injury and/or medical monitoring for exposure or other injury occurring after the explosion and fire of April 20, 2010. The Pleading Bundles described in the CMO and further herein have been created for administrative purposes, and a plaintiff is accordingly permitted to assert claims within both Pleading Bundle B1 and Pleading Bundle B3 without being deemed to have “split” his or her cause of action. 2. For the purpose of clarifying the defendants’ obligations to provide responsive pleadings under the CMO, the cases identified in EXHIBIT 1 shall be deemed to comprise all cases currently pending in the MDL that fall within Pleading Bundle A as defined in PTO No. 11, and the cases identified in EXHIBIT 2 shall be deemed to comprise all cases currently pending in the MDL that fall within Pleading Bundle C as defined in PTO No.",
"11. 3. Any case currently pending in the MDL that does not fall within Pleading Bundles A or C is deemed to fall within one or more of the following: Pleading Bundle B1, Pleading Bundle B3, and/or Pleading Bundle D1, as may be applicable. 4. Any individual plaintiff who is a named plaintiff in a case that falls within Pleading Bundle B1, B3, D1, or D2, or any combination thereof, is deemed to be a plaintiff in the applicable Master Complaint(s). Plaintiffs Liaison Counsel shall provide to Defense Liaison 2 Counsel a list of plaintiffs included in these bundles within a time period to be agreed to between Liaison Counsel. 5.",
"For the procedural and administrative purpose of answering or otherwise responding to the complaints in Pleading Bundles B1, B3 and D1, (and subject to the provisions of Paragraph 8), as to any Defendant named in one or more Master Complaint(s), the allegations, claims, theories of recovery and/or prayers for relief contained within the pre-existing petition or complaint are deemed to be amended, restated, and superseded by the allegations, claims, theories of recovery, and/or prayers for relief in the respective Master Complaint(s) in which the Defendant is named that apply to the pre-existing petition or complaint.",
"6. Subject to the provisions of Paragraph 8, any plaintiff-specific allegations or lack thereof in an individual petition or complaint covered by a Master Complaint - such as allegations concerning a plaintiff's domicile and/or residence, whether plaintiff filed an OPA claim with BP and/or the Gulf Coast Claims Facility, the location and type of real or movable property at issue, plaintiff's occupation or type of business and allegations of damages and/or injuries, if any, as asserted by that plaintiff in his individual petition or complaint - may be cited for illustrative purposes by any defendant in any motion to dismiss the relevant Master Complaint.",
"7. As to those cases which are allocated to Pleading Bundle A or C, the 30 day deadline for any defendant to file any responsive pleadings will not begin to run until the later of (a) the date such complaint or petition is served upon a defendant or (b) the date classification of such 3 complaint into its appropriate pleading bundle(s) occurs. Nothing in this paragraph shall preclude the parties from seeking the Court's approval to extend the 30 day deadline for a defendant to file a responsive pleading to any case which is allocated to Pleading Bundle A or C. 8. All individual petitions or complaints that fall within Pleading Bundles B1, B3, D1, or D2, whether pre-existing or filed hereafter, are stayed until further order of the Court. 9. Whether through counsel or pro se, any individual or entity who heretofore has not filed a complaint, petition or claim in limitation arising out of the Deepwater Horizon oil spill and who desires to bring a claim in Limitation [No.",
"10-2771] and/or assert a cause of action subject to one or more of the Master Complaints, [Doc 879 and/or 881], may do so by filing directly into Civil Action No. 10-8888 the form reflected in EXHIBIT 3 [“short form”] or other form prepared and supplied by the Plaintiffs' Steering Committee and approved by the Court. The filing of a short form in Civil Action No. 10-8888 shall be deemed to be a simultaneous filing of an answer and claim in Civil Action No. 10-2771 and an intervention into one or more of the Master Complaints [Doc 879 and/or 881] in Civil Action No. 10-md-2179. The filing of short form joinders shall be fully subject to the provisions of PTO No. 20, addressing Direct Filing.",
"10. Subject to the provisions of Paragraph 15 and the Direct Filing Order [PTO No. 20], the filing of the Master Complaints shall not waive any contentions relating to venue, jurisdiction, or choice of law, all of which are specifically preserved. 11. The filing of the Master Complaints shall not be deemed to waive or supersede requests for the certification of one or more class actions (and/or sub-classes) under Rule 23, 4 (which proceedings are currently stayed pursuant to Paragraph VII of CMO No.1 [PTO No. 11]), except to the extent that such proposed class definitions and/or allegations are covered in one or more of the Master Complaints, which are hereby deemed to be the operative complaints with respect to same. 12. Defendants who have been properly served with the applicable Master Complaint(s) or have agreed to accept or waive such service of process shall have 30 days from the date of this Order to file any responsive pleadings referenced in Paragraph IV(B) of CMO No.",
"1 [PTO No. 11]. Likewise, Defendants who have been properly served with any Bundle A individual complaint listed on Exhibit 1 shall have 30 days from the date of this Order to file any responsive pleadings referenced in Paragraph IV(B) of CMO No. 1 [PTO No. 11]. Defendants who have not been properly served with the applicable Master Complaint(s) and who have not agreed to accept or waive such service of process shall have 30 days from the date of proper service to file any responsive pleadings referenced in Paragraph IVB of the CMO. Consistent with the CMO, Memoranda in Opposition to any Rule 12(b)(1), 12(b)(6), or 12(c) motions shall be filed within 30 days of the filing of said motion.",
"Any Reply Briefs shall be filed within 30 days of the filing of any Memoranda in Opposition. The page limitation for responsive motions and oppositions to responsive motions shall be set at 50 pages, and the page limitation for replies to oppositions shall be set at 25 pages. 13. The proper service of any Master Complaint as to any Defendant named therein shall constitute service on behalf of all plaintiffs who are deemed to be plaintiffs in the respective Master Complaints as contemplated in Paragraph 4 of this Order. 5 14. Plaintiffs in a pre-existing petition or complaint are not required to file a short form joinder but should they desire to adopt the short form joinder for the purposes of making a claim in the Limitation proceeding [No.",
"10-2771], they may file with the Court and serve upon counsel through LNFS a short form joinder consistent with the deadlines already established for the submission of claims in Limitation. 15. In answering or otherwise responding to each Master Complaint, no defenses, objections, motions or exceptions for lack of jurisdiction, lack of presentment, mootness, lack of standing, or any other defense that may be specific or unique to any particular plaintiff shall be waived, and all such defenses, objections, motions and/or exceptions specific to any particular plaintiff shall be reserved. In addition, any and all rights under the Hague Convention shall not be deemed to be waived by the entry of this Order, and are hereby preserved. 16. With respect to any new petition or complaint that is filed in or transferred to MDL No. 2179, the old Plaintiff Fact Sheet [Doc 642-1] is hereby replaced with the Plaintiff Profile Form attached as EXHIBIT 4. Consistent with the Order Regarding Plaintiff Profile Form [Doc 642], any plaintiff who does not file a short-form joinder [EXHIBIT 3] must serve via LNFS a completed Plaintiff Profile Form as reflected in EXHIBIT 4 within sixty (60) days of transfer to, removal to or filing in the Eastern District of Louisiana.",
"However, a plaintiff who files a short- form joinder does not have to also serve a PPF. 17. The phrase ‘substantially similar’ as used in Paragraph 9 of this Order shall mean all of the data fields of the attached approved Short Form. That is, without further order of the Court, the Short Form can be refined in terms of paper or form size, type size, fonts, graphics, etc 6 (so long as it contains all the data fields approved in the attached) to make it clearer, more user- friendly, less expensive to mail or administer, etc. 18. Paragraph 18 of the \"B3\" Bundle Master Complaint [Doc 881] is amended to delete the second sentence of the paragraph in its entirety, such that only the factual allegations of the B1 Master Complaint are incorporated into and made a part of the B3 Master Complaint, but not any causes of action. Likewise, Paragraph 55 of the \"D1\" BUNDLE MASTER COMPLAINT [Doc 880] is clarified to mean that only the factual allegations of the B1 Master Complaint are incorporated into and made a part of the D1 Master Complaint, but not any causes of action. 19. No provision of this Stipulated Order shall be construed to permit the assertion of any class actions or class claims as part of the Master Claim in Limitation [No.",
"10-2771] or otherwise as part of the Limitation Action [No. 10-2771]. New Orleans, Louisiana this 12th day of January, 2011. SIGNED this ___ day of -------------,, 2011, in New Orleans, Louisiana. United States District Judge Hon. Carl J. Barbier U.S. District Court Judge 7 D 1607437 v1-24010/0002 PLEADINGS MDL 2179 In Re: Oil Spill by Deepwater Horizon Pleading Bundle A Cases *List comports with BP and Anadarko lists. Plaintiff Plaintiff Last Name First Name Case Caption EDLA Docket Filing Attorney James C. Klick (Herman, Herman, Katz & Becnel Melinda Melinda Becnel v. BP, PLC 2:10-cv-3066 Cotlar) Anthony G. Buzbee Benton Oleander Oleander Benton v. Transocean, Ltd. 2:10-cv-4226 (The Buzbee Law Firm) Gerald E. Meunier (Gainsburgh, Benjamin, David, Meunier & Crawford Douglas Douglas Crawford v. BP, PLC 2:10-cv-1540 Warshauer) Matthew Davis v. Cameron International Anthony G. Buzbee Davis Matthew Corporation 2:10-cv-3169 (The Buzbee Law Firm) Anthony G. Buzbee Faulk Shane Shane Faulk v. Transocean, Ltd. 2:10-cv-4227 (The Buzbee Law Firm) Anthony G. Buzbee John Lance Lance John v. Transocean, Ltd. 2:10-cv-4229 (The Buzbee Law Firm) Robert P. Wynne Johnson Elton Elton Johnson v. BP, PLC 2:10-cv-1674 (Arnold & Itkin, LLP) John W. deGravelles (deGravelles, Palmintier, Jones Michelle Michelle Jones v. Transocean,, Ltd. 2:10-cv-1196 g ) Holthaus & Fruge) Brad Jones v. Cameron International Anthony G. Buzbee Jones Brad Corporation 2:10-cv-3184 (The Buzbee Law Firm) Tracy Kleppinger v. Transocean Steve J. Gordon Kleppinger Tracy Offshore Deepwater Drilling, Inc. 2:10-cv-3168 (Gordon, Elias & Seely) Joshua Kritzer v. Transocean Offshore Kurt B. Arnold Kritzer Joshua Deepwater Drilling, Inc. 2:10-cv-4427 (Arnold & Itkin) David P. Bruchhaus Lavergne Carl Carl Lavergne v. Transocean, Ltd. 2:10-cv-4211 (Mudd & Bruchhaus) Johnny N. Garza, Jr. Heber Morales v. BP Exploration and (Abraham, Watkins, Nichols, Morales Heber Production, Inc. 2:10-cv-4360 Sorrels, Agosto & Friend) 1/12/2011 -1- ~7077790.XLS MDL 2179 In Re: Oil Spill by Deepwater Horizon Pleading Bundle A Cases *List comports with BP and Anadarko lists.",
"Plaintiff Plaintiff Last Name First Name Case Caption EDLA Docket Filing Attorney George W. Healy, IV (George W. Healy & Murray Chadwick Chadwick Murray v. Transocean, Ltd. 2:10-cv-2814 Associates) Soren E. Gisleson (Herman, Herman, Katz & Reed Darrell Darrell Reed v. BP, PLC 2:10-cv-4252 Cotlar) Karl Rhodes v. Transocean Offshore Rhodes Karl Deepwater Drilling, Inc. 2:10-cv-1502 Richard R. Kennedy David A. Hilleren Roberts Kenneth Kenneth Roberts v. BP, PLC 2:10-cv-3815 (Hilleren & Hilleren) Scott R. Bickford Roshto Shane Shane Roshto v. Transocean, Ltd. 2:10-cv-1156 (Martzell & Bickford) Kelli Taquino v. Transocean Holdings, John H. Smith Taquino Kelli LLC 2:10-cv-1921 (McKernan Law Firm) Paul M. Sterbcow Lewis, Kullman, Sterbcos & Williams Michael Michael Williams v. Transocean, Ltd. 2:10-cv-1243 Abramson) 1/12/2011 -2- ~7077790.XLS MDL 2179 In Re: Oil Spill by Deepwater Horizon Pleading Bundle C Cases * List comports with BP, HESI and Anadarko lists.",
"Plaintiff(s) Case Caption EDLA Docket Filing Attorney City of Greenville, City of Evergreen, City of Jere L. Beasley Georgiana, Town of City of Greenville, City of Evergreen, City of (Beasley, Allen, Crow, McKenzie Georgiana, Town of McKenzie v. BP, PLC 2:10-cv-4185 Methvin, Portis & Miles) State of Alabama ex rel. Troy King, Attorney Troy King State of Alabama General v. BP, PLC 2:10-cv-4182 (Alabama Attorney General) State of Alabama ex rel.",
"Troy King, Attorney Troy King State of Alabama General v. Transocean, Ltd. 2:10-cv-4183 (Alabama Attorney General) Camille A. Morvant, II State of Louisiana v. BP Exploration & (D.A., Parish of Lafourche) State of Louisiana Production, Inc. 2:10-cv-1757 (Lafourche Parish) Stephen B. Murray State of Louisiana v. BP Exploration & (Murray Law Firm) State of Louisiana Production, Inc. 2:10-cv-1758 (Plaquemines Parish) Victor L. Marcello (Talbot, Carmouche & State of Louisiana v. BP Exploration & Marcello) State of Louisiana Production, Inc. 2:10-cv-1759 (Terrebone Parish) Tom W. Thornhill State of Louisiana v. BP Exploration & (Thornhill Law Firm) State of Louisiana Production, Inc. 2:10-cv-1760 (St. Tammany Parish) Peter J. Butler, Jr. State of Louisiana v. BP Exploration & (Breazeale, Sachse & Wilson) State of Louisiana Production, Inc. 2:10-cv-2087 (St. Bernard Parish) Victor L. Marcello (Talbot, Carmouche & State of Louisiana v. BP Exploration & Marcello) State of Louisiana Production, Inc. 2:10-cv-2996 (New Iberia Parish) Victor L. Marcello (Talbot, Carmouche & State of Louisiana v. BP Exploration & Marcello) State of Louisiana Production, Inc. 2:10-cv-2997 (St. Mary Parish) State of Louisiana v. Triton Asset Leasing James D. \"Buddy\" Caldwell State of Louisiana GmBH 2:10-cv-3059 (Louisiana Attorney General) 1/12/2011 -1- Bundle C Cases.XLS MDL 2179 In Re: Oil Spill by Deepwater Horizon Pleading Bundle C Cases * List comports with BP, HESI and Anadarko lists.",
"Plaintiff(s) Case Caption EDLA Docket Filing Attorney State of Louisiana v. BP Exploration & Leon Cannizzaro, Jr. State of Louisiana Production, Inc. 2:10-cv-2731 (Orleans Parish) State of Quintana Roo, State of Quintana Roo,Republic of Mexico v. Enrique G. Serna Mexico BP, PLC 2:10-cv-4241 (Serna & Associates) State of Tamaulipus, State of Tamaulipus, Republic of Mexico v. Enrique G. Serna Mexico BP, PLC 2:10-cv-4240 (Serna & Associates) State of Veracruz, State of Veracruz, Republic of Mexico v. BP, Enrique G. Serna Mexico PLC 2:10-cv-4239 (Serna & Associates) United States of America v. BP Exploration & USA Production, Inc. 2:10-cv-4536 Jim Letten United States of America v. Transocean USA Holdings, LLC 2:10-cv-4397 Jim Letten 1/12/2011 -2- Bundle C Cases.XLS IN RE: OIL SPILL by “Deepwater Horizon” DIRECT FILING SHORT FORM 1 Authorized by Order of the Court, Civil Action No. 10 md 2179 Rec. Doc. 982 (Copies of said Order having also been filed in Civil Actions No. 10-8888 and 10-2771) MDL 2179 SECTION: J JUDGE CARL BARBIER CLAIM IN LIMITATION--JOINDER IN MASTER ANSWER--INTERVENTION AND JOINDER IN MASTER COMPLAINTS – PLAINTIFF/CLAIMANT PROFILE FORM By submitting this document, I am asserting a claim in Complaint and Petition of Triton Asset Leasing GmbH, et al., No.",
"10-2771; adopt and incorporate the Master Answer [Rec. Doc. 244] to the Complaint and Petition of Triton Asset Leasing Gmbh, et al., in No. 10-2771; and/or intervene into, join and otherwise adopt the Master Complaint [Rec. Doc. 879] for private economic losses (“B1 Bundle”) filed in MDL No. 2179 (10 md 2179); and/or intervene into, join and otherwise adopt the Master Complaint [Rec. Doc. 881] for post-explosion injuries (“B3 Bundle”) filed in MDL No. 2179 (10 md 2179). Last Name First Name Middle Name/Maiden Suffix Phone Number E-Mail Address Address City / State / Zip INDIVIDUAL CLAIM BUSINESS CLAIM Employer Name Business Name Job Title / Description Type of Business Address Address City / State / Zip City / State / Zip Last 4 digits of your Social Security Number Last 4 digits of your Tax ID Number Attorney Name Firm Name Address City / State / Zip Phone Number E-Mail Address Claim filed with BP?",
"Claim Filed with GCCF? : YES NO YES NO If yes, BP Claim No. : If yes, Claimant Identification No. : Claim Type (Please check all that apply): Damage or destruction to real or personal property Fear of Future Injury and/or Medical Monitoring Earnings/Profit Loss Loss of Subsistence use of Natural Resources Personal Injury/Death Removal and/or clean-up costs Other: ___________________________________________ 1 This form should be filed with the U.S. District Court for the Eastern District of Louisiana, 500 Poydras Street, New Orleans, Louisiana 70130, in Civil Action No. 10‐8888.",
"While this Direct Filing Short Form is to be filed in CA No. 10‐8888, by prior order of the Court, (Rec. Doc. 246, C.A. No. 10‐2771 and Rec. Doc. 982 in MDL 2179), the filing of this form in C.A. No. 10‐8888 shall be deemed to be simultaneously filed in C.A. 10‐2771 and MDL 2179. Plaintiff Liaison Counsel, after being notified electronically by the Clerk of Court of the filing of this Short Form, shall promptly serve this form through the Lexis Nexis service system on Defense Liaison. 1 The filing of this Direct Filing Short Form shall also serve in lieu of the requirement of a Plaintiff to file a Plaintiff Profile Form.",
"Brief Description: 1. For earnings/profit loss, property damage and loss of subsistence use claims, describe the nature of the injury. For claims involving real estate/property, include the property location, type of property (residential/commercial), and whether physical damage occurred. For claims relating to fishing of any type, include the type and location of fishing grounds at issue. 2. For personal injury claims, describe the injury, how and when it was sustained, and identify all health care providers and employers 2008 to present and complete authorization forms for each. 3. For post-explosion claims related to clean-up or removal, include your role in the clean-up activities, the name of your employer, and where you were working.",
"2 The filing of this Direct Filing Short Form shall also serve in lieu of the requirement of a Plaintiff to file a Plaintiff Profile Form. Please check the box(es) below that you think apply to you and your claims: Non-governmental Economic Loss and Property Damage Claims (Bundle B1) 1. Commercial fisherman, shrimper, crabber, or oysterman, or the owner and operator of a business involving fishing, shrimping, crabbing or oystering. 2. Seafood processor, distributor, retail and seafood market, or restaurant owner and operator, or an employee thereof. 3. Recreational business owner, operator or worker, including a recreational fishing business, commercial guide service, or charter fishing business who earn their living through the use of the Gulf of Mexico. 4. Commercial business, business owner, operator or worker, including commercial divers, offshore oilfield service, repair and supply, real estate agents, and supply companies, or an employee thereof.",
"5. Recreational sport fishermen, recreational diver, beachgoer, or recreational boater. 6. Plant and dock worker, including commercial seafood plant worker, longshoreman, or ferry operator. 7 Owner, lessor, or lessee of real property alleged to be damaged, harmed or impacted, physically or economically, including lessees of oyster beds. 8. Hotel owner and operator, vacation rental owner and agent, or all those who earn their living from the tourism industry. 9. Bank, financial institution, or retail business that suffered losses as a result of the spill. 10. Person who utilizes natural resources for subsistence. 11. Other: Post-Explosion Personal Injury, Medical Monitoring, and Property Damage Related to Cleanup (Bundle B3) 1. Boat captain or crew involved in the Vessels of Opportunity program. 2.",
"Worker involved in decontaminating vessels that came into contact with oil and/or chemical dispersants. 3. Vessel captain or crew who was not involved in the Vessels of Opportunity program but who were exposed to harmful chemicals, odors and emissions during post-explosion clean-up activities. 4. Clean-up worker or beach personnel involved in clean-up activities along shorelines and intercoastal and intertidal zones. 5. Resident who lives or works in close proximity to coastal waters. 6. Other: Both BP and the Gulf Coast Claims Facility (“GCCF”) are hereby authorized to release to the Defendants in MDL 2179 all information and documents submitted by above-named Plaintiff and information regarding the status of any payment on the claim, subject to such information being treated as “Confidential Access Restricted” under the Order Protecting Confidentiality (Pre-Trial Order No.",
"11), and subject to full copies of same being made available to both the Plaintiff (or his attorney if applicable) filing this form and PSC through Plaintiff Liaison Counsel. Claimant or Attorney Signature Print Name Date 3 The filing of this Direct Filing Short Form shall also serve in lieu of the requirement of a Plaintiff to file a Plaintiff Profile Form. IN RE: OIL SPILL by “Deepwater Horizon” MDL 2179 and Civil Action No. 10-2771 SECTION: J JUDGE CARL BARBIER PLAINTIFF PROFILE FORM [“PPF”] Last Name First Name Middle/Maiden Suffix Phone Number E-Mail Address Address City / State / Zip INDIVIDUAL CLAIM BUSINESS CLAIM Employer Name Business Name Job Title / Description Type of Business Address Address City / State / Zip City / State / Zip Social Security Number Tax ID Number Attorney Name Firm Name Address City / State / Zip Phone Number E-Mail Address Claim filed with BP? Claim Filed with GCCF?",
": YES NO YES NO If yes, BP Claim No. : If yes, Claimant Identification No. : Claim Type (Please check all that apply): Damage or destruction to real or personal property; Earnings/Profit Loss; Personal Injury/Death; Fear of Future Injury and/or Medical Monitoring; Loss of Subsistence use of Natural Resources; Removal and/or clean-up costs; Other _______________________________________________________ Original Case Caption Original Civil Action Number Originating Court EDLA Civil Action Number Please check the box(es) below that you think apply to you and your claims: Non-governmental Economic Loss and Property Damage Claims (Bundle B1) Commercial fisherman, shrimper, crabber, or oysterman, or the Plant and dock worker, including commercial seafood plant worker, owner and operator of a business involving fishing, shrimping, longshoreman, or ferry operator. crabbing or oystering. Owner, lessor, or lessee of real property alleged to be damaged, Seafood processor, distributor, retail and seafood market, or harmed or impacted, physically or economically, including lessees of restaurant owner and operator, or an employee thereof. oyster beds. Recreational business owner, operator or worker, including a Hotel owner and operator, vacation rental owner and agent, or all recreational fishing business, commercial guide service, or charter those who earn their living from the tourism industry. fishing business who earn their living through the use of the Gulf of Mexico.",
"Bank, financial institution, or retail business that suffered losses as a result of the spill. Commercial business, business owner, operator or worker, including commercial divers, offshore oilfield service, repair and supply, real Person who utilizes natural resources for subsistence. estate agents, and supply companies, or an employee thereof. Other: Recreational sport fishermen, recreational diver, beachgoer, or recreational boater. Post-Explosion Personal Injury, Medical Monitoring, and Property Damage Related to Cleanup (Bundle B3) Boat captain or crew involved in the Vessels of Opportunity Clean-up worker or beach personnel involved in clean-up activities program. along shorelines and intercoastal and intertidal zones. Worker involved in decontaminating vessels that came into contact Resident who lives or works in close proximity to coastal waters. with oil and/or chemical dispersants. Other: Vessel captain or crew who was not involved in the Vessels of Opportunity program but who were exposed to harmful chemicals, odors and emissions during post-explosion clean-up activities.",
"Brief Description: For earnings/profit loss, property damage and loss of subsistence use claims, describe the nature of the injury. For claims involving real estate/property, include the property location, type of property (residential/commercial), and whether physical damage occurred. For claims relating to fishing of any type, include the type and location of fishing grounds at issue. For personal injury claims, describe the injury, how and when it was sustained, and identify all health care providers and employers 2008 to present and complete authorization forms for each.",
"For post-explosion claims related to clean-up or removal, include your role in the clean-up activities, the name of your employer, and where you were working. Both BP and the Gulf Coast Claims Facility (“GCCF”) are hereby authorized to release to the Defendants in MDL 2179 all information and documents submitted by above-named Plaintiff and information regarding the status of any payment on the claim, subject to such information being treated as “Confidential Access Restricted” under the Order Protecting Confidentiality (Pre-Trial Order No. 11), and subject to full copies of same being made available to both the Plaintiff (or his attorney if applicable) filing this form and PSC through Plaintiff Liaison Counsel. ________________________________________________ ___________________________________________ Claimant or Attorney Signature Date"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/152531800/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
This is an appeal from an award of the Full Industrial Board, denying appellant compensation upon her application filed under the provisions of the Indiana Workmen's Occupational Diseases Act. In her application, Form 115, appellant alleged that she was employed by appellee from February 20, 1943, until November 19, 1943; that the character of her illness or disease contracted during said employment was, and is, bronchitis and nasal pharyngitis, resulting in bronchiectasis. A hearing was held before a single member of the Industrial Board who made an award denying compensation. Appellant appealed to the Full Industrial Board and, after a hearing, the following finding and award was made by the Full Industrial Board, to wit: "The full Industrial Board of Indiana having heard the arguments of counsel and having reviewed all of the evidence and being duly advised in the premises, now finds: that the plaintiff was in the employ of the defendant on February 20, 1943, at an average weekly wage of $32.24; that the plaintiff worked for the defendant from February 20, 1943, up to and including November 19, 1943, with the exception of approximately one *Page 377 month; that the plaintiff did not work for the defendant during the month of July, 1943, as she was incapacitated during that period of time due to the fact that she had an operation performed for the removal of her tonsils; that the plaintiff's employment with the defendants ended November 19, 1943, at which time the plaintiff became incapacitated; that pursuant to a disagreement between the parties, the plaintiff herein filed a Form 115 Application which is an application of disabled employee for compensation under the provisions of the Indiana Workmen's Occupational Diseases Act, with the Industrial Board of Indiana on April 25, 1944. "The full Industrial Board now further finds for the defendant against the plaintiff in that the plaintiff's disability to work was not directly nor indirectly the result of any occupational disease arising out of and in the course of her employment with the defendant, nor did the condition of bronchiectasis which the plaintiff has, follow as an incident of an occupational disease arising out of and in the course of her employment with the defendant, nor did the condition of bronchiectasis which the plaintiff has, follow as an incident of an occupational disease arising out of and in the course of her employment with the defendant. "It is therefore considered, ordered and adjudged by the Industrial Board of Indiana that the plaintiff take nothing by her form 115, which is an application of disabled employee for compensation under the provisions of the Indiana Workmen's Occupational Diseases Act, filed with the Industrial Board of Indiana on April 25, 1944, and that she pay all costs, if any are taxed in this cause." The error assigned is that the award of the Full Industrial Board is contrary to law for the reason that the evidence in favor of appellee was, and is, devoid of any probative value. The only question presented to us for review is whether the evidence in support of appellant's claim is *Page 378 so conclusive in character that the finding against her 1, 2. could have been reached only through the exercise of improper considerations or influences. If the substantial evidence in the record is conflicting, it was within the exclusive province of the Industrial Board, as the trier of the facts, to weigh the evidence and determine with whom the truth lay, and its finding in that respect cannot be disturbed upon appeal or our judgment as to the weight of the evidence substituted for that of the Industrial Board. Russell v.Johnson (1943), 220 Ind. 649, 46 N.E.2d 219; Warren v.Indiana Telephone Co. (1940), 217 Ind. 93, 26 N.E.2d 399;Fuller v. Delco Remy Division of General Motors Corp. (1945), ante, p. 272, 63 N.E.2d 542. If such evidence is without conflict and wholly in favor of the appellant and complete in all essentials necessary to a recovery, the Industrial Board had no right to disregard and ignore it through prejudice, bias, mere caprice, or other improper considerations, and under such circumstances the award will be set aside upon appeal. Bell v.Goody Goody Products Co. (1945), ante, p. 181,63 N.E.2d 147. An occupational disease is defined in § 6 of the Indiana Workmen's Occupational Diseases Act, § 40-2206, Burns' 1940 Replacement as follows: "(a) As used in this act, the term `occupational disease' means a disease arising out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where such diseases follow as an incident of an occupational disease as defined in this section. "(b) A disease shall be deemed to arise out of the employment, only if there is apparent to the rational mind, upon consideration of all of the circumstances, a direct causal connection between the conditions under which the work is performed and *Page 379 the occupational disease, and which can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment and which can be fairly traced to the employment as the proximate cause, and which does not come from a hazard to which workmen would have been equally exposed outside of the employment. The disease must be incidental to the character of the business and not independent of the relation of employer and employee. The disease need not have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence." (Our italics.) In the case of Chev. Mun. Div. of Gen. Mot. Corp. v. Hirst (1943), 113 Ind. App. 181, 189, 46 N.E.2d 281, this court held that while bronchiectasis is a disease common to the public and one to which the public generally is exposed outside of any employment, it may be and is compensable, if it follows as an incident of an occupational disease, as defined by the statute, which disease arises out of and in the course of the employment under circumstances consistent with the requirements of § 40-2206, supra. Reviewing the evidence contained in the record in connection with the statutory definition of what constitutes an occupational disease, and as construed in the Hirst case, supra, we find that there is substantial evidence to establish the following facts: Appellant, a resident of Fayette County, Indiana, applied for work in appellee's plant at Connersville, Indiana, in February, 1943. On February 18, 1943, she was given a pre-employment medical examination by appellee's examining physician, Dr. R.H. Elliott, of Connersville, Indiana, who reported his findings as negative with respect to appellant's nose, throat, and *Page 380 chest. February 20, 1943, appellant went to work for appellee at its Connersville plant as a grinder at an average weekly wage of $32.24. There was no exhaust fan or ventilator connected with the grinder at which appellant worked to remove the dust and particles of steel, grit, and dust arising from the operation performed by appellant, and there was a large amount of such dust, which appellant necessarily breathed. In May, 1943, appellant began coughing, which kept getting worse. She went to a Dr. Smelzer of Connersville, who advised that she have her tonsils removed, which was done in July, 1943. After resting four or five weeks, appellant returned to work but her coughing continued and became progressively worse. On September 17, 1943, appellee sent appellant to Dr. Francis B. Mountain of Connersville for a 90-day period of treatments for her nose. Dr. Mountain diagnosed her condition at that time as an irritated bronchitis and nasal pharyngitis which causes constant coughing and expectoration. During the forepart of November, 1943, Dr. Mountain advised appellee to transfer appellant to another department in appellee's plant, which was done, but appellant's condition did not improve and upon the advice of Dr. Mountain that she was unable to continue working, appellant quit her employment with appellee on November 19, 1943. She has been unable to work since said date. Appellant testified that at and prior to the time she began working at appellee's plant, she did not have a cough and had never been troubled with a cough prior to said date. She also produced other witnesses who gave similar testimony. To contradict such testimony, appellee produced witnesses who worked with appellant at appellee's plant and who testified that at the time appellant went to work for appellee, she coughed and *Page 381 continued to cough throughout her employment and that her cough was as bad when she commenced working as it was when she quit. To support her claim from a medical standpoint, appellant used as witnesses, Drs. Francis B. Mountain and James S. McBride. Dr. Mountain testified that the first time he saw appellant she had a very marked cough and definite hoarseness. Her nose and throat and nasal pharynx were all infected and irritated by an irritation of the mucous membrane. Dr. Mountain treated appellant from September 17, 1943, until March 25, 1944, at intervals of from two to five days per week. Her condition did not respond to any treatment that was given. She coughed up sputum and her condition became progressively worse during her employment with appellee. She had rhinitis, which is an inflammation of the mucous membrane. Rhinitis can be caused by exposure to a foreign substance. Any irritating thing will cause rhinitis. Dr. Mountain further testified that he felt appellant's condition was due to the fact that she continued to work. He stated that bronchiectasis could result from such a condition. Pharyngitis and bronchitis can come from irritations of foreign substances. Since appellant did not respond to treatment, Dr. Mountain stated that he did not have any question in his mind but that appellant's condition was probably due to the work she was doing. The witness further stated that he had examined many persons employed by McQuay-Norris Mfg. Co. in the past several years and that appellant was the only case he had handled involving laryngitis and bronchitis. He stated that these diseases are common to the general public and are not particularly occupational in character. The witness stated that the reason appellant's condition was due to her work and that such work *Page 382 aggravated her condition was because of the fact that she had a type of pharyngitis and bronchitis which would not respond to the ordinary routine of treatments of such diseases. The whole respiratory tract was involved. Dr. McBride testified that he was a specialist in the treatment of lung diseases. He examined appellant on October 9, 1944. At that time she had no tuberculosis of the chest. He found no objective trouble about her in a pathological way. The witness examined an X-ray picture taken by Dr. Beeler August 9, 1944, after an opaque oil had been injected into the bronchial tree which revealed a thickening and irregular enlargement of the trunk and base of the lungs which is called bronchiectasis. It is not an occupational disease. In view of the fact that appellant stated that she was well when she went to work, Dr. McBride thought that the fact that she worked might have some causal connection; it at least could be a causal factor in it. Carborundum dust is a substance which would have a definite effect on the nose and throat. Bronchiectasis is not restricted to an occupational disease but is common to the general public and is more common than bronchitis and it can be found in a person who is not employed in industry. Dr. McBride had no way of knowing the exact cause of bronchiectasis. He stated that he found no evidence of silicosis in appellant's case and found no involvement of the lungs. He stated that he had no idea of the actual cause of bronchiectasis as there have been several hundred different causes suspected but he felt a survey of appellant's working conditions might reveal a cause which could at least contribute strength to her bronchiectasis. Dr. McBride stated that if appellant had the same type of cough, which she is now suffering, at the time she commenced her employment, it would be *Page 383 a fact to be seriously considered to determine whether her disease was occupational or not. Dr. C.J. McIntyre, a witness for appellee, testified that he examined appellant on April 20, 1945, and from the continuous cough which was present during the examination and rales found in the base of the lungs, he assumed that appellant had bronchiectasis. Bronchiectasis is not a disease; it is a condition, a dilation of the bronchial tubes. This dilation is considered to be caused by a congenital defect in the structure of the walls of the bronchi plus the weight of the natural secretions of the bronchi, which produces dilation. It is quite common and so far as the witness knew is not caused by any particular industry and is not occupational. It is a slowly-developing process and rarely disabling. Appellant was not disabled when witness examined her. Bronchiectasis does not develop over a short period of time. If appellant had bronchiectasis, it would be a condition which had developed over a comparatively long period and longer than was given to the witness by appellant in reciting the history of her case. From the history of the employment and the facts given to the witness by appellant with respect to the conditions of her work, it was the opinion of the witness that her condition was not due to her work. There is no causal connection. Dr. McIntyre further stated that there are only two industrial diseases — silicosis and asbestosis — but many conditions assumed to be industrial are not. Dr. McIntyre further stated that he did not think that bronchiectasis could be an incident to an occupational disease. Bronchiectasis is caused by a congenital weakness, plus the weight of the natural secretions of the bronchi. Rhinitis and bronchitis are two affections which are common to the general public and they are not occupational diseases. *Page 384 There is a difference between bronchitis and bronchiectasis; the former is assumed to be an inflammation of the bronchi, sometimes due to a bacterial infection of short duration and sometimes it is secondary to some other infection; bronchiectasis is disclosed by an X-ray. The witness stated that appellant's condition was due to some congenital condition. The foregoing resume of the testimony clearly discloses that the evidence upon the issue as to whether appellant had contracted an occupational disease as a result of her 3, 4. employment was sharply conflicting, especially the medical testimony. It was the exclusive province of the Industrial Board, as the trier of the facts, to weigh the evidence and decide the questions of fact. We are not permitted, under a long unbroken line of authorities, to substitute our judgment as to the weight of the evidence for that of the Industrial Board. Neither can we say that the conclusion reached by the Industrial Board was not supported by sufficient evidence or that the Board was influenced by caprice, prejudice, bias, or any other improper considerations in rendering its award. The burden rested upon appellant to establish the fact that she had contracted and was suffering from an occupational disease as defined by the statute, and this she failed to do. The evidence is not of such a conclusive character as to force us to a contrary opinion from that of the Industrial Board upon the questions of facts presented by the record. The award of the Full Industrial Board is therefore affirmed. NOTE. — Reported in 64 N.E.2d 664. *Page 385 | 07-05-2016 | [
"This is an appeal from an award of the Full Industrial Board, denying appellant compensation upon her application filed under the provisions of the Indiana Workmen's Occupational Diseases Act. In her application, Form 115, appellant alleged that she was employed by appellee from February 20, 1943, until November 19, 1943; that the character of her illness or disease contracted during said employment was, and is, bronchitis and nasal pharyngitis, resulting in bronchiectasis. A hearing was held before a single member of the Industrial Board who made an award denying compensation. Appellant appealed to the Full Industrial Board and, after a hearing, the following finding and award was made by the Full Industrial Board, to wit: \"The full Industrial Board of Indiana having heard the arguments of counsel and having reviewed all of the evidence and being duly advised in the premises, now finds: that the plaintiff was in the employ of the defendant on February 20, 1943, at an average weekly wage of $32.24; that the plaintiff worked for the defendant from February 20, 1943, up to and including November 19, 1943, with the exception of approximately one *Page 377 month; that the plaintiff did not work for the defendant during the month of July, 1943, as she was incapacitated during that period of time due to the fact that she had an operation performed for the removal of her tonsils; that the plaintiff's employment with the defendants ended November 19, 1943, at which time the plaintiff became incapacitated; that pursuant to a disagreement between the parties, the plaintiff herein filed a Form 115 Application which is an application of disabled employee for compensation under the provisions of the Indiana Workmen's Occupational Diseases Act, with the Industrial Board of Indiana on April 25, 1944.",
"\"The full Industrial Board now further finds for the defendant against the plaintiff in that the plaintiff's disability to work was not directly nor indirectly the result of any occupational disease arising out of and in the course of her employment with the defendant, nor did the condition of bronchiectasis which the plaintiff has, follow as an incident of an occupational disease arising out of and in the course of her employment with the defendant, nor did the condition of bronchiectasis which the plaintiff has, follow as an incident of an occupational disease arising out of and in the course of her employment with the defendant. \"It is therefore considered, ordered and adjudged by the Industrial Board of Indiana that the plaintiff take nothing by her form 115, which is an application of disabled employee for compensation under the provisions of the Indiana Workmen's Occupational Diseases Act, filed with the Industrial Board of Indiana on April 25, 1944, and that she pay all costs, if any are taxed in this cause.\" The error assigned is that the award of the Full Industrial Board is contrary to law for the reason that the evidence in favor of appellee was, and is, devoid of any probative value. The only question presented to us for review is whether the evidence in support of appellant's claim is *Page 378 so conclusive in character that the finding against her 1, 2. could have been reached only through the exercise of improper considerations or influences.",
"If the substantial evidence in the record is conflicting, it was within the exclusive province of the Industrial Board, as the trier of the facts, to weigh the evidence and determine with whom the truth lay, and its finding in that respect cannot be disturbed upon appeal or our judgment as to the weight of the evidence substituted for that of the Industrial Board. Russell v.Johnson (1943), 220 Ind. 649, 46 N.E.2d 219; Warren v.Indiana Telephone Co. (1940), 217 Ind. 93, 26 N.E.2d 399;Fuller v. Delco Remy Division of General Motors Corp. (1945), ante, p. 272, 63 N.E.2d 542. If such evidence is without conflict and wholly in favor of the appellant and complete in all essentials necessary to a recovery, the Industrial Board had no right to disregard and ignore it through prejudice, bias, mere caprice, or other improper considerations, and under such circumstances the award will be set aside upon appeal.",
"Bell v.Goody Goody Products Co. (1945), ante, p. 181,63 N.E.2d 147. An occupational disease is defined in § 6 of the Indiana Workmen's Occupational Diseases Act, § 40-2206, Burns' 1940 Replacement as follows: \"(a) As used in this act, the term `occupational disease' means a disease arising out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where such diseases follow as an incident of an occupational disease as defined in this section. \"(b) A disease shall be deemed to arise out of the employment, only if there is apparent to the rational mind, upon consideration of all of the circumstances, a direct causal connection between the conditions under which the work is performed and *Page 379 the occupational disease, and which can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment and which can be fairly traced to the employment as the proximate cause, and which does not come from a hazard to which workmen would have been equally exposed outside of the employment. The disease must be incidental to the character of the business and not independent of the relation of employer and employee.",
"The disease need not have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.\" (Our italics.) In the case of Chev. Mun. Div. of Gen. Mot. Corp. v. Hirst (1943), 113 Ind. App. 181, 189, 46 N.E.2d 281, this court held that while bronchiectasis is a disease common to the public and one to which the public generally is exposed outside of any employment, it may be and is compensable, if it follows as an incident of an occupational disease, as defined by the statute, which disease arises out of and in the course of the employment under circumstances consistent with the requirements of § 40-2206, supra. Reviewing the evidence contained in the record in connection with the statutory definition of what constitutes an occupational disease, and as construed in the Hirst case, supra, we find that there is substantial evidence to establish the following facts: Appellant, a resident of Fayette County, Indiana, applied for work in appellee's plant at Connersville, Indiana, in February, 1943.",
"On February 18, 1943, she was given a pre-employment medical examination by appellee's examining physician, Dr. R.H. Elliott, of Connersville, Indiana, who reported his findings as negative with respect to appellant's nose, throat, and *Page 380 chest. February 20, 1943, appellant went to work for appellee at its Connersville plant as a grinder at an average weekly wage of $32.24. There was no exhaust fan or ventilator connected with the grinder at which appellant worked to remove the dust and particles of steel, grit, and dust arising from the operation performed by appellant, and there was a large amount of such dust, which appellant necessarily breathed. In May, 1943, appellant began coughing, which kept getting worse. She went to a Dr. Smelzer of Connersville, who advised that she have her tonsils removed, which was done in July, 1943. After resting four or five weeks, appellant returned to work but her coughing continued and became progressively worse. On September 17, 1943, appellee sent appellant to Dr. Francis B.",
"Mountain of Connersville for a 90-day period of treatments for her nose. Dr. Mountain diagnosed her condition at that time as an irritated bronchitis and nasal pharyngitis which causes constant coughing and expectoration. During the forepart of November, 1943, Dr. Mountain advised appellee to transfer appellant to another department in appellee's plant, which was done, but appellant's condition did not improve and upon the advice of Dr. Mountain that she was unable to continue working, appellant quit her employment with appellee on November 19, 1943. She has been unable to work since said date. Appellant testified that at and prior to the time she began working at appellee's plant, she did not have a cough and had never been troubled with a cough prior to said date. She also produced other witnesses who gave similar testimony. To contradict such testimony, appellee produced witnesses who worked with appellant at appellee's plant and who testified that at the time appellant went to work for appellee, she coughed and *Page 381 continued to cough throughout her employment and that her cough was as bad when she commenced working as it was when she quit.",
"To support her claim from a medical standpoint, appellant used as witnesses, Drs. Francis B. Mountain and James S. McBride. Dr. Mountain testified that the first time he saw appellant she had a very marked cough and definite hoarseness. Her nose and throat and nasal pharynx were all infected and irritated by an irritation of the mucous membrane. Dr. Mountain treated appellant from September 17, 1943, until March 25, 1944, at intervals of from two to five days per week.",
"Her condition did not respond to any treatment that was given. She coughed up sputum and her condition became progressively worse during her employment with appellee. She had rhinitis, which is an inflammation of the mucous membrane. Rhinitis can be caused by exposure to a foreign substance. Any irritating thing will cause rhinitis. Dr. Mountain further testified that he felt appellant's condition was due to the fact that she continued to work. He stated that bronchiectasis could result from such a condition. Pharyngitis and bronchitis can come from irritations of foreign substances.",
"Since appellant did not respond to treatment, Dr. Mountain stated that he did not have any question in his mind but that appellant's condition was probably due to the work she was doing. The witness further stated that he had examined many persons employed by McQuay-Norris Mfg. Co. in the past several years and that appellant was the only case he had handled involving laryngitis and bronchitis. He stated that these diseases are common to the general public and are not particularly occupational in character. The witness stated that the reason appellant's condition was due to her work and that such work *Page 382 aggravated her condition was because of the fact that she had a type of pharyngitis and bronchitis which would not respond to the ordinary routine of treatments of such diseases. The whole respiratory tract was involved. Dr. McBride testified that he was a specialist in the treatment of lung diseases.",
"He examined appellant on October 9, 1944. At that time she had no tuberculosis of the chest. He found no objective trouble about her in a pathological way. The witness examined an X-ray picture taken by Dr. Beeler August 9, 1944, after an opaque oil had been injected into the bronchial tree which revealed a thickening and irregular enlargement of the trunk and base of the lungs which is called bronchiectasis. It is not an occupational disease. In view of the fact that appellant stated that she was well when she went to work, Dr. McBride thought that the fact that she worked might have some causal connection; it at least could be a causal factor in it. Carborundum dust is a substance which would have a definite effect on the nose and throat.",
"Bronchiectasis is not restricted to an occupational disease but is common to the general public and is more common than bronchitis and it can be found in a person who is not employed in industry. Dr. McBride had no way of knowing the exact cause of bronchiectasis. He stated that he found no evidence of silicosis in appellant's case and found no involvement of the lungs. He stated that he had no idea of the actual cause of bronchiectasis as there have been several hundred different causes suspected but he felt a survey of appellant's working conditions might reveal a cause which could at least contribute strength to her bronchiectasis. Dr. McBride stated that if appellant had the same type of cough, which she is now suffering, at the time she commenced her employment, it would be *Page 383 a fact to be seriously considered to determine whether her disease was occupational or not.",
"Dr. C.J. McIntyre, a witness for appellee, testified that he examined appellant on April 20, 1945, and from the continuous cough which was present during the examination and rales found in the base of the lungs, he assumed that appellant had bronchiectasis. Bronchiectasis is not a disease; it is a condition, a dilation of the bronchial tubes. This dilation is considered to be caused by a congenital defect in the structure of the walls of the bronchi plus the weight of the natural secretions of the bronchi, which produces dilation. It is quite common and so far as the witness knew is not caused by any particular industry and is not occupational.",
"It is a slowly-developing process and rarely disabling. Appellant was not disabled when witness examined her. Bronchiectasis does not develop over a short period of time. If appellant had bronchiectasis, it would be a condition which had developed over a comparatively long period and longer than was given to the witness by appellant in reciting the history of her case. From the history of the employment and the facts given to the witness by appellant with respect to the conditions of her work, it was the opinion of the witness that her condition was not due to her work. There is no causal connection. Dr. McIntyre further stated that there are only two industrial diseases — silicosis and asbestosis — but many conditions assumed to be industrial are not. Dr. McIntyre further stated that he did not think that bronchiectasis could be an incident to an occupational disease. Bronchiectasis is caused by a congenital weakness, plus the weight of the natural secretions of the bronchi. Rhinitis and bronchitis are two affections which are common to the general public and they are not occupational diseases.",
"*Page 384 There is a difference between bronchitis and bronchiectasis; the former is assumed to be an inflammation of the bronchi, sometimes due to a bacterial infection of short duration and sometimes it is secondary to some other infection; bronchiectasis is disclosed by an X-ray. The witness stated that appellant's condition was due to some congenital condition. The foregoing resume of the testimony clearly discloses that the evidence upon the issue as to whether appellant had contracted an occupational disease as a result of her 3, 4. employment was sharply conflicting, especially the medical testimony. It was the exclusive province of the Industrial Board, as the trier of the facts, to weigh the evidence and decide the questions of fact. We are not permitted, under a long unbroken line of authorities, to substitute our judgment as to the weight of the evidence for that of the Industrial Board.",
"Neither can we say that the conclusion reached by the Industrial Board was not supported by sufficient evidence or that the Board was influenced by caprice, prejudice, bias, or any other improper considerations in rendering its award. The burden rested upon appellant to establish the fact that she had contracted and was suffering from an occupational disease as defined by the statute, and this she failed to do. The evidence is not of such a conclusive character as to force us to a contrary opinion from that of the Industrial Board upon the questions of facts presented by the record. The award of the Full Industrial Board is therefore affirmed. NOTE. — Reported in 64 N.E.2d 664.",
"*Page 385"
]
| https://www.courtlistener.com/api/rest/v3/opinions/3424325/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT COURT OF APPEALS U.S. ________________________ ELEVENTH CIRCUIT MAY 18, 2011 No. 10-14727 JOHN LEY Non-Argument Calendar CLERK ________________________
D.C. Docket No. 3:10-cr-00046-RV-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
ADAM M. PETERSEN,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(May 18, 2011)
Before BARKETT, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Adam Petersen appeals his sentence of imprisonment for 121 months
following his conditional plea of guilt for receipt of child pornography. 18 U.S.C. § 2252A(a)(2), (b)(1). Petersen argues that the district court erred in
applying the two-level enhancement for distribution of child pornography based
on his use of a peer-to-peer file-sharing network. U.S.S.G. § 2G2.2(b)(3)(F).
Petersen contends that he had inexpert knowledge about how peer-to-peer filing-
sharing worked, and there was no evidence that he understood the uploading or
“sharing” capabilities of the software he used. We affirm.
We review the interpretation of the Sentencing Guidelines de novo and any
underlying findings of fact for clear error. United States v. Zaldivar, 615 F.3d
1346, 1350 (11th Cir. 2010), cert. denied, 131 S. Ct. 959 (2011). “[F]actual
findings used to support a sentencing enhancement must be based on reliable and
specific evidence and cannot be based on speculation.” United States v. Newman,
614 F.3d 1232, 1238 (11th Cir. 2010).
Under section 2G2.2(b)(3)(F) of the Guidelines, a defendant’s base offense
level for a child pornography offense may be enhanced by two levels if it involves
“distribution,” other than distribution for pecuniary gain, for value, or to a minor.
Distribution is defined broadly as follows:
any act, including possession with intent to distribute, production, transmission, advertisement, and transportation, related to the transfer of material involving the sexual exploitation of a minor. Accordingly, distribution includes posting material involving the sexual exploitation of a minor on a website for public viewing but does not include the mere
2 solicitation of such material by a defendant.
U.S.S.G. § 2G2.2, cmt. n.1. Section 2G2.2(b)(1) provides for a two-level
reduction in the base offense level when the defendant’s conduct is limited to
receipt or solicitation, and the defendant did not intend to traffic in or distribute
child pornography.
The district court did not clearly err in finding that Petersen understood the
capabilities of the file-sharing software he used. Petersen admitted to
downloading and installing the software, he was the most computer literate person
in the household, and he preferred the Shareaza file-sharing program over other
programs because of its search capabilities. The blocking feature in Shareaza was
not enabled. Child pornography was downloaded by authorities from Petersen’s
computer in a folder that was open to share files with any computer with which it
was connected. Based on this record, the district court did not err in finding that
Petersen committed distribution within the meaning of section 2G2.2(b)(3)(F).
AFFIRMED.
3 | 05-18-2011 | [
"[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT COURT OF APPEALS U.S. ________________________ ELEVENTH CIRCUIT MAY 18, 2011 No. 10-14727 JOHN LEY Non-Argument Calendar CLERK ________________________ D.C. Docket No. 3:10-cr-00046-RV-1 UNITED STATES OF AMERICA, llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee, versus ADAM M. PETERSEN, llllllllllllllllllllllllllllllllllllllll Defendant-Appellant. ________________________ Appeal from the United States District Court for the Northern District of Florida ________________________ (May 18, 2011) Before BARKETT, MARCUS and PRYOR, Circuit Judges. PER CURIAM: Adam Petersen appeals his sentence of imprisonment for 121 months following his conditional plea of guilt for receipt of child pornography.",
"18 U.S.C. § 2252A(a)(2), (b)(1). Petersen argues that the district court erred in applying the two-level enhancement for distribution of child pornography based on his use of a peer-to-peer file-sharing network. U.S.S.G. § 2G2.2(b)(3)(F). Petersen contends that he had inexpert knowledge about how peer-to-peer filing- sharing worked, and there was no evidence that he understood the uploading or “sharing” capabilities of the software he used. We affirm. We review the interpretation of the Sentencing Guidelines de novo and any underlying findings of fact for clear error.",
"United States v. Zaldivar, 615 F.3d 1346, 1350 (11th Cir. 2010), cert. denied, 131 S. Ct. 959 (2011). “[F]actual findings used to support a sentencing enhancement must be based on reliable and specific evidence and cannot be based on speculation.” United States v. Newman, 614 F.3d 1232, 1238 (11th Cir. 2010). Under section 2G2.2(b)(3)(F) of the Guidelines, a defendant’s base offense level for a child pornography offense may be enhanced by two levels if it involves “distribution,” other than distribution for pecuniary gain, for value, or to a minor. Distribution is defined broadly as follows: any act, including possession with intent to distribute, production, transmission, advertisement, and transportation, related to the transfer of material involving the sexual exploitation of a minor. Accordingly, distribution includes posting material involving the sexual exploitation of a minor on a website for public viewing but does not include the mere 2 solicitation of such material by a defendant. U.S.S.G. § 2G2.2, cmt.",
"n.1. Section 2G2.2(b)(1) provides for a two-level reduction in the base offense level when the defendant’s conduct is limited to receipt or solicitation, and the defendant did not intend to traffic in or distribute child pornography. The district court did not clearly err in finding that Petersen understood the capabilities of the file-sharing software he used. Petersen admitted to downloading and installing the software, he was the most computer literate person in the household, and he preferred the Shareaza file-sharing program over other programs because of its search capabilities. The blocking feature in Shareaza was not enabled. Child pornography was downloaded by authorities from Petersen’s computer in a folder that was open to share files with any computer with which it was connected. Based on this record, the district court did not err in finding that Petersen committed distribution within the meaning of section 2G2.2(b)(3)(F). AFFIRMED.",
"3"
]
| https://www.courtlistener.com/api/rest/v3/opinions/216930/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
17 Ariz. App. 176 (1972) 496 P.2d 602 George D. KALAR, Appellant, v. M.S. MacCOLLUM and John Ricker, Appellees. No. 1 CA-CIV 1741. Court of Appeals of Arizona, Division 1, Department B. May 4, 1972. Rehearing Denied June 7, 1972. Review Denied July 13, 1972. George W. Oglesby, Phoenix, for appellant. O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Frank A. Parks, Phoenix, for appellee John Ricker. *177 Jennings, Strouss & Salmon by Nicholas Udall, Phoenix, for appellee M.S. Mac Collum. JACOBSON, Judge. In this medical malpractice appeal, we are asked to determine whether the plaintiff-patient sustained his burden of proving a standard of care which was violated by the defendants-doctors. Plaintiff, George C. Kalar, brought an action in medical malpractice against defendants, M.S. MacCollum and John Ricker, alleging that an operation performed by defendants on his right wrist which fused the bones in that wrist was unnecessary, that defendants incorrectly diagnosed his wrist condition and that the subsequent treatment thereof was improper. On November 8, 1966, plaintiff sustained an injury to his right wrist in attempting to remove a drain plug from an automobile differential. Since this injury occurred in the course and scope of plaintiff's employment, the injury was treated as industrial in nature under the jurisdiction of the Industrial Commission of Arizona. Following his injury, the plaintiff was treated by his personal physician who diagnosed his condition as synovitis (inflammation of the synovial membrane which lines the various joint cavities in the wrist). X-rays taken at this time failed to disclose any bone or joint pathology. Treatment by his personal physician consisted of an elastic support for the wrist and injections of cortisone. When plaintiff's condition did not improve, he was referred to the defendant, Doctor MacCollum, on January 20, 1967, who concurred in the diagnosis of synovitis and recommended the continuation of the cortisone injection. He further recommended that if the plaintiff did not improve, his wrist should be immobilized in a plaster cast for at least three weeks. The plaintiff's condition did not improve and the cast was applied by his own doctor. After the passage of three weeks, his own doctor removed the cast, but four days later the plaintiff complained the wrist was worse and at this point the case was transferred to Dr. MacCollum in its entirety. Dr. MacCollum's examination after the referral indicated the possibility of a fracture of the navicular bone in the wrist and reapplied a cast which the plaintiff wore for a period of approximately six weeks. After removal of the cast, Dr. MacCollum recommended that the plaintiff start gradual use of the wrist. Additional treatment by Dr. MacCollum resulted in little or no improvement, so on July 5, 1967, the plaintiff was referred to the "Hand Board" of the Industrial Commission. This board consists of physicians who specialize in the treatment of the hand, wrist and arm and who advise the Industrial Commission both as to treatment and as to degrees of disability resulting from injuries in this locality. The defendant Ricker was a member of this board and his first contact with the plaintiff was at this board examination. The board examined the plaintiff, reviewed previous X-rays, and recommended that further laboratory work be obtained and an anti-inflammatory drug be administered. At this time, the board considered the possibility that a fracture was present, but this was not conclusively established and the only definite diagnosis was that evidence of damage to the carpel area was present. Testimony at the time of trial indicated that the presence of a fracture of wrist is exceedingly difficult to ascertain from X-rays. Following the recommendation of the hand board, Dr. MacCollum continued to treat the plaintiff including the use of a plastic splint, until October 25, 1967, when the plaintiff was again examined by the hand board. The conclusion of the board, after examination, was that pathology existed in the navicular bone of the wrist, that the plaintiff had degenerative joint disease and that he suffered from synovitis. The board was unable to conclude, however, whether the pathology was the result of a fracture. Because of their findings, the board recommended exploratory surgery and depending upon the findings at that time, the removal of the synovium or a fusion of the wrist. *178 Surgery was performed by Dr. MacCollum, assisted by Dr. Ricker on November 14, 1967. The surgery revealed that the end of the navicular bone had died, necessitating the removal of the dead bone, and the fusion in its place of a piece of bone taken from the plaintiff's hip. This fusion was unsuccessful and two additional operations followed. In addition to the above facts, plaintiff at the time of trial produced a report from a radiologist who had examined the plaintiff's X-rays stating that, "I believe there is evidence of a chip fracture on the radial side of the proximal end of the navicular carpal." Plaintiff further produced the opinion of a general practitioner who had received X-rays of the plaintiff's wrist only, that based upon the X-rays alone a fusion of the writ was not in order. The only other medical testimony presented by the plaintiff, other than cross-examination of the defendant doctors, was that of a pathologist who testified that from bone samples left over after the fusion operation, he found no diseased bone. Plaintiff tried his case on the theory that in fact his wrist was fractured and that the defendants had not followed the standard of care of the profession in treatment of that fracture, resulting in the death of a portion of the bone. The only medical witness to testify as to a standard of care in the treatment of fracture was the defendant Dr. Ricker who admitted that he did not follow this standard, since in his opinion, no fracture was present. Dr. Ricker further testified this diagnosis was verified at the time of surgery. Dr. MacCollum also testified that the condition revealed by the exploratory surgery was not consistent with a fracture but was the result of an avascular necrosis of the navicular. The plaintiff presented no other medical testimony as to a standard of care. Following the close of plaintiff's case as to the liability, all defendants moved for a directed verdict which was granted by the trial court. This appeal followed. A doctor is not liable in negligence for his mere mistakes in judgment in the treatment of his patient, but is only liable where his treatment falls below the recognized standards of good medical practice. Almli v. Updegraff, 8 Ariz. App. 494, 447 P.2d 586 (1968). This rule is further conditioned upon the requirement that unless the conduct complained of by the doctor is readily ascertainable by laymen, the standard of care must be established by medical testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). As previously indicated, plaintiff based his case on the theory that he in fact suffered from a fractured wrist. Assuming that the evidence presented a jury question as to the existence of a fractured wrist (an assumption which, from our review of the evidence, would have to be classified as "vast"), the plaintiff had the threshold obligation of presenting medical evidence of a standard of care in diagnosing fractures and that the defendants fell below that standard in their diagnosis. The plaintiff's proof did not even clear this threshold hurdle. In fact the medical testimony was that fractures of the wrist are exceedingly difficult to diagnose from X-rays and that surgical exploration is preferable. This was the course followed in this case. The most that can be said of plaintiff's evidence is that it disclosed a suspicion of a fracture which was never verified. No testimony was presented to show that the treatment of a "suspected fracture" should be any different from that followed by the defendants. The plaintiff having failed to establish a standard of care in diagnosis and treatment of a wrist condition such as plaintiff's, he failed to establish a prima facie case of liability against the defendants and the trial court correctly directed a verdict in their favor. The judgment of the trial court is affirmed. HAIRE, C.J., and EUBANK, J., concur. | 10-30-2013 | [
"17 Ariz. App. 176 (1972) 496 P.2d 602 George D. KALAR, Appellant, v. M.S. MacCOLLUM and John Ricker, Appellees. No. 1 CA-CIV 1741. Court of Appeals of Arizona, Division 1, Department B. May 4, 1972. Rehearing Denied June 7, 1972. Review Denied July 13, 1972. George W. Oglesby, Phoenix, for appellant. O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Frank A. Parks, Phoenix, for appellee John Ricker. *177 Jennings, Strouss & Salmon by Nicholas Udall, Phoenix, for appellee M.S. Mac Collum. JACOBSON, Judge. In this medical malpractice appeal, we are asked to determine whether the plaintiff-patient sustained his burden of proving a standard of care which was violated by the defendants-doctors.",
"Plaintiff, George C. Kalar, brought an action in medical malpractice against defendants, M.S. MacCollum and John Ricker, alleging that an operation performed by defendants on his right wrist which fused the bones in that wrist was unnecessary, that defendants incorrectly diagnosed his wrist condition and that the subsequent treatment thereof was improper. On November 8, 1966, plaintiff sustained an injury to his right wrist in attempting to remove a drain plug from an automobile differential.",
"Since this injury occurred in the course and scope of plaintiff's employment, the injury was treated as industrial in nature under the jurisdiction of the Industrial Commission of Arizona. Following his injury, the plaintiff was treated by his personal physician who diagnosed his condition as synovitis (inflammation of the synovial membrane which lines the various joint cavities in the wrist). X-rays taken at this time failed to disclose any bone or joint pathology. Treatment by his personal physician consisted of an elastic support for the wrist and injections of cortisone. When plaintiff's condition did not improve, he was referred to the defendant, Doctor MacCollum, on January 20, 1967, who concurred in the diagnosis of synovitis and recommended the continuation of the cortisone injection.",
"He further recommended that if the plaintiff did not improve, his wrist should be immobilized in a plaster cast for at least three weeks. The plaintiff's condition did not improve and the cast was applied by his own doctor. After the passage of three weeks, his own doctor removed the cast, but four days later the plaintiff complained the wrist was worse and at this point the case was transferred to Dr. MacCollum in its entirety.",
"Dr. MacCollum's examination after the referral indicated the possibility of a fracture of the navicular bone in the wrist and reapplied a cast which the plaintiff wore for a period of approximately six weeks. After removal of the cast, Dr. MacCollum recommended that the plaintiff start gradual use of the wrist. Additional treatment by Dr. MacCollum resulted in little or no improvement, so on July 5, 1967, the plaintiff was referred to the \"Hand Board\" of the Industrial Commission. This board consists of physicians who specialize in the treatment of the hand, wrist and arm and who advise the Industrial Commission both as to treatment and as to degrees of disability resulting from injuries in this locality.",
"The defendant Ricker was a member of this board and his first contact with the plaintiff was at this board examination. The board examined the plaintiff, reviewed previous X-rays, and recommended that further laboratory work be obtained and an anti-inflammatory drug be administered. At this time, the board considered the possibility that a fracture was present, but this was not conclusively established and the only definite diagnosis was that evidence of damage to the carpel area was present. Testimony at the time of trial indicated that the presence of a fracture of wrist is exceedingly difficult to ascertain from X-rays. Following the recommendation of the hand board, Dr. MacCollum continued to treat the plaintiff including the use of a plastic splint, until October 25, 1967, when the plaintiff was again examined by the hand board. The conclusion of the board, after examination, was that pathology existed in the navicular bone of the wrist, that the plaintiff had degenerative joint disease and that he suffered from synovitis. The board was unable to conclude, however, whether the pathology was the result of a fracture.",
"Because of their findings, the board recommended exploratory surgery and depending upon the findings at that time, the removal of the synovium or a fusion of the wrist. *178 Surgery was performed by Dr. MacCollum, assisted by Dr. Ricker on November 14, 1967. The surgery revealed that the end of the navicular bone had died, necessitating the removal of the dead bone, and the fusion in its place of a piece of bone taken from the plaintiff's hip. This fusion was unsuccessful and two additional operations followed. In addition to the above facts, plaintiff at the time of trial produced a report from a radiologist who had examined the plaintiff's X-rays stating that, \"I believe there is evidence of a chip fracture on the radial side of the proximal end of the navicular carpal.\" Plaintiff further produced the opinion of a general practitioner who had received X-rays of the plaintiff's wrist only, that based upon the X-rays alone a fusion of the writ was not in order.",
"The only other medical testimony presented by the plaintiff, other than cross-examination of the defendant doctors, was that of a pathologist who testified that from bone samples left over after the fusion operation, he found no diseased bone. Plaintiff tried his case on the theory that in fact his wrist was fractured and that the defendants had not followed the standard of care of the profession in treatment of that fracture, resulting in the death of a portion of the bone. The only medical witness to testify as to a standard of care in the treatment of fracture was the defendant Dr. Ricker who admitted that he did not follow this standard, since in his opinion, no fracture was present.",
"Dr. Ricker further testified this diagnosis was verified at the time of surgery. Dr. MacCollum also testified that the condition revealed by the exploratory surgery was not consistent with a fracture but was the result of an avascular necrosis of the navicular. The plaintiff presented no other medical testimony as to a standard of care. Following the close of plaintiff's case as to the liability, all defendants moved for a directed verdict which was granted by the trial court.",
"This appeal followed. A doctor is not liable in negligence for his mere mistakes in judgment in the treatment of his patient, but is only liable where his treatment falls below the recognized standards of good medical practice. Almli v. Updegraff, 8 Ariz. App. 494, 447 P.2d 586 (1968). This rule is further conditioned upon the requirement that unless the conduct complained of by the doctor is readily ascertainable by laymen, the standard of care must be established by medical testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).",
"As previously indicated, plaintiff based his case on the theory that he in fact suffered from a fractured wrist. Assuming that the evidence presented a jury question as to the existence of a fractured wrist (an assumption which, from our review of the evidence, would have to be classified as \"vast\"), the plaintiff had the threshold obligation of presenting medical evidence of a standard of care in diagnosing fractures and that the defendants fell below that standard in their diagnosis. The plaintiff's proof did not even clear this threshold hurdle. In fact the medical testimony was that fractures of the wrist are exceedingly difficult to diagnose from X-rays and that surgical exploration is preferable.",
"This was the course followed in this case. The most that can be said of plaintiff's evidence is that it disclosed a suspicion of a fracture which was never verified. No testimony was presented to show that the treatment of a \"suspected fracture\" should be any different from that followed by the defendants. The plaintiff having failed to establish a standard of care in diagnosis and treatment of a wrist condition such as plaintiff's, he failed to establish a prima facie case of liability against the defendants and the trial court correctly directed a verdict in their favor. The judgment of the trial court is affirmed. HAIRE, C.J., and EUBANK, J., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1170663/ | 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 Remarks/Arguments and amended claims, filed 09/27/2022, with respect to claims 78-94, have been fully considered and Applicant' s remarks will be addressed in sequential order as they were presented. Regarding Objection to Drawings, the applicant’s response has been fully considered and the Objection to Drawings is withdrawn. Examiners Note: The drawing documents within this application are labeled “Drawings-other than black and white line drawings.” Applicant is encouraged to review all paragraphs in MPEP 507 – Drawing Review in the Office of Application Processing (OPAP). Although the Objection to Drawings is withdrawn by the Examiner, the drawings can be rejected in the future by OPAP based upon the grayscale “Drawings-other than black and white line drawings.” Regarding Rejections under 35 U.S.C. 112(b), the applicant' s response has been fully considered and is persuasive. Therefore, the Rejections under 35 U.S.C. 112(b) are withdrawn. Regarding Rejections under 35 USC § 101, the applicant' s response has been fully considered and the Office respectfully disagrees. According to 2019 Revised Patent Subject Matter Eligibility Guidance, the Office has established a broadest reasonable interpretation of claims 78 and 92 to be a system process for vehicle navigation. The system process for vehicle navigation is included within the statutory categories under step 1 of the claim evaluation. The language of claims 78 and 92 are further analyzed under step 2A, prong 1 by the Examiner as an abstract idea of a mental process (observation, evaluation, judgment, opinion) that can be performed in the human mind, or by a human using a pen and paper. Under broadest reasonable interpretation, a system processor (e.g. server) receives “location identifier” data. This data, associated with the vehicle environment, is collected by “a first vehicle” processing unit and transmitted to the server. In relation to a mental process, a human visually collects the environment of a vehicle in which the human is a driver/passenger and records the location of navigation features relative to the vehicle (i.e. location identifier) the features including lateral features such as lane marks, road edges, curbs, road barriers, and the like. Furthermore, the server updates a “road navigation model for the road segment” using the collected data from the “first vehicle,” and transmits the updated “road navigation model to a plurality of autonomous vehicles.” The human mind continuously updates the vehicle location in relation to the lane marks, road edges, curbs, road barriers, and the like in order to navigate the vehicle in a safe manner according to the features. In addition, the driver/passenger can communicate the features to any of a plurality of vehicles verbally, or by gestures, or other communication. For example, the driver/passenger visually recognizes (receives), lateral lane marks, road edges, curbs, road barriers, and the like and recalls lateral lane marks, road edges, curbs, road barriers, and the like as an indication that a lane is narrowing/ending (updates). The driver/passenger takes action to communicate the intended vehicle navigation by actuating a vehicle turn signal or indicating by hand gesture (transmits), a lane change or turn to a perpendicular lane/driveway to a plurality of vehicles. Therefore, under broadest reasonable interpretation, the server computer system receives data processed and transmitted from the computer processor of the “first vehicle,” the server computer updates the received data, and the server computer transmits the updated data to a plurality of vehicle computer processors. Simply stated, the server receives, updates, and transmits data, and a driver/passenger is capable of the same using mental processes. The language of claims 78 and 92 are further analyzed under step 2A, prong 2 by the Examiner. It is clear that vehicles are configured to navigate using the updated data. However, the claims do not recite significantly more than the judicial exception(s). Although the vehicles disclosed are configured to use the updated data to navigate, the inventive concept of claim 78 uses computer system(s) and the inventive concept of claim 92 is the methods of the computer system(s). These computers in communication with the vehicle(s) computer send and receive the data and are interpreted as general purpose computer(s) that applies a judicial exception, such as an abstract idea, by use of conventional computer functions and the computer does not qualify as a particular machine, see Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 716-17, 112 USPQ2d 1750, 1755-56 (Fed. Cir. 2014). See also TLI Communications LLC v. AV Automotive LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016). In addition, the vehicle(s) must be defined within the independent claims using limitations such as linking the claimed subject matter to a non-generic device and controlling a vehicle with a script. More specifically, claims 78 and 92 must include limitations such as using a processing unit which is on a vehicle which is either integrated with or separate from a control unit to control aspects of vehicle navigation, such as steering, braking, or acceleration of the vehicle using the updated data received from the server computer. Limitations such as these suggested above would further bring the claimed subject matter out of the realm of abstract idea and into the realm of a statutory category. Regarding Rejections under 35 U.S.C. 102, and the remarks, “identifying free space boundaries, which may correspond to road edges, however, does not constitute “updating an autonomous vehicle road navigation model for the road segment to include the mapped representation of the lateral region of free space based on the received one or more location identifiers,” and “this also fails to teach that “at least one of the autonomous vehicles being configured to autonomously navigate based on the mapped representation of the lateral region of free space included in the updated autonomous vehicle road navigation model,” the argument is persuasive. Therefore, the Rejections under 35 U.S.C. 102 is withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of newly found prior art reference(s) HUVAL, US 20180373980, and previously disclosed prior art reference(s) SHASHUA and YANG. The grounds for rejection in view of amended claims are provided below. Status of Application Claims 78, 79, 81-93, 95-107, 154, and 155 are pending. Claims 95-107 have been withdrawn from consideration. Claims 1-77, 80 and 94 have been cancelled. Claims 154, and 155 have been added. Claims 78, 79, 81-93, 154, and 155 will be examined. Claims 78 and 92 are independent claims. This Final Office action is in response to the “Amendments and Remarks” dated 09/27/2022. Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 78, and 81-92 are rejected under 35 U.S.C. 103 as being unpatentable over SHASHUA et al., US 20170010618, herein further known as Shashua, in view of HUVAL, US 201803739808, herein further known as Huval. Regarding claim 78, Shashua discloses a system (paragraphs [0016], [0020], server) for mapping road segment (paragraph [0498]) free spaces (paragraphs [0009], navigate based on a free space determination, [0597], recognized landmarks, navigate based on a free space determination) for use in autonomous vehicle navigation (paragraphs [0009], [0043]), the system (paragraphs [0016], [0020], server) comprising: at least one processor (paragraph [0020]) programmed to: receive from a first vehicle (paragraph [0020]) one or more location identifiers (paragraphs [0929-0930], [0934], [0950] vehicle sends to server navigational situation information, [0344], [0655-0657] identify road marks, landmarks, derive lane geometry, see also at least Figs 5A-5C, and steps 550-556 (wherein landmark includes; road marking [0027], lane marking [0017], road edge [0079], a change in line pattern on a road [0079] ) associated with a lateral region (paragraph [0893], calculate lateral distance, paragraph [0822], non-road area 6410, sidewalk 6412, see also at least FIG. 64) of free space (paragraph [0086-0090] free space boundary on driver/passenger side of the vehicle, and paragraph [0599], landmark, observable characteristic) adjacent to a road segment (paragraph [0856]); update an autonomous vehicle road navigation model for the road segment (paragraph [0026], [0028]) of free space (paragraph [0086-0090]) based on the received one or more location identifiers (paragraph [0026], [0028], [0030]); and distribute the updated autonomous vehicle road navigation model to a plurality of autonomous vehicles (paragraph [0026], [0539]). However, Shashua does not explicitly state a mapped representation of the lateral region and at least one of the autonomous vehicles being configured to autonomously navigate based on the mapped representation included in the updated autonomous vehicle road navigation model. Huval teaches a mapped representation of the lateral region (paragraphs [0017-0018]) and at least one of the autonomous vehicles (paragraph [0019]) being configured to autonomously navigate (paragraph [0098]) based on the mapped representation (paragraph [0016], navigation map) included in the updated autonomous vehicle road navigation model (paragraph [0098]). It would have been obvious to person of ordinary skill in the art at the time the invention was filed to modify Shashua by including a mapped representation of the lateral region and at least one of the autonomous vehicles being configured to autonomously navigate based on the mapped representation included in the updated autonomous vehicle road navigation model as taught by Huval. One would be motivated to modify Shashua in view of Huval for the reasons stated in Huval paragraph [0011], a more robust system which may exhibit effectiveness and accuracy in identifying localization, perception, and/or navigational features in optical data. Furthermore, the remote computer system can also cooperate with the local vehicle computer system to provide automated tools to the human annotator to improve accuracy and speed at which the human annotator may label optical images, thereby further reducing cost per label. Additionally, the claimed invention is merely a combination of known elements of autonomous vehicles, autonomous navigation, and more specifically training and refining an artificial intelligence in the field of autonomous vehicles, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art before the effective filing date of the claimed invention would have recognized that the results of the combination would have been predictable. Regarding claim 81, the combination of Shashua and Huval disclose all elements of claim 78 above. Shashua further discloses the at least one processor (paragraph [0018]) is further programmed to receive an additional characteristic (paragraph [0108], [0110], [0112]) associated with the lateral free space (paragraph [0822], non-road area 6410, sidewalk 6412, see also at least FIG. 64) and paragraph [0086-0090] free space boundary on driver/passenger side of the vehicle, and paragraph [0599], landmark, observable characteristic) adjacent to the road segment (paragraph [0856]). Regarding claim 82, the combination of Shashua and Huval disclose all elements of claim 81 above. Shashua further discloses the additional characteristic includes a free space type indicator (paragraph [857], free space boundary curves or lines). Regarding claim 83, the combination of Shashua and Huval disclose all elements of claim 82 above. Shashua further discloses the free space type indicator (paragraph [857], free space boundary curves or lines) includes at least one of a sidewalk (paragraph [0841], [0844], see also at least FIG. 67). Regarding claim 84, the combination of Shashua and Huval disclose all elements of claim 81 above. Shashua further discloses the additional characteristic (paragraph [0400], [0526], [0536]) is received from the first vehicle (paragraph [0403]). Regarding claim 85, the combination of Shashua and Huval disclose all elements of claim 78 above. Shashua further discloses the mapped representation (paragraph [0011-0013], [0027], [0056]) of the lateral region (paragraph [0822], non-road area 6410, sidewalk 6412, see also at least FIG. 64) of free space (paragraph [0086-0090], and paragraph [0599], landmark, observable characteristic) includes location information (paragraph [0378]) associated with one or more detected boundaries (paragraph [0837]) of the lateral region (paragraph [0822], non-road area 6410, sidewalk 6412, see also at least FIG. 64) of free space (paragraph [0086-0090]). Regarding claim 86, the combination of Shashua and Huval disclose all elements of claim 85 above. Shashua further discloses the mapped representation (paragraph [0011-0013], [0027], [0056]) of the lateral region (paragraph [0822], non-road area 6410, sidewalk 6412, see also at least FIG. 64) of free space (paragraph [0086-0090], and paragraph [0599], landmark, observable characteristic) further includes a free space type indicator (paragraph [857], free space boundary curves or lines). Regarding claim 87, the combination of Shashua and Huval disclose all elements of claim 86 above. Shashua further discloses the free space type indicator (paragraph [857], free space boundary curves or lines) includes at least one of a sidewalk (paragraph [0841], [0844], see also at least FIG. 67). Regarding claim 88, the combination of Shashua and Huval disclose all elements of claim 78 above. Shashua further discloses the autonomous vehicle road navigation model further includes at least one target trajectory for a vehicle to follow along the road segment (paragraph [0017]). Regarding claim 89, the combination of Shashua and Huval disclose all elements of claim 88 above. Shashua further discloses the at least one target trajectory is represented by a three-dimensional spline (paragraph [0017]). Regarding claim 90, the combination of Shashua and Huval disclose all elements of claim 78 above. Shashua further discloses the one or more location identifiers (paragraph [0026], [0028], [0030]) associated the lateral region (paragraph [0822], non-road area 6410, sidewalk 6412, see also at least FIG. 64) of free space (paragraph [0086-0090] free space boundary on driver/passenger side of the vehicle, and paragraph [0599], landmark, observable characteristic) include one or more points or lines associated with a detected boundary (paragraph [857], free space boundary curves or lines) of the (paragraph [0822], non-road area 6410, sidewalk 6412, see also at least FIG. 64) of free space (paragraph [0086-0090] free space boundary on driver/passenger side of the vehicle, and paragraph [0599], landmark, observable characteristic). Regarding claim 91, the combination of Shashua and Huval disclose all elements of claim 78 above. Shashua further discloses the at least one processor (paragraph [0018]) is further programmed to: receive from a second vehicle (paragraph [0403]) one or more location identifiers (paragraph [0026], [0028], [0030]) associated the (paragraph [0822], non-road area 6410, sidewalk 6412, see also at least FIG. 64) of free space (paragraph [0086-0090] free space boundary on driver/passenger side of the vehicle, and paragraph [0599], landmark, observable characteristic) adjacent to the road segment (paragraph [0856]); and update the autonomous vehicle road navigation model (paragraph [0018], [0021], [0026]) for the road segment (paragraph [0021]) to include a refined mapped representation (paragraph [0589]) of the lateral region (paragraph [0822], non-road area 6410, sidewalk 6412, see also at least FIG. 64) of free space (paragraph [0086-0090] free space boundary on driver/passenger side of the vehicle, and paragraph [0599], landmark, observable characteristic), wherein the refined mapped representation (paragraph [0589]) of the lateral region (paragraph [0822], non-road area 6410, sidewalk 6412, see also at least FIG. 64) of free space (paragraph [0086-0090] free space boundary on driver/passenger side of the vehicle, and paragraph [0599], landmark, observable characteristic) is based on the one or more location identifiers (paragraph [0026], [0028], [0030]) received from the first vehicle (paragraph [0403]) and the one or more location identifiers (paragraph [0026], [0028], [0030]) received from the second vehicle (paragraph [0403]). Regarding claim 92, all limitations have been examined with respect to the system in claim 78. The method/steps taught/disclosed in claim 92 can clearly perform on the system of claim 92. Therefore, claim 92 is rejected under the same rationale as claim 78 above. Regarding claim 154, the combination of Shashua and Huval disclose all elements of claim 88 above. Shashua discloses further at least one target trajectory (paragraphs [0014-0017]). However, Shashua does not explicitly state trajectory is adjacent to the lateral region of free space. Huval teaches trajectory is adjacent (paragraph [0018], autonomously localize static objects such as lane markers, lane reflectors, curbs and navigate to destination (wherein at least curbs are known to be adjacent to lane of travel)) to the lateral region of free space (paragraphs [0017-0018]). It would have been obvious to person of ordinary skill in the art at the time the invention was filed to modify Shashua by including a mapped representation of the lateral region and at least one of the autonomous vehicles being configured to autonomously navigate based on the mapped representation included in the updated autonomous vehicle road navigation model as taught by Huval. One would be motivated to modify Shashua in view of Huval for the reasons stated in Huval paragraph [0011], a more robust system which may exhibit effectiveness and accuracy in identifying localization, perception, and/or navigational features in optical data. Furthermore, the remote computer system can also cooperate with the local vehicle computer system to provide automated tools to the human annotator to improve accuracy and speed at which the human annotator may label optical images, thereby further reducing cost per label. Additionally, the claimed invention is merely a combination of known elements of autonomous vehicles, autonomous navigation, and more specifically training and refining an artificial intelligence in the field of autonomous vehicles, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art before the effective filing date of the claimed invention would have recognized that the results of the combination would have been predictable. Regarding claim 155, the combination of Shashua and Huval disclose all elements of claim 88 above. Shashua discloses further at least one target trajectory intersects the region (paragraph [0622]) of free space (paragraph [0086-0090]). However, Shashua does not explicitly state the lateral region. Huval teaches the lateral region (paragraphs [0017-0018]). It would have been obvious to person of ordinary skill in the art at the time the invention was filed to modify Shashua by including the lateral region as taught by Huval. One would be motivated to modify Shashua in view of Huval for the reasons stated in Huval paragraph [0011], a more robust system which may exhibit effectiveness and accuracy in identifying localization, perception, and/or navigational features in optical data. Furthermore, the remote computer system can also cooperate with the local vehicle computer system to provide automated tools to the human annotator to improve accuracy and speed at which the human annotator may label optical images, thereby further reducing cost per label. Additionally, the claimed invention is merely a combination of known elements of autonomous vehicles, autonomous navigation, and more specifically training and refining an artificial intelligence in the field of autonomous vehicles, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art before the effective filing date of the claimed invention would have recognized that the results of the combination would have been predictable. Claims 79 and 93 are rejected under 35 U.S.C. 103 as being unpatentable over the combination of Shashua and Huval, in view of YANG et al., US 20180189578, herein further known as Yang. Regarding claim 79, the combination of Shashua and Huval disclose all elements of claim 78 above. Shashua further discloses the lateral region of free space includes a sidewalk (paragraph [0822], non-road area 6410, sidewalk 6412, see also at least FIG. 64). However, Shashua does not explicitly state one or more of a driveway intersecting the road segment, or a parking lot. Yang teaches one or more of a driveway intersecting the road segment, or a parking lot (paragraph [0101], navigable space(s), and paragraph [0224], driveway, parking lot). It would have been obvious to person of ordinary skill in the art at the time the invention was filed to modify Shashua by including one or more of a driveway intersecting the road segment, or a parking lot as taught by Yang. One would be motivated to modify Shashua in view of Yang for the reasons stated in Yang paragraph [0005], a more robust system for maintaining maps to provide the right data that is sufficiently accurate and up-to date for safe navigation of autonomous vehicles. Furthermore, the more robust system reduces a need for survey teams and specially fitted cars which reduces costs and time to create the maps. Additionally, the claimed invention is merely a combination of known elements of mapping for autonomous vehicles, and more particularly to providing high definition maps with high precision and up-to-date map data to autonomous vehicles for safe navigation, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art before the effective filing date of the claimed invention would have recognized that the results of the combination would have been predictable. Regarding claim 93, all limitations have been examined with respect to the system in claim 79. The method/steps taught/disclosed in claim 93 can clearly perform on the system of claim 79. Therefore, claim 93 is rejected under the same rationale as claim 79 above. Conclusion Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Terry Buse whose telephone number is (313)446-6647. The examiner can normally be reached Monday - Friday 7-5PM 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, John Olszewski can be reached on (571) 272-2706. 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.
/T.C.B./ Examiner, Art Unit 3669
/JESS WHITTINGTON/ Examiner, Art Unit 3669 | 2022-10-15T16:58:59 | [
"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 . Response to Arguments Applicant’s Remarks/Arguments and amended claims, filed 09/27/2022, with respect to claims 78-94, have been fully considered and Applicant' s remarks will be addressed in sequential order as they were presented. Regarding Objection to Drawings, the applicant’s response has been fully considered and the Objection to Drawings is withdrawn. Examiners Note: The drawing documents within this application are labeled “Drawings-other than black and white line drawings.” Applicant is encouraged to review all paragraphs in MPEP 507 – Drawing Review in the Office of Application Processing (OPAP). Although the Objection to Drawings is withdrawn by the Examiner, the drawings can be rejected in the future by OPAP based upon the grayscale “Drawings-other than black and white line drawings.” Regarding Rejections under 35 U.S.C. 112(b), the applicant' s response has been fully considered and is persuasive.",
"Therefore, the Rejections under 35 U.S.C. 112(b) are withdrawn. Regarding Rejections under 35 USC § 101, the applicant' s response has been fully considered and the Office respectfully disagrees. According to 2019 Revised Patent Subject Matter Eligibility Guidance, the Office has established a broadest reasonable interpretation of claims 78 and 92 to be a system process for vehicle navigation. The system process for vehicle navigation is included within the statutory categories under step 1 of the claim evaluation. The language of claims 78 and 92 are further analyzed under step 2A, prong 1 by the Examiner as an abstract idea of a mental process (observation, evaluation, judgment, opinion) that can be performed in the human mind, or by a human using a pen and paper. Under broadest reasonable interpretation, a system processor (e.g. server) receives “location identifier” data. This data, associated with the vehicle environment, is collected by “a first vehicle” processing unit and transmitted to the server.",
"In relation to a mental process, a human visually collects the environment of a vehicle in which the human is a driver/passenger and records the location of navigation features relative to the vehicle (i.e. location identifier) the features including lateral features such as lane marks, road edges, curbs, road barriers, and the like. Furthermore, the server updates a “road navigation model for the road segment” using the collected data from the “first vehicle,” and transmits the updated “road navigation model to a plurality of autonomous vehicles.” The human mind continuously updates the vehicle location in relation to the lane marks, road edges, curbs, road barriers, and the like in order to navigate the vehicle in a safe manner according to the features. In addition, the driver/passenger can communicate the features to any of a plurality of vehicles verbally, or by gestures, or other communication.",
"For example, the driver/passenger visually recognizes (receives), lateral lane marks, road edges, curbs, road barriers, and the like and recalls lateral lane marks, road edges, curbs, road barriers, and the like as an indication that a lane is narrowing/ending (updates). The driver/passenger takes action to communicate the intended vehicle navigation by actuating a vehicle turn signal or indicating by hand gesture (transmits), a lane change or turn to a perpendicular lane/driveway to a plurality of vehicles. Therefore, under broadest reasonable interpretation, the server computer system receives data processed and transmitted from the computer processor of the “first vehicle,” the server computer updates the received data, and the server computer transmits the updated data to a plurality of vehicle computer processors.",
"Simply stated, the server receives, updates, and transmits data, and a driver/passenger is capable of the same using mental processes. The language of claims 78 and 92 are further analyzed under step 2A, prong 2 by the Examiner. It is clear that vehicles are configured to navigate using the updated data. However, the claims do not recite significantly more than the judicial exception(s). Although the vehicles disclosed are configured to use the updated data to navigate, the inventive concept of claim 78 uses computer system(s) and the inventive concept of claim 92 is the methods of the computer system(s). These computers in communication with the vehicle(s) computer send and receive the data and are interpreted as general purpose computer(s) that applies a judicial exception, such as an abstract idea, by use of conventional computer functions and the computer does not qualify as a particular machine, see Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 716-17, 112 USPQ2d 1750, 1755-56 (Fed.",
"Cir. 2014). See also TLI Communications LLC v. AV Automotive LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016). In addition, the vehicle(s) must be defined within the independent claims using limitations such as linking the claimed subject matter to a non-generic device and controlling a vehicle with a script. More specifically, claims 78 and 92 must include limitations such as using a processing unit which is on a vehicle which is either integrated with or separate from a control unit to control aspects of vehicle navigation, such as steering, braking, or acceleration of the vehicle using the updated data received from the server computer. Limitations such as these suggested above would further bring the claimed subject matter out of the realm of abstract idea and into the realm of a statutory category. Regarding Rejections under 35 U.S.C.",
"102, and the remarks, “identifying free space boundaries, which may correspond to road edges, however, does not constitute “updating an autonomous vehicle road navigation model for the road segment to include the mapped representation of the lateral region of free space based on the received one or more location identifiers,” and “this also fails to teach that “at least one of the autonomous vehicles being configured to autonomously navigate based on the mapped representation of the lateral region of free space included in the updated autonomous vehicle road navigation model,” the argument is persuasive. Therefore, the Rejections under 35 U.S.C.",
"102 is withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of newly found prior art reference(s) HUVAL, US 20180373980, and previously disclosed prior art reference(s) SHASHUA and YANG. The grounds for rejection in view of amended claims are provided below. Status of Application Claims 78, 79, 81-93, 95-107, 154, and 155 are pending. Claims 95-107 have been withdrawn from consideration. Claims 1-77, 80 and 94 have been cancelled. Claims 154, and 155 have been added. Claims 78, 79, 81-93, 154, and 155 will be examined. Claims 78 and 92 are independent claims. This Final Office action is in response to the “Amendments and Remarks” dated 09/27/2022. Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C.",
"102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.",
"Patentability shall not be negated by the manner in which the invention was made. Claims 78, and 81-92 are rejected under 35 U.S.C. 103 as being unpatentable over SHASHUA et al., US 20170010618, herein further known as Shashua, in view of HUVAL, US 201803739808, herein further known as Huval. Regarding claim 78, Shashua discloses a system (paragraphs [0016], [0020], server) for mapping road segment (paragraph [0498]) free spaces (paragraphs [0009], navigate based on a free space determination, [0597], recognized landmarks, navigate based on a free space determination) for use in autonomous vehicle navigation (paragraphs [0009], [0043]), the system (paragraphs [0016], [0020], server) comprising: at least one processor (paragraph [0020]) programmed to: receive from a first vehicle (paragraph [0020]) one or more location identifiers (paragraphs [0929-0930], [0934], [0950] vehicle sends to server navigational situation information, [0344], [0655-0657] identify road marks, landmarks, derive lane geometry, see also at least Figs 5A-5C, and steps 550-556 (wherein landmark includes; road marking [0027], lane marking [0017], road edge [0079], a change in line pattern on a road [0079] ) associated with a lateral region (paragraph [0893], calculate lateral distance, paragraph [0822], non-road area 6410, sidewalk 6412, see also at least FIG.",
"64) of free space (paragraph [0086-0090] free space boundary on driver/passenger side of the vehicle, and paragraph [0599], landmark, observable characteristic) adjacent to a road segment (paragraph [0856]); update an autonomous vehicle road navigation model for the road segment (paragraph [0026], [0028]) of free space (paragraph [0086-0090]) based on the received one or more location identifiers (paragraph [0026], [0028], [0030]); and distribute the updated autonomous vehicle road navigation model to a plurality of autonomous vehicles (paragraph [0026], [0539]). However, Shashua does not explicitly state a mapped representation of the lateral region and at least one of the autonomous vehicles being configured to autonomously navigate based on the mapped representation included in the updated autonomous vehicle road navigation model. Huval teaches a mapped representation of the lateral region (paragraphs [0017-0018]) and at least one of the autonomous vehicles (paragraph [0019]) being configured to autonomously navigate (paragraph [0098]) based on the mapped representation (paragraph [0016], navigation map) included in the updated autonomous vehicle road navigation model (paragraph [0098]).",
"It would have been obvious to person of ordinary skill in the art at the time the invention was filed to modify Shashua by including a mapped representation of the lateral region and at least one of the autonomous vehicles being configured to autonomously navigate based on the mapped representation included in the updated autonomous vehicle road navigation model as taught by Huval. One would be motivated to modify Shashua in view of Huval for the reasons stated in Huval paragraph [0011], a more robust system which may exhibit effectiveness and accuracy in identifying localization, perception, and/or navigational features in optical data. Furthermore, the remote computer system can also cooperate with the local vehicle computer system to provide automated tools to the human annotator to improve accuracy and speed at which the human annotator may label optical images, thereby further reducing cost per label. Additionally, the claimed invention is merely a combination of known elements of autonomous vehicles, autonomous navigation, and more specifically training and refining an artificial intelligence in the field of autonomous vehicles, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art before the effective filing date of the claimed invention would have recognized that the results of the combination would have been predictable.",
"Regarding claim 81, the combination of Shashua and Huval disclose all elements of claim 78 above. Shashua further discloses the at least one processor (paragraph [0018]) is further programmed to receive an additional characteristic (paragraph [0108], [0110], [0112]) associated with the lateral free space (paragraph [0822], non-road area 6410, sidewalk 6412, see also at least FIG. 64) and paragraph [0086-0090] free space boundary on driver/passenger side of the vehicle, and paragraph [0599], landmark, observable characteristic) adjacent to the road segment (paragraph [0856]). Regarding claim 82, the combination of Shashua and Huval disclose all elements of claim 81 above. Shashua further discloses the additional characteristic includes a free space type indicator (paragraph [857], free space boundary curves or lines). Regarding claim 83, the combination of Shashua and Huval disclose all elements of claim 82 above.",
"Shashua further discloses the free space type indicator (paragraph [857], free space boundary curves or lines) includes at least one of a sidewalk (paragraph [0841], [0844], see also at least FIG. 67). Regarding claim 84, the combination of Shashua and Huval disclose all elements of claim 81 above. Shashua further discloses the additional characteristic (paragraph [0400], [0526], [0536]) is received from the first vehicle (paragraph [0403]). Regarding claim 85, the combination of Shashua and Huval disclose all elements of claim 78 above. Shashua further discloses the mapped representation (paragraph [0011-0013], [0027], [0056]) of the lateral region (paragraph [0822], non-road area 6410, sidewalk 6412, see also at least FIG. 64) of free space (paragraph [0086-0090], and paragraph [0599], landmark, observable characteristic) includes location information (paragraph [0378]) associated with one or more detected boundaries (paragraph [0837]) of the lateral region (paragraph [0822], non-road area 6410, sidewalk 6412, see also at least FIG. 64) of free space (paragraph [0086-0090]). Regarding claim 86, the combination of Shashua and Huval disclose all elements of claim 85 above.",
"Shashua further discloses the mapped representation (paragraph [0011-0013], [0027], [0056]) of the lateral region (paragraph [0822], non-road area 6410, sidewalk 6412, see also at least FIG. 64) of free space (paragraph [0086-0090], and paragraph [0599], landmark, observable characteristic) further includes a free space type indicator (paragraph [857], free space boundary curves or lines). Regarding claim 87, the combination of Shashua and Huval disclose all elements of claim 86 above. Shashua further discloses the free space type indicator (paragraph [857], free space boundary curves or lines) includes at least one of a sidewalk (paragraph [0841], [0844], see also at least FIG. 67). Regarding claim 88, the combination of Shashua and Huval disclose all elements of claim 78 above. Shashua further discloses the autonomous vehicle road navigation model further includes at least one target trajectory for a vehicle to follow along the road segment (paragraph [0017]). Regarding claim 89, the combination of Shashua and Huval disclose all elements of claim 88 above. Shashua further discloses the at least one target trajectory is represented by a three-dimensional spline (paragraph [0017]). Regarding claim 90, the combination of Shashua and Huval disclose all elements of claim 78 above.",
"Shashua further discloses the one or more location identifiers (paragraph [0026], [0028], [0030]) associated the lateral region (paragraph [0822], non-road area 6410, sidewalk 6412, see also at least FIG. 64) of free space (paragraph [0086-0090] free space boundary on driver/passenger side of the vehicle, and paragraph [0599], landmark, observable characteristic) include one or more points or lines associated with a detected boundary (paragraph [857], free space boundary curves or lines) of the (paragraph [0822], non-road area 6410, sidewalk 6412, see also at least FIG. 64) of free space (paragraph [0086-0090] free space boundary on driver/passenger side of the vehicle, and paragraph [0599], landmark, observable characteristic). Regarding claim 91, the combination of Shashua and Huval disclose all elements of claim 78 above.",
"Shashua further discloses the at least one processor (paragraph [0018]) is further programmed to: receive from a second vehicle (paragraph [0403]) one or more location identifiers (paragraph [0026], [0028], [0030]) associated the (paragraph [0822], non-road area 6410, sidewalk 6412, see also at least FIG. 64) of free space (paragraph [0086-0090] free space boundary on driver/passenger side of the vehicle, and paragraph [0599], landmark, observable characteristic) adjacent to the road segment (paragraph [0856]); and update the autonomous vehicle road navigation model (paragraph [0018], [0021], [0026]) for the road segment (paragraph [0021]) to include a refined mapped representation (paragraph [0589]) of the lateral region (paragraph [0822], non-road area 6410, sidewalk 6412, see also at least FIG. 64) of free space (paragraph [0086-0090] free space boundary on driver/passenger side of the vehicle, and paragraph [0599], landmark, observable characteristic), wherein the refined mapped representation (paragraph [0589]) of the lateral region (paragraph [0822], non-road area 6410, sidewalk 6412, see also at least FIG. 64) of free space (paragraph [0086-0090] free space boundary on driver/passenger side of the vehicle, and paragraph [0599], landmark, observable characteristic) is based on the one or more location identifiers (paragraph [0026], [0028], [0030]) received from the first vehicle (paragraph [0403]) and the one or more location identifiers (paragraph [0026], [0028], [0030]) received from the second vehicle (paragraph [0403]).",
"Regarding claim 92, all limitations have been examined with respect to the system in claim 78. The method/steps taught/disclosed in claim 92 can clearly perform on the system of claim 92. Therefore, claim 92 is rejected under the same rationale as claim 78 above. Regarding claim 154, the combination of Shashua and Huval disclose all elements of claim 88 above. Shashua discloses further at least one target trajectory (paragraphs [0014-0017]). However, Shashua does not explicitly state trajectory is adjacent to the lateral region of free space. Huval teaches trajectory is adjacent (paragraph [0018], autonomously localize static objects such as lane markers, lane reflectors, curbs and navigate to destination (wherein at least curbs are known to be adjacent to lane of travel)) to the lateral region of free space (paragraphs [0017-0018]). It would have been obvious to person of ordinary skill in the art at the time the invention was filed to modify Shashua by including a mapped representation of the lateral region and at least one of the autonomous vehicles being configured to autonomously navigate based on the mapped representation included in the updated autonomous vehicle road navigation model as taught by Huval.",
"One would be motivated to modify Shashua in view of Huval for the reasons stated in Huval paragraph [0011], a more robust system which may exhibit effectiveness and accuracy in identifying localization, perception, and/or navigational features in optical data. Furthermore, the remote computer system can also cooperate with the local vehicle computer system to provide automated tools to the human annotator to improve accuracy and speed at which the human annotator may label optical images, thereby further reducing cost per label. Additionally, the claimed invention is merely a combination of known elements of autonomous vehicles, autonomous navigation, and more specifically training and refining an artificial intelligence in the field of autonomous vehicles, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art before the effective filing date of the claimed invention would have recognized that the results of the combination would have been predictable. Regarding claim 155, the combination of Shashua and Huval disclose all elements of claim 88 above. Shashua discloses further at least one target trajectory intersects the region (paragraph [0622]) of free space (paragraph [0086-0090]).",
"However, Shashua does not explicitly state the lateral region. Huval teaches the lateral region (paragraphs [0017-0018]). It would have been obvious to person of ordinary skill in the art at the time the invention was filed to modify Shashua by including the lateral region as taught by Huval. One would be motivated to modify Shashua in view of Huval for the reasons stated in Huval paragraph [0011], a more robust system which may exhibit effectiveness and accuracy in identifying localization, perception, and/or navigational features in optical data. Furthermore, the remote computer system can also cooperate with the local vehicle computer system to provide automated tools to the human annotator to improve accuracy and speed at which the human annotator may label optical images, thereby further reducing cost per label. Additionally, the claimed invention is merely a combination of known elements of autonomous vehicles, autonomous navigation, and more specifically training and refining an artificial intelligence in the field of autonomous vehicles, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art before the effective filing date of the claimed invention would have recognized that the results of the combination would have been predictable.",
"Claims 79 and 93 are rejected under 35 U.S.C. 103 as being unpatentable over the combination of Shashua and Huval, in view of YANG et al., US 20180189578, herein further known as Yang. Regarding claim 79, the combination of Shashua and Huval disclose all elements of claim 78 above. Shashua further discloses the lateral region of free space includes a sidewalk (paragraph [0822], non-road area 6410, sidewalk 6412, see also at least FIG. 64). However, Shashua does not explicitly state one or more of a driveway intersecting the road segment, or a parking lot. Yang teaches one or more of a driveway intersecting the road segment, or a parking lot (paragraph [0101], navigable space(s), and paragraph [0224], driveway, parking lot).",
"It would have been obvious to person of ordinary skill in the art at the time the invention was filed to modify Shashua by including one or more of a driveway intersecting the road segment, or a parking lot as taught by Yang. One would be motivated to modify Shashua in view of Yang for the reasons stated in Yang paragraph [0005], a more robust system for maintaining maps to provide the right data that is sufficiently accurate and up-to date for safe navigation of autonomous vehicles.",
"Furthermore, the more robust system reduces a need for survey teams and specially fitted cars which reduces costs and time to create the maps. Additionally, the claimed invention is merely a combination of known elements of mapping for autonomous vehicles, and more particularly to providing high definition maps with high precision and up-to-date map data to autonomous vehicles for safe navigation, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art before the effective filing date of the claimed invention would have recognized that the results of the combination would have been predictable.",
"Regarding claim 93, all limitations have been examined with respect to the system in claim 79. The method/steps taught/disclosed in claim 93 can clearly perform on the system of claim 79. Therefore, claim 93 is rejected under the same rationale as claim 79 above. Conclusion Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action.",
"Any inquiry concerning this communication or earlier communications from the examiner should be directed to Terry Buse whose telephone number is (313)446-6647. The examiner can normally be reached Monday - Friday 7-5PM 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, John Olszewski can be reached on (571) 272-2706. 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. /T.C.B./ Examiner, Art Unit 3669 /JESS WHITTINGTON/ Examiner, Art Unit 3669"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-10-23.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
OPINION MONTGOMERY, Justice. On the Court’s own motion, the decision filed herein on November 19, 1990 is withdrawn and the following opinion is substituted therefor. Defendants Richard and Cathy Tatman appeal from the district court judgment in favor of plaintiff Jerry Stokes for recovery on a promissory note. We affirm. FACTS In June 1986, appellant Richard Tatman (Richard) and his wife Cathy Tatman (Cathy) were living on a tract of land near Hondo, in Lincoln County, New Mexico. At Cathy’s request, appellee Jerry Stokes (Stokes) went to the property one Sunday in June to discuss a proposed soil excavation. After two meetings with Cathy, Stokes agreed to undertake the work and the parties agreed to an hourly fee. Throughout the relevant period, Stokes’ contact was primarily with Cathy, rather than Richard, due to the latter’s substance abuse problems and related hospitalization from July 10 to August 10, 1986. Stokes began the excavation in July and completed the work on an unspecified date in September 1986. It is undisputed that Stokes worked on the Tatman property only on weekends; it is also undisputed that he did not hold a contractor’s license. On September 10, 1986, Stokes presented a preliminary bill to Cathy for $5,000. The final bill followed shortly thereafter and totalled $5,558. The bill was submitted to M-Bank of El Paso, Texas, which acts as trustee for the Tatman property. Despite repeated submissions by Stokes, the bank refused to pay. Notwithstanding the fact that Cathy and Richard separated in November, they jointly executed a promissory note to Stokes for the full $5,558 on November 25, 1986. In the settlement agreement incorporated into their final divorce order filed May 13, 1988, Richard assumed sole responsibility for the still outstanding promissory note to Stokes. ISSUES ON APPEAL The Tatmans argue that Stokes is precluded from seeking recovery on the promissory note because he performed the work without a contractor’s license, in violation of New Mexico licensing statutes. The Tatmans contend that Stokes is a contractor, within the definition of NMSA 1978, Section 60-13-3 (Repl.Pamp.1989), and is therefore prohibited from collecting for the excavation work under Section 60-13-30 (no contractor operating without a license may bring judicial action for compensation). Appellants’ precise claim on appeal is that the district court’s finding that Stokes came within the scope of a licensing exemption constitutes reversible error. The finding reads: “The work performed falls within the handyman exception.” To review this finding, we must first turn to the statute itself. Section 60-13-1.1 declares the purpose of the Construction Industries Licensing Act to be the promotion of the general welfare of the people of New Mexico by providing for protection of life and property by adopting standards for construction-related work. This Court has characterized the Act’s purpose as protecting the public from “incompetent and irresponsible builders.” Peck v. Ives, 84 N.M. 62, 66, 499 P.2d 684, 688 (1972). Pursuant to that goal, the statute requires licensing of parties engaged in any of the construction-related activities listed in Section 60-13-3(A), of which the excavation of earth is one. However, Section 60-13-3(D) goes on to provide for sixteen specific exemptions from the licensing requirement. The district court found that Stokes’ excavation work fell within the scope of Subsection 60-13-3(D)(14), the handyman exemption. That section exempts from the licensing requirement an individual who works on one undertaking or project at a time which, in the aggregate or singly, does not exceed seven thousand two hundred dollars ($7,200) compensation a year, the work being casual, minor or inconsequential such as, but not limited to, handyman repairs * * * and provided: (a) the work is not part of a larger or major operation undertaken by the same individual or different contractor; (b) the individual does not advertise or maintain a sign, card or other device which would indicate to the public that he is qualified to engage in the business of contracting; and (c) the individual files annually with the division, on a form prescribed by the division, a declaration substantially to the effect that he is not a contractor within the meaning of the Construction Industries Licensing Act, that the work he performs is casual, minor or inconsequential and will not include more than one undertaking or project at one time and that the total amount of such contracts, in the aggregate or singly, will not exceed seven thousand two hundred dollars ($7,200) compensation a year[.] The Tatmans argue that Stokes did not come within the exemption, first, because he exceeded the aggregate financial ceiling and, second, because he failed to file the required declaration. In support of the first contention the Tatmans cite financial figures for the years 1981-1984. Although the statute admits of some ambiguity on the issue of which year or years should be considered in measuring income, Stokes’ income dating back five years prior to the Tatman work is not determinative. Moreover, Stokes testified that the Tatman work was his only excavation work in 1986, which totalled $5,558. He further testified that he received no income from related activities in either 1985 or 1987. The income ceiling serves primarily to disqualify parties who do more than occasional jobs; given the undisputed testimony of Stokes’ income from 1985 through 1987, we think there was substantial evidence to support the district court’s implied finding on that element. Second, the Tatmans contend that Stokes fails to qualify for the licensing exemption because he neglected to file annual declarations. The extensive list of exemptions from licensing reflects a clear legislative intent to exempt persons performing occasional, relatively minor jobs. Although Stokes has met the substantive requirements of Subsection (14) (no simultaneous jobs, financial ceiling, no advertising, etc.), he failed to comply with the procedural requirement of filing a declaration. Appellants contend that this is a mandatory requirement. We disagree. The question whether a statutory requirement is mandatory or merely directory is answered by looking to the intent of the statute. In State v. Vigil, 74 N.M. 766, 398 P.2d 987 (1965), we concluded: Generally, in considering whether a requirement of a statute is mandatory or directory, courts look to the subject matter, the importance of the requirement, and its relation to the general object intended to be secured by the act. Those directions in the statute which are not the essence of the things to be done are not commonly mandatory, particularly where, by failure to obey, no prejudice will result to those whose rights are protected by the statute. Id. at 773, 398 P.2d at 991-92. Accord Ross v. State Racing Commission, 64 N.M. 478, 481, 330 P.2d 701, 703 (1958). Given the essential goal of the statute to protect the public from incompetent and irresponsible builders, the filing requirement must be assessed according to its importance and relation to that intended goal. Subsection 60-13-3(D)(14) is intended to exempt from licensure persons who do occasional jobs without misrepresenting themselves as contractors. The relationship of the filing requirement to this goal is one primarily of administrative convenience. As a procedural requirement, it is not fundamentally necessary to identifying persons who fit the profile of exempt contractors drawn by the legislature. As we concluded in State v. Vigil, a directive is not commonly considered mandatory where it is not essential to statutory intent. Furthermore, in the instant case, Stokes’ failure to submit his name to the agency will not result in any prejudice to the consumers whose rights are protected by the statute. The Tatmans sought out Stokes and asked him to undertake a limited job. To find that a failure to file constitutes a complete bar to claiming an otherwise applicable exemption would vitiate legislative intent on an administrative, technical basis. We find the filing requirement to be directory, not mandatory, and as such not to constitute a bar to Stokes’ eligibility for the intended exemption. We believe this interpretation is consistent with the overall statutory scheme and intent. The facts of this case reflect none of the misrepresentation or incompetence that the licensing of contractors seeks to prevent. See, e.g., State v. Jenkins, 108 N.M. 669, 777 P.2d 908 (Ct.App.1989) (unlicensed contractor held himself out as contractor and misled consumer by providing a license number). Stokes did not advertise or try to compel the Tatmans to hire him. He undertook the job at their request and apparently completed it to their satisfaction. There is no indication that he held himself out as a contractor or misled the Tatmans regarding his knowledge or abilities. Indeed, the Tatmans reaffirmed their intent to pay Stokes, first by executing the promissory note and then by including it in their divorce settlement It appears rather contrived for the Tatmans now to claim they are not responsible for that promissory note due to Stokes’ failure to satisfy an administrative procedure. Such a result, on these facts, would not only be inequitable but also would fail to further the goal of consumer protection. We hold the district court’s finding that Stokes was within the licensing exemption to be substantially supported by the evidence in this case. For the above reasons, the judgment of the trial court is affirmed. IT IS SO ORDERED. SOSA, C.J., and BACA, J., concur. | 06-26-2022 | [
"OPINION MONTGOMERY, Justice. On the Court’s own motion, the decision filed herein on November 19, 1990 is withdrawn and the following opinion is substituted therefor. Defendants Richard and Cathy Tatman appeal from the district court judgment in favor of plaintiff Jerry Stokes for recovery on a promissory note. We affirm. FACTS In June 1986, appellant Richard Tatman (Richard) and his wife Cathy Tatman (Cathy) were living on a tract of land near Hondo, in Lincoln County, New Mexico. At Cathy’s request, appellee Jerry Stokes (Stokes) went to the property one Sunday in June to discuss a proposed soil excavation.",
"After two meetings with Cathy, Stokes agreed to undertake the work and the parties agreed to an hourly fee. Throughout the relevant period, Stokes’ contact was primarily with Cathy, rather than Richard, due to the latter’s substance abuse problems and related hospitalization from July 10 to August 10, 1986. Stokes began the excavation in July and completed the work on an unspecified date in September 1986. It is undisputed that Stokes worked on the Tatman property only on weekends; it is also undisputed that he did not hold a contractor’s license. On September 10, 1986, Stokes presented a preliminary bill to Cathy for $5,000. The final bill followed shortly thereafter and totalled $5,558. The bill was submitted to M-Bank of El Paso, Texas, which acts as trustee for the Tatman property. Despite repeated submissions by Stokes, the bank refused to pay.",
"Notwithstanding the fact that Cathy and Richard separated in November, they jointly executed a promissory note to Stokes for the full $5,558 on November 25, 1986. In the settlement agreement incorporated into their final divorce order filed May 13, 1988, Richard assumed sole responsibility for the still outstanding promissory note to Stokes. ISSUES ON APPEAL The Tatmans argue that Stokes is precluded from seeking recovery on the promissory note because he performed the work without a contractor’s license, in violation of New Mexico licensing statutes. The Tatmans contend that Stokes is a contractor, within the definition of NMSA 1978, Section 60-13-3 (Repl.Pamp.1989), and is therefore prohibited from collecting for the excavation work under Section 60-13-30 (no contractor operating without a license may bring judicial action for compensation). Appellants’ precise claim on appeal is that the district court’s finding that Stokes came within the scope of a licensing exemption constitutes reversible error. The finding reads: “The work performed falls within the handyman exception.” To review this finding, we must first turn to the statute itself. Section 60-13-1.1 declares the purpose of the Construction Industries Licensing Act to be the promotion of the general welfare of the people of New Mexico by providing for protection of life and property by adopting standards for construction-related work.",
"This Court has characterized the Act’s purpose as protecting the public from “incompetent and irresponsible builders.” Peck v. Ives, 84 N.M. 62, 66, 499 P.2d 684, 688 (1972). Pursuant to that goal, the statute requires licensing of parties engaged in any of the construction-related activities listed in Section 60-13-3(A), of which the excavation of earth is one. However, Section 60-13-3(D) goes on to provide for sixteen specific exemptions from the licensing requirement. The district court found that Stokes’ excavation work fell within the scope of Subsection 60-13-3(D)(14), the handyman exemption. That section exempts from the licensing requirement an individual who works on one undertaking or project at a time which, in the aggregate or singly, does not exceed seven thousand two hundred dollars ($7,200) compensation a year, the work being casual, minor or inconsequential such as, but not limited to, handyman repairs * * * and provided: (a) the work is not part of a larger or major operation undertaken by the same individual or different contractor; (b) the individual does not advertise or maintain a sign, card or other device which would indicate to the public that he is qualified to engage in the business of contracting; and (c) the individual files annually with the division, on a form prescribed by the division, a declaration substantially to the effect that he is not a contractor within the meaning of the Construction Industries Licensing Act, that the work he performs is casual, minor or inconsequential and will not include more than one undertaking or project at one time and that the total amount of such contracts, in the aggregate or singly, will not exceed seven thousand two hundred dollars ($7,200) compensation a year[.]",
"The Tatmans argue that Stokes did not come within the exemption, first, because he exceeded the aggregate financial ceiling and, second, because he failed to file the required declaration. In support of the first contention the Tatmans cite financial figures for the years 1981-1984. Although the statute admits of some ambiguity on the issue of which year or years should be considered in measuring income, Stokes’ income dating back five years prior to the Tatman work is not determinative. Moreover, Stokes testified that the Tatman work was his only excavation work in 1986, which totalled $5,558. He further testified that he received no income from related activities in either 1985 or 1987. The income ceiling serves primarily to disqualify parties who do more than occasional jobs; given the undisputed testimony of Stokes’ income from 1985 through 1987, we think there was substantial evidence to support the district court’s implied finding on that element. Second, the Tatmans contend that Stokes fails to qualify for the licensing exemption because he neglected to file annual declarations.",
"The extensive list of exemptions from licensing reflects a clear legislative intent to exempt persons performing occasional, relatively minor jobs. Although Stokes has met the substantive requirements of Subsection (14) (no simultaneous jobs, financial ceiling, no advertising, etc. ), he failed to comply with the procedural requirement of filing a declaration. Appellants contend that this is a mandatory requirement. We disagree. The question whether a statutory requirement is mandatory or merely directory is answered by looking to the intent of the statute. In State v. Vigil, 74 N.M. 766, 398 P.2d 987 (1965), we concluded: Generally, in considering whether a requirement of a statute is mandatory or directory, courts look to the subject matter, the importance of the requirement, and its relation to the general object intended to be secured by the act.",
"Those directions in the statute which are not the essence of the things to be done are not commonly mandatory, particularly where, by failure to obey, no prejudice will result to those whose rights are protected by the statute. Id. at 773, 398 P.2d at 991-92. Accord Ross v. State Racing Commission, 64 N.M. 478, 481, 330 P.2d 701, 703 (1958). Given the essential goal of the statute to protect the public from incompetent and irresponsible builders, the filing requirement must be assessed according to its importance and relation to that intended goal. Subsection 60-13-3(D)(14) is intended to exempt from licensure persons who do occasional jobs without misrepresenting themselves as contractors.",
"The relationship of the filing requirement to this goal is one primarily of administrative convenience. As a procedural requirement, it is not fundamentally necessary to identifying persons who fit the profile of exempt contractors drawn by the legislature. As we concluded in State v. Vigil, a directive is not commonly considered mandatory where it is not essential to statutory intent. Furthermore, in the instant case, Stokes’ failure to submit his name to the agency will not result in any prejudice to the consumers whose rights are protected by the statute. The Tatmans sought out Stokes and asked him to undertake a limited job. To find that a failure to file constitutes a complete bar to claiming an otherwise applicable exemption would vitiate legislative intent on an administrative, technical basis.",
"We find the filing requirement to be directory, not mandatory, and as such not to constitute a bar to Stokes’ eligibility for the intended exemption. We believe this interpretation is consistent with the overall statutory scheme and intent. The facts of this case reflect none of the misrepresentation or incompetence that the licensing of contractors seeks to prevent. See, e.g., State v. Jenkins, 108 N.M. 669, 777 P.2d 908 (Ct.App.1989) (unlicensed contractor held himself out as contractor and misled consumer by providing a license number). Stokes did not advertise or try to compel the Tatmans to hire him. He undertook the job at their request and apparently completed it to their satisfaction. There is no indication that he held himself out as a contractor or misled the Tatmans regarding his knowledge or abilities. Indeed, the Tatmans reaffirmed their intent to pay Stokes, first by executing the promissory note and then by including it in their divorce settlement It appears rather contrived for the Tatmans now to claim they are not responsible for that promissory note due to Stokes’ failure to satisfy an administrative procedure.",
"Such a result, on these facts, would not only be inequitable but also would fail to further the goal of consumer protection. We hold the district court’s finding that Stokes was within the licensing exemption to be substantially supported by the evidence in this case. For the above reasons, the judgment of the trial court is affirmed. IT IS SO ORDERED. SOSA, C.J., and BACA, J., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6471634/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
852 F. Supp. 1050 (1994) HOSIDEN CORPORATION, Plaintiff, v. UNITED STATES, Defendant. Court No. 91-10-00720. Slip Op. 94-60. United States Court of International Trade. April 14, 1994. *1051 *1052 Adduci, Mastriani, Schaumberg & Schill (Louis S. Mastriani, Anri Suzuki, and Gregory C. Anthes), Washington, DC, for plaintiff Hosiden Corp. Donovan Leisure Newton & Irvine (Peter J. Gartland, David S. Versfelt, Christopher P. Johnson, and Christopher K. Tahbaz), New York City, for plaintiff Sharp Corp. Graham & James (Lawrence R. Walders), Washington, DC, for plaintiffs Hitachi, Ltd.; Hosiden Corp.; Matsushita Elec. Industrial Co., Ltd.; NEC Corp.; Seiko Epson Corp.; and Toshiba Corp. Baker & McKenzie (Thomas P. Ondeck and Kevin M. O'Brien), Washington, DC, for plaintiff Apple Computer, Inc. O'Melveny & Myers (Kermit W. Almstedt, Peggy A. Clarke, Greta L.H. Lichtenbaum, and Craig L. McKee), Washington, DC, for plaintiff International Business Machines Corp. Collier, Shannon, Rill & Scott (Paul C. Rosenthal, Robin H. Gilbert), Washington, DC, for plaintiff Advanced Display Mfrs. of America. Vinson & Elkins L.L.P. (Theodore W. Kassinger, Charles D. Tetrault, and Rosemary E. Gwynn), Washington, DC, for plaintiff Compaq Computer Corp. Pennie & Edmonds (Arthur Wineburg and Marcia H. Sundeen), Washington, DC, for plaintiff Tandy Corp. Frank W. Hunger, Asst. Atty. Gen.; David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice (A. David Lafer); Marguerite E. Trossevin, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, DC, of counsel, for defendant. Lyn M. Schlitt, General Counsel; James A. Toupin, Asst. Gen. Counsel, U.S. Intern. Trade Com'n (Paul R. Bardos and Rachele Valente), Washington, DC, for defendant. Collier, Shannon, Rill & Scott (Paul C. Rosenthal, Robin H. Gilbert), Washington, DC, for defendant-intervenor Advanced Display Mfrs. of America. Jones, Day, Reavis & Pogue (John E. Benedict, David G. Schryver, and Thomas F. Cullen, Jr.), Washington, DC, for defendant-intervenor Texas Instruments, Inc.
*1053 MEMORANDUM OPINION
GOLDBERG, Judge. This matter is before the court for review of the final remand determination by the U.S. International Trade Commission ("ITC" or "Commission") issued pursuant to this court's memorandum opinion and order dated December 29, 1992 (16 CIT ___, 810 F. Supp. 322 (1992)). The ITC issued its remand determination on March 8, 1993. Certain High-Information Content Flat Panel Displays and Display Glass Therefor From Japan, Inv. No. 731-TA-469 (Final) (Remand), USITC Pub. No. 2610 (Mar. 1993) ("Remand Determination"). Upon remand, the Commission determined that an industry in the United States was not materially injured by reason of imports from Japan of electroluminescent ("EL") high-information content flat panel displays ("HIC FPDs" or "displays"). Plaintiff Advanced Display Manufacturers of America ("ADMA") has filed a motion for judgment on the agency record challenging the Commission's negative remand determination, alleging it is not based on substantial evidence in the administrative record, and not in accordance with law. The court will first examine that portion of the Commission's Remand Determination concerning EL displays, and conclude that in this regard the Remand Determination is in accordance with law and is supported by substantial evidence. The court therefore denies ADMA's motion and affirms this portion of the Remand Determination. After the ITC filed its Remand Determination, the U.S. Department of Commerce ("Commerce") revoked the antidumping duty order on active matrix liquid crystal display ("AMLCD") HIC FPDs from Japan. Commerce's revocation of the antidumping duty order thus renders moot all proceedings concerning AMLCDs. As a result, the court dismisses all complaints in this action pertaining to AMLCDs from Japan. The court further concludes that Commerce's revocation does not require this court to vacate its Memorandum Opinion and Order of December 29, 1992, which instructed the ITC to reconsider its determination.
BACKGROUND This is the latest chapter in the saga of this antidumping investigation of high-information content flat panel displays and display glass therefor from Japan. The proceedings relevant to the present action are summarized and highlighted as follows.[1] On July 16, 1991, Commerce published its final affirmative determination finding four separate classes or kinds of imported merchandise. Two of these classes, active-matrix liquid crystal displays ("AMLCDs") and electroluminescent HIC FPDs ("ELs" or "EL displays"), were found to be sold at less than fair value. High Information Content Flat Panel Displays and Display Glass Therefor From Japan, 56 Fed.Reg. 32,376 (July 16, 1991). Commerce established a weighted average margin of 62.67 percent for all imports of AMLCDs and 7.02 percent for all imports of ELs. Id., 56 Fed.Reg. at 32,401. The ITC reached a final affirmative injury determination in this investigation on August 26, 1991. Certain High-Information Content Flat Panel Displays and Display Glass Therefor From Japan, Inv. No. 731-TA-469 (Final), USITC Pub. No. 2413 (Aug. 1991) ("ITC Final Determination"). The ITC found that all types of HIC FPDs comprised a single domestic like product, which corresponded to more than one class or kind of imported merchandise. ITC Final Determination at 7. The ITC determined that the domestic industry which produced the like product had been materially injured by less than fair value ("LTFV") imports of two classes or kinds of merchandise, EL displays and AMLCDs. ITC Final Determination at 27. In reaching this determination, the ITC conducted a single material injury analysis that considered the aggregate effects of the two classes or kinds of merchandise on the domestic industry that produced the like product. ITC Final Determination at 23-27. Commerce then published antidumping duty orders on imports of AMLCDs and ELs from *1054 Japan. High Information Content Flat Panel Displays and Display Glass Therefor from Japan, 56 Fed.Reg. 43,741, 43,742 (Sept. 4, 1991). Plaintiffs initiated actions challenging the determinations of both Commerce and the Commission. On December 29, 1992, this court issued a memorandum opinion and order, in which it remanded this matter to the ITC for reconsideration. Hosiden Corp. v. United States, 16 CIT ___, 810 F. Supp. 322 (1992) ("Hosiden I").[2] The court instructed the ITC to make two separate material injury determinations for domestic producers of the like product corresponding to each class or kind of imported merchandise found by Commerce to be sold at less than fair value, i.e. AMLCDs and EL HIC FPDs. Hosiden I, 810 F.Supp. at 331.[3] On March 8, 1993, the ITC submitted its Remand Determination to the court. Four of the six commissioners found that imports of EL displays from Japan had caused no material injury to a domestic industry. Remand Determination at II-1, VI-1. ADMA now challenges that negative determination concerning imports of EL displays via its motion for judgment upon the agency record. The ITC's Remand Determination also found by a 3-3 vote that imports of AMLCDs had caused material injury to an industry in the United States. Remand Determination at I-1, II-1. Commerce, however, announced on June 25, 1993, its final results of a changed circumstances administrative review, and revoked the antidumping duty order on AMLCDs. Active Matrix Liquid Crystal High Information Content Flat Panel Displays and Display Glass Therefor From Japan, 58 Fed.Reg. 34,409, 34,414 (June 25, 1993). The period for appealing Commerce's revocation expired without any appeal being filed.
DISCUSSION
A. ITC's Remand Determination Is In Accordance With Law
ADMA challenges the ITC's negative determination regarding EL displays as not being in accordance with law. ADMA does not contend that the ITC failed to follow the court's remand instructions. Rather, ADMA asserts that the ITC's determination is contrary to law because it was based on the allegedly legally erroneous remand instructions handed down by this court. Memorandum of Advanced Display Manufacturers Of America, Et Al. In Support Of Motion For Judgment Upon An Agency Record ("ADMA Brief") at 10. "The Court's failure to apply a deferential standard of review to the Commission's original findings, followed by the Court imposing its own erroneous framework on the Commission's analysis, was contrary to law and accordingly caused the Commission's remand results to be contrary to law." Id. The Commission responded: Whether or not this Court's December 29, 1992, order was in error, however, the Commission was required to comply with that order and did so in its determination on remand. Memorandum of Defendant U.S. International Trade Commission In Response To Private Parties' Comments Concerning The Commission's Remand Determination ("ITC Brief") at 15. Rather than challenge the ITC's Remand Determination, ADMA challenges the court's underlying remand order and opinion in Hosiden I. ADMA essentially complains that this court's remand order resulted in an unlawful usurpation of the Commission's discretionary authority. ADMA's disagreement with the court's interpretation of the law set forth in Hosiden I, however, is extraneous to the court's present determination of whether the Commission's Remand Determination is *1055 in accordance with law.[4] At this point in the proceedings, the court is concerned solely with whether the Commission complied with the court's remand instructions. The court finds that the ITC's Remand Determination is in compliance with the Hosiden I remand order and opinion, and is in accordance with law. As to ADMA's assertion that this court failed to apply a deferential standard of review to the Commission's Final Determination, the court disagrees. As discussed in greater detail in Hosiden I, this court fulfilled its statutory duty to assess whether the ITC's original Final Determination was "in accordance with law." 19 U.S.C. § 1516a(b)(1)(B) (1988). The court respectfully considered the views of the Commissioners expressed in the ITC's Final Determination. Deference, however, does not compel a relinquishment of the court's responsibility to conduct meaningful judicial review. Borlem S.A.-Empreedimentos Industriais v. United States, 8 Fed.Cir. (T) 164, 168, 913 F.2d 933, 937 (1990). Furthermore, the "`traditional deference courts pay to agency interpretation is not to be applied to alter the clearly expressed intent of Congress.'" Serampore Indus. Pvt. Ltd. v. U.S. Dep't of Commerce, 11 CIT 866, 869, 675 F. Supp. 1354, 1357 (1987) (quoting Board of Governors of the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 368, 106 S. Ct. 681, 686, 88 L. Ed. 2d 691 (1986)). In Hosiden I, the court found that the ITC's statutory interpretation was not in accordance with the plain language of the statute. Hosiden I, 810 F.Supp. at 328. Title 19 of the United States Code, § 1673 (1988), provides that antidumping duties shall be imposed if: (1) the administering authority determines that a class or kind of foreign merchandise is being, or is likely to be, sold in the United States at less than its fair value, and (2) the Commission determines that (A) an industry in the United States (i) is materially injured, or (ii) is threatened with material injury, or (B) "the establishment of an industry in the United States is materially retarded, by reason of imports of that merchandise or by reason of sales (or the likelihood of sales) of that merchandise...." 19 U.S.C. § 1673 (1988) (emphasis added). This statute clearly refers to "a class or kind of foreign merchandise" as "that merchandise." The modifier "that" specifically limits the Commission's comparisons to those particular imports of "a class or kind" found by Commerce to have been dumped. The statute thus envisions a separate ITC determination for each separate class or kind of merchandise that Commerce determines is being sold in the United States at less than fair value. The court also acknowledged the established caselaw that supports the Commission's authority to make its own like product determinations. Hosiden I, 810 F.Supp. at 329 (citing Torrington Co. v. United States, 14 CIT 648, 747 F. Supp. 744 (1990), aff'd, 9 Fed.Cir. (T) 101, 938 F.2d 1278 (1991)). Hosiden I does not conflict with prior decisions of this court that upheld the Commission's right to find multiple like products within each class or kind of article defined by Commerce. Id. (citing Sony Corp. of America v. United States, 13 CIT 353, 712 F. Supp. 978 (1989); American NTN Bearing Mfg. Corp. v. United States, 14 CIT 320, 739 F. Supp. 1555 (1990)). Furthermore, Hosiden I does not preclude the Commission from cumulating the effects of the different classes or kinds of merchandise identified by Commerce. 19 U.S.C. § 1677(7)(C)(iv) clearly authorizes the ITC to cumulate the volume and effect of dumped imports subject to investigation. Cf. Chaparral Steel Co. v. United States, 8 Fed. Cir. (T) 101, 108, 901 F.2d 1097, 1103 (1990). This, however, is different from cumulating multiple classes or kinds of merchandise identified by Commerce. As Commissioner *1056 Brunsdale noted, Hosiden I recognized that under the statutory framework, when Commerce finds multiple classes or kinds of merchandise, the Commission is to make multiple determinations. Remand Determination at IV-9. Such a finding does not require the Commission to find multiple like products or multiple domestic industries; it does, however, require multiple determinations. Id. Rather than define a single like product corresponding to cumulated classes or kinds of merchandise, the Commission may choose to define a single like product that corresponds to each class or kind of merchandise determined to exist by Commerce. In this scenario, the Commission would then make multiple comparisons of the single like product against each class or kind of merchandise. Clearly, this analytical framework does not eviscerate the Commission's authority to cumulate, as provided by 19 U.S.C. § 1677(7)(C)(iv). As noted in Hosiden I, cumulation of two or more classes or kinds of articles increases the diversity of merchandise for which the Commission seeks to find a "like product." Hosiden I, 810 F.Supp. at 330. In certain situations, the totality of characteristics of cumulated classes or kinds of merchandise would not differ significantly from the characteristics of each class or kind viewed separately. Id. However, in other cases, the cumulation of multiple classes or kinds of merchandise may very well result in an expanded definition of "like product;" correspondingly, the expanded definition of the domestic industry would then lead to a skewed causation determination. Id. Indeed, it is a result such as this which is not "in accordance with law." 19 U.S.C. § 1516a(b)(1) (1988). In sum, then, a plain reading of the specific language of 19 U.S.C. § 1673 indicates that the Commission is required to make separate material injury determinations corresponding to each class or kind of merchandise found by Commerce to have been sold in the United States at less than fair value.
B. ITC's Remand Determination Is Supported By Substantial Evidence
ADMA argues that the Commission's negative EL determination is not based on substantial evidence. More specifically, ADMA challenges Commissioner Nuzum's remand determination as unsupported by substantial evidence in the record. Commissioner Nuzum joined Vice Chairman Watson and Commissioners Brunsdale and Crawford in finding that imports of EL displays from Japan did not cause material injury or a threat of material injury to a domestic industry. ADMA ignores the findings of the three other commissioners who voted in favor of the negative injury determination, and focuses its arguments on the findings of Commissioner Nuzum. In support of its argument that Commissioner Nuzum's findings are not supported by substantial evidence, ADMA offers two general arguments. First, ADMA contrasts Commissioner Nuzum's findings to the contrary findings of Chairman Newquist and Commissioner Rohr. ADMA Brief at 5-7. Merely highlighting the contrary views expressed by a minority of Commissioners, however, is an insufficient basis for demonstrating that the views of the majority of Commissioners are not supported by substantial evidence. "[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620, 86 S. Ct. 1018, 1026, 16 L. Ed. 2d 131 (1966) (quoted in Matsushita Elec. Ind. Co. v. United States, 3 Fed.Cir. (T) 44, 51, 750 F.2d 927, 933 (1984)). ADMA also generally asserts that Commissioner Nuzum "appears to have ignored" certain evidence in the administrative record in making her findings. ADMA Brief at 5. ADMA's assertions are unfounded. All of the Commissioners, including Commissioner Nuzum, are presumed to have considered all of the evidence in the administrative record in reaching their determinations. Metallverken Nederland B.V. v. United States, 13 CIT 1013, 1021, 728 F. Supp. 730, 736 (1989). ADMA appears to confuse the issue of whether Commissioner Nuzum considered the information, with whether she discussed that information. In order to determine *1057 whether the views of Commissioner Nuzum and the majority of Commissioners are supported by substantial evidence, the court will review the ITC majority's determination concerning the subject EL imports, focusing on the volume of EL imports, the price effects of EL imports, and the impact of EL imports on the domestic industry.[5]
1. Volume
A majority of the Commissioners found that the volume of EL imports from Japan decreased over the period of investigation ("POI"), both in absolute terms and relative to domestic consumption. Remand Determination at II-11, VI-1 to VI-2. The majority concluded that they "[did] not find the volume or any increase in volume of subject imports to be significant." Id. at II-12. Commissioner Nuzum specifically concluded that: Given the small size of the market accounted for by subject EL imports [and] the overall decrease in the volume of these imports in absolute terms and relative to domestic consumption and production, ... I cannot say that I find the volume of imports of EL FPDs to be significant. Remand Determination at VI-2 to VI-3. ADMA argues that the "enormous significance" of the volume of subject EL imports, relative to U.S. producers' shipments of HIC FPDs, demonstrates the unreasonableness of Commissioner Nuzum's finding that the volume of EL imports was insignificant. ADMA Brief at 5-6. ADMA's argument is unfounded. The record clearly indicates that the subject EL imports accounted for only a small share of domestic consumption of HIC FPDs. In absolute unit volume terms, the quantity of EL display imports from Japan was lower at the end of the POI, i.e. [ ] units in 1990, that at the beginning of the POI, i.e. [ ] units in 1988.[*]Staff Final Report to the Commission on Investigation No. 731-TA-469 (Final) (Aug. 5, 1991) at A-133 (Table 35) ("Staff Report"). In relative market share terms, the quantity of U.S. shipments of Japanese EL displays accounted for only [ ] percent of the total U.S. market for EL displays in 1990, down from [ ] percent in 1988. Staff Report at A-140 (Table 38). Similarly, the U.S. market share of Japanese EL displays, measured by value, decreased from [ ] percent in 1988 to [ ] percent in 1990; this represents a decrease over the POI of nearly [ ] percent. See id. The insignificance of the volume of EL display imports from Japan is further highlighted when compared with overall U.S. consumption of all HIC FPDs. EL display imports from Japan represented approximately [ ] percent of all HIC FPDs consumed in the United States during the POI.[6] In sum, the record indicates that the volume of imports of EL displays from Japan decreased over the POI, represented less than [ ] percent of the domestic EL display market by 1990, and accounted for a mere [ ] percent of total HIC FPD consumption in the United States during the POI. The court thus finds that the ITC's determination that the volume of EL imports was not significant is supported by substantial evidence in the record.
2. Price Effects
A majority of the Commission found that EL imports did not cause significant price suppression. Remand Determination *1058 at II-14, VI-4. Commissioner Nuzum specifically noted that, given the limited amount of price data on the FPD industry and market, she was "especially careful to closely examine the complete record for other evidence of a causal link between subject EL imports and the condition of the domestic industry." Id. at VI-4. The court finds that the majority's finding regarding price effects is supported by substantial evidence. The record indicates that pricing data was sparse and of limited usefulness in part because different models of EL displays tend to be customized. Staff Report at A-173. Despite the serious difficulties in making price comparisons, the ITC did conduct price comparisons for two types of EL displays, i.e. 640 × 200 EL displays and 640 × 400 EL displays, and discovered both underselling and overselling by importers of the subject merchandise.[7]Staff Report at A-179. The limited data is thus inconclusive of any pattern of underselling by foreign producers. In sum, viewing the limited pricing data available in light of the overall record, and accounting for instances of overselling by imports and the fluctuating and rising price trends, the majority of Commissioners, including Commissioner Nuzum, reasonably concluded that the subject EL imports did not have significant price effects. The statutory standard of significant price undercutting is not met when the ITC finds a mixed pattern of underselling and overselling. Copperweld Corp. v. United States, 12 CIT 148, 162, 682 F. Supp. 552, 566 (1988). The court finds that the record reveals no pattern of underselling by Japanese EL display producers, and further finds a lack of evidence supporting ADMA's allegation of price suppression or depression.
3. Impact on the Domestic Industry
A majority of Commissioners also found that Japanese imports of EL displays did not have an impact on the condition of the domestic industry sufficient to merit an affirmative material injury determination. Remand Determination at II-14, VI-6. Commissioner Nuzum noted that, although the record contained evidence of one sale being lost to subject imports, that lost sale had little more than a de minimis effect on the domestic industry. Id. at VI-5. Commissioner Nuzum emphasized that, when compared to the trends for domestic producers' shipments and for shipments of certain other imports, the subject EL imports had only a very minor, stable, presence in the domestic market. Id. Commissioner Nuzum thus concluded that insufficient evidence existed demonstrating a causal link between the subject EL imports and the condition of the domestic industry such that an affirmative injury determination was unwarranted. Remand Determination at VI-6. ADMA contends that Commissioner Nuzum ignored "numerous" other examples of lost sales and lost revenues contained in the record. ADMA Brief at 6. All but one of these examples, however, amount to ADMA allegations which were never confirmed by the ITC. Staff Report at A-182 to A-195. Furthermore, the lone confirmed lost sale involved no more than [ ] units for which the domestic price would have been [ ] per unit. Staff Report at A-182 to A-183. The maximum loss to the domestic industry would have equaled [ ] or [ ] percent of the total value of domestic industry shipments in 1989.[8] The court finds that Commissioner Nuzum's characterization of this lost sale as de minimis was reasonable, in light of the amount of potential revenue involved and the lack of any other confirmed lost sales. Based on the foregoing analysis, the court finds that the ITC's Remand Determination regarding EL displays from Japan is in accordance with law, and that the majority's *1059 determination is supported by substantial evidence. Thus, the court affirms the ITC's determination that a domestic industry was not materially injured or threatened with material injury by reason of the subject EL imports.
C. Effect of Revocation of AMLCD Antidumping Duty Order On Hosiden I
Commerce revoked the antidumping duty order covering AMLCDs, effective June 25, 1993. Active Matrix Liquid Crystal High Information Content Flat Panel Displays and Display Glass Therefor From Japan, 58 Fed.Reg. 34,409, 34,414 (June 25, 1993). The period for appealing Commerce's revocation expired without any appeal being filed. Plaintiffs had previously challenged the Commission's final affirmative determination with respect to AMLCDs because that determination led to the imposition of an antidumping duty order by Commerce on the importation of AMLCDs. Plaintiff Sharp states that "[i]n light of Commerce's unchallenged determination to revoke the antidumping duty order on AMLCDs from Japan, there is no longer a case or controversy with regard to that order, and any challenges previously addressed to that order are now moot." Submission Of Plaintiff Sharp Corporation Addressed To Remand Determination Of The United States International Trade Commission at 2. The Commission agrees with plaintiff Sharp's statement that Commerce's revocation has rendered moot the proceedings concerning AMLCDs. The ITC, however, further argues that: This Court should not only dismiss those portions of plaintiffs' complaints relating to AMLCDs, but should also vacate the Court's memorandum opinion and order of December 29, 1992, except insofar as the order instructs the Commission to evaluate subject imports of EL displays. ITC Brief at 8. The ITC contends that the basis for the court's decision was the existence of two classes or kinds of imported merchandise found to be sold at less than fair value. Given that Commerce revoked the antidumping duty order on AMLCDs, only one class or kind of dumped merchandise remains under investigation, i.e. EL displays. It is impossible to consider the combined effects of multiple classes or kinds of merchandise when there is only one class or kind of merchandise under investigation. Therefore, according to the ITC, "any case or controversy as to whether the Commission may consider the combined effects of two classes or kinds of dumped merchandise on a domestic industry is ended." Id. The court notes that Article III courts "`lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cases or controversies.'" PPG Indus., Inc. v. United States, 11 CIT 303, 306, 660 F. Supp. 965, 968 (1987) (quoting Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 70, 104 S. Ct. 373, 374-75, 78 L. Ed. 2d 58 (1983)). A revocation determination by Commerce which is not timely challenged voids the underlying antidumping duty order, and renders moot any pending challenges to such an order. Asahi Chem. Indus. Co. v. United States, 13 CIT 987, 992, 727 F. Supp. 625, 629 (1989). Because Commerce has revoked the antidumping duty order for AMLCDs, issues pertaining to AMLCDs in this proceeding are now moot and need not be addressed in this opinion. Thus, the court dismisses all pending challenges concerning AMLCDs. The court, however, disagrees with the Commission's argument that Commerce's revocation also requires the court to vacate its Hosiden I decision. The sequence of events in this case demonstrates that vacatur of the Hosiden I decision and accompanying remand order is inappropriate. This court issued its Memorandum Opinion and Order in Hosiden I on December 29, 1992, instructing the ITC to conduct separate injury analyses for two classes or kinds of merchandise: EL displays and AMLCDs. On March 8, 1993, in response to the Hosiden I decision and remand order, the Commission issued its Remand Determination. On June 25, 1993, Commerce published its final determination to revoke the antidumping duty order on AMLCDs. Having already submitted its Remand Determination in response to this court's order, the ITC now asks the court to *1060 perform a legal sleight of hand by vacating the very order upon which that Remand Determination rests. The ITC essentially asks this court to vacate an order with which it has already complied, as well as the decision that guided the Commission's own disposition of the EL material injury investigation that is presently before the court. The ITC argues that "if the Commission had known about Commerce's decision to revoke, it would never have considered imported AMLCDs as being subject to its final determination at all." ITC Brief at 14. The court refuses to speculate as to what the Commission might have done had the Commission considered Commerce's revocation decision. The fact remains that the Commission's Remand Determination was submitted to the court before Commerce revoked the antidumping duty order on AMLCDs. The Commission errs in asserting that Commerce's revocation has rendered the entire proceeding governed by Hosiden I moot. The Hosiden I decision is still very much a "live" case because the portion of the Commission's Remand Determination that explicitly addresses the pending EL order is the direct result of the explicit language of the court's Hosiden I decision. There is no way to separate the pending antidumping order on EL displays from the Hosiden I decision. The court finds no reason to vacate the order upon which the Remand Determination rests. In support of its argument that the court must vacate Hosiden I for mootness, the Commission cites several cases, i.e. Canadian Meat Council v. United States, 12 CIT 108, 680 F. Supp. 390 (1988); Babcock & Wilcox Co. v. United States, 4 CIT 3 (1982); Associated Dry Goods Corp. v. United States, 3 CIT 1, 533 F. Supp. 1343 (1982), vacated, 69 C.C.P.A. 169, 682 F.2d 212 (1982). ITC Brief at 10-12. The present case is clearly distinguishable from the cases cited by the ITC in one significant aspect; specifically, in contrast to the cases cited by the government, the Commission has already acted in response to, and fully complied with, this court's remand instructions in Hosiden I.[9] The Commission also relies upon United States v. Munsingwear, Inc., 340 U.S. 36, 71 S. Ct. 104, 95 L. Ed. 36 (1950), in support of its request for vacatur of Hosiden I. ITC Brief at 8-9. Vacatur is warranted in order to "prevent a judgment, unreviewable because of mootness, from spawning any legal consequences." Munsingwear, 340 U.S. at 41, 71 S.Ct. at 107. As in Babcock & Wilcox, however, no final determination on the merits has yet been rendered in this case. See Babcock & Wilcox, 4 CIT at 5. The Hosiden I remand order and opinion did not compel a particular result on remand, nor did it unquestionably terminate the action before this court. Thus, Hosiden I is not a final judgment on the merits with associated res judicata effect. Indeed, the Federal Circuit recognized as much when it denied the petitions of ADMA and the ITC for appeal of the Hosiden I remand order. Hosiden Corp. v. United States, Nos. 93-1224, 93-1269, 1993 WL 452601, at *6, 1993 U.S.App. LEXIS 19060, at *20 (Fed.Cir. July 13, 1993) ("Review of the issues in the remand order is not simply appropriate at this time."). Though the ITC may disagree with the Hosiden I decision, the fact remains that the ITC's Remand Determination has already been issued; the very existence of the Remand Determination exposes the logical fallacy undermining the ITC's argument for vacatur. The case before the court has not become entirely moot. The Hosiden I decision is a necessary underpinning to the ITC's Remand Determination, which is presently *1061 before the court for review. The government's motion for vacatur is therefore denied.
CONCLUSION For the reasons set forth above, the court affirms the ITC's Remand Determination that a domestic industry was not materially injured or threatened with material injury by reason of subject EL imports. All issues pertaining to AMLCDs have been rendered moot by Commerce's revocation of the underlying antidumping duty order; therefore, the court dismisses all pending challenges concerning AMLCDs. Judgment will be entered accordingly.
ORDER This case having been duly submitted for decision, and the court, after due deliberation, having rendered a decision herein; now, therefore, in accordance with said decision and upon consideration of Certain High-Information Content Flat Panel Displays and Display Glass Therefor From Japan, Inv. No. 731-TA-469 (Final) (Remand), USITC Pub. No. 2610 (Mar. 1993), issued by the U.S. International Trade Commission ("ITC") on March 8, 1993, and upon consideration of the August 12, 1993 motion of Advanced Display Manufacturers of America ("ADMA") for judgment upon an agency record, it is hereby ORDERED that the ITC's final negative injury determination on remand with regard to electroluminescent ("EL") high information content flat panel displays and display glass therefor from Japan, is sustained; it is further ORDERED that ADMA's motion is denied; it is further ORDERED that, based upon the ITC's determination on remand, the United States Department of Commerce ("Commerce") shall revoke the antidumping duty order on EL high information content flat panel displays and display glass therefor from Japan, said order having been published at 56 Fed. Reg. 43,741, 43,742 (Sept. 4, 1991), within 10 days of the date of this Judgment; it is further ORDERED that all challenges raised in this case pertaining to the antidumping duty order on active matrix liquid crystal high information content flat panel displays and display glass therefor from Japan, are dismissed as moot by reason of Commerce's uncontested determination in Active Matrix Liquid Crystal High Information Content Flat Panel Displays and Display Glass Therefor From Japan, 58 Fed.Reg. 34,409 (June 25, 1993); and it is further ORDERED that the complaints filed with this court in the following cases, which were consolidated under the above-captioned case, are hereby dismissed: Court Nos. 91-10-00720, 91-10-00731, 91-10-00732, 91-10-00733, 91-10-00734, 91-10-00740, 91-10-00741, and 91-10-00744. NOTES [1] For a more detailed description of the procedural history of this case, see Hosiden Corp. v. United States, 16 CIT ___, ___, 810 F. Supp. 322, 325-27 (1992). [2] At the time the court issued its order of remand, the court reserved judgment on the determinations made by Commerce. Hosiden I, 810 F.Supp. at 325. [3] On February 1, 1993 and March 1, 1993, ADMA and the ITC respectively filed notices of appeal with the Court of Appeals for the Federal Circuit. On July 13, 1993, the Federal Circuit dismissed these two appeals, noting that "[r]eview of the issues in the remand order is not simply appropriate at this time." Hosiden v. United States, Nos. 93-1224, 93-1269, 1993 WL 452601, at *6, 1993 U.S.App. LEXIS 19060, at *20 (Fed.Cir. July 13, 1993). [4] Indeed, several Commissioners expressed their disagreement or concern with the court's remand instructions in Hosiden I, but nevertheless submitted their views for the Remand Determination in order to comply with the court's instructions. [5] 19 U.S.C. § 1677(7)(B)(i) provides that the Commission shall consider the volume of subject imports, the effect of subject imports on prices in the U.S. for like products, and the impact of such imports on the domestic producers of like products. 19 U.S.C. § 1677(7)(B)(ii) further provides that the Commission "may consider such other economic factors as are relevant to the determination regarding whether there is material injury by reason of imports."
Commissioner Nuzum joined Chairman Newquist and Commissioner Rohr in expressing the majority view on the issues of like product, domestic industry, and condition of the industry. Remand Determination at I-3 to I-15, VI-1. ADMA does not challenge these aspects of Commissioner Nuzum's EL determination. [*] Editor's Note: Brackets are supplied by the court throughout to indicate areas containing confidential information. [6] Apparent domestic consumption of all HIC FPDs was [ ] Staff Report at A-137 (Table 37). Imports of EL displays from Japan amounted to [ ] Staff Report at A-133 (Table 35). [7] With regard to 640 × 200 EL displays, prices for domestic displays [ ] over time, while prices for displays from Japan [ ]. Staff Report at A-179, A-180 (Tables 44 and 45).
With regard to 640 × 400 EL displays, prices of both domestic and Japanese displays [ ] during the period of investigation. Id. [8] Total 1989 domestic industry shipments amounted to [ ]. Staff Report at A-78 (Table 12). [9] In Canadian Meat Council, at the time that the court's review of Commerce's determination became moot, Commerce had not yet complied with the terms of the remand order. The court therefore vacated the remand order, recognizing that "[t]he remand ordered in [the court's prior review of Commerce's determination] is not necessary." Canadian Meat Council, 12 CIT at 112, 680 F.Supp. at 393. In Babcock & Wilcox, the remand order vacated by the court was similarly an order with which the Commission had yet to comply. Babcock & Wilcox, 4 CIT at 4-7 (filing of a new antidumping petition pursuant to a stipulated agreement between the parties rendered the pending remand order before the Commission superfluous). The contrast to the present case is clear; having already issued its Remand Determination, the ITC's mootness argument is thus undermined. | 10-30-2013 | [
"852 F. Supp. 1050 (1994) HOSIDEN CORPORATION, Plaintiff, v. UNITED STATES, Defendant. Court No. 91-10-00720. Slip Op. 94-60. United States Court of International Trade. April 14, 1994. *1051 *1052 Adduci, Mastriani, Schaumberg & Schill (Louis S. Mastriani, Anri Suzuki, and Gregory C. Anthes), Washington, DC, for plaintiff Hosiden Corp. Donovan Leisure Newton & Irvine (Peter J. Gartland, David S. Versfelt, Christopher P. Johnson, and Christopher K. Tahbaz), New York City, for plaintiff Sharp Corp. Graham & James (Lawrence R. Walders), Washington, DC, for plaintiffs Hitachi, Ltd.; Hosiden Corp.; Matsushita Elec. Industrial Co., Ltd.; NEC Corp.; Seiko Epson Corp.; and Toshiba Corp. Baker & McKenzie (Thomas P. Ondeck and Kevin M. O'Brien), Washington, DC, for plaintiff Apple Computer, Inc. O'Melveny & Myers (Kermit W. Almstedt, Peggy A. Clarke, Greta L.H. Lichtenbaum, and Craig L. McKee), Washington, DC, for plaintiff International Business Machines Corp. Collier, Shannon, Rill & Scott (Paul C. Rosenthal, Robin H. Gilbert), Washington, DC, for plaintiff Advanced Display Mfrs. of America. Vinson & Elkins L.L.P. (Theodore W. Kassinger, Charles D. Tetrault, and Rosemary E. Gwynn), Washington, DC, for plaintiff Compaq Computer Corp. Pennie & Edmonds (Arthur Wineburg and Marcia H. Sundeen), Washington, DC, for plaintiff Tandy Corp. Frank W. Hunger, Asst.",
"Atty. Gen.; David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice (A. David Lafer); Marguerite E. Trossevin, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, DC, of counsel, for defendant. Lyn M. Schlitt, General Counsel; James A. Toupin, Asst. Gen. Counsel, U.S. Intern. Trade Com'n (Paul R. Bardos and Rachele Valente), Washington, DC, for defendant. Collier, Shannon, Rill & Scott (Paul C. Rosenthal, Robin H. Gilbert), Washington, DC, for defendant-intervenor Advanced Display Mfrs. of America. Jones, Day, Reavis & Pogue (John E. Benedict, David G. Schryver, and Thomas F. Cullen, Jr.), Washington, DC, for defendant-intervenor Texas Instruments, Inc. *1053 MEMORANDUM OPINION GOLDBERG, Judge. This matter is before the court for review of the final remand determination by the U.S. International Trade Commission (\"ITC\" or \"Commission\") issued pursuant to this court's memorandum opinion and order dated December 29, 1992 (16 CIT ___, 810 F. Supp.",
"322 (1992)). The ITC issued its remand determination on March 8, 1993. Certain High-Information Content Flat Panel Displays and Display Glass Therefor From Japan, Inv. No. 731-TA-469 (Final) (Remand), USITC Pub. No. 2610 (Mar. 1993) (\"Remand Determination\"). Upon remand, the Commission determined that an industry in the United States was not materially injured by reason of imports from Japan of electroluminescent (\"EL\") high-information content flat panel displays (\"HIC FPDs\" or \"displays\"). Plaintiff Advanced Display Manufacturers of America (\"ADMA\") has filed a motion for judgment on the agency record challenging the Commission's negative remand determination, alleging it is not based on substantial evidence in the administrative record, and not in accordance with law. The court will first examine that portion of the Commission's Remand Determination concerning EL displays, and conclude that in this regard the Remand Determination is in accordance with law and is supported by substantial evidence. The court therefore denies ADMA's motion and affirms this portion of the Remand Determination. After the ITC filed its Remand Determination, the U.S. Department of Commerce (\"Commerce\") revoked the antidumping duty order on active matrix liquid crystal display (\"AMLCD\") HIC FPDs from Japan.",
"Commerce's revocation of the antidumping duty order thus renders moot all proceedings concerning AMLCDs. As a result, the court dismisses all complaints in this action pertaining to AMLCDs from Japan. The court further concludes that Commerce's revocation does not require this court to vacate its Memorandum Opinion and Order of December 29, 1992, which instructed the ITC to reconsider its determination. BACKGROUND This is the latest chapter in the saga of this antidumping investigation of high-information content flat panel displays and display glass therefor from Japan. The proceedings relevant to the present action are summarized and highlighted as follows. [1] On July 16, 1991, Commerce published its final affirmative determination finding four separate classes or kinds of imported merchandise. Two of these classes, active-matrix liquid crystal displays (\"AMLCDs\") and electroluminescent HIC FPDs (\"ELs\" or \"EL displays\"), were found to be sold at less than fair value. High Information Content Flat Panel Displays and Display Glass Therefor From Japan, 56 Fed.Reg. 32,376 (July 16, 1991).",
"Commerce established a weighted average margin of 62.67 percent for all imports of AMLCDs and 7.02 percent for all imports of ELs. Id., 56 Fed.Reg. at 32,401. The ITC reached a final affirmative injury determination in this investigation on August 26, 1991. Certain High-Information Content Flat Panel Displays and Display Glass Therefor From Japan, Inv. No. 731-TA-469 (Final), USITC Pub. No. 2413 (Aug. 1991) (\"ITC Final Determination\"). The ITC found that all types of HIC FPDs comprised a single domestic like product, which corresponded to more than one class or kind of imported merchandise. ITC Final Determination at 7. The ITC determined that the domestic industry which produced the like product had been materially injured by less than fair value (\"LTFV\") imports of two classes or kinds of merchandise, EL displays and AMLCDs. ITC Final Determination at 27. In reaching this determination, the ITC conducted a single material injury analysis that considered the aggregate effects of the two classes or kinds of merchandise on the domestic industry that produced the like product.",
"ITC Final Determination at 23-27. Commerce then published antidumping duty orders on imports of AMLCDs and ELs from *1054 Japan. High Information Content Flat Panel Displays and Display Glass Therefor from Japan, 56 Fed.Reg. 43,741, 43,742 (Sept. 4, 1991). Plaintiffs initiated actions challenging the determinations of both Commerce and the Commission. On December 29, 1992, this court issued a memorandum opinion and order, in which it remanded this matter to the ITC for reconsideration.",
"Hosiden Corp. v. United States, 16 CIT ___, 810 F. Supp. 322 (1992) (\"Hosiden I\"). [2] The court instructed the ITC to make two separate material injury determinations for domestic producers of the like product corresponding to each class or kind of imported merchandise found by Commerce to be sold at less than fair value, i.e. AMLCDs and EL HIC FPDs. Hosiden I, 810 F.Supp. at 331. [3] On March 8, 1993, the ITC submitted its Remand Determination to the court. Four of the six commissioners found that imports of EL displays from Japan had caused no material injury to a domestic industry. Remand Determination at II-1, VI-1. ADMA now challenges that negative determination concerning imports of EL displays via its motion for judgment upon the agency record. The ITC's Remand Determination also found by a 3-3 vote that imports of AMLCDs had caused material injury to an industry in the United States. Remand Determination at I-1, II-1. Commerce, however, announced on June 25, 1993, its final results of a changed circumstances administrative review, and revoked the antidumping duty order on AMLCDs.",
"Active Matrix Liquid Crystal High Information Content Flat Panel Displays and Display Glass Therefor From Japan, 58 Fed.Reg. 34,409, 34,414 (June 25, 1993). The period for appealing Commerce's revocation expired without any appeal being filed. DISCUSSION A. ITC's Remand Determination Is In Accordance With Law ADMA challenges the ITC's negative determination regarding EL displays as not being in accordance with law. ADMA does not contend that the ITC failed to follow the court's remand instructions. Rather, ADMA asserts that the ITC's determination is contrary to law because it was based on the allegedly legally erroneous remand instructions handed down by this court. Memorandum of Advanced Display Manufacturers Of America, Et Al. In Support Of Motion For Judgment Upon An Agency Record (\"ADMA Brief\") at 10.",
"\"The Court's failure to apply a deferential standard of review to the Commission's original findings, followed by the Court imposing its own erroneous framework on the Commission's analysis, was contrary to law and accordingly caused the Commission's remand results to be contrary to law.\" Id. The Commission responded: Whether or not this Court's December 29, 1992, order was in error, however, the Commission was required to comply with that order and did so in its determination on remand. Memorandum of Defendant U.S. International Trade Commission In Response To Private Parties' Comments Concerning The Commission's Remand Determination (\"ITC Brief\") at 15. Rather than challenge the ITC's Remand Determination, ADMA challenges the court's underlying remand order and opinion in Hosiden I. ADMA essentially complains that this court's remand order resulted in an unlawful usurpation of the Commission's discretionary authority. ADMA's disagreement with the court's interpretation of the law set forth in Hosiden I, however, is extraneous to the court's present determination of whether the Commission's Remand Determination is *1055 in accordance with law. [4] At this point in the proceedings, the court is concerned solely with whether the Commission complied with the court's remand instructions. The court finds that the ITC's Remand Determination is in compliance with the Hosiden I remand order and opinion, and is in accordance with law. As to ADMA's assertion that this court failed to apply a deferential standard of review to the Commission's Final Determination, the court disagrees.",
"As discussed in greater detail in Hosiden I, this court fulfilled its statutory duty to assess whether the ITC's original Final Determination was \"in accordance with law.\" 19 U.S.C. § 1516a(b)(1)(B) (1988). The court respectfully considered the views of the Commissioners expressed in the ITC's Final Determination. Deference, however, does not compel a relinquishment of the court's responsibility to conduct meaningful judicial review. Borlem S.A.-Empreedimentos Industriais v. United States, 8 Fed.Cir. (T) 164, 168, 913 F.2d 933, 937 (1990). Furthermore, the \"`traditional deference courts pay to agency interpretation is not to be applied to alter the clearly expressed intent of Congress.'\"",
"Serampore Indus. Pvt. Ltd. v. U.S. Dep't of Commerce, 11 CIT 866, 869, 675 F. Supp. 1354, 1357 (1987) (quoting Board of Governors of the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 368, 106 S. Ct. 681, 686, 88 L. Ed. 2d 691 (1986)). In Hosiden I, the court found that the ITC's statutory interpretation was not in accordance with the plain language of the statute. Hosiden I, 810 F.Supp. at 328. Title 19 of the United States Code, § 1673 (1988), provides that antidumping duties shall be imposed if: (1) the administering authority determines that a class or kind of foreign merchandise is being, or is likely to be, sold in the United States at less than its fair value, and (2) the Commission determines that (A) an industry in the United States (i) is materially injured, or (ii) is threatened with material injury, or (B) \"the establishment of an industry in the United States is materially retarded, by reason of imports of that merchandise or by reason of sales (or the likelihood of sales) of that merchandise....\" 19 U.S.C.",
"§ 1673 (1988) (emphasis added). This statute clearly refers to \"a class or kind of foreign merchandise\" as \"that merchandise.\" The modifier \"that\" specifically limits the Commission's comparisons to those particular imports of \"a class or kind\" found by Commerce to have been dumped. The statute thus envisions a separate ITC determination for each separate class or kind of merchandise that Commerce determines is being sold in the United States at less than fair value. The court also acknowledged the established caselaw that supports the Commission's authority to make its own like product determinations. Hosiden I, 810 F.Supp. at 329 (citing Torrington Co. v. United States, 14 CIT 648, 747 F. Supp.",
"744 (1990), aff'd, 9 Fed.Cir. (T) 101, 938 F.2d 1278 (1991)). Hosiden I does not conflict with prior decisions of this court that upheld the Commission's right to find multiple like products within each class or kind of article defined by Commerce. Id. (citing Sony Corp. of America v. United States, 13 CIT 353, 712 F. Supp. 978 (1989); American NTN Bearing Mfg. Corp. v. United States, 14 CIT 320, 739 F. Supp. 1555 (1990)).",
"Furthermore, Hosiden I does not preclude the Commission from cumulating the effects of the different classes or kinds of merchandise identified by Commerce. 19 U.S.C. § 1677(7)(C)(iv) clearly authorizes the ITC to cumulate the volume and effect of dumped imports subject to investigation. Cf. Chaparral Steel Co. v. United States, 8 Fed. Cir. (T) 101, 108, 901 F.2d 1097, 1103 (1990). This, however, is different from cumulating multiple classes or kinds of merchandise identified by Commerce. As Commissioner *1056 Brunsdale noted, Hosiden I recognized that under the statutory framework, when Commerce finds multiple classes or kinds of merchandise, the Commission is to make multiple determinations. Remand Determination at IV-9. Such a finding does not require the Commission to find multiple like products or multiple domestic industries; it does, however, require multiple determinations.",
"Id. Rather than define a single like product corresponding to cumulated classes or kinds of merchandise, the Commission may choose to define a single like product that corresponds to each class or kind of merchandise determined to exist by Commerce. In this scenario, the Commission would then make multiple comparisons of the single like product against each class or kind of merchandise. Clearly, this analytical framework does not eviscerate the Commission's authority to cumulate, as provided by 19 U.S.C. § 1677(7)(C)(iv). As noted in Hosiden I, cumulation of two or more classes or kinds of articles increases the diversity of merchandise for which the Commission seeks to find a \"like product.\" Hosiden I, 810 F.Supp. at 330. In certain situations, the totality of characteristics of cumulated classes or kinds of merchandise would not differ significantly from the characteristics of each class or kind viewed separately.",
"Id. However, in other cases, the cumulation of multiple classes or kinds of merchandise may very well result in an expanded definition of \"like product;\" correspondingly, the expanded definition of the domestic industry would then lead to a skewed causation determination. Id. Indeed, it is a result such as this which is not \"in accordance with law.\" 19 U.S.C. § 1516a(b)(1) (1988). In sum, then, a plain reading of the specific language of 19 U.S.C. § 1673 indicates that the Commission is required to make separate material injury determinations corresponding to each class or kind of merchandise found by Commerce to have been sold in the United States at less than fair value.",
"B. ITC's Remand Determination Is Supported By Substantial Evidence ADMA argues that the Commission's negative EL determination is not based on substantial evidence. More specifically, ADMA challenges Commissioner Nuzum's remand determination as unsupported by substantial evidence in the record. Commissioner Nuzum joined Vice Chairman Watson and Commissioners Brunsdale and Crawford in finding that imports of EL displays from Japan did not cause material injury or a threat of material injury to a domestic industry. ADMA ignores the findings of the three other commissioners who voted in favor of the negative injury determination, and focuses its arguments on the findings of Commissioner Nuzum. In support of its argument that Commissioner Nuzum's findings are not supported by substantial evidence, ADMA offers two general arguments. First, ADMA contrasts Commissioner Nuzum's findings to the contrary findings of Chairman Newquist and Commissioner Rohr.",
"ADMA Brief at 5-7. Merely highlighting the contrary views expressed by a minority of Commissioners, however, is an insufficient basis for demonstrating that the views of the majority of Commissioners are not supported by substantial evidence. \"[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.\" Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620, 86 S. Ct. 1018, 1026, 16 L. Ed. 2d 131 (1966) (quoted in Matsushita Elec. Ind. Co. v. United States, 3 Fed.Cir. (T) 44, 51, 750 F.2d 927, 933 (1984)). ADMA also generally asserts that Commissioner Nuzum \"appears to have ignored\" certain evidence in the administrative record in making her findings.",
"ADMA Brief at 5. ADMA's assertions are unfounded. All of the Commissioners, including Commissioner Nuzum, are presumed to have considered all of the evidence in the administrative record in reaching their determinations. Metallverken Nederland B.V. v. United States, 13 CIT 1013, 1021, 728 F. Supp. 730, 736 (1989). ADMA appears to confuse the issue of whether Commissioner Nuzum considered the information, with whether she discussed that information. In order to determine *1057 whether the views of Commissioner Nuzum and the majority of Commissioners are supported by substantial evidence, the court will review the ITC majority's determination concerning the subject EL imports, focusing on the volume of EL imports, the price effects of EL imports, and the impact of EL imports on the domestic industry.",
"[5] 1. Volume A majority of the Commissioners found that the volume of EL imports from Japan decreased over the period of investigation (\"POI\"), both in absolute terms and relative to domestic consumption. Remand Determination at II-11, VI-1 to VI-2. The majority concluded that they \"[did] not find the volume or any increase in volume of subject imports to be significant.\" Id. at II-12. Commissioner Nuzum specifically concluded that: Given the small size of the market accounted for by subject EL imports [and] the overall decrease in the volume of these imports in absolute terms and relative to domestic consumption and production, ... I cannot say that I find the volume of imports of EL FPDs to be significant. Remand Determination at VI-2 to VI-3. ADMA argues that the \"enormous significance\" of the volume of subject EL imports, relative to U.S. producers' shipments of HIC FPDs, demonstrates the unreasonableness of Commissioner Nuzum's finding that the volume of EL imports was insignificant. ADMA Brief at 5-6.",
"ADMA's argument is unfounded. The record clearly indicates that the subject EL imports accounted for only a small share of domestic consumption of HIC FPDs. In absolute unit volume terms, the quantity of EL display imports from Japan was lower at the end of the POI, i.e. [ ] units in 1990, that at the beginning of the POI, i.e. [ ] units in 1988. [*]Staff Final Report to the Commission on Investigation No. 731-TA-469 (Final) (Aug. 5, 1991) at A-133 (Table 35) (\"Staff Report\"). In relative market share terms, the quantity of U.S. shipments of Japanese EL displays accounted for only [ ] percent of the total U.S. market for EL displays in 1990, down from [ ] percent in 1988. Staff Report at A-140 (Table 38). Similarly, the U.S. market share of Japanese EL displays, measured by value, decreased from [ ] percent in 1988 to [ ] percent in 1990; this represents a decrease over the POI of nearly [ ] percent. See id. The insignificance of the volume of EL display imports from Japan is further highlighted when compared with overall U.S. consumption of all HIC FPDs.",
"EL display imports from Japan represented approximately [ ] percent of all HIC FPDs consumed in the United States during the POI. [6] In sum, the record indicates that the volume of imports of EL displays from Japan decreased over the POI, represented less than [ ] percent of the domestic EL display market by 1990, and accounted for a mere [ ] percent of total HIC FPD consumption in the United States during the POI. The court thus finds that the ITC's determination that the volume of EL imports was not significant is supported by substantial evidence in the record. 2. Price Effects A majority of the Commission found that EL imports did not cause significant price suppression. Remand Determination *1058 at II-14, VI-4. Commissioner Nuzum specifically noted that, given the limited amount of price data on the FPD industry and market, she was \"especially careful to closely examine the complete record for other evidence of a causal link between subject EL imports and the condition of the domestic industry.\" Id. at VI-4.",
"The court finds that the majority's finding regarding price effects is supported by substantial evidence. The record indicates that pricing data was sparse and of limited usefulness in part because different models of EL displays tend to be customized. Staff Report at A-173. Despite the serious difficulties in making price comparisons, the ITC did conduct price comparisons for two types of EL displays, i.e. 640 × 200 EL displays and 640 × 400 EL displays, and discovered both underselling and overselling by importers of the subject merchandise. [7]Staff Report at A-179. The limited data is thus inconclusive of any pattern of underselling by foreign producers.",
"In sum, viewing the limited pricing data available in light of the overall record, and accounting for instances of overselling by imports and the fluctuating and rising price trends, the majority of Commissioners, including Commissioner Nuzum, reasonably concluded that the subject EL imports did not have significant price effects. The statutory standard of significant price undercutting is not met when the ITC finds a mixed pattern of underselling and overselling. Copperweld Corp. v. United States, 12 CIT 148, 162, 682 F. Supp. 552, 566 (1988). The court finds that the record reveals no pattern of underselling by Japanese EL display producers, and further finds a lack of evidence supporting ADMA's allegation of price suppression or depression. 3. Impact on the Domestic Industry A majority of Commissioners also found that Japanese imports of EL displays did not have an impact on the condition of the domestic industry sufficient to merit an affirmative material injury determination.",
"Remand Determination at II-14, VI-6. Commissioner Nuzum noted that, although the record contained evidence of one sale being lost to subject imports, that lost sale had little more than a de minimis effect on the domestic industry. Id. at VI-5. Commissioner Nuzum emphasized that, when compared to the trends for domestic producers' shipments and for shipments of certain other imports, the subject EL imports had only a very minor, stable, presence in the domestic market. Id.",
"Commissioner Nuzum thus concluded that insufficient evidence existed demonstrating a causal link between the subject EL imports and the condition of the domestic industry such that an affirmative injury determination was unwarranted. Remand Determination at VI-6. ADMA contends that Commissioner Nuzum ignored \"numerous\" other examples of lost sales and lost revenues contained in the record. ADMA Brief at 6. All but one of these examples, however, amount to ADMA allegations which were never confirmed by the ITC. Staff Report at A-182 to A-195. Furthermore, the lone confirmed lost sale involved no more than [ ] units for which the domestic price would have been [ ] per unit. Staff Report at A-182 to A-183. The maximum loss to the domestic industry would have equaled [ ] or [ ] percent of the total value of domestic industry shipments in 1989.",
"[8] The court finds that Commissioner Nuzum's characterization of this lost sale as de minimis was reasonable, in light of the amount of potential revenue involved and the lack of any other confirmed lost sales. Based on the foregoing analysis, the court finds that the ITC's Remand Determination regarding EL displays from Japan is in accordance with law, and that the majority's *1059 determination is supported by substantial evidence. Thus, the court affirms the ITC's determination that a domestic industry was not materially injured or threatened with material injury by reason of the subject EL imports. C. Effect of Revocation of AMLCD Antidumping Duty Order On Hosiden I Commerce revoked the antidumping duty order covering AMLCDs, effective June 25, 1993. Active Matrix Liquid Crystal High Information Content Flat Panel Displays and Display Glass Therefor From Japan, 58 Fed.Reg. 34,409, 34,414 (June 25, 1993). The period for appealing Commerce's revocation expired without any appeal being filed.",
"Plaintiffs had previously challenged the Commission's final affirmative determination with respect to AMLCDs because that determination led to the imposition of an antidumping duty order by Commerce on the importation of AMLCDs. Plaintiff Sharp states that \"[i]n light of Commerce's unchallenged determination to revoke the antidumping duty order on AMLCDs from Japan, there is no longer a case or controversy with regard to that order, and any challenges previously addressed to that order are now moot.\" Submission Of Plaintiff Sharp Corporation Addressed To Remand Determination Of The United States International Trade Commission at 2. The Commission agrees with plaintiff Sharp's statement that Commerce's revocation has rendered moot the proceedings concerning AMLCDs.",
"The ITC, however, further argues that: This Court should not only dismiss those portions of plaintiffs' complaints relating to AMLCDs, but should also vacate the Court's memorandum opinion and order of December 29, 1992, except insofar as the order instructs the Commission to evaluate subject imports of EL displays. ITC Brief at 8. The ITC contends that the basis for the court's decision was the existence of two classes or kinds of imported merchandise found to be sold at less than fair value. Given that Commerce revoked the antidumping duty order on AMLCDs, only one class or kind of dumped merchandise remains under investigation, i.e. EL displays. It is impossible to consider the combined effects of multiple classes or kinds of merchandise when there is only one class or kind of merchandise under investigation. Therefore, according to the ITC, \"any case or controversy as to whether the Commission may consider the combined effects of two classes or kinds of dumped merchandise on a domestic industry is ended.\" Id. The court notes that Article III courts \"`lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cases or controversies.'\"",
"PPG Indus., Inc. v. United States, 11 CIT 303, 306, 660 F. Supp. 965, 968 (1987) (quoting Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 70, 104 S. Ct. 373, 374-75, 78 L. Ed. 2d 58 (1983)). A revocation determination by Commerce which is not timely challenged voids the underlying antidumping duty order, and renders moot any pending challenges to such an order. Asahi Chem. Indus. Co. v. United States, 13 CIT 987, 992, 727 F. Supp. 625, 629 (1989). Because Commerce has revoked the antidumping duty order for AMLCDs, issues pertaining to AMLCDs in this proceeding are now moot and need not be addressed in this opinion. Thus, the court dismisses all pending challenges concerning AMLCDs. The court, however, disagrees with the Commission's argument that Commerce's revocation also requires the court to vacate its Hosiden I decision. The sequence of events in this case demonstrates that vacatur of the Hosiden I decision and accompanying remand order is inappropriate.",
"This court issued its Memorandum Opinion and Order in Hosiden I on December 29, 1992, instructing the ITC to conduct separate injury analyses for two classes or kinds of merchandise: EL displays and AMLCDs. On March 8, 1993, in response to the Hosiden I decision and remand order, the Commission issued its Remand Determination. On June 25, 1993, Commerce published its final determination to revoke the antidumping duty order on AMLCDs. Having already submitted its Remand Determination in response to this court's order, the ITC now asks the court to *1060 perform a legal sleight of hand by vacating the very order upon which that Remand Determination rests. The ITC essentially asks this court to vacate an order with which it has already complied, as well as the decision that guided the Commission's own disposition of the EL material injury investigation that is presently before the court.",
"The ITC argues that \"if the Commission had known about Commerce's decision to revoke, it would never have considered imported AMLCDs as being subject to its final determination at all.\" ITC Brief at 14. The court refuses to speculate as to what the Commission might have done had the Commission considered Commerce's revocation decision. The fact remains that the Commission's Remand Determination was submitted to the court before Commerce revoked the antidumping duty order on AMLCDs. The Commission errs in asserting that Commerce's revocation has rendered the entire proceeding governed by Hosiden I moot. The Hosiden I decision is still very much a \"live\" case because the portion of the Commission's Remand Determination that explicitly addresses the pending EL order is the direct result of the explicit language of the court's Hosiden I decision. There is no way to separate the pending antidumping order on EL displays from the Hosiden I decision. The court finds no reason to vacate the order upon which the Remand Determination rests. In support of its argument that the court must vacate Hosiden I for mootness, the Commission cites several cases, i.e.",
"Canadian Meat Council v. United States, 12 CIT 108, 680 F. Supp. 390 (1988); Babcock & Wilcox Co. v. United States, 4 CIT 3 (1982); Associated Dry Goods Corp. v. United States, 3 CIT 1, 533 F. Supp. 1343 (1982), vacated, 69 C.C.P.A. 169, 682 F.2d 212 (1982). ITC Brief at 10-12. The present case is clearly distinguishable from the cases cited by the ITC in one significant aspect; specifically, in contrast to the cases cited by the government, the Commission has already acted in response to, and fully complied with, this court's remand instructions in Hosiden I.",
"[9] The Commission also relies upon United States v. Munsingwear, Inc., 340 U.S. 36, 71 S. Ct. 104, 95 L. Ed. 36 (1950), in support of its request for vacatur of Hosiden I. ITC Brief at 8-9. Vacatur is warranted in order to \"prevent a judgment, unreviewable because of mootness, from spawning any legal consequences.\" Munsingwear, 340 U.S. at 41, 71 S.Ct. at 107. As in Babcock & Wilcox, however, no final determination on the merits has yet been rendered in this case. See Babcock & Wilcox, 4 CIT at 5. The Hosiden I remand order and opinion did not compel a particular result on remand, nor did it unquestionably terminate the action before this court. Thus, Hosiden I is not a final judgment on the merits with associated res judicata effect. Indeed, the Federal Circuit recognized as much when it denied the petitions of ADMA and the ITC for appeal of the Hosiden I remand order.",
"Hosiden Corp. v. United States, Nos. 93-1224, 93-1269, 1993 WL 452601, at *6, 1993 U.S.App. LEXIS 19060, at *20 (Fed.Cir. July 13, 1993) (\"Review of the issues in the remand order is not simply appropriate at this time.\"). Though the ITC may disagree with the Hosiden I decision, the fact remains that the ITC's Remand Determination has already been issued; the very existence of the Remand Determination exposes the logical fallacy undermining the ITC's argument for vacatur. The case before the court has not become entirely moot. The Hosiden I decision is a necessary underpinning to the ITC's Remand Determination, which is presently *1061 before the court for review. The government's motion for vacatur is therefore denied.",
"CONCLUSION For the reasons set forth above, the court affirms the ITC's Remand Determination that a domestic industry was not materially injured or threatened with material injury by reason of subject EL imports. All issues pertaining to AMLCDs have been rendered moot by Commerce's revocation of the underlying antidumping duty order; therefore, the court dismisses all pending challenges concerning AMLCDs. Judgment will be entered accordingly. ORDER This case having been duly submitted for decision, and the court, after due deliberation, having rendered a decision herein; now, therefore, in accordance with said decision and upon consideration of Certain High-Information Content Flat Panel Displays and Display Glass Therefor From Japan, Inv.",
"No. 731-TA-469 (Final) (Remand), USITC Pub. No. 2610 (Mar. 1993), issued by the U.S. International Trade Commission (\"ITC\") on March 8, 1993, and upon consideration of the August 12, 1993 motion of Advanced Display Manufacturers of America (\"ADMA\") for judgment upon an agency record, it is hereby ORDERED that the ITC's final negative injury determination on remand with regard to electroluminescent (\"EL\") high information content flat panel displays and display glass therefor from Japan, is sustained; it is further ORDERED that ADMA's motion is denied; it is further ORDERED that, based upon the ITC's determination on remand, the United States Department of Commerce (\"Commerce\") shall revoke the antidumping duty order on EL high information content flat panel displays and display glass therefor from Japan, said order having been published at 56 Fed. Reg.",
"43,741, 43,742 (Sept. 4, 1991), within 10 days of the date of this Judgment; it is further ORDERED that all challenges raised in this case pertaining to the antidumping duty order on active matrix liquid crystal high information content flat panel displays and display glass therefor from Japan, are dismissed as moot by reason of Commerce's uncontested determination in Active Matrix Liquid Crystal High Information Content Flat Panel Displays and Display Glass Therefor From Japan, 58 Fed.Reg. 34,409 (June 25, 1993); and it is further ORDERED that the complaints filed with this court in the following cases, which were consolidated under the above-captioned case, are hereby dismissed: Court Nos. 91-10-00720, 91-10-00731, 91-10-00732, 91-10-00733, 91-10-00734, 91-10-00740, 91-10-00741, and 91-10-00744.",
"NOTES [1] For a more detailed description of the procedural history of this case, see Hosiden Corp. v. United States, 16 CIT ___, ___, 810 F. Supp. 322, 325-27 (1992). [2] At the time the court issued its order of remand, the court reserved judgment on the determinations made by Commerce. Hosiden I, 810 F.Supp. at 325. [3] On February 1, 1993 and March 1, 1993, ADMA and the ITC respectively filed notices of appeal with the Court of Appeals for the Federal Circuit. On July 13, 1993, the Federal Circuit dismissed these two appeals, noting that \"[r]eview of the issues in the remand order is not simply appropriate at this time.\" Hosiden v. United States, Nos. 93-1224, 93-1269, 1993 WL 452601, at *6, 1993 U.S.App. LEXIS 19060, at *20 (Fed.Cir. July 13, 1993). [4] Indeed, several Commissioners expressed their disagreement or concern with the court's remand instructions in Hosiden I, but nevertheless submitted their views for the Remand Determination in order to comply with the court's instructions. [5] 19 U.S.C. § 1677(7)(B)(i) provides that the Commission shall consider the volume of subject imports, the effect of subject imports on prices in the U.S. for like products, and the impact of such imports on the domestic producers of like products. 19 U.S.C. § 1677(7)(B)(ii) further provides that the Commission \"may consider such other economic factors as are relevant to the determination regarding whether there is material injury by reason of imports.\"",
"Commissioner Nuzum joined Chairman Newquist and Commissioner Rohr in expressing the majority view on the issues of like product, domestic industry, and condition of the industry. Remand Determination at I-3 to I-15, VI-1. ADMA does not challenge these aspects of Commissioner Nuzum's EL determination. [*] Editor's Note: Brackets are supplied by the court throughout to indicate areas containing confidential information. [6] Apparent domestic consumption of all HIC FPDs was [ ] Staff Report at A-137 (Table 37). Imports of EL displays from Japan amounted to [ ] Staff Report at A-133 (Table 35). [7] With regard to 640 × 200 EL displays, prices for domestic displays [ ] over time, while prices for displays from Japan [ ]. Staff Report at A-179, A-180 (Tables 44 and 45). With regard to 640 × 400 EL displays, prices of both domestic and Japanese displays [ ] during the period of investigation. Id. [8] Total 1989 domestic industry shipments amounted to [ ].",
"Staff Report at A-78 (Table 12). [9] In Canadian Meat Council, at the time that the court's review of Commerce's determination became moot, Commerce had not yet complied with the terms of the remand order. The court therefore vacated the remand order, recognizing that \"[t]he remand ordered in [the court's prior review of Commerce's determination] is not necessary.\" Canadian Meat Council, 12 CIT at 112, 680 F.Supp. at 393. In Babcock & Wilcox, the remand order vacated by the court was similarly an order with which the Commission had yet to comply. Babcock & Wilcox, 4 CIT at 4-7 (filing of a new antidumping petition pursuant to a stipulated agreement between the parties rendered the pending remand order before the Commission superfluous). The contrast to the present case is clear; having already issued its Remand Determination, the ITC's mootness argument is thus undermined."
]
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-Q (Mark One) x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the Quarterly Period Ended June 30, 2013 or ¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the Transition Period from to Commission file number: 333-167380 ENERGY TELECOM, INC. (Exact name of registrant as specified in its charter) Florida 65-0434332 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.) 3501-B N. Ponce de Leon Blvd., #393 St. Augustine, Florida 32084 (Address of principal executive offices) (zip code) (904) 819-8995 (Registrant’s telephone number, including area code) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.Yes oNo x Note: The Company is a voluntary filer but has filed all reports it would have been required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months if it was a mandatory filer. Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes xNo o Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. Large accelerated filer o Accelerated filer o Non-accelerated filer o Smaller reporting company x (Do not check if a smaller reporting company) Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes¨ No x. As of August 9, 2013, there were8,894,541 and 600,000 shares of registrant’s class A and B common stock outstanding, respectively. ENERGY TELECOM, INC. INDEX Page PART I. FINANCIAL INFORMATION ITEM 1 Financial Statements Condensed balance sheets as of June 30, 2013 (unaudited) and December 31, 2012 3 Condensed statements of operations for the three and six months ended June 30, 2013 and 2012 (unaudited) 4 Condensed statement of changes in stockholders’ deficit for the six months ended June 30, 2013 (unaudited) 5 Condensed statements of cash flows for the six months ended June 30, 2013 and 2012 (unaudited) 6 Notes to condensed financial statements (unaudited) 7-12 ITEM 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations 13-19 ITEM 3. Quantitative and Qualitative Disclosures about Market Risk 19 ITEM 4. Controls and Procedures 19-21 PART II. OTHER INFORMATION ITEM 1. Legal Proceedings 21 ITEM 1A. Risk Factors 21 ITEM 2. Unregistered Sales of Equity Securities and Use of Proceeds 21 ITEM 3. Defaults Upon Senior Securities 21 ITEM 4. Mine Safety Disclosures 21 ITEM 5. Other Information 21 ITEM 6. Exhibits 22 SIGNATURES 23 2 PART I – FINANCIAL INFORMATION ITEM 1.FINANCIAL STATEMENTS ENERGY TELECOM, INC. CONDENSED BALANCE SHEETS June 30, December 31, (unaudited) ASSETS CURRENT ASSETS Cash $ $ Accounts receivable, net Inventory Advances to suppliers - Total current assets Property and equipment, net Total assets $ $ LIABILITIES AND STOCKHOLDERS' DEFICIT CURRENT LIABILITIES Accounts payable and accrued liabilities $ $ Stockholder notes payable Total current liabilities Derivative liability STOCKHOLDERS' DEFICIT Preferred stock, $0.001 par value; 10,000,000 shares authorized Series A convertible preferred stock, $0.001 par value, 5,790 shares designated, 3,947 and 2,150 shares issued and outstanding as of June 30, 2013 and December 31, 2012, respectively 4 2 Class A common stock, $0.0001 par value, 200,000,000 shares authorized, 8,879,541 and 8,884,415 shares issued and outstanding as of June 30, 2013 and December 31, 2012, respectively Class B common stock, no par value, 10,000,000 shares authorized, 600,000 shares issued and outstanding as of June 30, 2013 and December 31, 2012 Additional paid in capital Accumulated deficit ) ) Total stockholders' deficit ) ) Total liabilities and stockholders' deficit $ $ The accompanying notes are an integral part of these unaudited condensed financial statements 3 ENERGY TELECOM, INC. CONDENSED STATEMENTS OF OPERATIONS (unaudited) Three months ended June 30, Six months ended June 30, REVENUE: Sales $ $ | [
"UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-Q (Mark One) x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the Quarterly Period Ended June 30, 2013 or ¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the Transition Period from to Commission file number: 333-167380 ENERGY TELECOM, INC. (Exact name of registrant as specified in its charter) Florida 65-0434332 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.) 3501-B N. Ponce de Leon Blvd., #393 St. Augustine, Florida 32084 (Address of principal executive offices) (zip code) (904) 819-8995 (Registrant’s telephone number, including area code) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.Yes oNo x Note: The Company is a voluntary filer but has filed all reports it would have been required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months if it was a mandatory filer.",
"Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes xNo o Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. Large accelerated filer o Accelerated filer o Non-accelerated filer o Smaller reporting company x (Do not check if a smaller reporting company) Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes¨ No x.",
"As of August 9, 2013, there were8,894,541 and 600,000 shares of registrant’s class A and B common stock outstanding, respectively. ENERGY TELECOM, INC. INDEX Page PART I. FINANCIAL INFORMATION ITEM 1 Financial Statements Condensed balance sheets as of June 30, 2013 (unaudited) and December 31, 2012 3 Condensed statements of operations for the three and six months ended June 30, 2013 and 2012 (unaudited) 4 Condensed statement of changes in stockholders’ deficit for the six months ended June 30, 2013 (unaudited) 5 Condensed statements of cash flows for the six months ended June 30, 2013 and 2012 (unaudited) 6 Notes to condensed financial statements (unaudited) 7-12 ITEM 2.",
"Management’s Discussion and Analysis of Financial Condition and Results of Operations 13-19 ITEM 3. Quantitative and Qualitative Disclosures about Market Risk 19 ITEM 4. Controls and Procedures 19-21 PART II. OTHER INFORMATION ITEM 1. Legal Proceedings 21 ITEM 1A. Risk Factors 21 ITEM 2. Unregistered Sales of Equity Securities and Use of Proceeds 21 ITEM 3. Defaults Upon Senior Securities 21 ITEM 4. Mine Safety Disclosures 21 ITEM 5.",
"Other Information 21 ITEM 6. Exhibits 22 SIGNATURES 23 2 PART I – FINANCIAL INFORMATION ITEM 1.FINANCIAL STATEMENTS ENERGY TELECOM, INC. CONDENSED BALANCE SHEETS June 30, December 31, (unaudited) ASSETS CURRENT ASSETS Cash $ $ Accounts receivable, net Inventory Advances to suppliers - Total current assets Property and equipment, net Total assets $ $ LIABILITIES AND STOCKHOLDERS' DEFICIT CURRENT LIABILITIES Accounts payable and accrued liabilities $ $ Stockholder notes payable Total current liabilities Derivative liability STOCKHOLDERS' DEFICIT Preferred stock, $0.001 par value; 10,000,000 shares authorized Series A convertible preferred stock, $0.001 par value, 5,790 shares designated, 3,947 and 2,150 shares issued and outstanding as of June 30, 2013 and December 31, 2012, respectively 4 2 Class A common stock, $0.0001 par value, 200,000,000 shares authorized, 8,879,541 and 8,884,415 shares issued and outstanding as of June 30, 2013 and December 31, 2012, respectively Class B common stock, no par value, 10,000,000 shares authorized, 600,000 shares issued and outstanding as of June 30, 2013 and December 31, 2012 Additional paid in capital Accumulated deficit ) ) Total stockholders' deficit ) ) Total liabilities and stockholders' deficit $ $ The accompanying notes are an integral part of these unaudited condensed financial statements 3 ENERGY TELECOM, INC. CONDENSED STATEMENTS OF OPERATIONS (unaudited) Three months ended June 30, Six months ended June 30, REVENUE: Sales $ $"
]
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EXHIBIT 10.2
CHANGE IN CONTROL AGREEMENT
BETWEEN QUANEX BUILDING PRODUCTS CORPORATION
AND SCOTT ZUEHLKE
THIS AGREEMENT between Quanex Building Products Corporation, a Delaware corporation (the “Company”), and Scott Zuehlke (the “Executive”) is effective as of the Effective Date (as defined herein).
W I T N E S S E T H:
WHEREAS, the Company considers it to be in the best interests of its stockholders to encourage the continued employment of certain key employees of the Company notwithstanding the possibility, threat or occurrence of a Change in Control of the Company (as that phrase is defined in Section 2); and
WHEREAS, the Executive is a key employee of the Company; and
WHEREAS, the Company believes that the possibility of the occurrence of a Change in Control of the Company may result in the termination by the Executive of the Executive’s employment by the Company or in the distraction of the Executive from the performance of his duties to the Company, in either case to the detriment of the Company and its stockholders; and
WHEREAS, the Company previously recognized that the Executive could suffer adverse financial and professional consequences if a Change in Control of the Company were to occur and entered into this Agreement to protect the Executive if a Change in Control of the Company occurs; and
WHEREAS, under current Internal Revenue Service guidance, the Agreement is subject to Section 409A of the Internal Revenue Code of 1986, as amended by the American Jobs Creation Act of 2004 (“Section 409A”);
NOW, THEREFORE, the parties agree, effective as stated above, as follows:
Section 1. Other Employment Arrangements.
(a) Except as specified below in this paragraph, this Agreement does not affect the Executive’s existing or future employment arrangements with the Company unless a Change in Control of the Company shall have occurred before the expiration of the term of this Agreement. The Executive’s employment with the Company shall continue to be governed by the Executive’s existing or future employment agreements with the Company, if any, or, in the absence of any employment agreement, shall continue to be at the will of the Board of Directors or, if the Executive is not an officer of the Company at the time of the termination of the Executive’s employment with the Company, the will of the Chief Executive Officer of the Company, except that if (i) a Change in Control of the Company shall have occurred before the expiration of the term of this Agreement, and (ii) the Executive’s employment with the Company is terminated (whether by the Executive or the Company or automatically as provided in Section 3) after the occurrence of that Change in Control of the Company, then the Executive shall be entitled to receive certain benefits as provided in this Agreement.
(b) Notwithstanding anything contained in this Agreement to the contrary, if following the commencement of any discussion with a third person that ultimately results in a Change in Control of the Company, (i) the Executive’s employment with the Company is terminated, (ii) the Executive is removed from any material duties or position with the Company, (iii) the Executive’s Base Salary is reduced, or (iv) the Executive’s annual bonus is reduced to an amount less than the Benchmark Bonus, then for all purposes of this Agreement, such Change in Control of the Company shall be deemed to have occurred on the date immediately prior to the date of such termination, removal, or reduction.
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(c) Nothing in this Agreement shall prevent or limit the Executive’s continuing or future participation in any plan, program, policy or practice of or provided by the Company or any of its Affiliates and for which the Executive may qualify, nor shall anything herein limit or otherwise affect such rights as the Executive may have under any contract or agreement with the Company or any of its Affiliates. Amounts which are vested benefits or which the Executive is otherwise entitled to receive under any plan, program, policy or practice of or provided by, or any contract or agreement with, the Company or any of its Affiliates at or subsequent to the date of termination of the Executive’s employment with the Company shall be payable or otherwise provided in accordance with such plan, program, policy or practice or contract or agreement except as explicitly modified by this Agreement.
Section 2. Change in Control of the Company. For purposes of this Agreement, a “Change in Control of the Company” shall mean the occurrence of any of the following after the Effective Date:
(a) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a “ Covered Person”) of beneficial ownership (within the meaning of rule 13d-3 promulgated under the Exchange Act) of 20 percent or more of either (i) the then outstanding shares of the common stock of the Company (the “Outstanding Company Common Stock”), or (ii) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that for purposes of this subsection (a) of this Section 2, the following acquisitions shall not constitute a Change in Control of the Company: (i) any acquisition directly from the Company, (ii) any acquisition by the Company, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any entity controlled by the Company, or (iv) any acquisition by any corporation pursuant to a transaction which complies with clauses (i), (ii) and (iii) of subsection (c) of this Section 2; or
(b) individuals who, as of the Effective Date, constitute the Board of Directors (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board of Directors; provided, however, that any individual becoming a director subsequent to the Effective Date whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Covered Person other than the Board; or
(c) the consummation of (xx) a reorganization, merger, consolidation or sale of the Company, or (yy) a disposition of all or substantially all of the assets of the Company (a “Business Combination”), in each case, unless, following such Business Combination, (i) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, direct or indirectly, more than 80 percent of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Company Common Stock and Outstanding
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Company Voting Securities, as the case may be, (ii) no Covered Person (excluding any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 20 percent or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation, except to the extent that such ownership existed prior to the Business Combination, and (iii) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination, were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board of Directors, providing for such Business Combination; or
(d) the approval by the stockholders of the Company of a complete liquidation or dissolution of the Company.
Section 3. Term of This Agreement. The term of this Agreement shall begin on the Effective Date and, unless automatically extended pursuant to the second sentence of this Section 3, shall expire on the first to occur of:
(i) the Executive’s death or the Executive’s Disability, which events shall also be deemed automatically to terminate Executive’s employment by the Company;
(ii) the termination by the Executive or the Company of the Executive’s employment by the Company; or
(iii) the end of the last day (the “Expiration Date”) of:
(1) the three-year period beginning on the Effective Date (or any period for which the term of this Agreement shall have been automatically extended pursuant to the second sentence of this Section 3) if no Change in Control of the Company shall have occurred during that three-year period (or any period for which the term of this Agreement shall have been automatically extended pursuant to the second sentence of this Section 3); or
(2) if one or more Changes in Control of the Company shall have occurred during the three-year period beginning on the Effective Date (or any period for which the term of this Agreement shall have been automatically extended pursuant to the second sentence of this Section 3), the three-year period beginning on the date on which the last Change in Control of the Company occurred.
If (i) the term of this Agreement shall not have expired as a result of the occurrence of one of the events described in clause (i) or (ii) of the immediately preceding sentence, and (ii) the Company shall not have given notice to the Executive at least ninety (90) days before the Expiration Date that the term of this Agreement will expire on the Expiration Date, then the term of this Agreement shall be automatically extended for successive one-year periods (the first such period to begin on the day immediately following the Expiration Date) unless the Company shall have given notice to the Executive at least ninety (90) days before the end of any one-year period for which the term of this Agreement shall have been automatically extended that such term will expire at the end of that one-year period. The expiration of the term of this Agreement shall not terminate this Agreement itself or affect the right of the Executive or the Executive’s legal representatives to enforce the payment of any amount or other benefit to which the Executive was
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entitled before the expiration of the term of this Agreement or to which the Executive became entitled as a result of the event (including the termination, whether by the Executive or the Company or automatically as provided in this Section 3, of the Executive’s employment by the Company) that caused the term of this Agreement to expire.
Section 4. Event of Termination for Cause. An “Event of Termination for Cause” shall have occurred if, after a Change in Control of the Company, the Executive shall have committed:
(i) gross negligence or willful misconduct in connection with his duties or in the course of his employment with the Company;
(ii) an act of fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Company;
(iii) intentional wrongful damage to property of the Company;
(iv) intentional wrongful disclosure of secret processes or confidential information of the Company; or
(v) an act leading to a conviction of a felony or a misdemeanor involving moral turpitude.
For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed “intentional” if it was due primarily to an error in judgment or negligence, but shall be deemed “intentional” only if done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated as a result of an “Event of Termination for Cause” hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the Board of Directors then in office at a meeting of the Board of Directors called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with his counsel, to be heard before the Board of Directors), finding that, in the good faith opinion of the Board of Directors, the Executive had committed an act set forth above in this Section 4 and specifying the particulars thereof in detail. Nothing herein shall limit the right of the Executive or his legal representatives to contest the validity or propriety of any such determination.
Section 5. An Event of Termination for Good Reason. An “Event of Termination for Good Reason” shall mean the occurrence of any of the following on or after a Change in Control of the Company:
(i) the Company or the Successor assigns to the Executive any duties inconsistent with the Executive’s position (including offices, titles and reporting requirements), authority, duties or responsibilities with the Company in effect immediately before the occurrence of the first Change in Control of the Company or otherwise make any change in any such position, authority, duties or responsibilities;
(ii) the Company or the Successor removes the Executive from, or fails to re-elect or appoint the Executive to, any duties or position with the Company that were assigned or held by the Executive immediately before the occurrence of the first Change in Control of the Company, except that a nominal change in the Executive’s title that is merely descriptive and does not affect rank or status shall not constitute such an event;
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(iii) the Company or the Successor takes any other action that results in a material diminution in such position, authority, duties or responsibilities or otherwise take any action that materially interferes therewith;
(iv) the Company or the Successor reduces the Executive’s annual base salary as in effect immediately before the occurrence of the first Change in Control of the Company or as the Executive’s annual base salary may be increased from time to time after that occurrence (the “Base Salary”);
(v) the Company or the Successor reduces the Executive’s annual target bonus (x) to an amount less than $125,000 at any time on or prior to the third anniversary of the Effective Date, or (y) to an amount less than the average of the two annual bonuses earned by such Executive with respect to the two preceding years at any time after the third anniversary of the Effective Date (the amount determined pursuant to clause (x) or (y), as applicable, is referred to herein as the “Benchmark Bonus”);
(vi) the Company or the Successor relocates the Executive’s principal office outside of the portion of the metropolitan area of the City of Houston, Texas that is located within the highway known as “Beltway 8”;
(vii) the Company or the Successor fails to (x) continue in effect any bonus, incentive, profit sharing, performance, savings, retirement or pension policy, plan, program or arrangement (such policies, plans, programs and arrangements collectively being referred to herein as “Basic Benefit Plans”), including, but not limited to, any deferred compensation, supplemental executive retirement or other retirement income, stock option, stock purchase, stock appreciation, or similar policy, plan, program or arrangement of the Company, in which the Executive was a participant immediately before the occurrence of the first Change in Control of the Company, or any substitute plan adopted by the Board of Directors and in which the Executive was a participant immediately before the occurrence of the last Change in Control of the Company, unless an equitable and reasonably comparable arrangement (embodied in a substitute or alternative benefit or plan) shall have been made with respect to such Basic Benefit Plan promptly following the occurrence of the last Change in Control of the Company, or (y) continue the Executive’s participation in any Basic Benefit Plan (or any substitute or alternative plan) on substantially the same basis, both in terms of the amount of benefits provided to the Executive (which are in any event always subject to the terms of any applicable Basic Benefit Plan) and the level of the Executive’s participation relative to other participants, as existed immediately before the occurrence of the first Change in Control of the Company;
(viii) the Company or the Successor fails to continue to provide the Executive with benefits substantially similar to those enjoyed by the Executive under any of the Company’s other Executive benefit plans, policies, programs and arrangements, including, but not limited to, life insurance, medical, dental, health, hospital, accident or disability plans, in which the Executive was a participant immediately before the occurrence of the first Change in Control of the Company;
(ix) the Company or the Successor takes any action that would directly or indirectly materially reduce any other non-contractual benefits that were provided to the Executive by the Company immediately before the occurrence of the first Change in Control of the Company or deprive the Executive of any material fringe benefit enjoyed by the Executive immediately before the occurrence of the first Change in Control of the Company;
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(x) the Company or the Successor fails to provide the Executive with the number of paid vacation days to which the Executive was entitled in accordance with the Company’s vacation policy in effect immediately before the occurrence of the first Change in Control of the Company;
(xi) the Company or the Successor fails to continue to provide the Executive with office space, related facilities and support personnel (including, but not limited to, administrative and secretarial assistance) (y) that are both commensurate with Executive’s responsibilities to and position with the Company immediately before the occurrence of the first Change in Control of the Company and not materially dissimilar to the office space, related facilities and support personnel provided to other Executives of the Company having comparable responsibility to the Executive, or (z) that are physically located at the Company’s principal executive offices;
(xii) the Company or the Successor requires the Executive to perform a majority of his duties outside the Company’s principal executive offices for a period of more than 21 consecutive days or for more than 90 days in any calendar year;
(xiii) the Company or the Successor fails to honor any provision of any employment agreement Executive has or may in the future have with the Company or fail to honor any provision of this Agreement;
(xiv) the Company or the Successor gives effective notice of an election to terminate at the end of the term or extended the term of any employment agreement Executive has or may in the future have with the Company or the Successor in accordance with the terms of any such agreement; or
(xv) the Company or the Successor purports to terminate the Executive’s employment by the Company unless notice of that termination shall have been given to the Executive pursuant to, and that notice shall meet the requirements of, Section 6.
Section 6. Notice of Termination If a Change in Control of the Company shall have occurred before the expiration of the term of this Agreement, any subsequent termination by the Executive or the Company of the Executive’s employment by the Company, or any determination of the Executive’s Disability, shall be communicated by notice to the other party that shall indicate the specific paragraph of Section 7 pursuant to which the Executive is to receive benefits as a result of the termination. If the notice states that the Executive’s employment by the Company has been automatically terminated as a result of the Executive’s Disability, the notice shall (i) specifically describe the basis for the determination of the Executive’s Disability, and (ii) state the date of the determination of the Executive’s Disability, which date shall be not more than ten (10) days before the date such notice is given. If the notice is from the Company and states that the Executive’s employment by the Company is terminated by the Company as a result of the occurrence of an Event of Termination for Cause, the notice shall specifically describe the action or inaction of the Executive that the Company believes constitutes an Event of Termination for Cause and shall be accompanied by a copy of the resolution satisfying Section 4. If the notice is from the Executive and states that the Executive’s employment by the Company is terminated by the Executive as a result of the occurrence of an Event of Termination for Good Reason, the notice shall specifically describe the action or inaction of the Company that the Executive believes constitutes an Event of Termination for Good Reason. Each notice given pursuant to
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this Section 6 (other than a notice stating that the Executive’s employment by the Company has been automatically terminated as a result of the Executive’s Disability) shall state a date, which shall be not fewer than thirty (30) days nor more than sixty (60) days after the date such notice is given, on which the termination of the Executive’s employment by the Company is effective. The date so stated in accordance with this Section 6 shall be the “Termination Date”. If a Change in Control of the Company shall have occurred before the expiration of the term of this Agreement, any subsequent purported termination by the Company of the Executive’s employment by the Company, or any subsequent purported determination by the Company of the Executive’s Disability, shall be ineffective unless that termination or determination shall have been communicated by the Company to the Executive by notice that meets the requirements of the foregoing provisions of this Section 6 and the provisions of Section 9.
Section 7. Benefits Payable on Change in Control and Termination. (a) If (x) a Change in Control of the Company shall have occurred before the expiration of the term of this Agreement, and (y) the Executive’s employment by the Company is terminated (whether by the Executive or the Company or automatically as provided in Section 3) after the occurrence of that Change in Control of the Company, the Executive shall be entitled to the following benefits:
(i) If the Executive’s employment by the Company is terminated (x) by the Company as a result of the occurrence of an Event of Termination for Cause, or (y) by the Executive before the occurrence of an Event of Termination for Good Reason, then the Company shall pay to the Executive the Base Salary accrued through the Termination Date but not previously paid to the Executive, and the Executive shall be entitled to any other amounts or benefits provided under any plan, policy, practice, program, contract or arrangement of or with the Company, including, but not limited to, the Basic Benefit Plans and the Other Benefit Plans, which shall be governed by the terms thereof (except as explicitly modified by this Agreement).
(ii) If the Executive’s employment by the Company is automatically terminated as a result of the Executive’s death or the Executive’s Disability, then (x) the Company shall pay to the Executive the Base Salary accrued through the date of the occurrence of that event but not previously paid to the Executive, and (y) the Executive shall be entitled to any other amounts or benefits provided under any plan, policy, practice, program, contract or arrangement of or with the Company, including, but not limited to, the Basic Benefit Plans and the Other Benefit Plans, which shall be governed by the terms thereof (except as explicitly modified by this Agreement).
(iii) If the Executive’s employment by the Company is terminated (x) by the Company otherwise than as a result of the occurrence of an Event of Termination for Cause, or (y) by the Executive after the occurrence of an Event of Termination for Good Reason, then the Executive shall be entitled to the following:
(1) the Company shall pay to the Executive the Base Salary and compensation for earned but unused vacation time accrued through the Termination Date but not previously paid to the Executive;
(2) the Company shall pay to the Executive an amount equal to the product of (A) the greater of (I) the Executive’s target performance bonus for the Fiscal Year in which the Termination Date occurs and (II) the Executive’s performance bonus for the Fiscal Year preceding the Fiscal Year in which the Termination Date occurs (including any deferred portion thereof) (the greater of the amounts described in clauses
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(I) and (II) of this Section 7(a)(iii)(2)(A) being referred to herein as the “Highest Bonus”), and (B) a fraction, the numerator of which is the number of days in the current Fiscal Year through the Termination Date and the denominator of which is 365;
(3) the Company shall pay to the Executive, as a lump sum, an amount (the “Severance Payment”) equal to two (2) times the sum of:
(A) the amount (including any deferred portion thereof) of the Base Salary that would have been paid to the Executive during the Fiscal Year in which the Termination Date occurs based on the assumption that the Executive’s employment by the Company had continued throughout that Fiscal Year at the Base Salary rate in effect in the Fiscal Year in which the Termination Date occurs, or in the immediately preceding Fiscal Year, whichever is higher;
(B) the amount of the Highest Bonus;
(4) the Company (at its sole expense) shall take the following actions:
(A) throughout the Relevant Period, the Company shall maintain in effect, and not materially reduce the benefits provided by, each of the Other Benefit Plans in which the Executive was a participant immediately before the Termination Date; and
(B) the Company shall arrange for the Executive’s uninterrupted participation throughout the Relevant Period in each of such Other Benefit Plans,
provided that if the Executive’s participation after the Termination Date in any such Other Benefit Plan is not permitted by the terms of that Other Benefit Plan, then throughout the Relevant Period, the Company (at its sole expense) shall provide the Executive with substantially the same benefits that were provided to the Executive by that Other Benefit Plan immediately before the Termination Date; and
(5) the Executive shall be entitled to any other amounts or benefits provided under any plan, policy, practice, program, contract or arrangement of or with the Company, including, but not limited to, the Basic Benefit Plans and the Other Benefit Plans, which shall be governed by the terms thereof (except as explicitly modified by this Agreement).
(b) In the event that amounts payable to the Executive under Section 7(a) above exceed the limits set forth in Section 280G of the Code (e.g., an excess parachute payment greater than 2 times the Executive’s Base Amount) and thereby trigger payment of an excise tax under Section 4999 of the Code, then either (i) the Executive will receive the net benefits after such excise tax is calculated, or (ii) the benefits due to the Executive will be reduced to the point that they do not exceed the amount that is 2 times the Executive’s Base Amount, whichever is greater.
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(c) Each payment required to be made to the Executive pursuant to the foregoing provisions of this Section 7(a) above (i) shall be made by check drawn on an account of the Company at a bank located in the United States of America, and (ii) shall be paid (x) if the Executive’s employment by the Company was terminated as a result of the Executive’s death or the Executive’s Disability, not more than thirty (30) days immediately following the date of the occurrence of that event, and (y) if the Executive’s employment by the Company was terminated for any other reason, on the Termination Payment Date.
(d) The following shall occur immediately upon the occurrence of a Change in Control of the Company:
(i) all options to acquire Voting Stock and all stock appreciation rights pertaining to Voting Stock held by the Executive immediately prior to a Change in Control of the Company shall become fully exercisable, regardless of whether or not the vesting conditions set forth in the relevant stock option agreements have been satisfied in full; and
(ii) all restrictions on any restricted Voting Stock granted to the Executive prior to a Change in Control of the Company shall be removed and the stock shall be freely transferable, regardless of whether the conditions set forth in the relevant restricted stock agreements have been satisfied in full.
Section 8. Successors. If a Change in Control of the Company shall have occurred before the expiration of the term of this Agreement,
(i) the Company shall not, directly or indirectly, consolidate with, merge into or sell or otherwise transfer its assets as an entirety or substantially as an entirety to, any person, or permit any person to consolidate with or merge into the Company, unless immediately after such consolidation, merger, sale or transfer, the Successor shall have assumed in writing the Company’s obligations under this Agreement; and
(ii) not fewer than ten (10) days before the consummation of any consolidation of the Company with, merger by the Company into, or sale or other transfer by the Company of its assets as an entirety or substantially as an entirety to, any person, the Company shall give the Executive notice of that proposed transaction.
Section 9. Notice. Notices required or permitted to be given by either party pursuant to this Agreement shall be in writing and shall be deemed to have been given when delivered personally to the other party or when deposited with the United States Postal Service as certified or registered mail with postage prepaid and addressed:
(i) if to the Executive, at the Executive’s address last shown on the Company’s records, and
(ii) if to the Company, at 1800 West Loop South, Suite 1500, Houston, Texas 77027, directed to the attention of the Chair of the Compensation & Management Development Committee of the Board of Directors.
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or, in either case, to such other address as the party to whom or which such notice is to be given shall have specified by notice given to the other party.
Section 10. Withholding Taxes. The Company may withhold from all payments to be paid to the Executive pursuant to this Agreement all taxes that, by applicable federal or state law, the Company is required to so withhold.
Section 11. Expenses of Enforcement. If a Change in Control of the Company shall have occurred before the expiration of the term of this Agreement, then, upon demand by the Executive made to the Company, the Company shall reimburse the Executive for the reasonable expenses (including attorneys’ fees and expenses) incurred by the Executive in enforcing or seeking to enforce the payment of any amount or other benefit to which the Executive shall have become entitled pursuant to this Agreement, including those incurred in connection with any arbitration initiated pursuant to Section 19.
Section 12. Employment by Wholly Owned Entities. If, at or after the Effective Date, the Executive is or becomes an Executive of one or more corporations, partnerships, limited liability companies or other entities that are, directly or indirectly, wholly owned by the Company (“Wholly Owned Entities”), references in this Agreement to the Executive’s employment by the Company shall include the Executive’s employment by any such Wholly Owned Entity.
Section 13. No Obligation to Mitigate; No Rights of Offset.
(a) The Executive shall not be required to mitigate the amount of any payment or other benefit required to be paid to the Executive pursuant to this Agreement, whether by seeking other employment or otherwise, nor shall the amount of any such payment or other benefit be reduced on account of any compensation earned by the Executive as a result of employment by another person.
(b) The Company’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Company may have against the Executive or others.
Section 14. Amendment and Waiver. No provision of this Agreement may be amended or waived (whether by act or course of conduct or omission or otherwise) unless that amendment or waiver is by written instrument signed by the parties hereto. No waiver by either party of any breach of this Agreement shall be deemed a waiver of any other or subsequent breach.
Section 15. Governing Law. The validity, interpretation, construction and enforceability of this Agreement shall be governed by the laws of the State of Texas.
Section 16. Validity. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
Section 17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together will constitute the same instrument.
Section 18. Assignment; Binding Effect. This Agreement shall inure to the benefit of and be enforceable by the Executive’s legal representative. This Agreement shall be binding upon any Successor. The Company may not assign any of its obligations under this Agreement unless (i) such assignment is to a Successor and (ii) the requirements of Section 8 are fulfilled.
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Section 19. Arbitration. Any dispute between the parties arising out of this Agreement, whether as to this Agreement’s construction, interpretation or enforceability or as to any party’s breach or alleged breach of any provision of this Agreement, shall be submitted to arbitration in accordance with the following procedures:
(i) Either party may demand such arbitration by giving notice of that demand to the other party. The notice shall state (x) the matter in controversy, and (y) the name of the arbitrator selected by the party giving the notice.
(ii) Not more than 15 days after such notice is given, the other party shall give notice to the party who demanded arbitration of the name of the arbitrator selected by the other party. If the other party shall fail to timely give such notice, the arbitrator that the other party was entitled to select shall be named by the Arbitration Committee of the American Arbitration Association. Not more than 15 days after the second arbitrator is so named, the two arbitrators shall select a third arbitrator. If the two arbitrators shall fail to timely select a third arbitrator, the third arbitrator shall be named by the Arbitration Committee of the American Arbitration Association.
(iii) The dispute shall be arbitrated at a hearing that shall be concluded within ten days immediately following the date the dispute is submitted to arbitration unless a majority of the arbitrators shall elect to extend the period of arbitration. Any award made by a majority of the arbitrators (x) shall be made within ten days following the conclusion of the arbitration hearing, (y) shall be conclusive and binding on the parties, and (z) may be made the subject of a judgment of any court having jurisdiction.
(iv) All expenses of the arbitration shall be borne by the Company.
The agreement of the parties contained in the foregoing provisions of this Section 19 shall be a complete defense to any action, suit or other proceeding instituted in any court or before any administrative tribunal with respect to any dispute between the parties arising out of this Agreement.
Section 20. Interpretation.
(a) As used in this Agreement, the following terms and phrases have the indicated meanings:
(i) “Affiliate” and “Affiliates” mean, when used with respect to any entity, individual, or other person, any other entity, individual, or other person which, directly or indirectly, through one or more intermediaries controls, or is controlled by, or is under common control with such entity, individual or person.
(ii) “Base Amount” means the total amount of all compensatory payments or other benefits required by Section 280G of the Code to be included in the calculation of the Executive’s total severance payment for purposes of calculating any excise tax that would be due under Section 4999 of the Code.
(iii) “Base Salary” has the meaning assigned to that term in Section 5.
(iv) “Basic Benefit Plans” has the meaning assigned to that term in Section 5.
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(v) “Benchmark Bonus” has the meaning assigned to that term in Section 5.
(vi) “Board of Directors” means the Board of Directors of the Company.
(vii) “Business Combination” has the meaning assigned to that term in Section 2.
(viii) “Change in Control of the Company” has the meaning assigned to that phrase in Section 2.
(ix) “Code” means the Internal Revenue Code of 1986, as amended from time to time.
(x) “Commission” means the United States Securities and Exchange Commission or any successor agency.
(xi) “Company” has the meaning assigned to that term in the preamble to this Agreement. The term “Company” shall also include any Successor, whether the liability of such Successor under this Agreement is established by contract or occurs by operation of law.
(xii) “Covered Person” has the meaning assigned to that term in Section 2.
(xiii) “Effective Date” means the first day of employment with the Company by the Executive.
(xiv) “Executive” has the meaning assigned to such term in the preamble to this Agreement.
(xv) “Executive’s Disability” means:
(1) if no Change in Control of the Company shall have occurred before the date of determination, the physical or mental disability of the Executive determined in accordance with the disability policy of the Company at the time in effect and generally applicable to its salaried Executives; and
(2) if a Change in Control of the Company shall have occurred at that date, the physical or mental disability of the Executive determined in accordance with the disability policy of the Company in effect immediately before the occurrence of the first Change in Control of the Company and generally applicable to its salaried Executives.
The Executive’s Disability, and the automatic termination of the Executive’s employment by the Company by reason of the Executive’s Disability, shall be deemed to have occurred on the date of determination, provided that if (1) a Change in Control of the Company shall have occurred before the expiration of the term of this Agreement, (2) the Company shall have subsequently given notice pursuant to
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Section 6 of the Company’s determination of the Executive’s Disability, and (3) the Executive shall have given notice to the Company that the Executive disagrees with that determination, then (A) whether the Executive’s Disability shall have occurred shall be submitted to arbitration pursuant to Section 19, and (B) if a majority of the arbitrators decide that the Executive’s Disability had not occurred, at the date of determination by the Company, then (I) the Executive’s Disability, and the automatic termination of the Executive’s employment by the Company by reason of the Executive’s Disability, shall be deemed not to have occurred, and (II) on demand by the Executive made to the Company, the Company shall reimburse the Executive for the reasonable expenses (including attorneys’ fees and expenses) incurred by the Executive in obtaining that decision.
(xvi) “Event of Termination for Good Reason” has the meaning assigned to that phrase in Section 5.
(xvii) “Event of Termination for Cause” has the meaning assigned to that phrase in Section 4.
(xviii) “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.
(xix) “Expiration Date” has the meaning assigned to that term in Section 3.
(xx) “Fiscal Year” means the fiscal year of the Company.
(xxi) “Other Benefit Plan” means any employee welfare benefit plan (within the meaning of section 3(1) of the Employee Retirement Income Security Act of 1974, as amended) maintained by the Company.
(xxii) “Outstanding Company Common Stock” has the meaning assigned to that term in Section 2.
(xxiii) “Outstanding Company Voting Securities” has the meaning assigned to that term in Section 2.
(xxiv) “Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, limited partnership, limited liability company, trust, unincorporated organization, government, or agency or political subdivision of any government.
(xxv) “Relevant Period” means a period beginning on the Termination Date and ending on the first to occur of (x) the third anniversary of the Termination Date, or (y) the date on which the Executive becomes employed on a full-time basis by another person.
(xxvi) “Severance Payment” has the meaning assigned to that term in Section 7.
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(xxvii) “Successor” means a person with or into which the Company shall have been merged or consolidated or to which the Company shall have transferred its assets as an entirety or substantially as an entirety.
(xxviii) “Termination Date” has the meaning assigned to that term in Section 6.
(xxix) “Termination Payment Date” means
(1) if the Board (or its delegate) determines in its sole discretion that as of the Termination Date, other than a termination due to death or Disability, the Executive is a specified employee (as defined in Section 409A(a)(2)(B)(i), and Department of Treasury regulations and other interpretive guidance issued thereunder) as of such date (a “Specified Employee”) and that Section 409A applies with respect to a portion of the payments hereunder, then with respect to such portion, the first business day following the six-month anniversary of the Termination Date (the “Six-Month Delay Period”) or
(2) if the Board (or its delegate) determines in its sole discretion that as of the Termination Date, other than a termination due to death or Disability, the Executive is not a Specified Employee as of such date or that Section 409A does not apply with respect to a portion of the payments hereunder, then with respect to such portion, not more than ten (10) days immediately following the Termination Date and
(3) with respect to any amount payable to or on behalf of the Executive under a welfare or benefit plan program of the Company, including but not limited to a Basic Benefit Plan or Other Benefit Plan, then, to the extent such benefits are provided after the period of time during which the Executive would be entitled to (or would, but for this Agreement, be entitled to) COBRA continuation coverage under a group health plan of the Company, the Company shall make any payments due for such coverage during the Relevant Period on the last business day of the calendar month following the month in which such payments become due.
If the Board (or its delegate) determines in its sole discretion that as of the Termination Date, other than a termination due to death or Disability, the Executive is a Specified Employee as of such date and that Section 409A applies with respect to a portion of the payments hereunder, then any such portion payable during the Six-Month Delay Period, shall be transferred to a rabbi trust (which shall be a rabbi trust previously created by the Company that contains other amounts of deferred compensation payable by the Company to the Executive or a rabbi trust created by the Company or its successor, on terms reasonably acceptable to the Executive) as soon as administratively feasible following the occurrence of the event giving rise to the Executive’s right to such payment, except to the extent such transfer would subject the Executive to penalties under the funding restriction provisions of Section 409A, as amended by the Pension Protection Act of 2006, and
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such amounts (together with earnings thereon determined in accordance with the terms of the trust agreement) shall be transferred from the trust to the Executive upon the earlier of (i) the expiration of the Six-Month Delay Period, or (ii) any other earlier date permitted under Section 409A.
(xxx) “This Agreement” means this Change in Control Agreement as it may be amended from time to time in accordance with Section 14.
(xxxi) “Wholly Owned Entities” has the meaning assigned to that term in Section 12.
(b) In the event of the enactment of any successor provision to any statute or rule cited in this Agreement, references in this Agreement to such statute or rule shall be to such successor provision.
(c) The headings of Sections of this Agreement shall not control the meaning or interpretation of this Agreement.
(d) References in this Agreement to any Section are to the corresponding Section of this Agreement unless the context otherwise indicates.
(e) This Agreement is intended to meet the requirements of Section 409A and shall be administered, construed and interpreted in a manner that is intended to meet those requirements. To the extent that the provision of a benefit or payment under the Agreement is subject to Section 409A, except as the Company and Executive otherwise determine in writing, the provision or payment shall be provided or paid in a manner that will meet the requirements of Section 409A, including regulations or other guidance issued with respect thereto, such that the provisions or payment shall not be subject to the additional tax or interest applicable under Section 409A. Any provision of this Agreement that would cause the provision or payment to fail to satisfy Section 409A shall be amended to comply with Section 409A on a timely basis, which may be made on a retroactive basis, in accordance with regulations and other guidance issued under Section 409A. In the event additional regulations or other guidance is issued under Section 409A or a court of competent jurisdiction provides additional authority concerning the application of Section 409A with respect to the distributions under the Agreement, then the provisions of the Agreement regarding distributions shall be automatically amended to permit such distributions to be made at the earliest time permitted under such additional regulations, guidance or authority that is practicable and achieves the intent of the Agreement prior to its amendment to comply with Section 409A.
SIGNATURE PAGE TO FOLLOW
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IN WITNESS WHEREOF, the Company and the Executive have executed this Agreement this 26th day of January, 2016, to be effective as set forth herein.
QUANEX BUILDING
PRODUCTS CORPORATION
By: /s/ Kevin P. Delaney
Kevin P. Delaney
Senior Vice President – General Counsel and Secretary
EXECUTIVE
/s/ Scott Zuehlke
Scott Zuehlke | [
"EXHIBIT 10.2 CHANGE IN CONTROL AGREEMENT BETWEEN QUANEX BUILDING PRODUCTS CORPORATION AND SCOTT ZUEHLKE THIS AGREEMENT between Quanex Building Products Corporation, a Delaware corporation (the “Company”), and Scott Zuehlke (the “Executive”) is effective as of the Effective Date (as defined herein). W I T N E S S E T H: WHEREAS, the Company considers it to be in the best interests of its stockholders to encourage the continued employment of certain key employees of the Company notwithstanding the possibility, threat or occurrence of a Change in Control of the Company (as that phrase is defined in Section 2); and WHEREAS, the Executive is a key employee of the Company; and WHEREAS, the Company believes that the possibility of the occurrence of a Change in Control of the Company may result in the termination by the Executive of the Executive’s employment by the Company or in the distraction of the Executive from the performance of his duties to the Company, in either case to the detriment of the Company and its stockholders; and WHEREAS, the Company previously recognized that the Executive could suffer adverse financial and professional consequences if a Change in Control of the Company were to occur and entered into this Agreement to protect the Executive if a Change in Control of the Company occurs; and WHEREAS, under current Internal Revenue Service guidance, the Agreement is subject to Section 409A of the Internal Revenue Code of 1986, as amended by the American Jobs Creation Act of 2004 (“Section 409A”); NOW, THEREFORE, the parties agree, effective as stated above, as follows: Section 1. Other Employment Arrangements.",
"(a) Except as specified below in this paragraph, this Agreement does not affect the Executive’s existing or future employment arrangements with the Company unless a Change in Control of the Company shall have occurred before the expiration of the term of this Agreement. The Executive’s employment with the Company shall continue to be governed by the Executive’s existing or future employment agreements with the Company, if any, or, in the absence of any employment agreement, shall continue to be at the will of the Board of Directors or, if the Executive is not an officer of the Company at the time of the termination of the Executive’s employment with the Company, the will of the Chief Executive Officer of the Company, except that if (i) a Change in Control of the Company shall have occurred before the expiration of the term of this Agreement, and (ii) the Executive’s employment with the Company is terminated (whether by the Executive or the Company or automatically as provided in Section 3) after the occurrence of that Change in Control of the Company, then the Executive shall be entitled to receive certain benefits as provided in this Agreement. (b) Notwithstanding anything contained in this Agreement to the contrary, if following the commencement of any discussion with a third person that ultimately results in a Change in Control of the Company, (i) the Executive’s employment with the Company is terminated, (ii) the Executive is removed from any material duties or position with the Company, (iii) the Executive’s Base Salary is reduced, or (iv) the Executive’s annual bonus is reduced to an amount less than the Benchmark Bonus, then for all purposes of this Agreement, such Change in Control of the Company shall be deemed to have occurred on the date immediately prior to the date of such termination, removal, or reduction.",
"-------------------------------------------------------------------------------- (c) Nothing in this Agreement shall prevent or limit the Executive’s continuing or future participation in any plan, program, policy or practice of or provided by the Company or any of its Affiliates and for which the Executive may qualify, nor shall anything herein limit or otherwise affect such rights as the Executive may have under any contract or agreement with the Company or any of its Affiliates. Amounts which are vested benefits or which the Executive is otherwise entitled to receive under any plan, program, policy or practice of or provided by, or any contract or agreement with, the Company or any of its Affiliates at or subsequent to the date of termination of the Executive’s employment with the Company shall be payable or otherwise provided in accordance with such plan, program, policy or practice or contract or agreement except as explicitly modified by this Agreement.",
"Section 2. Change in Control of the Company.",
"For purposes of this Agreement, a “Change in Control of the Company” shall mean the occurrence of any of the following after the Effective Date: (a) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a “ Covered Person”) of beneficial ownership (within the meaning of rule 13d-3 promulgated under the Exchange Act) of 20 percent or more of either (i) the then outstanding shares of the common stock of the Company (the “Outstanding Company Common Stock”), or (ii) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that for purposes of this subsection (a) of this Section 2, the following acquisitions shall not constitute a Change in Control of the Company: (i) any acquisition directly from the Company, (ii) any acquisition by the Company, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any entity controlled by the Company, or (iv) any acquisition by any corporation pursuant to a transaction which complies with clauses (i), (ii) and (iii) of subsection (c) of this Section 2; or (b) individuals who, as of the Effective Date, constitute the Board of Directors (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board of Directors; provided, however, that any individual becoming a director subsequent to the Effective Date whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Covered Person other than the Board; or (c) the consummation of (xx) a reorganization, merger, consolidation or sale of the Company, or (yy) a disposition of all or substantially all of the assets of the Company (a “Business Combination”), in each case, unless, following such Business Combination, (i) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, direct or indirectly, more than 80 percent of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Company Common Stock and Outstanding -------------------------------------------------------------------------------- Company Voting Securities, as the case may be, (ii) no Covered Person (excluding any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 20 percent or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation, except to the extent that such ownership existed prior to the Business Combination, and (iii) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination, were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board of Directors, providing for such Business Combination; or (d) the approval by the stockholders of the Company of a complete liquidation or dissolution of the Company.",
"Section 3. Term of This Agreement. The term of this Agreement shall begin on the Effective Date and, unless automatically extended pursuant to the second sentence of this Section 3, shall expire on the first to occur of: (i) the Executive’s death or the Executive’s Disability, which events shall also be deemed automatically to terminate Executive’s employment by the Company; (ii) the termination by the Executive or the Company of the Executive’s employment by the Company; or (iii) the end of the last day (the “Expiration Date”) of: (1) the three-year period beginning on the Effective Date (or any period for which the term of this Agreement shall have been automatically extended pursuant to the second sentence of this Section 3) if no Change in Control of the Company shall have occurred during that three-year period (or any period for which the term of this Agreement shall have been automatically extended pursuant to the second sentence of this Section 3); or (2) if one or more Changes in Control of the Company shall have occurred during the three-year period beginning on the Effective Date (or any period for which the term of this Agreement shall have been automatically extended pursuant to the second sentence of this Section 3), the three-year period beginning on the date on which the last Change in Control of the Company occurred. If (i) the term of this Agreement shall not have expired as a result of the occurrence of one of the events described in clause (i) or (ii) of the immediately preceding sentence, and (ii) the Company shall not have given notice to the Executive at least ninety (90) days before the Expiration Date that the term of this Agreement will expire on the Expiration Date, then the term of this Agreement shall be automatically extended for successive one-year periods (the first such period to begin on the day immediately following the Expiration Date) unless the Company shall have given notice to the Executive at least ninety (90) days before the end of any one-year period for which the term of this Agreement shall have been automatically extended that such term will expire at the end of that one-year period.",
"The expiration of the term of this Agreement shall not terminate this Agreement itself or affect the right of the Executive or the Executive’s legal representatives to enforce the payment of any amount or other benefit to which the Executive was -------------------------------------------------------------------------------- entitled before the expiration of the term of this Agreement or to which the Executive became entitled as a result of the event (including the termination, whether by the Executive or the Company or automatically as provided in this Section 3, of the Executive’s employment by the Company) that caused the term of this Agreement to expire. Section 4. Event of Termination for Cause. An “Event of Termination for Cause” shall have occurred if, after a Change in Control of the Company, the Executive shall have committed: (i) gross negligence or willful misconduct in connection with his duties or in the course of his employment with the Company; (ii) an act of fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Company; (iii) intentional wrongful damage to property of the Company; (iv) intentional wrongful disclosure of secret processes or confidential information of the Company; or (v) an act leading to a conviction of a felony or a misdemeanor involving moral turpitude.",
"For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed “intentional” if it was due primarily to an error in judgment or negligence, but shall be deemed “intentional” only if done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his action or omission was in the best interest of the Company.",
"Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated as a result of an “Event of Termination for Cause” hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the Board of Directors then in office at a meeting of the Board of Directors called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with his counsel, to be heard before the Board of Directors), finding that, in the good faith opinion of the Board of Directors, the Executive had committed an act set forth above in this Section 4 and specifying the particulars thereof in detail. Nothing herein shall limit the right of the Executive or his legal representatives to contest the validity or propriety of any such determination.",
"Section 5. An Event of Termination for Good Reason.",
"An “Event of Termination for Good Reason” shall mean the occurrence of any of the following on or after a Change in Control of the Company: (i) the Company or the Successor assigns to the Executive any duties inconsistent with the Executive’s position (including offices, titles and reporting requirements), authority, duties or responsibilities with the Company in effect immediately before the occurrence of the first Change in Control of the Company or otherwise make any change in any such position, authority, duties or responsibilities; (ii) the Company or the Successor removes the Executive from, or fails to re-elect or appoint the Executive to, any duties or position with the Company that were assigned or held by the Executive immediately before the occurrence of the first Change in Control of the Company, except that a nominal change in the Executive’s title that is merely descriptive and does not affect rank or status shall not constitute such an event; -------------------------------------------------------------------------------- (iii) the Company or the Successor takes any other action that results in a material diminution in such position, authority, duties or responsibilities or otherwise take any action that materially interferes therewith; (iv) the Company or the Successor reduces the Executive’s annual base salary as in effect immediately before the occurrence of the first Change in Control of the Company or as the Executive’s annual base salary may be increased from time to time after that occurrence (the “Base Salary”); (v) the Company or the Successor reduces the Executive’s annual target bonus (x) to an amount less than $125,000 at any time on or prior to the third anniversary of the Effective Date, or (y) to an amount less than the average of the two annual bonuses earned by such Executive with respect to the two preceding years at any time after the third anniversary of the Effective Date (the amount determined pursuant to clause (x) or (y), as applicable, is referred to herein as the “Benchmark Bonus”); (vi) the Company or the Successor relocates the Executive’s principal office outside of the portion of the metropolitan area of the City of Houston, Texas that is located within the highway known as “Beltway 8”; (vii) the Company or the Successor fails to (x) continue in effect any bonus, incentive, profit sharing, performance, savings, retirement or pension policy, plan, program or arrangement (such policies, plans, programs and arrangements collectively being referred to herein as “Basic Benefit Plans”), including, but not limited to, any deferred compensation, supplemental executive retirement or other retirement income, stock option, stock purchase, stock appreciation, or similar policy, plan, program or arrangement of the Company, in which the Executive was a participant immediately before the occurrence of the first Change in Control of the Company, or any substitute plan adopted by the Board of Directors and in which the Executive was a participant immediately before the occurrence of the last Change in Control of the Company, unless an equitable and reasonably comparable arrangement (embodied in a substitute or alternative benefit or plan) shall have been made with respect to such Basic Benefit Plan promptly following the occurrence of the last Change in Control of the Company, or (y) continue the Executive’s participation in any Basic Benefit Plan (or any substitute or alternative plan) on substantially the same basis, both in terms of the amount of benefits provided to the Executive (which are in any event always subject to the terms of any applicable Basic Benefit Plan) and the level of the Executive’s participation relative to other participants, as existed immediately before the occurrence of the first Change in Control of the Company; (viii) the Company or the Successor fails to continue to provide the Executive with benefits substantially similar to those enjoyed by the Executive under any of the Company’s other Executive benefit plans, policies, programs and arrangements, including, but not limited to, life insurance, medical, dental, health, hospital, accident or disability plans, in which the Executive was a participant immediately before the occurrence of the first Change in Control of the Company; (ix) the Company or the Successor takes any action that would directly or indirectly materially reduce any other non-contractual benefits that were provided to the Executive by the Company immediately before the occurrence of the first Change in Control of the Company or deprive the Executive of any material fringe benefit enjoyed by the Executive immediately before the occurrence of the first Change in Control of the Company; -------------------------------------------------------------------------------- (x) the Company or the Successor fails to provide the Executive with the number of paid vacation days to which the Executive was entitled in accordance with the Company’s vacation policy in effect immediately before the occurrence of the first Change in Control of the Company; (xi) the Company or the Successor fails to continue to provide the Executive with office space, related facilities and support personnel (including, but not limited to, administrative and secretarial assistance) (y) that are both commensurate with Executive’s responsibilities to and position with the Company immediately before the occurrence of the first Change in Control of the Company and not materially dissimilar to the office space, related facilities and support personnel provided to other Executives of the Company having comparable responsibility to the Executive, or (z) that are physically located at the Company’s principal executive offices; (xii) the Company or the Successor requires the Executive to perform a majority of his duties outside the Company’s principal executive offices for a period of more than 21 consecutive days or for more than 90 days in any calendar year; (xiii) the Company or the Successor fails to honor any provision of any employment agreement Executive has or may in the future have with the Company or fail to honor any provision of this Agreement; (xiv) the Company or the Successor gives effective notice of an election to terminate at the end of the term or extended the term of any employment agreement Executive has or may in the future have with the Company or the Successor in accordance with the terms of any such agreement; or (xv) the Company or the Successor purports to terminate the Executive’s employment by the Company unless notice of that termination shall have been given to the Executive pursuant to, and that notice shall meet the requirements of, Section 6.",
"Section 6. Notice of Termination If a Change in Control of the Company shall have occurred before the expiration of the term of this Agreement, any subsequent termination by the Executive or the Company of the Executive’s employment by the Company, or any determination of the Executive’s Disability, shall be communicated by notice to the other party that shall indicate the specific paragraph of Section 7 pursuant to which the Executive is to receive benefits as a result of the termination. If the notice states that the Executive’s employment by the Company has been automatically terminated as a result of the Executive’s Disability, the notice shall (i) specifically describe the basis for the determination of the Executive’s Disability, and (ii) state the date of the determination of the Executive’s Disability, which date shall be not more than ten (10) days before the date such notice is given.",
"If the notice is from the Company and states that the Executive’s employment by the Company is terminated by the Company as a result of the occurrence of an Event of Termination for Cause, the notice shall specifically describe the action or inaction of the Executive that the Company believes constitutes an Event of Termination for Cause and shall be accompanied by a copy of the resolution satisfying Section 4. If the notice is from the Executive and states that the Executive’s employment by the Company is terminated by the Executive as a result of the occurrence of an Event of Termination for Good Reason, the notice shall specifically describe the action or inaction of the Company that the Executive believes constitutes an Event of Termination for Good Reason. Each notice given pursuant to -------------------------------------------------------------------------------- this Section 6 (other than a notice stating that the Executive’s employment by the Company has been automatically terminated as a result of the Executive’s Disability) shall state a date, which shall be not fewer than thirty (30) days nor more than sixty (60) days after the date such notice is given, on which the termination of the Executive’s employment by the Company is effective.",
"The date so stated in accordance with this Section 6 shall be the “Termination Date”. If a Change in Control of the Company shall have occurred before the expiration of the term of this Agreement, any subsequent purported termination by the Company of the Executive’s employment by the Company, or any subsequent purported determination by the Company of the Executive’s Disability, shall be ineffective unless that termination or determination shall have been communicated by the Company to the Executive by notice that meets the requirements of the foregoing provisions of this Section 6 and the provisions of Section 9. Section 7. Benefits Payable on Change in Control and Termination. (a) If (x) a Change in Control of the Company shall have occurred before the expiration of the term of this Agreement, and (y) the Executive’s employment by the Company is terminated (whether by the Executive or the Company or automatically as provided in Section 3) after the occurrence of that Change in Control of the Company, the Executive shall be entitled to the following benefits: (i) If the Executive’s employment by the Company is terminated (x) by the Company as a result of the occurrence of an Event of Termination for Cause, or (y) by the Executive before the occurrence of an Event of Termination for Good Reason, then the Company shall pay to the Executive the Base Salary accrued through the Termination Date but not previously paid to the Executive, and the Executive shall be entitled to any other amounts or benefits provided under any plan, policy, practice, program, contract or arrangement of or with the Company, including, but not limited to, the Basic Benefit Plans and the Other Benefit Plans, which shall be governed by the terms thereof (except as explicitly modified by this Agreement).",
"(ii) If the Executive’s employment by the Company is automatically terminated as a result of the Executive’s death or the Executive’s Disability, then (x) the Company shall pay to the Executive the Base Salary accrued through the date of the occurrence of that event but not previously paid to the Executive, and (y) the Executive shall be entitled to any other amounts or benefits provided under any plan, policy, practice, program, contract or arrangement of or with the Company, including, but not limited to, the Basic Benefit Plans and the Other Benefit Plans, which shall be governed by the terms thereof (except as explicitly modified by this Agreement).",
"(iii) If the Executive’s employment by the Company is terminated (x) by the Company otherwise than as a result of the occurrence of an Event of Termination for Cause, or (y) by the Executive after the occurrence of an Event of Termination for Good Reason, then the Executive shall be entitled to the following: (1) the Company shall pay to the Executive the Base Salary and compensation for earned but unused vacation time accrued through the Termination Date but not previously paid to the Executive; (2) the Company shall pay to the Executive an amount equal to the product of (A) the greater of (I) the Executive’s target performance bonus for the Fiscal Year in which the Termination Date occurs and (II) the Executive’s performance bonus for the Fiscal Year preceding the Fiscal Year in which the Termination Date occurs (including any deferred portion thereof) (the greater of the amounts described in clauses -------------------------------------------------------------------------------- (I) and (II) of this Section 7(a)(iii)(2)(A) being referred to herein as the “Highest Bonus”), and (B) a fraction, the numerator of which is the number of days in the current Fiscal Year through the Termination Date and the denominator of which is 365; (3) the Company shall pay to the Executive, as a lump sum, an amount (the “Severance Payment”) equal to two (2) times the sum of: (A) the amount (including any deferred portion thereof) of the Base Salary that would have been paid to the Executive during the Fiscal Year in which the Termination Date occurs based on the assumption that the Executive’s employment by the Company had continued throughout that Fiscal Year at the Base Salary rate in effect in the Fiscal Year in which the Termination Date occurs, or in the immediately preceding Fiscal Year, whichever is higher; (B) the amount of the Highest Bonus; (4) the Company (at its sole expense) shall take the following actions: (A) throughout the Relevant Period, the Company shall maintain in effect, and not materially reduce the benefits provided by, each of the Other Benefit Plans in which the Executive was a participant immediately before the Termination Date; and (B) the Company shall arrange for the Executive’s uninterrupted participation throughout the Relevant Period in each of such Other Benefit Plans, provided that if the Executive’s participation after the Termination Date in any such Other Benefit Plan is not permitted by the terms of that Other Benefit Plan, then throughout the Relevant Period, the Company (at its sole expense) shall provide the Executive with substantially the same benefits that were provided to the Executive by that Other Benefit Plan immediately before the Termination Date; and (5) the Executive shall be entitled to any other amounts or benefits provided under any plan, policy, practice, program, contract or arrangement of or with the Company, including, but not limited to, the Basic Benefit Plans and the Other Benefit Plans, which shall be governed by the terms thereof (except as explicitly modified by this Agreement).",
"(b) In the event that amounts payable to the Executive under Section 7(a) above exceed the limits set forth in Section 280G of the Code (e.g., an excess parachute payment greater than 2 times the Executive’s Base Amount) and thereby trigger payment of an excise tax under Section 4999 of the Code, then either (i) the Executive will receive the net benefits after such excise tax is calculated, or (ii) the benefits due to the Executive will be reduced to the point that they do not exceed the amount that is 2 times the Executive’s Base Amount, whichever is greater. -------------------------------------------------------------------------------- (c) Each payment required to be made to the Executive pursuant to the foregoing provisions of this Section 7(a) above (i) shall be made by check drawn on an account of the Company at a bank located in the United States of America, and (ii) shall be paid (x) if the Executive’s employment by the Company was terminated as a result of the Executive’s death or the Executive’s Disability, not more than thirty (30) days immediately following the date of the occurrence of that event, and (y) if the Executive’s employment by the Company was terminated for any other reason, on the Termination Payment Date.",
"(d) The following shall occur immediately upon the occurrence of a Change in Control of the Company: (i) all options to acquire Voting Stock and all stock appreciation rights pertaining to Voting Stock held by the Executive immediately prior to a Change in Control of the Company shall become fully exercisable, regardless of whether or not the vesting conditions set forth in the relevant stock option agreements have been satisfied in full; and (ii) all restrictions on any restricted Voting Stock granted to the Executive prior to a Change in Control of the Company shall be removed and the stock shall be freely transferable, regardless of whether the conditions set forth in the relevant restricted stock agreements have been satisfied in full. Section 8.",
"Successors. If a Change in Control of the Company shall have occurred before the expiration of the term of this Agreement, (i) the Company shall not, directly or indirectly, consolidate with, merge into or sell or otherwise transfer its assets as an entirety or substantially as an entirety to, any person, or permit any person to consolidate with or merge into the Company, unless immediately after such consolidation, merger, sale or transfer, the Successor shall have assumed in writing the Company’s obligations under this Agreement; and (ii) not fewer than ten (10) days before the consummation of any consolidation of the Company with, merger by the Company into, or sale or other transfer by the Company of its assets as an entirety or substantially as an entirety to, any person, the Company shall give the Executive notice of that proposed transaction. Section 9. Notice. Notices required or permitted to be given by either party pursuant to this Agreement shall be in writing and shall be deemed to have been given when delivered personally to the other party or when deposited with the United States Postal Service as certified or registered mail with postage prepaid and addressed: (i) if to the Executive, at the Executive’s address last shown on the Company’s records, and (ii) if to the Company, at 1800 West Loop South, Suite 1500, Houston, Texas 77027, directed to the attention of the Chair of the Compensation & Management Development Committee of the Board of Directors. -------------------------------------------------------------------------------- or, in either case, to such other address as the party to whom or which such notice is to be given shall have specified by notice given to the other party.",
"Section 10. Withholding Taxes. The Company may withhold from all payments to be paid to the Executive pursuant to this Agreement all taxes that, by applicable federal or state law, the Company is required to so withhold. Section 11. Expenses of Enforcement. If a Change in Control of the Company shall have occurred before the expiration of the term of this Agreement, then, upon demand by the Executive made to the Company, the Company shall reimburse the Executive for the reasonable expenses (including attorneys’ fees and expenses) incurred by the Executive in enforcing or seeking to enforce the payment of any amount or other benefit to which the Executive shall have become entitled pursuant to this Agreement, including those incurred in connection with any arbitration initiated pursuant to Section 19. Section 12.",
"Employment by Wholly Owned Entities. If, at or after the Effective Date, the Executive is or becomes an Executive of one or more corporations, partnerships, limited liability companies or other entities that are, directly or indirectly, wholly owned by the Company (“Wholly Owned Entities”), references in this Agreement to the Executive’s employment by the Company shall include the Executive’s employment by any such Wholly Owned Entity. Section 13. No Obligation to Mitigate; No Rights of Offset. (a) The Executive shall not be required to mitigate the amount of any payment or other benefit required to be paid to the Executive pursuant to this Agreement, whether by seeking other employment or otherwise, nor shall the amount of any such payment or other benefit be reduced on account of any compensation earned by the Executive as a result of employment by another person.",
"(b) The Company’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Company may have against the Executive or others. Section 14. Amendment and Waiver. No provision of this Agreement may be amended or waived (whether by act or course of conduct or omission or otherwise) unless that amendment or waiver is by written instrument signed by the parties hereto. No waiver by either party of any breach of this Agreement shall be deemed a waiver of any other or subsequent breach. Section 15. Governing Law. The validity, interpretation, construction and enforceability of this Agreement shall be governed by the laws of the State of Texas.",
"Section 16. Validity. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect. Section 17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together will constitute the same instrument. Section 18. Assignment; Binding Effect. This Agreement shall inure to the benefit of and be enforceable by the Executive’s legal representative. This Agreement shall be binding upon any Successor. The Company may not assign any of its obligations under this Agreement unless (i) such assignment is to a Successor and (ii) the requirements of Section 8 are fulfilled. -------------------------------------------------------------------------------- Section 19. Arbitration. Any dispute between the parties arising out of this Agreement, whether as to this Agreement’s construction, interpretation or enforceability or as to any party’s breach or alleged breach of any provision of this Agreement, shall be submitted to arbitration in accordance with the following procedures: (i) Either party may demand such arbitration by giving notice of that demand to the other party. The notice shall state (x) the matter in controversy, and (y) the name of the arbitrator selected by the party giving the notice.",
"(ii) Not more than 15 days after such notice is given, the other party shall give notice to the party who demanded arbitration of the name of the arbitrator selected by the other party. If the other party shall fail to timely give such notice, the arbitrator that the other party was entitled to select shall be named by the Arbitration Committee of the American Arbitration Association.",
"Not more than 15 days after the second arbitrator is so named, the two arbitrators shall select a third arbitrator. If the two arbitrators shall fail to timely select a third arbitrator, the third arbitrator shall be named by the Arbitration Committee of the American Arbitration Association. (iii) The dispute shall be arbitrated at a hearing that shall be concluded within ten days immediately following the date the dispute is submitted to arbitration unless a majority of the arbitrators shall elect to extend the period of arbitration. Any award made by a majority of the arbitrators (x) shall be made within ten days following the conclusion of the arbitration hearing, (y) shall be conclusive and binding on the parties, and (z) may be made the subject of a judgment of any court having jurisdiction. (iv) All expenses of the arbitration shall be borne by the Company. The agreement of the parties contained in the foregoing provisions of this Section 19 shall be a complete defense to any action, suit or other proceeding instituted in any court or before any administrative tribunal with respect to any dispute between the parties arising out of this Agreement.",
"Section 20. Interpretation. (a) As used in this Agreement, the following terms and phrases have the indicated meanings: (i) “Affiliate” and “Affiliates” mean, when used with respect to any entity, individual, or other person, any other entity, individual, or other person which, directly or indirectly, through one or more intermediaries controls, or is controlled by, or is under common control with such entity, individual or person. (ii) “Base Amount” means the total amount of all compensatory payments or other benefits required by Section 280G of the Code to be included in the calculation of the Executive’s total severance payment for purposes of calculating any excise tax that would be due under Section 4999 of the Code. (iii) “Base Salary” has the meaning assigned to that term in Section 5.",
"(iv) “Basic Benefit Plans” has the meaning assigned to that term in Section 5. -------------------------------------------------------------------------------- (v) “Benchmark Bonus” has the meaning assigned to that term in Section 5. (vi) “Board of Directors” means the Board of Directors of the Company. (vii) “Business Combination” has the meaning assigned to that term in Section 2. (viii) “Change in Control of the Company” has the meaning assigned to that phrase in Section 2. (ix) “Code” means the Internal Revenue Code of 1986, as amended from time to time.",
"(x) “Commission” means the United States Securities and Exchange Commission or any successor agency. (xi) “Company” has the meaning assigned to that term in the preamble to this Agreement. The term “Company” shall also include any Successor, whether the liability of such Successor under this Agreement is established by contract or occurs by operation of law. (xii) “Covered Person” has the meaning assigned to that term in Section 2.",
"(xiii) “Effective Date” means the first day of employment with the Company by the Executive. (xiv) “Executive” has the meaning assigned to such term in the preamble to this Agreement. (xv) “Executive’s Disability” means: (1) if no Change in Control of the Company shall have occurred before the date of determination, the physical or mental disability of the Executive determined in accordance with the disability policy of the Company at the time in effect and generally applicable to its salaried Executives; and (2) if a Change in Control of the Company shall have occurred at that date, the physical or mental disability of the Executive determined in accordance with the disability policy of the Company in effect immediately before the occurrence of the first Change in Control of the Company and generally applicable to its salaried Executives.",
"The Executive’s Disability, and the automatic termination of the Executive’s employment by the Company by reason of the Executive’s Disability, shall be deemed to have occurred on the date of determination, provided that if (1) a Change in Control of the Company shall have occurred before the expiration of the term of this Agreement, (2) the Company shall have subsequently given notice pursuant to -------------------------------------------------------------------------------- Section 6 of the Company’s determination of the Executive’s Disability, and (3) the Executive shall have given notice to the Company that the Executive disagrees with that determination, then (A) whether the Executive’s Disability shall have occurred shall be submitted to arbitration pursuant to Section 19, and (B) if a majority of the arbitrators decide that the Executive’s Disability had not occurred, at the date of determination by the Company, then (I) the Executive’s Disability, and the automatic termination of the Executive’s employment by the Company by reason of the Executive’s Disability, shall be deemed not to have occurred, and (II) on demand by the Executive made to the Company, the Company shall reimburse the Executive for the reasonable expenses (including attorneys’ fees and expenses) incurred by the Executive in obtaining that decision.",
"(xvi) “Event of Termination for Good Reason” has the meaning assigned to that phrase in Section 5. (xvii) “Event of Termination for Cause” has the meaning assigned to that phrase in Section 4. (xviii) “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time. (xix) “Expiration Date” has the meaning assigned to that term in Section 3. (xx) “Fiscal Year” means the fiscal year of the Company.",
"(xxi) “Other Benefit Plan” means any employee welfare benefit plan (within the meaning of section 3(1) of the Employee Retirement Income Security Act of 1974, as amended) maintained by the Company. (xxii) “Outstanding Company Common Stock” has the meaning assigned to that term in Section 2. (xxiii) “Outstanding Company Voting Securities” has the meaning assigned to that term in Section 2. (xxiv) “Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, limited partnership, limited liability company, trust, unincorporated organization, government, or agency or political subdivision of any government. (xxv) “Relevant Period” means a period beginning on the Termination Date and ending on the first to occur of (x) the third anniversary of the Termination Date, or (y) the date on which the Executive becomes employed on a full-time basis by another person. (xxvi) “Severance Payment” has the meaning assigned to that term in Section 7. -------------------------------------------------------------------------------- (xxvii) “Successor” means a person with or into which the Company shall have been merged or consolidated or to which the Company shall have transferred its assets as an entirety or substantially as an entirety. (xxviii) “Termination Date” has the meaning assigned to that term in Section 6.",
"(xxix) “Termination Payment Date” means (1) if the Board (or its delegate) determines in its sole discretion that as of the Termination Date, other than a termination due to death or Disability, the Executive is a specified employee (as defined in Section 409A(a)(2)(B)(i), and Department of Treasury regulations and other interpretive guidance issued thereunder) as of such date (a “Specified Employee”) and that Section 409A applies with respect to a portion of the payments hereunder, then with respect to such portion, the first business day following the six-month anniversary of the Termination Date (the “Six-Month Delay Period”) or (2) if the Board (or its delegate) determines in its sole discretion that as of the Termination Date, other than a termination due to death or Disability, the Executive is not a Specified Employee as of such date or that Section 409A does not apply with respect to a portion of the payments hereunder, then with respect to such portion, not more than ten (10) days immediately following the Termination Date and (3) with respect to any amount payable to or on behalf of the Executive under a welfare or benefit plan program of the Company, including but not limited to a Basic Benefit Plan or Other Benefit Plan, then, to the extent such benefits are provided after the period of time during which the Executive would be entitled to (or would, but for this Agreement, be entitled to) COBRA continuation coverage under a group health plan of the Company, the Company shall make any payments due for such coverage during the Relevant Period on the last business day of the calendar month following the month in which such payments become due.",
"If the Board (or its delegate) determines in its sole discretion that as of the Termination Date, other than a termination due to death or Disability, the Executive is a Specified Employee as of such date and that Section 409A applies with respect to a portion of the payments hereunder, then any such portion payable during the Six-Month Delay Period, shall be transferred to a rabbi trust (which shall be a rabbi trust previously created by the Company that contains other amounts of deferred compensation payable by the Company to the Executive or a rabbi trust created by the Company or its successor, on terms reasonably acceptable to the Executive) as soon as administratively feasible following the occurrence of the event giving rise to the Executive’s right to such payment, except to the extent such transfer would subject the Executive to penalties under the funding restriction provisions of Section 409A, as amended by the Pension Protection Act of 2006, and -------------------------------------------------------------------------------- such amounts (together with earnings thereon determined in accordance with the terms of the trust agreement) shall be transferred from the trust to the Executive upon the earlier of (i) the expiration of the Six-Month Delay Period, or (ii) any other earlier date permitted under Section 409A. (xxx) “This Agreement” means this Change in Control Agreement as it may be amended from time to time in accordance with Section 14. (xxxi) “Wholly Owned Entities” has the meaning assigned to that term in Section 12. (b) In the event of the enactment of any successor provision to any statute or rule cited in this Agreement, references in this Agreement to such statute or rule shall be to such successor provision. (c) The headings of Sections of this Agreement shall not control the meaning or interpretation of this Agreement.",
"(d) References in this Agreement to any Section are to the corresponding Section of this Agreement unless the context otherwise indicates. (e) This Agreement is intended to meet the requirements of Section 409A and shall be administered, construed and interpreted in a manner that is intended to meet those requirements. To the extent that the provision of a benefit or payment under the Agreement is subject to Section 409A, except as the Company and Executive otherwise determine in writing, the provision or payment shall be provided or paid in a manner that will meet the requirements of Section 409A, including regulations or other guidance issued with respect thereto, such that the provisions or payment shall not be subject to the additional tax or interest applicable under Section 409A. Any provision of this Agreement that would cause the provision or payment to fail to satisfy Section 409A shall be amended to comply with Section 409A on a timely basis, which may be made on a retroactive basis, in accordance with regulations and other guidance issued under Section 409A. In the event additional regulations or other guidance is issued under Section 409A or a court of competent jurisdiction provides additional authority concerning the application of Section 409A with respect to the distributions under the Agreement, then the provisions of the Agreement regarding distributions shall be automatically amended to permit such distributions to be made at the earliest time permitted under such additional regulations, guidance or authority that is practicable and achieves the intent of the Agreement prior to its amendment to comply with Section 409A.",
"SIGNATURE PAGE TO FOLLOW -------------------------------------------------------------------------------- IN WITNESS WHEREOF, the Company and the Executive have executed this Agreement this 26th day of January, 2016, to be effective as set forth herein. QUANEX BUILDING PRODUCTS CORPORATION By: /s/ Kevin P. Delaney Kevin P. Delaney Senior Vice President – General Counsel and Secretary EXECUTIVE /s/ Scott Zuehlke Scott Zuehlke"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
WALLACE, District Judge. The plaintiff seeks to recover the value of certain paper destroyed by fire in the freight depot of the defendant, while in course of- transportation from West Springfield, Massachusetts, to Cleveland, Ohio, and other points beyond the terminus of the defendant’s road. Upon the shipment of the goods, the defendant gave the shipper a receipt in the following terms: “Western Railroad Corporation, West Springfield, June 26th, 1861. Received of Southworth Mf’g Co., 10 cases paper, marked and numbered—4, J. B. Cobb & Co., Cleveland, Ohio—5, J. R. Dayton, Quincy, Ill.—1, Ogden, Brownell. & Co., Keokuk, Iowa; contents and value unknown; to be transported to .. and delivered at the .'.. depot there, to .. on the payment of freight therefor, together with' such expenses as shall be shown by vouchers to have been advanced on the same; this contract and the responsibility of the parties hereto being limited and controlled by the rules and regulations printed upon the back of this receipt, as also by the terms of their printed tariffs of freight; and it being, also, understood, that this corporation assumes no liability beyond the end of its own line, and that, so far as it acts as agent for other parties, participating in the joint transit aforesaid, said parties are separately liable.” Upon the back of the receipt there was an endorsement: “The following rules and regulations have been adopted by the several railroad corporations in regard to freight.” Then follow a number of rules, among which are these: “The company will not hold itself liable, as common carriers, for articles of freight, after their arrival at their place of destination and unloading at the company’s warehouse or depots.” “All articles of freight must be taken away within twenty-four hours after being unladen from the cars, the company reserving the right of charging storage on the same, or placing the same in store at the risk and expense of the owner, if they see fit, after a lapse of time.” The several parcels of goods were marked as described in the receipt, and. also marked “care of Western Transportation Co.,” a corporation engaged in carrying freight upon the Erie canal. The terminus of the defendant’s road was at East Albany, where the goods arrived and were unladen at the defendant’s warehouse on the 2d of July; and, on the 5th of July, the warehouse took fire and the goods were consumed, without fault on the part of the defendant. It is not shown that notice of the arrival of the goods was given by the defendant to the Western Transportation Company, but it does appear, that, according to the usual course of business, an agent of the latter visited the warehouse of the defendant, to look for goods, prior to the 5th of July. Giving effect to the receipt delivered by the defendant to the shipper, as a special contract, which restricts the common-law liability of the defendant as a carrier, and renders it liable only according to the conditions mentioned upon the face and back of the receipt, the defendant was liable as a carrier for the goods destroyed in its warehouse, while in course of transportation. The goods were to be transported by the defendant to its depot, for the purpose of delivery there to a second carrier, in the course of transportation to the ultimate destination of the goods; and, in such case, the carrier is liable as a carrier while the goods are in its warehouse awaiting delivery to the second carrier, unless it is absolved by notice of their arrival to the second carrier, or by the terms of a special contract with the shipper. Condit v. Grand Trunk Ry. Co., 54 N. Y. 500; Railroad Co. v. Manufacturing Co., 16 Wall. [83 U. S.] 318; Mills v. Michigan Cent R. Co., 45 N. Y. 622; McDonald v. Western R. Co., 34 N. Y. 497; Rawson v. Holland, 59 N. Y. 611. It is not claimed that the defendant had become exonerated from liability by giving notice of the arrival of the goods to the second carrier, but it is insisted that it is exempted because of the condition on the back of the receipt, which reads, that it will not hold itself liable as a common carrier, for such articles, “after their arrival at their place of destination and unloading at the company’s warehouse or depots.” The argument for the defendant is, that the place of destination, within the language of the condition, is that point on the defendant’s road where it is to deliver the goods to some other carrier or to the consignee. If this position is sound, doubtless, the defendant was liable only as a warehouseman, and, as the goods were destroyed without fault on its part, is not liable for them. To sustain this position it is necessary to maintain, that, when goods are addressed to a point beyond the line of the first carrier, consigned to the care of a connecting carrier, their place of destination is that place where the first carrier is to deliver them to the second carrier. Such a conclusion is opposed to *277the plain and ordinary meaning of language. The goods were shipped to Cleveland and other points further west, and the packages were marked, “care of Western Transportation Company.” So far as the defendant was concerned, its duty would have been discharged by delivering the goods to the Western Transportation Company, but it does not follow from this that the Western Transportation Company was the place of destination. So to hold would require the rest of the address to be disregarded. The place of destination is the place designated for the ultimate unlading of the goods, and is that point on the defendant’s road, or on that of any connecting carrier, at which the consignee is to receive the goods according to the usual course of business of the carrier. Looking at the various terms of the receipt, it is apparent, that the receipt is designed to modify the liability not only of the defendant, but of the various connecting carriers who participate with it in the. transportation; and, while some of the conditions are adapted to protect the defendant, many of them are inserted for the protection of the connecting carriers. It is framed to cover shipments for places on the defendant’s line, and also for shipments to distant places upon or beyond the lines of connecting carriers who are to participate with the defendant in the transportation of the goods, and for whom the defendant is to act as agent in the transaction. Upon its face, the receipt provides that the defendant shall assume no liability beyond the end of its own line, and that “the parties participating in the joint transit” are to be separately liable, while the conditions upon the back of the receipt consist of “rules adopted by the several railroad corporations in regard to freight.” It is framed to stand for a contract between the shipper and the defendant, and also for one between the shipper and the connecting roads who participate in the joint transit, so that both the defendant and the connecting carriers may find protection in the several conditions. This being the object in view, the meaning of the term in question seems obvious. It is used in two of the conditions only, one of which provides against liability for articles of freight “after their arrival at their place of destination and unloading at the company’s warehouse,” -and the other that such articles “arriving at their place of destination must be taken away within twenty-four hours after being unladen.” The place of destination is the ultimate destination of the goods. When this is on the defendant’s road, unless the goods are taken away within twenty-four hours after their arrival and unloading, the defendant is liable only as warehouseman; when the place Is upon the road of a connecting carrier, such carrier, after the twenty-four hours, ceases to be liable as carrier, and assumes only the liability of a warehouseman. This construction is consistent with the instrument as a whole, with the relations of the various parties to it, and with the nature of the transaction the receipt is intended to provide for. If the meaning of the conditions were doubtful, the construction to be given them should be one most strongly against the carrier. The conditions are designed to relax the common-law liability of the carrier—a liability which the shipper has a right to insist upon, and of which he is not to be deprived without clear evidence of his assent. If the meaning of such conditions is involved in any doubt, the doubt is to be resolved in his favor. The conditions in question are satisfied by the construction which has thus been placed upon them. These conclusions lead to a decision against the defendant. But, if it should be conceded that the conditions upon the back of the receipt are so expressed as to refer to the warehouse of the defendant, and relieve the defendant from the obligations of a carrier after the arrival of the goods there, the same result must follow, because of the controlling authority here of the case of Railroad Co. v. Manufacturing Co., 16 Wall. [83 U. S.] 318. It is there held, that the delivery by the carrier to the shipper, of a shipping receipt, which, upon its face, refers to conditions on the back, defining the terms of the carrier’s responsibility, and its acceptance by the shipper, does not constitute a special contract between the shipper and the carrier, by which the liability of the latter is limited by the conditions on the back of the receipt. It is unnecessary to refer to or discuss the principles or the authorities which bear upon the doctrine thus held. The case, in effect, decides, that no act on the part of the shipper, short of an explicit agreement, will imply an assent on his part to a contract proposed by a carrier, modifying the liability of the latter. That this conclusion conflicts with many decisions of high authority in this country and England, must be conceded; but the case furnishes a rule of plain and certain application, and' sweeps away many fine and artificial distinctions which have involved in confusion the whole doctrine of notices and special contracts, as affecting the rights and liabilities of common carriers. Some of these cases have turned upon the point, whether the conditions in a printed receipt were in small type or in large, and whether the receipt was taken deliberately or hurriedly, while one case in the court of last resort in this state places controlling emphasis upon the fact that the receipt was taken by the shipper in a dimly-lighted car, and holds that it was, therefore, not a contract. Blossom v. Dodd, 43 N. Y. 264. Another case of the supreme court of the same state holds the receipt a contract, although taken by a foreigner ignorant of the language in which it was printed, and to whom no explanation of its terms *278was vouchsafed. Fibel v. Livingston, 64 Barb. 179. See, also, Warhus v. Bowery Sav. Bank, 21 N. Y. 543. Thus, while one man is absolved from obligation because it may be inconvenient for him to inform himself of the terms of the proposed contract, another is held. The theory, of course, is, that assent to the proposed contract is or is not implied from the circumstances of the transaction, but the cases illustrate the utter uncertainty of the test of assent, when one man who is ignorant of the language of the proposed contract is presumed to assent, while another is absolved because, from the type in which it is printed, or the light by which he is to read it,' he cannot acquaint himself with its terms without more or less inconvenience. The rule held by the supreme court of the United States is capable of certain and easy application, and, if adhered to, will go far to abrogate a class of contracts to which practically the carrier is the only party. Judgment is ordered for the plaintiff. | 07-20-2022 | [
"WALLACE, District Judge. The plaintiff seeks to recover the value of certain paper destroyed by fire in the freight depot of the defendant, while in course of- transportation from West Springfield, Massachusetts, to Cleveland, Ohio, and other points beyond the terminus of the defendant’s road. Upon the shipment of the goods, the defendant gave the shipper a receipt in the following terms: “Western Railroad Corporation, West Springfield, June 26th, 1861. Received of Southworth Mf’g Co., 10 cases paper, marked and numbered—4, J. B. Cobb & Co., Cleveland, Ohio—5, J. R. Dayton, Quincy, Ill.—1, Ogden, Brownell. & Co., Keokuk, Iowa; contents and value unknown; to be transported to .. and delivered at the .",
"'.. depot there, to .. on the payment of freight therefor, together with' such expenses as shall be shown by vouchers to have been advanced on the same; this contract and the responsibility of the parties hereto being limited and controlled by the rules and regulations printed upon the back of this receipt, as also by the terms of their printed tariffs of freight; and it being, also, understood, that this corporation assumes no liability beyond the end of its own line, and that, so far as it acts as agent for other parties, participating in the joint transit aforesaid, said parties are separately liable.” Upon the back of the receipt there was an endorsement: “The following rules and regulations have been adopted by the several railroad corporations in regard to freight.” Then follow a number of rules, among which are these: “The company will not hold itself liable, as common carriers, for articles of freight, after their arrival at their place of destination and unloading at the company’s warehouse or depots.” “All articles of freight must be taken away within twenty-four hours after being unladen from the cars, the company reserving the right of charging storage on the same, or placing the same in store at the risk and expense of the owner, if they see fit, after a lapse of time.” The several parcels of goods were marked as described in the receipt, and.",
"also marked “care of Western Transportation Co.,” a corporation engaged in carrying freight upon the Erie canal. The terminus of the defendant’s road was at East Albany, where the goods arrived and were unladen at the defendant’s warehouse on the 2d of July; and, on the 5th of July, the warehouse took fire and the goods were consumed, without fault on the part of the defendant. It is not shown that notice of the arrival of the goods was given by the defendant to the Western Transportation Company, but it does appear, that, according to the usual course of business, an agent of the latter visited the warehouse of the defendant, to look for goods, prior to the 5th of July. Giving effect to the receipt delivered by the defendant to the shipper, as a special contract, which restricts the common-law liability of the defendant as a carrier, and renders it liable only according to the conditions mentioned upon the face and back of the receipt, the defendant was liable as a carrier for the goods destroyed in its warehouse, while in course of transportation. The goods were to be transported by the defendant to its depot, for the purpose of delivery there to a second carrier, in the course of transportation to the ultimate destination of the goods; and, in such case, the carrier is liable as a carrier while the goods are in its warehouse awaiting delivery to the second carrier, unless it is absolved by notice of their arrival to the second carrier, or by the terms of a special contract with the shipper.",
"Condit v. Grand Trunk Ry. Co., 54 N. Y. 500; Railroad Co. v. Manufacturing Co., 16 Wall. [83 U. S.] 318; Mills v. Michigan Cent R. Co., 45 N. Y. 622; McDonald v. Western R. Co., 34 N. Y. 497; Rawson v. Holland, 59 N. Y. 611. It is not claimed that the defendant had become exonerated from liability by giving notice of the arrival of the goods to the second carrier, but it is insisted that it is exempted because of the condition on the back of the receipt, which reads, that it will not hold itself liable as a common carrier, for such articles, “after their arrival at their place of destination and unloading at the company’s warehouse or depots.” The argument for the defendant is, that the place of destination, within the language of the condition, is that point on the defendant’s road where it is to deliver the goods to some other carrier or to the consignee. If this position is sound, doubtless, the defendant was liable only as a warehouseman, and, as the goods were destroyed without fault on its part, is not liable for them. To sustain this position it is necessary to maintain, that, when goods are addressed to a point beyond the line of the first carrier, consigned to the care of a connecting carrier, their place of destination is that place where the first carrier is to deliver them to the second carrier.",
"Such a conclusion is opposed to *277the plain and ordinary meaning of language. The goods were shipped to Cleveland and other points further west, and the packages were marked, “care of Western Transportation Company.” So far as the defendant was concerned, its duty would have been discharged by delivering the goods to the Western Transportation Company, but it does not follow from this that the Western Transportation Company was the place of destination. So to hold would require the rest of the address to be disregarded. The place of destination is the place designated for the ultimate unlading of the goods, and is that point on the defendant’s road, or on that of any connecting carrier, at which the consignee is to receive the goods according to the usual course of business of the carrier.",
"Looking at the various terms of the receipt, it is apparent, that the receipt is designed to modify the liability not only of the defendant, but of the various connecting carriers who participate with it in the. transportation; and, while some of the conditions are adapted to protect the defendant, many of them are inserted for the protection of the connecting carriers. It is framed to cover shipments for places on the defendant’s line, and also for shipments to distant places upon or beyond the lines of connecting carriers who are to participate with the defendant in the transportation of the goods, and for whom the defendant is to act as agent in the transaction. Upon its face, the receipt provides that the defendant shall assume no liability beyond the end of its own line, and that “the parties participating in the joint transit” are to be separately liable, while the conditions upon the back of the receipt consist of “rules adopted by the several railroad corporations in regard to freight.” It is framed to stand for a contract between the shipper and the defendant, and also for one between the shipper and the connecting roads who participate in the joint transit, so that both the defendant and the connecting carriers may find protection in the several conditions.",
"This being the object in view, the meaning of the term in question seems obvious. It is used in two of the conditions only, one of which provides against liability for articles of freight “after their arrival at their place of destination and unloading at the company’s warehouse,” -and the other that such articles “arriving at their place of destination must be taken away within twenty-four hours after being unladen.” The place of destination is the ultimate destination of the goods. When this is on the defendant’s road, unless the goods are taken away within twenty-four hours after their arrival and unloading, the defendant is liable only as warehouseman; when the place Is upon the road of a connecting carrier, such carrier, after the twenty-four hours, ceases to be liable as carrier, and assumes only the liability of a warehouseman. This construction is consistent with the instrument as a whole, with the relations of the various parties to it, and with the nature of the transaction the receipt is intended to provide for. If the meaning of the conditions were doubtful, the construction to be given them should be one most strongly against the carrier.",
"The conditions are designed to relax the common-law liability of the carrier—a liability which the shipper has a right to insist upon, and of which he is not to be deprived without clear evidence of his assent. If the meaning of such conditions is involved in any doubt, the doubt is to be resolved in his favor. The conditions in question are satisfied by the construction which has thus been placed upon them. These conclusions lead to a decision against the defendant. But, if it should be conceded that the conditions upon the back of the receipt are so expressed as to refer to the warehouse of the defendant, and relieve the defendant from the obligations of a carrier after the arrival of the goods there, the same result must follow, because of the controlling authority here of the case of Railroad Co. v. Manufacturing Co., 16 Wall. [83 U. S.] 318.",
"It is there held, that the delivery by the carrier to the shipper, of a shipping receipt, which, upon its face, refers to conditions on the back, defining the terms of the carrier’s responsibility, and its acceptance by the shipper, does not constitute a special contract between the shipper and the carrier, by which the liability of the latter is limited by the conditions on the back of the receipt. It is unnecessary to refer to or discuss the principles or the authorities which bear upon the doctrine thus held. The case, in effect, decides, that no act on the part of the shipper, short of an explicit agreement, will imply an assent on his part to a contract proposed by a carrier, modifying the liability of the latter. That this conclusion conflicts with many decisions of high authority in this country and England, must be conceded; but the case furnishes a rule of plain and certain application, and' sweeps away many fine and artificial distinctions which have involved in confusion the whole doctrine of notices and special contracts, as affecting the rights and liabilities of common carriers.",
"Some of these cases have turned upon the point, whether the conditions in a printed receipt were in small type or in large, and whether the receipt was taken deliberately or hurriedly, while one case in the court of last resort in this state places controlling emphasis upon the fact that the receipt was taken by the shipper in a dimly-lighted car, and holds that it was, therefore, not a contract. Blossom v. Dodd, 43 N. Y. 264. Another case of the supreme court of the same state holds the receipt a contract, although taken by a foreigner ignorant of the language in which it was printed, and to whom no explanation of its terms *278was vouchsafed.",
"Fibel v. Livingston, 64 Barb. 179. See, also, Warhus v. Bowery Sav. Bank, 21 N. Y. 543. Thus, while one man is absolved from obligation because it may be inconvenient for him to inform himself of the terms of the proposed contract, another is held. The theory, of course, is, that assent to the proposed contract is or is not implied from the circumstances of the transaction, but the cases illustrate the utter uncertainty of the test of assent, when one man who is ignorant of the language of the proposed contract is presumed to assent, while another is absolved because, from the type in which it is printed, or the light by which he is to read it,' he cannot acquaint himself with its terms without more or less inconvenience. The rule held by the supreme court of the United States is capable of certain and easy application, and, if adhered to, will go far to abrogate a class of contracts to which practically the carrier is the only party. Judgment is ordered for the plaintiff."
]
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Opinion by Mr. Justice McCollum, At the spring election in Turtle Creek borough in 1894, the relator and John T. C. Bowman were opposing, candidates for the office of school director, and each received seventy-nine votes. As they had an equal number of votes for the same term of office, it became their duty, in compliance with section two of the act of April 11, 1862, P. L. 471, to appear at the next regular meeting of the board of school directors to have their rights to seats therein determined, and the duty of the board to proceed in conformity with the act to decide which of them should hold the office. The parties appeared as by the statute they were required to do, but Bowman refused to participate in the drawing prescribed by it and the board adjourned without taking any action in the premises. The relator again appeared before the board, at its reorganization in June, for the purpose of having his right to a seat in it determined, but the board declined to act, on the ground that the duty of deciding the issue raised by the tie vote rested exclusively upon the board as constituted at the next regular meeting of it after the election. The failure of the board as constituted at that time to determine the rights of the parties before the reorganization of it was regarded by the reorganized board as destructive of the relator’s right under the statute, and as having created a vacancy in the office. It therefore declared that a vacancy existed and appointed the respondent to fill it. His title to the office thus acquired is attacked in this, proceeding on the ground that the board had no legal warrant for appointing him *295to it. The learned court below sustained the relator’s contention and entered a judgment of ouster against the respondent, from which he appealed. It is conceded by the learned counsel for the appellant that the relator’s right to have the case decided under the act of 1862 was absolute and could not be taken from him or in anywise impaired by any act of the opposing candidate, but he insists that this right was lost by the inaction of the board prior to its reorganization in June. In other words it is claimed in support of the appeal that the postponement by the board of the performance of its duty under the act, deprived it of jurisdiction, extinguished the relator’s statutory right and created a vacancy in the office, to be filled by it under section seven of the act of May 8, 1854. The consequences of an allowance of this claim are well calculated to raise a doubt respecting the soundness of it. In the first place the proposition that the effect of the neglect or refusal of the board to discharge its plain duty when the parties appeared before it, was to deprive them of their statutory rights and it of the power to perform that duty at a subsequent meeting, is not tenable. There is nothing in the statute which in terms or by necessary implication attaches such consequences to the non-performance of the duty it imposes. The provision in relation to the time of appearance by the parties was complied with by them, and while it may be inferred from this provision that it was the duty of the board to determine their rights at that time, there is no legislative mandate to this effect, nor penalty prescribed for a failure to do so. Having regard to the subject-matter, object and language of the act of 1862 we are of the opinion that the provision in regard to time' is directory only and that the board could have lawfully determined the rights of the parties thereunder at any lawful meeting held at or before the beginning of the school year when the term of office for which they were candidates commenced. The law puts the duty of determining their rights under it upon the board of school directors of the proper district. The board is composed of six persons, two of whom retire from it at the end of each school year and their places are taken by persons chosen for them at the preceding election. The change thus effected in the membership of the board has no effect upon its powers and duties *296under the act of 1862. It follows from these views that it was the duty of the reorganized board to comply with the relator’s request and determine his rights to a seat therein, and that neither its refusal, the neglect of the board before the change of membership in it, nor the act of May 8, 1854 authorized the appointment to which this litigation relates. We conclude therefore that the learned court below did not err in entering the judgment complained of. Judgment affirmed. | 02-17-2022 | [
"Opinion by Mr. Justice McCollum, At the spring election in Turtle Creek borough in 1894, the relator and John T. C. Bowman were opposing, candidates for the office of school director, and each received seventy-nine votes. As they had an equal number of votes for the same term of office, it became their duty, in compliance with section two of the act of April 11, 1862, P. L. 471, to appear at the next regular meeting of the board of school directors to have their rights to seats therein determined, and the duty of the board to proceed in conformity with the act to decide which of them should hold the office. The parties appeared as by the statute they were required to do, but Bowman refused to participate in the drawing prescribed by it and the board adjourned without taking any action in the premises. The relator again appeared before the board, at its reorganization in June, for the purpose of having his right to a seat in it determined, but the board declined to act, on the ground that the duty of deciding the issue raised by the tie vote rested exclusively upon the board as constituted at the next regular meeting of it after the election.",
"The failure of the board as constituted at that time to determine the rights of the parties before the reorganization of it was regarded by the reorganized board as destructive of the relator’s right under the statute, and as having created a vacancy in the office. It therefore declared that a vacancy existed and appointed the respondent to fill it. His title to the office thus acquired is attacked in this, proceeding on the ground that the board had no legal warrant for appointing him *295to it. The learned court below sustained the relator’s contention and entered a judgment of ouster against the respondent, from which he appealed. It is conceded by the learned counsel for the appellant that the relator’s right to have the case decided under the act of 1862 was absolute and could not be taken from him or in anywise impaired by any act of the opposing candidate, but he insists that this right was lost by the inaction of the board prior to its reorganization in June. In other words it is claimed in support of the appeal that the postponement by the board of the performance of its duty under the act, deprived it of jurisdiction, extinguished the relator’s statutory right and created a vacancy in the office, to be filled by it under section seven of the act of May 8, 1854.",
"The consequences of an allowance of this claim are well calculated to raise a doubt respecting the soundness of it. In the first place the proposition that the effect of the neglect or refusal of the board to discharge its plain duty when the parties appeared before it, was to deprive them of their statutory rights and it of the power to perform that duty at a subsequent meeting, is not tenable. There is nothing in the statute which in terms or by necessary implication attaches such consequences to the non-performance of the duty it imposes. The provision in relation to the time of appearance by the parties was complied with by them, and while it may be inferred from this provision that it was the duty of the board to determine their rights at that time, there is no legislative mandate to this effect, nor penalty prescribed for a failure to do so. Having regard to the subject-matter, object and language of the act of 1862 we are of the opinion that the provision in regard to time' is directory only and that the board could have lawfully determined the rights of the parties thereunder at any lawful meeting held at or before the beginning of the school year when the term of office for which they were candidates commenced.",
"The law puts the duty of determining their rights under it upon the board of school directors of the proper district. The board is composed of six persons, two of whom retire from it at the end of each school year and their places are taken by persons chosen for them at the preceding election. The change thus effected in the membership of the board has no effect upon its powers and duties *296under the act of 1862.",
"It follows from these views that it was the duty of the reorganized board to comply with the relator’s request and determine his rights to a seat therein, and that neither its refusal, the neglect of the board before the change of membership in it, nor the act of May 8, 1854 authorized the appointment to which this litigation relates. We conclude therefore that the learned court below did not err in entering the judgment complained of. Judgment affirmed."
]
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560 N.E.2d 69 (1990) Oscar SNOW, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). No. 34A02-9003-CR-150.[1] Court of Appeals of Indiana, First District. September 26, 1990. Transfer Denied January 4, 1991. *71 Caroline B. Briggs, Flora, for appellant. Linley E. Pearson, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee. ROBERTSON, Judge. Appellant-defendant Oscar Snow appeals his conviction of conspiracy to commit dealing in cocaine, a class B felony. We affirm. Arthur Biles agreed to act as an informant for the Kokomo Police Department. Biles was joined in the undercover narcotics investigation by another informant, Tyrone Cockrell. On May 19, 1988, the informants met police at a warehouse in Kokomo and were searched. The two were given cash with which to purchase drugs. Then Biles drove to the Elks Club bar, where he dropped off Cockrell, who went inside the club. Gloria Herron, who was a runner for several drug dealers, approached the car in which Biles sat and asked him if he was looking for anything. Biles told Herron he was looking for one-sixteenth of an ounce of cocaine. Herron told Biles that she had packaged some cocaine with Snow earlier that day, and that Snow was in the bar. Biles went into the bar and approached Snow with his request, but Snow referred him to Herron. Herron agreed to ask Snow for drugs for Biles. Herron gave Snow money that Biles had given her, and Snow gave Herron a plastic bag of cocaine to deliver to Biles. To create the impression that she was getting drugs elsewhere, Herron went home. Snow and Biles began to talk and Snow asked Biles whether he and his companion were undercover police officers. Biles denied being a police officer. After this conversation, Biles left the bar and waited for Herron in his car. She returned with the bag of cocaine which she had originally received from Snow at the bar, and which resembled those she had packaged with Snow earlier in the day. Cockrell joined Biles in his car and the two met police at the warehouse, where they *72 were searched by police to whom they delivered the narcotics. After a trial, the jury found Snow guilty of conspiracy to commit dealing in cocaine. Snow presents six issues for review: I. Whether it was error to refuse Snow's instruction number 4 regarding circumstantial evidence. II. Whether it was error to refuse Snow's instruction number 8 regarding missing witness Tyrone Cockrell. III. Whether an adequate chain of custody was established with regard to the cocaine introduced at trial. IV. Whether it was error to permit State's witness Gloria Herron to testify about Snow's role in the controlled drug buy. V. Whether there was sufficient evidence to support the verdict. VI. Whether Snow should have been discharged because he was not tried within one year from his arrest.
I. Snow's tendered instruction on circumstantial evidence included the following sentence: Circumstantial evidence alone will not justify a finding of guilty unless the circumstances are entirely consistent with the Defendant's guilt, wholly inconsistent with any reasonable theory of the Defendant's innocence, and are so convincing as to exclude a reasonable doubt of the Defendant's guilt. Snow acknowledges that the court read final instruction number 13 which tracked language in the remainder of Snow's tendered instruction. Hence, Snow contends that the final instruction 13 was an incomplete statement of the law. When we review a trial court's refusal to give an instruction, we consider 1) whether the tendered instruction was a correct statement of the law; 2) whether there is evidence to support giving the instruction; and 3) whether the substance of the tendered instruction was covered by other instructions given by the court. Hicks v. State (1989), Ind., 536 N.E.2d 496, 501. It is not reversible error for the trial court to refuse to give a tendered instruction when the substance of that instruction is covered adequately by another instruction given by the court. Mack v. State (1983), Ind., 457 N.E.2d 200. The court's final instruction number 10, which instructs the jury to find in favor of the defendant's innocence where the evidence allows reasonable inferences of both guilt and innocence, adequately covers the final sentence in Snow's tendered instruction. Both instructions inform the jury that before they vote to convict, they should be able to eliminate reasonable inferences of innocence. Also, the evidence of conspiracy comprised both direct and circumstantial evidence. Herron testified that she had taken Biles' money to Snow and Snow had given her cocaine to take to Biles. This was direct evidence of an overt act in furtherance of the conspiracy, an essential element of the offense. See IND. CODE 35-41-5-2(b). Where there is both direct and circumstantial evidence of guilt, the trial court is not required to instruct the jury on circumstantial evidence. Armour v. State (1985), Ind., 479 N.E.2d 1294. There was no error in refusing to give Snow's tendered instruction.
II. Snow tendered the following instruction: "It is peculiarly within the power of the State of produce [sic] Tyrone Cockrell, who could have given material testimony on an issue in this case. The State's failure to call Tyrone Cockrell may give rise to an inference that his testimony would be unfavorable to it. You should bear in mind that the law does not impose on a Defendant in a criminal case the burden of duty or calling [sic] any witnesses or producing any evidence." R. 60. A missing witness instruction is not generally favored in Indiana. Gossmeyer v. State (1985), Ind., 482 N.E.2d 239. An instruction calling for an adverse inference to be drawn from the failure to produce *73 certain evidence is appropriate only where the evidence withheld is material to the trial issues and not cumulative. Id. Also, the missing witness instruction is appropriate only when a witness is available to be produced by one party but not by the other. Metcalf v. State (1983), Ind., 451 N.E.2d 321; Bruce v. State (1978), 268 Ind. 180, 375 N.E.2d 1042; cert. denied, 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662. Snow's presentation of this issue suffers from the same type of inadequacy that were found in other cases there is no showing on the record that Tyrone Cockrell, who was in the service and stationed overseas, was available to the State but not available to Snow. See Metcalf, supra; Gordy v. State (1974), 262 Ind. 275, 315 N.E.2d 362; Allen v. State (1980), Ind. App., 406 N.E.2d 976, affirmed, 408 N.E.2d 122. Also Snow has not demonstrated that Cockrell's testimony would not have been cumulative of the other informant, Biles' testimony. Snow has failed to present error in the refusal of the instruction.
III. Snow argues that the State failed to demonstrate chain of custody of State's Exhibit A, the packet Biles delivered to the police. First, Snow contends that neither Gloria Herron nor Arthur Biles were called upon to identify the State's cocaine exhibit as that which had been given to them. Second, Snow argues that the officer who received two packets of cocaine from each of the two informants failed to explain how he distinguished them later. The purpose of requiring an adequate chain of custody is to connect the evidence with the proper individual and to negate any substantial likelihood of tampering, loss, substitution or mistake. Fendley v. Ford (1984), Ind. App., 458 N.E.2d 1167. The State need only prove the chain of custody from the time the object came into possession of the police, McAnalley v. State (1987), Ind., 514 N.E.2d 831, 835, and if an item is subject to testing, such as drugs, chain of custody need be shown only through the time of testing. Smith v. State (1983), Ind. App., 452 N.E.2d 160. The record bears out the State's assertion that it established an adequate chain of custody for State's Exhibit A. Police searched both informants and their car prior to the controlled buy, and found no other narcotics. Biles testified Herron gave him a plastic bag secured with a twist tie, and that he gave Sgt. Salinas the bag which remained undisturbed while he had it. Sgt. Salinas testified receiving the bag from Biles, who said he had gotten it from Herron. Salinas also received a similar bag from Cockrell. Salinas testified he normally placed each baggie in its own manila envelope on which he wrote identifying information. At trial, he identified the manila envelope as well as the plastic bag he received from Biles. From this testimony, the jury could infer that Salinas followed the same procedure in Snow's case that he "normally" did. Salinas then testified he placed the baggie in another packet which he initialed, heat-sealed, and stored in his narcotics locker. Lt. Ashenfelter described unlocking the narcotics locker and delivering the evidence to the laboratory. Once at the State Police lab, he delivered the package to a property clerk. He retrieved the item in a sealed condition and then delivered it to the Kokomo Police Department's locked evidence room. Finally, Chemist Troy Ballard affirmed that he received the packet in a sealed condition from the evidence vault and resealed the packet after testing, when it was retrieved by Ashenfelter. The chain of custody was not deficient because Biles did not positively identify the exhibit. He testified he received a packet from Herron and gave that packet to Salinas, who testified to receiving the exhibit from Biles. The relevancy of the exhibit was established.
IV. Snow argues for the exclusion of that part of Gloria Herron's testimony regarding conversations with Oscar Snow, *74 prior to presentation of a prima facie case of conspiracy, citing Berridge v. State (1976), 168 Ind. App. 22, 340 N.E.2d 816. Snow has not cited the record in support of his allegation of error. He suggests that all of Herron's testimony was inadmissible under Berridge. At the point at which trial counsel objected to Herron's testimony, the objection was to Herron's testimony "concerning this particular incident." Record at 191. Because the objection at trial was to all of Herron's testimony, not just to any out-of-court statements, it was insufficient to preserve error on the basis of Snow's argument on appeal. Therefore, any error is waived. Bryant v. State ex rel. Van Natta, (1980), Ind. App., 405 N.E.2d 583. In fact, Herron's testimony recounts her activities with Snow in preparing the cocaine for distribution, and their actions at the Elks Club on the evening in question. The rule in Berridge, supra does not apply to direct testimony of the co-conspirator. Maynard v. State (1987), Ind. App., 508 N.E.2d 1346; Smith v. State (1984), Ind., 465 N.E.2d 1105, 1121. Herron did not testify about out-of-court statements or declarations of Snow. As a coconspirator, Herron was a competent witness against Snow. Maynard, supra. Snow has not demonstrated that Herron's testimony was inadmissible.
V. Snow's issue here is presented as error in denying his motion for directed verdict. Of course, one who elects to present evidence after a denial of his motion for directed verdict made at the end of the State's case waives appellate review of the denial of that motion. Miller v. State (1981), 275 Ind. 454, 417 N.E.2d 339. Hence, we will determine whether the State's evidence was sufficient to sustain Snow's conviction. The elements of conspiracy are the intent to commit a felony, agreement with another to commit a felony, and an overt act in furtherance of the conspiracy. Whittle v. State (1989), Ind., 542 N.E.2d 981. Snow attacks the sufficiency of the evidence on several fronts. First, he states the evidence only shows an association between himself and Herron, the seller of the cocaine, supporting only a suspicion of guilt. The evidence here went beyond demonstrating a mere association, however. It is not necessary to present direct evidence of a formal express agreement. The agreement as well as the requisite guilty knowledge and intent may be inferred from circumstantial evidence alone, including overt acts of the parties in pursuance of the criminal act. Survance v. State (1984), Ind., 465 N.E.2d 1076. Herron's testimony that she worked as a runner for Snow, in exchange for cocaine, and that she and Snow prepared baggies of cocaine earlier in the day support an inference of an agreement to commit the felony of dealing in cocaine. Further evidence was supplied by Herron's relating that she went to Snow for cocaine when buyers requested the sale. She returned the money to Snow when the transaction was completed. Evidence that Snow did not "want" to deal with Biles upon his request does not diminish the evidence in support of a conspiracy, even if we could weigh such allegedly conflicting evidence. Rather, that evidence shows that Snow wanted to avoid the appearance of being involved in dealing drugs; it does not evidence any disinclination to deal in cocaine. The evidence actually supports an inference that Snow intended to deal in cocaine, because it shows knowledge of the illegality of the act, and an awareness that police often make controlled buys from unsuspecting dealers. Snow makes much of the fact that Herron testified she did not meet Art Biles until August, 1988, although the transaction occurred in May of that year. However, the State attempted to rehabilitate its witness by pointing out the obvious mistake in her testimony. Herron also testified she made the delivery to Biles on May 19, 1988, and the jury was free to resolve the inconsistency. Finally, Snow argues that he could not be found guilty of conspiracy because Iannelli v. United States (1975), 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616, requires that *75 one more person, in addition to the co-conspirators, be involved in the crime. Snow's reliance on Wharton's Rule is entirely misplaced. Simplified, Wharton's Rule states "An agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission." Iannelli v. United States, 420 U.S. at 773, n. 5, 95 S.Ct. at 1288, n. 5. The distinction in the instant case is readily discerned when one compares the instant substantive offense to the one which the federal courts in Iannelli were concerned. At 18 U.S.C. § 1955, it is a crime for five or more persons to conduct, finance, manage, supervise, direct, or own a gambling business prohibited by state law. Under I.C. XX-XX-X-X: (a) A person who: (1) knowingly or intentionally: (A) manufactures; (B) finances the manufacture of; (C) delivers; or (D) finances the delivery of; cocaine or a narcotic drug, pure or adulterated, classified in schedule I or II; or (2) possesses, with intent to: (A) manufacture; (B) finance the manufacture of; (C) deliver; or (D) finance the delivery of; cocaine or a narcotic drug, pure or adulterated, classified in schedule I or II; commits dealing in cocaine or a narcotic drug... The offense of dealing in cocaine does not require more than one person for its commission. Wharton's Rule applies only to offenses which require concerted criminal activity. Iannelli, 420 U.S. at 785, 95 S.Ct. at 1293. In short, the evidence, although much of it circumstantial, supported an inference that Herron and Snow had agreed to commit dealing in cocaine, by virtue of Herron's testimony that she had been a runner for Snow, that she and Snow had earlier packaged cocaine for sale, and that Snow had a ready supply of cocaine on him, which he gave to Herron with the understanding she would deliver it to Biles. The evidence also supported the inference that Snow intended to deal in cocaine, considering this same evidence. Snow's sufficiency argument is unavailing.
VI. For Snow's final argument, he asserts that he should have been discharged because the State failed to try him within one year. Indiana Criminal Rule 4(C) provides: No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule. Provided further, that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time. Any defendant so held shall, on motion, be discharged. Although a defendant is not required to take any affirmative action to obtain a trial date within the one-year period, Huffman v. State (1987), Ind., 502 N.E.2d 906, 908, he does have a duty to alert the court when a trial date has been set beyond the one-year period. If a trial date has been set beyond the proscribed limits and the defendant does not object at his earliest opportunity, he will be deemed to have acquiesced to the new date. Decker v. State (1988), Ind., 528 N.E.2d 1119. *76 The time limit is extended if the defendant actively seeks delay or acquiesces in any delay which results in a later trial date. Burdine v. State (1987), Ind., 515 N.E.2d 1085. Snow was arrested on November 7, 1988, and his trial began November 9, 1989. The State does not argue that any delay in the start of Snow's trial should be attributed to Snow, thereby extending the date. Rather, the State contends that Snow should have objected at the pre-trial conference attended by Snow and Snow's counsel on October 24, 1989, when the court set Snow's trial for November 9. When the trial was set, Snow still had about two weeks in which he could have objected; hence, he may not argue that an objection would have been unavailing. Snow acquiesced to the setting of his trial later than one year after he was arrested, so he waived his right to be tried within one year. Judgment affirmed. RATLIFF, C.J., and MILLER, J., concur. NOTES [1] This case was diverted from the Second District by direction of the Chief Judge. | 10-30-2013 | [
"560 N.E.2d 69 (1990) Oscar SNOW, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). No. 34A02-9003-CR-150. [1] Court of Appeals of Indiana, First District. September 26, 1990. Transfer Denied January 4, 1991. *71 Caroline B. Briggs, Flora, for appellant. Linley E. Pearson, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee. ROBERTSON, Judge. Appellant-defendant Oscar Snow appeals his conviction of conspiracy to commit dealing in cocaine, a class B felony. We affirm. Arthur Biles agreed to act as an informant for the Kokomo Police Department.",
"Biles was joined in the undercover narcotics investigation by another informant, Tyrone Cockrell. On May 19, 1988, the informants met police at a warehouse in Kokomo and were searched. The two were given cash with which to purchase drugs. Then Biles drove to the Elks Club bar, where he dropped off Cockrell, who went inside the club. Gloria Herron, who was a runner for several drug dealers, approached the car in which Biles sat and asked him if he was looking for anything.",
"Biles told Herron he was looking for one-sixteenth of an ounce of cocaine. Herron told Biles that she had packaged some cocaine with Snow earlier that day, and that Snow was in the bar. Biles went into the bar and approached Snow with his request, but Snow referred him to Herron. Herron agreed to ask Snow for drugs for Biles. Herron gave Snow money that Biles had given her, and Snow gave Herron a plastic bag of cocaine to deliver to Biles. To create the impression that she was getting drugs elsewhere, Herron went home. Snow and Biles began to talk and Snow asked Biles whether he and his companion were undercover police officers.",
"Biles denied being a police officer. After this conversation, Biles left the bar and waited for Herron in his car. She returned with the bag of cocaine which she had originally received from Snow at the bar, and which resembled those she had packaged with Snow earlier in the day. Cockrell joined Biles in his car and the two met police at the warehouse, where they *72 were searched by police to whom they delivered the narcotics. After a trial, the jury found Snow guilty of conspiracy to commit dealing in cocaine. Snow presents six issues for review: I. Whether it was error to refuse Snow's instruction number 4 regarding circumstantial evidence. II. Whether it was error to refuse Snow's instruction number 8 regarding missing witness Tyrone Cockrell. III. Whether an adequate chain of custody was established with regard to the cocaine introduced at trial. IV. Whether it was error to permit State's witness Gloria Herron to testify about Snow's role in the controlled drug buy.",
"V. Whether there was sufficient evidence to support the verdict. VI. Whether Snow should have been discharged because he was not tried within one year from his arrest. I. Snow's tendered instruction on circumstantial evidence included the following sentence: Circumstantial evidence alone will not justify a finding of guilty unless the circumstances are entirely consistent with the Defendant's guilt, wholly inconsistent with any reasonable theory of the Defendant's innocence, and are so convincing as to exclude a reasonable doubt of the Defendant's guilt. Snow acknowledges that the court read final instruction number 13 which tracked language in the remainder of Snow's tendered instruction.",
"Hence, Snow contends that the final instruction 13 was an incomplete statement of the law. When we review a trial court's refusal to give an instruction, we consider 1) whether the tendered instruction was a correct statement of the law; 2) whether there is evidence to support giving the instruction; and 3) whether the substance of the tendered instruction was covered by other instructions given by the court. Hicks v. State (1989), Ind., 536 N.E.2d 496, 501. It is not reversible error for the trial court to refuse to give a tendered instruction when the substance of that instruction is covered adequately by another instruction given by the court. Mack v. State (1983), Ind., 457 N.E.2d 200. The court's final instruction number 10, which instructs the jury to find in favor of the defendant's innocence where the evidence allows reasonable inferences of both guilt and innocence, adequately covers the final sentence in Snow's tendered instruction. Both instructions inform the jury that before they vote to convict, they should be able to eliminate reasonable inferences of innocence. Also, the evidence of conspiracy comprised both direct and circumstantial evidence.",
"Herron testified that she had taken Biles' money to Snow and Snow had given her cocaine to take to Biles. This was direct evidence of an overt act in furtherance of the conspiracy, an essential element of the offense. See IND. CODE 35-41-5-2(b). Where there is both direct and circumstantial evidence of guilt, the trial court is not required to instruct the jury on circumstantial evidence. Armour v. State (1985), Ind., 479 N.E.2d 1294. There was no error in refusing to give Snow's tendered instruction. II. Snow tendered the following instruction: \"It is peculiarly within the power of the State of produce [sic] Tyrone Cockrell, who could have given material testimony on an issue in this case. The State's failure to call Tyrone Cockrell may give rise to an inference that his testimony would be unfavorable to it.",
"You should bear in mind that the law does not impose on a Defendant in a criminal case the burden of duty or calling [sic] any witnesses or producing any evidence.\" R. 60. A missing witness instruction is not generally favored in Indiana. Gossmeyer v. State (1985), Ind., 482 N.E.2d 239. An instruction calling for an adverse inference to be drawn from the failure to produce *73 certain evidence is appropriate only where the evidence withheld is material to the trial issues and not cumulative.",
"Id. Also, the missing witness instruction is appropriate only when a witness is available to be produced by one party but not by the other. Metcalf v. State (1983), Ind., 451 N.E.2d 321; Bruce v. State (1978), 268 Ind. 180, 375 N.E.2d 1042; cert. denied, 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662. Snow's presentation of this issue suffers from the same type of inadequacy that were found in other cases there is no showing on the record that Tyrone Cockrell, who was in the service and stationed overseas, was available to the State but not available to Snow. See Metcalf, supra; Gordy v. State (1974), 262 Ind.",
"275, 315 N.E.2d 362; Allen v. State (1980), Ind. App., 406 N.E.2d 976, affirmed, 408 N.E.2d 122. Also Snow has not demonstrated that Cockrell's testimony would not have been cumulative of the other informant, Biles' testimony. Snow has failed to present error in the refusal of the instruction. III. Snow argues that the State failed to demonstrate chain of custody of State's Exhibit A, the packet Biles delivered to the police. First, Snow contends that neither Gloria Herron nor Arthur Biles were called upon to identify the State's cocaine exhibit as that which had been given to them.",
"Second, Snow argues that the officer who received two packets of cocaine from each of the two informants failed to explain how he distinguished them later. The purpose of requiring an adequate chain of custody is to connect the evidence with the proper individual and to negate any substantial likelihood of tampering, loss, substitution or mistake. Fendley v. Ford (1984), Ind. App., 458 N.E.2d 1167. The State need only prove the chain of custody from the time the object came into possession of the police, McAnalley v. State (1987), Ind., 514 N.E.2d 831, 835, and if an item is subject to testing, such as drugs, chain of custody need be shown only through the time of testing. Smith v. State (1983), Ind. App., 452 N.E.2d 160. The record bears out the State's assertion that it established an adequate chain of custody for State's Exhibit A. Police searched both informants and their car prior to the controlled buy, and found no other narcotics. Biles testified Herron gave him a plastic bag secured with a twist tie, and that he gave Sgt.",
"Salinas the bag which remained undisturbed while he had it. Sgt. Salinas testified receiving the bag from Biles, who said he had gotten it from Herron. Salinas also received a similar bag from Cockrell. Salinas testified he normally placed each baggie in its own manila envelope on which he wrote identifying information. At trial, he identified the manila envelope as well as the plastic bag he received from Biles. From this testimony, the jury could infer that Salinas followed the same procedure in Snow's case that he \"normally\" did. Salinas then testified he placed the baggie in another packet which he initialed, heat-sealed, and stored in his narcotics locker. Lt. Ashenfelter described unlocking the narcotics locker and delivering the evidence to the laboratory. Once at the State Police lab, he delivered the package to a property clerk.",
"He retrieved the item in a sealed condition and then delivered it to the Kokomo Police Department's locked evidence room. Finally, Chemist Troy Ballard affirmed that he received the packet in a sealed condition from the evidence vault and resealed the packet after testing, when it was retrieved by Ashenfelter. The chain of custody was not deficient because Biles did not positively identify the exhibit. He testified he received a packet from Herron and gave that packet to Salinas, who testified to receiving the exhibit from Biles. The relevancy of the exhibit was established. IV. Snow argues for the exclusion of that part of Gloria Herron's testimony regarding conversations with Oscar Snow, *74 prior to presentation of a prima facie case of conspiracy, citing Berridge v. State (1976), 168 Ind. App. 22, 340 N.E.2d 816. Snow has not cited the record in support of his allegation of error.",
"He suggests that all of Herron's testimony was inadmissible under Berridge. At the point at which trial counsel objected to Herron's testimony, the objection was to Herron's testimony \"concerning this particular incident.\" Record at 191. Because the objection at trial was to all of Herron's testimony, not just to any out-of-court statements, it was insufficient to preserve error on the basis of Snow's argument on appeal. Therefore, any error is waived. Bryant v. State ex rel.",
"Van Natta, (1980), Ind. App., 405 N.E.2d 583. In fact, Herron's testimony recounts her activities with Snow in preparing the cocaine for distribution, and their actions at the Elks Club on the evening in question. The rule in Berridge, supra does not apply to direct testimony of the co-conspirator. Maynard v. State (1987), Ind. App., 508 N.E.2d 1346; Smith v. State (1984), Ind., 465 N.E.2d 1105, 1121. Herron did not testify about out-of-court statements or declarations of Snow. As a coconspirator, Herron was a competent witness against Snow. Maynard, supra. Snow has not demonstrated that Herron's testimony was inadmissible. V. Snow's issue here is presented as error in denying his motion for directed verdict. Of course, one who elects to present evidence after a denial of his motion for directed verdict made at the end of the State's case waives appellate review of the denial of that motion. Miller v. State (1981), 275 Ind.",
"454, 417 N.E.2d 339. Hence, we will determine whether the State's evidence was sufficient to sustain Snow's conviction. The elements of conspiracy are the intent to commit a felony, agreement with another to commit a felony, and an overt act in furtherance of the conspiracy. Whittle v. State (1989), Ind., 542 N.E.2d 981. Snow attacks the sufficiency of the evidence on several fronts. First, he states the evidence only shows an association between himself and Herron, the seller of the cocaine, supporting only a suspicion of guilt. The evidence here went beyond demonstrating a mere association, however.",
"It is not necessary to present direct evidence of a formal express agreement. The agreement as well as the requisite guilty knowledge and intent may be inferred from circumstantial evidence alone, including overt acts of the parties in pursuance of the criminal act. Survance v. State (1984), Ind., 465 N.E.2d 1076. Herron's testimony that she worked as a runner for Snow, in exchange for cocaine, and that she and Snow prepared baggies of cocaine earlier in the day support an inference of an agreement to commit the felony of dealing in cocaine. Further evidence was supplied by Herron's relating that she went to Snow for cocaine when buyers requested the sale. She returned the money to Snow when the transaction was completed. Evidence that Snow did not \"want\" to deal with Biles upon his request does not diminish the evidence in support of a conspiracy, even if we could weigh such allegedly conflicting evidence.",
"Rather, that evidence shows that Snow wanted to avoid the appearance of being involved in dealing drugs; it does not evidence any disinclination to deal in cocaine. The evidence actually supports an inference that Snow intended to deal in cocaine, because it shows knowledge of the illegality of the act, and an awareness that police often make controlled buys from unsuspecting dealers. Snow makes much of the fact that Herron testified she did not meet Art Biles until August, 1988, although the transaction occurred in May of that year. However, the State attempted to rehabilitate its witness by pointing out the obvious mistake in her testimony. Herron also testified she made the delivery to Biles on May 19, 1988, and the jury was free to resolve the inconsistency. Finally, Snow argues that he could not be found guilty of conspiracy because Iannelli v. United States (1975), 420 U.S. 770, 95 S.Ct.",
"1284, 43 L.Ed.2d 616, requires that *75 one more person, in addition to the co-conspirators, be involved in the crime. Snow's reliance on Wharton's Rule is entirely misplaced. Simplified, Wharton's Rule states \"An agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission.\" Iannelli v. United States, 420 U.S. at 773, n. 5, 95 S.Ct. at 1288, n. 5. The distinction in the instant case is readily discerned when one compares the instant substantive offense to the one which the federal courts in Iannelli were concerned. At 18 U.S.C. § 1955, it is a crime for five or more persons to conduct, finance, manage, supervise, direct, or own a gambling business prohibited by state law. Under I.C.",
"XX-XX-X-X: (a) A person who: (1) knowingly or intentionally: (A) manufactures; (B) finances the manufacture of; (C) delivers; or (D) finances the delivery of; cocaine or a narcotic drug, pure or adulterated, classified in schedule I or II; or (2) possesses, with intent to: (A) manufacture; (B) finance the manufacture of; (C) deliver; or (D) finance the delivery of; cocaine or a narcotic drug, pure or adulterated, classified in schedule I or II; commits dealing in cocaine or a narcotic drug... The offense of dealing in cocaine does not require more than one person for its commission. Wharton's Rule applies only to offenses which require concerted criminal activity.",
"Iannelli, 420 U.S. at 785, 95 S.Ct. at 1293. In short, the evidence, although much of it circumstantial, supported an inference that Herron and Snow had agreed to commit dealing in cocaine, by virtue of Herron's testimony that she had been a runner for Snow, that she and Snow had earlier packaged cocaine for sale, and that Snow had a ready supply of cocaine on him, which he gave to Herron with the understanding she would deliver it to Biles. The evidence also supported the inference that Snow intended to deal in cocaine, considering this same evidence. Snow's sufficiency argument is unavailing. VI. For Snow's final argument, he asserts that he should have been discharged because the State failed to try him within one year.",
"Indiana Criminal Rule 4(C) provides: No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule. Provided further, that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time.",
"Any defendant so held shall, on motion, be discharged. Although a defendant is not required to take any affirmative action to obtain a trial date within the one-year period, Huffman v. State (1987), Ind., 502 N.E.2d 906, 908, he does have a duty to alert the court when a trial date has been set beyond the one-year period. If a trial date has been set beyond the proscribed limits and the defendant does not object at his earliest opportunity, he will be deemed to have acquiesced to the new date. Decker v. State (1988), Ind., 528 N.E.2d 1119. *76 The time limit is extended if the defendant actively seeks delay or acquiesces in any delay which results in a later trial date. Burdine v. State (1987), Ind., 515 N.E.2d 1085. Snow was arrested on November 7, 1988, and his trial began November 9, 1989. The State does not argue that any delay in the start of Snow's trial should be attributed to Snow, thereby extending the date.",
"Rather, the State contends that Snow should have objected at the pre-trial conference attended by Snow and Snow's counsel on October 24, 1989, when the court set Snow's trial for November 9. When the trial was set, Snow still had about two weeks in which he could have objected; hence, he may not argue that an objection would have been unavailing. Snow acquiesced to the setting of his trial later than one year after he was arrested, so he waived his right to be tried within one year. Judgment affirmed. RATLIFF, C.J., and MILLER, J., concur. NOTES [1] This case was diverted from the Second District by direction of the Chief Judge."
]
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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 .
Claim Rejections - 35 USC § 102 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-6, 29-33 and 35 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Burgin. (US 5,597,248) With respect to claim 1, Burgin teaches a tape support arrangement, the arrangement comprising: a tape take up core (17) suitable for supporting a tape; and a tape supply core (12) suitable for supporting a tape, the supply core comprising an inner surface, the inner surface defining an internal volume of the supply core and being configured for engagement with a tape drive support, and wherein the take up core is sized, shaped and configured such that it can be located in the internal volume of the supply core. (See col. 2, lines 22-40, col. 3, lines 1-14, Fig. 4) With respect to claim 2, Burgin teaches the take up core comprises an outer surface and wherein the take up core is locatable such that the outer surface of the take up core is enclosed by the inner surface of the supply core.(See Fig. 4) With respect to claim 3, Burgin teaches the lake up core is locatable such that the take up core is fully located within the internal volume of the supply core. (See Fig. 4) With respect to claim 4, Burgin teaches the supply core has a first end and a second end, and wherein the inner surface of the supply core extends from the first end to the second end such that the internal volume of the supply core extends from the first end to the second end. (See Fig. 4) With respect to claim 5, Burgin teaches the supply core is generally annular such that the inner surface and internal volume are generally cylindrical. (See Fig. 4) With respect to claim 6, Burgin teaches the take up core is generally annular and wherein the take up core comprises an outer surface, such that the outer surface of the take up spool is generally cylindrical. (See Fig. 4) With respect to claim 29, Burgin teaches the arrangement further comprises a tape. (ink ribbon 14, see col. 2, lines 22-40) With respect to claim 30, Burgin teaches the tape comprises a first end, and wherein the first end of the tape is supported by the supply core. (See Fig. 4) With respect to claim 31, Burgin teaches the tape is wound upon the supply core to form a supply spool of tape. (See Fig. 4) With respect to claim 32, Burgin teaches the tape comprises a second end, and wherein the second end is supported by the take up core. (See Fig. 4) With respect to claim 33, Burgin teaches the tape is a print ribbon carrying ink. (See col. 2, lines 22-40) With respect to claim 35, Masatada teaches the tape supply core has a greater outer diameter than the outer diameter of the tape take up core. (See Fig. 4)
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 12, 16, 28 and 34 is/are rejected under 35 U.S.C. 103 as being unpatentable over Burgin. With respect to claim 12, Burgin teaches all that is claimed, as in the above rejection, except for explicitly teaching the supply core has a height and the take up core has a height and wherein the height of the supply core is substantially the same as the height of the take up core. However, it is common to provide a take up core and supply core having the same height, as they are used with a ribbon having a particular width and therefore it would have been obvious to one having ordinary skill in the art to provide the cores having a same height to improve efficiency of usage in a system having a tape of a particular width. With respect to claim 16, Burgin teaches all that is claimed, as in the above rejection, except for explicitly teaching a package comprising a plurality of tape support arrangements according to claim 1, wherein the said plurality of tape support arrangements are stacked in an end-to-end fashion with the take up core of each of said plurality of tape support arrangements being located in the internal volume of the respective supply core, and wherein the plurality of tape support arrangements are contained within a packing tube. However, this packing arrangement is mechanically simple and therefore it would have been obvious to one having ordinary skill in the art to provide a package as claimed in order to pack a plurality of the tape support arrangements in as small a space as possible for easy transport. With respect to claim 28, Burgin teaches all that is claimed, as in the above rejection, including the tape supply core having a length of tape wound onto it, but does not explicitly teach wherein the length of the tape wound on the tape supply core is greater than about 250m, and wherein the outer diameter of the tape supply core is greater than about 20% of an outer diameter of the tape supply spool, defined by the tape, when the tape is wound onto the tape supply core. However, these dimensions are a function of the dimensions of the system, in particular a desired length and thickness of the tape, and therefore could best be determined through routine experimentation. With respect to claim 34, Burgin teaches all that is claimed, as in the above rejection, except for explicitly teaching the arrangement is for use within a thermal transfer printer. However, it is common to use a printing ribbon in a thermal transfer printer and therefore it would have been obvious to on having ordinary skill in the art at the time the invention was filed to use the ribbon arrangement to provide efficient packaging for a ribbon to be used in such a system.
Claims 17-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Burgin in view of Furuya et al. (US 6,042,039, hereafter Furuya) With respect to claims 17, Burgin teaches all that is claimed, as in the above rejection, including the tape core comprising a length of tape wound around an outer face of a generally annular central core of the tape supply core, an inner face, radially inboard of the outer face, wherein the inner face comprises first and second portions spaced along a central axis of the core. Burgin does not teach wherein a diameter of the first portion of the inner face is greater than a diameter of the second portion of the inner face. Furuya teaches a tape core (spool 21) comprising a length of tape (ink ribbon R) wound around an outer face of a generally annular central core (spool 21) of the tape supply core, an inner face (hollow portion 24) radially inboard of the outer face, wherein the inner face comprises first and second portions spaced along a central axis of the core, wherein a diameter of the first portion of the inner face is greater than a diameter of the second portion of the inner face. (col. 6, lines 32-45, Fig. 5) It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify the structure of Burgin to include a tape core with an inner face having portions having different diameters, as taught by Furuya, in order to accommodate an inserted body having features which interact with the portions of different diameter. With respect to claim 18, Burgin, as modified by Furuya, teaches the tape supply core is configured such that an alignment feature of a spool support may be received by the first portion of the inner face, and said alignment feature cannot be received by the second portion of the inner face, when the spool is supported by the spool support, thereby allowing the spool support to fully support the spool in a first relative orientation between the spool and the spool support in which the alignment feature is received by the first portion of the Inner face, and preventing the spool support from fully supporting the spool in a second relative orientation between the spool and the spool support in which the alignment feature is not received by the first portion of the Inner face. (Furuya, col. 6, lines 32-45, Fig. 5)
Allowable Subject Matter Claims 14-15 allowed. The following is an examiner’s statement of reasons for allowance: With respect to claim 14, the prior art fails to teach or render obvious a method of producing a tape support arrangement as claimed, particularly comprising: the step of b) placing the take up core within the internal volume of the tape supply core. 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.”
Response to Arguments Applicant’s arguments with respect to the rejection under Masatada have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Burgin.
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jill E Culler whose telephone number is (571)272-2159. The examiner can normally be reached M-F 8:30-5:00. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Matthew Luu can be reached on 571-272-7663. 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.
/JILL E CULLER/Primary Examiner, Art Unit 2853 | 2022-05-25T11:42:12 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Claim Rejections - 35 USC § 102 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless – (a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention. Claim(s) 1-6, 29-33 and 35 is/are rejected under 35 U.S.C.",
"102(a)(2) as being anticipated by Burgin. (US 5,597,248) With respect to claim 1, Burgin teaches a tape support arrangement, the arrangement comprising: a tape take up core (17) suitable for supporting a tape; and a tape supply core (12) suitable for supporting a tape, the supply core comprising an inner surface, the inner surface defining an internal volume of the supply core and being configured for engagement with a tape drive support, and wherein the take up core is sized, shaped and configured such that it can be located in the internal volume of the supply core. (See col. 2, lines 22-40, col. 3, lines 1-14, Fig. 4) With respect to claim 2, Burgin teaches the take up core comprises an outer surface and wherein the take up core is locatable such that the outer surface of the take up core is enclosed by the inner surface of the supply core. (See Fig.",
"4) With respect to claim 3, Burgin teaches the lake up core is locatable such that the take up core is fully located within the internal volume of the supply core. (See Fig. 4) With respect to claim 4, Burgin teaches the supply core has a first end and a second end, and wherein the inner surface of the supply core extends from the first end to the second end such that the internal volume of the supply core extends from the first end to the second end. (See Fig. 4) With respect to claim 5, Burgin teaches the supply core is generally annular such that the inner surface and internal volume are generally cylindrical. (See Fig.",
"4) With respect to claim 6, Burgin teaches the take up core is generally annular and wherein the take up core comprises an outer surface, such that the outer surface of the take up spool is generally cylindrical. (See Fig. 4) With respect to claim 29, Burgin teaches the arrangement further comprises a tape. (ink ribbon 14, see col. 2, lines 22-40) With respect to claim 30, Burgin teaches the tape comprises a first end, and wherein the first end of the tape is supported by the supply core. (See Fig. 4) With respect to claim 31, Burgin teaches the tape is wound upon the supply core to form a supply spool of tape. (See Fig. 4) With respect to claim 32, Burgin teaches the tape comprises a second end, and wherein the second end is supported by the take up core.",
"(See Fig. 4) With respect to claim 33, Burgin teaches the tape is a print ribbon carrying ink. (See col. 2, lines 22-40) With respect to claim 35, Masatada teaches the tape supply core has a greater outer diameter than the outer diameter of the tape take up core. (See Fig. 4) 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 12, 16, 28 and 34 is/are rejected under 35 U.S.C. 103 as being unpatentable over Burgin. With respect to claim 12, Burgin teaches all that is claimed, as in the above rejection, except for explicitly teaching the supply core has a height and the take up core has a height and wherein the height of the supply core is substantially the same as the height of the take up core. However, it is common to provide a take up core and supply core having the same height, as they are used with a ribbon having a particular width and therefore it would have been obvious to one having ordinary skill in the art to provide the cores having a same height to improve efficiency of usage in a system having a tape of a particular width.",
"With respect to claim 16, Burgin teaches all that is claimed, as in the above rejection, except for explicitly teaching a package comprising a plurality of tape support arrangements according to claim 1, wherein the said plurality of tape support arrangements are stacked in an end-to-end fashion with the take up core of each of said plurality of tape support arrangements being located in the internal volume of the respective supply core, and wherein the plurality of tape support arrangements are contained within a packing tube. However, this packing arrangement is mechanically simple and therefore it would have been obvious to one having ordinary skill in the art to provide a package as claimed in order to pack a plurality of the tape support arrangements in as small a space as possible for easy transport. With respect to claim 28, Burgin teaches all that is claimed, as in the above rejection, including the tape supply core having a length of tape wound onto it, but does not explicitly teach wherein the length of the tape wound on the tape supply core is greater than about 250m, and wherein the outer diameter of the tape supply core is greater than about 20% of an outer diameter of the tape supply spool, defined by the tape, when the tape is wound onto the tape supply core.",
"However, these dimensions are a function of the dimensions of the system, in particular a desired length and thickness of the tape, and therefore could best be determined through routine experimentation. With respect to claim 34, Burgin teaches all that is claimed, as in the above rejection, except for explicitly teaching the arrangement is for use within a thermal transfer printer. However, it is common to use a printing ribbon in a thermal transfer printer and therefore it would have been obvious to on having ordinary skill in the art at the time the invention was filed to use the ribbon arrangement to provide efficient packaging for a ribbon to be used in such a system. Claims 17-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Burgin in view of Furuya et al. (US 6,042,039, hereafter Furuya) With respect to claims 17, Burgin teaches all that is claimed, as in the above rejection, including the tape core comprising a length of tape wound around an outer face of a generally annular central core of the tape supply core, an inner face, radially inboard of the outer face, wherein the inner face comprises first and second portions spaced along a central axis of the core.",
"Burgin does not teach wherein a diameter of the first portion of the inner face is greater than a diameter of the second portion of the inner face. Furuya teaches a tape core (spool 21) comprising a length of tape (ink ribbon R) wound around an outer face of a generally annular central core (spool 21) of the tape supply core, an inner face (hollow portion 24) radially inboard of the outer face, wherein the inner face comprises first and second portions spaced along a central axis of the core, wherein a diameter of the first portion of the inner face is greater than a diameter of the second portion of the inner face. (col. 6, lines 32-45, Fig.",
"5) It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify the structure of Burgin to include a tape core with an inner face having portions having different diameters, as taught by Furuya, in order to accommodate an inserted body having features which interact with the portions of different diameter. With respect to claim 18, Burgin, as modified by Furuya, teaches the tape supply core is configured such that an alignment feature of a spool support may be received by the first portion of the inner face, and said alignment feature cannot be received by the second portion of the inner face, when the spool is supported by the spool support, thereby allowing the spool support to fully support the spool in a first relative orientation between the spool and the spool support in which the alignment feature is received by the first portion of the Inner face, and preventing the spool support from fully supporting the spool in a second relative orientation between the spool and the spool support in which the alignment feature is not received by the first portion of the Inner face. (Furuya, col. 6, lines 32-45, Fig. 5) Allowable Subject Matter Claims 14-15 allowed.",
"The following is an examiner’s statement of reasons for allowance: With respect to claim 14, the prior art fails to teach or render obvious a method of producing a tape support arrangement as claimed, particularly comprising: the step of b) placing the take up core within the internal volume of the tape supply core. 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.” Response to Arguments Applicant’s arguments with respect to the rejection under Masatada have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Burgin. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jill E Culler whose telephone number is (571)272-2159.",
"The examiner can normally be reached M-F 8:30-5:00. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Matthew Luu can be reached on 571-272-7663. 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. /JILL E CULLER/Primary Examiner, Art Unit 2853"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-05-29.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
NO. 07-03-0549-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
FEBRUARY 24, 2004 ______________________________
FIDEL EDWARD CERVANTES,
Appellant
v.
THE STATE OF TEXAS,
Appellee _________________________________
FROM THE 84TH DISTRICT COURT OF HUTCHINSON COUNTY;
NO. 9130A; HON. WILLIAM D. SMITH, PRESIDING _______________________________
Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
Appellant Fidel Edward Cervantes, by and through his attorney, has filed a motion
to dismiss this appeal because he no longer desires to prosecute it. Without passing on
the merits of the case, we grant the motion to dismiss pursuant to Texas Rule of Appellate
Procedure 42.1(a)(2) and dismiss the appeal. Having dismissed the appeal at appellant’s
request, no motion for rehearing will be entertained, and our mandate will issue forthwith.
Brian Quinn Justice Do not publish. | 09-07-2015 | [
"NO. 07-03-0549-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C FEBRUARY 24, 2004 ______________________________ FIDEL EDWARD CERVANTES, Appellant v. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 84TH DISTRICT COURT OF HUTCHINSON COUNTY; NO. 9130A; HON. WILLIAM D. SMITH, PRESIDING _______________________________ Before JOHNSON, C.J., and QUINN and REAVIS, JJ. Appellant Fidel Edward Cervantes, by and through his attorney, has filed a motion to dismiss this appeal because he no longer desires to prosecute it. Without passing on the merits of the case, we grant the motion to dismiss pursuant to Texas Rule of Appellate Procedure 42.1(a)(2) and dismiss the appeal. Having dismissed the appeal at appellant’s request, no motion for rehearing will be entertained, and our mandate will issue forthwith. Brian Quinn Justice Do not publish."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2891014/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10
11 BENJAMIN T. CARIDAD, No. 2:14-cv-1847 KJM AC P 12 Petitioner, 13 v. [PROPOSED] ORDER re. DISCOVERY 14 NORM KRAMER, Acting Executive Director, 15 Napa State Hospital, 16 Respondent. 17
18 Pursuant to the discovery motions heard September 12, 2018, this court’s order dated
19 September 20, 2018 (ECF No. 123), and petitioner’s status report and ex parte request for
20 extended time and clarification filed October 10, 2018 (ECF No. 125), IT IS HEREBY
21 ORDERED that:
22 1. Petitioner’s counsel may retain the two banker’s boxes containing Mr. Rosenfeld’s
23 paper files on Mr. Caridad for an additional week at the Office of the Federal Defender, until
24 October 17, 2018.
25 2. Mr. Rosenfeld shall, on or before October 17, 2018, deliver copies of all his electronic
26 files regarding Mr. Caridad created after January 1, 2013, including but not limited to “108
27 records on his root file index” and “all files after January 7, 2013, concerning Rosenfeld’s
28 declarations for authorization of services of investigators or expert witnesses to be funded by the 1 1 Conflict Criminal Defenders Panel.” 2 3. Mr. Rosenfeld shall, on or before October 17, 2018, execute a declaration as to the 3 completeness of his file disclosures. 4 IT IS SO ORDERED. 5 DATED: October 12, 2018 6
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"1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BENJAMIN T. CARIDAD, No. 2:14-cv-1847 KJM AC P 12 Petitioner, 13 v. [PROPOSED] ORDER re. DISCOVERY 14 NORM KRAMER, Acting Executive Director, 15 Napa State Hospital, 16 Respondent. 17 18 Pursuant to the discovery motions heard September 12, 2018, this court’s order dated 19 September 20, 2018 (ECF No. 123), and petitioner’s status report and ex parte request for 20 extended time and clarification filed October 10, 2018 (ECF No. 125), IT IS HEREBY 21 ORDERED that: 22 1. Petitioner’s counsel may retain the two banker’s boxes containing Mr. Rosenfeld’s 23 paper files on Mr. Caridad for an additional week at the Office of the Federal Defender, until 24 October 17, 2018. 25 2. Mr. Rosenfeld shall, on or before October 17, 2018, deliver copies of all his electronic 26 files regarding Mr. Caridad created after January 1, 2013, including but not limited to “108 27 records on his root file index” and “all files after January 7, 2013, concerning Rosenfeld’s 28 declarations for authorization of services of investigators or expert witnesses to be funded by the 1 1 Conflict Criminal Defenders Panel.” 2 3. Mr. Rosenfeld shall, on or before October 17, 2018, execute a declaration as to the 3 completeness of his file disclosures.",
"4 IT IS SO ORDERED. 5 DATED: October 12, 2018 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/42631272/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Plaintiff takes this appeal from an order made by the trial court vacating a default entry and judgment entered thereon against defendant Mohrenstecher, executrix. An appeal is also taken from an order made dismissing the action. The facts are these: Respondent's testator, one Finney, and three other persons were the makers of a promissory note of which the plaintiff was the holder. Judgment was entered on that note against all of the defendants and in favor of the plaintiff on the fifteenth day of July, 1914. *Page 242 Thereafter, on the eleventh day of August, 1919, Finney, one of the makers, paid to the plaintiff five hundred dollars and plaintiff executed a writing which was entitled "Satisfaction and Release of Judgment against Defendant E. S. Finney," and in the body of which it was stated that five hundred dollars having been paid by Finney, Leachman acknowledged "full satisfaction of the judgment rendered in the above-entitled action, . . . and the clerk of said court is hereby authorized and directed to enter in the proper records full satisfaction of said judgment." At that time a sum considerably in excess of the five hundred dollars mentioned was due to the plaintiff under the judgment. [1] Thereafter the plaintiff brought action to renew the judgment as to the respondent and the other makers of the note except Finney, and default was duly entered against respondent for not appearing and answering the complaint. Thereafter respondent moved the court to set aside the judgment on the ground that the judgment in suit had been fully satisfied, and referred to the records and files in the former action, which included the written satisfaction of judgment hereinbefore referred to. No ground of excusable neglect, such as is permitted to be made under section 473 of the Code of Civil Procedure, was urged, respondent taking the bald position that she was entitled to the relief sought upon referring to the court for inspection the written satisfaction of judgment as filed in the first action. As we have noted, the court not only granted this motion, but entered an order upon the application of respondent, dismissing the suit. Plaintiff in his complaint in the action to renew the judgment set out fully the facts as to the amount due and as to the amount paid by Finney, referring to the latter as a payment on account only.[2] We think that the complaint tendered an issue as to the nonpayment in full of the judgment, and that the written satisfaction as filed was not conclusive as to that issue. Furthermore, assuming that the written satisfaction would have such effect, it was necessary to plead the same in the second action and secure findings and judgment thereon. (Deland v.Hiett, 27 Cal. 611, [87 Am. Dec. 102].) Assuming the correctness of this position, it would necessarily follow that after default had been entered against respondent she could only be relieved therefrom by satisfying a condition *Page 243 required under section 473 of the Code of Civil Procedure. This her counsel admits she did not do. The order vacating the default and judgment should not have been granted. The order and judgment of dismissal are reversed. Conrey, P. J., and Shaw, J., concurred. | 07-05-2016 | [
"Plaintiff takes this appeal from an order made by the trial court vacating a default entry and judgment entered thereon against defendant Mohrenstecher, executrix. An appeal is also taken from an order made dismissing the action. The facts are these: Respondent's testator, one Finney, and three other persons were the makers of a promissory note of which the plaintiff was the holder. Judgment was entered on that note against all of the defendants and in favor of the plaintiff on the fifteenth day of July, 1914. *Page 242 Thereafter, on the eleventh day of August, 1919, Finney, one of the makers, paid to the plaintiff five hundred dollars and plaintiff executed a writing which was entitled \"Satisfaction and Release of Judgment against Defendant E. S. Finney,\" and in the body of which it was stated that five hundred dollars having been paid by Finney, Leachman acknowledged \"full satisfaction of the judgment rendered in the above-entitled action, . . . and the clerk of said court is hereby authorized and directed to enter in the proper records full satisfaction of said judgment.\"",
"At that time a sum considerably in excess of the five hundred dollars mentioned was due to the plaintiff under the judgment. [1] Thereafter the plaintiff brought action to renew the judgment as to the respondent and the other makers of the note except Finney, and default was duly entered against respondent for not appearing and answering the complaint. Thereafter respondent moved the court to set aside the judgment on the ground that the judgment in suit had been fully satisfied, and referred to the records and files in the former action, which included the written satisfaction of judgment hereinbefore referred to. No ground of excusable neglect, such as is permitted to be made under section 473 of the Code of Civil Procedure, was urged, respondent taking the bald position that she was entitled to the relief sought upon referring to the court for inspection the written satisfaction of judgment as filed in the first action. As we have noted, the court not only granted this motion, but entered an order upon the application of respondent, dismissing the suit. Plaintiff in his complaint in the action to renew the judgment set out fully the facts as to the amount due and as to the amount paid by Finney, referring to the latter as a payment on account only. [2] We think that the complaint tendered an issue as to the nonpayment in full of the judgment, and that the written satisfaction as filed was not conclusive as to that issue.",
"Furthermore, assuming that the written satisfaction would have such effect, it was necessary to plead the same in the second action and secure findings and judgment thereon. (Deland v.Hiett, 27 Cal. 611, [87 Am. Dec. 102].) Assuming the correctness of this position, it would necessarily follow that after default had been entered against respondent she could only be relieved therefrom by satisfying a condition *Page 243 required under section 473 of the Code of Civil Procedure. This her counsel admits she did not do. The order vacating the default and judgment should not have been granted.",
"The order and judgment of dismissal are reversed. Conrey, P. J., and Shaw, J., concurred."
]
| https://www.courtlistener.com/api/rest/v3/opinions/3289443/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case: 11-60857 Document: 00511953128 Page: 1 Date Filed: 08/10/2012
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit
FILED August 10, 2012 No. 11-60857 Summary Calendar Lyle W. Cayce Clerk
TEDDY GATAMBA,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the Board of Immigration Appeals BIA No. A074 651 592
Before KING, DAVIS, and CLEMENT, Circuit Judges. PER CURIAM:* Teddy Gatamba, a native of Burundi and citizen of Rwanda, petitions this court to review the denial of his motion to reopen immigration proceedings. He argues that the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) abused their discretion when ruling that he had not established changed country conditions sufficient to warrant consideration of his untimely motion to reopen under 8 C.F.R. § 1003.2(c). Gatamba further contends that the IJ and
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 11-60857 Document: 00511953128 Page: 2 Date Filed: 08/10/2012
No. 11-60857
the BIA failed to consider the documentary evidence he submitted in connection with his motion to reopen. Motions to reopen are disfavored, Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000), and we review the denial of a motion to reopen under a “highly deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). The ruling will stand, even if we conclude it is erroneous, “so long as it is not capricious, racially invidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” Id. at 304 (internal quotation marks and citation omitted). Gatamba was required to show changed country conditions in Rwanda to overcome the time and numeric limitations on his motion to reopen. See 8 C.F.R. § 1003.2(c)(2). Contrary to his assertion, Gatamba has not shown that the IJ or the BIA failed to consider the evidence provided in support of his motion to reopen. Although the BIA incorrectly stated that the evidence had not been presented to the IJ, it considered the evidence and found that it reflected no change in country conditions. Additionally, Gatamba’s assertion that he fears for his safety if returned to Rwanda is based on an alleged change in his personal circumstances, not changed conditions in Rwanda. Changes in personal circumstances do not constitute changed country conditions. Zhao, 440 F.3d at 407. With regard to the argument that he showed a general change in country conditions, Gatamba makes only the conclusory assertion that the evidence he submitted was sufficient. He does not argue in any detailed manner how country conditions have changed. Nor does the evidence he presented support such an assertion. Therefore, the denial of Gatamba’s motion to reopen was not an abuse of discretion. See Zhao, 404 F.3d at 303. We decline to address Gatamba’s argument that he is eligible for the underlying substantive relief of asylum, the
2 Case: 11-60857 Document: 00511953128 Page: 3 Date Filed: 08/10/2012
No. 11-60857
withholding of removal, and deferral of removal. Accordingly, the petition for review is DENIED.
3 | 08-10-2012 | [
"Case: 11-60857 Document: 00511953128 Page: 1 Date Filed: 08/10/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED August 10, 2012 No. 11-60857 Summary Calendar Lyle W. Cayce Clerk TEDDY GATAMBA, Petitioner v. ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A074 651 592 Before KING, DAVIS, and CLEMENT, Circuit Judges. PER CURIAM:* Teddy Gatamba, a native of Burundi and citizen of Rwanda, petitions this court to review the denial of his motion to reopen immigration proceedings. He argues that the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) abused their discretion when ruling that he had not established changed country conditions sufficient to warrant consideration of his untimely motion to reopen under 8 C.F.R.",
"§ 1003.2(c). Gatamba further contends that the IJ and * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 11-60857 Document: 00511953128 Page: 2 Date Filed: 08/10/2012 No. 11-60857 the BIA failed to consider the documentary evidence he submitted in connection with his motion to reopen. Motions to reopen are disfavored, Lara v. Trominski, 216 F.3d 487, 496 (5th Cir.",
"2000), and we review the denial of a motion to reopen under a “highly deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). The ruling will stand, even if we conclude it is erroneous, “so long as it is not capricious, racially invidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” Id. at 304 (internal quotation marks and citation omitted). Gatamba was required to show changed country conditions in Rwanda to overcome the time and numeric limitations on his motion to reopen. See 8 C.F.R. § 1003.2(c)(2). Contrary to his assertion, Gatamba has not shown that the IJ or the BIA failed to consider the evidence provided in support of his motion to reopen. Although the BIA incorrectly stated that the evidence had not been presented to the IJ, it considered the evidence and found that it reflected no change in country conditions. Additionally, Gatamba’s assertion that he fears for his safety if returned to Rwanda is based on an alleged change in his personal circumstances, not changed conditions in Rwanda. Changes in personal circumstances do not constitute changed country conditions.",
"Zhao, 440 F.3d at 407. With regard to the argument that he showed a general change in country conditions, Gatamba makes only the conclusory assertion that the evidence he submitted was sufficient. He does not argue in any detailed manner how country conditions have changed. Nor does the evidence he presented support such an assertion. Therefore, the denial of Gatamba’s motion to reopen was not an abuse of discretion. See Zhao, 404 F.3d at 303.",
"We decline to address Gatamba’s argument that he is eligible for the underlying substantive relief of asylum, the 2 Case: 11-60857 Document: 00511953128 Page: 3 Date Filed: 08/10/2012 No. 11-60857 withholding of removal, and deferral of removal. Accordingly, the petition for review is DENIED. 3"
]
| https://www.courtlistener.com/api/rest/v3/opinions/806450/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Separate petitions in error have been filed in this court by Pierce St. John and Anna St. John, but Pierce St. John alone has briefed the case. Of the numerous assignments of error presented and argued in his behalf the sixth and ninth are determinative of this proceeding. The sixth assignment reads: "6th. That said court erred in overruling the demurrer of this plaintiff in error to the evidence of the defendant in error." The order of the court overruling defendant's demurrer to the evidence of plaintiff reads: "The Court: Due to the fact that the answer of Pierce St. John is unverified, the demurrer to the evidence is overruled and denied." This ruling was based upon the language of Comp. Stat. 1921, sec. 287, which reads: "In all actions, allegations of the execution of written instruments and indorsements thereon, of the existence of a corporation or partnership, or of any appointment of authority, or the correctness of any account duly verified by the affidavit of the party, his agent or attorney, shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney." The material allegation of plaintiff's amended petition, which the trial court thus held must be denied in the answer under oath, is as follows: "Plaintiff further states that on said date, and for a long period of time prior thereto, the defendants herein, Pierce St. John and Dora Rector, owned an automobile, and that at the time of the occurrence hereinbefore mentioned, the said automobile was being operated by the defendant Anna St. John and that in driving said automobile she was acting as an agent, servant, and employee of her codefendants and engaged in the prosecution of business and on behalf of her said codefendants, and was acting within the general scope of her employment and authority in operating said car; the defendant Anna *Page 217 St. John was, at the time said automobile collided, hauling Ella May Vann, a cook employed by her codefendants, for and acting on behalf of her codefendants and on other business for her codefendants which is unknown to the plaintiff, but known to the defendants." Anna St. John is a daughter of Pierce St. John, and it is clearly evident from a mere reading of the language of this averment that it was not intended to charge an "appointment of authority" to drive the car on the special occasion here involved and for a particular purpose, but was intended to and did charge a general relation of principal and agent or master and servant subsisting between father and daughter by reason of her permissive use of the car. Upon the calling of the case for trial the defendant Pierce St. John admitted of record that he was the owner of the car driven by Anna St. John at the time of the collision, and asked leave of the court to then verify his answer denying the above allegation of agency and of the relation of master and servant at the time of the collision. The motion for leave to verify was denied, and, as above shown, the order overruling the demurrer to plaintiff's evidence was expressly based upon this lack of verification of the answer. It is stated in the brief of the defendant, and not disputed in plaintiff's answer brief, that the case of Boling v. Asbridge, 84 Okla. 280, 203 P. 894, was relied upon in the trial court to sustain this action on the motion and on the demurrer. If this be the fact, the Asbridge Case was not carefully considered by the trial court. That was not a case where a father and child were involved and where the agency of the child was sought to be established by permissive use of the car, but the parties there assumed the relation of employer and employee through contract. It is true that the trial court denied the motion for leave to verify the answer, but the case was tried as if the verification had been made, plaintiff assuming the burden of proof on the issue of agency. At the close of all the evidence the trial court rescinded its previous order and permitted defendant to verify the answer. In this situation this court, speaking through Justice Kane, said: "While this action upon defendant's motion was somewhat dilatory, we are unable to perceive how she suffered any harm from the delay in ruling. The purpose of the defendant asking leave to amend by verifying her answer was to cast the burden upon the plaintiff of showing that Holder had authority to drive the car. While the court was rather deliberate in ruling upon these questions, he finally did so in favor of the defendant. As in the meantime the cause proceeded in all respects as though the answer had been verified from the start, it is from this standpoint we will view the record in examining the remaining assignments of error." This court expressed no opinion as to the trial court's first action on the motion, but there is a strong inference of disapproval. The Asbridge Case is, therefore, not authority for the action of the trial court on the motion for leave to verify the answer, nor for its order overruling the demurrer to plaintiff's evidence, upon the theory stated. Defendant Pierce St. John's unverified general denial admitted only such reciprocal relations between himself and Anna St. John as were alleged in plaintiff's petition. Clearly these amounted to no more than general authority to Anna St. John to drive the car, she being a member of the family, and this alleged agency was based on permissive use only. There is no allegation that in taking the cook in the car on this occasion the daughter was acting under authority from the father for that specific purpose, or that the cook in so going was upon any errand for her master. The next allegation of the petition, on its face, negatives any idea that it was intended to charge express authority from the father to the daughter to drive the car on this occasion. That allegation is: "Plaintiff further states that at the time of the occurrence the said Anna St. John was in an intoxicated condition. * * *" Defendant's unverified general denial having admitted only the general authority, based on permissive use, to drive the car, the specific allegations in his answer denying the particular agency and setting up affirmative defenses did not have to be verified. These affirmative defenses are: (a) That Anna St. John was expressly forbidden to take this car on this occasion, but that she procured the key in disregard of instructions; (b) that Ella May Vann, the cook, was not in said car in the performance of any errand for Pierce St. John, nor in the discharge of any duty owing to her master, but was there without his knowledge or consent and in disregard of her duties as his servant. No reply was filed to this answer. The trial court therefore erred as a matter of law in holding that an unverified general denial of the allegations of general authority to the daughter, through permissive use, to drive the car was an admission of appointment of authority to drive the car on the particular occasion and for the particular *Page 218 purpose alleged in plaintiff's petition. In the case of Stafford v. Noble (Kan.) 182 P. 650, the allegations of the pleadings were very similar to those in the instant case. The court there said: "Such general authority was not denied and is not disputed, but it was denied and is disputed that she was thus using the car at the time of the injury, and that she was using it for the purpose of returning to the office and taking her father home. The alleged power or authority was not denied, but the allegation that she was at the time acting under this power and authority was not a matter which had to be denied under oath or taken as true." To the same effect are: McCabe v. Wilson, 17 Okla. 355,87 P. 320; Oklahoma Automobile Co. v. Benner, 70 Okla. 261,174 P. 567; Swofford Bros. Dry Goods Co. v. Berkowitz (Kan.) 51 P. 796; Leavenworth Light Heating Co. v. Waller (Kan.) 70 P. 365; 16 Enc. Pl. Prac. 910. But there is another reason why this action of the trial court was erroneous as a matter of law. In his opening statement to the jury, outlining the facts which he expected the proof to establish, counsel for plaintiff read the amended petition containing the allegations heretofore quoted as to the general and permissive use of the car by Anna St. John, and to establish the facts therein alleged introduced testimony as follows: Lawrence Ware testified: "Q. Do you know what relationship there is between Anna St. John and Pierce St. John? A. Sir? Q. Do you know the relationship between Anna St. John and Pierce St. John? A. Yes, sir. Q. What is it? A. She is his daughter. Q. Do you know Dora Rector? A. Yes, sir. Q. What relationship is there? I don't mean blood relationship, but what does Dora Rector do for Pierce St. John, if anything? (No response) Q. Do you know Ella May Vann? A. Yes, sir. Q. Did you see another girl in the car besides Anna St. John? A. Yes, sir. Q. Who was it? A. I guess it is Ella Vann; I learned it afterwards. Q. You know she works for Pierce St. John, don't you? A. No. sir." Byron Black testified: "Q. Who was occupying the touring car? A. The St. John girl. Q. Who else? A. And that girl — St. John's cook, I couldn't — I don't know what her name. Q. Ella May Vann? A. Yes, sir. Q. She cooks for Pierce St. John, you say?" At another place during direct examination this witness testified: "Q. You say you had known Anna St. John prior to this time? A. Yes, sir. Q. Had you seen her driving this car before? A. No, sir; not the Ford. Q. Had you seen her driving any of Mr. St. John's cars before? A. Yes, sir. Q. Frequently? A. Yes, sir. Q. How many times a day or week would you say that you had seen her driving the others of Mr. John's cars? A. Well, probably every day. Q. Every day? For how long a period, how many months or years? A. Well, about two months or years. Q. Did you ever see her driving when Pierce was in the car? A. Yes, sir. Q. You had seen her driving prior to this and with other members of the family? A. With — yes, sir." Claude Moore testified: "Q. Had you seen this girl, Anna St. John, along at that time, along before in September last year? A. I seen her off and on for a year or two. Q. You have seen her for a year or two? A. Yes, sir. Q. Did you see her there at the pop stand occasionally before September 22, 1924? A. Yes, sir. Q. How would she come there? A. In a car. Q. Driving a car? A. Yes, sir. Q. Pierce St. John's car? A. I don't know. Q. Well, it belonged to some of the St. John people? A. I supposed so. Q. Did you see her and the other members of the family or some members of the family come in the car occasionally? A. Yes, sir. Q. Driving forwards and backwards to town? A. Yes, sir. Q. Sometimes Pierce St. John and sometimes other members of the family, Mr. Moore, is that right? A. In the car? Q. Yes, sir. A. Yes, sir. Q. And Anna would be driving? A. Well, I could not say to who would be driving." After testifying to the position of the two cars after the collision, he was asked and gave testimony as to the occupants of defendant's car as follows: "Q. And who was in it? A. Well, there was the St. John girl and some other girl. Q. Have you since learned that that was Ella May Vann, Pierce's cook? A. I heard it was, yes, sir." There could have been no object or purpose in the introduction of this character of testimony other than to establish the fact of general authority in Anna St. John to drive the car, such authority being shown by permissive use. It was intended thus to establish the relation of principal and agent or of master and servant between Pierce St. John and his daughter, Anna, as outlined to the jury in the opening statement. This was clearly a waiver of defendant's failure to verify his general denial. Johnson v. Douglas, 8 Okla. 594,58 P. 743; Kaufman v. Boismier, 25 Okla. 252, 105 P. 326; Jones v. Citizens State Bank, 39 Okla. 393, 135 P. 373; Standley et al. v. Cruse et al., 57 Okla. 127, 157 P. 135; Burford v. Hughes, *Page 219 75 Okla. 150, 182 P. 669; Hutchinson Gin Co. v. Latimer County Nat. Bank, 106 Okla. 159, 233 P. 438. By his ninth assignment, defendant Pierce St. John predicated error upon the refusal of the trial court at the close of all the evidence to give to the jury defendant's requested instruction for a directed verdict as to him. All of the testimony for plaintiff showing, or tending to show, authority of Anna St. John to drive the car on this particular occasion has been copied above. Under the rule of liability in this character of actions recognized and adopted by this court proof of general permissive use of a family car by a child of the owner raises only an inference or presumption that its use by the child on any particular occasion was authorized. This inference or presumption stands only so long as there is an absence of proof on that question. When facts are established by proof which repel and contradict the inference or presumption previously indulged, such inference or presumption ceases to exist as a probative element in the case. Stumpff v. Montgomery, 101 Okla. 257, 226 P. 65; Kramer v. Nichols-Chandler Home Building Brokerage Co. et al.,103 Okla. 208, 229 P. 767; McCullough v. Harshman, 99 Okla. 262,226 P. 555. The admission of record by Pierce St. John that he owned the car, and plaintiff's evidence of permissive use thereof by Anna St. John, were sufficient to support the inference or presumption that at the time of the collision she was driving same as agent or servant of her father and with his express or implied consent. Had the trial court's order overruling defendant's demurrer to plaintiff's evidence been based upon the admission of ownership, the evidence of permissive use, and this inference or presumption arising therefrom, the ruling would have been correct, because, as said in the Stumpff Case, supra, these evidentiary facts and this presumption produced "certain procedural consequences as to the production of other evidence by the opponent." In behalf of defendant his testimony established that a Ford car which he purchased for his daughter, Dora Rector, was stolen and that when he purchased the Ford here involved he instructed his daughter, Anna, not to drive it. He had one or more larger cars and a chauffeur whom he employed to drive for him. In the forenoon of the day of the accident Pierce St. John had been on a trip to his farm and stopped at his home just outside of Pawhuska about noon to eat dinner, intending to go on into Pawhuska after dinner. Anna had never driven this particular Ford with his knowledge and consent, but he had expressly forbidden her so to do. While he and his son were at the table eating their dinner his daughter, Anna, and his cook, Ella May Vann, left the house by the back door, and when he next saw them they were in the Ford car driving down the road and about 50 yards from the house. Neither of them asked his permission to use the car, and neither was upon any errand in his behalf. His other car had been loaned to a neighbor and was not on his premises at this time. The testimony of Anna and of Ella May Vann showed they took the car surreptitiously while the owner was eating, and for the purpose of "just riding around." This evidence completely destroyed the inference or presumption which arose from the admission of ownership and from plaintiff's proof. No rebuttal evidence was offered by plaintiff. Such was the situation at the time defendant Pierce St. John made his request for a directed verdict. The presumption being destroyed, and being wholly removed from the case, there was absolutely nothing upon which the jury could justifiably base a finding that at the time of the accident Anna St. John was acting as the agent or servant of her father either expressly or impliedly, but the uncontradicted evidence showed conclusively that she was not. It was the duty of the trial court to instruct the jury as requested, because any other verdict would necessarily rest upon an inference or presumption which no longer existed in the case, would be contrary to the clear weight of undisputed evidence, and therefore contrary to law. Spaulding Mfg. Co. v. Holliday,32 Okla. 823, 124 P. 35; Conwell v. Eldridge, 35 Okla. 537,130 P. 912; Cedar Rapids Nat. Bank v. Bashara, 39 Okla. 482,135 P. 1051; Kansas City Southern Ry. Co. v. Langley,62 Okla. 49, 160 P. 451. Since there was evidence reasonably tending to establish negligence on the part of Anna St. John in the operation of the car at the time of the accident, and since no errors of law affecting her rights have been called to the attention of this court, the judgment against her based upon the verdict cannot be disturbed. For the reasons herein stated, the judgment of the trial court in favor of the plaintiff and against the defendant Pierce St. John is vacated and set aside, and the cause is remanded, with directions to the trial court to render judgment in his favor. In all other respects the judgment of the trial court is affirmed. By the Court: It is so ordered. *Page 220 | 07-06-2016 | [
"Separate petitions in error have been filed in this court by Pierce St. John and Anna St. John, but Pierce St. John alone has briefed the case. Of the numerous assignments of error presented and argued in his behalf the sixth and ninth are determinative of this proceeding. The sixth assignment reads: \"6th. That said court erred in overruling the demurrer of this plaintiff in error to the evidence of the defendant in error.\" The order of the court overruling defendant's demurrer to the evidence of plaintiff reads: \"The Court: Due to the fact that the answer of Pierce St. John is unverified, the demurrer to the evidence is overruled and denied.\" This ruling was based upon the language of Comp. Stat. 1921, sec.",
"287, which reads: \"In all actions, allegations of the execution of written instruments and indorsements thereon, of the existence of a corporation or partnership, or of any appointment of authority, or the correctness of any account duly verified by the affidavit of the party, his agent or attorney, shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney.\" The material allegation of plaintiff's amended petition, which the trial court thus held must be denied in the answer under oath, is as follows: \"Plaintiff further states that on said date, and for a long period of time prior thereto, the defendants herein, Pierce St. John and Dora Rector, owned an automobile, and that at the time of the occurrence hereinbefore mentioned, the said automobile was being operated by the defendant Anna St. John and that in driving said automobile she was acting as an agent, servant, and employee of her codefendants and engaged in the prosecution of business and on behalf of her said codefendants, and was acting within the general scope of her employment and authority in operating said car; the defendant Anna *Page 217 St. John was, at the time said automobile collided, hauling Ella May Vann, a cook employed by her codefendants, for and acting on behalf of her codefendants and on other business for her codefendants which is unknown to the plaintiff, but known to the defendants.\"",
"Anna St. John is a daughter of Pierce St. John, and it is clearly evident from a mere reading of the language of this averment that it was not intended to charge an \"appointment of authority\" to drive the car on the special occasion here involved and for a particular purpose, but was intended to and did charge a general relation of principal and agent or master and servant subsisting between father and daughter by reason of her permissive use of the car. Upon the calling of the case for trial the defendant Pierce St. John admitted of record that he was the owner of the car driven by Anna St. John at the time of the collision, and asked leave of the court to then verify his answer denying the above allegation of agency and of the relation of master and servant at the time of the collision.",
"The motion for leave to verify was denied, and, as above shown, the order overruling the demurrer to plaintiff's evidence was expressly based upon this lack of verification of the answer. It is stated in the brief of the defendant, and not disputed in plaintiff's answer brief, that the case of Boling v. Asbridge, 84 Okla. 280, 203 P. 894, was relied upon in the trial court to sustain this action on the motion and on the demurrer. If this be the fact, the Asbridge Case was not carefully considered by the trial court. That was not a case where a father and child were involved and where the agency of the child was sought to be established by permissive use of the car, but the parties there assumed the relation of employer and employee through contract. It is true that the trial court denied the motion for leave to verify the answer, but the case was tried as if the verification had been made, plaintiff assuming the burden of proof on the issue of agency. At the close of all the evidence the trial court rescinded its previous order and permitted defendant to verify the answer.",
"In this situation this court, speaking through Justice Kane, said: \"While this action upon defendant's motion was somewhat dilatory, we are unable to perceive how she suffered any harm from the delay in ruling. The purpose of the defendant asking leave to amend by verifying her answer was to cast the burden upon the plaintiff of showing that Holder had authority to drive the car. While the court was rather deliberate in ruling upon these questions, he finally did so in favor of the defendant. As in the meantime the cause proceeded in all respects as though the answer had been verified from the start, it is from this standpoint we will view the record in examining the remaining assignments of error.\" This court expressed no opinion as to the trial court's first action on the motion, but there is a strong inference of disapproval.",
"The Asbridge Case is, therefore, not authority for the action of the trial court on the motion for leave to verify the answer, nor for its order overruling the demurrer to plaintiff's evidence, upon the theory stated. Defendant Pierce St. John's unverified general denial admitted only such reciprocal relations between himself and Anna St. John as were alleged in plaintiff's petition. Clearly these amounted to no more than general authority to Anna St. John to drive the car, she being a member of the family, and this alleged agency was based on permissive use only. There is no allegation that in taking the cook in the car on this occasion the daughter was acting under authority from the father for that specific purpose, or that the cook in so going was upon any errand for her master.",
"The next allegation of the petition, on its face, negatives any idea that it was intended to charge express authority from the father to the daughter to drive the car on this occasion. That allegation is: \"Plaintiff further states that at the time of the occurrence the said Anna St. John was in an intoxicated condition. * * *\" Defendant's unverified general denial having admitted only the general authority, based on permissive use, to drive the car, the specific allegations in his answer denying the particular agency and setting up affirmative defenses did not have to be verified. These affirmative defenses are: (a) That Anna St. John was expressly forbidden to take this car on this occasion, but that she procured the key in disregard of instructions; (b) that Ella May Vann, the cook, was not in said car in the performance of any errand for Pierce St. John, nor in the discharge of any duty owing to her master, but was there without his knowledge or consent and in disregard of her duties as his servant.",
"No reply was filed to this answer. The trial court therefore erred as a matter of law in holding that an unverified general denial of the allegations of general authority to the daughter, through permissive use, to drive the car was an admission of appointment of authority to drive the car on the particular occasion and for the particular *Page 218 purpose alleged in plaintiff's petition. In the case of Stafford v. Noble (Kan.) 182 P. 650, the allegations of the pleadings were very similar to those in the instant case.",
"The court there said: \"Such general authority was not denied and is not disputed, but it was denied and is disputed that she was thus using the car at the time of the injury, and that she was using it for the purpose of returning to the office and taking her father home. The alleged power or authority was not denied, but the allegation that she was at the time acting under this power and authority was not a matter which had to be denied under oath or taken as true.\" To the same effect are: McCabe v. Wilson, 17 Okla. 355,87 P. 320; Oklahoma Automobile Co. v. Benner, 70 Okla. 261,174 P. 567; Swofford Bros. Dry Goods Co. v. Berkowitz (Kan.) 51 P. 796; Leavenworth Light Heating Co. v. Waller (Kan.) 70 P. 365; 16 Enc.",
"Pl. Prac. 910. But there is another reason why this action of the trial court was erroneous as a matter of law. In his opening statement to the jury, outlining the facts which he expected the proof to establish, counsel for plaintiff read the amended petition containing the allegations heretofore quoted as to the general and permissive use of the car by Anna St. John, and to establish the facts therein alleged introduced testimony as follows: Lawrence Ware testified: \"Q. Do you know what relationship there is between Anna St. John and Pierce St. John? A. Sir? Q. Do you know the relationship between Anna St. John and Pierce St. John?",
"A. Yes, sir. Q. What is it? A. She is his daughter. Q. Do you know Dora Rector? A. Yes, sir. Q. What relationship is there? I don't mean blood relationship, but what does Dora Rector do for Pierce St. John, if anything? (No response) Q. Do you know Ella May Vann? A. Yes, sir. Q. Did you see another girl in the car besides Anna St. John? A. Yes, sir.",
"Q. Who was it? A. I guess it is Ella Vann; I learned it afterwards. Q. You know she works for Pierce St. John, don't you? A. No. sir.\" Byron Black testified: \"Q. Who was occupying the touring car? A. The St. John girl. Q. Who else? A. And that girl — St. John's cook, I couldn't — I don't know what her name.",
"Q. Ella May Vann? A. Yes, sir. Q. She cooks for Pierce St. John, you say?\" At another place during direct examination this witness testified: \"Q. You say you had known Anna St. John prior to this time? A. Yes, sir. Q. Had you seen her driving this car before? A. No, sir; not the Ford. Q. Had you seen her driving any of Mr. St. John's cars before? A. Yes, sir. Q. Frequently? A. Yes, sir. Q. How many times a day or week would you say that you had seen her driving the others of Mr. John's cars? A. Well, probably every day. Q.",
"Every day? For how long a period, how many months or years? A. Well, about two months or years. Q. Did you ever see her driving when Pierce was in the car? A. Yes, sir. Q. You had seen her driving prior to this and with other members of the family? A. With — yes, sir.\" Claude Moore testified: \"Q. Had you seen this girl, Anna St. John, along at that time, along before in September last year? A. I seen her off and on for a year or two. Q. You have seen her for a year or two? A. Yes, sir. Q. Did you see her there at the pop stand occasionally before September 22, 1924? A. Yes, sir.",
"Q. How would she come there? A. In a car. Q. Driving a car? A. Yes, sir. Q. Pierce St. John's car? A. I don't know. Q. Well, it belonged to some of the St. John people? A. I supposed so. Q. Did you see her and the other members of the family or some members of the family come in the car occasionally? A. Yes, sir. Q. Driving forwards and backwards to town? A. Yes, sir. Q. Sometimes Pierce St. John and sometimes other members of the family, Mr. Moore, is that right? A.",
"In the car? Q. Yes, sir. A. Yes, sir. Q. And Anna would be driving? A. Well, I could not say to who would be driving.\" After testifying to the position of the two cars after the collision, he was asked and gave testimony as to the occupants of defendant's car as follows: \"Q. And who was in it? A. Well, there was the St. John girl and some other girl.",
"Q. Have you since learned that that was Ella May Vann, Pierce's cook? A. I heard it was, yes, sir.\" There could have been no object or purpose in the introduction of this character of testimony other than to establish the fact of general authority in Anna St. John to drive the car, such authority being shown by permissive use. It was intended thus to establish the relation of principal and agent or of master and servant between Pierce St. John and his daughter, Anna, as outlined to the jury in the opening statement. This was clearly a waiver of defendant's failure to verify his general denial. Johnson v. Douglas, 8 Okla. 594,58 P. 743; Kaufman v. Boismier, 25 Okla. 252, 105 P. 326; Jones v. Citizens State Bank, 39 Okla. 393, 135 P. 373; Standley et al. v. Cruse et al., 57 Okla. 127, 157 P. 135; Burford v. Hughes, *Page 219 75 Okla. 150, 182 P. 669; Hutchinson Gin Co. v. Latimer County Nat. Bank, 106 Okla. 159, 233 P. 438. By his ninth assignment, defendant Pierce St. John predicated error upon the refusal of the trial court at the close of all the evidence to give to the jury defendant's requested instruction for a directed verdict as to him.",
"All of the testimony for plaintiff showing, or tending to show, authority of Anna St. John to drive the car on this particular occasion has been copied above. Under the rule of liability in this character of actions recognized and adopted by this court proof of general permissive use of a family car by a child of the owner raises only an inference or presumption that its use by the child on any particular occasion was authorized. This inference or presumption stands only so long as there is an absence of proof on that question. When facts are established by proof which repel and contradict the inference or presumption previously indulged, such inference or presumption ceases to exist as a probative element in the case.",
"Stumpff v. Montgomery, 101 Okla. 257, 226 P. 65; Kramer v. Nichols-Chandler Home Building Brokerage Co. et al.,103 Okla. 208, 229 P. 767; McCullough v. Harshman, 99 Okla. 262,226 P. 555. The admission of record by Pierce St. John that he owned the car, and plaintiff's evidence of permissive use thereof by Anna St. John, were sufficient to support the inference or presumption that at the time of the collision she was driving same as agent or servant of her father and with his express or implied consent. Had the trial court's order overruling defendant's demurrer to plaintiff's evidence been based upon the admission of ownership, the evidence of permissive use, and this inference or presumption arising therefrom, the ruling would have been correct, because, as said in the Stumpff Case, supra, these evidentiary facts and this presumption produced \"certain procedural consequences as to the production of other evidence by the opponent.\" In behalf of defendant his testimony established that a Ford car which he purchased for his daughter, Dora Rector, was stolen and that when he purchased the Ford here involved he instructed his daughter, Anna, not to drive it. He had one or more larger cars and a chauffeur whom he employed to drive for him. In the forenoon of the day of the accident Pierce St. John had been on a trip to his farm and stopped at his home just outside of Pawhuska about noon to eat dinner, intending to go on into Pawhuska after dinner.",
"Anna had never driven this particular Ford with his knowledge and consent, but he had expressly forbidden her so to do. While he and his son were at the table eating their dinner his daughter, Anna, and his cook, Ella May Vann, left the house by the back door, and when he next saw them they were in the Ford car driving down the road and about 50 yards from the house. Neither of them asked his permission to use the car, and neither was upon any errand in his behalf. His other car had been loaned to a neighbor and was not on his premises at this time. The testimony of Anna and of Ella May Vann showed they took the car surreptitiously while the owner was eating, and for the purpose of \"just riding around.\" This evidence completely destroyed the inference or presumption which arose from the admission of ownership and from plaintiff's proof. No rebuttal evidence was offered by plaintiff. Such was the situation at the time defendant Pierce St. John made his request for a directed verdict.",
"The presumption being destroyed, and being wholly removed from the case, there was absolutely nothing upon which the jury could justifiably base a finding that at the time of the accident Anna St. John was acting as the agent or servant of her father either expressly or impliedly, but the uncontradicted evidence showed conclusively that she was not. It was the duty of the trial court to instruct the jury as requested, because any other verdict would necessarily rest upon an inference or presumption which no longer existed in the case, would be contrary to the clear weight of undisputed evidence, and therefore contrary to law. Spaulding Mfg. Co. v. Holliday,32 Okla. 823, 124 P. 35; Conwell v. Eldridge, 35 Okla. 537,130 P. 912; Cedar Rapids Nat. Bank v. Bashara, 39 Okla. 482,135 P. 1051; Kansas City Southern Ry.",
"Co. v. Langley,62 Okla. 49, 160 P. 451. Since there was evidence reasonably tending to establish negligence on the part of Anna St. John in the operation of the car at the time of the accident, and since no errors of law affecting her rights have been called to the attention of this court, the judgment against her based upon the verdict cannot be disturbed. For the reasons herein stated, the judgment of the trial court in favor of the plaintiff and against the defendant Pierce St. John is vacated and set aside, and the cause is remanded, with directions to the trial court to render judgment in his favor. In all other respects the judgment of the trial court is affirmed.",
"By the Court: It is so ordered. *Page 220"
]
| https://www.courtlistener.com/api/rest/v3/opinions/3808011/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Continued Examination Under 37 CFR 1.114 A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 1/5/2021 has been entered. Claims 21-22, 24-44, and 46-55 remain pending and under prosecution.
Claim Rejections - 35 USC § 112 The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 21-22, 24-44, and 46-55 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. In regard to Claims 21 and 34, given the indefiniteness below (112 second rejection below), the interpretation of the recitation that energy is directed to a first and second region In regard to Claims 21 and 34, the recitation that the energy response from a third region of the skin containing information about optical scatter from skin tissue of the organism and is “generated by the at least one optical detector” does not appear to be properly supported by the disclosure. Applicant cites paragraph 0053 of the publication as providing such support (remarks pg. 1); however, this does not appear true. Paragraph 0053 states: “Optical scatter signals from these sources are more closely related to optical scatter from the skin or other tissue. Thus, when these skin-related optical scatter signals are differentially amplified with respect to their blood-vessel-related counterparts, at least two extracted signals can be generated that are more closely related to the size of a blood vessel and the blood flow rate through a blood vessel.” The paragraph explains that skin-related optical scatter signals are present and differentially amplified, but do not state the skin-related optical scatter signals are “generated.” The “two extracted signals can be generated” refer to that of the signal relating to blood vessel and blood flow rate, which are distinct from the skin-related optical scatter signals. Thus, while support clearly exists for the detection and subtraction of the skin-related optical scatter signals, there is no support that said signals are “generated” particularly by the optical detector. It is noted that the specification does not appear to disclose how the skin-related optical scatter signals are extracted nor does it provide support for a specific output of said skin-related optical scatter signal. For example, paragraphs 0055-0056 of the publication discusses how the skin-rated optical scatter signal is subtracted from a response to generate a cleaner signal but Claims 22, 24-33, 35-44, and 46-55 are rejected by dependency on Claims 21 and 34.
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 21-22, 24-44, and 46-55 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. In regard to Claims 21 and 34, it is unclear if the recitation that the optical emitters direct energy to a first and second “skin” region of an organism is meant to be interpreted as the energy only penetrating into the skin, or the energy being direct at the skin and then penetrating into deeper tissue and blood vessels after passing through the skin. While it is assumed as the invention dictates, that the energy from the optical emitters is meant to penetrate past the skin and into the tissue and blood vessels, the claim should be clarified so that an interpretation of energy penetrating only into the skin is not present. In regard to Claims 21 and 34, the recitation of the optical scatter signal being “generated” by the at least one optical detector is indefinite because it is unclear exactly what Claims 22, 24-33, 35-44, and 46-55 are rejected by dependency on Claims 21 and 34.
Claim Rejections - 35 USC § 103 The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action: (a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under pre-AIA 35 U.S.C. 103(a) are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. This application currently names joint inventors. In considering patentability of the claims under pre-AIA 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56
Claims 21-22, 24, 26-44, 46, and 48-55 are is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Kondo et al (US Pub No. 20030109791) in view of Schulze et al (US Pub No. 6893396), Baker (US Pub No. 20080221414), and Genoe et al (US Pub No. 20080312517).
In regard to Claims 21-22, 33-35, 48, and 55, Kondo et al disclose a wearable telemetric apparatus, comprising: a first optical emitter 26a configured to direct energy at a first skin region (defined as area under first emitter of Figure 10, also see 26a in Figure 2) of a body of an organism wearing the telemetric apparatus 21, seen in Figure 2 and 10; a second optical emitter 26a configured to direct energy at a second skin region (defined as area under second emitter of Figure 10, also see second of 26a in Figure 2) of the body of the organism, wherein the first and second regions are different, seen in Figure 2 and 10; at least one detector 26b configured to detect a first energy response signal from the first region, wherein the first energy response signal contains information about blood flow through a blood vessel of the organism, seen in Figure 10 (the first wavelength is infra-red which contains information about the blood flow through a blood vessel; 0070-0079) and to at least one processor 10 (including amplifiers 52, 55 and filters 53, 54, 56) configured to: filter out a signal associated with optical scatter from skin tissue of the organism from the first energy response signal to produce a clean first energy response signal (0072); filter out a signal associated with the optical scatter from the skin tissue from the second energy response to produce a clean second energy response signal (0072); process the clean first and second energy response signals to produce an extracted signal (0073-0074); and compare the extracted signal with a physiological model to quantify a physiological property of the organism, wherein the physiological property comprises pulse information, seen in Figure 2 and 10 (0079-0079). Kondo et al also disclose the first and second optical emitter and the at least one optical detector are included in a unitary module 22, best seen in Figure 2. However, Kondo et al does not expressly disclose at least one transmitter configured to wirelessly transmit the physiological property information to a remote device. Schulze et al teach that it is well known in the art to wirelessly transmit analogous physiological property information to a remote device, such as a mobile phone (Col.2: 1-3) or a server (Claims 33, 48) using at least one transmitter 720 or Bluetooth (Col.1: 55-65; Col.2: 10-30; Col.3: 19-40; Col.5:
However, Kondo and Schulz et al do not expressly disclose detecting signals with information about optical scatter from a third skin region that is different than the first and second regions, the optical scatter signal being distinct from the first and second energy response signals and subtracting said optical scatter signal from the first and second energy response signals, the optical scatter from skin tissue comprises energy emitted by at least one of a plurality of optical emitters. Genoe et al teach that it is well-known in the art to remove unwanted optical scatter signals from energy response signals that result from skin tissue reflection (0051, 0066, 0092, 0096), the optical scatter signal from a third region 14 from the skin that is different than the location of the response signal (that comes from the tissue or blood vessel), the optical scatter emitted by at least one of a plurality of optical emitters when the device is in an array form (0101, 0103, 0106, 0108, 0112, 0113). Genoe et al disclose the array configuration having a plurality of emitters as being advantageous for specific applications such as wound treatment. Regarding Claim 55, Genoe et al disclose operation of the at least one optical detector is synchronized in time with operation of the plurality of optical emitters as an effective operation of the plurality of emitters with the detector (see Claim 37).
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the invention of Kondo et al as modified by Schulze et al such that there is detecting signals associated with optical scatter from skin tissue of the organism such as with a detector and subtracting said signal from the first and second energy response signals as taught by Baker to provide an effective manner to provide a cleaner signal that advantageously does not contain noise from unwanted optical scatter signals from the skin tissue that are present during the measurement process, wherein the optical scatter from the skin signal would occur from a third region as taught by Genoe et al and differentiated from the first and second regions that correspond to the emitters of Kondo et al, which would correspond to a location of unwanted optical scatter from the skin tissue. Due to the nature of how the optical scatter signals are produced, i.e. by the energy from the optical emitters being reflected from the skin at the third region, it is submitted that said optical scatter signals necessarily change in unison with the first and second energy response signals.
Claim 24, 46: Kondo et al disclose the at least one processor 10 is configured to process the clean first and second energy response signals to produce an extracted signal by subtracting the clean second energy response signal from the clean first energy response signal, seen in Figure 10 (0070-0079). Claim 26, 36: Kondo et al disclose the first and second optical emitters are light-emitting diodes (LEDs) (0040, 0070-0074). Claim 27: Kondo et al disclose the first optical emitter comprises one or more first optical emitters that is capable and configured to direct electromagnetic radiation at different wavelengths, seen in Figure 10 (0070-0079). Claim 28: Kondo et al disclose the second optical emitter comprises one or more first optical emitters that is capable and configured to direct electromagnetic radiation at different wavelengths, seen in Figure 10 (0070-0079). Claim 29: Kondo et al disclose the first optical emitter is configured to direct electromagnetic radiation at a different wavelength than the second optical emitter, i.e. infra-red vs. blue, seen in Figure 10 (0070-0079), wherein the first optical emitter, the second optical Claim 30: Kondo et al disclose wherein the first optical detector is capable and thus configured to detect electromagnetic radiation at different wavelengths, seen in Figure 10 (0070-0079). Claim 31: Kondo et al disclose a first 26b and a second optical detector (second of 26b) is capable and thus configured to detect electromagnetic radiation at different wavelengths, seen in Figure 10 (0070-0079). Claim 32: Kondo et al disclose the at least one optical detector 26b is configured to detect electromagnetic radiation at a different wavelength than the second optical detector, i.e. infra-red vs. blue, seen in Figure 10 (0070-0079). Claim 37: Kondo et al in combination with Genoe et al disclose the first, second, and third regions are adjacent to each other, seen in Figure 2 and 10 of Kondo et al, wherein the first optical emitter, the second optical emitter, and the at least one optical detector are arranged side-by-side in an array, best seen in Figure 2 of Kondo et al. Claim 38-39, 42-43: Kondo et al disclose directing optical energy at the first region and directing optical energy at the second region via the first and second optical emitter, respectively, and detecting said optical energy with first and second optical detectors, respectively. However, Kondo et al do not expressly disclose directing optical energy of different wavelengths at both regions and detecting them with the optical detectors. It is noted that applicant does not appear to place any criticality toward directing optical energy of different wavelengths at the first and second regions and subsequently detecting them as Claim 40: Kondo et al disclose directing optical energy at the first region comprises directing optical energy of a first wavelength at the first region via the first optical emitter, i.e. infra-red, and wherein directing optical energy at the second region comprises directing optical energy of a second wavelength at the second region via the second optical emitter, i.e. blue, seen in Figure 10 (0070-0079). Claim 41: Kondo et al disclose at least one energy detector comprises first 26b and second (second of 26b) optical detectors, wherein detecting the first energy response signal from the first region comprises detecting the first energy response signal via the first optical Claim 44: Kondo et al disclose detecting the first energy response signal via the first optical detector comprises detecting optical energy at a first wavelength, i.e. infra-red, and wherein detecting the second energy response signal via the second optical detector comprises detecting optical energy at a second wavelength, i.e. blue, seen in Figure 10 (0070-0079). Claim 49: Kondo et al disclose the first and second regions at least partially overlap, when defined to at least partially overlap, seen in Figure 10. Claim 50: Kondo et al disclose the first and second regions do not overlap, seen in Figure 10. Claim 51: Kondo et al disclose the physiological property further comprises blood pressure, and wherein comparing the extracted signal with the physiological model comprises: calculating the blood pressure of the organism based on an area of the blood vessel and based on a volumetric flow rate of blood therein, wherein the area is based on the size of the blood vessel and a change in the size thereof indicated by the information contained in the second energy response signal, and wherein the volumetric flow rate is indicated by the information contained in the first energy response signal, seen in Figure 5-6 (0041-0063). Claim 52: Kondo et al disclose a third optical emitter 97 configured to direct energy at a third region of the body of the organism, the third emitter included in unitary module 22, seen in Figure 2 and 8 (0064-0065).
Claim 54: Kondo in combination with Schultz et al, Baker and Genoe et al disclose the clean first energy and clean second energy response signals contain less noise about the blood flow, and about the size, respectively, than the first and second energy response signals, respectively, due to the result of subtracting out the optical scatter signals from the skin tissue, as taught by Baker.
Claims 25 and 47 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Kondo et al in view of Schulze et al, Genoe et al, and Baker as applied to Claims 21 and 34 above, further in view of Turcott (US Pat No. 6997879). Kondo et al in combination with Schultz et al, Genoe et al, and Baker disclose the invention above but do not expressly disclose the at least one processor processes the first and second energy response signals to produce an extracted signal by differentially amplifying the first and second energy response signals. Turcott teaches that it is well known in the art to differentially amplify analogous first and second energy response signals to effectively produce an extracted signal that enables determination of a physiological property (Col.2: 57-Col.3: 5). Turcott teaches this is performed by using an comparator 314 to subtract one signal from the other, in the manner already taught by Kondo et al. Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the invention of
Response to Arguments Applicant’s arguments with respect to claims above have been considered but are not persuasive. Applicant contends that Baker does not teach the optical detector “generating” the optical scatter signal from skin tissue because the detector of Baker “does not perform the estimating” (remarks pg.3 bottom –pg.4 top). However, it is submitted that this interpretation of both the claims and Baker are inappropriately narrow, and are thus not supported by applicant’s specification (see new 112 rejections above). Further, it is submitted that Baker does indeed disclose the “detection/generation” of the optical scatter signal as disclosed by applicant’s disclosure and as broadly as has been claimed. As noted in the new 112 first paragraph rejection above, applicant cites paragraph 0053 of the publication as providing such support (remarks pg. 1). However, this does not appear true. Paragraph 0053 states: “Optical scatter signals from these sources are more closely related to optical scatter from the skin or other tissue. Thus, when these skin-related optical scatter signals are differentially amplified with respect to their blood-vessel-related It is noted that the specification does not appear to disclose how the skin-related optical scatter signals are extracted nor does it provide support for a specific output of said skin-related optical scatter signal. For example, paragraphs 0055-0056 of the publication states that the skin-rated optical scatter signal is subtracted from a response to generate a cleaner signal but does not elaborate on how the skin-related optical scatter signal is determined/extracted/isolated/filtered to be subtracted. Therefore, it is submitted that the disclosure does not provide specific support for the optical detector “generating” the optical scatter signal from skin tissue with a specific (intermediate) output or manner of filtering/isolation/extraction prior to being subtracted. Thus, the interpretation of the claim is limited to what is commensurate with the scope of the specification: that the optical scatter signal from skin tissue exists, i.e. “generated” by the optical detector, and is subsequently subtracted as claimed. Applicant’s reading of any limitations into the optical detector as provide some sort of intermediate output, indication, or As such, the recitation of “one of the signals generated by the at least one detector” does not preclude other elements/steps from being used/performed to “calculate” the optical scatter signal prior to subtraction, an interpretation which is commensurate with the (general) disclosure and has been recited equally as broadly. As the claim uses a “comprising” preamble, said limitation does not require that the optical detector “perform/calculate, etc.” all the steps necessary to “isolate/filter/extract/calculate, etc.” the optical scatter signal prior to subtraction. Such a specific interpretation is also not supported by the disclosure as elaborated above. Therefore, it is submitted that Baker discloses the optical scatter signal being “generated” by the optical detector as broadly as has been claimed. Furthermore, it is submitted that Baker does indeed disclose “detecting/generating” the optical scatter signal from skin tissue. For example, Baker discloses light shunting is light emitted that “arrives at the detector 18 without first having traveled through the patient’s tissue” (0036). This appears to fit the definition of optical scatter as defined by applicant: light that is reflected off of the skin but does not travel deeper into the tissue. As noted, Baker explicitly describes the light “arriving” at the detector. This thus constitutes the detector “generating” the optical scatter signal as claimed (also see 112 second paragraph rejection above). Baker also discloses the method in Figure 8 to determine the light shunting used in combination with an indication of sensor contact described in Figure 4, which also involves “detecting/generating” light at the optical detector that is reflected off the skin and thus is an As recognized by applicant, Kondo necessarily discloses at least some optical scatter signals “detected/generated” – even if unintentionally – and thus the combination with Genoe et al and Baker make obvious the need to remove it by subtracting said optical scatter signal to improve the resulting signal. Therefore, is it submitted that the rejection involving Baker teaches the limitations above and is maintained. Regarding the limitation of “the signals change in unison with the first and second energy response signals,” given the limited support in the disclosure (only mentioned in paragraph 0042 of the publication), a similar interpretation of the art is taken. Thus, due to the nature of how the optical scatter signals are produced, i.e. by the energy from the optical emitters being reflected from the skin at the third region, it is submitted that said optical scatter signals necessarily change in unison with the first and second energy response signals.
Regarding the IDS filed 1/5/2021, the npl that was crossed out has not been considered because an English abstract has not been provided.
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to Huong Q NGUYEN whose telephone number is (571)272-8340. The examiner can normally be reached on 10 am - 6 pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert (Tse) Chen can be reached on 5712723672. 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
H.Q. NGUYEN Examiner Art Unit 3791
/DEVIN B HENSON/Primary Examiner, Art Unit 3791 | 2021-05-10T05:45:01 | [
"DETAILED ACTION Continued Examination Under 37 CFR 1.114 A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 1/5/2021 has been entered. Claims 21-22, 24-44, and 46-55 remain pending and under prosecution. Claim Rejections - 35 USC § 112 The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.",
"Claims 21-22, 24-44, and 46-55 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. In regard to Claims 21 and 34, given the indefiniteness below (112 second rejection below), the interpretation of the recitation that energy is directed to a first and second region In regard to Claims 21 and 34, the recitation that the energy response from a third region of the skin containing information about optical scatter from skin tissue of the organism and is “generated by the at least one optical detector” does not appear to be properly supported by the disclosure. Applicant cites paragraph 0053 of the publication as providing such support (remarks pg.",
"1); however, this does not appear true. Paragraph 0053 states: “Optical scatter signals from these sources are more closely related to optical scatter from the skin or other tissue. Thus, when these skin-related optical scatter signals are differentially amplified with respect to their blood-vessel-related counterparts, at least two extracted signals can be generated that are more closely related to the size of a blood vessel and the blood flow rate through a blood vessel.” The paragraph explains that skin-related optical scatter signals are present and differentially amplified, but do not state the skin-related optical scatter signals are “generated.” The “two extracted signals can be generated” refer to that of the signal relating to blood vessel and blood flow rate, which are distinct from the skin-related optical scatter signals.",
"Thus, while support clearly exists for the detection and subtraction of the skin-related optical scatter signals, there is no support that said signals are “generated” particularly by the optical detector. It is noted that the specification does not appear to disclose how the skin-related optical scatter signals are extracted nor does it provide support for a specific output of said skin-related optical scatter signal. For example, paragraphs 0055-0056 of the publication discusses how the skin-rated optical scatter signal is subtracted from a response to generate a cleaner signal but Claims 22, 24-33, 35-44, and 46-55 are rejected by dependency on Claims 21 and 34.",
"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 21-22, 24-44, and 46-55 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. In regard to Claims 21 and 34, it is unclear if the recitation that the optical emitters direct energy to a first and second “skin” region of an organism is meant to be interpreted as the energy only penetrating into the skin, or the energy being direct at the skin and then penetrating into deeper tissue and blood vessels after passing through the skin.",
"While it is assumed as the invention dictates, that the energy from the optical emitters is meant to penetrate past the skin and into the tissue and blood vessels, the claim should be clarified so that an interpretation of energy penetrating only into the skin is not present. In regard to Claims 21 and 34, the recitation of the optical scatter signal being “generated” by the at least one optical detector is indefinite because it is unclear exactly what Claims 22, 24-33, 35-44, and 46-55 are rejected by dependency on Claims 21 and 34. Claim Rejections - 35 USC § 103 The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action: (a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.",
"Patentability shall not be negatived by the manner in which the invention was made. The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under pre-AIA 35 U.S.C. 103(a) are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. This application currently names joint inventors. In considering patentability of the claims under pre-AIA 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 Claims 21-22, 24, 26-44, 46, and 48-55 are is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Kondo et al (US Pub No.",
"20030109791) in view of Schulze et al (US Pub No. 6893396), Baker (US Pub No. 20080221414), and Genoe et al (US Pub No. 20080312517). In regard to Claims 21-22, 33-35, 48, and 55, Kondo et al disclose a wearable telemetric apparatus, comprising: a first optical emitter 26a configured to direct energy at a first skin region (defined as area under first emitter of Figure 10, also see 26a in Figure 2) of a body of an organism wearing the telemetric apparatus 21, seen in Figure 2 and 10; a second optical emitter 26a configured to direct energy at a second skin region (defined as area under second emitter of Figure 10, also see second of 26a in Figure 2) of the body of the organism, wherein the first and second regions are different, seen in Figure 2 and 10; at least one detector 26b configured to detect a first energy response signal from the first region, wherein the first energy response signal contains information about blood flow through a blood vessel of the organism, seen in Figure 10 (the first wavelength is infra-red which contains information about the blood flow through a blood vessel; 0070-0079) and to at least one processor 10 (including amplifiers 52, 55 and filters 53, 54, 56) configured to: filter out a signal associated with optical scatter from skin tissue of the organism from the first energy response signal to produce a clean first energy response signal (0072); filter out a signal associated with the optical scatter from the skin tissue from the second energy response to produce a clean second energy response signal (0072); process the clean first and second energy response signals to produce an extracted signal (0073-0074); and compare the extracted signal with a physiological model to quantify a physiological property of the organism, wherein the physiological property comprises pulse information, seen in Figure 2 and 10 (0079-0079).",
"Kondo et al also disclose the first and second optical emitter and the at least one optical detector are included in a unitary module 22, best seen in Figure 2. However, Kondo et al does not expressly disclose at least one transmitter configured to wirelessly transmit the physiological property information to a remote device. Schulze et al teach that it is well known in the art to wirelessly transmit analogous physiological property information to a remote device, such as a mobile phone (Col.2: 1-3) or a server (Claims 33, 48) using at least one transmitter 720 or Bluetooth (Col.1: 55-65; Col.2: 10-30; Col.3: 19-40; Col.5: However, Kondo and Schulz et al do not expressly disclose detecting signals with information about optical scatter from a third skin region that is different than the first and second regions, the optical scatter signal being distinct from the first and second energy response signals and subtracting said optical scatter signal from the first and second energy response signals, the optical scatter from skin tissue comprises energy emitted by at least one of a plurality of optical emitters.",
"Genoe et al teach that it is well-known in the art to remove unwanted optical scatter signals from energy response signals that result from skin tissue reflection (0051, 0066, 0092, 0096), the optical scatter signal from a third region 14 from the skin that is different than the location of the response signal (that comes from the tissue or blood vessel), the optical scatter emitted by at least one of a plurality of optical emitters when the device is in an array form (0101, 0103, 0106, 0108, 0112, 0113). Genoe et al disclose the array configuration having a plurality of emitters as being advantageous for specific applications such as wound treatment. Regarding Claim 55, Genoe et al disclose operation of the at least one optical detector is synchronized in time with operation of the plurality of optical emitters as an effective operation of the plurality of emitters with the detector (see Claim 37).",
"Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the invention of Kondo et al as modified by Schulze et al such that there is detecting signals associated with optical scatter from skin tissue of the organism such as with a detector and subtracting said signal from the first and second energy response signals as taught by Baker to provide an effective manner to provide a cleaner signal that advantageously does not contain noise from unwanted optical scatter signals from the skin tissue that are present during the measurement process, wherein the optical scatter from the skin signal would occur from a third region as taught by Genoe et al and differentiated from the first and second regions that correspond to the emitters of Kondo et al, which would correspond to a location of unwanted optical scatter from the skin tissue. Due to the nature of how the optical scatter signals are produced, i.e.",
"by the energy from the optical emitters being reflected from the skin at the third region, it is submitted that said optical scatter signals necessarily change in unison with the first and second energy response signals. Claim 24, 46: Kondo et al disclose the at least one processor 10 is configured to process the clean first and second energy response signals to produce an extracted signal by subtracting the clean second energy response signal from the clean first energy response signal, seen in Figure 10 (0070-0079). Claim 26, 36: Kondo et al disclose the first and second optical emitters are light-emitting diodes (LEDs) (0040, 0070-0074). Claim 27: Kondo et al disclose the first optical emitter comprises one or more first optical emitters that is capable and configured to direct electromagnetic radiation at different wavelengths, seen in Figure 10 (0070-0079). Claim 28: Kondo et al disclose the second optical emitter comprises one or more first optical emitters that is capable and configured to direct electromagnetic radiation at different wavelengths, seen in Figure 10 (0070-0079).",
"Claim 29: Kondo et al disclose the first optical emitter is configured to direct electromagnetic radiation at a different wavelength than the second optical emitter, i.e. infra-red vs. blue, seen in Figure 10 (0070-0079), wherein the first optical emitter, the second optical Claim 30: Kondo et al disclose wherein the first optical detector is capable and thus configured to detect electromagnetic radiation at different wavelengths, seen in Figure 10 (0070-0079). Claim 31: Kondo et al disclose a first 26b and a second optical detector (second of 26b) is capable and thus configured to detect electromagnetic radiation at different wavelengths, seen in Figure 10 (0070-0079). Claim 32: Kondo et al disclose the at least one optical detector 26b is configured to detect electromagnetic radiation at a different wavelength than the second optical detector, i.e. infra-red vs. blue, seen in Figure 10 (0070-0079). Claim 37: Kondo et al in combination with Genoe et al disclose the first, second, and third regions are adjacent to each other, seen in Figure 2 and 10 of Kondo et al, wherein the first optical emitter, the second optical emitter, and the at least one optical detector are arranged side-by-side in an array, best seen in Figure 2 of Kondo et al.",
"Claim 38-39, 42-43: Kondo et al disclose directing optical energy at the first region and directing optical energy at the second region via the first and second optical emitter, respectively, and detecting said optical energy with first and second optical detectors, respectively. However, Kondo et al do not expressly disclose directing optical energy of different wavelengths at both regions and detecting them with the optical detectors. It is noted that applicant does not appear to place any criticality toward directing optical energy of different wavelengths at the first and second regions and subsequently detecting them as Claim 40: Kondo et al disclose directing optical energy at the first region comprises directing optical energy of a first wavelength at the first region via the first optical emitter, i.e. infra-red, and wherein directing optical energy at the second region comprises directing optical energy of a second wavelength at the second region via the second optical emitter, i.e.",
"blue, seen in Figure 10 (0070-0079). Claim 41: Kondo et al disclose at least one energy detector comprises first 26b and second (second of 26b) optical detectors, wherein detecting the first energy response signal from the first region comprises detecting the first energy response signal via the first optical Claim 44: Kondo et al disclose detecting the first energy response signal via the first optical detector comprises detecting optical energy at a first wavelength, i.e.",
"infra-red, and wherein detecting the second energy response signal via the second optical detector comprises detecting optical energy at a second wavelength, i.e. blue, seen in Figure 10 (0070-0079). Claim 49: Kondo et al disclose the first and second regions at least partially overlap, when defined to at least partially overlap, seen in Figure 10. Claim 50: Kondo et al disclose the first and second regions do not overlap, seen in Figure 10. Claim 51: Kondo et al disclose the physiological property further comprises blood pressure, and wherein comparing the extracted signal with the physiological model comprises: calculating the blood pressure of the organism based on an area of the blood vessel and based on a volumetric flow rate of blood therein, wherein the area is based on the size of the blood vessel and a change in the size thereof indicated by the information contained in the second energy response signal, and wherein the volumetric flow rate is indicated by the information contained in the first energy response signal, seen in Figure 5-6 (0041-0063). Claim 52: Kondo et al disclose a third optical emitter 97 configured to direct energy at a third region of the body of the organism, the third emitter included in unitary module 22, seen in Figure 2 and 8 (0064-0065).",
"Claim 54: Kondo in combination with Schultz et al, Baker and Genoe et al disclose the clean first energy and clean second energy response signals contain less noise about the blood flow, and about the size, respectively, than the first and second energy response signals, respectively, due to the result of subtracting out the optical scatter signals from the skin tissue, as taught by Baker. Claims 25 and 47 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Kondo et al in view of Schulze et al, Genoe et al, and Baker as applied to Claims 21 and 34 above, further in view of Turcott (US Pat No. 6997879). Kondo et al in combination with Schultz et al, Genoe et al, and Baker disclose the invention above but do not expressly disclose the at least one processor processes the first and second energy response signals to produce an extracted signal by differentially amplifying the first and second energy response signals. Turcott teaches that it is well known in the art to differentially amplify analogous first and second energy response signals to effectively produce an extracted signal that enables determination of a physiological property (Col.2: 57-Col.3: 5).",
"Turcott teaches this is performed by using an comparator 314 to subtract one signal from the other, in the manner already taught by Kondo et al. Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the invention of Response to Arguments Applicant’s arguments with respect to claims above have been considered but are not persuasive. Applicant contends that Baker does not teach the optical detector “generating” the optical scatter signal from skin tissue because the detector of Baker “does not perform the estimating” (remarks pg.3 bottom –pg.4 top). However, it is submitted that this interpretation of both the claims and Baker are inappropriately narrow, and are thus not supported by applicant’s specification (see new 112 rejections above). Further, it is submitted that Baker does indeed disclose the “detection/generation” of the optical scatter signal as disclosed by applicant’s disclosure and as broadly as has been claimed.",
"As noted in the new 112 first paragraph rejection above, applicant cites paragraph 0053 of the publication as providing such support (remarks pg. 1). However, this does not appear true. Paragraph 0053 states: “Optical scatter signals from these sources are more closely related to optical scatter from the skin or other tissue. Thus, when these skin-related optical scatter signals are differentially amplified with respect to their blood-vessel-related It is noted that the specification does not appear to disclose how the skin-related optical scatter signals are extracted nor does it provide support for a specific output of said skin-related optical scatter signal. For example, paragraphs 0055-0056 of the publication states that the skin-rated optical scatter signal is subtracted from a response to generate a cleaner signal but does not elaborate on how the skin-related optical scatter signal is determined/extracted/isolated/filtered to be subtracted. Therefore, it is submitted that the disclosure does not provide specific support for the optical detector “generating” the optical scatter signal from skin tissue with a specific (intermediate) output or manner of filtering/isolation/extraction prior to being subtracted.",
"Thus, the interpretation of the claim is limited to what is commensurate with the scope of the specification: that the optical scatter signal from skin tissue exists, i.e. “generated” by the optical detector, and is subsequently subtracted as claimed. Applicant’s reading of any limitations into the optical detector as provide some sort of intermediate output, indication, or As such, the recitation of “one of the signals generated by the at least one detector” does not preclude other elements/steps from being used/performed to “calculate” the optical scatter signal prior to subtraction, an interpretation which is commensurate with the (general) disclosure and has been recited equally as broadly. As the claim uses a “comprising” preamble, said limitation does not require that the optical detector “perform/calculate, etc.” all the steps necessary to “isolate/filter/extract/calculate, etc.” the optical scatter signal prior to subtraction. Such a specific interpretation is also not supported by the disclosure as elaborated above.",
"Therefore, it is submitted that Baker discloses the optical scatter signal being “generated” by the optical detector as broadly as has been claimed. Furthermore, it is submitted that Baker does indeed disclose “detecting/generating” the optical scatter signal from skin tissue. For example, Baker discloses light shunting is light emitted that “arrives at the detector 18 without first having traveled through the patient’s tissue” (0036). This appears to fit the definition of optical scatter as defined by applicant: light that is reflected off of the skin but does not travel deeper into the tissue. As noted, Baker explicitly describes the light “arriving” at the detector. This thus constitutes the detector “generating” the optical scatter signal as claimed (also see 112 second paragraph rejection above).",
"Baker also discloses the method in Figure 8 to determine the light shunting used in combination with an indication of sensor contact described in Figure 4, which also involves “detecting/generating” light at the optical detector that is reflected off the skin and thus is an As recognized by applicant, Kondo necessarily discloses at least some optical scatter signals “detected/generated” – even if unintentionally – and thus the combination with Genoe et al and Baker make obvious the need to remove it by subtracting said optical scatter signal to improve the resulting signal.",
"Therefore, is it submitted that the rejection involving Baker teaches the limitations above and is maintained. Regarding the limitation of “the signals change in unison with the first and second energy response signals,” given the limited support in the disclosure (only mentioned in paragraph 0042 of the publication), a similar interpretation of the art is taken. Thus, due to the nature of how the optical scatter signals are produced, i.e. by the energy from the optical emitters being reflected from the skin at the third region, it is submitted that said optical scatter signals necessarily change in unison with the first and second energy response signals. Regarding the IDS filed 1/5/2021, the npl that was crossed out has not been considered because an English abstract has not been provided. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to Huong Q NGUYEN whose telephone number is (571)272-8340. The examiner can normally be reached on 10 am - 6 pm.",
"Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert (Tse) Chen can be reached on 5712723672. 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 H.Q. NGUYEN Examiner Art Unit 3791 /DEVIN B HENSON/Primary Examiner, Art Unit 3791"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-05-16.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Claim Rejections - 35 USC § 112 The following is a quotation of the first paragraph of 35 U.S.C. 112(a): (a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-20 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention. In particular the following limitations of claims 1, 11, and 20: “in response to a puncture of the vehicle tire by an object, the hypotonic fluid and the second plurality of the plugging materials are drawn by osmosis through the semipermeable membrane ring into the hypertonic fluid stored in the interior housing of the nonpermeable membrane . Claims 2-10 are dependent upon claim 1. Claims 12-19 are dependent upon claim 11. There are many factors to be considered when determining whether there is sufficient evidence to support a determination that a disclosure does not satisfy the enablement requirement and whether any necessary experimentation is "undue." These factors include, but are not limited to: (A) The breadth of the claims; (B) The nature of the invention; (C) The state of the prior art; (D) The level of one of ordinary skill; (E) The level of predictability in the art; (F) The amount of direction provided by the inventor; (G) The existence of working examples; and (H) The quantity of experimentation needed to make or use the invention based on the content of the disclosure. In re Wands, 858 F.2d 731, 737, 8 USPQ2d 1400, 1404 (Fed. Cir. 1988). The broadest reasonable interpretation of claim(s) 1-20 covers drawing hypotonic fluid and plugging material through a semipermeable membrane into the hypertonic fluid by osmosis in response to a tire puncture. The specification does not provide direction on what the semi-permeable membrane material is or how the puncture causes the plugging material to be drawn through the semi-permeable membrane by osmosis. At the time of filing, the state of the art was such that osmosis is the diffusion of water through a semipermeable membrane according to the concentration gradient of water across the Bartee et al., Principles of Biology, Passive Transport: Osmosis, 2016 May 18, pp. 1-2; University of Texas, Chemistry 302, Osmosis, 2013, pp. 1-2). Accordingly, one of ordinary skill in the art would not expect solid material, such as the plugging material, to flow through the semipermeable membrane by osmosis as the very nature of osmosis is to permit only water/solvents to pass through semipermeable membranes while leaving behind solids/solutes. Thus, the disclosed hypotonic fluid and second plurality of plugging material being drawn by osmosis through the semipermeable ring into the hypertonic fluid does not bear a reasonable correlation to the full scope of the claim because while the hypotonic fluid (i.e. fresh water) may pass through the semipermeable membrane, there is no guidance as to how the plugging material passes through the semipermeable membrane via osmosis. Furthermore, there is no guidance as to what the semipermeable membrane material is in order to gauge if plugging material would be able to pass through it via “osmosis” other than a disclosure stating that the “semipermeable membrane ring 110 may be constructed of a suitable material that allows certain materials to pass through it via osmosis.” ([0015]). The original disclosure also discloses that the plugging material may be a collection of hair, feathers, and/or fish scales ([0007]), which are most definitely not fluids or solvents that would easily pass by osmosis through the semipermeable membrane. Further there is no guidance as to how this transfer of the hypotonic fluid and plugging material is being drawn by osmosis through the semipermeable membrane in response to a puncture. Osmosis will occur across the semipermeable membrane according to the concentration gradient of water across the membrane (Bartee et al., Principles of Biology, Passive Transport: Osmosis, 2016 May 18, pp. 1-2). In other words, osmosis will occur as soon as the fluids are placed in the membranes in the tire so as to reach equilibrium, not merely when there is a puncture. The original disclosure provides no guidance on how this osmosis is prevented until there is a puncture in the tire. Taking these factors into account, The broadest reasonable interpretation of claim(s) 1-20 covers creating an osmotic pressure on the exterior surface of the nonpermeable membrane ring. The specification does not provide direction on how the osmotic pressure of the hypotonic fluid and the plugging material passing through the semipermeable membrane causes an osmotic pressure on an exterior surface of the nonpermeable membrane. At the time of filing, the state of the art was such that osmotic pressure is the pressure that would be required to stop water from diffusing through a barrier by osmosis (Biology Dictionary, Osmotic Pressure, 2017 April 28, p. 1). In other words, osmotic pressure occurs within a container and is the result of diffusing water through a barrier by osmosis. In Applicant’s claimed invention, this barrier is the semipermeable membrane, which is located within the interior of the nonpermeable membrane. The original disclosure also discloses that “the term ‘osmotic pressure’ … generally refers to the pressure caused by a fluid at different concentrations due to the dilution of the fluid by dissolved molecules (solute), such as saline (e.g., salt)” ([0029]). Furthermore, the original disclosure discloses that the “osmotic pressure may be created when the hypotonic fluid is drawn through the semipermeable membrane into the hypertonic fluid (e.g., saline solution) of the nonpermeable membrane” ([0013]). In other words, the osmotic pressure occurs within the interior of the nonpermeable membrane because the semipermeable membrane where the osmosis occurs is within the nonpermeable membrane. One of ordinary skill in the art would expect there to be an osmotic pressure created within the interior of the nonpermeable membrane, but not one that is exerted onto the exterior of the nonpermeable membrane. Thus, the disclosed osmotic pressure on the exterior surface of the nonpermeable membrane ring does not bear a reasonable correlation to the full scope of the claim. Taking these factors into account, undue experimentation would be required by one of ordinary skill in the art to practice the invention recited in the claim(s). Sato US 2019/0023084), however, it was not known to use O-rings in sidewalls to seal such punctures in treads. Accordingly, Applicant has not provided any guidance on this occurrence and thus it is not clear how an O-ring in a sidewall seals the puncture in the tread, especially when it appears the sealant and plugging material are sealing the actual puncture hole. One of ordinary skill in the art would not be able to gauge how the sidewall O-ring is sealing the tread puncture. Thus, the disclosed osmotic pressure causing an O-ring sealing the puncture of a tire does not bear a reasonable correlation to the full scope of the claim. Taking these factors into account, undue experimentation would be required by one of ordinary skill in the art to practice the invention recited in the claim(s).
Contact Information Any inquiry concerning this communication or earlier communications from the examiner should be directed to SEDEF PAQUETTE (née AYALP) whose telephone number is (571) 272-5031. The examiner can normally be reached on Monday - Friday 7:00 AM EST - 4:00 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, KATELYN WHATLEY can be reached on (571) 270-5545. The fax phone number for the organization where this application or proceeding is assigned is (571) 273-8300. The fax phone number for the examiner is (571) 273-5031. 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.
/SEDEF E PAQUETTE/Examiner, Art Unit 1749 | 2021-10-05T04:30:55 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. Claim Rejections - 35 USC § 112 The following is a quotation of the first paragraph of 35 U.S.C. 112(a): (a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention. The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.",
"Claims 1-20 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention. In particular the following limitations of claims 1, 11, and 20: “in response to a puncture of the vehicle tire by an object, the hypotonic fluid and the second plurality of the plugging materials are drawn by osmosis through the semipermeable membrane ring into the hypertonic fluid stored in the interior housing of the nonpermeable membrane . Claims 2-10 are dependent upon claim 1.",
"Claims 12-19 are dependent upon claim 11. There are many factors to be considered when determining whether there is sufficient evidence to support a determination that a disclosure does not satisfy the enablement requirement and whether any necessary experimentation is \"undue.\" These factors include, but are not limited to: (A) The breadth of the claims; (B) The nature of the invention; (C) The state of the prior art; (D) The level of one of ordinary skill; (E) The level of predictability in the art; (F) The amount of direction provided by the inventor; (G) The existence of working examples; and (H) The quantity of experimentation needed to make or use the invention based on the content of the disclosure. In re Wands, 858 F.2d 731, 737, 8 USPQ2d 1400, 1404 (Fed.",
"Cir. 1988). The broadest reasonable interpretation of claim(s) 1-20 covers drawing hypotonic fluid and plugging material through a semipermeable membrane into the hypertonic fluid by osmosis in response to a tire puncture. The specification does not provide direction on what the semi-permeable membrane material is or how the puncture causes the plugging material to be drawn through the semi-permeable membrane by osmosis. At the time of filing, the state of the art was such that osmosis is the diffusion of water through a semipermeable membrane according to the concentration gradient of water across the Bartee et al., Principles of Biology, Passive Transport: Osmosis, 2016 May 18, pp. 1-2; University of Texas, Chemistry 302, Osmosis, 2013, pp. 1-2). Accordingly, one of ordinary skill in the art would not expect solid material, such as the plugging material, to flow through the semipermeable membrane by osmosis as the very nature of osmosis is to permit only water/solvents to pass through semipermeable membranes while leaving behind solids/solutes. Thus, the disclosed hypotonic fluid and second plurality of plugging material being drawn by osmosis through the semipermeable ring into the hypertonic fluid does not bear a reasonable correlation to the full scope of the claim because while the hypotonic fluid (i.e.",
"fresh water) may pass through the semipermeable membrane, there is no guidance as to how the plugging material passes through the semipermeable membrane via osmosis. Furthermore, there is no guidance as to what the semipermeable membrane material is in order to gauge if plugging material would be able to pass through it via “osmosis” other than a disclosure stating that the “semipermeable membrane ring 110 may be constructed of a suitable material that allows certain materials to pass through it via osmosis.” ([0015]). The original disclosure also discloses that the plugging material may be a collection of hair, feathers, and/or fish scales ([0007]), which are most definitely not fluids or solvents that would easily pass by osmosis through the semipermeable membrane. Further there is no guidance as to how this transfer of the hypotonic fluid and plugging material is being drawn by osmosis through the semipermeable membrane in response to a puncture.",
"Osmosis will occur across the semipermeable membrane according to the concentration gradient of water across the membrane (Bartee et al., Principles of Biology, Passive Transport: Osmosis, 2016 May 18, pp. 1-2). In other words, osmosis will occur as soon as the fluids are placed in the membranes in the tire so as to reach equilibrium, not merely when there is a puncture. The original disclosure provides no guidance on how this osmosis is prevented until there is a puncture in the tire. Taking these factors into account, The broadest reasonable interpretation of claim(s) 1-20 covers creating an osmotic pressure on the exterior surface of the nonpermeable membrane ring. The specification does not provide direction on how the osmotic pressure of the hypotonic fluid and the plugging material passing through the semipermeable membrane causes an osmotic pressure on an exterior surface of the nonpermeable membrane.",
"At the time of filing, the state of the art was such that osmotic pressure is the pressure that would be required to stop water from diffusing through a barrier by osmosis (Biology Dictionary, Osmotic Pressure, 2017 April 28, p. 1). In other words, osmotic pressure occurs within a container and is the result of diffusing water through a barrier by osmosis. In Applicant’s claimed invention, this barrier is the semipermeable membrane, which is located within the interior of the nonpermeable membrane. The original disclosure also discloses that “the term ‘osmotic pressure’ … generally refers to the pressure caused by a fluid at different concentrations due to the dilution of the fluid by dissolved molecules (solute), such as saline (e.g., salt)” ([0029]). Furthermore, the original disclosure discloses that the “osmotic pressure may be created when the hypotonic fluid is drawn through the semipermeable membrane into the hypertonic fluid (e.g., saline solution) of the nonpermeable membrane” ([0013]). In other words, the osmotic pressure occurs within the interior of the nonpermeable membrane because the semipermeable membrane where the osmosis occurs is within the nonpermeable membrane. One of ordinary skill in the art would expect there to be an osmotic pressure created within the interior of the nonpermeable membrane, but not one that is exerted onto the exterior of the nonpermeable membrane.",
"Thus, the disclosed osmotic pressure on the exterior surface of the nonpermeable membrane ring does not bear a reasonable correlation to the full scope of the claim. Taking these factors into account, undue experimentation would be required by one of ordinary skill in the art to practice the invention recited in the claim(s). Sato US 2019/0023084), however, it was not known to use O-rings in sidewalls to seal such punctures in treads. Accordingly, Applicant has not provided any guidance on this occurrence and thus it is not clear how an O-ring in a sidewall seals the puncture in the tread, especially when it appears the sealant and plugging material are sealing the actual puncture hole. One of ordinary skill in the art would not be able to gauge how the sidewall O-ring is sealing the tread puncture. Thus, the disclosed osmotic pressure causing an O-ring sealing the puncture of a tire does not bear a reasonable correlation to the full scope of the claim. Taking these factors into account, undue experimentation would be required by one of ordinary skill in the art to practice the invention recited in the claim(s).",
"Contact Information Any inquiry concerning this communication or earlier communications from the examiner should be directed to SEDEF PAQUETTE (née AYALP) whose telephone number is (571) 272-5031. The examiner can normally be reached on Monday - Friday 7:00 AM EST - 4:00 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, KATELYN WHATLEY can be reached on (571) 270-5545.",
"The fax phone number for the organization where this application or proceeding is assigned is (571) 273-8300. The fax phone number for the examiner is (571) 273-5031. 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. /SEDEF E PAQUETTE/Examiner, Art Unit 1749"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-10-10.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 09/08/2022 on Mr. Kwangho Jang, applicant’s representative. The application has been amended as follows: 5. (Currently Amended) The safety shutter of claim 1, wherein the cam unit includes: a first rail constructed to allow the first plate to slide in the second direction along the first rail when the air circuit breaker retracts, and to allow the first plate to slide in the first direction along the first rail when the air circuit breaker extends; and a second rail constructed to allow the second plate to slide in the first direction along the second rail when the air circuit breaker retracts, and to allow the second plate to slide in the second direction along the second rail when the air circuit breaker extends.
Allowable Subject Matter Claims 1 and 4-10 are allowed. The following is an examiner's statement of reasons for allowance: Regarding Claim 1, the references fail to teach, disclose, or suggest, either alone or in combination, the first plate of the shutter unit slides in a first direction or a second direction while moving along the cam unit, thereby to open or close a corresponding opened or closed hole, wherein the second plate of the shutter unit slides in the second direction or the first direction while moving along the cam unit, thereby to open or close a corresponding opened or closed hole, and in combination with the rest of the limitations of the claim. 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 IMAN MALAKOOTI whose telephone number is (571)270-0496. The examiner can normally be reached on MON-FRI: 8AM-5PM EST. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Renee Luebke can be reached at (571) 272-2009. 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.
/IMAN MALAKOOTI/Examiner, Art Unit 2833
/EDWIN A. LEON/Primary Examiner, Art Unit 2833 | 2022-09-14T14:53:32 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. 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 09/08/2022 on Mr. Kwangho Jang, applicant’s representative. The application has been amended as follows: 5. (Currently Amended) The safety shutter of claim 1, wherein the cam unit includes: a first rail constructed to allow the first plate to slide in the second direction along the first rail when the air circuit breaker retracts, and to allow the first plate to slide in the first direction along the first rail when the air circuit breaker extends; and a second rail constructed to allow the second plate to slide in the first direction along the second rail when the air circuit breaker retracts, and to allow the second plate to slide in the second direction along the second rail when the air circuit breaker extends. Allowable Subject Matter Claims 1 and 4-10 are allowed.",
"The following is an examiner's statement of reasons for allowance: Regarding Claim 1, the references fail to teach, disclose, or suggest, either alone or in combination, the first plate of the shutter unit slides in a first direction or a second direction while moving along the cam unit, thereby to open or close a corresponding opened or closed hole, wherein the second plate of the shutter unit slides in the second direction or the first direction while moving along the cam unit, thereby to open or close a corresponding opened or closed hole, and in combination with the rest of the limitations of the claim. 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 IMAN MALAKOOTI whose telephone number is (571)270-0496.",
"The examiner can normally be reached on MON-FRI: 8AM-5PM EST. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Renee Luebke can be reached at (571) 272-2009. 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.",
"/IMAN MALAKOOTI/Examiner, Art Unit 2833 /EDWIN A. LEON/Primary Examiner, Art Unit 2833"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-09-18.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 10.1
SOCKET COMMUNICATIONS, INC.
SECURITIES PURCHASE AGREEMENT
OCTOBER 3, 2002
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TABLE OF CONTENTS
Page 1. AGREEMENT TO SELL AND PURCHASE 1 2. FEES AND WARRANTS 1 3. CLOSING, DELIVERY AND PAYMENT 2
3.1 Closing 2
3.2 Delivery 2 4.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY 2
4.1 Organization, Good Standing and Qualification 2
4.2 Subsidiaries 3
4.3 Capitalization; Voting Rights 3
4.4 Authorization; Binding Obligations 4
4.5 Liabilities 4
4.6 Agreements; Action 4
4.7 Obligations to Related Parties 5
4.8 Changes 6
4.9 Title to Properties and Assets; Liens, Etc 7
4.10 Intellectual Property 7
4.11 Compliance with Other Instruments 7
4.12 Litigation 7
4.13 Tax Returns and Payments 8
4.14 Employees 8
4.15 Registration Rights and Voting Rights 8
4.16 Compliance with Laws; Permits 9
4.17 Environmental and Safety Laws 9
4.18 Valid Offering 9
4.19 Full Disclosure 9
4.20 Insurance 10
4.21 SEC Reports 10
4.22 No Market Manipulation 10
4.23 No Integrated Offering 10
4.24 Stop Transfer 10
4.25 Dilution 10 5.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS 11
5.1 Requisite Power and Authority 11
5.2 Investment Representations 11
5.3 Purchaser Bears Economic Risk 11
5.4 Acquisition for Own Account 11
5.5 Purchaser Can Protect Its Interest 11
5.6 Accredited Investor 12
5.7 Legends 12
5.8 No Shorting 12 6.
COVENANTS OF THE COMPANY 13
6.1 Stop-Orders 13
6.2 Listing 13
6.3 Market Regulations 13
6.4 Reporting Requirements 14
6.5 Use of Funds 14
6.6 Access to Directors, Officers and Accountants 14
6.7 Books and Records 14
6.8 Confidentiality 14
6.9 Corporate Existence 14
6.10 Reissuance of Securities. 15
6.11 Opinion 15 7.
COVENANTS OF THE COMPANY AND PURCHASERS REGARDING INDEMNIFICATION 16
7.1 Company Indemnification 16
7.2 Purchaser's Indemnification 16
7.3 Procedures 16 8. RESTRICTIONS ON TRANSFER 16 9.
REGISTRATION RIGHTS 16
9.1 Registration Rights Granted 16
9.2 Registration Procedures 16
9.3 Provision of Documents 17
9.4 Non-Registration Events 17
9.5 Expenses 18
9.6 Indemnification and Contribution 18 10.
OFFERING RESTRICTIONS 20 11.
SECURITY INTEREST 21 12.
MISCELLANEOUS 21
12.1 Governing Law 21
12.2 Survival 21
12.3 Successors and Assigns 21
12.4 Entire Agreement 21
12.5 Severability 21
12.6 Amendment and Waiver 22
12.7 Delays or Omissions 22
12.8 Notices 22
12.9 Attorneys' Fees 22
12.10 Titles and Subtitles 22
12.11 Counterparts 22
12.12 Broker's Fees 22
12.13 Construction 22
>
>
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SOCKET COMMUNICATIONS, INC. SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (the "Agreement") is made and entered into as of October 3, 2002, by and between Socket Communications, Inc., a Delaware corporation (the "Company"), and Laurus Master Fund, Ltd., a Cayman Islands company (the "Purchaser").
RECITALS
WHEREAS, the Company has authorized the sale of Series E 12% Convertible Preferred Stock, $0.001 par value (the "Preferred Stock") for the aggregate purchase price of $1,000,000, convertible into shares of the Company's common stock, $0.001 par value per share (the "Common Stock");
WHEREAS, the Company wishes to issue a warrant to the Purchaser to purchase shares of the Company's Common Stock in connection with Purchaser's purchase of the Preferred Stock;
WHEREAS, Purchaser desires to purchase the Preferred Stock and Warrant on the terms and conditions set forth herein; and
WHEREAS, the Company desires to issue and sell the Preferred Stock and Warrant to the Purchaser on the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises, representations, warranties and covenants hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. AGREEMENT TO SELL AND PURCHASE. Pursuant to the terms and conditions set forth in this Agreement, on the Closing Date (as defined in Section 3), the Company agrees to sell to the Purchaser, and the Purchaser hereby agrees to purchase from the Company 100,000 shares of Preferred Stock, convertible in accordance with the terms thereof into shares of the Company's Common Stock, at a purchase price per share of $10. The total purchase price shall be of $1,000,000 (the "Purchase Price"). The purchase and sale of the Preferred Stock shall be known as the "Offering." The Certificate of Designation setting forth the rights, preferences and restrictions of the Preferred Stock (the "Certificate of Designation") is annexed hereto as Exhibit A. The Preferred Stock will be subject to redemption or conversion as set forth in the Certificate of Designation. Collectively, the Preferred Stock and Warrant (as defined in Section 2) and Common Stock issuable upon conversion of the Preferred Stock and exercise of the Warrant are referred to as the "Securities."
2. FEES AND WARRANTS.
> (a) The Company will issue and deliver to the Purchaser a Warrant to purchase > 250,000 shares of Common Stock in connection with the Offering (the "Warrant") > pursuant to Section 1 hereof. The Warrant must be delivered on the Closing > Date. A form of Warrant is annexed hereto as Exhibit B. All the > representations and warranties made for the benefit of the Purchaser by the > Company with respect to the Preferred Stock are hereby also made in respect of > the Warrant and shares of the Company's Common Stock issuable upon exercise of > the Warrant (the "Warrant Shares"). > > (b) The Company shall reimburse the Purchaser for its reasonable legal fees > for services rendered to the Purchaser in preparation of this Agreement and > the Related Agreements, and expenses in connection with the Purchaser's due > diligence review of the Company and relevant matters. Amounts required to be > paid hereunder will be paid at the Closing and shall not exceed $20,000, > provided that said amount shall not be payable prior to the Purchaser > providing a written bill to the Company. > > (c) The Company will pay a cash fee in the amount of eight percent (8%) of the > aggregate gross purchase price to be paid to the Company from the sale of the > Preferred Stock in the Offering (the "Fund Management Fee") to Laurus Capital > Management, L.L.C., a Delaware limited liability company. The Fund Management > Fee must be paid on the Closing Date. The aforementioned Fund Management Fee > and legal fees will be payable at the Closing out of funds held pursuant to a > Funds Escrow Agreement to be entered into by the Company, Purchaser and an > Escrow Agent.
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3. CLOSING, DELIVERY AND PAYMENT.
> 3.1 Closing. Subject to the terms and conditions herein, the closing of the > transactions contemplated hereby (the "Closing"), which closing is comprised > of Purchaser's purchase of the Preferred Stock in the aggregate principal > amount of $1,000,000, shall take place on the date hereof, at the offices of > Daniel M. Laifer, Esq., 152 West 57th Street, 4th Floor, New York, New York > 10019, or at such other time or place as the Company and Purchaser may > mutually agree (such date is hereinafter referred to as the "Closing Date"). > > 3.2 Delivery. At the Closing, subject to the terms and conditions hereof, the > Company will deliver to the Purchaser evidence of the filing of the > Certificate of Designation in the form attached as Exhibit A with the > Secretary of State of the State of Delaware, certificate(s) representing the > Preferred Stock purchased by the Purchaser and the Warrant, and the Purchaser > will deliver to the Company $1,000,000, by certified funds or wire transfer > made payable to the order of the Company, subject to the fees set forth under > Section 2(b) and Section 2(c) above.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Except as set forth in the Disclosure Letter delivered to the Purchaser in connection herewith, the Company hereby represents and warrants to the Purchaser as of the date of this Agreement as set forth below.
> 4.1 Organization, Good Standing and Qualification. The Company is a > corporation duly organized, validly existing and in good standing under the > laws of the State of Delaware. The Company has all requisite corporate power > and authority to own and operate its properties and assets, to execute and > deliver this Agreement, the Warrant, the Funds Escrow Agreement, and all other > agreements referred to herein (collectively, the "Related Agreements"), to > issue and sell the Preferred Stock and the shares of Common Stock issuable > upon conversion of the Preferred Stock (the "Conversion Shares"), to issue and > sell the Warrant and the Warrant Shares, and to carry out the provisions of > this Agreement and the Related Agreements and to carry on its business as > presently conducted and as presently proposed to be conducted. The Company is > duly qualified and is authorized to do business and is in good standing as a > foreign corporation in all jurisdictions in which the nature of its activities > and of its properties (both owned and leased) makes such qualification > necessary, except for those jurisdictions in which failure to do so would not > have a material adverse effect on the Company or its business.
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> 4.2 Subsidiaries. Except as disclosed on Schedule4.2 of the Disclosure Letter, > the Company does not own or control any equity security or other interest of > any other corporation, limited partnership or other business entity. > > 4.3 Capitalization; Voting Rights. > > > (a) The authorized capital stock of the Company, immediately prior to the > > Closing, consists of (i) 100,000,000 shares of Common Stock, par value > > $0.001 per share, 24,112,310 shares of which are issued and outstanding, and > > (ii) 3,000,000 shares of Preferred Stock, par value $0.001 per share, noneof > > which are issued and outstanding. > > > > (b) Other than (i) the shares reserved for issuance under the Company's > > stock option plans; (ii) as set forth in the SEC Reports (as defined below) > > and (iii) shares which may be granted pursuant to this Agreement and the > > Related Agreements, there are no outstanding options, warrants, rights > > (including conversion or preemptive rights and rights of first refusal), > > proxy or stockholder agreements, or arrangements or agreements of any kind > > for the purchase or acquisition from the Company of any of its securities. > > Neither the offer, issuance or sale of any of the Preferred Stock or > > Warrant, or the issuance of any of the Conversion Shares or Warrant Shares, > > nor the consummation of any transaction contemplated hereby will result in a > > change in the price or number of any securities of the Company outstanding, > > under anti-dilution or other similar provisions contained in or affecting > > any such securities. > > > > (c) All issued and outstanding shares of the Company's Common Stock (i) have > > been duly authorized and validly issued and are fully paid and nonassessable > > and (ii) were issued in compliance with all applicable state and federal > > laws concerning the issuance of securities. > > > > (d) The rights, preferences, privileges and restrictions of the shares of > > the Common Stock are as stated in the Certificate of Incorporation (the > > "Charter"). The Conversion Shares and Warrant Shares have been duly and > > validly reserved for issuance. When issued in compliance with the provisions > > of this Agreement and the Company's Charter (including the Certificate of > > Designation) and/or the Warrant, the Securities will be validly issued, > > fully paid and nonassessable, and will be free of any liens or encumbrances; > > provided, however, that the Securities may be subject to restrictions on > > transfer under state and/or federal securities laws as set forth herein or > > as otherwise required by such laws at the time a transfer is proposed. > > > > (e) Other than as referenced in the SEC Reports, no stock plan, stock > > purchase, stock option or other agreement or understanding between the > > Company and any holder of any equity securities or rights to purchase equity > > securities provides for acceleration or other changes in the vesting > > provisions or other terms of such agreement or understanding as the result > > of any merger, consolidated sale of stock or assets, change in control or > > any other transaction(s) by the Company, including the transactions > > contemplated hereunder.
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> 4.4 Authorization; Binding Obligations. All corporate action on the part of > the Company, its officers, directors and stockholders necessary for the > authorization of this Agreement and the Related Agreements, the performance of > all obligations of the Company hereunder at the Closing and the authorization, > sale, issuance and delivery of the Securities pursuant hereto and the Related > Agreements has been taken or will be taken prior to the Closing. The Agreement > and the Related Agreements, when executed and delivered, will be valid and > binding obligations of the Company enforceable in accordance with their terms, > except (a) as limited by applicable bankruptcy, insolvency, reorganization, > moratorium or other laws of general application affecting enforcement of > creditors' rights, and (b) general principles of equity that restrict the > availability of equitable remedies. The sale of the Preferred Stock and the > subsequent conversion of the Preferred Stock into Conversion Shares are not > and will not be subject to any preemptive rights or rights of first refusal > that have not been properly waived or complied with. The sale of the Warrant > and the subsequent exercise of the Warrant for Warrant Shares are not and will > not be subject to any preemptive rights or rights of first refusal that have > not been properly waived or complied with. The Certificate of Designation and > the Warrant, when executed and delivered in accordance with the terms of this > Agreement, will be valid and binding obligations of the Company, enforceable > in accordance with their respective terms. > > 4.5 Liabilities. Except as provided for in the Company's financial statements > for the period ending August 31, 2002 (which have been supplied to the > Purchaser), the Company has no material liabilities and, to the best of its > knowledge, knows of no material contingent liabilities, except current > liabilities incurred in the ordinary course of business which have not had and > are not expected to have, either in any individual case or in the aggregate, a > materially adverse effect on the Company or its business.
> 4.6 Agreements; Action. > > > (a) Except (i) as described the SEC Reports, (ii) this Agreement and (iii) > > the Related Agreements, there are no agreements, understandings, > > instruments, contracts, proposed transactions, judgments, orders, writs or > > decrees to which the Company is a party or to its knowledge by which it is > > bound which may involve (i) obligations (contingent or otherwise) of, or > > payments to, the Company in excess of $100,000 (other than obligations of, > > or payments to, the Company arising from purchase or sale agreements entered > > into in the ordinary course of business), or (ii) the transfer or license of > > any patent, copyright, trade secret or other proprietary right to or from > > the Company (other than licenses arising from the purchase of "off the > > shelf" or other standard products and other agreements entered into in the > > ordinary course of business) or (iii) provisions materially restricting the > > development, manufacture or distribution of the Company's products or > > services, or (iv) indemnification by the Company other than in the ordinary > > course of business with respect to infringements of proprietary rights. > > > > (b) Since the date of the most recent SEC Report, the Company has not (i) > > declared or paid any dividends, or authorized or made any distribution upon > > or with respect to any class or series of its capital stock, (ii) incurred > > any indebtedness for money borrowed or any other liabilities outside of the > > ordinary course of business, individually in excess of $100,000 or, in the > > case of indebtedness and/or liabilities individually less than $100,000, in > > excess of $200,000 in the aggregate, (iii) made any loans or advances to any > > person, other than ordinary advances for travel expenses and trade-related > > loans in the ordinary course of business, or (iii) sold, exchanged or > > otherwise disposed of any of its assets or rights, other than the sale of > > its inventory in the ordinary course of business. > > > > (c) For the purposes of subsections (a) and (b) above, all indebtedness, > > liabilities, agreements, understandings, instruments, contracts and proposed > > transactions involving the same person or entity (including persons or > > entities the Company has reason to believe are affiliated therewith) shall > > be aggregated for the purpose of meeting the individual minimum dollar > > amounts of such subsections. > > > > (d) Except as set forth in the SEC Reports, the Company has not engaged in > > the past two years in any discussion (i) with any representative of any > > corporation or corporations regarding the consolidation or merger of the > > Company with or into any such corporation or corporations, (ii) with any > > corporation, partnership, association or other business entity or any > > individual regarding the sale, conveyance or disposition of all or > > substantially all of the assets of the Company, or a transaction or series > > of related transactions in which more than 50% of the voting power of the > > Company is disposed of or (iii) regarding any liquidation, dissolution or > > winding up of the Company.
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> 4.7 Obligations to Related Parties. Except as set forth in the SEC Reports, > there are no obligations of the Company to officers, directors, stockholders > or employees of the Company other than (a) for payment of salary for services > rendered, (b) reimbursement for reasonable expenses incurred on behalf of the > Company and (c) for other standard employee benefits made generally available > to all employees (including stock option agreements outstanding under any > stock option plan approved by the Board of Directors of the Company). Except > as set forth in the SEC Reports, none of the officers, directors or > stockholders of the Company, or any members of their immediate families, are > indebted to the Company. Except as set forth in the SEC Reports, none of the > officers, directors or, to the best of the Company's knowledge, key employees > or stockholders of the Company or any members of their immediate families, are > indebted to the Company or have any direct or indirect ownership interest in > any firm or corporation with which the Company is affiliated or with which the > Company has a business relationship, or any firm or corporation which competes > with the Company, other than passive investments in publicly traded companies > (representing less than 1% of such company) which may compete with the > Company. Other than as described in the SEC Reports, no officer, director or > stockholder, or any member of their immediate families, is, directly or > indirectly, interested in any material contract with the Company and no > agreements, understandings or proposed transactions are contemplated between > the Company and any such person. The Company is not a guarantor or indemnitor > of any indebtedness of any other person, firm or corporation.
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> 4.8 Changes. Since June 30, 2002, there has not been: > > > (a) Any change in the assets, liabilities, financial condition, prospects or > > operations of the Company, other than changes in the ordinary course of > > business, none of which individually or in the aggregate has had or is > > reasonably expected to have a material adverse effect on such assets, > > liabilities, financial condition, prospects or operations of the Company; > > > > (b) Any resignation or termination of any officer, key employee or group of > > employees of the Company; > > > > (c) Any material change, except in the ordinary course of business, in the > > contingent obligations of the Company by way of guaranty, endorsement, > > indemnity, warranty or otherwise; > > > > (d) Any damage, destruction or loss, whether or not covered by insurance, > > materially and adversely affecting the properties, business or prospects or > > financial condition of the Company; > > > > (e) Any waiver by the Company of a valuable right or of a material debt owed > > to it; > > > > (f) Any direct or indirect loans made by the Company to any stockholder, > > employee, officer or director of the Company, other than advances made in > > the ordinary course of business; > > > > (g) Any material change in any compensation arrangement or agreement with > > any employee, officer, director or stockholder; > > > > (h) Any declaration or payment of any dividend or other distribution of the > > assets of the Company; > > > > (i) Any labor organization activity related to the Company; > > > > (j) Any debt, obligation or liability incurred, assumed or guaranteed by the > > Company, except those for immaterial amounts and for current liabilities > > incurred in the ordinary course of business; > > > > (k) Any sale, assignment or transfer of any patents, trademarks, copyrights, > > trade secrets or other intangible assets; > > > > (l) Any change in any material agreement to which the Company is a party or > > by which it is bound which may materially and adversely affect the business, > > assets, liabilities, financial condition, operations or prospects of the > > Company; > > > > (m) Any other event or condition of any character relating to the Company > > that, either individually or cumulatively, has or is reasonably expected to > > have a material effect on the business, financial condition, or results of > > operations of the Company; or > > > > (n) Any arrangement or commitment by the Company to do any of the acts > > described in subsection (a) through (m) above.
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> 4.9 Title to Properties and Assets; Liens, Etc. The Company has good and > marketable title to its properties and assets, and good title to its leasehold > estates, in each case subject to no mortgage, pledge, lien, lease, encumbrance > or charge, other than (a) those resulting from taxes which have not yet become > delinquent, (b) minor liens and encumbrances which do not materially detract > from the value of the property subject thereto or materially impair the > operations of the Company, and (c) those that have otherwise arisen in the > ordinary course of business. All facilities, machinery, equipment, fixtures, > vehicles and other properties owned, leased or used by the Company are in good > operating condition and repair and are reasonably fit and usable for the > purposes for which they are being used. The Company is in compliance with all > material terms of each lease to which it is a party or is otherwise bound. > > 4.10 Intellectual Property. > > > (a) To the knowledge of the Company, the Company owns or possesses > > sufficient legal rights to all patents, trademarks, service marks, trade > > names, copyrights, trade secrets, licenses, information and other > > proprietary rights and processes necessary for its business as now conducted > > and as presently proposed to be conducted (the "Intellectual Property"), > > without any known infringement of the rights of others. > > > > (b) The Company has not received any communications alleging that the > > Company has violated any of the patents, trademarks, service marks, trade > > names, copyrights or trade secrets or other proprietary rights of any other > > person or entity, nor is the Company aware of any basis therefor. > > > > (c) The Company does not believe it is or will be necessary to utilize any > > inventions, trade secrets or proprietary information of any of its employees > > made prior to their employment by the Company, except for inventions, trade > > secrets or proprietary information that have been rightfully assigned to the > > Company. > > 4.11 Compliance with Other Instruments. The Company is not in violation or > default of any term of its Charter or Bylaws, or of any provision of any > mortgage, indenture, contract, agreement, instrument or contract to which it > is party or by which it is bound or of any judgment, decree, order or writ. > The execution, delivery and performance of and compliance with this Agreement > and the Related Agreements, and the issuance and sale of Securities pursuant > hereto, will not, with or without the passage of time or giving of notice, > result in any such material violation, or be in conflict with or constitute a > default under any such term or provision, or result in the creation of any > mortgage, pledge, lien, encumbrance or charge upon any of the properties or > assets of the Company or the suspension, revocation, impairment, forfeiture or > nonrenewal of any permit, license, authorization or approval applicable to the > Company, its business or operations or any of its assets or properties. > > 4.12 Litigation. To the knowledge of the Company, there is no action, suit, > proceeding or investigation pending or currently threatened against the > Company that questions the validity of this Agreement or the Related > Agreements or the right of the Company to enter into any of such agreements, > or to consummate the transactions contemplated hereby or thereby, or which > might result, either individually or in the aggregate, in any material adverse > change in the assets, condition, affairs or prospects of the Company, > financially or otherwise, or any change in the current equity ownership of the > Company, nor is the Company aware that there is any basis for any of the > foregoing. The Company is not a party or subject to the provisions of any > order, writ, injunction, judgment or decree of any court or government agency > or instrumentality. There is no action, suit, proceeding or investigation by > the Company currently pending or which the Company intends to initiate.
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> 4.13 Tax Returns and Payments. The Company has timely filed all tax returns > (federal, state and local) required to be filed by it. All taxes shown to be > due and payable on such returns, any assessments imposed, and to the Company's > knowledge all other taxes due and payable by the Company on or before the > Closing, have been paid or will be paid prior to the time they become > delinquent. The Company has not been advised (a) that any of its returns, > federal, state or other, have been or are being audited as of the date hereof, > or (b) of any deficiency in assessment or proposed judgment to its federal, > state or other taxes. The Company has no knowledge of any liability of any tax > to be imposed upon its properties or assets as of the date of this Agreement > that is not adequately provided for. > > 4.14 Employees. The Company has no collective bargaining agreements with any > of its employees. There is no labor union organizing activity pending or, to > the Company's knowledge, threatened with respect to the Company. Other than as > disclosed in the SEC Reports, the Company is not a party to or bound by any > currently effective employment contract, deferred compensation arrangement, > bonus plan, incentive plan, profit sharing plan, retirement agreement or other > employee compensation plan or agreement. To the Company's knowledge, no > employee of the Company, nor any consultant with whom the Company has > contracted, is in violation of any term of any employment contract, > proprietary information agreement or any other agreement relating to the right > of any such individual to be employed by, or to contract with, the Company > because of the nature of the business to be conducted by the Company; and to > the Company's knowledge the continued employment by the Company of its present > employees, and the performance of the Company's contracts with its independent > contractors, will not result in any such violation. The Company is not aware > that any of its employees is obligated under any contract (including licenses, > covenants or commitments of any nature) or other agreement, or subject to any > judgment, decree or order of any court or administrative agency, that would > interfere with their duties to the Company. The Company has not received any > notice alleging that any such violation has occurred. Other than as disclosed > in the SEC Reports, no employee of the Company has been granted the right to > continued employment by the Company or to any material compensation following > termination of employment with the Company. The Company is not aware that any > officer, key employee or group of employees intends to terminate his, her or > their employment with the Company, nor does the Company have a present > intention to terminate the employment of any officer, key employee or group of > employees. > > 4.15 Registration Rights and Voting Rights. Other than as disclosed in the SEC > Reports, the Company is presently not under any obligation, and has not > granted any rights, to register any of the Company's presently outstanding > securities or any of its securities that may hereafter be issued. To the > Company's knowledge, no stockholder of the Company has entered into any > agreement with respect to the voting of equity securities of the Company.
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> 4.16 Compliance with Laws; Permits. To its knowledge, the Company is not in > violation of any applicable statute, rule, regulation, order or restriction of > any domestic or foreign government or any instrumentality or agency thereof in > respect of the conduct of its business or the ownership of its properties > which violation would materially and adversely affect the business, assets, > liabilities, financial condition, operations or prospects of the Company. No > governmental orders, permissions, consents, approvals or authorizations are > required to be obtained and no registrations or declarations are required to > be filed in connection with the execution and delivery of this Agreement and > the issuance of any of the Securities, except such as has been duly and > validly obtained or filed, or with respect to any filings that must be made > after the Closing, as will be filed in a timely manner. The Company has all > franchises, permits, licenses and any similar authority necessary for the > conduct of its business as now being conducted by it, the lack of which could > materially and adversely affect the business, properties, prospects or > financial condition of the Company. > > 4.17 Environmental and Safety Laws. To its knowledge, the Company is not in > violation of any applicable statute, law or regulation relating to the > environment or occupational health and safety, and to its knowledge, no > material expenditures are or will be required in order to comply with any such > existing statute, law or regulation. No Hazardous Materials (as defined below) > are used or have been used, stored, or disposed of by the Company or, to the > Company's knowledge, by any other person or entity on any property owned, > leased or used by the Company. For the purposes of the preceding sentence, > "Hazardous Materials" shall mean (a) materials which are listed or otherwise > defined as "hazardous" or "toxic" under any applicable local, state, federal > and/or foreign laws and regulations that govern the existence and/or remedy of > contamination on property, the protection of the environment from > contamination, the control of hazardous wastes, or other activities involving > hazardous substances, including building materials, or (b) any petroleum > products or nuclear materials. > > 4.18 Valid Offering. Assuming the accuracy of the representations and > warranties of the Purchaser contained in this Agreement, the offer, sale and > issuance of the Securities will be exempt from the registration requirements > of the Securities Act of 1933, as amended (the "Securities Act"), and will > have been registered or qualified (or are exempt from registration and > qualification) under the registration, permit or qualification requirements of > all applicable state securities laws. Neither the Company nor any agent on its > behalf has solicited or will solicit any offers to sell or has offered to sell > or will offer to sell all or any part of the Securities to any person or > persons so as to cause the sale of such Securities by the Company to fail to > be exempt under the registration provisions of the Securities Act or any state > securities laws. > > 4.19 Full Disclosure. The Company has provided the Purchaser with all > information requested by the Purchaser in connection with its decision to > purchase the Preferred Stock and Warrant. Neither this Agreement, the exhibits > and schedules hereto, or the Related Agreements contain any untrue statement > of a material fact nor omit to state a material fact necessary in order to > make the statements contained herein or therein, in light of the circumstances > in which they are made, not misleading. Any financial projections and other > estimates provided to the Purchaser by the Company were based on the Company's > experience in the industry and on assumptions of fact and opinion as to future > events which the Company, at the date of the issuance of such projections or > estimates, believed to be reasonable. As of the date hereof no facts have come > to the attention of the Company that would, in its opinion, require the > Company to revise or amplify in any material respect the assumptions > underlying such projections and other estimates or the conclusions derived > therefrom.
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> 4.20 Insurance. The Company has general commercial, product liability, fire > and casualty insurance policies with coverage customary for companies > similarly situated to the Company. > > 4.21 SEC Reports. The Company has filed all proxy statements, reports and > other documents required to be filed by it under the Exchange Act for all > periods since January 1, 2001. The Company has furnished the Purchaser with > copies of (i) its Annual Report on Form 10-K for the fiscal year ended > December 31, 2001 and (ii) its Quarterly Reports on Form 10-Q for the fiscal > quarters ended March 31, 2002 and June 30, 2002 (collectively, the "SEC > Reports"). Each SEC Report was in substantial compliance with the requirements > of its respective form and none of the SEC Reports, nor the financial > statements (and the notes thereto) included in the SEC Reports, as of their > respective dates, contained any untrue statement of a material fact or omitted > to state a material fact required to be stated therein or necessary to make > the statements therein, in light of the circumstances under which they were > made, not misleading. > > 4.22 No Market Manipulation. The Company has not taken, and will not take, > directly or indirectly, any action designed to, or that might reasonably be > expected to, cause or result in stabilization or manipulation of the price of > the Common Stock of the Company in violation of applicable securities laws. > > 4.23 No Integrated Offering. Neither the Company, nor any of its affiliates, > nor any person acting on its or their behalf, has directly or indirectly made > any offers or sales of any security or solicited any offers to buy any > security under circumstances that would cause the offering of the Securities > pursuant to this Agreement to be integrated with prior offerings by the > Company for purposes of the Securities Act which would prevent the Company > from selling the Securities pursuant to Rule 506 under the Securities Act, or > any applicable exchange-related stockholder approval provisions. Nor will the > Company or any of its affiliates or subsidiaries take any action or steps that > would cause the offering of the Securities to be integrated with other > offerings. > > 4.24 Stop Transfer. The Securities are restricted securities as of the date of > this Agreement. The Company will not issue any stop transfer order or other > order impeding the sale and delivery of any of the Securities at such time as > the Securities are registered for public sale or an exemption from > registration is available in the opinion of the Company, except as required by > federal securities laws. > > 4.25 Dilution. The Company understands the nature of the Securities being sold > hereby and recognizes that they may have a potential dilutive effect. The > Company specifically acknowledges that its obligation to issue the shares of > Common Stock upon conversion of the Preferred Stock and exercise of the > Warrant is binding upon the Company and enforceable regardless of the dilution > such issuance may have on the ownership interests of other shareholders of the > Company.
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5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
> The Purchaser hereby represents and warrants to the Company as of the date of > this Agreement as set forth below. > > 5.1 Requisite Power and Authority. Purchaser has all necessary power and > authority under all applicable provisions of law to execute and deliver this > Agreement and the Related Agreements and to carry out their provisions. All > action on Purchaser's part required for the lawful execution and delivery of > this Agreement and the Related Agreements have been or will be effectively > taken prior to the Closing. Upon their execution and delivery, this Agreement > and the Related Agreements will be valid and binding obligations of Purchaser, > enforceable in accordance with their terms, except (a) as limited by > applicable bankruptcy, insolvency, reorganization, moratorium or other laws of > general application affecting enforcement of creditors' rights, and (b) as > limited by general principles of equity that restrict the availability of > equitable remedies. > > 5.2 Investment Representations. Purchaser understands that the Securities are > being offered and sold pursuant to an exemption from registration contained in > the Securities Act based in part upon Purchaser's representations contained in > the Agreement. > > 5.3 Purchaser Bears Economic Risk. Purchaser has substantial experience in > evaluating and investing in private placement transactions of securities in > companies similar to the Company so that it is capable of evaluating the > merits and risks of its investment in the Company and has the capacity to > protect its own interests. Purchaser must bear the economic risk of this > investment until the Securities are registered pursuant to the Securities Act, > or an exemption from registration is available. > > 5.4 Acquisition for Own Account. Purchaser is acquiring the Preferred Stock > for Purchaser's own account for investment only, and not with a view towards > its resale or distribution. > > 5.5 Purchaser Can Protect Its Interest. Purchaser represents that by reason of > its, or of its management's, business or financial experience, Purchaser has > the capacity to protect its own interests in connection with the transactions > contemplated in this Agreement, and the Related Agreements. Further, Purchaser > is aware of no publication of any advertisement in connection with the > transactions contemplated in the Agreement.
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> 5.6 Accredited Investor. Purchaser represents that it is an accredited > investor within the meaning of Regulation D under the Securities Act. > > 5.7 Legends. > > > (a) The Preferred Stock shall bear the following legend until the Preferred > > Stock and Conversion Shares are covered by an effective registration > > statement filed with the Securities and Exchange Commission (the "SEC"): > > > > "THESE SHARES OF PREFERRED STOCK AND THE COMMON STOCK ISSUABLE UPON > > CONVERSION OF THE PREFERRED STOCK HAVE NOT BEEN REGISTERED UNDER THE > > SECURITIES ACT OF 1933, AS AMENDED, OR, IF APPLICABLE, STATE SECURITIES > > LAWS. THESE SHARES OF PREFERRED STOCK AND THE COMMON STOCK ISSUABLE UPON > > CONVERSION OF THE PREFERRED STOCK MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED > > OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO > > THE PREFERRED STOCK OR SUCH SHARES UNDER SAID ACT AND APPLICABLE STATE > > SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO SOCKET > > COMMUNICATIONS, INC. THAT SUCH REGISTRATION IS NOT REQUIRED." > > > > (b) The Conversion Shares and the Warrant Shares shall bear a legend which > > shall be in substantially the following form until such shares are covered > > by an effective registration statement filed with the SEC: > > > > "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER > > THE SECURITIES ACT OF 1933, AS AMENDED, OR IF APPLICABLE, STATE SECURITIES > > LAWS. THESE SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR > > HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER > > SUCH SECURITIES ACT AND APPLICABLE STATE LAWS OR AN OPINION OF COUNSEL > > REASONABLY SATISFACTORY TO SOCKET COMMUNICATIONS, INC. THAT SUCH > > REGISTRATION IS NOT REQUIRED." > > > > (c) The Warrant shall bear the following legend: > > > > "THIS WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT > > HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR > > APPLICABLE STATE SECURITIES LAWS. THIS WARRANT AND THE COMMON SHARES > > ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT BE SOLD, OFFERED FOR SALE, > > PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION > > STATEMENT AS TO THIS WARRANT OR THE UNDERLYING SHARES OF COMMON STOCK UNDER > > SAID ACT AND APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL > > REASONABLY SATISFACTORY TO SOCKET COMMUNICATIONS, INC. THAT SUCH > > REGISTRATION IS NOT REQUIRED." > > 5.8 Non-Shorting. The Purchaser has not, will not and will not cause, advise, > ask or assist any person or entity to engage in "short sales" of the Company's > Common Stock. Neither Purchaser, nor any person or entity controlled by, > controlling or under common control with, the Purchaser, has engaged, or will > engage for so long as any Preferred Stock remains outstanding, directly or > indirectly, in any short sale (whether or not "against the box") of shares of > the Company's Common Stock or any security or instrument whose value is > otherwise based on the value of the Company's Common Stock. The Purchaser has > not and will not for so long as any Preferred Stock remains outstanding, > cause, advise, ask or assist any person or entity to engage in any short sale > (whether or not "against the box") of shares of the Company's Common Stock or > any security or instrument whose value is otherwise based on the value of the > Company's Common Stock. The Company acknowledges that the Purchaser may sell > shares of Common Stock issuable (i) upon conversion of Preferred Stock to be > converted in accordance with a valid Notice of Conversion (as such term is > defined in Section 6(c) of the Certificate of Designation) delivered by the > Purchaser to the Company, or (ii) in payment of Monthly Amount (as such term > is defined in Section 4(a) of the Certificate of Incorporation) that the > Company has elected to pay in stock pursuant to a valid Repayment Election > Notice (as such term is defined in Section 4(b) of the Certificate of > Incorporation) delivered by the Company to the Purchaser. Such sales shall not > be deemed "short sales," notwithstanding the fact that Purchaser may not be in > actual receipt of such shares of Common Stock prior to the date of sale.
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6. COVENANTS OF THE COMPANY. So long as the Preferred Stock remains outstanding, the Company covenants and agrees with the Purchaser as follows:
> 6.1 Stop-Orders. Subject to compliance with applicable securities laws, the > Company will advise the Purchaser, promptly after it receives notice of > issuance by the Securities and Exchange Commission (the "SEC"), any state > securities commission or any other regulatory authority of any stop order or > of any order preventing or suspending any offering of any securities of the > Company, or of the suspension of the qualification of the Common Stock of the > Company for offering or sale in any jurisdiction, or the initiation of any > proceeding for any such purpose. > > 6.2 Listing. The Company shall promptly secure the listing of the shares of > Common Stock issuable upon conversion of the Preferred Stock and upon the > exercise of the Warrant on the Pink Sheets, the NASD OTC Bulletin Board, > NASDAQ SmallCap Market, NASDAQ National Market, American Stock Exchange, > Pacific Exchange, or New York Stock Exchange (the "Principal Market") upon > which shares of Common Stock are then listed (subject to official notice of > issuance) and shall use reasonable efforts to maintain such listing so long as > any other shares of Common Stock shall be so listed. The Company will maintain > the listing of its Common Stock on a Principal Market, and will comply in all > material respects with the Company's reporting, filing and other obligations > under the bylaws or rules of the National Association of Securities Dealers > ("NASD") and such exchanges, as applicable. > > 6.3 Market Regulations. The Company shall notify the SEC, NASD and applicable > state authorities, to the extent required under applicable regulations, of the > transactions contemplated by this Agreement, and shall take all other > necessary action and proceedings as may be required and permitted by > applicable law, rule and regulation, for the legal and valid issuance of the > Securities to Purchaser.
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> 6.4 Reporting Requirements. The Company will use reasonable efforts to timely > file with the SEC all reports required to be filed pursuant to the Exchange > Act and refrain from terminating its status as an issuer required by the > Exchange Act to file reports thereunder even if the Exchange Act or the rules > or regulations thereunder would permit such termination. > > 6.5 Use of Funds. The Company agrees that it will use the proceeds of the sale > of the Preferred Stock and Warrant for general corporate purposes only > (including payment of current obligations pursuant to the Company's bank > credit facilities and pursuant to its agreements with Nokia Corp.), in the > ordinary course of its business and consistent with past practice. > > 6.6 Access to Directors, Officers and Accountants. Subject to compliance with > applicable securities laws, the Company will permit any representatives > designated by the Purchaser (or any transferee of the Purchaser), upon > reasonable notice and during normal business hours, to discuss the affairs, > finances and accounts of any such corporations with the directors, officers > and independent accountants of the Company. > > 6.7 Books and Records. The Company will keep true records and books of account > in which full, true and correct entries will be made of all dealings or > transactions in relation to its business and affairs in accordance with > generally accepted accounting principles applied on a consistent basis. > > 6.8 Confidentiality. The Company agrees that it will not disclose, and will > not include in any public announcement, the name of the Purchaser, unless > expressly agreed to by the Purchaser or unless and until such disclosure is > required by law or applicable regulation, and then only to the extent of such > requirement. > > 6.9 Corporate Existence. The Company shall maintain its corporate existence, > and will not voluntarily liquidate or dissolve. In addition, the Company shall > not sell all or substantially all of the Company's assets, except (i) in the > event of a merger or consolidation or sale or transfer of all or substantially > all of the Company's assets where the surviving or successor entity in such > transaction assumes the Company's obligations hereunder and the Related > Agreements and such surviving or successor corporation is a publicly traded > company whose common stock is quoted or listed on a Principal Market, or (ii) > if the Company offers to redeem the Preferred Stock for cash immediately prior > to the closing of such transaction.
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> 6.10 Reissuance of Securities. The Company agrees to reissue certificates > representing the Securities without the legends set forth in Section 5.7 above > at such time as (a) the holder thereof is permitted to dispose of such > Securities pursuant to Rule 144(k) under the Securities Act, or (b) upon > resale subject to an effective registration statement after such Securities > are registered under the Securities Act. The Company agrees to cooperate with > the Purchaser in connection with all resales pursuant to Rule 144(d) and Rule > 144(k) and provide such legal opinions as, in the opinion of the Company's > securities counsel, are appropriate and permissible, and are necessary to > allow such resales provided the Company and its counsel receive reasonably > requested representations from the selling Purchaser and broker, if any. > > 6.11 Opinion. On the Closing Date, the Company will deliver to the Purchaser > an opinion acceptable to the Purchaser from the Company's legal counsel in the > form annexed hereto as Exhibit C. The Company will provide, at the Company's > expense, such other legal opinions in the future as, in the opinion of the > Company's securities counsel, are appropriate and permissible, and are > reasonably necessary for the conversion of the Preferred Stock and exercise of > the Warrants.
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7. COVENANTS OF THE COMPANY AND PURCHASER REGARDING INDEMNIFICATION.
> 7.1 Company Indemnification. The Company agrees to indemnify, hold harmless, > reimburse and defend Purchaser, each of Purchaser's officers, directors, > agents, affiliates, control persons, and principal shareholders, against any > claim, cost, expense, liability, obligation, loss or damage (including > reasonable legal fees) of any nature, incurred by or imposed upon the > Purchaser which results, arises out of or is based upon (i) any > misrepresentation by Company or breach of any warranty by Company in this > Agreement or in any exhibits or schedules attached hereto or any Related > Agreement, or (ii) any breach or default in performance by Company of any > covenant or undertaking to be performed by Company hereunder, or any other > agreement entered into by the Company and Purchaser relating hereto. > > 7.2 Purchaser's Indemnification. Purchaser agrees to indemnify, hold harmless, > reimburse and defend the Company and each of the Company's officers, > directors, agents, affiliates, control persons and principal shareholders, at > all times against any claim, cost, expense, liability, obligation, loss or > damage (including reasonable legal fees) of any nature, incurred by or imposed > upon the Company which results, arises out of or is based upon (i) any > misrepresentation by Purchaser or breach of any warranty by Purchaser in this > Agreement or in any exhibits or schedules attached hereto or any Related > Agreement; or (ii) any breach or default in performance by Purchaser of any > covenant or undertaking to be performed by Purchaser hereunder, or any other > agreement entered into by the Company and Purchaser relating hereto. > > 7.3 Procedures. The procedures and limitations set forth in Section 9.6 shall > apply to the indemnifications set forth in Sections 7.1 and 7.2 above.
8. RESTRICTIONS ON TRANSFER. The Purchaser agrees not to make any disposition of all or any portion of the Preferred Stock, Conversion Shares, or Warrant Shares unless and until the transferee has agreed in writing to be bound by the terms of this Agreement and the Related Agreements, and (i) there is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with such registration statement or (ii) (A) the Purchaser shall have notified the Company of the proposed disposition and shall have furnished the Company with a detailed statement of the circumstances surrounding the proposed disposition, (B) if requested by the Company, the Purchaser shall have furnished the Company with an opinion of counsel, satisfactory to the Company, that such disposition will not require registration of such shares under the Securities Act, and (C) such transfer is otherwise in compliance with the Related Agreements.
9. REGISTRATION RIGHTS.
> 9.1 Registration Rights Granted. The Company hereby grants the following > registration rights to the Purchaser and any transferee of the Conversion > Shares or the Warrant Shares. > > > (a) The Company shall use its reasonable commercial efforts to file a Form > > S-3 registration statement (or such other form that it is eligible to use) > > in order to register the Conversion Shares and the Warrant Shares for resale > > and distribution under the Securities Act with the SEC within 30 days of the > > Closing Date (the "Filing Date"), and use its reasonable commercial efforts > > to cause such registration statement to be declared effective within 90 days > > of the Filing Date (the "Effective Date"). The Company will register at > > least 2,500,000 shares of Common Stock. The Conversion Shares and Warrant > > Shares shall be reserved and set aside exclusively for the benefit of the > > Purchaser and the holders of the Warrant, as the case may be, and not > > issued, employed or reserved for anyone other than the Purchaser and the > > holders of the Warrant. Such registration statement will be promptly amended > > or additional registration statements will be promptly filed by the Company > > as necessary to register any additional shares of Common Stock which may be > > issuable in respect of the Conversion Shares and the Warrant Shares, to > > allow the public resale of all such Common Stock. > > 9.2 Registration Procedures. If and whenever the Company is required by the > provisions hereof to effect the registration of any shares of Registrable > Securities under the Securities Act, the Company will, as expeditiously as > reasonably practicable: > > > (a) comply with Section 9.1 hereof; > > > > (b) prepare and file with the SEC such amendments and supplements to such > > registration statement and the prospectus used in connection therewith as > > may be necessary to avoid a Non-Registration Event (as defined below) > > through the earlier of: (i) six months after the expiration or exercise of > > the Warrant or (ii) such time as all Conversion Shares and Warrant Shares > > have been sold to the public or may be sold to the public in a single > > quarter pursuant to an applicable registration or exemption; > > > > (c) furnish to the Purchaser, and to each underwriter if any, such number of > > copies of the registration statement and the prospectus included therein > > (including each preliminary prospectus) as such persons reasonably may > > request to facilitate the public sale or their disposition of the securities > > covered by such registration statement; > > > > (d) use its reasonable commercial efforts to register or qualify the > > Purchaser's Common Stock covered by such registration statement under the > > securities or "blue sky" laws of such jurisdictions as the Purchaser and in > > the case of an underwritten public offering, the managing underwriter shall > > reasonably request, provided, however, that the Company shall not for any > > such purpose be required to qualify generally to transact business as a > > foreign corporation in any jurisdiction where it is not so qualified or to > > consent to general service of process in any such jurisdiction; > > > > (e) list the Common Stock covered by such registration statement with the > > Nasdaq Stock Market or on any securities exchange on which the Common Stock > > of the Company is then listed; and > > > > (f) as soon as practicable notify the Purchaser and each underwriter under > > such registration statement at any time when a prospectus relating thereto > > is required to be delivered under the Securities Act, of the happening of > > any event of which the Company has knowledge as a result of which, in the > > Company's reasonable judgment, the prospectus contained in such registration > > statement, as then in effect, includes an untrue statement of a material > > fact or omits to state a material fact required to be stated therein or > > necessary to make the statements therein not misleading in light of the > > circumstances then existing.
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> 9.3 Provision of Documents. In connection with each registration hereunder, > the Purchaser will furnish to the Company in writing such information and > representation letters with respect to itself and the proposed distribution by > it as reasonably shall be necessary in order to assure compliance with federal > and applicable state securities laws. > > 9.4 Non-Registration Events. If the registration statement on Form S-3 or such > other form as described in Section 9.1(a) (i) is not filed on or before the > Filing Date, (ii) is not declared effective on or before the sooner of the > Effective Date, or within three days of receipt by the Company of a > communication from the SEC that the registration statement described in > Section 9.1(a) will not be reviewed, (iii) is not, within 60 days of receipt > of a written request from the Holders, amended (or supplemented by filing of > an additional registration statement) to register for resale additional > Conversion Shares that are expected to be issuable based on the Conversion > Price then in effect, or (iv) is filed and declared effective but shall > thereafter cease to be effective (without being succeeded immediately by an > additional registration statement filed and declared effective) for a period > of time which shall exceed 120 days in the aggregate per year but not more > than 60 consecutive calendar days (defined as a period of 365 days commencing > on the date the Registration Statement is declared effective) (each such event > referred to in this Section 9.4 is referred to herein as a "Non-Registration > Event"), then, for so long as such Non-Registration Event shall continue, the > Company shall pay in cash or Common Stock with an equivalent fair market value > as liquidated damages in lieu of any other legal or equitable recourse to each > holder of any Conversion Shares or Warrant Shares an amount equal to one > percent (1%) per month or part thereof during the pendency of such > Non-Registration Event of the fair market value of such Conversion Shares or > Warrant Shares as of the end of such month then owned of record by such holder > or issuable to such holder as of or subsequent to the occurrence of such > Non-Registration Event. Payments to be made pursuant to this Section shall be > due and payable immediately upon demand in immediately available funds or > Common Stock with an equivalent fair market value.
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> 9.5 Expenses. All expenses incurred by the Company in complying with Section > 9, including, without limitation, all registration and filing fees, printing > expenses, fees and disbursements of counsel and independent public accountants > for the Company, fees and expenses (including reasonable counsel fees) > incurred in connection with complying with state securities or "blue sky" > laws, fees of the NASD, transfer taxes, fees of transfer agents and > registrars, and costs of insurance are called "Registration Expenses". All > underwriting discounts and selling commissions applicable to the sale of > Conversion Shares and the Warrant Shares, including any fees and disbursements > of any special counsel to the Purchaser, are called "Selling Expenses." The > Company will pay all Registration Expenses in connection with the registration > statement under Section 9. All Selling Expenses in connection with each > registration statement under Section 9 shall be borne by the Purchaser. > > 9.6 Indemnification and Contribution. > > > (a) In the event of a registration of any Conversion Shares or Warrant > > Shares under the Securities Act pursuant to Section 9, the Company will > > indemnify and hold harmless the Purchaser, each officer and director of the > > Purchaser, each underwriter of such Conversion Shares and Warrant Shares > > thereunder and each other person, if any, who controls the Purchaser or > > underwriter within the meaning of the Securities Act, against any losses, > > claims, damages or liabilities, joint or several, to which the Purchaser, or > > such underwriter or controlling person may become subject under the > > Securities Act or otherwise, insofar as such losses, claims, damages or > > liabilities (or actions in respect thereof) arise out of or are based upon > > any untrue statement or alleged untrue statement of any material fact > > contained in any registration statement under which such Conversion Shares > > or Warrant Shares were registered under the Securities Act pursuant to > > Section 9, any preliminary prospectus or final prospectus contained therein, > > or any amendment or supplement thereof, or arise out of or are based upon > > the omission or alleged omission to state therein a material fact required > > to be stated therein or necessary to make the statements therein not > > misleading, and will reimburse the Purchaser, each such underwriter and each > > such controlling person for any legal or other expenses reasonably incurred > > by them in connection with investigating or defending any such loss, claim, > > damage, liability or action; provided, however, that the Company will not be > > liable in any such case if and to the extent that any such loss, claim, > > damage or liability arises out of or is based upon an untrue statement or > > alleged untrue statement or omission or alleged omission so made in > > conformity with information furnished by the Purchaser, the underwriter or > > any such controlling person in writing specifically for use in such > > registration statement or prospectus, and provided further that the Company > > will not be liable for any loss, claim, damage or liability arising out of > > any failure of the Purchaser to deliver to any purchaser of Conversion > > Shares or Warrant Shares any amended prospectus or prospectus supplement > > supplied by the Company.
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> > (b) In the event of a registration of any of the Conversion Shares or > > Warrant Shares under the Securities Act pursuant to Section 9, the Purchaser > > will indemnify and hold harmless the Company, and each person, if any, who > > controls the Company within the meaning of the Securities Act, and each > > officer and director of the Company, against all losses, claims, damages or > > liabilities, joint or several, to which the Company or such officer or > > director may become subject under the Securities Act or otherwise, insofar > > as such losses, claims, damages or liabilities (or actions in respect > > thereof) arise out of or are based upon any untrue statement or alleged > > untrue statement of any material fact contained in the registration > > statement under which such Conversion Shares or Warrant Shares were > > registered under the Securities Act pursuant to Section 9, any preliminary > > prospectus or final prospectus contained therein, or any amendment or > > supplement thereof, or arise out of or are based upon the omission or > > alleged omission to state therein a material fact required to be stated > > therein or necessary to make the statements therein not misleading, and will > > reimburse the Company and each such officer or director for any legal or > > other expenses reasonably incurred by them in connection with investigating > > or defending any such loss, claim, damage, liability or action, provided, > > however, that the Purchaser will be liable hereunder in any such case if and > > only to the extent that any such loss, claim, damage or liability arises out > > of or is based upon an untrue statement or alleged untrue statement or > > omission or alleged omission made in reliance upon and in conformity with > > information pertaining to such Purchaser, as such, furnished in writing to > > the Company by such Purchaser specifically for use in such registration > > statement or prospectus, and provided, further, however, that the liability > > of the Seller hereunder shall be limited to the proportion of any such loss, > > claim, damage, liability or expense which is equal to the proportion that > > the public offering price of the Registrable Securities sold by the Seller > > under such registration statement bears to the total public offering price > > of all securities sold thereunder, but not in any event to exceed the net > > proceeds received by the Seller from the sale of Registrable Securities > > covered by such registration statement. > > > > (c) Promptly after receipt by an indemnified party hereunder of notice of > > the commencement of any action, such indemnified party shall, if a claim in > > respect thereof is to be made against the indemnifying party hereunder, > > notify the indemnifying party in writing thereof, but the omission so to > > notify the indemnifying party shall not relieve it from any liability which > > it may have to such indemnified party other than under this Section 9.6(c) > > and shall only relieve it from any liability which it may have to such > > indemnified party under this Section 9.6(c) if and to the extent the > > indemnifying party is prejudiced by such omission. In case any such action > > shall be brought against any indemnified party and it shall notify the > > indemnifying party of the commencement thereof, the indemnifying party shall > > be entitled to participate in and, to the extent it shall wish, to assume > > and undertake the defense thereof with counsel satisfactory to such > > indemnified party, and, after notice from the indemnifying party to such > > indemnified party of its election so to assume and undertake the defense > > thereof, the indemnifying party shall not be liable to such indemnified > > party under this Section 9.6(c) for any legal expenses subsequently incurred > > by such indemnified party in connection with the defense thereof other than > > reasonable costs of investigation and of liaison with counsel so selected, > > provided, however, that, if the defendants in any such action include both > > the indemnified party and the indemnifying party and the indemnified party > > shall have reasonably concluded that there may be reasonable defenses > > available to it which are different from or additional to those available to > > the indemnifying party or if the interests of the indemnified party > > reasonably may be deemed to conflict with the interests of the indemnifying > > party, the indemnified parties shall have the right to select one separate > > counsel and to assume such legal defenses and otherwise to participate in > > the defense of such action, with the reasonable expenses and fees of such > > separate counsel and other expenses related to such participation to be > > reimbursed by the indemnifying party as incurred. > > > > (d) In order to provide for just and equitable contribution in the event of > > joint liability under the Act in any case in which either (i) the Purchaser, > > or any controlling person of the Purchaser, makes a claim for > > indemnification pursuant to this Section 9.6 but it is judicially determined > > (by the entry of a final judgment or decree by a court of competent > > jurisdiction and the expiration of time to appeal or the denial of the last > > right of appeal) that such indemnification may not be enforced in such case > > notwithstanding the fact that this Section 9.6 provides for indemnification > > in such case, or (ii) contribution under the Securities Act may be required > > on the part of the Purchaser or controlling person of the Purchaser in > > circumstances for which indemnification is provided under this Section 9.6; > > then, and in each such case, the Company and the Purchaser will contribute > > to the aggregate losses, claims, damages or liabilities to which they may be > > subject (after contribution from others) in such proportion so that the > > Purchaser is responsible only for the portion represented by the percentage > > that the public offering price of its securities offered by the registration > > statement bears to the public offering price of all securities offered by > > such registration statement, provided, however, that, in any such case, (A) > > the Purchaser will not be required to contribute any amount in excess of the > > public offering price of all such securities offered by it pursuant to such > > registration statement; and (B) no person or entity guilty of fraudulent > > misrepresentation (within the meaning of Section 10(f) of the Securities > > Act) will be entitled to contribution from any person or entity who was not > > guilty of such fraudulent misrepresentation.
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10. OFFERING RESTRICTIONS. Except as previously disclosed in the SEC Reports or pursuant to stock or stock options granted to employees, directors or consultants of the Company, or equity or debt issued in connection with an acquisition of a business or assets by the Company, or the issuance by the Company of stock in connection with the establishment of a joint venture partnership or licensing arrangement (these exceptions hereinafter referred to as the "Excepted Issuances"), for so long as any shares of Preferred Stock remain outstanding, the Company will not, without the prior written consent of the Purchaser, issue any securities which are convertible on demand at the option of the holder, and without any right of the Company to preclude such conversion by redemption of such securities for cash or otherwise, into freely tradable shares of Common Stock, where the applicable conversion rate is determined based on the trailing market price of the Common Stock at the time of conversion.
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11. SECURITY INTEREST. As a condition of Closing, the Company will grant to the Purchaser a security interest in its assets pursuant to a Security Agreement in the form attached hereto as Exhibit D to secure the amortization obligations with respect to the Preferred Stock. Such security interest will be subordinate to security interests granted to Greater Bay Bank and any subsequent principal bank or financial institution creditor of the Company. The Purchaser will enter into such subordination or intercreditor agreements as such creditors may reasonably request, provided that the provisions of such agreements shall be subject to negotiation by the parties thereto in good faith. The Company will also execute all such documents as the Purchaser may reasonably request and which are necessary to memorialize and further protect the security interest described above.
12. MISCELLANEOUS.
> 12.1 Governing Law. This Agreement shall be governed by and construed in > accordance with the laws of the State of New York, without regard to > principles of conflicts of laws. Any action brought by either party against > the other concerning the transactions contemplated by this Agreement shall be > brought only in the state courts of New York or in the federal courts located > in the state of New York. Both parties and the individuals executing this > Agreement and other agreements on behalf of the Company agree to submit to the > jurisdiction of such courts and waive trial by jury. > > 12.2 Survival. The representations, warranties, covenants and agreements made > herein (including the indemnity provisions set forth in Section 7) shall > survive any investigation made by the Purchaser and the closing of the > transactions contemplated hereby until the 18 month anniversary of the Closing > Date. All statements as to factual matters contained in any certificate or > other instrument delivered by or on behalf of the Company pursuant hereto in > connection with the transactions contemplated hereby shall be deemed to be > representations and warranties by the Company hereunder solely as of the date > of such certificate or instrument. > > 12.3 Successors and Assigns. Except as otherwise expressly provided herein, > the provisions hereof shall inure to the benefit of, and be binding upon, the > successors, assigns, heirs, executors and administrators of the parties hereto > and shall inure to the benefit of and be enforceable by each person who shall > be a holder of the Securities from time to time. > > 12.4 Entire Agreement. This Agreement, the exhibits and schedules hereto, the > Related Agreements and the other documents delivered pursuant hereto > constitute the full and entire understanding and agreement between the parties > with regard to the subjects hereof and no party shall be liable or bound to > any other in any manner by any representations, warranties, covenants and > agreements except as specifically set forth herein and therein. > > 12.5 Severability. In case any provision of the Agreement shall be invalid, > illegal or unenforceable, the validity, legality and enforceability of the > remaining provisions shall not in any way be affected or impaired thereby.
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> 12.6 Amendment and Waiver. This provisions of this Agreement may be amended, > modified or waived only upon the written consent of the Company and the > Purchaser. > > 12.7 Delays or Omissions. It is agreed that no delay or omission to exercise > any right, power or remedy accruing to any party, upon any breach, default or > noncompliance by another party under this Agreement or the Related Agreements, > shall impair any such right, power or remedy, nor shall it be construed to be > a waiver of any such breach, default or noncompliance, or any acquiescence > therein, or of or in any similar breach, default or noncompliance thereafter > occurring. It is further agreed that any waiver, permit, consent or approval > of any kind or character on the Purchaser's part of any breach, default or > noncompliance under this Agreement, the Preferred Stock or the Related > Agreements or any waiver on such party's part of any provisions or conditions > of the Agreement, the Certificate of Designations or the Related Agreements > must be in writing and shall be effective only to the extent specifically set > forth in such writing. All remedies, either under this Agreement, the > Preferred Stock or the Related Agreements, by law or otherwise afforded to any > party, shall be cumulative and not alternative. > > 12.8 Notices. All notices required or permitted hereunder shall be in writing > and shall be deemed effectively given: (a) upon personal delivery to the party > to be notified, (b) five days after having been sent by registered or > certified mail, return receipt requested, postage prepaid, or (c) one day > after deposit with a nationally recognized overnight courier, specifying next > day delivery, with written verification of receipt. All communications shall > be sent to the Company at the address as set forth on the signature page > hereof, with a copy to Wilson, Sonsini, Goodrich & Rosati, Professional > Corporation, 650 Page Mill Road, Palo Alto, CA 94304, attn: Herbert P Fockler, > Esq., and to the Purchaser at the address set forth on the signature page > hereto, with a copy to Daniel M. Laifer, Esq., 152 West 57th Street, 4th > Floor, New York, NY 10019, or at such other address as the Company or the > Purchaser may designate by ten days advance written notice to the other > parties hereto. > > 12.9 Attorneys' Fees. In the event that any suit or action is instituted to > enforce any provision in this Agreement, the prevailing party in such dispute > shall be entitled to recover from the losing party all fees, costs and > expenses of enforcing any right of such prevailing party under or with respect > to this Agreement, including, without limitation, such reasonable fees and > expenses of attorneys and accountants, which shall include, without > limitation, all fees, costs and expenses of appeals. > > 12.10 Titles and Subtitles. The titles of the sections and subsections of the > Agreement are for convenience of reference only and are not to be considered > in construing this Agreement. > > 12.11 Counterparts. This Agreement may be executed in any number of > counterparts, each of which shall be an original, but all of which together > shall constitute one instrument. > > 12.12 Broker's Fees. Except as set forth in this Agreement, each party hereto > represents and warrants that no agent, broker, investment banker, person or > firm acting on behalf of or under the authority of such party hereto is or > will be entitled to any broker's or finder's fee or any other commission > directly or indirectly in connection with the transactions contemplated > herein, except as specified herein with respect to the Purchaser. Each party > hereto further agrees to indemnify each other party for any claims, losses or > expenses incurred by such other party as a result of the representation in > this Section 12.12 being untrue.
> 12.13 Construction. Each party acknowledges that its legal counsel > participated in the preparation of this Agreement and, therefore, stipulates > that the rule of construction that ambiguities are to be resolved against the > drafting party shall not be applied in the interpretation of this Agreement to > favor any party against the other.
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IN WITNESS WHEREOF, the parties hereto have executed the SECURITIES PURCHASE AGREEMENT as of the date set forth in the first paragraph hereof.
COMPANY: PURCHASERS: SOCKET COMMUNICATIONS, INC. LAURUS MASTER FUND, LTD. By: By: Name: Name: Title: Title: Address: 37400 Central Court Newark, California 94560 Address:
LAURUS MASTER FUND, LTD. c/o Ironshore Corporate Services Ltd. P.O. Box 1234 G.T., Queensgate House, South Church Street Grand Cayman, Cayman Islands
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LIST OF EXHIBITS
Form of Certificate of Designation Exhibit A
Form of Warrant Exhibit B
Form of Opinion Exhibit C
Form of Security Agreement Exhibit D
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EXHIBIT A
CERTIFICATE OF DESIGNATIONS
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EXHIBIT B
FORM OF WARRANT
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EXHIBIT C
FORM OF OPINION
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EXHIBIT D
FORM OF SECURITY AGREEMENT | [
"Exhibit 10.1 SOCKET COMMUNICATIONS, INC. SECURITIES PURCHASE AGREEMENT OCTOBER 3, 2002 -------------------------------------------------------------------------------- TABLE OF CONTENTS Page 1. AGREEMENT TO SELL AND PURCHASE 1 2. FEES AND WARRANTS 1 3. CLOSING, DELIVERY AND PAYMENT 2 3.1 Closing 2 3.2 Delivery 2 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY 2 4.1 Organization, Good Standing and Qualification 2 4.2 Subsidiaries 3 4.3 Capitalization; Voting Rights 3 4.4 Authorization; Binding Obligations 4 4.5 Liabilities 4 4.6 Agreements; Action 4 4.7 Obligations to Related Parties 5 4.8 Changes 6 4.9 Title to Properties and Assets; Liens, Etc 7 4.10 Intellectual Property 7 4.11 Compliance with Other Instruments 7 4.12 Litigation 7 4.13 Tax Returns and Payments 8 4.14 Employees 8 4.15 Registration Rights and Voting Rights 8 4.16 Compliance with Laws; Permits 9 4.17 Environmental and Safety Laws 9 4.18 Valid Offering 9 4.19 Full Disclosure 9 4.20 Insurance 10 4.21 SEC Reports 10 4.22 No Market Manipulation 10 4.23 No Integrated Offering 10 4.24 Stop Transfer 10 4.25 Dilution 10 5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS 11 5.1 Requisite Power and Authority 11 5.2 Investment Representations 11 5.3 Purchaser Bears Economic Risk 11 5.4 Acquisition for Own Account 11 5.5 Purchaser Can Protect Its Interest 11 5.6 Accredited Investor 12 5.7 Legends 12 5.8 No Shorting 12 6.",
"COVENANTS OF THE COMPANY 13 6.1 Stop-Orders 13 6.2 Listing 13 6.3 Market Regulations 13 6.4 Reporting Requirements 14 6.5 Use of Funds 14 6.6 Access to Directors, Officers and Accountants 14 6.7 Books and Records 14 6.8 Confidentiality 14 6.9 Corporate Existence 14 6.10 Reissuance of Securities. 15 6.11 Opinion 15 7. COVENANTS OF THE COMPANY AND PURCHASERS REGARDING INDEMNIFICATION 16 7.1 Company Indemnification 16 7.2 Purchaser's Indemnification 16 7.3 Procedures 16 8. RESTRICTIONS ON TRANSFER 16 9.",
"REGISTRATION RIGHTS 16 9.1 Registration Rights Granted 16 9.2 Registration Procedures 16 9.3 Provision of Documents 17 9.4 Non-Registration Events 17 9.5 Expenses 18 9.6 Indemnification and Contribution 18 10. OFFERING RESTRICTIONS 20 11. SECURITY INTEREST 21 12. MISCELLANEOUS 21 12.1 Governing Law 21 12.2 Survival 21 12.3 Successors and Assigns 21 12.4 Entire Agreement 21 12.5 Severability 21 12.6 Amendment and Waiver 22 12.7 Delays or Omissions 22 12.8 Notices 22 12.9 Attorneys' Fees 22 12.10 Titles and Subtitles 22 12.11 Counterparts 22 12.12 Broker's Fees 22 12.13 Construction 22 > > -------------------------------------------------------------------------------- SOCKET COMMUNICATIONS, INC. SECURITIES PURCHASE AGREEMENT THIS SECURITIES PURCHASE AGREEMENT (the \"Agreement\") is made and entered into as of October 3, 2002, by and between Socket Communications, Inc., a Delaware corporation (the \"Company\"), and Laurus Master Fund, Ltd., a Cayman Islands company (the \"Purchaser\"). RECITALS WHEREAS, the Company has authorized the sale of Series E 12% Convertible Preferred Stock, $0.001 par value (the \"Preferred Stock\") for the aggregate purchase price of $1,000,000, convertible into shares of the Company's common stock, $0.001 par value per share (the \"Common Stock\"); WHEREAS, the Company wishes to issue a warrant to the Purchaser to purchase shares of the Company's Common Stock in connection with Purchaser's purchase of the Preferred Stock; WHEREAS, Purchaser desires to purchase the Preferred Stock and Warrant on the terms and conditions set forth herein; and WHEREAS, the Company desires to issue and sell the Preferred Stock and Warrant to the Purchaser on the terms and conditions set forth herein.",
"AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises, representations, warranties and covenants hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. AGREEMENT TO SELL AND PURCHASE. Pursuant to the terms and conditions set forth in this Agreement, on the Closing Date (as defined in Section 3), the Company agrees to sell to the Purchaser, and the Purchaser hereby agrees to purchase from the Company 100,000 shares of Preferred Stock, convertible in accordance with the terms thereof into shares of the Company's Common Stock, at a purchase price per share of $10. The total purchase price shall be of $1,000,000 (the \"Purchase Price\"). The purchase and sale of the Preferred Stock shall be known as the \"Offering.\"",
"The Certificate of Designation setting forth the rights, preferences and restrictions of the Preferred Stock (the \"Certificate of Designation\") is annexed hereto as Exhibit A. The Preferred Stock will be subject to redemption or conversion as set forth in the Certificate of Designation. Collectively, the Preferred Stock and Warrant (as defined in Section 2) and Common Stock issuable upon conversion of the Preferred Stock and exercise of the Warrant are referred to as the \"Securities.\" 2. FEES AND WARRANTS. > (a) The Company will issue and deliver to the Purchaser a Warrant to purchase > 250,000 shares of Common Stock in connection with the Offering (the \"Warrant\") > pursuant to Section 1 hereof.",
"The Warrant must be delivered on the Closing > Date. A form of Warrant is annexed hereto as Exhibit B. All the > representations and warranties made for the benefit of the Purchaser by the > Company with respect to the Preferred Stock are hereby also made in respect of > the Warrant and shares of the Company's Common Stock issuable upon exercise of > the Warrant (the \"Warrant Shares\"). > > (b) The Company shall reimburse the Purchaser for its reasonable legal fees > for services rendered to the Purchaser in preparation of this Agreement and > the Related Agreements, and expenses in connection with the Purchaser's due > diligence review of the Company and relevant matters.",
"Amounts required to be > paid hereunder will be paid at the Closing and shall not exceed $20,000, > provided that said amount shall not be payable prior to the Purchaser > providing a written bill to the Company. > > (c) The Company will pay a cash fee in the amount of eight percent (8%) of the > aggregate gross purchase price to be paid to the Company from the sale of the > Preferred Stock in the Offering (the \"Fund Management Fee\") to Laurus Capital > Management, L.L.C., a Delaware limited liability company. The Fund Management > Fee must be paid on the Closing Date. The aforementioned Fund Management Fee > and legal fees will be payable at the Closing out of funds held pursuant to a > Funds Escrow Agreement to be entered into by the Company, Purchaser and an > Escrow Agent.",
"-1- -------------------------------------------------------------------------------- 3. CLOSING, DELIVERY AND PAYMENT. > 3.1 Closing. Subject to the terms and conditions herein, the closing of the > transactions contemplated hereby (the \"Closing\"), which closing is comprised > of Purchaser's purchase of the Preferred Stock in the aggregate principal > amount of $1,000,000, shall take place on the date hereof, at the offices of > Daniel M. Laifer, Esq., 152 West 57th Street, 4th Floor, New York, New York > 10019, or at such other time or place as the Company and Purchaser may > mutually agree (such date is hereinafter referred to as the \"Closing Date\"). > > 3.2 Delivery.",
"At the Closing, subject to the terms and conditions hereof, the > Company will deliver to the Purchaser evidence of the filing of the > Certificate of Designation in the form attached as Exhibit A with the > Secretary of State of the State of Delaware, certificate(s) representing the > Preferred Stock purchased by the Purchaser and the Warrant, and the Purchaser > will deliver to the Company $1,000,000, by certified funds or wire transfer > made payable to the order of the Company, subject to the fees set forth under > Section 2(b) and Section 2(c) above. 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Except as set forth in the Disclosure Letter delivered to the Purchaser in connection herewith, the Company hereby represents and warrants to the Purchaser as of the date of this Agreement as set forth below. > 4.1 Organization, Good Standing and Qualification.",
"The Company is a > corporation duly organized, validly existing and in good standing under the > laws of the State of Delaware. The Company has all requisite corporate power > and authority to own and operate its properties and assets, to execute and > deliver this Agreement, the Warrant, the Funds Escrow Agreement, and all other > agreements referred to herein (collectively, the \"Related Agreements\"), to > issue and sell the Preferred Stock and the shares of Common Stock issuable > upon conversion of the Preferred Stock (the \"Conversion Shares\"), to issue and > sell the Warrant and the Warrant Shares, and to carry out the provisions of > this Agreement and the Related Agreements and to carry on its business as > presently conducted and as presently proposed to be conducted. The Company is > duly qualified and is authorized to do business and is in good standing as a > foreign corporation in all jurisdictions in which the nature of its activities > and of its properties (both owned and leased) makes such qualification > necessary, except for those jurisdictions in which failure to do so would not > have a material adverse effect on the Company or its business. -2- -------------------------------------------------------------------------------- > 4.2 Subsidiaries.",
"Except as disclosed on Schedule4.2 of the Disclosure Letter, > the Company does not own or control any equity security or other interest of > any other corporation, limited partnership or other business entity. > > 4.3 Capitalization; Voting Rights. > > > (a) The authorized capital stock of the Company, immediately prior to the > > Closing, consists of (i) 100,000,000 shares of Common Stock, par value > > $0.001 per share, 24,112,310 shares of which are issued and outstanding, and > > (ii) 3,000,000 shares of Preferred Stock, par value $0.001 per share, noneof > > which are issued and outstanding. > > > > (b) Other than (i) the shares reserved for issuance under the Company's > > stock option plans; (ii) as set forth in the SEC Reports (as defined below) > > and (iii) shares which may be granted pursuant to this Agreement and the > > Related Agreements, there are no outstanding options, warrants, rights > > (including conversion or preemptive rights and rights of first refusal), > > proxy or stockholder agreements, or arrangements or agreements of any kind > > for the purchase or acquisition from the Company of any of its securities.",
"> > Neither the offer, issuance or sale of any of the Preferred Stock or > > Warrant, or the issuance of any of the Conversion Shares or Warrant Shares, > > nor the consummation of any transaction contemplated hereby will result in a > > change in the price or number of any securities of the Company outstanding, > > under anti-dilution or other similar provisions contained in or affecting > > any such securities. > > > > (c) All issued and outstanding shares of the Company's Common Stock (i) have > > been duly authorized and validly issued and are fully paid and nonassessable > > and (ii) were issued in compliance with all applicable state and federal > > laws concerning the issuance of securities.",
"> > > > (d) The rights, preferences, privileges and restrictions of the shares of > > the Common Stock are as stated in the Certificate of Incorporation (the > > \"Charter\"). The Conversion Shares and Warrant Shares have been duly and > > validly reserved for issuance. When issued in compliance with the provisions > > of this Agreement and the Company's Charter (including the Certificate of > > Designation) and/or the Warrant, the Securities will be validly issued, > > fully paid and nonassessable, and will be free of any liens or encumbrances; > > provided, however, that the Securities may be subject to restrictions on > > transfer under state and/or federal securities laws as set forth herein or > > as otherwise required by such laws at the time a transfer is proposed.",
"> > > > (e) Other than as referenced in the SEC Reports, no stock plan, stock > > purchase, stock option or other agreement or understanding between the > > Company and any holder of any equity securities or rights to purchase equity > > securities provides for acceleration or other changes in the vesting > > provisions or other terms of such agreement or understanding as the result > > of any merger, consolidated sale of stock or assets, change in control or > > any other transaction(s) by the Company, including the transactions > > contemplated hereunder. -3- -------------------------------------------------------------------------------- > 4.4 Authorization; Binding Obligations. All corporate action on the part of > the Company, its officers, directors and stockholders necessary for the > authorization of this Agreement and the Related Agreements, the performance of > all obligations of the Company hereunder at the Closing and the authorization, > sale, issuance and delivery of the Securities pursuant hereto and the Related > Agreements has been taken or will be taken prior to the Closing. The Agreement > and the Related Agreements, when executed and delivered, will be valid and > binding obligations of the Company enforceable in accordance with their terms, > except (a) as limited by applicable bankruptcy, insolvency, reorganization, > moratorium or other laws of general application affecting enforcement of > creditors' rights, and (b) general principles of equity that restrict the > availability of equitable remedies.",
"The sale of the Preferred Stock and the > subsequent conversion of the Preferred Stock into Conversion Shares are not > and will not be subject to any preemptive rights or rights of first refusal > that have not been properly waived or complied with. The sale of the Warrant > and the subsequent exercise of the Warrant for Warrant Shares are not and will > not be subject to any preemptive rights or rights of first refusal that have > not been properly waived or complied with. The Certificate of Designation and > the Warrant, when executed and delivered in accordance with the terms of this > Agreement, will be valid and binding obligations of the Company, enforceable > in accordance with their respective terms. > > 4.5 Liabilities.",
"Except as provided for in the Company's financial statements > for the period ending August 31, 2002 (which have been supplied to the > Purchaser), the Company has no material liabilities and, to the best of its > knowledge, knows of no material contingent liabilities, except current > liabilities incurred in the ordinary course of business which have not had and > are not expected to have, either in any individual case or in the aggregate, a > materially adverse effect on the Company or its business. > 4.6 Agreements; Action. > > > (a) Except (i) as described the SEC Reports, (ii) this Agreement and (iii) > > the Related Agreements, there are no agreements, understandings, > > instruments, contracts, proposed transactions, judgments, orders, writs or > > decrees to which the Company is a party or to its knowledge by which it is > > bound which may involve (i) obligations (contingent or otherwise) of, or > > payments to, the Company in excess of $100,000 (other than obligations of, > > or payments to, the Company arising from purchase or sale agreements entered > > into in the ordinary course of business), or (ii) the transfer or license of > > any patent, copyright, trade secret or other proprietary right to or from > > the Company (other than licenses arising from the purchase of \"off the > > shelf\" or other standard products and other agreements entered into in the > > ordinary course of business) or (iii) provisions materially restricting the > > development, manufacture or distribution of the Company's products or > > services, or (iv) indemnification by the Company other than in the ordinary > > course of business with respect to infringements of proprietary rights.",
"> > > > (b) Since the date of the most recent SEC Report, the Company has not (i) > > declared or paid any dividends, or authorized or made any distribution upon > > or with respect to any class or series of its capital stock, (ii) incurred > > any indebtedness for money borrowed or any other liabilities outside of the > > ordinary course of business, individually in excess of $100,000 or, in the > > case of indebtedness and/or liabilities individually less than $100,000, in > > excess of $200,000 in the aggregate, (iii) made any loans or advances to any > > person, other than ordinary advances for travel expenses and trade-related > > loans in the ordinary course of business, or (iii) sold, exchanged or > > otherwise disposed of any of its assets or rights, other than the sale of > > its inventory in the ordinary course of business. > > > > (c) For the purposes of subsections (a) and (b) above, all indebtedness, > > liabilities, agreements, understandings, instruments, contracts and proposed > > transactions involving the same person or entity (including persons or > > entities the Company has reason to believe are affiliated therewith) shall > > be aggregated for the purpose of meeting the individual minimum dollar > > amounts of such subsections.",
"> > > > (d) Except as set forth in the SEC Reports, the Company has not engaged in > > the past two years in any discussion (i) with any representative of any > > corporation or corporations regarding the consolidation or merger of the > > Company with or into any such corporation or corporations, (ii) with any > > corporation, partnership, association or other business entity or any > > individual regarding the sale, conveyance or disposition of all or > > substantially all of the assets of the Company, or a transaction or series > > of related transactions in which more than 50% of the voting power of the > > Company is disposed of or (iii) regarding any liquidation, dissolution or > > winding up of the Company. -4- -------------------------------------------------------------------------------- > 4.7 Obligations to Related Parties. Except as set forth in the SEC Reports, > there are no obligations of the Company to officers, directors, stockholders > or employees of the Company other than (a) for payment of salary for services > rendered, (b) reimbursement for reasonable expenses incurred on behalf of the > Company and (c) for other standard employee benefits made generally available > to all employees (including stock option agreements outstanding under any > stock option plan approved by the Board of Directors of the Company).",
"Except > as set forth in the SEC Reports, none of the officers, directors or > stockholders of the Company, or any members of their immediate families, are > indebted to the Company. Except as set forth in the SEC Reports, none of the > officers, directors or, to the best of the Company's knowledge, key employees > or stockholders of the Company or any members of their immediate families, are > indebted to the Company or have any direct or indirect ownership interest in > any firm or corporation with which the Company is affiliated or with which the > Company has a business relationship, or any firm or corporation which competes > with the Company, other than passive investments in publicly traded companies > (representing less than 1% of such company) which may compete with the > Company. Other than as described in the SEC Reports, no officer, director or > stockholder, or any member of their immediate families, is, directly or > indirectly, interested in any material contract with the Company and no > agreements, understandings or proposed transactions are contemplated between > the Company and any such person. The Company is not a guarantor or indemnitor > of any indebtedness of any other person, firm or corporation. -5- -------------------------------------------------------------------------------- > 4.8 Changes.",
"Since June 30, 2002, there has not been: > > > (a) Any change in the assets, liabilities, financial condition, prospects or > > operations of the Company, other than changes in the ordinary course of > > business, none of which individually or in the aggregate has had or is > > reasonably expected to have a material adverse effect on such assets, > > liabilities, financial condition, prospects or operations of the Company; > > > > (b) Any resignation or termination of any officer, key employee or group of > > employees of the Company; > > > > (c) Any material change, except in the ordinary course of business, in the > > contingent obligations of the Company by way of guaranty, endorsement, > > indemnity, warranty or otherwise; > > > > (d) Any damage, destruction or loss, whether or not covered by insurance, > > materially and adversely affecting the properties, business or prospects or > > financial condition of the Company; > > > > (e) Any waiver by the Company of a valuable right or of a material debt owed > > to it; > > > > (f) Any direct or indirect loans made by the Company to any stockholder, > > employee, officer or director of the Company, other than advances made in > > the ordinary course of business; > > > > (g) Any material change in any compensation arrangement or agreement with > > any employee, officer, director or stockholder; > > > > (h) Any declaration or payment of any dividend or other distribution of the > > assets of the Company; > > > > (i) Any labor organization activity related to the Company; > > > > (j) Any debt, obligation or liability incurred, assumed or guaranteed by the > > Company, except those for immaterial amounts and for current liabilities > > incurred in the ordinary course of business; > > > > (k) Any sale, assignment or transfer of any patents, trademarks, copyrights, > > trade secrets or other intangible assets; > > > > (l) Any change in any material agreement to which the Company is a party or > > by which it is bound which may materially and adversely affect the business, > > assets, liabilities, financial condition, operations or prospects of the > > Company; > > > > (m) Any other event or condition of any character relating to the Company > > that, either individually or cumulatively, has or is reasonably expected to > > have a material effect on the business, financial condition, or results of > > operations of the Company; or > > > > (n) Any arrangement or commitment by the Company to do any of the acts > > described in subsection (a) through (m) above.",
"-6- -------------------------------------------------------------------------------- > 4.9 Title to Properties and Assets; Liens, Etc. The Company has good and > marketable title to its properties and assets, and good title to its leasehold > estates, in each case subject to no mortgage, pledge, lien, lease, encumbrance > or charge, other than (a) those resulting from taxes which have not yet become > delinquent, (b) minor liens and encumbrances which do not materially detract > from the value of the property subject thereto or materially impair the > operations of the Company, and (c) those that have otherwise arisen in the > ordinary course of business. All facilities, machinery, equipment, fixtures, > vehicles and other properties owned, leased or used by the Company are in good > operating condition and repair and are reasonably fit and usable for the > purposes for which they are being used. The Company is in compliance with all > material terms of each lease to which it is a party or is otherwise bound.",
"> > 4.10 Intellectual Property. > > > (a) To the knowledge of the Company, the Company owns or possesses > > sufficient legal rights to all patents, trademarks, service marks, trade > > names, copyrights, trade secrets, licenses, information and other > > proprietary rights and processes necessary for its business as now conducted > > and as presently proposed to be conducted (the \"Intellectual Property\"), > > without any known infringement of the rights of others. > > > > (b) The Company has not received any communications alleging that the > > Company has violated any of the patents, trademarks, service marks, trade > > names, copyrights or trade secrets or other proprietary rights of any other > > person or entity, nor is the Company aware of any basis therefor. > > > > (c) The Company does not believe it is or will be necessary to utilize any > > inventions, trade secrets or proprietary information of any of its employees > > made prior to their employment by the Company, except for inventions, trade > > secrets or proprietary information that have been rightfully assigned to the > > Company.",
"> > 4.11 Compliance with Other Instruments. The Company is not in violation or > default of any term of its Charter or Bylaws, or of any provision of any > mortgage, indenture, contract, agreement, instrument or contract to which it > is party or by which it is bound or of any judgment, decree, order or writ. > The execution, delivery and performance of and compliance with this Agreement > and the Related Agreements, and the issuance and sale of Securities pursuant > hereto, will not, with or without the passage of time or giving of notice, > result in any such material violation, or be in conflict with or constitute a > default under any such term or provision, or result in the creation of any > mortgage, pledge, lien, encumbrance or charge upon any of the properties or > assets of the Company or the suspension, revocation, impairment, forfeiture or > nonrenewal of any permit, license, authorization or approval applicable to the > Company, its business or operations or any of its assets or properties. > > 4.12 Litigation. To the knowledge of the Company, there is no action, suit, > proceeding or investigation pending or currently threatened against the > Company that questions the validity of this Agreement or the Related > Agreements or the right of the Company to enter into any of such agreements, > or to consummate the transactions contemplated hereby or thereby, or which > might result, either individually or in the aggregate, in any material adverse > change in the assets, condition, affairs or prospects of the Company, > financially or otherwise, or any change in the current equity ownership of the > Company, nor is the Company aware that there is any basis for any of the > foregoing.",
"The Company is not a party or subject to the provisions of any > order, writ, injunction, judgment or decree of any court or government agency > or instrumentality. There is no action, suit, proceeding or investigation by > the Company currently pending or which the Company intends to initiate. -7- -------------------------------------------------------------------------------- > 4.13 Tax Returns and Payments. The Company has timely filed all tax returns > (federal, state and local) required to be filed by it. All taxes shown to be > due and payable on such returns, any assessments imposed, and to the Company's > knowledge all other taxes due and payable by the Company on or before the > Closing, have been paid or will be paid prior to the time they become > delinquent. The Company has not been advised (a) that any of its returns, > federal, state or other, have been or are being audited as of the date hereof, > or (b) of any deficiency in assessment or proposed judgment to its federal, > state or other taxes.",
"The Company has no knowledge of any liability of any tax > to be imposed upon its properties or assets as of the date of this Agreement > that is not adequately provided for. > > 4.14 Employees. The Company has no collective bargaining agreements with any > of its employees. There is no labor union organizing activity pending or, to > the Company's knowledge, threatened with respect to the Company. Other than as > disclosed in the SEC Reports, the Company is not a party to or bound by any > currently effective employment contract, deferred compensation arrangement, > bonus plan, incentive plan, profit sharing plan, retirement agreement or other > employee compensation plan or agreement.",
"To the Company's knowledge, no > employee of the Company, nor any consultant with whom the Company has > contracted, is in violation of any term of any employment contract, > proprietary information agreement or any other agreement relating to the right > of any such individual to be employed by, or to contract with, the Company > because of the nature of the business to be conducted by the Company; and to > the Company's knowledge the continued employment by the Company of its present > employees, and the performance of the Company's contracts with its independent > contractors, will not result in any such violation.",
"The Company is not aware > that any of its employees is obligated under any contract (including licenses, > covenants or commitments of any nature) or other agreement, or subject to any > judgment, decree or order of any court or administrative agency, that would > interfere with their duties to the Company. The Company has not received any > notice alleging that any such violation has occurred. Other than as disclosed > in the SEC Reports, no employee of the Company has been granted the right to > continued employment by the Company or to any material compensation following > termination of employment with the Company. The Company is not aware that any > officer, key employee or group of employees intends to terminate his, her or > their employment with the Company, nor does the Company have a present > intention to terminate the employment of any officer, key employee or group of > employees. > > 4.15 Registration Rights and Voting Rights. Other than as disclosed in the SEC > Reports, the Company is presently not under any obligation, and has not > granted any rights, to register any of the Company's presently outstanding > securities or any of its securities that may hereafter be issued.",
"To the > Company's knowledge, no stockholder of the Company has entered into any > agreement with respect to the voting of equity securities of the Company. -8- -------------------------------------------------------------------------------- > 4.16 Compliance with Laws; Permits. To its knowledge, the Company is not in > violation of any applicable statute, rule, regulation, order or restriction of > any domestic or foreign government or any instrumentality or agency thereof in > respect of the conduct of its business or the ownership of its properties > which violation would materially and adversely affect the business, assets, > liabilities, financial condition, operations or prospects of the Company.",
"No > governmental orders, permissions, consents, approvals or authorizations are > required to be obtained and no registrations or declarations are required to > be filed in connection with the execution and delivery of this Agreement and > the issuance of any of the Securities, except such as has been duly and > validly obtained or filed, or with respect to any filings that must be made > after the Closing, as will be filed in a timely manner.",
"The Company has all > franchises, permits, licenses and any similar authority necessary for the > conduct of its business as now being conducted by it, the lack of which could > materially and adversely affect the business, properties, prospects or > financial condition of the Company. > > 4.17 Environmental and Safety Laws. To its knowledge, the Company is not in > violation of any applicable statute, law or regulation relating to the > environment or occupational health and safety, and to its knowledge, no > material expenditures are or will be required in order to comply with any such > existing statute, law or regulation. No Hazardous Materials (as defined below) > are used or have been used, stored, or disposed of by the Company or, to the > Company's knowledge, by any other person or entity on any property owned, > leased or used by the Company.",
"For the purposes of the preceding sentence, > \"Hazardous Materials\" shall mean (a) materials which are listed or otherwise > defined as \"hazardous\" or \"toxic\" under any applicable local, state, federal > and/or foreign laws and regulations that govern the existence and/or remedy of > contamination on property, the protection of the environment from > contamination, the control of hazardous wastes, or other activities involving > hazardous substances, including building materials, or (b) any petroleum > products or nuclear materials. > > 4.18 Valid Offering. Assuming the accuracy of the representations and > warranties of the Purchaser contained in this Agreement, the offer, sale and > issuance of the Securities will be exempt from the registration requirements > of the Securities Act of 1933, as amended (the \"Securities Act\"), and will > have been registered or qualified (or are exempt from registration and > qualification) under the registration, permit or qualification requirements of > all applicable state securities laws.",
"Neither the Company nor any agent on its > behalf has solicited or will solicit any offers to sell or has offered to sell > or will offer to sell all or any part of the Securities to any person or > persons so as to cause the sale of such Securities by the Company to fail to > be exempt under the registration provisions of the Securities Act or any state > securities laws. > > 4.19 Full Disclosure. The Company has provided the Purchaser with all > information requested by the Purchaser in connection with its decision to > purchase the Preferred Stock and Warrant.",
"Neither this Agreement, the exhibits > and schedules hereto, or the Related Agreements contain any untrue statement > of a material fact nor omit to state a material fact necessary in order to > make the statements contained herein or therein, in light of the circumstances > in which they are made, not misleading. Any financial projections and other > estimates provided to the Purchaser by the Company were based on the Company's > experience in the industry and on assumptions of fact and opinion as to future > events which the Company, at the date of the issuance of such projections or > estimates, believed to be reasonable. As of the date hereof no facts have come > to the attention of the Company that would, in its opinion, require the > Company to revise or amplify in any material respect the assumptions > underlying such projections and other estimates or the conclusions derived > therefrom. -9- -------------------------------------------------------------------------------- > 4.20 Insurance. The Company has general commercial, product liability, fire > and casualty insurance policies with coverage customary for companies > similarly situated to the Company. > > 4.21 SEC Reports. The Company has filed all proxy statements, reports and > other documents required to be filed by it under the Exchange Act for all > periods since January 1, 2001.",
"The Company has furnished the Purchaser with > copies of (i) its Annual Report on Form 10-K for the fiscal year ended > December 31, 2001 and (ii) its Quarterly Reports on Form 10-Q for the fiscal > quarters ended March 31, 2002 and June 30, 2002 (collectively, the \"SEC > Reports\"). Each SEC Report was in substantial compliance with the requirements > of its respective form and none of the SEC Reports, nor the financial > statements (and the notes thereto) included in the SEC Reports, as of their > respective dates, contained any untrue statement of a material fact or omitted > to state a material fact required to be stated therein or necessary to make > the statements therein, in light of the circumstances under which they were > made, not misleading. > > 4.22 No Market Manipulation.",
"The Company has not taken, and will not take, > directly or indirectly, any action designed to, or that might reasonably be > expected to, cause or result in stabilization or manipulation of the price of > the Common Stock of the Company in violation of applicable securities laws. > > 4.23 No Integrated Offering. Neither the Company, nor any of its affiliates, > nor any person acting on its or their behalf, has directly or indirectly made > any offers or sales of any security or solicited any offers to buy any > security under circumstances that would cause the offering of the Securities > pursuant to this Agreement to be integrated with prior offerings by the > Company for purposes of the Securities Act which would prevent the Company > from selling the Securities pursuant to Rule 506 under the Securities Act, or > any applicable exchange-related stockholder approval provisions.",
"Nor will the > Company or any of its affiliates or subsidiaries take any action or steps that > would cause the offering of the Securities to be integrated with other > offerings. > > 4.24 Stop Transfer. The Securities are restricted securities as of the date of > this Agreement. The Company will not issue any stop transfer order or other > order impeding the sale and delivery of any of the Securities at such time as > the Securities are registered for public sale or an exemption from > registration is available in the opinion of the Company, except as required by > federal securities laws. > > 4.25 Dilution. The Company understands the nature of the Securities being sold > hereby and recognizes that they may have a potential dilutive effect. The > Company specifically acknowledges that its obligation to issue the shares of > Common Stock upon conversion of the Preferred Stock and exercise of the > Warrant is binding upon the Company and enforceable regardless of the dilution > such issuance may have on the ownership interests of other shareholders of the > Company.",
"-10- -------------------------------------------------------------------------------- 5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. > The Purchaser hereby represents and warrants to the Company as of the date of > this Agreement as set forth below. > > 5.1 Requisite Power and Authority. Purchaser has all necessary power and > authority under all applicable provisions of law to execute and deliver this > Agreement and the Related Agreements and to carry out their provisions. All > action on Purchaser's part required for the lawful execution and delivery of > this Agreement and the Related Agreements have been or will be effectively > taken prior to the Closing. Upon their execution and delivery, this Agreement > and the Related Agreements will be valid and binding obligations of Purchaser, > enforceable in accordance with their terms, except (a) as limited by > applicable bankruptcy, insolvency, reorganization, moratorium or other laws of > general application affecting enforcement of creditors' rights, and (b) as > limited by general principles of equity that restrict the availability of > equitable remedies.",
"> > 5.2 Investment Representations. Purchaser understands that the Securities are > being offered and sold pursuant to an exemption from registration contained in > the Securities Act based in part upon Purchaser's representations contained in > the Agreement. > > 5.3 Purchaser Bears Economic Risk. Purchaser has substantial experience in > evaluating and investing in private placement transactions of securities in > companies similar to the Company so that it is capable of evaluating the > merits and risks of its investment in the Company and has the capacity to > protect its own interests.",
"Purchaser must bear the economic risk of this > investment until the Securities are registered pursuant to the Securities Act, > or an exemption from registration is available. > > 5.4 Acquisition for Own Account. Purchaser is acquiring the Preferred Stock > for Purchaser's own account for investment only, and not with a view towards > its resale or distribution. > > 5.5 Purchaser Can Protect Its Interest. Purchaser represents that by reason of > its, or of its management's, business or financial experience, Purchaser has > the capacity to protect its own interests in connection with the transactions > contemplated in this Agreement, and the Related Agreements. Further, Purchaser > is aware of no publication of any advertisement in connection with the > transactions contemplated in the Agreement. -11- -------------------------------------------------------------------------------- > 5.6 Accredited Investor. Purchaser represents that it is an accredited > investor within the meaning of Regulation D under the Securities Act.",
"> > 5.7 Legends. > > > (a) The Preferred Stock shall bear the following legend until the Preferred > > Stock and Conversion Shares are covered by an effective registration > > statement filed with the Securities and Exchange Commission (the \"SEC\"): > > > > \"THESE SHARES OF PREFERRED STOCK AND THE COMMON STOCK ISSUABLE UPON > > CONVERSION OF THE PREFERRED STOCK HAVE NOT BEEN REGISTERED UNDER THE > > SECURITIES ACT OF 1933, AS AMENDED, OR, IF APPLICABLE, STATE SECURITIES > > LAWS. THESE SHARES OF PREFERRED STOCK AND THE COMMON STOCK ISSUABLE UPON > > CONVERSION OF THE PREFERRED STOCK MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED > > OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO > > THE PREFERRED STOCK OR SUCH SHARES UNDER SAID ACT AND APPLICABLE STATE > > SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO SOCKET > > COMMUNICATIONS, INC. THAT SUCH REGISTRATION IS NOT REQUIRED.\"",
"> > > > (b) The Conversion Shares and the Warrant Shares shall bear a legend which > > shall be in substantially the following form until such shares are covered > > by an effective registration statement filed with the SEC: > > > > \"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER > > THE SECURITIES ACT OF 1933, AS AMENDED, OR IF APPLICABLE, STATE SECURITIES > > LAWS. THESE SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR > > HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER > > SUCH SECURITIES ACT AND APPLICABLE STATE LAWS OR AN OPINION OF COUNSEL > > REASONABLY SATISFACTORY TO SOCKET COMMUNICATIONS, INC. THAT SUCH > > REGISTRATION IS NOT REQUIRED.\"",
"> > > > (c) The Warrant shall bear the following legend: > > > > \"THIS WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT > > HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR > > APPLICABLE STATE SECURITIES LAWS. THIS WARRANT AND THE COMMON SHARES > > ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT BE SOLD, OFFERED FOR SALE, > > PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION > > STATEMENT AS TO THIS WARRANT OR THE UNDERLYING SHARES OF COMMON STOCK UNDER > > SAID ACT AND APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL > > REASONABLY SATISFACTORY TO SOCKET COMMUNICATIONS, INC. THAT SUCH > > REGISTRATION IS NOT REQUIRED.\" > > 5.8 Non-Shorting. The Purchaser has not, will not and will not cause, advise, > ask or assist any person or entity to engage in \"short sales\" of the Company's > Common Stock. Neither Purchaser, nor any person or entity controlled by, > controlling or under common control with, the Purchaser, has engaged, or will > engage for so long as any Preferred Stock remains outstanding, directly or > indirectly, in any short sale (whether or not \"against the box\") of shares of > the Company's Common Stock or any security or instrument whose value is > otherwise based on the value of the Company's Common Stock. The Purchaser has > not and will not for so long as any Preferred Stock remains outstanding, > cause, advise, ask or assist any person or entity to engage in any short sale > (whether or not \"against the box\") of shares of the Company's Common Stock or > any security or instrument whose value is otherwise based on the value of the > Company's Common Stock.",
"The Company acknowledges that the Purchaser may sell > shares of Common Stock issuable (i) upon conversion of Preferred Stock to be > converted in accordance with a valid Notice of Conversion (as such term is > defined in Section 6(c) of the Certificate of Designation) delivered by the > Purchaser to the Company, or (ii) in payment of Monthly Amount (as such term > is defined in Section 4(a) of the Certificate of Incorporation) that the > Company has elected to pay in stock pursuant to a valid Repayment Election > Notice (as such term is defined in Section 4(b) of the Certificate of > Incorporation) delivered by the Company to the Purchaser.",
"Such sales shall not > be deemed \"short sales,\" notwithstanding the fact that Purchaser may not be in > actual receipt of such shares of Common Stock prior to the date of sale. -12- -------------------------------------------------------------------------------- 6. COVENANTS OF THE COMPANY. So long as the Preferred Stock remains outstanding, the Company covenants and agrees with the Purchaser as follows: > 6.1 Stop-Orders. Subject to compliance with applicable securities laws, the > Company will advise the Purchaser, promptly after it receives notice of > issuance by the Securities and Exchange Commission (the \"SEC\"), any state > securities commission or any other regulatory authority of any stop order or > of any order preventing or suspending any offering of any securities of the > Company, or of the suspension of the qualification of the Common Stock of the > Company for offering or sale in any jurisdiction, or the initiation of any > proceeding for any such purpose. > > 6.2 Listing.",
"The Company shall promptly secure the listing of the shares of > Common Stock issuable upon conversion of the Preferred Stock and upon the > exercise of the Warrant on the Pink Sheets, the NASD OTC Bulletin Board, > NASDAQ SmallCap Market, NASDAQ National Market, American Stock Exchange, > Pacific Exchange, or New York Stock Exchange (the \"Principal Market\") upon > which shares of Common Stock are then listed (subject to official notice of > issuance) and shall use reasonable efforts to maintain such listing so long as > any other shares of Common Stock shall be so listed. The Company will maintain > the listing of its Common Stock on a Principal Market, and will comply in all > material respects with the Company's reporting, filing and other obligations > under the bylaws or rules of the National Association of Securities Dealers > (\"NASD\") and such exchanges, as applicable.",
"> > 6.3 Market Regulations. The Company shall notify the SEC, NASD and applicable > state authorities, to the extent required under applicable regulations, of the > transactions contemplated by this Agreement, and shall take all other > necessary action and proceedings as may be required and permitted by > applicable law, rule and regulation, for the legal and valid issuance of the > Securities to Purchaser. -13- -------------------------------------------------------------------------------- > 6.4 Reporting Requirements. The Company will use reasonable efforts to timely > file with the SEC all reports required to be filed pursuant to the Exchange > Act and refrain from terminating its status as an issuer required by the > Exchange Act to file reports thereunder even if the Exchange Act or the rules > or regulations thereunder would permit such termination. > > 6.5 Use of Funds. The Company agrees that it will use the proceeds of the sale > of the Preferred Stock and Warrant for general corporate purposes only > (including payment of current obligations pursuant to the Company's bank > credit facilities and pursuant to its agreements with Nokia Corp.), in the > ordinary course of its business and consistent with past practice.",
"> > 6.6 Access to Directors, Officers and Accountants. Subject to compliance with > applicable securities laws, the Company will permit any representatives > designated by the Purchaser (or any transferee of the Purchaser), upon > reasonable notice and during normal business hours, to discuss the affairs, > finances and accounts of any such corporations with the directors, officers > and independent accountants of the Company. > > 6.7 Books and Records. The Company will keep true records and books of account > in which full, true and correct entries will be made of all dealings or > transactions in relation to its business and affairs in accordance with > generally accepted accounting principles applied on a consistent basis. > > 6.8 Confidentiality. The Company agrees that it will not disclose, and will > not include in any public announcement, the name of the Purchaser, unless > expressly agreed to by the Purchaser or unless and until such disclosure is > required by law or applicable regulation, and then only to the extent of such > requirement.",
"> > 6.9 Corporate Existence. The Company shall maintain its corporate existence, > and will not voluntarily liquidate or dissolve. In addition, the Company shall > not sell all or substantially all of the Company's assets, except (i) in the > event of a merger or consolidation or sale or transfer of all or substantially > all of the Company's assets where the surviving or successor entity in such > transaction assumes the Company's obligations hereunder and the Related > Agreements and such surviving or successor corporation is a publicly traded > company whose common stock is quoted or listed on a Principal Market, or (ii) > if the Company offers to redeem the Preferred Stock for cash immediately prior > to the closing of such transaction. -14- -------------------------------------------------------------------------------- > 6.10 Reissuance of Securities. The Company agrees to reissue certificates > representing the Securities without the legends set forth in Section 5.7 above > at such time as (a) the holder thereof is permitted to dispose of such > Securities pursuant to Rule 144(k) under the Securities Act, or (b) upon > resale subject to an effective registration statement after such Securities > are registered under the Securities Act. The Company agrees to cooperate with > the Purchaser in connection with all resales pursuant to Rule 144(d) and Rule > 144(k) and provide such legal opinions as, in the opinion of the Company's > securities counsel, are appropriate and permissible, and are necessary to > allow such resales provided the Company and its counsel receive reasonably > requested representations from the selling Purchaser and broker, if any.",
"> > 6.11 Opinion. On the Closing Date, the Company will deliver to the Purchaser > an opinion acceptable to the Purchaser from the Company's legal counsel in the > form annexed hereto as Exhibit C. The Company will provide, at the Company's > expense, such other legal opinions in the future as, in the opinion of the > Company's securities counsel, are appropriate and permissible, and are > reasonably necessary for the conversion of the Preferred Stock and exercise of > the Warrants. -15- -------------------------------------------------------------------------------- 7. COVENANTS OF THE COMPANY AND PURCHASER REGARDING INDEMNIFICATION. > 7.1 Company Indemnification. The Company agrees to indemnify, hold harmless, > reimburse and defend Purchaser, each of Purchaser's officers, directors, > agents, affiliates, control persons, and principal shareholders, against any > claim, cost, expense, liability, obligation, loss or damage (including > reasonable legal fees) of any nature, incurred by or imposed upon the > Purchaser which results, arises out of or is based upon (i) any > misrepresentation by Company or breach of any warranty by Company in this > Agreement or in any exhibits or schedules attached hereto or any Related > Agreement, or (ii) any breach or default in performance by Company of any > covenant or undertaking to be performed by Company hereunder, or any other > agreement entered into by the Company and Purchaser relating hereto.",
"> > 7.2 Purchaser's Indemnification. Purchaser agrees to indemnify, hold harmless, > reimburse and defend the Company and each of the Company's officers, > directors, agents, affiliates, control persons and principal shareholders, at > all times against any claim, cost, expense, liability, obligation, loss or > damage (including reasonable legal fees) of any nature, incurred by or imposed > upon the Company which results, arises out of or is based upon (i) any > misrepresentation by Purchaser or breach of any warranty by Purchaser in this > Agreement or in any exhibits or schedules attached hereto or any Related > Agreement; or (ii) any breach or default in performance by Purchaser of any > covenant or undertaking to be performed by Purchaser hereunder, or any other > agreement entered into by the Company and Purchaser relating hereto. > > 7.3 Procedures. The procedures and limitations set forth in Section 9.6 shall > apply to the indemnifications set forth in Sections 7.1 and 7.2 above.",
"8. RESTRICTIONS ON TRANSFER. The Purchaser agrees not to make any disposition of all or any portion of the Preferred Stock, Conversion Shares, or Warrant Shares unless and until the transferee has agreed in writing to be bound by the terms of this Agreement and the Related Agreements, and (i) there is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with such registration statement or (ii) (A) the Purchaser shall have notified the Company of the proposed disposition and shall have furnished the Company with a detailed statement of the circumstances surrounding the proposed disposition, (B) if requested by the Company, the Purchaser shall have furnished the Company with an opinion of counsel, satisfactory to the Company, that such disposition will not require registration of such shares under the Securities Act, and (C) such transfer is otherwise in compliance with the Related Agreements. 9. REGISTRATION RIGHTS. > 9.1 Registration Rights Granted.",
"The Company hereby grants the following > registration rights to the Purchaser and any transferee of the Conversion > Shares or the Warrant Shares. > > > (a) The Company shall use its reasonable commercial efforts to file a Form > > S-3 registration statement (or such other form that it is eligible to use) > > in order to register the Conversion Shares and the Warrant Shares for resale > > and distribution under the Securities Act with the SEC within 30 days of the > > Closing Date (the \"Filing Date\"), and use its reasonable commercial efforts > > to cause such registration statement to be declared effective within 90 days > > of the Filing Date (the \"Effective Date\"). The Company will register at > > least 2,500,000 shares of Common Stock.",
"The Conversion Shares and Warrant > > Shares shall be reserved and set aside exclusively for the benefit of the > > Purchaser and the holders of the Warrant, as the case may be, and not > > issued, employed or reserved for anyone other than the Purchaser and the > > holders of the Warrant. Such registration statement will be promptly amended > > or additional registration statements will be promptly filed by the Company > > as necessary to register any additional shares of Common Stock which may be > > issuable in respect of the Conversion Shares and the Warrant Shares, to > > allow the public resale of all such Common Stock.",
"> > 9.2 Registration Procedures.",
"If and whenever the Company is required by the > provisions hereof to effect the registration of any shares of Registrable > Securities under the Securities Act, the Company will, as expeditiously as > reasonably practicable: > > > (a) comply with Section 9.1 hereof; > > > > (b) prepare and file with the SEC such amendments and supplements to such > > registration statement and the prospectus used in connection therewith as > > may be necessary to avoid a Non-Registration Event (as defined below) > > through the earlier of: (i) six months after the expiration or exercise of > > the Warrant or (ii) such time as all Conversion Shares and Warrant Shares > > have been sold to the public or may be sold to the public in a single > > quarter pursuant to an applicable registration or exemption; > > > > (c) furnish to the Purchaser, and to each underwriter if any, such number of > > copies of the registration statement and the prospectus included therein > > (including each preliminary prospectus) as such persons reasonably may > > request to facilitate the public sale or their disposition of the securities > > covered by such registration statement; > > > > (d) use its reasonable commercial efforts to register or qualify the > > Purchaser's Common Stock covered by such registration statement under the > > securities or \"blue sky\" laws of such jurisdictions as the Purchaser and in > > the case of an underwritten public offering, the managing underwriter shall > > reasonably request, provided, however, that the Company shall not for any > > such purpose be required to qualify generally to transact business as a > > foreign corporation in any jurisdiction where it is not so qualified or to > > consent to general service of process in any such jurisdiction; > > > > (e) list the Common Stock covered by such registration statement with the > > Nasdaq Stock Market or on any securities exchange on which the Common Stock > > of the Company is then listed; and > > > > (f) as soon as practicable notify the Purchaser and each underwriter under > > such registration statement at any time when a prospectus relating thereto > > is required to be delivered under the Securities Act, of the happening of > > any event of which the Company has knowledge as a result of which, in the > > Company's reasonable judgment, the prospectus contained in such registration > > statement, as then in effect, includes an untrue statement of a material > > fact or omits to state a material fact required to be stated therein or > > necessary to make the statements therein not misleading in light of the > > circumstances then existing.",
"-16- -------------------------------------------------------------------------------- > 9.3 Provision of Documents. In connection with each registration hereunder, > the Purchaser will furnish to the Company in writing such information and > representation letters with respect to itself and the proposed distribution by > it as reasonably shall be necessary in order to assure compliance with federal > and applicable state securities laws. > > 9.4 Non-Registration Events. If the registration statement on Form S-3 or such > other form as described in Section 9.1(a) (i) is not filed on or before the > Filing Date, (ii) is not declared effective on or before the sooner of the > Effective Date, or within three days of receipt by the Company of a > communication from the SEC that the registration statement described in > Section 9.1(a) will not be reviewed, (iii) is not, within 60 days of receipt > of a written request from the Holders, amended (or supplemented by filing of > an additional registration statement) to register for resale additional > Conversion Shares that are expected to be issuable based on the Conversion > Price then in effect, or (iv) is filed and declared effective but shall > thereafter cease to be effective (without being succeeded immediately by an > additional registration statement filed and declared effective) for a period > of time which shall exceed 120 days in the aggregate per year but not more > than 60 consecutive calendar days (defined as a period of 365 days commencing > on the date the Registration Statement is declared effective) (each such event > referred to in this Section 9.4 is referred to herein as a \"Non-Registration > Event\"), then, for so long as such Non-Registration Event shall continue, the > Company shall pay in cash or Common Stock with an equivalent fair market value > as liquidated damages in lieu of any other legal or equitable recourse to each > holder of any Conversion Shares or Warrant Shares an amount equal to one > percent (1%) per month or part thereof during the pendency of such > Non-Registration Event of the fair market value of such Conversion Shares or > Warrant Shares as of the end of such month then owned of record by such holder > or issuable to such holder as of or subsequent to the occurrence of such > Non-Registration Event.",
"Payments to be made pursuant to this Section shall be > due and payable immediately upon demand in immediately available funds or > Common Stock with an equivalent fair market value. -17- -------------------------------------------------------------------------------- > 9.5 Expenses. All expenses incurred by the Company in complying with Section > 9, including, without limitation, all registration and filing fees, printing > expenses, fees and disbursements of counsel and independent public accountants > for the Company, fees and expenses (including reasonable counsel fees) > incurred in connection with complying with state securities or \"blue sky\" > laws, fees of the NASD, transfer taxes, fees of transfer agents and > registrars, and costs of insurance are called \"Registration Expenses\". All > underwriting discounts and selling commissions applicable to the sale of > Conversion Shares and the Warrant Shares, including any fees and disbursements > of any special counsel to the Purchaser, are called \"Selling Expenses.\" The > Company will pay all Registration Expenses in connection with the registration > statement under Section 9. All Selling Expenses in connection with each > registration statement under Section 9 shall be borne by the Purchaser. > > 9.6 Indemnification and Contribution.",
"> > > (a) In the event of a registration of any Conversion Shares or Warrant > > Shares under the Securities Act pursuant to Section 9, the Company will > > indemnify and hold harmless the Purchaser, each officer and director of the > > Purchaser, each underwriter of such Conversion Shares and Warrant Shares > > thereunder and each other person, if any, who controls the Purchaser or > > underwriter within the meaning of the Securities Act, against any losses, > > claims, damages or liabilities, joint or several, to which the Purchaser, or > > such underwriter or controlling person may become subject under the > > Securities Act or otherwise, insofar as such losses, claims, damages or > > liabilities (or actions in respect thereof) arise out of or are based upon > > any untrue statement or alleged untrue statement of any material fact > > contained in any registration statement under which such Conversion Shares > > or Warrant Shares were registered under the Securities Act pursuant to > > Section 9, any preliminary prospectus or final prospectus contained therein, > > or any amendment or supplement thereof, or arise out of or are based upon > > the omission or alleged omission to state therein a material fact required > > to be stated therein or necessary to make the statements therein not > > misleading, and will reimburse the Purchaser, each such underwriter and each > > such controlling person for any legal or other expenses reasonably incurred > > by them in connection with investigating or defending any such loss, claim, > > damage, liability or action; provided, however, that the Company will not be > > liable in any such case if and to the extent that any such loss, claim, > > damage or liability arises out of or is based upon an untrue statement or > > alleged untrue statement or omission or alleged omission so made in > > conformity with information furnished by the Purchaser, the underwriter or > > any such controlling person in writing specifically for use in such > > registration statement or prospectus, and provided further that the Company > > will not be liable for any loss, claim, damage or liability arising out of > > any failure of the Purchaser to deliver to any purchaser of Conversion > > Shares or Warrant Shares any amended prospectus or prospectus supplement > > supplied by the Company.",
"-18- -------------------------------------------------------------------------------- > > (b) In the event of a registration of any of the Conversion Shares or > > Warrant Shares under the Securities Act pursuant to Section 9, the Purchaser > > will indemnify and hold harmless the Company, and each person, if any, who > > controls the Company within the meaning of the Securities Act, and each > > officer and director of the Company, against all losses, claims, damages or > > liabilities, joint or several, to which the Company or such officer or > > director may become subject under the Securities Act or otherwise, insofar > > as such losses, claims, damages or liabilities (or actions in respect > > thereof) arise out of or are based upon any untrue statement or alleged > > untrue statement of any material fact contained in the registration > > statement under which such Conversion Shares or Warrant Shares were > > registered under the Securities Act pursuant to Section 9, any preliminary > > prospectus or final prospectus contained therein, or any amendment or > > supplement thereof, or arise out of or are based upon the omission or > > alleged omission to state therein a material fact required to be stated > > therein or necessary to make the statements therein not misleading, and will > > reimburse the Company and each such officer or director for any legal or > > other expenses reasonably incurred by them in connection with investigating > > or defending any such loss, claim, damage, liability or action, provided, > > however, that the Purchaser will be liable hereunder in any such case if and > > only to the extent that any such loss, claim, damage or liability arises out > > of or is based upon an untrue statement or alleged untrue statement or > > omission or alleged omission made in reliance upon and in conformity with > > information pertaining to such Purchaser, as such, furnished in writing to > > the Company by such Purchaser specifically for use in such registration > > statement or prospectus, and provided, further, however, that the liability > > of the Seller hereunder shall be limited to the proportion of any such loss, > > claim, damage, liability or expense which is equal to the proportion that > > the public offering price of the Registrable Securities sold by the Seller > > under such registration statement bears to the total public offering price > > of all securities sold thereunder, but not in any event to exceed the net > > proceeds received by the Seller from the sale of Registrable Securities > > covered by such registration statement.",
"> > > > (c) Promptly after receipt by an indemnified party hereunder of notice of > > the commencement of any action, such indemnified party shall, if a claim in > > respect thereof is to be made against the indemnifying party hereunder, > > notify the indemnifying party in writing thereof, but the omission so to > > notify the indemnifying party shall not relieve it from any liability which > > it may have to such indemnified party other than under this Section 9.6(c) > > and shall only relieve it from any liability which it may have to such > > indemnified party under this Section 9.6(c) if and to the extent the > > indemnifying party is prejudiced by such omission.",
"In case any such action > > shall be brought against any indemnified party and it shall notify the > > indemnifying party of the commencement thereof, the indemnifying party shall > > be entitled to participate in and, to the extent it shall wish, to assume > > and undertake the defense thereof with counsel satisfactory to such > > indemnified party, and, after notice from the indemnifying party to such > > indemnified party of its election so to assume and undertake the defense > > thereof, the indemnifying party shall not be liable to such indemnified > > party under this Section 9.6(c) for any legal expenses subsequently incurred > > by such indemnified party in connection with the defense thereof other than > > reasonable costs of investigation and of liaison with counsel so selected, > > provided, however, that, if the defendants in any such action include both > > the indemnified party and the indemnifying party and the indemnified party > > shall have reasonably concluded that there may be reasonable defenses > > available to it which are different from or additional to those available to > > the indemnifying party or if the interests of the indemnified party > > reasonably may be deemed to conflict with the interests of the indemnifying > > party, the indemnified parties shall have the right to select one separate > > counsel and to assume such legal defenses and otherwise to participate in > > the defense of such action, with the reasonable expenses and fees of such > > separate counsel and other expenses related to such participation to be > > reimbursed by the indemnifying party as incurred.",
"> > > > (d) In order to provide for just and equitable contribution in the event of > > joint liability under the Act in any case in which either (i) the Purchaser, > > or any controlling person of the Purchaser, makes a claim for > > indemnification pursuant to this Section 9.6 but it is judicially determined > > (by the entry of a final judgment or decree by a court of competent > > jurisdiction and the expiration of time to appeal or the denial of the last > > right of appeal) that such indemnification may not be enforced in such case > > notwithstanding the fact that this Section 9.6 provides for indemnification > > in such case, or (ii) contribution under the Securities Act may be required > > on the part of the Purchaser or controlling person of the Purchaser in > > circumstances for which indemnification is provided under this Section 9.6; > > then, and in each such case, the Company and the Purchaser will contribute > > to the aggregate losses, claims, damages or liabilities to which they may be > > subject (after contribution from others) in such proportion so that the > > Purchaser is responsible only for the portion represented by the percentage > > that the public offering price of its securities offered by the registration > > statement bears to the public offering price of all securities offered by > > such registration statement, provided, however, that, in any such case, (A) > > the Purchaser will not be required to contribute any amount in excess of the > > public offering price of all such securities offered by it pursuant to such > > registration statement; and (B) no person or entity guilty of fraudulent > > misrepresentation (within the meaning of Section 10(f) of the Securities > > Act) will be entitled to contribution from any person or entity who was not > > guilty of such fraudulent misrepresentation. -19- -------------------------------------------------------------------------------- 10.",
"OFFERING RESTRICTIONS. Except as previously disclosed in the SEC Reports or pursuant to stock or stock options granted to employees, directors or consultants of the Company, or equity or debt issued in connection with an acquisition of a business or assets by the Company, or the issuance by the Company of stock in connection with the establishment of a joint venture partnership or licensing arrangement (these exceptions hereinafter referred to as the \"Excepted Issuances\"), for so long as any shares of Preferred Stock remain outstanding, the Company will not, without the prior written consent of the Purchaser, issue any securities which are convertible on demand at the option of the holder, and without any right of the Company to preclude such conversion by redemption of such securities for cash or otherwise, into freely tradable shares of Common Stock, where the applicable conversion rate is determined based on the trailing market price of the Common Stock at the time of conversion. -20- -------------------------------------------------------------------------------- 11. SECURITY INTEREST.",
"As a condition of Closing, the Company will grant to the Purchaser a security interest in its assets pursuant to a Security Agreement in the form attached hereto as Exhibit D to secure the amortization obligations with respect to the Preferred Stock. Such security interest will be subordinate to security interests granted to Greater Bay Bank and any subsequent principal bank or financial institution creditor of the Company. The Purchaser will enter into such subordination or intercreditor agreements as such creditors may reasonably request, provided that the provisions of such agreements shall be subject to negotiation by the parties thereto in good faith.",
"The Company will also execute all such documents as the Purchaser may reasonably request and which are necessary to memorialize and further protect the security interest described above. 12. MISCELLANEOUS. > 12.1 Governing Law. This Agreement shall be governed by and construed in > accordance with the laws of the State of New York, without regard to > principles of conflicts of laws. Any action brought by either party against > the other concerning the transactions contemplated by this Agreement shall be > brought only in the state courts of New York or in the federal courts located > in the state of New York. Both parties and the individuals executing this > Agreement and other agreements on behalf of the Company agree to submit to the > jurisdiction of such courts and waive trial by jury.",
"> > 12.2 Survival. The representations, warranties, covenants and agreements made > herein (including the indemnity provisions set forth in Section 7) shall > survive any investigation made by the Purchaser and the closing of the > transactions contemplated hereby until the 18 month anniversary of the Closing > Date. All statements as to factual matters contained in any certificate or > other instrument delivered by or on behalf of the Company pursuant hereto in > connection with the transactions contemplated hereby shall be deemed to be > representations and warranties by the Company hereunder solely as of the date > of such certificate or instrument.",
"> > 12.3 Successors and Assigns. Except as otherwise expressly provided herein, > the provisions hereof shall inure to the benefit of, and be binding upon, the > successors, assigns, heirs, executors and administrators of the parties hereto > and shall inure to the benefit of and be enforceable by each person who shall > be a holder of the Securities from time to time. > > 12.4 Entire Agreement. This Agreement, the exhibits and schedules hereto, the > Related Agreements and the other documents delivered pursuant hereto > constitute the full and entire understanding and agreement between the parties > with regard to the subjects hereof and no party shall be liable or bound to > any other in any manner by any representations, warranties, covenants and > agreements except as specifically set forth herein and therein.",
"> > 12.5 Severability. In case any provision of the Agreement shall be invalid, > illegal or unenforceable, the validity, legality and enforceability of the > remaining provisions shall not in any way be affected or impaired thereby. -21- -------------------------------------------------------------------------------- > 12.6 Amendment and Waiver. This provisions of this Agreement may be amended, > modified or waived only upon the written consent of the Company and the > Purchaser. > > 12.7 Delays or Omissions. It is agreed that no delay or omission to exercise > any right, power or remedy accruing to any party, upon any breach, default or > noncompliance by another party under this Agreement or the Related Agreements, > shall impair any such right, power or remedy, nor shall it be construed to be > a waiver of any such breach, default or noncompliance, or any acquiescence > therein, or of or in any similar breach, default or noncompliance thereafter > occurring. It is further agreed that any waiver, permit, consent or approval > of any kind or character on the Purchaser's part of any breach, default or > noncompliance under this Agreement, the Preferred Stock or the Related > Agreements or any waiver on such party's part of any provisions or conditions > of the Agreement, the Certificate of Designations or the Related Agreements > must be in writing and shall be effective only to the extent specifically set > forth in such writing.",
"All remedies, either under this Agreement, the > Preferred Stock or the Related Agreements, by law or otherwise afforded to any > party, shall be cumulative and not alternative. > > 12.8 Notices. All notices required or permitted hereunder shall be in writing > and shall be deemed effectively given: (a) upon personal delivery to the party > to be notified, (b) five days after having been sent by registered or > certified mail, return receipt requested, postage prepaid, or (c) one day > after deposit with a nationally recognized overnight courier, specifying next > day delivery, with written verification of receipt.",
"All communications shall > be sent to the Company at the address as set forth on the signature page > hereof, with a copy to Wilson, Sonsini, Goodrich & Rosati, Professional > Corporation, 650 Page Mill Road, Palo Alto, CA 94304, attn: Herbert P Fockler, > Esq., and to the Purchaser at the address set forth on the signature page > hereto, with a copy to Daniel M. Laifer, Esq., 152 West 57th Street, 4th > Floor, New York, NY 10019, or at such other address as the Company or the > Purchaser may designate by ten days advance written notice to the other > parties hereto. > > 12.9 Attorneys' Fees. In the event that any suit or action is instituted to > enforce any provision in this Agreement, the prevailing party in such dispute > shall be entitled to recover from the losing party all fees, costs and > expenses of enforcing any right of such prevailing party under or with respect > to this Agreement, including, without limitation, such reasonable fees and > expenses of attorneys and accountants, which shall include, without > limitation, all fees, costs and expenses of appeals.",
"> > 12.10 Titles and Subtitles. The titles of the sections and subsections of the > Agreement are for convenience of reference only and are not to be considered > in construing this Agreement. > > 12.11 Counterparts. This Agreement may be executed in any number of > counterparts, each of which shall be an original, but all of which together > shall constitute one instrument. > > 12.12 Broker's Fees. Except as set forth in this Agreement, each party hereto > represents and warrants that no agent, broker, investment banker, person or > firm acting on behalf of or under the authority of such party hereto is or > will be entitled to any broker's or finder's fee or any other commission > directly or indirectly in connection with the transactions contemplated > herein, except as specified herein with respect to the Purchaser. Each party > hereto further agrees to indemnify each other party for any claims, losses or > expenses incurred by such other party as a result of the representation in > this Section 12.12 being untrue.",
"> 12.13 Construction. Each party acknowledges that its legal counsel > participated in the preparation of this Agreement and, therefore, stipulates > that the rule of construction that ambiguities are to be resolved against the > drafting party shall not be applied in the interpretation of this Agreement to > favor any party against the other. -22- -------------------------------------------------------------------------------- IN WITNESS WHEREOF, the parties hereto have executed the SECURITIES PURCHASE AGREEMENT as of the date set forth in the first paragraph hereof. COMPANY: PURCHASERS: SOCKET COMMUNICATIONS, INC. LAURUS MASTER FUND, LTD. By: By: Name: Name: Title: Title: Address: 37400 Central Court Newark, California 94560 Address: LAURUS MASTER FUND, LTD. c/o Ironshore Corporate Services Ltd. P.O. Box 1234 G.T., Queensgate House, South Church Street Grand Cayman, Cayman Islands -------------------------------------------------------------------------------- LIST OF EXHIBITS Form of Certificate of Designation Exhibit A Form of Warrant Exhibit B Form of Opinion Exhibit C Form of Security Agreement Exhibit D -------------------------------------------------------------------------------- EXHIBIT A CERTIFICATE OF DESIGNATIONS -------------------------------------------------------------------------------- EXHIBIT B FORM OF WARRANT -------------------------------------------------------------------------------- EXHIBIT C FORM OF OPINION -------------------------------------------------------------------------------- EXHIBIT D FORM OF SECURITY AGREEMENT"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
223 F.Supp. 199 (1963) UNITED STATES of America v. Beale J. FAUCETTE, Defendant. United States District Court S. D. New York. November 8, 1963. *200 Robert M. Morgenthau, U. S. Atty. for the Southern District of New York, for the United States, Thomas F. Shea, Asst. U. S. Atty., of counsel. Richard Owen, New York City, for defendant, Richard Owen, James R. Zuckerman, New York City, of counsel. FREDERICK van PELT BRYAN, District Judge. In a four count information filed by the United States Attorney on March 26, 1963, defendant Faucette is charged with wilful failure to file individual income tax returns for the years 1956, 1957, 1958 and 1959, as required by 26 U.S.C. §§ 6012(a) and 6072(a), in violation of 26 U.S.C. § 7203. He now moves for leave to withdraw his plea of not guilty to the information and enter a plea of nolo contendere. The United States Attorney opposes his application. A plea of nolo contendere can be entered only with the consent of the court and an application for leave to enter the plea is addressed to the court's discretion. Rule 11, F.R.Cr.P.; Mason v. United States, 250 F.2d 704, 706 (10 Cir. 1957). It has been said that courts are "hostile" to the plea. See United States v. Bagliore, 182 F.Supp. 714, 716 (E.D.N.Y.1960). Whether this be so or not, they are at least reluctant to accept it unless "the circumstances of the case are so exceptional as to appeal to a favorable exercise of [the court's] discretion." United States v. Chin Doong Art, 193 F.Supp. 820, 822 (E.D.N.Y.1961). The test to be applied is whether acceptance of the plea would be in the interest of sound administration of justice. United States v. Standard Ultramarine & Color Co., 137 F.Supp. 167 (S.D.N.Y.1955). Defendant was a successful business executive in a company which manufactured and sold seamless knitting machines and had developed a large market for such machines among manufacturers of seamless nylon hosiery for women. According to his counsel he was "eminently successful" in so doing. During 1955 defendant reached the age of 65, the normal age of retirement in his company, but was persuaded to remain active and to continue to direct the marketing of this machine, with most successful sales results, until 1961 or 1962. He failed to file individual federal income tax returns on time for 1955 and for the years 1956, 1957, 1958 and 1959, covered by the information. During these years he had substantial income tax liabilities above the amount of salary withheld by the company. For example, defendant admits a delinquent tax liability of $8,896.75 in 1956 which was not paid until April 1963 on advice of counsel, and his delinquent tax liability in 1957 was $9,285.77, which was not paid until 1960. The Government claims that when the 1955 return, which showed a small credit to be applied against the 1956 tax, was due, the defendant had for the first time substantial capital gains and thus substantial taxes over and above the amount *201 of his withholding. At that point he failed to file his 1955 return as required, and also his 1956 declaration of estimated tax. He had previously filed both declarations of estimated tax and returns regularly. All this is not controverted. Defendant filed no returns or declarations of estimated tax until June 9, 1960, after he had received his initial delinquency inquiry from the Government. At that point he engaged an accountant to bring his tax affairs up to date. In the interim he had requested extensions of time for filing the 1955, 1957 and 1958 returns, though what action was taken on such requests does not appear. During at least part of this period (1955 and 1956), it appears that he was in default on his state income taxes also. He apparently straightened out these difficulties in 1957, but did nothing to cure the federal income tax picture until he received the delinquency notice from the Government in 1960. During the entire period when he was in default he was outstandingly successful in his business activities. It is claimed that he was aging and preoccupied with company affairs. However, a report of a psychiatrist submitted in support of his application here shows no impairment of faculties and indicates that in fact he was over-conscientious and over-meticulous in his attention to detail in business affairs. There is no indication that he was prematurely aged at 65 when he presumably would be in full possession of his faculties, and perhaps close to the peak of his powers. This appears to be confirmed by his business record during this period. I am not impressed by the argument that defendant's immersion in the business affairs in which he was so successful can be considered as any excuse for failure to comply with his obligations as a taxpayer, particularly when such failure appears to have coincided with a substantial increase in tax liabilities. This is not an example of an isolated instance of failure to file for a single year, but of a continuing and consistent course of conduct which was no mere coincidence. It is true that defendant had a blameless record up to the time when the offenses charged here began. He was undoubtedly well-liked and respected by his business associates. These are among the factors which may be taken into consideration by the court in determining whether a plea of nolo contendere should be permitted, by they must be weighed against the other factors present in the case, including the circumstances under which the offenses charged were committed, the length of time they continued and the likely motivations for them. The impression left with the court is of a man more concerned with business success than with his obligations to the Government, who may well have had motivations for ignoring the latter. It does not appear to me that he is entitled to special consideration and, indeed, were such consideration given him under the circumstances shown here it might well serve to weaken the deterrent effect of the penal provisions for the violation of federal income tax laws. One further point merits brief discussion. A plea of nolo contendere enables the defendant to admit his guilt without being estopped in a subsequent civil action to deny the facts on which the criminal prosecution is based. Hudson v. United States, 272 U.S. 451, 47 S.Ct. 127, 71 L.Ed. 347 (1926); United States v. Bagliore, supra. It does not in any way limit the sentence which might otherwise be imposed by the court on a plea of guilty. Hudson v. United States, supra; United States v. Consentino, 191 F.2d 574 (7 Cir. 1951); United States v. Bagliore, supra. Apparently substantial questions remain open between the defendant and the Government as to his liability for civil tax penalties though no litigation has yet been commenced in that connection. The wilfulness of defendant's conduct is not only an issue in this criminal action but would also be an issue in any civil *202 action brought against him by the Government under § 6651(a) of the Internal Revenue Code. Under that section failure to file a return on the date required may subject the taxpayer to a delinquency penalty of up to 25% of the amount of the tax, unless he shows that such failure was due to a "reasonable cause" and not to "wilful neglect." Plainly one of the principal reasons why the defendant seeks leave to plead nolo contendere here is to avoid any estoppel against him on the question of wilful neglect in a prospective civil tax litigation, and to better his bargaining position in his present negotiations with the Government. I do not see any good reason why under the circumstances here such relief should be afforded him. While a major purpose of the plea of nolo contendere is to avoid estoppel in related civil litigation, the fact that such estoppel may exist is not sufficient reason for granting leave so to plead. Such leave should not be granted in the absence of exceptional circumstances which appeal to the court's discretion and such circumstances have not been shown to exist here. If defendant chooses to contest the issue in this prosecution he is plainly at liberty to do so. If he does I see no reason to suppose that any very long or complicated trial would result or that there would be any undue burden or expense to the Government in trying the case. While considerations of that nature have been held to bear on the question of whether or not the plea should be permitted, see, e. g., United States v. Cigarette Merchandisers Association, 136 F.Supp. 212 (S.D.N.Y.1955); United States v. Standard Ultramarine & Color Co., supra; United States v. Safeway Stores, Inc., 20 F.R.D. 451 (N.D.Tex. 1957), such considerations are not of significance here. The defendant's motion for leave to plead nolo contendere is in all respects denied. It is so ordered. | 10-30-2013 | [
"223 F.Supp. 199 (1963) UNITED STATES of America v. Beale J. FAUCETTE, Defendant. United States District Court S. D. New York. November 8, 1963. *200 Robert M. Morgenthau, U. S. Atty. for the Southern District of New York, for the United States, Thomas F. Shea, Asst. U. S. Atty., of counsel. Richard Owen, New York City, for defendant, Richard Owen, James R. Zuckerman, New York City, of counsel. FREDERICK van PELT BRYAN, District Judge. In a four count information filed by the United States Attorney on March 26, 1963, defendant Faucette is charged with wilful failure to file individual income tax returns for the years 1956, 1957, 1958 and 1959, as required by 26 U.S.C. §§ 6012(a) and 6072(a), in violation of 26 U.S.C. § 7203. He now moves for leave to withdraw his plea of not guilty to the information and enter a plea of nolo contendere. The United States Attorney opposes his application.",
"A plea of nolo contendere can be entered only with the consent of the court and an application for leave to enter the plea is addressed to the court's discretion. Rule 11, F.R.Cr.P. ; Mason v. United States, 250 F.2d 704, 706 (10 Cir. 1957). It has been said that courts are \"hostile\" to the plea. See United States v. Bagliore, 182 F.Supp. 714, 716 (E.D.N.Y.1960). Whether this be so or not, they are at least reluctant to accept it unless \"the circumstances of the case are so exceptional as to appeal to a favorable exercise of [the court's] discretion.\" United States v. Chin Doong Art, 193 F.Supp. 820, 822 (E.D.N.Y.1961). The test to be applied is whether acceptance of the plea would be in the interest of sound administration of justice. United States v. Standard Ultramarine & Color Co., 137 F.Supp. 167 (S.D.N.Y.1955).",
"Defendant was a successful business executive in a company which manufactured and sold seamless knitting machines and had developed a large market for such machines among manufacturers of seamless nylon hosiery for women. According to his counsel he was \"eminently successful\" in so doing. During 1955 defendant reached the age of 65, the normal age of retirement in his company, but was persuaded to remain active and to continue to direct the marketing of this machine, with most successful sales results, until 1961 or 1962. He failed to file individual federal income tax returns on time for 1955 and for the years 1956, 1957, 1958 and 1959, covered by the information. During these years he had substantial income tax liabilities above the amount of salary withheld by the company. For example, defendant admits a delinquent tax liability of $8,896.75 in 1956 which was not paid until April 1963 on advice of counsel, and his delinquent tax liability in 1957 was $9,285.77, which was not paid until 1960. The Government claims that when the 1955 return, which showed a small credit to be applied against the 1956 tax, was due, the defendant had for the first time substantial capital gains and thus substantial taxes over and above the amount *201 of his withholding.",
"At that point he failed to file his 1955 return as required, and also his 1956 declaration of estimated tax. He had previously filed both declarations of estimated tax and returns regularly. All this is not controverted. Defendant filed no returns or declarations of estimated tax until June 9, 1960, after he had received his initial delinquency inquiry from the Government. At that point he engaged an accountant to bring his tax affairs up to date. In the interim he had requested extensions of time for filing the 1955, 1957 and 1958 returns, though what action was taken on such requests does not appear. During at least part of this period (1955 and 1956), it appears that he was in default on his state income taxes also. He apparently straightened out these difficulties in 1957, but did nothing to cure the federal income tax picture until he received the delinquency notice from the Government in 1960.",
"During the entire period when he was in default he was outstandingly successful in his business activities. It is claimed that he was aging and preoccupied with company affairs. However, a report of a psychiatrist submitted in support of his application here shows no impairment of faculties and indicates that in fact he was over-conscientious and over-meticulous in his attention to detail in business affairs. There is no indication that he was prematurely aged at 65 when he presumably would be in full possession of his faculties, and perhaps close to the peak of his powers.",
"This appears to be confirmed by his business record during this period. I am not impressed by the argument that defendant's immersion in the business affairs in which he was so successful can be considered as any excuse for failure to comply with his obligations as a taxpayer, particularly when such failure appears to have coincided with a substantial increase in tax liabilities. This is not an example of an isolated instance of failure to file for a single year, but of a continuing and consistent course of conduct which was no mere coincidence. It is true that defendant had a blameless record up to the time when the offenses charged here began. He was undoubtedly well-liked and respected by his business associates. These are among the factors which may be taken into consideration by the court in determining whether a plea of nolo contendere should be permitted, by they must be weighed against the other factors present in the case, including the circumstances under which the offenses charged were committed, the length of time they continued and the likely motivations for them. The impression left with the court is of a man more concerned with business success than with his obligations to the Government, who may well have had motivations for ignoring the latter. It does not appear to me that he is entitled to special consideration and, indeed, were such consideration given him under the circumstances shown here it might well serve to weaken the deterrent effect of the penal provisions for the violation of federal income tax laws.",
"One further point merits brief discussion. A plea of nolo contendere enables the defendant to admit his guilt without being estopped in a subsequent civil action to deny the facts on which the criminal prosecution is based. Hudson v. United States, 272 U.S. 451, 47 S.Ct. 127, 71 L.Ed. 347 (1926); United States v. Bagliore, supra. It does not in any way limit the sentence which might otherwise be imposed by the court on a plea of guilty. Hudson v. United States, supra; United States v. Consentino, 191 F.2d 574 (7 Cir. 1951); United States v. Bagliore, supra. Apparently substantial questions remain open between the defendant and the Government as to his liability for civil tax penalties though no litigation has yet been commenced in that connection.",
"The wilfulness of defendant's conduct is not only an issue in this criminal action but would also be an issue in any civil *202 action brought against him by the Government under § 6651(a) of the Internal Revenue Code. Under that section failure to file a return on the date required may subject the taxpayer to a delinquency penalty of up to 25% of the amount of the tax, unless he shows that such failure was due to a \"reasonable cause\" and not to \"wilful neglect.\" Plainly one of the principal reasons why the defendant seeks leave to plead nolo contendere here is to avoid any estoppel against him on the question of wilful neglect in a prospective civil tax litigation, and to better his bargaining position in his present negotiations with the Government.",
"I do not see any good reason why under the circumstances here such relief should be afforded him. While a major purpose of the plea of nolo contendere is to avoid estoppel in related civil litigation, the fact that such estoppel may exist is not sufficient reason for granting leave so to plead. Such leave should not be granted in the absence of exceptional circumstances which appeal to the court's discretion and such circumstances have not been shown to exist here. If defendant chooses to contest the issue in this prosecution he is plainly at liberty to do so. If he does I see no reason to suppose that any very long or complicated trial would result or that there would be any undue burden or expense to the Government in trying the case. While considerations of that nature have been held to bear on the question of whether or not the plea should be permitted, see, e. g., United States v. Cigarette Merchandisers Association, 136 F.Supp. 212 (S.D.N.Y.1955); United States v. Standard Ultramarine & Color Co., supra; United States v. Safeway Stores, Inc., 20 F.R.D. 451 (N.D.Tex.",
"1957), such considerations are not of significance here. The defendant's motion for leave to plead nolo contendere is in all respects denied. It is so ordered."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2261340/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
--------------------------------------------------------------------------------
Exhibit 10.1 [t82391001_v1.jpg]
Internap Corporation
One Ravinia Drive, Suite 1300
Atlanta, GA 30346
May 7, 2015
Michael A. Ruffolo
One Ravinia Drive
Suite 1300
Atlanta, Georgia 303046
Dear Mike:
On behalf of Internap Corporation, I am pleased to offer you the position of President and Chief Executive Officer. You will continue to serve as a director of Internap until your successor is elected and qualified or until your earlier resignation or removal, although you no longer will be compensated after May 11, 2015 in that capacity. This letter outlines the terms of this offer, which assumes that you will commence employment on May 11, 2015.
Your annual base salary will be $675,000, payable in accordance with Internap’s payroll practices, and will be reviewed annually for increase. Your annual target bonus will be 100% of your annual base salary. Your bonus will be structured so that the maximum bonus opportunity is two times the target bonus. However, for 2015 your bonus shall be paid at the target level (prorated for the number of days that you are employed) on the pay period that ends August 21, 2015.
You will receive a cash signing bonus of $500,000, payable upon your commencement of employment. However, if your employment terminates on or prior to May 10, 2017, under the circumstances described in Section 1.3 of the Employment Security Agreement, which is referenced below, you shall reimburse Internap for 50% of the signing bonus. All compensation is subject to customary withholdings and payroll practices of Internap.
Page 2
Upon commencement of employment, you will be granted an option to purchase 300,000 shares of Internap common stock at an exercise price equal to the closing price on the day of grant. The vesting schedule for these options will be 25% on the first anniversary of the grant date and in 36 equal monthly installments thereafter for the remainder.
You also will receive a new hire grant of 300,000 shares of restricted stock. These shares of restricted stock will vest as follows: 34% on the 90th day after commencement of your employment; 33% on the first anniversary of commencement of your employment; and 33% on the second anniversary of commencement of your employment. Upon vesting of restricted stock you agree that minimum withholding will be paid by the automatic surrender of shares from the award for the payment of applicable minimum withholding.
You will accrue paid time off annually in accordance with Internap’s policies and programs, provided that you shall be entitled to at least twenty (20) days per year of vacation time. Subject to Internap otherwise changing its program for executive officers generally, you will have the right to carry over any unused paid time off subject to the maximum accrual under Internap policy. In addition, you will be eligible to participate in the health, welfare and other benefit plans made available to Internap’s executive officers.
You will also be provided reimbursement of travel and other business expenses in accordance with Company policy and practice.
Page 3
You will receive the benefit of Internap’s Employment Security Agreement, which has been provided to you. The Employment Security Agreement is the exclusive source of your rights in the event that your employment is terminated. You will be subject to Internap’s stock ownership guidelines applicable to the Chief Executive Officer.
Your continued status as a director of Internap is subject to periodic stockholder approval and such other limitations as might apply to directors generally.
Lastly, your employment by Internap will be “at will,” subject to the Employment Security Agreement. In the event that your employment with the company is terminated for any reason, you agree to immediately resign as a director of Internap upon request.
We are excited about the future of Internap and are confident in your ability to lead Internap to the next level of its development.
Sincerely yours, /s/ Charlie Coe Charlie Coe On behalf of the Board of Directors
Page 4
I acknowledged receipt of this letter, and understand the terms of Internap’s offer of employment.
/s/ Michael A. Ruffolo 5-7-2015 Michael A. Ruffolo Date Signature | [
"-------------------------------------------------------------------------------- Exhibit 10.1 [t82391001_v1.jpg] Internap Corporation One Ravinia Drive, Suite 1300 Atlanta, GA 30346 May 7, 2015 Michael A. Ruffolo One Ravinia Drive Suite 1300 Atlanta, Georgia 303046 Dear Mike: On behalf of Internap Corporation, I am pleased to offer you the position of President and Chief Executive Officer. You will continue to serve as a director of Internap until your successor is elected and qualified or until your earlier resignation or removal, although you no longer will be compensated after May 11, 2015 in that capacity. This letter outlines the terms of this offer, which assumes that you will commence employment on May 11, 2015. Your annual base salary will be $675,000, payable in accordance with Internap’s payroll practices, and will be reviewed annually for increase. Your annual target bonus will be 100% of your annual base salary. Your bonus will be structured so that the maximum bonus opportunity is two times the target bonus. However, for 2015 your bonus shall be paid at the target level (prorated for the number of days that you are employed) on the pay period that ends August 21, 2015. You will receive a cash signing bonus of $500,000, payable upon your commencement of employment.",
"However, if your employment terminates on or prior to May 10, 2017, under the circumstances described in Section 1.3 of the Employment Security Agreement, which is referenced below, you shall reimburse Internap for 50% of the signing bonus. All compensation is subject to customary withholdings and payroll practices of Internap. Page 2 Upon commencement of employment, you will be granted an option to purchase 300,000 shares of Internap common stock at an exercise price equal to the closing price on the day of grant. The vesting schedule for these options will be 25% on the first anniversary of the grant date and in 36 equal monthly installments thereafter for the remainder. You also will receive a new hire grant of 300,000 shares of restricted stock.",
"These shares of restricted stock will vest as follows: 34% on the 90th day after commencement of your employment; 33% on the first anniversary of commencement of your employment; and 33% on the second anniversary of commencement of your employment. Upon vesting of restricted stock you agree that minimum withholding will be paid by the automatic surrender of shares from the award for the payment of applicable minimum withholding. You will accrue paid time off annually in accordance with Internap’s policies and programs, provided that you shall be entitled to at least twenty (20) days per year of vacation time.",
"Subject to Internap otherwise changing its program for executive officers generally, you will have the right to carry over any unused paid time off subject to the maximum accrual under Internap policy. In addition, you will be eligible to participate in the health, welfare and other benefit plans made available to Internap’s executive officers. You will also be provided reimbursement of travel and other business expenses in accordance with Company policy and practice. Page 3 You will receive the benefit of Internap’s Employment Security Agreement, which has been provided to you. The Employment Security Agreement is the exclusive source of your rights in the event that your employment is terminated. You will be subject to Internap’s stock ownership guidelines applicable to the Chief Executive Officer.",
"Your continued status as a director of Internap is subject to periodic stockholder approval and such other limitations as might apply to directors generally. Lastly, your employment by Internap will be “at will,” subject to the Employment Security Agreement. In the event that your employment with the company is terminated for any reason, you agree to immediately resign as a director of Internap upon request. We are excited about the future of Internap and are confident in your ability to lead Internap to the next level of its development. Sincerely yours, /s/ Charlie Coe Charlie Coe On behalf of the Board of Directors Page 4 I acknowledged receipt of this letter, and understand the terms of Internap’s offer of employment.",
"/s/ Michael A. Ruffolo 5-7-2015 Michael A. Ruffolo Date Signature"
]
| https://github.com/TheAtticusProject/cuad | 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 .
Drawings The drawings are objected to because: It is not clear as to which feature the operating device (30) in Fig. 1b is pointing to. Applicant should extend the arrow closer to the intended feature. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification The disclosure is objected to because of the following informalities: 1. Para. 0038, line 3, “present in the image” is unclear since it is not clear as to which image Applicant is referring to. Does Applicant mean, “present in the current image”? 2. Para. 0035, line 8, “on the size itself” is not clear. Does Applicant mean, “on the size of the obstacle itself”? 3. Para. 0042, the phrase, “For the further operation of the picking device which then become possible, this means that the medicament packages” is unclear and requires clarification. Appropriate correction is required.
Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 14, and 20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Relative to claims 1, 14, and 20, the phrase, “corresponding signals” is unclear. Does Applicant mean, corresponding signals indicating the presence of an obstacle? Claim Rejections - 35 USC § 102 The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 12-13 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Eller (US Patent No. 9,978,036). Relative to claims 12-13, Eller discloses: a picking device (202)(Fig. 3, 6) for medicaments (Col. 3, lines 5-8), comprising: a plurality of storage spaces (see plurality of “positions” or “locations” on surface area, 310, of inventory surface units, Ref. 302, 602a, 602b, where various products are placed)(Fig. 3, 6) for medicament packaging (Col. 13, lines 35-40; Col. 11, lines 55-57; Col. 6, lines 53-55); an operating device (306)(Fig. 3, 6) having a gripper (326)(Col. 6, lines 57-58; Col. 9, lines 10-19), the operating device (306)(Fig. 3, 6) is movable horizontally in an X-direction (X-axis) and vertically in a Z-direction (Z-axis) in front of the plurality of the storage spaces (602a, 602b)(Fig. 6) in a movement space (see space where picker moves above the surface units to pick products; Fig. 3, 6; picker is movable along multiple axis, including an X and Z axis; Col. 7, lines 1-20); at least one storage device (302, 602a, 602b)(Fig. 3, 6) is configured so that medicament packaging (“unit of use products”) is movable into the picking device (202)(Fig. 3, 6) and from which the gripper (326) is configured to take medicament packaging (Col. 6, lines 54-59; Col. 7, lines 14-19);
an unloading device (see separate location where products are released, such as Ref. 330 of Ref. 122; Col. 9, lines 19-20) configured to receive medicament packaging transferred by the operating device (306)(Fig. 3, 6) for removal from the picking device (326)(Col. 10, lines 5-15); at least one optical detection device (camera, 322; a camera is also included in Ref. 304/604)(Fig. 3-4, 6) arranged in the picking device (202)(Fig. 3, 6) and configured to create an overall image of the movement space (Col. 9, lines 28-40); a control device (204)(Fig. 5) coupled to the operating device (306), the at least one identification device (304, 604)(Fig. 3, 6) and the at least one optical detection device (322, 304, 604)(Col. 10, lines 30-35); and the at least one optical detection device (322)(Fig. 4) is a component of the gripper (326) of the operating device (306)(Fig. 4)(Col. 9, lines 28-40).
Allowable Subject Matter Claims 1 and 20 (as understood by the Examiner) would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action. Claims 14-19 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims. Reasons for Indicating Allowable Subject Matter The following is a statement of reasons for the indication of allowable subject matter: Relative to claims 1, 14, and 20 (as understood by the Examiner), the prior art does not disclose: creating, with the optical detection device after a predetermined event, an image of the movement space detectable by the optical detection device; comparing predefined areas of the image of the movement space with corresponding areas of a reference image; determining, based on the comparison of the predefined areas of the image of the movement space and the corresponding areas of the reference image, whether an obstacle is present in a detected portion of the movement space; and providing, based on the detection of the presence of an obstacle, corresponding signals to indicating the presence of the obstacle, as claimed.
Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Kalouche (US PG. Pub. 2021/0032034); Ross et al (US PG. Pub. 2008/0272138). Any inquiry concerning this communication or earlier communications from the examiner should be directed to YOLANDA RENEE CUMBESS whose telephone number is (571)270-5527. The examiner can normally be reached on M-F 9-5. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Gene Crawford can be reached on 571-272-6911. 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.
/YOLANDA R CUMBESS/Primary Examiner, Art Unit 3651 | 2021-10-05T04:30:55 | [
"Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Drawings The drawings are objected to because: It is not clear as to which feature the operating device (30) in Fig. 1b is pointing to. Applicant should extend the arrow closer to the intended feature.",
"Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency.",
"Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance. Specification The disclosure is objected to because of the following informalities: 1. Para. 0038, line 3, “present in the image” is unclear since it is not clear as to which image Applicant is referring to. Does Applicant mean, “present in the current image”?",
"2. Para. 0035, line 8, “on the size itself” is not clear. Does Applicant mean, “on the size of the obstacle itself”? 3. Para. 0042, the phrase, “For the further operation of the picking device which then become possible, this means that the medicament packages” is unclear and requires clarification. Appropriate correction is required. Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention. The following is a quotation of 35 U.S.C.",
"112 (pre-AIA ), second paragraph: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention. Claims 1, 14, and 20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.",
"Relative to claims 1, 14, and 20, the phrase, “corresponding signals” is unclear. Does Applicant mean, corresponding signals indicating the presence of an obstacle? Claim Rejections - 35 USC § 102 The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless – (a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.",
"Claim(s) 12-13 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Eller (US Patent No. 9,978,036). Relative to claims 12-13, Eller discloses: a picking device (202)(Fig. 3, 6) for medicaments (Col. 3, lines 5-8), comprising: a plurality of storage spaces (see plurality of “positions” or “locations” on surface area, 310, of inventory surface units, Ref. 302, 602a, 602b, where various products are placed)(Fig. 3, 6) for medicament packaging (Col. 13, lines 35-40; Col. 11, lines 55-57; Col. 6, lines 53-55); an operating device (306)(Fig.",
"3, 6) having a gripper (326)(Col. 6, lines 57-58; Col. 9, lines 10-19), the operating device (306)(Fig. 3, 6) is movable horizontally in an X-direction (X-axis) and vertically in a Z-direction (Z-axis) in front of the plurality of the storage spaces (602a, 602b)(Fig. 6) in a movement space (see space where picker moves above the surface units to pick products; Fig. 3, 6; picker is movable along multiple axis, including an X and Z axis; Col. 7, lines 1-20); at least one storage device (302, 602a, 602b)(Fig. 3, 6) is configured so that medicament packaging (“unit of use products”) is movable into the picking device (202)(Fig. 3, 6) and from which the gripper (326) is configured to take medicament packaging (Col. 6, lines 54-59; Col. 7, lines 14-19); an unloading device (see separate location where products are released, such as Ref. 330 of Ref. 122; Col. 9, lines 19-20) configured to receive medicament packaging transferred by the operating device (306)(Fig. 3, 6) for removal from the picking device (326)(Col. 10, lines 5-15); at least one optical detection device (camera, 322; a camera is also included in Ref. 304/604)(Fig. 3-4, 6) arranged in the picking device (202)(Fig.",
"3, 6) and configured to create an overall image of the movement space (Col. 9, lines 28-40); a control device (204)(Fig. 5) coupled to the operating device (306), the at least one identification device (304, 604)(Fig. 3, 6) and the at least one optical detection device (322, 304, 604)(Col. 10, lines 30-35); and the at least one optical detection device (322)(Fig. 4) is a component of the gripper (326) of the operating device (306)(Fig. 4)(Col. 9, lines 28-40). Allowable Subject Matter Claims 1 and 20 (as understood by the Examiner) would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action. Claims 14-19 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C.",
"112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims. Reasons for Indicating Allowable Subject Matter The following is a statement of reasons for the indication of allowable subject matter: Relative to claims 1, 14, and 20 (as understood by the Examiner), the prior art does not disclose: creating, with the optical detection device after a predetermined event, an image of the movement space detectable by the optical detection device; comparing predefined areas of the image of the movement space with corresponding areas of a reference image; determining, based on the comparison of the predefined areas of the image of the movement space and the corresponding areas of the reference image, whether an obstacle is present in a detected portion of the movement space; and providing, based on the detection of the presence of an obstacle, corresponding signals to indicating the presence of the obstacle, as claimed.",
"Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Kalouche (US PG. Pub. 2021/0032034); Ross et al (US PG. Pub. 2008/0272138). Any inquiry concerning this communication or earlier communications from the examiner should be directed to YOLANDA RENEE CUMBESS whose telephone number is (571)270-5527. The examiner can normally be reached on M-F 9-5. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Gene Crawford can be reached on 571-272-6911. 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. /YOLANDA R CUMBESS/Primary Examiner, Art Unit 3651"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-09-19.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . DETAILED ACTION Acknowledge is made of applicant’s amendment filed on 12/31/2020, in which claim 20 has been amended. Claims 1-23 are pending.
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 a telephone interview with applicant’s Attorney Justin King (703-639-0151 x100) on 01/12/2021.
Amendment of Claims (regarding the Amendment filed on 12/31/20): Claim 1 – amend lines 11-13 as follows: -- irradiating a laser onto the electrostatic protective layer when a defect is found in the display panel, such that a carbonization structure is formed in the electrostatic protective layer at a position corresponding to the defect; and a thickness of the carbonization structure is smaller than a thickness of the electrostatic protective layer. --
Claim 7 – amend lines 6-10 as follows: ; and a carbonization structure having a thickness smaller than a thickness of the electrostatic protective layer; wherein the electrostatic protective layer includes an organic transparent conductive material layer having a thickness ranging from 1000 nm to 2500 nm; --
Claim 14 – amend lines 8-9 as follows: -- substrate and including a carbonization structure; and a thickness of the carbonization structure is smaller than a thickness of the electrostatic protective layer; a second substrate; --
Claim 20 – amend line 4 as follows: -- the black structure is located on between the first filter structure and the second --
Allowable Subject Matter Claims 1-23 are allowed. The following is an examiner’s statement of reasons for allowance: The primary reason for the allowance of the independent claims 1, 14 is the inclusion of the limitation “…a thickness of the carbonization structure is smaller than a thickness of the electrostatic protective layer…” The prior art does not teach or suggest these limitations in combination with the other limitations of claims 1, 14. Claims 2-6 and 15-23 are allowed by virtue of their dependency.
“…an electrostatic protective layer disposed on the other surface of the first substrate; and a carbonization structure having a thickness smaller than a thickness of the electrostatic protective layer...” The prior art does not teach or suggest these limitations in combination with the other limitations of claim 7. Claims 8-13 are allowed by virtue of their dependency.
Hong et al. CN 102116948, Suh et al. US 2010/0040805 and Oh et al. US 2011/0228189 are silent as of the specific limitations. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to SANG NGUYEN whose telephone number is (571)270-3421. The examiner can normally be reached on 7:00AM - 4:30PM. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ed Glick can be reached on (571) 272-2490. 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
/SANG V NGUYEN/ Primary Examiner, Art Unit 2871 | 2021-01-21T18:45:36 | [
"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 Acknowledge is made of applicant’s amendment filed on 12/31/2020, in which claim 20 has been amended. Claims 1-23 are pending. 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 a telephone interview with applicant’s Attorney Justin King (703-639-0151 x100) on 01/12/2021. Amendment of Claims (regarding the Amendment filed on 12/31/20): Claim 1 – amend lines 11-13 as follows: -- irradiating a laser onto the electrostatic protective layer when a defect is found in the display panel, such that a carbonization structure is formed in the electrostatic protective layer at a position corresponding to the defect; and a thickness of the carbonization structure is smaller than a thickness of the electrostatic protective layer. -- Claim 7 – amend lines 6-10 as follows: ; and a carbonization structure having a thickness smaller than a thickness of the electrostatic protective layer; wherein the electrostatic protective layer includes an organic transparent conductive material layer having a thickness ranging from 1000 nm to 2500 nm; -- Claim 14 – amend lines 8-9 as follows: -- substrate and including a carbonization structure; and a thickness of the carbonization structure is smaller than a thickness of the electrostatic protective layer; a second substrate; -- Claim 20 – amend line 4 as follows: -- the black structure is located on between the first filter structure and the second -- Allowable Subject Matter Claims 1-23 are allowed.",
"The following is an examiner’s statement of reasons for allowance: The primary reason for the allowance of the independent claims 1, 14 is the inclusion of the limitation “…a thickness of the carbonization structure is smaller than a thickness of the electrostatic protective layer…” The prior art does not teach or suggest these limitations in combination with the other limitations of claims 1, 14.",
"Claims 2-6 and 15-23 are allowed by virtue of their dependency. “…an electrostatic protective layer disposed on the other surface of the first substrate; and a carbonization structure having a thickness smaller than a thickness of the electrostatic protective layer...” The prior art does not teach or suggest these limitations in combination with the other limitations of claim 7. Claims 8-13 are allowed by virtue of their dependency. Hong et al. CN 102116948, Suh et al. US 2010/0040805 and Oh et al.",
"US 2011/0228189 are silent as of the specific limitations. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to SANG NGUYEN whose telephone number is (571)270-3421. The examiner can normally be reached on 7:00AM - 4:30PM. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ed Glick can be reached on (571) 272-2490. 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 /SANG V NGUYEN/ Primary Examiner, Art Unit 2871"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-01-24.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Pet.den. | 08-23-2021 | [
"Pet.den."
]
| https://www.courtlistener.com/api/rest/v3/opinions/4834115/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 1642072
Decision Date: 11/01/16 Archive Date: 11/18/16
DOCKET NO. 11-02 179 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah
THE ISSUES
1. Whether the reduction of the evaluation for right knee instability, from 10 percent to noncompensably disabling (0 percent) was proper.
2. Entitlement to an initial disability rating in excess of 10 percent, for right knee instability.
3. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease, right knee status post tibial fracture.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Brandon A. Williams, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1989 to September 2009
These matters are before the Board of Veterans' Appeals (Board) on appeal from December 2009 and October 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.
In an October 2013 rating decision, the RO decreased the Veteran's service-connected right knee instability rating from 10 percent to 0 percent, effective September 4, 2013.
In December 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference. A copy of the hearing transcript is of record and has been reviewed.
In February 2014, the Board remanded the issues on appeal for further development, specifically a supplemental statement of the case (SSOC).
The issues of entitlement to an initial disability rating in excess of 10 percent, for right knee instability and entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease, right knee status post tibial fracture are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. In October 2013, the RO reduced the disability evaluation for the Veteran's service-connected right knee instability from 10 percent to noncompensably disabling, effective September 4, 2013.
2. The evidence at the time of the October 2013 rating decision did not demonstrate an improvement in the Veteran's work and life conditions.
CONCLUSION OF LAW
The reduction of the rating for the Veteran's service-connected right knee instability from 10 percent to noncompensably disabling was improper; the criteria for a restoration of a 10 percent disability rating for residuals of right knee instability from September 4, 2013 have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.105 (e), 3.159, 3.344, 4.71a Diagnostic Code 5257 (2015).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Legal Criteria
A Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C.A. § 1155 (West 2014). Prior to reducing a Veteran's disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2015); see also Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000).
It is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.1. If an examination report does not contain sufficient detail, or the diagnosis is not supported by the findings on the examination report, it must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examinations or in use of descriptive terms. 38 C.F.R. § 4.13. Finally, it must be considered that the basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10.
Procedurally, where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran must be informed that he may request a predetermination hearing, provided that the request is received by the VA within 30 days from the date of the notice. If no additional evidence is received within the 60 day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the Veteran expires. 38 C.F.R. § 3.105 (e).
Here, the procedural requirements in regard to reductions are not applicable as the Veteran's reduction did not result in a reduction or discontinuance of her compensation benefits.
With respect to VA's duty to assist, there is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal. The Veteran's service treatment records and VA treatment records have been associated with the claims file, and there is no indication that additional records are outstanding.
In regard to the Veteran's evaluation right knee instability, VA provided examinations in September 2013, March 2011 and December 2009, which the RO used as a basis in reducing the Veteran's rating. The adequacy of these examinations will be addressed below. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).
The Board finds that no further notice or assistance to the Veteran is required for a fair adjudication of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). All necessary development has been accomplished and appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993).
As to the propriety of the reduction, for reductions in rating to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344 (a) and (b). Where a Veteran's schedular rating has been both stable and continuous for five years or more the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher evaluation. 38 C.F.R. § 3.344 (a). The duration of the rating is measured from the effective date of the rating to the effective date of the reduction. Brown, 5 Vet. App. at 418. Here, the prior 10 percent disability rating for the Veteran's right knee instability was in effect for less than five years. Thus, the provisions of 38 C.F.R. § 3.344 (a) and (b) do not apply in this case.
However, with respect to other disabilities that are likely to improve (i.e., those in effect for less than five years), re-examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344 (c). Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, and 4.13); 38 C.F.R. § 3.344 (c).
In considering whether a reduction was proper, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated sustained, actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). However, post-reduction evidence may not be used to justify an improper reduction. VA is required to establish, by a preponderance of the evidence, that a rating reduction is warranted. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995).
Analysis
The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.
A December 2009 VA examination reflects the Veteran's right knee with subjective complaints of stiffness, occasional locking pain, and occasional instability. Upon examination, the objective medical evidence reflects the Veteran's right knee with mild swelling and tenderness and slightly positive results on instability testing; namely, the Lachman's and McMurray's testing.
A March 2011 VA examination report noted the Veteran with complaints of right knee instability, pain, stiffness, weakness, and decreased motion of the knee joint. Upon examination the report noted the Veteran's right knee with crepitation, clicking or snapping, and a mildly positive McMurray instability testing. Additionally, the examination noted the Veteran's right knee disability as having a moderate effect on activities such as: chores; shopping; traveling; bathing; dressing; and driving. Lastly, the examination report noted the Veteran's right knee disability prevented her from exercising, playing sports, and recreational activities.
Based on the above examinations, the Veteran was service-connected for her right knee instability at 10 percent disabling effective October 1, 2009.
The Veteran was provided a VA examination in September 2013. The examination report noted the Veteran's right knee with mild swelling, no patellar subluxation or dislocation and normal on instability testing.
The RO subsequently reduced the Veteran's right knee instability to noncompensably disabling, effective September 4, 2013, the date of the examination.
A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." Id. at 421. Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability had actually occurred, but also that the improvement reflects an improvement under the ordinary conditions of life and work. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2015).
While the September 2013 VA examination reflects the Veteran's right knee had some improvement, the examination report does not reflect an improvement under ordinary conditions of life and work, a necessary element. Specifically, the March 2011 examination report reflects the Veteran's right knee disability as having a moderate effect on her daily activities; and in some instances preventing her from certain activities. However, the September 2013 examination report does not discuss the Veteran's daily limitations or reflect that her previous limitations have improved. Based on the above, the evidence at the time of the September 2013 reduction does not reflect an improvement in the Veteran's work and life conditions. As such, the Board finds that the September 2013 reduction to be improper.
ORDER
A 10 percent disability evaluation for the Veteran's right knee instability is restored, effective September 4, 2013, the date of the reduction.
REMAND
The Board is conscious of Correia v. McDonald, 28 Vet. App. 158 (2016). Correia provides a precedential finding that the final sentence of 38 C.F.R. § 4.59 (2015) requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.
The Board has reviewed the Veteran's VA examinations throughout the appeal period findings and concludes that the findings associated with the reports do not meet the specifications of Correia. Specifically, the examinations do not contain range of motion testing of the Veteran's right knee in the areas of active motion, passive motion, in weight-bearing, and nonweight-bearing. Further, previous examination reports do not contain full range motion testing in those areas in the Veteran's opposite joint. Given this, the Board is not satisfied that the examination reports findings are adequate for a contemporaneous rating, in regard to the issue being remanded. A further examination is thus necessary under 38 C.F.R. § 3.159 (c)(4).
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for a VA medical examination to determine the current severity of her service-connected right knee disability. The Veteran should be provided reasonable notice of the scheduled examination to ensure her ability to obtain transportation. The claims folder should be provided to the examiner in connection with the examination of the Veteran.
For each affected joint, the examiner must address range of motion, painful motion (and at what point it starts), additional loss of motion after repetitions, and functional loss due to pain. This information must be derived from joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and with range of motion measurements of the opposite undamaged joint. The examination report must confirm that all such testing has been made and reflect those testing results. The examiner should further address, as pertinent, the following: instability, ankylosis, impairment of semilunar cartilage, and recurrent subluxation or lateral instability. If any testing cannot be conducted, the examiner should clearly specify the reasons why that testing is not possible. All opinions must be supported by a detailed rationale in a typewritten report.
2. Obtain a VA medical examination in order to obtain a retrospective evaluation in regard to his service-connected right knee disability.
The examiner should, to the extent possible, provide a retrospective opinion addressing prior range of motion of the right knee, painful motion (and at what point it started), additional loss of motion after repetitions, and functional loss due to pain - considering active and passive motion as well as weight-bearing and nonweight-bearing considerations from October 2009. This retrospective opinion should also include comparison with any paired joints. The examiner should further address, as pertinent, the following: instability, ankylosis, impairment of semilunar cartilage, and recurrent subluxation or lateral instability.
3. Then, readjudicate the Veteran's claim in light of all the evidence of record. If any benefit sought is denied, the Veteran and her representative should be provided with a Supplemental Statement of the Case (SSOC) and afforded an appropriate opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 11-01-2016 | [
"Citation Nr: 1642072 Decision Date: 11/01/16 Archive Date: 11/18/16 DOCKET NO. 11-02 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Whether the reduction of the evaluation for right knee instability, from 10 percent to noncompensably disabling (0 percent) was proper. 2. Entitlement to an initial disability rating in excess of 10 percent, for right knee instability. 3. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease, right knee status post tibial fracture. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brandon A. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1989 to September 2009 These matters are before the Board of Veterans' Appeals (Board) on appeal from December 2009 and October 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.",
"In an October 2013 rating decision, the RO decreased the Veteran's service-connected right knee instability rating from 10 percent to 0 percent, effective September 4, 2013. In December 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference. A copy of the hearing transcript is of record and has been reviewed. In February 2014, the Board remanded the issues on appeal for further development, specifically a supplemental statement of the case (SSOC). The issues of entitlement to an initial disability rating in excess of 10 percent, for right knee instability and entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease, right knee status post tibial fracture are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).",
"FINDINGS OF FACT 1. In October 2013, the RO reduced the disability evaluation for the Veteran's service-connected right knee instability from 10 percent to noncompensably disabling, effective September 4, 2013. 2. The evidence at the time of the October 2013 rating decision did not demonstrate an improvement in the Veteran's work and life conditions. CONCLUSION OF LAW The reduction of the rating for the Veteran's service-connected right knee instability from 10 percent to noncompensably disabling was improper; the criteria for a restoration of a 10 percent disability rating for residuals of right knee instability from September 4, 2013 have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.105 (e), 3.159, 3.344, 4.71a Diagnostic Code 5257 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria A Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C.A.",
"§ 1155 (West 2014). Prior to reducing a Veteran's disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2015); see also Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet.",
"App. 342, 350 (2000). It is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.1. If an examination report does not contain sufficient detail, or the diagnosis is not supported by the findings on the examination report, it must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examinations or in use of descriptive terms. 38 C.F.R.",
"§ 4.13. Finally, it must be considered that the basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Procedurally, where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level.",
"The Veteran must be informed that he may request a predetermination hearing, provided that the request is received by the VA within 30 days from the date of the notice. If no additional evidence is received within the 60 day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the Veteran expires. 38 C.F.R. § 3.105 (e). Here, the procedural requirements in regard to reductions are not applicable as the Veteran's reduction did not result in a reduction or discontinuance of her compensation benefits. With respect to VA's duty to assist, there is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal. The Veteran's service treatment records and VA treatment records have been associated with the claims file, and there is no indication that additional records are outstanding. In regard to the Veteran's evaluation right knee instability, VA provided examinations in September 2013, March 2011 and December 2009, which the RO used as a basis in reducing the Veteran's rating.",
"The adequacy of these examinations will be addressed below. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board finds that no further notice or assistance to the Veteran is required for a fair adjudication of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). All necessary development has been accomplished and appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). As to the propriety of the reduction, for reductions in rating to be properly accomplished, specific requirements must be met.",
"See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344 (a) and (b). Where a Veteran's schedular rating has been both stable and continuous for five years or more the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher evaluation. 38 C.F.R. § 3.344 (a). The duration of the rating is measured from the effective date of the rating to the effective date of the reduction. Brown, 5 Vet. App. at 418. Here, the prior 10 percent disability rating for the Veteran's right knee instability was in effect for less than five years.",
"Thus, the provisions of 38 C.F.R. § 3.344 (a) and (b) do not apply in this case. However, with respect to other disabilities that are likely to improve (i.e., those in effect for less than five years), re-examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344 (c). Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App.",
"at 420-421 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, and 4.13); 38 C.F.R. § 3.344 (c). In considering whether a reduction was proper, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated sustained, actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). However, post-reduction evidence may not be used to justify an improper reduction. VA is required to establish, by a preponderance of the evidence, that a rating reduction is warranted. See Kitchens v. Brown, 7 Vet.",
"App. 320, 325 (1995). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. A December 2009 VA examination reflects the Veteran's right knee with subjective complaints of stiffness, occasional locking pain, and occasional instability. Upon examination, the objective medical evidence reflects the Veteran's right knee with mild swelling and tenderness and slightly positive results on instability testing; namely, the Lachman's and McMurray's testing.",
"A March 2011 VA examination report noted the Veteran with complaints of right knee instability, pain, stiffness, weakness, and decreased motion of the knee joint. Upon examination the report noted the Veteran's right knee with crepitation, clicking or snapping, and a mildly positive McMurray instability testing. Additionally, the examination noted the Veteran's right knee disability as having a moderate effect on activities such as: chores; shopping; traveling; bathing; dressing; and driving. Lastly, the examination report noted the Veteran's right knee disability prevented her from exercising, playing sports, and recreational activities. Based on the above examinations, the Veteran was service-connected for her right knee instability at 10 percent disabling effective October 1, 2009. The Veteran was provided a VA examination in September 2013. The examination report noted the Veteran's right knee with mild swelling, no patellar subluxation or dislocation and normal on instability testing. The RO subsequently reduced the Veteran's right knee instability to noncompensably disabling, effective September 4, 2013, the date of the examination. A rating reduction requires an inquiry as to \"whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.\"",
"Id. at 421. Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability had actually occurred, but also that the improvement reflects an improvement under the ordinary conditions of life and work. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2015). While the September 2013 VA examination reflects the Veteran's right knee had some improvement, the examination report does not reflect an improvement under ordinary conditions of life and work, a necessary element. Specifically, the March 2011 examination report reflects the Veteran's right knee disability as having a moderate effect on her daily activities; and in some instances preventing her from certain activities. However, the September 2013 examination report does not discuss the Veteran's daily limitations or reflect that her previous limitations have improved. Based on the above, the evidence at the time of the September 2013 reduction does not reflect an improvement in the Veteran's work and life conditions.",
"As such, the Board finds that the September 2013 reduction to be improper. ORDER A 10 percent disability evaluation for the Veteran's right knee instability is restored, effective September 4, 2013, the date of the reduction. REMAND The Board is conscious of Correia v. McDonald, 28 Vet. App. 158 (2016). Correia provides a precedential finding that the final sentence of 38 C.F.R. § 4.59 (2015) requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Board has reviewed the Veteran's VA examinations throughout the appeal period findings and concludes that the findings associated with the reports do not meet the specifications of Correia. Specifically, the examinations do not contain range of motion testing of the Veteran's right knee in the areas of active motion, passive motion, in weight-bearing, and nonweight-bearing. Further, previous examination reports do not contain full range motion testing in those areas in the Veteran's opposite joint.",
"Given this, the Board is not satisfied that the examination reports findings are adequate for a contemporaneous rating, in regard to the issue being remanded. A further examination is thus necessary under 38 C.F.R. § 3.159 (c)(4). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA medical examination to determine the current severity of her service-connected right knee disability. The Veteran should be provided reasonable notice of the scheduled examination to ensure her ability to obtain transportation.",
"The claims folder should be provided to the examiner in connection with the examination of the Veteran. For each affected joint, the examiner must address range of motion, painful motion (and at what point it starts), additional loss of motion after repetitions, and functional loss due to pain. This information must be derived from joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and with range of motion measurements of the opposite undamaged joint. The examination report must confirm that all such testing has been made and reflect those testing results. The examiner should further address, as pertinent, the following: instability, ankylosis, impairment of semilunar cartilage, and recurrent subluxation or lateral instability. If any testing cannot be conducted, the examiner should clearly specify the reasons why that testing is not possible. All opinions must be supported by a detailed rationale in a typewritten report.",
"2. Obtain a VA medical examination in order to obtain a retrospective evaluation in regard to his service-connected right knee disability. The examiner should, to the extent possible, provide a retrospective opinion addressing prior range of motion of the right knee, painful motion (and at what point it started), additional loss of motion after repetitions, and functional loss due to pain - considering active and passive motion as well as weight-bearing and nonweight-bearing considerations from October 2009. This retrospective opinion should also include comparison with any paired joints. The examiner should further address, as pertinent, the following: instability, ankylosis, impairment of semilunar cartilage, and recurrent subluxation or lateral instability. 3.",
"Then, readjudicate the Veteran's claim in light of all the evidence of record. If any benefit sought is denied, the Veteran and her representative should be provided with a Supplemental Statement of the Case (SSOC) and afforded an appropriate opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment.",
"The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MILO H. HAWLEY 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 |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SUSAN PREISLER, Plaintiff-Appellant,
and
NELSON BERRIOS, Plaintiff,
v.
HOSPITALITY INTERNATIONAL, INCORPORATED, a Georgia No. 96-1435 Corporation, a/k/a Scottish Inns; BAN INN, INCORPORATED, a North Carolina Corporation, Defendants-Appellees,
and
ABC COMPANIES; JANE OR JOHN DOES, 1 through 10, Defendants.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, District Judge. (CA-94-958-5-BR(1))
Argued: December 2, 1996
Decided: January 30, 1997
Before WILKINSON, Chief Judge, ERVIN, Circuit Judge, and DAVIS, United States District Judge for the District of Maryland, sitting by designation.
_________________________________________________________________ Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Michael S. Kimm, Hackensack, New Jersey, for Appel- lant. Phillip J. Anthony, PATTERSON, DILTHEY, CLAY & BRY- SON, Raleigh, North Carolina, for Appellee Ban Inn; Andrew Albert Vanore, III, YATES, MCLAMB & WEYHER, Raleigh, North Caro- lina, for Appellee Hospitality International. ON BRIEF: Philip S. Adkins, EAGEN, EAGEN & ADKINS, Durham, North Carolina, for Appellant. Grayson L. Reeves, Jr., PATTERSON, DILTHEY, CLAY & BRYSON, Raleigh, North Carolina, for Appellee Ban Inn.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Hotel guests Susan Preisler and Nelson Berrios sued hotel operator Ban Inn and hotel franchisor Hospitality International for invasion of privacy and infliction of emotional distress. The district court granted summary judgment to Ban Inn and Hospitality International. Preisler appeals. Because the evidence shows that the defendants neither knew of nor ratified the alleged tortious acts by hotel employees, we affirm the judgment of the district court.
I.
On November 29, 1992, Preisler and Berrios checked into the Scot- tish Inn at Exit 15 on Interstate 95 in North Carolina. They were assigned room 142. Both Preisler and Berrios showered while in their room that night. They claim that during the stay they were startled by noises coming from the wall in the bathroom, on which a large vanity
2 mirror was positioned. They further allege that they discovered two separate "peeping tom" holes scraped into the mirror, behind which was a utility hallway accessible to all hotel employees. The president of Ban Inn, who manages the Scottish Inn hotel where Preisler and Berrios stayed, contends that he can find no evidence that peeping tom holes ever existed. He points out that two walls and several inches of fiberglass insulation separate the utility hallway from the bathroom in room 142, and none have holes or patch marks.
Preisler and Berrios brought suit against Ban Inn, the franchisee that operated that particular Scottish Inn, and against Hospitality International, the franchisor of the Scottish Inn chain. When Preisler and Berrios failed to provide discovery in a timely manner, the magis- trate judge recommended that defendants' motion for sanctions be allowed. The district court adopted the magistrate's recommendation, dismissing Berrios' claim for discovery violations, assessing $200 in costs against Preisler, and then granting summary judgment in favor of Ban Inn and Hospitality International. Only Preisler appeals.
II.
A.
Preisler argues that the district court erred in granting summary judgment to Ban Inn and Hospitality International. She asserts that the two companies are responsible for the invasion of privacy and inflic- tion of emotional distress that she suffered. Preisler's complaint pleads no claim of premises liability or other breach of duty owed directly to her by defendants. We therefore move directly into an analysis of whether Ban Inn and Hospitality International are vicari- ously liable, under respondeat superior, for torts allegedly committed by the hotel employees in this case.
Because the events at issue occurred in North Carolina, we look to North Carolina law to determine the rules of liability. In that state,
a principal will be held liable for its agent's wrongful act under the doctrine of respondeat superior when the agent's act is (1) expressly authorized by the principal; (2) commit-
3 ted within the scope of the agent's employment and in fur- therance of the principal's business--when the act comes within his implied authority; or (3) ratified by the principal.
B.B. Walker Co. v. Burns Int'l Sec. Servs., Inc. , 424 S.E.2d 172, 174 (N.C. Ct. App.), review denied, 429 S.E.2d 552 (N.C. 1993). Neither of the first two circumstances -- express authorization or scope of employment and furtherance of business -- are at issue in this case. If Ban Inn and Hospitality International are to be liable, then, it must be because they ratified the alleged peeping activities of the employ- ees. In order to ratify an agent's action, a corporation must have actual knowledge of the behavior. Carolina Equip. & Parts Co. v. Anders, 144 S.E.2d 252, 258 (N.C. 1965) ("A principal who acted without actual knowledge of the material facts will not be held to have ratified an unauthorized act of his agent even though he failed to exercise due diligence which would have revealed the truth.").
Preisler offers no evidence that either Ban Inn or Hospitality Inter- national had actual knowledge of any alleged peeping tom activities occurring at the Scottish Inn hotel.* She merely makes a bald allega- tion that "defendants Hospitality International and Scottish Inns knew or should have known or would have discovered by reasonable inspection of the relevant premises that such Peeping Tom holes existed in room 142 of the hotel." This is insufficient to counter the affidavits sworn by the president of Ban Inn and the vice president of Hospitality International stating that neither company knew of or rati- fied any peeping tom activities in the hotel on November 29, 1992 or at any other time. _________________________________________________________________ *Preisler attempts to find evidence of actual knowledge by urging a "negative inference" from the fact that no inspection report from Hospi- tality International can be found for 1992. She implies that an inspection of the Scottish Inn in question took place in 1992 but that the report has been purposely lost or destroyed because it indicated knowledge of the peepholes. Her reliance on the lack of a report, however, is misplaced. Hospitality International made "periodic reports" each of which referred to the previous inspection. Two inspections were made in 1991. The next report in sequence was written in March 1993, and it specifically refer- enced the previous report made in 1991. There is no evidence that Hospi- tality International made an inspection in 1992, and ample evidence that it did not.
4 B.
Preisler further argues that the district court abused its discretion in imposing a $200 sanction against her for discovery delays, under Fed. R. Civ. P. 37(a)(4). She claims that the court failed to consider her mitigating circumstances, that it imposed a sanction that was more than was necessary to deter future violations, and that it imposed sanctions for expenses related to a hearing which covered matters other than the sanction motion.
We find that the district court was well within its discretion in imposing a $200 sanction on Preisler. The defendants served Berrios and Preisler with written discovery requests on July 17, 1995, with reponses due by August 21, 1995. On September 18, after contacting Berrios and Preisler's attorney to try to obtain responses to the dis- covery request, defendants filed a Motion to Dismiss or Compel and Motion to Recover Expenses. The magistrate judge granted the Motion to Compel. Rule 37(a)(4) requires that,
the court shall, after affording an opportunity to be heard, require the party . . . whose conduct necessitated the motion . . . to pay the moving party the reasonable expenses incurred in making the motion, including attorneys' fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the dis- closure of discovery without court action, . . . or that other circumstances make an award of expenses unjust.
At the magistrate judge's request, the defendants prepared an affidavit showing that the expenses associated with the Motion to Compel amounted to $1,208. The magistrate judge recommended that Preisler be required to pay half of the total -- $604. The district court imposed only a $200 sanction. The court was well within its discretion to require Preisler to pay this amount.
III.
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED
5 | 07-03-2013 | [
"UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT SUSAN PREISLER, Plaintiff-Appellant, and NELSON BERRIOS, Plaintiff, v. HOSPITALITY INTERNATIONAL, INCORPORATED, a Georgia No. 96-1435 Corporation, a/k/a Scottish Inns; BAN INN, INCORPORATED, a North Carolina Corporation, Defendants-Appellees, and ABC COMPANIES; JANE OR JOHN DOES, 1 through 10, Defendants. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, District Judge. (CA-94-958-5-BR(1)) Argued: December 2, 1996 Decided: January 30, 1997 Before WILKINSON, Chief Judge, ERVIN, Circuit Judge, and DAVIS, United States District Judge for the District of Maryland, sitting by designation. _________________________________________________________________ Affirmed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL ARGUED: Michael S. Kimm, Hackensack, New Jersey, for Appel- lant. Phillip J. Anthony, PATTERSON, DILTHEY, CLAY & BRY- SON, Raleigh, North Carolina, for Appellee Ban Inn; Andrew Albert Vanore, III, YATES, MCLAMB & WEYHER, Raleigh, North Caro- lina, for Appellee Hospitality International.",
"ON BRIEF: Philip S. Adkins, EAGEN, EAGEN & ADKINS, Durham, North Carolina, for Appellant. Grayson L. Reeves, Jr., PATTERSON, DILTHEY, CLAY & BRYSON, Raleigh, North Carolina, for Appellee Ban Inn. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: Hotel guests Susan Preisler and Nelson Berrios sued hotel operator Ban Inn and hotel franchisor Hospitality International for invasion of privacy and infliction of emotional distress. The district court granted summary judgment to Ban Inn and Hospitality International. Preisler appeals. Because the evidence shows that the defendants neither knew of nor ratified the alleged tortious acts by hotel employees, we affirm the judgment of the district court.",
"I. On November 29, 1992, Preisler and Berrios checked into the Scot- tish Inn at Exit 15 on Interstate 95 in North Carolina. They were assigned room 142. Both Preisler and Berrios showered while in their room that night. They claim that during the stay they were startled by noises coming from the wall in the bathroom, on which a large vanity 2 mirror was positioned. They further allege that they discovered two separate \"peeping tom\" holes scraped into the mirror, behind which was a utility hallway accessible to all hotel employees. The president of Ban Inn, who manages the Scottish Inn hotel where Preisler and Berrios stayed, contends that he can find no evidence that peeping tom holes ever existed. He points out that two walls and several inches of fiberglass insulation separate the utility hallway from the bathroom in room 142, and none have holes or patch marks. Preisler and Berrios brought suit against Ban Inn, the franchisee that operated that particular Scottish Inn, and against Hospitality International, the franchisor of the Scottish Inn chain.",
"When Preisler and Berrios failed to provide discovery in a timely manner, the magis- trate judge recommended that defendants' motion for sanctions be allowed. The district court adopted the magistrate's recommendation, dismissing Berrios' claim for discovery violations, assessing $200 in costs against Preisler, and then granting summary judgment in favor of Ban Inn and Hospitality International. Only Preisler appeals. II. A. Preisler argues that the district court erred in granting summary judgment to Ban Inn and Hospitality International. She asserts that the two companies are responsible for the invasion of privacy and inflic- tion of emotional distress that she suffered. Preisler's complaint pleads no claim of premises liability or other breach of duty owed directly to her by defendants. We therefore move directly into an analysis of whether Ban Inn and Hospitality International are vicari- ously liable, under respondeat superior, for torts allegedly committed by the hotel employees in this case. Because the events at issue occurred in North Carolina, we look to North Carolina law to determine the rules of liability. In that state, a principal will be held liable for its agent's wrongful act under the doctrine of respondeat superior when the agent's act is (1) expressly authorized by the principal; (2) commit- 3 ted within the scope of the agent's employment and in fur- therance of the principal's business--when the act comes within his implied authority; or (3) ratified by the principal.",
"B.B. Walker Co. v. Burns Int'l Sec. Servs., Inc. , 424 S.E.2d 172, 174 (N.C. Ct. App. ), review denied, 429 S.E.2d 552 (N.C. 1993). Neither of the first two circumstances -- express authorization or scope of employment and furtherance of business -- are at issue in this case. If Ban Inn and Hospitality International are to be liable, then, it must be because they ratified the alleged peeping activities of the employ- ees. In order to ratify an agent's action, a corporation must have actual knowledge of the behavior. Carolina Equip.",
"& Parts Co. v. Anders, 144 S.E.2d 252, 258 (N.C. 1965) (\"A principal who acted without actual knowledge of the material facts will not be held to have ratified an unauthorized act of his agent even though he failed to exercise due diligence which would have revealed the truth.\"). Preisler offers no evidence that either Ban Inn or Hospitality Inter- national had actual knowledge of any alleged peeping tom activities occurring at the Scottish Inn hotel.",
"* She merely makes a bald allega- tion that \"defendants Hospitality International and Scottish Inns knew or should have known or would have discovered by reasonable inspection of the relevant premises that such Peeping Tom holes existed in room 142 of the hotel.\" This is insufficient to counter the affidavits sworn by the president of Ban Inn and the vice president of Hospitality International stating that neither company knew of or rati- fied any peeping tom activities in the hotel on November 29, 1992 or at any other time. _________________________________________________________________ *Preisler attempts to find evidence of actual knowledge by urging a \"negative inference\" from the fact that no inspection report from Hospi- tality International can be found for 1992.",
"She implies that an inspection of the Scottish Inn in question took place in 1992 but that the report has been purposely lost or destroyed because it indicated knowledge of the peepholes. Her reliance on the lack of a report, however, is misplaced. Hospitality International made \"periodic reports\" each of which referred to the previous inspection. Two inspections were made in 1991. The next report in sequence was written in March 1993, and it specifically refer- enced the previous report made in 1991. There is no evidence that Hospi- tality International made an inspection in 1992, and ample evidence that it did not. 4 B. Preisler further argues that the district court abused its discretion in imposing a $200 sanction against her for discovery delays, under Fed.",
"R. Civ. P. 37(a)(4). She claims that the court failed to consider her mitigating circumstances, that it imposed a sanction that was more than was necessary to deter future violations, and that it imposed sanctions for expenses related to a hearing which covered matters other than the sanction motion. We find that the district court was well within its discretion in imposing a $200 sanction on Preisler. The defendants served Berrios and Preisler with written discovery requests on July 17, 1995, with reponses due by August 21, 1995. On September 18, after contacting Berrios and Preisler's attorney to try to obtain responses to the dis- covery request, defendants filed a Motion to Dismiss or Compel and Motion to Recover Expenses.",
"The magistrate judge granted the Motion to Compel. Rule 37(a)(4) requires that, the court shall, after affording an opportunity to be heard, require the party . . . whose conduct necessitated the motion . . . to pay the moving party the reasonable expenses incurred in making the motion, including attorneys' fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the dis- closure of discovery without court action, . . .",
"or that other circumstances make an award of expenses unjust. At the magistrate judge's request, the defendants prepared an affidavit showing that the expenses associated with the Motion to Compel amounted to $1,208. The magistrate judge recommended that Preisler be required to pay half of the total -- $604. The district court imposed only a $200 sanction. The court was well within its discretion to require Preisler to pay this amount. III. For the foregoing reasons, we affirm the judgment of the district court. AFFIRMED 5"
]
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Order unanimously modified by providing (1) that if plaintiff is without present knowledge of any of the particulars sought he may state such lack of knowledge under oath in lieu thereof, and (2) that if an examination of the defendant should at any time be granted the defendant shall have leave to renew the motion for a further bill of particulars after the completion of said examination, and as so modified affirmed, without costs. The bill of particulars to be served within thirty days after service of order with notice of entry thereof. No opinion. Present — Martin, P, J., Townley, Dore, Cohn and Callahan, JJ. | 01-08-2022 | [
"Order unanimously modified by providing (1) that if plaintiff is without present knowledge of any of the particulars sought he may state such lack of knowledge under oath in lieu thereof, and (2) that if an examination of the defendant should at any time be granted the defendant shall have leave to renew the motion for a further bill of particulars after the completion of said examination, and as so modified affirmed, without costs. The bill of particulars to be served within thirty days after service of order with notice of entry thereof. No opinion. Present — Martin, P, J., Townley, Dore, Cohn and Callahan, JJ."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5354415/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
569 F. Supp. 2d 687 (2008) Willie GATEWOOD, et al., Plaintiffs v. KOCH FOODS OF MISSISSIPPI, LLC, Defendant. Civil Action No. 3:07cv82-KS-MTP. United States District Court, S.D. Mississippi, Hattiesburg Division. July 23, 2008. *688 Mike Espy, Mike Espy, PLLC, Roger K. Doolittle, Attorney, Jackson, MS, Peter D. Winebrake-PHV, The Winebrake Law Firm, LLC, Dresher, PA, Richard Bernard Celler-PHV, Morgan & Morgan, PA, Davie, FL, Robert L. Wiggins-PHV, Jr., Candis A. McGowan-PHV, Wiggins, Childs, Quinn & Pantazis, LLC, Birmingham, AL, for Plaintiffs. Russell W. Gray-PHV, Baker, Donelson, Bearman, Caldwell & Berkowitz, Chattanooga, TN, Scott W. Pedigo, Joan L. Lucas, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Jackson, MS, for Defendant.
*689 MEMORANDUM OPINION AND ORDER
KEITH STARRETT, District Judge. This cause is before the Court on the motion for summary judgment [Doc. # 40] filed by the Defendant, Koch Foods of Mississippi, LLC ("Koch Foods"), and the motion for summary judgment [Doc. # 44] filed by the Plaintiffs. Because the Plaintiffs have raised a genuine issue of material fact as to: (1) whether donning and doffing of sanitary equipment constitutes "work" under the FLSA; and (2) whether donning and doffing of required sanitary gear is both integral and indispensable to the Plaintiffs' principal activities, those portions of the Defendant's motion for summary judgment should be denied, and the Plaintiffs' motion for summary judgment should be denied. But because the Plaintiffs have failed to raise a genuine issue of material fact that would preclude this Court from enforcing § 203(o) to bar compensation claims based on an established custom or practice under a collective bargaining agreement, that portion of the Defendant's motion for summary judgment should be granted. Therefore, for the reasons fully set forth below, the Defendant's motion for summary judgment [Doc. # 40] should be granted in part and denied in part, and the Plaintiffs' motion for summary judgment [Doc. # 44] should be denied.
I. FACTUAL BACKGROUND This lawsuit is based on the compensation policies of three chicken processing plants located in southern Mississippi. In their collective action, the Plaintiffs allege that their employer has wrongfully denied them compensation and accrued overtime because it does not pay them for significant periods of work they must perform while off the clock. The Defendant alleges that these activities are not work under federal law, and that any claim for this time is barred based on an established custom under a collective bargaining agreement. Koch Foods operates three processing facilities relevant to this lawsuit: (1) a live processing plant in Morton, Mississippi (the "Live Processing Plant") that is dedicated to processing and packaging live chickens; (2) a de-bone plant in Forest, Mississippi (the "De-bone Plant") where previously processed chickens are deboned, dismembered, and then marinated, frozen, and packaged; and (3) a prepared foods plant in Morton, Mississippi (the "Prepared Foods Plant") where previously processed chicken is marinated, breaded, battered, fried, and packaged. Approximately 2150 hourly employees work at these three plants, and approximately 1710 of them are production employees. Workers at each of the plants wear a variety of safety and sanitary gear while on duty. Employees who enter or work in the processing area at each of the three plants are required to wear a combination of safety and sanitary gear, including: (1) a smock; (2) a hairnet and/or beardnet; and (3) earplugs. See Pl.'s Br. at 10 [Doc. # 43] (May 16, 2008); see also Def.'s Br. at 3 [Doc. # 45] (May 16, 2008). Although smocks are distributed daily to all employees, the remaining gear can either be exchanged weekly or can be kept by an employee for their entire career at the plant. A number of additional items must be worn by employees at each plant based on their differing job duties. Those that work at the Live Processing Plant must also wear rubber shoe covers. Id. Any employee that handles chicken product is required to wear rubber or latex gloves, depending upon their duties. Id. at 6. Any employee that uses scissors or knives must wear mesh gloves and/or plexiglass sleeves. Id. at 7. Other job-specific items *690 include plastic aprons, eye protection, and cotton gloves, some of which are worn at the option of other employees. Id. Employees that work on the production line at one of the three plants are paid on the "line time" or "master badge time" system. See Def.'s Ex. 12 at 5-7 [Doc. # 41-2] (May 16, 2008). At the beginning of each shift, the supervisor of each department swipes a "master badge" as the chicken product arrives, and then swipes it again once all of the chicken product has been processed. Id. Although employees swipe personal time cards upon arrival and departure from the plant, their hours worked are calculated based on the line time that is recorded by their supervisor. Id. Subject to a few minor exceptions, the personal time cards of employees are used primarily to track attendance and ensure each employee was actually present and on the production line. Id. Employees at each plant are given two thirty-minute unpaid breaks during the day. During break, employees are not required to leave the processing area, but are permitted to do so if they choose. See Def.'s Ex. 1 ¶ 22 [Doc. # 40-2] (May 16, 2008). But employees that wish to eat, use the restroom, or go outside during their breaks are required to remove their smock, aprons, and gloves. Id. Employees are not compensated for time spent walking to and from the production line during their breaks, or for time spent donning and doffing required sanitary gear when they eat, go outside, or use the restroom during their breaks. The named Plaintiffs filed suit against Koch Foods on February 9, 2007. They brought their suit as a representative action pursuant to § 216(b) of the Fair Labor Standards Act. They claim that Koch Foods has instituted an unlawful system of compensation that denies them any wages for required "off the clock" work. See Pl.'s Compl. ¶ 4 [Doc. # 1] (Feb. 9, 2007). Specifically, they allege that the Koch Foods compensation system fails to appropriately compensate them for: (1) time spent removing required sanitary equipment prior to enjoying their unpaid breaks; (2) time spent donning and doffing sanitary equipment before and after their shift; (3) time spent navigating plant security; and (4) time spent walking to and from the employee break area. Id. at ¶¶ 13-21. According to the Plaintiffs, these "[d]onning, doffing, washing activities, compensable unpaid breaks and walking duties all add up to a significant amount of time every day for which Plaintiffs and others similarly situated are not paid." Id. at ¶ 22. The Plaintiffs seek relief for unpaid wages and overtime they claim are due to them, as well as associated costs and attorneys fees. The Defendant has moved for summary judgment on two separate theories: (1) donning and doffing the sanitary gear at issue is a non-compensable preliminary and postliminary activity under the Portal-to-Portal Act; and (2) the Plaintiffs have waived their claim for overtime compensation for donning and doffing activities under § 203(o) of the Fair Labor Standards Act. Additionally, the Defendant asserts that the activity in question does not constitute "work" under the Fair Labor Standards Act, and that the continuous workday rule bars compensation for post-donning and pre-doffing walking time. The Plaintiffs have also moved for summary judgment under the Portal-to-Portal Act, claiming that the activities in question are integral and indispensable to their principal activities as a matter of law. After laying out the applicable standard of review, the Court will fully consider each basis for summary judgment below.
II. STANDARD OF REVIEW
1. Summary Judgment Summary judgment is warranted "if the pleadings, depositions, answers to interrogatories, *691 and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). To support a motion for summary judgment, "the moving party ... [has] the burden of showing the absence of a genuine issue as to any material fact." Burleson v. Tex. Dept. of Criminal Justice, 393 F.3d 577, 589 (5th Cir.2004). Material facts are those that "could affect the outcome of the action." Weeks Marine, Inc. v. Fireman's Fund Ins. Co., 340 F.3d 233, 235 (5th Cir.2003) (citations omitted). Disputes about material facts are genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party" on that issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). In evaluating a motion for summary judgment, the court views all evidence "in the light most favorable to the non-moving party" and "draw[s] all reasonable inferences in its favor." Breen v. Texas A & M Univ., 485 F.3d 325, 331 (5th Cir.2007). If the movant satisfies its initial burden, then the burden shifts back to the nonmoving party to produce evidence indicating that a genuine issue of material fact exists for each essential element of its case. Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 246-47 (5th Cir.2003). The nonmovant is not entitled to merely rest on her pleadings, but must set forth "specific facts showing there is a genuine issue for trial." DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir.2005). If the nonmovant responds and still "no reasonable juror could find for the nonmovant, summary judgment will be granted." Caboni v. General Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002).
2. Portal-to-Portal Act The Fair Labor Standards Act ("FLSA") ensures that employees are paid for all hours worked in a given workweek, including overtime. See 29 U.S.C. §§ 206, 207 (2000); Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 602, 64 S. Ct. 698, 88 L. Ed. 949 (1944). When first passed in 1938, the FLSA did not define the terms "work" or "workweek." After the Supreme Court broadly construed those terms, holding that factory workers must be paid for minutes spent walking from company time clocks to their workstations, Congress amended the FLSA with the Portal-to-Portal Act in 1947. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 691-92, 66 S. Ct. 1187, 90 L. Ed. 1515 (1946).[1] The Portal-to-Portal Act narrowed the coverage of the FLSA by removing two activities that had been interpreted as compensable by the Supreme Court. According to the Acts terms, activities that are not compensable include: Except as provided in subsection (b) of this section, no employer shall be subject to any liability ... on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after May 14, 1947 (1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities *692 which such employee is employed to perform, and (2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. See 29 U.S.C. § 254(a) (2000) (emphasis added).[2] According to the "continuous workday rule," the "workday" is generally defined as "the period between the commencement and completion on the same workday of an employee's principal activity or activities." See IBP, Inc. v. Alvarez, 546 U.S. 21, 29, 126 S. Ct. 514, 163 L. Ed. 2d 288 (2005). In Steiner, the Supreme Court interpreted the Act to conclude that "activities performed either before or after the regular work shift, on or off the production line, are compensable ... if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed." Steiner v. Mitchell, 350 U.S. 247, 256, 76 S. Ct. 330, 100 L. Ed. 267 (1956) (emphasis added).[3] An activity is integral and indispensable when it is "necessary to the business" and performed "primarily for the benefit of the employer." Dunlop v. City Elec., Inc., 527 F.2d 394, 401 (5th Cir.1976). The exception itself must be construed narrowly. Id. at 398-99.
3. The 203(o) Defense The FLSA includes a provision that removes from compensability time spent washing and changing clothes at the start and end of each workday. According to the terms of the statute: (o) Hours Worked.In determining for the purposes of sections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee. See 29 U.S.C. § 203(o) (2000). Though not binding on the district court, the Wage and Hour Division of the Department of Labor has issued an opinion letter stating that the term clothes in § 203(o) "include[s] items worn on the body for covering, protection, or sanitation." See DOL Wage & Hour Op. Ltr. FLSA2002-2 (June 6, 2002). Reviewing courts are divided as to whether the provision operates as an exemption or merely a definition and prerequisite for a finding of hours worked. Compare Anderson v. Cagle's, Inc., 488 F.3d 945, 958 (11th Cir. *693 2007) ("§ 203(o) is not an exemption under the FLSA but is instead a definition that limits the scope of the FLSA's key minimum wage and maximum hour provisions.") with Alvarez v. IBP, Inc., 339 F.3d 894, 905 (9th Cir.2003), aff'd, 546 U.S. 21, 126 S. Ct. 514, 163 L. Ed. 2d 288 (2005), (holding that "FLSA exemptions [like § 203(o) ] ... are to be narrowly construed against the employers seeking to assert them.").[4]
III. APPLICATION AND ANALYSIS
1. Is donning and doffing "work" under the FLSA? Koch Foods raises, albeit indirectly, the issue of whether the donning and doffing of sanitary gear is "work" under the FLSA. See Def.'s Br. at 19 n. 22 [Doc. # 43] (May 16, 2008). They cite to the Pilgrim's Pride case from the Eastern District of Texas for the proposition that the donning and doffing of sanitary equipment cannot be considered work under the Act. See Anderson v. Pilgrim's Pride Corp., 147 F. Supp. 2d 556, 561 (E.D.Tex. 2001). After defining "work" as "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer," the district court in Pilgrim's Pride concluded that donning, doffing, and cleaning of sanitary equipment was not "work" under the Act. Id. The court found that "[d]ue to the fact that the donning and doffing of these items takes seconds to accomplish and requires very little concentration, the Court finds that the donning and doffing of these items does not involve `physical or mental exertion', and, therefore, does not qualify as work within the meaning of the FLSA." Id. The Defendant also relies on Reich v. IBP, Inc., 38 F.3d 1123, 1127 (10th Cir. 1994), which held that the donning and doffing of standard, non-unique protective material, such as hard hats, earplugs, safety footwear, and safety eyewear, was not "work" under the FLSA. The Tenth Circuit relied upon the Supreme Court's definition of work as espoused in Tennessee Coal and determined that the activity was not work because it required little or no concentration and little or no physical or mental exertion.[5] Yet the continuing validity of Reich has been called into doubt by district courts in the Tenth Circuit in light of the Supreme Court's methodology in Alvarez. See Garcia v. Tyson Foods, Inc., 474 F. Supp. 2d 1240, 1246 (D.Kan. 2007) ("the court is convinced that the Circuit, if given the opportunity to revisit the issues in Reich, would approach its analysis of the pertinent issues differently in light of Alvarez."). The courts in both Pilgrim's Pride and Reich overemphasize the significance of "exertion" in determining when "work" has been performed. Although the term "exertion" in everyday speech conveys a sense of heft or substantial effort,[6] focus on that *694 connotation threatens to misapply the Supreme Court's precedent on the precise issue. See Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S. Ct. 165, 89 L. Ed. 118 (1944) ("an employer ... may hire a man to do nothing, or to do nothing but wait for something to happen"). To be considered work, the activity need only be "controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer." Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S. Ct. 698, 88 L. Ed. 949 (1944). This Court determines that the better view of what constitutes "work" was recently adopted by the Third Circuit in De Asencio v. Tyson Foods, Inc., 500 F.3d 361, 373 (3rd Cir.2007). In De Asencio, the Third Circuit held that "it was error for the jury instruction to direct the jury to consider whether the gear was cumbersome, heavy, or required concentration to don and doff" in order to determine it was work. Id. The appeals court found that this instruction "impermissibly directed the jury to consider whether the poultry workers had demonstrated some sufficiently laborious degree of exertion, rather than some form of activity controlled or required by the employer and pursued for the benefit of the employer." Id. (emphasis in original). Because "exertion is not in fact required for activity to constitute `work," the appeals court ruled the instruction in error. Id.[7] This Court therefore finds that the Plaintiffs have raised a genuine issue of material fact as to whether donning and doffing the sanitary gear in question constitutes "work" under the FLSA.[8] In so finding, the Court expresses no opinion on whether the work that the Plaintiffs might have performed would be considered de minimus under 29 C.F.R. § 785.47. See Lindow v. United States, 738 F.2d 1057, 1062-63 (9th Cir.1984).
2. Are activities integral and dispensable to the job? Koch Foods also moves for summary judgment under the argument that the donning and doffing of sanitary gear is not integral and indispensable to the Plaintiffs' jobs, and compensation is therefore precluded by the Portal-to-Portal Act. See Def.'s Br. at 19 [Doc. # 43] (May 16, 2008). In order to determine whether the Portalto-Portal Act precludes the Plaintiffs' claims, the Court must examine whether the sanitary and safety equipment at issue is "integral and indispensable" to the Plaintiffs' principal activities and thus a *695 part of their continuous workday.[9] If the gear is "integral and indispensable," then the donning and doffing of those items are principal activities and the time spent doing so is compensable under the FLSA. It is undisputed that Koch Foods requires processing employees to wearat a minimumsmocks, hairnets, and earplugs. See Def.'s Br. at 5 [Doc. # 43] (May 16, 2008).[10] The rules regarding sanitary gear are outlined in a series of Good Management Practices ("GMPs") that inform employees about which sanitary items must be worn. See Pl.'s Ex. 10 [Doc. # 52] (June 9, 2008). According to company documents, the GMPs are promulgated "to place quality and food safety atop our company's primary objectives" so that Koch Foods "will remain a leading supplier of safe, high quality poultry products for the public." Id. The Plaintiffs have stated that, if they enter the processing area without wearing the gear, a Quality Assurance Employee will "holler out" to stop the employee. See Pl.'s Res. Br. at 9 [Doc. # 50] (June 9, 2008). The Plaintiffs have each testified that their "principal work activity was not just to process chickens, but to process chickens in an uncontaminated manner." See Pl.'s Ex. 1 [Doc. # 51-1] (June 9, 2008). And applicable federal regulations require that employers implement "methods for maintaining cleanliness" including "wearing outer garments... in a manner that protects against contamination" and "wearing ... hairnets ... or other effective hair restraints." See Pl's Ex. 31 [Doc. # 53-14] (June 9, 2008). The Defendant argues that the sanitary equipment is not integral and indispensable to the Plaintiffs' duties, and therefore donning and doffing it is not compensable under the terms of the Portal-to-Portal Act. See 29 U.S.C. § 254(a) (2000). First, they claim that the Supreme Court's rationale in Steiner precludes compensation for "changing clothes and showering under normal conditions." See Def.'s Br. at 25 [Doc. # 43] (May 16, 2008). They also argue that wearing sanitary gear is done "for the primary benefit of the consuming public and employees." See Def.'s Reb. Br. at 8 [Doc. # 59] (June 19, 2008). Finally, they argue that even though Koch Foods "may also benefit from the sanitation requirements," that alone does not make the activity compensable under the Act. Id. Consistent with its argument that changing clothes "under normal conditions" is not compensable, the Defendant relies upon Gorman v. Consolidated Edison Corp., 488 F.3d 586, 594 (2nd Cir. 2007), to argue that the use of the sanitary gear at issue is not both integral and indispensable as required to be compensable under the Act. In Gorman, the Second Circuit relied on Steiner to articulate a distinction between the terms "indispensable" and "integral" as used in prior precedent. While "indispensable" means only "necessary," the term "integral" adds the requirement that the activity be "essential to completeness ... organically linked ... *696 [or] composed of constituent parts making a whole." Id. at 592.[11] Therefore, unless an activity is essential to complete the employee's task, it is excluded from compensation under the Act. The Plaintiffs respond by arguing that their principal activity "is not to process poultry products, but to process uncontaminated poultry products." See Pl.'s Resp. Br. at 13 [Doc. # 13] (June 9, 2008) (emphasis in original). As such, they claim that "the required donning, doffing and sanitizing activities are essential to plaintiffs' principal activity of producing safe, sanitary and uncontaminated poultry products." Id.[12] The Court finds that a genuine issue of material fact exists as to whether the Plaintiffs' pre- and post-shift donning and doffing activities are compensable under the FLSA and the Portal-to-Portal Act. First, a genuine issue of material fact exists as to whether the donning and doffing activity is necessary to Koch Foods' business. The Defendant argues that "even if Koch Foods were the primary beneficiary of the clothes changing and washing" the activities are not "essential tasks to the ordinary course of business." See Def.'s Br. at 25 [Doc. # 43] (May 16, 2008). Though employees of Koch Foods might be physically able to process chickens without sanitation gear, the resulting product would be adulterated and unmarketable. And undisputed evidence shows that Koch Foods' ordinary course of business is to produce and market a wholesome poultry product.[13] As a practical matter, therefore, the Plaintiffs must work under the sanitary conditions that Koch Foods has already implemented in order for their services to have any real value. The Court also finds that a genuine issue of material fact exists as to whether the Plaintiffs' donning and doffing was performed primarily for the benefit of Koch Foods. It is undisputed that employees must remove sanitary gear anytime they leave the plant, while on break or returning home after their shift, when they go to the restroom, and when they choose to eat during their break. See Pl.'s Res. Br. at 11 [Doc. # 50] (June 9, 2008). The Plaintiffs are not permitted to take their smocks home, and are not permitted to wear smocks of their own choosing.[14]*697 While leaving the smocks at the factory for laundering undoubtedly benefits both the Plaintiffs and Koch Foods, requiring removal prior to walking outside or going to the restroom can only benefit Koch Foods. Requiring removal prevents the smocks from being exposed to either the restrooms or the outdoors, and limits contamination to the chicken productsnot to the employees. Moreover, Koch Foods retains tight control over the laundering and distribution of the smocks, and employees that wish to take them home and launder them personally will face disciplinary actions. Id. at 20.[15] Although the employees undoubtedly derive some benefit from the use of sanitary gear, the same gear also allows Koch Foods to maintain the cleanliness essential to prevent contamination to its poultry products.[16] As one district court recently explained, "[t]his benefit is enormous when one considers the damage that would result to the defendants if they were to sell a contaminated food product." Jordan v. IBP, Inc., 542 F. Supp. 2d 790, 807 (M.D.Tenn.2008).[17] Other district courts have reached similar conclusions, finding summary judgment inappropriate on these facts. See Chao v. Tyson Foods, Inc., 568 F. Supp. 2d 1300, 1315-16, 2008 WL 2020323 at *9 (N.D.Ala. Jan. 22, 2008) (denying summary judgment because "a question of material fact remains as to whether the benefit it receives is so significant that it is Defendant, and not Defendant's employees, who receives the primary benefit thereof."). Finally, the Court finds that the Defendant's argument regarding the application of Steiner and the "changing clothes ... under normal conditions" rationale to be misplaced. See Def.'s Br. at 25 [Doc. # 43] (May 16, 2008). As the district court of Wisconsin articulated in Spoerle, such a reading of Steiner invites an unusual application of the terms integral and indispensable. See Spoerle v. Kraft Foods Global, Inc., 527 F. Supp. 2d 860, 864 (W.D.Wis. 2007). Even though the Plaintiffs in this case do not work in the highly toxic atmosphere of a battery factory, their equipment is worn for sanitary and safety purposes and is required both by law and company policy. They could not perform their jobs without it, and as such, it is not *698 "merely a convenience" provided for their sole benefit. Id. at 865.
3. Collective Bargaining Agreement and 203(o) defense Koch Foods also moves for summary judgment under 29 U.S.C. § 203(o). As discussed supra, the statute excludes time spent "changing clothes or washing at the beginning or end of each workday which was excluded from measured working time ... by the express terms of or by custom or practice under a bona fide collective-bargaining agreement." See 29 U.S.C. § 203(o) (2000).[18] As the `Supreme Court has observed, the "union-represented employees have the full protection of the minimum standard, absent any agreement for something different." Livadas v. Bradshaw, 512 U.S. 107, 131, 114 S. Ct. 2068, 129 L. Ed. 2d 93 (1994). When employees "opt out" of this protection when entering into a collective bargaining agreement, they cannot later advance a claim for compensation based on the same activity. The majority of employees at all three Koch Foods facilities are covered by Collective Bargaining Agreements ("CBAs") struck between Koch Foods and the United Food and Commercial Workers Union, Local 1529.[19] The De-Bone and Prepared Foods plants were unionized in 2004. After unionization, Koch Foods and the union negotiated and executed a Collective Bargaining Agreement to run from September 21, 2004, through September 21, 2007 ("2004 Forest CBA"). The 2004 Forrest CBA remains in effect under a temporary extension agreement at both plants. The Live Processing Plant in Morton was unionized before Koch Foods acquired it in 2002, and is covered by its own CBA ("2005 Morton CBA"). Since acquisition, Koch Foods has negotiated and struck two CBAs with the Union to cover the Live Processing Plant. Each CBA contains language affirming that the agreements "represents the entire agreement and understanding between the parties" and that the Union and the company "voluntarily and unqualifiedly waive" any "right to make demands and proposals with respect to any subject or matter not removed by law from the area of the collective bargaining agreement." See Def.'s Br. at 11-12 [Doc. # 43] (May 16, 2008). During negotiations for each of the CBAs, the Union's team never proposed, or attempted to negotiate for, any compensation for time spent donning and doffing the sanitary gear at issue. Id. at 13. Although the Union never negotiated for additional compensation, employees at each plant were acutely aware that they were not compensated for the time. See, e.g., Def.'s Ex. 16 at 5-6 [Doc. # 42-4] (May 16, 2008); Def.'s Ex. 17 at 6-7 [Doc. # 42-5] (May 16, 2008). One of the named Plaintiffs, Verida King, even stated that she complained to Union representatives about the compensation policies at issue prior to the most recent negotiations. See Def.'s Ex. 10 at 11 [Doc. # 40-11] (May 16, 2008). And both parties agree that neither of the finalized CBAs address the compensability of donning and doffing the sanitary gear at *699 issue. Therefore, there is no "express term" of a collective bargaining agreement that would support non-compensation. The Defendant instead contends that "the undisputed facts unequivocally demonstrate that Koch Foods' employees acquiesced to Koch Foods' policy of not paying production employees for clothes changing and washing time." See Def.'s Br. at 35 [Doc. # 43] (May 16, 2008). The Defendant primarily relies upon Bejil v. Ethicon, Inc., 269 F.3d 477, 479 (5th Cir.2001), to support their § 203(o) defense. Although that agreement was also silent as to compensation for similar activities, the union that negotiated the CBA in Bejil had repeatedly addressed the issue of the time needed to don and doff sanitary gear. See Bejil v. Ethicon, Inc., 269 F.3d 477, 479 (5th Cir.2001) (finding a custom when "[e]thicon and the employees' union... have addressed the issue of compensation for the time required to don and doff protective coverings on several occasions."). There was no doubt that the issue was addressed by the negotiators in Bejil, even if the ultimate agreement was silent. The Bejil court concluded that "where the union and employer discuss an issue, the result may be custom or practice, even if the collective bargaining agreement is silent on the issue." Id. at 480.[20] The Second Circuit took a similar position in Arcadi v. Nestle Food Corp., 38 F.3d 672, 675 (2nd Cir.1994), finding that "[i]f the parties to a collective bargaining agreement negotiate over an issue and have an understanding that resolves it, then a `practice' exists, even in the absence of express written terms."[21] The Defendant also relies on Anderson v. Cagle's, Inc., 488 F.3d 945, 958 (11th Cir.2007), for a more robust reading of what silence in a CBA means in terms of a custom or practice under § 203(o). In Cagle's, the appeals court upheld the district court's application of § 203(o) in barring the claims of processing employees for changing clothes before and after their time on the production line. That court concluded that "[a]bsence of negotiations cannot in this instance equate to ignorance of the policy. Rather, it demonstrates acquiescence to it." Id.[22] The Defendant adopts this assertion on its face, and argues that "[t]his absence of collective bargaining negotiations on the issue further proves acquiescence to Koch Foods' compensation *700 practice." See Def.'s Br. at 36 [Doc. # 43] (May 16, 2008). When negotiations never touched on the issue, other district courts have looked to the duration of the alleged custom or practice to search for acquiescence. In Kassa v. Kerry, Inc., 487 F. Supp. 2d 1063, 1068 (D.Minn.2007), the district court of Minnesota was able to find a custom or practice based on the duration of the policy, even in the absence of specific negotiations. Id. The court in Kassa placed the burden on the plaintiff to show that "its policy of noncompensation for clothes-changing time lasted for a sufficiently long time, with sufficient knowledge and acquiescence by Kerry's employees, that the policy became an implicit terma `custom or practice' under the CBA." Id. at 1069. The court held that proof that the issue was raised in negotiations by the union "is one way, but not the only way, to prove knowledge and acquiescence by union employees." Id.[23] The Court's real question must be whether both parties, being fully informed of the relevant facts, chose to exclude compensation for donning and doffing activities.[24] In that instance, § 203(o) operates to remove from the category of "hours worked" under the FLSA any time that could have been compensable, but had been bargained away by union representatives under a bona fide CBA. The employees would then no longer be entitled to the "full protection of the minimum standard" of the FLSA because they would have struck an "agreement for something different." See Livadas v. Bradshaw, 512 U.S. 107, 131, 114 S. Ct. 2068, 129 L. Ed. 2d 93 (1994). The CBA itself is a holistic, all-issues answer to workplace concerns and compensation issues relevant to the employees.[25] The agreement is not a contract of adhesion, and represents a complete compact between sophisticated parties of comparable bargaining strength.[26] The Court *701 has no reason to doubt that negotiations were fair or were not conducted in good faith by both parties, and there is no allegation that either side was denied an opportunity to raise an issue it felt was significant.[27] The Plaintiffs have failed to raise any genuine issue of fact that precludes this Court from recognizing the "practice" of non-compensation approved by the CBAs. In so finding, this Court goes one step beyond the rationale of Arcadi to state that when employees and union representatives are conclusively aware of the facts surrounding compensation policies for changing clothes at the beginning and end of each workday, and reach an agreement under a CBA that does not compensate employees for the time, a "practice" exists under the CBA sufficient to invoke the § 203(o) defense.[28] Even in the absence of a long-standing tradition of non-compensation, the practice established under the terms of a fully and fairly negotiated CBA makes these claims untenable under § 203(o). The Court finds that this reading of § 203(o) best reflects Congressional intent in adopting the statute to "curtail employee-protective interpretations of the FLSA" on compensation issues settled by a CBA.[29] Yet because both the Prepared Food Plant and the Debone Plant were not unionized until 2004, there was no collective bargaining agreement in place between June 3, 2003 and September 21, 2004.[30] Therefore, the custom or practice recognized by this Court under § 203(o) cannot bar claims for hours worked between *702 June 3, 2003 and September 21, 2004. Those claims survive summary judgment.
4. The continuous workday rule The Defendant also claims that pre- and post-production walk and wait times are not compensable. According to the Defendant's logic, "[b]ecause changing into and out of standard clothing and washing by Koch Foods' employees are not compensable activities, the pre- and post-production activities are likewise not compensable." See Def.'s Br. at 38 [Doc. # 43] (May 16, 2008). Koch Foods relies on a recent opinion letter from the Wage and Hour Division of the Department of Labor, which states that "activities covered by section 3(o) cannot be considered principal activities and do not start the workday." See DOL Wage & Hour Op. Ltr. FLSA2007-10 (May 14, 2007). Yet because this Court has found a genuine issue of material fact as to whether the donning and doffing are integral and indispensable to the employees' activities, the continuous workday rule does not operate to bar the Plaintiffs' claim for preshift, post-donning time as well as post-shift, pre-doffing time. Although the act of "changing clothes" itself is barred based on § 203(o) discussed supra, the activities that occur after changing into sanitary gear and before changing out of sanitary gear are not impacted by the defense.[31] If the jury determined that donning and doffing this gear was integral and indispensable, their commencement would trigger the "continuous workday rule," and might make the walking and waiting time at issue compensable. See IBP, Inc. v. Alvarez, 546 U.S. 21, 29, 126 S. Ct. 514, 163 L. Ed. 2d 288 (2005) (defining continuous workday as "the period between the commencement and completion on the same workday of an employee's principal activity or activities.").
IV. CONCLUSION The Plaintiffs have raised a genuine issue of fact that donning and doffing of sanitary equipment constitutes "work" under the FLSA, irrespective of the minuscule amount of physical or mental exertion required to secure the items. And based on the evidence before it, this Court cannot conclude that the donning and doffing of this required sanitary gear is neither integral nor indispensable to the Plaintiffs' principal activities. However, the Plaintiffs have failed to raise any issue of fact that precludes this Court from recognizing the "practice" of non-compensation approved by the applicable CBAs for the relevant activities that would trigger application of the § 203(o) defense. The time employees spend "changing clothes" at the beginning or end of each workday is therefore not compensable, subject to the statute of limitations issue discussed supra. Finally, the Court cannot dismiss the Plaintiffs' claim for post-donning and pre-doffing walk and wait times under the continuous workday rule.[32] *703 IT IS, THEREFORE, ORDERED AND ADJUDGED that the Defendant's motion for summary judgment [Doc. # 40] is granted in part and denied in part, and the Plaintiffs' motion for summary judgment [Doc. # 44] is denied. NOTES [1] In Tennessee Coal, the Court defined "work" or "employment" as "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S. Ct. 698, 88 L. Ed. 949 (1944). [2] There is "[n]o categorical list of `preliminary' and `postliminary' activities except those named in the [Portal Act] ... since activities which under one set of circumstances may be `preliminary' or `postliminary' activities, may under other conditions be `principal' activities." 29 C.F.R. § 790.7(b). [3] In Alvarez, the Court upheld the Steiner rule, stating that:
Thus, under Steiner, activities, such as the donning and doffing of specialized protective gear, that are performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by Section 4(a)(1). See IBP, Inc. v. Alvarez, 546 U.S. 21, 29, 126 S. Ct. 514, 163 L. Ed. 2d 288 (2005). [4] In Livadas, the Supreme Court referred to § 203(o) as an "opt out" statute in the context of other issues. See Livadas v. Bradshaw, 512 U.S. 107, 131-32, 114 S. Ct. 2068, 129 L. Ed. 2d 93 (1994). [5] "Requiring employees to show up at their workstations with such standard equipment is no different from having a baseball player show up in uniform, a businessperson with a suit and tie, or a judge with a robe. It is simply a prerequisite for the job, and is purely preliminary in nature." Reich v. IBP, Inc., 38 F.3d 1123, 1127 (10th Cir.1994). [6] See Webster's II New College Dictionary, (Hughton Mifflin 1995) (defining "exert" as "to put forth (e.g., strength)" or "to bring to bear"); see also Merriam-Webster Online, http://www.merriam-webster.com/dictionary/exert (accessed July 18, 2008) (defining "exert" as "to put forth (as strength)" or "to put (oneself) into action or to tiring effort" or "to bring to bear especially with sustained effort or lasting effect"); see also Dictionary.com, http://dictionary.reference.com/browse/exert (accessed July 18, 2008) (defining "exert" as "to put forth or into use, as power; exercise, as ability or influence; put into vigorous action: to exert every effort" or "to put (oneself) into strenuous, vigorous action or effort"). [7] Several district courts reviewing similar claims have come to the same conclusion. See Jordan v. IBP, Inc., 542 F. Supp. 2d 790, 805 (M.D.Tenn.2008) ("[t]he collective wisdom of these circuit courts makes crystal clear that exertion is not required for an activity to constitute work under FLSA and the Portal-to-Portal Act."); see also Davis v. Charoen Pokphand (USA), Inc., 302 F. Supp. 2d 1314, 1322 (M.D.Ala.2004) (rejecting argument from Pilgrim's Pride and Reich because the courts "apply an overly narrow interpretation of the Muscoda definition of work."); Gonzalez v. Farmington Foods, Inc., 296 F. Supp. 2d 912, 924 (N.D.Ill.2003) (finding that "donning and doffing of sanitary and safety equipment, equipment cleaning and knife sharpening constitute work because these activities are `controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer.'"). [8] Because this issue was only raised by the Defendant indirectly, the Court will permit them to raise the issue in further briefing if desired. [9] See Lugo v. Farmer's Pride, Inc., 2008 WL 161184 at *4 (E.D.Pa. Jan. 14, 2008) ("Thus, in evaluating whether workday activities are excluded from FLSA coverage by the Portalto-Portal Act, it must be determined whether an activity is `integral and indispensable' to the principal activity and part of the continuous workday."). [10] There remains a variety of additional sanitary and safety gear worn by some employees, a portion of which is mandatory and a portion of which is optional. The Court's current holding touches only the mandatory sanitary and safety gear discussed. Because the factual issues are undeveloped on optional sanitary and safety gear, the Court declines to grant summary judgment on those issues at this time. [11] At least one district court from the Seventh Circuit has called the Gorman interpretation of Steiner "truly bizarre." See Spoerle v. Kraft Foods Global, Inc., 527 F. Supp. 2d 860, 864 (W.D.Wis.2007) ("The [Second Circuit in Gorman] appears to be saying that the holding of Steiner does not apply unless the `work is done in a lethal atmosphere.' In other words, unless the activity is necessary to prevent the employee from actually dying, it is not `integral' to a principal activity. From a public policy perspective, this reading is obviously troubling because it creates an uncomfortable distinction between hazards that kill and hazards that maim (or pose only a risk of death) and suggests that an employee is entitled to compensation for protecting herself from the former only."). [12] The Fifth Circuit has warned against too narrow a definition of an employee's principal activities. See Dunlop v. City Elec., Inc., 527 F.2d 394, 400 (5th Cir.1976) ("[b]y narrowly defining the principal activity of the employees in the instant case as that of `installing and repairing electrical wiring', the district court severely limited the range of potentially compensable activities, thus committing the precise error which Congress sought to avoid in its careful wording of the statute."). [13] See Alvarez v. IBP, Inc., 339 F.3d 894, 903 (9th Cir.2003), aff'd, 546 U.S. 21, 126 S. Ct. 514, 163 L. Ed. 2d 288 (2005) ("it is beyond cavil that the donning, doffing, washing, and retrieving of protective gear is, at both broad and basic levels, done for the benefit of IBP."). [14] In granting summary judgment in favor of the employer in a factually similar case, the district court in Alford noted the importance of the fact that employees were permitted to take safety and sanitary items home and arrive at work already wearing them. See Alford v. Perdue Farms, Inc., 2008 WL 879413 at *6 (M.D.Ga. Mar. 28, 2008) (finding that time spent donning generic sanitary and safety gear not compensable because requiring employee to don their "hair and beard nets, ear plugs, boots, and caps prior to beginning work" is "something that the employee can do at his home, in his car, or whenever suits his convenience."). [15] See Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 911 (9th Cir.2004) (donning and doffing of uniforms by employees at a silicon chip manufacturing plant benefitted the employer because the uniforms "were required to limit potential cleanroom contamination, and thereby to assist the employer in ensuring the quality of the silicon chips manufactured at the plant."). [16] See Dunlop v. City Elec., Inc., 527 F.2d 394, 400 n. 11 (5th Cir.1976) ("[t]he fact that the employees too may have benefitted from filling out time sheets recording their hours worked and the compensation due them is not inconsistent with the conclusion that the work was `an integral and indispensable function of the defendant business.'"). [17] As the district court in Jordan further explained, "[t]he minor benefit to the employees of keeping their street clothes clean pales by comparison" to the benefit enjoyed by the employer. See Jordan v. IBP, Inc., 542 F. Supp. 2d 790, 807 (M.D.Tenn.2008) (granting summary judgment in favor of employees on the integral and indispensable test of the Portal-to-Portal Act). [18] Based on the terms of the statute, the defense can only apply to time spent "changing clothes" at the "beginning and end of each workday." See 29 U.S.C. § 203(o) (2000). Therefore, the Plaintiffs' remaining claims related to midday work breaks and unpaid waiting time at the beginning of each day are not impacted by this analysis. [19] The CBAs apply to all hourly production employees as well as maintenance and sanitation departments. Quality assurance employees are not covered by the CBAs. See Def.'s Br. at 10 n. 13 [Doc. # 43] (May 16, 2008). [20] In Hoover v. Wyandotte Chemicals Corp., 455 F.2d 387, 389 (5th Cir.1972), the Fifth Circuit took a similar approach, finding a custom or practice when negotiations touched on the precise issue, regardless of the policy's duration. ("The defendant in this case has shown a history of its dealings with the plaintiffs' union in exempting from payment any time exceeding fifteen minutes in which an employee spends changing clothes and showering. Furthermore, it has been shown that the collective bargaining negotiations between the union and the company encompassed the company's policy concerning payment for such activities."). [21] This approach is consistent with that taken by the Eastern District of Texas in Anderson v. Pilgrim's Pride Corp., 147 F. Supp. 2d 556, 565 (E.D.Tex.2001) (finding a custom or practice existed, despite the silence of the CBA, when "the [union] proposed compensating line employees for "wait time" and the time spent donning and doffing sanitary clothing and equipment ... [but the company] rejected this proposal ..."). [22] This Court first applied Cagle's in Conerly v. Marshall Durbin Co., 2007 WL 3326836 at *7 (S.D.Miss. Nov. 6, 2007). As this Court found in Conerly, the Cagle's decision was based upon a "long history of negotiation of issues between the employer and the union and certain specific knowledge by principles of the union regarding the very issue of donning and doffing." See Conerly v. Marshall Durbin Co., 2007 WL 3326836 at *7 (S.D.Miss. Nov. 6, 2007) (denying summary judgment because record did not support similar factual findings). [23] In Kassa, the court argued that "the term `custom or practice' is broad enough to capture a long-standing practice by an employer of nonpayment for clothes-changing timeeven if the issue of payment for such time has not been raised in union-management negotiations-provided that the employer can demonstrate that the practice of nonpayment was sufficiently long in duration and that its employees knew of and acquiesced in the practice." Kassa v. Kerry, Inc., 487 F. Supp. 2d 1063, 1068 (D.Minn.2007). [24] The Plaintiffs also argue that the sanitary and safety items are not "clothes" as contemplated by the statute, and merely slipping them over their street clothes is not "changing clothes" as defined in the Act. See Pl.'s Res. Br. at 48-50 [Doc. # 50] (June 9, 2008). The Court finds that the Plaintiffs' reading of the terms "changing clothes" as used in the statute is nonsensical. The sanitary and safety items worn by the Plaintiffs fit comfortably within the definition of "clothes" as interpreted by reviewing courts, and the suggestion that "changing" should be interpreted only to include "substituting" simply misconstrues the statute. See Bejil v. Ethicon, Inc., 269 F.3d 477, 480 n. 3 (5th Cir.2001) (holding that slipping on a lab coat, shoe coverings, and a hairnet or beardnet to be "changing clothes" under § 203(o) of the FLSA). [25] Discussing the collective bargaining process, the Supreme Court has said that there "is a congressional intent to create an equality in bargaining power between the employee and the employer throughout the entire process of labor organizing, collective bargaining, and enforcement of collective-bargaining agreements." See N.L.R.B. v. City Disposal Systems, Inc., 465 U.S. 822, 835-36, 104 S. Ct. 1505, 79 L. Ed. 2d 839 (1984) (discussing collective bargaining in terms of employee attempting to assert rights under the agreement). [26] See Brentwood Medical Associates v. United Mine Workers of America, 396 F.3d 237, 240 (3rd Cir.2005) ("A collective bargaining agreement represents a contractual accord reached between an employer and its employees."). [27] Courts interpreting CBAs will generally use traditional principles of contract interpretation to the extent that such principles are consistent with federal labor law. But because CBAs are contracts of a special type, an agreement that is ambiguous "can be more readily expanded by implication than those of contracts memorializing other transactions." United Paperworkers Int'l Union, AFL-CIO, CLC v. Champion Int'l Corp., 908 F.2d 1252, 1256 (5th Cir.1990). Yet because the CBAs in this case are not susceptible to more than one interpretation, their terms are not ambiguous, and hence not open to broader construction to benefit the employees. See Nichols v. Alcatel USA, Inc., 532 F.3d 364, 376-78 (5th Cir. 2008). [28] If reviewing courts labor to find extrinsic evidence of a "custom or practice," beyond the existence of a fairly negotiated CBA and a team of union negotiators and employees that were fully aware of the relevant compensation practices, then courts will inadvertently encourage employees and union negotiators to either remain ignorant of compensation policies or to avoid any mention of them, lest they be seen to have created a custom or practice that waived a potential claim for compensation under § 203(o). An outcome that encourages artifice between parties negotiating a CBA is wrong from a policy perspective, and risks that reviewing courts will simply reward parties for not faithfully negotiating the CBA in the first instance. [29] The alternative holding would require the Court to presume that Union representatives were unaware of how their employees were compensated, an inference not supported by the current facts. Perhaps more importantly, overreading the contractual silence on donning and doffing ignores the possibility that both sides in the negotiation of a CBA might have real and legitimate reasons for omitting an explicit reference to these issues. Based on the sophistication of each party, the Court finds it inconceivable that the Union was unaware of the compensation policies of Koch Foods to the extent that it could not have fully and fairly bargained them away based on other priorities. Merely because a potential change in the law makes these issues appear more enticing in hindsight does not mean this Court should upset the agreement struck between the parties. Congress enacted § 203(o) to protect employers from precisely this kind of post-mortem attack on labor contracts every time a court interprets a gray area on FLSA compensation issues. [30] The limitations period in this case begins on June 2, 2003, under the three-year statute for willful violations. [31] Although the statute precludes recovery for time spent washing and "changing clothes," it does not affect the fact that these activities could be the first "integral and indispensable" act that triggers the start of the continuous workday rule for subsequent activities that are not covered by § 203(o), such as post-donning sanitation and travel time. See IBP, Inc. v. Alvarez, 546 U.S. 21, 34, 126 S. Ct. 514, 163 L. Ed. 2d 288 (2005) (holding that the Portal-to-Portal Act "does not exclude walking from [the locker room where sanitary and safety gear is put on] to another area within the plant immediately after the workday has commenced."). [32] Based on the Court's findings, the only claim of the Plaintiffs now barred by summary judgment is the time spent "changing clothes" before and after their shifts pursuant to § 203(o). Any claims for: (1) time spent immediately following the donning of sanitary and safety gear; (2) time spent during the day surrounding their two 30 minute breaks; and (3) time spent immediately preceding the doffing of sanitary and safety gear, each remain viable and survive summary judgment. | 10-30-2013 | [
"569 F. Supp. 2d 687 (2008) Willie GATEWOOD, et al., Plaintiffs v. KOCH FOODS OF MISSISSIPPI, LLC, Defendant. Civil Action No. 3:07cv82-KS-MTP. United States District Court, S.D. Mississippi, Hattiesburg Division. July 23, 2008. *688 Mike Espy, Mike Espy, PLLC, Roger K. Doolittle, Attorney, Jackson, MS, Peter D. Winebrake-PHV, The Winebrake Law Firm, LLC, Dresher, PA, Richard Bernard Celler-PHV, Morgan & Morgan, PA, Davie, FL, Robert L. Wiggins-PHV, Jr., Candis A. McGowan-PHV, Wiggins, Childs, Quinn & Pantazis, LLC, Birmingham, AL, for Plaintiffs. Russell W. Gray-PHV, Baker, Donelson, Bearman, Caldwell & Berkowitz, Chattanooga, TN, Scott W. Pedigo, Joan L. Lucas, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Jackson, MS, for Defendant.",
"*689 MEMORANDUM OPINION AND ORDER KEITH STARRETT, District Judge. This cause is before the Court on the motion for summary judgment [Doc. # 40] filed by the Defendant, Koch Foods of Mississippi, LLC (\"Koch Foods\"), and the motion for summary judgment [Doc. # 44] filed by the Plaintiffs. Because the Plaintiffs have raised a genuine issue of material fact as to: (1) whether donning and doffing of sanitary equipment constitutes \"work\" under the FLSA; and (2) whether donning and doffing of required sanitary gear is both integral and indispensable to the Plaintiffs' principal activities, those portions of the Defendant's motion for summary judgment should be denied, and the Plaintiffs' motion for summary judgment should be denied. But because the Plaintiffs have failed to raise a genuine issue of material fact that would preclude this Court from enforcing § 203(o) to bar compensation claims based on an established custom or practice under a collective bargaining agreement, that portion of the Defendant's motion for summary judgment should be granted.",
"Therefore, for the reasons fully set forth below, the Defendant's motion for summary judgment [Doc. # 40] should be granted in part and denied in part, and the Plaintiffs' motion for summary judgment [Doc. # 44] should be denied. I. FACTUAL BACKGROUND This lawsuit is based on the compensation policies of three chicken processing plants located in southern Mississippi. In their collective action, the Plaintiffs allege that their employer has wrongfully denied them compensation and accrued overtime because it does not pay them for significant periods of work they must perform while off the clock. The Defendant alleges that these activities are not work under federal law, and that any claim for this time is barred based on an established custom under a collective bargaining agreement. Koch Foods operates three processing facilities relevant to this lawsuit: (1) a live processing plant in Morton, Mississippi (the \"Live Processing Plant\") that is dedicated to processing and packaging live chickens; (2) a de-bone plant in Forest, Mississippi (the \"De-bone Plant\") where previously processed chickens are deboned, dismembered, and then marinated, frozen, and packaged; and (3) a prepared foods plant in Morton, Mississippi (the \"Prepared Foods Plant\") where previously processed chicken is marinated, breaded, battered, fried, and packaged.",
"Approximately 2150 hourly employees work at these three plants, and approximately 1710 of them are production employees. Workers at each of the plants wear a variety of safety and sanitary gear while on duty. Employees who enter or work in the processing area at each of the three plants are required to wear a combination of safety and sanitary gear, including: (1) a smock; (2) a hairnet and/or beardnet; and (3) earplugs. See Pl. 's Br. at 10 [Doc. # 43] (May 16, 2008); see also Def. 's Br. at 3 [Doc. # 45] (May 16, 2008). Although smocks are distributed daily to all employees, the remaining gear can either be exchanged weekly or can be kept by an employee for their entire career at the plant. A number of additional items must be worn by employees at each plant based on their differing job duties.",
"Those that work at the Live Processing Plant must also wear rubber shoe covers. Id. Any employee that handles chicken product is required to wear rubber or latex gloves, depending upon their duties. Id. at 6. Any employee that uses scissors or knives must wear mesh gloves and/or plexiglass sleeves. Id. at 7. Other job-specific items *690 include plastic aprons, eye protection, and cotton gloves, some of which are worn at the option of other employees. Id. Employees that work on the production line at one of the three plants are paid on the \"line time\" or \"master badge time\" system.",
"See Def. 's Ex. 12 at 5-7 [Doc. # 41-2] (May 16, 2008). At the beginning of each shift, the supervisor of each department swipes a \"master badge\" as the chicken product arrives, and then swipes it again once all of the chicken product has been processed. Id. Although employees swipe personal time cards upon arrival and departure from the plant, their hours worked are calculated based on the line time that is recorded by their supervisor.",
"Id. Subject to a few minor exceptions, the personal time cards of employees are used primarily to track attendance and ensure each employee was actually present and on the production line. Id. Employees at each plant are given two thirty-minute unpaid breaks during the day. During break, employees are not required to leave the processing area, but are permitted to do so if they choose.",
"See Def. 's Ex. 1 ¶ 22 [Doc. # 40-2] (May 16, 2008). But employees that wish to eat, use the restroom, or go outside during their breaks are required to remove their smock, aprons, and gloves. Id. Employees are not compensated for time spent walking to and from the production line during their breaks, or for time spent donning and doffing required sanitary gear when they eat, go outside, or use the restroom during their breaks. The named Plaintiffs filed suit against Koch Foods on February 9, 2007. They brought their suit as a representative action pursuant to § 216(b) of the Fair Labor Standards Act. They claim that Koch Foods has instituted an unlawful system of compensation that denies them any wages for required \"off the clock\" work. See Pl.",
"'s Compl. ¶ 4 [Doc. # 1] (Feb. 9, 2007). Specifically, they allege that the Koch Foods compensation system fails to appropriately compensate them for: (1) time spent removing required sanitary equipment prior to enjoying their unpaid breaks; (2) time spent donning and doffing sanitary equipment before and after their shift; (3) time spent navigating plant security; and (4) time spent walking to and from the employee break area. Id. at ¶¶ 13-21. According to the Plaintiffs, these \"[d]onning, doffing, washing activities, compensable unpaid breaks and walking duties all add up to a significant amount of time every day for which Plaintiffs and others similarly situated are not paid.\"",
"Id. at ¶ 22. The Plaintiffs seek relief for unpaid wages and overtime they claim are due to them, as well as associated costs and attorneys fees. The Defendant has moved for summary judgment on two separate theories: (1) donning and doffing the sanitary gear at issue is a non-compensable preliminary and postliminary activity under the Portal-to-Portal Act; and (2) the Plaintiffs have waived their claim for overtime compensation for donning and doffing activities under § 203(o) of the Fair Labor Standards Act. Additionally, the Defendant asserts that the activity in question does not constitute \"work\" under the Fair Labor Standards Act, and that the continuous workday rule bars compensation for post-donning and pre-doffing walking time. The Plaintiffs have also moved for summary judgment under the Portal-to-Portal Act, claiming that the activities in question are integral and indispensable to their principal activities as a matter of law. After laying out the applicable standard of review, the Court will fully consider each basis for summary judgment below. II. STANDARD OF REVIEW 1.",
"Summary Judgment Summary judgment is warranted \"if the pleadings, depositions, answers to interrogatories, *691 and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\" Fed. R.Civ.P. 56(c). To support a motion for summary judgment, \"the moving party ... [has] the burden of showing the absence of a genuine issue as to any material fact.\" Burleson v. Tex. Dept. of Criminal Justice, 393 F.3d 577, 589 (5th Cir.2004). Material facts are those that \"could affect the outcome of the action.\" Weeks Marine, Inc. v. Fireman's Fund Ins. Co., 340 F.3d 233, 235 (5th Cir.2003) (citations omitted).",
"Disputes about material facts are genuine \"if the evidence is such that a reasonable jury could return a verdict for the nonmoving party\" on that issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). In evaluating a motion for summary judgment, the court views all evidence \"in the light most favorable to the non-moving party\" and \"draw[s] all reasonable inferences in its favor.\" Breen v. Texas A & M Univ., 485 F.3d 325, 331 (5th Cir.2007).",
"If the movant satisfies its initial burden, then the burden shifts back to the nonmoving party to produce evidence indicating that a genuine issue of material fact exists for each essential element of its case. Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 246-47 (5th Cir.2003). The nonmovant is not entitled to merely rest on her pleadings, but must set forth \"specific facts showing there is a genuine issue for trial.\" DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir.2005). If the nonmovant responds and still \"no reasonable juror could find for the nonmovant, summary judgment will be granted.\" Caboni v. General Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002). 2. Portal-to-Portal Act The Fair Labor Standards Act (\"FLSA\") ensures that employees are paid for all hours worked in a given workweek, including overtime. See 29 U.S.C. §§ 206, 207 (2000); Tennessee Coal, Iron & R. Co. v. Muscoda Local No.",
"123, 321 U.S. 590, 602, 64 S. Ct. 698, 88 L. Ed. 949 (1944). When first passed in 1938, the FLSA did not define the terms \"work\" or \"workweek.\" After the Supreme Court broadly construed those terms, holding that factory workers must be paid for minutes spent walking from company time clocks to their workstations, Congress amended the FLSA with the Portal-to-Portal Act in 1947. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 691-92, 66 S. Ct. 1187, 90 L. Ed. 1515 (1946). [1] The Portal-to-Portal Act narrowed the coverage of the FLSA by removing two activities that had been interpreted as compensable by the Supreme Court. According to the Acts terms, activities that are not compensable include: Except as provided in subsection (b) of this section, no employer shall be subject to any liability ... on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after May 14, 1947 (1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities *692 which such employee is employed to perform, and (2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.",
"See 29 U.S.C. § 254(a) (2000) (emphasis added). [2] According to the \"continuous workday rule,\" the \"workday\" is generally defined as \"the period between the commencement and completion on the same workday of an employee's principal activity or activities.\" See IBP, Inc. v. Alvarez, 546 U.S. 21, 29, 126 S. Ct. 514, 163 L. Ed. 2d 288 (2005). In Steiner, the Supreme Court interpreted the Act to conclude that \"activities performed either before or after the regular work shift, on or off the production line, are compensable ... if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed.\"",
"Steiner v. Mitchell, 350 U.S. 247, 256, 76 S. Ct. 330, 100 L. Ed. 267 (1956) (emphasis added). [3] An activity is integral and indispensable when it is \"necessary to the business\" and performed \"primarily for the benefit of the employer.\" Dunlop v. City Elec., Inc., 527 F.2d 394, 401 (5th Cir.1976). The exception itself must be construed narrowly. Id. at 398-99. 3. The 203(o) Defense The FLSA includes a provision that removes from compensability time spent washing and changing clothes at the start and end of each workday.",
"According to the terms of the statute: (o) Hours Worked.In determining for the purposes of sections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee. See 29 U.S.C. § 203(o) (2000). Though not binding on the district court, the Wage and Hour Division of the Department of Labor has issued an opinion letter stating that the term clothes in § 203(o) \"include[s] items worn on the body for covering, protection, or sanitation.\" See DOL Wage & Hour Op. Ltr.",
"FLSA2002-2 (June 6, 2002). Reviewing courts are divided as to whether the provision operates as an exemption or merely a definition and prerequisite for a finding of hours worked. Compare Anderson v. Cagle's, Inc., 488 F.3d 945, 958 (11th Cir. *693 2007) (\"§ 203(o) is not an exemption under the FLSA but is instead a definition that limits the scope of the FLSA's key minimum wage and maximum hour provisions.\") with Alvarez v. IBP, Inc., 339 F.3d 894, 905 (9th Cir.2003), aff'd, 546 U.S. 21, 126 S. Ct. 514, 163 L. Ed. 2d 288 (2005), (holding that \"FLSA exemptions [like § 203(o) ] ... are to be narrowly construed against the employers seeking to assert them.\"). [4] III. APPLICATION AND ANALYSIS 1.",
"Is donning and doffing \"work\" under the FLSA? Koch Foods raises, albeit indirectly, the issue of whether the donning and doffing of sanitary gear is \"work\" under the FLSA. See Def. 's Br. at 19 n. 22 [Doc. # 43] (May 16, 2008). They cite to the Pilgrim's Pride case from the Eastern District of Texas for the proposition that the donning and doffing of sanitary equipment cannot be considered work under the Act. See Anderson v. Pilgrim's Pride Corp., 147 F. Supp. 2d 556, 561 (E.D.Tex.",
"2001). After defining \"work\" as \"physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer,\" the district court in Pilgrim's Pride concluded that donning, doffing, and cleaning of sanitary equipment was not \"work\" under the Act. Id. The court found that \"[d]ue to the fact that the donning and doffing of these items takes seconds to accomplish and requires very little concentration, the Court finds that the donning and doffing of these items does not involve `physical or mental exertion', and, therefore, does not qualify as work within the meaning of the FLSA.\" Id. The Defendant also relies on Reich v. IBP, Inc., 38 F.3d 1123, 1127 (10th Cir.",
"1994), which held that the donning and doffing of standard, non-unique protective material, such as hard hats, earplugs, safety footwear, and safety eyewear, was not \"work\" under the FLSA. The Tenth Circuit relied upon the Supreme Court's definition of work as espoused in Tennessee Coal and determined that the activity was not work because it required little or no concentration and little or no physical or mental exertion. [5] Yet the continuing validity of Reich has been called into doubt by district courts in the Tenth Circuit in light of the Supreme Court's methodology in Alvarez. See Garcia v. Tyson Foods, Inc., 474 F. Supp.",
"2d 1240, 1246 (D.Kan. 2007) (\"the court is convinced that the Circuit, if given the opportunity to revisit the issues in Reich, would approach its analysis of the pertinent issues differently in light of Alvarez.\"). The courts in both Pilgrim's Pride and Reich overemphasize the significance of \"exertion\" in determining when \"work\" has been performed. Although the term \"exertion\" in everyday speech conveys a sense of heft or substantial effort,[6] focus on that *694 connotation threatens to misapply the Supreme Court's precedent on the precise issue. See Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S. Ct. 165, 89 L. Ed.",
"118 (1944) (\"an employer ... may hire a man to do nothing, or to do nothing but wait for something to happen\"). To be considered work, the activity need only be \"controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer.\" Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S. Ct. 698, 88 L. Ed.",
"949 (1944). This Court determines that the better view of what constitutes \"work\" was recently adopted by the Third Circuit in De Asencio v. Tyson Foods, Inc., 500 F.3d 361, 373 (3rd Cir.2007). In De Asencio, the Third Circuit held that \"it was error for the jury instruction to direct the jury to consider whether the gear was cumbersome, heavy, or required concentration to don and doff\" in order to determine it was work. Id.",
"The appeals court found that this instruction \"impermissibly directed the jury to consider whether the poultry workers had demonstrated some sufficiently laborious degree of exertion, rather than some form of activity controlled or required by the employer and pursued for the benefit of the employer.\" Id. (emphasis in original). Because \"exertion is not in fact required for activity to constitute `work,\" the appeals court ruled the instruction in error. Id. [7] This Court therefore finds that the Plaintiffs have raised a genuine issue of material fact as to whether donning and doffing the sanitary gear in question constitutes \"work\" under the FLSA. [8] In so finding, the Court expresses no opinion on whether the work that the Plaintiffs might have performed would be considered de minimus under 29 C.F.R.",
"§ 785.47. See Lindow v. United States, 738 F.2d 1057, 1062-63 (9th Cir.1984). 2. Are activities integral and dispensable to the job? Koch Foods also moves for summary judgment under the argument that the donning and doffing of sanitary gear is not integral and indispensable to the Plaintiffs' jobs, and compensation is therefore precluded by the Portal-to-Portal Act. See Def. 's Br. at 19 [Doc. # 43] (May 16, 2008). In order to determine whether the Portalto-Portal Act precludes the Plaintiffs' claims, the Court must examine whether the sanitary and safety equipment at issue is \"integral and indispensable\" to the Plaintiffs' principal activities and thus a *695 part of their continuous workday. [9] If the gear is \"integral and indispensable,\" then the donning and doffing of those items are principal activities and the time spent doing so is compensable under the FLSA. It is undisputed that Koch Foods requires processing employees to wearat a minimumsmocks, hairnets, and earplugs. See Def. 's Br. at 5 [Doc. # 43] (May 16, 2008).",
"[10] The rules regarding sanitary gear are outlined in a series of Good Management Practices (\"GMPs\") that inform employees about which sanitary items must be worn. See Pl. 's Ex. 10 [Doc. # 52] (June 9, 2008). According to company documents, the GMPs are promulgated \"to place quality and food safety atop our company's primary objectives\" so that Koch Foods \"will remain a leading supplier of safe, high quality poultry products for the public.\" Id. The Plaintiffs have stated that, if they enter the processing area without wearing the gear, a Quality Assurance Employee will \"holler out\" to stop the employee. See Pl. 's Res. Br. at 9 [Doc. # 50] (June 9, 2008). The Plaintiffs have each testified that their \"principal work activity was not just to process chickens, but to process chickens in an uncontaminated manner.\" See Pl. 's Ex. 1 [Doc. # 51-1] (June 9, 2008). And applicable federal regulations require that employers implement \"methods for maintaining cleanliness\" including \"wearing outer garments... in a manner that protects against contamination\" and \"wearing ... hairnets ... or other effective hair restraints.\" See Pl's Ex.",
"31 [Doc. # 53-14] (June 9, 2008). The Defendant argues that the sanitary equipment is not integral and indispensable to the Plaintiffs' duties, and therefore donning and doffing it is not compensable under the terms of the Portal-to-Portal Act. See 29 U.S.C. § 254(a) (2000). First, they claim that the Supreme Court's rationale in Steiner precludes compensation for \"changing clothes and showering under normal conditions.\" See Def. 's Br. at 25 [Doc. # 43] (May 16, 2008). They also argue that wearing sanitary gear is done \"for the primary benefit of the consuming public and employees.\" See Def. 's Reb. Br.",
"at 8 [Doc. # 59] (June 19, 2008). Finally, they argue that even though Koch Foods \"may also benefit from the sanitation requirements,\" that alone does not make the activity compensable under the Act. Id. Consistent with its argument that changing clothes \"under normal conditions\" is not compensable, the Defendant relies upon Gorman v. Consolidated Edison Corp., 488 F.3d 586, 594 (2nd Cir. 2007), to argue that the use of the sanitary gear at issue is not both integral and indispensable as required to be compensable under the Act.",
"In Gorman, the Second Circuit relied on Steiner to articulate a distinction between the terms \"indispensable\" and \"integral\" as used in prior precedent. While \"indispensable\" means only \"necessary,\" the term \"integral\" adds the requirement that the activity be \"essential to completeness ... organically linked ... *696 [or] composed of constituent parts making a whole.\" Id. at 592. [11] Therefore, unless an activity is essential to complete the employee's task, it is excluded from compensation under the Act. The Plaintiffs respond by arguing that their principal activity \"is not to process poultry products, but to process uncontaminated poultry products.\" See Pl. 's Resp. Br. at 13 [Doc. # 13] (June 9, 2008) (emphasis in original). As such, they claim that \"the required donning, doffing and sanitizing activities are essential to plaintiffs' principal activity of producing safe, sanitary and uncontaminated poultry products.\" Id. [12] The Court finds that a genuine issue of material fact exists as to whether the Plaintiffs' pre- and post-shift donning and doffing activities are compensable under the FLSA and the Portal-to-Portal Act. First, a genuine issue of material fact exists as to whether the donning and doffing activity is necessary to Koch Foods' business.",
"The Defendant argues that \"even if Koch Foods were the primary beneficiary of the clothes changing and washing\" the activities are not \"essential tasks to the ordinary course of business.\" See Def. 's Br. at 25 [Doc. # 43] (May 16, 2008). Though employees of Koch Foods might be physically able to process chickens without sanitation gear, the resulting product would be adulterated and unmarketable. And undisputed evidence shows that Koch Foods' ordinary course of business is to produce and market a wholesome poultry product. [13] As a practical matter, therefore, the Plaintiffs must work under the sanitary conditions that Koch Foods has already implemented in order for their services to have any real value. The Court also finds that a genuine issue of material fact exists as to whether the Plaintiffs' donning and doffing was performed primarily for the benefit of Koch Foods.",
"It is undisputed that employees must remove sanitary gear anytime they leave the plant, while on break or returning home after their shift, when they go to the restroom, and when they choose to eat during their break. See Pl. 's Res. Br. at 11 [Doc. # 50] (June 9, 2008). The Plaintiffs are not permitted to take their smocks home, and are not permitted to wear smocks of their own choosing. [14]*697 While leaving the smocks at the factory for laundering undoubtedly benefits both the Plaintiffs and Koch Foods, requiring removal prior to walking outside or going to the restroom can only benefit Koch Foods. Requiring removal prevents the smocks from being exposed to either the restrooms or the outdoors, and limits contamination to the chicken productsnot to the employees. Moreover, Koch Foods retains tight control over the laundering and distribution of the smocks, and employees that wish to take them home and launder them personally will face disciplinary actions.",
"Id. at 20. [15] Although the employees undoubtedly derive some benefit from the use of sanitary gear, the same gear also allows Koch Foods to maintain the cleanliness essential to prevent contamination to its poultry products. [16] As one district court recently explained, \"[t]his benefit is enormous when one considers the damage that would result to the defendants if they were to sell a contaminated food product.\" Jordan v. IBP, Inc., 542 F. Supp. 2d 790, 807 (M.D.Tenn.2008).",
"[17] Other district courts have reached similar conclusions, finding summary judgment inappropriate on these facts. See Chao v. Tyson Foods, Inc., 568 F. Supp. 2d 1300, 1315-16, 2008 WL 2020323 at *9 (N.D.Ala. Jan. 22, 2008) (denying summary judgment because \"a question of material fact remains as to whether the benefit it receives is so significant that it is Defendant, and not Defendant's employees, who receives the primary benefit thereof.\"). Finally, the Court finds that the Defendant's argument regarding the application of Steiner and the \"changing clothes ... under normal conditions\" rationale to be misplaced. See Def. 's Br. at 25 [Doc. # 43] (May 16, 2008).",
"As the district court of Wisconsin articulated in Spoerle, such a reading of Steiner invites an unusual application of the terms integral and indispensable. See Spoerle v. Kraft Foods Global, Inc., 527 F. Supp. 2d 860, 864 (W.D.Wis. 2007). Even though the Plaintiffs in this case do not work in the highly toxic atmosphere of a battery factory, their equipment is worn for sanitary and safety purposes and is required both by law and company policy. They could not perform their jobs without it, and as such, it is not *698 \"merely a convenience\" provided for their sole benefit. Id. at 865. 3. Collective Bargaining Agreement and 203(o) defense Koch Foods also moves for summary judgment under 29 U.S.C.",
"§ 203(o). As discussed supra, the statute excludes time spent \"changing clothes or washing at the beginning or end of each workday which was excluded from measured working time ... by the express terms of or by custom or practice under a bona fide collective-bargaining agreement.\" See 29 U.S.C. § 203(o) (2000). [18] As the `Supreme Court has observed, the \"union-represented employees have the full protection of the minimum standard, absent any agreement for something different.\"",
"Livadas v. Bradshaw, 512 U.S. 107, 131, 114 S. Ct. 2068, 129 L. Ed. 2d 93 (1994). When employees \"opt out\" of this protection when entering into a collective bargaining agreement, they cannot later advance a claim for compensation based on the same activity. The majority of employees at all three Koch Foods facilities are covered by Collective Bargaining Agreements (\"CBAs\") struck between Koch Foods and the United Food and Commercial Workers Union, Local 1529. [19] The De-Bone and Prepared Foods plants were unionized in 2004. After unionization, Koch Foods and the union negotiated and executed a Collective Bargaining Agreement to run from September 21, 2004, through September 21, 2007 (\"2004 Forest CBA\").",
"The 2004 Forrest CBA remains in effect under a temporary extension agreement at both plants. The Live Processing Plant in Morton was unionized before Koch Foods acquired it in 2002, and is covered by its own CBA (\"2005 Morton CBA\"). Since acquisition, Koch Foods has negotiated and struck two CBAs with the Union to cover the Live Processing Plant. Each CBA contains language affirming that the agreements \"represents the entire agreement and understanding between the parties\" and that the Union and the company \"voluntarily and unqualifiedly waive\" any \"right to make demands and proposals with respect to any subject or matter not removed by law from the area of the collective bargaining agreement.\" See Def. 's Br. at 11-12 [Doc. # 43] (May 16, 2008). During negotiations for each of the CBAs, the Union's team never proposed, or attempted to negotiate for, any compensation for time spent donning and doffing the sanitary gear at issue. Id. at 13. Although the Union never negotiated for additional compensation, employees at each plant were acutely aware that they were not compensated for the time.",
"See, e.g., Def. 's Ex. 16 at 5-6 [Doc. # 42-4] (May 16, 2008); Def. 's Ex. 17 at 6-7 [Doc. # 42-5] (May 16, 2008). One of the named Plaintiffs, Verida King, even stated that she complained to Union representatives about the compensation policies at issue prior to the most recent negotiations. See Def. 's Ex. 10 at 11 [Doc. # 40-11] (May 16, 2008). And both parties agree that neither of the finalized CBAs address the compensability of donning and doffing the sanitary gear at *699 issue. Therefore, there is no \"express term\" of a collective bargaining agreement that would support non-compensation. The Defendant instead contends that \"the undisputed facts unequivocally demonstrate that Koch Foods' employees acquiesced to Koch Foods' policy of not paying production employees for clothes changing and washing time.\" See Def.",
"'s Br. at 35 [Doc. # 43] (May 16, 2008). The Defendant primarily relies upon Bejil v. Ethicon, Inc., 269 F.3d 477, 479 (5th Cir.2001), to support their § 203(o) defense. Although that agreement was also silent as to compensation for similar activities, the union that negotiated the CBA in Bejil had repeatedly addressed the issue of the time needed to don and doff sanitary gear. See Bejil v. Ethicon, Inc., 269 F.3d 477, 479 (5th Cir.2001) (finding a custom when \"[e]thicon and the employees' union... have addressed the issue of compensation for the time required to don and doff protective coverings on several occasions.\").",
"There was no doubt that the issue was addressed by the negotiators in Bejil, even if the ultimate agreement was silent. The Bejil court concluded that \"where the union and employer discuss an issue, the result may be custom or practice, even if the collective bargaining agreement is silent on the issue.\" Id. at 480. [20] The Second Circuit took a similar position in Arcadi v. Nestle Food Corp., 38 F.3d 672, 675 (2nd Cir.1994), finding that \"[i]f the parties to a collective bargaining agreement negotiate over an issue and have an understanding that resolves it, then a `practice' exists, even in the absence of express written terms.",
"\"[21] The Defendant also relies on Anderson v. Cagle's, Inc., 488 F.3d 945, 958 (11th Cir.2007), for a more robust reading of what silence in a CBA means in terms of a custom or practice under § 203(o). In Cagle's, the appeals court upheld the district court's application of § 203(o) in barring the claims of processing employees for changing clothes before and after their time on the production line. That court concluded that \"[a]bsence of negotiations cannot in this instance equate to ignorance of the policy. Rather, it demonstrates acquiescence to it.\" Id.",
"[22] The Defendant adopts this assertion on its face, and argues that \"[t]his absence of collective bargaining negotiations on the issue further proves acquiescence to Koch Foods' compensation *700 practice.\" See Def. 's Br. at 36 [Doc. # 43] (May 16, 2008). When negotiations never touched on the issue, other district courts have looked to the duration of the alleged custom or practice to search for acquiescence. In Kassa v. Kerry, Inc., 487 F. Supp. 2d 1063, 1068 (D.Minn.2007), the district court of Minnesota was able to find a custom or practice based on the duration of the policy, even in the absence of specific negotiations.",
"Id. The court in Kassa placed the burden on the plaintiff to show that \"its policy of noncompensation for clothes-changing time lasted for a sufficiently long time, with sufficient knowledge and acquiescence by Kerry's employees, that the policy became an implicit terma `custom or practice' under the CBA.\" Id. at 1069. The court held that proof that the issue was raised in negotiations by the union \"is one way, but not the only way, to prove knowledge and acquiescence by union employees.\" Id. [23] The Court's real question must be whether both parties, being fully informed of the relevant facts, chose to exclude compensation for donning and doffing activities. [24] In that instance, § 203(o) operates to remove from the category of \"hours worked\" under the FLSA any time that could have been compensable, but had been bargained away by union representatives under a bona fide CBA. The employees would then no longer be entitled to the \"full protection of the minimum standard\" of the FLSA because they would have struck an \"agreement for something different.\"",
"See Livadas v. Bradshaw, 512 U.S. 107, 131, 114 S. Ct. 2068, 129 L. Ed. 2d 93 (1994). The CBA itself is a holistic, all-issues answer to workplace concerns and compensation issues relevant to the employees. [25] The agreement is not a contract of adhesion, and represents a complete compact between sophisticated parties of comparable bargaining strength. [26] The Court *701 has no reason to doubt that negotiations were fair or were not conducted in good faith by both parties, and there is no allegation that either side was denied an opportunity to raise an issue it felt was significant. [27] The Plaintiffs have failed to raise any genuine issue of fact that precludes this Court from recognizing the \"practice\" of non-compensation approved by the CBAs.",
"In so finding, this Court goes one step beyond the rationale of Arcadi to state that when employees and union representatives are conclusively aware of the facts surrounding compensation policies for changing clothes at the beginning and end of each workday, and reach an agreement under a CBA that does not compensate employees for the time, a \"practice\" exists under the CBA sufficient to invoke the § 203(o) defense. [28] Even in the absence of a long-standing tradition of non-compensation, the practice established under the terms of a fully and fairly negotiated CBA makes these claims untenable under § 203(o). The Court finds that this reading of § 203(o) best reflects Congressional intent in adopting the statute to \"curtail employee-protective interpretations of the FLSA\" on compensation issues settled by a CBA. [29] Yet because both the Prepared Food Plant and the Debone Plant were not unionized until 2004, there was no collective bargaining agreement in place between June 3, 2003 and September 21, 2004. [30] Therefore, the custom or practice recognized by this Court under § 203(o) cannot bar claims for hours worked between *702 June 3, 2003 and September 21, 2004.",
"Those claims survive summary judgment. 4. The continuous workday rule The Defendant also claims that pre- and post-production walk and wait times are not compensable. According to the Defendant's logic, \"[b]ecause changing into and out of standard clothing and washing by Koch Foods' employees are not compensable activities, the pre- and post-production activities are likewise not compensable.\" See Def. 's Br. at 38 [Doc. # 43] (May 16, 2008). Koch Foods relies on a recent opinion letter from the Wage and Hour Division of the Department of Labor, which states that \"activities covered by section 3(o) cannot be considered principal activities and do not start the workday.\"",
"See DOL Wage & Hour Op. Ltr. FLSA2007-10 (May 14, 2007). Yet because this Court has found a genuine issue of material fact as to whether the donning and doffing are integral and indispensable to the employees' activities, the continuous workday rule does not operate to bar the Plaintiffs' claim for preshift, post-donning time as well as post-shift, pre-doffing time. Although the act of \"changing clothes\" itself is barred based on § 203(o) discussed supra, the activities that occur after changing into sanitary gear and before changing out of sanitary gear are not impacted by the defense. [31] If the jury determined that donning and doffing this gear was integral and indispensable, their commencement would trigger the \"continuous workday rule,\" and might make the walking and waiting time at issue compensable. See IBP, Inc. v. Alvarez, 546 U.S. 21, 29, 126 S. Ct. 514, 163 L. Ed. 2d 288 (2005) (defining continuous workday as \"the period between the commencement and completion on the same workday of an employee's principal activity or activities.\").",
"IV. CONCLUSION The Plaintiffs have raised a genuine issue of fact that donning and doffing of sanitary equipment constitutes \"work\" under the FLSA, irrespective of the minuscule amount of physical or mental exertion required to secure the items. And based on the evidence before it, this Court cannot conclude that the donning and doffing of this required sanitary gear is neither integral nor indispensable to the Plaintiffs' principal activities. However, the Plaintiffs have failed to raise any issue of fact that precludes this Court from recognizing the \"practice\" of non-compensation approved by the applicable CBAs for the relevant activities that would trigger application of the § 203(o) defense. The time employees spend \"changing clothes\" at the beginning or end of each workday is therefore not compensable, subject to the statute of limitations issue discussed supra.",
"Finally, the Court cannot dismiss the Plaintiffs' claim for post-donning and pre-doffing walk and wait times under the continuous workday rule. [32] *703 IT IS, THEREFORE, ORDERED AND ADJUDGED that the Defendant's motion for summary judgment [Doc. # 40] is granted in part and denied in part, and the Plaintiffs' motion for summary judgment [Doc. # 44] is denied. NOTES [1] In Tennessee Coal, the Court defined \"work\" or \"employment\" as \"physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.\" Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S. Ct. 698, 88 L. Ed.",
"949 (1944). [2] There is \"[n]o categorical list of `preliminary' and `postliminary' activities except those named in the [Portal Act] ... since activities which under one set of circumstances may be `preliminary' or `postliminary' activities, may under other conditions be `principal' activities.\" 29 C.F.R. § 790.7(b). [3] In Alvarez, the Court upheld the Steiner rule, stating that: Thus, under Steiner, activities, such as the donning and doffing of specialized protective gear, that are performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by Section 4(a)(1). See IBP, Inc. v. Alvarez, 546 U.S. 21, 29, 126 S. Ct. 514, 163 L. Ed. 2d 288 (2005).",
"[4] In Livadas, the Supreme Court referred to § 203(o) as an \"opt out\" statute in the context of other issues. See Livadas v. Bradshaw, 512 U.S. 107, 131-32, 114 S. Ct. 2068, 129 L. Ed. 2d 93 (1994). [5] \"Requiring employees to show up at their workstations with such standard equipment is no different from having a baseball player show up in uniform, a businessperson with a suit and tie, or a judge with a robe. It is simply a prerequisite for the job, and is purely preliminary in nature.\" Reich v. IBP, Inc., 38 F.3d 1123, 1127 (10th Cir.1994). [6] See Webster's II New College Dictionary, (Hughton Mifflin 1995) (defining \"exert\" as \"to put forth (e.g., strength)\" or \"to bring to bear\"); see also Merriam-Webster Online, http://www.merriam-webster.com/dictionary/exert (accessed July 18, 2008) (defining \"exert\" as \"to put forth (as strength)\" or \"to put (oneself) into action or to tiring effort\" or \"to bring to bear especially with sustained effort or lasting effect\"); see also Dictionary.com, http://dictionary.reference.com/browse/exert (accessed July 18, 2008) (defining \"exert\" as \"to put forth or into use, as power; exercise, as ability or influence; put into vigorous action: to exert every effort\" or \"to put (oneself) into strenuous, vigorous action or effort\").",
"[7] Several district courts reviewing similar claims have come to the same conclusion. See Jordan v. IBP, Inc., 542 F. Supp. 2d 790, 805 (M.D.Tenn.2008) (\"[t]he collective wisdom of these circuit courts makes crystal clear that exertion is not required for an activity to constitute work under FLSA and the Portal-to-Portal Act. \"); see also Davis v. Charoen Pokphand (USA), Inc., 302 F. Supp. 2d 1314, 1322 (M.D.Ala.2004) (rejecting argument from Pilgrim's Pride and Reich because the courts \"apply an overly narrow interpretation of the Muscoda definition of work. \"); Gonzalez v. Farmington Foods, Inc., 296 F. Supp.",
"2d 912, 924 (N.D.Ill.2003) (finding that \"donning and doffing of sanitary and safety equipment, equipment cleaning and knife sharpening constitute work because these activities are `controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer.'\"). [8] Because this issue was only raised by the Defendant indirectly, the Court will permit them to raise the issue in further briefing if desired. [9] See Lugo v. Farmer's Pride, Inc., 2008 WL 161184 at *4 (E.D.Pa. Jan. 14, 2008) (\"Thus, in evaluating whether workday activities are excluded from FLSA coverage by the Portalto-Portal Act, it must be determined whether an activity is `integral and indispensable' to the principal activity and part of the continuous workday.\"). [10] There remains a variety of additional sanitary and safety gear worn by some employees, a portion of which is mandatory and a portion of which is optional.",
"The Court's current holding touches only the mandatory sanitary and safety gear discussed. Because the factual issues are undeveloped on optional sanitary and safety gear, the Court declines to grant summary judgment on those issues at this time. [11] At least one district court from the Seventh Circuit has called the Gorman interpretation of Steiner \"truly bizarre.\" See Spoerle v. Kraft Foods Global, Inc., 527 F. Supp. 2d 860, 864 (W.D.Wis.2007) (\"The [Second Circuit in Gorman] appears to be saying that the holding of Steiner does not apply unless the `work is done in a lethal atmosphere.' In other words, unless the activity is necessary to prevent the employee from actually dying, it is not `integral' to a principal activity.",
"From a public policy perspective, this reading is obviously troubling because it creates an uncomfortable distinction between hazards that kill and hazards that maim (or pose only a risk of death) and suggests that an employee is entitled to compensation for protecting herself from the former only.\"). [12] The Fifth Circuit has warned against too narrow a definition of an employee's principal activities. See Dunlop v. City Elec., Inc., 527 F.2d 394, 400 (5th Cir.1976) (\"[b]y narrowly defining the principal activity of the employees in the instant case as that of `installing and repairing electrical wiring', the district court severely limited the range of potentially compensable activities, thus committing the precise error which Congress sought to avoid in its careful wording of the statute.\"). [13] See Alvarez v. IBP, Inc., 339 F.3d 894, 903 (9th Cir.2003), aff'd, 546 U.S. 21, 126 S. Ct. 514, 163 L. Ed.",
"2d 288 (2005) (\"it is beyond cavil that the donning, doffing, washing, and retrieving of protective gear is, at both broad and basic levels, done for the benefit of IBP.\"). [14] In granting summary judgment in favor of the employer in a factually similar case, the district court in Alford noted the importance of the fact that employees were permitted to take safety and sanitary items home and arrive at work already wearing them. See Alford v. Perdue Farms, Inc., 2008 WL 879413 at *6 (M.D.Ga. Mar. 28, 2008) (finding that time spent donning generic sanitary and safety gear not compensable because requiring employee to don their \"hair and beard nets, ear plugs, boots, and caps prior to beginning work\" is \"something that the employee can do at his home, in his car, or whenever suits his convenience.\"). [15] See Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 911 (9th Cir.2004) (donning and doffing of uniforms by employees at a silicon chip manufacturing plant benefitted the employer because the uniforms \"were required to limit potential cleanroom contamination, and thereby to assist the employer in ensuring the quality of the silicon chips manufactured at the plant.\").",
"[16] See Dunlop v. City Elec., Inc., 527 F.2d 394, 400 n. 11 (5th Cir.1976) (\"[t]he fact that the employees too may have benefitted from filling out time sheets recording their hours worked and the compensation due them is not inconsistent with the conclusion that the work was `an integral and indispensable function of the defendant business.'\"). [17] As the district court in Jordan further explained, \"[t]he minor benefit to the employees of keeping their street clothes clean pales by comparison\" to the benefit enjoyed by the employer. See Jordan v. IBP, Inc., 542 F. Supp. 2d 790, 807 (M.D.Tenn.2008) (granting summary judgment in favor of employees on the integral and indispensable test of the Portal-to-Portal Act).",
"[18] Based on the terms of the statute, the defense can only apply to time spent \"changing clothes\" at the \"beginning and end of each workday.\" See 29 U.S.C. § 203(o) (2000). Therefore, the Plaintiffs' remaining claims related to midday work breaks and unpaid waiting time at the beginning of each day are not impacted by this analysis. [19] The CBAs apply to all hourly production employees as well as maintenance and sanitation departments. Quality assurance employees are not covered by the CBAs. See Def. 's Br. at 10 n. 13 [Doc. # 43] (May 16, 2008).",
"[20] In Hoover v. Wyandotte Chemicals Corp., 455 F.2d 387, 389 (5th Cir.1972), the Fifth Circuit took a similar approach, finding a custom or practice when negotiations touched on the precise issue, regardless of the policy's duration. (\"The defendant in this case has shown a history of its dealings with the plaintiffs' union in exempting from payment any time exceeding fifteen minutes in which an employee spends changing clothes and showering. Furthermore, it has been shown that the collective bargaining negotiations between the union and the company encompassed the company's policy concerning payment for such activities.\"). [21] This approach is consistent with that taken by the Eastern District of Texas in Anderson v. Pilgrim's Pride Corp., 147 F. Supp. 2d 556, 565 (E.D.Tex.2001) (finding a custom or practice existed, despite the silence of the CBA, when \"the [union] proposed compensating line employees for \"wait time\" and the time spent donning and doffing sanitary clothing and equipment ... [but the company] rejected this proposal ...\").",
"[22] This Court first applied Cagle's in Conerly v. Marshall Durbin Co., 2007 WL 3326836 at *7 (S.D.Miss. Nov. 6, 2007). As this Court found in Conerly, the Cagle's decision was based upon a \"long history of negotiation of issues between the employer and the union and certain specific knowledge by principles of the union regarding the very issue of donning and doffing.\"",
"See Conerly v. Marshall Durbin Co., 2007 WL 3326836 at *7 (S.D.Miss. Nov. 6, 2007) (denying summary judgment because record did not support similar factual findings). [23] In Kassa, the court argued that \"the term `custom or practice' is broad enough to capture a long-standing practice by an employer of nonpayment for clothes-changing timeeven if the issue of payment for such time has not been raised in union-management negotiations-provided that the employer can demonstrate that the practice of nonpayment was sufficiently long in duration and that its employees knew of and acquiesced in the practice.\"",
"Kassa v. Kerry, Inc., 487 F. Supp. 2d 1063, 1068 (D.Minn.2007). [24] The Plaintiffs also argue that the sanitary and safety items are not \"clothes\" as contemplated by the statute, and merely slipping them over their street clothes is not \"changing clothes\" as defined in the Act. See Pl. 's Res. Br. at 48-50 [Doc. # 50] (June 9, 2008). The Court finds that the Plaintiffs' reading of the terms \"changing clothes\" as used in the statute is nonsensical. The sanitary and safety items worn by the Plaintiffs fit comfortably within the definition of \"clothes\" as interpreted by reviewing courts, and the suggestion that \"changing\" should be interpreted only to include \"substituting\" simply misconstrues the statute.",
"See Bejil v. Ethicon, Inc., 269 F.3d 477, 480 n. 3 (5th Cir.2001) (holding that slipping on a lab coat, shoe coverings, and a hairnet or beardnet to be \"changing clothes\" under § 203(o) of the FLSA). [25] Discussing the collective bargaining process, the Supreme Court has said that there \"is a congressional intent to create an equality in bargaining power between the employee and the employer throughout the entire process of labor organizing, collective bargaining, and enforcement of collective-bargaining agreements.\" See N.L.R.B. v. City Disposal Systems, Inc., 465 U.S. 822, 835-36, 104 S. Ct. 1505, 79 L. Ed. 2d 839 (1984) (discussing collective bargaining in terms of employee attempting to assert rights under the agreement). [26] See Brentwood Medical Associates v. United Mine Workers of America, 396 F.3d 237, 240 (3rd Cir.2005) (\"A collective bargaining agreement represents a contractual accord reached between an employer and its employees.\").",
"[27] Courts interpreting CBAs will generally use traditional principles of contract interpretation to the extent that such principles are consistent with federal labor law. But because CBAs are contracts of a special type, an agreement that is ambiguous \"can be more readily expanded by implication than those of contracts memorializing other transactions.\" United Paperworkers Int'l Union, AFL-CIO, CLC v. Champion Int'l Corp., 908 F.2d 1252, 1256 (5th Cir.1990). Yet because the CBAs in this case are not susceptible to more than one interpretation, their terms are not ambiguous, and hence not open to broader construction to benefit the employees.",
"See Nichols v. Alcatel USA, Inc., 532 F.3d 364, 376-78 (5th Cir. 2008). [28] If reviewing courts labor to find extrinsic evidence of a \"custom or practice,\" beyond the existence of a fairly negotiated CBA and a team of union negotiators and employees that were fully aware of the relevant compensation practices, then courts will inadvertently encourage employees and union negotiators to either remain ignorant of compensation policies or to avoid any mention of them, lest they be seen to have created a custom or practice that waived a potential claim for compensation under § 203(o). An outcome that encourages artifice between parties negotiating a CBA is wrong from a policy perspective, and risks that reviewing courts will simply reward parties for not faithfully negotiating the CBA in the first instance. [29] The alternative holding would require the Court to presume that Union representatives were unaware of how their employees were compensated, an inference not supported by the current facts. Perhaps more importantly, overreading the contractual silence on donning and doffing ignores the possibility that both sides in the negotiation of a CBA might have real and legitimate reasons for omitting an explicit reference to these issues.",
"Based on the sophistication of each party, the Court finds it inconceivable that the Union was unaware of the compensation policies of Koch Foods to the extent that it could not have fully and fairly bargained them away based on other priorities. Merely because a potential change in the law makes these issues appear more enticing in hindsight does not mean this Court should upset the agreement struck between the parties. Congress enacted § 203(o) to protect employers from precisely this kind of post-mortem attack on labor contracts every time a court interprets a gray area on FLSA compensation issues.",
"[30] The limitations period in this case begins on June 2, 2003, under the three-year statute for willful violations. [31] Although the statute precludes recovery for time spent washing and \"changing clothes,\" it does not affect the fact that these activities could be the first \"integral and indispensable\" act that triggers the start of the continuous workday rule for subsequent activities that are not covered by § 203(o), such as post-donning sanitation and travel time. See IBP, Inc. v. Alvarez, 546 U.S. 21, 34, 126 S. Ct. 514, 163 L. Ed. 2d 288 (2005) (holding that the Portal-to-Portal Act \"does not exclude walking from [the locker room where sanitary and safety gear is put on] to another area within the plant immediately after the workday has commenced.\"). [32] Based on the Court's findings, the only claim of the Plaintiffs now barred by summary judgment is the time spent \"changing clothes\" before and after their shifts pursuant to § 203(o). Any claims for: (1) time spent immediately following the donning of sanitary and safety gear; (2) time spent during the day surrounding their two 30 minute breaks; and (3) time spent immediately preceding the doffing of sanitary and safety gear, each remain viable and survive summary judgment."
]
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12 F.3d 1436 UNITED STATES of America, Plaintiff-Appellee,v.Delano Romanus OAKIE, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Kirk Morin OAKIE, Defendant-Appellant. Nos. 92-3268, 92-3622. United States Court of Appeals,Eighth Circuit. Submitted May 11, 1993.Decided Dec. 17, 1993.Rehearing and Suggestion for RehearingEn Banc Denied Jan. 27, 1994in No. 92-3622 andJan. 28, 1994 in No. 92-3268.
Jerry L. Wattier, Pierre, SD, argued, for Delano Oakie. Jamie L. Post, Pierre, SD, argued, for Kirk Oakie. David L. Zuercher, U.S. Atty., Pierre, SD, argued, for plaintiff-appellee. Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges. LOKEN, Circuit Judge.
1 Delano Romanus Oakie and Kirk Morin Oakie, residents of the Cheyenne River Indian Reservation in South Dakota, appeal their convictions for assault with a dangerous weapon in violation of 18 U.S.C. Secs. 1153 and 113(c), use of a firearm during a crime of violence in violation of 18 U.S.C. Sec. 924(c), and assaulting a federal officer with a dangerous weapon in violation of 18 U.S.C. Sec. 111. Delano Oakie also appeals his sentence and his additional conviction for being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1). Defendants argue numerous issues on appeal. We affirm.
2 I. Sufficiency of the Evidence.
3 As defendants challenge the district court's1 ruling that the evidence was sufficient to convict, we review that evidence in the light most favorable to the government. See United States v. LaChapelle, 969 F.2d 632, 633 n. 1 (8th Cir.1992). On the evening of October 18, 1991, Tribal Officer Leslie Shooter came to the home of LaMarr Avery, Delano Oakie's next door neighbor, looking for a suspect in an alcohol-related disturbance earlier that evening. At that time, Delano Oakie was driving Avery's borrowed car with Kirk Oakie, their friend Wallace Rooks, and Delano's nephew, Shane Oakie, as passengers. All had been drinking heavily. The group was about to pull into the Oakie/Avery common driveway when Delano saw Officer Shooter's tribal police car parked at the Avery residence. Delano turned the Avery car around and sped away, telling his passengers he wished to avoid tribal warrants for his arrest.
4 Thinking his suspect might be in Avery's fleeing vehicle, Officer Shooter gave chase, turning on his car's red flashing overhead lights as he left the driveway. When the Avery car did not stop, Officer Shooter turned on his siren and shined his car's spotlight on the fleeing vehicle. Delano accelerated, leading Officer Shooter over a rough dirt trail and pastures and crashing through several barbed wire fences.
5 As the chase continued, Delano asked Wallace Rooks to locate a rifle that Delano had retrieved from Avery's house and placed in the rear of Avery's car earlier that evening. Rooks grabbed the rifle and knocked out the car's rear window. Kirk Oakie found bullets under the seat, handed one to Rooks, and told Rooks to "hurry up and shoot that fucker." Rooks fired five or six shots at Officer Shooter's car through the rear window opening, with Kirk handing Rooks the bullets one at a time. One bullet struck the police car's windshield; glass fragments shattered Officer Shooter's glasses, sprayed into his eyes, and cut his cheek and eyebrow. Officer Shooter stopped his car, laid down on the front seat, and informed the police dispatcher that he had been shot and needed assistance.
6 Fearing serious injury, Officer Shooter resumed driving to find help. He caught up with the Avery vehicle parked on the road. Delano Oakie, standing outside that car, aimed the rifle at Officer Shooter's car and fired at least once. Seeing the muzzle flash, Officer Shooter stopped his car and laid down in the front seat until the Avery vehicle drove away. Defendants eventually abandoned the car at a gravel pit and walked to Wallace Rooks's home, where they spent the night. Delano Oakie asked Rooks to hide the rifle. Rooks placed it under his sister's mattress.
7 Defendants argue that this evidence was insufficient, primarily because Rooks did most of the shooting. We disagree. Applying our familiar sufficiency of the evidence standard, see United States v. Schmidt, 922 F.2d 1365, 1368 (8th Cir.1991), we conclude that there was more than enough evidence to convict each defendant of assault with a dangerous weapon with intent to do bodily harm and of using a firearm during a crime of violence (or of aiding and abetting Rooks to commit those crimes), and to convict Delano Oakie of being a felon in possession of the rifle used in the assaults.
8 II. The Federal Officer Issue.
9 The evidence was also sufficient to convict defendants of assaulting a federal officer in violation of 18 U.S.C. Sec. 111. Defendants argue that the government failed to prove that Shooter, a tribal officer, was a federal officer within the purview of Sec. 111 at the time of the assaults. Section 111 makes it a federal crime to assault anyone designated in 18 U.S.C. Sec. 1114, which includes "any officer or employee of the ... Department of the Interior ... assigned to perform investigative, inspection, or law enforcement functions." Officer Shooter testified that, at the time in question, he was employed by the Cheyenne River Sioux Tribe and was also a "Deputy Special Officer" of the Interior Department's Bureau of Indian Affairs ("BIA"). Dwain Holland, BIA's Area Special Officer for law enforcement, testified that BIA Deputy Special Officers are authorized to investigate any violation of federal law in Indian country, such as firearms violations, liquor violations, and assaults.
10 Whether a BIA Deputy Special Officer is an officer or employee of the Department of Interior for purposes of Sec. 111 is an issue of law for the court. Compare United States v. Lopez, 586 F.2d 978 (2d Cir.1978), cert. denied, 440 U.S. 923, 99 S.Ct. 1251, 59 L.Ed.2d 476 (1979); United States v. Reid, 517 F.2d 953, 958-60 (2d Cir.1975). The statute cannot be limited to BIA employees because that would make the reference in Sec. 1114 to "any officer or employee" surplusage. Section 111 was intended "to protect both federal officers and federal functions." United States v. Feola, 420 U.S. 671, 679, 95 S.Ct. 1255, 1261, 43 L.Ed.2d 541 (1975) (emphasis in original). Thus, both the language and the purpose of the statute compel the conclusion that a tribal law enforcement officer who has been designated a BIA Deputy Special Officer is entitled to the protections of Sec. 111 when performing the federal functions he or she has been deputized to perform.2 See United States v. Chunn, 347 F.2d 717, 721 (4th Cir.1965) (undercover state agent on loan to the Internal Revenue Service and assisting federal agents is a federal officer for purposes of Sec. 111); see also United States v. Torres, 862 F.2d 1025, 1029-30 (3d Cir.1988), and cases cited.
11 Whether Officer Shooter was in fact a BIA Deputy Special Officer, and whether he was performing federal "investigative, inspection, or law enforcement functions" at the time of the assaults, were fact questions for the jury. See United States v. Hanson, 618 F.2d 1261, 1264 (8th Cir.), cert. denied, 449 U.S. 854, 101 S.Ct. 148, 66 L.Ed.2d 67 (1980).3 The district court properly instructed the jury on these issues, defendants did not object to the instruction, and the evidence was sufficient to support the jury's finding that Officer Shooter was engaged in his duties as a BIA Deputy Special Officer at the time of the assaults. Accordingly, defendants' motions for judgment of acquittal were properly denied.
12 III. Section 924(c) Issues.
13 Count II of the indictment charged that defendants "during and in relation to [an] Assault with a Dangerous Weapon ... did use and carry a firearm in violation of 18 United States Code Section 924(c)." Defendants argue that Count II failed to charge a crime since it did not allege that the defendants acted "knowingly." We approved a Sec. 924(c) indictment that did not expressly allege that the defendant acted knowingly in United States v. Mills, 835 F.2d 1262, 1263 (8th Cir.1987). Like the indictment in United States v. Gutierrez, 978 F.2d 1463, 1466-67 (7th Cir.1992), the indictment in this case closely tracked the language of the statute and therefore fairly imported the scienter requirement of Sec. 924(c). The case upon which defendants rely, United States v. Hawkins, 741 F.Supp. 1234 (N.D.W.Va.1990), has been explicitly rejected by its own circuit. See United States v. Sutton, 961 F.2d 476, 479 n. 2 (4th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 171, 121 L.Ed.2d 118 (1992).
14 Defendants further argue that they were placed in double jeopardy when they were tried for assault with a dangerous weapon, and for use of a firearm during that assault in violation of Sec. 924(c). We rejected this contention in United States v. Mills, 835 F.2d 1262, 1264 (8th Cir.1987), because "Congress has specifically authorized cumulative punishment under two statutes." The Sentencing Guidelines did not alter this legislative authority. See United States v. Halford, 948 F.2d 1054, 1056-57 (8th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1700, 118 L.Ed.2d 410 (1992).
15 IV. Alleged Errors at Trial.
16 A. Severance. Delano Oakie argues that the district court abused its discretion in denying his motion for severance. The motion was made on the fourth day of trial, when Delano learned that Kirk Oakie would not testify. Because defendants who are jointly indicted on similar evidence from the same or related events should normally be tried together, to warrant severance a defendant must show "real prejudice," that is, "something more than the mere fact that he would have had a better chance for acquittal had he been tried separately." United States v. Adkins, 842 F.2d 210, 211-12 (8th Cir.1988).
17 Delano Oakie first argues that severance was appropriate because Kirk Oakie would have testified in Delano's favor at a separate trial. Counsel for Kirk Oakie advised the court that Kirk would testify that Delano did not fetch the rifle from LaMarr Avery's house, that Kirk did not remember seeing Delano shoot the rifle at the end of the car chase, that neither Kirk nor Delano told Wallace Rooks to fire at Officer Shooter, and that the group was not laughing and joking during the chase. The government opposed severance, noting that Kirk Oakie's contradictory pretrial statement to the FBI had implicated Delano in the shooting. To warrant severance on this ground, a defendant must show that the co-defendant's testimony would be "substantially exculpatory"--that it "would do more than merely tend to contradict a few details of the government's case." United States v. DeLuna, 763 F.2d 897, 920 (8th Cir.) (internal quotation omitted), cert. denied, 474 U.S. 980, 106 S.Ct. 382, 88 L.Ed.2d 336 (1985). In light of the other trial evidence and the impeachment evidence available to the government, we agree with the district court that the proffered testimony of Kirk Oakie did not meet this standard.
18 Delano next contends that he was entitled to a severance because he and Kirk presented antagonistic defenses: Kirk Oakie's cross examination of Wallace Rooks characterized Kirk and Shane Oakie as "prisoners in that car," whereas Delano's defense was that he believed he was being chased by an enemy, rather than the police, and did not know his passengers were shooting at the pursuing vehicle. To warrant severance on this ground, the co-defendants' defenses must be more than inconsistent, they must be "actually irreconcilable." United States v. Mason, 982 F.2d 325, 328 (8th Cir.1993). Kirk and Delano presented different defenses, but they were not irreconcilable or even antagonistic.
19 The district court did not abuse its discretion in denying Delano Oakie's motion to sever.
20 B. Prior Acts Evidence. Rule 404(b) of the Federal Rules of Evidence permits evidence of a defendant's "other crimes, wrongs, or acts" only for limited purposes and, if the defendant requests, only after reasonable notice of the general nature of any such evidence the prosecution intends to use. Delano requested such notice, and the government responded that it did not intend to introduce any Rule 404(b) evidence. During the government's case-in-chief, Wallace Rooks testified that he believed Delano drove away from the Avery residence because Delano "had some old warrants on him." In addition, the government impeached Shane Oakie with his statement to the grand jury that, "Delano said he had a warrant out for him and didn't want to get caught."
21 Delano argues that this was Rule 404(b) evidence that should have been excluded because of the government's failure to notify him of its intent to use it. We disagree.
22 Evidence which is probative of the crime charged ... is not "other crimes" evidence. Further, where the evidence of an act and the evidence of the crime charged are inextricably intertwined, the act is not extrinsic and Rule 404(b) is not implicated.
23 DeLuna, 763 F.2d at 913 (citations omitted). See also United States v. Bettelyoun, 892 F.2d 744, 746 (8th Cir.1989). In this case, evidence regarding why Delano turned the car around and fled explained the circumstances of the charged offense and was not Rule 404(b) evidence. Because this testimony was very brief and revealed no details concerning the outstanding warrants, it was not unduly prejudicial, and the district court did not abuse its discretion by admitting it.
24 V. Jury Instruction Issues.
25 A. Lesser Included Offense. At the instructions conference, consistent with defendants' requested instructions, the district court proposed to instruct the jury on simple assault as a lesser included offense to assault with a dangerous weapon with intent to do bodily harm. See 18 U.S.C. Sec. 113(c), (e). The government objected, explaining:
26 MR. ZUERCHER [the prosecutor]: The evidence for the assault with a dangerous weapon would be that the gun was fired at the police officer. If the jury finds that a gun was not fired the jury would find that there was no assault. So, if the element were missing they could not rationally find the lesser [included offense of simple assault].
27 Defense counsel's response to the objection focused upon the second assault:
28 MR. WATTIER: ... [T]he state of the testimony is that Wallace Rooks testified that he heard a shot, he saw Delano Oakie, a portion of him positioned facing toward the law enforcement vehicle. That the shot was fired and based on that I think the word was "assumed," you know, that he was shooting at the patrol vehicle. So, there is a dispute in the facts as to whether a shot was fired or not. And with that dispute the lesser included offense of simple assault needs to be submitted to the jury for their fact determination.
29 * * * * * *
30 MR. ROUBIDEAUX: The specific intent that's required, here, would certainly not be present in simple assault. Simple assault would be firing the gun without an intent to hit or injure the policeman.
31 THE COURT: Well, but is it claimed they fired the gun at the officer's car?
32 MR. ROUBIDEAUX: Well, firing the gun in the air would not be an assault at all.
33 The district court sustained the government's objection and did not give the lesser included offense instruction. This ruling was correct. "A trial court need not give a lesser included offense instruction when there is no basis upon which the jury could rationally find the defendant innocent of the more serious count, but guilty of the lesser count." United States v. One Star, 979 F.2d 1319, 1321 (8th Cir.1992).
34 On appeal, defendants make an entirely different argument--that the lesser included offense instruction should have been given because all the occupants of the car had been drinking and intoxication is a defense to assault with a dangerous weapon, but not to simple assault. This issue was not properly preserved. Rule 30 of the Federal Rules of Criminal Procedure requires a timely objection to a jury instruction "stating distinctly the matter to which that party objects and the grounds of the objection." We have repeatedly held that an objection "must call attention to the specific fact situation that would require giving the lesser included offense instruction." United States v. Young, 875 F.2d 1357, 1360 (8th Cir.1989). Because defendants failed to give the district court an opportunity to rule on this theory, we may only consider it under the plain error standard.
35 Voluntary intoxication is a defense to a crime requiring proof of specific intent, but not to a crime requiring only proof of general intent. See United States v. Norquay, 987 F.2d 475, 480 (8th Cir.1993); United States v. McMillan, 820 F.2d 251, 258 (8th Cir.), cert. denied, 484 U.S. 898, 108 S.Ct. 234, 98 L.Ed.2d 193 (1987); United States v. Johnston, 543 F.2d 55, 57 (8th Cir.1976). In United States v. Fay, 668 F.2d 375, 377-78 (8th Cir.1981), we held that, if the facts so warrant, a voluntary intoxication defense instruction must be given on a charge of assault with a dangerous weapon.4 In Fay, the government had also charged the lesser included offenses of assault resulting in serious bodily injury, and assault by striking, beating, or wounding. We noted that voluntary intoxication was not a defense to those charges, but we did not consider, and defendants have cited no other case considering, whether evidence of voluntary intoxication requires instructing on lesser included assault offenses when the government has charged only assault with a dangerous weapon under Sec. 113(c).
36 On the facts of this case, the issue is even more complex. Defendants were charged and convicted of violating Sec. 111, assault on a federal officer, as well as Sec. 113(c), assault with a dangerous weapon. Section 111 includes an enhanced penalty if the person assaulting a federal officer "uses a deadly or dangerous weapon." Sec. 111(b) (emphasis added). This is not the language of a specific intent statute. Compare Sec. 113(c), which prohibits "Assault with a dangerous weapon, with intent to do bodily harm " (emphasis added). See Feola, 420 U.S. at 684, 95 S.Ct. at 1264 ("All [Sec. 111] requires is an intent to assault, not an intent to assault a federal officer"). Reflecting the confusion that permeates this subject, we have conflicting prior decisions as to whether specific intent is an element of a Sec. 111 violation. Compare United States v. Manelli, 667 F.2d 695, 696 (8th Cir.1981), with Hanson, 618 F.2d at 1265. But no case has held, and defendants do not urge, that intoxication is a defense to a Sec. 111 charge, with or without the Sec. 111(b) penalty enhancement. Thus, even if defendants were entitled to an intoxication-based lesser included offense instruction under Sec. 113(c), they admit they were not entitled to that instruction under Sec. 111.
37 After lengthy argument by counsel at the instruction conference, the district court correctly decided that the nature of the alleged assaults did not justify a lesser included offense instruction. The court then properly instructed the jury that voluntary intoxication can be a defense to the Sec. 113(c) charge of assault with a dangerous weapon. In these circumstances, assuming without deciding that defendants were entitled to an instruction that voluntary intoxication can also justify conviction for the lesser offense of simple assault under Sec. 113(e), the court's failure to give that instruction was not plain error.
38 B. Self Defense. Defendants next argue that the district court erred in refusing their request for a self defense instruction. Delano Oakie and Shane Oakie testified that they were frightened during the car chase and did not know that a police car was pursuing them. Delano also testified that he thought he was being pursued by a man who had threatened to harm him. However, even if the jury credited this testimony, there was no evidence that either defendant reasonably believed that shooting a rifle at the pursuing vehicle was reasonably necessary to protect himself. Kirk Oakie did not testify. Delano Oakie's defense was that he did not commit an assault--he denied firing the rifle at Officer Shooter and denied knowing that any of his companions were doing so. As there was no evidence that Officer Shooter took any aggressive action other than to give chase in a well-marked police car, we agree with the district court that the evidence did not support a self defense instruction. See United States v. Goodface, 835 F.2d 1233, 1235 (8th Cir.1987).
39 VI. Sentencing Issues.
40 Delano Oakie appeals the assessment of a two-level enhancement for obstruction of justice. See U.S.S.G. Sec. 3C1.1. He argues that the record does not support the district court's finding that he committed perjury at trial and that the enhancement undermines his right to testify in his own defense. In United States v. Dunnigan, --- U.S. ----, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993), the Supreme Court held that a Sec. 3C1.1 enhancement does not infringe the defendant's right to testify so long as the sentencing judge reviews the trial evidence and makes an independent finding that defendant committed perjury at trial. The government has the burden to prove facts sufficient to support this enhancement. See United States v. Ransom, 990 F.2d 1011, 1013 (8th Cir.1993).
41 In its sentencing memorandum, the district court reviewed the contradictions between Delano's testimony and that of other witnesses:
42 Wallace Rooks' testimony contradicts the defendant's testimony in several spots regarding important issues. The defendant claimed at trial he did not know the gun was in his car, yet Rooks claims the defendant carried the gun out of a house to the car. The defendant claims he did not know the car at LaMarr's house was a tribal police car, yet Rooks states that they all saw the car and recognized it as a tribal police car. Also, the defendant claimed no talking occurred in the car during the chase, whereas Rooks testified that there was substantial excitement and conversation during this time. The record also contains contradictions between Shane's testimony and that of the defendant[ ] regarding whether the defendant ever shot the gun on the night in question.
43 The testimony of other witnesses supports the probation officer's finding that the defendant perjured himself at trial, and, thus, obstructed justice.
44 Because the sentencing judge also heard the trial testimony in question, these findings are sufficiently specific to support an obstruction of justice enhancement. See United States v. Benson, 961 F.2d 707 (8th Cir.1992). The district court's ultimate perjury determination was not clear error.
45 We have carefully considered Delano Oakie's other sentencing contentions and conclude they are without merit.
46 The judgments of the district court are affirmed.
1 The HONORABLE DONALD J. PORTER, Senior United States District Judge for the District of South Dakota
2 In United States v. Schrader, 10 F.3d 1345 at 1350-51 (8th Cir.1993), we held that a tribal officer may be protected by Sec. 111 even when enforcing tribal laws, provided BIA has designated the officer to perform under a 25 U.S.C. Sec. 2804(a) contract between BIA and the tribe. As there is no evidence of a Sec. 2804(a) contract in this case, the government was required to prove that Officer Shooter was enforcing federal law as a Deputy Special Officer when he was assaulted by defendants
3 The Eighth Circuit Manual of Model Criminal Jury Instructions Sec. 6.18.111, n. 1, recites: "Whether a person is a federal officer is a question of law for the court." To the extent this statement is inconsistent with Hanson, it is disapproved
4 Well aware of our decision in Fay, the district court in this case charged the jury that intoxication was a defense to the specific intent element of assault with a dangerous weapon with intent to do bodily harm, as defendants had requested | 04-16-2012 | [
"12 F.3d 1436 UNITED STATES of America, Plaintiff-Appellee,v.Delano Romanus OAKIE, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Kirk Morin OAKIE, Defendant-Appellant. Nos. 92-3268, 92-3622. United States Court of Appeals,Eighth Circuit. Submitted May 11, 1993.Decided Dec. 17, 1993.Rehearing and Suggestion for RehearingEn Banc Denied Jan. 27, 1994in No. 92-3622 andJan. 28, 1994 in No. 92-3268. Jerry L. Wattier, Pierre, SD, argued, for Delano Oakie. Jamie L. Post, Pierre, SD, argued, for Kirk Oakie. David L. Zuercher, U.S. Atty., Pierre, SD, argued, for plaintiff-appellee. Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges. LOKEN, Circuit Judge. 1 Delano Romanus Oakie and Kirk Morin Oakie, residents of the Cheyenne River Indian Reservation in South Dakota, appeal their convictions for assault with a dangerous weapon in violation of 18 U.S.C. Secs.",
"1153 and 113(c), use of a firearm during a crime of violence in violation of 18 U.S.C. Sec. 924(c), and assaulting a federal officer with a dangerous weapon in violation of 18 U.S.C. Sec. 111. Delano Oakie also appeals his sentence and his additional conviction for being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1). Defendants argue numerous issues on appeal. We affirm. 2 I. Sufficiency of the Evidence. 3 As defendants challenge the district court's1 ruling that the evidence was sufficient to convict, we review that evidence in the light most favorable to the government. See United States v. LaChapelle, 969 F.2d 632, 633 n. 1 (8th Cir.1992). On the evening of October 18, 1991, Tribal Officer Leslie Shooter came to the home of LaMarr Avery, Delano Oakie's next door neighbor, looking for a suspect in an alcohol-related disturbance earlier that evening.",
"At that time, Delano Oakie was driving Avery's borrowed car with Kirk Oakie, their friend Wallace Rooks, and Delano's nephew, Shane Oakie, as passengers. All had been drinking heavily. The group was about to pull into the Oakie/Avery common driveway when Delano saw Officer Shooter's tribal police car parked at the Avery residence. Delano turned the Avery car around and sped away, telling his passengers he wished to avoid tribal warrants for his arrest. 4 Thinking his suspect might be in Avery's fleeing vehicle, Officer Shooter gave chase, turning on his car's red flashing overhead lights as he left the driveway. When the Avery car did not stop, Officer Shooter turned on his siren and shined his car's spotlight on the fleeing vehicle. Delano accelerated, leading Officer Shooter over a rough dirt trail and pastures and crashing through several barbed wire fences. 5 As the chase continued, Delano asked Wallace Rooks to locate a rifle that Delano had retrieved from Avery's house and placed in the rear of Avery's car earlier that evening.",
"Rooks grabbed the rifle and knocked out the car's rear window. Kirk Oakie found bullets under the seat, handed one to Rooks, and told Rooks to \"hurry up and shoot that fucker.\" Rooks fired five or six shots at Officer Shooter's car through the rear window opening, with Kirk handing Rooks the bullets one at a time. One bullet struck the police car's windshield; glass fragments shattered Officer Shooter's glasses, sprayed into his eyes, and cut his cheek and eyebrow. Officer Shooter stopped his car, laid down on the front seat, and informed the police dispatcher that he had been shot and needed assistance.",
"6 Fearing serious injury, Officer Shooter resumed driving to find help. He caught up with the Avery vehicle parked on the road. Delano Oakie, standing outside that car, aimed the rifle at Officer Shooter's car and fired at least once. Seeing the muzzle flash, Officer Shooter stopped his car and laid down in the front seat until the Avery vehicle drove away. Defendants eventually abandoned the car at a gravel pit and walked to Wallace Rooks's home, where they spent the night. Delano Oakie asked Rooks to hide the rifle. Rooks placed it under his sister's mattress. 7 Defendants argue that this evidence was insufficient, primarily because Rooks did most of the shooting. We disagree. Applying our familiar sufficiency of the evidence standard, see United States v. Schmidt, 922 F.2d 1365, 1368 (8th Cir.1991), we conclude that there was more than enough evidence to convict each defendant of assault with a dangerous weapon with intent to do bodily harm and of using a firearm during a crime of violence (or of aiding and abetting Rooks to commit those crimes), and to convict Delano Oakie of being a felon in possession of the rifle used in the assaults. 8 II.",
"The Federal Officer Issue. 9 The evidence was also sufficient to convict defendants of assaulting a federal officer in violation of 18 U.S.C. Sec. 111. Defendants argue that the government failed to prove that Shooter, a tribal officer, was a federal officer within the purview of Sec. 111 at the time of the assaults. Section 111 makes it a federal crime to assault anyone designated in 18 U.S.C. Sec. 1114, which includes \"any officer or employee of the ... Department of the Interior ... assigned to perform investigative, inspection, or law enforcement functions.\" Officer Shooter testified that, at the time in question, he was employed by the Cheyenne River Sioux Tribe and was also a \"Deputy Special Officer\" of the Interior Department's Bureau of Indian Affairs (\"BIA\").",
"Dwain Holland, BIA's Area Special Officer for law enforcement, testified that BIA Deputy Special Officers are authorized to investigate any violation of federal law in Indian country, such as firearms violations, liquor violations, and assaults. 10 Whether a BIA Deputy Special Officer is an officer or employee of the Department of Interior for purposes of Sec. 111 is an issue of law for the court. Compare United States v. Lopez, 586 F.2d 978 (2d Cir.1978), cert. denied, 440 U.S. 923, 99 S.Ct. 1251, 59 L.Ed.2d 476 (1979); United States v. Reid, 517 F.2d 953, 958-60 (2d Cir.1975). The statute cannot be limited to BIA employees because that would make the reference in Sec. 1114 to \"any officer or employee\" surplusage. Section 111 was intended \"to protect both federal officers and federal functions.\"",
"United States v. Feola, 420 U.S. 671, 679, 95 S.Ct. 1255, 1261, 43 L.Ed.2d 541 (1975) (emphasis in original). Thus, both the language and the purpose of the statute compel the conclusion that a tribal law enforcement officer who has been designated a BIA Deputy Special Officer is entitled to the protections of Sec. 111 when performing the federal functions he or she has been deputized to perform.2 See United States v. Chunn, 347 F.2d 717, 721 (4th Cir.1965) (undercover state agent on loan to the Internal Revenue Service and assisting federal agents is a federal officer for purposes of Sec. 111); see also United States v. Torres, 862 F.2d 1025, 1029-30 (3d Cir.1988), and cases cited. 11 Whether Officer Shooter was in fact a BIA Deputy Special Officer, and whether he was performing federal \"investigative, inspection, or law enforcement functions\" at the time of the assaults, were fact questions for the jury. See United States v. Hanson, 618 F.2d 1261, 1264 (8th Cir. ), cert. denied, 449 U.S. 854, 101 S.Ct.",
"148, 66 L.Ed.2d 67 (1980).3 The district court properly instructed the jury on these issues, defendants did not object to the instruction, and the evidence was sufficient to support the jury's finding that Officer Shooter was engaged in his duties as a BIA Deputy Special Officer at the time of the assaults. Accordingly, defendants' motions for judgment of acquittal were properly denied. 12 III. Section 924(c) Issues. 13 Count II of the indictment charged that defendants \"during and in relation to [an] Assault with a Dangerous Weapon ... did use and carry a firearm in violation of 18 United States Code Section 924(c).\" Defendants argue that Count II failed to charge a crime since it did not allege that the defendants acted \"knowingly.\" We approved a Sec.",
"924(c) indictment that did not expressly allege that the defendant acted knowingly in United States v. Mills, 835 F.2d 1262, 1263 (8th Cir.1987). Like the indictment in United States v. Gutierrez, 978 F.2d 1463, 1466-67 (7th Cir.1992), the indictment in this case closely tracked the language of the statute and therefore fairly imported the scienter requirement of Sec. 924(c). The case upon which defendants rely, United States v. Hawkins, 741 F.Supp. 1234 (N.D.W.Va.1990), has been explicitly rejected by its own circuit. See United States v. Sutton, 961 F.2d 476, 479 n. 2 (4th Cir. ), cert. denied, --- U.S. ----, 113 S.Ct. 171, 121 L.Ed.2d 118 (1992).",
"14 Defendants further argue that they were placed in double jeopardy when they were tried for assault with a dangerous weapon, and for use of a firearm during that assault in violation of Sec. 924(c). We rejected this contention in United States v. Mills, 835 F.2d 1262, 1264 (8th Cir.1987), because \"Congress has specifically authorized cumulative punishment under two statutes.\" The Sentencing Guidelines did not alter this legislative authority. See United States v. Halford, 948 F.2d 1054, 1056-57 (8th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1700, 118 L.Ed.2d 410 (1992). 15 IV.",
"Alleged Errors at Trial. 16 A. Severance. Delano Oakie argues that the district court abused its discretion in denying his motion for severance. The motion was made on the fourth day of trial, when Delano learned that Kirk Oakie would not testify. Because defendants who are jointly indicted on similar evidence from the same or related events should normally be tried together, to warrant severance a defendant must show \"real prejudice,\" that is, \"something more than the mere fact that he would have had a better chance for acquittal had he been tried separately.\" United States v. Adkins, 842 F.2d 210, 211-12 (8th Cir.1988). 17 Delano Oakie first argues that severance was appropriate because Kirk Oakie would have testified in Delano's favor at a separate trial. Counsel for Kirk Oakie advised the court that Kirk would testify that Delano did not fetch the rifle from LaMarr Avery's house, that Kirk did not remember seeing Delano shoot the rifle at the end of the car chase, that neither Kirk nor Delano told Wallace Rooks to fire at Officer Shooter, and that the group was not laughing and joking during the chase.",
"The government opposed severance, noting that Kirk Oakie's contradictory pretrial statement to the FBI had implicated Delano in the shooting. To warrant severance on this ground, a defendant must show that the co-defendant's testimony would be \"substantially exculpatory\"--that it \"would do more than merely tend to contradict a few details of the government's case.\" United States v. DeLuna, 763 F.2d 897, 920 (8th Cir.) (internal quotation omitted), cert. denied, 474 U.S. 980, 106 S.Ct. 382, 88 L.Ed.2d 336 (1985). In light of the other trial evidence and the impeachment evidence available to the government, we agree with the district court that the proffered testimony of Kirk Oakie did not meet this standard.",
"18 Delano next contends that he was entitled to a severance because he and Kirk presented antagonistic defenses: Kirk Oakie's cross examination of Wallace Rooks characterized Kirk and Shane Oakie as \"prisoners in that car,\" whereas Delano's defense was that he believed he was being chased by an enemy, rather than the police, and did not know his passengers were shooting at the pursuing vehicle. To warrant severance on this ground, the co-defendants' defenses must be more than inconsistent, they must be \"actually irreconcilable.\"",
"United States v. Mason, 982 F.2d 325, 328 (8th Cir.1993). Kirk and Delano presented different defenses, but they were not irreconcilable or even antagonistic. 19 The district court did not abuse its discretion in denying Delano Oakie's motion to sever. 20 B. Prior Acts Evidence. Rule 404(b) of the Federal Rules of Evidence permits evidence of a defendant's \"other crimes, wrongs, or acts\" only for limited purposes and, if the defendant requests, only after reasonable notice of the general nature of any such evidence the prosecution intends to use. Delano requested such notice, and the government responded that it did not intend to introduce any Rule 404(b) evidence. During the government's case-in-chief, Wallace Rooks testified that he believed Delano drove away from the Avery residence because Delano \"had some old warrants on him.\" In addition, the government impeached Shane Oakie with his statement to the grand jury that, \"Delano said he had a warrant out for him and didn't want to get caught.\"",
"21 Delano argues that this was Rule 404(b) evidence that should have been excluded because of the government's failure to notify him of its intent to use it. We disagree. 22 Evidence which is probative of the crime charged ... is not \"other crimes\" evidence. Further, where the evidence of an act and the evidence of the crime charged are inextricably intertwined, the act is not extrinsic and Rule 404(b) is not implicated. 23 DeLuna, 763 F.2d at 913 (citations omitted). See also United States v. Bettelyoun, 892 F.2d 744, 746 (8th Cir.1989). In this case, evidence regarding why Delano turned the car around and fled explained the circumstances of the charged offense and was not Rule 404(b) evidence. Because this testimony was very brief and revealed no details concerning the outstanding warrants, it was not unduly prejudicial, and the district court did not abuse its discretion by admitting it.",
"24 V. Jury Instruction Issues. 25 A. Lesser Included Offense. At the instructions conference, consistent with defendants' requested instructions, the district court proposed to instruct the jury on simple assault as a lesser included offense to assault with a dangerous weapon with intent to do bodily harm. See 18 U.S.C. Sec. 113(c), (e). The government objected, explaining: 26 MR. ZUERCHER [the prosecutor]: The evidence for the assault with a dangerous weapon would be that the gun was fired at the police officer. If the jury finds that a gun was not fired the jury would find that there was no assault. So, if the element were missing they could not rationally find the lesser [included offense of simple assault].",
"27 Defense counsel's response to the objection focused upon the second assault: 28 MR. WATTIER: ... [T]he state of the testimony is that Wallace Rooks testified that he heard a shot, he saw Delano Oakie, a portion of him positioned facing toward the law enforcement vehicle. That the shot was fired and based on that I think the word was \"assumed,\" you know, that he was shooting at the patrol vehicle. So, there is a dispute in the facts as to whether a shot was fired or not. And with that dispute the lesser included offense of simple assault needs to be submitted to the jury for their fact determination.",
"29 * * * * * * 30 MR. ROUBIDEAUX: The specific intent that's required, here, would certainly not be present in simple assault. Simple assault would be firing the gun without an intent to hit or injure the policeman. 31 THE COURT: Well, but is it claimed they fired the gun at the officer's car? 32 MR. ROUBIDEAUX: Well, firing the gun in the air would not be an assault at all. 33 The district court sustained the government's objection and did not give the lesser included offense instruction. This ruling was correct. \"A trial court need not give a lesser included offense instruction when there is no basis upon which the jury could rationally find the defendant innocent of the more serious count, but guilty of the lesser count.\" United States v. One Star, 979 F.2d 1319, 1321 (8th Cir.1992). 34 On appeal, defendants make an entirely different argument--that the lesser included offense instruction should have been given because all the occupants of the car had been drinking and intoxication is a defense to assault with a dangerous weapon, but not to simple assault. This issue was not properly preserved.",
"Rule 30 of the Federal Rules of Criminal Procedure requires a timely objection to a jury instruction \"stating distinctly the matter to which that party objects and the grounds of the objection.\" We have repeatedly held that an objection \"must call attention to the specific fact situation that would require giving the lesser included offense instruction.\" United States v. Young, 875 F.2d 1357, 1360 (8th Cir.1989). Because defendants failed to give the district court an opportunity to rule on this theory, we may only consider it under the plain error standard. 35 Voluntary intoxication is a defense to a crime requiring proof of specific intent, but not to a crime requiring only proof of general intent. See United States v. Norquay, 987 F.2d 475, 480 (8th Cir.1993); United States v. McMillan, 820 F.2d 251, 258 (8th Cir. ), cert.",
"denied, 484 U.S. 898, 108 S.Ct. 234, 98 L.Ed.2d 193 (1987); United States v. Johnston, 543 F.2d 55, 57 (8th Cir.1976). In United States v. Fay, 668 F.2d 375, 377-78 (8th Cir.1981), we held that, if the facts so warrant, a voluntary intoxication defense instruction must be given on a charge of assault with a dangerous weapon.4 In Fay, the government had also charged the lesser included offenses of assault resulting in serious bodily injury, and assault by striking, beating, or wounding.",
"We noted that voluntary intoxication was not a defense to those charges, but we did not consider, and defendants have cited no other case considering, whether evidence of voluntary intoxication requires instructing on lesser included assault offenses when the government has charged only assault with a dangerous weapon under Sec. 113(c). 36 On the facts of this case, the issue is even more complex. Defendants were charged and convicted of violating Sec. 111, assault on a federal officer, as well as Sec. 113(c), assault with a dangerous weapon. Section 111 includes an enhanced penalty if the person assaulting a federal officer \"uses a deadly or dangerous weapon.\" Sec. 111(b) (emphasis added). This is not the language of a specific intent statute.",
"Compare Sec. 113(c), which prohibits \"Assault with a dangerous weapon, with intent to do bodily harm \" (emphasis added). See Feola, 420 U.S. at 684, 95 S.Ct. at 1264 (\"All [Sec. 111] requires is an intent to assault, not an intent to assault a federal officer\"). Reflecting the confusion that permeates this subject, we have conflicting prior decisions as to whether specific intent is an element of a Sec. 111 violation. Compare United States v. Manelli, 667 F.2d 695, 696 (8th Cir.1981), with Hanson, 618 F.2d at 1265.",
"But no case has held, and defendants do not urge, that intoxication is a defense to a Sec. 111 charge, with or without the Sec. 111(b) penalty enhancement. Thus, even if defendants were entitled to an intoxication-based lesser included offense instruction under Sec. 113(c), they admit they were not entitled to that instruction under Sec. 111. 37 After lengthy argument by counsel at the instruction conference, the district court correctly decided that the nature of the alleged assaults did not justify a lesser included offense instruction. The court then properly instructed the jury that voluntary intoxication can be a defense to the Sec. 113(c) charge of assault with a dangerous weapon. In these circumstances, assuming without deciding that defendants were entitled to an instruction that voluntary intoxication can also justify conviction for the lesser offense of simple assault under Sec. 113(e), the court's failure to give that instruction was not plain error. 38 B. Self Defense. Defendants next argue that the district court erred in refusing their request for a self defense instruction. Delano Oakie and Shane Oakie testified that they were frightened during the car chase and did not know that a police car was pursuing them.",
"Delano also testified that he thought he was being pursued by a man who had threatened to harm him. However, even if the jury credited this testimony, there was no evidence that either defendant reasonably believed that shooting a rifle at the pursuing vehicle was reasonably necessary to protect himself. Kirk Oakie did not testify. Delano Oakie's defense was that he did not commit an assault--he denied firing the rifle at Officer Shooter and denied knowing that any of his companions were doing so. As there was no evidence that Officer Shooter took any aggressive action other than to give chase in a well-marked police car, we agree with the district court that the evidence did not support a self defense instruction. See United States v. Goodface, 835 F.2d 1233, 1235 (8th Cir.1987). 39 VI. Sentencing Issues. 40 Delano Oakie appeals the assessment of a two-level enhancement for obstruction of justice.",
"See U.S.S.G. Sec. 3C1.1. He argues that the record does not support the district court's finding that he committed perjury at trial and that the enhancement undermines his right to testify in his own defense. In United States v. Dunnigan, --- U.S. ----, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993), the Supreme Court held that a Sec. 3C1.1 enhancement does not infringe the defendant's right to testify so long as the sentencing judge reviews the trial evidence and makes an independent finding that defendant committed perjury at trial. The government has the burden to prove facts sufficient to support this enhancement. See United States v. Ransom, 990 F.2d 1011, 1013 (8th Cir.1993).",
"41 In its sentencing memorandum, the district court reviewed the contradictions between Delano's testimony and that of other witnesses: 42 Wallace Rooks' testimony contradicts the defendant's testimony in several spots regarding important issues. The defendant claimed at trial he did not know the gun was in his car, yet Rooks claims the defendant carried the gun out of a house to the car. The defendant claims he did not know the car at LaMarr's house was a tribal police car, yet Rooks states that they all saw the car and recognized it as a tribal police car. Also, the defendant claimed no talking occurred in the car during the chase, whereas Rooks testified that there was substantial excitement and conversation during this time. The record also contains contradictions between Shane's testimony and that of the defendant[ ] regarding whether the defendant ever shot the gun on the night in question. 43 The testimony of other witnesses supports the probation officer's finding that the defendant perjured himself at trial, and, thus, obstructed justice.",
"44 Because the sentencing judge also heard the trial testimony in question, these findings are sufficiently specific to support an obstruction of justice enhancement. See United States v. Benson, 961 F.2d 707 (8th Cir.1992). The district court's ultimate perjury determination was not clear error. 45 We have carefully considered Delano Oakie's other sentencing contentions and conclude they are without merit. 46 The judgments of the district court are affirmed. 1 The HONORABLE DONALD J. PORTER, Senior United States District Judge for the District of South Dakota 2 In United States v. Schrader, 10 F.3d 1345 at 1350-51 (8th Cir.1993), we held that a tribal officer may be protected by Sec. 111 even when enforcing tribal laws, provided BIA has designated the officer to perform under a 25 U.S.C. Sec. 2804(a) contract between BIA and the tribe. As there is no evidence of a Sec. 2804(a) contract in this case, the government was required to prove that Officer Shooter was enforcing federal law as a Deputy Special Officer when he was assaulted by defendants 3 The Eighth Circuit Manual of Model Criminal Jury Instructions Sec.",
"6.18.111, n. 1, recites: \"Whether a person is a federal officer is a question of law for the court.\" To the extent this statement is inconsistent with Hanson, it is disapproved 4 Well aware of our decision in Fay, the district court in this case charged the jury that intoxication was a defense to the specific intent element of assault with a dangerous weapon with intent to do bodily harm, as defendants had requested"
]
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This is an appeal from a judgment of the Court of Common Pleas of Wyandot county. The plaintiff, Elenore M. Baily, on March 13, 1937, filed her petition in the Court of Common Pleas of Wyandot county, against Charles Weaver for damages for personal injuries alleged to have been sustained by her on December 24, 1936, through the negligence of the defendant Weaver in the operation of an automobile driven by him. The defendant Weaver permitted judgment by default, and a jury assessed plaintiff's damages at $500. Judgment was entered upon this verdict, and execution issued on the judgment was returned unsatisfied. A supplemental petition was filed in the action against the defendant Weaver and Farm Bureau Mutual Automobile Insurance Company, pursuant to the provisions of Section 9510-4, General Code. The supplemental petition, omitting caption, signature and oath thereto, is in the words and figures following, to wit: "Plaintiff says that the defendant, Farm Bureau Mutual Automobile Insurance Company, is a corporation organized and existing under and by virtue of the laws of Ohio and authorized to do business in the state of Ohio, with offices in the city of Columbus, Franklin county, Ohio. "Plaintiff further says that prior to December 24, 1936, the exact date thereof being unknown to plaintiff, the defendant, Farm Bureau Mutual Automobile Insurance Company, issued to one Charles D. Forney, route No. 3, Forest, Ohio, a certain policy of insurance, whereby said Farm Bureau Mutual Automobile Insurance Company agreed to indemnify said Charles D. Forney, and any other person operating a certain automobile of Charles D. Forney, with the consent *Page 261 express or implied of said Charles D. Forney from any liability imposed by law for loss by reason of personal injuries suffered by any person or persons through accident incurred while said policy of insurance was in force, and by reason of the ownership, maintenance or use of said automobile; that the original policy of insurance and copies thereof are in the possession and under the exclusive control of Charles D. Forney and the defendant Farm Bureau Mutual Automobile Insurance Company herein; that on December 24, 1936, all provisions and conditions of said insurance policy were in full force and effect. On or about the 31st day of January 1938, plaintiff recovered a judgment in this action against defendant Charles Weaver in the sum of five hundred dollars ($500) with interest at the rate of six per cent (6 per cent) per annum from 31st day of January 1938, and costs therein, being damages for personal injuries inflicted on plaintiff by the negligence of defendant Charles Weaver, while operating the said automobile of Charles D. Forney with the consent of said Charles D. Forney, on said December 24, 1936. "More than thirty (30) days have elapsed since the rendition of said judgment, and that the same remains wholly unsatisfied, unreversed and unmodified. "All provisions and conditions of said policy have been complied with; defendant Farm Bureau Mutual Automobile Insurance Company has refused and still refuses to pay said judgment with interest, and costs. There is due this plaintiff from the defendant, Farm Bureau Mutual Automobile Insurance Company, the sum of five hundred dollars ($500) with interest at six per cent (6 per cent) per annum from the 31st day of January 1938, with costs. "Wherefore, plaintiff prays judgment against the defendant, Farm Bureau Mutual Automobile Insurance Company, in the sum of five hundred dollars ($500) with interest at six per cent (6 per cent) per *Page 262 annum from the 31st day of January 1938, and her costs aforesaid, and for such further relief as may be proper and the court can give, and for judgment for the costs of this suit." The defendant insurance company filed an answer in which it admitted its corporate organization, existence and place of business, as pleaded in the petition; and further admitted that prior to December 24, 1936, it issued to one Charles D. Forney, route No. 3, Forest, Ohio, a certain policy of insurance whereby it agreed to indemnify Forney and any other person operating a certain automobile with the consent of Forney, from any liability imposed by law, for loss by reason of personal injuries suffered by any person or persons through an accident incurred while the policy of insurance was in force, provided that the use and operation of the automobile of Forney should come within and under the certain conditions, provisions and terms of the policy of insurance. The defendant insurance company further admitted that on or about January 31, 1938, plaintiff recovered a judgment in this action against defendant Charles Weaver in the sum of $500 with interest at the rate of six per cent per annum from that date, and costs of suit, for alleged personal injuries inflicted on plaintiff by the alleged negligence of the defendant Weaver. However the company denied that these personal injuries were inflicted upon plaintiff while Weaver was operating the automobile of Forney, with the consent of Forney, on December 24, 1936. The defendant company averred that Charles Weaver took and operated, for his own purposes, on that date, the automobile of Forney without the consent of Forney and contrary to the express refusal of consent and directions not to use the automobile, directly communicated by Forney to Weaver. The defendant insurance company also admitted that more than thirty days have elapsed since the rendition *Page 263 of the judgment, and that the same remains wholly unsatisfied, unreversed and unmodified. The other allegations in the answer, both affirmative and negative, are equivalent to a general denial of the averments of the supplemental petition which are not expressly admitted. To this answer the plaintiff filed a reply in which she denied each and every allegation contained in the answer excepting only those which are admissions of allegations contained in plaintiff's supplemental petition. No pleading was filed on behalf of defendant, Charles Weaver. The admissions and averments in the answer are such that the only controverted issue between the parties is whether the damages sustained by the plaintiff, for which she had recovered judgment against the defendant Weaver, were sustained at a time when the defendant Weaver was operating the automobile of Forney with the consent, express or implied, of Forney, within the meaning of the conditions, provisions and terms of such policy of insurance. The cause was submitted to the court and a jury, upon the pleadings mentioned. At the close of plaintiff's evidence the defendant insurance company moved for a directed verdict in its favor, which motion was granted by the court and judgment was entered in favor of defendant insurance company accordingly. It is from this judgment that the appeal is taken. On the trial of the action the plaintiff called as a witness on her behalf, Charles D. Forney, who was not a party to the action. His testimony is in substance, as follows: He resided on a farm three miles from Forest, Ohio, which he owned and where he had lived all his life. He owned an automobile on which he carried a policy of insurance with the Farm Bureau Mutual Automobile Insurance Company, upon which he had paid the *Page 264 premiums right along. He did not have the policy of insurance with him. Counsel for the parties then stipulated that a paper writing exhibited in court was a true copy of the policy, and such paper writing was then marked exhibit A and later introduced in evidence and attached to the bill of exceptions. The policy provided public liability limit for one person of $5,000 and public liability limit for one accident of $10,000 for loss arising from the ownership, operation or maintenance of the automobile described therein. The policy, among other terms, contained a further provision as follows: "The terms and conditions of this policy are so extended as to be available, in the same manner and under the same conditions as they are available to the named assured, to any person or persons while riding in or legally operating the within described automobile, and to any person, firm or corporation legally responsible for the operation thereof, provided such use or operation is with the permission of the named assured, or if named assured is an individual, with the permission of an adult member of the named assured's household other than a chauffeur or domestic servant; except that the terms and conditions of this policy shall not be available to a public automobile garage, automobile service station, and agents and employees thereof. The unqualified term assured shall include the named assured and all other persons, firms or corporations to which the benefits may be extended, under the herein terms." The policy contained a further provision that the insurance under it should begin at twelve o'clock noon, standard time, at the place of residence of the named assured on the 23rd day of February 1933. The insurance was for the initial period of one year, renewed automatically for each succeeding year provided the premiums were paid. *Page 265 On cross-examination by defendant's counsel, Forney further testified that on December 24, 1936, he had promised the automobile to Marion Forney, his nephew, and "didn't know what he said — that he didn't need it — he didn't know it, but he didn't know whether Weaver got it or not. He didn't know whether it went out of there or whether it was in the shed." According to Forney's testimony it appears that Weaver did not ask for the use of the automobile that day or night; that Weaver had never taken the automobile before without asking for it but did not ask for it on this occasion; that Weaver had been working that day and had been drinking; that Weaver had always asked for the use of the car before that; that he, Charles Forney, had promised Marion Forney the use of the automobile that night; that he had not seen Marion Forney and Marion had not informed him he was not going to use the automobile that night; that he paid Weaver for working for him; and that he did not give Weaver permission to use the automobile on December 24, 1936. Being recalled for further cross-examination by the defendant, Charles D. Forney testified further that he told Charles Weaver on the 24th of December 1936 that he had promised the car to Marion Forney, his nephew, the reason being that Weaver had asked for the use of the automobile that night and he knew Weaver was in no condition to use it. Forney testified further that he told Weaver he could not have the automobile and told Marion that he, Marion, could have it. On further redirect examination by plaintiff, Forney further testified that he thought he testified in the morning that Charles Weaver didn't ask him for the car that day. In answer to the question, "You told him that, didn't you?" he replied, "Well, I don't know whether I did or not. Let's see. I know he asked for it — he wanted to know and I told him he couldn't have *Page 266 it. He wasn't in shape for it." Further, in answer to the question "Didn't you tell on the stand this morning Mr. Weaver hadn't asked for the car?" he replied, "I don't remember whether I did or not and I don't know whether that is true or not." Plaintiff also called defendant, Charles Weaver, for cross-examination as a witness on her behalf. The material part of his testimony is as follows: He is working for Mr. Forney and lives with him and was living with him and working for him on the 24th of December 1936. He is the Charles Weaver who was sued in this case. He was over twenty-one years of age on the 24th day of December 1936, and was involved in an automobile accident on that date. He had been working for Mr. Forney for about two years at that time and his duties were to take care of the chores and do anything around the farm that was required to be done, husking corn and so on. Mr. Forney was quite badly crippled and Weaver drove his car for him. Forney had the car when Weaver first came to work for him. Weaver had been driving the car during those two years and when he would ask Forney for the car Forney would let him have the car or Forney would send him on errands with it. The accident happened about nine o'clock in the evening. He had asked Forney for the car on the day of the accident and Forney told him one of his relatives wanted to use it. In answer to the question "Is it not a fact that he didn't need the car although he first told he was going to use it?" Weaver replied, "I went to see him to see if he was going to use it. I thought if he would take me to town he could have the car, and he didn't say so I took the car and went on." Weaver did not go back and tell Forney he was going to use it. Weaver was alone in the car. Mr. Forney didn't drive at that time but has driven since. Forney told him that he couldn't have the car because someone else wanted to use it. Weaver told other people right after *Page 267 the accident that he had permission to use Forney's car, and after the accident made a written statement concerning the same, in which he said he had permission to use the car. The written statement made by Weaver was true except that part in which he said he had permission to use the car, which was false. A copy of this written statement was identified by Weaver, marked plaintiff's exhibit A and later introduced in evidence. Weaver signed the written statement mentioned. The only untrue statement contained in the written statement is that Forney had given Weaver permission to drive the car. Weaver has driven Forney's car since the accident. His driver's license was not revoked and he has one now. Weaver drives a car when Forney sends him on errands but if Weaver wants to use the car himself he asks Forney for it. Forney sometimes gives Weaver permission to use the car and sometimes refuses permission. Forney did not know that Weaver had the car the night of the accident. Forney had told Weaver he could not have the car, as his nephew had spoken for it. Weaver had been drinking the day of the accident and drank a little whiskey at home. Forney noticed Weaver had been drinking. Weaver wanted to go over to Kirby and celebrate. He was not sent there by Forney. Weaver had some beer at Kirby. He had six bottles in the car when the accident happened. Weaver has not at any time prior to or since December 24, 1936, used the car for his own purposes without asking Forney. After the accident Weaver was arrested for driving while intoxicated. He entered a plea of guilty and was fined $100 and costs. He was in the county jail when he signed the statement concerning his permission to use the car. Weaver was not drunk when he went to Kirby but was feeling pretty good, and had some beer over at Kirby. Before he started, he had two drinks; they were pretty good ones. Plaintiff also called as a witness on her behalf, a Mr. *Page 268 Frank Heid. He testified generally to the effect that he had interviewed Weaver following the accident and Weaver had made an oral statement to him to the effect that he had Forney's permission to use Forney's car at the time of the accident, and had also made a written statement, being the statement above referred to, in which he stated: "I told Mr. Forney that I was going and he said it was okeh." An examination of the written statement discloses that it does not vary materially from the testimony given by Weaver on the trial of the case with reference to the subject-matter, except in the particulars mentioned. The evidence above mentioned constitutes all the evidence introduced by plaintiff, and at the close of this evidence, on motion made by the defendant insurance company, as before mentioned, a verdict was directed in its favor. In determining whether the court erred in directing a verdict in favor of the defendant insurance company, it is essential to keep in mind that under the pleadings the only controverted issue between the parties was whether the damages sustained by the plaintiff for which she had recovered judgment against the defendant Weaver, were sustained at a time when the defendant Weaver was operating the automobile of Forney with the consent, express or implied, of Forney, thereby coming within and under the certain conditions, provisions and terms of the policy of insurance. It is a fundamental rule that a plaintiff's right of recovery is measured and limited by the allegations of his petition, so that in the instant case, in order for the plaintiff to recover on her supplemental petition against the defendant insurance company, the burden was on her to prove that the judgment obtained by her against the defendant Weaver was for damages for personal injuries inflicted on plaintiff by the negligence of the defendant Weaver while operating the *Page 269 automobile of Charles D. Forney with the consent, express or implied, of Charles D. Forney. By so limiting her allegations as to the liability of the defendant insurance company the plaintiff could not, under her supplemental petition, avail herself of any other or further provisions of the insurance policy issued by the defendant insurance company to Forney imposing other or further liability on the defendant insurance company. In this situation the trial court in its consideration of the motion to direct a verdict was limited to a consideration of the terms of the policy relating to the use or operation of the car with the permission of the named assured (Forney), and could not consider the further provisions of the policy imposing liability in case the car was being operated with the permission of an adult member of the named assured's household, or the use or operation of the car under any other factual situation coming within the terms of the policy, except as hereinbefore mentioned. The evidence introduced by the plaintiff tends to prove that the policy of insurance was in full force and effect at the time plaintiff sustained her injuries, so our inquiry will be directed to the question as to whether there is evidence tending to prove the operation of the automobile owned by Forney, by the defendant Weaver at the time the plaintiff sustained her injuries, was with the consent, express or implied, of Forney. As will be noted from the statement of the evidence introduced by the plaintiff, there is no evidence tending to prove any implied consent on the part of Forney to the use of his automobile by Weaver at the time the plaintiff sustained her injuries, and the testimony of both Forney and Weaver is to the effect that Forney had not consented or granted permission to Weaver for the use and operation of the automobile by Weaver preceding the time the plaintiff sustained her injuries. *Page 270 The written statement of the details of the accident made by Weaver, and the testimony of Mr. Heid, were admissible only for the purpose of impeaching the testimony of Weaver and can be considered only for this purpose, and have no tendency to prove that Weaver was using and operating the automobile with the consent of Forney. There is a presumption that an automobile, being operated by one not the owner, is in use for the benefit and on account of the owner, but such presumption remains only so long as there is no substantial evidence to the contrary. When such evidence is offered, the presumption disappears, and in the absence of further proof there is nothing to justify a finding in accordance with the presumption. Powers v. Wilson, 203 A.D. 232,196 N.Y. Supp., 600. Generally, the credibility of a witness who is a party to the action and therefore interested in the result, is for the jury, but this rule is not, however, a rule of universal application. It is subject to the exception that where a party calls a witness he presents him to the jury as worthy of belief and as one whose testimony is to be relied on so far as it is not contradicted.Powers v. Wilson, supra, at 235. This exception to the general rule has been applied in cases where the owner or driver of an automobile, or both, have been called as witnesses for the plaintiff, who thus vouches for the credibility of their testimony, and have testified that the automobile was not at the time being used in the business or with the consent of the owner, in which cases the court has held as a matter of law that their testimony was "substantial evidence" that the automobile was not at the time being used in the business or with the consent of the owner. In such cases the presumption of liability on the part of the owner is overcome.Maher v. Benedict, 123 A.D. 579, 108 N.Y. Supp., 228. Applying these rules to the evidence in the case at *Page 271 bar, the testimony of the owner of the car, Forney, who was not a party to the case but was not a disinterested witness, and who was called as a witness by the plaintiff who thereby vouched for the credibility of his testimony, was "substantial evidence" that the car was not at the time being used with Forney's consent, overcoming the presumption of liability on the part of the owner. The testimony of the defendant Weaver, who was called for cross-examination, was to the same effect. The fact that evidence was offered tending to impeach this testimony presented only the question of the credibility of Weaver's testimony and, as above stated, had no tendency to prove the fact of consent which plaintiff had the burden of proving. As hereinbefore mentioned, the evidence introduced by the plaintiff had no tendency to prove either express or implied consent on the part of Forney, and the presumption, that the automobile was in use for the benefit and on account of the owner when plaintiff's injuries were sustained, was overcome by substantial evidence to the contrary of the owner Forney. This presumption being overcome, there was neither evidence nor presumption upon which to base a finding that Weaver was using and operating an automobile with the consent, express or implied, of Forney, which was essential to a recovery by the plaintiff. The court therefore did not err in directing a verdict in favor of the defendant insurance company. For the reasons mentioned, the judgment will be affirmed at costs of appellant. Judgment affirmed. CROW, P.J., and KLINGER, J., concur. *Page 272 | 07-06-2016 | [
"This is an appeal from a judgment of the Court of Common Pleas of Wyandot county. The plaintiff, Elenore M. Baily, on March 13, 1937, filed her petition in the Court of Common Pleas of Wyandot county, against Charles Weaver for damages for personal injuries alleged to have been sustained by her on December 24, 1936, through the negligence of the defendant Weaver in the operation of an automobile driven by him. The defendant Weaver permitted judgment by default, and a jury assessed plaintiff's damages at $500. Judgment was entered upon this verdict, and execution issued on the judgment was returned unsatisfied. A supplemental petition was filed in the action against the defendant Weaver and Farm Bureau Mutual Automobile Insurance Company, pursuant to the provisions of Section 9510-4, General Code. The supplemental petition, omitting caption, signature and oath thereto, is in the words and figures following, to wit: \"Plaintiff says that the defendant, Farm Bureau Mutual Automobile Insurance Company, is a corporation organized and existing under and by virtue of the laws of Ohio and authorized to do business in the state of Ohio, with offices in the city of Columbus, Franklin county, Ohio.",
"\"Plaintiff further says that prior to December 24, 1936, the exact date thereof being unknown to plaintiff, the defendant, Farm Bureau Mutual Automobile Insurance Company, issued to one Charles D. Forney, route No. 3, Forest, Ohio, a certain policy of insurance, whereby said Farm Bureau Mutual Automobile Insurance Company agreed to indemnify said Charles D. Forney, and any other person operating a certain automobile of Charles D. Forney, with the consent *Page 261 express or implied of said Charles D. Forney from any liability imposed by law for loss by reason of personal injuries suffered by any person or persons through accident incurred while said policy of insurance was in force, and by reason of the ownership, maintenance or use of said automobile; that the original policy of insurance and copies thereof are in the possession and under the exclusive control of Charles D. Forney and the defendant Farm Bureau Mutual Automobile Insurance Company herein; that on December 24, 1936, all provisions and conditions of said insurance policy were in full force and effect.",
"On or about the 31st day of January 1938, plaintiff recovered a judgment in this action against defendant Charles Weaver in the sum of five hundred dollars ($500) with interest at the rate of six per cent (6 per cent) per annum from 31st day of January 1938, and costs therein, being damages for personal injuries inflicted on plaintiff by the negligence of defendant Charles Weaver, while operating the said automobile of Charles D. Forney with the consent of said Charles D. Forney, on said December 24, 1936. \"More than thirty (30) days have elapsed since the rendition of said judgment, and that the same remains wholly unsatisfied, unreversed and unmodified. \"All provisions and conditions of said policy have been complied with; defendant Farm Bureau Mutual Automobile Insurance Company has refused and still refuses to pay said judgment with interest, and costs.",
"There is due this plaintiff from the defendant, Farm Bureau Mutual Automobile Insurance Company, the sum of five hundred dollars ($500) with interest at six per cent (6 per cent) per annum from the 31st day of January 1938, with costs. \"Wherefore, plaintiff prays judgment against the defendant, Farm Bureau Mutual Automobile Insurance Company, in the sum of five hundred dollars ($500) with interest at six per cent (6 per cent) per *Page 262 annum from the 31st day of January 1938, and her costs aforesaid, and for such further relief as may be proper and the court can give, and for judgment for the costs of this suit.\" The defendant insurance company filed an answer in which it admitted its corporate organization, existence and place of business, as pleaded in the petition; and further admitted that prior to December 24, 1936, it issued to one Charles D. Forney, route No.",
"3, Forest, Ohio, a certain policy of insurance whereby it agreed to indemnify Forney and any other person operating a certain automobile with the consent of Forney, from any liability imposed by law, for loss by reason of personal injuries suffered by any person or persons through an accident incurred while the policy of insurance was in force, provided that the use and operation of the automobile of Forney should come within and under the certain conditions, provisions and terms of the policy of insurance. The defendant insurance company further admitted that on or about January 31, 1938, plaintiff recovered a judgment in this action against defendant Charles Weaver in the sum of $500 with interest at the rate of six per cent per annum from that date, and costs of suit, for alleged personal injuries inflicted on plaintiff by the alleged negligence of the defendant Weaver. However the company denied that these personal injuries were inflicted upon plaintiff while Weaver was operating the automobile of Forney, with the consent of Forney, on December 24, 1936.",
"The defendant company averred that Charles Weaver took and operated, for his own purposes, on that date, the automobile of Forney without the consent of Forney and contrary to the express refusal of consent and directions not to use the automobile, directly communicated by Forney to Weaver. The defendant insurance company also admitted that more than thirty days have elapsed since the rendition *Page 263 of the judgment, and that the same remains wholly unsatisfied, unreversed and unmodified. The other allegations in the answer, both affirmative and negative, are equivalent to a general denial of the averments of the supplemental petition which are not expressly admitted. To this answer the plaintiff filed a reply in which she denied each and every allegation contained in the answer excepting only those which are admissions of allegations contained in plaintiff's supplemental petition. No pleading was filed on behalf of defendant, Charles Weaver. The admissions and averments in the answer are such that the only controverted issue between the parties is whether the damages sustained by the plaintiff, for which she had recovered judgment against the defendant Weaver, were sustained at a time when the defendant Weaver was operating the automobile of Forney with the consent, express or implied, of Forney, within the meaning of the conditions, provisions and terms of such policy of insurance.",
"The cause was submitted to the court and a jury, upon the pleadings mentioned. At the close of plaintiff's evidence the defendant insurance company moved for a directed verdict in its favor, which motion was granted by the court and judgment was entered in favor of defendant insurance company accordingly. It is from this judgment that the appeal is taken. On the trial of the action the plaintiff called as a witness on her behalf, Charles D. Forney, who was not a party to the action. His testimony is in substance, as follows: He resided on a farm three miles from Forest, Ohio, which he owned and where he had lived all his life. He owned an automobile on which he carried a policy of insurance with the Farm Bureau Mutual Automobile Insurance Company, upon which he had paid the *Page 264 premiums right along.",
"He did not have the policy of insurance with him. Counsel for the parties then stipulated that a paper writing exhibited in court was a true copy of the policy, and such paper writing was then marked exhibit A and later introduced in evidence and attached to the bill of exceptions. The policy provided public liability limit for one person of $5,000 and public liability limit for one accident of $10,000 for loss arising from the ownership, operation or maintenance of the automobile described therein. The policy, among other terms, contained a further provision as follows: \"The terms and conditions of this policy are so extended as to be available, in the same manner and under the same conditions as they are available to the named assured, to any person or persons while riding in or legally operating the within described automobile, and to any person, firm or corporation legally responsible for the operation thereof, provided such use or operation is with the permission of the named assured, or if named assured is an individual, with the permission of an adult member of the named assured's household other than a chauffeur or domestic servant; except that the terms and conditions of this policy shall not be available to a public automobile garage, automobile service station, and agents and employees thereof. The unqualified term assured shall include the named assured and all other persons, firms or corporations to which the benefits may be extended, under the herein terms.\"",
"The policy contained a further provision that the insurance under it should begin at twelve o'clock noon, standard time, at the place of residence of the named assured on the 23rd day of February 1933. The insurance was for the initial period of one year, renewed automatically for each succeeding year provided the premiums were paid. *Page 265 On cross-examination by defendant's counsel, Forney further testified that on December 24, 1936, he had promised the automobile to Marion Forney, his nephew, and \"didn't know what he said — that he didn't need it — he didn't know it, but he didn't know whether Weaver got it or not. He didn't know whether it went out of there or whether it was in the shed.\" According to Forney's testimony it appears that Weaver did not ask for the use of the automobile that day or night; that Weaver had never taken the automobile before without asking for it but did not ask for it on this occasion; that Weaver had been working that day and had been drinking; that Weaver had always asked for the use of the car before that; that he, Charles Forney, had promised Marion Forney the use of the automobile that night; that he had not seen Marion Forney and Marion had not informed him he was not going to use the automobile that night; that he paid Weaver for working for him; and that he did not give Weaver permission to use the automobile on December 24, 1936.",
"Being recalled for further cross-examination by the defendant, Charles D. Forney testified further that he told Charles Weaver on the 24th of December 1936 that he had promised the car to Marion Forney, his nephew, the reason being that Weaver had asked for the use of the automobile that night and he knew Weaver was in no condition to use it. Forney testified further that he told Weaver he could not have the automobile and told Marion that he, Marion, could have it. On further redirect examination by plaintiff, Forney further testified that he thought he testified in the morning that Charles Weaver didn't ask him for the car that day. In answer to the question, \"You told him that, didn't you?\" he replied, \"Well, I don't know whether I did or not.",
"Let's see. I know he asked for it — he wanted to know and I told him he couldn't have *Page 266 it. He wasn't in shape for it.\" Further, in answer to the question \"Didn't you tell on the stand this morning Mr. Weaver hadn't asked for the car?\" he replied, \"I don't remember whether I did or not and I don't know whether that is true or not.\" Plaintiff also called defendant, Charles Weaver, for cross-examination as a witness on her behalf.",
"The material part of his testimony is as follows: He is working for Mr. Forney and lives with him and was living with him and working for him on the 24th of December 1936. He is the Charles Weaver who was sued in this case. He was over twenty-one years of age on the 24th day of December 1936, and was involved in an automobile accident on that date. He had been working for Mr. Forney for about two years at that time and his duties were to take care of the chores and do anything around the farm that was required to be done, husking corn and so on. Mr. Forney was quite badly crippled and Weaver drove his car for him. Forney had the car when Weaver first came to work for him.",
"Weaver had been driving the car during those two years and when he would ask Forney for the car Forney would let him have the car or Forney would send him on errands with it. The accident happened about nine o'clock in the evening. He had asked Forney for the car on the day of the accident and Forney told him one of his relatives wanted to use it. In answer to the question \"Is it not a fact that he didn't need the car although he first told he was going to use it?\" Weaver replied, \"I went to see him to see if he was going to use it. I thought if he would take me to town he could have the car, and he didn't say so I took the car and went on.\"",
"Weaver did not go back and tell Forney he was going to use it. Weaver was alone in the car. Mr. Forney didn't drive at that time but has driven since. Forney told him that he couldn't have the car because someone else wanted to use it. Weaver told other people right after *Page 267 the accident that he had permission to use Forney's car, and after the accident made a written statement concerning the same, in which he said he had permission to use the car. The written statement made by Weaver was true except that part in which he said he had permission to use the car, which was false. A copy of this written statement was identified by Weaver, marked plaintiff's exhibit A and later introduced in evidence. Weaver signed the written statement mentioned. The only untrue statement contained in the written statement is that Forney had given Weaver permission to drive the car. Weaver has driven Forney's car since the accident. His driver's license was not revoked and he has one now. Weaver drives a car when Forney sends him on errands but if Weaver wants to use the car himself he asks Forney for it.",
"Forney sometimes gives Weaver permission to use the car and sometimes refuses permission. Forney did not know that Weaver had the car the night of the accident. Forney had told Weaver he could not have the car, as his nephew had spoken for it. Weaver had been drinking the day of the accident and drank a little whiskey at home. Forney noticed Weaver had been drinking. Weaver wanted to go over to Kirby and celebrate.",
"He was not sent there by Forney. Weaver had some beer at Kirby. He had six bottles in the car when the accident happened. Weaver has not at any time prior to or since December 24, 1936, used the car for his own purposes without asking Forney. After the accident Weaver was arrested for driving while intoxicated. He entered a plea of guilty and was fined $100 and costs. He was in the county jail when he signed the statement concerning his permission to use the car. Weaver was not drunk when he went to Kirby but was feeling pretty good, and had some beer over at Kirby. Before he started, he had two drinks; they were pretty good ones. Plaintiff also called as a witness on her behalf, a Mr. *Page 268 Frank Heid. He testified generally to the effect that he had interviewed Weaver following the accident and Weaver had made an oral statement to him to the effect that he had Forney's permission to use Forney's car at the time of the accident, and had also made a written statement, being the statement above referred to, in which he stated: \"I told Mr. Forney that I was going and he said it was okeh.\" An examination of the written statement discloses that it does not vary materially from the testimony given by Weaver on the trial of the case with reference to the subject-matter, except in the particulars mentioned.",
"The evidence above mentioned constitutes all the evidence introduced by plaintiff, and at the close of this evidence, on motion made by the defendant insurance company, as before mentioned, a verdict was directed in its favor. In determining whether the court erred in directing a verdict in favor of the defendant insurance company, it is essential to keep in mind that under the pleadings the only controverted issue between the parties was whether the damages sustained by the plaintiff for which she had recovered judgment against the defendant Weaver, were sustained at a time when the defendant Weaver was operating the automobile of Forney with the consent, express or implied, of Forney, thereby coming within and under the certain conditions, provisions and terms of the policy of insurance.",
"It is a fundamental rule that a plaintiff's right of recovery is measured and limited by the allegations of his petition, so that in the instant case, in order for the plaintiff to recover on her supplemental petition against the defendant insurance company, the burden was on her to prove that the judgment obtained by her against the defendant Weaver was for damages for personal injuries inflicted on plaintiff by the negligence of the defendant Weaver while operating the *Page 269 automobile of Charles D. Forney with the consent, express or implied, of Charles D. Forney. By so limiting her allegations as to the liability of the defendant insurance company the plaintiff could not, under her supplemental petition, avail herself of any other or further provisions of the insurance policy issued by the defendant insurance company to Forney imposing other or further liability on the defendant insurance company. In this situation the trial court in its consideration of the motion to direct a verdict was limited to a consideration of the terms of the policy relating to the use or operation of the car with the permission of the named assured (Forney), and could not consider the further provisions of the policy imposing liability in case the car was being operated with the permission of an adult member of the named assured's household, or the use or operation of the car under any other factual situation coming within the terms of the policy, except as hereinbefore mentioned.",
"The evidence introduced by the plaintiff tends to prove that the policy of insurance was in full force and effect at the time plaintiff sustained her injuries, so our inquiry will be directed to the question as to whether there is evidence tending to prove the operation of the automobile owned by Forney, by the defendant Weaver at the time the plaintiff sustained her injuries, was with the consent, express or implied, of Forney. As will be noted from the statement of the evidence introduced by the plaintiff, there is no evidence tending to prove any implied consent on the part of Forney to the use of his automobile by Weaver at the time the plaintiff sustained her injuries, and the testimony of both Forney and Weaver is to the effect that Forney had not consented or granted permission to Weaver for the use and operation of the automobile by Weaver preceding the time the plaintiff sustained her injuries.",
"*Page 270 The written statement of the details of the accident made by Weaver, and the testimony of Mr. Heid, were admissible only for the purpose of impeaching the testimony of Weaver and can be considered only for this purpose, and have no tendency to prove that Weaver was using and operating the automobile with the consent of Forney. There is a presumption that an automobile, being operated by one not the owner, is in use for the benefit and on account of the owner, but such presumption remains only so long as there is no substantial evidence to the contrary. When such evidence is offered, the presumption disappears, and in the absence of further proof there is nothing to justify a finding in accordance with the presumption. Powers v. Wilson, 203 A.D. 232,196 N.Y. Supp., 600. Generally, the credibility of a witness who is a party to the action and therefore interested in the result, is for the jury, but this rule is not, however, a rule of universal application. It is subject to the exception that where a party calls a witness he presents him to the jury as worthy of belief and as one whose testimony is to be relied on so far as it is not contradicted.Powers v. Wilson, supra, at 235. This exception to the general rule has been applied in cases where the owner or driver of an automobile, or both, have been called as witnesses for the plaintiff, who thus vouches for the credibility of their testimony, and have testified that the automobile was not at the time being used in the business or with the consent of the owner, in which cases the court has held as a matter of law that their testimony was \"substantial evidence\" that the automobile was not at the time being used in the business or with the consent of the owner.",
"In such cases the presumption of liability on the part of the owner is overcome.Maher v. Benedict, 123 A.D. 579, 108 N.Y. Supp., 228. Applying these rules to the evidence in the case at *Page 271 bar, the testimony of the owner of the car, Forney, who was not a party to the case but was not a disinterested witness, and who was called as a witness by the plaintiff who thereby vouched for the credibility of his testimony, was \"substantial evidence\" that the car was not at the time being used with Forney's consent, overcoming the presumption of liability on the part of the owner. The testimony of the defendant Weaver, who was called for cross-examination, was to the same effect. The fact that evidence was offered tending to impeach this testimony presented only the question of the credibility of Weaver's testimony and, as above stated, had no tendency to prove the fact of consent which plaintiff had the burden of proving. As hereinbefore mentioned, the evidence introduced by the plaintiff had no tendency to prove either express or implied consent on the part of Forney, and the presumption, that the automobile was in use for the benefit and on account of the owner when plaintiff's injuries were sustained, was overcome by substantial evidence to the contrary of the owner Forney.",
"This presumption being overcome, there was neither evidence nor presumption upon which to base a finding that Weaver was using and operating an automobile with the consent, express or implied, of Forney, which was essential to a recovery by the plaintiff. The court therefore did not err in directing a verdict in favor of the defendant insurance company. For the reasons mentioned, the judgment will be affirmed at costs of appellant. Judgment affirmed. CROW, P.J., and KLINGER, J., concur. *Page 272"
]
| https://www.courtlistener.com/api/rest/v3/opinions/3734964/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Title: [US-CA] Poor student at elite university pulled over for running stop sign Question:I want to preface by saying that I only include that I'm poor because that's what makes this case really major for me. Having to shell out the money for a ticket would be extremely detrimental for me. I'm going to college in California (I live in a different state), and I'm here on a full ride (tuition, room & board). Paying this ticket would mean not being able to fly home, or not buying textbooks.
Basically, on rush night at my school, some friends and I (who choose not to smoke or drink), decided to go play laser tag off campus instead of partying. I volunteered to drive us. Although I'm 19, I've driven a fair amount and I've never had a ticket other than parking tickets. I've always driven with a focus on mpg and smoothness. I come close to a complete stop, but I don't always bottom out the brakes.
On the way back from laser tag, I was pulled over for "running two stop signs." I'm frustrated because I don't feel like there's much I can do since I didn't abide by the law by completely stopping, but I'm (subjectively) a very safe and observant driver. If it wasn't rush night, the cop wouldn't have been there, and even if he was, I doubt he would write me up for it. It's also frustrating because the cop was a total asshole and totally looked down on me. I even go as far as to question if the cop pulled me over on racial profiling (everyone in the car was of color: hispanic, or southeastern asian). Overall, it was a bad experience, especially since I had always believed that if you were polite and respected police officers, you would receive the same in return. The worst part of it all was that I originally drove to the parking lot and was about to park, but it started to rain, so I dropped my friends off directly at the dorm since I didn't want them to walk in the rain. If I just parked in the parking lot none of this would have happened :(.
What are my options? I have no idea what to do. I think the ticket might get sent to my home outside of California, since that was the address on my driver's license.
Can/Should I go to court? Can I admit guilt but ask for circumstantial leniency since it's my first ticket and I was literally just trying to have safe fun with friends (laser tag instead of partying)? Should I try to set up a court date on Friday in the PM in hopes of the officer not showing up?
I know I'm at fault, but I'm just so sad that circumstantially, I got super screwed over. Also, having to pay this fee is really stressing me out. Answer #1: What is it today with people not stopping at stop signs?
>I come close to a complete stop,
Close? Stop means stop.
You did what you were charged with. Your best bet is to plead guilty and attempt to get a payment plan. And please, brush up on how to drive. You've posted a sob story and I get that this is going to cause you a problem but stop always means stop and I have no idea why you thought what you were doing was acceptable.Answer #2: By your own admission, you ran *two* stop signs, and you think you were profiled? Get real. You didn't get screwed over.
Sure, you can paint a sob story to the judge, who may or may not reduce your fine. But if you want any chance of success, you need a very different strategy than the one you tried here. Answer #3: You have a lot to learn about life.
Your options are to fight the ticket, or to plead guilty or no contest, or to check if the court has a pretrial diversion program.
If you cannot pay the fine, the court can put you on probation with a payment plan.
You can also get a part time job, or beg or borrow from family and friends. Answer #4: >I've always driven with a focus on mpg and smoothness.
Good. Keeping doing that. But also...
>I come close to a complete stop, but I don't always bottom out the brakes.
Come to a complete stop. You don't need to bottom out the brakes to come to a complete stop. Usually your front end will bounce back up when the stop is complete unless you are also smoothly braking up to the sign/line as well.
>I'm (subjectively) a very safe and observant driver.
Great. Now become a lawful driver and come to complete stops for stop signs as well.
>the cop wouldn't have been there, and even if he was, I doubt he would write me up for it.
Don't try to second guess officers. That can get you in even more trouble.
>It's also frustrating because the cop was a total condescending asshole.
Maybe he was having a rough night. Maybe he's just an asshole. There is one in every bunch as the old saying goes. However, that doesn't make his citation any less lawful. Maybe less professional but not wrong. If you have dash cam footage of the stop you might complain to his department and ask he be a bit more professional next time.
>What are my options?
As others have said, contest it in court or plead guilty/no contest. You could ask for leniency since this is your first ticket or the option of community service instead of payment or a payment plan over six months.
>in hopes of the officer not showing up?
Good luck with that. In my state officers generally show up and are getting overtime for easy duty as the department will specifically schedule the previous shift to incentivize the officer to show up at court. | 05-02-2018 | [
"Title: [US-CA] Poor student at elite university pulled over for running stop sign Question:I want to preface by saying that I only include that I'm poor because that's what makes this case really major for me. Having to shell out the money for a ticket would be extremely detrimental for me. I'm going to college in California (I live in a different state), and I'm here on a full ride (tuition, room & board).",
"Paying this ticket would mean not being able to fly home, or not buying textbooks. Basically, on rush night at my school, some friends and I (who choose not to smoke or drink), decided to go play laser tag off campus instead of partying. I volunteered to drive us. Although I'm 19, I've driven a fair amount and I've never had a ticket other than parking tickets. I've always driven with a focus on mpg and smoothness. I come close to a complete stop, but I don't always bottom out the brakes. On the way back from laser tag, I was pulled over for \"running two stop signs.\" I'm frustrated because I don't feel like there's much I can do since I didn't abide by the law by completely stopping, but I'm (subjectively) a very safe and observant driver. If it wasn't rush night, the cop wouldn't have been there, and even if he was, I doubt he would write me up for it. It's also frustrating because the cop was a total asshole and totally looked down on me.",
"I even go as far as to question if the cop pulled me over on racial profiling (everyone in the car was of color: hispanic, or southeastern asian). Overall, it was a bad experience, especially since I had always believed that if you were polite and respected police officers, you would receive the same in return. The worst part of it all was that I originally drove to the parking lot and was about to park, but it started to rain, so I dropped my friends off directly at the dorm since I didn't want them to walk in the rain. If I just parked in the parking lot none of this would have happened :(. What are my options? I have no idea what to do.",
"I think the ticket might get sent to my home outside of California, since that was the address on my driver's license. Can/Should I go to court? Can I admit guilt but ask for circumstantial leniency since it's my first ticket and I was literally just trying to have safe fun with friends (laser tag instead of partying)? Should I try to set up a court date on Friday in the PM in hopes of the officer not showing up? I know I'm at fault, but I'm just so sad that circumstantially, I got super screwed over.",
"Also, having to pay this fee is really stressing me out. Answer #1: What is it today with people not stopping at stop signs? >I come close to a complete stop, Close? Stop means stop. You did what you were charged with. Your best bet is to plead guilty and attempt to get a payment plan. And please, brush up on how to drive. You've posted a sob story and I get that this is going to cause you a problem but stop always means stop and I have no idea why you thought what you were doing was acceptable.Answer #2: By your own admission, you ran *two* stop signs, and you think you were profiled? Get real. You didn't get screwed over. Sure, you can paint a sob story to the judge, who may or may not reduce your fine. But if you want any chance of success, you need a very different strategy than the one you tried here.",
"Answer #3: You have a lot to learn about life. Your options are to fight the ticket, or to plead guilty or no contest, or to check if the court has a pretrial diversion program. If you cannot pay the fine, the court can put you on probation with a payment plan. You can also get a part time job, or beg or borrow from family and friends. Answer #4: >I've always driven with a focus on mpg and smoothness. Good. Keeping doing that. But also... >I come close to a complete stop, but I don't always bottom out the brakes. Come to a complete stop. You don't need to bottom out the brakes to come to a complete stop. Usually your front end will bounce back up when the stop is complete unless you are also smoothly braking up to the sign/line as well. >I'm (subjectively) a very safe and observant driver. Great. Now become a lawful driver and come to complete stops for stop signs as well. >the cop wouldn't have been there, and even if he was, I doubt he would write me up for it.",
"Don't try to second guess officers. That can get you in even more trouble. >It's also frustrating because the cop was a total condescending asshole. Maybe he was having a rough night. Maybe he's just an asshole. There is one in every bunch as the old saying goes. However, that doesn't make his citation any less lawful. Maybe less professional but not wrong. If you have dash cam footage of the stop you might complain to his department and ask he be a bit more professional next time. >What are my options? As others have said, contest it in court or plead guilty/no contest. You could ask for leniency since this is your first ticket or the option of community service instead of payment or a payment plan over six months. >in hopes of the officer not showing up? Good luck with that. In my state officers generally show up and are getting overtime for easy duty as the department will specifically schedule the previous shift to incentivize the officer to show up at court."
]
| https://www.reddit.com/r/legaladvice/comments/8gmhkt/usca_poor_student_at_elite_university_pulled_over/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
776 N.W.2d 287 (2009) 2009 WI App 174 STATE v. BROOKS. No. 2008AP1577-CR. Court of Appeals of Wisconsin. October 6, 2009. Unpublished Opinion Affirmed. | 10-30-2013 | [
"776 N.W.2d 287 (2009) 2009 WI App 174 STATE v. BROOKS. No. 2008AP1577-CR. Court of Appeals of Wisconsin. October 6, 2009. Unpublished Opinion Affirmed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1272450/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
OPINION OF THE COURT FISHER, Circuit Judge. Hunts Point Cooperative Market, Inc. (“Hunts Point”) appeals from the District Court’s order in which it found Hunts Point liable to Madison Financial LLC (“Madison”) for the amount of $1,010,435.00. Madison originally sued Hunts Point claiming breach of contract following Hunts Point’s failure to pay money owed on five notices of purchases (an “NOP” or the “NOPs”), as well as collection of accounts under Uniform Commercial Code (“U.C.C.”) Article 9. The District Court held that Hunts Point breached its contractual obligations because the NOPs were valid and enforceable, and thus declined to reach Madison’s U.C.C. Article 9 claims and Hunts Point’s corresponding Article 9 defenses. It also denied Madison an award of prejudgment interest. Hunts Point argues on appeal, inter alia, that the District Court erred in failing to consider its Article 9 defenses. In Madison’s cross-appeal, Madison argues that the District Court abused its discretion in not awarding prejudgment interest on the damages. Because we agree that the NOPs were valid and enforceable contracts, we will affirm the District Court’s judgment in favor of Madison, but we will reduce the amount of damages by the amount of $263,497.74. We will also affirm the District Court’s decision not to award Madison prejudgment interest. I. We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis. A. Background on Madison Around March 1999, Christopher Ma-guire and George Sneddon (Maguire’s then-father-in-law) formed Madison Financial Corporation (“MFC”), a New Jersey corporation, to provide factoring services.1 Sneddon owned 100% of MFC’s stock. Madison is a New Jersey limited liability company that arose from MFC and was established on June 10, 1999, also with the purpose of factoring accounts receivable. According to Madison’s November 12,1999 Operating Agreement (the “Operating Agreement”), Madison was originally formed with three members: Cherbrooke Associates, LLC (“Cherbrooke”), as represented by its part-owner John Marozzi; *156the Morrocco Group, LLC (“Morrocco Group”), as represented by Vincent Mor-rocco and Marozzi; and Service Capital Corporation, LLC (“Service Capital”), a company owned by Maguire.' Through a Stock Purchase Agreement dated December 21, 1999, Madison purchased 100% of MFC’s stock from Sneddon, its sole shareholder, and MFC succeeded to the interests of Madison. Under the Operating Agreement, Madison had no managing member and instead was to be directed by a board of managers appointed by its members. Donna Brewer-Rossi joined Madison in June 1999 and currently serves as its Controller. During the course of the events giving rise to the instant appeal, Brewer-Rossi and Marozzi worked out of Madison’s Pine Brook, New Jersey office, and Maguire and Sneddon worked out of Madison’s Bridgewater, New Jersey office (which they shared with Service Capital). Sneddon served as director and vice president of Madison, and was responsible for executing necessary documents such as factoring agreements, assignments, estop-pel agreements (or NOPs), U.C.C. forms, and notice letters each time Madison purchased an account. Sneddon was also responsible for verifying the accounts before Madison advanced funds to its clients, including running a credit check on a prospective client, obtaining the underlying contracts between the client and account debtor, and confirming with the debtor that the invoice amounts were due and owing. For private account debtors, Madison would usually verify that the amounts in the invoices were actually due by sending an NOP to the account debtor to acknowledge, sign, and return. Sneddon would notify all parties that the client had sold its accounts receivable to Madison and inform the account debtor to thereinafter pay Madison directly for the amounts on the invoices instead of the client. Sneddon generally required all three parties — Madison, the client, and the account debtor — to sign a document acknowledging the sale of the invoice to Madison and Madison’s funding to the client, and typically obtained a signed copy of an NOP for each account. Sneddon’s typical practice was to call the account debtor after receiving its signed NOP in order to verify the signature on it. After Sneddon received all the required paperwork, he faxed a funding request, with its supporting documents, to Brewer-Rossi in Madison’s Pine Brook office. Upon receipt of that information, Brewer-Rossi was authorized to wire money — typically 70% of the client’s accounts receivable — to Madison’s client, and Madison would thereby purchase the accounts receivable. After making the wire transfer, Brewer-Rossi entered information about the transaction in the company’s reports. Based on its agreement with the client, Madison would collect a fee for its services on the account and, when appropriate, credit its client any amount due that it collected. Madison would retain the remaining 30% balance on the accounts receivable purchased in “reserve” until the account debtor paid Madison in full, at which point Madison would mark the invoice as “closed” on its books, take its fee (as determined by the amount of time an invoice remained unpaid), and pay its client the net amount received. B. Background on Westway and Hunts Point Westway, a New York corporation, provided construction services as its business. Madison entered into a purchase agreement (the “Purchase Agreement”) with Westway on January 10, 2000, through which it purchased all of Westwa/s existing and future accounts receivable. In consideration, Madison agreed to make monetary advances to Westway. Westway submitted to Madison invoices or payment requisitions for its accounts receivable from fourteen account debtors, including *157Hunts Point. Madison purchased the accounts receivable for the requisitions Westway had forwarded in accordance with the terms of the Purchase Agreement. Madison then sent NOPs to notify the private entity account debtors, under its typical procedure, that all future payments of accounts receivable should be made to Madison. Under the Purchase Agreement, West-way obtained $6 million in credit for its outstanding accounts receivable and was responsible for paying Madison for all accounts or invoices that remained unpaid by the account debtor ninety days after their factoring. Despite these terms, Westway had numerous payments outstanding for more than ninety days (including some outstanding more than 150 days) and, in total, Westway had more than $8 million in outstanding invoices. Marozzi testified that Madison violated its own policies in numerous ways in the course of handling Westway’s factored invoices. Hunts Point is a cooperative wholesale meat distribution market located in the Bronx, New York. In mid-1999, Hunts Point decided to construct a new refrigerated warehouse (the “Project”) with city and state funding. Hunts Point entered into two contracts with Westway for construction services. Hunts Point hired Jeffrey M. Brown Associates, Inc. (“Brown”) as its construction manager, and Brown began to submit applications for payment to Hunts Point, specifying in each of the eight applications that payment should be made to Westway. Either Bruce Rein-gold, Hunts Point’s General Manager, or another representative, reviewed each of Westway’s applications, and Hunts Point approved each one and forwarded them to the government for payment. Reingold is responsible for the day-to-day activities at Hunts Point — including financial affairs, operational and security matters — and serves as the person to whom all department heads report. Reingold works with Hunts Point’s accountants in the preparation of financial statements, handles the collection of rents, oversees construction projects (including the Project), and oversees and approves its payments to construction contractors. Among the West-way accounts purchased by Madison were five accounts on which Hunts Point was Westway’s account debtor. C. The NOPs Madison and Westway executed five written assignments (the “Assignments”) to evidence Madison’s purchase of the accounts receivable at issue. Each assignment lists Hunts Point under either the “Account Name and Address” field or as the “Customer” and includes an invoice and amount due. The Assignments, correspondingly, related to five requisitions issued by Westway and delivered to Madison. In accordance with normal procedure, Madison (via Sneddon) forwarded an NOP to Hunts Point for each of the West-way accounts receivable on which Hunts Point was the account debtor. Reingold signed each of the first five NOPs on behalf of Hunts Point, and later admitted that he was authorized to do so. On each NOP, Sneddon filled in the exact dollar amount due on the referenced account, prior to signing it himself and prior to forwarding it to Reingold. Sneddon, Reingold, and Stephen Nigro (President of Westway) each executed the first NOP, dated March 1, 2000, on behalf of their respective parties to the payment arrangement for the account receivable. Sneddon received the signed NOP from Reingold on March 2, 2000 and, in accordance with Madison’s normal procedure for handling the first NOP with an entity, called Reingold to ensure the invoice was legitimate and that the money was due and payable. Sneddon’s copy of the first NOP *158has a handwritten note that states: “Spoke w/ Bruce Reingold 3-2-00. He verified signing attached letter.” Telephone records indicate that someone in Madison’s Bridgewater, New Jersey, office placed a phone call to Hunts Point’s Bronx, New York, office at 2:36 p.m. that lasted for 52 seconds on March 2, 2000. Sneddon testified that during his conversation with Reingold, he received the impression that Reingold “understood this was an assignment of an' invoice that Westway was giving to, assigning to Madison Financial and that [Reingold] understood the payments for that invoice were to go to Madison Financial LLC.” Reingold did not deny that the phone call between him and Sned-don took place, but testified that he could not remember it. The District Court found Sneddon’s testimony credible, as supported by the paper evidence, and adopted it as fact. Each of Madison’s NOPs with Westway and Hunts Point, including the first NOP, listed a specific amount that Hunts Point owed Madison, “pursuant to the attached invoice(s),” and stated that, by executing the NOP, the amount to be'paid to Madison was “owed absolutely” and that Hunts Point had no defenses to payment. Additionally, the NOPs stated that, by signing, Hunts Point “acknowledges that the [specific dollar amount] owing by [Hunts Point] to [Westway] shall be paid directly to [Madison]. This assignment may only be released by [Madison] and no action of [Westway] shall affect any of [Hunts Point’s] obligations to make payment directly to [Madison].” The NOP also states that “[t]he Undersigned [i.e., Hunts Point] acknowledges that payment to any party other than [Madison] will not constitute payment of indebtedness owing by [Hunts Point] to [Westway].” However, Madison did not attach an invoice to the first NOP, or any of the following NOPs it sent to Hunts Point. Reingold testified at trial that: I signed the first notice of purchase in I guess on March 1st. I had received the phone call from Gary Parker who I believe was the vice-president of Westway Industries. He told me that he was in the area, needed to talk to me and could he stop up and see me. And a few minutes later he pulled into the Market and came up to my office, and presented this piece of paper to me and asked if I would sign it in connection with helping Westway obtain a loan for this project. I signed the document at that time. I asked him at the time when he would have more people on the job. We were getting a little frustrated and he had made some promises to us that they were going to be able to start immediately. He told me they needed some money. Money was paid up in some other jobs. If I could sign a requisition for them to get a loan, they would have people there a little quicker. So in connection with that, I signed the document. Additionally, Reingold testified in his pretrial deposition that “[i]t was certainly in Hunts Point’s interest to make sure that Westway was able to staff the job properly. By signing the document, that is what I thought I was doing.” Reingold reiterated this sentiment at trial, testifying that he signed the first NOP because he believed he was helping Westway obtain a loan to acquire financing for the Project, which was in Hunts Point’s interest because he wanted construction to continue. Although Reingold said it was generally his practice to read documents before signing them on behalf of Hunts Point, he testified that he did not read the first NOP before signing it, nothing was attached to it, and *159he did not notice that the document’s caption said “notice of purchase of accounts receivable.” He testified that: I didn’t read it. I had no reason to believe what [Parker] was telling me would be incorrect. I took him at his word. I thought it was going to be something that would help him do the job a little bit quicker and I signed the document.... I thought I was signing something acknowledging that we had a contract with them and then [Parker] was going to be able to go out and borrow money against that without committing Hunts Point to anything. That’s what I thought I was signing. Madison issued five more NOPs, and Westway, Hunts Point (via Reingold), and Madison executed four of them. The terms of NOPs two through five were identical to the first NOP, except that each reflected a different invoice amount that Hunts Point owed Madison. Reingold testified that he did not read NOPs two through five, did not retain copies of them, and did not inform anyone at Hunts Point that he had signed them. Reingold refused to sign the sixth NOP because of Hunts Point’s dissatisfaction with West-way’s performance on the Project.2 For the first NOP, Sneddon forwarded a funding request to Brewer-Rossi based on the February 28, 2000 requisition, which consisted of the documents Sneddon obtained and assembled before Madison advanced any funds, including various information related to the transaction and Hunts Point’s financial condition. Sned-don testified that he followed the same procedure for funding each of the other four Hunts Point accounts from Westway. Brewer-Rossi funded each of the requisitions by arranging a wire transfer from Madison to Westway for approximately 70% of their face amount. She testified that Madison wire-transferred the money to Westway for the first five NOPs only after it received documentation that the NOP was executed by all three parties. In total, Madison advanced a total of $1,961,149.70 to Westway based on the Hunts Point accounts. Subtracting the amount wired for the sixth NOP, which Reingold never signed, Madison advanced $1,798,300.00 to Westway, including $250.00 in extra fees. D. Problems at Madison Sneddon, Marozzi, Brewer-Rossi, and Maguire all testified that at the time Sned-don received the assignments and signed the five NOPs for the Westway accounts, Madison was not aware that Westway was in default for any of its obligations to Hunts Point or that any of the requisitions was false or fraudulent. In fact, Hunts Point made regular payments on the NOPs from April 2000 to September 2000, including four checks payable to Westway that were endorsed to Madison totaling $1,358,565.00. Madison credited these payments toward the money Hunts Point owed on the Westway accounts. Hunts Point made two additional payments payable to Westway that were endorsed to Service Capital, totaling $263,497.74, which Madison did not receive and did not credit. Hunts Point drew another check in the amount of $60,000.00 to the order of West-way that was also endorsed by Westway. Madison likewise did not receive or credit this check because the plain language of the NOPs did not allow Hunts Point to pay Westway directly for the amounts due on them. Madison received a cashier’s check dated September 25, 2000, in the amount of $200,000.00, and agreed to credit that *160sum to the Hunts Point account and reduce its damages claim accordingly. Madison first learned of Hunts Point’s dissatisfaction with Westway’s work on the Project in September 2000. In a September 11, 2000 fax, Sneddon sent the sixth NOP to Hunts Point and Westway for signatures to approve a $233,000.00 advance from Madison to Westway, which Hunts Point refused to sign. Madison wire-transferred the advance to Westway before obtaining Hunts Point’s signature on the NOP. Hunts Point made its last payment to Westway on September 20, 2000. Reingold stated that by October 16, 2000, he had approved over $2 million of payments from Hunts Point to Westway under the parties’ two construction contracts relating to the Project. In a letter dated October 5, 2000, Hunts Point informed Westway that it was in default under one of the contracts and, in an October 12, 2000 letter, Westway denied that it was in default. In a December 20, 2000 letter, Madison informed Hunts Point that Westway had defaulted under the Purchase Agreement and advised Hunts Point that all money due to Westway was to be paid directly to Madison. One or more representatives from Madison called Hunts Point to demand payments on the outstanding accounts. Hunts Point denied that it owed money and made no payments to Madison. Brewer-Rossi calculated the total amount Hunts Point still owed Madison as $1,010,435.00. In 1999 and 2000, Madison had approximately fifteen to twenty clients, including Westway. Fewer than two years after its formation, Madison discovered that Ma-guire was diverting payments to Service Capital. Brewer-Rossi and Marozzi became suspicious of certain defaulted account payments, and began their own internal investigation. They confronted Maguire with their findings in November 2000, and he confessed to stealing funds from Madison and promised to pay back the money he had taken. Marozzi testified that Maguire committed a “massive fraud,” resulting in a financial loss to Madison of over $7.6 million. Around this time, Sneddon also discovered some troubling facts regarding Madison’s maintenance of the Westway accounts and, although he did not confront Westway directly with these findings, he relayed his concerns to Maguire and the individuals at Madison’s Pine Brook office, who told him they would “take care of it.” As a result of Madison’s discovery of his fraud, Maguire transferred his interest in Madison, as held through Service Capital, to Cherbrooke and the Morrocco Group by assignment on January 11, 2001. He resigned from Madison and was barred from conducting any future business on its behalf. Eventually, Maguire and Service Capital executed a consent judgment for $1.3 million in favor of Madison, entered in the Superior Court of New Jersey. A New Jersey grand jury indicted Maguire on November 7, 2001, for first-degree money laundering, second-degree theft by deception and bad check charges, as well as offenses related to the money he stole from Madison. In 2002, Maguire was convicted of a felony based on the charges arising out of his operation and management of Madison from 1999 to 2000. E. Procedural History Madison filed its complaint against Hunts Point in the District Court, claiming collection of accounts under U.C.C. Article 9, breach of contract, and promissory es-toppel. Following discovery, Madison filed a motion for summary judgment, which the District Court denied on March 1, 2004, the day before trial commenced. The District Court held a bench trial. On March 17, 2008, the District Court determined that Hunts Point was liable to Madison for breach of contract, concluding that the NOPs were valid and enforceable, and, in *161the alternative, determining that the doctrine of promissory estoppel would also render the NOPs enforceable. It declined to reach Madison’s U.C.C. Article 9 claims, stating that “damages would be no greater than those for liability for breach of contract” if it found Hunts Point liable under Article 9. The District Court ordered judgment in favor of Madison in the amount of $1,010,435.00, the full amount of its claim, plus post-judgment interest and costs to be taxed, but denied prejudgment interest to Madison. Hunts Point filed a timely notice of appeal. Madison filed a timely notice of cross-appeal, in which it seeks prejudgment interest of at least $396,830.11. II. The District Court had subject matter jurisdiction over this diversity action pursuant to 28 U.S.C. § 1332(a). We exercise jurisdiction over this appeal under 28 U.S.C. § 1291. The “issue of contract formation invokes a mixed standard of appellate review. The district court’s factual findings, especially with respect to the parties’ intentions, will not be reversed unless the record demonstrates that they are clearly erroneous.” ATACS Corp. v. Trans World Comm’ns, 155 F.3d 659, 665 (3d Cir.1998); see also Fed.R.Civ.P. 52(a). “Similarly, the interpretation of contractual language to discern contractual intent is a factual question, which we will accordingly review under a clearly erroneous standard. Conclusions drawn with respect to the legal effect of any agreement, however, are questions of law and therefore subject to plenary review.” ATACS, 155 F.3d at 665 (citation omitted). Regarding Hunts Point’s other arguments, “[t]he district court’s findings of fact are subject to the clearly erroneous standard, and its conclusions of law are subject to plenary review.” Menichini v. Grant, 995 F.2d 1224, 1228 (3d Cir.1993). “As a federal court exercising diversity jurisdiction, we are obliged to apply state substantive law____” Id. at 1228 n. 2. Finally, with respect to Madison’s cross-appeal, “[w]e review a district court’s determination to require the payment of prejudgment interest for abuse of discretion.” Thabault v. Chait, 541 F.3d 512, 533 (3d Cir.2008) (citing Ambromo-vage v. United Mine Workers of Am., 726 F.2d 972, 982 (3d Cir.1984)). III.3 A. Contract Theories Hunts Point argues the District Court erred in holding that the NOPs were valid *162and enforceable contracts, asserting that they fail for lack of consideration, the invoices were false and unattached to the NOPs when Madison received the signed and delivered copies, and Madison waived its right to insist on payment from Hunts Point by knowingly allowing Hunts Point to pay Westway directly. We conclude, however, that Hunts Point breached its obligation to pay the amounts owing in the NOPs under contract principles. Hunts Point argues the NOPs fail for lack of consideration because Westway had a preexisting duty to perform the construction contracts, the NOPs were not “bargained for in fact,” and Hunts Point did not receive the benefit of West-way completing its contractual duties as a result of its alternate funding source. Under New Jersey law, “[vjaluable consideration may take the form of either a detriment incurred by the promisee or a benefit received by the promisor.” Cont’l Bank of Pa. v. Barclay Riding Acad., Inc., 93 N.J. 153, 459 A.2d 1163, 1172 (1983). In a similar Connecticut case, which we find persuasive, a district court held that NOPs of accounts receivable were supported by consideration where the developer of a baseball stadium agreed to assign his debt to a factoring company through the NOPs and, in doing so, relinquished his right to pay the subcontractor directly for those debts. See Brookridge Funding Corp. v. Nw. Human Servs., 175 F.Supp.2d 355 (D.Conn. 2001), modified, 2004 WL 1897004 (D.Conn. Aug. 18, 2004), modified, 2007 WL 1834175 (D.Conn. June 26, 2007) (Brookridge III), aff'd, 2009 WL 1174666 (2d Cir. May 1, 2009) (not published). The court held that the developer, in signing the NOPs, received the benefit of the subcontractor continuing construction on the stadium, as opposed to postponing the project to wait for the subcontractor’s original financing source, and that adequate consideration therefore rendered the NOPs enforceable. Brookridge III, 2007 WL 1834175, at * 1-3. Similarly, here, Reingold’s testimony indicates that he signed the NOPs based on his desire to expedite construction on the Project. Although Westway already had a contractual duty to provide the construction services to Hunts Point, Reingold signed the NOPs to allow Hunts Point the additional benefit of Westway’s construction work occurring before it otherwise would have, absent sufficient funding. Furthermore, Madison, not Westway, advanced the funds, and thus the benefit, to Hunts Point, and Madison suffered a considerable detriment in advancing large sums of money to Westway. Therefore, consideration exists both as to the benefits Hunts Point received, and the detriments Madison suffered.4 Because we resolve this issue under contract principles, we need not decide whether the NOPs are also enforceable under the doctrine of promissory estoppel. *163Next, we agree with Madison that the NOPs are valid and enforceable despite being executed without the referenced invoices attached. Both parties agree that the dollar amount indicating the money Hunts Point owed Madison was present on the face of each NOP, and thus the essential term at issue was conspicuously available for interpretation by both Hunts Point and the District Court. See Malaker Corp. Stockholders Protective Comm. v. First Jersey Nat'l Bank, 163 N.J.Super. 463, 395 A.2d 222, 227 (N.J.Super.Ct.App.Div.1978) (explaining that a contract is definite enough and contains essential terms when it enables a court to determine what “the promisor undertook to do”). Further, we find the case upon which Hunts Point relies for the proposition that the NOPs are invalid without the attached invoices distinguishable. See 21st Capital Corp. v. Tiffany & Co., No. A-2602-06T2, 2008 WL 313455 (N.J.Super.Ct.App.Div. Feb. 6, 2008). In contrast to the NOPs at issue here, the NOP-equivalent invoice in 21st Capital was wholly and clearly fraudulent. Id. at *2. We next consider Hunts Point’s argument that Madison waived its right to insist on strict compliance with the NOPs by knowingly allowing Hunts Point to pay Westway the amounts Madison insists were due to it. We disagree, in part, because Hunts Point never paid either Madison or Westway the majority of the money at issue, and thus Madison has not waived Hunts Point’s nonpayment of that amount under any theory. However, we find persuasive Hunts Point’s argument that the District Court should have credited two additional payments Hunts Point made to Westway when it calculated the amount of Madison’s damages. Hunts Point made the August 2000 and September 2000 payments directly to Westway, exactly as it had done with the four earlier checks, but Westway endorsed the checks to Service Capital rather than Madison. Madison did credit four earlier payments Hunts Point had made to Westway that were subsequently endorsed to Madison. Because Maguire owned Service Capital, Service Capital was an original corporate member of Madison, it shared Madison’s Bridgewater, New Jersey office with Ma-guire and Sneddon, and Maguire used Service Capital as a vehicle through which he perpetrated his fraud, we conclude that Hunts Point should not bear the loss for the two payments that were improperly diverted from Westway to Service Capital. Thus, we will reduce Madison’s damages award by $263,497.74 to credit Hunts Point for the two checks it made payable to Westway that were endorsed to Service Capital, but will otherwise affirm the District Court’s calculation of damages. B. Hunts Point’s U.C.C. Article 9 Defenses Hunts Point argues that the District Court should have applied the principles of the New Jersey adaptation of U.C.C. Article 9, see N.J. Stat. Ann. § 12A:9-403(b), in resolving this case. This would have allowed Hunts Point to assert defenses against Westway and would have resulted in a finding that Hunts Point was not liable to Madison. Madison contends that it claimed Article 9 collection of accounts as an additional ground for relief against Hunts Point and, because the District Court found Hunts Point liable under contract law, it was unnecessary to reach Madison’s Article 9 arguments, and therefore the District Court properly refused to consider Hunts Point’s corresponding Article 9 defenses. The parties do not dispute that Article 9 applies to the NOPs at issue, but rather contest whether Hunts Point’s Article 9 defenses provide it any appellate relief in light of Hunts Point’s contractual liability to Madison. We agree with Madison that the District Court did not err in declining *164to reach Hunts Point’s Article 9 defenses in light of not deciding the preliminary issue of whether Hunts Point was liable to Madison under Article 9. Further, we are not persuaded by any case law Hunts Point has advanced that we are required to consider a defense to the statute absent a finding of liability under § 12A:9^03(b). Hunts Point argues that the District Court acknowledged in another case that “it appears that [Article 9] would apply under the New Jersey Appellate Division’s recent decision in 21st Capital.” Capitalplus Equity, LLC v. Prismatic Dev. Corp., No. 07-321, 2008 WL 2783339, *5 (D.N.J. July 16, 2008). However, as we explained earlier, we find 21st Capital factually distinct from the instant case, and we also find Capital-plus distinguishable because the defendant in that case never signed a waiver of defenses clause in its NOP-equivalent form, as Reingold did. Id. at *4, *8. Because Hunts Point has failed to convince us that we must apply Article 9 to resolve the instant appeal, and because it waived its defenses in signing the NOPs, our review of its U.C.C. claim would thus result in the same outcome as our analysis under common law contract principles. We therefore reject Hunts Point’s arguments that it should be relieved of liability based on its purported Article 9 defenses.5 C. Prejudgment Interest Madison cross-appeals the District Court’s denial of an award of prejudgment interest. We review this decision for abuse of discretion and, under New Jersey law,6 a “district court may exercise [its] discretion [to award prejudgment interest] upon ‘considerations of fairness’ and prejudgment interest may be denied ‘when its exaction would be inequitable.’ ” Thabault, 541 F.3d at 533 (quoting Ambromovage, 726 F.2d at 982). “[T]he purpose of prejudgment interest is to ‘compensate the plaintiff for the loss of income that would have been earned on the judgment had it been paid earlier.’ ” Id. (quoting Ruff v. Weintraub, 105 N.J. 233, 519 A.2d 1384, 1390 (1987)). “[T]he award of prejudgment interest on contract and equitable claims is based on equitable principles.” County of Essex v. First Union Nat’l Bank, 186 N.J. 46, 891 A.2d 600, 608 (2006). Further, “[t]he trial court is vested with substantial discretion to award or deny pre-judgment interest in contract cases, and its exercise of such discretion will be sustained on appeal unless it consti*165tutes a manifest denial of justice.” P.F.I., Inc. v. Kulis, 363 N.J.Super. 292, 832 A.2d 931, 936 (N.J.Super.Ct.App.Div.2003). Thus, we consider not whether we would have weighed the equities differently than the District Court did, but whether it abused its discretion in making its own determination. On these facts, we cannot conclude that it did. IV. For the aforementioned reasons, we will affirm the District Court’s order on the grounds that the five NOPs at issue are valid and enforceable contracts. However, we will reduce Madison’s damages in the amount of $263,497.74 to credit Hunts Point for two additional payments it made to Westway. Finally, we will affirm the District Court’s denial of prejudgment interest to Madison.
. Factoring is defined as ”[t]he buying of accounts receivable at a discount,” where "[t]he price is discounted because the factor (who buys them) assumes the risk of delay in collection and loss on the accounts receivable.” Black’s Law Dictionary 630 (8th ed. 2004). An account receivable is "[a]n account reflecting a balance owed by a debtor; a debt owed by a customer to an enterprise for goods or services.” Id. at 18.
. Madison did not seek recovery in the form of damages for the amount in the sixth NPO in its case before the District Court.
. Whether Madison engaged in fraudulent conduct influences much of our analysis. Hunts Point argues that the District Court erroneously found that Madison did not participate in Westway’s factoring of false invoices and did not know or should not have known of this fraud. Based on our review of the facts, we cannot conclude that the District Court clearly erred in its findings, and thus reject Hunts Point’s arguments along those lines. While it is clear that Maguire committed fraud while a principal at Madison, we are not convinced that Madison or its other employees knew or should have known of his pervasive fraud. Our conclusion that the District Court’s determination of the facts was largely correct underlies our legal conclusions. See Fed.R.Civ.P. 52(a)(6); see also Anderson v. Bessemer City, 470 U.S. 564, 573-76, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Further, Hunts Point argues that the District Court erred in failing to bind Madison by the acts of its agents, Sneddon and Maguire. Because we find it questionable whether Sneddon had knowledge of any fraud in the invoices he factored on the Hunts Point accounts, we conclude that the District Court did not err in finding insufficient evidence that the NOPs were fraudulent or that Sneddon had knowledge of fraud when preparing the paperwork for the Hunts Point NOPs. Additionally, Maguire’s massive fraud was not within the scope of his employment at Madison because his acts were clearly criminal and not in his employer’s interest. See Gotthelf v. Prop. Mgmt. Sys., Inc., 189 N.J.Super. *162237, 459 A.2d 1198, 1199-1200 (N.J.Super.Ct.App.Div.1983).
. To the extent that Hunts Point argues Rein-gold was fraudulently induced to sign the NOPs by Westway’s employees’ representations, we disagree. The evidence does not demonstrate that Westway made specific misrepresentations on which Reingold relied, nor does it show that anyone prevented Reingold from reading the NOPs to ascertain their meaning himself, or that Reingold was unable to ask Sneddon about their import during the March 2, 2000 phone call or on his own initiative. See Gras v. Assocs. First Capital Corp., 346 N.J.Super. 42, 786 A.2d 886, 894 (N.J.Super.Ct.App.Div.2001) ("Failing to read a contract does not excuse performance unless fraud or misconduct by the other party prevented one from reading.” (internal quotation marks omitted)). Therefore, we need not reach the civil procedure issue of whether Hunts Point effectively raised the defense of fraudulent inducement before the District Court.
. Nevertheless, even if we agreed with Hunts Point that we should consider its Article 9 defenses, that does not mean it would prevail on such an argument. Hunts Point argues that Westway's assignment of the NOPs to Madison was not enforceable under N.J. Stat. Ann. § 12A:9-403(b) because Madison was not a holder in due course of the NOPs. The statute reads: [A]n agreement between an account debtor and an assignor not to assert against an assignee any claim or defense that the account debtor may have against the assignor is enforceable by an assignee that takes an assignment: (1) for value; (2) in good faith; (3) without notice of a claim of a property or possessory right to the property assigned; and (4)without notice of a defense or claim in recoupment of the type that may be asserted against a person entitled to enforce a negotiable instrument under 12A:3-305 a [i.e., a holder in due course]. N.J. Stat. Ann. § 12A:9-403(b) (formerly N.J. Stat. Ann. § 9-206); see also N.J. Stat. Ann. § 12A: 9-109(a)(3). Although we need not, and will not, undertake a full analysis of each factor in the statute because we have already decided this appeal under contract principles, we express doubt that such an inquiry would prove fruitful for Hunts Point — particularly because it waived any defenses in signing the NOPs.
. In a diversity action, we apply state law in determining prejudgment interest. Jarvis v. Johnson, 668 F.2d 740, 746 (3d Cir.1982). | 11-04-2022 | [
"OPINION OF THE COURT FISHER, Circuit Judge. Hunts Point Cooperative Market, Inc. (“Hunts Point”) appeals from the District Court’s order in which it found Hunts Point liable to Madison Financial LLC (“Madison”) for the amount of $1,010,435.00. Madison originally sued Hunts Point claiming breach of contract following Hunts Point’s failure to pay money owed on five notices of purchases (an “NOP” or the “NOPs”), as well as collection of accounts under Uniform Commercial Code (“U.C.C.”) Article 9.",
"The District Court held that Hunts Point breached its contractual obligations because the NOPs were valid and enforceable, and thus declined to reach Madison’s U.C.C. Article 9 claims and Hunts Point’s corresponding Article 9 defenses. It also denied Madison an award of prejudgment interest. Hunts Point argues on appeal, inter alia, that the District Court erred in failing to consider its Article 9 defenses. In Madison’s cross-appeal, Madison argues that the District Court abused its discretion in not awarding prejudgment interest on the damages. Because we agree that the NOPs were valid and enforceable contracts, we will affirm the District Court’s judgment in favor of Madison, but we will reduce the amount of damages by the amount of $263,497.74. We will also affirm the District Court’s decision not to award Madison prejudgment interest. I.",
"We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis. A. Background on Madison Around March 1999, Christopher Ma-guire and George Sneddon (Maguire’s then-father-in-law) formed Madison Financial Corporation (“MFC”), a New Jersey corporation, to provide factoring services.1 Sneddon owned 100% of MFC’s stock. Madison is a New Jersey limited liability company that arose from MFC and was established on June 10, 1999, also with the purpose of factoring accounts receivable. According to Madison’s November 12,1999 Operating Agreement (the “Operating Agreement”), Madison was originally formed with three members: Cherbrooke Associates, LLC (“Cherbrooke”), as represented by its part-owner John Marozzi; *156the Morrocco Group, LLC (“Morrocco Group”), as represented by Vincent Mor-rocco and Marozzi; and Service Capital Corporation, LLC (“Service Capital”), a company owned by Maguire.'",
"Through a Stock Purchase Agreement dated December 21, 1999, Madison purchased 100% of MFC’s stock from Sneddon, its sole shareholder, and MFC succeeded to the interests of Madison. Under the Operating Agreement, Madison had no managing member and instead was to be directed by a board of managers appointed by its members. Donna Brewer-Rossi joined Madison in June 1999 and currently serves as its Controller. During the course of the events giving rise to the instant appeal, Brewer-Rossi and Marozzi worked out of Madison’s Pine Brook, New Jersey office, and Maguire and Sneddon worked out of Madison’s Bridgewater, New Jersey office (which they shared with Service Capital). Sneddon served as director and vice president of Madison, and was responsible for executing necessary documents such as factoring agreements, assignments, estop-pel agreements (or NOPs), U.C.C. forms, and notice letters each time Madison purchased an account. Sneddon was also responsible for verifying the accounts before Madison advanced funds to its clients, including running a credit check on a prospective client, obtaining the underlying contracts between the client and account debtor, and confirming with the debtor that the invoice amounts were due and owing.",
"For private account debtors, Madison would usually verify that the amounts in the invoices were actually due by sending an NOP to the account debtor to acknowledge, sign, and return. Sneddon would notify all parties that the client had sold its accounts receivable to Madison and inform the account debtor to thereinafter pay Madison directly for the amounts on the invoices instead of the client. Sneddon generally required all three parties — Madison, the client, and the account debtor — to sign a document acknowledging the sale of the invoice to Madison and Madison’s funding to the client, and typically obtained a signed copy of an NOP for each account.",
"Sneddon’s typical practice was to call the account debtor after receiving its signed NOP in order to verify the signature on it. After Sneddon received all the required paperwork, he faxed a funding request, with its supporting documents, to Brewer-Rossi in Madison’s Pine Brook office. Upon receipt of that information, Brewer-Rossi was authorized to wire money — typically 70% of the client’s accounts receivable — to Madison’s client, and Madison would thereby purchase the accounts receivable. After making the wire transfer, Brewer-Rossi entered information about the transaction in the company’s reports. Based on its agreement with the client, Madison would collect a fee for its services on the account and, when appropriate, credit its client any amount due that it collected. Madison would retain the remaining 30% balance on the accounts receivable purchased in “reserve” until the account debtor paid Madison in full, at which point Madison would mark the invoice as “closed” on its books, take its fee (as determined by the amount of time an invoice remained unpaid), and pay its client the net amount received.",
"B. Background on Westway and Hunts Point Westway, a New York corporation, provided construction services as its business. Madison entered into a purchase agreement (the “Purchase Agreement”) with Westway on January 10, 2000, through which it purchased all of Westwa/s existing and future accounts receivable. In consideration, Madison agreed to make monetary advances to Westway. Westway submitted to Madison invoices or payment requisitions for its accounts receivable from fourteen account debtors, including *157Hunts Point. Madison purchased the accounts receivable for the requisitions Westway had forwarded in accordance with the terms of the Purchase Agreement. Madison then sent NOPs to notify the private entity account debtors, under its typical procedure, that all future payments of accounts receivable should be made to Madison.",
"Under the Purchase Agreement, West-way obtained $6 million in credit for its outstanding accounts receivable and was responsible for paying Madison for all accounts or invoices that remained unpaid by the account debtor ninety days after their factoring. Despite these terms, Westway had numerous payments outstanding for more than ninety days (including some outstanding more than 150 days) and, in total, Westway had more than $8 million in outstanding invoices. Marozzi testified that Madison violated its own policies in numerous ways in the course of handling Westway’s factored invoices. Hunts Point is a cooperative wholesale meat distribution market located in the Bronx, New York. In mid-1999, Hunts Point decided to construct a new refrigerated warehouse (the “Project”) with city and state funding. Hunts Point entered into two contracts with Westway for construction services.",
"Hunts Point hired Jeffrey M. Brown Associates, Inc. (“Brown”) as its construction manager, and Brown began to submit applications for payment to Hunts Point, specifying in each of the eight applications that payment should be made to Westway. Either Bruce Rein-gold, Hunts Point’s General Manager, or another representative, reviewed each of Westway’s applications, and Hunts Point approved each one and forwarded them to the government for payment.",
"Reingold is responsible for the day-to-day activities at Hunts Point — including financial affairs, operational and security matters — and serves as the person to whom all department heads report. Reingold works with Hunts Point’s accountants in the preparation of financial statements, handles the collection of rents, oversees construction projects (including the Project), and oversees and approves its payments to construction contractors. Among the West-way accounts purchased by Madison were five accounts on which Hunts Point was Westway’s account debtor. C. The NOPs Madison and Westway executed five written assignments (the “Assignments”) to evidence Madison’s purchase of the accounts receivable at issue. Each assignment lists Hunts Point under either the “Account Name and Address” field or as the “Customer” and includes an invoice and amount due.",
"The Assignments, correspondingly, related to five requisitions issued by Westway and delivered to Madison. In accordance with normal procedure, Madison (via Sneddon) forwarded an NOP to Hunts Point for each of the West-way accounts receivable on which Hunts Point was the account debtor. Reingold signed each of the first five NOPs on behalf of Hunts Point, and later admitted that he was authorized to do so. On each NOP, Sneddon filled in the exact dollar amount due on the referenced account, prior to signing it himself and prior to forwarding it to Reingold. Sneddon, Reingold, and Stephen Nigro (President of Westway) each executed the first NOP, dated March 1, 2000, on behalf of their respective parties to the payment arrangement for the account receivable. Sneddon received the signed NOP from Reingold on March 2, 2000 and, in accordance with Madison’s normal procedure for handling the first NOP with an entity, called Reingold to ensure the invoice was legitimate and that the money was due and payable. Sneddon’s copy of the first NOP *158has a handwritten note that states: “Spoke w/ Bruce Reingold 3-2-00.",
"He verified signing attached letter.” Telephone records indicate that someone in Madison’s Bridgewater, New Jersey, office placed a phone call to Hunts Point’s Bronx, New York, office at 2:36 p.m. that lasted for 52 seconds on March 2, 2000. Sneddon testified that during his conversation with Reingold, he received the impression that Reingold “understood this was an assignment of an' invoice that Westway was giving to, assigning to Madison Financial and that [Reingold] understood the payments for that invoice were to go to Madison Financial LLC.” Reingold did not deny that the phone call between him and Sned-don took place, but testified that he could not remember it. The District Court found Sneddon’s testimony credible, as supported by the paper evidence, and adopted it as fact. Each of Madison’s NOPs with Westway and Hunts Point, including the first NOP, listed a specific amount that Hunts Point owed Madison, “pursuant to the attached invoice(s),” and stated that, by executing the NOP, the amount to be'paid to Madison was “owed absolutely” and that Hunts Point had no defenses to payment.",
"Additionally, the NOPs stated that, by signing, Hunts Point “acknowledges that the [specific dollar amount] owing by [Hunts Point] to [Westway] shall be paid directly to [Madison]. This assignment may only be released by [Madison] and no action of [Westway] shall affect any of [Hunts Point’s] obligations to make payment directly to [Madison].” The NOP also states that “[t]he Undersigned [i.e., Hunts Point] acknowledges that payment to any party other than [Madison] will not constitute payment of indebtedness owing by [Hunts Point] to [Westway].” However, Madison did not attach an invoice to the first NOP, or any of the following NOPs it sent to Hunts Point. Reingold testified at trial that: I signed the first notice of purchase in I guess on March 1st. I had received the phone call from Gary Parker who I believe was the vice-president of Westway Industries.",
"He told me that he was in the area, needed to talk to me and could he stop up and see me. And a few minutes later he pulled into the Market and came up to my office, and presented this piece of paper to me and asked if I would sign it in connection with helping Westway obtain a loan for this project. I signed the document at that time. I asked him at the time when he would have more people on the job. We were getting a little frustrated and he had made some promises to us that they were going to be able to start immediately. He told me they needed some money. Money was paid up in some other jobs. If I could sign a requisition for them to get a loan, they would have people there a little quicker. So in connection with that, I signed the document. Additionally, Reingold testified in his pretrial deposition that “[i]t was certainly in Hunts Point’s interest to make sure that Westway was able to staff the job properly.",
"By signing the document, that is what I thought I was doing.” Reingold reiterated this sentiment at trial, testifying that he signed the first NOP because he believed he was helping Westway obtain a loan to acquire financing for the Project, which was in Hunts Point’s interest because he wanted construction to continue. Although Reingold said it was generally his practice to read documents before signing them on behalf of Hunts Point, he testified that he did not read the first NOP before signing it, nothing was attached to it, and *159he did not notice that the document’s caption said “notice of purchase of accounts receivable.” He testified that: I didn’t read it. I had no reason to believe what [Parker] was telling me would be incorrect. I took him at his word.",
"I thought it was going to be something that would help him do the job a little bit quicker and I signed the document.... I thought I was signing something acknowledging that we had a contract with them and then [Parker] was going to be able to go out and borrow money against that without committing Hunts Point to anything. That’s what I thought I was signing. Madison issued five more NOPs, and Westway, Hunts Point (via Reingold), and Madison executed four of them. The terms of NOPs two through five were identical to the first NOP, except that each reflected a different invoice amount that Hunts Point owed Madison. Reingold testified that he did not read NOPs two through five, did not retain copies of them, and did not inform anyone at Hunts Point that he had signed them. Reingold refused to sign the sixth NOP because of Hunts Point’s dissatisfaction with West-way’s performance on the Project.2 For the first NOP, Sneddon forwarded a funding request to Brewer-Rossi based on the February 28, 2000 requisition, which consisted of the documents Sneddon obtained and assembled before Madison advanced any funds, including various information related to the transaction and Hunts Point’s financial condition.",
"Sned-don testified that he followed the same procedure for funding each of the other four Hunts Point accounts from Westway. Brewer-Rossi funded each of the requisitions by arranging a wire transfer from Madison to Westway for approximately 70% of their face amount. She testified that Madison wire-transferred the money to Westway for the first five NOPs only after it received documentation that the NOP was executed by all three parties. In total, Madison advanced a total of $1,961,149.70 to Westway based on the Hunts Point accounts. Subtracting the amount wired for the sixth NOP, which Reingold never signed, Madison advanced $1,798,300.00 to Westway, including $250.00 in extra fees. D. Problems at Madison Sneddon, Marozzi, Brewer-Rossi, and Maguire all testified that at the time Sned-don received the assignments and signed the five NOPs for the Westway accounts, Madison was not aware that Westway was in default for any of its obligations to Hunts Point or that any of the requisitions was false or fraudulent. In fact, Hunts Point made regular payments on the NOPs from April 2000 to September 2000, including four checks payable to Westway that were endorsed to Madison totaling $1,358,565.00. Madison credited these payments toward the money Hunts Point owed on the Westway accounts.",
"Hunts Point made two additional payments payable to Westway that were endorsed to Service Capital, totaling $263,497.74, which Madison did not receive and did not credit. Hunts Point drew another check in the amount of $60,000.00 to the order of West-way that was also endorsed by Westway. Madison likewise did not receive or credit this check because the plain language of the NOPs did not allow Hunts Point to pay Westway directly for the amounts due on them. Madison received a cashier’s check dated September 25, 2000, in the amount of $200,000.00, and agreed to credit that *160sum to the Hunts Point account and reduce its damages claim accordingly.",
"Madison first learned of Hunts Point’s dissatisfaction with Westway’s work on the Project in September 2000. In a September 11, 2000 fax, Sneddon sent the sixth NOP to Hunts Point and Westway for signatures to approve a $233,000.00 advance from Madison to Westway, which Hunts Point refused to sign. Madison wire-transferred the advance to Westway before obtaining Hunts Point’s signature on the NOP. Hunts Point made its last payment to Westway on September 20, 2000. Reingold stated that by October 16, 2000, he had approved over $2 million of payments from Hunts Point to Westway under the parties’ two construction contracts relating to the Project. In a letter dated October 5, 2000, Hunts Point informed Westway that it was in default under one of the contracts and, in an October 12, 2000 letter, Westway denied that it was in default. In a December 20, 2000 letter, Madison informed Hunts Point that Westway had defaulted under the Purchase Agreement and advised Hunts Point that all money due to Westway was to be paid directly to Madison. One or more representatives from Madison called Hunts Point to demand payments on the outstanding accounts. Hunts Point denied that it owed money and made no payments to Madison.",
"Brewer-Rossi calculated the total amount Hunts Point still owed Madison as $1,010,435.00. In 1999 and 2000, Madison had approximately fifteen to twenty clients, including Westway. Fewer than two years after its formation, Madison discovered that Ma-guire was diverting payments to Service Capital. Brewer-Rossi and Marozzi became suspicious of certain defaulted account payments, and began their own internal investigation. They confronted Maguire with their findings in November 2000, and he confessed to stealing funds from Madison and promised to pay back the money he had taken.",
"Marozzi testified that Maguire committed a “massive fraud,” resulting in a financial loss to Madison of over $7.6 million. Around this time, Sneddon also discovered some troubling facts regarding Madison’s maintenance of the Westway accounts and, although he did not confront Westway directly with these findings, he relayed his concerns to Maguire and the individuals at Madison’s Pine Brook office, who told him they would “take care of it.” As a result of Madison’s discovery of his fraud, Maguire transferred his interest in Madison, as held through Service Capital, to Cherbrooke and the Morrocco Group by assignment on January 11, 2001.",
"He resigned from Madison and was barred from conducting any future business on its behalf. Eventually, Maguire and Service Capital executed a consent judgment for $1.3 million in favor of Madison, entered in the Superior Court of New Jersey. A New Jersey grand jury indicted Maguire on November 7, 2001, for first-degree money laundering, second-degree theft by deception and bad check charges, as well as offenses related to the money he stole from Madison. In 2002, Maguire was convicted of a felony based on the charges arising out of his operation and management of Madison from 1999 to 2000. E. Procedural History Madison filed its complaint against Hunts Point in the District Court, claiming collection of accounts under U.C.C. Article 9, breach of contract, and promissory es-toppel. Following discovery, Madison filed a motion for summary judgment, which the District Court denied on March 1, 2004, the day before trial commenced.",
"The District Court held a bench trial. On March 17, 2008, the District Court determined that Hunts Point was liable to Madison for breach of contract, concluding that the NOPs were valid and enforceable, and, in *161the alternative, determining that the doctrine of promissory estoppel would also render the NOPs enforceable. It declined to reach Madison’s U.C.C. Article 9 claims, stating that “damages would be no greater than those for liability for breach of contract” if it found Hunts Point liable under Article 9. The District Court ordered judgment in favor of Madison in the amount of $1,010,435.00, the full amount of its claim, plus post-judgment interest and costs to be taxed, but denied prejudgment interest to Madison. Hunts Point filed a timely notice of appeal. Madison filed a timely notice of cross-appeal, in which it seeks prejudgment interest of at least $396,830.11.",
"II. The District Court had subject matter jurisdiction over this diversity action pursuant to 28 U.S.C. § 1332(a). We exercise jurisdiction over this appeal under 28 U.S.C. § 1291. The “issue of contract formation invokes a mixed standard of appellate review. The district court’s factual findings, especially with respect to the parties’ intentions, will not be reversed unless the record demonstrates that they are clearly erroneous.” ATACS Corp. v. Trans World Comm’ns, 155 F.3d 659, 665 (3d Cir.1998); see also Fed.R.Civ.P.",
"52(a). “Similarly, the interpretation of contractual language to discern contractual intent is a factual question, which we will accordingly review under a clearly erroneous standard. Conclusions drawn with respect to the legal effect of any agreement, however, are questions of law and therefore subject to plenary review.” ATACS, 155 F.3d at 665 (citation omitted). Regarding Hunts Point’s other arguments, “[t]he district court’s findings of fact are subject to the clearly erroneous standard, and its conclusions of law are subject to plenary review.” Menichini v. Grant, 995 F.2d 1224, 1228 (3d Cir.1993). “As a federal court exercising diversity jurisdiction, we are obliged to apply state substantive law____” Id. at 1228 n. 2. Finally, with respect to Madison’s cross-appeal, “[w]e review a district court’s determination to require the payment of prejudgment interest for abuse of discretion.” Thabault v. Chait, 541 F.3d 512, 533 (3d Cir.2008) (citing Ambromo-vage v. United Mine Workers of Am., 726 F.2d 972, 982 (3d Cir.1984)). III.3 A. Contract Theories Hunts Point argues the District Court erred in holding that the NOPs were valid *162and enforceable contracts, asserting that they fail for lack of consideration, the invoices were false and unattached to the NOPs when Madison received the signed and delivered copies, and Madison waived its right to insist on payment from Hunts Point by knowingly allowing Hunts Point to pay Westway directly. We conclude, however, that Hunts Point breached its obligation to pay the amounts owing in the NOPs under contract principles.",
"Hunts Point argues the NOPs fail for lack of consideration because Westway had a preexisting duty to perform the construction contracts, the NOPs were not “bargained for in fact,” and Hunts Point did not receive the benefit of West-way completing its contractual duties as a result of its alternate funding source. Under New Jersey law, “[vjaluable consideration may take the form of either a detriment incurred by the promisee or a benefit received by the promisor.” Cont’l Bank of Pa. v. Barclay Riding Acad., Inc., 93 N.J. 153, 459 A.2d 1163, 1172 (1983). In a similar Connecticut case, which we find persuasive, a district court held that NOPs of accounts receivable were supported by consideration where the developer of a baseball stadium agreed to assign his debt to a factoring company through the NOPs and, in doing so, relinquished his right to pay the subcontractor directly for those debts.",
"See Brookridge Funding Corp. v. Nw. Human Servs., 175 F.Supp.2d 355 (D.Conn. 2001), modified, 2004 WL 1897004 (D.Conn. Aug. 18, 2004), modified, 2007 WL 1834175 (D.Conn. June 26, 2007) (Brookridge III), aff'd, 2009 WL 1174666 (2d Cir. May 1, 2009) (not published). The court held that the developer, in signing the NOPs, received the benefit of the subcontractor continuing construction on the stadium, as opposed to postponing the project to wait for the subcontractor’s original financing source, and that adequate consideration therefore rendered the NOPs enforceable. Brookridge III, 2007 WL 1834175, at * 1-3. Similarly, here, Reingold’s testimony indicates that he signed the NOPs based on his desire to expedite construction on the Project.",
"Although Westway already had a contractual duty to provide the construction services to Hunts Point, Reingold signed the NOPs to allow Hunts Point the additional benefit of Westway’s construction work occurring before it otherwise would have, absent sufficient funding. Furthermore, Madison, not Westway, advanced the funds, and thus the benefit, to Hunts Point, and Madison suffered a considerable detriment in advancing large sums of money to Westway. Therefore, consideration exists both as to the benefits Hunts Point received, and the detriments Madison suffered.4 Because we resolve this issue under contract principles, we need not decide whether the NOPs are also enforceable under the doctrine of promissory estoppel. *163Next, we agree with Madison that the NOPs are valid and enforceable despite being executed without the referenced invoices attached. Both parties agree that the dollar amount indicating the money Hunts Point owed Madison was present on the face of each NOP, and thus the essential term at issue was conspicuously available for interpretation by both Hunts Point and the District Court.",
"See Malaker Corp. Stockholders Protective Comm. v. First Jersey Nat'l Bank, 163 N.J.Super. 463, 395 A.2d 222, 227 (N.J.Super.Ct.App.Div.1978) (explaining that a contract is definite enough and contains essential terms when it enables a court to determine what “the promisor undertook to do”). Further, we find the case upon which Hunts Point relies for the proposition that the NOPs are invalid without the attached invoices distinguishable. See 21st Capital Corp. v. Tiffany & Co., No. A-2602-06T2, 2008 WL 313455 (N.J.Super.Ct.App.Div. Feb. 6, 2008). In contrast to the NOPs at issue here, the NOP-equivalent invoice in 21st Capital was wholly and clearly fraudulent. Id. at *2. We next consider Hunts Point’s argument that Madison waived its right to insist on strict compliance with the NOPs by knowingly allowing Hunts Point to pay Westway the amounts Madison insists were due to it. We disagree, in part, because Hunts Point never paid either Madison or Westway the majority of the money at issue, and thus Madison has not waived Hunts Point’s nonpayment of that amount under any theory. However, we find persuasive Hunts Point’s argument that the District Court should have credited two additional payments Hunts Point made to Westway when it calculated the amount of Madison’s damages. Hunts Point made the August 2000 and September 2000 payments directly to Westway, exactly as it had done with the four earlier checks, but Westway endorsed the checks to Service Capital rather than Madison.",
"Madison did credit four earlier payments Hunts Point had made to Westway that were subsequently endorsed to Madison. Because Maguire owned Service Capital, Service Capital was an original corporate member of Madison, it shared Madison’s Bridgewater, New Jersey office with Ma-guire and Sneddon, and Maguire used Service Capital as a vehicle through which he perpetrated his fraud, we conclude that Hunts Point should not bear the loss for the two payments that were improperly diverted from Westway to Service Capital. Thus, we will reduce Madison’s damages award by $263,497.74 to credit Hunts Point for the two checks it made payable to Westway that were endorsed to Service Capital, but will otherwise affirm the District Court’s calculation of damages. B. Hunts Point’s U.C.C. Article 9 Defenses Hunts Point argues that the District Court should have applied the principles of the New Jersey adaptation of U.C.C. Article 9, see N.J. Stat.",
"Ann. § 12A:9-403(b), in resolving this case. This would have allowed Hunts Point to assert defenses against Westway and would have resulted in a finding that Hunts Point was not liable to Madison. Madison contends that it claimed Article 9 collection of accounts as an additional ground for relief against Hunts Point and, because the District Court found Hunts Point liable under contract law, it was unnecessary to reach Madison’s Article 9 arguments, and therefore the District Court properly refused to consider Hunts Point’s corresponding Article 9 defenses. The parties do not dispute that Article 9 applies to the NOPs at issue, but rather contest whether Hunts Point’s Article 9 defenses provide it any appellate relief in light of Hunts Point’s contractual liability to Madison. We agree with Madison that the District Court did not err in declining *164to reach Hunts Point’s Article 9 defenses in light of not deciding the preliminary issue of whether Hunts Point was liable to Madison under Article 9. Further, we are not persuaded by any case law Hunts Point has advanced that we are required to consider a defense to the statute absent a finding of liability under § 12A:9^03(b).",
"Hunts Point argues that the District Court acknowledged in another case that “it appears that [Article 9] would apply under the New Jersey Appellate Division’s recent decision in 21st Capital.” Capitalplus Equity, LLC v. Prismatic Dev. Corp., No. 07-321, 2008 WL 2783339, *5 (D.N.J. July 16, 2008). However, as we explained earlier, we find 21st Capital factually distinct from the instant case, and we also find Capital-plus distinguishable because the defendant in that case never signed a waiver of defenses clause in its NOP-equivalent form, as Reingold did. Id. at *4, *8. Because Hunts Point has failed to convince us that we must apply Article 9 to resolve the instant appeal, and because it waived its defenses in signing the NOPs, our review of its U.C.C. claim would thus result in the same outcome as our analysis under common law contract principles. We therefore reject Hunts Point’s arguments that it should be relieved of liability based on its purported Article 9 defenses.5 C. Prejudgment Interest Madison cross-appeals the District Court’s denial of an award of prejudgment interest.",
"We review this decision for abuse of discretion and, under New Jersey law,6 a “district court may exercise [its] discretion [to award prejudgment interest] upon ‘considerations of fairness’ and prejudgment interest may be denied ‘when its exaction would be inequitable.’ ” Thabault, 541 F.3d at 533 (quoting Ambromovage, 726 F.2d at 982). “[T]he purpose of prejudgment interest is to ‘compensate the plaintiff for the loss of income that would have been earned on the judgment had it been paid earlier.’ ” Id. (quoting Ruff v. Weintraub, 105 N.J. 233, 519 A.2d 1384, 1390 (1987)). “[T]he award of prejudgment interest on contract and equitable claims is based on equitable principles.” County of Essex v. First Union Nat’l Bank, 186 N.J. 46, 891 A.2d 600, 608 (2006).",
"Further, “[t]he trial court is vested with substantial discretion to award or deny pre-judgment interest in contract cases, and its exercise of such discretion will be sustained on appeal unless it consti*165tutes a manifest denial of justice.” P.F.I., Inc. v. Kulis, 363 N.J.Super. 292, 832 A.2d 931, 936 (N.J.Super.Ct.App.Div.2003). Thus, we consider not whether we would have weighed the equities differently than the District Court did, but whether it abused its discretion in making its own determination. On these facts, we cannot conclude that it did. IV. For the aforementioned reasons, we will affirm the District Court’s order on the grounds that the five NOPs at issue are valid and enforceable contracts. However, we will reduce Madison’s damages in the amount of $263,497.74 to credit Hunts Point for two additional payments it made to Westway. Finally, we will affirm the District Court’s denial of prejudgment interest to Madison.",
". Factoring is defined as ”[t]he buying of accounts receivable at a discount,” where \"[t]he price is discounted because the factor (who buys them) assumes the risk of delay in collection and loss on the accounts receivable.” Black’s Law Dictionary 630 (8th ed. 2004). An account receivable is \"[a]n account reflecting a balance owed by a debtor; a debt owed by a customer to an enterprise for goods or services.” Id. at 18. . Madison did not seek recovery in the form of damages for the amount in the sixth NPO in its case before the District Court. . Whether Madison engaged in fraudulent conduct influences much of our analysis. Hunts Point argues that the District Court erroneously found that Madison did not participate in Westway’s factoring of false invoices and did not know or should not have known of this fraud.",
"Based on our review of the facts, we cannot conclude that the District Court clearly erred in its findings, and thus reject Hunts Point’s arguments along those lines. While it is clear that Maguire committed fraud while a principal at Madison, we are not convinced that Madison or its other employees knew or should have known of his pervasive fraud. Our conclusion that the District Court’s determination of the facts was largely correct underlies our legal conclusions. See Fed.R.Civ.P. 52(a)(6); see also Anderson v. Bessemer City, 470 U.S. 564, 573-76, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Further, Hunts Point argues that the District Court erred in failing to bind Madison by the acts of its agents, Sneddon and Maguire. Because we find it questionable whether Sneddon had knowledge of any fraud in the invoices he factored on the Hunts Point accounts, we conclude that the District Court did not err in finding insufficient evidence that the NOPs were fraudulent or that Sneddon had knowledge of fraud when preparing the paperwork for the Hunts Point NOPs.",
"Additionally, Maguire’s massive fraud was not within the scope of his employment at Madison because his acts were clearly criminal and not in his employer’s interest. See Gotthelf v. Prop. Mgmt. Sys., Inc., 189 N.J.Super. *162237, 459 A.2d 1198, 1199-1200 (N.J.Super.Ct.App.Div.1983). . To the extent that Hunts Point argues Rein-gold was fraudulently induced to sign the NOPs by Westway’s employees’ representations, we disagree. The evidence does not demonstrate that Westway made specific misrepresentations on which Reingold relied, nor does it show that anyone prevented Reingold from reading the NOPs to ascertain their meaning himself, or that Reingold was unable to ask Sneddon about their import during the March 2, 2000 phone call or on his own initiative. See Gras v. Assocs. First Capital Corp., 346 N.J.Super. 42, 786 A.2d 886, 894 (N.J.Super.Ct.App.Div.2001) (\"Failing to read a contract does not excuse performance unless fraud or misconduct by the other party prevented one from reading.” (internal quotation marks omitted)). Therefore, we need not reach the civil procedure issue of whether Hunts Point effectively raised the defense of fraudulent inducement before the District Court.",
". Nevertheless, even if we agreed with Hunts Point that we should consider its Article 9 defenses, that does not mean it would prevail on such an argument. Hunts Point argues that Westway's assignment of the NOPs to Madison was not enforceable under N.J. Stat. Ann. § 12A:9-403(b) because Madison was not a holder in due course of the NOPs. The statute reads: [A]n agreement between an account debtor and an assignor not to assert against an assignee any claim or defense that the account debtor may have against the assignor is enforceable by an assignee that takes an assignment: (1) for value; (2) in good faith; (3) without notice of a claim of a property or possessory right to the property assigned; and (4)without notice of a defense or claim in recoupment of the type that may be asserted against a person entitled to enforce a negotiable instrument under 12A:3-305 a [i.e., a holder in due course].",
"N.J. Stat. Ann. § 12A:9-403(b) (formerly N.J. Stat. Ann. § 9-206); see also N.J. Stat. Ann. § 12A: 9-109(a)(3). Although we need not, and will not, undertake a full analysis of each factor in the statute because we have already decided this appeal under contract principles, we express doubt that such an inquiry would prove fruitful for Hunts Point — particularly because it waived any defenses in signing the NOPs. .",
"In a diversity action, we apply state law in determining prejudgment interest. Jarvis v. Johnson, 668 F.2d 740, 746 (3d Cir.1982)."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8438705/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
For use at 10:00 a.m., EDT July 15, 2014
MONETARY POLICY REPORT July 15, 2014
Board of Governors of the Federal Reserve System On July 30, 2014, the data in figure 17 were corrected to extend through 2014:Q1, as originally noted. LETTER OF TRANSMITTAL
BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM
Washington, D.C., July 15, 2014
THE PRESIDENT OF THE SENATE THE SPEAKER OF THE HOUSE OF REPRESENTATIVES
The Board of Governors is pleased to submit its Monetary Policy Report pursuant to section 2B of the Federal Reserve Act.
Sincerely,
Janet L. Yellen, Chair MONETARY POLICY REPORT: JULY 2014 15
Productivity growth has been modest 28. Change in output per hour
In general, gains in labor productivity have been Percent, annual rate
modest in recent years. Output per hour in the nonfarm business sector has risen at an annual 4 rate of less than 1½ percent since 2007, well below the pace of gains observed over the late 1990s and 3 early 2000s (figure 28). The relatively slow pace of productivity growth likely reflects, in part, the 2 sustained weakness in capital investment over the recession and recovery period, and productivity 1 gains may be better supported in the future as outlays for productivity-enhancing capital equipment strengthen. 1948– 73 1974– 95 1996– 2000 2001– 07 2008– present NOTE: The data are for the nonfarm business sector. Changes for the first Financial Developments four periods are measured from Q4 of the year immediately preceding the period through Q4 of the final year of the period. The final period is measured from 2007:Q4 through 2014:Q1. The expected path for the federal funds SOURCE: Department of Labor, Bureau of Labor Statistics.
rate edged down Market-based measures of the expected path of the federal funds rate through late 2017 edged down, on balance, over the first half of the year. After accounting for transitory factors such as weather, market participants appeared to judge the incoming economic data as somewhat better than they had expected but as still continuing to point to subdued inflationary pressures and an accommodative policy stance by the FOMC. The relatively small movements of the market-based measures are consistent with the results of the most recent Survey of Primary Dealers and the pilot survey of market participants, each conducted just prior to the June FOMC meeting by the Open Market Desk at the Federal Reserve Bank of New York. Those surveys suggest that dealers and buy- side respondents both anticipate that the initial increase in the target federal funds rate from its current range will occur in the third quarter of 2015, slightly earlier than dealers had anticipated at the beginning of this year and about the same as what buy-side respondents had anticipated.7
7. The results of the Survey of Primary Dealers and of the pilot survey of market participants are available on the Federal Reserve Bank of New York’s website at www. newyorkfed.org/markets/primarydealer_survey_questions. html and www.newyorkfed.org/markets/pilot_survey_ market_participants.html, respectively. 16 PART 1: RECENT ECONOMIC AND FINANCIAL DEVELOPMENTS
The Slow Recovery of Housing Activity Partly because of its sensitivity to interest rates, Despite these headwinds, housing activity began investment in residential structures has often played an to recover in late 2011, supported by declining important role in jump-starting economic recoveries, unemployment, record-low longer-term interest rates, even though it has constituted less than 5 percent and improving confidence in the economic recovery. of gross domestic product (GDP), on average, since Single-family housing starts and sales of existing homes World War II. For example, in 1983, coming out of a both trended up in 2012 and continued to do so severe double-dip recession, residential investment through mid-2013 (figures A and B). During this period, rose 50 percent and contributed 1.7 percentage points multifamily construction recovered to its average pace to GDP growth. But the recent recovery period has in the 1990s and early 2000s, supported by a shift in been quite different from previous episodes, even with the composition of demand toward rental units driven interest rates at historically low levels. In 2010 and by many of the same factors that have constrained the 2011, the first two years of the recovery, residential single-family, owner-occupied sector. All told, from investment contributed essentially nothing, on average, the fourth quarter of 2011 through the second quarter to the growth of real GDP. Even after rising noticeably of 2013, residential investment (as measured in the in 2012 and the first half of 2013, real residential national income and product accounts) grew at an investment remains 45 percent below its pre-recession average annual rate of nearly 15 percent. All of the peak. The lack of a rapid housing recovery has major components of residential investment—including also affected the labor market: Employment in the construction of new single-family and multifamily construction sector is still more than 1.6 million lower homes, improvements to existing structures, and than the average level in 2006. brokers’ commissions and fees—made sizable positive The failure of residential construction to significantly contributions to investment growth over the period boost the current recovery likely reflects a number of (figure C). headwinds. First, a much tighter supply of mortgage In spite of this positive momentum, the recovery credit in the aftermath of the housing bubble, stalled in mid-2013 in the wake of a spike in mortgage particularly for prospective borrowers with low credit interest rates that sharply reduced housing affordability scores, has crimped demand for owner-occupied (figure D). Permits for single-family construction—the housing. Second, the slow recovery of the labor market best gauge of underlying activity in the sector—have has significantly reduced the pace of new household been roughly flat over the past year. Meanwhile, formation, as young adults in particular have become existing home sales have fallen almost 10 percent more likely to live with their parents or other relatives. from their recent highs. Residential investment turned Third, the relatively rapid recovery of house prices, even sharply negative for two successive quarters around the as construction remains far below trend, suggests that turn of the year. Measures of builder, real estate agent, constraints on new housing supply also have played a and homebuyer sentiment have also deteriorated. role. These constraints may include shortages of skilled Arguably, the only bright spot of late has been the data labor and buildable lots, implying that some time may on multifamily starts and permits, which are noisy but be required to shift resources back into the sector. appear to have continued to trend higher on net.
A. Private housing starts and permits B. Pending home sales index and existing home sales
Monthly Millions of units, annual rate Thousands, annual rate Index, 2001 = 100
Existing home sales 2.2 130 7,000 Single-family starts 1.8 120 Pending home sales 1.4 6,000 110
1.0 100 Single-family 5,000 permits .6 90 4,000 Multifamily starts .2 80
2006 2008 2010 2012 2014 2002 2004 2006 2008 2010 2012 2014 NOTE: The data extend through May 2014. NOTE: The data are monthly and extend through May 2014. Total existing SOURCE: Department of Commerce, Bureau of the Census. home sales includes single-family and condo and co-op sales. SOURCE: National Association of Realtors. MONETARY POLICY REPORT: JULY 2014 17
C. Contribution to growth in total residential investment
Percent change, annual rate
20
15
10
5 + 0_
5
Single-family 10 Multifamily Commissions 15 Improvements Other 20 Sum 25
2011 2012 2013 2014 SOURCE: Department of Commerce, Bureau of Economic Analysis.
While the most obvious explanation for the would be suggested by historical experience, especially weakness in the housing market over the past year is because an interest rate rise of that magnitude, with the run-up in mortgage rates during the spring and rates so low and housing activity so depressed, is summer of 2013, it seems unlikely that interest rates unprecedented. Alternatively, ongoing increases in are the whole story. Historical correlations between house prices may indicate that constraints on the mortgage rates and residential investment suggest that supply of new housing are binding more significantly the effects of last year’s run-up should have begun to than seemed to be the case in 2012, when residential fade by now, but housing activity has yet to pick up. investment rose fairly rapidly. Finally, the downturn Moreover, since last summer, mortgage rates have in existing home sales, which has had a particularly retraced a portion of their earlier increases without any pronounced effect on total residential investment via noticeable improvement in activity. brokers’ commissions, may reflect factors specific to Even so, it is possible that the interest rate spike the resale market; in particular, short sales and sales of may have had a larger and longer-lasting effect than foreclosed properties have declined markedly over the past couple of years. D. Mortgage rates and housing affordability Regardless of what explains the recent weakness, the level of new home construction likely remains Percent Index much too low to be sustainable. Prior to the housing Mortgage rate boom and bust, an average of roughly 1¾ million 205 7 housing units were started per year.1 In comparison, 185 only about 1 million units were started in 2013, despite 6 Housing the recovery of multifamily starts to pre-recession 165 affordability levels. It is difficult to judge when construction will index 5 145 resume its upward trend or, given all of the changes in 125 the housing market in recent years, at what level it will 4 stabilize. That said, the Census Bureau projects that 105 the adult population will continue to grow by roughly 3 85 2 million per year over the next two decades; with that rate of population growth, the pace of construction 2006 2008 2010 2012 2014 seems likely to rise from current levels. NOTE: The housing affordability index data are monthly through April 2014 and the mortgage rate data are weekly through July 9, 2014. At an index value of 100, a median-income family has exactly enough income to qualify for a median-priced home mortgage. Housing affordability is seasonally 1. This figure is calculated using data from 1960 to 2000 adjusted by Board staff. and includes single-family and multifamily construction as SOURCE: For housing affordability index, National Association of Realtors; well as shipments of new mobile homes. for mortgage rate, Freddie Mac Primary Mortgage Market Survey and Loansifter. 18 PART 1: RECENT ECONOMIC AND FINANCIAL DEVELOPMENTS
29. Yields on nominal Treasury securities Finally, while some forward measures of policy rate uncertainty have risen, overall policy rate Daily Percent uncertainty has generally remained relatively low. 7
6 However, Treasury yields declined 10-year 30-year 5 significantly, especially at longer maturities, as have sovereign bond yields 4 in other advanced economies 5-year 3
2 After rising notably over the spring and summer months of 2013, yields on longer- 1 term Treasury securities drifted down over the 0 first half of 2014 and now stand at fairly low 2000 2002 2004 2006 2008 2010 2012 2014 levels by historical standards (figure 29). In NOTE: The Treasury ceased publication of the 30-year constant maturity particular, while the yield on 5-year nominal series on February 18, 2002, and resumed that series on February 9, 2006. Treasury securities edged down only about SOURCE: Department of the Treasury. 5 basis points from its level at the end of December 2013, the yields on the 10- and 30-year securities decreased about 50 basis 30. Yield and spread on agency mortgage-backed securities points and 60 basis points, respectively. The decline in longer-term yields reflects a notable Percent Basis points reduction in longer-horizon forward rates, with 9 400 the 5-year-forward rate 5 years ahead dropping 8 350 about 105 basis points since year-end. Five- Yield year-forward inflation compensation over this 300 7 250 period declined 20 basis points, implying that 6 200 much of this reduction in nominal forward 5 150 rates was concentrated in forward real rates. 4 100 Yields on 30-year agency mortgage-backed 3 Spread 50 securities (MBS) decreased about 35 basis 2 0 points, on balance, over the same period (figure 30). 2000 2002 2004 2006 2008 2010 2012 2014 NOTE: The data are daily. Yield shown is for the Fannie Mae 30-year Long-term benchmark sovereign yields in current coupon, the coupon rate at which new mortgage-backed securities would be priced at par, or face, value. Spread shown is to the average of the advanced foreign economies (AFEs) have 5- and 10-year nominal Treasury yields. also moved down since late last year, with SOURCE: Department of the Treasury; Barclays Live. particularly marked reductions in the euro area (figure 31). Market participants have pointed to several potential explanations for the declines in U.S. and foreign yields. One possible explanation is that market participants have lowered their expectations for future short-term interest rates around the globe. This downward adjustment in expectations may be due to a combination of a lower assessment of the global economy’s long-run potential growth rate and a decrease in long-run inflation expectations. Indeed, the lower yields in the euro area are consistent MONETARY POLICY REPORT: JULY 2014 19
with indications of declining inflation and 31. 10-year nominal benchmark yields in advanced weak growth in the euro area in recent foreign economies months, bolstering expectations that the Daily Percent European Central Bank (ECB) would loosen its monetary policy, as it eventually did at its 3.5 meeting in early June. 3.0
2.5 In addition, term premiums—the extra return United Kingdom Germany investors expect to obtain from holding 2.0 longer-term securities as opposed to holding 1.5 and rolling over a sequence of short-term 1.0 securities for the same period—may have come Japan
down, reflecting several potential factors. .5
One potential factor is a reduction in the 2012 2013 2014 amount of compensation for interest rate risk SOURCE: Bloomberg. that investors require to hold fixed-income securities, likely due in part to perceptions that uncertainty about the outlook for monetary policy and economic growth has decreased; indeed, swaption-implied volatility on longer- term rates has fallen noticeably since the beginning of the year. Another potential factor is increased demand for Treasury securities from price-insensitive investors, such as pension funds and commercial banks. Lastly, in light of the notable co-movements between forward interest rates at longer horizons in the United States and other advanced economies, it appears likely that there is a global component of term premiums that is affected not only by U.S. developments, but also by foreign developments, such as investors becoming increasingly confident that policy 32. Equity prices rates at the major foreign central banks will remain low for an extended period. Daily December 31, 2007 = 100
140 Broad equity price indexes increased further, and risk spreads on corporate Dow Jones bank index 120
debt declined 100
Although equity investors appeared to pull 80 back from the market for a time early in the 60 year in reaction to concerns about the strength S&P 500 index 40 of some EMEs and the possible implications for global growth, broad measures of U.S. 20
equity prices have posted solid gains of 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014 6 percent since the beginning of 2014, on SOURCE: Dow Jones bank index; Standard & Poor's 500 index via balance, after having risen 30 percent in 2013 Bloomberg. (figure 32). Overall, equity investors appeared 20 PART 1: RECENT ECONOMIC AND FINANCIAL DEVELOPMENTS
to become more confident in the near-term economic outlook amid somewhat better-than- expected economic data releases, declining longer-term interest rates, and upward revisions to expected year-ahead earnings per share for firms in the S&P 500 index.
Some broad equity price indexes have increased to all-time highs in nominal terms since the end of 2013. However, valuation measures for the overall market in early July were generally at levels not far above their historical averages, suggesting that, in aggregate, investors are not excessively optimistic regarding equities. Nevertheless, valuation metrics in some sectors do appear substantially stretched—particularly those for smaller firms in the social media and biotechnology industries, despite a notable downturn in equity prices for such firms early in the year. Moreover, implied volatility for the overall S&P 500 index, as calculated from option prices, has declined in recent months to low levels last recorded in the mid-1990s and mid-2000s, reflecting improved market sentiment and, perhaps, the influence of “reach for yield” behavior by some investors.
Credit spreads in the corporate sector have also declined, on balance, in recent months. After having temporarily increased early in the year, the spreads of yields on corporate bonds to yields on Treasury securities of comparable maturities ended the first half of the year about unchanged or a bit narrower. Credit spreads on high-yield corporate bonds are near the bottom of their range over the past decade. While spreads on syndicated loans have changed little this year, they are also relatively low. For further discussion of asset prices and other financial stability issues, see the box “Developments Related to Financial Stability.”
Treasury market functioning and liquidity conditions in the MBS market were generally stable . . . Indicators of Treasury market functioning remained stable amid ongoing reductions in the pace of the Federal Reserve’s asset MONETARY POLICY REPORT: JULY 2014 21
purchases over the first half of 2014. In particular, liquidity conditions in Treasury markets remained stable, with bid–asked spreads in the Treasury market staying in line with recent averages. In addition, the Treasury’s first-ever auction of a Floating Rate Note in January was well received, as were subsequent auctions of those notes.
Liquidity conditions in the MBS markets were also generally stable, though there have been 33. Dollar-roll-implied financing rates (front month), some signs of scarcity of certain securities, as Fannie Mae 30-year evidenced by somewhat low levels of implied Daily Percent financing rates in the production-coupon “dollar roll” markets during the first half Fails charge Fails charge announced implemented 1.0 of this year. However, the implied financing .5 4.0 percent rates rose in recent days, suggesting easing of coupon + 0_ settlement pressures in these markets of late (figure 33).8 Gross issuance of these securities .5 remained somewhat lower than in the past 1.0 two years, reflecting relatively low mortgage 3.5 percent 1.5 originations. coupon 2.0 . . . and short-term funding markets also continued to function well 2011 2012 2013 2014 NOTE: The 4.0 percent coupon data series begins on June 1, 2012. Conditions in short-term dollar funding SOURCE: J.P. Morgan.
markets also remained stable during the first half of 2014. Early in the year, yields on Treasury bills maturing between late February and mid-March of 2014—those that could have been affected by delayed payments if a debt ceiling agreement had not been reached—were elevated for a time, but those yields declined in mid-February in response to news of pending legislation to suspend the debt ceiling until March 2015. The federal funds rate remained at very low levels, and broader measures of unsecured dollar bank funding costs, such as the LIBOR, or London
8. Dollar roll transactions consist of a purchase or sale of agency MBS with the simultaneous agreement to sell or purchase substantially similar securities on a specified future date. The Federal Reserve engages in these transactions as necessary to facilitate settlement of its agency MBS purchases. During April and May, the Open Market Desk transitioned purchases of agency MBS to FedTrade, the Desk’s proprietary trading system that uses multiple- price competitive auctions. 22 PART 1: RECENT ECONOMIC AND FINANCIAL DEVELOPMENTS
Developments Related to Financial Stability Pressures within the U.S. financial system that could conjunction with other federal agencies, is working leave it vulnerable to adverse events do not appear to to enhance compliance with previous guidance on have increased appreciably this year. In the current issuance, pricing, and underwriting standards.1 economic environment, the Committee views low The financial strength of the banking sector has interest rates as necessary to support progress toward continued to improve. Bank holding companies price stability and maximum sustainable employment. (BHCs) have pushed up their regulatory capital ratios, Policymakers have noted the possibility that a continuing a trend seen since the first set of government prolonged period of low interest rates may provide stress tests in 2009. The sector’s aggregate Tier 1 incentives for some investors to “reach for yield,” and common equity ratio, which compares high-quality those actions could increase vulnerabilities in the capital to risk-weighted assets for all BHCs, has more financial system. Asset prices for real estate, equities, than doubled, from 5.5 percent in the fourth quarter and corporate bonds have risen and valuation measures of 2008 to 11.7 percent in the first quarter of 2014. In have increased, but valuations have remained generally addition, all of the domestic systemically important in line with historical norms. Moreover, despite brisk banking organizations met their minimum Tier 1 borrowing by the business sector, aggregate private common equity ratios, including the capital surcharge, nonfinancial debt has increased at only a moderate required under Basel III rules. Moreover, BHCs have pace, and the financial strength of the banking sector continued to strengthen their liquidity positions in has continued to improve. Substantial progress has recent quarters and have become less reliant on been made to reduce structural vulnerabilities in the wholesale short-term funding. financial system, although this work is ongoing. Strong capital and liquidity positions help ensure With regard to asset valuations, house prices have that banking organizations have the ability to lend to continued to increase, but, for the most part, these households and businesses and to continue to meet increases have left aggregate price-to-rent ratios within their financial obligations, even in times of economic historical norms. Moreover, growth in residential difficulty. Results of the most recent set of stress tests mortgage debt has remained anemic, suggesting that were released in March 2014. Thirty BHCs participated the recent increases are not fueled by excessively in the stress tests. These institutions have a combined aggressive lending conditions. More broadly, aggregate $13.5 trillion in assets, or approximately 80 percent measures of the household debt burden appear of all U.S. BHC assets. The Dodd-Frank Act stress test reasonable despite recent rapid growth in auto lending (DFAST), mandated by the Dodd-Frank Wall Street and student loans, which has strained some borrowers, Reform and Consumer Protection Act of 2010, and the particularly those in the lower half of the income Comprehensive Capital Analysis and Review (CCAR) distribution. continue to enhance supervisors’ understanding However, signs of risk-taking have increased in of the underlying processes used by each BHC to some asset classes. Equity valuations of smaller firms assess the adequacy of the size and composition as well as social media and biotechnology firms appear to be stretched, with ratios of prices to forward earnings remaining high relative to historical norms. 1. In March 2013, the Federal Deposit Insurance Corporation, the Federal Reserve, and the Office of the Beyond equities, risk spreads for corporate bonds Comptroller of the Currency issued joint supervisory guidance have narrowed and yields have reached all-time lows. on leveraged lending practices, which became effective in Issuance of speculative-grade corporate bonds and May 2013. Since that time, there has been strong supervisory leveraged loans has been very robust, and underwriting follow-up to ensure compliance, in the form of supervisory reviews throughout 2014 and the issuance of supervisory standards have loosened. For example, average debt- letters, including specific Matters Requiring Attention. See to-earnings multiples have risen, and the share rated Board of Governors of the Federal Reserve System, Division B or below has moved up further for leveraged loans. of Banking Supervision and Regulation (2013), “Interagency The Federal Reserve continues to closely monitor Guidance on Leveraged Lending,” Supervision and Regulation developments in the leveraged lending market and, in Letter SR 13-3 (March 21), www.federalreserve.gov/ bankinforeg/srletters/sr1303.htm. MONETARY POLICY REPORT: JULY 2014 23
of its capital relative to the risks it faces. Under the continue improving the resiliency of the financial “severely adverse” DFAST scenario, all but one of the system. Some regulatory reforms taken since the participating BHCs exceeded minimum capital previous Monetary Policy Report are highlighted requirements. Furthermore, under CCAR, the Federal here. Pursuant to section 165 of the Dodd-Frank Reserve Board granted nonobjections to the capital Act, the Federal Reserve Board approved a final rule plans of 24 BHCs.2 strengthening the supervision and regulation of large Recent results from the Senior Credit Officer U.S. BHCs and foreign banking organizations. The Opinion Survey on Dealer Financing Terms indicate rule establishes enhanced prudential standards with that the use of financial leverage by respondents’ respect to capital, liquidity, and risk management. It counterparties to purchase securities has not changed also requires foreign banking organizations with a notably in recent quarters, although demand for significant U.S. presence to establish an intermediate financing commercial mortgage-backed securities holding company over their U.S. subsidiaries, which and collateralized loan obligations (CLOs) has been will facilitate consistent supervision and regulation of rising recently. However, aggregate measures of the the U.S. operations of these foreign banks. use of short-term wholesale funding to finance assets Furthermore, together with other federal agencies, remained roughly unchanged over the past couple of the Federal Reserve Board adopted a final rule to years. Similarly, securitization, which continues to be strengthen the leverage ratio standards for the largest, an important means of financing, has been modest, most interconnected U.S. banking organizations. The though issuance of CLOs has increased. final rule applies to top-tier U.S. BHCs with more than Moving beyond recent developments, important $700 billion in consolidated total assets or more than structural vulnerabilities remain that could leave the $10 trillion in assets under custody and to their insured U.S. financial system exposed to adverse events. depository institution subsidiaries. These BHCs must Despite the increase in resilience within the banking maintain a leverage buffer greater than 2 percentage sector highlighted by the stress tests, the broader points above the minimum supplementary leverage financial system remains highly interconnected. While ratio requirement of 3 percent, for a total of more than stronger capital and liquidity positions in the banking 5 percent, to avoid restrictions on capital distributions sector should help reduce the consequences of this and discretionary employee bonus payments. Insured structural vulnerability, the Federal Reserve nevertheless depository institution subsidiaries of these BHCs must continues to encourage firms to better manage their maintain at least a 6 percent supplementary leverage exposures to large counterparties and to improve their ratio to be considered “well capitalized” under the recovery and resolution plans. The Federal Reserve agencies’ prompt corrective action framework. The is also working to strengthen the infrastructure of final rule has an effective date of January 1, 2018. The derivatives markets—for instance, by working with Federal Reserve Board is also working on proposals for other agencies on rules to establish initial and variation additional risk-based capital surcharges and long-term margin requirements for over-the-counter derivatives debt requirements for global, systemically important transactions. The potential for runs on money market banking organizations based in the United States. mutual funds in the event of a severe liquidity or credit The Federal Reserve Board also issued a notice shock remains significant, and this risk will continue to of proposed rulemaking to implement section 622 pose a threat to financial stability until further structural of the Dodd-Frank Act. Section 622 establishes a reforms are adopted, as recommended by the Financial financial-sector concentration limit that prohibits a Stability Oversight Council. financial company from merging with, acquiring, or The Federal Reserve has taken a number of steps to consolidating with another company if the ratio of the resulting financial company’s liabilities to the aggregate 2. Initially, the Federal Reserve Board granted nonobjections consolidated liabilities of all financial companies to the capital plans of 25 firms, but the nonobjection granted exceeds 10 percent. The proposed rule spells out the to the 25th firm was withdrawn after that firm restated its details involved in calculating the limit. capital position. 24 PART 1: RECENT ECONOMIC AND FINANCIAL DEVELOPMENTS
interbank offered rate, remain at very low levels, reflecting the absence of major funding pressures.
Money market participants continued to focus on the Federal Reserve’s testing of its monetary policy tools. Daily awards at the overnight reverse repurchase agreement (ON RRP) exercise have ranged between about $50 billion and about $340 billion since early 2014. The number of counterparties participating and the dollar volume of take- up have been sensitive to the spread between market rates for repurchase agreements and the fixed ON RRP rate offered in the exercise.9 Indeed, take-up has been large at quarter-ends, when balance sheet adjustments by financial institutions tend to limit other investment options. Experience to date suggests that ON RRP operations have helped establish a floor on money market interest rates. Testing of the Term Deposit Facility, as well as take- up of and participation in its test offerings, has expanded during the first half of 2014. (For further discussion of the testing of monetary policy tools, see the box “Planning for Monetary Policy Implementation during Normalization” in Part 2.)
The condition of financial institutions improved further, although profitability remained below its historical average Regulatory capital ratios at bank holding companies (BHCs) increased further during the first half of 2014, and measures of bank liquidity remained robust. In addition, credit quality at BHCs continued to improve across major loan categories, and the ratios of loss reserves to delinquencies and to charge-offs each edged up. At the same time, standard
9. Fixed-rate ON RRP operations were first authorized by the FOMC at the September 2013 meeting, and were reauthorized in January 2014, for the purpose of assessing operational readiness. The Committee authorized the Open Market Desk to conduct such operations involving U.S. government securities and securities that are direct obligations of, or fully guaranteed as to principal and interest by, any agency of the United States. MONETARY POLICY REPORT: JULY 2014 25
measures of the profitability of BHCs have 34. Profitability of bank holding companies been little changed for the past six months Percent, annual rate Percent, annual rate (figure 34). Profitability of these companies Return on assets remained below its historical average, in part 1.5 20 because of subdued income from mortgage 1.0 and trading businesses and compressed 10 .5 net interest margins at large banks. A few + Return on equity + large banks have also incurred sizable costs 0_ 0_
from legal settlements associated with the .5 10 origination of mortgages prior to the recent 1.0 financial crisis. Aggregate credit provided by 20 1.5 commercial banks grew at a solid pace in the first half of 2014 (figure 35). The increase was 1998 2000 2002 2004 2006 2008 2010 2012 2014 driven by a pickup in loan growth and a rise NOTE: The data, which are seasonally adjusted, are quarterly. in holdings of U.S. Treasury securities that SOURCE: Federal Reserve Board, Reporting Form FR Y-9C, Consolidated Financial Statements for Bank Holding Companies. was reportedly influenced by banks’ efforts to meet new liquidity regulations. Equity 35. Change in total bank credit prices of large domestic banks increased a Quarterly 4-quarter percent change bit from the beginning of the year, on net, but underperformed the overall market, as 15 shown in figure 32. Credit default swap (CDS) spreads for large BHCs remain low. 10
5 Among nonbank financial institutions, equity + prices of insurance companies have also 0 _ increased slightly, on net, since the beginning 5 of the year. Nonbank financial institutions continued to grow at a very strong pace, as 10
assets under management at hedge funds and private equity groups each reached record 1993 1996 1999 2002 2005 2008 2011 2014
highs, reflecting modest increases in asset NOTE: The data are seasonally adjusted and extend through 2014:Q2. SOURCE: Federal Reserve Board, Statistical Release H.8, “Assets and values as well as net inflows. Nevertheless, Liabilities of Commercial Banks in the United States.” in response to the Federal Reserve Board’s 36. Change in use of financial leverage by hedge funds Senior Credit Officer Opinion Survey on Dealer Financing Terms for March and June, Quarterly Net percent
most dealers indicated that hedge funds had 30 not changed their use of leverage since the 20 beginning of the year (figure 36).10 In the 10 + same survey, some dealers noted that the use _0 of financial leverage by trading REITs, or 10 real estate investment trusts, had decreased, 20 continuing a trend that began in the summer 30 of 2013. Assets under management at bond 40
mutual funds also reached a record high. 50 60
2011 2012 2013 2014 10. The Senior Credit Officer Opinion Survey on Dealer Financing Terms is available on the Board’s NOTE: The data begin in 2011:Q3 and extend through 2014:Q2. Net percent equals the percent of dealers that reported an increase in the use of website at www.federalreserve.gov/econresdata/releases/ leverage (chose the response “increased considerably” or “increased scoos.htm. somewhat”) minus the percent of dealers that reported a decrease in the use of leverage (chose the response “decreased considerably” or “decreased somewhat”). SOURCE: Federal Reserve Board, Senior Credit Officer Opinion Survey on Dealer Financing Terms. 26 PART 1: RECENT ECONOMIC AND FINANCIAL DEVELOPMENTS
Municipal bond markets functioned smoothly, but some issuers remained strained Credit conditions in municipal bond markets generally appeared to remain stable over the first half of the year. Yields on 20-year general obligation municipal bonds have declined slightly since the beginning of the year, and the MCDX, an index of CDS for a broad portfolio of municipal bonds, has also moved down. However, the ratio of an index of municipal bond yields to Treasury yields has increased a bit.
Nevertheless, significant financial strains have been evident for some issuers. Standard & Poor’s, Moody’s Investors Service, and Fitch Ratings downgraded Puerto Rico’s general obligation bonds from investment grade to speculative grade in February. In addition, the City of Detroit continues to negotiate the terms of its bankruptcy plan.
Liquid deposits in the banking sector continued to advance briskly, boosting M2 M2 has increased at an annual rate of about 7 percent since December, about the same pace registered in the second half of 2013 and somewhat faster than the pace of nominal GDP. The growth in M2 has been driven by an increase in liquid deposits as well as an uptick in demand for currency.
International Developments As in the United States, foreign bond yields declined and asset prices increased, on net . . . As noted earlier, foreign long-term benchmark sovereign yields have moved significantly lower since the beginning of the year. Factors contributing to the decline include expectations for lower policy interest rates, a decline in the required compensation for risk, and increased demand by price-insensitive investors for these assets. Similarly, foreign corporate and sovereign yield spreads have also declined since the start of the year. In particular, peripheral euro-area sovereign yield | 2020-09-30 | [
"For use at 10:00 a.m., EDT July 15, 2014 MONETARY POLICY REPORT July 15, 2014 Board of Governors of the Federal Reserve System On July 30, 2014, the data in figure 17 were corrected to extend through 2014:Q1, as originally noted. LETTER OF TRANSMITTAL BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM Washington, D.C., July 15, 2014 THE PRESIDENT OF THE SENATE THE SPEAKER OF THE HOUSE OF REPRESENTATIVES The Board of Governors is pleased to submit its Monetary Policy Report pursuant to section 2B of the Federal Reserve Act. Sincerely, Janet L. Yellen, Chair MONETARY POLICY REPORT: JULY 2014 15 Productivity growth has been modest 28. Change in output per hour In general, gains in labor productivity have been Percent, annual rate modest in recent years. Output per hour in the nonfarm business sector has risen at an annual 4 rate of less than 1½ percent since 2007, well below the pace of gains observed over the late 1990s and 3 early 2000s (figure 28). The relatively slow pace of productivity growth likely reflects, in part, the 2 sustained weakness in capital investment over the recession and recovery period, and productivity 1 gains may be better supported in the future as outlays for productivity-enhancing capital equipment strengthen.",
"1948– 73 1974– 95 1996– 2000 2001– 07 2008– present NOTE: The data are for the nonfarm business sector. Changes for the first Financial Developments four periods are measured from Q4 of the year immediately preceding the period through Q4 of the final year of the period. The final period is measured from 2007:Q4 through 2014:Q1. The expected path for the federal funds SOURCE: Department of Labor, Bureau of Labor Statistics. rate edged down Market-based measures of the expected path of the federal funds rate through late 2017 edged down, on balance, over the first half of the year.",
"After accounting for transitory factors such as weather, market participants appeared to judge the incoming economic data as somewhat better than they had expected but as still continuing to point to subdued inflationary pressures and an accommodative policy stance by the FOMC. The relatively small movements of the market-based measures are consistent with the results of the most recent Survey of Primary Dealers and the pilot survey of market participants, each conducted just prior to the June FOMC meeting by the Open Market Desk at the Federal Reserve Bank of New York. Those surveys suggest that dealers and buy- side respondents both anticipate that the initial increase in the target federal funds rate from its current range will occur in the third quarter of 2015, slightly earlier than dealers had anticipated at the beginning of this year and about the same as what buy-side respondents had anticipated.7 7. The results of the Survey of Primary Dealers and of the pilot survey of market participants are available on the Federal Reserve Bank of New York’s website at www. newyorkfed.org/markets/primarydealer_survey_questions.",
"html and www.newyorkfed.org/markets/pilot_survey_ market_participants.html, respectively. 16 PART 1: RECENT ECONOMIC AND FINANCIAL DEVELOPMENTS The Slow Recovery of Housing Activity Partly because of its sensitivity to interest rates, Despite these headwinds, housing activity began investment in residential structures has often played an to recover in late 2011, supported by declining important role in jump-starting economic recoveries, unemployment, record-low longer-term interest rates, even though it has constituted less than 5 percent and improving confidence in the economic recovery. of gross domestic product (GDP), on average, since Single-family housing starts and sales of existing homes World War II. For example, in 1983, coming out of a both trended up in 2012 and continued to do so severe double-dip recession, residential investment through mid-2013 (figures A and B). During this period, rose 50 percent and contributed 1.7 percentage points multifamily construction recovered to its average pace to GDP growth. But the recent recovery period has in the 1990s and early 2000s, supported by a shift in been quite different from previous episodes, even with the composition of demand toward rental units driven interest rates at historically low levels.",
"In 2010 and by many of the same factors that have constrained the 2011, the first two years of the recovery, residential single-family, owner-occupied sector. All told, from investment contributed essentially nothing, on average, the fourth quarter of 2011 through the second quarter to the growth of real GDP. Even after rising noticeably of 2013, residential investment (as measured in the in 2012 and the first half of 2013, real residential national income and product accounts) grew at an investment remains 45 percent below its pre-recession average annual rate of nearly 15 percent. All of the peak. The lack of a rapid housing recovery has major components of residential investment—including also affected the labor market: Employment in the construction of new single-family and multifamily construction sector is still more than 1.6 million lower homes, improvements to existing structures, and than the average level in 2006. brokers’ commissions and fees—made sizable positive The failure of residential construction to significantly contributions to investment growth over the period boost the current recovery likely reflects a number of (figure C). headwinds.",
"First, a much tighter supply of mortgage In spite of this positive momentum, the recovery credit in the aftermath of the housing bubble, stalled in mid-2013 in the wake of a spike in mortgage particularly for prospective borrowers with low credit interest rates that sharply reduced housing affordability scores, has crimped demand for owner-occupied (figure D). Permits for single-family construction—the housing. Second, the slow recovery of the labor market best gauge of underlying activity in the sector—have has significantly reduced the pace of new household been roughly flat over the past year.",
"Meanwhile, formation, as young adults in particular have become existing home sales have fallen almost 10 percent more likely to live with their parents or other relatives. from their recent highs. Residential investment turned Third, the relatively rapid recovery of house prices, even sharply negative for two successive quarters around the as construction remains far below trend, suggests that turn of the year. Measures of builder, real estate agent, constraints on new housing supply also have played a and homebuyer sentiment have also deteriorated. role. These constraints may include shortages of skilled Arguably, the only bright spot of late has been the data labor and buildable lots, implying that some time may on multifamily starts and permits, which are noisy but be required to shift resources back into the sector.",
"appear to have continued to trend higher on net. A. Private housing starts and permits B. Pending home sales index and existing home sales Monthly Millions of units, annual rate Thousands, annual rate Index, 2001 = 100 Existing home sales 2.2 130 7,000 Single-family starts 1.8 120 Pending home sales 1.4 6,000 110 1.0 100 Single-family 5,000 permits .6 90 4,000 Multifamily starts .2 80 2006 2008 2010 2012 2014 2002 2004 2006 2008 2010 2012 2014 NOTE: The data extend through May 2014. NOTE: The data are monthly and extend through May 2014. Total existing SOURCE: Department of Commerce, Bureau of the Census. home sales includes single-family and condo and co-op sales.",
"SOURCE: National Association of Realtors. MONETARY POLICY REPORT: JULY 2014 17 C. Contribution to growth in total residential investment Percent change, annual rate 20 15 10 5 + 0_ 5 Single-family 10 Multifamily Commissions 15 Improvements Other 20 Sum 25 2011 2012 2013 2014 SOURCE: Department of Commerce, Bureau of Economic Analysis. While the most obvious explanation for the would be suggested by historical experience, especially weakness in the housing market over the past year is because an interest rate rise of that magnitude, with the run-up in mortgage rates during the spring and rates so low and housing activity so depressed, is summer of 2013, it seems unlikely that interest rates unprecedented.",
"Alternatively, ongoing increases in are the whole story. Historical correlations between house prices may indicate that constraints on the mortgage rates and residential investment suggest that supply of new housing are binding more significantly the effects of last year’s run-up should have begun to than seemed to be the case in 2012, when residential fade by now, but housing activity has yet to pick up. investment rose fairly rapidly. Finally, the downturn Moreover, since last summer, mortgage rates have in existing home sales, which has had a particularly retraced a portion of their earlier increases without any pronounced effect on total residential investment via noticeable improvement in activity. brokers’ commissions, may reflect factors specific to Even so, it is possible that the interest rate spike the resale market; in particular, short sales and sales of may have had a larger and longer-lasting effect than foreclosed properties have declined markedly over the past couple of years. D. Mortgage rates and housing affordability Regardless of what explains the recent weakness, the level of new home construction likely remains Percent Index much too low to be sustainable.",
"Prior to the housing Mortgage rate boom and bust, an average of roughly 1¾ million 205 7 housing units were started per year.1 In comparison, 185 only about 1 million units were started in 2013, despite 6 Housing the recovery of multifamily starts to pre-recession 165 affordability levels. It is difficult to judge when construction will index 5 145 resume its upward trend or, given all of the changes in 125 the housing market in recent years, at what level it will 4 stabilize. That said, the Census Bureau projects that 105 the adult population will continue to grow by roughly 3 85 2 million per year over the next two decades; with that rate of population growth, the pace of construction 2006 2008 2010 2012 2014 seems likely to rise from current levels.",
"NOTE: The housing affordability index data are monthly through April 2014 and the mortgage rate data are weekly through July 9, 2014. At an index value of 100, a median-income family has exactly enough income to qualify for a median-priced home mortgage. Housing affordability is seasonally 1. This figure is calculated using data from 1960 to 2000 adjusted by Board staff. and includes single-family and multifamily construction as SOURCE: For housing affordability index, National Association of Realtors; well as shipments of new mobile homes.",
"for mortgage rate, Freddie Mac Primary Mortgage Market Survey and Loansifter. 18 PART 1: RECENT ECONOMIC AND FINANCIAL DEVELOPMENTS 29. Yields on nominal Treasury securities Finally, while some forward measures of policy rate uncertainty have risen, overall policy rate Daily Percent uncertainty has generally remained relatively low. 7 6 However, Treasury yields declined 10-year 30-year 5 significantly, especially at longer maturities, as have sovereign bond yields 4 in other advanced economies 5-year 3 2 After rising notably over the spring and summer months of 2013, yields on longer- 1 term Treasury securities drifted down over the 0 first half of 2014 and now stand at fairly low 2000 2002 2004 2006 2008 2010 2012 2014 levels by historical standards (figure 29). In NOTE: The Treasury ceased publication of the 30-year constant maturity particular, while the yield on 5-year nominal series on February 18, 2002, and resumed that series on February 9, 2006.",
"Treasury securities edged down only about SOURCE: Department of the Treasury. 5 basis points from its level at the end of December 2013, the yields on the 10- and 30-year securities decreased about 50 basis 30. Yield and spread on agency mortgage-backed securities points and 60 basis points, respectively. The decline in longer-term yields reflects a notable Percent Basis points reduction in longer-horizon forward rates, with 9 400 the 5-year-forward rate 5 years ahead dropping 8 350 about 105 basis points since year-end. Five- Yield year-forward inflation compensation over this 300 7 250 period declined 20 basis points, implying that 6 200 much of this reduction in nominal forward 5 150 rates was concentrated in forward real rates. 4 100 Yields on 30-year agency mortgage-backed 3 Spread 50 securities (MBS) decreased about 35 basis 2 0 points, on balance, over the same period (figure 30).",
"2000 2002 2004 2006 2008 2010 2012 2014 NOTE: The data are daily. Yield shown is for the Fannie Mae 30-year Long-term benchmark sovereign yields in current coupon, the coupon rate at which new mortgage-backed securities would be priced at par, or face, value. Spread shown is to the average of the advanced foreign economies (AFEs) have 5- and 10-year nominal Treasury yields. also moved down since late last year, with SOURCE: Department of the Treasury; Barclays Live. particularly marked reductions in the euro area (figure 31). Market participants have pointed to several potential explanations for the declines in U.S. and foreign yields. One possible explanation is that market participants have lowered their expectations for future short-term interest rates around the globe. This downward adjustment in expectations may be due to a combination of a lower assessment of the global economy’s long-run potential growth rate and a decrease in long-run inflation expectations. Indeed, the lower yields in the euro area are consistent MONETARY POLICY REPORT: JULY 2014 19 with indications of declining inflation and 31. 10-year nominal benchmark yields in advanced weak growth in the euro area in recent foreign economies months, bolstering expectations that the Daily Percent European Central Bank (ECB) would loosen its monetary policy, as it eventually did at its 3.5 meeting in early June.",
"3.0 2.5 In addition, term premiums—the extra return United Kingdom Germany investors expect to obtain from holding 2.0 longer-term securities as opposed to holding 1.5 and rolling over a sequence of short-term 1.0 securities for the same period—may have come Japan down, reflecting several potential factors. .5 One potential factor is a reduction in the 2012 2013 2014 amount of compensation for interest rate risk SOURCE: Bloomberg. that investors require to hold fixed-income securities, likely due in part to perceptions that uncertainty about the outlook for monetary policy and economic growth has decreased; indeed, swaption-implied volatility on longer- term rates has fallen noticeably since the beginning of the year. Another potential factor is increased demand for Treasury securities from price-insensitive investors, such as pension funds and commercial banks. Lastly, in light of the notable co-movements between forward interest rates at longer horizons in the United States and other advanced economies, it appears likely that there is a global component of term premiums that is affected not only by U.S. developments, but also by foreign developments, such as investors becoming increasingly confident that policy 32.",
"Equity prices rates at the major foreign central banks will remain low for an extended period. Daily December 31, 2007 = 100 140 Broad equity price indexes increased further, and risk spreads on corporate Dow Jones bank index 120 debt declined 100 Although equity investors appeared to pull 80 back from the market for a time early in the 60 year in reaction to concerns about the strength S&P 500 index 40 of some EMEs and the possible implications for global growth, broad measures of U.S. 20 equity prices have posted solid gains of 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014 6 percent since the beginning of 2014, on SOURCE: Dow Jones bank index; Standard & Poor's 500 index via balance, after having risen 30 percent in 2013 Bloomberg. (figure 32). Overall, equity investors appeared 20 PART 1: RECENT ECONOMIC AND FINANCIAL DEVELOPMENTS to become more confident in the near-term economic outlook amid somewhat better-than- expected economic data releases, declining longer-term interest rates, and upward revisions to expected year-ahead earnings per share for firms in the S&P 500 index. Some broad equity price indexes have increased to all-time highs in nominal terms since the end of 2013.",
"However, valuation measures for the overall market in early July were generally at levels not far above their historical averages, suggesting that, in aggregate, investors are not excessively optimistic regarding equities. Nevertheless, valuation metrics in some sectors do appear substantially stretched—particularly those for smaller firms in the social media and biotechnology industries, despite a notable downturn in equity prices for such firms early in the year. Moreover, implied volatility for the overall S&P 500 index, as calculated from option prices, has declined in recent months to low levels last recorded in the mid-1990s and mid-2000s, reflecting improved market sentiment and, perhaps, the influence of “reach for yield” behavior by some investors. Credit spreads in the corporate sector have also declined, on balance, in recent months. After having temporarily increased early in the year, the spreads of yields on corporate bonds to yields on Treasury securities of comparable maturities ended the first half of the year about unchanged or a bit narrower. Credit spreads on high-yield corporate bonds are near the bottom of their range over the past decade. While spreads on syndicated loans have changed little this year, they are also relatively low. For further discussion of asset prices and other financial stability issues, see the box “Developments Related to Financial Stability.” Treasury market functioning and liquidity conditions in the MBS market were generally stable .",
". . Indicators of Treasury market functioning remained stable amid ongoing reductions in the pace of the Federal Reserve’s asset MONETARY POLICY REPORT: JULY 2014 21 purchases over the first half of 2014. In particular, liquidity conditions in Treasury markets remained stable, with bid–asked spreads in the Treasury market staying in line with recent averages. In addition, the Treasury’s first-ever auction of a Floating Rate Note in January was well received, as were subsequent auctions of those notes. Liquidity conditions in the MBS markets were also generally stable, though there have been 33. Dollar-roll-implied financing rates (front month), some signs of scarcity of certain securities, as Fannie Mae 30-year evidenced by somewhat low levels of implied Daily Percent financing rates in the production-coupon “dollar roll” markets during the first half Fails charge Fails charge announced implemented 1.0 of this year. However, the implied financing .5 4.0 percent rates rose in recent days, suggesting easing of coupon + 0_ settlement pressures in these markets of late (figure 33).8 Gross issuance of these securities .5 remained somewhat lower than in the past 1.0 two years, reflecting relatively low mortgage 3.5 percent 1.5 originations. coupon 2.0 .",
". . and short-term funding markets also continued to function well 2011 2012 2013 2014 NOTE: The 4.0 percent coupon data series begins on June 1, 2012. Conditions in short-term dollar funding SOURCE: J.P. Morgan. markets also remained stable during the first half of 2014. Early in the year, yields on Treasury bills maturing between late February and mid-March of 2014—those that could have been affected by delayed payments if a debt ceiling agreement had not been reached—were elevated for a time, but those yields declined in mid-February in response to news of pending legislation to suspend the debt ceiling until March 2015. The federal funds rate remained at very low levels, and broader measures of unsecured dollar bank funding costs, such as the LIBOR, or London 8. Dollar roll transactions consist of a purchase or sale of agency MBS with the simultaneous agreement to sell or purchase substantially similar securities on a specified future date.",
"The Federal Reserve engages in these transactions as necessary to facilitate settlement of its agency MBS purchases. During April and May, the Open Market Desk transitioned purchases of agency MBS to FedTrade, the Desk’s proprietary trading system that uses multiple- price competitive auctions. 22 PART 1: RECENT ECONOMIC AND FINANCIAL DEVELOPMENTS Developments Related to Financial Stability Pressures within the U.S. financial system that could conjunction with other federal agencies, is working leave it vulnerable to adverse events do not appear to to enhance compliance with previous guidance on have increased appreciably this year. In the current issuance, pricing, and underwriting standards.1 economic environment, the Committee views low The financial strength of the banking sector has interest rates as necessary to support progress toward continued to improve. Bank holding companies price stability and maximum sustainable employment. (BHCs) have pushed up their regulatory capital ratios, Policymakers have noted the possibility that a continuing a trend seen since the first set of government prolonged period of low interest rates may provide stress tests in 2009. The sector’s aggregate Tier 1 incentives for some investors to “reach for yield,” and common equity ratio, which compares high-quality those actions could increase vulnerabilities in the capital to risk-weighted assets for all BHCs, has more financial system. Asset prices for real estate, equities, than doubled, from 5.5 percent in the fourth quarter and corporate bonds have risen and valuation measures of 2008 to 11.7 percent in the first quarter of 2014. In have increased, but valuations have remained generally addition, all of the domestic systemically important in line with historical norms.",
"Moreover, despite brisk banking organizations met their minimum Tier 1 borrowing by the business sector, aggregate private common equity ratios, including the capital surcharge, nonfinancial debt has increased at only a moderate required under Basel III rules. Moreover, BHCs have pace, and the financial strength of the banking sector continued to strengthen their liquidity positions in has continued to improve. Substantial progress has recent quarters and have become less reliant on been made to reduce structural vulnerabilities in the wholesale short-term funding. financial system, although this work is ongoing. Strong capital and liquidity positions help ensure With regard to asset valuations, house prices have that banking organizations have the ability to lend to continued to increase, but, for the most part, these households and businesses and to continue to meet increases have left aggregate price-to-rent ratios within their financial obligations, even in times of economic historical norms.",
"Moreover, growth in residential difficulty. Results of the most recent set of stress tests mortgage debt has remained anemic, suggesting that were released in March 2014. Thirty BHCs participated the recent increases are not fueled by excessively in the stress tests. These institutions have a combined aggressive lending conditions. More broadly, aggregate $13.5 trillion in assets, or approximately 80 percent measures of the household debt burden appear of all U.S. BHC assets. The Dodd-Frank Act stress test reasonable despite recent rapid growth in auto lending (DFAST), mandated by the Dodd-Frank Wall Street and student loans, which has strained some borrowers, Reform and Consumer Protection Act of 2010, and the particularly those in the lower half of the income Comprehensive Capital Analysis and Review (CCAR) distribution. continue to enhance supervisors’ understanding However, signs of risk-taking have increased in of the underlying processes used by each BHC to some asset classes. Equity valuations of smaller firms assess the adequacy of the size and composition as well as social media and biotechnology firms appear to be stretched, with ratios of prices to forward earnings remaining high relative to historical norms.",
"1. In March 2013, the Federal Deposit Insurance Corporation, the Federal Reserve, and the Office of the Beyond equities, risk spreads for corporate bonds Comptroller of the Currency issued joint supervisory guidance have narrowed and yields have reached all-time lows. on leveraged lending practices, which became effective in Issuance of speculative-grade corporate bonds and May 2013. Since that time, there has been strong supervisory leveraged loans has been very robust, and underwriting follow-up to ensure compliance, in the form of supervisory reviews throughout 2014 and the issuance of supervisory standards have loosened.",
"For example, average debt- letters, including specific Matters Requiring Attention. See to-earnings multiples have risen, and the share rated Board of Governors of the Federal Reserve System, Division B or below has moved up further for leveraged loans. of Banking Supervision and Regulation (2013), “Interagency The Federal Reserve continues to closely monitor Guidance on Leveraged Lending,” Supervision and Regulation developments in the leveraged lending market and, in Letter SR 13-3 (March 21), www.federalreserve.gov/ bankinforeg/srletters/sr1303.htm. MONETARY POLICY REPORT: JULY 2014 23 of its capital relative to the risks it faces. Under the continue improving the resiliency of the financial “severely adverse” DFAST scenario, all but one of the system. Some regulatory reforms taken since the participating BHCs exceeded minimum capital previous Monetary Policy Report are highlighted requirements. Furthermore, under CCAR, the Federal here. Pursuant to section 165 of the Dodd-Frank Reserve Board granted nonobjections to the capital Act, the Federal Reserve Board approved a final rule plans of 24 BHCs.2 strengthening the supervision and regulation of large Recent results from the Senior Credit Officer U.S. BHCs and foreign banking organizations. The Opinion Survey on Dealer Financing Terms indicate rule establishes enhanced prudential standards with that the use of financial leverage by respondents’ respect to capital, liquidity, and risk management.",
"It counterparties to purchase securities has not changed also requires foreign banking organizations with a notably in recent quarters, although demand for significant U.S. presence to establish an intermediate financing commercial mortgage-backed securities holding company over their U.S. subsidiaries, which and collateralized loan obligations (CLOs) has been will facilitate consistent supervision and regulation of rising recently. However, aggregate measures of the the U.S. operations of these foreign banks. use of short-term wholesale funding to finance assets Furthermore, together with other federal agencies, remained roughly unchanged over the past couple of the Federal Reserve Board adopted a final rule to years. Similarly, securitization, which continues to be strengthen the leverage ratio standards for the largest, an important means of financing, has been modest, most interconnected U.S. banking organizations. The though issuance of CLOs has increased. final rule applies to top-tier U.S. BHCs with more than Moving beyond recent developments, important $700 billion in consolidated total assets or more than structural vulnerabilities remain that could leave the $10 trillion in assets under custody and to their insured U.S. financial system exposed to adverse events. depository institution subsidiaries. These BHCs must Despite the increase in resilience within the banking maintain a leverage buffer greater than 2 percentage sector highlighted by the stress tests, the broader points above the minimum supplementary leverage financial system remains highly interconnected.",
"While ratio requirement of 3 percent, for a total of more than stronger capital and liquidity positions in the banking 5 percent, to avoid restrictions on capital distributions sector should help reduce the consequences of this and discretionary employee bonus payments. Insured structural vulnerability, the Federal Reserve nevertheless depository institution subsidiaries of these BHCs must continues to encourage firms to better manage their maintain at least a 6 percent supplementary leverage exposures to large counterparties and to improve their ratio to be considered “well capitalized” under the recovery and resolution plans. The Federal Reserve agencies’ prompt corrective action framework. The is also working to strengthen the infrastructure of final rule has an effective date of January 1, 2018. The derivatives markets—for instance, by working with Federal Reserve Board is also working on proposals for other agencies on rules to establish initial and variation additional risk-based capital surcharges and long-term margin requirements for over-the-counter derivatives debt requirements for global, systemically important transactions.",
"The potential for runs on money market banking organizations based in the United States. mutual funds in the event of a severe liquidity or credit The Federal Reserve Board also issued a notice shock remains significant, and this risk will continue to of proposed rulemaking to implement section 622 pose a threat to financial stability until further structural of the Dodd-Frank Act. Section 622 establishes a reforms are adopted, as recommended by the Financial financial-sector concentration limit that prohibits a Stability Oversight Council.",
"financial company from merging with, acquiring, or The Federal Reserve has taken a number of steps to consolidating with another company if the ratio of the resulting financial company’s liabilities to the aggregate 2. Initially, the Federal Reserve Board granted nonobjections consolidated liabilities of all financial companies to the capital plans of 25 firms, but the nonobjection granted exceeds 10 percent. The proposed rule spells out the to the 25th firm was withdrawn after that firm restated its details involved in calculating the limit. capital position. 24 PART 1: RECENT ECONOMIC AND FINANCIAL DEVELOPMENTS interbank offered rate, remain at very low levels, reflecting the absence of major funding pressures. Money market participants continued to focus on the Federal Reserve’s testing of its monetary policy tools.",
"Daily awards at the overnight reverse repurchase agreement (ON RRP) exercise have ranged between about $50 billion and about $340 billion since early 2014. The number of counterparties participating and the dollar volume of take- up have been sensitive to the spread between market rates for repurchase agreements and the fixed ON RRP rate offered in the exercise.9 Indeed, take-up has been large at quarter-ends, when balance sheet adjustments by financial institutions tend to limit other investment options. Experience to date suggests that ON RRP operations have helped establish a floor on money market interest rates. Testing of the Term Deposit Facility, as well as take- up of and participation in its test offerings, has expanded during the first half of 2014.",
"(For further discussion of the testing of monetary policy tools, see the box “Planning for Monetary Policy Implementation during Normalization” in Part 2.) The condition of financial institutions improved further, although profitability remained below its historical average Regulatory capital ratios at bank holding companies (BHCs) increased further during the first half of 2014, and measures of bank liquidity remained robust. In addition, credit quality at BHCs continued to improve across major loan categories, and the ratios of loss reserves to delinquencies and to charge-offs each edged up. At the same time, standard 9. Fixed-rate ON RRP operations were first authorized by the FOMC at the September 2013 meeting, and were reauthorized in January 2014, for the purpose of assessing operational readiness. The Committee authorized the Open Market Desk to conduct such operations involving U.S. government securities and securities that are direct obligations of, or fully guaranteed as to principal and interest by, any agency of the United States. MONETARY POLICY REPORT: JULY 2014 25 measures of the profitability of BHCs have 34.",
"Profitability of bank holding companies been little changed for the past six months Percent, annual rate Percent, annual rate (figure 34). Profitability of these companies Return on assets remained below its historical average, in part 1.5 20 because of subdued income from mortgage 1.0 and trading businesses and compressed 10 .5 net interest margins at large banks. A few + Return on equity + large banks have also incurred sizable costs 0_ 0_ from legal settlements associated with the .5 10 origination of mortgages prior to the recent 1.0 financial crisis.",
"Aggregate credit provided by 20 1.5 commercial banks grew at a solid pace in the first half of 2014 (figure 35). The increase was 1998 2000 2002 2004 2006 2008 2010 2012 2014 driven by a pickup in loan growth and a rise NOTE: The data, which are seasonally adjusted, are quarterly. in holdings of U.S. Treasury securities that SOURCE: Federal Reserve Board, Reporting Form FR Y-9C, Consolidated Financial Statements for Bank Holding Companies. was reportedly influenced by banks’ efforts to meet new liquidity regulations. Equity 35. Change in total bank credit prices of large domestic banks increased a Quarterly 4-quarter percent change bit from the beginning of the year, on net, but underperformed the overall market, as 15 shown in figure 32. Credit default swap (CDS) spreads for large BHCs remain low. 10 5 Among nonbank financial institutions, equity + prices of insurance companies have also 0 _ increased slightly, on net, since the beginning 5 of the year.",
"Nonbank financial institutions continued to grow at a very strong pace, as 10 assets under management at hedge funds and private equity groups each reached record 1993 1996 1999 2002 2005 2008 2011 2014 highs, reflecting modest increases in asset NOTE: The data are seasonally adjusted and extend through 2014:Q2. SOURCE: Federal Reserve Board, Statistical Release H.8, “Assets and values as well as net inflows. Nevertheless, Liabilities of Commercial Banks in the United States.” in response to the Federal Reserve Board’s 36. Change in use of financial leverage by hedge funds Senior Credit Officer Opinion Survey on Dealer Financing Terms for March and June, Quarterly Net percent most dealers indicated that hedge funds had 30 not changed their use of leverage since the 20 beginning of the year (figure 36).10 In the 10 + same survey, some dealers noted that the use _0 of financial leverage by trading REITs, or 10 real estate investment trusts, had decreased, 20 continuing a trend that began in the summer 30 of 2013.",
"Assets under management at bond 40 mutual funds also reached a record high. 50 60 2011 2012 2013 2014 10. The Senior Credit Officer Opinion Survey on Dealer Financing Terms is available on the Board’s NOTE: The data begin in 2011:Q3 and extend through 2014:Q2. Net percent equals the percent of dealers that reported an increase in the use of website at www.federalreserve.gov/econresdata/releases/ leverage (chose the response “increased considerably” or “increased scoos.htm. somewhat”) minus the percent of dealers that reported a decrease in the use of leverage (chose the response “decreased considerably” or “decreased somewhat”). SOURCE: Federal Reserve Board, Senior Credit Officer Opinion Survey on Dealer Financing Terms. 26 PART 1: RECENT ECONOMIC AND FINANCIAL DEVELOPMENTS Municipal bond markets functioned smoothly, but some issuers remained strained Credit conditions in municipal bond markets generally appeared to remain stable over the first half of the year. Yields on 20-year general obligation municipal bonds have declined slightly since the beginning of the year, and the MCDX, an index of CDS for a broad portfolio of municipal bonds, has also moved down. However, the ratio of an index of municipal bond yields to Treasury yields has increased a bit. Nevertheless, significant financial strains have been evident for some issuers. Standard & Poor’s, Moody’s Investors Service, and Fitch Ratings downgraded Puerto Rico’s general obligation bonds from investment grade to speculative grade in February.",
"In addition, the City of Detroit continues to negotiate the terms of its bankruptcy plan. Liquid deposits in the banking sector continued to advance briskly, boosting M2 M2 has increased at an annual rate of about 7 percent since December, about the same pace registered in the second half of 2013 and somewhat faster than the pace of nominal GDP. The growth in M2 has been driven by an increase in liquid deposits as well as an uptick in demand for currency. International Developments As in the United States, foreign bond yields declined and asset prices increased, on net . .",
". As noted earlier, foreign long-term benchmark sovereign yields have moved significantly lower since the beginning of the year. Factors contributing to the decline include expectations for lower policy interest rates, a decline in the required compensation for risk, and increased demand by price-insensitive investors for these assets. Similarly, foreign corporate and sovereign yield spreads have also declined since the start of the year. In particular, peripheral euro-area sovereign yield"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/147446064/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 1:20-cv-04834-KAM-RML Document 20 Filed 11/10/20 Page 1 of 5 PageID #: 716
E.D.N.Y. – Bklyn. 20-cv-4834 Matsumoto, J. 20-cv-4844 Garaufis, J.
United States Court of Appeals FOR THE SECOND CIRCUIT _________________
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 9th day of November, two thousand twenty.
Present: Raymond J. Lohier, Jr., Michael H. Park, Circuit Judges, Jed S. Rakoff, * Judge.
Agudath Israel of America, Agudath Israel of Kew Garden Hills, Agudath Israel of Madison, Agudath Israel of Bayswater, Rabbi Yisroel Reisman, Rabbi Menachem Feifer, Steven Saphirstein,
Plaintiffs-Appellants, v. 20-3572
Andrew M. Cuomo, Governor of the State of New York, in his official capacity, Defendant-Appellee.
The Roman Catholic Diocese of Brooklyn, New York,
Plaintiff-Appellant, v. 20-3590
Governor Andrew M. Cuomo, in his official capacity,
Defendant-Appellee.
* Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation. Case 1:20-cv-04834-KAM-RML Document 20 Filed 11/10/20 Page 2 of 5 PageID #: 717
These appeals, which are being heard in tandem, arise from the ongoing COVID-19 pandemic. The pandemic has caused more than 25,000 deaths in New York State and more than 10,000 deaths in Brooklyn and Queens alone. In response to a recent spike in cases concentrated in parts of Brooklyn, Queens, and other areas, Governor Andrew Cuomo issued an executive order to limit further spread of the virus in these COVID-19 “hotspots.”
The executive order directs the New York State Department of Health to identify yellow, orange, and red “zones” based on the severity of outbreaks, and it imposes correspondingly severe restrictions on activity within each zone. For example, the order provides that in “red zones,” non-essential gatherings of any size must be cancelled, non-essential businesses must be closed, schools must be closed for in-person instruction, restaurants cannot seat customers, and houses of worship may hold services but are subject to a capacity limit of 25 percent of their maximum occupancy or 10 people, whichever is fewer.
The Appellants—Agudath Israel of America, Agudath Israel of Kew Garden Hills, Agudath Israel of Madison, Agudath Israel of Bayswater, Rabbi Yisroel Reisman, Rabbi Menachem Feifer, Steven Saphirstein (collectively, “Agudath Israel”), and The Roman Catholic Diocese of Brooklyn, New York (the “Diocese”)—each challenged the executive order as a violation of the Free Exercise Clause of the First Amendment. In each case, the district court denied the Appellants’ motion for a preliminary injunction against the enforcement of the order. The Appellants now move for emergency injunctions pending appeal and to expedite their appeals, after an applications Judge on our Court denied their requests for an administrative stay, No. 20-3572, doc. 30; No. 20-3590, doc. 29.
Preliminarily, we conclude that Agudath Israel did not “move first in the district court for” an order “granting an injunction while an appeal is pending” before filing with this Court its present motion for an injunction pending appeal. Fed. R. App. P. 8(a)(1)(C). Instead, Appellant moved for a preliminary injunction pending the district court’s final judgment. In its briefs and at oral argument before this panel, moreover, Agudath Israel has not explained or otherwise justified its failure to comply with the straightforward requirement of Rule 8(a). Agudath Israel also has failed to demonstrate that “moving first in the district court would be impracticable,” Fed. R. App. P. 8(a)(2)(A), or even futile, particularly in light of the fact that a full eleven days elapsed after the district court’s ruling before Agudath Israel sought relief from this Court. We deny Agudath Israel’s motion for these procedural reasons. See Hirschfeld v. Bd. of Elections in N.Y., 984 F.2d 35, 38 (2d Cir. 1993).
We deny the Diocese’s motion for an injunction pending appeal—and would deny the motion filed by Agudath Israel if it were properly before us—for the reasons that follow.
As an initial matter, an injunction is “an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 24 (2008). To obtain an injunction from a district court, movants generally bear the burden of showing that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. Id. at 20.
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To obtain a stay of a district court’s order pending appeal, more is required, including a “strong showing that [the movant] is likely to succeed on the merits.” New York v. U.S. Dep’t of Homeland Sec., 974 F.3d 210, 214 (2d Cir. 2020). The motions at issue here seek a remedy still more drastic than a stay: an injunction issued in the first instance by an appellate court. “Such a request demands a significantly higher justification than a request for a stay because, unlike a stay, an injunction does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts.” Respect Maine PAC v. McKee, 562 U.S. 996, 996 (2010) (quotation marks omitted).
“The Free Exercise Clause, which applies to the States under the Fourteenth Amendment, protects religious observers against unequal treatment and against laws that impose special disabilities on the basis of religious status.” Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2254 (2020) (quotation marks omitted); see Cent. Rabbinical Cong. of U.S. & Canada v. N.Y.C. Dep’t of Health & Mental Hygiene, 763 F.3d 183, 193 (2d Cir. 2014) (“[T]he Free Exercise Clause . . . protects the performance of (or abstention from) physical acts that constitute the free exercise of religion: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation.”) (quotation marks omitted)). But the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability,” Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 879 (1990) (quotation marks omitted), “even if the law has the incidental effect of burdening a particular religious practice,” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993).
“A law burdening religious conduct that is not both neutral and generally applicable, however, is subject to strict scrutiny.” Cent. Rabbinical, 763 F.3d at 193 (citing Lukumi, 508 U.S. at 531–32). “A law is not neutral if it is specifically directed at a religious practice.” Id. (cleaned up). Similarly, a law is “not generally applicable if it is substantially underinclusive such that it regulates religious conduct while failing to regulate secular conduct that is at least as harmful to the legitimate government interests purportedly justifying it.” Id. at 197.
The Court fully understands the impact the executive order has had on houses of worship throughout the affected zones. Nevertheless, the Appellants cannot clear the high bar necessary to obtain an injunction pending appeal. The challenged executive order establishes zones based on the severity of the COVID-19 outbreaks in different parts of New York. Within each zone, the order subjects religious services to restrictions that are similar to or, indeed, less severe than those imposed on comparable secular gatherings. See S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J., concurring) (denying emergency injunctive relief to houses of worship that were subject to similar or less severe restrictions than those applicable to comparable secular gatherings); see also Elim Romanian Pentecostal Church v. Pritzker, 962 F.3d 341, 342, 346–47 (7th Cir. 2020) (upholding an order that capped religious gatherings at ten people where the most comparable activities—those “that occur in auditoriums, such as concerts and movies”— had been banned completely); cf. Commack Self-Serv. Kosher Meats, Inc. v. Hooker, 680 F.3d 194, 210–11 (2d Cir. 2011) (holding that a Kosher food labeling act was a neutral and generally applicable law subject to rational basis review because it applied
3 Case 1:20-cv-04834-KAM-RML Document 20 Filed 11/10/20 Page 4 of 5 PageID #: 719
to “food purchased by individuals of many different religious beliefs” and impacted consumers who purchased kosher products “for reasons unrelated to religious observance”).
Thus, while it is true that the challenged order burdens the Appellants’ religious practices, the order is not “substantially underinclusive” given its greater or equal impact on schools, restaurants, and comparable secular public gatherings. Cf. No. 20-3590, doc. 20, Ex. L at 2 (Governor Cuomo criticizing the order’s policy of “clos[ing] every school” as “a policy being cut by a hatchet,” not “a scalpel”). To the contrary, the executive order “extend[s] well beyond isolated groups of religious adherents” to “encompass[] both secular and religious conduct.” Cent. Rabbinical, 763 F.3d at 195.
In a dissent from this Court’s order, our colleague asserts that the executive order is subject to strict scrutiny because it violates the minimum requirement of neutrality. The fact that theaters, casinos, and gyms are more restricted than places of worship, the dissent reasons, “only highlights the fact that the order is not neutral towards religion.” But this view is undermined by recent precedent, which makes clear that COVID-19 restrictions that treat places of worship on a par with or more favorably than comparable secular gatherings do not run afoul of the Free Exercise Clause. See, e.g., S. Bay, 140 S. Ct. at 1613 (Roberts, C.J., concurring) (guidelines that “place[d] restrictions on places of worship” less severe than those on comparable gatherings “appear consistent with the Free Exercise Clause”); see also Elim, 962 F.3d at 347 (same).
The dissent attempts to distinguish South Bay as having been decided during the early stages of the pandemic while local governments were actively shaping their response to changing facts on the ground. But here, too, the executive order is a response to rapidly changing facts on the ground. For several months, New York’s “limits and restrictions lessen[ed] and evolve[d] as the curve continue[d] to flatten,” and the State’s “limits and restrictions . . . increase[d]” only when “a review of the data indicate[d] a trend of increasing COVID-19 cases or spikes of cases in [the] cluster areas” targeted by the challenged executive order. No. 20 Civ. 4834 (KAM) (E.D.N.Y. 2020), doc. 12 at 14, 18–19. In any event, South Bay did not draw a distinction between the pandemic in its early or late stage. Its central relevant facts exist in New York in November 2020 just as they existed in California in May 2020: There is no vaccine or known cure for COVID-19; the pandemic has killed hundreds of thousands of Americans; and “[b]ecause people may be infected but asymptomatic, they may unwittingly infect others.” S. Bay, 140 S. Ct. at 1613 (Roberts, C.J., concurring).
Upon due consideration, and for the foregoing reasons, it is hereby ORDERED that the Appellants’ motions for injunctions pending appeal are DENIED. Among other infirmities in their arguments, the Appellants have failed to meet the requisite standard for an injunction pending appeal. See New York v. U.S. Dep’t of Homeland Sec., 974 F.3d at 214. It is further ORDERED that the motion to expedite the appeals is GRANTED.
We address here only the Appellants’ motions for injunctions pending appeal and to expedite their appeals, not their underlying appeals challenging the district courts’ refusals to provide preliminary injunctive relief. With respect to the underlying appeals, the parties have agreed to the following
4 Case 1:20-cv-04834-KAM-RML Document 20 Filed 11/10/20 Page 5 of 5 PageID #: 720
merits briefing schedule: Appellants’ briefs are due Tuesday, November 17, 2020; Appellee’s brief is due Tuesday, December 8, 2020; Appellants’ reply briefs are due Monday, December 14, 2020, and the matter is to be calendared as early as the week of December 14, 2020.
Judge Park dissents from the denial of the motions for injunctions pending appeal.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court
5 | 2020-11-10 | [
"Case 1:20-cv-04834-KAM-RML Document 20 Filed 11/10/20 Page 1 of 5 PageID #: 716 E.D.N.Y. – Bklyn. 20-cv-4834 Matsumoto, J. 20-cv-4844 Garaufis, J. United States Court of Appeals FOR THE SECOND CIRCUIT _________________ At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 9th day of November, two thousand twenty. Present: Raymond J. Lohier, Jr., Michael H. Park, Circuit Judges, Jed S. Rakoff, * Judge. Agudath Israel of America, Agudath Israel of Kew Garden Hills, Agudath Israel of Madison, Agudath Israel of Bayswater, Rabbi Yisroel Reisman, Rabbi Menachem Feifer, Steven Saphirstein, Plaintiffs-Appellants, v. 20-3572 Andrew M. Cuomo, Governor of the State of New York, in his official capacity, Defendant-Appellee. The Roman Catholic Diocese of Brooklyn, New York, Plaintiff-Appellant, v. 20-3590 Governor Andrew M. Cuomo, in his official capacity, Defendant-Appellee. * Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation.",
"Case 1:20-cv-04834-KAM-RML Document 20 Filed 11/10/20 Page 2 of 5 PageID #: 717 These appeals, which are being heard in tandem, arise from the ongoing COVID-19 pandemic. The pandemic has caused more than 25,000 deaths in New York State and more than 10,000 deaths in Brooklyn and Queens alone. In response to a recent spike in cases concentrated in parts of Brooklyn, Queens, and other areas, Governor Andrew Cuomo issued an executive order to limit further spread of the virus in these COVID-19 “hotspots.” The executive order directs the New York State Department of Health to identify yellow, orange, and red “zones” based on the severity of outbreaks, and it imposes correspondingly severe restrictions on activity within each zone. For example, the order provides that in “red zones,” non-essential gatherings of any size must be cancelled, non-essential businesses must be closed, schools must be closed for in-person instruction, restaurants cannot seat customers, and houses of worship may hold services but are subject to a capacity limit of 25 percent of their maximum occupancy or 10 people, whichever is fewer.",
"The Appellants—Agudath Israel of America, Agudath Israel of Kew Garden Hills, Agudath Israel of Madison, Agudath Israel of Bayswater, Rabbi Yisroel Reisman, Rabbi Menachem Feifer, Steven Saphirstein (collectively, “Agudath Israel”), and The Roman Catholic Diocese of Brooklyn, New York (the “Diocese”)—each challenged the executive order as a violation of the Free Exercise Clause of the First Amendment. In each case, the district court denied the Appellants’ motion for a preliminary injunction against the enforcement of the order.",
"The Appellants now move for emergency injunctions pending appeal and to expedite their appeals, after an applications Judge on our Court denied their requests for an administrative stay, No. 20-3572, doc. 30; No. 20-3590, doc. 29. Preliminarily, we conclude that Agudath Israel did not “move first in the district court for” an order “granting an injunction while an appeal is pending” before filing with this Court its present motion for an injunction pending appeal. Fed. R. App.",
"P. 8(a)(1)(C). Instead, Appellant moved for a preliminary injunction pending the district court’s final judgment. In its briefs and at oral argument before this panel, moreover, Agudath Israel has not explained or otherwise justified its failure to comply with the straightforward requirement of Rule 8(a). Agudath Israel also has failed to demonstrate that “moving first in the district court would be impracticable,” Fed. R. App. P. 8(a)(2)(A), or even futile, particularly in light of the fact that a full eleven days elapsed after the district court’s ruling before Agudath Israel sought relief from this Court.",
"We deny Agudath Israel’s motion for these procedural reasons. See Hirschfeld v. Bd. of Elections in N.Y., 984 F.2d 35, 38 (2d Cir. 1993). We deny the Diocese’s motion for an injunction pending appeal—and would deny the motion filed by Agudath Israel if it were properly before us—for the reasons that follow. As an initial matter, an injunction is “an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 24 (2008). To obtain an injunction from a district court, movants generally bear the burden of showing that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. Id. at 20.",
"2 Case 1:20-cv-04834-KAM-RML Document 20 Filed 11/10/20 Page 3 of 5 PageID #: 718 To obtain a stay of a district court’s order pending appeal, more is required, including a “strong showing that [the movant] is likely to succeed on the merits.” New York v. U.S. Dep’t of Homeland Sec., 974 F.3d 210, 214 (2d Cir. 2020). The motions at issue here seek a remedy still more drastic than a stay: an injunction issued in the first instance by an appellate court. “Such a request demands a significantly higher justification than a request for a stay because, unlike a stay, an injunction does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts.” Respect Maine PAC v. McKee, 562 U.S. 996, 996 (2010) (quotation marks omitted).",
"“The Free Exercise Clause, which applies to the States under the Fourteenth Amendment, protects religious observers against unequal treatment and against laws that impose special disabilities on the basis of religious status.” Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2254 (2020) (quotation marks omitted); see Cent. Rabbinical Cong. of U.S. & Canada v. N.Y.C. Dep’t of Health & Mental Hygiene, 763 F.3d 183, 193 (2d Cir. 2014) (“[T]he Free Exercise Clause . . . protects the performance of (or abstention from) physical acts that constitute the free exercise of religion: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation.”) (quotation marks omitted)). But the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability,” Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 879 (1990) (quotation marks omitted), “even if the law has the incidental effect of burdening a particular religious practice,” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993).",
"“A law burdening religious conduct that is not both neutral and generally applicable, however, is subject to strict scrutiny.” Cent. Rabbinical, 763 F.3d at 193 (citing Lukumi, 508 U.S. at 531–32). “A law is not neutral if it is specifically directed at a religious practice.” Id. (cleaned up). Similarly, a law is “not generally applicable if it is substantially underinclusive such that it regulates religious conduct while failing to regulate secular conduct that is at least as harmful to the legitimate government interests purportedly justifying it.” Id. at 197. The Court fully understands the impact the executive order has had on houses of worship throughout the affected zones. Nevertheless, the Appellants cannot clear the high bar necessary to obtain an injunction pending appeal. The challenged executive order establishes zones based on the severity of the COVID-19 outbreaks in different parts of New York.",
"Within each zone, the order subjects religious services to restrictions that are similar to or, indeed, less severe than those imposed on comparable secular gatherings. See S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J., concurring) (denying emergency injunctive relief to houses of worship that were subject to similar or less severe restrictions than those applicable to comparable secular gatherings); see also Elim Romanian Pentecostal Church v. Pritzker, 962 F.3d 341, 342, 346–47 (7th Cir. 2020) (upholding an order that capped religious gatherings at ten people where the most comparable activities—those “that occur in auditoriums, such as concerts and movies”— had been banned completely); cf. Commack Self-Serv.",
"Kosher Meats, Inc. v. Hooker, 680 F.3d 194, 210–11 (2d Cir. 2011) (holding that a Kosher food labeling act was a neutral and generally applicable law subject to rational basis review because it applied 3 Case 1:20-cv-04834-KAM-RML Document 20 Filed 11/10/20 Page 4 of 5 PageID #: 719 to “food purchased by individuals of many different religious beliefs” and impacted consumers who purchased kosher products “for reasons unrelated to religious observance”). Thus, while it is true that the challenged order burdens the Appellants’ religious practices, the order is not “substantially underinclusive” given its greater or equal impact on schools, restaurants, and comparable secular public gatherings.",
"Cf. No. 20-3590, doc. 20, Ex. L at 2 (Governor Cuomo criticizing the order’s policy of “clos[ing] every school” as “a policy being cut by a hatchet,” not “a scalpel”). To the contrary, the executive order “extend[s] well beyond isolated groups of religious adherents” to “encompass[] both secular and religious conduct.” Cent. Rabbinical, 763 F.3d at 195. In a dissent from this Court’s order, our colleague asserts that the executive order is subject to strict scrutiny because it violates the minimum requirement of neutrality. The fact that theaters, casinos, and gyms are more restricted than places of worship, the dissent reasons, “only highlights the fact that the order is not neutral towards religion.” But this view is undermined by recent precedent, which makes clear that COVID-19 restrictions that treat places of worship on a par with or more favorably than comparable secular gatherings do not run afoul of the Free Exercise Clause. See, e.g., S. Bay, 140 S. Ct. at 1613 (Roberts, C.J., concurring) (guidelines that “place[d] restrictions on places of worship” less severe than those on comparable gatherings “appear consistent with the Free Exercise Clause”); see also Elim, 962 F.3d at 347 (same).",
"The dissent attempts to distinguish South Bay as having been decided during the early stages of the pandemic while local governments were actively shaping their response to changing facts on the ground. But here, too, the executive order is a response to rapidly changing facts on the ground. For several months, New York’s “limits and restrictions lessen[ed] and evolve[d] as the curve continue[d] to flatten,” and the State’s “limits and restrictions . . . increase[d]” only when “a review of the data indicate[d] a trend of increasing COVID-19 cases or spikes of cases in [the] cluster areas” targeted by the challenged executive order.",
"No. 20 Civ. 4834 (KAM) (E.D.N.Y. 2020), doc. 12 at 14, 18–19. In any event, South Bay did not draw a distinction between the pandemic in its early or late stage. Its central relevant facts exist in New York in November 2020 just as they existed in California in May 2020: There is no vaccine or known cure for COVID-19; the pandemic has killed hundreds of thousands of Americans; and “[b]ecause people may be infected but asymptomatic, they may unwittingly infect others.” S. Bay, 140 S. Ct. at 1613 (Roberts, C.J., concurring). Upon due consideration, and for the foregoing reasons, it is hereby ORDERED that the Appellants’ motions for injunctions pending appeal are DENIED. Among other infirmities in their arguments, the Appellants have failed to meet the requisite standard for an injunction pending appeal.",
"See New York v. U.S. Dep’t of Homeland Sec., 974 F.3d at 214. It is further ORDERED that the motion to expedite the appeals is GRANTED. We address here only the Appellants’ motions for injunctions pending appeal and to expedite their appeals, not their underlying appeals challenging the district courts’ refusals to provide preliminary injunctive relief. With respect to the underlying appeals, the parties have agreed to the following 4 Case 1:20-cv-04834-KAM-RML Document 20 Filed 11/10/20 Page 5 of 5 PageID #: 720 merits briefing schedule: Appellants’ briefs are due Tuesday, November 17, 2020; Appellee’s brief is due Tuesday, December 8, 2020; Appellants’ reply briefs are due Monday, December 14, 2020, and the matter is to be calendared as early as the week of December 14, 2020. Judge Park dissents from the denial of the motions for injunctions pending appeal.",
"FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court 5"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/151638685/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
PER CURIAM. Plaintiff Mark Friedman appeals from the district court’s grant of summary judgment to the defendants based on qualified immunity. Friedman, a former County Corrections Officer, was terminated from his job by defendant Ronald L. Bishop, Chief of the Jefferson County Corrections Department, and the termination was approved by defendant County Judge/Executive David L. Armstrong and the defen*205dant Jefferson County Fiscal Court. We affirm. Friedman appealed his termination to the Jefferson County Merit Board, which recommended that he be reinstated. However, Armstrong refused to reinstate him. Friedman then filed suit against Armstrong, Bishop, and the Fiscal Court, in the Jefferson Circuit Court, which ordered that Friedman be reinstated. After that decision was appealed by Armstrong to the Kentucky Court of Appeals, Friedman filed this case in the district court, claiming violations of 42 U.S.C. § 1983, alleging that the defendants deprived him of his rights under the Fifth and Fourteenth Amendments to the Constitution for failing to give him adequate notice and an opportunity to respond to the allegations against him prior to his termination. The district court granted summary judgment to the defendants, finding that they were entitled to qualified immunity because the law was not clearly established that the County Judge/Executive did not have the authority to discharge Friedman against the recommendation of the Merit Board. After this case was argued before this panel, we certified the matter to the Kentucky Supreme Court pursuant to Kentucky Rule of Civil Procedure 76.37. Thereafter, the Kentucky Supreme Court decided Friedman v. Armstrong, 59 S.W.3d 875 (Ky.2001), which was the final ruling in Friedman’s case through the state court system. Because of that decision, the Kentucky Supreme Court declined to accept our certification. Therefore, because Friedman, 59 S.W.3d at 878, held that Armstrong had the final authority, with the approval of the fiscal court, to remove county employees, not only were the defendants entitled to qualified immunity, but there was also no cause of action for the discharge, because it was authorized by law. Friedman’s only response is his argument that the law was exactly the opposite prior to the Kentucky Supreme Court’s opinion in Friedman. He cites the unreported decision of Jefferson County Correctional Department v. Peerce, Civ. Action No. 92-CI-006201 (Ky.Ct.App.1994), to support his position. Friedman’s reliance on this opinion, however, is unwarranted, if for no other reason than because the unreported decision has no precedential value. Artip v. Samons Constr. Inc., 54 S.W.3d 169, 173 n. 1 (Ky.Ct.App.2001) (noting that “according to the Kentucky Rules of Civil Procedure (CR) 76.28(4)(c), unpublished cases are not to be cited as precedent in Kentucky”). His citation to City of Louisville v. Milligan, 798 S.W.2d 454 (Ky.1990), is similarly unavailing because Milligan did not involve the statute that is at issue in the present case. Compare Milligan, 798 S.W.2d at 455-56 (framing the issue as “whether [Kentucky Revised Statute] 90.190(2) provides authority to the civil service board to modify a disciplinary penalty imposed by the appointing authority”) with Friedman, 59 S.W.3d at 877-78 (interpreting Jefferson County Merit Board Rule 7.3(l)(a) and Kentucky Revised Statute 67.710(7)). Moreover, the fact that this panel certified the question for resolution by the Kentucky Supreme Court shows that reasonable jurists were in doubt about whether the County Judge/Executive’s actions were lawful. For these reasons, Friedman’s contention that the law was clearly established that the County Judge/Executive lacked the authority to overrule the decision of the merit board before the Kentucky Supreme Court’s opinion in Friedman has no merit. AFFIRMED. | 07-24-2022 | [
"PER CURIAM. Plaintiff Mark Friedman appeals from the district court’s grant of summary judgment to the defendants based on qualified immunity. Friedman, a former County Corrections Officer, was terminated from his job by defendant Ronald L. Bishop, Chief of the Jefferson County Corrections Department, and the termination was approved by defendant County Judge/Executive David L. Armstrong and the defen*205dant Jefferson County Fiscal Court. We affirm. Friedman appealed his termination to the Jefferson County Merit Board, which recommended that he be reinstated. However, Armstrong refused to reinstate him. Friedman then filed suit against Armstrong, Bishop, and the Fiscal Court, in the Jefferson Circuit Court, which ordered that Friedman be reinstated. After that decision was appealed by Armstrong to the Kentucky Court of Appeals, Friedman filed this case in the district court, claiming violations of 42 U.S.C. § 1983, alleging that the defendants deprived him of his rights under the Fifth and Fourteenth Amendments to the Constitution for failing to give him adequate notice and an opportunity to respond to the allegations against him prior to his termination.",
"The district court granted summary judgment to the defendants, finding that they were entitled to qualified immunity because the law was not clearly established that the County Judge/Executive did not have the authority to discharge Friedman against the recommendation of the Merit Board. After this case was argued before this panel, we certified the matter to the Kentucky Supreme Court pursuant to Kentucky Rule of Civil Procedure 76.37. Thereafter, the Kentucky Supreme Court decided Friedman v. Armstrong, 59 S.W.3d 875 (Ky.2001), which was the final ruling in Friedman’s case through the state court system. Because of that decision, the Kentucky Supreme Court declined to accept our certification. Therefore, because Friedman, 59 S.W.3d at 878, held that Armstrong had the final authority, with the approval of the fiscal court, to remove county employees, not only were the defendants entitled to qualified immunity, but there was also no cause of action for the discharge, because it was authorized by law.",
"Friedman’s only response is his argument that the law was exactly the opposite prior to the Kentucky Supreme Court’s opinion in Friedman. He cites the unreported decision of Jefferson County Correctional Department v. Peerce, Civ. Action No. 92-CI-006201 (Ky.Ct.App.1994), to support his position. Friedman’s reliance on this opinion, however, is unwarranted, if for no other reason than because the unreported decision has no precedential value. Artip v. Samons Constr. Inc., 54 S.W.3d 169, 173 n. 1 (Ky.Ct.App.2001) (noting that “according to the Kentucky Rules of Civil Procedure (CR) 76.28(4)(c), unpublished cases are not to be cited as precedent in Kentucky”). His citation to City of Louisville v. Milligan, 798 S.W.2d 454 (Ky.1990), is similarly unavailing because Milligan did not involve the statute that is at issue in the present case. Compare Milligan, 798 S.W.2d at 455-56 (framing the issue as “whether [Kentucky Revised Statute] 90.190(2) provides authority to the civil service board to modify a disciplinary penalty imposed by the appointing authority”) with Friedman, 59 S.W.3d at 877-78 (interpreting Jefferson County Merit Board Rule 7.3(l)(a) and Kentucky Revised Statute 67.710(7)).",
"Moreover, the fact that this panel certified the question for resolution by the Kentucky Supreme Court shows that reasonable jurists were in doubt about whether the County Judge/Executive’s actions were lawful. For these reasons, Friedman’s contention that the law was clearly established that the County Judge/Executive lacked the authority to overrule the decision of the merit board before the Kentucky Supreme Court’s opinion in Friedman has no merit. AFFIRMED."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7150346/ | 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 . In view of the revised claims and applicant’s arguments and finding a new prior art, the examiner has decided to reopen the prosecution of the application.
. Non-Final Rejection
The Status of Claims: Claims 1, 3-4, and 21-22 are pending. Claims 1, 3-4, and 21-22 are rejected.
DETAILED ACTION 1. Claims1, 3-4, and 21-22 are under consideration in this Office Action. Priority 2. It is noted that this application is a 371 of PCT/EP2017/068228(07/19/2017) , which has a foreign priority document, JAPAN 2017-114097 06/09/2017.
Drawings 3. The drawing filed on 12/05/2019 is accepted by the examiner. IDS 4. None.
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.
5. Claim(s) 21-22 are rejected under 35 U.S.C. 102(a)(1) as being anticipated clearly by Ohtani et al (Hokkaido University Collection of Scholarly and Academic Papers: HUSCAP, 2010, .p.1-17) Ohtani et al discloses a composition containing titania TiO2 photocatalyst , NiO in the following:
PNG media_image1.png 172 1143 media_image1.png Greyscale
(see page 3, a section of 2.2)
PNG media_image2.png 336 1353 media_image2.png Greyscale
(see page 5, a second paragraph )
PNG media_image3.png 256 1376 media_image3.png Greyscale
(see page 6, a section of 3.2 ) These are inherently identical with the claims regardless of mentioning a multilayer structure as in the claims.
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
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
6. Claim(s) 1-3, 4 , 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over Katosutoshi et al(JP 2017-87548) in view of Ohtani et al (Hokkaido University Collection of Scholarly and Academic Papers: HUSCAP, 2010, .p.1-17). Applicant claims the followings:
3. (Previously Presented) The multilayer structure according to claim 1, wherein a proportion of anatase-type titanium dioxide in the titanium oxide layer is not less than 40.0%. 4. (Previously Presented) The multilayer structure according to claim 1, further including at least one type of base selected from the group consisting of a metallic base, a ceramic base and a resin base, wherein the conductive portion is disposed on the base. 21. (Previously Presented) A multilayer structure comprising: a conductive portion containing a metal element A which is not Ti and having electrical conductivity; and a titanium oxide layer disposed on the conductive portion and containing the metal element A in an amount of not less than 1.0 at%, wherein the metal element A is Ni. 22. (Previously Presented) The multilayer structure according to claim 21, further including at least one type of base selected from the group consisting of a metallic base, a ceramic base, and a resin base, wherein the conductive portion is disposed on the base.
Determination of the scope and content of the prior art
Katosutoshi et al discloses a decorative plate comprising a substrate, a surface resin layer laminated on the substrate, a metal layer partially disposed on the surface resin layer as in the instant claims 4 and 22, and a functional substance carried on the metal layer, furthermore, the metal layer comprises at least one element selected from the group consisting of Fe, Cu, Ni, Ag, Au, and Al; and a visible light responsive photocatalyst is used for the functional substance, the visible-light-responsive photocatalyst being a platinum-supported titania catalyst, a copper supported titania catalyst, an iron-supported titania catalyst, a nitrogen-doped titania catalyst, a sulfurdoped titania catalyst, or a carbon-doped titania catalyst. (see claims 1, 3, and 5-6) Also, Katosutoshi et al discloses using an anatase-type titanium oxide containing copper in the range of CuO/TiO2 (wt% ratio) = 1.0 to 3.5,as in the inst claim 1 (In part) and the photocatalyst can contain Cu at an amount of 1.0 atom% or above. (see page 20 ,a paragraph#0047) Moreover, it discloses a decorative plate having a surface resin layer laminate on a substrate, a copper foil (metal layer) having a grid pattern on the surface resin layer, and a CuO-TiO2 photocatalyst applied onto the copper foil. The substrate and the surface resin layer can be said to correspond to the substrate of the claimed invention, the copper foil (metal layer) can be said to correspond to the electroconductive part, and the CuO/TiO2 photocatalyst can be said to correspond to the titanium oxide layer containing a metal element A. (see page 28, paragraphs#0071-0073)..
The instant invention, however, differs from the prior art in that the claimed proportion of anatase-type titanium dioxide in the titanium oxide layer being not less than 12.2% or 40% is unspecified in the prior art.
Ohtani et al discloses a composition containing titania TiO2 photocatalyst and NiO in the following:
PNG media_image1.png 172 1143 media_image1.png Greyscale
as in the instant claim 21 (see page 3, a section of 2.2)
PNG media_image2.png 336 1353 media_image2.png Greyscale
(see page 5, a second paragraph )
PNG media_image3.png 256 1376 media_image3.png Greyscale
(see page 6, a section of 3.2 )
Ascertainment of the difference between the prior art and the claims
1. The difference between the instant application and the applied art is that the applied Katosutoshi et al art does not expressly teach the claimed proportion of anatase-type titanium dioxide in the titanium oxide layer being not less than 12.2% or 40%. The deficiency of Katosutoshi et al art is cured by Ohtani et al. 2. The difference between the instant application and the applied Ohtani et al is that the Ohtani et al does not expressly teach the itanium oxide layer disposed on the conductive portion and containing the element A in an amount of not less than 1.0 at%, wherein the Ohtani et al are cured by Katosutoshi et al
Resolving the level of ordinary skill in the pertinent art.
Regarding the instant Claims 1 and 3, with respect to the lack of disclosing the claimed proportion of anatase-type titanium dioxide in the titanium oxide layer being not less than 12.2% or 40%, the secondary reference, Ohtani et al does disclose information about titanium dioxide that the typical crystalline composition of P25 titania is composed of 78 % (see page 5, a second paragraph ). Thus, it seems relevant to the claimed invention.
Considering objective evidence present in the application indicating obviousness or nonobviousness. Katosutoshi expressly discloses the decorative plate comprising a substrate, a surface resin layer laminated on the substrate, a metal layer partially disposed on the surface resin layer, and a functional substance carried on the metal layer, furthermore, the metal layer comprises at least one element selected from the group consisting of Fe, Cu, Ni, Ag, and Al; and a visible light responsive photocatalyst is used for the functional substance. Also, Katosutoshi et al discloses using an anatase-type titanium oxide. Whereas Ohtani does teach the typical composition containing titania TiO2 photocatalyst having a proportion of 78 % anatase. Both are closely related to each other in a relationship with respect to the decorative plate using for the functional substance as a photocatalyst and the information about the proportion of 78 % anatase content in TiO2 as a photocatalst. So, it would have been obvious to the skilled artisan in the art to be motivated to incorporate the teaching of Ohtani’s proportion of 78 % anatase of P 25 into Katosutoshi‘s photocatalyst in order to optimize the use of the photocatalyst for the system.. .
Conclusion
Claims 1, 3-4, and 21-22 are rejected.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TAYLOR V OH whose telephone number is (571)272-0689. The examiner can normally be reached on 8:00-5:00. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anna Jiang can be reached on 571-272-0627. 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 /TAYLOR V OH/Primary Examiner, Art Unit 1625 11/4/2021 | 2021-11-12T04:10:00 | [
"Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . In view of the revised claims and applicant’s arguments and finding a new prior art, the examiner has decided to reopen the prosecution of the application. . Non-Final Rejection The Status of Claims: Claims 1, 3-4, and 21-22 are pending. Claims 1, 3-4, and 21-22 are rejected. DETAILED ACTION 1. Claims1, 3-4, and 21-22 are under consideration in this Office Action. Priority 2. It is noted that this application is a 371 of PCT/EP2017/068228(07/19/2017) , which has a foreign priority document, JAPAN 2017-114097 06/09/2017. Drawings 3. The drawing filed on 12/05/2019 is accepted by the examiner. IDS 4.",
"None. 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. 5. Claim(s) 21-22 are rejected under 35 U.S.C. 102(a)(1) as being anticipated clearly by Ohtani et al (Hokkaido University Collection of Scholarly and Academic Papers: HUSCAP, 2010, .p.1-17) Ohtani et al discloses a composition containing titania TiO2 photocatalyst , NiO in the following: PNG media_image1.png 172 1143 media_image1.png Greyscale (see page 3, a section of 2.2) PNG media_image2.png 336 1353 media_image2.png Greyscale (see page 5, a second paragraph ) PNG media_image3.png 256 1376 media_image3.png Greyscale (see page 6, a section of 3.2 ) These are inherently identical with the claims regardless of mentioning a multilayer structure as in the claims.",
"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 The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4.",
"Considering objective evidence present in the application indicating obviousness or nonobviousness. This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.",
"6. Claim(s) 1-3, 4 , 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over Katosutoshi et al(JP 2017-87548) in view of Ohtani et al (Hokkaido University Collection of Scholarly and Academic Papers: HUSCAP, 2010, .p.1-17). Applicant claims the followings: 3. (Previously Presented) The multilayer structure according to claim 1, wherein a proportion of anatase-type titanium dioxide in the titanium oxide layer is not less than 40.0%. 4. (Previously Presented) The multilayer structure according to claim 1, further including at least one type of base selected from the group consisting of a metallic base, a ceramic base and a resin base, wherein the conductive portion is disposed on the base. 21. (Previously Presented) A multilayer structure comprising: a conductive portion containing a metal element A which is not Ti and having electrical conductivity; and a titanium oxide layer disposed on the conductive portion and containing the metal element A in an amount of not less than 1.0 at%, wherein the metal element A is Ni.",
"22. (Previously Presented) The multilayer structure according to claim 21, further including at least one type of base selected from the group consisting of a metallic base, a ceramic base, and a resin base, wherein the conductive portion is disposed on the base. Determination of the scope and content of the prior art Katosutoshi et al discloses a decorative plate comprising a substrate, a surface resin layer laminated on the substrate, a metal layer partially disposed on the surface resin layer as in the instant claims 4 and 22, and a functional substance carried on the metal layer, furthermore, the metal layer comprises at least one element selected from the group consisting of Fe, Cu, Ni, Ag, Au, and Al; and a visible light responsive photocatalyst is used for the functional substance, the visible-light-responsive photocatalyst being a platinum-supported titania catalyst, a copper supported titania catalyst, an iron-supported titania catalyst, a nitrogen-doped titania catalyst, a sulfurdoped titania catalyst, or a carbon-doped titania catalyst.",
"(see claims 1, 3, and 5-6) Also, Katosutoshi et al discloses using an anatase-type titanium oxide containing copper in the range of CuO/TiO2 (wt% ratio) = 1.0 to 3.5,as in the inst claim 1 (In part) and the photocatalyst can contain Cu at an amount of 1.0 atom% or above. (see page 20 ,a paragraph#0047) Moreover, it discloses a decorative plate having a surface resin layer laminate on a substrate, a copper foil (metal layer) having a grid pattern on the surface resin layer, and a CuO-TiO2 photocatalyst applied onto the copper foil. The substrate and the surface resin layer can be said to correspond to the substrate of the claimed invention, the copper foil (metal layer) can be said to correspond to the electroconductive part, and the CuO/TiO2 photocatalyst can be said to correspond to the titanium oxide layer containing a metal element A.",
"(see page 28, paragraphs#0071-0073).. The instant invention, however, differs from the prior art in that the claimed proportion of anatase-type titanium dioxide in the titanium oxide layer being not less than 12.2% or 40% is unspecified in the prior art. Ohtani et al discloses a composition containing titania TiO2 photocatalyst and NiO in the following: PNG media_image1.png 172 1143 media_image1.png Greyscale as in the instant claim 21 (see page 3, a section of 2.2) PNG media_image2.png 336 1353 media_image2.png Greyscale (see page 5, a second paragraph ) PNG media_image3.png 256 1376 media_image3.png Greyscale (see page 6, a section of 3.2 ) Ascertainment of the difference between the prior art and the claims 1. The difference between the instant application and the applied art is that the applied Katosutoshi et al art does not expressly teach the claimed proportion of anatase-type titanium dioxide in the titanium oxide layer being not less than 12.2% or 40%.",
"The deficiency of Katosutoshi et al art is cured by Ohtani et al. 2. The difference between the instant application and the applied Ohtani et al is that the Ohtani et al does not expressly teach the itanium oxide layer disposed on the conductive portion and containing the element A in an amount of not less than 1.0 at%, wherein the Ohtani et al are cured by Katosutoshi et al Resolving the level of ordinary skill in the pertinent art.",
"Regarding the instant Claims 1 and 3, with respect to the lack of disclosing the claimed proportion of anatase-type titanium dioxide in the titanium oxide layer being not less than 12.2% or 40%, the secondary reference, Ohtani et al does disclose information about titanium dioxide that the typical crystalline composition of P25 titania is composed of 78 % (see page 5, a second paragraph ). Thus, it seems relevant to the claimed invention. Considering objective evidence present in the application indicating obviousness or nonobviousness.",
"Katosutoshi expressly discloses the decorative plate comprising a substrate, a surface resin layer laminated on the substrate, a metal layer partially disposed on the surface resin layer, and a functional substance carried on the metal layer, furthermore, the metal layer comprises at least one element selected from the group consisting of Fe, Cu, Ni, Ag, and Al; and a visible light responsive photocatalyst is used for the functional substance. Also, Katosutoshi et al discloses using an anatase-type titanium oxide. Whereas Ohtani does teach the typical composition containing titania TiO2 photocatalyst having a proportion of 78 % anatase. Both are closely related to each other in a relationship with respect to the decorative plate using for the functional substance as a photocatalyst and the information about the proportion of 78 % anatase content in TiO2 as a photocatalst.",
"So, it would have been obvious to the skilled artisan in the art to be motivated to incorporate the teaching of Ohtani’s proportion of 78 % anatase of P 25 into Katosutoshi‘s photocatalyst in order to optimize the use of the photocatalyst for the system.. . Conclusion Claims 1, 3-4, and 21-22 are rejected. Any inquiry concerning this communication or earlier communications from the examiner should be directed to TAYLOR V OH whose telephone number is (571)272-0689. The examiner can normally be reached on 8:00-5:00. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.",
"If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anna Jiang can be reached on 571-272-0627. 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 /TAYLOR V OH/Primary Examiner, Art Unit 1625 11/4/2021"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-11-14.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10
11 RAY KORNFELD, Case No. 1:19-cv-00263-DAD-JLT (HC) Petitioner, 12 ORDER CORRECTING ORDER v. GRANTING APPLICATION TO 13 PROCEED IN FORMA PAUPERIS G. PUENTES, ORDER DIRECTING TAFT 14 Respondent. CORRECTIONAL INSTITUTION TO CEASE COLLECTION OF PAYMENTS IN 15 THIS CASE
16 ORDER DIRECTING CLERK OF COURT TO RETURN ANY PAYMENTS MADE IN 17 THIS CASE TO PETITIONER
18 On February 25, 2019, Mr. Kornfield filed a petition for writ of habeas corpus along with
19 a motion to proceed in forma pauperis. (Docs. 1, 3.) On February 27, 2019, the Court issued an
20 order granting the motion to proceed in forma pauperis. It has come to the Court’s attention that
21 the order mischaracterized the action as a civil rights action pursuant to 42 U.S.C. § 1983, and
22 thus directed the Taft Correctional Institution to collect partial payments from Petitioner’s
23 account for the statutory filing fee of $350.00. (Doc. 3.) Petitioner is in fact proceeding with a
24 habeas petition pursuant to 28 U.S.C. § 2241 and therefore not subject to the $350.00 filing fee.
25 Accordingly, the Court ORDERS:
26 1) The order of February 25, 2019, (Doc. 3), is CORRECTED to reflect that Petitioner is
27 proceeding with a petition pursuant to 28 U.S.C. § 2241;
28 2) Petitioner is AUTHORIZED to proceed in forma pauperis pursuant to 28 U.S.C. § 1 1 1915;
2 3) The order directing Taft Correctional Institution to collect partial payments toward the
3 filing fee in this case is VACATED;
4 4) Taft Correctional Institution is DIRECTED to cease collection of partial payments in
5 this case;
6 5) The Clerk of Court is DIRECTED to return to Petitioner any payments collected for
7 the filing fee.
8 IT IS SO ORDERED. 9
10 Dated: June 6, 2019 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 11
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28 2 | 2019-06-06 | [
"1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RAY KORNFELD, Case No. 1:19-cv-00263-DAD-JLT (HC) Petitioner, 12 ORDER CORRECTING ORDER v. GRANTING APPLICATION TO 13 PROCEED IN FORMA PAUPERIS G. PUENTES, ORDER DIRECTING TAFT 14 Respondent. CORRECTIONAL INSTITUTION TO CEASE COLLECTION OF PAYMENTS IN 15 THIS CASE 16 ORDER DIRECTING CLERK OF COURT TO RETURN ANY PAYMENTS MADE IN 17 THIS CASE TO PETITIONER 18 On February 25, 2019, Mr. Kornfield filed a petition for writ of habeas corpus along with 19 a motion to proceed in forma pauperis. (Docs. 1, 3.)",
"On February 27, 2019, the Court issued an 20 order granting the motion to proceed in forma pauperis. It has come to the Court’s attention that 21 the order mischaracterized the action as a civil rights action pursuant to 42 U.S.C. § 1983, and 22 thus directed the Taft Correctional Institution to collect partial payments from Petitioner’s 23 account for the statutory filing fee of $350.00. (Doc.",
"3.) Petitioner is in fact proceeding with a 24 habeas petition pursuant to 28 U.S.C. § 2241 and therefore not subject to the $350.00 filing fee. 25 Accordingly, the Court ORDERS: 26 1) The order of February 25, 2019, (Doc. 3), is CORRECTED to reflect that Petitioner is 27 proceeding with a petition pursuant to 28 U.S.C. § 2241; 28 2) Petitioner is AUTHORIZED to proceed in forma pauperis pursuant to 28 U.S.C. § 1 1 1915; 2 3) The order directing Taft Correctional Institution to collect partial payments toward the 3 filing fee in this case is VACATED; 4 4) Taft Correctional Institution is DIRECTED to cease collection of partial payments in 5 this case; 6 5) The Clerk of Court is DIRECTED to return to Petitioner any payments collected for 7 the filing fee. 8 IT IS SO ORDERED. 9 10 Dated: June 6, 2019 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/90097747/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Millennium Energy Group, L.L.C. and Craig N. Kitchen v. John J. Norkus, Jr., Ensign Investments, LLC, Jon Washam, Mike R. Gilbert and Ruth Lewis Washan
Appellate case number: 01-12-01054-CV
Trial court case number: 1201796
Trial court: 190th District Court of Harris County
E.R. (Ned) Turnbull, counsel for appellants, Millennium Energy Group, LLC and Craig N. Kitchen has filed a motion to withdraw as appellate counsel. It is ordered that the motion to withdraw as appellate counsel is granted.
A corporation may be represented only by a licensed attorney in the prosecution of its appeal. See Moore v. Elektro-Mobile Technik GmbH, 874 S.W/.2d 324, 327 (Tex. App.—El Paso 1994, writ denied). Accordingly, if it desires to prosecute its appeal, Millennium Energy Group, LLC must retain licensed counsel to represent it. Any attorney retained to represent Millennium Energy Group, LLC in this appeal must make an appearance by filing a notice of representation with the Clerk of this Court by July 19, 2013. If such notice of representation is not filed, Millennium Energy Group, LLC’s appeal will be dismissed on August 2, 2013. See TEX. R. APP. P. 42.3(b), (c); see also MHL Homebuilder LLC v. Dabal/Graphic Resource, No. 14-05000295-CV, 2005 WL 1404475 (Tex. App.—Houston [14th Dist.] June 16, 2005, no pet.) (mem. op.).
Appellant, Craig N. Kitchen, is ordered to notify the Court by July 19, 2013 if he intends to pursue this appeal pro se or if he intends to retain counsel.
Judge’s signature: /s/ Terry Jennings Acting individually Acting for the Court
Date: June 27, 2013 | 10-16-2015 | [
"COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: Millennium Energy Group, L.L.C. and Craig N. Kitchen v. John J. Norkus, Jr., Ensign Investments, LLC, Jon Washam, Mike R. Gilbert and Ruth Lewis Washan Appellate case number: 01-12-01054-CV Trial court case number: 1201796 Trial court: 190th District Court of Harris County E.R. (Ned) Turnbull, counsel for appellants, Millennium Energy Group, LLC and Craig N. Kitchen has filed a motion to withdraw as appellate counsel. It is ordered that the motion to withdraw as appellate counsel is granted.",
"A corporation may be represented only by a licensed attorney in the prosecution of its appeal. See Moore v. Elektro-Mobile Technik GmbH, 874 S.W/.2d 324, 327 (Tex. App.—El Paso 1994, writ denied). Accordingly, if it desires to prosecute its appeal, Millennium Energy Group, LLC must retain licensed counsel to represent it. Any attorney retained to represent Millennium Energy Group, LLC in this appeal must make an appearance by filing a notice of representation with the Clerk of this Court by July 19, 2013.",
"If such notice of representation is not filed, Millennium Energy Group, LLC’s appeal will be dismissed on August 2, 2013. See TEX. R. APP. P. 42.3(b), (c); see also MHL Homebuilder LLC v. Dabal/Graphic Resource, No. 14-05000295-CV, 2005 WL 1404475 (Tex. App.—Houston [14th Dist.] June 16, 2005, no pet.) (mem. op.). Appellant, Craig N. Kitchen, is ordered to notify the Court by July 19, 2013 if he intends to pursue this appeal pro se or if he intends to retain counsel. Judge’s signature: /s/ Terry Jennings Acting individually Acting for the Court Date: June 27, 2013"
]
| https://www.courtlistener.com/api/rest/v3/opinions/3117112/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
The opinion of the court was delivered by ARNOLD M. STEIN, J.S.C. (temporarily assigned). In these consolidated appeals, appellant Warren Hospital (Warren) challenges the validity of amendments to certain rate reimbursement regulations promulgated by respondent Department of Health (DOH or Department) through the Health Care Administration Board (HCAB). On April 21,1986, HCAB promulgated amendments to N.J.A. C. 8:31B-3.31 and 3.51, and on July 7, 1986, adopted an additional amendment to section 3.31. On October 5, 1987, further amendments to 3.31 were adopted by HCAB. Warren filed a notice of appeal from these amendments on November 17, 1987. A motion to consolidate this appeal with those previously docketed was granted on March 28, 1988. Warren contends, inter alia, that these amendments are invalid because the appeal mechanism set forth therein conflicts with the intent of the enabling statute, and because they are arbitrary and capricious. We reverse because the appeal procedure conflicts with the statutory right of appeal afforded to hospitals pursuant to N.J.S.A. 26:2H-18.1 of the Health Care Facilities Act. N.J.S.A. 26:2H-1 et seq. Because we rule the amendments invalid on this ground, we do not reach the substantive question of whether they are arbitrary. *388The HCAB, established by N.J.S.A. 26:2H-4, acts in conjunction with the State Commissioner of Health to “adopt and amend rules and regulations in accordance with the Administrative Procedure Act ... to effectuate the provisions and purpose of this act, including but not limited to: ... (2) certification by the department of schedules of rates, payments, reimbursement, grants and other charges for health care services____” NJ.S.A. 26:2H-5b. Pursuant to this legislative authority, the Department and HCAB promulgated N.J.A.C. 8:31B-3.1 et seq., Procedural and Methodological Regulations. This rate-setting system is designed to set a prospective rate of treatment, in advance of actual treatment. The rate is related to the hospital resources consumed in treating particular illnesses, categorized as Diagnosis Related Groups (DRG). N.J.A.C. 8:31B-5.1 et seq. The current cost base for an institution includes both direct and indirect patient care costs. Direct patient care costs include salaries and fringe benefits for nurses, dieticians and other non-physicians engaged in the direct delivery of patient care. N.J.A. C. 8:31B-3.21; Riverside General v. N.J. Hosp. Rate Setting Com’n, 98 N.J. 458, 462 (1985). Indirect services include education, research, administrative, utilities and general services. See N.J.A. C. 8:31B-3.24; Riverside General, 98 N.J. at 462. Costs for residency programs are classified as “indirect.” N.J.A.C. 8:31B-3.24(a). Hospitals are classified in “peer groups” as either major teaching, minor teaching, or non-teaching, with each category specifying the criteria the hospital must meet. N.J.A.C. 8:31B-3.22(b). The hospitals within each peer group submit various data on costs of operation which the Department analyzes to develop a standard for each group’s reasonable operating costs. N.J.A.C. 8:31B-2.5. The Department uses the cost data it collects in one year to establish a base year (N.J.A. C. 8:31B-3.-16), which is then utilized to calculate prospectively the reimbursement rates for successive years. Adjustments are made each year for various economic factors. The resulting amount *389represents the “preliminary cost base” for each hospital. N.J. A. C. 8:81B-8.7. The Commissioner also transmits to the hospital a proposed schedule of rates which is designed to produce sufficient revenue to correspond to the cost base. Ibid. Authority is given to the Hospital Rate Setting Commission (HRSC), pursuant to NJS.A. 26:2H-4.1, to either approve or adjust the Commissioner’s proposed preliminary cost base and Schedule of Rates for each hospital. Hospitals are given the right to appeal to the HRSC, “pursuant to regulations proposed by the commissioner and approved by the [HCAB].” N.J.S.A. 26:2H-I8.1d. According to N.J.A.C. 8:81B-8.51, hospitals have 45 days from receipt of the Proposed Schedule of Rates to notify the Commissioner and the HRSC of the course of action the hospital chooses to take, which must fit into one of the following categories. The hospital may: 1. Accept the Schedule of Rates, contingent upon approval by HRSC. N.J.S.A. 8:31B~8.51(b)l. Under the “accept” option, the hospital is only allowed to appeal limited issues, and it is “rewarded” with an additional 1% of all direct patient care cost added to its rates. 2. Conditionally Accept, N.J.A. C. 8:81B-3.51(b)2, contingent upon HRSC approval. Under this option, the scope of appealable issues is greatly widened, and the 1% bonus is given up. 8. Not Accept, N.J.A.C. 8:31B-3.51(b)3. If a hospital chooses to “not accept” the proposed Schedule of Rates, it must submit exceptions within 60 days of receipt of the Schedule and it “will be issued a revised Proposed Schedule of Rates based upon the efficiency standard and will be subject to review of the entire Preliminary Cost Base, and thus at risk for all operating costs and revenue adjustments.” The 1% *390“bonus” is also removed. Any issue the hospital chooses may be raised on this type of appeal. Thus, a hospital electing the “not accept” option will have its actual operating costs calculated on the “efficiency” standard, which is the median cost per DRG; it is used “to identify presumptively excess cost.” N.J.A. C. 8:31B-3.5b. Those hospitals choosing the accept or conditionally accept option have their costs calculated on the “Incentive Standard,” which is the mean cost per DRG. Ibid. Inevitably, the efficiency standard results in significant lowering of reimbursement rates, and is applied even if the hospital is successful in its appeal. Appellant Warren is a 285-bed general acute care non-profit hospital located in Phillipsburg, Warren County.1 In 1980, the hospital established a family practice residency program, with the full approval and financial support of both the DOH and the Department of Higher Education. Warren’s family practice program was created in an effort to respond to the need for additional family practice physicians in the geographically isolated areas of Warren and Sussex Counties. The program was a coordinated effort between Warren and Overlook Hospital in Summit, New Jersey. When it began, Overlook Hospital provided the training for the first year residents, and Warren Hospital provided the training for second and third year residents. The long-range plan was that Warren would train residents at all three levels and gradually expand the program to reach the number of residents in each year for optimal educational benefits and cost efficiency. Between 1980 and 1985, the Department correctly classified Warren, for rate reimbursement purposes, as a non-teaching hospital. Although Warren was engaged in teaching functions during these years, its family practice program was not large *391enough to meet the Department’s criteria for minor or major teaching hospitals. In 1986, Warren’s program increased to over fifteen residents. For the first time, it therefore qualified as a minor teaching hospital, N.J.A.C. 8:31b—3.22(b)3, and was eligible for the higher reimbursement rates allowed teaching facilities. Warren brings this appeal because the Department refuses to classify Warren as a minor teaching hospital and to calculate its reimbursement accordingly. Instead, the Department continues to classify Warren as a non-teaching hospital and, by doing so, claims Warren, it is substantially under-reimbursed. We agree with Warren’s contention that the amendments promulgated by DOH are invalid because they conflict with the statutory provision granting hospitals the right to appeal the sufficiency of their reimbursement rates. N.J.S.A. 26:2H-18.1. The amendment to 3.51 effectively limits a hospital’s right to appeal its residency reimbursement rates to the “not accept” option, described above. According to N.J.S.A. 26:2H-18.1a, “the Commission shall make the determinations and hear appeals provided for in this act in a timely manner pursuant to regulations proposed by the commissioner and approved by the board.” (Emphasis supplied). These regulatory amendments subvert the legislative intent to provide an effective avenue of appeal. If the increase in the number of residents is deemed a “transfer,” Warren is precluded from appealing its teaching status. Even though it would otherwise qualify as a “minor teaching” hospital, the amendment to 3.31 states that an “addition of resident positions by transfer may not result in a change to a higher teaching status peer group.” (emphasis supplied). N.J.A.C. 8:31B-3.31(c). Thus, while under this amendment a hospital may, by “conditionally accepting” or “not accepting,” appeal for additional resident positions by transfer, it will not receive any concomitant benefit if the transfer is granted, especially when the *392additional positions would have previously resulted in a change to a higher peer group. If the additional slots are adjudged to be the result of an “expansion,” then a hospital is permitted to appeal for the costs of expansion, including, apparently, a change to a higher peer group, but only if the appeal is taken under the “not accept” option. N.J.A. C. 8:31B-3.51(b)4. It would not be realistic for any hospital to select the “not accept” option, because the losses associated with that choice will never be offset by a successful appeal. The major flaw of these amendments is that a hospital stands to be severely penalized for utilizing a right of appeal provided by statute. They do not permit a hospital to appeal without the exacting of severe financial consequences. By subverting the appeals process, these amendments frustrate the aims of the Health Care Facilities Planning Act, from which DOH and HRSC receive their authority to promulgate regulations. Cf. St. Barnabas Med. Ctr. v. New Jersey H.R.S.C., 214 N.J.Super. 599, 606 (App.Div.1987) (HRSC erred in refusing to allow hospital to recalculate number of full-time equivalent residents and residents’ salaries based on accepted standard, because “[i]t is simply not within the contemplation of the Act to penalize an efficient hospital by applying a disincentive where one is not warranted.”) We set aside as invalid the amendments of April 21, 1986 to N.J.A.C. 8:31B-3.51(b)(4). We do not decide the question of the arbitrariness of the amendments to N.J.A. C. 8:31B-3.31 because HRSC has the power to consider each hospital’s eligibility on a case-by-case basis and modify actions taken in strict accordance with these regulations when such actions would produce unjust results for individual institutions. N.J.A.C. 8:31B-3.64. See 1982 Final Recon. Adj. for Jersey Shore Med. Ctr., 209 N.J.Super. 79, 88-89 (App.Div.1986). We do not retain jurisdiction.
The facts submitted by Warren are largely undisputed by the State, which deems these contentions "irrelevant" to the validity of these amended regulations. | 07-25-2022 | [
"The opinion of the court was delivered by ARNOLD M. STEIN, J.S.C. (temporarily assigned). In these consolidated appeals, appellant Warren Hospital (Warren) challenges the validity of amendments to certain rate reimbursement regulations promulgated by respondent Department of Health (DOH or Department) through the Health Care Administration Board (HCAB). On April 21,1986, HCAB promulgated amendments to N.J.A. C. 8:31B-3.31 and 3.51, and on July 7, 1986, adopted an additional amendment to section 3.31. On October 5, 1987, further amendments to 3.31 were adopted by HCAB. Warren filed a notice of appeal from these amendments on November 17, 1987. A motion to consolidate this appeal with those previously docketed was granted on March 28, 1988.",
"Warren contends, inter alia, that these amendments are invalid because the appeal mechanism set forth therein conflicts with the intent of the enabling statute, and because they are arbitrary and capricious. We reverse because the appeal procedure conflicts with the statutory right of appeal afforded to hospitals pursuant to N.J.S.A. 26:2H-18.1 of the Health Care Facilities Act. N.J.S.A. 26:2H-1 et seq. Because we rule the amendments invalid on this ground, we do not reach the substantive question of whether they are arbitrary. *388The HCAB, established by N.J.S.A. 26:2H-4, acts in conjunction with the State Commissioner of Health to “adopt and amend rules and regulations in accordance with the Administrative Procedure Act ... to effectuate the provisions and purpose of this act, including but not limited to: ... (2) certification by the department of schedules of rates, payments, reimbursement, grants and other charges for health care services____” NJ.S.A.",
"26:2H-5b. Pursuant to this legislative authority, the Department and HCAB promulgated N.J.A.C. 8:31B-3.1 et seq., Procedural and Methodological Regulations. This rate-setting system is designed to set a prospective rate of treatment, in advance of actual treatment. The rate is related to the hospital resources consumed in treating particular illnesses, categorized as Diagnosis Related Groups (DRG). N.J.A.C. 8:31B-5.1 et seq. The current cost base for an institution includes both direct and indirect patient care costs. Direct patient care costs include salaries and fringe benefits for nurses, dieticians and other non-physicians engaged in the direct delivery of patient care. N.J.A. C. 8:31B-3.21; Riverside General v. N.J. Hosp. Rate Setting Com’n, 98 N.J. 458, 462 (1985). Indirect services include education, research, administrative, utilities and general services. See N.J.A. C. 8:31B-3.24; Riverside General, 98 N.J. at 462.",
"Costs for residency programs are classified as “indirect.” N.J.A.C. 8:31B-3.24(a). Hospitals are classified in “peer groups” as either major teaching, minor teaching, or non-teaching, with each category specifying the criteria the hospital must meet. N.J.A.C. 8:31B-3.22(b). The hospitals within each peer group submit various data on costs of operation which the Department analyzes to develop a standard for each group’s reasonable operating costs. N.J.A.C. 8:31B-2.5. The Department uses the cost data it collects in one year to establish a base year (N.J.A.",
"C. 8:31B-3.-16), which is then utilized to calculate prospectively the reimbursement rates for successive years. Adjustments are made each year for various economic factors. The resulting amount *389represents the “preliminary cost base” for each hospital. N.J. A. C. 8:81B-8.7. The Commissioner also transmits to the hospital a proposed schedule of rates which is designed to produce sufficient revenue to correspond to the cost base. Ibid. Authority is given to the Hospital Rate Setting Commission (HRSC), pursuant to NJS.A. 26:2H-4.1, to either approve or adjust the Commissioner’s proposed preliminary cost base and Schedule of Rates for each hospital. Hospitals are given the right to appeal to the HRSC, “pursuant to regulations proposed by the commissioner and approved by the [HCAB].” N.J.S.A. 26:2H-I8.1d. According to N.J.A.C. 8:81B-8.51, hospitals have 45 days from receipt of the Proposed Schedule of Rates to notify the Commissioner and the HRSC of the course of action the hospital chooses to take, which must fit into one of the following categories.",
"The hospital may: 1. Accept the Schedule of Rates, contingent upon approval by HRSC. N.J.S.A. 8:31B~8.51(b)l. Under the “accept” option, the hospital is only allowed to appeal limited issues, and it is “rewarded” with an additional 1% of all direct patient care cost added to its rates. 2. Conditionally Accept, N.J.A. C. 8:81B-3.51(b)2, contingent upon HRSC approval. Under this option, the scope of appealable issues is greatly widened, and the 1% bonus is given up. 8. Not Accept, N.J.A.C. 8:31B-3.51(b)3. If a hospital chooses to “not accept” the proposed Schedule of Rates, it must submit exceptions within 60 days of receipt of the Schedule and it “will be issued a revised Proposed Schedule of Rates based upon the efficiency standard and will be subject to review of the entire Preliminary Cost Base, and thus at risk for all operating costs and revenue adjustments.” The 1% *390“bonus” is also removed. Any issue the hospital chooses may be raised on this type of appeal. Thus, a hospital electing the “not accept” option will have its actual operating costs calculated on the “efficiency” standard, which is the median cost per DRG; it is used “to identify presumptively excess cost.” N.J.A. C. 8:31B-3.5b. Those hospitals choosing the accept or conditionally accept option have their costs calculated on the “Incentive Standard,” which is the mean cost per DRG.",
"Ibid. Inevitably, the efficiency standard results in significant lowering of reimbursement rates, and is applied even if the hospital is successful in its appeal. Appellant Warren is a 285-bed general acute care non-profit hospital located in Phillipsburg, Warren County.1 In 1980, the hospital established a family practice residency program, with the full approval and financial support of both the DOH and the Department of Higher Education. Warren’s family practice program was created in an effort to respond to the need for additional family practice physicians in the geographically isolated areas of Warren and Sussex Counties. The program was a coordinated effort between Warren and Overlook Hospital in Summit, New Jersey. When it began, Overlook Hospital provided the training for the first year residents, and Warren Hospital provided the training for second and third year residents. The long-range plan was that Warren would train residents at all three levels and gradually expand the program to reach the number of residents in each year for optimal educational benefits and cost efficiency.",
"Between 1980 and 1985, the Department correctly classified Warren, for rate reimbursement purposes, as a non-teaching hospital. Although Warren was engaged in teaching functions during these years, its family practice program was not large *391enough to meet the Department’s criteria for minor or major teaching hospitals. In 1986, Warren’s program increased to over fifteen residents. For the first time, it therefore qualified as a minor teaching hospital, N.J.A.C. 8:31b—3.22(b)3, and was eligible for the higher reimbursement rates allowed teaching facilities. Warren brings this appeal because the Department refuses to classify Warren as a minor teaching hospital and to calculate its reimbursement accordingly. Instead, the Department continues to classify Warren as a non-teaching hospital and, by doing so, claims Warren, it is substantially under-reimbursed. We agree with Warren’s contention that the amendments promulgated by DOH are invalid because they conflict with the statutory provision granting hospitals the right to appeal the sufficiency of their reimbursement rates.",
"N.J.S.A. 26:2H-18.1. The amendment to 3.51 effectively limits a hospital’s right to appeal its residency reimbursement rates to the “not accept” option, described above. According to N.J.S.A. 26:2H-18.1a, “the Commission shall make the determinations and hear appeals provided for in this act in a timely manner pursuant to regulations proposed by the commissioner and approved by the board.” (Emphasis supplied). These regulatory amendments subvert the legislative intent to provide an effective avenue of appeal. If the increase in the number of residents is deemed a “transfer,” Warren is precluded from appealing its teaching status. Even though it would otherwise qualify as a “minor teaching” hospital, the amendment to 3.31 states that an “addition of resident positions by transfer may not result in a change to a higher teaching status peer group.” (emphasis supplied). N.J.A.C.",
"8:31B-3.31(c). Thus, while under this amendment a hospital may, by “conditionally accepting” or “not accepting,” appeal for additional resident positions by transfer, it will not receive any concomitant benefit if the transfer is granted, especially when the *392additional positions would have previously resulted in a change to a higher peer group. If the additional slots are adjudged to be the result of an “expansion,” then a hospital is permitted to appeal for the costs of expansion, including, apparently, a change to a higher peer group, but only if the appeal is taken under the “not accept” option. N.J.A. C. 8:31B-3.51(b)4. It would not be realistic for any hospital to select the “not accept” option, because the losses associated with that choice will never be offset by a successful appeal. The major flaw of these amendments is that a hospital stands to be severely penalized for utilizing a right of appeal provided by statute. They do not permit a hospital to appeal without the exacting of severe financial consequences.",
"By subverting the appeals process, these amendments frustrate the aims of the Health Care Facilities Planning Act, from which DOH and HRSC receive their authority to promulgate regulations. Cf. St. Barnabas Med. Ctr. v. New Jersey H.R.S.C., 214 N.J.Super. 599, 606 (App.Div.1987) (HRSC erred in refusing to allow hospital to recalculate number of full-time equivalent residents and residents’ salaries based on accepted standard, because “[i]t is simply not within the contemplation of the Act to penalize an efficient hospital by applying a disincentive where one is not warranted.”) We set aside as invalid the amendments of April 21, 1986 to N.J.A.C. 8:31B-3.51(b)(4). We do not decide the question of the arbitrariness of the amendments to N.J.A. C. 8:31B-3.31 because HRSC has the power to consider each hospital’s eligibility on a case-by-case basis and modify actions taken in strict accordance with these regulations when such actions would produce unjust results for individual institutions.",
"N.J.A.C. 8:31B-3.64. See 1982 Final Recon. Adj. for Jersey Shore Med. Ctr., 209 N.J.Super. 79, 88-89 (App.Div.1986). We do not retain jurisdiction. The facts submitted by Warren are largely undisputed by the State, which deems these contentions \"irrelevant\" to the validity of these amended regulations."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7320062/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
220 S.W.3d 887 (2007) STATE of Missouri, Respondent, v. Steven D. KIDERLEN, Appellant. No. ED 87994. Missouri Court of Appeals, Eastern District, Division Two. May 1, 2007. Craig A. Johnston, Columbia, MO, for appellant. Shaun J. Mackelprang, Richard A. Starnes, Jefferson City, MO, for respondent. Before GEORGE W. DRAPER III, P.J., GARY M. GAERTNER, SR., J., and ROBERT G. DOWD, JR., J.
ORDER PER CURIAM. Steven Kiderlen (hereinafter, "Appellant") appeals from the trial court's judgment after a jury convicted him of one count of damage to jail property, Section 221.353 RSMo (2000). Appellant was sentenced to two years' imprisonment to be served consecutively to any other prison term he was serving. Appellant raises one point on appeal, alleging there is insufficient evidence to sustain his conviction in that the State failed to prove Appellant knowingly damaged jail property. We have reviewed the briefs of the parties, the legal file, and the transcript on appeal and find there was sufficient evidence to sustain Appellant's conviction. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The judgment is affirmed pursuant to Rule 30.25(b). | 10-30-2013 | [
"220 S.W.3d 887 (2007) STATE of Missouri, Respondent, v. Steven D. KIDERLEN, Appellant. No. ED 87994. Missouri Court of Appeals, Eastern District, Division Two. May 1, 2007. Craig A. Johnston, Columbia, MO, for appellant. Shaun J. Mackelprang, Richard A. Starnes, Jefferson City, MO, for respondent. Before GEORGE W. DRAPER III, P.J., GARY M. GAERTNER, SR., J., and ROBERT G. DOWD, JR., J. ORDER PER CURIAM. Steven Kiderlen (hereinafter, \"Appellant\") appeals from the trial court's judgment after a jury convicted him of one count of damage to jail property, Section 221.353 RSMo (2000).",
"Appellant was sentenced to two years' imprisonment to be served consecutively to any other prison term he was serving. Appellant raises one point on appeal, alleging there is insufficient evidence to sustain his conviction in that the State failed to prove Appellant knowingly damaged jail property. We have reviewed the briefs of the parties, the legal file, and the transcript on appeal and find there was sufficient evidence to sustain Appellant's conviction. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The judgment is affirmed pursuant to Rule 30.25(b)."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1756415/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED April 12, 2018 Plaintiff-Appellee,
v No. 336656 Wayne Circuit Court TONY CLARK, LC No. 16-002944-01-FC
Defendant-Appellant.
Before: SAWYER, P.J., and HOEKSTRA and MURRAY, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of second-degree murder, MCL 750.317, two counts of assault with intent do great bodily harm, MCL 750.84, armed robbery, MCL 750.529, felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of a felony (felony-firearm), second offense, MCL 750.227b. Defendant was sentenced, as a fourth habitual offender, MCL 769.12, to 70 to 105 years’ imprisonment for the second-degree murder conviction, 20 to 40 years’ imprisonment for each of the assault with intent to do great bodily harm convictions and for the armed robbery conviction, one to five years’ imprisonment for the felon in possession of a firearm conviction, and five years’ imprisonment for the felony-firearm, second offense conviction. For the reasons explained in this opinion, we affirm.
This case arises out of the fatal shooting of Derrick Lindsay and related crimes. The crimes occurred on March 5, 2016, outside an after-hours club known as the VIP club. At trial, witnesses identified defendant as the shooter, and Sharita McCann testified that defendant confessed to her that he committed the shooting. The jury convicted defendant as noted above.
I. LOST EVIDENCE
Defendant first argues that he was denied his constitutional right of due process because the police lost the surveillance video showing the crimes being committed. We disagree.
A defendant’s claim that he was denied due process is reviewed de novo. People v Schumacher, 276 Mich. App. 165, 176; 740 NW2d 534 (2007). Any factual determinations are reviewed for clear error. People v Tracey, 221 Mich. App. 321, 323; 561 NW2d 133 (1997). “Clear error exists if the reviewing court is left with a definite and firm conviction that the trial court made a mistake.” People v Armstrong, 490 Mich. 281, 289; 806 NW2d 676 (2011).
-1- “ ‘[T]he suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.’ ” Arizona v Youngblood, 488 U.S. 51, 55; 109 S. Ct. 333; 102 L. Ed. 2d 281 (1988), quoting Brady v Maryland, 373 U.S. 83, 87; 83 S Ct 1194; 10 L. Ed. 2d 215 (1963).
The Due Process Clause of the Fourteenth Amendment, as interpreted in Brady, makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. [Youngblood, 488 U.S. at 57.]
Hence, the failure to preserve “potentially useful evidence” does not violate due process unless the defendant can demonstrate bad faith. Id. at 58. “Defendant bears the burden of showing that the evidence was exculpatory or that the police acted in bad faith.” People v Johnson, 197 Mich App 362, 365; 494 NW2d 873 (1992). See also People v Heft, 299 Mich. App. 69, 79; 829 NW2d 266 (2012) (“If the defendant cannot show bad faith or that the evidence was potentially exculpatory, the state’s failure to preserve evidence does not deny the defendant due process.”).
Here, defendant has not shown that the lost video evidence was potentially exculpatory or that the police acted in bad faith. In his appellate brief, defendant quotes portions of the grand jury testimony of Detective Gary Przybyla, the officer-in-charge, indicating that the lost video showed defendant committing the crime. At the hearing on defendant’s motion to dismiss the charges due to the loss of the video evidence, the prosecutor stated that the video showed someone committing the crime but that “you cannot make out who those people are because it’s too dark. The facial features are not clear enough, so it’s not exculpatory because it – it’s not exculpatory as to this Defendant or anyone else because you really can’t see or make out who that person is.” In either event, whether the video showed defendant committing the crime or the person committing the crime could not be identified from the video because it was too dark, defendant has not presented any evidence that the video was potentially exculpatory. Nor is there evidence of bad faith on the part of the police. As Przybyla indicated, the video was not downloaded correctly by the police, and the original video was erased by the owner of the VIP club after the police returned the video equipment to the owner. Defendant has offered no evidence contradicting this explanation of how the video was lost. At most, the record reflects negligence on the part of the police in failing to ensure that the video was downloaded correctly before returning the video equipment to the owner of the VIP club. Mere negligence does not constitute bad faith. See Youngblood, 488 U.S. at 58 (finding no evidence of bad faith where the failure of the police to preserve evidence could “at worst be described as negligent.”). Because defendant has failed to demonstrate that the lost video was potentially exculpatory or that the
-2- police acted in bad faith, he has not established a due process violation. Id. at 57-58; Heft, 299 Mich. App. at 79; Johnson, 197 Mich. App. at 365.1
II. JURY INSTRUCTIONS
Defendant next argues that the trial court erred in denying his request for an adverse inference instruction regarding the lost video evidence. We disagree. Questions of law pertaining to jury instructions are reviewed de novo, but a lower court’s determination whether a jury instruction applies to the facts of a case is reviewed for an abuse of discretion. People v Gillis, 474 Mich. 105, 113; 712 NW2d 419 (2006). Defendant’s jury instruction argument is devoid of merit. As explained earlier, there is no evidence that the police or the prosecutor acted in bad faith in the loss of the video evidence. Therefore, the trial court properly declined to instruct the jury that the missing video would have been favorable to defendant. See People v Davis, 199 Mich. App. 502, 514-515; 503 NW2d 457 (1993), overruled on other grounds by People v Grissom, 492 Mich. 296 (2012) (holding that the trial court did not err in declining to give an adverse inference instruction where the defendant failed to show that the prosecutor acted in bad faith in failing to produce evidence); see also 23A C.J.S. Criminal Procedure and Rights of Accused § 1862 (“An instruction . . . is appropriate only where the state’s failure to preserve or collect the missing evidence was intentional, and the potentially exculpatory nature of the evidence was apparent at the time it was lost or destroyed.”).
III. SUFFICIENCY OF THE EVIDENCE
Defendant next argues that the prosecutor presented insufficient evidence to support his convictions. Specifically, defendant contends that there was insufficient evidence to establish defendant’s identity as the shooter. We disagree.
“To determine whether there was sufficient evidence to support a conviction, we review the evidence de novo, in the light most favorable to the prosecutor, and decide whether a rational fact-finder could have found that the essential elements of the crime were proven beyond a reasonable doubt.” People v Odom, 276 Mich. App. 407, 418; 740 NW2d 557 (2007). “This Court will not interfere with the trier of fact’s role of determining the weight of the evidence or the credibility of witnesses.” People v Kanaan, 278 Mich. App. 594, 619; 751 NW2d 57 (2008). “All conflicts in the evidence must be resolved in favor of the prosecution.” Id. “Circumstantial evidence and reasonable inferences arising therefrom may constitute proof of the elements of the crime.” People v Bennett, 290 Mich. App. 465, 472; 802 NW2d 627 (2010).
1 Defendant vaguely asserts that he has been denied his constitutional rights to present a defense and to confront witnesses, but he fails to elaborate sufficiently on those assertions. “An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation of supporting authority.” People v Kelly, 231 Mich. App. 627, 640-641; 588 NW2d 480 (1998). Defendant has thus not properly presented those issues for appellate review. Id.
-3- Defendant challenges the sufficiency of the evidence on the ground that the testimony of the eyewitnesses was inconsistent in describing defendant’s appearance. “[I]dentity is an element of every offense.” People v Yost, 278 Mich. App. 341, 356; 749 NW2d 753 (2008). “The credibility of identification testimony is a question for the trier of fact that we do not resolve anew.” People v Davis, 241 Mich. App. 697, 700; 617 NW2d 381 (2000). Moreover, “positive identification by witnesses may be sufficient to support a conviction of a crime.” Id.
In this case, Marquis Terrill Turner and Jalen Ja’von Watkins each identified defendant at trial as the shooter. Turner had also previously identified defendant in a photo array before trial. Also, Sharita McCann testified that defendant confessed to her that he committed the shooting. Hence, the prosecutor presented sufficient evidence of defendant’s identity as the person who committed the crimes. See id. Defendant emphasizes inconsistencies in various eyewitnesses’ descriptions of the shooter’s height, physique, and apparel. But, again, it was for the jury to weigh the evidence and evaluate the credibility of witnesses, Kanaan, 278 Mich. App. at 619, including the credibility of identification testimony, Davis, 241 Mich. App. at 70. Any inconsistencies in eyewitnesses’ descriptions of the shooter’s physical appearance were thus for the jury to resolve. “[A] jury is free to believe or disbelieve, in whole or in part, any of the evidence presented.” People v Perry, 460 Mich. 55, 63; 594 NW2d 477 (1999). A reasonable jury could have reconciled the conflicting descriptions by concluding that Turner and Watkins accurately remembered defendant’s face even if some eyewitnesses had poor memories regarding the shooter’s height, physique, or apparel. Further, even if the eyewitness descriptions of the shooter varied, the jury could also have credited McCann’s testimony regarding defendant’s confessed role in the shooting. Defendant’s challenge to the sufficiency of the evidence is therefore without merit.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant next argues that he was denied the effective assistance of counsel. In particular, defendant contends that his attorney provided ineffective assistance by failing to object to portions of McCann’s testimony involving defendant’s robbery and shooting of McCann. We disagree.
“[A] defendant must move in the trial court for a new trial or an evidentiary hearing to preserve the defendant’s claim that his or her counsel was ineffective.” Heft, 299 Mich. App. at 80. Defendant did not move for a new trial or an evidentiary hearing on this issue below. Therefore, the issue is unpreserved. Id. Because defendant did not move in the trial court for a new trial or an evidentiary hearing on this issue, our review is limited to mistakes apparent from the record. Id.
“To prevail on a claim of ineffective assistance, a defendant must, at a minimum, show that (1) counsel’s performance was below an objective standard of reasonableness and (2) a reasonable probability [exists] that the outcome of the proceeding would have been different but for trial counsel’s errors.” People v Ackerman, 257 Mich. App. 434, 455; 669 NW2d 818 (2003). Defense counsel is presumed effective. People v Vaughn, 491 Mich. 642, 670; 821 NW2d 288 (2012). “Defendant must overcome a strong presumption that counsel’s performance constituted sound trial strategy.” People v Petri, 279 Mich. App. 407, 411; 760 NW2d 882 (2008). “This Court does not second-guess counsel on matters of trial strategy, nor does it assess counsel’s
-4- competence with the benefit of hindsight.” People v Russell, 297 Mich. App. 707, 716; 825 NW2d 623 (2012).
Defendant concedes that McCann’s testimony regarding defendant’s confession to the crimes in the instant case was admissible but argues that McCann’s testimony concerning defendant’s robbing and shooting of McCann was inadmissible under MRE 404(b). Defendant contends that defense counsel was ineffective for failing to object to McCann’s testimony concerning defendant’s assault on her or failing to move to limit McCann’s testimony in this regard. However, although counsel could have potentially objected under MRE 404(b) to evidence that defendant robbed and shot McCann, defendant’s ineffective assistance claim is nevertheless without merit because it appears from the record that counsel made the strategic decision to forgo any objection to McCann’s testimony regarding the robbery and shooting at her home in order to use this evidence to discredit McCann and cast doubt about defendant’s guilt. In particular, on cross-examination, defense counsel elicited an acknowledgement from McCann that she wanted defendant to spend the rest of his life in prison for what he did to her and that she understood he was only receiving 15 years’ imprisonment for the charges related to shooting her. Defense counsel also questioned McCann about the fact that in her initial statements to police about defendant’s assault on her, she did not disclose the fact that defendant had confessed to committing the crimes at issue in the instant case. Defense counsel made these same points in closing argument and also stressed that the bullet recovered from Lindsay’s body could not be matched to the bullet recovered from the floor of McCann’s home. These arguments and credibility challenges would not have been possible without the admission of McCann’s testimony concerning defendant’s assault on her. The alternative would have been for the jury to hear only McCann’s testimony that defendant confessed to committing the instant crimes without hearing the additional testimony that provided a basis for defense counsel to challenge McCann’s credibility. Defendant has thus failed to overcome the presumption that the declination to object to McCann’s testimony about defendant’s assault on her constituted a sound trial strategy. Petri, 279 Mich. App. at 411. That a strategy is unsuccessful does not make defense counsel’s performance deficient. Id. at 412.
V. REQUEST FOR DEFENSE EXPERT
Finally, defendant argues that the trial court abused its discretion in denying his request for the appointment of a defense expert in computer forensics. We disagree.
“This Court reviews for abuse of discretion a trial court’s decision whether to grant an indigent defendant’s motion for the appointment of an expert witness.” People v Carnicom, 272 Mich. App. 614, 616; 727 NW2d 399 (2006). An abuse of discretion occurs when the trial court’s decision falls outside the range of principled outcomes. Id. at 617.
MCL 775.15 provides a trial court with discretion to authorize payment for an expert witness for an indigent defendant. Carnicom, 272 Mich. App. at 617. This provision states:
If any person accused of any crime or misdemeanor, and about to be tried therefor in any court of record in this state, shall make it appear to the satisfaction of the judge presiding over the court wherein such trial is to be had, by his own oath, or otherwise, that there is a material witness in his favor within the
-5- jurisdiction of the court, without whose testimony he cannot safely proceed to a trial, giving the name and place of residence of such witness, and that such accused person is poor and has not and cannot obtain the means to procure the attendance of such witness at the place of trial, the judge in his discretion may, at a time when the prosecuting officer of the county is present, make an order that a subpoena be issued from such court for such witness in his favor, and that it be served by the proper officer of the court. And it shall be the duty of such officer to serve such subpoena, and of the witness or witnesses named therein to attend the trial, and the officer serving such subpoena shall be paid therefor, and the witness therein named shall be paid for attending such trial, in the same manner as if such witness or witnesses had been subpoenaed in behalf of the people. [MCL 775.15.]
“As MCL 775.15 makes clear, a trial court is not compelled to provide funds for the appointment of an expert on demand.” People v Tanner, 469 Mich. 437, 442; 671 NW2d 728 (2003).
To obtain appointment of an expert, an indigent defendant must demonstrate a nexus between the facts of the case and the need for an expert. It is not enough for the defendant to show a mere possibility of assistance from the requested expert. Without an indication that expert testimony would likely benefit the defense, a trial court does not abuse its discretion in denying a defendant’s motion for appointment of an expert witness. [Carnicom, 272 Mich App at 617 (internal citations omitted).]
In this case, defendant asserts that an expert in computer forensics “could have potentially recovered the missing video and could have informed the jury and the judge about how the video was apparently the only video that wasn’t downloaded.” However, it was undisputed at trial that, while the police successfully downloaded some footage from the security cameras at the VIP club, the video footage showing the murder was not downloaded correctly. It is not clear how testimony from an expert on this matter would have aided the defense. Defendant’s suggestion that an expert could somehow have recovered the missing video is pure conjecture. And even if the video could have been recovered, there is no indication that it would have benefited the defense. Przybyla’s grand jury testimony quoted by defendant suggests that the video showed defendant committing the crime, whereas the prosecutor at the motion hearing indicated that the video was not exculpatory with respect to defendant or anyone else because the shooter’s identity could not be determined from the video. Defendant has shown nothing beyond the mere possibility of assistance from the requested expert in computer forensics. He has not shown that testimony from such an expert would likely benefit the defense. Thus, he has not shown that the trial court abused its discretion by denying his request for an expert.
Affirmed.
/s/ David H. Sawyer /s/ Joel P. Hoekstra /s/ Christopher M. Murray
-6- | 04-17-2018 | [
"STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED April 12, 2018 Plaintiff-Appellee, v No. 336656 Wayne Circuit Court TONY CLARK, LC No. 16-002944-01-FC Defendant-Appellant. Before: SAWYER, P.J., and HOEKSTRA and MURRAY, JJ. PER CURIAM. Defendant appeals as of right his jury trial convictions of second-degree murder, MCL 750.317, two counts of assault with intent do great bodily harm, MCL 750.84, armed robbery, MCL 750.529, felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of a felony (felony-firearm), second offense, MCL 750.227b. Defendant was sentenced, as a fourth habitual offender, MCL 769.12, to 70 to 105 years’ imprisonment for the second-degree murder conviction, 20 to 40 years’ imprisonment for each of the assault with intent to do great bodily harm convictions and for the armed robbery conviction, one to five years’ imprisonment for the felon in possession of a firearm conviction, and five years’ imprisonment for the felony-firearm, second offense conviction.",
"For the reasons explained in this opinion, we affirm. This case arises out of the fatal shooting of Derrick Lindsay and related crimes. The crimes occurred on March 5, 2016, outside an after-hours club known as the VIP club. At trial, witnesses identified defendant as the shooter, and Sharita McCann testified that defendant confessed to her that he committed the shooting. The jury convicted defendant as noted above. I. LOST EVIDENCE Defendant first argues that he was denied his constitutional right of due process because the police lost the surveillance video showing the crimes being committed. We disagree. A defendant’s claim that he was denied due process is reviewed de novo. People v Schumacher, 276 Mich. App. 165, 176; 740 NW2d 534 (2007). Any factual determinations are reviewed for clear error. People v Tracey, 221 Mich. App. 321, 323; 561 NW2d 133 (1997).",
"“Clear error exists if the reviewing court is left with a definite and firm conviction that the trial court made a mistake.” People v Armstrong, 490 Mich. 281, 289; 806 NW2d 676 (2011). -1- “ ‘[T]he suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.’ ” Arizona v Youngblood, 488 U.S. 51, 55; 109 S. Ct. 333; 102 L. Ed. 2d 281 (1988), quoting Brady v Maryland, 373 U.S. 83, 87; 83 S Ct 1194; 10 L. Ed. 2d 215 (1963). The Due Process Clause of the Fourteenth Amendment, as interpreted in Brady, makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. [Youngblood, 488 U.S. at 57.]",
"Hence, the failure to preserve “potentially useful evidence” does not violate due process unless the defendant can demonstrate bad faith. Id. at 58. “Defendant bears the burden of showing that the evidence was exculpatory or that the police acted in bad faith.” People v Johnson, 197 Mich App 362, 365; 494 NW2d 873 (1992). See also People v Heft, 299 Mich. App. 69, 79; 829 NW2d 266 (2012) (“If the defendant cannot show bad faith or that the evidence was potentially exculpatory, the state’s failure to preserve evidence does not deny the defendant due process.”).",
"Here, defendant has not shown that the lost video evidence was potentially exculpatory or that the police acted in bad faith. In his appellate brief, defendant quotes portions of the grand jury testimony of Detective Gary Przybyla, the officer-in-charge, indicating that the lost video showed defendant committing the crime. At the hearing on defendant’s motion to dismiss the charges due to the loss of the video evidence, the prosecutor stated that the video showed someone committing the crime but that “you cannot make out who those people are because it’s too dark.",
"The facial features are not clear enough, so it’s not exculpatory because it – it’s not exculpatory as to this Defendant or anyone else because you really can’t see or make out who that person is.” In either event, whether the video showed defendant committing the crime or the person committing the crime could not be identified from the video because it was too dark, defendant has not presented any evidence that the video was potentially exculpatory. Nor is there evidence of bad faith on the part of the police. As Przybyla indicated, the video was not downloaded correctly by the police, and the original video was erased by the owner of the VIP club after the police returned the video equipment to the owner. Defendant has offered no evidence contradicting this explanation of how the video was lost. At most, the record reflects negligence on the part of the police in failing to ensure that the video was downloaded correctly before returning the video equipment to the owner of the VIP club.",
"Mere negligence does not constitute bad faith. See Youngblood, 488 U.S. at 58 (finding no evidence of bad faith where the failure of the police to preserve evidence could “at worst be described as negligent.”). Because defendant has failed to demonstrate that the lost video was potentially exculpatory or that the -2- police acted in bad faith, he has not established a due process violation. Id. at 57-58; Heft, 299 Mich. App. at 79; Johnson, 197 Mich. App. at 365.1 II. JURY INSTRUCTIONS Defendant next argues that the trial court erred in denying his request for an adverse inference instruction regarding the lost video evidence.",
"We disagree. Questions of law pertaining to jury instructions are reviewed de novo, but a lower court’s determination whether a jury instruction applies to the facts of a case is reviewed for an abuse of discretion. People v Gillis, 474 Mich. 105, 113; 712 NW2d 419 (2006). Defendant’s jury instruction argument is devoid of merit. As explained earlier, there is no evidence that the police or the prosecutor acted in bad faith in the loss of the video evidence. Therefore, the trial court properly declined to instruct the jury that the missing video would have been favorable to defendant. See People v Davis, 199 Mich. App. 502, 514-515; 503 NW2d 457 (1993), overruled on other grounds by People v Grissom, 492 Mich. 296 (2012) (holding that the trial court did not err in declining to give an adverse inference instruction where the defendant failed to show that the prosecutor acted in bad faith in failing to produce evidence); see also 23A C.J.S.",
"Criminal Procedure and Rights of Accused § 1862 (“An instruction . . . is appropriate only where the state’s failure to preserve or collect the missing evidence was intentional, and the potentially exculpatory nature of the evidence was apparent at the time it was lost or destroyed.”). III. SUFFICIENCY OF THE EVIDENCE Defendant next argues that the prosecutor presented insufficient evidence to support his convictions. Specifically, defendant contends that there was insufficient evidence to establish defendant’s identity as the shooter. We disagree. “To determine whether there was sufficient evidence to support a conviction, we review the evidence de novo, in the light most favorable to the prosecutor, and decide whether a rational fact-finder could have found that the essential elements of the crime were proven beyond a reasonable doubt.” People v Odom, 276 Mich. App.",
"407, 418; 740 NW2d 557 (2007). “This Court will not interfere with the trier of fact’s role of determining the weight of the evidence or the credibility of witnesses.” People v Kanaan, 278 Mich. App. 594, 619; 751 NW2d 57 (2008). “All conflicts in the evidence must be resolved in favor of the prosecution.” Id. “Circumstantial evidence and reasonable inferences arising therefrom may constitute proof of the elements of the crime.” People v Bennett, 290 Mich. App. 465, 472; 802 NW2d 627 (2010).",
"1 Defendant vaguely asserts that he has been denied his constitutional rights to present a defense and to confront witnesses, but he fails to elaborate sufficiently on those assertions. “An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation of supporting authority.” People v Kelly, 231 Mich. App. 627, 640-641; 588 NW2d 480 (1998). Defendant has thus not properly presented those issues for appellate review. Id. -3- Defendant challenges the sufficiency of the evidence on the ground that the testimony of the eyewitnesses was inconsistent in describing defendant’s appearance. “[I]dentity is an element of every offense.” People v Yost, 278 Mich. App. 341, 356; 749 NW2d 753 (2008). “The credibility of identification testimony is a question for the trier of fact that we do not resolve anew.” People v Davis, 241 Mich. App. 697, 700; 617 NW2d 381 (2000).",
"Moreover, “positive identification by witnesses may be sufficient to support a conviction of a crime.” Id. In this case, Marquis Terrill Turner and Jalen Ja’von Watkins each identified defendant at trial as the shooter. Turner had also previously identified defendant in a photo array before trial. Also, Sharita McCann testified that defendant confessed to her that he committed the shooting. Hence, the prosecutor presented sufficient evidence of defendant’s identity as the person who committed the crimes. See id. Defendant emphasizes inconsistencies in various eyewitnesses’ descriptions of the shooter’s height, physique, and apparel. But, again, it was for the jury to weigh the evidence and evaluate the credibility of witnesses, Kanaan, 278 Mich. App. at 619, including the credibility of identification testimony, Davis, 241 Mich. App. at 70.",
"Any inconsistencies in eyewitnesses’ descriptions of the shooter’s physical appearance were thus for the jury to resolve. “[A] jury is free to believe or disbelieve, in whole or in part, any of the evidence presented.” People v Perry, 460 Mich. 55, 63; 594 NW2d 477 (1999). A reasonable jury could have reconciled the conflicting descriptions by concluding that Turner and Watkins accurately remembered defendant’s face even if some eyewitnesses had poor memories regarding the shooter’s height, physique, or apparel.",
"Further, even if the eyewitness descriptions of the shooter varied, the jury could also have credited McCann’s testimony regarding defendant’s confessed role in the shooting. Defendant’s challenge to the sufficiency of the evidence is therefore without merit. IV. INEFFECTIVE ASSISTANCE OF COUNSEL Defendant next argues that he was denied the effective assistance of counsel. In particular, defendant contends that his attorney provided ineffective assistance by failing to object to portions of McCann’s testimony involving defendant’s robbery and shooting of McCann. We disagree. “[A] defendant must move in the trial court for a new trial or an evidentiary hearing to preserve the defendant’s claim that his or her counsel was ineffective.” Heft, 299 Mich. App. at 80. Defendant did not move for a new trial or an evidentiary hearing on this issue below. Therefore, the issue is unpreserved. Id. Because defendant did not move in the trial court for a new trial or an evidentiary hearing on this issue, our review is limited to mistakes apparent from the record. Id. “To prevail on a claim of ineffective assistance, a defendant must, at a minimum, show that (1) counsel’s performance was below an objective standard of reasonableness and (2) a reasonable probability [exists] that the outcome of the proceeding would have been different but for trial counsel’s errors.” People v Ackerman, 257 Mich. App.",
"434, 455; 669 NW2d 818 (2003). Defense counsel is presumed effective. People v Vaughn, 491 Mich. 642, 670; 821 NW2d 288 (2012). “Defendant must overcome a strong presumption that counsel’s performance constituted sound trial strategy.” People v Petri, 279 Mich. App. 407, 411; 760 NW2d 882 (2008). “This Court does not second-guess counsel on matters of trial strategy, nor does it assess counsel’s -4- competence with the benefit of hindsight.” People v Russell, 297 Mich. App. 707, 716; 825 NW2d 623 (2012). Defendant concedes that McCann’s testimony regarding defendant’s confession to the crimes in the instant case was admissible but argues that McCann’s testimony concerning defendant’s robbing and shooting of McCann was inadmissible under MRE 404(b). Defendant contends that defense counsel was ineffective for failing to object to McCann’s testimony concerning defendant’s assault on her or failing to move to limit McCann’s testimony in this regard. However, although counsel could have potentially objected under MRE 404(b) to evidence that defendant robbed and shot McCann, defendant’s ineffective assistance claim is nevertheless without merit because it appears from the record that counsel made the strategic decision to forgo any objection to McCann’s testimony regarding the robbery and shooting at her home in order to use this evidence to discredit McCann and cast doubt about defendant’s guilt. In particular, on cross-examination, defense counsel elicited an acknowledgement from McCann that she wanted defendant to spend the rest of his life in prison for what he did to her and that she understood he was only receiving 15 years’ imprisonment for the charges related to shooting her.",
"Defense counsel also questioned McCann about the fact that in her initial statements to police about defendant’s assault on her, she did not disclose the fact that defendant had confessed to committing the crimes at issue in the instant case. Defense counsel made these same points in closing argument and also stressed that the bullet recovered from Lindsay’s body could not be matched to the bullet recovered from the floor of McCann’s home. These arguments and credibility challenges would not have been possible without the admission of McCann’s testimony concerning defendant’s assault on her. The alternative would have been for the jury to hear only McCann’s testimony that defendant confessed to committing the instant crimes without hearing the additional testimony that provided a basis for defense counsel to challenge McCann’s credibility. Defendant has thus failed to overcome the presumption that the declination to object to McCann’s testimony about defendant’s assault on her constituted a sound trial strategy. Petri, 279 Mich. App. at 411. That a strategy is unsuccessful does not make defense counsel’s performance deficient. Id.",
"at 412. V. REQUEST FOR DEFENSE EXPERT Finally, defendant argues that the trial court abused its discretion in denying his request for the appointment of a defense expert in computer forensics. We disagree. “This Court reviews for abuse of discretion a trial court’s decision whether to grant an indigent defendant’s motion for the appointment of an expert witness.” People v Carnicom, 272 Mich. App. 614, 616; 727 NW2d 399 (2006). An abuse of discretion occurs when the trial court’s decision falls outside the range of principled outcomes. Id. at 617. MCL 775.15 provides a trial court with discretion to authorize payment for an expert witness for an indigent defendant. Carnicom, 272 Mich. App. at 617. This provision states: If any person accused of any crime or misdemeanor, and about to be tried therefor in any court of record in this state, shall make it appear to the satisfaction of the judge presiding over the court wherein such trial is to be had, by his own oath, or otherwise, that there is a material witness in his favor within the -5- jurisdiction of the court, without whose testimony he cannot safely proceed to a trial, giving the name and place of residence of such witness, and that such accused person is poor and has not and cannot obtain the means to procure the attendance of such witness at the place of trial, the judge in his discretion may, at a time when the prosecuting officer of the county is present, make an order that a subpoena be issued from such court for such witness in his favor, and that it be served by the proper officer of the court.",
"And it shall be the duty of such officer to serve such subpoena, and of the witness or witnesses named therein to attend the trial, and the officer serving such subpoena shall be paid therefor, and the witness therein named shall be paid for attending such trial, in the same manner as if such witness or witnesses had been subpoenaed in behalf of the people. [MCL 775.15.] “As MCL 775.15 makes clear, a trial court is not compelled to provide funds for the appointment of an expert on demand.” People v Tanner, 469 Mich. 437, 442; 671 NW2d 728 (2003).",
"To obtain appointment of an expert, an indigent defendant must demonstrate a nexus between the facts of the case and the need for an expert. It is not enough for the defendant to show a mere possibility of assistance from the requested expert. Without an indication that expert testimony would likely benefit the defense, a trial court does not abuse its discretion in denying a defendant’s motion for appointment of an expert witness. [Carnicom, 272 Mich App at 617 (internal citations omitted).] In this case, defendant asserts that an expert in computer forensics “could have potentially recovered the missing video and could have informed the jury and the judge about how the video was apparently the only video that wasn’t downloaded.” However, it was undisputed at trial that, while the police successfully downloaded some footage from the security cameras at the VIP club, the video footage showing the murder was not downloaded correctly. It is not clear how testimony from an expert on this matter would have aided the defense.",
"Defendant’s suggestion that an expert could somehow have recovered the missing video is pure conjecture. And even if the video could have been recovered, there is no indication that it would have benefited the defense. Przybyla’s grand jury testimony quoted by defendant suggests that the video showed defendant committing the crime, whereas the prosecutor at the motion hearing indicated that the video was not exculpatory with respect to defendant or anyone else because the shooter’s identity could not be determined from the video. Defendant has shown nothing beyond the mere possibility of assistance from the requested expert in computer forensics.",
"He has not shown that testimony from such an expert would likely benefit the defense. Thus, he has not shown that the trial court abused its discretion by denying his request for an expert. Affirmed. /s/ David H. Sawyer /s/ Joel P. Hoekstra /s/ Christopher M. Murray -6-"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4264475/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 2:12-cv-00166 Document 325 Filed on 02/26/19 in TXSD Page 1 of 1 United States District Court Southern District of Texas
ENTERED February 26, 2019 David J. Bradley, Clerk | 2019-02-26 | [
"Case 2:12-cv-00166 Document 325 Filed on 02/26/19 in TXSD Page 1 of 1 United States District Court Southern District of Texas ENTERED February 26, 2019 David J. Bradley, Clerk"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/62620290/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
PRANK H. ELMORE, Circuit Judge. Order granting motion for summary judgment in favor of defendant telephone company: This matter came on to be heard on motion of the defendant Southern Bell Tel. & Tel. Co. for summary judgment in its favor. *112After consideration of the pleadings, affidavits and depositions on file, and after hearing argument of counsel, the court finds as follows — Plaintiffs originally sued the telephone company alone for injuries received by Mrs. McGrath, because the company — “carelessly and negligently maintained the floor of its business office whereby the same became unsafe for the accommodation of pedestrian traffic”. The court denied motions to dismiss and for more definite statement, plaintiff relying on First Federal v. Wylie (Fla. 1950), 46 So.2d 396, and the court finding that plaintiff had alleged an act of negligent commission on defendant’s part. Defendant telephone company then filed an answer alleging in substance that it was not guilty of an act of negligent commission; that it did not maintain the floor; but that the floor was maintained by the landlord, Robert H. Jacobs. Under the same Wylie case, the court upheld this answer. Plaintiffs thereupon amended to add Jacobs as an additional defendant, and the telephone company cross claimed against Jacobs on the same ground that under its lease Jacobs was under an obligation to the telephone company to, and did, maintain the floor. The court upheld this cross claim and the amended complaint. Defendant telephone company has now filed an uncontroverted affidavit, from which, and plaintiff’s deposition, it is shown that on plaintiff’s pre-trial interrogation the only thing she claimed wrong with the floor was that she had slipped on it and thereupon found her dress damp and soiled; that under the lease covering the business office the landlord, defendant Jacobs, had agreed to provide janitorial service and to maintain and keep the premises in good tenantable condition; that at the time of the accident Jacob’s janitor was in the office with a mop drying up the floor after each person who might have brought in dirt or water from the outside, it having rained off and on during the day; that Jacobs waxed, cleaned, dried, repaired, and otherwise maintained the floor; and that the telephone company took no part in the upkeep, cleaning, drying or maintenance of the floor. The court finds, therefore, that no actionable negligence has been shown as against the telephone company; that liability, if any, on the part of the telephone company would be derivative from the act of the defendant Jacobs who had agreed to and did maintain the office floor; that if any such liability were shown, *113which it has not been, the telephone company would be entitled to judgment over against Jacobs on its cross claim. And the court finding that there is no genuine issue as to any material fact, and that defendant telephone company is entitled to summary judgment in its favor herein, it is ordered and adjudged that defendant Southern Bell Tel. & Tel. Co. be granted summary judgment under civil procedure rule 1.36, that plaintiffs take nothing by their said suit against said defendant, that the defendant Southern Bell Tel. & Tel. Co. go hence without day; and that this case shall proceed against the defendant Jacobs alone. Order denying motion for rehearing: This cause coming on to be heard, after due notice, on motion of the plaintiffs for rehearing of the summary judgment entered in favor of the defendant telephone company on July 6, 1962, which motion was filed more than 10 days after the judgment complained of, and the court having heard argument of counsel, upon consideration, it is ordered — 1. Plaintiff relies primarily on Goldstein v. Great Atlantic & Pacific Tea Co., 142 So.2d 115, decided by the District Court of Appeal, Third District, on June 12, 1962. The court had read this case prior to the entry of summary judgment and was and is thoroughly familiar with it. That case is not controlling here for the following reasons, among others — (a) In this case, plaintiff has squarely alleged a negligent act of commission on the part of the telephone company (see First Federal v. Wylie, 46 So.2d 396) in that it carelessly and negligently maintained the floor, and there is no evidence in the affidavits submitted on the motion for summary judgment showing any negligence of any kind on the part of the company. (b) The uncontroverted affidavits show that the landlord defendant Jacobs had taken over the maintenance of the floor and was actually engaged therein at the time of the accident. 2. There is doubt that the motion for rehearing was timely filed. See civil procedure rules 2.8 and 3.16. 3. The motion for rehearing is denied. | 09-02-2021 | [
"PRANK H. ELMORE, Circuit Judge. Order granting motion for summary judgment in favor of defendant telephone company: This matter came on to be heard on motion of the defendant Southern Bell Tel. & Tel. Co. for summary judgment in its favor. *112After consideration of the pleadings, affidavits and depositions on file, and after hearing argument of counsel, the court finds as follows — Plaintiffs originally sued the telephone company alone for injuries received by Mrs. McGrath, because the company — “carelessly and negligently maintained the floor of its business office whereby the same became unsafe for the accommodation of pedestrian traffic”. The court denied motions to dismiss and for more definite statement, plaintiff relying on First Federal v. Wylie (Fla. 1950), 46 So.2d 396, and the court finding that plaintiff had alleged an act of negligent commission on defendant’s part. Defendant telephone company then filed an answer alleging in substance that it was not guilty of an act of negligent commission; that it did not maintain the floor; but that the floor was maintained by the landlord, Robert H. Jacobs. Under the same Wylie case, the court upheld this answer. Plaintiffs thereupon amended to add Jacobs as an additional defendant, and the telephone company cross claimed against Jacobs on the same ground that under its lease Jacobs was under an obligation to the telephone company to, and did, maintain the floor.",
"The court upheld this cross claim and the amended complaint. Defendant telephone company has now filed an uncontroverted affidavit, from which, and plaintiff’s deposition, it is shown that on plaintiff’s pre-trial interrogation the only thing she claimed wrong with the floor was that she had slipped on it and thereupon found her dress damp and soiled; that under the lease covering the business office the landlord, defendant Jacobs, had agreed to provide janitorial service and to maintain and keep the premises in good tenantable condition; that at the time of the accident Jacob’s janitor was in the office with a mop drying up the floor after each person who might have brought in dirt or water from the outside, it having rained off and on during the day; that Jacobs waxed, cleaned, dried, repaired, and otherwise maintained the floor; and that the telephone company took no part in the upkeep, cleaning, drying or maintenance of the floor. The court finds, therefore, that no actionable negligence has been shown as against the telephone company; that liability, if any, on the part of the telephone company would be derivative from the act of the defendant Jacobs who had agreed to and did maintain the office floor; that if any such liability were shown, *113which it has not been, the telephone company would be entitled to judgment over against Jacobs on its cross claim.",
"And the court finding that there is no genuine issue as to any material fact, and that defendant telephone company is entitled to summary judgment in its favor herein, it is ordered and adjudged that defendant Southern Bell Tel. & Tel. Co. be granted summary judgment under civil procedure rule 1.36, that plaintiffs take nothing by their said suit against said defendant, that the defendant Southern Bell Tel. & Tel. Co. go hence without day; and that this case shall proceed against the defendant Jacobs alone. Order denying motion for rehearing: This cause coming on to be heard, after due notice, on motion of the plaintiffs for rehearing of the summary judgment entered in favor of the defendant telephone company on July 6, 1962, which motion was filed more than 10 days after the judgment complained of, and the court having heard argument of counsel, upon consideration, it is ordered — 1. Plaintiff relies primarily on Goldstein v. Great Atlantic & Pacific Tea Co., 142 So.2d 115, decided by the District Court of Appeal, Third District, on June 12, 1962. The court had read this case prior to the entry of summary judgment and was and is thoroughly familiar with it.",
"That case is not controlling here for the following reasons, among others — (a) In this case, plaintiff has squarely alleged a negligent act of commission on the part of the telephone company (see First Federal v. Wylie, 46 So.2d 396) in that it carelessly and negligently maintained the floor, and there is no evidence in the affidavits submitted on the motion for summary judgment showing any negligence of any kind on the part of the company. (b) The uncontroverted affidavits show that the landlord defendant Jacobs had taken over the maintenance of the floor and was actually engaged therein at the time of the accident. 2. There is doubt that the motion for rehearing was timely filed.",
"See civil procedure rules 2.8 and 3.16. 3. The motion for rehearing is denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/4882110/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
J-S55042-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
CHRISTOPHER YOUNG
Appellant No. 615 EDA 2014
Appeal from the PCRA Order January 24, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0503112-1999
BEFORE: BOWES, J., SHOGAN, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED JANUARY 22, 2015
Christopher Young appeals, pro se, from the order entered January 24,
2014, dismissing his second petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. Young seeks relief from the
judgment of sentence of an aggregate term of life imprisonment, imposed
after his jury conviction of first degree murder, attempted murder (two
counts), criminal conspiracy, and possessing an instrument of crime (PIC).1
On appeal, Young contends the PCRA court erred in dismissing his PCRA
petition based on the following: (1) he demonstrated a claim of actual
innocence based upon an erroneous jury charge, (2) his sentence of life
____________________________________________
1 18 Pa.C.S. §§ 2502, 901, 903, and 907, respectively. J-S55042-14
imprisonment without the possibility of parole violated both the
constitutional right of equal protection and the prohibition against cruel and
unusual punishment, and (3) he is entitled to a new trial with a “life-
qualified” jury. Because we agree with the conclusion of the PCRA court that
Young’s petition was untimely filed, we affirm.
The facts underlying Young’s arrest and conviction were summarized
by this Court in a prior PCRA appeal as follows:
On December 12, 1998, Christopher Young, Dameon Ellis, and another unidentified man, clad in dark hooded sweatshirts and armed with semiautomatic weapons and a sawed-off shotgun, approached the corner of Park and Pike Streets in Philadelphia. A few days earlier, Young had encountered an old friend, Michael Brown, on the street. Brown informed Young that he recently had been winning money gambling on the corner of Park and Pike Streets. On the night in question, Young and his cohorts went to Park and Pike streets to rob Brown. The three men approached the group of street gamblers and asked Brown to take a walk to a darker area of the street. When Brown refused, Ellis pulled a gun. Brown then pushed Young, turned to run away, and was shot in the right buttocks. Another of the gamblers, Kasimir Devine, was shot in the chest and a third gambler, Shawn Pitts, was killed.
Commonwealth v. Young, 932 A.2d 266 [1557 EDA 2006], unpublished
memorandum at 2 (Pa. Super. 2007) (record citations omitted).
Young was charged with first-degree murder, attempted murder (two
counts), criminal conspiracy and possessing an instrument of crime. On
November 13, 2000, a jury returned a verdict of guilty on all charges, and,
following a penalty hearing, returned a sentence of life imprisonment. The
-2- J-S55042-14
trial court formally imposed sentence on January 24, 2001. In addition to
the term of life imprisonment for first degree murder, the court imposed a
consecutive term of 10 to 20 years’ imprisonment for conspiracy, concurrent
terms of 10 to 20 years’ imprisonment for each attempted murder charge,
and a concurrent term of one to two years’ imprisonment for PIC. The
judgment of sentence was affirmed by this Court on February 15, 2002, and,
following the grant of allocator review, affirmed by the Pennsylvania
Supreme Court on May 27, 2004. Commonwealth v. Young, 797 A.2d
1027 (Pa. Super. 2002), aff’d, 849 A.2d 1152 (Pa. 2004).
On March 7, 2005, Young filed a pro se PCRA petition. Counsel was
subsequently appointed and filed two amended petitions raising numerous
allegations of the ineffective assistance of trial counsel. On May 1, 2006, the
trial court dismissed the petition without first conducting an evidentiary
hearing. This Court affirmed the order on appeal, and the Supreme Court
denied Young’s petition for allocator review. Commonwealth v. Young,
932 A.2d 266 (Pa. Super. 2007) (unpublished memorandum), appeal
denied, 934 A.2d 1277 (Pa. 2007). 2
____________________________________________
2 In that appeal, Young challenged trial and direct appeal counsel’s ineffectiveness for failing to raise claims regarding the sufficiency and weight of the evidence. Id., unpublished memorandum at 1.
-3- J-S55042-14
On April 26, 2012, Young filed a second, pro se PCRA petition,
asserting he was entitled to relief based upon an erroneous jury charge, and
his actual innocence. Recognizing the potential timeliness issue, Young also
asserted that pursuant to the recent decision of the United States Supreme
Court in Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012), he was
denied his right to effective counsel in his first PCRA petition. On June 7,
2012, the PCRA court sent Young notice, pursuant to Pa.R.Crim.P. 907, of its
intent to dismiss his petition without first conducting an evidentiary hearing.
Thereafter, on June 20, 2012, Young filed a pro se response to the court’s
Rule 907 notice, and on August 23, 2012, a supplemental PCRA petition. In
the supplemental petition, Young, relying on Miller v. Alabama, __ U.S. __,
132 S.Ct. 2455 (2012), argued his sentence of life imprisonment without
parole violated both the equal protection clause and the prohibition against
cruel and unusual punishment. On January 24, 2014, the PCRA court
entered an order dismissing Young’s initial and supplemental petitions as
untimely filed. This timely appeal followed.3
In his first issue, Young contends he is entitled to PCRA relief because
of an erroneous jury charge. Specifically, he asserts the trial court “imputed
____________________________________________
3 The PCRA court did not direct Young to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
-4- J-S55042-14
to [him] the murderer’s intent to kill through criminal conspiracy thereby
relieving the Commonwealth of [its] burden of proof that [Young] possessed
the specific intent to kill[.]”4 Young’s Brief at 9-10. Further, Young claims:
This case is highly unusual in that it is undisputed that [Young] is actually innocent of the crimes for which he was convicted, namely first-degree murder where the main ingredient to establish a first degree murder conviction was erroneously imputed to [Young] though the trial court’s unconstitutional first degree murder jury instruction.
Id. at 12.5 Acknowledging his claim is potentially time-barred, Young
argues his “actual innocence claim falls within the ambit” of the newly
recognized constitutional right exception to the PCRA’s timing requirements.
Id. at 13.
When reviewing an order dismissing a PCRA petition, we must
determine whether the ruling of the PCRA court is supported by record
evidence and is free of legal error. Commonwealth v. Burkett, 5 A.3d
1260, 1267 (Pa. Super. 2010). “Great deference is granted to the findings
of the PCRA court, and these findings will not be disturbed unless they have
____________________________________________
4 Young does not provide a citation to the purported erroneous charge, nor does he recite the specific charge in his brief. Moreover, the notes of testimony from Young’s jury trial are not included in the certified record. 5 We note that neither the Commonwealth nor the PCRA court has conceded that Young is “actually innocent” of the crimes on appeal.
-5- J-S55042-14
no support in the certified record.” Commonwealth v. Carter, 21 A.3d
680, 682 (Pa. Super. 2011) (citation omitted).
In the present case, the PCRA court determined that Young’s petition
was untimely filed. The PCRA mandates that any petition for relief,
“including a second or subsequent petition, shall be filed within one year of
the date the judgment becomes final[.]” 42 Pa.C.S. §9545(b)(1).
The PCRA’s timeliness requirements are jurisdictional; therefore, a court may not address the merits of the issues raised if the petition was not timely filed. The timeliness requirements apply to all PCRA petitions, regardless of the nature of the individual claims raised therein.
Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012) (internal citations
omitted and emphasis supplied).
Young’s judgment of sentence became final on August 25, 2004,
ninety days after the Pennsylvania Supreme Court affirmed the conviction on
direct appeal, and Young failed to petition the United States Supreme Court
for review. See 42 Pa.C.S. § 9545(b)(3); U.S. Sup.Ct. R. 13.1.
Accordingly, Young had until August 25, 2005, to file a timely PCRA
petition.6 The present petition, filed nearly seven years later on April 26,
2012, is patently untimely.
____________________________________________
6 We note Young did file a timely PCRA petition on March 7, 2005.
-6- J-S55042-14
However, pursuant to 42 Pa.C.S. § 9545, an otherwise untimely
petition is not time-barred if a petitioner can plead and prove that, inter alia,
the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.
42 Pa.C.S. § 9545(b)(1)(iii). Further, any petition invoking this exception
must be filed “within 60 days of the date the claim could have been
presented.” Id. at § 9545(b)(2).
While Young contends his “actual innocence claims falls within the
ambit of the PCRA’s subsection 9545(b)(iii)” exception, he fails to set forth
in his brief the “newly recognized constitutional right” that applies to the
facts of his case, nor does he demonstrate that his petition was filed within
the requisite 60-day time period. Young’s Brief at 13. Indeed, even a claim
of “actual innocence” does not entitle a petitioner to relief if it was not raised
in a timely filed PCRA petition. As the Supreme Court has explained:
[T]he “period for filing a PCRA petition is not subject to the doctrine of equitable tolling;” instead, the time for filing a PCRA petition can be extended only if the PCRA permits it to be extended, i.e., by operation of one of the statutorily enumerated exceptions to the PCRA time-bar.
-7- J-S55042-14
Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014) (citation omitted),
cert. denied, 2014 WL 2881005 (U.S. Dec. 1, 2014). Accordingly, no relief
is warranted on Young’s first claim.7
Next, Young contends his sentence of life imprisonment without the
possibility of parole violates both the equal protection clause and the
prohibition against cruel and unusual punishment in light of the United ____________________________________________
7 We note that in his PCRA petition, Young relied upon the United States Supreme Court’s decision in Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012), to overcome the time bar. He asserted that the Martinez decision, filed less than 60 days before the present PCRA petition, permitted him to challenge the ineffectiveness of prior PCRA counsel for failing to argue trial counsel’s ineffectiveness in not objecting to the alleged erroneous jury charge. See Petition for Post Conviction Relief, 4/26/2012, at 4.
This Court, however, rejected a similar claim in Commonwealth v. Saunders, 60 A.3d 162 (Pa. Super. 2013), appeal denied, 72 A.3d 603 (Pa. 2013), cert. denied, ___ U.S. ___, 134 S. Ct. 944 (U.S. 2014), in which we held:
Martinez recognizes that for purposes of federal habeas corpus relief, “[i]nadequate assistance of counsel at initial- review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance of trial counsel.” Martinez, supra at 1315. While Martinez represents a significant development in federal habeas corpus law, it is of no moment with respect to the way Pennsylvania courts apply the plain language of the time bar set forth in section 9545(b)(1) of the PCRA
Id. at 165 (emphasis supplied). Accordingly, Young was not entitled to relief under Martinez, had he properly raised the claim in his appellate brief.
-8- J-S55042-14
States Supreme Court’s decision in Miller v. Alabama, ___ U.S. ___, 132
S.Ct. 2455 (U.S. 2012).8
In Miller, the Supreme Court held that “mandatory life without parole
for those under the age of 18 at the time of their crimes violates the
Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”
Miller, 132 S.Ct. at 2460 (emphasis supplied). Although the Court made
clear that it was not foreclosing a trial court’s ability to impose a life
sentence upon a juvenile convicted of murder, it imposed a requirement
upon the trial court to “take into account how children are different, and how
those differences counsel against irrevocably sentencing them to a lifetime in
prison.” Id. at 2469. Therefore, it was the mandatory sentencing scheme
that the Supreme Court deemed unconstitutional when applied to juveniles,
holding that “a judge or jury must have the opportunity to consider
mitigating circumstances before imposing the harshest possible penalty for
juveniles.” Id. at 2475.
____________________________________________
8 The Commonwealth contends this issue is waived since it was not included in Young’s original or amended PCRA petition. We disagree. In his amended petition, Young argued that he was entitled to relief under Miller, and checked the box indicating that his petition was subject to the newly recognized constitutional right exception to the timeliness requirements. See Petition for Post Conviction Relief, 8/23/2012, at 2, 3. Moreover, we note that Young filed the supplemental petition less than 60 days after the Miller decision was filed on June 25, 2012. See 42 Pa.C.S. § 9545(b)(3).
-9- J-S55042-14
Preliminarily, we note the Pennsylvania Supreme Court has held that
the Miller decision does not apply retroactively to benefit offenders seeking
collateral review because it “‘does not categorically bar a penalty for a class
of offenders.’” Commonwealth v. Cunningham, 81 A.3d. 1, 10 (Pa.
2013) (quotation omitted), cert. denied, 134 S.Ct. 2724 (U.S. 2014).9
Therefore, Young’s collateral claim does not satisfy the “newly recognized
constitutional right” exception to the PCRA timing requirements. See 42
Pa.C.S. § 9545(b)(1)(iii) (providing exception to the timing requirements
when “the right asserted is a constitutional right that was recognized by the
Supreme Court of the United States or the Supreme Court of Pennsylvania
after the time period provided in this section and has been held by that
court to apply retroactively”) (emphasis supplied).
Moreover, Young concedes he was 20 years old at the time he
committed the murders. Because the Miller Court specifically limited its
decision to juvenile offenders, it simply does not apply to the facts of
Young’s case. See Miller, supra, 132 S.Ct. at 2469 (“We therefore hold
that the Eighth Amendment forbids a sentencing scheme that mandates life
____________________________________________
9 We note that Young states in his brief, without any citation, that a case involving the retroactivity of the Miller decision is “presently pending in the United States Supreme Court.” Young’s Brief at 16. We decline his request to hold this appeal “in abayance” (sic) until the Supreme Court issues an opinion in that decision. See Young’s Brief at 16.
- 10 - J-S55042-14
in prison without possibility of parole for juvenile offenders.”) (emphasis
supplied); Commonwealth v. Lawson, 90 A.3d 1, 6 (Pa. Super. 2014)
(holding Miller decision inapplicable to appellant’s case when appellant was
thirty-three years old at the time he committed murder).
Young’s attempt to circumvent this obstacle to relief by invoking the
Equal Protection Clause is similarly meritless. Young contends that
Pennsylvania “draw[s] no distinction between juvenile and adult individuals”
for purposes of a first-degree murder conviction and sentence of life
imprisonment. Young’s Brief at 14. Therefore, because the offenders
comprise a single class, Young argues “[u]nder the [E]qual [P]rotection
doctrine, adults are no less entitled to special considerations than their
juvenile counterparts, particularly where age is not a statutory factor.” Id.
This Court rejected a similar claim in Commonwealth v. Cintora, 69
A.3d 759 (Pa. Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013). In that
case, the co-defendants, who were 19 and 21 years old at the time they
committed second degree murder, invoked the Miller decision in an attempt
to overcome their untimely filed PCRA petitions. Although they recognized
that they were not under the age of 18 at the time they committed the
crime, they argued that the holding of Miller was applicable pursuant to the
Equal Protection Clause. This Court disagreed:
Appellants … contend that because Miller created a new Eighth Amendment right, that those whose brains were not fully developed at the time of their crimes are free from mandatory
- 11 - J-S55042-14
life without parole sentences, and because research indicates that the human mind does not fully develop or mature until the age of 25, it would be a violation of equal protection for the courts to treat them or anyone else with an immature brain, as adults. Thus, they conclude that the holding in Miller should be extended to them as they were under the age of 25 at the time of the murder and, as such, had immature brains. However, we need not reach the merits of Appellants' argument, as their contention that a newly-recognized constitutional right should be extended to others does not render their petition timely pursuant to section 9545(b)(1)(iii).
Id. at 764 (citation omitted and emphasis in original). Accordingly, Young is
similarly entitled to no relief.
Lastly, Young argues he is entitled to a new trial with a “life-qualified”
jury pursuant to the decision in Miller. For the reasons recited above, we
conclude the Miller decision is inapplicable to the facts of Young’s case, and,
in any event, the decision has not been held to apply retroactively.
Accordingly, no relief is warranted.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 1/22/2015
- 12 - J-S55042-14
- 13 - | 01-22-2015 | [
"J-S55042-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. CHRISTOPHER YOUNG Appellant No. 615 EDA 2014 Appeal from the PCRA Order January 24, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0503112-1999 BEFORE: BOWES, J., SHOGAN, J., and OTT, J. MEMORANDUM BY OTT, J.: FILED JANUARY 22, 2015 Christopher Young appeals, pro se, from the order entered January 24, 2014, dismissing his second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.",
"§ 9541 et seq. Young seeks relief from the judgment of sentence of an aggregate term of life imprisonment, imposed after his jury conviction of first degree murder, attempted murder (two counts), criminal conspiracy, and possessing an instrument of crime (PIC).1 On appeal, Young contends the PCRA court erred in dismissing his PCRA petition based on the following: (1) he demonstrated a claim of actual innocence based upon an erroneous jury charge, (2) his sentence of life ____________________________________________ 1 18 Pa.C.S.",
"§§ 2502, 901, 903, and 907, respectively. J-S55042-14 imprisonment without the possibility of parole violated both the constitutional right of equal protection and the prohibition against cruel and unusual punishment, and (3) he is entitled to a new trial with a “life- qualified” jury. Because we agree with the conclusion of the PCRA court that Young’s petition was untimely filed, we affirm. The facts underlying Young’s arrest and conviction were summarized by this Court in a prior PCRA appeal as follows: On December 12, 1998, Christopher Young, Dameon Ellis, and another unidentified man, clad in dark hooded sweatshirts and armed with semiautomatic weapons and a sawed-off shotgun, approached the corner of Park and Pike Streets in Philadelphia. A few days earlier, Young had encountered an old friend, Michael Brown, on the street.",
"Brown informed Young that he recently had been winning money gambling on the corner of Park and Pike Streets. On the night in question, Young and his cohorts went to Park and Pike streets to rob Brown. The three men approached the group of street gamblers and asked Brown to take a walk to a darker area of the street. When Brown refused, Ellis pulled a gun. Brown then pushed Young, turned to run away, and was shot in the right buttocks. Another of the gamblers, Kasimir Devine, was shot in the chest and a third gambler, Shawn Pitts, was killed. Commonwealth v. Young, 932 A.2d 266 [1557 EDA 2006], unpublished memorandum at 2 (Pa. Super. 2007) (record citations omitted). Young was charged with first-degree murder, attempted murder (two counts), criminal conspiracy and possessing an instrument of crime. On November 13, 2000, a jury returned a verdict of guilty on all charges, and, following a penalty hearing, returned a sentence of life imprisonment.",
"The -2- J-S55042-14 trial court formally imposed sentence on January 24, 2001. In addition to the term of life imprisonment for first degree murder, the court imposed a consecutive term of 10 to 20 years’ imprisonment for conspiracy, concurrent terms of 10 to 20 years’ imprisonment for each attempted murder charge, and a concurrent term of one to two years’ imprisonment for PIC. The judgment of sentence was affirmed by this Court on February 15, 2002, and, following the grant of allocator review, affirmed by the Pennsylvania Supreme Court on May 27, 2004. Commonwealth v. Young, 797 A.2d 1027 (Pa. Super. 2002), aff’d, 849 A.2d 1152 (Pa. 2004). On March 7, 2005, Young filed a pro se PCRA petition.",
"Counsel was subsequently appointed and filed two amended petitions raising numerous allegations of the ineffective assistance of trial counsel. On May 1, 2006, the trial court dismissed the petition without first conducting an evidentiary hearing. This Court affirmed the order on appeal, and the Supreme Court denied Young’s petition for allocator review. Commonwealth v. Young, 932 A.2d 266 (Pa. Super. 2007) (unpublished memorandum), appeal denied, 934 A.2d 1277 (Pa. 2007). 2 ____________________________________________ 2 In that appeal, Young challenged trial and direct appeal counsel’s ineffectiveness for failing to raise claims regarding the sufficiency and weight of the evidence.",
"Id., unpublished memorandum at 1. -3- J-S55042-14 On April 26, 2012, Young filed a second, pro se PCRA petition, asserting he was entitled to relief based upon an erroneous jury charge, and his actual innocence. Recognizing the potential timeliness issue, Young also asserted that pursuant to the recent decision of the United States Supreme Court in Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012), he was denied his right to effective counsel in his first PCRA petition. On June 7, 2012, the PCRA court sent Young notice, pursuant to Pa.R.Crim.P. 907, of its intent to dismiss his petition without first conducting an evidentiary hearing. Thereafter, on June 20, 2012, Young filed a pro se response to the court’s Rule 907 notice, and on August 23, 2012, a supplemental PCRA petition. In the supplemental petition, Young, relying on Miller v. Alabama, __ U.S. __, 132 S.Ct.",
"2455 (2012), argued his sentence of life imprisonment without parole violated both the equal protection clause and the prohibition against cruel and unusual punishment. On January 24, 2014, the PCRA court entered an order dismissing Young’s initial and supplemental petitions as untimely filed. This timely appeal followed.3 In his first issue, Young contends he is entitled to PCRA relief because of an erroneous jury charge. Specifically, he asserts the trial court “imputed ____________________________________________ 3 The PCRA court did not direct Young to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). -4- J-S55042-14 to [him] the murderer’s intent to kill through criminal conspiracy thereby relieving the Commonwealth of [its] burden of proof that [Young] possessed the specific intent to kill[. ]”4 Young’s Brief at 9-10.",
"Further, Young claims: This case is highly unusual in that it is undisputed that [Young] is actually innocent of the crimes for which he was convicted, namely first-degree murder where the main ingredient to establish a first degree murder conviction was erroneously imputed to [Young] though the trial court’s unconstitutional first degree murder jury instruction. Id. at 12.5 Acknowledging his claim is potentially time-barred, Young argues his “actual innocence claim falls within the ambit” of the newly recognized constitutional right exception to the PCRA’s timing requirements. Id.",
"at 13. When reviewing an order dismissing a PCRA petition, we must determine whether the ruling of the PCRA court is supported by record evidence and is free of legal error. Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2010). “Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have ____________________________________________ 4 Young does not provide a citation to the purported erroneous charge, nor does he recite the specific charge in his brief. Moreover, the notes of testimony from Young’s jury trial are not included in the certified record. 5 We note that neither the Commonwealth nor the PCRA court has conceded that Young is “actually innocent” of the crimes on appeal. -5- J-S55042-14 no support in the certified record.” Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation omitted).",
"In the present case, the PCRA court determined that Young’s petition was untimely filed. The PCRA mandates that any petition for relief, “including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final[. ]” 42 Pa.C.S. §9545(b)(1). The PCRA’s timeliness requirements are jurisdictional; therefore, a court may not address the merits of the issues raised if the petition was not timely filed. The timeliness requirements apply to all PCRA petitions, regardless of the nature of the individual claims raised therein.",
"Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012) (internal citations omitted and emphasis supplied). Young’s judgment of sentence became final on August 25, 2004, ninety days after the Pennsylvania Supreme Court affirmed the conviction on direct appeal, and Young failed to petition the United States Supreme Court for review. See 42 Pa.C.S. § 9545(b)(3); U.S. Sup.Ct. R. 13.1. Accordingly, Young had until August 25, 2005, to file a timely PCRA petition.6 The present petition, filed nearly seven years later on April 26, 2012, is patently untimely. ____________________________________________ 6 We note Young did file a timely PCRA petition on March 7, 2005. -6- J-S55042-14 However, pursuant to 42 Pa.C.S. § 9545, an otherwise untimely petition is not time-barred if a petitioner can plead and prove that, inter alia, the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively. 42 Pa.C.S.",
"§ 9545(b)(1)(iii). Further, any petition invoking this exception must be filed “within 60 days of the date the claim could have been presented.” Id. at § 9545(b)(2). While Young contends his “actual innocence claims falls within the ambit of the PCRA’s subsection 9545(b)(iii)” exception, he fails to set forth in his brief the “newly recognized constitutional right” that applies to the facts of his case, nor does he demonstrate that his petition was filed within the requisite 60-day time period. Young’s Brief at 13. Indeed, even a claim of “actual innocence” does not entitle a petitioner to relief if it was not raised in a timely filed PCRA petition. As the Supreme Court has explained: [T]he “period for filing a PCRA petition is not subject to the doctrine of equitable tolling;” instead, the time for filing a PCRA petition can be extended only if the PCRA permits it to be extended, i.e., by operation of one of the statutorily enumerated exceptions to the PCRA time-bar. -7- J-S55042-14 Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014) (citation omitted), cert.",
"denied, 2014 WL 2881005 (U.S. Dec. 1, 2014). Accordingly, no relief is warranted on Young’s first claim.7 Next, Young contends his sentence of life imprisonment without the possibility of parole violates both the equal protection clause and the prohibition against cruel and unusual punishment in light of the United ____________________________________________ 7 We note that in his PCRA petition, Young relied upon the United States Supreme Court’s decision in Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012), to overcome the time bar. He asserted that the Martinez decision, filed less than 60 days before the present PCRA petition, permitted him to challenge the ineffectiveness of prior PCRA counsel for failing to argue trial counsel’s ineffectiveness in not objecting to the alleged erroneous jury charge.",
"See Petition for Post Conviction Relief, 4/26/2012, at 4. This Court, however, rejected a similar claim in Commonwealth v. Saunders, 60 A.3d 162 (Pa. Super. 2013), appeal denied, 72 A.3d 603 (Pa. 2013), cert. denied, ___ U.S. ___, 134 S. Ct. 944 (U.S. 2014), in which we held: Martinez recognizes that for purposes of federal habeas corpus relief, “[i]nadequate assistance of counsel at initial- review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance of trial counsel.” Martinez, supra at 1315. While Martinez represents a significant development in federal habeas corpus law, it is of no moment with respect to the way Pennsylvania courts apply the plain language of the time bar set forth in section 9545(b)(1) of the PCRA Id. at 165 (emphasis supplied). Accordingly, Young was not entitled to relief under Martinez, had he properly raised the claim in his appellate brief.",
"-8- J-S55042-14 States Supreme Court’s decision in Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (U.S. 2012).8 In Miller, the Supreme Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” Miller, 132 S.Ct. at 2460 (emphasis supplied). Although the Court made clear that it was not foreclosing a trial court’s ability to impose a life sentence upon a juvenile convicted of murder, it imposed a requirement upon the trial court to “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id.",
"at 2469. Therefore, it was the mandatory sentencing scheme that the Supreme Court deemed unconstitutional when applied to juveniles, holding that “a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.” Id. at 2475. ____________________________________________ 8 The Commonwealth contends this issue is waived since it was not included in Young’s original or amended PCRA petition. We disagree.",
"In his amended petition, Young argued that he was entitled to relief under Miller, and checked the box indicating that his petition was subject to the newly recognized constitutional right exception to the timeliness requirements. See Petition for Post Conviction Relief, 8/23/2012, at 2, 3. Moreover, we note that Young filed the supplemental petition less than 60 days after the Miller decision was filed on June 25, 2012. See 42 Pa.C.S. § 9545(b)(3). -9- J-S55042-14 Preliminarily, we note the Pennsylvania Supreme Court has held that the Miller decision does not apply retroactively to benefit offenders seeking collateral review because it “‘does not categorically bar a penalty for a class of offenders.’” Commonwealth v. Cunningham, 81 A.3d.",
"1, 10 (Pa. 2013) (quotation omitted), cert. denied, 134 S.Ct. 2724 (U.S. 2014).9 Therefore, Young’s collateral claim does not satisfy the “newly recognized constitutional right” exception to the PCRA timing requirements. See 42 Pa.C.S. § 9545(b)(1)(iii) (providing exception to the timing requirements when “the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively”) (emphasis supplied). Moreover, Young concedes he was 20 years old at the time he committed the murders. Because the Miller Court specifically limited its decision to juvenile offenders, it simply does not apply to the facts of Young’s case. See Miller, supra, 132 S.Ct. at 2469 (“We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life ____________________________________________ 9 We note that Young states in his brief, without any citation, that a case involving the retroactivity of the Miller decision is “presently pending in the United States Supreme Court.” Young’s Brief at 16.",
"We decline his request to hold this appeal “in abayance” (sic) until the Supreme Court issues an opinion in that decision. See Young’s Brief at 16. - 10 - J-S55042-14 in prison without possibility of parole for juvenile offenders.”) (emphasis supplied); Commonwealth v. Lawson, 90 A.3d 1, 6 (Pa. Super. 2014) (holding Miller decision inapplicable to appellant’s case when appellant was thirty-three years old at the time he committed murder). Young’s attempt to circumvent this obstacle to relief by invoking the Equal Protection Clause is similarly meritless.",
"Young contends that Pennsylvania “draw[s] no distinction between juvenile and adult individuals” for purposes of a first-degree murder conviction and sentence of life imprisonment. Young’s Brief at 14. Therefore, because the offenders comprise a single class, Young argues “[u]nder the [E]qual [P]rotection doctrine, adults are no less entitled to special considerations than their juvenile counterparts, particularly where age is not a statutory factor.” Id. This Court rejected a similar claim in Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013). In that case, the co-defendants, who were 19 and 21 years old at the time they committed second degree murder, invoked the Miller decision in an attempt to overcome their untimely filed PCRA petitions. Although they recognized that they were not under the age of 18 at the time they committed the crime, they argued that the holding of Miller was applicable pursuant to the Equal Protection Clause. This Court disagreed: Appellants … contend that because Miller created a new Eighth Amendment right, that those whose brains were not fully developed at the time of their crimes are free from mandatory - 11 - J-S55042-14 life without parole sentences, and because research indicates that the human mind does not fully develop or mature until the age of 25, it would be a violation of equal protection for the courts to treat them or anyone else with an immature brain, as adults.",
"Thus, they conclude that the holding in Miller should be extended to them as they were under the age of 25 at the time of the murder and, as such, had immature brains. However, we need not reach the merits of Appellants' argument, as their contention that a newly-recognized constitutional right should be extended to others does not render their petition timely pursuant to section 9545(b)(1)(iii). Id. at 764 (citation omitted and emphasis in original). Accordingly, Young is similarly entitled to no relief. Lastly, Young argues he is entitled to a new trial with a “life-qualified” jury pursuant to the decision in Miller. For the reasons recited above, we conclude the Miller decision is inapplicable to the facts of Young’s case, and, in any event, the decision has not been held to apply retroactively. Accordingly, no relief is warranted.",
"Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/22/2015 - 12 - J-S55042-14 - 13 -"
]
| https://www.courtlistener.com/api/rest/v3/opinions/2772411/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Cobb, J.i An execution in favor of the City of Atlanta against Smith, for an amount claimed to be due as an assessment upon a described lot of land, the property of the defendant in execution, was levied upon the property, and an affidavit of illegality interposed and the papers returned to the superior court of Fulton county for trial. The affidavit set up numerous grounds of illegality, and when the case .came on for trial the court, on motion of counsel for the city, struck the affidavit, and the defendant in' execution excepted. Only one ground in the affidavit was urged in this court, and therefore our discussion will be limited to this ground. The charter of Atlanta requires, that, “ after the first reading of an ordinance providing for a sewer, a notice of the introduction of the same shall be published in one or more of the daily papers of the. city.” The contents of the notice are provided for in the charter, and it is required that the “notice shall be published at least as many as ten days before the adoption of such ordinance;” and the charter distinctly declares that a substantial compliance with the requirement as to notice shall be sufficient. Anderson’s Code of Atlanta, 18, § 46, Acts 1889, p. 958. The ordinance in question was introduced on November 16, 1903. The notice required was first published in a daily paper of the city issued on November 17, and appeared in ten issues of the paper immediately following that date. November 22 was Sunday. It is contended that the charter required that notice shall be published for ten consecutive days, exclusive of Sunday, and that the publication was therefore insufficient. The ordinance was finally adopted on December 7. The case turns upon the proper construction to be placed upon the words, “ at least as many as ten days before the adoption of such ordinance.” It is said that the use of the word “many” carries with it the idea of continuous publication as to days, whereas if the word “much” had been used, a different construction might have been placed upon the provision. We can not concur in this view. The. purpose of the charter was to give notice to those interested in the passage of the ordinance, at least ten days before it was passed, that such an *879ordinance was under consideration. In other words, the ten days was the time the party was allowed to investigate the matter after it was brought to his knowledge that a' proceeding affecting his property would be passed upon by the city authorities. He was entitled to notice ten days before the action was taken, but he was not entitled to notice every day for ten days. Such a construction of the ordinance is possible without doing violence to any of the words used, is a more reasonable construction than the one contended for by the plaintiff in error, and is in line with prior rulings of this court where similar provisions were under construction. See Mayor v. Finney, 54. Ga. 318 (3); Montford v. Allen, 111 Ga. 18 (1).
Judgment affirmed.
All the Justices concur, except Simmons, G. J., absent, and Lwmphin, J., disqualified. | 01-11-2022 | [
"Cobb, J.i An execution in favor of the City of Atlanta against Smith, for an amount claimed to be due as an assessment upon a described lot of land, the property of the defendant in execution, was levied upon the property, and an affidavit of illegality interposed and the papers returned to the superior court of Fulton county for trial. The affidavit set up numerous grounds of illegality, and when the case .came on for trial the court, on motion of counsel for the city, struck the affidavit, and the defendant in' execution excepted. Only one ground in the affidavit was urged in this court, and therefore our discussion will be limited to this ground.",
"The charter of Atlanta requires, that, “ after the first reading of an ordinance providing for a sewer, a notice of the introduction of the same shall be published in one or more of the daily papers of the. city.” The contents of the notice are provided for in the charter, and it is required that the “notice shall be published at least as many as ten days before the adoption of such ordinance;” and the charter distinctly declares that a substantial compliance with the requirement as to notice shall be sufficient. Anderson’s Code of Atlanta, 18, § 46, Acts 1889, p. 958. The ordinance in question was introduced on November 16, 1903.",
"The notice required was first published in a daily paper of the city issued on November 17, and appeared in ten issues of the paper immediately following that date. November 22 was Sunday. It is contended that the charter required that notice shall be published for ten consecutive days, exclusive of Sunday, and that the publication was therefore insufficient. The ordinance was finally adopted on December 7. The case turns upon the proper construction to be placed upon the words, “ at least as many as ten days before the adoption of such ordinance.” It is said that the use of the word “many” carries with it the idea of continuous publication as to days, whereas if the word “much” had been used, a different construction might have been placed upon the provision. We can not concur in this view.",
"The. purpose of the charter was to give notice to those interested in the passage of the ordinance, at least ten days before it was passed, that such an *879ordinance was under consideration. In other words, the ten days was the time the party was allowed to investigate the matter after it was brought to his knowledge that a' proceeding affecting his property would be passed upon by the city authorities. He was entitled to notice ten days before the action was taken, but he was not entitled to notice every day for ten days. Such a construction of the ordinance is possible without doing violence to any of the words used, is a more reasonable construction than the one contended for by the plaintiff in error, and is in line with prior rulings of this court where similar provisions were under construction. See Mayor v. Finney, 54. Ga. 318 (3); Montford v. Allen, 111 Ga. 18 (1). Judgment affirmed. All the Justices concur, except Simmons, G. J., absent, and Lwmphin, J., disqualified."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5574529/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
268 F.2d 860 Kelsey D. BARTLETT, Appellant,v.Dr. Robert E. WEIMER, Appellee. No. 12564. United States Court of Appeals Seventh Circuit. July 1, 1959.
Kelsey D. Bartlett, Toledo, Ohio, for appellant. Warren A. Deahl, South Bend, Ind., John W. Hackett, Jr., Shumaker, Loop & Kendrick, Toledo, Ohio, Seebirt, Oare, Deahl & Thornburg, South Bend, Ind., for appellee. Before MAJOR, HASTINGS and KNOCH, Circuit Judges. HASTINGS, Circuit Judge.
1 Appellant was adjudged mentally ill by a probate court of the State of Ohio and ordered committed. Approximately fourteen months later, he was ordered released on his application in the probate court, having then been found "not now mentally ill." Subsequently, the judgment originally determining him to be mentally ill and ordering his commitment was vacated on the ground that the probate court had failed to comply with notice provisions of the Ohio statute and was thus without jurisdiction to render a judgment in that proceeding.
2 The present suit was brought by appellant to recover damages from Dr. Weimer, one of two doctors appointed by the probate court, pursuant to Ohio Rev.Code, § 5123.23, to examine appellant as to his mental health and report their findings to that court. The complaint charges that the manner in which the examination was conducted and the nature of the purported medical findings amounted to a deprivation of appellant's constitutional rights under the Civil Rights Statute. 42 U.S.C.A. § 1983. The complaint additionally alleged jurisdiction by virtue of diversity of citizenship and charged appellee with libel, slander and with being a party to a conspiracy to maliciously prosecute appellant and to cause to be falsely committed to a mental institution.
3 Appellee's motion to dismiss the complaint was granted by the district court, and, we hold, properly so. Appellee was appointed and acted as an officer of the court to give his opinion as to the mental health of appellant; and, while acting in such capacity, was protected by the same immunity extended to judges and other judicial officers. Appellant cannot, therefore, maintain an action against appellee in the federal district courts under the Civil Rights Act. Cf. Cawley v. Warren, 7 Cir., 1954, 216 F.2d 74; Kenney v. Fox, 6 Cir., 1956, 232 F.2d 288. Moreover, if Dr. Weimer was not a judicial officer but acting as a private citizen, still it is well-settled that the right not to have private individuals swear falsely in a state court is not a right secured by the federal Constitution. Marten v. Holbrook, C.C.N.D.Cal.1907, 157 F. 716; Whittington v. Johnston, D.C.M.D.Ala.1952, 102 F. Supp. 352, affirmed 5 Cir., 201 F.2d 810. In all this we are in accord with the Court of Appeals for the Sixth Circuit. Bartlett v. Weimer, 6 Cir., 1957, 244 F.2d 955, certiorari denied 355 U.S. 858, 78 S. Ct. 87, 2 L. Ed. 2d 65. The last cited case in the Sixth Circuit involved identical claims brought by this appellant against Dr. Weimer and other doctors allegedly parties to the same general conspiracy to deprive appellant of his constitutional rights. That action was dismissed by the Ohio district court and the order of dismissal was affirmed by the Court of Appeals. The present suit was brought against Dr. Weimer on the ground that he was not served in the Ohio district court action.
4 Appellant contends that this suit may be maintained as a diversity action. Under Ohio law, however, immunity from suit for civil damages is extended judicial officers. Voll v. Steele, 1943, 141 Ohio St. 293, 47 N.E.2d 991; Brinkman v. Drolesbaugh, 1918, 97 Ohio St. 171, 119 N.E. 451, L.R.A.1918F, 1132; Maxey v. Gather, 1952, 94 Ohio App. 115, 114 N.E.2d 607. Likewise, appellee as a witness in the proceedings before the probate court is not subject to suit for civil damages for false testimony. Cf. Stephenson v. McCurdy, 1931, 124 Ohio St. 117, 177 N.E. 204; Siegel v. O. M. Scott & Sons Co., 1943, 73 Ohio App. 347, 56 N.E.2d 345.
5 The contention that immunity from suit cannot be extended appellee because of the failure of the probate court to comply with notice requirements in the original commitment proceeding is not well-taken. Although the irregularity in the proceeding is, in one sense jurisdictional, it did not go to the jurisdiction of the probate court generally in these matters under the Ohio statute. A medical witness cannot be held to ascertain, at his peril, whether a court has fully complied with procedural requirements.
6 The judgment of the district court dismissing this action is
7 Affirmed. | 08-23-2011 | [
"268 F.2d 860 Kelsey D. BARTLETT, Appellant,v.Dr. Robert E. WEIMER, Appellee. No. 12564. United States Court of Appeals Seventh Circuit. July 1, 1959. Kelsey D. Bartlett, Toledo, Ohio, for appellant. Warren A. Deahl, South Bend, Ind., John W. Hackett, Jr., Shumaker, Loop & Kendrick, Toledo, Ohio, Seebirt, Oare, Deahl & Thornburg, South Bend, Ind., for appellee. Before MAJOR, HASTINGS and KNOCH, Circuit Judges. HASTINGS, Circuit Judge. 1 Appellant was adjudged mentally ill by a probate court of the State of Ohio and ordered committed. Approximately fourteen months later, he was ordered released on his application in the probate court, having then been found \"not now mentally ill.\" Subsequently, the judgment originally determining him to be mentally ill and ordering his commitment was vacated on the ground that the probate court had failed to comply with notice provisions of the Ohio statute and was thus without jurisdiction to render a judgment in that proceeding. 2 The present suit was brought by appellant to recover damages from Dr. Weimer, one of two doctors appointed by the probate court, pursuant to Ohio Rev.Code, § 5123.23, to examine appellant as to his mental health and report their findings to that court.",
"The complaint charges that the manner in which the examination was conducted and the nature of the purported medical findings amounted to a deprivation of appellant's constitutional rights under the Civil Rights Statute. 42 U.S.C.A. § 1983. The complaint additionally alleged jurisdiction by virtue of diversity of citizenship and charged appellee with libel, slander and with being a party to a conspiracy to maliciously prosecute appellant and to cause to be falsely committed to a mental institution. 3 Appellee's motion to dismiss the complaint was granted by the district court, and, we hold, properly so. Appellee was appointed and acted as an officer of the court to give his opinion as to the mental health of appellant; and, while acting in such capacity, was protected by the same immunity extended to judges and other judicial officers. Appellant cannot, therefore, maintain an action against appellee in the federal district courts under the Civil Rights Act. Cf. Cawley v. Warren, 7 Cir., 1954, 216 F.2d 74; Kenney v. Fox, 6 Cir., 1956, 232 F.2d 288. Moreover, if Dr. Weimer was not a judicial officer but acting as a private citizen, still it is well-settled that the right not to have private individuals swear falsely in a state court is not a right secured by the federal Constitution.",
"Marten v. Holbrook, C.C.N.D.Cal.1907, 157 F. 716; Whittington v. Johnston, D.C.M.D.Ala.1952, 102 F. Supp. 352, affirmed 5 Cir., 201 F.2d 810. In all this we are in accord with the Court of Appeals for the Sixth Circuit. Bartlett v. Weimer, 6 Cir., 1957, 244 F.2d 955, certiorari denied 355 U.S. 858, 78 S. Ct. 87, 2 L. Ed. 2d 65. The last cited case in the Sixth Circuit involved identical claims brought by this appellant against Dr. Weimer and other doctors allegedly parties to the same general conspiracy to deprive appellant of his constitutional rights. That action was dismissed by the Ohio district court and the order of dismissal was affirmed by the Court of Appeals. The present suit was brought against Dr. Weimer on the ground that he was not served in the Ohio district court action. 4 Appellant contends that this suit may be maintained as a diversity action. Under Ohio law, however, immunity from suit for civil damages is extended judicial officers.",
"Voll v. Steele, 1943, 141 Ohio St. 293, 47 N.E.2d 991; Brinkman v. Drolesbaugh, 1918, 97 Ohio St. 171, 119 N.E. 451, L.R.A.1918F, 1132; Maxey v. Gather, 1952, 94 Ohio App. 115, 114 N.E.2d 607. Likewise, appellee as a witness in the proceedings before the probate court is not subject to suit for civil damages for false testimony. Cf. Stephenson v. McCurdy, 1931, 124 Ohio St. 117, 177 N.E. 204; Siegel v. O. M. Scott & Sons Co., 1943, 73 Ohio App. 347, 56 N.E.2d 345. 5 The contention that immunity from suit cannot be extended appellee because of the failure of the probate court to comply with notice requirements in the original commitment proceeding is not well-taken.",
"Although the irregularity in the proceeding is, in one sense jurisdictional, it did not go to the jurisdiction of the probate court generally in these matters under the Ohio statute. A medical witness cannot be held to ascertain, at his peril, whether a court has fully complied with procedural requirements. 6 The judgment of the district court dismissing this action is 7 Affirmed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/248619/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case: 20-20277 Document: 00515845862 Page: 1 Date Filed: 05/03/2021
United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit
FILED May 3, 2021 No. 20-20277 Lyle W. Cayce Summary Calendar Clerk
Lee Perry,
Plaintiff—Appellant,
versus
Wayne Christian, in his Official Capacity as Chairman of the Railroad Commission of Texas; Andrew Wheeler, in his Official Capacity as Administrator of the Environmental Protection Agency; Sonny Purdue, in his Official Capacity as Secretary of the United States Department of Agriculture; American Petroleum Institute; David A Scott, in his Official Capacity as Chairman of the State Oil; Gas Board of Mississippi; Marathon Oil Company, Lee Tillman, CEO; Hilcorp Energy Company; ConocoPhillips Corporation, Ryan M. Lance, CEO; Rhonda Hamilton, in her Official Capacity as President of Bill Hill Oil Gas Company; Michael Sommers, CEO; Ryan Lance, Ryan M. Lance; Greg Lalicker, CEO, Hilcorp Energy Company,
Defendants—Appellees.
Appeal from the United States District Court for the Southern District of Texas USDC No. 4:19-CV-4757
Before Clement, Higginson, and Engelhardt, Circuit Judges. Case: 20-20277 Document: 00515845862 Page: 2 Date Filed: 05/03/2021
No. 20-20277
Per Curiam:* Lee Perry filed suit against numerous governmental and non- governmental entities. He alleged violations of the United States Constitution and various federal statutes, including the Civil Rights Acts of 1866 and 1871, the Safe Water Drinking Act, and the Racketeer Influenced and Corrupt Organizations Act based on the defendants’ alleged involvement in a conspiracy to deprive African American descendants of slaves of their interests in fifteen million acres of land and mineral rights across the United States. In orders dated February 11, April 27, and April 28, 2020, the district court dismissed with prejudice all of Perry’s claims against all defendants. In addition to the district court’s orders, we have considered the pleadings, exhibits, and briefs in this case. For the reasons articulated below, we AFFIRM. Perry raises two points of error on appeal: (1) that the district court violated his right to due process by dismissing his complaint for failure to state a claim, and (2) the district court violated his right to due process by dismissing his complaint for lack of subject matter jurisdiction. Perry’s first argument on appeal is without merit. He asserts that the district court violated his due process right by dismissing his claims against certain defendants with prejudice before he had the opportunity to amend his pleading. The timeline of motions filed at the district court shows otherwise. The district court allowed Perry to file an amended complaint and considered it before granting the relevant motion to dismiss. Perry’s second argument on appeal is also without factual basis. He asserts that the district court violated his due process rights by dismissing certain defendants’ motions to dismiss for lack of jurisdiction without
* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.
2 Case: 20-20277 Document: 00515845862 Page: 3 Date Filed: 05/03/2021
No. 20-20277
affording him a reasonable opportunity to respond. Again, the record demonstrates otherwise. The district court ruled after Perry’s time to file a response had expired. In sum, Perry has failed to allege specific facts sufficient to show that he suffered any cognizable injury. See Perry v. R.R. Comm’n of Texas, 668 F. App’x 123 (5th Cir. 2016). We AFFIRM the dismissal of this case.
3 | 05-04-2021 | [
"Case: 20-20277 Document: 00515845862 Page: 1 Date Filed: 05/03/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED May 3, 2021 No. 20-20277 Lyle W. Cayce Summary Calendar Clerk Lee Perry, Plaintiff—Appellant, versus Wayne Christian, in his Official Capacity as Chairman of the Railroad Commission of Texas; Andrew Wheeler, in his Official Capacity as Administrator of the Environmental Protection Agency; Sonny Purdue, in his Official Capacity as Secretary of the United States Department of Agriculture; American Petroleum Institute; David A Scott, in his Official Capacity as Chairman of the State Oil; Gas Board of Mississippi; Marathon Oil Company, Lee Tillman, CEO; Hilcorp Energy Company; ConocoPhillips Corporation, Ryan M. Lance, CEO; Rhonda Hamilton, in her Official Capacity as President of Bill Hill Oil Gas Company; Michael Sommers, CEO; Ryan Lance, Ryan M. Lance; Greg Lalicker, CEO, Hilcorp Energy Company, Defendants—Appellees. Appeal from the United States District Court for the Southern District of Texas USDC No.",
"4:19-CV-4757 Before Clement, Higginson, and Engelhardt, Circuit Judges. Case: 20-20277 Document: 00515845862 Page: 2 Date Filed: 05/03/2021 No. 20-20277 Per Curiam:* Lee Perry filed suit against numerous governmental and non- governmental entities. He alleged violations of the United States Constitution and various federal statutes, including the Civil Rights Acts of 1866 and 1871, the Safe Water Drinking Act, and the Racketeer Influenced and Corrupt Organizations Act based on the defendants’ alleged involvement in a conspiracy to deprive African American descendants of slaves of their interests in fifteen million acres of land and mineral rights across the United States.",
"In orders dated February 11, April 27, and April 28, 2020, the district court dismissed with prejudice all of Perry’s claims against all defendants. In addition to the district court’s orders, we have considered the pleadings, exhibits, and briefs in this case. For the reasons articulated below, we AFFIRM. Perry raises two points of error on appeal: (1) that the district court violated his right to due process by dismissing his complaint for failure to state a claim, and (2) the district court violated his right to due process by dismissing his complaint for lack of subject matter jurisdiction. Perry’s first argument on appeal is without merit. He asserts that the district court violated his due process right by dismissing his claims against certain defendants with prejudice before he had the opportunity to amend his pleading. The timeline of motions filed at the district court shows otherwise. The district court allowed Perry to file an amended complaint and considered it before granting the relevant motion to dismiss. Perry’s second argument on appeal is also without factual basis.",
"He asserts that the district court violated his due process rights by dismissing certain defendants’ motions to dismiss for lack of jurisdiction without * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. 2 Case: 20-20277 Document: 00515845862 Page: 3 Date Filed: 05/03/2021 No. 20-20277 affording him a reasonable opportunity to respond. Again, the record demonstrates otherwise. The district court ruled after Perry’s time to file a response had expired. In sum, Perry has failed to allege specific facts sufficient to show that he suffered any cognizable injury.",
"See Perry v. R.R. Comm’n of Texas, 668 F. App’x 123 (5th Cir. 2016). We AFFIRM the dismissal of this case. 3"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4683556/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
ORDER PER CURIAM. Appeal from denial of Rule 29.15 motion for post-conviction relief. Affirmed. Rule 84.16(b). | 10-01-2021 | [
"ORDER PER CURIAM. Appeal from denial of Rule 29.15 motion for post-conviction relief. Affirmed. Rule 84.16(b)."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5075817/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
NUMBER 13-14-00407-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ROBERT NICKLOS CHAMBERS III, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court of Jackson County, Texas.
MEMORANDUM OPINION Before Justices Garza, Benavides and Longoria Memorandum Opinion by Justice Longoria
Appellant Robert Niklos Chambers III was charged with aggravated assault with a
deadly weapon and injury to an elderly individual. See TEX. PENAL CODE ANN. §§
22.02(a)(1)(2), 22.04 (West, Westlaw through 2015 R.S.). In a single issue on appeal, Chambers argues that the trial court abused its discretion by admitting extraneous offense
evidence during the guilt-innocence phase of trial. We affirm.
I. BACKGROUND
On September 17, 2013, Joyce Pellam, Chambers’s mother, called 9-1-1 to report
a fight she was having with Chambers. Deputy Bryan Martin testified that he received a
call from the dispatcher in regard to a family disturbance and went to Chambers’s house.
Upon arriving, Deputy Martin noticed that Pellam had a bump over her eye that was red
and swollen. Deputy Martin testified that when he asked Pellam what happened, she told
him that Chambers was upset because she had accidentally deleted one of his recorded
TV episodes of “Sons of Anarchy.” The deputy testified that Pellam further related that
she pushed Chambers back as he got in her face and began to intimidate her. Chambers
became more upset, head-butted Pellam, threw her to the ground, and then poured beer
on her. Pellam then locked herself in the car to call 9-1-1. Chambers was arrested and,
according to jailer Ronald Kovar, stated: “I will plead guilty to this charge.”
At trial, the State called Pellam as a witness. When Pellam became argumentative
and evasive when asked about what she told the deputies, the court allowed the
prosecutor to treat her as a hostile witness and ask her leading questions. On cross-
examination by Chambers, Pellam testified that Chambers did not actually intend to harm
her and that it was merely an accident: because of the cramped nature of their house,
Chambers accidentally bumped into her, causing her to hit her head on some furniture.
To rebut the theory that Chambers accidentally injured Pellam, the State offered evidence
that Chambers had previously been arrested for assaulting his girlfriend, Kim Kline, by
2 striking her in the face. Chambers had claimed in that incident that it was an “accident”
and that Kline must have bumped her head into the head of the child she was holding. In
that case, Chambers had also admitted to hitting Kline, who later recanted her story.
The jury found appellant guilty as to aggravated assault with a deadly weapon
(count 1) and injury to an elderly individual (count 2). See id. §§ 22.02(a)(1)(2), 22.04.
Chambers pled true to the enhancement paragraph charging a previous conviction for a
felony assault with a firearm. Chambers elected to have the trial court assess
punishment. The court assessed a forty-year term on count 1 and a twenty-year
punishment on count 2, to be served concurrently. This appeal ensued.
II. EXTRANEOUS OFFENSE EVIDENCE
In his sole issue on appeal, Chambers argues that the trial court abused its
discretion by admitting extraneous offense evidence. Chambers argues that evidence of
the extraneous offense should have been inadmissible under 403 and 404 of the Texas
Rules of Evidence. See TEX. R. EVID. 403, 404.
A. Standard of Review and Applicable Law
We review the admission of extraneous offense evidence for abuse of discretion.
See De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). “As long as the
trial court's ruling is within the ‘zone of reasonable disagreement,’ there is no abuse of
discretion, and the trial court's ruling will be upheld.” Id. at 304. Generally, “[e]vidence of
a crime, wrong, or other act is not admissible to prove a person's character in order to
show that on a particular occasion the person acted in accordance with the character.”
TEX. R. EVID. 404(b)(1). However, this type of evidence may be admissible for other
3 purposes, “such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” TEX. R. EVID. 404(b)(2) (emphasis
added). In other words, extraneous offense evidence can be used to prove the “system”
or “modus operandi” of the defendant if that system tends to prove a material issue on
trial. Owens v. State, 827 S.W.2d 911, 914 (Tex. Crim. App. 1992). Thus, when an
objection is made to extraneous offense evidence under Rule 404, the proponent of the
evidence has the burden of persuading the trial court that the evidence has relevance
apart from character conformity. See Montgomery v. State, 810 S.W.2d 372, 388 (Tex.
Crim. App. 1990) (en banc) (op. on reh’g).
Rule 403 states that a trial court may exclude relevant evidence if the evidence’s
probative value is substantially outweighed by one or more of the following: “unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence.” TEX. R. EVID. 403. However, courts presume that the
probative value of relevant evidence always exceeds any potential danger of unfair
prejudice until proven otherwise. See Montgomery, 810 S.W.2d at 389.
B. Rules 403 and 404 of the Texas Rules of Evidence
Chambers offers two reasons why it was an abuse of discretion to admit the
extraneous offense evidence of Chambers assaulting his girlfriend Kim Kline: (1) the
prejudicial nature of the evidence outweighed any probative value of the evidence; and
(2) the evidence was admitted specifically as prohibited character-conformity evidence.
These are objections based on Rules 403 and 404 of the Texas Rules of Evidence,
respectively.1 See TEX. R. EVID. 403, 404.
1 Chambers has combined two complaints (his Rule 403 and 404 complaints) within a single point of error. A point of error that embraces more than one specific ground of error is multifarious. See Bell v.
4 First we will address Chambers’s 403 argument. In regards to the extraneous-
offense evidence, Chambers objected by stating the following: “For the record, I'm
objecting to that testimony under 404(a), 401 and 402 and also 403.” 2 Later, Chambers
objects by saying, “Judge, I'm going to object to this testimony under 404, 401 and 403.”
A general 403 objection is “not sufficient to preserve error because it fails to identify for
the trial court which of the five distinct grounds for excluding evidence listed in [Rule 403]
is being argued as a basis for exclusion.” Checo v. State, 402 S.W.3d 440, 451 (Tex.
App.—Houston [14th Dist.] 2013, pet. ref’d). Chambers did not inform the trial court which
of the factors listed in 403 he thought applied. See TEX. R. EVID. 403. Therefore, we
overrule Chambers’s issue inasmuch as it relates to Rule 403. See Checo, 402 S.W.3d
at 451. Next we will address Chambers’s Rule 404 issue.
First, Chambers asserts that the extraneous evidence relating to accident is
irrelevant to anything other than character conformity because Chambers never officially
pled the defense of accident. As part of his trial strategy, Chambers elicited testimony
from Pellam during cross-examination that her injuries were all accidental and that
Chambers never intended to harm Pellam. The defendant “opens the door” for the State
to offer rebuttal testimony whenever a defensive theory is presented to the jury. See
Knight v. State, 457 S.W.3d 192, 198 (Tex. App.—El Paso 2015, pet. ref’d). More
specifically, extraneous-offense evidence is admissible to “rebut defensive theories
Tex. Dept. of Criminal Justice-Institutional Div., 962 S.W.2d 156, 157 n. 1 (Tex. App.—Houston [14th Dist.] 1998, pet. denied). Therefore, Bell's point of error is multifarious and we could refuse to review it. See id. A court, however, may consider multifarious points of error if it can determine, with reasonable certainty, the alleged error about which complaint is made. See id. Because we are able to determine the errors about which Bell complains, we will, in the interest of justice, consider his complaints. 2Chambers does not argue on appeal that the evidence should have been excluded based on Rules 401 or 402, which both deal with relevancy.
5 raised by the testimony of a State's witness during cross-examination.” Ransom v. State,
920 S.W.2d 288, 301 (Tex. Crim. App. 1994); see Powell v. State, 63 S.W.3d 435, 436
(Tex. Crim. App. 2001). By eliciting testimony from Pellam that all of her injuries were
accidental, Chambers presented a defensive theory of accident to the jury. See Ransom, 920 S.W.2d at 301. Whether Chambers had accidentally or intentionally caused the
injuries was a material issue at trial. Therefore, the trial court’s ruling that the State could
properly offer this rebuttal testimony was within the zone of reasonable disagreement
because it was relevant to a material issue Chambers raised by cross-examining Pellam.
See id.; see also TEX. R. EVID. 401.
Chambers next argues that the evidence was offered to improperly prove that
Chambers was acting in conformity with previous violent behavior. See TEX. R. EVID.
404(a). The State claims that it did not offer the extraneous offense evidence to prove
character conformity, but rather to prove Chambers’s modus operandi and rebut
Chambers’s defensive theory of accident. In return, Chambers argues that “[g]etting
drunk, assaulting someone, and claiming it was an accident” is the modus operandi of
every “member of the species homo sapiens . . . and other ethanol-craving mammals,”
and thus the extraneous offense evidence in this case does not reflect any particular
system unique to Chambers. We agree with the State. The details of the incident with
Kline are similar to the present case at hand. In both cases, the police were notified of a
family disturbance in which Chambers had assaulted a female while under the influence
of alcohol. Both cases led to Chambers being placed under arrest. In both cases, he
admitted to striking the victim, but then the complainants later recanted their stories and
6 claimed that their injuries were an “accident.” The trial judge even commented that he
was allowing the evidence to be admitted “to show an intent, motive, absence of mistake
or accident on his part when he deals with females in anger.” The extraneous offense
was admitted because it tended to rebut Chambers’s defensive theory of accident. The
extraneous offense was elicited to show that Chambers acted intentionally, not
accidentally. In addition, the trial court gave the following instruction to the jury:
You're instructed that if there is evidence before you in this case regarding the defendant committing an alleged offense or offenses other than the offense alleged against him in the indictment in this case, you cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offense or offenses, if any, and then you can only consider that offense for the purpose of establishing intent, motive, absence of mistake or accident and for no other purpose.
On appeal, we generally presume the jury follows the trial court’s instructions. See Thrift
v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005); see also Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992) (holding that extraneous-offense evidence “can
be rendered harmless by an instruction to disregard” it as character evidence and only
consider the evidence for other purposes, such as intent or lack of accident). Therefore,
we conclude that the trial court did not abuse its discretion by admitting this evidence
because the trial court’s conclusion was at least within the zone of reasonable
disagreement that the evidence was for a purpose other than to show character
conformity. See De La Paz, 279 S.W.3d at 343.
We overrule Chambers’s sole issue.
7 III. CONCLUSION
We affirm the trial court’s judgment.
Nora L. Longoria Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 3rd day of December, 2015.
8 | 09-28-2016 | [
"NUMBER 13-14-00407-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG ROBERT NICKLOS CHAMBERS III, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 24th District Court of Jackson County, Texas. MEMORANDUM OPINION Before Justices Garza, Benavides and Longoria Memorandum Opinion by Justice Longoria Appellant Robert Niklos Chambers III was charged with aggravated assault with a deadly weapon and injury to an elderly individual. See TEX. PENAL CODE ANN. §§ 22.02(a)(1)(2), 22.04 (West, Westlaw through 2015 R.S.). In a single issue on appeal, Chambers argues that the trial court abused its discretion by admitting extraneous offense evidence during the guilt-innocence phase of trial. We affirm. I. BACKGROUND On September 17, 2013, Joyce Pellam, Chambers’s mother, called 9-1-1 to report a fight she was having with Chambers.",
"Deputy Bryan Martin testified that he received a call from the dispatcher in regard to a family disturbance and went to Chambers’s house. Upon arriving, Deputy Martin noticed that Pellam had a bump over her eye that was red and swollen. Deputy Martin testified that when he asked Pellam what happened, she told him that Chambers was upset because she had accidentally deleted one of his recorded TV episodes of “Sons of Anarchy.” The deputy testified that Pellam further related that she pushed Chambers back as he got in her face and began to intimidate her. Chambers became more upset, head-butted Pellam, threw her to the ground, and then poured beer on her. Pellam then locked herself in the car to call 9-1-1. Chambers was arrested and, according to jailer Ronald Kovar, stated: “I will plead guilty to this charge.” At trial, the State called Pellam as a witness.",
"When Pellam became argumentative and evasive when asked about what she told the deputies, the court allowed the prosecutor to treat her as a hostile witness and ask her leading questions. On cross- examination by Chambers, Pellam testified that Chambers did not actually intend to harm her and that it was merely an accident: because of the cramped nature of their house, Chambers accidentally bumped into her, causing her to hit her head on some furniture. To rebut the theory that Chambers accidentally injured Pellam, the State offered evidence that Chambers had previously been arrested for assaulting his girlfriend, Kim Kline, by 2 striking her in the face.",
"Chambers had claimed in that incident that it was an “accident” and that Kline must have bumped her head into the head of the child she was holding. In that case, Chambers had also admitted to hitting Kline, who later recanted her story. The jury found appellant guilty as to aggravated assault with a deadly weapon (count 1) and injury to an elderly individual (count 2). See id. §§ 22.02(a)(1)(2), 22.04. Chambers pled true to the enhancement paragraph charging a previous conviction for a felony assault with a firearm. Chambers elected to have the trial court assess punishment. The court assessed a forty-year term on count 1 and a twenty-year punishment on count 2, to be served concurrently.",
"This appeal ensued. II. EXTRANEOUS OFFENSE EVIDENCE In his sole issue on appeal, Chambers argues that the trial court abused its discretion by admitting extraneous offense evidence. Chambers argues that evidence of the extraneous offense should have been inadmissible under 403 and 404 of the Texas Rules of Evidence. See TEX. R. EVID. 403, 404. A. Standard of Review and Applicable Law We review the admission of extraneous offense evidence for abuse of discretion.",
"See De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). “As long as the trial court's ruling is within the ‘zone of reasonable disagreement,’ there is no abuse of discretion, and the trial court's ruling will be upheld.” Id. at 304. Generally, “[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” TEX. R. EVID. 404(b)(1). However, this type of evidence may be admissible for other 3 purposes, “such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” TEX. R. EVID.",
"404(b)(2) (emphasis added). In other words, extraneous offense evidence can be used to prove the “system” or “modus operandi” of the defendant if that system tends to prove a material issue on trial. Owens v. State, 827 S.W.2d 911, 914 (Tex. Crim. App. 1992). Thus, when an objection is made to extraneous offense evidence under Rule 404, the proponent of the evidence has the burden of persuading the trial court that the evidence has relevance apart from character conformity. See Montgomery v. State, 810 S.W.2d 372, 388 (Tex.",
"Crim. App. 1990) (en banc) (op. on reh’g). Rule 403 states that a trial court may exclude relevant evidence if the evidence’s probative value is substantially outweighed by one or more of the following: “unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” TEX. R. EVID. 403. However, courts presume that the probative value of relevant evidence always exceeds any potential danger of unfair prejudice until proven otherwise. See Montgomery, 810 S.W.2d at 389. B. Rules 403 and 404 of the Texas Rules of Evidence Chambers offers two reasons why it was an abuse of discretion to admit the extraneous offense evidence of Chambers assaulting his girlfriend Kim Kline: (1) the prejudicial nature of the evidence outweighed any probative value of the evidence; and (2) the evidence was admitted specifically as prohibited character-conformity evidence. These are objections based on Rules 403 and 404 of the Texas Rules of Evidence, respectively.1 See TEX. R. EVID.",
"403, 404. 1 Chambers has combined two complaints (his Rule 403 and 404 complaints) within a single point of error. A point of error that embraces more than one specific ground of error is multifarious. See Bell v. 4 First we will address Chambers’s 403 argument. In regards to the extraneous- offense evidence, Chambers objected by stating the following: “For the record, I'm objecting to that testimony under 404(a), 401 and 402 and also 403.” 2 Later, Chambers objects by saying, “Judge, I'm going to object to this testimony under 404, 401 and 403.” A general 403 objection is “not sufficient to preserve error because it fails to identify for the trial court which of the five distinct grounds for excluding evidence listed in [Rule 403] is being argued as a basis for exclusion.” Checo v. State, 402 S.W.3d 440, 451 (Tex. App.—Houston [14th Dist.]",
"2013, pet. ref’d). Chambers did not inform the trial court which of the factors listed in 403 he thought applied. See TEX. R. EVID. 403. Therefore, we overrule Chambers’s issue inasmuch as it relates to Rule 403. See Checo, 402 S.W.3d at 451. Next we will address Chambers’s Rule 404 issue. First, Chambers asserts that the extraneous evidence relating to accident is irrelevant to anything other than character conformity because Chambers never officially pled the defense of accident. As part of his trial strategy, Chambers elicited testimony from Pellam during cross-examination that her injuries were all accidental and that Chambers never intended to harm Pellam. The defendant “opens the door” for the State to offer rebuttal testimony whenever a defensive theory is presented to the jury.",
"See Knight v. State, 457 S.W.3d 192, 198 (Tex. App.—El Paso 2015, pet. ref’d). More specifically, extraneous-offense evidence is admissible to “rebut defensive theories Tex. Dept. of Criminal Justice-Institutional Div., 962 S.W.2d 156, 157 n. 1 (Tex. App.—Houston [14th Dist.] 1998, pet. denied). Therefore, Bell's point of error is multifarious and we could refuse to review it. See id. A court, however, may consider multifarious points of error if it can determine, with reasonable certainty, the alleged error about which complaint is made. See id. Because we are able to determine the errors about which Bell complains, we will, in the interest of justice, consider his complaints. 2Chambers does not argue on appeal that the evidence should have been excluded based on Rules 401 or 402, which both deal with relevancy.",
"5 raised by the testimony of a State's witness during cross-examination.” Ransom v. State, 920 S.W.2d 288, 301 (Tex. Crim. App. 1994); see Powell v. State, 63 S.W.3d 435, 436 (Tex. Crim. App. 2001). By eliciting testimony from Pellam that all of her injuries were accidental, Chambers presented a defensive theory of accident to the jury. See Ransom, 920 S.W.2d at 301. Whether Chambers had accidentally or intentionally caused the injuries was a material issue at trial. Therefore, the trial court’s ruling that the State could properly offer this rebuttal testimony was within the zone of reasonable disagreement because it was relevant to a material issue Chambers raised by cross-examining Pellam. See id. ; see also TEX.",
"R. EVID. 401. Chambers next argues that the evidence was offered to improperly prove that Chambers was acting in conformity with previous violent behavior. See TEX. R. EVID. 404(a). The State claims that it did not offer the extraneous offense evidence to prove character conformity, but rather to prove Chambers’s modus operandi and rebut Chambers’s defensive theory of accident. In return, Chambers argues that “[g]etting drunk, assaulting someone, and claiming it was an accident” is the modus operandi of every “member of the species homo sapiens . . .",
"and other ethanol-craving mammals,” and thus the extraneous offense evidence in this case does not reflect any particular system unique to Chambers. We agree with the State. The details of the incident with Kline are similar to the present case at hand. In both cases, the police were notified of a family disturbance in which Chambers had assaulted a female while under the influence of alcohol. Both cases led to Chambers being placed under arrest. In both cases, he admitted to striking the victim, but then the complainants later recanted their stories and 6 claimed that their injuries were an “accident.” The trial judge even commented that he was allowing the evidence to be admitted “to show an intent, motive, absence of mistake or accident on his part when he deals with females in anger.” The extraneous offense was admitted because it tended to rebut Chambers’s defensive theory of accident.",
"The extraneous offense was elicited to show that Chambers acted intentionally, not accidentally. In addition, the trial court gave the following instruction to the jury: You're instructed that if there is evidence before you in this case regarding the defendant committing an alleged offense or offenses other than the offense alleged against him in the indictment in this case, you cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offense or offenses, if any, and then you can only consider that offense for the purpose of establishing intent, motive, absence of mistake or accident and for no other purpose.",
"On appeal, we generally presume the jury follows the trial court’s instructions. See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005); see also Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992) (holding that extraneous-offense evidence “can be rendered harmless by an instruction to disregard” it as character evidence and only consider the evidence for other purposes, such as intent or lack of accident). Therefore, we conclude that the trial court did not abuse its discretion by admitting this evidence because the trial court’s conclusion was at least within the zone of reasonable disagreement that the evidence was for a purpose other than to show character conformity. See De La Paz, 279 S.W.3d at 343. We overrule Chambers’s sole issue. 7 III. CONCLUSION We affirm the trial court’s judgment. Nora L. Longoria Justice Do not publish. TEX.",
"R. APP. P. 47.2(b). Delivered and filed the 3rd day of December, 2015. 8"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4043706/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION
MAXIME EDWARD DALOUCHE, ) Petitioner, ) ) vs. ) No. 3:20-CV-2914-N-BH ) JIMMY JOHNSON, ) Respondent. )
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
After reviewing all relevant matters of record in this case, including the Findings, Conclu-
sions, and Recommendation of the United States Magistrate Judge and any objections thereto, in
accordance with 28 U.S.C. § 636(b)(1), the Court is of the opinion that the Findings and Conclu-
sions of the Magistrate Judge are correct and they are accepted as the Findings and Conclusions of
the Court. For the reasons stated in the Findings, Conclusions, and Recommendation of the United
States Magistrate Judge, the petitioner’s Petition for a Writ of Habeas Corpus Under 28 U.S.C. §
2241, received on September 22, 2020 (doc. 3), is DISMISSED without prejudice for lack of
jurisdiction.
A certificate of appealability (COA) is not required for a federal detainee to appeal the
denial of relief under 28 U.S.C. § 2241. See Padilla v. United States, 416 F. 424, 425 (5th Cir.
2005). If the petitioner files a notice of appeal, he must pay the $505.00 appellate filing fee or
submit a motion to proceed in forma pauperis and a properly signed certificate of inmate trust
account.
SIGNED this 28th day of May, 2021.
UNITED STATES DISTRICT JUDGE | 2021-05-28 | [
"IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION MAXIME EDWARD DALOUCHE, ) Petitioner, ) ) vs. ) No. 3:20-CV-2914-N-BH ) JIMMY JOHNSON, ) Respondent. ) ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE After reviewing all relevant matters of record in this case, including the Findings, Conclu- sions, and Recommendation of the United States Magistrate Judge and any objections thereto, in accordance with 28 U.S.C. § 636(b)(1), the Court is of the opinion that the Findings and Conclu- sions of the Magistrate Judge are correct and they are accepted as the Findings and Conclusions of the Court. For the reasons stated in the Findings, Conclusions, and Recommendation of the United States Magistrate Judge, the petitioner’s Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241, received on September 22, 2020 (doc. 3), is DISMISSED without prejudice for lack of jurisdiction.",
"A certificate of appealability (COA) is not required for a federal detainee to appeal the denial of relief under 28 U.S.C. § 2241. See Padilla v. United States, 416 F. 424, 425 (5th Cir. 2005). If the petitioner files a notice of appeal, he must pay the $505.00 appellate filing fee or submit a motion to proceed in forma pauperis and a properly signed certificate of inmate trust account. SIGNED this 28th day of May, 2021. UNITED STATES DISTRICT JUDGE"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/171064587/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
AO 199A (Rev. lZ/l l-EDCA [Frcsno]) Ordcr Selting Conditions of Rcleasc Page l of____ 3 _ Pagcs
UNITED STATES DISTRICT COURT Fl L .
for the Eastern District of California DE.C i'3 2013 cLE' ` 'T 'STB"G<iA[i_?i=U§FiNiA - o 1 ’ ' _, UNiTED sTATEs or AMERICA, ) §ASTE ,,, . __ V. ) ) Ca$e NO_ lll6-cr-00176-DAD-BAM-6 ,,GARRY S;WI,\:SOI~Il >
ORDER SETTING CONDITI()NS OF RELEASE IT lS ORDERED that the defendant’s release is subject to these conditions: (l) The defendant must not violate federal, state, or local law while on release. (2) The defendant must cooperate in the collection ofa DNA sample if it is authorized by 42 U.S.C. § 14135a.
(3) The defendant must advise the court or the pretrial services office or supervising officer in writing before making any change of residence or telephone number.
(4) The defendant must appear in court as required and, if convicted, must surrender as directed to serve a sentence that the court may impose.
The defendant must appear at: U.S.__I_)IS_TRE'_I`_ COI_J_R'_I`,_Z_SOO Tulare St_lle_t_, Fresno_, California
Pi'ace
before QiStrictJudge Dnal_e_ 4 Drro_ad (_j_ourtroom 5__
On , n luL§,,Bl,Bt,,BBL§M,LDB§BM£PPQ@§@la_ivsd_j£is_prssrLi-L,i
Da!e and Tr'me
]f blank, defendant will be notified of next appearance
(5) The defendant must sign an Appearance and Cornpliance Bond, if ordered.
Ao 1993 (Rev. 09/08- EDCA [rresno]) Addirional conditions orneleas¢(ceneral) Page- or - Pages
SAMPSON, Garry Dkt. No. 16cr176-06 ADDITIONAL CONDITIONS OF RELEASE
Upon finding that release by one of the above methods will not by itself 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 conditions marked .be|ow:
|:| (6) The defendant is placed in the custody of: Name of person or organization who agrees (a) to supervise the defendant in accordance with all 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.
SIGNED:
CUSTODIAN IZ| (7) The defendant must:
|Zl (a) report on a regular basis to the following agency: Pretrial Services and comply with their rules and regulations;
lZ| (b) report by telephone to the Pretrial Services Agency upon arrival at the Delancey Street Program;
|Zl (c) travel restricted to Northem District of CA, and direct travel to and from the Eastem District of CA, for court- related purposes only, unless otherwise approved in advance by PSO;
lZl (d) report any contact with law enforcement to your PSO within 24 hours;
lZ| (e) you must reside and participate in the Delancey Street Foundation inpatient substance abuse treatment program, in San Francisco, and comply with all the rules and regulations of the program, as directed by program staff and Pretria| Services; You must remain in the inpatient facility until released by the Pretrial Services Officer; A responsible party approved by Pretrial Services, shall escort you to all required court hearings and escort you back to the program upon completion of the hearing;
lZl (i) not possess, have in your presence, or have access to a tirearm/ammunition, destructive device, or other dangerous weapon; additionally, you must provide written proof of divestment of all firearms/ammunition currently under your control;
|Zl (g) submit to drug or alcohol testing as approved by the Pretrial Services Officer. You must pay all or part of the costs of the testing services based upon your ability to pay, as determined by the Pretrial Services Officer; |Zl (h) refrain from any use of alcohol, or any use of a narcotic drug or other controlled substance without a
prescription by a licensed medical practitioner; and you must notify Pretria| Services immediately of any prescribed medication(s). However, medical marij uana, prescribed and/or recommended, may not be used;
|Zl (i) participate in a program of medical or psychiatric treatment including treatment for drug or alcohol dependency, as approved by the PSO; you must pay all or part of the costs of the counseling services based upon your ability to pay, as determined by the PSO;
(j) upon successful completion of the Delancey Street Program, you must reside at an address approved by Pretrial Services and you must not change your residence or absent yourself from this residence for more than 24 hours without the prior approval of the Pretrial Services Offlcer; and,
USMS SPECIAL INSTRUCTIONS:
|Zl (k) have your release on bond delayed until 5:00 am on Wednesday, December 12, 2018, at which time you will be released from custody directly to Teri Rothschild, for immediate transportation to the Delancey Street Program in San Francisco.
Aoiagc (R¢v.i)a/oii-Et)cn[rresno]) A¢iviceorl>enuiiies Page 3 at _ 3,,1’=12€3
ADVICE OF PENALTIES AND SANCTIONS
TO 'I`HE DEFENDANT: GARRY SAMPSON YOU ARE ADVISED OF THE FOLLOWING PENALT[ES AND SANCTIONS:
Violating any of the foregoing conditions of release may result in the immediate issuance of a warrant for your arrest, a revocation of your release, an order of detention, a forfeiture of any bond and a prosecution for contempt of court and could result in imprisonment, a fine, or both.
While on release, if you commit a federal felony offense the punishment is an additional prison term of not more than ten years and for a federal misdemeanor offense the punishment is an additional prison term of not more than one year. This sentence will be consecutive (i.e., in addition to) to any other sentence you receive.
lt is a crime punishable by up to ten years in prison, and a $250,000 fine, or both, to: obstruct a criminal investigation; tamper with a witness, victim, or informant; retaliate or attempt to retaliate against a witness, victim, or informant; or intimidate or attempt to intimidate a witness, victim, juror, informant, or officer of the court. The penalties for tampering, retaliation, or intimidation are significantly more serious ifthey involve a killing or attempted killing
If, after release, you knowingly fail to appear as the conditions of release require, or to surrender to serve a sentence, you may be prosecuted for failing to appear or surrender and additional punishment may be imposed. If you are convicted of:
( l) an offense punishable by death, life imprisonment, or imprisonment for a term of fifteen years or more - you will be fined
not more than $250,000 or imprisoned for not more than 10 years, or both;
(2) an offense punishable by imprisonment for a term of five years or more, but less than fifteen years - you will be fined not
more than 3250,000 or imprisoned for not more than five years, or both;
(3) any other felony ~ you will be fined not more than $250,000 or imprisoned not more than two years, or both;
(4) a misdemeanor - you will be fined not more than 3100,000 or imprisoned not more than one year, or both.
A term of imprisonment imposed for failure to appear or surrender will be consecutive to any other sentence you receive ln addition, a failure to appear or surrender may result in the forfeiture of any bond posted
Acknowledgment of the Defendant l acknowledge that l am the defendant in this case and that l am aware of the conditions of release, l promise to obey all
conditions of release, to appear as directed, and surrender to serve any sentence imposed I am aware of the penalties and sanctions set forth above.
Defend ii '.r Sr`gnanu'e
Directions to the United States Marshal
( E]) The defendant is ORDERED released a-fteF-pi=ocessin,g.. gm NM€§JUUCM 121 301 €j cbi' S:OOam “lT; `T'~ev~i garf*h‘>`€l’iil€ %D\_F\thrr\.e¢ll ,+fa,n'>,asriziaon ‘l\b ,QL[@,?¢.¢Q Srr“e,~e_-l- prop/gem iri \S`CL"> Fi'/zzna`$ad) ~
Date: ___.__g{_l"% °//°c: D M 4 2'?4/
.}ndi"c."al O_/]r`cer 's Sr`giia!iire
_i_)ALEVA. nnozi), u.s. _i_)_is'_rnicr ,iul)ci;:__
Prr`nfed name and title
DlSTRlBUTlON: COURT DEFENDANT PRETRIAL SERVICE U,S. ATTORNEY U.S. MARSHAI. | 2018-12-10 | [
"AO 199A (Rev. lZ/l l-EDCA [Frcsno]) Ordcr Selting Conditions of Rcleasc Page l of____ 3 _ Pagcs UNITED STATES DISTRICT COURT Fl L . for the Eastern District of California DE.C i'3 2013 cLE' ` 'T 'STB\"G<iA[i_?i=U§FiNiA - o 1 ’ ' _, UNiTED sTATEs or AMERICA, ) §ASTE ,,, . __ V. ) ) Ca$e NO_ lll6-cr-00176-DAD-BAM-6 ,,GARRY S;WI,\\:SOI~Il > ORDER SETTING CONDITI()NS OF RELEASE IT lS ORDERED that the defendant’s release is subject to these conditions: (l) The defendant must not violate federal, state, or local law while on release. (2) The defendant must cooperate in the collection ofa DNA sample if it is authorized by 42 U.S.C. § 14135a. (3) The defendant must advise the court or the pretrial services office or supervising officer in writing before making any change of residence or telephone number. (4) The defendant must appear in court as required and, if convicted, must surrender as directed to serve a sentence that the court may impose.",
"The defendant must appear at: U.S.__I_)IS_TRE'_I`_ COI_J_R'_I`,_Z_SOO Tulare St_lle_t_, Fresno_, California Pi'ace before QiStrictJudge Dnal_e_ 4 Drro_ad (_j_ourtroom 5__ On , n luL§,,Bl,Bt,,BBL§M,LDB§BM£PPQ@§@la_ivsd_j£is_prssrLi-L,i Da!e and Tr'me ]f blank, defendant will be notified of next appearance (5) The defendant must sign an Appearance and Cornpliance Bond, if ordered. Ao 1993 (Rev. 09/08- EDCA [rresno]) Addirional conditions orneleas¢(ceneral) Page- or - Pages SAMPSON, Garry Dkt. No. 16cr176-06 ADDITIONAL CONDITIONS OF RELEASE Upon finding that release by one of the above methods will not by itself 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 conditions marked .be|ow: |:| (6) The defendant is placed in the custody of: Name of person or organization who agrees (a) to supervise the defendant in accordance with all 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.",
"SIGNED: CUSTODIAN IZ| (7) The defendant must: |Zl (a) report on a regular basis to the following agency: Pretrial Services and comply with their rules and regulations; lZ| (b) report by telephone to the Pretrial Services Agency upon arrival at the Delancey Street Program; |Zl (c) travel restricted to Northem District of CA, and direct travel to and from the Eastem District of CA, for court- related purposes only, unless otherwise approved in advance by PSO; lZl (d) report any contact with law enforcement to your PSO within 24 hours; lZ| (e) you must reside and participate in the Delancey Street Foundation inpatient substance abuse treatment program, in San Francisco, and comply with all the rules and regulations of the program, as directed by program staff and Pretria| Services; You must remain in the inpatient facility until released by the Pretrial Services Officer; A responsible party approved by Pretrial Services, shall escort you to all required court hearings and escort you back to the program upon completion of the hearing; lZl (i) not possess, have in your presence, or have access to a tirearm/ammunition, destructive device, or other dangerous weapon; additionally, you must provide written proof of divestment of all firearms/ammunition currently under your control; |Zl (g) submit to drug or alcohol testing as approved by the Pretrial Services Officer.",
"You must pay all or part of the costs of the testing services based upon your ability to pay, as determined by the Pretrial Services Officer; |Zl (h) refrain from any use of alcohol, or any use of a narcotic drug or other controlled substance without a prescription by a licensed medical practitioner; and you must notify Pretria| Services immediately of any prescribed medication(s). However, medical marij uana, prescribed and/or recommended, may not be used; |Zl (i) participate in a program of medical or psychiatric treatment including treatment for drug or alcohol dependency, as approved by the PSO; you must pay all or part of the costs of the counseling services based upon your ability to pay, as determined by the PSO; (j) upon successful completion of the Delancey Street Program, you must reside at an address approved by Pretrial Services and you must not change your residence or absent yourself from this residence for more than 24 hours without the prior approval of the Pretrial Services Offlcer; and, USMS SPECIAL INSTRUCTIONS: |Zl (k) have your release on bond delayed until 5:00 am on Wednesday, December 12, 2018, at which time you will be released from custody directly to Teri Rothschild, for immediate transportation to the Delancey Street Program in San Francisco.",
"Aoiagc (R¢v.i)a/oii-Et)cn[rresno]) A¢iviceorl>enuiiies Page 3 at _ 3,,1’=12€3 ADVICE OF PENALTIES AND SANCTIONS TO 'I`HE DEFENDANT: GARRY SAMPSON YOU ARE ADVISED OF THE FOLLOWING PENALT[ES AND SANCTIONS: Violating any of the foregoing conditions of release may result in the immediate issuance of a warrant for your arrest, a revocation of your release, an order of detention, a forfeiture of any bond and a prosecution for contempt of court and could result in imprisonment, a fine, or both. While on release, if you commit a federal felony offense the punishment is an additional prison term of not more than ten years and for a federal misdemeanor offense the punishment is an additional prison term of not more than one year. This sentence will be consecutive (i.e., in addition to) to any other sentence you receive. lt is a crime punishable by up to ten years in prison, and a $250,000 fine, or both, to: obstruct a criminal investigation; tamper with a witness, victim, or informant; retaliate or attempt to retaliate against a witness, victim, or informant; or intimidate or attempt to intimidate a witness, victim, juror, informant, or officer of the court. The penalties for tampering, retaliation, or intimidation are significantly more serious ifthey involve a killing or attempted killing If, after release, you knowingly fail to appear as the conditions of release require, or to surrender to serve a sentence, you may be prosecuted for failing to appear or surrender and additional punishment may be imposed.",
"If you are convicted of: ( l) an offense punishable by death, life imprisonment, or imprisonment for a term of fifteen years or more - you will be fined not more than $250,000 or imprisoned for not more than 10 years, or both; (2) an offense punishable by imprisonment for a term of five years or more, but less than fifteen years - you will be fined not more than 3250,000 or imprisoned for not more than five years, or both; (3) any other felony ~ you will be fined not more than $250,000 or imprisoned not more than two years, or both; (4) a misdemeanor - you will be fined not more than 3100,000 or imprisoned not more than one year, or both. A term of imprisonment imposed for failure to appear or surrender will be consecutive to any other sentence you receive ln addition, a failure to appear or surrender may result in the forfeiture of any bond posted Acknowledgment of the Defendant l acknowledge that l am the defendant in this case and that l am aware of the conditions of release, l promise to obey all conditions of release, to appear as directed, and surrender to serve any sentence imposed I am aware of the penalties and sanctions set forth above.",
"Defend ii '.r Sr`gnanu'e Directions to the United States Marshal ( E]) The defendant is ORDERED released a-fteF-pi=ocessin,g.. gm NM€§JUUCM 121 301 €j cbi' S:OOam “lT; `T'~ev~i garf*h‘>`€l’iil€ %D\\_F\\thrr\\.e¢ll ,+fa,n'>,asriziaon ‘l\\b ,QL[@,?¢.¢Q Srr“e,~e_-l- prop/gem iri \\S`CL\"> Fi'/zzna`$ad) ~ Date: ___.__g{_l\"% °//°c: D M 4 2'?4/ . }ndi\"c. \"al O_/]r`cer 's Sr`giia!iire _i_)ALEVA. nnozi), u.s. _i_)_is'_rnicr ,iul)ci;:__ Prr`nfed name and title DlSTRlBUTlON: COURT DEFENDANT PRETRIAL SERVICE U,S. ATTORNEY U.S. MARSHAI."
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/52091930/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Reversed. May 5, 1896. Judgment of January 18, 1896, modified so that said ease be remanded for a new trial. | 06-26-2022 | [
"Reversed. May 5, 1896. Judgment of January 18, 1896, modified so that said ease be remanded for a new trial."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6473132/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT JUNE 15, 2006 No. 06-10079 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________
D. C. Docket No. 04-00040-CR-FTM-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAM HARRIS, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida _________________________
(June 15, 2006)
Before DUBINA, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Darlene M. Geiger, appointed counsel for Sam Harris, Jr. in this direct
criminal appeal, has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals
that counsel’s assessment of the relative merit of the appeal is correct. Because
independent examination of the entire record reveals no arguable issues of merit,
counsel’s motion to withdraw is GRANTED, and Harris’s conviction and sentence
are AFFIRMED.
2 | 04-26-2010 | [
"[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT JUNE 15, 2006 No. 06-10079 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ D. C. Docket No. 04-00040-CR-FTM-DNF UNITED STATES OF AMERICA, Plaintiff-Appellee, versus SAM HARRIS, JR., Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida _________________________ (June 15, 2006) Before DUBINA, MARCUS and WILSON, Circuit Judges. PER CURIAM: Darlene M. Geiger, appointed counsel for Sam Harris, Jr. in this direct criminal appeal, has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeal is correct.",
"Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Harris’s conviction and sentence are AFFIRMED. 2"
]
| https://www.courtlistener.com/api/rest/v3/opinions/49665/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
LOGO [g75127img-001.jpg]
Exhibit 10.23
December 18, 2006
Dear Matt:
This letter confirms the compensation arrangements which Russ Fradin discussed with you on Monday, December 11, regarding a senior officer position with Hewitt Associates. We are delighted that you are considering this opportunity.
The terms of the compensation arrangement include:
• An annualized base salary of $400,000 on a regular, full-time, exempt basis with a performance and pay review in December of 2007, and annually thereafter assuming strong individual performance;
• An annual bonus target equal to 60% of your actual base pay earning for the fiscal year which ends September 30, 2007. The bonus payout, which is paid in mid-December, is based on achievement of company and personal goals mutually agreed to and consistent with those goals set for other senior officers. Actual payouts can range from 0% to 200% of your target bonus;
• An annual equity grant as defined under our Global Stock Plan consisting of 10,000 shares of performance-based Hewitt stock and 28,000 stock options. The payout of the performance-based shares will be based on the Company’s achievement of fiscal year 2007 earnings per share, operating income, and revenue goals as established for other senior officers, and can range from 0% to 200% of the target grant amount. These shares would cliff vest 100% as of September 30, 2009. The stock options would be granted at an exercise price on or shortly following your hire date and would vest 25% per year beginning on September 30, 2007 and annually thereafter for an additional 3 years;
• A one-time sign-on equity grant of 10,000 shares of time-based restricted Hewitt stock. 50% of these shares would vest on the first anniversary of your hire date and 50% would vest on the second anniversary of your hire date;
• Participation in our employee comprehensive benefits program and Hewitt Associates’ Financial Security Plans, including an annual company retirement contribution, and a company 401(k) match;
--------------------------------------------------------------------------------
Mr. Matthew Levin
Page 2
December 18, 2006
• Participation in our Executive Benefits Program consisting of:
• 27 days of annual paid time off each calendar year;
• An additional five-week vacation splash, or sabbatical, after five years of service with Hewitt, and every five years thereafter;
• A retirement restoration plan which provides for the company retirement contribution and company 401(k) match above any qualified plan limits; and
• A voluntary deferral plan for base pay, annual incentive and/or restoration plan contributions.
Matt, as a senior officer in the Company you would also be subject to stock ownership guidelines that require you to hold stock equal to 3.5x your base compensation. You would have five (5) years in which to achieve those levels of stock ownership.
This offer is contingent upon Hewitt receiving completed and satisfactory background and reference checks which we will start immediately given the references you provided. A final offer letter will be provided as soon as possible upon completion of the reference checking.
If you have any questions or require any additional information, please call me or Russ directly. Again, we are excited about the opportunity of you joining Hewitt Associates.
Sincerely,
Hewitt Associates LLC
Steve King
cc: Mr. Russ Fradin, Hewitt Associates
Mr. David Wille, Hewitt Associates
Ms. Kristin Slavish, Hewitt Associates
Accepted by: /s/ Matthew Levin
Date: | [
"LOGO [g75127img-001.jpg] Exhibit 10.23 December 18, 2006 Dear Matt: This letter confirms the compensation arrangements which Russ Fradin discussed with you on Monday, December 11, regarding a senior officer position with Hewitt Associates. We are delighted that you are considering this opportunity. The terms of the compensation arrangement include: • An annualized base salary of $400,000 on a regular, full-time, exempt basis with a performance and pay review in December of 2007, and annually thereafter assuming strong individual performance; • An annual bonus target equal to 60% of your actual base pay earning for the fiscal year which ends September 30, 2007. The bonus payout, which is paid in mid-December, is based on achievement of company and personal goals mutually agreed to and consistent with those goals set for other senior officers. Actual payouts can range from 0% to 200% of your target bonus; • An annual equity grant as defined under our Global Stock Plan consisting of 10,000 shares of performance-based Hewitt stock and 28,000 stock options. The payout of the performance-based shares will be based on the Company’s achievement of fiscal year 2007 earnings per share, operating income, and revenue goals as established for other senior officers, and can range from 0% to 200% of the target grant amount. These shares would cliff vest 100% as of September 30, 2009. The stock options would be granted at an exercise price on or shortly following your hire date and would vest 25% per year beginning on September 30, 2007 and annually thereafter for an additional 3 years; • A one-time sign-on equity grant of 10,000 shares of time-based restricted Hewitt stock.",
"50% of these shares would vest on the first anniversary of your hire date and 50% would vest on the second anniversary of your hire date; • Participation in our employee comprehensive benefits program and Hewitt Associates’ Financial Security Plans, including an annual company retirement contribution, and a company 401(k) match; -------------------------------------------------------------------------------- Mr. Matthew Levin Page 2 December 18, 2006 • Participation in our Executive Benefits Program consisting of: • 27 days of annual paid time off each calendar year; • An additional five-week vacation splash, or sabbatical, after five years of service with Hewitt, and every five years thereafter; • A retirement restoration plan which provides for the company retirement contribution and company 401(k) match above any qualified plan limits; and • A voluntary deferral plan for base pay, annual incentive and/or restoration plan contributions. Matt, as a senior officer in the Company you would also be subject to stock ownership guidelines that require you to hold stock equal to 3.5x your base compensation. You would have five (5) years in which to achieve those levels of stock ownership. This offer is contingent upon Hewitt receiving completed and satisfactory background and reference checks which we will start immediately given the references you provided. A final offer letter will be provided as soon as possible upon completion of the reference checking.",
"If you have any questions or require any additional information, please call me or Russ directly. Again, we are excited about the opportunity of you joining Hewitt Associates. Sincerely, Hewitt Associates LLC Steve King cc: Mr. Russ Fradin, Hewitt Associates Mr. David Wille, Hewitt Associates Ms. Kristin Slavish, Hewitt Associates Accepted by: /s/ Matthew Levin Date:"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
IN THE SUPREME COURT OF MISSISSIPPI
NO. 2002-CT-02070-SCT
JERALD D. McKINLEY
v.
THE LAMAR BANK, JAMES S. WELCH, JR., AND GEORGE GUNTER
ON MOTION FOR REHEARING
DATE OF JUDGMENT: 10/29/2002 TRIAL JUDGE: HON. MICHAEL R. EUBANKS COURT FROM WHICH APPEALED: LAMAR COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: LAWRENCE E. ABERNATHY, III JOHN T. KERSH ATTORNEYS FOR APPELLEES: C. STEPHEN SEALE AMANDA CLEARMAN WADDELL S. ROBERT HAMMOND, JR. MONICA R. MORRISON RICHARD F. YARBOROUGH, JR. NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: AS TO GEORGE GUNTER, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE JUDGMENT OF THE LAMAR COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED – 12/01/2005 MOTION FOR REHEARING FILED: 10/05/2005 MANDATE ISSUED:
EN BANC.
CARLSON, JUSTICE, FOR THE COURT:
¶1. The motion for rehearing is granted. The original opinion is withdrawn, and this
opinion is substituted therefor. ¶2. Claiming, inter alia, that a bank had wrongfully commenced foreclosure proceedings
on his property pursuant to a deed of trust which allegedly had previously been satisfied and
canceled of record, Jerald D. McKinley commenced a suit for damages against the bank, the
original holder of the deed of trust, and the bank’s substituted trustee. The trial court granted
summary judgment in favor of the defendants and entered a final judgment dismissing
McKinley’s case with prejudice. Aggrieved by the trial court’s dismissal of his case,
McKinley appealed, and his case was assigned to the Court of Appeals, which reversed the trial
court’s judgment and remanded this case for a jury trial. McKinley v. Lamar Bank, __ So.2d
__, 2004 WL 1662257 (Miss. Ct. App. 2004). Upon a grant of George Gunter’s petition for
writ of certiorari, we find that the Court of Appeals erred; therefore, as to Gunter, we reverse
the judgment of the Court of Appeals and reinstate and affirm the judgment of dismissal
entered by the Circuit Court of Lamar County. However, since the Lamar Bank did not file a
petition for writ of certiorari, nor join Gunter’s cert petition, the Lamar Bank is not properly
before us in today’s case, and thus the judgment of the Court of Appeals as to the Lamar Bank
is final.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶3. The following facts are gleaned from the opinion of the Court of Appeals:
Jerald and Minnie McKinley purchased a home from James S. Welch, Jr. on May 25, 1990. The McKinleys executed a deed of trust and promissory note to Welch to secure financing of the home. The deed of trust secured a $50,000
2 indebtedness and provided for monthly payments in the amount of $482.40. It was recorded in the Forrest County Chancery Clerk’s office on May 29, 1990.
On March 17, 1995, Welch recorded a photocopy of the original recorded deed of trust. The photocopy was denoted as a “Corrected Deed of Trust,” in which a Bobbie B. Hudson replaced Welch as the beneficiary. On May 23, 1995, Hudson reassigned all of her interest in the deed of trust back to Welch. Additionally, on that same day, Welch assigned all of his interest in the deed of trust to Lamar Bank as collateral for a loan financed by the bank. Both of these assignments were filed in the clerk’s office on June 6, 1995. It is noteworthy that the note from the McKinleys to Welch was assigned to Lamar Bank, but the bank never notified the McKinleys of the assignment. Apparently, the McKinleys continued making payments to Welch, with no payments ever being made to Lamar Bank. Further, the bank did not send the notice of foreclosure to the McKinleys.
Gunter testified by deposition that he never talked with Welch prior to initiating foreclosure proceedings. He took Lamar Bank’s word that the McKinleys were in default on their promissory note to Welch. Lamar Bank said that Welch told it that the McKinleys were in default.
On July 5, 1996, Welch canceled the recorded deed of trust in which he was listed as the beneficiary. On May 19, 1997, he paid off the loan financed by Lamar Bank and, on the same day, assigned to the bank for a second time all of his interest in the McKinley deed of trust. This second assignment was security for a new loan. This assignment was filed on June 23, 1997.
In March 2001, McKinley defaulted on his promissory note to Welch. As a result, Lamar Bank appointed George Gunter as substitute trustee of the deed of trust and authorized Gunter to initiate foreclosure proceedings on McKinley’s property. Apparently, McKinley was not notified of the impending foreclosure proceedings, for according to McKinley, he learned of the foreclosure proceedings from his son who had seen the published notice in the local newspaper.
McKinley filed a Chapter 13 bankruptcy to interrupt the foreclosure proceedings. In response to the bankruptcy filing, Gunter terminated the foreclosure proceedings and took no further action in this regard. McKinley continued to live in the house without making any further payments until the house was destroyed by a fire in November 2001.
3 Id. at **2-3, ¶¶ 3-8 (footnotes omitted).
¶4. Asserting that the Lamar Bank, James S. Welch, Jr., and George Gunter initiated
foreclosure proceedings against him on a deed of trust which Lamar Bank, Welch and Gunter
knew had been satisfied and canceled of record, Jerald D. McKinley commenced this action
against the Bank, Welch, and Gunter on May 18, 2001. In his six-count amended complaint
filed on October 9, 2002, pursuant to an agreed court order allowing the amended complaint,
McKinley charged the defendants with (1) extortion, (2) conversion, (3) slander and libel, (4)
gross negligence or willful misconduct, (5) conspiracy, and (6) conduct justifying the award
of punitive damages. After extensive discovery, McKinley filed a motion for partial summary
judgment, and the Bank and Gunter filed separate motions for summary judgment. We note
here that the record reveals that Welch failed to appear and defend this action, and Welch
likewise never submitted any sworn testimony via deposition or otherwise.1 In his motion for
1 As to Welch, we can ascertain certain facts after a thorough review of the record. At the time of the commencement of the suit on May 18, 2001, a summons was issued for service upon Welch at 155 Beverly Hills Loop, Petal, Mississippi. The record is silent as to a return being filed on this summons. On May 22, 2001, an alias summons was issued for service upon Welch (no address stated). Again, there is no return on this summons in the record. On June 29, 2001, another alias summons was issued for service upon Welch at P. O. Box 142, Gaulman (sic), Mississippi 39077. Once again, no return on this summons can be found in the record. However, on August 6, 2001, Welch, through an attorney, filed a separate motion for an additional thirty days to respond to the amended complaint, but “without waiving any of his defenses or objections to the in personam jurisdiction or subject matter jurisdiction of [the] [c]ourt.” On August 28, 2001, the same attorney who filed the motion for additional time for Welch, filed a motion to withdraw due to a “conflict” which had arisen between Welch and the attorney. By order entered on September 11, 2001, the trial judge permitted the attorney to withdraw as Welch’s attorney of record and the trial judge via the same order granted Welch an additional thirty days to retain an attorney, to file an answer, and to respond to discovery. This is the last time we hear from Welch, directly or through an attorney. We further note that the record reveals that on April 3, 2002, an agreed order setting a trial date was entered, and while the order was agreed to by the attorneys for McKinley, the Lamar Bank, and Gunter, Welch, nor anyone in his behalf, executed the order. We likewise note that subsequent executed certificates of service by the various attorneys reflect that copies of the designated pleadings were mailed directly to an unrepresented Welch. In fact, the trial judge, in his
4 partial summary judgment, McKinley sought a judicial declaration that the “corrected deed of
trust” recorded by Welch on March 17, 1995, and indicating Bobbie B. Hudson to be the
beneficiary thereunder, was “void, and of no consequence or effect.” On the other hand, in
their respective motions for summary judgment, the Bank and Gunter sought a grant of
summary judgment, in toto, thus dismissing this action against them.
¶5. In a thorough 15-page opinion and order Circuit Judge Michael R. Eubanks denied
McKinley’s motion for partial summary judgment and granted the motions for summary
judgment filed by the Bank and Gunter. Likewise, on the same date, Judge Eubanks entered a
final judgment consistent with the opinion and order, thus dismissing this action, with
prejudice, pursuant to Miss. R. Civ. P. 54(b) and 58.
¶6. We find the trial court’s detailed findings of fact to be critical to our disposition of this
case; however, so as to not participate in an exercise of lengthy quotation of the trial court’s
findings of fact, we will summarize these findings which are not redundant to the findings of
fact made by the Court of Appeals, as we have already noted through quotation. We begin by
noting that while the Court of Appeals found that on July 5, 1996, Welch “canceled the
recorded deed of trust in which he was listed as a beneficiary,” the trial court found that Welch
subsequently entered opinion, found as a fact that “[t]hough also a defendant in the lawsuit, Welch has failed to defend himself and has apparently not given any testimony in this action.” Although Welch’s name remained in the style of the case in all pleadings filed in the trial court (and before us), the trial court’s final judgment dismissed only the Lamar Bank and Gunter, but not Welch. Thus, the trial court wisely entered a Rule 54(b) final judgment. See Miss. R. Civ. P. 54(b). However, McKinley’s notice of appeal stated that he was appealing to this Court “against the Lamar Bank, James S. Welch, Jr., and George Gunter,” even though no final judgment was entered as to Welch. Finally, Welch has made no appearance before the Court of Appeals or this Court during the pendency of this appeal. Accordingly, we find that Welch is not a party to this appeal.
5 “attempted to cancel” the deed of trust. The trial court also found that (1) McKinley failed to
make both the April, 2001 and May, 2001 payments to Welch; (2) on May 9, 2001, after
learning of the foreclosure proceedings from his son, McKinley went to Gunter’s office
wanting to know the amount of money required to “get current on his house” and McKinley was
informed by Gunter that the sum was $4,906.42, which included the arrearage, as well as
publication costs and attorneys fees; (3) the foreclosure was scheduled to take place on May
18, 2001, but one day before the scheduled foreclosure, McKinley filed for Chapter 13
bankruptcy protection and Gunter, therefore, canceled the foreclosure proceedings so as to
not violate the bankruptcy court’s automatic stay; and, (4) on May 28, 2001, McKinley
dismissed his bankruptcy proceedings, Gunter made no further attempts to foreclose on
McKinley’s property, and McKinley continued to live in his home while making no further
payments pursuant to the promissory note and deed of trust.2
¶7. The trial court also detailed McKinley’s version of certain facts. As the trial court
stated, McKinley recalled (as noted by his deposition testimony) that his used car dealership
had purchased a $4,300 cashier’s check from the Lamar Bank, payable to Welch, on April 16,
1999, but that McKinley did not remember purchasing the cashier’s check. Also, while
McKinley stated the purpose for purchasing the cashier’s check was to use as a “cushion” in
the event that he missed a payment (evidently claiming that Welch could “draw down” on this
cashier’s check when McKinley missed a payment), McKinley never discussed this
2 As noted by the trial court and the Court of Appeals, McKinley’s house was destroyed by fire in November, 2001.
6 “arrangement” with Welch. Nor was there any discussion as to how Welch should apply the
$4,300, including whether Welch could simply apply the entire amount to the current balance
on the note. Notwithstanding all of this, McKinley claimed that he could not be in default since
Welch supposedly had available the sum of $4,300 from which to “deduct” any missed monthly
payment. McKinley also never revealed this “cushion” to Gunter. McKinley also claimed that
he had no further liability under the note and deed of trust after Welch canceled the deed of
trust of record on July 5, 1996. McKinley attempted to undergird this assertion by stating that
before his wife, Minnie, passed away in 1997, Minnie told McKinley not to worry about the
house note, which he interpreted to mean that she had paid off the note. However, McKinley
admitted that he was not aware of how Minnie could have generated the money to pay off the
promissory note unless it happened to have come from her friend in Memphis, Tennessee, or
a brother in Texas. The trial court noted, however, that this purported conversation between
Minnie and McKinley occurred in June, 1997, almost a year after Welch had marked the deed
of trust as canceled, and that despite Minnie’s alleged assurance that the house note “was taken
care of,” McKinley continued making the monthly payments pursuant to the promissory note
until March, 2001.
¶8. McKinley made an alternative claim that Welch’s July, 1996 execution of the
cancellation stamp on the deed of trust took effect when Welch paid off the first note to the
Lamar Bank in 1997, and the 1995 assignment of the original deed of trust terminated. Using
McKinley’s logic, even if, due to the 1995 assignment of the original deed of trust to the Bank,
Welch had no interest in the original deed of trust at the time he stamped it as cancelled in
7 1996, when Welch paid off the debt to the Bank in 1997 and the 1995 deed of trust assignment
was terminated, the original deed of trust was again vested in Welch and Welch was thus bound
by his 1996 cancellation of the deed of trust. Therefore, according to McKinley, because the
deed of trust was cancelled, he owned the house, lien-free, and he was thus not in default on
his mortgage. Finally, McKinley asserted that the 1995 “corrected deed of trust” purporting
to change the beneficiary from Welch to Hudson, was void; therefore, the original 1990 deed
of trust was also void.
PROCEEDINGS IN THE COURT OF APPEALS
¶9. In his brief, McKinley sets out eleven issues in his Statement of the Issues, but restates
these issues by arguing five points: The trial court opinion was based on a mistake of fact; the
foreclosure proceedings were commenced on a deed of trust which had been stamped “[p]aid
in full, satisfied and cancelled;” even if the deed of trust had been assigned to the Lamar Bank
at the time of its cancellation, the cancellation became valid when Welch paid off the
promissory note to the Bank; McKinley was not in default on his promissory note to Welch;
and, the trial court inappropriately relied upon an affidavit of Deborah Graham, Gunter’s
secretary, even though Graham was not identified in discovery as a potential witness, and even
8 though Graham’s testimony contradicted Gunter’s testimony. 3 The Court of Appeals
summarized the issues as:
(1) [W]hether the altered deed of trust was an original document or a photocopy, (2) whether the loan for the house had been paid off, (3) whether [McKinley] was in default on his house payments in light of a lump sum payment to Welch, and (4) whether the affidavit of Deborah Graham should have been stricken.
2004 WL 1662257, at *1 ¶ 1.
¶10. The Court of Appeals, in a 5-3 opinion (three judges dissented without a separate
written opinion), found no merit in Issues (1), (3), and (4), but found as to Issue (2) that there
existed a genuine issue of material fact as to whether the indebtedness which was secured by
the deed of trust had been satisfied. En route to its finding on this issue, the Court of Appeals
stated:
We have not been able to find any case in Mississippi or in any other jurisdiction on all fours with the case before us. However, we believe that Emmons v. Lake State Ins. Co., 193 Mich. App. 460, 484 N.W.2d 712, 714 (1992) and Blacketor v. Cartee, 172 Miss. 889, 161 So. 696 (1935) provide guidance.
3 In her affidavit attached to Gunter’s motion for summary judgment, Graham, Gunter’s legal secretary, testified, inter alia, that Welch came into the office wanting to foreclose on the property because McKinley was behind in his payments; that the Lamar Bank had sent Welch to Gunter’s office to make the foreclosure request; that upon her request for Welch’s receipt book, Welch complied with the request by bringing Graham the receipt book several days later, at which time she copied the receipt book and returned the original receipt book to Welch; that she informed Gunter of Welch’s office visits; that on April 10, 2001, she went to Lamar Bank, at which time Bank Vice-President Brad Holmes executed an Appointment of Substituted Trustee appointing Gunter as the substitute trustee; that prior to the first newspaper publication of the foreclosure notice, McKinley’s son (Mark), who worked in the same building where Gunter’s law office was located, came by the law office, at which time Graham informed him that “his father’s house was in the process of foreclosure;” that Mark expressed no surprise or emotion upon learning about the foreclosure, but instead stated that “he knew his father was struggling and did not know why his father did not come to he and his brothers for help;” and, that Mark requested and received from her the arrearage amount, and stated to her that he was going to discuss this matter with his brothers to determine if they could assist their father.
9 2004 WL 1662257, at *3, ¶ 13. In relying on Emmons and Cartee, the Court of Appeals held:
Following the reasoning in Emmons and Cartee, we find that although the assignment was absolute on its face, it gave Lamar Bank only a qualified interest in the McKinleys’ property. Since the assignment was given as collateral security for Welch’s loan, the interest conveyed was commensurate with the debt. Hence, when Welch paid off his loan to Lamar Bank on May 19, 1997, the bank’s interest in the secured property ceased as of that moment, and the bank’s interest was reinvested in Welch to the same extent as it would have been if an actual reassignment from the bank to Welch had been executed.4 The fact that Welch apparently immediately thereafter executed another assignment does not prevent the aforementioned result.
Id. at *4, ¶ 21. In applying the “after-acquired title” doctrine, the Court of Appeals opined that
the indebtedness owed by McKinley to Welch had been paid off and satisfied. Id. at *5, ¶¶ 23-
24.5 The Court of Appeals likewise found an issue of negligence on the part of the Bank and
Gunter, which could only be resolved by a jury. The questionable negligence was the purported
failure by the Bank and Gunter to exercise ordinary diligence to discover that there was a
recorded cancellation of the deed of trust. Id. at **5-6, ¶¶ 25-28, *7, ¶ 36.
¶11. The Court of Appeals, therefore, reversed the trial court on this issue and remanded the
case to the trial court for a jury trial. After the Court of Appeals denied the motion for
rehearing, Gunter filed a petition for writ of certiorari, which was granted by this Court.
4 There appeared here in the Court of Appeals’s opinion footnote 7, which stated:
This finding is commensurate with Mississippi law regarding the effect of payment of debts subjected to collateral security. See Mississippi Code Annotated section 89-1-49 (1972) which states that payment of the money secured by a deed of trust “shall extinguish it, and revest the title in the mortgagor as effectually as if reconveyed.”
5 However, in its conclusion, the Court of Appeals found that there existed a jury issue as to whether McKinley’s note had been paid in full at the time of the initiation of the foreclosure proceedings.
10 DISCUSSION
¶12. Gunter asserts that the Court of Appeals erred in (1) failing to address whether the
purported cancellation of the original deed of trust was ineffective, “as it was a spoliation of
that document,” thus causing the original deed of trust to still be enforceable and causing the
commencement of the foreclosure proceedings to be appropriate; (2) applying the “after-
acquired title” doctrine to this case since McKinley had the same capability as Gunter to obtain
information and McKinley’s statements to Gunter amounted to an admission that he
(McKinley) was in default on the promissory note; (3) applying the “after-acquired title”
doctrine because McKinley had not paid for any “conveyance of any interest from Welch;” (4)
holding that Gunter had failed to exercise ordinary diligence; and, (5) relying on Emmons since
McKinley’s property was never foreclosed on and the loan securing Welch’s second
assignment to the Bank had not been satisfied.
¶13. We must remember that this appeal was initially commenced by McKinley because of
the grant of summary judgment by the Lamar County Circuit Court. Thus, while we consider
today’s case as a result of Gunter’s petition for writ of certiorari, such petition is due to the
Court of Appeals’s finding of error on the part of the trial court in granting summary judgment
in favor of Gunter and Lamar Bank. The issues before us today go directly to the propriety or
impropriety on the part of the trial court in granting summary judgment. To determine whether
the Court of Appeals properly reversed the trial court’s grant of summary judgment, we visit
anew the trial court’s actions. We thus apply a de novo standard of review concerning the
propriety of a trial court’s grant or denial of summary judgment. Montgomery v. Woolbright,
11 904 So. 2d 1027, 1029 (Miss. 2004); Brown ex rel. Ford v. J. J. Ferguson Sand & Gravel
Co., 858 So. 2d 129, 130 (Miss. 2003); Armistead v. Minor, 815 So. 2d 1189, 1191-92 (Miss.
2002); Richardson v. Methodist Hosp., 807 So. 2d 1244, 1246 (Miss. 2002). We recently
discussed our responsibilities in reviewing cases involving summary judgments:
We apply a de novo standard of review of a trial court’s grant or denial of a motion for summary judgment. Satchfield v. R. R. Morrison & Son, Inc., 872 So. 2d 661, 663 (Miss. 2004); McMillan v. Rodriguez, 823 So. 2d 1173, 1176- 77 (Miss. 2002); Lewallen v. Slawson, 822 So. 2d 236, 237-38 (Miss. 2002); Jenkins v. Ohio Cas. Ins. Co., 794 So. 2d 228, 232 (Miss. 2001); Aetna Cas., & Sur. Co. v. Berry, 669 So. 2d 56, 70 (Miss. 1996). Accordingly, just like the trial court, this Court looks at all evidentiary matters in the record, including admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. Id. at 70. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Id. If, in this view, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Id. When a motion for summary judgment is made and supported as provided in Miss. R. Civ. P. 56, an adverse party may not rest upon the mere allegations or denials of the pleadings, but instead the response must set forth specific facts showing that there is a genuine issue for trial. Miller v. Meeks, 762 So. 2d 302, 304 (Miss. 2000). If any triable issues of fact exist, the trial court’s decision to grant summary judgment will be reversed. Otherwise, the decision is affirmed. Id. at 304.
Harrison v. Chandler-Sampson Ins., Inc., 891 So. 2d 224, 228 (Miss. 2005).
¶14. We first address the Court of Appeals’ treatment of the three issues raised by McKinley
and in which the Court of Appeals found no merit. McKinley claimed error in the trial court’s
failure to find that the original 1990 deed of trust from the McKinleys to Welch had been
altered. We agree that both the trial court and the Court of Appeals correctly found that the
original deed of trust had not been altered. In essence, McKinley argues that when Welch filed
his “corrected” deed of trust in 1995, he had in fact altered the original deed of trust and not
12 just a copy of the deed of trust. We again note that the 1995 “corrected” deed of trust reveals
that the name “James S. Welch, Jr.” is lined through, with the word “Corrected” hand-written
above the “line-through.” Below the “line-through” is the name “Bobbie B. Hudson” written in
long-hand. On this issue, the Court of Appeals found:
A thorough review of the record reveals that Welch did not alter the original document, but instead altered a photocopy of the original document. Therefore, the original deed of trust remained valid and is thus binding. For the forgoing (sic) reasons, we find this issue is without merit.
McKinley v. Lamar Bank, 2004 WL 1662257, at *2, ¶ 11. Our review of the record brings
us to the same conclusion as that of the trial court and the Court of Appeals. We also note that
there are notations on the “corrected” deed of trust, unrelated to the “corrections,” which
would not be on the original document. We unhesitatingly conclude that any alterations by
Welch were done to a photocopy of the original deed of trust, not to the original document
itself. The trial court cited Holmes v. Ford, 179 Miss. 673, 176 So. 524 (1937); and, Upton
v. Bush, 141 Miss. 660, 107 So. 284 (1926). In so doing, the trial court correctly
distinguished these cases from the present case. In Holmes and Upton, the actual original
documents were altered by way of erasures of the names of the payees and insertions of the
names of different payees/beneficiaries. As the trial court correctly found in today’s case,
Welch did not alter the 1990 original deed of trust, but instead altered a photocopy of the deed
of trust and recorded the copy as a “corrected” deed of trust. Thus, the trial court also quite
appropriately found that the original deed of trust remained in full force and effect.
13 ¶15. McKinley also claimed error in the trial court’s finding that he was in default,
notwithstanding the $4,300 lump sum payment he made to Welch by way of a certified
cashier’s check. Again, we agree with both the trial court and the Court of Appeals in their
findings that this lump sum payment did not cause McKinley to avoid being in default.
McKinley admitted missing at least three monthly payments in the Spring of 2001, but he
asserts that when he missed those monthly payments, Welch should have been required to
“draw down” on this $4,300 lump sum payment, by way of crediting McKinley with these
payments.6 Again, as correctly pointed out by the Court of Appeals, the record is totally devoid
of any evidence of any such agreement by McKinley and Welch that this $4,300 lump sum
payment would be used in this way. In fact, McKinley readily admitted that he and Welch never
discussed any such agreement. 2004 WL 1662257, at *6, ¶¶ 29-30. Indeed, the record
reveals that at his deposition of June 11, 2002, McKinley was presented with a copy of the
$4,300 cashiers check and then testified under oath that (1) he could not remember purchasing
the check, though he stated that “undoubtedly I did;” (2) he had no recollection of paying the
$4,300 to Welch; (3) he did not remember discussing any arrangement with Welch concerning
the $4,300 “and if I say anything different I wouldn’t be telling the truth;” (4) he believed
Welch used this check to pay on the note; (5) “[w]hat I feel like happened” was that “I”made
this payment to Welch because Welch “[m]ore than likely come by and asked for it” because
“[h]e might have had financial trouble;” and (6) he did not feel that he was behind on his note
6 Even though the record is inconsistent as to the number of payments McKinley missed in the Spring of 2001, in his sworn deposition testimony of June 11, 2002, McKinley admitted that he failed to make the monthly payments in March, April and May of 2001.
14 payments in the Spring of 2001 because the $4,300 “could have been used for payments.”7 Our
independent review of the record thus causes us to reach the same conclusion as the Court of
Appeals on the issue of McKinley’s default on the promissory note.
¶16. Additionally, McKinley asserted that Deborah Graham’s affidavit, which was attached
as an exhibit to Gunter’s motion for summary judgment, was inappropriately considered by the
trial judge in granting summary judgment since Graham had not been revealed in pre-trial
discovery as a potential witness, and since her affidavit contradicted Gunter’s deposition
testimony. Id. at *6, ¶ 31. On this issue, the Court of Appeals stated:
A review of the trial judge’s opinion and order reveals that the judge did not rely solely on Graham’s affidavit in reaching a decision on the merits of the case. Further the trial judge found that there had not been a foreclosure, therefore Graham’s affidavit was immaterial.
Id. at *7, ¶ 33. Our thorough review of the trial judge’s opinion and order causes us to reach
the same conclusion as the Court of Appeals – the trial judge obviously relied on the totality
of the facts and circumstances laid out in the various pleadings and other documents before
him, and he certainly did not rely solely on Graham’s affidavit.
¶17. Accordingly, for these reasons, we find that McKinley’s assignments of error relating
to Welch’s alteration of the deed of trust, McKinley’s default on the house note and deed of
trust, and the trial court’s treatment of Deborah Graham’s affidavit are wholly without merit.
7 McKinley also testified that other than the purchase of Welch’s house, he [McKinley] had never had any type of business relationship with Welch.
15 ¶18. Having reached this point, we now focus on the one assignment of error as advanced by
McKinley which the Court of Appeals found to have merit. McKinley asserted that Welch’s
1996 cancellation of the deed of trust became effective once Welch paid off his first loan to
Lamar Bank in 1997. The Court of Appeals succinctly set out McKinley’s claims on this
issue:
McKinley next claims that the debt on the deed of trust was fully satisfied when Welch had the deed of trust stamped “cancelled,” and the cancellation became effective when Welch paid off his first loan to Lamar Bank in 1997. McKinley argues that even if Welch did not have an interest in the deed of trust at the time of the attempted cancellation due to his first assignment to the bank, Welch regained his interest when he paid off the debt. McKinley maintains that at this point, the assignment terminated, and Welch was bound by his actions in canceling the deed of trust, thus making him [McKinley] the owner of the house, free and clear.
Id. at *2, ¶ 12.
¶19. The Court of Appeals stated:
McKinley’s complaint against Welch, Gunter, and Lamar Bank sought to recover damages for the wrongful initiation of foreclosure proceedings against his property. His theories for recovery were extortion, conversion, libel and slander, and conspiracy. He also sought punitive damages. Whether he can recover under either of these theories depends upon whether there was a valid and justified initiation of foreclosure proceedings. We have determined that a genuine issue of material fact exists as to whether McKinley’s note had been paid in full at the time the foreclosure proceedings were initiated. On remand, McKinley shall bear the burden of proving that the note had in fact been paid in full prior to the initiation of foreclosure proceedings or if the note had not been paid in full, that he was not in default at the time foreclosure proceedings were initiated.
We only hold here that the mere fact that the deed of trust had been assigned to Lamar Bank when the attempted cancellation occurred does not preclude a finding that the indebtedness had in fact been paid in full when the attempted
16 cancellation occurred. Although the cancellation is certainly evidence that the indebtedness had been paid in full, that determination must be made by a jury.
Id. at *7, ¶¶ 35-36.
¶20. While Gunter sets out five reasons for us to find that the Court of Appeals erred, we are
firmly convinced that this case hinges for the most part on the issue of the effect of Welch’s
May 23, 1995, assignment of the McKinley deed of trust to the Lamar Bank, which in turn
affects the validity of Welch’s July 5, 1996, “cancellation” of the 1990 McKinley-to-Welch
deed of trust.
The provisions of the 1990 McKinley-to-Welch deed of trust state, inter alia:
All the right (sic), powers, and privileges, of the said Beneficiary [Welch] hereunder shall vest in, inure to and be possessed by the heirs, legal representatives, successors, or assigns, as the case may be, of the said Beneficiary.
The provisions of Welch’s May 23, 1995, assignment to the Lamar Bank state:
ASSIGNMENT OF DEED OF TRUST
FOR AND IN CONSIDERATION of the sum of TEN DOLLARS ($10.00), cash in hand paid, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned JAMES S. WELCH, JR., does hereby convey, transfer, set-over and assign with recourse to THE LAMAR BANK, all his or her (sic) right, title and interest in and to that certain promissory note indebtedness and deed of trust securing same executed on May 25, 1990 by Jerald D. McKinley, Sr. and wife, Minnie F. McKinley, to Penny Jones Alexander, Trustee in favor of James S. Welch, Jr., which said deed of trust is recorded in Book 734 at Page 432 and which was re-recorded in Book 877 at Page 106 of the Land Deed of Trust Records of Forrest County, Mississippi.8
8 The “re-recorded” deed of trust to which reference is made in this Assignment is the “corrected”deed of trust attempting to change the beneficiary from Welch to Hudson. As already discussed, this attempted change of beneficiary by way of altering and filing a photocopy of the original deed of trust,
17 The language of this assignment is general and unqualified. We have previously addressed the
validity and effect of assignments of deeds of trust. In EB, Inc. v. Allen, 722 So. 2d 555, 564
(Miss. 1998), we stated:
“Generally, the intention of the parties ascertained from the entire transaction, including conduct, determines whether the assignment is absolute or intended only as a collateral security.” International Harvester Co. v. Peoples Bank & Trust Co., 402 So. 2d 856, 861 (Miss. 1981) (quoting 6A C.J.S. Assignments Section 82, page 732). “[A] valid assignment of a debt or contract conveys the entire interest of the assignor to the assignee, and thereafter the assignor has no interest therein.” International Harvester Co., 402 So. 2d at 861. “As a general rule, a valid and unqualified assignment operates to transfer to the assignee all the right, title, or interest of the assignor in the thing assigned, but not to confer upon the assignee any greater right or interest than that possessed by the assignor.” Id. at 861 (quoting 6A C.J.S. Assignments, Section 73, pages 710- 12). 722 So. 2d at 564.
¶21. Thus, in today’s case, based on the unqualified language of the assignment, once Welch
executed the assignment of the deed of trust to Lamar Bank on May 23, 1995, and once this
assignment was filed of record, Welch had no further interest whatsoever in the promissory
note and deed of trust executed by the McKinleys in his favor on May 25, 1990, and Welch’s
“cancellation” of the deed of trust on July 5, 1996, was thus invalid and of no effect – Welch
possessed nothing on which to act on July 5, 1996.9 Based on the record, the trial court
did not affect the validity of the original deed of trust. Additionally, it is clear that Hudson, by her actions, desired to convey any interest she had in the “corrected” deed of trust back to Welch prior to his assignment of the original of deed of trust to the Bank.
9 McKinley asserts, alternatively, that even if Welch’s May 23, 1995 assignment to Lamar Bank effectively transferred all of Welch’s rights in the deed of trust to the Bank, Welch’s 1997 satisfaction of the original promissory note validated his 1996 cancellation of the deed of trust. In support of the position, McKinley relies on the “after-acquired title” doctrine. Without getting into a lengthy discussion of this
18 correctly found that McKinley had not paid off the deed of trust and that McKinley was in
default on the note and deed of trust. Even though McKinley claimed that his wife, prior to her
death, told McKinley that the house note “was taken care of,” the record is devoid of any
evidence that the note had been satisfied. As correctly noted by the trial court, even though
McKinley interpreted his wife’s remarks to mean that the note had been satisfied, and even
though this conversation occurred almost a year after Welch marked the deed of trust as “[p]aid
in full, [s]atisfied and [c]ancelled,” McKinley continued making the monthly payments to
Welch pursuant to the promissory note until March, 2001. Actions speak louder than words.
McKinley’s statements of his belief as to the status of the promissory note as of June, 1997,
when his wife purportedly made these comments to him, are belied by the record. Also,
McKinley admitted missing three payments in the spring of 2001, because he believed Welch
had “slashed” his tires. McKinley’s assertions that he believed that, notwithstanding his
withholding of payments to Welch, he was not in default on the note because he had paid Welch
a $4,300 “cushion” from which to deduct any missed payments are again belied by the record.
In fact, McKinley admitted that he and Welch never discussed any such arrangement. Thus, the
Court of Appeals erred when it concluded that there were genuine issues of material fact as to
“whether McKinley’s note had been paid in full at the time the foreclosure proceedings were
initiated” and “if the note had not been paid in full, [whether] he was not in default at the time
doctrine, we find this doctrine to be wholly inapplicable to today’s case. See Walters v. Merchants & Manufacturers Bank of Ellisville, 218 Miss. 777, 67 So. 2d 714 (1953). See also Buchanan v. Stinson, 335 So. 2d 912, 913-14 (Miss. 1976); Crooker v. Hollingsworth, 210 Miss. 636, 46 So. 2d 541 (1950).
19 foreclosure proceedings were initiated.” McKinley v. Lamar Bank, 2004 WL 1662257 at *7,
¶ 35.
¶22. Also, the Court of Appeals found that, as to Gunter and the Bank, “[o]rdinary diligence
on their part would have revealed a recorded cancellation of the deed of trust, and thus should
have led them to inquire as to whether the debt had actually been satisfied.” Id. at *5, ¶ 25.
However, the record bears out the fact that Gunter and the Bank were aware of Welch’s
purported cancellation of the deed of trust, and Gunter, as the attorney and substituted trustee,
determined that the “cancellation” carried no adverse legal effect since Welch had previously
assigned “all his....right, title, and interest” in the note and deed of trust to the Lamar Bank. In
fact, Gunter testified via his deposition that he informed the Bank in his title opinion of the
existence of Welch’s “cancellation” of the deed of trust and that notwithstanding Welch’s
actions, the Bank still had a valid deed of trust on which to conduct a foreclosure. Likewise
Gunter’s review of Welch’s receipt book caused Gunter to inform McKinley, upon inquiry, that
it would take payment of the sum of $4,906.42 to stop the foreclosure.
¶23. Concerning the 2001 foreclosure, the trial court found, inter alia:
The Court has found that Welch’s assignments in both 1995 and 1997 to Lamar Bank were valid. The Court has found McKinley knew he was in default on his mortgage. As discussed above, McKinley knew he was in default when he failed to make his monthly mortgage payment from March 2001 to May 2001. Since he has affirmatively stated he did not tell Welch to use the $4,300.00 payment as a “cushion,” should he miss a payment now and then, his argument that such is what he intended all along for Welch to do is of no import. Further McKinley’s speculation that Minnie somehow paid the note off in 1996 is wholly unsupported and, in fact, is contradicted by his own testimony that he continued making the monthly mortgage payments from the time shortly before Minnie’s passing in 1997 when she made this statement up until February 2001.
20 Therefore, the only remaining question is whether or not the foreclosure was carried out correctly under law.
Gunter, as substituted trustee, had a duty under Mississippi law to conduct the foreclosure sale of the McKinley home in a manner most beneficial to McKinley. Rawlings v. Anderson, 149 Miss. 632, 115 So. 714 (1928); Lake Hillsdale Estates, Inc. v. Galloway, 473 So. 2d 461 (Miss. 1985). Gunter’s duties as substituted trustee would be satisfied where the sale is conducted in, “a commercially reasonable manner.” Wansley v. First National Bank, 566 So. 2d 1218, 1221 (1990). Gunter’s duties are subject to the power of sale provisions of Miss. Code Ann. § 89-1-55, § 89-1-57 and § 89-1-59. McKinley does not argue that Gunter did not properly conduct foreclosure proceedings under Mississippi law. Instead, McKinley argues that Gunter did not verify that McKinley was in default on his mortgage because Gunter did not speak directly to Welch, but rather had Welch speak with his secretary, Deborah Graham (“Graham”).
Gunter instructed Graham to tell Welch to bring proof of McKinley’s default to his office, which he did. Graham then went to Lamar Bank and got the bank to sign the Appointment of Substituted Trustee, which was signed and recorded in Forrest County, Book 1138, Page 395, on April 17, 2001. Along with the proper notices Gunter ran in the Hattiesburg American newspaper, McKinley has admitted to having actual notice of the foreclosure proceedings and to being informed as to how much money he would have to pay to stop the foreclosure. Instead of paying this arrearage, McKinley ran to bankruptcy court, thus stopping the foreclosure proceedings and insuring that he could continue to reside in the home free of charge. Accordingly, Gunter complied with all his duties as substituted trustee, including those duties to McKinley. There was no wrongful foreclosure because there was never a foreclosure at all. 10
(Emphasis in original). As correctly noted by the trial court, “[t]here was no wrongful
foreclosure because there was never a foreclosure at all.” This important fact cannot be
over-emphasized. Once McKinley received the stay of the foreclosure proceedings from the
10 Upon making these findings, the trial court addressed McKinley’s claims of extortion, conversion, slander and libel, gross negligence or willful misconduct, conspiracy, and punitive damages, found each of these claims to be without merit, and granted summary judgment in favor of the Lamar Bank and Gunter.
21 bankruptcy court, Gunter forever ceased any further efforts to foreclose on McKinley’s house
and property. Indeed, eleven days after receiving the stay in bankruptcy court, McKinley
requested and received a dismissal of his bankruptcy petition, and continued living “free of
charge” in his home until it was destroyed by fire in November, 2001.
¶24. Based on these reasons, we find that the Court of Appeals erred in finding that there
existed a genuine issue of material fact as to whether the indebtedness secured by the deed of
trust had been paid off at the time of the commencement of the foreclosure proceedings. CONCLUSION
¶25. The trial court meticulously considered the motions for summary judgment, and
response in opposition to the motions. This is evident by the trial court’s detailed opinion and
order which clearly addressed all the issues by reviewing the pleadings, discovery documents,
affidavits, and all other documents submitted in support of, and in opposition to, the motions
for summary judgment, and which correctly applied the law. The Court of Appeals correctly
decided all the issues before it, except one. For the reasons stated, the Court of Appeals erred
in finding that there existed genuine issues of material fact as to whether McKinley’s
promissory note had been paid in full at the time the foreclosure proceedings were initiated,
or alternatively, that if the note had not been paid in full, whether McKinley was in default at
the time foreclosure proceedings were initiated. In this vein, the Court of Appeals also erred
in finding that there was a question of whether there was negligence on the part of Gunter since
there was a recorded cancellation of the deed of trust by Welch.
¶26. Accordingly, as to George Gunter, we reverse the judgment of the Court of Appeals and
reinstate and affirm the judgment of the Lamar County Circuit Court.
22 ¶27. AS TO GEORGE GUNTER, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE JUDGMENT OF THE LAMAR COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED.
SMITH, C.J., WALLER, P.J., DICKINSON AND RANDOLPH, JJ., CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. COBB, P.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.
23 | 04-27-2013 | [
"IN THE SUPREME COURT OF MISSISSIPPI NO. 2002-CT-02070-SCT JERALD D. McKINLEY v. THE LAMAR BANK, JAMES S. WELCH, JR., AND GEORGE GUNTER ON MOTION FOR REHEARING DATE OF JUDGMENT: 10/29/2002 TRIAL JUDGE: HON. MICHAEL R. EUBANKS COURT FROM WHICH APPEALED: LAMAR COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: LAWRENCE E. ABERNATHY, III JOHN T. KERSH ATTORNEYS FOR APPELLEES: C. STEPHEN SEALE AMANDA CLEARMAN WADDELL S. ROBERT HAMMOND, JR. MONICA R. MORRISON RICHARD F. YARBOROUGH, JR. NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: AS TO GEORGE GUNTER, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE JUDGMENT OF THE LAMAR COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED – 12/01/2005 MOTION FOR REHEARING FILED: 10/05/2005 MANDATE ISSUED: EN BANC.",
"CARLSON, JUSTICE, FOR THE COURT: ¶1. The motion for rehearing is granted. The original opinion is withdrawn, and this opinion is substituted therefor. ¶2. Claiming, inter alia, that a bank had wrongfully commenced foreclosure proceedings on his property pursuant to a deed of trust which allegedly had previously been satisfied and canceled of record, Jerald D. McKinley commenced a suit for damages against the bank, the original holder of the deed of trust, and the bank’s substituted trustee. The trial court granted summary judgment in favor of the defendants and entered a final judgment dismissing McKinley’s case with prejudice. Aggrieved by the trial court’s dismissal of his case, McKinley appealed, and his case was assigned to the Court of Appeals, which reversed the trial court’s judgment and remanded this case for a jury trial. McKinley v. Lamar Bank, __ So.2d __, 2004 WL 1662257 (Miss.",
"Ct. App. 2004). Upon a grant of George Gunter’s petition for writ of certiorari, we find that the Court of Appeals erred; therefore, as to Gunter, we reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of dismissal entered by the Circuit Court of Lamar County. However, since the Lamar Bank did not file a petition for writ of certiorari, nor join Gunter’s cert petition, the Lamar Bank is not properly before us in today’s case, and thus the judgment of the Court of Appeals as to the Lamar Bank is final.",
"FACTS AND PROCEEDINGS IN THE TRIAL COURT ¶3. The following facts are gleaned from the opinion of the Court of Appeals: Jerald and Minnie McKinley purchased a home from James S. Welch, Jr. on May 25, 1990. The McKinleys executed a deed of trust and promissory note to Welch to secure financing of the home. The deed of trust secured a $50,000 2 indebtedness and provided for monthly payments in the amount of $482.40. It was recorded in the Forrest County Chancery Clerk’s office on May 29, 1990. On March 17, 1995, Welch recorded a photocopy of the original recorded deed of trust. The photocopy was denoted as a “Corrected Deed of Trust,” in which a Bobbie B. Hudson replaced Welch as the beneficiary. On May 23, 1995, Hudson reassigned all of her interest in the deed of trust back to Welch. Additionally, on that same day, Welch assigned all of his interest in the deed of trust to Lamar Bank as collateral for a loan financed by the bank. Both of these assignments were filed in the clerk’s office on June 6, 1995.",
"It is noteworthy that the note from the McKinleys to Welch was assigned to Lamar Bank, but the bank never notified the McKinleys of the assignment. Apparently, the McKinleys continued making payments to Welch, with no payments ever being made to Lamar Bank. Further, the bank did not send the notice of foreclosure to the McKinleys. Gunter testified by deposition that he never talked with Welch prior to initiating foreclosure proceedings. He took Lamar Bank’s word that the McKinleys were in default on their promissory note to Welch.",
"Lamar Bank said that Welch told it that the McKinleys were in default. On July 5, 1996, Welch canceled the recorded deed of trust in which he was listed as the beneficiary. On May 19, 1997, he paid off the loan financed by Lamar Bank and, on the same day, assigned to the bank for a second time all of his interest in the McKinley deed of trust. This second assignment was security for a new loan. This assignment was filed on June 23, 1997. In March 2001, McKinley defaulted on his promissory note to Welch. As a result, Lamar Bank appointed George Gunter as substitute trustee of the deed of trust and authorized Gunter to initiate foreclosure proceedings on McKinley’s property. Apparently, McKinley was not notified of the impending foreclosure proceedings, for according to McKinley, he learned of the foreclosure proceedings from his son who had seen the published notice in the local newspaper. McKinley filed a Chapter 13 bankruptcy to interrupt the foreclosure proceedings.",
"In response to the bankruptcy filing, Gunter terminated the foreclosure proceedings and took no further action in this regard. McKinley continued to live in the house without making any further payments until the house was destroyed by a fire in November 2001. 3 Id. at **2-3, ¶¶ 3-8 (footnotes omitted). ¶4. Asserting that the Lamar Bank, James S. Welch, Jr., and George Gunter initiated foreclosure proceedings against him on a deed of trust which Lamar Bank, Welch and Gunter knew had been satisfied and canceled of record, Jerald D. McKinley commenced this action against the Bank, Welch, and Gunter on May 18, 2001. In his six-count amended complaint filed on October 9, 2002, pursuant to an agreed court order allowing the amended complaint, McKinley charged the defendants with (1) extortion, (2) conversion, (3) slander and libel, (4) gross negligence or willful misconduct, (5) conspiracy, and (6) conduct justifying the award of punitive damages. After extensive discovery, McKinley filed a motion for partial summary judgment, and the Bank and Gunter filed separate motions for summary judgment.",
"We note here that the record reveals that Welch failed to appear and defend this action, and Welch likewise never submitted any sworn testimony via deposition or otherwise.1 In his motion for 1 As to Welch, we can ascertain certain facts after a thorough review of the record. At the time of the commencement of the suit on May 18, 2001, a summons was issued for service upon Welch at 155 Beverly Hills Loop, Petal, Mississippi. The record is silent as to a return being filed on this summons.",
"On May 22, 2001, an alias summons was issued for service upon Welch (no address stated). Again, there is no return on this summons in the record. On June 29, 2001, another alias summons was issued for service upon Welch at P. O. Box 142, Gaulman (sic), Mississippi 39077. Once again, no return on this summons can be found in the record. However, on August 6, 2001, Welch, through an attorney, filed a separate motion for an additional thirty days to respond to the amended complaint, but “without waiving any of his defenses or objections to the in personam jurisdiction or subject matter jurisdiction of [the] [c]ourt.” On August 28, 2001, the same attorney who filed the motion for additional time for Welch, filed a motion to withdraw due to a “conflict” which had arisen between Welch and the attorney. By order entered on September 11, 2001, the trial judge permitted the attorney to withdraw as Welch’s attorney of record and the trial judge via the same order granted Welch an additional thirty days to retain an attorney, to file an answer, and to respond to discovery. This is the last time we hear from Welch, directly or through an attorney.",
"We further note that the record reveals that on April 3, 2002, an agreed order setting a trial date was entered, and while the order was agreed to by the attorneys for McKinley, the Lamar Bank, and Gunter, Welch, nor anyone in his behalf, executed the order. We likewise note that subsequent executed certificates of service by the various attorneys reflect that copies of the designated pleadings were mailed directly to an unrepresented Welch. In fact, the trial judge, in his 4 partial summary judgment, McKinley sought a judicial declaration that the “corrected deed of trust” recorded by Welch on March 17, 1995, and indicating Bobbie B. Hudson to be the beneficiary thereunder, was “void, and of no consequence or effect.” On the other hand, in their respective motions for summary judgment, the Bank and Gunter sought a grant of summary judgment, in toto, thus dismissing this action against them.",
"¶5. In a thorough 15-page opinion and order Circuit Judge Michael R. Eubanks denied McKinley’s motion for partial summary judgment and granted the motions for summary judgment filed by the Bank and Gunter. Likewise, on the same date, Judge Eubanks entered a final judgment consistent with the opinion and order, thus dismissing this action, with prejudice, pursuant to Miss. R. Civ. P. 54(b) and 58. ¶6.",
"We find the trial court’s detailed findings of fact to be critical to our disposition of this case; however, so as to not participate in an exercise of lengthy quotation of the trial court’s findings of fact, we will summarize these findings which are not redundant to the findings of fact made by the Court of Appeals, as we have already noted through quotation. We begin by noting that while the Court of Appeals found that on July 5, 1996, Welch “canceled the recorded deed of trust in which he was listed as a beneficiary,” the trial court found that Welch subsequently entered opinion, found as a fact that “[t]hough also a defendant in the lawsuit, Welch has failed to defend himself and has apparently not given any testimony in this action.” Although Welch’s name remained in the style of the case in all pleadings filed in the trial court (and before us), the trial court’s final judgment dismissed only the Lamar Bank and Gunter, but not Welch. Thus, the trial court wisely entered a Rule 54(b) final judgment. See Miss.",
"R. Civ. P. 54(b). However, McKinley’s notice of appeal stated that he was appealing to this Court “against the Lamar Bank, James S. Welch, Jr., and George Gunter,” even though no final judgment was entered as to Welch. Finally, Welch has made no appearance before the Court of Appeals or this Court during the pendency of this appeal. Accordingly, we find that Welch is not a party to this appeal. 5 “attempted to cancel” the deed of trust. The trial court also found that (1) McKinley failed to make both the April, 2001 and May, 2001 payments to Welch; (2) on May 9, 2001, after learning of the foreclosure proceedings from his son, McKinley went to Gunter’s office wanting to know the amount of money required to “get current on his house” and McKinley was informed by Gunter that the sum was $4,906.42, which included the arrearage, as well as publication costs and attorneys fees; (3) the foreclosure was scheduled to take place on May 18, 2001, but one day before the scheduled foreclosure, McKinley filed for Chapter 13 bankruptcy protection and Gunter, therefore, canceled the foreclosure proceedings so as to not violate the bankruptcy court’s automatic stay; and, (4) on May 28, 2001, McKinley dismissed his bankruptcy proceedings, Gunter made no further attempts to foreclose on McKinley’s property, and McKinley continued to live in his home while making no further payments pursuant to the promissory note and deed of trust.2 ¶7.",
"The trial court also detailed McKinley’s version of certain facts. As the trial court stated, McKinley recalled (as noted by his deposition testimony) that his used car dealership had purchased a $4,300 cashier’s check from the Lamar Bank, payable to Welch, on April 16, 1999, but that McKinley did not remember purchasing the cashier’s check. Also, while McKinley stated the purpose for purchasing the cashier’s check was to use as a “cushion” in the event that he missed a payment (evidently claiming that Welch could “draw down” on this cashier’s check when McKinley missed a payment), McKinley never discussed this 2 As noted by the trial court and the Court of Appeals, McKinley’s house was destroyed by fire in November, 2001. 6 “arrangement” with Welch. Nor was there any discussion as to how Welch should apply the $4,300, including whether Welch could simply apply the entire amount to the current balance on the note.",
"Notwithstanding all of this, McKinley claimed that he could not be in default since Welch supposedly had available the sum of $4,300 from which to “deduct” any missed monthly payment. McKinley also never revealed this “cushion” to Gunter. McKinley also claimed that he had no further liability under the note and deed of trust after Welch canceled the deed of trust of record on July 5, 1996. McKinley attempted to undergird this assertion by stating that before his wife, Minnie, passed away in 1997, Minnie told McKinley not to worry about the house note, which he interpreted to mean that she had paid off the note.",
"However, McKinley admitted that he was not aware of how Minnie could have generated the money to pay off the promissory note unless it happened to have come from her friend in Memphis, Tennessee, or a brother in Texas. The trial court noted, however, that this purported conversation between Minnie and McKinley occurred in June, 1997, almost a year after Welch had marked the deed of trust as canceled, and that despite Minnie’s alleged assurance that the house note “was taken care of,” McKinley continued making the monthly payments pursuant to the promissory note until March, 2001. ¶8.",
"McKinley made an alternative claim that Welch’s July, 1996 execution of the cancellation stamp on the deed of trust took effect when Welch paid off the first note to the Lamar Bank in 1997, and the 1995 assignment of the original deed of trust terminated. Using McKinley’s logic, even if, due to the 1995 assignment of the original deed of trust to the Bank, Welch had no interest in the original deed of trust at the time he stamped it as cancelled in 7 1996, when Welch paid off the debt to the Bank in 1997 and the 1995 deed of trust assignment was terminated, the original deed of trust was again vested in Welch and Welch was thus bound by his 1996 cancellation of the deed of trust. Therefore, according to McKinley, because the deed of trust was cancelled, he owned the house, lien-free, and he was thus not in default on his mortgage.",
"Finally, McKinley asserted that the 1995 “corrected deed of trust” purporting to change the beneficiary from Welch to Hudson, was void; therefore, the original 1990 deed of trust was also void. PROCEEDINGS IN THE COURT OF APPEALS ¶9. In his brief, McKinley sets out eleven issues in his Statement of the Issues, but restates these issues by arguing five points: The trial court opinion was based on a mistake of fact; the foreclosure proceedings were commenced on a deed of trust which had been stamped “[p]aid in full, satisfied and cancelled;” even if the deed of trust had been assigned to the Lamar Bank at the time of its cancellation, the cancellation became valid when Welch paid off the promissory note to the Bank; McKinley was not in default on his promissory note to Welch; and, the trial court inappropriately relied upon an affidavit of Deborah Graham, Gunter’s secretary, even though Graham was not identified in discovery as a potential witness, and even 8 though Graham’s testimony contradicted Gunter’s testimony.",
"3 The Court of Appeals summarized the issues as: (1) [W]hether the altered deed of trust was an original document or a photocopy, (2) whether the loan for the house had been paid off, (3) whether [McKinley] was in default on his house payments in light of a lump sum payment to Welch, and (4) whether the affidavit of Deborah Graham should have been stricken. 2004 WL 1662257, at *1 ¶ 1. ¶10. The Court of Appeals, in a 5-3 opinion (three judges dissented without a separate written opinion), found no merit in Issues (1), (3), and (4), but found as to Issue (2) that there existed a genuine issue of material fact as to whether the indebtedness which was secured by the deed of trust had been satisfied.",
"En route to its finding on this issue, the Court of Appeals stated: We have not been able to find any case in Mississippi or in any other jurisdiction on all fours with the case before us. However, we believe that Emmons v. Lake State Ins. Co., 193 Mich. App. 460, 484 N.W.2d 712, 714 (1992) and Blacketor v. Cartee, 172 Miss. 889, 161 So. 696 (1935) provide guidance. 3 In her affidavit attached to Gunter’s motion for summary judgment, Graham, Gunter’s legal secretary, testified, inter alia, that Welch came into the office wanting to foreclose on the property because McKinley was behind in his payments; that the Lamar Bank had sent Welch to Gunter’s office to make the foreclosure request; that upon her request for Welch’s receipt book, Welch complied with the request by bringing Graham the receipt book several days later, at which time she copied the receipt book and returned the original receipt book to Welch; that she informed Gunter of Welch’s office visits; that on April 10, 2001, she went to Lamar Bank, at which time Bank Vice-President Brad Holmes executed an Appointment of Substituted Trustee appointing Gunter as the substitute trustee; that prior to the first newspaper publication of the foreclosure notice, McKinley’s son (Mark), who worked in the same building where Gunter’s law office was located, came by the law office, at which time Graham informed him that “his father’s house was in the process of foreclosure;” that Mark expressed no surprise or emotion upon learning about the foreclosure, but instead stated that “he knew his father was struggling and did not know why his father did not come to he and his brothers for help;” and, that Mark requested and received from her the arrearage amount, and stated to her that he was going to discuss this matter with his brothers to determine if they could assist their father.",
"9 2004 WL 1662257, at *3, ¶ 13. In relying on Emmons and Cartee, the Court of Appeals held: Following the reasoning in Emmons and Cartee, we find that although the assignment was absolute on its face, it gave Lamar Bank only a qualified interest in the McKinleys’ property. Since the assignment was given as collateral security for Welch’s loan, the interest conveyed was commensurate with the debt. Hence, when Welch paid off his loan to Lamar Bank on May 19, 1997, the bank’s interest in the secured property ceased as of that moment, and the bank’s interest was reinvested in Welch to the same extent as it would have been if an actual reassignment from the bank to Welch had been executed.4 The fact that Welch apparently immediately thereafter executed another assignment does not prevent the aforementioned result. Id. at *4, ¶ 21. In applying the “after-acquired title” doctrine, the Court of Appeals opined that the indebtedness owed by McKinley to Welch had been paid off and satisfied.",
"Id. at *5, ¶¶ 23- 24.5 The Court of Appeals likewise found an issue of negligence on the part of the Bank and Gunter, which could only be resolved by a jury. The questionable negligence was the purported failure by the Bank and Gunter to exercise ordinary diligence to discover that there was a recorded cancellation of the deed of trust. Id. at **5-6, ¶¶ 25-28, *7, ¶ 36. ¶11. The Court of Appeals, therefore, reversed the trial court on this issue and remanded the case to the trial court for a jury trial. After the Court of Appeals denied the motion for rehearing, Gunter filed a petition for writ of certiorari, which was granted by this Court. 4 There appeared here in the Court of Appeals’s opinion footnote 7, which stated: This finding is commensurate with Mississippi law regarding the effect of payment of debts subjected to collateral security. See Mississippi Code Annotated section 89-1-49 (1972) which states that payment of the money secured by a deed of trust “shall extinguish it, and revest the title in the mortgagor as effectually as if reconveyed.” 5 However, in its conclusion, the Court of Appeals found that there existed a jury issue as to whether McKinley’s note had been paid in full at the time of the initiation of the foreclosure proceedings.",
"10 DISCUSSION ¶12. Gunter asserts that the Court of Appeals erred in (1) failing to address whether the purported cancellation of the original deed of trust was ineffective, “as it was a spoliation of that document,” thus causing the original deed of trust to still be enforceable and causing the commencement of the foreclosure proceedings to be appropriate; (2) applying the “after- acquired title” doctrine to this case since McKinley had the same capability as Gunter to obtain information and McKinley’s statements to Gunter amounted to an admission that he (McKinley) was in default on the promissory note; (3) applying the “after-acquired title” doctrine because McKinley had not paid for any “conveyance of any interest from Welch;” (4) holding that Gunter had failed to exercise ordinary diligence; and, (5) relying on Emmons since McKinley’s property was never foreclosed on and the loan securing Welch’s second assignment to the Bank had not been satisfied. ¶13. We must remember that this appeal was initially commenced by McKinley because of the grant of summary judgment by the Lamar County Circuit Court.",
"Thus, while we consider today’s case as a result of Gunter’s petition for writ of certiorari, such petition is due to the Court of Appeals’s finding of error on the part of the trial court in granting summary judgment in favor of Gunter and Lamar Bank. The issues before us today go directly to the propriety or impropriety on the part of the trial court in granting summary judgment. To determine whether the Court of Appeals properly reversed the trial court’s grant of summary judgment, we visit anew the trial court’s actions. We thus apply a de novo standard of review concerning the propriety of a trial court’s grant or denial of summary judgment. Montgomery v. Woolbright, 11 904 So.",
"2d 1027, 1029 (Miss. 2004); Brown ex rel. Ford v. J. J. Ferguson Sand & Gravel Co., 858 So. 2d 129, 130 (Miss. 2003); Armistead v. Minor, 815 So. 2d 1189, 1191-92 (Miss. 2002); Richardson v. Methodist Hosp., 807 So. 2d 1244, 1246 (Miss. 2002). We recently discussed our responsibilities in reviewing cases involving summary judgments: We apply a de novo standard of review of a trial court’s grant or denial of a motion for summary judgment. Satchfield v. R. R. Morrison & Son, Inc., 872 So. 2d 661, 663 (Miss. 2004); McMillan v. Rodriguez, 823 So. 2d 1173, 1176- 77 (Miss. 2002); Lewallen v. Slawson, 822 So. 2d 236, 237-38 (Miss. 2002); Jenkins v. Ohio Cas.",
"Ins. Co., 794 So. 2d 228, 232 (Miss. 2001); Aetna Cas., & Sur. Co. v. Berry, 669 So. 2d 56, 70 (Miss. 1996). Accordingly, just like the trial court, this Court looks at all evidentiary matters in the record, including admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. Id. at 70. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Id. If, in this view, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Id. When a motion for summary judgment is made and supported as provided in Miss. R. Civ. P. 56, an adverse party may not rest upon the mere allegations or denials of the pleadings, but instead the response must set forth specific facts showing that there is a genuine issue for trial. Miller v. Meeks, 762 So. 2d 302, 304 (Miss.",
"2000). If any triable issues of fact exist, the trial court’s decision to grant summary judgment will be reversed. Otherwise, the decision is affirmed. Id. at 304. Harrison v. Chandler-Sampson Ins., Inc., 891 So. 2d 224, 228 (Miss. 2005). ¶14. We first address the Court of Appeals’ treatment of the three issues raised by McKinley and in which the Court of Appeals found no merit. McKinley claimed error in the trial court’s failure to find that the original 1990 deed of trust from the McKinleys to Welch had been altered. We agree that both the trial court and the Court of Appeals correctly found that the original deed of trust had not been altered. In essence, McKinley argues that when Welch filed his “corrected” deed of trust in 1995, he had in fact altered the original deed of trust and not 12 just a copy of the deed of trust.",
"We again note that the 1995 “corrected” deed of trust reveals that the name “James S. Welch, Jr.” is lined through, with the word “Corrected” hand-written above the “line-through.” Below the “line-through” is the name “Bobbie B. Hudson” written in long-hand. On this issue, the Court of Appeals found: A thorough review of the record reveals that Welch did not alter the original document, but instead altered a photocopy of the original document. Therefore, the original deed of trust remained valid and is thus binding. For the forgoing (sic) reasons, we find this issue is without merit. McKinley v. Lamar Bank, 2004 WL 1662257, at *2, ¶ 11. Our review of the record brings us to the same conclusion as that of the trial court and the Court of Appeals.",
"We also note that there are notations on the “corrected” deed of trust, unrelated to the “corrections,” which would not be on the original document. We unhesitatingly conclude that any alterations by Welch were done to a photocopy of the original deed of trust, not to the original document itself. The trial court cited Holmes v. Ford, 179 Miss. 673, 176 So. 524 (1937); and, Upton v. Bush, 141 Miss. 660, 107 So. 284 (1926). In so doing, the trial court correctly distinguished these cases from the present case. In Holmes and Upton, the actual original documents were altered by way of erasures of the names of the payees and insertions of the names of different payees/beneficiaries. As the trial court correctly found in today’s case, Welch did not alter the 1990 original deed of trust, but instead altered a photocopy of the deed of trust and recorded the copy as a “corrected” deed of trust. Thus, the trial court also quite appropriately found that the original deed of trust remained in full force and effect.",
"13 ¶15. McKinley also claimed error in the trial court’s finding that he was in default, notwithstanding the $4,300 lump sum payment he made to Welch by way of a certified cashier’s check. Again, we agree with both the trial court and the Court of Appeals in their findings that this lump sum payment did not cause McKinley to avoid being in default. McKinley admitted missing at least three monthly payments in the Spring of 2001, but he asserts that when he missed those monthly payments, Welch should have been required to “draw down” on this $4,300 lump sum payment, by way of crediting McKinley with these payments.6 Again, as correctly pointed out by the Court of Appeals, the record is totally devoid of any evidence of any such agreement by McKinley and Welch that this $4,300 lump sum payment would be used in this way.",
"In fact, McKinley readily admitted that he and Welch never discussed any such agreement. 2004 WL 1662257, at *6, ¶¶ 29-30. Indeed, the record reveals that at his deposition of June 11, 2002, McKinley was presented with a copy of the $4,300 cashiers check and then testified under oath that (1) he could not remember purchasing the check, though he stated that “undoubtedly I did;” (2) he had no recollection of paying the $4,300 to Welch; (3) he did not remember discussing any arrangement with Welch concerning the $4,300 “and if I say anything different I wouldn’t be telling the truth;” (4) he believed Welch used this check to pay on the note; (5) “[w]hat I feel like happened” was that “I”made this payment to Welch because Welch “[m]ore than likely come by and asked for it” because “[h]e might have had financial trouble;” and (6) he did not feel that he was behind on his note 6 Even though the record is inconsistent as to the number of payments McKinley missed in the Spring of 2001, in his sworn deposition testimony of June 11, 2002, McKinley admitted that he failed to make the monthly payments in March, April and May of 2001.",
"14 payments in the Spring of 2001 because the $4,300 “could have been used for payments.”7 Our independent review of the record thus causes us to reach the same conclusion as the Court of Appeals on the issue of McKinley’s default on the promissory note. ¶16. Additionally, McKinley asserted that Deborah Graham’s affidavit, which was attached as an exhibit to Gunter’s motion for summary judgment, was inappropriately considered by the trial judge in granting summary judgment since Graham had not been revealed in pre-trial discovery as a potential witness, and since her affidavit contradicted Gunter’s deposition testimony. Id. at *6, ¶ 31. On this issue, the Court of Appeals stated: A review of the trial judge’s opinion and order reveals that the judge did not rely solely on Graham’s affidavit in reaching a decision on the merits of the case. Further the trial judge found that there had not been a foreclosure, therefore Graham’s affidavit was immaterial. Id.",
"at *7, ¶ 33. Our thorough review of the trial judge’s opinion and order causes us to reach the same conclusion as the Court of Appeals – the trial judge obviously relied on the totality of the facts and circumstances laid out in the various pleadings and other documents before him, and he certainly did not rely solely on Graham’s affidavit. ¶17. Accordingly, for these reasons, we find that McKinley’s assignments of error relating to Welch’s alteration of the deed of trust, McKinley’s default on the house note and deed of trust, and the trial court’s treatment of Deborah Graham’s affidavit are wholly without merit. 7 McKinley also testified that other than the purchase of Welch’s house, he [McKinley] had never had any type of business relationship with Welch. 15 ¶18. Having reached this point, we now focus on the one assignment of error as advanced by McKinley which the Court of Appeals found to have merit. McKinley asserted that Welch’s 1996 cancellation of the deed of trust became effective once Welch paid off his first loan to Lamar Bank in 1997.",
"The Court of Appeals succinctly set out McKinley’s claims on this issue: McKinley next claims that the debt on the deed of trust was fully satisfied when Welch had the deed of trust stamped “cancelled,” and the cancellation became effective when Welch paid off his first loan to Lamar Bank in 1997. McKinley argues that even if Welch did not have an interest in the deed of trust at the time of the attempted cancellation due to his first assignment to the bank, Welch regained his interest when he paid off the debt. McKinley maintains that at this point, the assignment terminated, and Welch was bound by his actions in canceling the deed of trust, thus making him [McKinley] the owner of the house, free and clear. Id. at *2, ¶ 12. ¶19.",
"The Court of Appeals stated: McKinley’s complaint against Welch, Gunter, and Lamar Bank sought to recover damages for the wrongful initiation of foreclosure proceedings against his property. His theories for recovery were extortion, conversion, libel and slander, and conspiracy. He also sought punitive damages. Whether he can recover under either of these theories depends upon whether there was a valid and justified initiation of foreclosure proceedings. We have determined that a genuine issue of material fact exists as to whether McKinley’s note had been paid in full at the time the foreclosure proceedings were initiated. On remand, McKinley shall bear the burden of proving that the note had in fact been paid in full prior to the initiation of foreclosure proceedings or if the note had not been paid in full, that he was not in default at the time foreclosure proceedings were initiated. We only hold here that the mere fact that the deed of trust had been assigned to Lamar Bank when the attempted cancellation occurred does not preclude a finding that the indebtedness had in fact been paid in full when the attempted 16 cancellation occurred. Although the cancellation is certainly evidence that the indebtedness had been paid in full, that determination must be made by a jury.",
"Id. at *7, ¶¶ 35-36. ¶20. While Gunter sets out five reasons for us to find that the Court of Appeals erred, we are firmly convinced that this case hinges for the most part on the issue of the effect of Welch’s May 23, 1995, assignment of the McKinley deed of trust to the Lamar Bank, which in turn affects the validity of Welch’s July 5, 1996, “cancellation” of the 1990 McKinley-to-Welch deed of trust. The provisions of the 1990 McKinley-to-Welch deed of trust state, inter alia: All the right (sic), powers, and privileges, of the said Beneficiary [Welch] hereunder shall vest in, inure to and be possessed by the heirs, legal representatives, successors, or assigns, as the case may be, of the said Beneficiary. The provisions of Welch’s May 23, 1995, assignment to the Lamar Bank state: ASSIGNMENT OF DEED OF TRUST FOR AND IN CONSIDERATION of the sum of TEN DOLLARS ($10.00), cash in hand paid, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned JAMES S. WELCH, JR., does hereby convey, transfer, set-over and assign with recourse to THE LAMAR BANK, all his or her (sic) right, title and interest in and to that certain promissory note indebtedness and deed of trust securing same executed on May 25, 1990 by Jerald D. McKinley, Sr. and wife, Minnie F. McKinley, to Penny Jones Alexander, Trustee in favor of James S. Welch, Jr., which said deed of trust is recorded in Book 734 at Page 432 and which was re-recorded in Book 877 at Page 106 of the Land Deed of Trust Records of Forrest County, Mississippi.8 8 The “re-recorded” deed of trust to which reference is made in this Assignment is the “corrected”deed of trust attempting to change the beneficiary from Welch to Hudson.",
"As already discussed, this attempted change of beneficiary by way of altering and filing a photocopy of the original deed of trust, 17 The language of this assignment is general and unqualified. We have previously addressed the validity and effect of assignments of deeds of trust. In EB, Inc. v. Allen, 722 So. 2d 555, 564 (Miss. 1998), we stated: “Generally, the intention of the parties ascertained from the entire transaction, including conduct, determines whether the assignment is absolute or intended only as a collateral security.” International Harvester Co. v. Peoples Bank & Trust Co., 402 So.",
"2d 856, 861 (Miss. 1981) (quoting 6A C.J.S. Assignments Section 82, page 732). “[A] valid assignment of a debt or contract conveys the entire interest of the assignor to the assignee, and thereafter the assignor has no interest therein.” International Harvester Co., 402 So. 2d at 861. “As a general rule, a valid and unqualified assignment operates to transfer to the assignee all the right, title, or interest of the assignor in the thing assigned, but not to confer upon the assignee any greater right or interest than that possessed by the assignor.” Id. at 861 (quoting 6A C.J.S. Assignments, Section 73, pages 710- 12). 722 So.",
"2d at 564. ¶21. Thus, in today’s case, based on the unqualified language of the assignment, once Welch executed the assignment of the deed of trust to Lamar Bank on May 23, 1995, and once this assignment was filed of record, Welch had no further interest whatsoever in the promissory note and deed of trust executed by the McKinleys in his favor on May 25, 1990, and Welch’s “cancellation” of the deed of trust on July 5, 1996, was thus invalid and of no effect – Welch possessed nothing on which to act on July 5, 1996.9 Based on the record, the trial court did not affect the validity of the original deed of trust.",
"Additionally, it is clear that Hudson, by her actions, desired to convey any interest she had in the “corrected” deed of trust back to Welch prior to his assignment of the original of deed of trust to the Bank. 9 McKinley asserts, alternatively, that even if Welch’s May 23, 1995 assignment to Lamar Bank effectively transferred all of Welch’s rights in the deed of trust to the Bank, Welch’s 1997 satisfaction of the original promissory note validated his 1996 cancellation of the deed of trust. In support of the position, McKinley relies on the “after-acquired title” doctrine. Without getting into a lengthy discussion of this 18 correctly found that McKinley had not paid off the deed of trust and that McKinley was in default on the note and deed of trust.",
"Even though McKinley claimed that his wife, prior to her death, told McKinley that the house note “was taken care of,” the record is devoid of any evidence that the note had been satisfied. As correctly noted by the trial court, even though McKinley interpreted his wife’s remarks to mean that the note had been satisfied, and even though this conversation occurred almost a year after Welch marked the deed of trust as “[p]aid in full, [s]atisfied and [c]ancelled,” McKinley continued making the monthly payments to Welch pursuant to the promissory note until March, 2001. Actions speak louder than words. McKinley’s statements of his belief as to the status of the promissory note as of June, 1997, when his wife purportedly made these comments to him, are belied by the record. Also, McKinley admitted missing three payments in the spring of 2001, because he believed Welch had “slashed” his tires. McKinley’s assertions that he believed that, notwithstanding his withholding of payments to Welch, he was not in default on the note because he had paid Welch a $4,300 “cushion” from which to deduct any missed payments are again belied by the record.",
"In fact, McKinley admitted that he and Welch never discussed any such arrangement. Thus, the Court of Appeals erred when it concluded that there were genuine issues of material fact as to “whether McKinley’s note had been paid in full at the time the foreclosure proceedings were initiated” and “if the note had not been paid in full, [whether] he was not in default at the time doctrine, we find this doctrine to be wholly inapplicable to today’s case. See Walters v. Merchants & Manufacturers Bank of Ellisville, 218 Miss. 777, 67 So. 2d 714 (1953).",
"See also Buchanan v. Stinson, 335 So. 2d 912, 913-14 (Miss. 1976); Crooker v. Hollingsworth, 210 Miss. 636, 46 So. 2d 541 (1950). 19 foreclosure proceedings were initiated.” McKinley v. Lamar Bank, 2004 WL 1662257 at *7, ¶ 35. ¶22. Also, the Court of Appeals found that, as to Gunter and the Bank, “[o]rdinary diligence on their part would have revealed a recorded cancellation of the deed of trust, and thus should have led them to inquire as to whether the debt had actually been satisfied.” Id.",
"at *5, ¶ 25. However, the record bears out the fact that Gunter and the Bank were aware of Welch’s purported cancellation of the deed of trust, and Gunter, as the attorney and substituted trustee, determined that the “cancellation” carried no adverse legal effect since Welch had previously assigned “all his....right, title, and interest” in the note and deed of trust to the Lamar Bank. In fact, Gunter testified via his deposition that he informed the Bank in his title opinion of the existence of Welch’s “cancellation” of the deed of trust and that notwithstanding Welch’s actions, the Bank still had a valid deed of trust on which to conduct a foreclosure. Likewise Gunter’s review of Welch’s receipt book caused Gunter to inform McKinley, upon inquiry, that it would take payment of the sum of $4,906.42 to stop the foreclosure. ¶23.",
"Concerning the 2001 foreclosure, the trial court found, inter alia: The Court has found that Welch’s assignments in both 1995 and 1997 to Lamar Bank were valid. The Court has found McKinley knew he was in default on his mortgage. As discussed above, McKinley knew he was in default when he failed to make his monthly mortgage payment from March 2001 to May 2001. Since he has affirmatively stated he did not tell Welch to use the $4,300.00 payment as a “cushion,” should he miss a payment now and then, his argument that such is what he intended all along for Welch to do is of no import.",
"Further McKinley’s speculation that Minnie somehow paid the note off in 1996 is wholly unsupported and, in fact, is contradicted by his own testimony that he continued making the monthly mortgage payments from the time shortly before Minnie’s passing in 1997 when she made this statement up until February 2001. 20 Therefore, the only remaining question is whether or not the foreclosure was carried out correctly under law. Gunter, as substituted trustee, had a duty under Mississippi law to conduct the foreclosure sale of the McKinley home in a manner most beneficial to McKinley.",
"Rawlings v. Anderson, 149 Miss. 632, 115 So. 714 (1928); Lake Hillsdale Estates, Inc. v. Galloway, 473 So. 2d 461 (Miss. 1985). Gunter’s duties as substituted trustee would be satisfied where the sale is conducted in, “a commercially reasonable manner.” Wansley v. First National Bank, 566 So. 2d 1218, 1221 (1990). Gunter’s duties are subject to the power of sale provisions of Miss. Code Ann. § 89-1-55, § 89-1-57 and § 89-1-59. McKinley does not argue that Gunter did not properly conduct foreclosure proceedings under Mississippi law. Instead, McKinley argues that Gunter did not verify that McKinley was in default on his mortgage because Gunter did not speak directly to Welch, but rather had Welch speak with his secretary, Deborah Graham (“Graham”).",
"Gunter instructed Graham to tell Welch to bring proof of McKinley’s default to his office, which he did. Graham then went to Lamar Bank and got the bank to sign the Appointment of Substituted Trustee, which was signed and recorded in Forrest County, Book 1138, Page 395, on April 17, 2001. Along with the proper notices Gunter ran in the Hattiesburg American newspaper, McKinley has admitted to having actual notice of the foreclosure proceedings and to being informed as to how much money he would have to pay to stop the foreclosure. Instead of paying this arrearage, McKinley ran to bankruptcy court, thus stopping the foreclosure proceedings and insuring that he could continue to reside in the home free of charge. Accordingly, Gunter complied with all his duties as substituted trustee, including those duties to McKinley. There was no wrongful foreclosure because there was never a foreclosure at all. 10 (Emphasis in original).",
"As correctly noted by the trial court, “[t]here was no wrongful foreclosure because there was never a foreclosure at all.” This important fact cannot be over-emphasized. Once McKinley received the stay of the foreclosure proceedings from the 10 Upon making these findings, the trial court addressed McKinley’s claims of extortion, conversion, slander and libel, gross negligence or willful misconduct, conspiracy, and punitive damages, found each of these claims to be without merit, and granted summary judgment in favor of the Lamar Bank and Gunter. 21 bankruptcy court, Gunter forever ceased any further efforts to foreclose on McKinley’s house and property. Indeed, eleven days after receiving the stay in bankruptcy court, McKinley requested and received a dismissal of his bankruptcy petition, and continued living “free of charge” in his home until it was destroyed by fire in November, 2001. ¶24. Based on these reasons, we find that the Court of Appeals erred in finding that there existed a genuine issue of material fact as to whether the indebtedness secured by the deed of trust had been paid off at the time of the commencement of the foreclosure proceedings. CONCLUSION ¶25.",
"The trial court meticulously considered the motions for summary judgment, and response in opposition to the motions. This is evident by the trial court’s detailed opinion and order which clearly addressed all the issues by reviewing the pleadings, discovery documents, affidavits, and all other documents submitted in support of, and in opposition to, the motions for summary judgment, and which correctly applied the law. The Court of Appeals correctly decided all the issues before it, except one. For the reasons stated, the Court of Appeals erred in finding that there existed genuine issues of material fact as to whether McKinley’s promissory note had been paid in full at the time the foreclosure proceedings were initiated, or alternatively, that if the note had not been paid in full, whether McKinley was in default at the time foreclosure proceedings were initiated. In this vein, the Court of Appeals also erred in finding that there was a question of whether there was negligence on the part of Gunter since there was a recorded cancellation of the deed of trust by Welch. ¶26.",
"Accordingly, as to George Gunter, we reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of the Lamar County Circuit Court. 22 ¶27. AS TO GEORGE GUNTER, THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE JUDGMENT OF THE LAMAR COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED. SMITH, C.J., WALLER, P.J., DICKINSON AND RANDOLPH, JJ., CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. COBB, P.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING. 23"
]
| https://www.courtlistener.com/api/rest/v3/opinions/864946/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
891 F.Supp. 875 (1994) Thomas ALGIE, et al., Plaintiffs, v. RCA GLOBAL COMMUNICATIONS, INC. and MCI Communications Corporation, Defendants. No. 89 Civ. 5471 (MJL) (MHD). United States District Court, S.D. New York. November 22, 1994. *876 *877 *878 *879 *880 John C. Lankenau, Lankenau, Kovner & Kurtz, New York City, for plaintiffs. Christine H. Purdue, Hunton & Williams, Fairfax, VA, for defendants.
MEMORANDUM AND ORDER DOLINGER, United States Magistrate Judge. The twenty-three plaintiffs in this case were all long-term employees of defendant RCA Global Communications, Inc. ("RCAG"). They have sued to recover severance benefits allegedly denied them under a plan sponsored by RCAG. Plaintiffs were each advised that their employment was being terminated one to three days after the stock sale of RCAG to MCI Communications Corporation ("MCIC") on May 16, 1988. They were later paid severance benefits under the MCIC plan rather than under the more generous RCAG plan. In explaining this decision, defendants have claimed that the RCAG plan was terminated as of the closing, and alternatively have asserted that plaintiffs ceased to be RCAG plan participants at that time because they became employees of MCIC's subsidiary MCI International, Inc. ("MCII"). As a result of several pre-trial decisions, plaintiffs were left with one triable claim, under section 502(a)(1)(B) of the Employee Retirement Income Security Act, 29 U.S.C. § 1132(a)(1)(B), for the denial of benefits. (See Algie v. RCA Global Communications, Inc., 1994 WL 132358 (S.D.N.Y. April 12, 1994)). However, the court also granted plaintiffs partial summary judgment on that claim, holding that they had established beyond triable dispute that the RCAG severance plan had not been terminated by the time that they were fired in late May 1988. (Id. at *22-24). Accordingly, the court defined two issues for trial: 1. Did the plaintiffs remain RCAG employees until their post-closing termination? 2. If not, was their departure from RCAG a "layoff" within the meaning of the RCAG severance benefit plan? (Id. at *32). Thus, at trial the first issue to be determined was whether plaintiffs continued as RCAG employees for the few days between the stock purchase of RCAG by MCIC and their termination or else became employees of defendant MCII in that intervening time. The court conducted a jury trial on these two questions from July 18 to 26, 1994. At the conclusion of the trial the jury returned a verdict for plaintiffs on the first question, finding that they were still RCAG employees at the time of termination. In view of this finding, the jurors were not required to reach the second question. In the wake of the trial, defendants have moved for judgment as a matter of law or alternatively for a new trial. Plaintiffs in turn have moved for an award of attorney's fees and expenses and for pre-judgment interest. For the reasons that follow, defendants' motions are denied and plaintiffs' motions are granted.
I. Defendants' Motions
As noted, defendants seek judgment as a matter of law. This application is based principally on their contention that the trial evidence demonstrates that the RCAG plan was replaced by the MCIC severance plan just prior to the termination of the plaintiffs. Alternatively, defendants seek a new trial *881 based on their contention that the court erred in three respects in its jury charge. I address these issues in the order presented.
A. The Rule 50(a) Motion
Defendants' motion for judgment rests on two grounds. First, they assert that the RCAG plan was no longer in effect when the plaintiffs were terminated shortly after the closing in which MCIC purchased the stock of RCAG. In support of this contention defendants point principally to evidence that they introduced at trial indicating that in late June 1988 the MCIC Board of Directors had issued a consent that, in substance, authorized the extension of MCIC's severance plan to all employees of RCAG, effective retroactively to the date of the closing. (Tr. 974-77 & Defs.' Exh. 131). Defendants argue that this evidence demonstrates that MCIC intended to replace the RCAG plan with the MCIC plan even for RCAG employees, and therefore, even if plaintiffs remained RCAG employees until their severance as found by the jury they were not entitled to be paid under the RCAG plan. This argument fails for both procedural and substantive reasons.[1] Second, defendants argue that the decision of the RCAG plan administrators to deny severance benefits to plaintiffs must be judged under an "arbitrary and capricious" standard. So viewed, defendants assert, that decision must be upheld. This argument cannot be sustained in view of both the wording of the severance plan and the grounds stated by the administrators for denial of benefits.
1. The Asserted Termination of the RCAG Plan
Federal Rule of Civil Procedure 50(a)(1) provides as follows: If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue. The standards for applying this rule are the same as under the predecessor rule, which governed motions for a directed verdict and for a judgment notwithstanding the verdict. See, e.g., Piesco v. Koch, 12 F.3d 332, 340 (2d Cir.1993). As the Second Circuit has recently summarized, "[w]hen faced with such a motion, the trial court must consider the evidence in the light most favorable to the nonmoving party and must `give that party the benefit of all reasonable inferences that the jury might have drawn in his favor from the evidence.'" Toltec Fabrics, Inc. v. August Inc., 29 F.3d 778, 782 (2d Cir.1994) (quoting Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 367 (2d Cir.1988)). In doing so, "[t]he court is not allowed to weigh conflicting evidence, or assess the credibility of the witnesses, or substitute its judgment for that of the jury." Id. Judged by these standards, the motion must be denied "unless ... `the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [persons] could have reached.'" Cruz v. Local Union No. 3 of the IBEW, 34 F.3d 1148 (2d Cir.1994) (quoting Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970)). As is evident from the text of the rule and its elaboration by the courts, the Rule 50(a) remedy is addressed to issues that were the subject of the trial. Defendants' motion, however, insofar as it rests on trial evidence concerning the alleged termination of the RCAG plan, is mislabelled since the question of whether the RCAG plan had been terminated prior to plaintiffs' departure was not an issue at the trial. As noted, that question was determined as a matter of summary judgment three months before the trial. Indeed, *882 there can be no question as to this matter since the summary judgment decision explicitly held that the defendants had failed to demonstrate a triable dispute on this issue and then proceeded to limit the trial to two other factual issues, as to which the parties' summary judgment motion papers demonstrated triable questions. Viewed in context, it is evident that defendants' application is, in substance, a motion for reconsideration of the court's prior summary judgment ruling based upon evidence received for different purposes at trial. There are obvious procedural problems with this effort, and in any event there is no substantive justification for the relief that is sought. The initial hurdle is that defendants' motion, properly characterized, is both untimely and otherwise in violation of the local rule that governs such motions. The relevant provision is Rule 3(j) of the Civil Rules of this court, which provides that a motion for reconsideration "shall be served within ten (10) days after the docketing of the court's determination of the original motion." Although this time limit may not be jurisdictional Hershfang v. Citicorp, 1991 WL 197699, at *1 (S.D.N.Y. Oct. 1, 1991), it is enforced absent adequate justification for ignoring it. See, e.g., Blanco v. United States, 775 F.2d 53, 55-56 (2d Cir.1985); see also Donahue v. Pendleton Woolen Mills, 719 F.Supp. 149, 150 (S.D.N.Y.1988) (although motion was untimely, "in the interest of justice" court did not dismiss motion). In this case defendants offer no justification for their failure to meet the time limit or even to come remotely close to it. Indeed, defendants' motion papers are silent on this problem, and at oral argument their counsel conceded that, until shortly before the trial, defendants had simply overlooked the evidence on which they now rely. Since both the facts underlying the Board of Directors' decision and the documentation of it were uniquely in the control of defendants, this omission has not been explained and can hardly be justified. Indeed, if we assumed arguendo that the evidence otherwise might justify the relief sought, then the delay in producing it would be inexcusable since it resulted in an unnecessary seven-day trial. Defendants' motion also fails to satisfy a second part of Rule 3(j). A motion for reargument is ordinarily limited to errors assertedly made by the court in its original decision, and it is not the vehicle for the losing party to submit additional evidence. See Ades v. Deloitte & Touche, 843 F.Supp. 888, 891-92 (S.D.N.Y.1994); Collins Development Corp. v. Marsh & McLennan, Inc., 1991 WL 135605, at *4 (S.D.N.Y. July 18, 1991). Cf. Transaero, Inc. v. La Fuerza Aerea Boliviana, 38 F.3d 648 (2d Cir.1994) (applying Fed.R.App.P. 40(a)). Thus the rule specifies that the motion is to be based on a memorandum of law "setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked." This limitation is further underscored by the provision that "[n]o affidavits shall be filed by any party unless directed by the court." As is evident, defendants' motion does not rest on the notion that the court "overlooked" facts or controlling law, since their argument relies on newly submitted evidence over which they have always had control. This failing equally demonstrates that defendants cannot justify a new trial on this question, much less their demand for judgment at this stage. See Chang v. City of Albany, 150 F.R.D. 456, 459 (N.D.N.Y.1993) (holding that a motion for a new trial will only be granted if the movant shows that the evidence was discovered since the trial); Bradford Trust v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 622 F.Supp. 208, 213-14 (S.D.N.Y.1985), aff'd, 805 F.2d 49 (2d Cir. 1986). Even if we were to disregard these procedural difficulties, we would be constrained to reject defendants' application on another procedural ground. Fed.R.Civ.P. 56(d) contemplates that a court faced with a summary judgment motion may conclude that full case-dispositive relief cannot be granted. In that circumstance it directs that the court ... shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall therefore make an order specifying *883 the facts that appear without substantial controversy ... and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly. The evident purpose of this rule is to "speed[] up litigation by eliminating before trial matters wherein there is no genuine issue of fact." Fed.R.Civ.P. 56(d), Advisory Committee Notes (1946). This is precisely the procedure followed by this court when it granted partial summary judgment before trial. If, however, a party could, in effect, ignore such a ruling and, after trial, sift the trial record for evidence that might have supported its position on issues decided before trial as defendants seek to do here the salutary purpose of the rule, to narrow the trial and define in advance the issues to be addressed there, would be defeated. It is certainly true, as defendants argue, that a court may reexamine its Rule 56(d) rulings if sufficient cause is shown. See, e.g., 6 Pt. 2 J. Moore et ano., Moore's Federal Practice ¶ 56.20[3.-3] at 56-701 & n. 10 (2d Ed.1993) (citing cases); id. ¶ 56.20[3.-4] at 56-704 to 05 (citing Coffman v. Federal Laboratories, 171 F.2d 94, 98 (3d Cir.1948), cert. denied, 336 U.S. 913, 69 S.Ct. 603, 93 L.Ed. 1076 (1949)). See generally Fed. R.Civ.P. 54(b). Such a revision by the court must, however, be shown to be justified, see, e.g., Audi Vision Inc. v. RCA Mfg. Co., 136 F.2d 621, 625 (2d Cir.1943) (change permitted at trial "to prevent manifest injustice"); Moore's Federal Practice, supra, at 56-707 (court should not alter ruling absent "good cause"), and it must be done on notice to the other parties, so that they understand that additional issues will be open for adjudication at trial and may prepare accordingly. As the Second Circuit has noted: Once a district judge issues a partial summary judgment order removing certain claims from a case, the parties have a right to rely on the ruling by forebearing from introducing any evidence or cross-examining witnesses in regard to those claims. If, as allowed by Rule 54(b), the judge subsequently changes the initial ruling and broadens the scope of the trial, the judge must inform the parties and give them an opportunity to present evidence relating to the newly revived issue. Leddy v. Standard Drywall, Inc., 875 F.2d 383, 386 (2d Cir.1989). Defendants' effort to obtain judgment at this stage fails all of these tests. It does not seek to add an issue for trial, but rather seeks dispositive relief, and yet it does so in reliance on evidence that defendants offered at a trial that was expressly not conducted on the issue for which defendants now seek to invoke the evidence. Such an approach would deny plaintiffs notice and an opportunity to shape their trial presentation to meet an issue that they justifiably assumed was already settled. Moreover, defendants have made no showing of need or unfairness to justify their belated effort to snatch victory from the jaws of defeat. As noted, the evidence on which they rely was exclusively in their hands and knowledge at all times until the eve of trial, and they have not even attempted to explain their failure to produce it in a timely fashion. Moreover, even after their asserted belated discovery of the information shortly before trial, they did not then move for reconsideration of the court's summary judgment ruling or to expand the list of issues for trial. Indeed, they did not unveil their theory until the filing of their post-trial motion papers. In short, simply as a matter of procedural regularity and fairness, their motion must be rejected. Finally, and most importantly, even if we were to ignore the foregoing considerations, the result would be the same since defendants' substantive argument is entirely meritless. As noted, the evidentiary record before the court on summary judgment contained no evidence that the RCAG plan had been terminated prior to the departure of plaintiffs in May 1988. The trial record is entirely consistent with the court's prior finding to this effect. In seeking to challenge this conclusion, defendants point only to the fact that on June 28, 1988, well after all of the plaintiffs had been fired, the MCIC Board of Directors approved a consent that authorized the extension *884 of the MCIC severance plan to all RCAG employees, effective retroactively at the closing. This additional information cannot change the original finding that defendants did not eliminate the RCAG plan prior to plaintiffs' termination. The underlying assumptions of defendants' argument are that an employer can retroactively reduce or eliminate its already-terminated employees' severance benefits and that the MCIC consent was intended to accomplish this end. Again, defendants' analysis misses the mark. With regard to intent, defendants' proffered evidence, in the form of the document itself and the explanatory testimony of corporate counsel at trial, does not demonstrate that the consent was intended to terminate the RCAG severance plan. Indeed, according to defendants' own witness the purpose was simply "to allow any non-collective bargained employees of RCAG who might remain employed by RCAG to participate in the MCI Communications Corporation severance pay plan after the acquisition and to count their prior service with RCAG for the plan for purposes of calculating their benefit." (Tr. 975-76). In short, the consent was apparently intended to ensure continued coverage of any individuals who still remained as RCAG employees. (See also Tr. 977, 979 (noting MCIC concern that payment of MCIC benefits to non-participants would violate ERISA)). Plaintiffs, of course, did not remain, having long since been fired. In addition, whatever the intent of the Board, the consent did not purport either to terminate the RCAG plan or to apply the MCIC plan to RCAG. All that it did was to authorize the subsidiary to apply that plan, and the record is devoid of evidence as to whether RCAG ever adopted that plan. In any event, even if we assumed that this evidence conclusively demonstrated that in late-June 1988 the MCIC Board of Directors acted to terminate the RCAG plan retroactively, such an effort would obviously be ineffective to divest the former employees of RCAG of their right to severance benefits under the RCAG plan. It is common ground that an employer is ordinarily free to alter or eliminate an employee welfare benefits plan at any time, absent a provision in the plan guaranteeing against such an eventuality. See, e.g., Deibler v. United Food & Commercial Workers' Local Union 23, 973 F.2d 206, 210 (3d Cir.1992); Reichelt v. Emhart Corp., 921 F.2d 425, 430 (2d Cir.1990), cert. denied, 501 U.S. 1231, 111 S.Ct. 2854, 115 L.Ed.2d 1022 (1991); Ryan v. Chromalloy American Corp., 877 F.2d 598, 603 (7th Cir.1989). Nonetheless, once a triggering event occurs that entitles the employee to a specified benefit, the employer is contractually and statutorily obligated to provide that benefit and may not retrospectively amend the plan to divest the plan participant of a payment that he was already entitled to receive. Indeed, to conclude otherwise would entirely undermine the obligations imposed by ERISA upon a sponsor of a non-vesting benefit plan, since the employer could then ignore the requirements of the plan and, when sued, simply amend or terminate the plan retroactive to a date preceding the aggrieved participant's eligibility for benefits. Not surprisingly, the courts have consistently held that an employer may not deny a benefit already earned, whether under a vested or a non-vested plan. See, e.g., Wulf v. Quantum Chemical Corp., 26 F.3d 1368, 1378 (6th Cir.1994), petition for cert. filed, No. 94-750 (Oct. 25, 1994); Pratt v. Petroleum Prod. Mgt., Inc. Employee Sav. Plan & Trust, 920 F.2d 651, 661 (10th Cir.1990); Adams v. General Tire & Rubber Co., 794 F.2d 164, 166-67 (4th Cir.1986); Harm v. Bay Area Pipe Trades Pension Plan Trust Fund, 701 F.2d 1301, 1305-06 (9th Cir.1983); Kemmerer v. ICI Americas, Inc., 842 F.Supp. 138, 142-46 (E.D.Pa.1994); Edward W. Sparrow Hosp. Ass'n, Inc. v. Industrial Welding, Inc., 1990 WL 599020, at *7, 1990 U.S. Dist. LEXIS 9194, at *20 (W.D.Mich. 1990). See also New York State Teamsters Conf. Pension & Retirement Fund v. Hoh, 561 F.Supp. 679, 684 n. 8 (N.D.N.Y.1982) (citing cases). As one court has noted: "allowing [the employer] to unilaterally terminate Plan benefits retroactively renders the Plan illusory. Carried to an extreme, [the employer] could terminate benefits for claims already incurred and paid out. Although ... [the employer] properly reserved the right to amend its Plan, including the right to terminate benefits, this right does not encompass *885 claims that have already been incurred." Edward W. Sparrow Hosp. Ass'n, Inc. v. Industrial Welding, Inc., 1990 WL 599020, at *7, 1990 U.S.Dist. LEXIS at *20.[2] In this case plaintiffs' entitlement to a lump-sum payment under the RCAG plan accrued at their termination in May 1988. Necessarily, then, the June 28, 1988 consent approved by the MCIC Board could not divest them of that entitlement, and hence defendants' argument for judgment based on that consent is legally insupportable.[3]
2. The Standard of Review of the Administrator's Denial of Benefits
Defendants also seek judgment as a matter of law on the theory that the decision to deny benefits under the RCAG plan should be subjected to a deferential standard of review. This issue was previously raised by defendants in connection with the court's rulings on their requests to charge, and at that time the court rejected defendants' argument. (Tr. 1165-70). Having reviewed defendants' motion papers, I conclude that the argument has not improved with repetition. The Supreme Court held in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), that "a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Id. at 115, 109 S.Ct. at 956-57. Thus we must look to the terms of the plan to determine whether and in what circumstances the plan administrator is given such discretionary authority. See, e.g., Masella v. Blue Cross & Blue Shield of Connecticut, 936 F.2d 98, 103 (2d Cir.1991). In doing so, we bear in mind the admonition that "discretion is not an all-or-nothing proposition. A plan can give an administrator discretion with respect to some decisions, but not others.... A plan administrator has exactly the amount and type of discretion granted by the plan, no more and no less." Wulf v. Quantum Chemical Corp., 26 F.3d at 1373 (quoting Anderson v. Great West Life Assur. Co., 942 F.2d 392, 395 (6th Cir.1991) (emphasis in original)). See also Kirwan v. Marriott Corp., 10 F.3d 784, 788-89 (11th Cir.1994). In this case the RCAG Summary Plan Description contains no provision purporting to invest the plan administrator with any discretion. (Pl. Exh. 1). The only provision cited by defendants is found in the so-called "Procedure" for the plan, which simply provides, under the heading "Responsibility and Administration", that "[t]he Vice President, Employee Relations, or his designee, will render any interpretation of this Policy that may be required." (Pl. Exh. 2 at p. 4). It could well be argued that this language does not sufficiently articulate a grant of discretion to invoke deferential review in any respect. See, e.g., Rovira v. AT & T, 817 F.Supp. 1062, 1068 (S.D.N.Y.1993) (ambiguities resolved against plan administrator); Clark v. Bank of New York, 801 F.Supp. 1182, 1189 (S.D.N.Y.1992) (defendant's burden *886 to show that it has discretionary authority); Arthurs v. Metropolitan Life Ins. Co., 760 F.Supp. 1095, 1098 (S.D.N.Y.1991). See generally Masella v. Blue Cross & Blue Shield of Connecticut, 936 F.2d at 103 (comparing different formulations of authority assigned to plan administrator). We need not address that question, however, since the plan, even if generously interpreted in defendants' favor, does not grant the plan administrator or his designee the type of discretion that would cover the decision actually rendered on plaintiffs' applications for benefits.[4] By its own terms, the quoted provision gives the RCAG Vice-President discretion, if at all, only to interpret the plan. It does not purport to give the RCAG Vice-President any separate grant of discretion to determine eligibility for benefits. Compare, e.g., Gillis v. Hoechst Celanese Corp., 4 F.3d 1137, 1141 (3d Cir.1993), cert. denied, ___ U.S. ___ & ___, 114 S.Ct. 1369 & 1540, 128 L.Ed.2d 46 & 192 (1994); Miller v. United Welfare Fund, 851 F.Supp. 71, 74 (E.D.N.Y.1994); Zisel v. Prudential Insur. Co. of America, 845 F.Supp. 949, 951 (E.D.N.Y.1994). Thus, that provision, whatever its legal significance, is not triggered here. RCAG advised plaintiffs through their counsel that benefits were being denied because the plan had been terminated. (Pl's Exh. 43). This conclusion did not rest on the administrator's interpretation of any provisions of the plan; indeed, the plan contained no provisions governing the method of its termination or modification. Rather, the question of whether the plan had been terminated turns on an analysis of caselaw interpreting ERISA and principles of corporate law (see Algie v. RCA Global Communications, Inc., 1994 WL 132358, at *20-24), and that is not an exercise that is committed by the plan to the discretion of the plan administrator. Since the RCAG plan administrator did not exercise any discretion that he may have had when he denied plaintiffs their severance benefits, it follows that his decision is not entitled to deference. See, e.g., Kinek v. Gulf & Western, Inc., 720 F.Supp. 275, 281-82 (S.D.N.Y.1989), aff'd sub nom. Kinek v. Paramount Communications, Inc., 22 F.3d 503 (2d Cir.1994). Hence, insofar as defendants' Rule 50(a) motion is premised on the notion that such deference is owed, the motion is denied.
B. Defendants' Motion for a New Trial
Defendants alternatively seek a new trial, citing three asserted errors in the court's charge. This argument is in part unpreserved and in any event groundless. Defendants first complain because, they say, the court did not incorporate two of their proposed charges governing the formation of the employment relationship. One of these requests (no. 17), entitled "Employment Status After Acquisition Partial Performance", summarized a variety of assertedly relevant considerations in evaluating whether plaintiffs were employed by RCAG or by MCII immediately after the stock sale of RCAG, including particularly "whether one party has partially performed [an employment agreement] and that performance has been accepted by the other party." (See Defs.' Request to Charge at 23). The proposed instruction mentioned other factors as well (id. at 23-24), but gave particular prominence to the notion that "partial performance is an unmistakable signal that" the performing party believes that there is a contract between the parties and that acceptance of performance indicates that both sides recognize such a contractual relationship. (Id. at 23). The second cited request on this general topic (no. 18) was entitled "Employment Status After Acquisition Automatic Employment Upon Stock Sale". (Id. at 25). It would have instructed that, upon a stock sale, "the employees of the company which is sold can automatically become employees of the purchasing company." In explanation, the proposed instruction said, in substance, that *887 no written offer of employment was required and that "employment by the purchasing company may be inferred." Finally, it reiterated that "you may find from the evidence that the Plaintiffs became MCII employees immediately upon acquisition, whether or not Plaintiffs received written employment offers in the form of letters or contracts." (Id.) Defendants' complaint about the first of these two charges fails on both procedural and substantive grounds. After receipt of both sides' requests to charge, the court prepared a written draft charge and supplied it to counsel the day before the charge conference. (Tr. 989-90, 1088-89, 1096). At the charge conference, the court entertained all objections and requests for modification of the charge. (Tr. 1096-1164). During the course of that colloquy defendants' counsel did not refer to or suggest any problems relevant to request no. 17. At the conclusion of the colloquy, defense counsel sought to invoke "a continuing exception" for any requested charge not specifically incorporated by the court. (Tr. 1164). In response the court advised that if counsel had any requests that she believed had not been satisfied, she should specify them so that the court could determine whether it had inadvertently omitted an instruction or whether defendants' version of a requested charge was preferable. (Tr. 1164). Counsel then cited four specific proposed instructions (Tr. 1164-65), but never mentioned request no. 17 specifically or in substance. (Tr. 1172). Similarly, after the charge was given, although both sides were afforded the opportunity to voice any objections, defendants never mentioned this request. (Tr. 1271). If a party does not object specifically to a charge that is given or to the failure to give a requested charge, as required by Fed. R.Civ.P. 51, he is generally deemed to have waived the point, and such waiver is forgiven only if the charge as given constituted "plain error". See, e.g., Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993) (citing cases). In this case the charge as given did not constitute error, whether plain or otherwise. Indeed, the court instructed the jury in accordance with the substance of defendants' request no. 17, but without the unbalanced language found in the requested charge. As explained by defendants, request no. 17 was designed to acknowledge defendants' contention that the jury could infer that the payment by MCII of substantial benefits to plaintiffs and plaintiffs' acceptance of those payments demonstrated the existence of an employment relationship with MCII. The court accepted this principle and so instructed the jury. Thus, after telling the jury that an employment relationship did not need to be embodied in a writing and did not depend upon any specific exchange of words between the employee and the putative employer, the court advised that such a relationship "may be inferred from less specific words and may also be inferred from a combination of words and actions of the would-be employer and employee." (Tr. 1250). In explanation, the court went on to state: In assessing this question, you may take into account ... all of the statements and actions of the defendants prior to the closing that were made known to the plaintiff, as well as any statements and actions by [the] plaintiff prior to the closing. You may also take into account any subsequent statement and conduct by the parties that sheds light on whether MCI International offered the plaintiff employment and whether plaintiff's reporting for work after the closing and his acceptance of monies and benefits from MCI International amounted to acceptance by him of an offer to work for MCI International instead of RCA Global. (Tr. 1251). This instruction, a portion of which was suggested by defendants during the charge conference (Tr. 1137-39), explicitly embodies the heart of defendants' request no. 17, and gave defendants an ample basis to argue to the jury, as they did, that plaintiffs' pre-closing signing of MCIC benefit enrollment cards and their receipt of various benefits from MCII after the closing demonstrated an offer and acceptance of employment. (Tr. 1188-90). A party is not entitled to a charge in the precise words of its request. See, e.g., Riverwoods Chappaqua Corp. v. Marine *888 Midland Bank, 30 F.3d 339, 346 (2d Cir. 1994). See also 1 Edward J. Devitt, Charles B. Blackmar, Michael A. Wolff, and Kevin F. O'Malley, Federal Jury Practice & Instructions § 7.02 at 211 (1992). In this case defendants received the substance of their request, and the court properly exercised its discretion not to use the wording that defendants had formulated, which implied that the payment of benefits by MCII was virtually dispositive of the employment question, and instead chose to give a more balanced charge, which invited the jury in general terms to consider all of the pertinent factors, including the payment and receipt of benefits, without suggesting that any one was necessarily controlling. As for proposed charge no. 18, in substance it advised the jury that the formation of an employment relationship does not require a writing. (Defs.' Requests to Charge at 25). To that extent, as we have seen, the charge was given very explicitly. (Tr. 1247-50) (repeatedly stating employment agreement need not be in writing and may be implied from words and actions). The court altered the charge only in one respect, by omitting the statement that an employment relationship may arise "automatically" following the stock purchase of the prior employing corporation. This aspect of the requested charge was both confusing and misleading. It was confusing because it did not indicate in what circumstances a change of employment status would occur "automatically" after a stock purchase. It was misleading in that it implied that a new employment relation would occur automatically upon such a stock purchase, that is, without any actions by either the employee or the purchaser that would suggest some form of implicit employment agreement. This is a reiteration of one of the legal theories pressed by defendants on their summary judgment motion and rejected by the court because it is inconsistent with the presumed independence of a parent and subsidiary. (See Algie v. RCA Global Communication, Inc., 1994 WL 132358 at *25-27).[5] In sum, request no. 18 was given in substance, and was modified only to avoid the insinuation of a legally erroneous theory. Defendants have no legitimate complaint about this result. Defendants' last argument for a new trial involves the failure of the court to give their proposed request no. 19. This charge in substance would have instructed the jurors that if, after the closing, MCII controlled the employment practices of RCAG or operated RCAG and MCII "as one corporation", "you may find that RCAG employees, including Plaintiffs, became MCII employees upon the acquisition...." (Defs.' Requests to Charge at 26). Again, defendants failed to object to the omission of this charge, and therefore the objection is waived absent a showing of plain error. In any event, the refusal to give this instruction was proper and hardly plain error. In substance defendants sought to disclaim a corporate responsibility of the subsidiary by using an alter-ego or veil-piercing theory. This effort by defendants to use their claimed disregard of corporate independence in order to benefit themselves is unsupported by case law and contrary to the underlying rationale for the alter-ego and veil-piercing doctrines. The corporate form is a fiction that is recognized to protect the shareholders from being exposed to the risk of personal liability for the obligations of the corporation. This rule is given legal effect as a means of encouraging corporate investment by minimizing the investor's risk. See, e.g., Labadie Coal Co. v. Black, 672 F.2d 92, 96 (D.C.Cir. 1982); Hackney & Benson, Shareholder Liability for Inadequate Capital, 43 U.Pitt.L.Rev. 837, 872 (1983). By the same token, the benefit of insulation from corporate liability is granted only on condition that *889 the shareholders of the corporation maintain the formalities of corporate form and independence, and if they fail to do so, they risk the loss of their insulation from obligations of the corporation. See, e.g., William Wrigley Jr. Co. v. Waters, 890 F.2d 594, 600-01 (2d Cir.1989); American Protein Corp. v. AB Volvo, 844 F.2d 56, 60 (2d Cir.), cert. denied, 488 U.S. 852, 109 S.Ct. 136, 102 L.Ed.2d 109 (1988). When viewed in this context, we can readily understand why alter-ego and veil-piercing theories have been invoked to benefit those parties seeking to impose liability on the corporation or its shareholders. The one case cited by defendants as legal authority for their requested charge, Johnson v. Flowers Industs., Inc., 814 F.2d 978 (4th Cir. 1987), illustrates this point. In Johnson the plaintiffs sued their employer, its parent corporation and another subsidiary of the parent for age discrimination. The immediate issue was whether, in seeking to demonstrate discrimination in their termination, the plaintiffs could use data reflecting hiring decisions by the other subsidiary. To do so, plaintiffs were required to demonstrate that the parent, which concededly controlled the plaintiffs' employer, also controlled the employment decisions of the other subsidiary. The circuit court affirmed the dismissal of the complaint because the plaintiffs had failed to demonstrate such control. Id. at 979-82. As in Johnson, other courts employing this form of alter-ego analysis in employment discrimination and related types of cases have consistently applied it as a means to uphold or extend corporate liability. See, e.g., Armbruster v. Quinn, 711 F.2d 1332, 1335-39 (6th Cir.1983); Weinreich v. Sandhaus, 850 F.Supp. 1169, 1178-79, amended in part, 156 F.R.D. 60 (S.D.N.Y.1994); United States v. Nagelberg, 772 F.Supp. 120, 124 (E.D.N.Y. 1991). In contrast, defendants' proposed instruction would reverse the thrust and rationale of the alter-ego and corporate-veil-piercing principles. In substance, both RCAG and MCII would benefit if they ignored corporate formalities, and their non-compliance with corporate law requirements would deprive the plaintiffs of the benefits to which they would otherwise be entitled. This perverse use of these doctrines is unprecedented, and, given the reason for those rules, the lack of precedent is scarcely surprising. Indeed, one of the cases cited by defendants makes it plain that this theory is not legally tenable. Thus, in Esmark, Inc. v. N.L.R.B., 887 F.2d 739 (7th Cir.1989), the circuit court observed that "the accepted rule is that the corporate veil will only be pierced to protect the interests of third parties; the separate corporate entity will not be disregarded to allow the corporation to escape its obligations." Id. at 751. Defendants' proposed jury charge on corporate control fails for still another reason as well. The plaintiffs were all given their termination notices and told to leave the premises within one to three days after the closing. Whatever evidence may be found in the record relating to possible control of RCAG by any of the other MCI corporate entities such as the failure over time to appoint an RCAG Board of Directors or MCIC's dealings with the union representing RCAG's unionized employees involves a longer and later time period. Moreover, the fact that MCII personnel may have been involved in the pre-closing decision as to which RCAG employees would be retained as MCII workers does not demonstrate or even suggest that MCII formed an employment relationship with those RCAG personnel who were not selected for retention. In sum, defendants' request no. 19 was unsupported by the law and inconsistent with the trial evidence. Accordingly, its rejection by the court does not warrant a new trial.
II. Plaintiffs' Application for Fees and Pre-Judgment Interest
In the wake of their success at trial, plaintiffs have moved for an award of fees and costs and also seek pre-judgment interest calculated at an annual rate of nine percent. I address each of these applications separately.
A. Fees and Costs
In authorizing civil suits by plan participants, ERISA grants to the district court the discretion to award fees and costs. Specifically, it states: *890 In any action under this subchapter (other than an action described in paragraph (2)) by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney's fee and costs of action to either party. 29 U.S.C. § 1132(g)(1).[6] Although the statute gives the court some discretion as to whether to award fees and costs and to whom, the Second Circuit has noted that "ERISA's attorney's fee provisions must be liberally construed to protect the statutory purpose of vindicating retirement rights...." Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d 869, 872 (2d Cir.1987), cert. denied, 496 U.S. 905, 110 S.Ct. 2587, 110 L.Ed.2d 268 (1990). To channel the exercise of the trial court's discretion, the Circuit Court has generally limited awards to a prevailing party, even though the statute does not so provide, see, e.g., Weil v. Retirement Plan Admin. Committee of Terson Co., 913 F.2d 1045, 1052 (2d Cir.1990) (citing cases), vacated in part on other gds., 933 F.2d 106 (2d Cir.1991), and has adopted a five-part test to govern the assessment of eligibility for such an award. See, e.g., Mendez v. Teachers Ins. & Annuity Ass'n, 982 F.2d 783, 788 (2d Cir.1992). These factors include the following: (1) the degree of the offending party's culpability or bad faith, (2) the ability of the offending party to satisfy an award of attorney's fees, (3) whether an award of fees would deter other persons from acting similarly under like circumstances, (4) the relative merits of the parties' positions, and (5) whether the action conferred a common benefit on a group of pension plan participants. Id. at 788 (quoting Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d at 871). My assessment of the relevant concerns in this case leads to the conclusion that an award of fees is appropriate. At the outset, it is plain that plaintiffs are the prevailing parties. Although this may seem self-evident, defendants make an effort to argue to the contrary, observing that during the course of the litigation plaintiffs asserted as many as six claims and ultimately prevailed on only one. This approach is inconsistent with governing law. The minimum requirement for a fee award is that the plaintiff have obtained some relief under ERISA. See, e.g., Weil v. Retirement Plan Admin. Committee of Terson Co., 913 F.2d at 1052; Fase v. Seafarers Welfare & Pension Plan, 589 F.2d 112, 116 (2d Cir.1978). Plaintiffs have obviously satisfied that requirement since they have vindicated their central contention in this case, that they were entitled to be paid severance benefits in accordance with the RCAG severance plan. Although they have advanced a variety of legal claims in this case, all were related to the denial of those benefits by the defendants, and thus whether they prevailed on some or all of their theories is inconsequential for the question of fee entitlement.[7] If a plaintiff prevails on his principal claim he is the prevailing party, particularly in view of "the statutory purpose of vindicating retirement rights...." Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d at 872. Cf. Farrar v. Hobby, ___ U.S. ___, ___, 113 S.Ct. 566, 573, 121 L.Ed.2d 494 (1993) (plaintiff who receives nominal damages is "prevailing party" under 42 U.S.C. § 1988). As for the "five-factor test", New York State Teamsters Council Health & Hosp. Fund v. Estate of DePerno, 18 F.3d 179, 183 (2d Cir.1994), the first criterion turns on "the degree of the offending party's culpability or bad faith." Mendez v. Teachers Ins. & Annuity Fund, 982 F.2d at 788. In view of the disjunctive wording of this phrase, it is apparent that the plaintiffs need not prove bad faith or malicious intent to *891 satisfy it. As recently summarized by the Third Circuit: [a] losing party may be culpable ... without having acted with an ulterior motive. In a civil context, culpable conduct is commonly understood to mean conduct that is "blameable; censurable; ... at fault; involving the breach of a legal duty or the commission of a fault.... Such conduct normally involves something more than simple negligence.... [It] implies that the act or conduct spoken of is reprehensible or wrong, but not that it involves malice or a guilty purpose." McPherson v. Employees' Pension Plan of American Re-Insurance Co., 33 F.3d 253, 256-57 (3d Cir.1994). If we look at defendants' conduct both at the time of the denial of benefits and during the litigation, it is difficult to find them guilty of bad faith. Nonetheless, their record is not entirely free from legitimate criticism. Among other things, plaintiffs accuse defendants of corporate immorality, or at least ingratitude, because they chose, as part of the corporate takeover of RCAG, not only to abruptly terminate numerous employees who had worked for the company for many decades, but to deprive them of a portion of the severance benefits to which they would otherwise have been entitled. This does not amount to the type of bad faith or culpability envisaged in the first of the attorney-fee criteria. There is little doubt that if defendants in fact wanted to minimize the amount of severance benefits payable to plaintiffs, they could have done so through proper procedures. Their failure in this respect may be attributable to an inattention to detail, most notably the failure to amend or eliminate the RCAG plan before the termination, and the accompanying haste to get rid of the 100 or so RCAG employees who were not offered jobs with MCII. Whatever one may think about the wisdom or morality of the 1980s trend to corporate acquisitions and accompanying mass layoffs of which the events in this case are but one small example such decisions are beyond the reach of ERISA.[8] The only pertinent concern for us is whether the decision by the plan administrator to deny benefits to plaintiffs once they applied, and the defendants' persistence in that decision throughout the course of the litigation, smack of bad faith or culpability. The initial corporate decision to deny benefits has not been shown to reflect anything other than the honest, if mistaken, assumption by corporate officials that the RCAG plan had in fact been terminated. Moreover, in fairness, we must note that after the acquisition plaintiffs were paid significant benefits under a variety of plans that applied to MCII employees, a fact strongly suggesting that MCIC and MCII assumed that plaintiffs had been, at least for a few days, employees of MCII and thus entitled to MCIC benefits by virtue of that status. This conduct alone is simply insufficient to weight the first criterion in favor of fees. Plaintiffs also cite, as relevant to the first criterion, the subsequent behavior of defendants, who continued to refuse to make the requested payments while repeatedly changing their stated grounds for this decision. This complaint has some basis. In their response to plaintiffs' letter claims for benefits, defendants appeared to concede that plaintiffs had remained RCAG employees until May 30, 1988, but asserted that the RCAG plan had been terminated as of the closing, two weeks earlier. Once defendants were alerted to the fact that some of the former RCAG plaintiffs were pressing a demand for RCAG benefits, however, they were surely under an obligation to consider carefully whether that plan had in fact been terminated. Yet in response to plaintiffs' written request under 29 U.S.C. § 1024 for any documents by which the termination had been accomplished, defendants produced nothing. Moreover, the last CEO of RCAG, Mr. Valerian Podmolik, testified in deposition that the plan had not been terminated as of *892 the closing, a fact that defendants could presumably have discovered for themselves. Defendants persisted in this position during the litigation but varied their theory as to how the termination had occurred. Thus, at one point they cited a January 1988 resolution of the RCAG Board, which plainly terminated RCAG's participation in other plans but did not refer to the severance plan. At other times they invoked the closing documents, which also did not address the matter in any respect. Alternatively, they cited the December 1987 orientation meetings held by MCI officials with RCAG employees concerning the coverage that they would receive as MCII employees, even though defendants themselves argued that MCII had no authority at that time to make corporate decisions for RCAG.[9] Ultimately, on summary judgment it became apparent that defendants had no evidentiary basis for their various assertions as to how the RCAG plan had been terminated, and accordingly partial summary judgment was granted for plaintiffs on this issue. This persistence in pressing varying explanations for an event that defendants ultimately could not document is plainly relevant to culpability. The other significant inconsistency in defendants' position was their about-face on whether plaintiffs were still RCAG employees when terminated. As noted, defendants originally so represented when responding to claim letters from plaintiffs' counsel. Subsequently, however, in the course of this litigation they reversed field and, perhaps sensing the problems with their shifting explanation of the purported termination of the RCAG plan, began to argue that plaintiffs had automatically become MCII employees as of the closing. Ultimately the court rejected this theory of an automatic switch of employers based simply on a stock purchase (see Algie v. RCA Global Communication, Inc., 1994 WL 132358, at *26), but sent the employment issue to trial based on the existence of disputed factual questions as to the relevant circumstances. These alternative and shifting theories were presumably a reflection of able and creative counsel doing their job in representing defendants in this lawsuit, and defense counsel cannot be criticized for these efforts. Nonetheless, we must remember that defendants are charged with responsibilities of a fiduciary nature in regard to plans that they have created and administer, and it is fair to construe the "culpability" test as implicitly recognizing those responsibilities when assessing the defendants' conduct, even in the lawsuit. On that basis I conclude that, viewed in context, defendants' conduct in this matter was, at least to some modest degree, culpable and that the first criterion thus weighs slightly in favor of a fee award.[10] The second fee criterion is the defendants' ability to satisfy a fee award. Defendants concede that this test is met here. The third criterion looks to whether an award would tend to deter others from engaging *893 in similar behavior. This concern is presumably most relevant when a defendant has engaged in misconduct, but it can surely be applied even when the defendant does not act in bad faith. See, e.g., McPherson v. Employees Pension Plan of American ReInsurance Co., 33 F.3d at 258. Moreover, we may consider the potential deterrent effect on all employers, not just the defendants. See, e.g., Pagovich v. Moskowitz, 865 F.Supp. 130, 139 (S.D.N.Y.1994); Engineers Joint Welfare Funds v. B.B.L. Constructors, Inc., 825 F.Supp. 13, 18 (N.D.N.Y.1993). It is certainly true, as defendants contend, that this case involves an unusual fact pattern, but that does not speak to whether a fee award would deter undesirable behavior by other employers that bears at least some relationship to the events here. The conduct of the defendants that we have found somewhat culpable includes a fairly cavalier and even careless approach to assessing the status of an acquired company's welfare benefits plan, a problem that may have resulted in part from a failure to include in the plan a provision defining the mechanism for its modification, as required by ERISA. The undesirable conduct also involves a failure to assess clearly at an early stage whether there was an adequate justification for denying a request for benefits and, if so, what that justification was. These types of failings appear not to be uncommon in ERISA cases, and a fee award would presumably act as at least a modest deterrent to future failings of this type. The fourth criterion looks to the relative merits of the parties' respective positions. Defendants' basic position in the lawsuit that plaintiffs became MCII employees at the time of the closing was, at least in one guise, not legally or factually frivolous, but that is not tantamount to a demonstration that the parties' positions were evenly balanced. Defendants resisted an award of benefits either (1) because the RCAG plan had been terminated as of the closing or (2) because plaintiffs had become MCII employees just after the closing. Defendants' first contention was demonstrated to be so factually unsupported that it could be rejected as a matter of summary judgment. Defendants' second contention, insofar as it rested on the assumption that a stock purchase automatically converts the purchased corporation's employees into employees of the purchasing corporation, was also legally untenable. As for the other version of this theory, that under all of the circumstances plaintiffs had become MCII employees, it was sufficiently factually grounded to force a trial, but the evidence at trial certainly supported the jury's conclusion that plaintiffs had, as defendants originally conceded, remained RCAG employees until their termination. In sum, plaintiffs' basic position in this litigation that they were entitled to severance benefits measured by the RCAG rather than the MCII plan was supported by the law and the evidence.[11] Accordingly, the fourth factor also supports an award of fees. The last criterion asks whether the lawsuit conferred a common benefit on a group. That is surely the case here, for two reasons. First, we must remember that this case involved twenty-three former employees of RCAG, all of whom had been denied the more generous severance benefits of the RCAG plan. That all of these individuals were parties to the lawsuit does not undercut the fact that the benefits of the suit flow to a substantial number of similarly situated individuals. To rule otherwise would surely exalt form over substance, since the logic of such a position would suggest that if only one of the plaintiffs had litigated the issue here, and the rest had filed separate lawsuits that were stayed to await the result in this one, fees would be appropriate. Such a distinction cannot be justified by any articulable policy, and indeed it runs counter to the policy, embodied in Fed.R.Civ.P. 20, of encouraging the joinder as plaintiffs of persons with the same or related claims. Second, the plaintiffs in this case have sought to resolve a number of legal issues *894 that are potentially significant in other ERISA controversies. This factor is relevant to the "common benefit" concern. See, e.g., Continental Assur. Co. v. Cedar Rapids Pediatric Clinic, 957 F.2d 588, 594 (8th Cir. 1992); Plumbers & Steamfitters Local 150 v. Vertex Constr. Co., 932 F.2d 1443, 1453 (11th Cir.1991); Armistead v. Vernitron Corp., 944 F.2d 1287, 1301 (6th Cir.1991); Anita Foundations, Inc. v. ILGWU Nat'l Retirement Fund, 718 F.Supp. 244, 246 (S.D.N.Y.1989), aff'd, 902 F.2d 185 (2d Cir.1990). The issues of general significance included questions relating to whether the plan must contain provisions specifying a procedure for modification and the effect of a failure to include such procedures; what degree of formality must attend the termination of a welfare benefits plan; whether deference is owed to an administrator's denial of benefits when his articulated reasons do not come within the scope of explicitly granted discretion under the plan; whether a plan participant is barred from recovery of benefits as a matter of collateral estoppel because other, similarly situated plan participants have lost in a separate suit on similar facts and related legal theories; and whether a claim for a lumpsum payment of benefits is triable to a jury at the plaintiff's request. In sum, all five criteria lend at least modest support to plaintiffs' demand for an award of fees, and most of them strongly support that request. The application is therefore granted, and I now turn to the amount of the award. Plaintiffs seek an award of $592,292.00 in fees and $53,730.37 in expenses. The fees are said to represent over 2,500 hours of work by six attorneys at current hourly rates ranging from $150.00 to $300.00, more than 68 hours of work by a summer associate at $75.00 per hour, and more than 244 hours of labor by three paralegals whose time is billed at $65.00 per hour. (See Affirmation of John C. Lankenau, Esq., executed Aug. 9, 1994, at ¶ 7 & Exh. A; Reply Affirmation of John C. Lankenau, Esq., executed Sept. 26, 1994, at ¶ 29 & n.* & Exh. S). As for the listed expenses, plaintiffs represent that $7,704.50 of the total constitutes taxable costs under Fed.R.Civ.P. 54(d)(1) and S.D.N.Y. Civil Rule 11. (Lankenau Aff. at ¶ 13.) We start with certain basic precepts that govern the measurement of fee awards generally and have been applied to ERISA. The ordinary process for determining an award of fees involves calculation of the so-called "lodestar" figure. See, e.g., Blanchard v. Bergeron, 489 U.S. 87, 94, 109 S.Ct. 939, 944-45, 103 L.Ed.2d 67 (1989); Hensley v. Eckerhart, 461 U.S. 424, 433-34, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40 (1983). "Under this approach, the number of hours reasonably expended on the litigation is multiplied by a reasonable hourly rate for attorneys and paraprofessionals." Grant v. Martinez, 973 F.2d 96, 99 (2d Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 978, 122 L.Ed.2d 132 (1993). Accord, e.g., Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir.1992). To determine the number of hours that are properly compensable, the court must initially look to the amount of time spent on each category of tasks, as documented by contemporaneous time records of the moving party's attorneys. See, e.g., T.E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 528 (2d Cir.), cert. denied, 498 U.S. 846, 111 S.Ct. 132, 112 L.Ed.2d 100 (1990); Miele v. New York State Teamsters Conf. Pension & Retirement Fund, 831 F.2d 407, 408 (2d Cir.1987). The court must then determine how much of that time was "reasonably" spent. "In calculating the number of `reasonable hours,' the court looks to `its own familiarity with the case and its experience with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties.'" Clarke v. Frank, 960 F.2d at 1153 (quoting DiFilippo v. Morizio, 759 F.2d 231, 234 (2d Cir.1985)). If the court concludes that portions of the expended time were not reasonably necessary to achieve the successful result obtained by the movant, it should reduce the time for which compensation is awarded. See, e.g., Hensley v. Eckerhart, 461 U.S. at 434-35, 103 S.Ct. at 1939-40; Clarke v. Frank, 960 F.2d at 1153; Cowan v. Prudential Ins. Co. of America, 935 F.2d 522, 524 (2d Cir.1991). Such reductions are appropriate to account for work on claims unrelated to those on *895 which the movant ultimately prevailed, see, e.g., Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. at 558-61, 106 S.Ct. at 3094-96; Chambless v. Masters, Mates & Pilots Pension Plan, 697 F.Supp. 642, 648 (S.D.N.Y.1988), aff'd in relevant part, 885 F.2d 1053 (2d Cir.1989), cert. denied, 496 U.S. 905, 110 S.Ct. 2587, 110 L.Ed.2d 268 (1990), or for plainly inefficient or duplicative labor. See, e.g., City of Riverside v. Rivera, 477 U.S. 561, 578 n. 9, 106 S.Ct. 2686, 2696 n. 9, 91 L.Ed.2d 466 (1986); Hensley v. Eckerhart, 461 U.S. at 434, 103 S.Ct. at 1939-40; Burr v. Sobol, 748 F.Supp. 97, 101 (S.D.N.Y. 1990). As for the appropriate hourly rates, the court should look to the rates "prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104 S.Ct. 1541, 1547 n. 11, 79 L.Ed.2d 891 (1984); Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d at 1058-59. In meeting this requirement, plaintiff bears the burden of proof, but the court may also take judicial notice of prevailing rates in the community. See, e.g., id. at 1059; Miele v. New York State Teamsters Conf. Pension & Retirement Fund, 831 F.2d at 409. Accord, Blum v. Stenson, 465 U.S. at 896 n. 11, 104 S.Ct. at 1547 n. 11. In making its findings with respect to the proper hourly rate, the court should look to fees charged by attorneys comparably situated to those representing the movant. Thus, if the movant is represented by a small or medium-size firm, the appropriate rates are those typically charged by such firms, whereas a movant may obtain higher compensable rates if represented by a large urban firm, since such firms typically charge more per hour to cover a higher overhead. See, e.g., Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d at 1058-59; Jennette v. City of New York, 800 F.Supp. 1165, 1169 (S.D.N.Y.1992); Williams v. City of New York, 728 F.Supp. 1067, 1071 (S.D.N.Y.1990). We turn first to an assessment of the time claimed by plaintiffs as reimbursable. Defendants are correct in invoking the general proposition that a party should not be awarded compensation for time spent only on claims that were ultimately rejected. If, however, as is often the case, an attorney's labors on a given task are in aid of all his client's claims or at least one on which he prevailed, then compensation is appropriate. See, e.g., Hensley v. Eckerhart, 461 U.S. at 435, 103 S.Ct. at 1940; Grant v. Martinez, 973 F.2d 96, 101 (2d Cir.1992); United States Football League v. National Football League, 887 F.2d 408, 414 (2d Cir.1989), cert. denied, 493 U.S. 1071, 110 S.Ct. 1116, 107 L.Ed.2d 1022 (1990). In this case all of plaintiffs' claims were related in that they arose principally or exclusively from defendants' denial of plaintiffs' request for benefits. The only claim with an arguably distinguishable factual base was the claim for non-disclosure of plan documents in the wake of plaintiffs' termination and coincident with their request for benefits, but that claim apparently required little, if any, independent discovery. Not surprisingly, then, defendants identify no time entries relating to discovery that addressed only claims that ultimately were dismissed. The only basis on which some of the claimed time can be allocated to losing claims involves an examination of entries concerning legal research and briefing of motions addressed to those claims, as well as other related entries that are exclusively related to such claims. In their reply papers, plaintiffs undertake that exercise, and represent that such tasks involved a total of approximately 160 hours of attorney time, or a fee of about $23,600. (See Lankenau Reply Aff. at ¶ 16 & n. * & Exh. A). Having acquired considerable familiarity with this case and with the extent of work reasonably required to present and defend the plaintiffs' various claims, I find plaintiffs' estimates to be quite plausible. There are several additional categories of work that defendants contend should be excluded from our calculations. These include the time devoted to an abortive effort to settle the case, the time spent reviewing depositions conducted in a related litigation initiated by the Equal Employment Opportunity Commission and the time spent in preparing *896 a proposed stipulation of facts that was ultimately never executed. In regard to the settlement efforts, plaintiffs make the reasonable observation that an award of fees would serve the well-recognized policy of encouraging settlement of lawsuits. Indeed, we may fairly assume that the time spent on failed settlement negotiations will be compensable in most cases. This conclusion, however, does not directly answer the question of whether, in this case, the time spent by plaintiffs' counsel on settlement discussions should be rewarded. The problem is not that the discussions failed, but that they apparently foundered principally upon a provision that had been in the agreedupon working draft settlement for months before one plaintiff rejected it, thus precluding agreement. It is not clear whether this reflected a change of mind by that plaintiff or whether plaintiffs' counsel simply failed to consult with him sufficiently early in the process, but in either event both sides devoted substantial time and efforts to finishing a fairly extensive and detailed agreement, only to discover that plaintiffs would not unanimously endorse it. Plaintiffs offer no persuasive reason why this fatal problem could not have been discovered by plaintiffs' counsel early in the process, particularly since the basic terms were agreed to several months before the agreement collapsed, and it would be inequitable to impose the burden of that error on defendants.[12] Thus the time spent on settlement from May 1992, when the escrow provision appears to have been embodied in the working draft (see Lankenau Reply Aff. at Exh. B), until November 1992 are not reimbursable. A review of plaintiffs' time sheets reflects that slightly more than 100 hours of attorney time at an average hourly rate of about $250.00 should be excluded on this basis. Hence the fee claim will be reduced by an additional $25,000.00. The other challenged categories of time are properly compensable. The EEOC case involved the same layoffs that triggered the ERISA lawsuit, and the transcripts from that case were obviously a potential source of admissions by defendants. Moreover, since a number of the plaintiffs in this case had been deposed in the EEOC suit, it was crucial for counsel to review their prior testimony to anticipate likely cross-examination. Although only one of defendants' witnesses was cross-examined at trial on the basis of his prior testimony in the EEOC case, this does not undercut the evident necessity of a full review of the transcripts. Plaintiffs' counsel would have been derelict in their performance if they had not done so, and the time spent on that task is therefore compensable. Equally compensable is the time that counsel spent in preparing proposed stipulations of fact, even though the parties ultimately did not agree on a set of stipulated facts. This point is analogous to our observation that abortive settlement discussions are ordinarily compensable if carried on reasonably and in apparent good faith. The parties are obliged by the rules of the court to attempt to stipulate to as large a body of facts as possible, in the interest of narrowing the trial and minimizing all participants' burden. The record indicates that plaintiffs' counsel prepared a proposed set of stipulations, but the parties were simply unable to reach agreement on them. This does not bespeak either bad faith or unreasonably expended efforts on the part of plaintiffs' counsel, and therefore the time spent on that task is reimbursable. The foregoing adjustments reduce the total fee for attorneys, paralegals and summer associate to $543,692.00. I have also reviewed the time records and submitted affidavits with a view to whether the amounts of time claimed for the remaining tasks seem excessive, as a result of either overstaffing or other inefficiencies. In conducting that review I have borne in mind the representations of plaintiffs' counsel that he has already excluded an additional $19,454.50 in otherwise billable time because it involved work not deemed reasonably billable. (See Lankenau Aff. at ¶ 12). As a further guide I have *897 examined the time records submitted by defendants, which reflect their work on most tasks in the case, but exclude the trial and pretrial preparation. (See Affidavit of Christine H. Purdue, Esq., sworn to Aug. 30, 1994, at ¶ 10 & Exh. 34). Based on my review I conclude that the balance of the time claimed by plaintiffs was reasonably expended. Although the total work time is quite substantialin excess of 2,200 hours it must be emphasized that this lawsuit involved twenty-three plaintiffs; several versions of the original complaint; a large and fairly complex body of relevant facts; extensive discovery efforts by both sides, including multiple rounds of document production, interrogatory answers and responses to requests to admit, and nearly thirty depositions taken in this case and others received from related cases; a motion to dismiss; a very extensive set of cross-motions for summary judgment; motion practice regarding plaintiffs' entitlement to a jury trial; preparation of pre-trial submissions and a seven-day jury trial; and finally an extensive set of post-trial motions by both sides. In sum, even with the benefit of hindsight I cannot find that the balance of the time spent by plaintiffs' attorneys warrants reduction for excessiveness. Defendants offer three remaining challenges to the amount of fees sought. First, they assert that since the fees in question significantly exceed the amount of the benefits to be awarded, the fee total is per se unreasonable and should be reduced. Second, they claim that they are entitled to an offset for the fees that they incurred in most of the pre-trial tasks in which they engaged. Third, they take issue with plaintiffs' reliance on their attorneys' current hourly rates for all work done on this case. None of these arguments warrants extended discussion. The fact that the fees in this case will exceed the principal amount of the benefit award to plaintiffs is of no moment. The courts routinely uphold fees substantially in excess of the damages awarded to the prevailing party. See, e.g., Grant v. Martinez, 973 F.2d at 101 (upholding fee award of $500,000 based on settlement of $60,000); United States Football League v. National Football League, 887 F.2d 408, 413-15 (2d Cir.1989) (affirming antitrust fee award exceeding $5.5 million following treble-damage judgment of $3.00). See also Cruz v. Local Union N. 3 of IBEW, 34 F.3d 1148, 1158-59; Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d at 1055, 1057-60 (affirming award of fee exceeding $415,000.00 following grant of monthly pension payment of $2,689.02). It is true that under 42 U.S.C. § 1988 a plaintiff who obtains only an award of nominal damages, although deemed the prevailing party for the purpose of fee eligibility, will usually receive no fee award, see Farrar v. Hobby, ___ U.S. at ___, 113 S.Ct. at 575, but that is scarcely the case here. Plaintiffs have fully prevailed on their claim for benefits and will therefore be awarded nearly $400,000.00 in principal. Moreover, for reasons to be noted, plaintiffs will also receive an award of prejudgment interest that substantially increases the amount of the judgment in their favor. In short, there is no basis to reduce the fee award in view of the relief that defendants have obtained in this case. Defendants' second argument, for a set-off of fees, is entirely meritless. This argument rests on a misreading of the one case cited by defendants. In Leigh v. Engle, 858 F.2d 361 (7th Cir.1988), cert. denied, 489 U.S. 1078, 109 S.Ct. 1528, 103 L.Ed.2d 833 (1989), the court affirmed an order directing that an ERISA trust reimburse the defendant trustees for their legal expenses in successfully defending against certain breach-of-fiduciary-duty claims. That decision was based on the court's reading of the trust instrument, which apparently required such relief for the trustees. Id. at 368-69. Thus, the court did not award fees against the plaintiffs, but simply authorized reimbursement from the trust pursuant to specific trust provisions. Defendants do not seek such relief here. Rather, they demand an award of fees for work done in this case even though they were not the prevailing parties in any meaningful sense and even though they can point to no authority, contractual or legal, for such *898 an award. As the court observed in Leigh, "an award of fees to a losing defendant certainly would contravene Congress' intent, see 29 U.S.C. § 1110(a)...." 858 F.2d at 369. Thus, defendants' argument for a set-off of fees must be rejected. Defendants' third argument is similarly baseless. Plaintiffs' counsel have been working on this matter since 1988 and have thus had to wait six years for compensation for a very substantial amount of time that they have expended. In such circumstances the "district courts retain latitude in determining how they will compensate prevailing attorneys for delay," Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d at 1060, but one approach explicitly endorsed by the Supreme Court is the use of current fee rates. See, e.g., Missouri v. Jenkins, 491 U.S. 274, 282-84, 109 S.Ct. 2463, 2468-69, 105 L.Ed.2d 229 (1989). Whether this approach is appropriate in a given case will depend upon whether the increase in fee rates during the pendency of the lawsuit significantly outstripped interest rates, in which case the use of current rates would improperly award the prevailing party a windfall. See Huntington Branch, N.A.A.C.P. v. Huntington, N.Y., 961 F.2d 1048, 1049 (2d Cir.1992). In this case plaintiffs offer us a comparison between their fee demand calculated on the basis of historical rates adjusted by the consumer price index and the same demand measured simply by current rates. (See Lankenau Reply Aff. at ¶¶ 25-28). Since the difference in results is very small representing a variance of slightly more than one percent and since even that difference is probably offset by the fact that the inflation adjustment was done only as of the end of each year, it is obvious that this approach will not yield a windfall for plaintiffs. Defendants do not otherwise contest the reasonableness of plaintiffs' counsel's hourly rates. Moreover, based on my knowledge of rates customarily charged in this community for equivalent work by law firms of comparable size and sophistication as Lankenau, Kovner & Kurtz, I find the hourly rates charged by counsel to be reasonable. See, e.g., Beberaggi v. New York City Transit Auth., 1994 WL 48805, at *4 (S.D.N.Y. Feb. 17, 1994); Pierce v. F.R. Tripler & Co., 770 F.Supp. 118, 119-20 (S.D.N.Y.1991), aff'd in relevant part, 955 F.2d 820 (2d Cir.1992). Based on the foregoing analysis, plaintiffs' request for $592,292.00 in fees is reduced by $23,600.00 to account for work on failed claims and by an additional $25,000.00 to account for a portion of the time spent on settlement discussions. In all other respects the fee application is granted. Accordingly, plaintiffs are awarded a total of $543,692.00 in fees. Plaintiffs also seek an expense award of $53,730.37, for which they offer a breakdown by types of expenses. (See Lankenau Aff. at ¶¶ 100-03; Lankenau Reply Aff. at ¶ 30 & Exh. S). Since plaintiffs have been found eligible for a fee award, they are also eligible for reimbursement of their reasonable out-of-pocket expenses associated with this lawsuit,[13] and defendants do not explicitly contest their request. Since I find the amounts incurred to be reasonable under the circumstances, that application is granted as well.
B. Pre-Judgment Interest
The remaining issue concerns plaintiffs' application for an award of pre-judgment interest. Although not referred to by ERISA, the court has discretion to make such an award in this case. See e.g., Katsaros v. Cody, 744 F.2d 270, 281 (2d Cir.), cert. denied, 469 U.S. 1072, 105 S.Ct. 565, 83 *899 L.Ed.2d 506 (1984). See generally Wickham Contracting Co. v. Local Union No. 3, IBEW, 955 F.2d 831, 833-35 (2d Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 394, 121 L.Ed.2d 302 (1992). In view of the long delay in plaintiffs' receipt of benefits that have now been determined to have been due in 1988, such an award is particularly appropriate as a means of ensuring that plaintiffs are made whole and that defendants do not profit by their failure to comply with their ERISA obligations. These concerns are, by themselves, sufficient to justify the award. See, e.g., Quesinberry v. Life Ins. Co. of North America, 987 F.2d 1017, 1030-31 (4th Cir.1993); Cefali v. Buffalo Brass Co., 748 F.Supp. 1011, 1024 (W.D.N.Y.1990). As for the calculation of the award, the interest should commence to run when the claim arose. In this case the claim accrued when plaintiffs were terminated. See, e.g., Ginett v. Computer Task Group, Inc., 962 F.2d 1085, 1101 (2d Cir.1992). Since plaintiffs were paid salary through May 30, 1988, severance was to be paid effective the following day. Accordingly, interest should be calculated on that basis. The parties differ as to the appropriate rate of interest, since there is no explicitly applicable statutory provision. Plaintiffs argue for the nine-percent rate embodied in N.Y.Civ.Prac.Law & R. § 5004, principally because an obligation to pay benefits under a plan is in the nature of a contractual claim. Defendants urge a lower rate, citing the post-judgment interest provision of 28 U.S.C. § 1961. Federal courts that have imposed interest in ERISA cases have disagreed as to whether state or federal law should apply. Compare, e.g., Quesinberry v. Life Ins. Co. of North America, 978 F.2d at 1031 (applying state law); Hansen v. Continental Ins. Co., 940 F.2d 971, 984 (5th Cir.1991) (same), with Connecticut General Life Ins. Co. v. Cole, 821 F.Supp. 193, 203 (S.D.N.Y.1993) (applying section 1961); Cefali v. Buffalo Brass Co., 748 F.Supp. at 1025-26 (same); McLaughlin v. Cohen, 686 F.Supp. 454, 458 (S.D.N.Y.1988) (same). We may fairly infer that the court has some discretion in this matter, guided by the understanding that the aim of the relief awarded is to make the plaintiffs whole, but not to give them a windfall. See generally Kinek v. Paramount Communications, Inc., 22 F.3d 503, 514 (2d Cir.1994) (quoting Wickham Contracting Co. v. Local Union No. 3, IBEW, 955 F.2d at 834). Judged by these concerns, the federal rate is more appropriately used here since it provides a closer approximation of the likely return on plaintiffs' unpaid benefits since 1988. Since interest rates in that period were generally below nine percent, an award under the CPLR provision would overcompensate plaintiffs, a result that we are instructed to avoid. In view of the foregoing, plaintiffs will be awarded prejudgment interest on their award of severance benefits. The interest is to be calculated pursuant to 28 U.S.C. § 1961, and is to run from May 31, 1988.
CONCLUSION For the reasons noted, defendants' motion for judgment as a matter of law is denied, as is their alternative motion for a new trial. Plaintiffs' application for an award of attorney's fees is granted, and they are awarded a total of $543,692.00 in fees and $53,730.37 in litigation expenses. Their application for prejudgment interest is also granted, with interest to run from May 31, 1988 at the rates defined by 28 U.S.C. § 1961. Plaintiffs are to submit a proposed judgment, together with a summary of their calculation of prejudgment interest, within ten days. SO ORDERED. NOTES [1] Defendants also reiterate an argument made on their summary judgment motion and rejected at the time, to the effect that MCIC's pre-closing intention to apply its own benefit plans to all employees within the MCI corporate family had the effect of terminating the RCAG plan as of the closing. This argument was rejected for reasons noted at some length in the court's prior decision, and I reject it here on the same basis. [2] Defendants cite no legal authority for the proposition that accrued benefits can be retroactively denied by the plan administrator. At oral argument, defendants' counsel, when asked for support for this proposition, invoked only Biggers v. Wittek Industs., Inc., 4 F.3d 291 (4th Cir.1993), a decision that neither addresses the retroactivity question nor supports defendants' case in any other respect. Indeed, the principal holding of Biggers is that a welfare benefits plan that does not specify a procedure for amendment cannot be deemed altered to the detriment of the participants absent both a writing and "a clear manifestation of an intent to alter the policy or plan." Id. at 295-96. For reasons noted in the summary judgment decision, defendants' assertion that the RCAG plan was replaced by the MCIC plan prior to plaintiffs' termination is supported by neither a writing nor any clear indication that the RCAG plan was superceded for RCAG employees in plaintiffs' category. Indeed, it bears noting that the evidence concerning the action of the MCIC Board of Directors in June 1988 to which we have previously adverted suggests precisely the contrary. [3] The legal inadequacy of defendants' argument also precludes our treating it as a request for a new trial, since plaintiffs have shown no basis to question the court's pre-trial conclusion that the RCAG plan had not been terminated as of the time when plaintiffs were fired. As for defendants' articulated grounds for a new trial, I address them in a subsequent section of this decision. [4] It could also be argued that since the Summary Plan Description, which was the explanatory document made available to plan participants, contains no reference to even this limited interpretive authority of the designated RCAG Vice-President, the provision in the "Procedure" is of no effect. See, e.g., Heidgerd v. Olin Corp., 906 F.2d 903, 907-08 (2d Cir.1990); Clark v. Bank of New York, 801 F.Supp. at 1190. Again, however, we need not decide that question here. [5] Defendants incorrectly assert that the court rejected the instruction in part because it conveyed the notion that an employment relationship could be formed without a writing. That was not the basis for the court's ruling, the grounds for which were specifically outlined at the charge conference. (Tr. 1131-34). Moreover, as noted, the court's charge repeatedly advised the jury that no writing was required. (Tr. 1247-50). [6] The cited exception, found in paragraph (2), requires the award of fees to the fiduciary of a plan who successfully sues on behalf of the plan for delinquent contributions. 29 U.S.C. § 1132(g)(2). [7] Depending upon the degree of interrelatedness of these claims, plaintiffs' lack of success on some of their theories might affect the amount of the fees to be awarded. See generally Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. 546, 558-61, 106 S.Ct. 3088, 3094-96, 92 L.Ed.2d 439 (1986). [8] Similarly beyond the scope of our analysis is the evident abruptness and arguable callousness shown by MCI officials in the manner in which they chose to inform plaintiffs and others targeted for layoffs that they were being fired and had one hour to collect their possessions and leave the premises. [9] As an accompaniment to this argument, defendants invoked the fact that in March 1988 plaintiffs and other RCAG employees received and signed MCIC benefit enrollment cards, but this fact was ultimately more pertinent to defendants' trial contention that plaintiffs had agreed to become employed by MCII as of the closing. At trial, however, this point appeared to founder because defendants' own officials admitted that neither the plaintiffs nor any other RCAG employee had been told at the December 1987 meetings or at any other time before the closing that they might or would be fired immediately after the closing. [10] Plaintiffs make the further point that defendants took a number of positions in the lawsuit that had no legal or factual basis. This is certainly true, the most notable example being defendants' insistence, in their summary judgment motion, that plaintiffs' claim for benefits was barred by collateral estoppel as a result of a decision by the Ninth Circuit in a lawsuit by five other former RCAG employees against MCI. As indicated in the summary judgment decision, defendants' estoppel argument was premised on a factual assumption that was demonstrably false the assumption concerned the claimed participation by these plaintiffs' counsel in the California lawsuit and on a legal theory that was entirely untenable. Nonetheless, in fairness I note that plaintiffs have also occasionally taken unsustainable positions, as evidenced by the dismissal or withdrawal of five of plaintiffs' six claims. There may often be a rather fine line between finding culpability on such a basis and simply second-guessing counsel. There is no need in this case to attempt to tread near that line, and I therefore decline to do so. [11] It is true that neither the parties nor the court could find caselaw directly on point on the dispositive issue. Nonetheless, we are accustomed to reasoning from cases whose factual context is sufficiently analogous to permit extrapolation to our case. Such reasoning by analogy provided a solid base from which to make decisions in this case. [12] This conclusion does not subvert the policy of encouraging settlement efforts. All that we conclude is that such efforts, like all other litigative work, should be conducted in an orderly and efficient fashion so that the time of the attorneys and the court is not spent unnecessarily. [13] Section 502(g)(1) of ERISA refers to an award of "costs", but that term apparently covers not only taxable costs under 28 U.S.C. § 1920, but also other disbursements that are customarily charged to the client. See Scalamandre v. Oxford Health Plans (N.Y.) Inc., 823 F.Supp. 1050, 1065 (E.D.N.Y.1993) (holding that plaintiff was entitled to costs, disbursements and attorney's fees and directing plaintiff to submit attorney's time and expense records); Lutheran Medical Center v. Contractors, Laborers, Teamsters & Engineers Health and Welfare Plan, 814 F.Supp. 799, 804 (D.Neb.1993), aff'd, 25 F.3d 616 (8th Cir.1994) (noting that "out-of-pocket" expenses are proper components of any attorney fee award in an ERISA case). See also Reichman v. Bonsignore, Brignati & Mazzotta, P.C., 818 F.2d 278, 283 (2d Cir.1987) (holding that, in a civil rights suit, awards of attorney's fees include reasonable out-of-pocket expenses). | 10-30-2013 | [
"891 F.Supp. 875 (1994) Thomas ALGIE, et al., Plaintiffs, v. RCA GLOBAL COMMUNICATIONS, INC. and MCI Communications Corporation, Defendants. No. 89 Civ. 5471 (MJL) (MHD). United States District Court, S.D. New York. November 22, 1994. *876 *877 *878 *879 *880 John C. Lankenau, Lankenau, Kovner & Kurtz, New York City, for plaintiffs. Christine H. Purdue, Hunton & Williams, Fairfax, VA, for defendants. MEMORANDUM AND ORDER DOLINGER, United States Magistrate Judge. The twenty-three plaintiffs in this case were all long-term employees of defendant RCA Global Communications, Inc. (\"RCAG\").",
"They have sued to recover severance benefits allegedly denied them under a plan sponsored by RCAG. Plaintiffs were each advised that their employment was being terminated one to three days after the stock sale of RCAG to MCI Communications Corporation (\"MCIC\") on May 16, 1988. They were later paid severance benefits under the MCIC plan rather than under the more generous RCAG plan. In explaining this decision, defendants have claimed that the RCAG plan was terminated as of the closing, and alternatively have asserted that plaintiffs ceased to be RCAG plan participants at that time because they became employees of MCIC's subsidiary MCI International, Inc. (\"MCII\"). As a result of several pre-trial decisions, plaintiffs were left with one triable claim, under section 502(a)(1)(B) of the Employee Retirement Income Security Act, 29 U.S.C. § 1132(a)(1)(B), for the denial of benefits. (See Algie v. RCA Global Communications, Inc., 1994 WL 132358 (S.D.N.Y. April 12, 1994)). However, the court also granted plaintiffs partial summary judgment on that claim, holding that they had established beyond triable dispute that the RCAG severance plan had not been terminated by the time that they were fired in late May 1988.",
"(Id. at *22-24). Accordingly, the court defined two issues for trial: 1. Did the plaintiffs remain RCAG employees until their post-closing termination? 2. If not, was their departure from RCAG a \"layoff\" within the meaning of the RCAG severance benefit plan? (Id. at *32). Thus, at trial the first issue to be determined was whether plaintiffs continued as RCAG employees for the few days between the stock purchase of RCAG by MCIC and their termination or else became employees of defendant MCII in that intervening time.",
"The court conducted a jury trial on these two questions from July 18 to 26, 1994. At the conclusion of the trial the jury returned a verdict for plaintiffs on the first question, finding that they were still RCAG employees at the time of termination. In view of this finding, the jurors were not required to reach the second question. In the wake of the trial, defendants have moved for judgment as a matter of law or alternatively for a new trial. Plaintiffs in turn have moved for an award of attorney's fees and expenses and for pre-judgment interest. For the reasons that follow, defendants' motions are denied and plaintiffs' motions are granted. I.",
"Defendants' Motions As noted, defendants seek judgment as a matter of law. This application is based principally on their contention that the trial evidence demonstrates that the RCAG plan was replaced by the MCIC severance plan just prior to the termination of the plaintiffs. Alternatively, defendants seek a new trial *881 based on their contention that the court erred in three respects in its jury charge. I address these issues in the order presented. A. The Rule 50(a) Motion Defendants' motion for judgment rests on two grounds. First, they assert that the RCAG plan was no longer in effect when the plaintiffs were terminated shortly after the closing in which MCIC purchased the stock of RCAG. In support of this contention defendants point principally to evidence that they introduced at trial indicating that in late June 1988 the MCIC Board of Directors had issued a consent that, in substance, authorized the extension of MCIC's severance plan to all employees of RCAG, effective retroactively to the date of the closing.",
"(Tr. 974-77 & Defs.' Exh. 131). Defendants argue that this evidence demonstrates that MCIC intended to replace the RCAG plan with the MCIC plan even for RCAG employees, and therefore, even if plaintiffs remained RCAG employees until their severance as found by the jury they were not entitled to be paid under the RCAG plan. This argument fails for both procedural and substantive reasons. [1] Second, defendants argue that the decision of the RCAG plan administrators to deny severance benefits to plaintiffs must be judged under an \"arbitrary and capricious\" standard.",
"So viewed, defendants assert, that decision must be upheld. This argument cannot be sustained in view of both the wording of the severance plan and the grounds stated by the administrators for denial of benefits. 1. The Asserted Termination of the RCAG Plan Federal Rule of Civil Procedure 50(a)(1) provides as follows: If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue. The standards for applying this rule are the same as under the predecessor rule, which governed motions for a directed verdict and for a judgment notwithstanding the verdict.",
"See, e.g., Piesco v. Koch, 12 F.3d 332, 340 (2d Cir.1993). As the Second Circuit has recently summarized, \"[w]hen faced with such a motion, the trial court must consider the evidence in the light most favorable to the nonmoving party and must `give that party the benefit of all reasonable inferences that the jury might have drawn in his favor from the evidence.'\" Toltec Fabrics, Inc. v. August Inc., 29 F.3d 778, 782 (2d Cir.1994) (quoting Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 367 (2d Cir.1988)). In doing so, \"[t]he court is not allowed to weigh conflicting evidence, or assess the credibility of the witnesses, or substitute its judgment for that of the jury.\"",
"Id. Judged by these standards, the motion must be denied \"unless ... `the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [persons] could have reached.'\" Cruz v. Local Union No. 3 of the IBEW, 34 F.3d 1148 (2d Cir.1994) (quoting Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970)). As is evident from the text of the rule and its elaboration by the courts, the Rule 50(a) remedy is addressed to issues that were the subject of the trial. Defendants' motion, however, insofar as it rests on trial evidence concerning the alleged termination of the RCAG plan, is mislabelled since the question of whether the RCAG plan had been terminated prior to plaintiffs' departure was not an issue at the trial. As noted, that question was determined as a matter of summary judgment three months before the trial.",
"Indeed, *882 there can be no question as to this matter since the summary judgment decision explicitly held that the defendants had failed to demonstrate a triable dispute on this issue and then proceeded to limit the trial to two other factual issues, as to which the parties' summary judgment motion papers demonstrated triable questions. Viewed in context, it is evident that defendants' application is, in substance, a motion for reconsideration of the court's prior summary judgment ruling based upon evidence received for different purposes at trial. There are obvious procedural problems with this effort, and in any event there is no substantive justification for the relief that is sought. The initial hurdle is that defendants' motion, properly characterized, is both untimely and otherwise in violation of the local rule that governs such motions. The relevant provision is Rule 3(j) of the Civil Rules of this court, which provides that a motion for reconsideration \"shall be served within ten (10) days after the docketing of the court's determination of the original motion.\" Although this time limit may not be jurisdictional Hershfang v. Citicorp, 1991 WL 197699, at *1 (S.D.N.Y. Oct. 1, 1991), it is enforced absent adequate justification for ignoring it. See, e.g., Blanco v. United States, 775 F.2d 53, 55-56 (2d Cir.1985); see also Donahue v. Pendleton Woolen Mills, 719 F.Supp.",
"149, 150 (S.D.N.Y.1988) (although motion was untimely, \"in the interest of justice\" court did not dismiss motion). In this case defendants offer no justification for their failure to meet the time limit or even to come remotely close to it. Indeed, defendants' motion papers are silent on this problem, and at oral argument their counsel conceded that, until shortly before the trial, defendants had simply overlooked the evidence on which they now rely. Since both the facts underlying the Board of Directors' decision and the documentation of it were uniquely in the control of defendants, this omission has not been explained and can hardly be justified. Indeed, if we assumed arguendo that the evidence otherwise might justify the relief sought, then the delay in producing it would be inexcusable since it resulted in an unnecessary seven-day trial. Defendants' motion also fails to satisfy a second part of Rule 3(j).",
"A motion for reargument is ordinarily limited to errors assertedly made by the court in its original decision, and it is not the vehicle for the losing party to submit additional evidence. See Ades v. Deloitte & Touche, 843 F.Supp. 888, 891-92 (S.D.N.Y.1994); Collins Development Corp. v. Marsh & McLennan, Inc., 1991 WL 135605, at *4 (S.D.N.Y. July 18, 1991). Cf. Transaero, Inc. v. La Fuerza Aerea Boliviana, 38 F.3d 648 (2d Cir.1994) (applying Fed.R.App.P. 40(a)). Thus the rule specifies that the motion is to be based on a memorandum of law \"setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked.\" This limitation is further underscored by the provision that \"[n]o affidavits shall be filed by any party unless directed by the court.\" As is evident, defendants' motion does not rest on the notion that the court \"overlooked\" facts or controlling law, since their argument relies on newly submitted evidence over which they have always had control. This failing equally demonstrates that defendants cannot justify a new trial on this question, much less their demand for judgment at this stage. See Chang v. City of Albany, 150 F.R.D.",
"456, 459 (N.D.N.Y.1993) (holding that a motion for a new trial will only be granted if the movant shows that the evidence was discovered since the trial); Bradford Trust v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 622 F.Supp. 208, 213-14 (S.D.N.Y.1985), aff'd, 805 F.2d 49 (2d Cir. 1986). Even if we were to disregard these procedural difficulties, we would be constrained to reject defendants' application on another procedural ground. Fed.R.Civ.P. 56(d) contemplates that a court faced with a summary judgment motion may conclude that full case-dispositive relief cannot be granted. In that circumstance it directs that the court ... shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall therefore make an order specifying *883 the facts that appear without substantial controversy ... and directing such further proceedings in the action as are just.",
"Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly. The evident purpose of this rule is to \"speed[] up litigation by eliminating before trial matters wherein there is no genuine issue of fact.\" Fed.R.Civ.P. 56(d), Advisory Committee Notes (1946). This is precisely the procedure followed by this court when it granted partial summary judgment before trial. If, however, a party could, in effect, ignore such a ruling and, after trial, sift the trial record for evidence that might have supported its position on issues decided before trial as defendants seek to do here the salutary purpose of the rule, to narrow the trial and define in advance the issues to be addressed there, would be defeated. It is certainly true, as defendants argue, that a court may reexamine its Rule 56(d) rulings if sufficient cause is shown. See, e.g., 6 Pt.",
"2 J. Moore et ano., Moore's Federal Practice ¶ 56.20[3.-3] at 56-701 & n. 10 (2d Ed.1993) (citing cases); id. ¶ 56.20[3.-4] at 56-704 to 05 (citing Coffman v. Federal Laboratories, 171 F.2d 94, 98 (3d Cir.1948), cert. denied, 336 U.S. 913, 69 S.Ct. 603, 93 L.Ed. 1076 (1949)). See generally Fed. R.Civ.P. 54(b). Such a revision by the court must, however, be shown to be justified, see, e.g., Audi Vision Inc. v. RCA Mfg. Co., 136 F.2d 621, 625 (2d Cir.1943) (change permitted at trial \"to prevent manifest injustice\"); Moore's Federal Practice, supra, at 56-707 (court should not alter ruling absent \"good cause\"), and it must be done on notice to the other parties, so that they understand that additional issues will be open for adjudication at trial and may prepare accordingly.",
"As the Second Circuit has noted: Once a district judge issues a partial summary judgment order removing certain claims from a case, the parties have a right to rely on the ruling by forebearing from introducing any evidence or cross-examining witnesses in regard to those claims. If, as allowed by Rule 54(b), the judge subsequently changes the initial ruling and broadens the scope of the trial, the judge must inform the parties and give them an opportunity to present evidence relating to the newly revived issue. Leddy v. Standard Drywall, Inc., 875 F.2d 383, 386 (2d Cir.1989).",
"Defendants' effort to obtain judgment at this stage fails all of these tests. It does not seek to add an issue for trial, but rather seeks dispositive relief, and yet it does so in reliance on evidence that defendants offered at a trial that was expressly not conducted on the issue for which defendants now seek to invoke the evidence. Such an approach would deny plaintiffs notice and an opportunity to shape their trial presentation to meet an issue that they justifiably assumed was already settled. Moreover, defendants have made no showing of need or unfairness to justify their belated effort to snatch victory from the jaws of defeat.",
"As noted, the evidence on which they rely was exclusively in their hands and knowledge at all times until the eve of trial, and they have not even attempted to explain their failure to produce it in a timely fashion. Moreover, even after their asserted belated discovery of the information shortly before trial, they did not then move for reconsideration of the court's summary judgment ruling or to expand the list of issues for trial. Indeed, they did not unveil their theory until the filing of their post-trial motion papers. In short, simply as a matter of procedural regularity and fairness, their motion must be rejected. Finally, and most importantly, even if we were to ignore the foregoing considerations, the result would be the same since defendants' substantive argument is entirely meritless. As noted, the evidentiary record before the court on summary judgment contained no evidence that the RCAG plan had been terminated prior to the departure of plaintiffs in May 1988.",
"The trial record is entirely consistent with the court's prior finding to this effect. In seeking to challenge this conclusion, defendants point only to the fact that on June 28, 1988, well after all of the plaintiffs had been fired, the MCIC Board of Directors approved a consent that authorized the extension *884 of the MCIC severance plan to all RCAG employees, effective retroactively at the closing. This additional information cannot change the original finding that defendants did not eliminate the RCAG plan prior to plaintiffs' termination. The underlying assumptions of defendants' argument are that an employer can retroactively reduce or eliminate its already-terminated employees' severance benefits and that the MCIC consent was intended to accomplish this end. Again, defendants' analysis misses the mark.",
"With regard to intent, defendants' proffered evidence, in the form of the document itself and the explanatory testimony of corporate counsel at trial, does not demonstrate that the consent was intended to terminate the RCAG severance plan. Indeed, according to defendants' own witness the purpose was simply \"to allow any non-collective bargained employees of RCAG who might remain employed by RCAG to participate in the MCI Communications Corporation severance pay plan after the acquisition and to count their prior service with RCAG for the plan for purposes of calculating their benefit.\" (Tr. 975-76).",
"In short, the consent was apparently intended to ensure continued coverage of any individuals who still remained as RCAG employees. (See also Tr. 977, 979 (noting MCIC concern that payment of MCIC benefits to non-participants would violate ERISA)). Plaintiffs, of course, did not remain, having long since been fired. In addition, whatever the intent of the Board, the consent did not purport either to terminate the RCAG plan or to apply the MCIC plan to RCAG. All that it did was to authorize the subsidiary to apply that plan, and the record is devoid of evidence as to whether RCAG ever adopted that plan. In any event, even if we assumed that this evidence conclusively demonstrated that in late-June 1988 the MCIC Board of Directors acted to terminate the RCAG plan retroactively, such an effort would obviously be ineffective to divest the former employees of RCAG of their right to severance benefits under the RCAG plan.",
"It is common ground that an employer is ordinarily free to alter or eliminate an employee welfare benefits plan at any time, absent a provision in the plan guaranteeing against such an eventuality. See, e.g., Deibler v. United Food & Commercial Workers' Local Union 23, 973 F.2d 206, 210 (3d Cir.1992); Reichelt v. Emhart Corp., 921 F.2d 425, 430 (2d Cir.1990), cert. denied, 501 U.S. 1231, 111 S.Ct. 2854, 115 L.Ed.2d 1022 (1991); Ryan v. Chromalloy American Corp., 877 F.2d 598, 603 (7th Cir.1989). Nonetheless, once a triggering event occurs that entitles the employee to a specified benefit, the employer is contractually and statutorily obligated to provide that benefit and may not retrospectively amend the plan to divest the plan participant of a payment that he was already entitled to receive. Indeed, to conclude otherwise would entirely undermine the obligations imposed by ERISA upon a sponsor of a non-vesting benefit plan, since the employer could then ignore the requirements of the plan and, when sued, simply amend or terminate the plan retroactive to a date preceding the aggrieved participant's eligibility for benefits. Not surprisingly, the courts have consistently held that an employer may not deny a benefit already earned, whether under a vested or a non-vested plan.",
"See, e.g., Wulf v. Quantum Chemical Corp., 26 F.3d 1368, 1378 (6th Cir.1994), petition for cert. filed, No. 94-750 (Oct. 25, 1994); Pratt v. Petroleum Prod. Mgt., Inc. Employee Sav. Plan & Trust, 920 F.2d 651, 661 (10th Cir.1990); Adams v. General Tire & Rubber Co., 794 F.2d 164, 166-67 (4th Cir.1986); Harm v. Bay Area Pipe Trades Pension Plan Trust Fund, 701 F.2d 1301, 1305-06 (9th Cir.1983); Kemmerer v. ICI Americas, Inc., 842 F.Supp. 138, 142-46 (E.D.Pa.1994); Edward W. Sparrow Hosp. Ass'n, Inc. v. Industrial Welding, Inc., 1990 WL 599020, at *7, 1990 U.S. Dist. LEXIS 9194, at *20 (W.D.Mich.",
"1990). See also New York State Teamsters Conf. Pension & Retirement Fund v. Hoh, 561 F.Supp. 679, 684 n. 8 (N.D.N.Y.1982) (citing cases). As one court has noted: \"allowing [the employer] to unilaterally terminate Plan benefits retroactively renders the Plan illusory. Carried to an extreme, [the employer] could terminate benefits for claims already incurred and paid out. Although ... [the employer] properly reserved the right to amend its Plan, including the right to terminate benefits, this right does not encompass *885 claims that have already been incurred.\" Edward W. Sparrow Hosp. Ass'n, Inc. v. Industrial Welding, Inc., 1990 WL 599020, at *7, 1990 U.S.Dist. LEXIS at *20.",
"[2] In this case plaintiffs' entitlement to a lump-sum payment under the RCAG plan accrued at their termination in May 1988. Necessarily, then, the June 28, 1988 consent approved by the MCIC Board could not divest them of that entitlement, and hence defendants' argument for judgment based on that consent is legally insupportable. [3] 2. The Standard of Review of the Administrator's Denial of Benefits Defendants also seek judgment as a matter of law on the theory that the decision to deny benefits under the RCAG plan should be subjected to a deferential standard of review. This issue was previously raised by defendants in connection with the court's rulings on their requests to charge, and at that time the court rejected defendants' argument. (Tr. 1165-70). Having reviewed defendants' motion papers, I conclude that the argument has not improved with repetition.",
"The Supreme Court held in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), that \"a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.\" Id. at 115, 109 S.Ct. at 956-57. Thus we must look to the terms of the plan to determine whether and in what circumstances the plan administrator is given such discretionary authority.",
"See, e.g., Masella v. Blue Cross & Blue Shield of Connecticut, 936 F.2d 98, 103 (2d Cir.1991). In doing so, we bear in mind the admonition that \"discretion is not an all-or-nothing proposition. A plan can give an administrator discretion with respect to some decisions, but not others.... A plan administrator has exactly the amount and type of discretion granted by the plan, no more and no less.\" Wulf v. Quantum Chemical Corp., 26 F.3d at 1373 (quoting Anderson v. Great West Life Assur. Co., 942 F.2d 392, 395 (6th Cir.1991) (emphasis in original)). See also Kirwan v. Marriott Corp., 10 F.3d 784, 788-89 (11th Cir.1994). In this case the RCAG Summary Plan Description contains no provision purporting to invest the plan administrator with any discretion. (Pl. Exh. 1). The only provision cited by defendants is found in the so-called \"Procedure\" for the plan, which simply provides, under the heading \"Responsibility and Administration\", that \"[t]he Vice President, Employee Relations, or his designee, will render any interpretation of this Policy that may be required.\" (Pl. Exh.",
"2 at p. 4). It could well be argued that this language does not sufficiently articulate a grant of discretion to invoke deferential review in any respect. See, e.g., Rovira v. AT & T, 817 F.Supp. 1062, 1068 (S.D.N.Y.1993) (ambiguities resolved against plan administrator); Clark v. Bank of New York, 801 F.Supp. 1182, 1189 (S.D.N.Y.1992) (defendant's burden *886 to show that it has discretionary authority); Arthurs v. Metropolitan Life Ins. Co., 760 F.Supp. 1095, 1098 (S.D.N.Y.1991). See generally Masella v. Blue Cross & Blue Shield of Connecticut, 936 F.2d at 103 (comparing different formulations of authority assigned to plan administrator). We need not address that question, however, since the plan, even if generously interpreted in defendants' favor, does not grant the plan administrator or his designee the type of discretion that would cover the decision actually rendered on plaintiffs' applications for benefits. [4] By its own terms, the quoted provision gives the RCAG Vice-President discretion, if at all, only to interpret the plan.",
"It does not purport to give the RCAG Vice-President any separate grant of discretion to determine eligibility for benefits. Compare, e.g., Gillis v. Hoechst Celanese Corp., 4 F.3d 1137, 1141 (3d Cir.1993), cert. denied, ___ U.S. ___ & ___, 114 S.Ct. 1369 & 1540, 128 L.Ed.2d 46 & 192 (1994); Miller v. United Welfare Fund, 851 F.Supp. 71, 74 (E.D.N.Y.1994); Zisel v. Prudential Insur. Co. of America, 845 F.Supp. 949, 951 (E.D.N.Y.1994). Thus, that provision, whatever its legal significance, is not triggered here. RCAG advised plaintiffs through their counsel that benefits were being denied because the plan had been terminated. (Pl's Exh.",
"43). This conclusion did not rest on the administrator's interpretation of any provisions of the plan; indeed, the plan contained no provisions governing the method of its termination or modification. Rather, the question of whether the plan had been terminated turns on an analysis of caselaw interpreting ERISA and principles of corporate law (see Algie v. RCA Global Communications, Inc., 1994 WL 132358, at *20-24), and that is not an exercise that is committed by the plan to the discretion of the plan administrator. Since the RCAG plan administrator did not exercise any discretion that he may have had when he denied plaintiffs their severance benefits, it follows that his decision is not entitled to deference. See, e.g., Kinek v. Gulf & Western, Inc., 720 F.Supp. 275, 281-82 (S.D.N.Y.1989), aff'd sub nom. Kinek v. Paramount Communications, Inc., 22 F.3d 503 (2d Cir.1994). Hence, insofar as defendants' Rule 50(a) motion is premised on the notion that such deference is owed, the motion is denied. B. Defendants' Motion for a New Trial Defendants alternatively seek a new trial, citing three asserted errors in the court's charge.",
"This argument is in part unpreserved and in any event groundless. Defendants first complain because, they say, the court did not incorporate two of their proposed charges governing the formation of the employment relationship. One of these requests (no. 17), entitled \"Employment Status After Acquisition Partial Performance\", summarized a variety of assertedly relevant considerations in evaluating whether plaintiffs were employed by RCAG or by MCII immediately after the stock sale of RCAG, including particularly \"whether one party has partially performed [an employment agreement] and that performance has been accepted by the other party.\" (See Defs.' Request to Charge at 23). The proposed instruction mentioned other factors as well (id.",
"at 23-24), but gave particular prominence to the notion that \"partial performance is an unmistakable signal that\" the performing party believes that there is a contract between the parties and that acceptance of performance indicates that both sides recognize such a contractual relationship. (Id. at 23). The second cited request on this general topic (no. 18) was entitled \"Employment Status After Acquisition Automatic Employment Upon Stock Sale\". (Id. at 25). It would have instructed that, upon a stock sale, \"the employees of the company which is sold can automatically become employees of the purchasing company.\" In explanation, the proposed instruction said, in substance, that *887 no written offer of employment was required and that \"employment by the purchasing company may be inferred.\"",
"Finally, it reiterated that \"you may find from the evidence that the Plaintiffs became MCII employees immediately upon acquisition, whether or not Plaintiffs received written employment offers in the form of letters or contracts.\" (Id.) Defendants' complaint about the first of these two charges fails on both procedural and substantive grounds. After receipt of both sides' requests to charge, the court prepared a written draft charge and supplied it to counsel the day before the charge conference. (Tr. 989-90, 1088-89, 1096). At the charge conference, the court entertained all objections and requests for modification of the charge. (Tr. 1096-1164). During the course of that colloquy defendants' counsel did not refer to or suggest any problems relevant to request no. 17. At the conclusion of the colloquy, defense counsel sought to invoke \"a continuing exception\" for any requested charge not specifically incorporated by the court. (Tr.",
"1164). In response the court advised that if counsel had any requests that she believed had not been satisfied, she should specify them so that the court could determine whether it had inadvertently omitted an instruction or whether defendants' version of a requested charge was preferable. (Tr. 1164). Counsel then cited four specific proposed instructions (Tr. 1164-65), but never mentioned request no. 17 specifically or in substance. (Tr. 1172). Similarly, after the charge was given, although both sides were afforded the opportunity to voice any objections, defendants never mentioned this request. (Tr. 1271). If a party does not object specifically to a charge that is given or to the failure to give a requested charge, as required by Fed. R.Civ.P. 51, he is generally deemed to have waived the point, and such waiver is forgiven only if the charge as given constituted \"plain error\".",
"See, e.g., Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993) (citing cases). In this case the charge as given did not constitute error, whether plain or otherwise. Indeed, the court instructed the jury in accordance with the substance of defendants' request no. 17, but without the unbalanced language found in the requested charge. As explained by defendants, request no. 17 was designed to acknowledge defendants' contention that the jury could infer that the payment by MCII of substantial benefits to plaintiffs and plaintiffs' acceptance of those payments demonstrated the existence of an employment relationship with MCII. The court accepted this principle and so instructed the jury. Thus, after telling the jury that an employment relationship did not need to be embodied in a writing and did not depend upon any specific exchange of words between the employee and the putative employer, the court advised that such a relationship \"may be inferred from less specific words and may also be inferred from a combination of words and actions of the would-be employer and employee.\" (Tr.",
"1250). In explanation, the court went on to state: In assessing this question, you may take into account ... all of the statements and actions of the defendants prior to the closing that were made known to the plaintiff, as well as any statements and actions by [the] plaintiff prior to the closing. You may also take into account any subsequent statement and conduct by the parties that sheds light on whether MCI International offered the plaintiff employment and whether plaintiff's reporting for work after the closing and his acceptance of monies and benefits from MCI International amounted to acceptance by him of an offer to work for MCI International instead of RCA Global.",
"(Tr. 1251). This instruction, a portion of which was suggested by defendants during the charge conference (Tr. 1137-39), explicitly embodies the heart of defendants' request no. 17, and gave defendants an ample basis to argue to the jury, as they did, that plaintiffs' pre-closing signing of MCIC benefit enrollment cards and their receipt of various benefits from MCII after the closing demonstrated an offer and acceptance of employment. (Tr. 1188-90). A party is not entitled to a charge in the precise words of its request. See, e.g., Riverwoods Chappaqua Corp. v. Marine *888 Midland Bank, 30 F.3d 339, 346 (2d Cir. 1994). See also 1 Edward J. Devitt, Charles B. Blackmar, Michael A. Wolff, and Kevin F. O'Malley, Federal Jury Practice & Instructions § 7.02 at 211 (1992).",
"In this case defendants received the substance of their request, and the court properly exercised its discretion not to use the wording that defendants had formulated, which implied that the payment of benefits by MCII was virtually dispositive of the employment question, and instead chose to give a more balanced charge, which invited the jury in general terms to consider all of the pertinent factors, including the payment and receipt of benefits, without suggesting that any one was necessarily controlling. As for proposed charge no. 18, in substance it advised the jury that the formation of an employment relationship does not require a writing.",
"(Defs.' Requests to Charge at 25). To that extent, as we have seen, the charge was given very explicitly. (Tr. 1247-50) (repeatedly stating employment agreement need not be in writing and may be implied from words and actions). The court altered the charge only in one respect, by omitting the statement that an employment relationship may arise \"automatically\" following the stock purchase of the prior employing corporation. This aspect of the requested charge was both confusing and misleading. It was confusing because it did not indicate in what circumstances a change of employment status would occur \"automatically\" after a stock purchase.",
"It was misleading in that it implied that a new employment relation would occur automatically upon such a stock purchase, that is, without any actions by either the employee or the purchaser that would suggest some form of implicit employment agreement. This is a reiteration of one of the legal theories pressed by defendants on their summary judgment motion and rejected by the court because it is inconsistent with the presumed independence of a parent and subsidiary. (See Algie v. RCA Global Communication, Inc., 1994 WL 132358 at *25-27). [5] In sum, request no. 18 was given in substance, and was modified only to avoid the insinuation of a legally erroneous theory.",
"Defendants have no legitimate complaint about this result. Defendants' last argument for a new trial involves the failure of the court to give their proposed request no. 19. This charge in substance would have instructed the jurors that if, after the closing, MCII controlled the employment practices of RCAG or operated RCAG and MCII \"as one corporation\", \"you may find that RCAG employees, including Plaintiffs, became MCII employees upon the acquisition....\" (Defs.' Requests to Charge at 26). Again, defendants failed to object to the omission of this charge, and therefore the objection is waived absent a showing of plain error. In any event, the refusal to give this instruction was proper and hardly plain error. In substance defendants sought to disclaim a corporate responsibility of the subsidiary by using an alter-ego or veil-piercing theory. This effort by defendants to use their claimed disregard of corporate independence in order to benefit themselves is unsupported by case law and contrary to the underlying rationale for the alter-ego and veil-piercing doctrines.",
"The corporate form is a fiction that is recognized to protect the shareholders from being exposed to the risk of personal liability for the obligations of the corporation. This rule is given legal effect as a means of encouraging corporate investment by minimizing the investor's risk. See, e.g., Labadie Coal Co. v. Black, 672 F.2d 92, 96 (D.C.Cir. 1982); Hackney & Benson, Shareholder Liability for Inadequate Capital, 43 U.Pitt.L.Rev. 837, 872 (1983). By the same token, the benefit of insulation from corporate liability is granted only on condition that *889 the shareholders of the corporation maintain the formalities of corporate form and independence, and if they fail to do so, they risk the loss of their insulation from obligations of the corporation. See, e.g., William Wrigley Jr. Co. v. Waters, 890 F.2d 594, 600-01 (2d Cir.1989); American Protein Corp. v. AB Volvo, 844 F.2d 56, 60 (2d Cir. ), cert.",
"denied, 488 U.S. 852, 109 S.Ct. 136, 102 L.Ed.2d 109 (1988). When viewed in this context, we can readily understand why alter-ego and veil-piercing theories have been invoked to benefit those parties seeking to impose liability on the corporation or its shareholders. The one case cited by defendants as legal authority for their requested charge, Johnson v. Flowers Industs., Inc., 814 F.2d 978 (4th Cir. 1987), illustrates this point. In Johnson the plaintiffs sued their employer, its parent corporation and another subsidiary of the parent for age discrimination. The immediate issue was whether, in seeking to demonstrate discrimination in their termination, the plaintiffs could use data reflecting hiring decisions by the other subsidiary.",
"To do so, plaintiffs were required to demonstrate that the parent, which concededly controlled the plaintiffs' employer, also controlled the employment decisions of the other subsidiary. The circuit court affirmed the dismissal of the complaint because the plaintiffs had failed to demonstrate such control. Id. at 979-82. As in Johnson, other courts employing this form of alter-ego analysis in employment discrimination and related types of cases have consistently applied it as a means to uphold or extend corporate liability. See, e.g., Armbruster v. Quinn, 711 F.2d 1332, 1335-39 (6th Cir.1983); Weinreich v. Sandhaus, 850 F.Supp.",
"1169, 1178-79, amended in part, 156 F.R.D. 60 (S.D.N.Y.1994); United States v. Nagelberg, 772 F.Supp. 120, 124 (E.D.N.Y. 1991). In contrast, defendants' proposed instruction would reverse the thrust and rationale of the alter-ego and corporate-veil-piercing principles. In substance, both RCAG and MCII would benefit if they ignored corporate formalities, and their non-compliance with corporate law requirements would deprive the plaintiffs of the benefits to which they would otherwise be entitled. This perverse use of these doctrines is unprecedented, and, given the reason for those rules, the lack of precedent is scarcely surprising. Indeed, one of the cases cited by defendants makes it plain that this theory is not legally tenable. Thus, in Esmark, Inc. v. N.L.R.B., 887 F.2d 739 (7th Cir.1989), the circuit court observed that \"the accepted rule is that the corporate veil will only be pierced to protect the interests of third parties; the separate corporate entity will not be disregarded to allow the corporation to escape its obligations.\"",
"Id. at 751. Defendants' proposed jury charge on corporate control fails for still another reason as well. The plaintiffs were all given their termination notices and told to leave the premises within one to three days after the closing. Whatever evidence may be found in the record relating to possible control of RCAG by any of the other MCI corporate entities such as the failure over time to appoint an RCAG Board of Directors or MCIC's dealings with the union representing RCAG's unionized employees involves a longer and later time period. Moreover, the fact that MCII personnel may have been involved in the pre-closing decision as to which RCAG employees would be retained as MCII workers does not demonstrate or even suggest that MCII formed an employment relationship with those RCAG personnel who were not selected for retention.",
"In sum, defendants' request no. 19 was unsupported by the law and inconsistent with the trial evidence. Accordingly, its rejection by the court does not warrant a new trial. II. Plaintiffs' Application for Fees and Pre-Judgment Interest In the wake of their success at trial, plaintiffs have moved for an award of fees and costs and also seek pre-judgment interest calculated at an annual rate of nine percent. I address each of these applications separately. A. Fees and Costs In authorizing civil suits by plan participants, ERISA grants to the district court the discretion to award fees and costs. Specifically, it states: *890 In any action under this subchapter (other than an action described in paragraph (2)) by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney's fee and costs of action to either party. 29 U.S.C.",
"§ 1132(g)(1). [6] Although the statute gives the court some discretion as to whether to award fees and costs and to whom, the Second Circuit has noted that \"ERISA's attorney's fee provisions must be liberally construed to protect the statutory purpose of vindicating retirement rights....\" Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d 869, 872 (2d Cir.1987), cert. denied, 496 U.S. 905, 110 S.Ct. 2587, 110 L.Ed.2d 268 (1990). To channel the exercise of the trial court's discretion, the Circuit Court has generally limited awards to a prevailing party, even though the statute does not so provide, see, e.g., Weil v. Retirement Plan Admin. Committee of Terson Co., 913 F.2d 1045, 1052 (2d Cir.1990) (citing cases), vacated in part on other gds., 933 F.2d 106 (2d Cir.1991), and has adopted a five-part test to govern the assessment of eligibility for such an award. See, e.g., Mendez v. Teachers Ins. & Annuity Ass'n, 982 F.2d 783, 788 (2d Cir.1992). These factors include the following: (1) the degree of the offending party's culpability or bad faith, (2) the ability of the offending party to satisfy an award of attorney's fees, (3) whether an award of fees would deter other persons from acting similarly under like circumstances, (4) the relative merits of the parties' positions, and (5) whether the action conferred a common benefit on a group of pension plan participants.",
"Id. at 788 (quoting Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d at 871). My assessment of the relevant concerns in this case leads to the conclusion that an award of fees is appropriate. At the outset, it is plain that plaintiffs are the prevailing parties. Although this may seem self-evident, defendants make an effort to argue to the contrary, observing that during the course of the litigation plaintiffs asserted as many as six claims and ultimately prevailed on only one. This approach is inconsistent with governing law. The minimum requirement for a fee award is that the plaintiff have obtained some relief under ERISA. See, e.g., Weil v. Retirement Plan Admin.",
"Committee of Terson Co., 913 F.2d at 1052; Fase v. Seafarers Welfare & Pension Plan, 589 F.2d 112, 116 (2d Cir.1978). Plaintiffs have obviously satisfied that requirement since they have vindicated their central contention in this case, that they were entitled to be paid severance benefits in accordance with the RCAG severance plan. Although they have advanced a variety of legal claims in this case, all were related to the denial of those benefits by the defendants, and thus whether they prevailed on some or all of their theories is inconsequential for the question of fee entitlement. [7] If a plaintiff prevails on his principal claim he is the prevailing party, particularly in view of \"the statutory purpose of vindicating retirement rights....\" Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d at 872. Cf. Farrar v. Hobby, ___ U.S. ___, ___, 113 S.Ct. 566, 573, 121 L.Ed.2d 494 (1993) (plaintiff who receives nominal damages is \"prevailing party\" under 42 U.S.C. § 1988). As for the \"five-factor test\", New York State Teamsters Council Health & Hosp. Fund v. Estate of DePerno, 18 F.3d 179, 183 (2d Cir.1994), the first criterion turns on \"the degree of the offending party's culpability or bad faith.\"",
"Mendez v. Teachers Ins. & Annuity Fund, 982 F.2d at 788. In view of the disjunctive wording of this phrase, it is apparent that the plaintiffs need not prove bad faith or malicious intent to *891 satisfy it. As recently summarized by the Third Circuit: [a] losing party may be culpable ... without having acted with an ulterior motive. In a civil context, culpable conduct is commonly understood to mean conduct that is \"blameable; censurable; ... at fault; involving the breach of a legal duty or the commission of a fault....",
"Such conduct normally involves something more than simple negligence.... [It] implies that the act or conduct spoken of is reprehensible or wrong, but not that it involves malice or a guilty purpose.\" McPherson v. Employees' Pension Plan of American Re-Insurance Co., 33 F.3d 253, 256-57 (3d Cir.1994). If we look at defendants' conduct both at the time of the denial of benefits and during the litigation, it is difficult to find them guilty of bad faith. Nonetheless, their record is not entirely free from legitimate criticism. Among other things, plaintiffs accuse defendants of corporate immorality, or at least ingratitude, because they chose, as part of the corporate takeover of RCAG, not only to abruptly terminate numerous employees who had worked for the company for many decades, but to deprive them of a portion of the severance benefits to which they would otherwise have been entitled.",
"This does not amount to the type of bad faith or culpability envisaged in the first of the attorney-fee criteria. There is little doubt that if defendants in fact wanted to minimize the amount of severance benefits payable to plaintiffs, they could have done so through proper procedures. Their failure in this respect may be attributable to an inattention to detail, most notably the failure to amend or eliminate the RCAG plan before the termination, and the accompanying haste to get rid of the 100 or so RCAG employees who were not offered jobs with MCII.",
"Whatever one may think about the wisdom or morality of the 1980s trend to corporate acquisitions and accompanying mass layoffs of which the events in this case are but one small example such decisions are beyond the reach of ERISA. [8] The only pertinent concern for us is whether the decision by the plan administrator to deny benefits to plaintiffs once they applied, and the defendants' persistence in that decision throughout the course of the litigation, smack of bad faith or culpability. The initial corporate decision to deny benefits has not been shown to reflect anything other than the honest, if mistaken, assumption by corporate officials that the RCAG plan had in fact been terminated.",
"Moreover, in fairness, we must note that after the acquisition plaintiffs were paid significant benefits under a variety of plans that applied to MCII employees, a fact strongly suggesting that MCIC and MCII assumed that plaintiffs had been, at least for a few days, employees of MCII and thus entitled to MCIC benefits by virtue of that status. This conduct alone is simply insufficient to weight the first criterion in favor of fees. Plaintiffs also cite, as relevant to the first criterion, the subsequent behavior of defendants, who continued to refuse to make the requested payments while repeatedly changing their stated grounds for this decision. This complaint has some basis. In their response to plaintiffs' letter claims for benefits, defendants appeared to concede that plaintiffs had remained RCAG employees until May 30, 1988, but asserted that the RCAG plan had been terminated as of the closing, two weeks earlier. Once defendants were alerted to the fact that some of the former RCAG plaintiffs were pressing a demand for RCAG benefits, however, they were surely under an obligation to consider carefully whether that plan had in fact been terminated. Yet in response to plaintiffs' written request under 29 U.S.C. § 1024 for any documents by which the termination had been accomplished, defendants produced nothing.",
"Moreover, the last CEO of RCAG, Mr. Valerian Podmolik, testified in deposition that the plan had not been terminated as of *892 the closing, a fact that defendants could presumably have discovered for themselves. Defendants persisted in this position during the litigation but varied their theory as to how the termination had occurred. Thus, at one point they cited a January 1988 resolution of the RCAG Board, which plainly terminated RCAG's participation in other plans but did not refer to the severance plan. At other times they invoked the closing documents, which also did not address the matter in any respect. Alternatively, they cited the December 1987 orientation meetings held by MCI officials with RCAG employees concerning the coverage that they would receive as MCII employees, even though defendants themselves argued that MCII had no authority at that time to make corporate decisions for RCAG.",
"[9] Ultimately, on summary judgment it became apparent that defendants had no evidentiary basis for their various assertions as to how the RCAG plan had been terminated, and accordingly partial summary judgment was granted for plaintiffs on this issue. This persistence in pressing varying explanations for an event that defendants ultimately could not document is plainly relevant to culpability. The other significant inconsistency in defendants' position was their about-face on whether plaintiffs were still RCAG employees when terminated. As noted, defendants originally so represented when responding to claim letters from plaintiffs' counsel. Subsequently, however, in the course of this litigation they reversed field and, perhaps sensing the problems with their shifting explanation of the purported termination of the RCAG plan, began to argue that plaintiffs had automatically become MCII employees as of the closing. Ultimately the court rejected this theory of an automatic switch of employers based simply on a stock purchase (see Algie v. RCA Global Communication, Inc., 1994 WL 132358, at *26), but sent the employment issue to trial based on the existence of disputed factual questions as to the relevant circumstances.",
"These alternative and shifting theories were presumably a reflection of able and creative counsel doing their job in representing defendants in this lawsuit, and defense counsel cannot be criticized for these efforts. Nonetheless, we must remember that defendants are charged with responsibilities of a fiduciary nature in regard to plans that they have created and administer, and it is fair to construe the \"culpability\" test as implicitly recognizing those responsibilities when assessing the defendants' conduct, even in the lawsuit. On that basis I conclude that, viewed in context, defendants' conduct in this matter was, at least to some modest degree, culpable and that the first criterion thus weighs slightly in favor of a fee award. [10] The second fee criterion is the defendants' ability to satisfy a fee award.",
"Defendants concede that this test is met here. The third criterion looks to whether an award would tend to deter others from engaging *893 in similar behavior. This concern is presumably most relevant when a defendant has engaged in misconduct, but it can surely be applied even when the defendant does not act in bad faith. See, e.g., McPherson v. Employees Pension Plan of American ReInsurance Co., 33 F.3d at 258. Moreover, we may consider the potential deterrent effect on all employers, not just the defendants. See, e.g., Pagovich v. Moskowitz, 865 F.Supp. 130, 139 (S.D.N.Y.1994); Engineers Joint Welfare Funds v. B.B.L. Constructors, Inc., 825 F.Supp. 13, 18 (N.D.N.Y.1993).",
"It is certainly true, as defendants contend, that this case involves an unusual fact pattern, but that does not speak to whether a fee award would deter undesirable behavior by other employers that bears at least some relationship to the events here. The conduct of the defendants that we have found somewhat culpable includes a fairly cavalier and even careless approach to assessing the status of an acquired company's welfare benefits plan, a problem that may have resulted in part from a failure to include in the plan a provision defining the mechanism for its modification, as required by ERISA. The undesirable conduct also involves a failure to assess clearly at an early stage whether there was an adequate justification for denying a request for benefits and, if so, what that justification was. These types of failings appear not to be uncommon in ERISA cases, and a fee award would presumably act as at least a modest deterrent to future failings of this type.",
"The fourth criterion looks to the relative merits of the parties' respective positions. Defendants' basic position in the lawsuit that plaintiffs became MCII employees at the time of the closing was, at least in one guise, not legally or factually frivolous, but that is not tantamount to a demonstration that the parties' positions were evenly balanced. Defendants resisted an award of benefits either (1) because the RCAG plan had been terminated as of the closing or (2) because plaintiffs had become MCII employees just after the closing. Defendants' first contention was demonstrated to be so factually unsupported that it could be rejected as a matter of summary judgment.",
"Defendants' second contention, insofar as it rested on the assumption that a stock purchase automatically converts the purchased corporation's employees into employees of the purchasing corporation, was also legally untenable. As for the other version of this theory, that under all of the circumstances plaintiffs had become MCII employees, it was sufficiently factually grounded to force a trial, but the evidence at trial certainly supported the jury's conclusion that plaintiffs had, as defendants originally conceded, remained RCAG employees until their termination.",
"In sum, plaintiffs' basic position in this litigation that they were entitled to severance benefits measured by the RCAG rather than the MCII plan was supported by the law and the evidence. [11] Accordingly, the fourth factor also supports an award of fees. The last criterion asks whether the lawsuit conferred a common benefit on a group. That is surely the case here, for two reasons. First, we must remember that this case involved twenty-three former employees of RCAG, all of whom had been denied the more generous severance benefits of the RCAG plan. That all of these individuals were parties to the lawsuit does not undercut the fact that the benefits of the suit flow to a substantial number of similarly situated individuals. To rule otherwise would surely exalt form over substance, since the logic of such a position would suggest that if only one of the plaintiffs had litigated the issue here, and the rest had filed separate lawsuits that were stayed to await the result in this one, fees would be appropriate. Such a distinction cannot be justified by any articulable policy, and indeed it runs counter to the policy, embodied in Fed.R.Civ.P.",
"20, of encouraging the joinder as plaintiffs of persons with the same or related claims. Second, the plaintiffs in this case have sought to resolve a number of legal issues *894 that are potentially significant in other ERISA controversies. This factor is relevant to the \"common benefit\" concern. See, e.g., Continental Assur. Co. v. Cedar Rapids Pediatric Clinic, 957 F.2d 588, 594 (8th Cir. 1992); Plumbers & Steamfitters Local 150 v. Vertex Constr. Co., 932 F.2d 1443, 1453 (11th Cir.1991); Armistead v. Vernitron Corp., 944 F.2d 1287, 1301 (6th Cir.1991); Anita Foundations, Inc. v. ILGWU Nat'l Retirement Fund, 718 F.Supp. 244, 246 (S.D.N.Y.1989), aff'd, 902 F.2d 185 (2d Cir.1990). The issues of general significance included questions relating to whether the plan must contain provisions specifying a procedure for modification and the effect of a failure to include such procedures; what degree of formality must attend the termination of a welfare benefits plan; whether deference is owed to an administrator's denial of benefits when his articulated reasons do not come within the scope of explicitly granted discretion under the plan; whether a plan participant is barred from recovery of benefits as a matter of collateral estoppel because other, similarly situated plan participants have lost in a separate suit on similar facts and related legal theories; and whether a claim for a lumpsum payment of benefits is triable to a jury at the plaintiff's request. In sum, all five criteria lend at least modest support to plaintiffs' demand for an award of fees, and most of them strongly support that request.",
"The application is therefore granted, and I now turn to the amount of the award. Plaintiffs seek an award of $592,292.00 in fees and $53,730.37 in expenses. The fees are said to represent over 2,500 hours of work by six attorneys at current hourly rates ranging from $150.00 to $300.00, more than 68 hours of work by a summer associate at $75.00 per hour, and more than 244 hours of labor by three paralegals whose time is billed at $65.00 per hour. (See Affirmation of John C. Lankenau, Esq., executed Aug. 9, 1994, at ¶ 7 & Exh. A; Reply Affirmation of John C. Lankenau, Esq., executed Sept. 26, 1994, at ¶ 29 & n.* & Exh. S). As for the listed expenses, plaintiffs represent that $7,704.50 of the total constitutes taxable costs under Fed.R.Civ.P.",
"54(d)(1) and S.D.N.Y. Civil Rule 11. (Lankenau Aff. at ¶ 13.) We start with certain basic precepts that govern the measurement of fee awards generally and have been applied to ERISA. The ordinary process for determining an award of fees involves calculation of the so-called \"lodestar\" figure. See, e.g., Blanchard v. Bergeron, 489 U.S. 87, 94, 109 S.Ct. 939, 944-45, 103 L.Ed.2d 67 (1989); Hensley v. Eckerhart, 461 U.S. 424, 433-34, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40 (1983). \"Under this approach, the number of hours reasonably expended on the litigation is multiplied by a reasonable hourly rate for attorneys and paraprofessionals.\" Grant v. Martinez, 973 F.2d 96, 99 (2d Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 978, 122 L.Ed.2d 132 (1993). Accord, e.g., Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir.1992).",
"To determine the number of hours that are properly compensable, the court must initially look to the amount of time spent on each category of tasks, as documented by contemporaneous time records of the moving party's attorneys. See, e.g., T.E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 528 (2d Cir. ), cert. denied, 498 U.S. 846, 111 S.Ct. 132, 112 L.Ed.2d 100 (1990); Miele v. New York State Teamsters Conf. Pension & Retirement Fund, 831 F.2d 407, 408 (2d Cir.1987). The court must then determine how much of that time was \"reasonably\" spent. \"In calculating the number of `reasonable hours,' the court looks to `its own familiarity with the case and its experience with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties.'\"",
"Clarke v. Frank, 960 F.2d at 1153 (quoting DiFilippo v. Morizio, 759 F.2d 231, 234 (2d Cir.1985)). If the court concludes that portions of the expended time were not reasonably necessary to achieve the successful result obtained by the movant, it should reduce the time for which compensation is awarded. See, e.g., Hensley v. Eckerhart, 461 U.S. at 434-35, 103 S.Ct. at 1939-40; Clarke v. Frank, 960 F.2d at 1153; Cowan v. Prudential Ins. Co. of America, 935 F.2d 522, 524 (2d Cir.1991). Such reductions are appropriate to account for work on claims unrelated to those on *895 which the movant ultimately prevailed, see, e.g., Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. at 558-61, 106 S.Ct. at 3094-96; Chambless v. Masters, Mates & Pilots Pension Plan, 697 F.Supp. 642, 648 (S.D.N.Y.1988), aff'd in relevant part, 885 F.2d 1053 (2d Cir.1989), cert.",
"denied, 496 U.S. 905, 110 S.Ct. 2587, 110 L.Ed.2d 268 (1990), or for plainly inefficient or duplicative labor. See, e.g., City of Riverside v. Rivera, 477 U.S. 561, 578 n. 9, 106 S.Ct. 2686, 2696 n. 9, 91 L.Ed.2d 466 (1986); Hensley v. Eckerhart, 461 U.S. at 434, 103 S.Ct. at 1939-40; Burr v. Sobol, 748 F.Supp. 97, 101 (S.D.N.Y. 1990). As for the appropriate hourly rates, the court should look to the rates \"prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.\" Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104 S.Ct.",
"1541, 1547 n. 11, 79 L.Ed.2d 891 (1984); Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d at 1058-59. In meeting this requirement, plaintiff bears the burden of proof, but the court may also take judicial notice of prevailing rates in the community. See, e.g., id. at 1059; Miele v. New York State Teamsters Conf. Pension & Retirement Fund, 831 F.2d at 409. Accord, Blum v. Stenson, 465 U.S. at 896 n. 11, 104 S.Ct. at 1547 n. 11. In making its findings with respect to the proper hourly rate, the court should look to fees charged by attorneys comparably situated to those representing the movant. Thus, if the movant is represented by a small or medium-size firm, the appropriate rates are those typically charged by such firms, whereas a movant may obtain higher compensable rates if represented by a large urban firm, since such firms typically charge more per hour to cover a higher overhead.",
"See, e.g., Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d at 1058-59; Jennette v. City of New York, 800 F.Supp. 1165, 1169 (S.D.N.Y.1992); Williams v. City of New York, 728 F.Supp. 1067, 1071 (S.D.N.Y.1990). We turn first to an assessment of the time claimed by plaintiffs as reimbursable. Defendants are correct in invoking the general proposition that a party should not be awarded compensation for time spent only on claims that were ultimately rejected. If, however, as is often the case, an attorney's labors on a given task are in aid of all his client's claims or at least one on which he prevailed, then compensation is appropriate.",
"See, e.g., Hensley v. Eckerhart, 461 U.S. at 435, 103 S.Ct. at 1940; Grant v. Martinez, 973 F.2d 96, 101 (2d Cir.1992); United States Football League v. National Football League, 887 F.2d 408, 414 (2d Cir.1989), cert. denied, 493 U.S. 1071, 110 S.Ct. 1116, 107 L.Ed.2d 1022 (1990). In this case all of plaintiffs' claims were related in that they arose principally or exclusively from defendants' denial of plaintiffs' request for benefits. The only claim with an arguably distinguishable factual base was the claim for non-disclosure of plan documents in the wake of plaintiffs' termination and coincident with their request for benefits, but that claim apparently required little, if any, independent discovery. Not surprisingly, then, defendants identify no time entries relating to discovery that addressed only claims that ultimately were dismissed.",
"The only basis on which some of the claimed time can be allocated to losing claims involves an examination of entries concerning legal research and briefing of motions addressed to those claims, as well as other related entries that are exclusively related to such claims. In their reply papers, plaintiffs undertake that exercise, and represent that such tasks involved a total of approximately 160 hours of attorney time, or a fee of about $23,600. (See Lankenau Reply Aff. at ¶ 16 & n. * & Exh. A). Having acquired considerable familiarity with this case and with the extent of work reasonably required to present and defend the plaintiffs' various claims, I find plaintiffs' estimates to be quite plausible. There are several additional categories of work that defendants contend should be excluded from our calculations. These include the time devoted to an abortive effort to settle the case, the time spent reviewing depositions conducted in a related litigation initiated by the Equal Employment Opportunity Commission and the time spent in preparing *896 a proposed stipulation of facts that was ultimately never executed.",
"In regard to the settlement efforts, plaintiffs make the reasonable observation that an award of fees would serve the well-recognized policy of encouraging settlement of lawsuits. Indeed, we may fairly assume that the time spent on failed settlement negotiations will be compensable in most cases. This conclusion, however, does not directly answer the question of whether, in this case, the time spent by plaintiffs' counsel on settlement discussions should be rewarded. The problem is not that the discussions failed, but that they apparently foundered principally upon a provision that had been in the agreedupon working draft settlement for months before one plaintiff rejected it, thus precluding agreement. It is not clear whether this reflected a change of mind by that plaintiff or whether plaintiffs' counsel simply failed to consult with him sufficiently early in the process, but in either event both sides devoted substantial time and efforts to finishing a fairly extensive and detailed agreement, only to discover that plaintiffs would not unanimously endorse it. Plaintiffs offer no persuasive reason why this fatal problem could not have been discovered by plaintiffs' counsel early in the process, particularly since the basic terms were agreed to several months before the agreement collapsed, and it would be inequitable to impose the burden of that error on defendants. [12] Thus the time spent on settlement from May 1992, when the escrow provision appears to have been embodied in the working draft (see Lankenau Reply Aff. at Exh. B), until November 1992 are not reimbursable. A review of plaintiffs' time sheets reflects that slightly more than 100 hours of attorney time at an average hourly rate of about $250.00 should be excluded on this basis.",
"Hence the fee claim will be reduced by an additional $25,000.00. The other challenged categories of time are properly compensable. The EEOC case involved the same layoffs that triggered the ERISA lawsuit, and the transcripts from that case were obviously a potential source of admissions by defendants. Moreover, since a number of the plaintiffs in this case had been deposed in the EEOC suit, it was crucial for counsel to review their prior testimony to anticipate likely cross-examination. Although only one of defendants' witnesses was cross-examined at trial on the basis of his prior testimony in the EEOC case, this does not undercut the evident necessity of a full review of the transcripts. Plaintiffs' counsel would have been derelict in their performance if they had not done so, and the time spent on that task is therefore compensable. Equally compensable is the time that counsel spent in preparing proposed stipulations of fact, even though the parties ultimately did not agree on a set of stipulated facts.",
"This point is analogous to our observation that abortive settlement discussions are ordinarily compensable if carried on reasonably and in apparent good faith. The parties are obliged by the rules of the court to attempt to stipulate to as large a body of facts as possible, in the interest of narrowing the trial and minimizing all participants' burden. The record indicates that plaintiffs' counsel prepared a proposed set of stipulations, but the parties were simply unable to reach agreement on them. This does not bespeak either bad faith or unreasonably expended efforts on the part of plaintiffs' counsel, and therefore the time spent on that task is reimbursable.",
"The foregoing adjustments reduce the total fee for attorneys, paralegals and summer associate to $543,692.00. I have also reviewed the time records and submitted affidavits with a view to whether the amounts of time claimed for the remaining tasks seem excessive, as a result of either overstaffing or other inefficiencies. In conducting that review I have borne in mind the representations of plaintiffs' counsel that he has already excluded an additional $19,454.50 in otherwise billable time because it involved work not deemed reasonably billable. (See Lankenau Aff. at ¶ 12). As a further guide I have *897 examined the time records submitted by defendants, which reflect their work on most tasks in the case, but exclude the trial and pretrial preparation.",
"(See Affidavit of Christine H. Purdue, Esq., sworn to Aug. 30, 1994, at ¶ 10 & Exh. 34). Based on my review I conclude that the balance of the time claimed by plaintiffs was reasonably expended. Although the total work time is quite substantialin excess of 2,200 hours it must be emphasized that this lawsuit involved twenty-three plaintiffs; several versions of the original complaint; a large and fairly complex body of relevant facts; extensive discovery efforts by both sides, including multiple rounds of document production, interrogatory answers and responses to requests to admit, and nearly thirty depositions taken in this case and others received from related cases; a motion to dismiss; a very extensive set of cross-motions for summary judgment; motion practice regarding plaintiffs' entitlement to a jury trial; preparation of pre-trial submissions and a seven-day jury trial; and finally an extensive set of post-trial motions by both sides. In sum, even with the benefit of hindsight I cannot find that the balance of the time spent by plaintiffs' attorneys warrants reduction for excessiveness.",
"Defendants offer three remaining challenges to the amount of fees sought. First, they assert that since the fees in question significantly exceed the amount of the benefits to be awarded, the fee total is per se unreasonable and should be reduced. Second, they claim that they are entitled to an offset for the fees that they incurred in most of the pre-trial tasks in which they engaged. Third, they take issue with plaintiffs' reliance on their attorneys' current hourly rates for all work done on this case. None of these arguments warrants extended discussion. The fact that the fees in this case will exceed the principal amount of the benefit award to plaintiffs is of no moment. The courts routinely uphold fees substantially in excess of the damages awarded to the prevailing party. See, e.g., Grant v. Martinez, 973 F.2d at 101 (upholding fee award of $500,000 based on settlement of $60,000); United States Football League v. National Football League, 887 F.2d 408, 413-15 (2d Cir.1989) (affirming antitrust fee award exceeding $5.5 million following treble-damage judgment of $3.00).",
"See also Cruz v. Local Union N. 3 of IBEW, 34 F.3d 1148, 1158-59; Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d at 1055, 1057-60 (affirming award of fee exceeding $415,000.00 following grant of monthly pension payment of $2,689.02). It is true that under 42 U.S.C. § 1988 a plaintiff who obtains only an award of nominal damages, although deemed the prevailing party for the purpose of fee eligibility, will usually receive no fee award, see Farrar v. Hobby, ___ U.S. at ___, 113 S.Ct.",
"at 575, but that is scarcely the case here. Plaintiffs have fully prevailed on their claim for benefits and will therefore be awarded nearly $400,000.00 in principal. Moreover, for reasons to be noted, plaintiffs will also receive an award of prejudgment interest that substantially increases the amount of the judgment in their favor. In short, there is no basis to reduce the fee award in view of the relief that defendants have obtained in this case. Defendants' second argument, for a set-off of fees, is entirely meritless. This argument rests on a misreading of the one case cited by defendants. In Leigh v. Engle, 858 F.2d 361 (7th Cir.1988), cert.",
"denied, 489 U.S. 1078, 109 S.Ct. 1528, 103 L.Ed.2d 833 (1989), the court affirmed an order directing that an ERISA trust reimburse the defendant trustees for their legal expenses in successfully defending against certain breach-of-fiduciary-duty claims. That decision was based on the court's reading of the trust instrument, which apparently required such relief for the trustees. Id. at 368-69. Thus, the court did not award fees against the plaintiffs, but simply authorized reimbursement from the trust pursuant to specific trust provisions. Defendants do not seek such relief here. Rather, they demand an award of fees for work done in this case even though they were not the prevailing parties in any meaningful sense and even though they can point to no authority, contractual or legal, for such *898 an award. As the court observed in Leigh, \"an award of fees to a losing defendant certainly would contravene Congress' intent, see 29 U.S.C. § 1110(a)....\" 858 F.2d at 369. Thus, defendants' argument for a set-off of fees must be rejected. Defendants' third argument is similarly baseless. Plaintiffs' counsel have been working on this matter since 1988 and have thus had to wait six years for compensation for a very substantial amount of time that they have expended.",
"In such circumstances the \"district courts retain latitude in determining how they will compensate prevailing attorneys for delay,\" Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d at 1060, but one approach explicitly endorsed by the Supreme Court is the use of current fee rates. See, e.g., Missouri v. Jenkins, 491 U.S. 274, 282-84, 109 S.Ct. 2463, 2468-69, 105 L.Ed.2d 229 (1989). Whether this approach is appropriate in a given case will depend upon whether the increase in fee rates during the pendency of the lawsuit significantly outstripped interest rates, in which case the use of current rates would improperly award the prevailing party a windfall. See Huntington Branch, N.A.A.C.P. v. Huntington, N.Y., 961 F.2d 1048, 1049 (2d Cir.1992).",
"In this case plaintiffs offer us a comparison between their fee demand calculated on the basis of historical rates adjusted by the consumer price index and the same demand measured simply by current rates. (See Lankenau Reply Aff. at ¶¶ 25-28). Since the difference in results is very small representing a variance of slightly more than one percent and since even that difference is probably offset by the fact that the inflation adjustment was done only as of the end of each year, it is obvious that this approach will not yield a windfall for plaintiffs. Defendants do not otherwise contest the reasonableness of plaintiffs' counsel's hourly rates. Moreover, based on my knowledge of rates customarily charged in this community for equivalent work by law firms of comparable size and sophistication as Lankenau, Kovner & Kurtz, I find the hourly rates charged by counsel to be reasonable. See, e.g., Beberaggi v. New York City Transit Auth., 1994 WL 48805, at *4 (S.D.N.Y. Feb. 17, 1994); Pierce v. F.R. Tripler & Co., 770 F.Supp.",
"118, 119-20 (S.D.N.Y.1991), aff'd in relevant part, 955 F.2d 820 (2d Cir.1992). Based on the foregoing analysis, plaintiffs' request for $592,292.00 in fees is reduced by $23,600.00 to account for work on failed claims and by an additional $25,000.00 to account for a portion of the time spent on settlement discussions. In all other respects the fee application is granted. Accordingly, plaintiffs are awarded a total of $543,692.00 in fees. Plaintiffs also seek an expense award of $53,730.37, for which they offer a breakdown by types of expenses. (See Lankenau Aff.",
"at ¶¶ 100-03; Lankenau Reply Aff. at ¶ 30 & Exh. S). Since plaintiffs have been found eligible for a fee award, they are also eligible for reimbursement of their reasonable out-of-pocket expenses associated with this lawsuit,[13] and defendants do not explicitly contest their request. Since I find the amounts incurred to be reasonable under the circumstances, that application is granted as well. B. Pre-Judgment Interest The remaining issue concerns plaintiffs' application for an award of pre-judgment interest. Although not referred to by ERISA, the court has discretion to make such an award in this case. See e.g., Katsaros v. Cody, 744 F.2d 270, 281 (2d Cir. ), cert. denied, 469 U.S. 1072, 105 S.Ct. 565, 83 *899 L.Ed.2d 506 (1984). See generally Wickham Contracting Co. v. Local Union No.",
"3, IBEW, 955 F.2d 831, 833-35 (2d Cir. ), cert. denied, ___ U.S. ___, 113 S.Ct. 394, 121 L.Ed.2d 302 (1992). In view of the long delay in plaintiffs' receipt of benefits that have now been determined to have been due in 1988, such an award is particularly appropriate as a means of ensuring that plaintiffs are made whole and that defendants do not profit by their failure to comply with their ERISA obligations. These concerns are, by themselves, sufficient to justify the award. See, e.g., Quesinberry v. Life Ins. Co. of North America, 987 F.2d 1017, 1030-31 (4th Cir.1993); Cefali v. Buffalo Brass Co., 748 F.Supp.",
"1011, 1024 (W.D.N.Y.1990). As for the calculation of the award, the interest should commence to run when the claim arose. In this case the claim accrued when plaintiffs were terminated. See, e.g., Ginett v. Computer Task Group, Inc., 962 F.2d 1085, 1101 (2d Cir.1992). Since plaintiffs were paid salary through May 30, 1988, severance was to be paid effective the following day. Accordingly, interest should be calculated on that basis. The parties differ as to the appropriate rate of interest, since there is no explicitly applicable statutory provision.",
"Plaintiffs argue for the nine-percent rate embodied in N.Y.Civ.Prac.Law & R. § 5004, principally because an obligation to pay benefits under a plan is in the nature of a contractual claim. Defendants urge a lower rate, citing the post-judgment interest provision of 28 U.S.C. § 1961. Federal courts that have imposed interest in ERISA cases have disagreed as to whether state or federal law should apply. Compare, e.g., Quesinberry v. Life Ins. Co. of North America, 978 F.2d at 1031 (applying state law); Hansen v. Continental Ins. Co., 940 F.2d 971, 984 (5th Cir.1991) (same), with Connecticut General Life Ins.",
"Co. v. Cole, 821 F.Supp. 193, 203 (S.D.N.Y.1993) (applying section 1961); Cefali v. Buffalo Brass Co., 748 F.Supp. at 1025-26 (same); McLaughlin v. Cohen, 686 F.Supp. 454, 458 (S.D.N.Y.1988) (same). We may fairly infer that the court has some discretion in this matter, guided by the understanding that the aim of the relief awarded is to make the plaintiffs whole, but not to give them a windfall. See generally Kinek v. Paramount Communications, Inc., 22 F.3d 503, 514 (2d Cir.1994) (quoting Wickham Contracting Co. v. Local Union No. 3, IBEW, 955 F.2d at 834). Judged by these concerns, the federal rate is more appropriately used here since it provides a closer approximation of the likely return on plaintiffs' unpaid benefits since 1988. Since interest rates in that period were generally below nine percent, an award under the CPLR provision would overcompensate plaintiffs, a result that we are instructed to avoid. In view of the foregoing, plaintiffs will be awarded prejudgment interest on their award of severance benefits. The interest is to be calculated pursuant to 28 U.S.C. § 1961, and is to run from May 31, 1988. CONCLUSION For the reasons noted, defendants' motion for judgment as a matter of law is denied, as is their alternative motion for a new trial. Plaintiffs' application for an award of attorney's fees is granted, and they are awarded a total of $543,692.00 in fees and $53,730.37 in litigation expenses.",
"Their application for prejudgment interest is also granted, with interest to run from May 31, 1988 at the rates defined by 28 U.S.C. § 1961. Plaintiffs are to submit a proposed judgment, together with a summary of their calculation of prejudgment interest, within ten days. SO ORDERED. NOTES [1] Defendants also reiterate an argument made on their summary judgment motion and rejected at the time, to the effect that MCIC's pre-closing intention to apply its own benefit plans to all employees within the MCI corporate family had the effect of terminating the RCAG plan as of the closing. This argument was rejected for reasons noted at some length in the court's prior decision, and I reject it here on the same basis.",
"[2] Defendants cite no legal authority for the proposition that accrued benefits can be retroactively denied by the plan administrator. At oral argument, defendants' counsel, when asked for support for this proposition, invoked only Biggers v. Wittek Industs., Inc., 4 F.3d 291 (4th Cir.1993), a decision that neither addresses the retroactivity question nor supports defendants' case in any other respect. Indeed, the principal holding of Biggers is that a welfare benefits plan that does not specify a procedure for amendment cannot be deemed altered to the detriment of the participants absent both a writing and \"a clear manifestation of an intent to alter the policy or plan.\" Id.",
"at 295-96. For reasons noted in the summary judgment decision, defendants' assertion that the RCAG plan was replaced by the MCIC plan prior to plaintiffs' termination is supported by neither a writing nor any clear indication that the RCAG plan was superceded for RCAG employees in plaintiffs' category. Indeed, it bears noting that the evidence concerning the action of the MCIC Board of Directors in June 1988 to which we have previously adverted suggests precisely the contrary. [3] The legal inadequacy of defendants' argument also precludes our treating it as a request for a new trial, since plaintiffs have shown no basis to question the court's pre-trial conclusion that the RCAG plan had not been terminated as of the time when plaintiffs were fired. As for defendants' articulated grounds for a new trial, I address them in a subsequent section of this decision.",
"[4] It could also be argued that since the Summary Plan Description, which was the explanatory document made available to plan participants, contains no reference to even this limited interpretive authority of the designated RCAG Vice-President, the provision in the \"Procedure\" is of no effect. See, e.g., Heidgerd v. Olin Corp., 906 F.2d 903, 907-08 (2d Cir.1990); Clark v. Bank of New York, 801 F.Supp. at 1190. Again, however, we need not decide that question here. [5] Defendants incorrectly assert that the court rejected the instruction in part because it conveyed the notion that an employment relationship could be formed without a writing. That was not the basis for the court's ruling, the grounds for which were specifically outlined at the charge conference. (Tr.",
"1131-34). Moreover, as noted, the court's charge repeatedly advised the jury that no writing was required. (Tr. 1247-50). [6] The cited exception, found in paragraph (2), requires the award of fees to the fiduciary of a plan who successfully sues on behalf of the plan for delinquent contributions. 29 U.S.C. § 1132(g)(2). [7] Depending upon the degree of interrelatedness of these claims, plaintiffs' lack of success on some of their theories might affect the amount of the fees to be awarded. See generally Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. 546, 558-61, 106 S.Ct. 3088, 3094-96, 92 L.Ed.2d 439 (1986). [8] Similarly beyond the scope of our analysis is the evident abruptness and arguable callousness shown by MCI officials in the manner in which they chose to inform plaintiffs and others targeted for layoffs that they were being fired and had one hour to collect their possessions and leave the premises. [9] As an accompaniment to this argument, defendants invoked the fact that in March 1988 plaintiffs and other RCAG employees received and signed MCIC benefit enrollment cards, but this fact was ultimately more pertinent to defendants' trial contention that plaintiffs had agreed to become employed by MCII as of the closing. At trial, however, this point appeared to founder because defendants' own officials admitted that neither the plaintiffs nor any other RCAG employee had been told at the December 1987 meetings or at any other time before the closing that they might or would be fired immediately after the closing.",
"[10] Plaintiffs make the further point that defendants took a number of positions in the lawsuit that had no legal or factual basis. This is certainly true, the most notable example being defendants' insistence, in their summary judgment motion, that plaintiffs' claim for benefits was barred by collateral estoppel as a result of a decision by the Ninth Circuit in a lawsuit by five other former RCAG employees against MCI. As indicated in the summary judgment decision, defendants' estoppel argument was premised on a factual assumption that was demonstrably false the assumption concerned the claimed participation by these plaintiffs' counsel in the California lawsuit and on a legal theory that was entirely untenable. Nonetheless, in fairness I note that plaintiffs have also occasionally taken unsustainable positions, as evidenced by the dismissal or withdrawal of five of plaintiffs' six claims.",
"There may often be a rather fine line between finding culpability on such a basis and simply second-guessing counsel. There is no need in this case to attempt to tread near that line, and I therefore decline to do so. [11] It is true that neither the parties nor the court could find caselaw directly on point on the dispositive issue. Nonetheless, we are accustomed to reasoning from cases whose factual context is sufficiently analogous to permit extrapolation to our case. Such reasoning by analogy provided a solid base from which to make decisions in this case. [12] This conclusion does not subvert the policy of encouraging settlement efforts. All that we conclude is that such efforts, like all other litigative work, should be conducted in an orderly and efficient fashion so that the time of the attorneys and the court is not spent unnecessarily. [13] Section 502(g)(1) of ERISA refers to an award of \"costs\", but that term apparently covers not only taxable costs under 28 U.S.C.",
"§ 1920, but also other disbursements that are customarily charged to the client. See Scalamandre v. Oxford Health Plans (N.Y.) Inc., 823 F.Supp. 1050, 1065 (E.D.N.Y.1993) (holding that plaintiff was entitled to costs, disbursements and attorney's fees and directing plaintiff to submit attorney's time and expense records); Lutheran Medical Center v. Contractors, Laborers, Teamsters & Engineers Health and Welfare Plan, 814 F.Supp. 799, 804 (D.Neb.1993), aff'd, 25 F.3d 616 (8th Cir.1994) (noting that \"out-of-pocket\" expenses are proper components of any attorney fee award in an ERISA case). See also Reichman v. Bonsignore, Brignati & Mazzotta, P.C., 818 F.2d 278, 283 (2d Cir.1987) (holding that, in a civil rights suit, awards of attorney's fees include reasonable out-of-pocket expenses)."
]
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Mr. Justice MacLeary delivered the opinion of the court. This case presents an appeal interposed by the Honorable Attorney-General of Porto Rico against a judgment of the District Court of San Juan, rendered on the 17th of June, 1904, in a “contentious-administrative” case instituted by Mauricio Guerra and Arturo Guerra against a resolution of the Treasurer of Porto Rico upon the effect of concessions claimed to have been made under the Law of Agricultural Colonies to them in regard to the plantation called “Blandito.” Under the Spanish government the Messrs. Guerra enjoyed a reduction of taxes upon their plantation known as “Blan-dito,’'’ by virtue of a law enacted in Spain on the third of June,. 1868, and afterwards extended to several of the colonies, and among others to Porto Rico. This law was continued in force under the American occupation until the passage of the Revenue Act of the 31st of January, 1901, commonly known as the-Hollander Law, which repealed, or attempted to repeal, all other laws concerning taxes upon real estate and other taxes, in Porto Rico, and substituted an entirely new system of taxation constructed on the American plan. Under the Hollander Law the plantation “Blandito” was taxed in the same manner as other lands in Porto Rico, but before the law took effect, on the 1st of July, 1901, Mauricio and Arturo Guerra presented a petition to the Treasurer requesting that their taxes upon this sugar plantation be continued as before at thirty-one pesos annually, amounting to eighteen dollars and sixty cents in American money. The Treasurer of Porto Rico, Hon. W. P. Willoughby, took the opinion of the Attorney-General upon the matter, and he was advised that the plantation “Blandito” was subject to taxation as other lands, and that the Hollander Law had re*283pealed tlie benefits of the law applying to agricultural colonies under which the reduction was claimed. The resolution of the Treasurer may be stated substantially in the language of the opinion rendered by the Attorney-General’s office on the 11th of December, 1901, which reads as follows: “It seems to me that these property owners, who claim that their lands are exempted from tax under a Spanish statute, have been guilty of such laches as deprive them of administrative recognition of their exemption. Under the Revenue Law they had an appeal to the Board of Review and from there to the Executive Council, and in this way they would have the question as to the propriety of the assessment settled authoritatively. To the argument that such proceeding is for the review of the assessment in toto, it is a sufficient answer to say that this confirms the position that it was the intention of the Revenue Law to establish a uniform system of taxation, that all property should be assessed, and that no exemption should be recognized. From an administrative standpoint the Revenue Law must be so construed, particularly in view of the language of sections 1 and 2 of the law. Section 1 provides for a tax of one-half of 1 per cent upon all real and personal property. Section 2 says ■ all property not expressly exempted shall be subject to taxation, as herein provided. Section 3 contains the expressed exemptions last referred to. Subdivision B, under section 3, specifies property exempted from taxation by the laws of the United States. No other exemption specified in section 3 will cover the case of Messrs. Guerra. “The exemption which is claimed under sections 7 and 8 of the Spanish ‘Ley de Colonias’ was not one in the form of a contract made by the State with its citizens, but was in the nature of a special privilege or indulgence. The sovereignty which gave could take away, both by repealing the statute of special favor and by stopping the continuance of the specific favor already granted. That prerogative of sovereignty passed to the Legislature of Porto Rico. The Treaty of Paris, article 8, says that the ‘relinquishment or cession, as the case may be, shall not in any respect impair the property or right which by law belongs to peaceful possession of property of all kinds, of a province, etc., or of a private individual.' This refers, however, to the cession by Spain to the United States of public domain and the Crown properties; it does not recognize either as a property or as right of property a mere grant of exemption from taxation for a term *284of years. Tlie exemption granted by sections 7 and 8 of the ‘Ley de Colonias’ is in conflict with the intention on the part of the Legislature of Porto Rico to tax all property not expressly exempted in section 3 of the act, and those sections therefore come under the operation of section 111, which repeals all conflicting acts, laws, decrees, ordinances, etc. “The officials charged with the administration of this Revenue Law must execute it with reference to the properties, extending the tax in due time, which will constitute a lien on the property if not paid. Messrs. Guerra may then assert their exemption by means of the judicial remedies which are open to them ” Under the laws of Porto Eico then in force the taxpayers, instead of pursuing the remedy suggested in the last paragraph of the opinion from the Attorney-G-eneral’s office, availed themselves of what is known as the “ C-ontencioso-Administrativo” procedure and removed the question thereunder to the District Court of San Juan, where, on the 16th of January, 1904, a judgment was rendered in their favor. The petition of the plaintiffs, prosecuting their case in the District Court of San Juan, states their claim substantially as follows: “Messrs. Mauricio Guerra and Arturo Guerra, owners of the said estate, applied to the Hon. Treasurer of this Island on the 8th of May 1901, setting forth that since the 18th of August of the year 1896 the benefits of Articles 7 and 8 of the Law of Agricultural Colonies had been granted to the said plantation, or that during ten years, counting from the said date, they should pay as territorial taxes only the sum which up to that time they had paid, or 31 pesos, provincial currency, annually, equivalent to $18.60, as was communicated by the central administration of taxes and revenues of the office of the Mayor of Vega Baja in an official communication dated the 11th of March, 1898; that notwithstanding the change of sovereignty in this Island, that tax was not altered on account of the privilege being respected in accordance with article 8 of the Treaty of Paris. And that, notwithstanding this, the assessor for the district of Vega Baja had .assessed the valuation of the estate of the plaintiffs, to impose taxes upon it in accordance with the so-called Hollander Law, for which reason they made application to the honorable Treasurer, petitioning him to order that their concession be respected, as had been *285done up to that time, in spite of the fact that during the military government of General Henry the system of taxation had been changed, that system being established of which Dr. Coll y Tosté was the author. In the said writing and another one which they presented on the 20th of August of the same year, 1901, the petitioners also stated that when they acquired the estate, in 1895, it was completely abandoned and had not been under cultivation for more than fifteen years, while on the date of their petitions 250 cuerdas of cane had been planted thereon, which was soon increased to 300, for which it had been necessary to spend large sums of money in draining swamps and marshy land and cutting down brush and undergrowth,, and other extraordinary labor, which only under the benefits granted them by the Law of Agricultural Colonies would they have decided to undertake; that the said law was passed, not with a view to providing the Treasury of Porto Rico with revenues, but to encourage the cultivation of its lands, which would have remained unproductive if it had not been for that wise and generous law; that in granting to the owners of those lands the privilege of paying a low tax during a certain number of years also benefited the public treasury, since on the expiration of the time it would have rich lands which would contribute largely to the payment of public expenses; and, finally, that the 111th section of the law to provide revenues for The People of Porto Rico, in repealing, as it did repeal, all other laws in conflict with the same, referred only to those which established other systems1 of taxation, prior to the promulgation of the Hollander Law, with the same object as that of the latter, but not the Law of Agricultural Colonies, which was not passed with this object in view, but with a view to encouraging the cultivation and agricultural development of the Island, and has not been repealed, but continues in force. “On the 9th of December of said year 1901 the Messrs. Guerra again applied to the honorable Treasurer, petitioning him to communicate to them the action taken on their former writings, and then on the 11th of the said month of December, 1901, the decision was given, which, in accordance with .the opinion of the Acting Attorney-General, denied the claim of the Messrs. Guerra, on the following grounds: 1st. On account of the petitioners having been negligent in not applying in due time to the Committee on Revision and to the Executive Council as they could have done, in accordance with the Internal Revenue Law, in which case it could have been determined whether or not it was proper to assess the estate; second, because the spirit of the said Revenue Law had been and was to establish a system *286of taxation which would be uniform in so far that all property should be assessed without acknowledging any exception whatever; third, because, in accordance with sections 1 and 2 of the said law, all property not expressly exempted is subject to taxation, and among the express exemptions provided for in its third section, none of them include the case of Messrs. Guerra; fourth, because the sovereignty which gave the privilege could have taken it away, suspending the continuation of the special favor granted; and because that prerogative of the Government passed to the Legislature of Porto Rico by reason of the change of sovereignty which occurred in this Island; fifth, because, although article 8 of the Treaty of Paris respected the property and the rights of all classes relating thereto corresponding to a province, or to a private individual, this only referring to the properties of the public domain and of the Crown, it was not applicable to an exemption from the payment of taxes during a certain time; and, sixth, because the exemptions granted by sections 7 and 8 of the Law of Agricultural Colonies is in conflict with the intention of the Revenue Law to impose taxation on all property not expressly exempted by the same, it being evident, therefore, that it comes under the operation of its section 111, which repeals all laws and orders in conflict with the Revenue Law. ' ‘ ‘ The said administrative decision concludes by stating that Messrs. Guerra could assert their exemption by means of judicial remedies which were open to them, and therefore, on the 21st of February of the year last passed, Messrs. Guerra applied to this court, sending therewith a copy of the communication of the general Government of the Island, dated 18th of August, 1896, in regard to the concession of the benefit of the Law of Agricultural Colonies, and the original communication from the Treasurer, denying their claim, as well as the translation of the said communication, duly taking the ‘contentious-administrative’ appeal against the decision violating a pre-exist-ing right, and praying that the appeal be admitted, and that the record be ordered produced by the Administration. ‘ ‘ On the 21st of February that request was granted, the administrative record being ordered to be sent up, and with a writing of the 5th of April Messrs. Guerra presented two receipts, dated 10th of March of the same year, showing the payment corresponding to the second quarter of the fiscal year 1901-1902 of the territorial taxes, amounting to $50.79, and an equal amount for the municipal taxes, which receipts were ordered attached-to the records on the same date. On the 19th of June the administrative records ordered to be sent *287were received, the same were ordered to be referred, with the other matters pertaining thereto, to the appellants, in order that they might formulate their complaint within twenty days, which time was extended ten days, within which time the said complaint was presented by their attorney, Don Hilario Cuevillas, basing the same on certain facts set out at length.” ■ The fiscal in the district court first filed a demurrer to the complaint, ■ which was considered by the court and overruled. Answer was then made setting out the defense along the lines indicated in the opinion of the Acting Attorney-General. Proof was taken and may be said to establish the essential facts alleged by the taxpayer without justifying the legal conclusions advanced by them as flowing therefrom. Some of the points made by the counsel for the government were not noticed by the trial court having probably been disposed of in the order overruling the demurrer, and do not appear to have been decided in the judgment rendered. Por a better understanding of the case this judgment will be quoted at length. It reads as follows: “In the city of San Juan, Porto Rico, on the 16th day of January, 1904, this ‘contentious-administrative’ appeal, prosecuted by Arturo and Mauricio Guerra, through their attorney,. Hilario Cuevillas, Esq., and on the trial being represented by Don Antonio Sarmiento, against a.resolution of the Treasurer of Porto Rico, under date of December 11,1901, and one refusing to grant the petition of the plaintiffs herein, which was that the benefits granted to them by the Law of the Agricultural Colonies enacted by the Government of Spain for this Island during the Spanish sovereignty, continue to apply with reference to their property known as ‘ Blandito. ’ “1. Finding: That the lawyer, Hilario Cuevillas, in the name of Mauricio Guerra and Arturo Guerra, in due form' and time took an appeal (coniencioso-adminislraiwo) from the resolution of the'administration on the ground that the said administration refused to recognize the benefits conferred upon his 'Clients by the Law of Agricultural Colonies, under which they had cultivated and reclaimed an estate, property belonging to them, known as ‘Blandito,’ situated in the jurisdiction of Yega Baja, composed of 367 hectares, three *288ares, of which 87 hectares and 50 ares were abandoned, swampy and marshy land, and the remaining 268 hectares, 94 ares and 5 centares, was composed of land which had not been cultivated for more than fifteen years. “2. Finding: That the record of the administrative proceedings was requested from the proper authority, and the same having been received, the appellants were heard in regard to other matters in order that, within the period of thirty days which term might be extended ten days, the corresponding ‘ contentious-administrative ’ complaint might be presented, at the expiration of which time the lawyer, Mr. Cuevillas, presented the same in the name of the appellants, ' basing the same on the following facts: That his clients were the owners of the estate ‘Blandito,’ containing 377 hectares and 3 ares, situated in the jurisdiction of Yega Baja; that of the said tract of land 87 hectares, 50 ares and 5 centares were marshy land and swamps, and the rest of the estate was composed of land which had not been cultivated for more than fifteen years; that his clients took advantage of the Law of Agricultural Colonies, in force in Porto Rico in 1883, as otherwise it would have been impossible to cultivate and make the property productive, and the proper procedure having been followed, the decree which accompanies the complaint was issued, granting his clients the right extended by the Law of Agricultural Colonies, to which reference has already been made; that in view of the same Messrs. Guerra have been cultivating the property under the decree referred to; that in order to compel respect to their rights they made application to the General Treasury, which, after having gone through various formalities, made the resolution from which this appeal is taken, which resolution v?as communicated to the interested parties on the 11th of December,' 1901; that from this resolution which violates a pre-existing right, a ‘contentious-administrative ’ appeal was taken against the administration, which was admitted by order dated 21st of February, 1902; that accompanying a writing of the 5th of April of the same year, they sent two receipts covering payments of taxes, without prejudice to their rights to protest against the collection of the same; that after the change of sovereignty the right granted the owners of the estate ‘Blandito’ was respected as appears from a document and various receipts for taxes which accompanied the same; that in making up the list for the payment of the Hollander tax, in the column for remarks, the benefit which the said estate enjoyed under the Law of Agricultural Colonies granted by the Spanish Government, was made to appear, in *289spite of which fact the assessor assessed the property, alleging that it was not within his jurisdiction to take cognizance of matters of this nature; for which reasons the Treasurer was appealed to, who in turn referred the matter to the Attorney-General, who denied the petition; that the estate 'Blandito’ is completely drained and reclaimed, which has been accomplished after much expenditure of money and sacrifices, which never would have been done except for the existence of the Law of Agricultural Colonies, and if it had not been believed certainly that the rights granted under the same would be permanent and stable; that when General Henry changed the system of taxation in this island the rights of the owners of the. estate ‘Blandito’ were respected, under which system of taxation $1; per cuerda for land of the first class, per annum, 50 cents per cuerda for land of the second class, and 25 cents per cuerda on land of the third class was collected, but notwithstanding this, the estate ‘Blan-dito’ continued to pay the same tax of 31 pesos, provincial currency,, to the estate in accordance with the collection made and the provisions of the Law of Agricultural Colonies; and finally that he instituted the ‘contentious-administrative’ action within the period of time allowed for the same; praying that after to the proper legal proceedings the suit be declared well founded, and that- the Administration be ordered to respect the concession to the owners of the estate ‘Blandito,’ repaying them for the taxes unduly collected and declare null the resolution of the Treasurer General of Porto Rico of the 11th of December, 1901, from which this appeal is taken, and requesting a further prayer that the record in. the case be admitted in evidence. “3. Finding: That the complaint being admitted the Administration was notified, and in its name the Attorney-General, in order that reply might be made within twenty days, and before answering the complaint he presented a demurrer alleging that the said complaint did not show with sufficient clearness the claim of the plaintiffs, as required by articles 42 and 46 of the Law of ‘ Contentious-Administrative’ matters, which demurrer after having been duly heard was overruled by judgment of the 15th of April, 1903. “4. Finding: That another term of fifteen days having been allowed for answer to the complaint, the same was made by the Assistant Attorney-General, setting forth the following facts; that on the 8th of May, 1901, Messrs. Mauricio and Arturo Guerra directed to the Treasurer of Porto Rico a writing giving the history of the estate in question, stating that the same, on the date of the *290concession, was composed of unproductive marslies and swamps, and that now it is composed of good land, 300 cuerdas of the same being composed of cane plantation, and finally petitioning that the Administration should compel them to pay only $18.60 as taxes until the' year 1906; the said writing was referred by the Treasury to the office of the Attorney-General, from whence it was returned duly reported upon; that the Treasurer decided on the matter and advised the interested parties, in effect in accordance with the report of the office of the Attorney-General, concluding by denying the petition presented by the plaintiffs, to which reference has already been made; and that from the said decision of the Treasury Messrs. Guerra duly took a 'contentious-administrative’ appeal, concluding by praying that after the necessary proceedings the complaint be dismissed, acquitting the Administration and deciding that the complainants are obliged to pay on the estate ‘Blandito’ the taxes required by the law of the Legislative Assembly, .approved on the 31st of January, 1902, which clearly repeals the Law of Agricultural Colonies, upon which the appellants base their claim. “5. Finding: That the complainants having prayed that the trial of this cause be begun and opened to evidence, the prayer was granted fixing a term of ten days, which was not to be extended, for the introduction of all pertinent evidence, and the term of twenty days in which to answer such evidence as might be presented. “6. Finding: That the complainant introduced as written evidence the following: A copy of the resolution of the Governor General of the Island of Porto Rico, under date of the 18th of August, 1896, in which the concession granting to Messrs. Mauricio and Arturo Guerra the benefits of the Law of Agricultural Colonies, on the estate ‘Blandito,’ which original communication also came into the record in this ease; a resolution of the Treasurer of Porto Rico denying the petition of the plaintiffs to recognize the benefits enjoyed with reference to the estate ‘Blandito,’ which resolution is dated 11th of December, 1901; a certificate issued by the office of the mayor of Vega Baja in regard to various matters concerning ‘Blandito,’ dated 22d of May, 1903, the authenticity of which was certified to in due time; another certificate issued by the same office of the mayor, showing that the following documents- were to be found on file in the said office; a communication from the Governor General of the Isl- and of Porto Rico, Secretary’s Office, Department 3d, under date of 30th July, 1896; another certificate from the Central Administration of Taxes and Revenues of Porto Rico of the ilth of March, *2911899, reducing the rate of taxes on the estate ‘Blandito’ to the rate of 31 pesos; another certificate issued by the said office of the mayor showing that the said estate ‘Blandito’ paid during the fiscal years 1899-1900 and 1900-1901 the rate of eighteen dollars and sixty cents as municipal taxes; and finally a communication No. 1966 from the Central Administration of Taxes and Revenues of Porto Rico, dated 11th of May, 1897, which ordered that during the first three months of that fiscal year the owners of the estate ‘Blandito’ should pay the rate fixed by the board of experts, and during the following three months the tax corresponding to the 31 pesos fixed in the fore'going fiscal year. “7. Finding: That oral testimony was also proposed, and on the citation of the parties, the witnesses Messrs. Guillermo Rubert, Tulio Otero, Pedro Brüll, and Tomás Prado Landrón, testified without being qualified to do so, in accordance with the interrogatories presented and declared pertinent; that they knew to be true that Mr. Arturo Guerra, in the month of July, 1897, delivered at the sugar central ‘San Vicente’ for the first time, to be ground, 18,000 hundredweight of cane, necessarily planted in the year 1896; that during the first two months of the year 1901 he delivered with the same object 89,770 hundred-weight, which cane was planted at the latest in July, 1900, on 250 or 300 mierdas of land; that the production already mentioned has not been exceeded by the crops of 1902 and 1903; that since 1906 the lands of the estate ‘Blandito’ have been in process of being reclaimed and drained, there existing at present 300 cuerdas under cultivation in cane and the balance used for pasturing cattle; that in order to obtain such results on the estate continuous expenditures have been made by the owners, the Messrs. Guerra; that on account of such industry not only the owners may have been benefited, but also the public sanitary condition, in view of the fact that several pestilent nuisances have been removed which threatened seriously the public health, and that without the concession granted by the Law of Agricultural Colonies it would have been impossible to put the estate ‘Blandito’ in the condition it is now found. “8. Finding: That the evidence of ocular inspection having been given, and the notes made, without the objection of the parties to anything relating thereto and all the evidence proposed having been presented, a day was set for the hearing, on which occasion the attorneys for the parties made such allegations as they deemed pertinent *292to tbeir rights, the record being declared closed for the entering of judgment. “9. Finding: That in this case the rules of procedure have been duly followed. “The Associate Judge Don José Tous Soto delivered the opinion of the court. “1. Concluding: That it must be admitted as a fact beyond any doubt whatever that the benefits claimed by plaintiffs were granted to them; to pay on the estate ‘Blandito/ in the municipal jurisdiction'of Yega Baja) ward of Cabo Caribe, during ten years, beginning with the year one thousand eight hundred and ninety-six, the sum of thirty-one pesos provincial money, or eighteen dollars and sixty .cents, on account of the application to the same of the privileges conferred under the Law of Agricultural Colonies, of the third of June, one thousand eight hundred and sixty-eight, applied to this Island by Royal Decree of the fourth of May, one thousand eight hundred and ninety-four, not only because the Administration has not denied this fact in its answer, but because the official communication brought into the record by the complainants, shows clearly that the concession was really granted to them in the manner set forth. “2. Concluding: That the concession granted to an estate, the benefits of the Law of Agricultural Colonies, established a contract between the Administration and the grantee, by which the Administration exempts the planter from the payment, partial or total, of taxes, in compensation for the service which such planter renders to the .community by putting in cultivation unproductive and insalubrious lands; or what is the same, a real lease of service, in which the State as lessor pays as a favor the imposts which it does not collect from the lessee who renders service in reclaiming and cultivating lands. “3. Concluding: That on such a supposition the contract entered into between the State and the property holder, similar to that established between a corporation incorporated with a clause of exemption from the payment óf imposts and the State, incorporating the same, must be respected and complied with by both parties to the contract, and therefore by The People of Porto Rico, subrogated by virtue of the Treaty of Paris and of the Act of Congress of 12th of April, 1900 (Foraker Law), in the rights and duties of the former Administración Provincial, or general Government of- the Island. “4. Concluding: That, the judgment of the Supreme Court of the United States, cited by the defendant, is applicable only in the part *293that states: ‘The incorporation-of a company with a special charter exempting its lands and other properties from taxation, creates by virtue of the acceptance of the charter or clauses of incorporation, a contract which guarantees the company the • exemption from taxation during the period specified in such charter on account of the similarity which this case has with the one of the concessions of the benefits to agricultural colonies by virtue of a petition of the interested party, equivalent to the charter of incorporation; but it is not applicable with reference to other points, since the exemption from taxes for the term of ten years granted by the Legislature of the District of Columbia (26th of June, 1873) of all property, real or personal, not less in value than fifty thousand dollars, employed on the date of the promulgation of the law, (be actually employed). for manufacturing purposes, has no similarity to the exemption granted by the Law of Agricultural Colonies, inasmuch as exemptions from taxation made by law, in some cases specifying the time, and in other cases not, are merely concessions granted by the Law of Agricultural Colonies, revocable at the will of the same, without the establishment between the States and the grantees of any contractual obligation whatever, on account of the non-existence of concurrent wishes for the reciprocal compliance with agreements liberally stipulated, between the subjects of ample rights, nor therefore the judicial tie which constitutes a contract which cannot be broken nor untied, except for the causes bringing about the nullity or rescission of obligations. “5. Concluding: That the express repeal of the Law of Agricultural Colonies by sections 1, 2, 3 and 111 of the Law ‘to Provide Revenues for The People of Porto Rico/ of the 31st-of January,-1901, cannot touch, im its repealing effects, the rights acquired under the repealed law, in accordance with Article 3 of the Civil Code of 1899 and.Article .3 of the present Civil Code. ‘ ‘ 6. Concluding: That in view of the foregoing, this ‘ contentious-administrative ’ remedy should apply, making its effect retroactive to the date on which the administrative reclamation was made; therefore, to the plaintiffs should be returned the excess on the taxes collected over the sum which they were obliged to pay. “In view of the legal provisions cited, and those applicable under the law of contentious-administrative and the rule for the execution thereof: • • “We adjudge: That declaring this ‘contentious-administrative’ remedy applicable, we should revoke and do revoke, the administra*294tive resolution against which this claim is made, and we should condemn, as we do condemn, the Administration to acknowledge that the estate ‘Blandito,’ situated in the ward of Cabo Caribe, of the jurisdiction of Yega Baja, property of Mr. Arturo Guerra and Mauricio Guerra, enjoys the benefit of the Law of Agricultural Colonies, consisting in the payment, during the term of ten years, counting from one thousand eight hundred and ninety-six of the sum of eighteen dollars and sixty cents as taxes and to return the amounts collected on the said estate in excess of the said sum, imposing the costs against the same (the Government) and this judgment being final, let a copy of the same, together with the administrative record, be returned to its origin. ’ ’ The Insular Government having lost the suit in the district court, the Attorney-General, on the 18th of February, 1904, brought the case here by appeal. The case was argued in this court by Mr. A. Sarmiento on behalf of the taxpayers and by Mr. Jesús María Bossy the fiscal of this court, in behalf of the Government. Counsel for the Government presents for the consideration of the court arguments which may be condensed and stated, in other words, substantially as follows: “1. That an appeal by the taxpayers lay to the board of revision, created by the Revenue Law, and thence to the Executive Council; and that the petitioners in this case not having sought that remedy are cut off from this ‘contentious-administrative’ review. . “2. That the plaintiffs, having paid the taxes without protest or voluntarily, cannot now complain to the courts in order to recover back the money paid and to avoid future payments. “3. That there is no authority in the ‘contentious-administrative’ law for imposing the costs upon the Government. “4. That the exemption from taxation for a part of the land and the reduced valuation for the remainder, and the consequent very light tax imposed thereon, claimed under the law for agricultural colonies, cannot be sustained in view of the repealing sections of the Revenue Law enacted in Porto Rico on the 31st of January, 1901, commonly called the Hollander Law. ’ ’ *295In reply to the first of these several propositions, advanced by the fiscal, the attorney for the taxpayers alleges that in none of the sections of the Revenue Law of Porto Rico is it enacted that the right to make a judicial claim against taxation or valuation made by the Treasury Department of the Island shall he lost through failure to use administrative remedies, which the Internal Revenue Law establishes against such assessements. But even if the doctrine laid down by the fiscal were correct, says the opposing counsel, the Messrs. Guerra could not lose any right on account of non-compliance, inasmuch as the remedies referred to in the Revenue Law relate only to assessments and to valuation of property against which they make no objection. The taxpayers argue that the said remedies had no application to their case whatever, because in this proceeding they claim that the Revenue Law should not be imposed upon them, and that they are liable only to a distinct tax to establish which proposition is the object of their case presented to this tribunal. Answering the fiscal’s second proposition counsel for the tax payers contends that the principles of law relied on to support it have no foundation in the sound principles of reason and in exact justice; and further that the tax payers by their letter, addressed to the Treasurer on the 8th of May, 1901, before the Hollander Law took effect, made all the protest that was necessary on their part and the subsequent payments of the taxes demanded of them cannot be considered as voluntary. In regard to the third point, which is an incidental question of costs, counsel for the taxpayers observes that the matter being so plain and the legal proposition so obvious, the trial court was perfectly right in making the application of Article 93 of the ‘‘Contentious-Administrative Law,” placing the costs upon the litigant whom it considered, with *296the most perfect legality, and the strictest justice, to he maintaining a position without justification. Concerning the fourth point it is contended by counsel for the taxpáyers that the application of Messrs. Guerra to the Spanish authorities, made under the law of the 3rd of June, 1868, for the reduction of their taxes, and the order issued by the provincial officers, granting the same constituted a contract, and that as such it is protected by that clause of the Constitution of the United States which provides that no state can pass any law impairing the obligation of contracts. . (Art. 1 section 10 Cons. U. S.) In other words, that the law mentioned is irrepealable, and that the Revenue Act of the 31st of January, 1901, had no effect in modifying or abrogating this law. The attorney for the taxpayers also claims for them protection under the Treaty of Paris, arguing that the exemption from taxation of his client’s lands is a vested right, and as.such must be considered as property of which they could not be deprived, under the terms of that treaty. No Spanish authorities, save the statute known as the Ley de Colonias Agriólas, are quoted to sustain the position of the taxpayers. This law under which they claim the reduction in their taxes was promulgated by. Queen Isabela II, on the 3d of June, 1868, and extended to Porto Rico in the year 1894; and the sections referred to in this case are 7th, 8th and 26th, which, together with the title of the law and other sections having application to the questions at issue, read as follows: “Law of the 3d of June 1868. “Redrafting the provisions of the law. of the 8th of January and 23d of May, 1845, Royal Decree of the latter date, laws of the 24th of June, 1849, and 21st of November, 1855, 11th of July and 3d of August, 1866, in regard to the protection and encouragement of agriculture and of the rural population and declaring the said provisions to be repealed in all those parts which are in conflict with the present law. *297“Sec. 7. The lands reclaimed by the drainage of lagoons, swamps and places covered with water shall be exempt from all taxes for a period of ten years from the day on which they shall be put under cultivation, as kitchen-gardens, meadows and vineyards, or shall be planted in cereals, vegetables or industrial roots or plants; for fifteen years if they shall be planted in fruit trees; and for twenty-five years if they shall be planted in olive trees, almonds, breadfruit, mulberry and other similar trees. “If houses shall be built on the reclaimed lands, more than a kilometer from a town or village, the houses and the lands pertaining thereto shall enjoy five years more of exemption, respectively, in each of the three cases of the previous paragraph. “Sec. 8. The lands which from time immemorial shall have remained without useful employment, and thus, the cultivation of which shall have been interrupted for a space of fifteen consecutive years,' shall only pay, upon being broken up and cultivated, the tax on real estate, which they shall have paid the previous year, for a period of ten years, from the day on which they shall be put under cultivation, as kitchen-gardens, or meadows, or be planted in cereals, vegetables or industrial'roots or plants; for fifteen years, if they shall be cultivated as vineyards, or planted in fruit trees; and for twenty-five years if they shall be planted in olive trees, breadfruit, mulberry, or other similar trees. “Sec. 22. The proprietors, who at present enjoy the advantages granted by the laws of the 8th of January and 23d of May, 1845, •and the Eoyal Decree of the latter date, as well as by the laws of the 24th of June, 1849; 21st of November, 1855; 11th of July and 3d of August, 1866, or other legislative provisions, and shall build one or more houses on the respective rural estates shall enjoy five years more of non-increase of taxes on vineyards and irrigated lands; and of ten years on nurseries of almond trees, olive, breadfruit, mulberry, and similar trees, the same as on lands planted in timber trees; and the inhabitants of said houses shall, besides, have all the advantages that are granted by this law, the application of which shall be reckoned from the time when the enjoyment of the advantages referred to in the previous laws commenced. .“Sec, 23. The proceedings begun in conformity with the laws.of colonies and of rural population, of the 21st of November, 1855,. and the 11th of July, 1886, and the decision of which is pending, shall be dispatched, according to the will of those who have insti*298tuted tlie same, either in accordance with the provisions of the afore • said laws, or in accordance with those of the present law. “See. 24. The proprietors of rural estates, who shall build on the same one or more houses or buildings, in accordance with the present law, shall be able to redeem the quitrents with which said lands may be encumbered in favor of the State, by paying the capitalized amount of the same, in twenty installments instead of those fixed by the laws in force. “Sec. 25. All the advantages and powers, which by the present law are granted to the proprietors of rural estates and of industrial establishments, situated in the country, are extended to the lessees and colonies of the estates and of the factories. “Sec. 26. The proprietors who wish to enjoy the benefits dispensed by this law, shall apply to the mayor of the municipal district in which the landed property or properties are located, with a petition addressed to the governor of the province, stating the location, area, and boundaries, condition, the products cultivated, if any, and the taxes paid at the time, for the lands which are the subject of the official proceedings. “The mayor shall immediately direct that two members of the board of experts of the place ascertain the facts stated by the proprietor, by an ocular inspection of the lands, and make their report in writing. Within fifteen days after the presentation of the petition of the proprietor, and after having heard the opinion of the town council, the mayor shall forward said petition to the Governor, expressing his opinion and enclosing the report of the members of the board of experts, who have inspected the land, and the resolution of the town council. ‘ ‘ The Governor shall take action on the matter within the period of a month, and if he should fail to do so, it shall be understood that the petition of the proprietor has been granted. “In case the resolution of the Governor should be negative, the proprietor concerned may oppose the same before the Ministry of Public Improvements, which shall decide the matter within sixty days after the presentation of the writing of the complaint. And in case this period should elapse without any resolution being adopted it shall be understood that the petition has been granted, and the proprietor who has made the complaint shall enter upon the full enjoyment of the benefits granted by this law, in accordance with his petition. '' “See. 27. The provisions contained in the law of the 8th of Jan-*299nary, and 23d of May, 1845, tlie Royal Decree of the latter date, laws of the 24th of Jnne, 1849, and 21st of November, 1885, 11th of Jnly and 3d of August, 1886, and all other provisions whatever are repealed in so far as they may be in conflict with the present law. “See. 28. The Government shall establish the necessary regulations for the application of this law.” The concession itself •which the taxpayers claim to have been made in their favor by the Spanish Government does not appear to be copied in the record, but seems to have been proven by letters from the revenue officials to the alcalde ' within whose jurisdiction the lands lay, and read, when translated, as follows: 1 ‘ 1. Central Administration of Taxes and Revenues. — -Porto Rico.— Number 1966. — Under this date I say to the Alcalde of Yega Baja the following: In view of the proceedings instituted by request of Mr. Arturo Guerra, in his own name and representing his father, Mr. Mauricio Guerra, requesting a reduction of the tax imposed by the council of that town, upon his property called ‘Blandito,’ in the territorial tax assessment for 1896-1897, on the ground that the benefits of the Law of Agricultural Colonies have been extended to the said real estate. Finding: That His Excellency the Governor General, by decree of the 18th of August of the year last past, has seen proper to order that the property of the Messrs. Guerra enjoy for ten years the exemption provided for by articles 7 and 8 of the Law of Agricultural Colonies. Finding: That the said council was ad-vised of the aforementioned decree of His Excellency on the 18th of August of the present year, at which date the public had already been assessed for the payment of the territorial tax for this year. Concluding: That the said article 8 provides that the property coming under the concession referred to shall pay during the term of the same amount as the year before. And concluding: That the said exemption on the estate ‘Blandito’ was granted during the first quarter of 1896-1897; the Excellent Treasurer General has deemed proper to order that, in that quarter, the interested parties satisfy the amount fixed by the board of experts, and in the remaining three the tax corresponding .to the 31 pesos fixed for the former fiscal year, which is the rate that should serve as a basis for the taxation of the said property during the term of the concession. Which I quote for *300your information. May God preserve you for many years. — Porto Rico, 11th of May, 1897. — Alejandro Infiesta. — Señor Don Arturo ' Guerra. ‘ ‘ 2. Central Administration of Taxes and Revenues, Porto Rico. — ■ Under this date the following communication is directed to the Mayor of Vega Baja: “Being informed of the request made by Arturo Guerra, representing. his father, Mr. Mauricio Guerra, making claim against the council for the proportion fixed on the estate called ‘Blandito,’ in the territorial tax assessment for the year 1897-1898.' Finding: That in the present assessment list the said estate is assessed at the rate of 51 peso's and 16 cents, the same-as for the fiscal year 1896-1897. Finding: That on the 11th of May, 1897, the abolished Treasurer General reduced the said rate to 31 ppsos, or the same rate as assessed in 1895-1896, on account of the estate ‘Blandito’ coming under the benefits provided for by the Law of Agricultural Colonies. Concluding: That in order to fix the rate which should be paid by the taxpayers, the former assessment list will be taken as a basis, which was not taken into consideration in the present case, notwithstanding the recognized exemption of the said estate; the illustrious Secretary of the Treasury, by virtue of a decision under date of yesterday,, has seen proper to order that the said rate be reduced in the present assessment for the estate ‘Blandito,’ which difference must be pro-' portionately distributed among the other taxpayers of that district, as the total amount to be collected is invariable, the assessors and the council being responsible in common for the collection, in accordance with the provisions of article 71 of the corresponding rules. "Which I communicate to you for your information, etc. May God preserve you for many years. — Porto Rico, 11th of March, 1898. N. Daubón,’’ The first point presented by the appellant is properly preliminary and will be first considered. It may be regarded as fundamental as it goes to the jurisdiction of the district court in the ‘ ‘ contentious-administrative ’ ’ process. It clearly appears by a reference to the Eevenne Law that an appeal is authorized from the decision of an assessor of the Board of Eevision and Equalization composed of the Treasurer, the Secretary, the Commissioner of the Interior, and two other persons appointed by the Governor.. This board is constituted “for the purpose of passing upon all claims made by *301the taxpayers in respect to the assessment of their properties.” (Eev. Stat. P. R., sec. 308.) It is further enacted that “any person aggrieved hy the assessor in relation to the valuation of his property may make written complaint thereof to said board.” (Rev. Stat. P. R., sec. 309.) And again the board is authorized “to hear the appeal and determine anew any questions arising before the board which relate to the liability of the property to assessment, or to the amount thereof.” (Rev. Stat. P. R., sec. 310.) And again in the same section it is declared that “said hoard shall have power to abate, lessen or increase the valuation made in any schedule returned to it, whether any complaint has been made in relation thereto or not, and to decide all other complaints in respect to the assessment of taxes and to correct all errors, as they may be brought to its attention.” (Rev.. Stat; P. R., sec. 310.) The 'fiscal, following the opinion of the Acting Attorney-General, seems to have fallen into an error in regard to an appeal lying from a decision of the Board of Review and Equalization to the Executive Council, since the law says;; “The decision of the board in all matters coming before it. shall be final.” (Rev. Stat. P. R., sec. 310, p. 411.) The claim of counsel for the taxpayers in regard to this point, referring to the defects in the Revenue Law, does not seem to us to be sound, since it was evidently the intention of the Legislature that the Board of Review and Equalization should have a general-supervision over the levying of taxes, and, in the enactment of a revenue law, no special denial of the right of the taxpayer to take his complaint to the courts was necessary. The general repealing section fully covers-this matter. In xegard to the construction of repealing law we need refer to only a very few authorities. The Supreme Court, of Wisconsin in a well considered case says: *302“A revenue law, like any other statute, may be repealed by implication. But there is always a presumption, more or less strong according to circumstances, that a statute is not intended to repeal a prior statute on the same subject unless it does so in express terms. Without a repealing clause the two may stand and have effect together, unless they are inconsistent; and in that ease to the extent of the inconsistency the latter will repeal the earlier; but even then the two must be given effect so far as practicable. In the case of grants of power to tax made to municipal bodies, the presumption that it was not intended to modify or repeal these by subsequent general legislation is so strong as to be almost conclusive. “Nor does the doctrine that statutes in pari materia are' to be taken together and construed as one act affect the question. It is a rule of construction resorted to in ease of doubt, and is never applicable where the statute is plain and unambiguous.” (State v. Cram, 16 Wis., 343, citing Sedgwick on Statutory Law, 231.) If further authorities are necessary they can be had’ in abundance and we will quote the following: “It is not in accordance with settled rules of construction to ascribe to the law-making power an intention to establish conflicting and hostile systems upon the same subject, or to leave in force provisions of law by which the later will of the legislature may be thwarted and overthrown. Such a result would render legislation a useless and idle ceremony and subject the law to the reproach of uncertainty and unintelligibility. ’ ’ (Lyddy v. Long Island City, 10th N. E. Rep., 157.) “ It is a familiar canon of construction that a thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter, and a thing which is within the letter of a statute is not within the statute unless it be within the intention of the makers.” (Riggs v. Palmer, 5 L. A. R., 340, and notes.) There can then, in the light of these and all the authorities, be no doubt of the intention of the Insular Legislature to establish a new system of taxation and to repeal all other systems; and exemptions such as seemed proper being made *303by the Revenue Law all other exemptions and reductions are recalled and abrogated, and if the power to do so existed, these exclusive privileges of the owners of “Blandito” were swept away with all others of a similar character. In the same way the contention of counsel that the remedies provided for his clients before the Board of Revision and Equalization had no application must be denied, since the authority of the board is ample to adjust and determine all such questions. The objection to the jurisdiction of the trial court on the ground that the administrative recourse had not been exhausted is entitled to great weight. The Revenue Law authorizes an appeal to the Board of Review from the Treasurer’s rulings in tax matters, and the parties should have resorted to that remedy before filing their suit. (See “Contentious-Administrative” procedure articles 1, 2, and 4, Political Code articles 308 to 313 inclusive.) There is a procedure in some of the States, in school matters, similar to the “contentious-administrative” practice in use in Porto Rico. It is held, in one of the States, that no suit can be brought against trustees, or other school authorities until the parties first apply to the State school board; and the pleadings must show that this has been done. The legal status upon which, the court may act is not established until some right has been denied the party by the highest administrative officer or board having jurisdiction of the subject matter. It cannot be said that the right is denied by the Government when no proper application has been made to it, in order that its officer may pass on the right, and have an opportunity to recognize or deny it. It is true that jurisdiction over the person will be presumed, when nothing appears to the contrary in the record, but jurisdiction over the subject-matter is never presumed, and consent of parties- cannot give jurisdiction in such cases. The Law of “Contentious-Administrative” procedure, article *30446, provides for the filing of dilatory exceptions before making answer and among the exceptions which can be presented mentions that to the jurisdiction; and article 48 provides that exceptions which are not filed before the answer may be filed as peremtory exceptions with the answer, and the court is required to pass on them when rendering final judgment. There is nothing in those articles that militates against the proposition that the court is without jurisdiction when the administrative remedy has not been resorted to; on the contrary the language of the fifth paragraph of article 46 expressly states that the court is incompetent when the claim is not of the nature and condition required by the fifth title of the law. Article 1 is very clear in stating when the ‘ ‘ contentious-administrative” procedure may be resorted to; and requires as an indispensable requisite to the court’s jurisdiction that the required legal status shall have been previously produced; and by the terms of article 2 of the same law that status cannot exist until the administrative recourse has been fully appealed to. If the points here presented are not jurisdictional, they at least go far toward the merits of the action, and are so material that they may possibly affect its foundation. The fact of the plaintiff’s having resorted to his administrative remedy is absolutely necessary to form a predicate upon which to base a decree, and when this basis has not been laid so far as the record shows, it is difficult to see how the judgment can be maintained in force. We will now glance at the second preliminary proposition advanced by the appellant, that the taxpayers are cut off from their application to the courts for relief in this case because they have paid the taxes assessed on the lands and cannot recover money voluntarily paid into the Treasury of the Island. To this the appellees reply that although they have paid the tax regularly their application made to the Treasurer on the 8th of May, 1901, was in the nature of a protest, made *305before the law went into effect, and must be considered as. such. Inasmuch as the exemption claimed is for ten years, and does not expire for a year or two yet to come, there must be some taxes remaining unpaid, and as to these at least the taxpayers have a right to object in a proper manner. But as the petition seeks to recover back the sums claimed to have been paid in excess of $18.60 per annum, we may examine the force necessary to be given to the proposition laid before us by the attorney for the Island. In the discussion the eminent counsel representing the taxpayers in substance says: “Reference is made by counsel for the Government to the views of a so-called eminent legal writer on the matter of voluntary payments. These propositions lack logical soundness and are not consonant with exact justice.” Let us hear the text-book speak for itself. In regard to this question of voluntary payments Judge Cooley, in his work on taxation, states the law as follows: “That a tax voluntarily paid cannot he recovered back the authorities are generally agreed. And it is immaterial in such a case that the tax has been illegally laid, or even that the law under which it was laid was unconstitutional. The principle is an ancient' one in the common law, and is of general application. Every man is supposed to know the law, and if he voluntarily makes a payment which the law would not compel him to make, he cannot afterwards-assign his ignorance of the law as the reason why the State should furnish him with legal remedies to recover it back. Especially is this the case when the officer receiving the money, who is chargeable with no more knowledge of the law than the party making payment, is not put on his guard by any warning or protest, and the money is paid over to the use of the public in apparent acquiescence in the justice of the exaction. “Mistake of fact can scarcely exist in such a case except in connection with negligence; as the illegalities which render such a demand a nullity must appear from the records, and the taxpayer is *306just as much hound to inform himself what the records show, or do not show, as are the public authorities. The rule of law is a rule of sound public policy also; it is a rule of quiet as well as of good faith, and precludes the courts being occupied in undoing the arrangements of parties which they have voluntarily made, and into which they have not been drawn by fraud or accident, or by any excusable ignorance of their legal rights and liabilities. “All payments are supposed to be voluntary until the contrary is made to appear. Nor is the mere fact that a tax is paid unwillingly, or with complaint, of any legal importance, but there must be in the case some degree of compulsion to which the taxpayer submits at the time, but with notificaiton of some sort equivalent to reservation of rights. It has been said in one case that ‘taxes illegally recovered may always be recovered back if the collector understands from the payer that the tax is regarded as illegal and that suit will be instituted to compel the refunding,’ but it has been repeatedly held that a mere protest, when payment was not made to save arrest or the seizure or sale of goods, or in submission to process that might immediately have been enforced, would not relieve the payment of its presumed voluntary character. In some cases it is held that a payment made only to release lands from'the lien of a tax, or to prevent a sale of lands, or to redeem lands from a sale actually made, will not be held a payment under compulsion, and the party paying cannot reclaim it; but this is not universally assented to; and it seems reasonable that the rule should be restricted to eases in which if sale were made, fatal defects would appear on the face of the proceedings. A party ought not to be exposed to any more risks of loss in relieving his lands of an apparent cloud upon title than in protecting his goods against an illegal sale. “When a voluntary payment is spoken of, the qualifying word is not used in its ordinary sense, and many payments are held to be voluntary which are made unwillingly and only as a choice of evils or of risks. Thus, a payment has been held to be voluntary which the owner made to save the property from being sold, as he supposed, when the collector was actually assuming to proceed to sale, but with an authority void on its face, and without possession or control of the property. A like ruling has been made when the officer threatened to sell property for a tax not then delinquent, having at the time no power to carry out his threat. So where a court without authority made an order for the payment of a tax, and payment was made accordingly, the party under such circum*307stances being under no legal compulsion — the payment was held voluntary. So where one of the days fixed for the sale of his property for the illegal tax proposed to make payment on the next day if the sale should be postponed, and postponement was had and payment made as proposed, this was held a voluntary payment. And it has been said in some cases, that when it is sought to recover back a payment as having been made under compulsion, it should be made to appear that payment was made to release either person or property from the power of the officer. And this may be said to express the general sense of the authorities. ‘ ‘ Statutes in some States have changed the rule somewhat and have allowed a recovery in all cases of illegal tax, provided that at the time of payment formal protest was made as the statutes prescribe. In respect to such statutes it is only necessary to say that a party relying upon them must be careful to bring his case within their provisions.” (Cooley on Taxation, pp. 809, 810, 811, 812 and 813.) In so far as the protest and the doctrine laid down by Cooley is concerned, say the distinguished counsel, representing the appellees herein, it is very doubtful, in the sound principles of reason and according to the strictest justice, whether it could have any application to the present case. This text writer, says the counsel, maintains that there is no right to reclaim from the State the return of money which has been paid in without protest, and from this the fiscal jumps to the conclusion that it cannot he maintained that the Messrs. Guerra have any right to reclaim taxes paid, but that in some manner the exaction of this tax was legal and that it ought to continue to be. collected. But, continues their advocate, the Messrs. Guerra protested against the illegal collection which was being made upon them of those taxes, as is proven by the first Writing which they addressed to the Treasurer of Porto Bico, against the legality of the said exaction long before the date at which the tax was collectible, and consequently the protest which the fiscal failed to observe, as a reality is as evident as the existence of this suit. Such is substantially the position taken by counsel for the taxpayers. *308In our opinion the law as laid down by Judge Cooley correctly settles the question that, in so far as the recovery of any moneys already paid into the Treasury is concerned, the taxpayers have not taken the proper measures for their own protection. The payments, made by them must be considered as voluntary. The taxpayers were under no sort of duress either as to their persons or their property. They should have waited before making payment until a sale of their property was threatened when they, to prevent such a sale, could have made payment of the taxes under protest, or have sought for an injunction preventing a sale for the taxes claimed to be illegal, and aTl the matters which are brought to issue in this suit could have been there decided. When money has been inadvertently paid to the Treasury, under a mistaken claim of right, voluntarily and without protest, resort must be had to the Legislature to secure a repayment, and not to the courts, who have thus lost jurisdiction over the subject-matter. As to the third point presented by the fiscal we need only say that in the view taken of this case the discussion in reg'ard to costs is not material. If it were necessary to consider the .question, the contention that in no event should costs be adjudged against the Government in such a case as this must be sustained. The 93d article of the “Contentious-Administrative” Law cannot'be held to warrant it. This brings us to the fourth and last proposition made by counsel for the Insular Government. Notwithstanding any views expressed on the preliminary questions presented herein we will examine the main proposition as minutely as its importance demands. It is not necessary to discuss the great question formerly mooted whether or not the Constitution of the United States entire, or the- subsidiary one as to whether the clause in the 10th section of the first article thereof which provides that “no State shall pass any law impairing the obligations of *309contracts,” is in force in Porto Eico. For the purposes of this decision it may be considered that the taxpayer is entitled to all the benefits which conld be derived from that clause, the same as if it were in force in Porto Eico. Let ns consider the case on this basis. But counsel for the appellees claims for his clients the protection of the Treaty of Paris, maintaining that this exemption from taxation, and reduction in the amount thereof, is property, or a right or rights belonging to the peaceful possession of property, within the terms of Article VIII of that treaty. In order more clearly to understand the proposition advanced by counsel, we will quote the first two paragraphs of the article, which read as follows: “In conformity with the provisions'of Articles I, II and III of this treatly, Spain relinquishes in Cuba and cedes in Porto Rico and other islands in the "West Indies, in the Island of Guam and in the Philippine Archinelago, all the buildings, wharves, barracks, forts, structures, public highways and other immovable property which, in conformity with law, belong to the public domain, and as such belong to the Crown of Spain. “And it is hereby declared that the relinquishment or cession, as the ease may be, to which the 'preceding paragraph refers, cannot in any respect impair Ihe property ór rights tuhich by law belong to the peaceful possession of property of all hinds, of provinces, municipalities, public or private establishments, ecclesiastical or civic bodies, or any other associations having legal capacity to acquire and possess property in the aforesaid territories renounced or ceded, or of private individuals, of whatever nationality such individuals may be.” This claim of protection under the Treaty of Paris may as well be disposed of here and now as elsewhere and at another time. If the exemption from taxation is a vested right in the appellees under the Spanish statute called the Law of Agricultural Colonies, it is a right of property and either in accordance with or regardless of the treaty should be protected. (See Vryan v. Kennett, 113 U. S., 192; Soulard *310v. United States, 29 U. S., 511; Strother v. Lucas, 37 U. S., 435, 438; Head Money cases, 112 U. S., 598, 599.) Article VIII of this treaty has reference only to “ immovable property which belongs to the Crown of Spain,” and the cession thereof cannot impair the rights of private individuals. From a carefnl reading of the two sections quoted this plainly appears to be their meaning, and if such is a proper construction this article can have no reference to the lands involved in this suit, nor to the exemption from taxation, entire or partial, which is claimed herein. But there is no need to appeal to the Treaty for protection of vested rights. These are protected under the Constitution and laws of the United States with or without a treaty to that effect. Courts of justice never knowingly infringe vested rights in any civilized country and the Treaty of Paris in the section referred to is merely declaratory of these principles. (See Fletcher v. Peck, 10 U. S. [6 Cranch], 132 et seq.) Then the case may be considered, not only in accordance with the treaty and the National Constitution, but with due regard to the universal principles of justice which forbid the deprivation of any citizen of his vested rights. Whatever rights the appellees may have had under the laws of the former Government should be recognized under the present, and our courts should regard the status of the lands as unchanged by the cession of the Island to the American Government. The very core of the question then is: Had the exemption of a part and the reduction of the remainder of the lands, in regard to taxation, become fixed upon the real property, so as to be regarded as a vested right, arising out of a contract, in such a manner as not to be affected by subsequent legislation? We may observe at the outset that the matter of the taxation of lands in Porto Rico and the recognition of exemptions and reductions made or claimed to have been made, whether *311they are deemed to be temporary or permanent must be governed by the American laws, the sovereignty of the Island being vested in the American Government, bnt before entering fully npon the discussion of the case in the light of American jurisprudence we may glance at the Spanish statutes. A reference to the title will show that the Spanish law of the 3d of June, 1868, on which the appellees rely as the basis of their supposed contract, repealed and modified several other prior laws, of an entirely similar nature, in regard to the protection and encouragement of agriculture. It would appear from this fact in itself that the law under which protection was claimed was not regarded in Spain as irrepealable, and that the exemption from taxation under that law was in no way regarded as having the sanctity of a contract. The taxpayers rely in this proceeding npon two decisions made by the Supreme Court of the United States to sustain their proposition that the reduction and exemption claimed by them from the effect of the general tax laws is an irrepealable contract. Reference is made to the opinions expressed by Mr. Justice Davis in the cases of Home of the Friendless v. Rouse, and Washington University v. Rouse, in (8 Wall.) 75 U. S., pages 435-439. Those opinions, following the case of Dartmouth College v. Woodward, (4 Wheaton,) 17 U. S., 625, and other cases in line with that celebrated decision, maintained the proposition that a charter granted by a state to a charitable or educational institution, and for the purpose of enabling the incorporators “more fully and effectually to accomplish their laudable purpose,” exempting the property of such corporation from taxation, forms a contract, based on a sufficient consideration, and thus secures the protection of that clause of section 10 of Article I of the Constitution of the United States, forbidding any State to pass a law impairing the obligation of contracts. The exemption so given in a charter granted by the State *312cannot afterwards be withdrawn by a subsequent legislature owing to the force of the clause in the National Constitution mentioned. This proposition is recognized as the settled law in the United States, notwithstanding the very, able dissenting opinions which have from time to time been filed by some of the justices of the Supreme Court limiting or calling in question the doctrine which thus curtails the taxing power. Mr. Chief Justice Chase and Mr. Justice Field join Mr. Justice Miller, in the cases cited from (8 Wall.) 75 Ü. S., in holding that no legislature can by such a contract deprive the State forever of the power of taxation; since such action might result in the destruction of the Government by entirely surrendering the taxing power absolutely necessary to its maintenance. Giving these opinions all the force which can be claimed for them, they do not support the position taken by the taxpayers in this case, unless the plaintiffs having no charter, can show that they have a contract, based on a valid and sufficient consideration, to support the exemption, or reduction in taxation, claimed as applicable to their sugar, plantation called “Blandito.” Concerning this position taken by the counsel for the taxpayers a quotation may be made from a case covering similar circumstances. It is a case decided by the Supreme Court of the United States and arose in Pennsylvania. A law of the Legislature passed in 1833 had exempted the property of a hospital from taxation for an indefinite term, and eighteen years afterwards this law was repealed. Although it was claimed to be a contract, the Supreme Court says: “The plaintiffs claim that the exemption conceded by the act of 1833 is perpetual, and that the act itself is in effect a contract. This concession of the Legislature was spontaneous, and no service or duty, or other remunerative 'condition, was imposed oq the corporation. It belongs to the class of laws denominated privilegia fa-*313vorabiUa.. It attached only to such real property as belonged to'the corporation, and while it remained as its property, but is not a necessary implication from these facts that the concession is perpetual, or was designed to continue during the corporate existence. “Such an interpretation is not to be favored, as the power of taxation is necessary to the existence of the State, and must be exerted according to the varying conditions of the Commonwealth. The act of 1833 belongs to a class of statutes in which the narrowest meaning is to be taken, which will fairly carry out the intent of the legislature. All laws, all political'institutions, are dispositions for the future, and their professed object is to afford a permanent and steady security to the interest of society. Bentham says: ‘That all laws may be said to be framed with a view to perpetuity; but perpetual is not synonymous with irrevocable; and the principles on which all laws ought to be, and the greater part of them have been, established, is that of defeasable perpetuity — a perpetuity defeasible by an alteration of the circumstances and reasons on which the law is founded. “It is in the nature of such a privilege as the act of 1833 confers that it exists bene placitum, and may be revoked at the pleasure of the sovereign.” (Rector, etc., of Christ Church v. Philedalphia County, 65 U. S. [24 Howard], 302-303. The Supreme Court of the United States again in a later case emphasizes this doctrine in the following clear and •concise language: ‘ ‘ It has been held many times in this court that a State may make a valid contract that a corporation or its property within its territory shall be exempt from taxation, or shall be subject to a limited and specified taxation. (Referring to many cases.) “The court has, however, in the most emphatic terms, and on ■every occasion, declared that the language in which the surrender is made must be clear and unmistakable. The covenant or enactment must distinctly express that there shall be no other or further liability to taxation. A State cannot strip itself of this most essential power by doubtful words. It cannot, by ambiguous language, be deprived of this highest attribute of sovereignty. This principle is distinctly laid down in each of the cases referred to. It has never been departed from.” (Erie Railway Company v. Pennsylvania, 88 U. S., 498 and 499.) *314Counsel for the taxpayers also himself relies upon and cites the Dannouth College Case, decided in the year 1819 and reported in 17th U. S. (4th Wheaton), 628. In our view this case has no application to the present, further than to illustrate the force of the constitutional provision above referred to. The main question in that famous case was whether or not a charter granted to a college situated in New Hampshire, by the British Government fifty years, previously, should be respected by the Government of the State afterwards erected among the colonies; and it was-decided that such a charter constituted a contract and was. entitled to the protection of the constitutional provision, and that therefore no State could pass a law changing such a charter in its essential features without impairing the obligation of the contract entered into bétween the former Government and the college long years before, which was forbidden by the Federal Constitution. It may perhaps be unnecessary to discuss the long line of decisions which have followed the Dartmouth College' Case, nor the effect which those cases have upon legislation and jurisprudence in the United States. The famous opinions of the great Chief Justice and his. able associates, Washington and Story, were probably more far-reaching than he and his associates, who concurred in the decision at that time, anticipated. But, whatever may be thought of this notable case in the light of later history, it is the law of the land, and as such must be respected. Let us follow the current of authorities as it carries this question along from time to time. Another case decided by the Supreme Court of the United States in 1830, in which Chief Justice Marshall again wrote the opinion of the court, is Providence Bank v. Billings, 29 U. S. (4 Pet.), 358. From that opinion may be cited the following paragraph: *315“The p.1 aim of the Providence Bank is certainly of the first impression. The power of taxing moneyed corporations has been frequently exercised, and has never before, so far as is known, been resisted. Its novelty, however, furnishes no conclusive argument against it. That the taxing power is of vital importance; that it is essential to the existence of government, are truths which it cannot be necessary to reaffirm. They are acknowledged and asserted by all. It would seem that the relinquishment of such power is never to be presumed. We will not say that a State may not relinquish it; that a consideration sufficiently valuable to induce a partial release of it may not exist; but as the whole community is interested in retaining it undiminished, that community has a right to insist that its abandonment ought not to be presumed, in a case in which a deliberate purpose of the State to abandon it does not appear.” (Providence Bank v. Billings, 29 U. S. [4 Pet.], 558-560.) This case was followed in 1853 by a decision of the samé high tribunal, in which Chief Justice Taney delivered the opinion of the court. It is reported in 57 IT. S. (16 Ilow.), and a paragraph on page 428 may be quoted: “It will be admitted on all hands that with the exceptions of the powers surrendered by the Constitution of the United States, the people of the several States are absolutely and unconditionally sovereign within their respective territories. It follows that they may impose what taxes they think proper upon persons or things within their dominion, and may apportion them according to their discretion and judgment. They may, if they deem it advisable to do so, exempt certain descriptions of property from taxation and lay the bnrden of supporting the government elsewhere. And .they may -do this in the ordinary forms of legislation or by contract, as may seem best to the people of the State. There is nothing in the Constitution of the United States to forbid it, nor any authority given to this court to question the right of a State to bind itself by such contracts, whenever it may think proper to make them.” (Ohio Life Insurance and Trust Company v. Debolt, 57 U. S. [16 How.], 428.) But again in the same case, on page 434 of the same volume, the same illustrious jurist used the following lan- *316“The rule of obstruction, in eases of this kind, lias been well settled by. this court. The grant of privileges and exemptions to a corporation are strictly construed against the corporation, and in favor of the public. Nothing passes but what is granted in clear and explicit terms. And neither the right of taxation nor any other power of sovereignty which the community have an interest in preserving undiminished will be held by the court to be surrendered unless the intention of the surrender is manifested by words too plain to be mistaken. This is the rule laid down in the case of Billings v. The Providence Bank and reaffirmed in the case of the Charles River Bridge Company.” (Ohio Life Insurance and Trust Company v. Debolt, 57 U. S. [16 How.], 434.) The Chief Justice continuing, in the same opinion on the next page, says: “And if individuals choose to accept a charter in which the words used are susceptible of different meanings, or might have been considered by the representatives of the State as words of legislation only, and subject to future revision and repeal, and not words of contract, the parties who accept it have no just right to call upon this court to exercise its high power over a State upon doubtful or ambiguous words, nor upon any supposed equitable construction, or inferences made from other provisions in the act of incorporation. If there are equitable considerations in their favor the application should be made to the State and not to this court. If they came here •to claim an exemption from their equal share of the public burdens, or any peculiar exemption or privilege, they must be shown by plain and unequivocal language.” (Ohio Life Insurance and Trust Company v. Debolt, 57 U. S. [16 How.], 435.) Some years later, in 1862, a case arose iu the State of Wisconsin which involved the power of a State to tax certain property within its limits, and the Supreme Court of the United States, speaking through Mr. Justice Swayne, in making its decision, announced the following propositions: “The Act of 1854 authorized the borrowing of money, the issuing of bonds, and the levying of a tax upon all the property in' the city for the purposes specified. The imposition, modification and *317removal of tases, and the exemption of property from such burdens is an ordinary exercise of the power of a State sovereignty. There is no pledge, express or implied, that this power should not thereafter be exercised. “Admitting that the State could enter into such an engagement there is no evidence that it did. This fact should never be assumed unless the language used be too clear to admit of doubt. If the agreement existed, the complainant is not in a position to make the question. There is no allegation that the tax levied is insufficient. We-hear of no complaint from the bondholders. They are not before us. It does not belong to the complainant vicariously to enforce their contract and protect their rights.” (Gilman v. City of Sheboygan, 67 U. S. [Blk.], 513.) In 1871 a case came from the Supreme Court of Michigan to the Supreme Court of the United States involving questions very similar to the case at bar. The State of Michigan,, by a law regularly passed by the Legislature had offered a, bounty of ten cents for every bushel of salt manufactured for a certain number of years. This was held not to be a contract in such a sense that it could not be repealed. The Supreme Court in discussing it held that such a law was. only a bounty law, and merely regulative of the internal economy of the State, and that such general encouragement, was held out to .all persons indiscriminately to engage in any particular manufacture or trade. In concluding the opinion of the Supreme Court, rendered by Mr. Justice Bradley, the following language is used: “In short, the law does not, in our judgment, belong to that class of laws which can be denominated contracts, except so far as they have been actually executed and complied with. There is no stipulation, express or impliéd, that it shall not be repealed. General encouragement, held out to all persons indiscriminately, to engage in a particular trade or manufacture, whether such encouragement be in the shape of bounties or drawbacks, or other advantage, are always under the legislative control and may be discontinued at any time.”' (Salt Company v. East Saginaw, 80 U. S. [13 Wall.], 397.) *318Again in the year 1874 in the case of Tucker v. Ferguson, reported in 89 U. S. (22 Wall.), beginning on page1 527, the Supreme Court reaffirmed this doctrine. Mr. Justice Swayne delivered a very lengthy and able opinion, from which the following paragraphs are quoted: “The company, so far as the matter of right is concerned, were upon a footing with all other alienees of the United States. The imposition of taxes can in no just sense be said to be a diminution of the value of the lands. If Congress had thought so, they would have forbidden it. Liability to taxation is an incident to all real estate. Exemption is an exception. When claimed, to be effectual, it must be clearly made out. * * * “The provision of the thirty-seventh section of the Act of 1871, exempting the lands specified from local taxation until three years from the 1st of April, 1871, which period has not elapsed, was not a contract. There was no consideration. The company was required to do nothing and did nothing in return. As. between individuals the stipulation would belong to the category'of nude pacts. It has no higher character because one of the parties was a State, the other a corporation, and it was put in the form of a statute. It was the promise of a gratuity spontaneously made, which might be kept, changed or recalled at pleasure. * * * “The taxing power is vital to the functions of government. It helps to sustain the social compact and to give it efficacy. It is intended to promote the general welfare. It reaches the interest of every member of the community. It may be restrained by contract in special cases for the public good, where such contracts are not forbidden. But the contract must be shown to exist. There is no presumption in its favor. Every reasonable doubt should be resolved against it. Where it exists it is to be rigidly scrutinized, and never permitted to extend, either in scope or duration, beyond what the terms of the concession clearly require. It is in derogation of public right and narrows a trust created for the good of all.” (Tucker v. Ferguson, 89 U. S. [22 Wall.], 573, 574, 575.) The doctrine announced and the decision rendered in the case of Tucker v. Ferguson (22 Wall., 527) was reaffirmed in a subsequent Wisconsin case in October, 1876. This was the case of West Wisconsin Railroad Company v. Super*319visors of Trempealeau County, 93 U. S., 597 et seq. Mr. Justice S wayne, delivering tlie opinion of the court in this case also and referring to the case above cited, and quoting from it, says: “We hold here, as we held there, that the exemptions in question were gratuities offered by the State, without any element of a contract. There was no assurance or intimation that they were intended to be irrevocable, or that the laws in question should not be at all times subject to modification or repeal in like manner as other legislation. If a different intent had existed, it would doubtless have been clearly manifested by the language employed. It would not have been left to encounter the possible results of such a struggle and conflict as have occurred in this litigation. * * * . “The State chose to continue the gratuity for a time and then withdrew it. The exemption given by both acts wa's abrogated a year before the bonds of the last series were issued and before the first term of exemption expired or the second began. The State did what it had an unqualified right to do. In such cases, a reasonable doubt is fatal to the claim. Prima facie every presumption is against it. It is only when the terms of the concession are too explicit to admit fairly of any other construction that the proposition can be supported. (Providence Bank v. Billings, 4 Pet., 561; Christ’s Church v. Philadelphia, 24 How., 302; Gilman v. Sheboygan, 2 Black, 513; Herrick v. Randolph, 13 Vt., 531; Easton Bank v. Commonwealth, 10 Penn. St., 450; People v. Ropper, 35 N. Y., 629.) “We hold the conclusion we have announced to be the law of this case. With its ethics we have nothing to do. That subject is not open to our consideration.” This brings us, in the current of authorities, to the case of Welch v. Cook, 97 U. S., 541, which is the one mainly relied on by the fiscal in his argument before this court. In this case it appears that the District of Columbia, which at that time had a legislative assembly, passed an act, providing that all property, real and personal, which might thereafter be actually employed for manufacturing purposes, should he exempt from taxation for a period of ten years. After-, wards the Legislative Assembly of the District of Columbia, *320was abolished by the Congress of the United States, and a tax law was enacted imposing certain taxes on all real estate in the said district except that belonging to the United States and to the Distinct of Columbia, and that used for educational and charitable purposes, thus repealing the law exempting property employed for manufacturing purposes. Welch and others, who had invested their money in manufacturing enterprises within said district, brought a suit to enjoin the collection of taxes, claiming the exemption under the act of the legislature. The case finally reached the Supreme Court of the United States, and Hr. Justice Hunt delivered the opinion of the court. The whole opinion is worthy of a careful reading and consideration; however, we will quote but two paragraphs: “Under these circumstances, and prefaced, as was the act by the recital that this levy was made to support the Government and maintain its credit, it is apparent that the Act of Congress was intended to create a separate system, and to be independent of the action of all preceding bodies. Other and different exemptions have before existed; no settled system had been adopted. The Act of the Legislative Assembly of 1871, fixing the taxes for that year, gave more than forty exemptions in great detail, covering an entire page in the statute book (p. 26) ; that of the same body, fixing the taxes for 1872, exempted only personages, churches, the ground on which they stood, and burial grounds (p. 109). Here it is declared that all real estate shall be taxed except that therein specifically exempted. We think that the system in regard to taxation, including what should be taxed, the rates and the exemptions from taxation, Avas intended to be an independent one, to abolish existing impositions or exemptions, and to form a complete system of itself. “Nor are we able to see that this action involves a breach of faith towards the owner of the manufacturing property. Conceding, as the plaintiff must and does, that the exemption of this property was of the bounty of the Legislature, he knew when he accepted it that it was liable to be revoked whenever either the local legislature or Congress should be of the opinion that the public interest demanded such action. He could not but realize that an assessment of three per cent upon the value of property in Washington or two and a half *321per cent upon that in Georgetown, created a heavy burden. Others felt it as it did, and it is reasonable to suppose that Congress considered it a duty to lighten the burden of taxation by increasing the subjects of it as far as justice required.” (Welch v. Cook, 97 U. S., 544-545.) ■Although, it is not a practice which ought to he generally followed to make long quotations from text writers in the opinions of courts of appeal, yet in this case, as the discussion has taken a wide range and there does not seem to be among members of the local bar great familiarity with the elementary principles governing this case as understood on the Continent, a discussion from a textbook universally recognized as one of the best of its class may not be inappropriate. That eminent jurist, Thomas M. Cooley, who for so many years adorned the Supreme Bench in Michigan, in his great work on taxation, so often quoted with approval by the highest courts on the American Continent, summing up the consensus of judicial opinion as expressed by the courts and adding and intermingling his own wisdom therewith, says: “Tlie taxing power is an incident to sovereignty. — The power of taxation is an incident of sovereignty, and is possessed by the Government without being expressly conferred by the people. It is a legislative power; and when the people, by their constitutions create a department of government upon which they confer the power to make laws, the power of taxation is conferred as part of the more general power. Even a wrongful government, if it be for the time a government de facto, maintaining its authority and enforcing obedience to its laws, may exercise the power of taxation, and the power, so far as it has been completely enforced, must be recognized as lawful. But the overthrow of the de facto government defeats the power; and the rightful government will not thereafter aid in enforcing the uncollected levies. “Everything to which the legislative power extends may be the subject of taxation, whether it be person or property, or posses*322sion, franchise or privilege, or occupation or right. Nothing but express constitutional limitation upon legislative authority can exclude anything to which the authority extends from the grasp of the taxing power, if the legislature in its discretion shall at any time select it for revenue purposes. And not only is the power unlimited in its reach as to subjects, but in its very nature it acknowledges no limits and may be carried to any extent which the government may find expedient. “It may therefore be employed again and again upon the same subjects, event to the extent of exhaustion and destruction, and may thus become in its exercise a power to destroy. If the power be threatened with abuse, security must be found in the responsibility of the legislature which imposes the tax to the constituency who are to pay it. The judiciary can afford no redress against oppressive taxation so long as the legislature, in imposing it, shall keep within the limits of legislative authority and violate no express provision of the Constitution. The necessity for imposing it addresses itself to the legislative discretion, and it is or may be an urgent necessity which will admit of no property or other conflicting rierht in the citizen while it remains unsatisfied.” (Cooley on Taxation, pp. 4, 5 and 6.) “Restriction or Relinquishment of the Power by Contract. — In some cases the State legislature is found to have pledged the State, in definite and formal manner, that on some particular subject of taxation the State should refrain, either wholly or for some definite period, from levying any taxes whatever, or should levy them only to a certain extent. Such pledges are commonly impolitic and unwise, and it is always among the possibilities that, if sustained, they might be carried to the extreme of crippling the sovereign power of the State to perform its accustomed functions. There has always, therefore, been a strong protest against the doctrine that such pledges could constitutionally be made, the protestants insisting that no legislature is competent to limit the power of its successor, but must transmit to those to come after it the complete power which it received from its predecessor. But the Federal Supreme Court in an early case, in which the facts were that a State had exchanged lands with an Indian tribe and stipulated by legislative act that those conveyed to the Indians should not thereafter be subject to any tax, decided that this stipulation was binding upon the State as a contract; that the State could not impose taxes in contravention of the stipulation, and that the exemption was available on behalf of those who subsequently by *323legislative permission became purchasers from the Indians. The eon-tract derived its character of the inviolability from the clause of the Constitution of the United States inhibiting the States from passing any law impairing the obligation of contracts, a clause which applies to the contracts of a State equally with those of individuals. £ ‘ The pledge, however, in order to constitute a contract, must have the elements of a contract, and the vital elements are consent and consideration. Consent to the exemption on the part of the State is never by itself sufficient, but there must be something received by the State for the relinquishment or something surrendered on .the other side which can be deemed a legal equivalent. In the ease first referred to the consideration was manifest, the State was bargaining away its lands, and was presenting the exemption from taxation as an inducement for better terms on the other side. “So if the legislature by law, in order to secure the establishment of a charitable institution, charter a corporation, and in the charter declare that its property shall be exempt from taxation, and individuals, in reliance thereon, invest their means to secure the accomplishment of the object of the law, a consideration for the state promise is thus made out. The case would be still plainer if the State received a bonus for the grant of a franchise, stipulating in the grant to give exemption from taxation, or if it made the grant to a corporation on a surrender by it of valuable rights. ‘ ‘ The contract of exemption may either be perpetual or limited to a definite period, and it may be for the taxes generally or only for some portion of them, or it may be a limitation of the tax within some specified bounds. The same principles apply in each case; where a •certain sum is specified, or a certain percentage upon valuation, or upon receipts or acquisitions in any form, this is in the nature of a •commutation of taxes, the State agreeing that the sum named is, under the circumstances, a fair equivalent for what the customary taxes would be, or the fair proportion which the person bargained with ought to pay, and the power thus to commute, though liable to abuse, is undoubted. And this rule applies when a bonus is paid for complete future exemption, to the same extent and on the same reasons ■as when the commutation is for an annual payment. “It is perfectly well settled, however, that an exemption granted for motives of state policy merely, and when the State and the citizen do not meet on a basis of bargain and consideration, is to be deemed expressive only of the present will of the State on the subject, and the law granting it, like laws in general, is subject to modification or re*324peal, in the legislative discretion, and it is immaterial that while it continued in force parties have acted in reliance upon it. It is also well settled that the contract must be clearly made. The power to tax being essential to the very existence of the State, there can be no presumption that it has been either abandoned or restricted, and whoever claims that it has been, should be able to show by clear words that an intent is expressed to do so, and that consideration existed therefor. And when thus the contract is made out, it cannot be extended by implication beyond the fair import of its terms. As has been said by the Federal Supreme Court, if on any fair construction of the legislation there is reasonable doubt whether the contract is made out, this doubt must be solved in favor of the State. In other words, the language used must be of such a character as, fairly interpreted, leaves no room for controversy. “By repeated decisions of the Federal Supreme Court it has been authoritatively and conclusively determined that the character of a private corporation is to be regarded as a contract between the cor-porators. on the one hand and the State on the other, and that whatever stipulations are contained therein which are intended for the benefits of the corporators, and operate as an inducement to them to accept the charter, are promises by the State based on valid and sufficient consideration and not subject to recall except with the assent of the corporation itself. Stipulations respecting taxation come within ■ the principle, and aré therefore irrepealable, and not subject to change at the mere will of the State, to the prejudice of those on whose behalf they are made. But the right to amend or repeal inay be reserved in the charter, and when it is reserved it is a part of the contract, and. may be exercised by the State at pleasure, unless conditions are imposed in respect to its exercise, in which case the conditions must be observed. To avoid the force of the principle that a corporate charter is a contract which oftentimes operates in some unexpected manner, and perhaps unjustly to the public at large, the people of some of the States have made express provision by their constitutions that all-charters of private incorporation granted by the legislature shall be subject to amendment or repeal, at the legislative will. A provision of this nature is a limitation upon the power of the legislature in granting charters, and while it cannot affect any that are in existence when it takes effect, it attaches the quality of modification and repeal-ability to any afterwards granted, and all who accept them do so with full notice of the fact. The charters are still contracts, but contracts with a reserved right on the part of the State to amend or ter-*325mínate them. The rule would he the same if the charter were granted while a general law of. the State was in force which declared that all grants of the kind should he subject to the legislative power of alteration and repeal, for the grantees would accept their franchises with notice of and qualified by such a declaration. “Contracts of a State, like the contracts of individuals, may be modified to any extent, subject to constitutional provisions, if any, having a bearing upon the right, by the mutual consent of the parties thereto, which in the ease of a charter of private incorporation would be the State on the one side and the corporators on the other. The State consents to the modification when it adopts legislation which has that effect, and the corporation when it accepts such legislation. “A different rule prevails in the case of charters of municipal incorporation. These are not contracts, but regulations of government, and if they contain provisions respecting taxation, such provisions, like everything else in the charter, are subject to change, as the legislative judgment may change respecting questions of policy and expediency, or as changing circumstances may seem to require. ’ ’ (Cooley on Taxation, pp. 66, 67, 68, 69, 70, 71, 72, 73.) It will be seen from a careful review of these extracts from the opinions of the Supreme Court of the United States and from the summary contained in the textbook quoted, that the crucial test, running all through .this line of decisions and applicable to the case before this court, is whether or not a contract exists between the Government and the taxpayer. If there is a contract, under the clause quoted from the 10th section of Article I of the Constitution of the United States the taxation is illegal and should be restrained. If there is no contract, the Eevenue Law is in full force, and the taxes should be imposed and collected. We are of the opinion that a contract, to exist between the State and one of its citizens, whether it be a natural person or a corporation, the same as between two individuals, requires a consideration moving from one party to the other, otherwise it is what is denominated in one of the opinions quoted, a nude pact. In other words, unless the taxpayer is required to do something and has done something for the benefit of the *326State, lie cannot claim that the exemption or reduction in his taxes granted to him constitutes a contract and for that reason is irrepealable. A consideration may be defined to be any benefit derived or agreed to be conferred on one. party to a contract from or by the other party, to which previously the beneficiary was not -entitled; or on the other hand any prejudice suffered or conceded by one party to the contract other than such as he was previously bound to suffer; the same acting as an inducement on the one side or the other for the formation of the contract. Has the Island received any benefit or the taxpayers suffered any prejudice on account of the concession claimed under the Spanish law? Have not all the benefits been on the part of those taking the concessions? Have not all the moneys expended been returned to them many fold? Even the increased- salubrity of the neighborhood is enjoyed solely by them and their tenants. "Why should their neighbors be required to contribute a greater sum to the support of the Government in order' to lessen the burden on these sugar planters? They have done so for several years, but has not the time arrived when such inequalities in the burdens of Government should cease? In the case at bar nothing whatever indicates, and nothing appears from the record to show that the Messrs. Guerra did anything or suffered any loss or inconvenience by virtue of which they could ask the Government to reduce their taxes or to exempt them from taxation. It is quite plain that the Government derived no benefit whatever from any act of theirs. All the benefit derived from their acts, in regard to the estate known as “Blandito” upon which the exemption is claimed, was applied to their own property. It is true, the property may have been reclaimed from the marshes; uncultivated lands may have been put in cultivation, and other investments and improvements may have been made, *327-but in return for that the record shows that the health of their families and their tenants and employees may have been rendered more secure; and that they have annually reaped large crops of sugar, and that the Insular Government did not participate in those benefits and profits, to the extent of a single centavo. The further fact that this privilege which they obtained from the Spanish Government in 1896 was left undisturbed by the American Government, and was not withdrawn until the passage of the Revenue Law by the Insular Government on the 31st of January, 1901, does not strengthen the position which is sought to be maintained. Although the Government having control of the Island had the right to act at any time it was not bound to act until it seemed proper, in the opinion of its legislative authorities, so to do. The delay in the repeal was for the benefit of the appellees, and they cannot complain of it or claim anything under it except the incidental benefits naturally arising from temporary reductions and exemptions. There is nothing whatever in this case which is analogous to an estoppel, so as to bind the Government or its officers to respect or perpetuate the temporary privilege enjoyed by the appellees. It is useless to prolong this discussion which already exceeds the limits ordinarily allowed to cases of this nature and importance. A consideration being wanting in the transaction between the Government and the taxpayer, there could be no valid contract, and therefore, the exemption law enacted by the, Queen of Spain in 1868, must be regarded as repealed by the Revenue Law of the Legislative Assembly of Porto Rico, of the 31st of January, 1901. For this and the other reasons stated herein the judgment of the district court should be reversed, and a judgment here rendered in favor of the Insular Government permitting the Treasurer to collect the taxes imposed, and denying the relief sought by the *328appellees, imposing upon them all the costs of these proceedings, both in this court and the court below.
Reversed.
Chief Justice Quiñones and Justices Hernández and Fi-gueras concurred. Mr. Justice Wolf did not sit at the hearing of this case. | 11-23-2022 | [
"Mr. Justice MacLeary delivered the opinion of the court. This case presents an appeal interposed by the Honorable Attorney-General of Porto Rico against a judgment of the District Court of San Juan, rendered on the 17th of June, 1904, in a “contentious-administrative” case instituted by Mauricio Guerra and Arturo Guerra against a resolution of the Treasurer of Porto Rico upon the effect of concessions claimed to have been made under the Law of Agricultural Colonies to them in regard to the plantation called “Blandito.” Under the Spanish government the Messrs. Guerra enjoyed a reduction of taxes upon their plantation known as “Blan-dito,’'’ by virtue of a law enacted in Spain on the third of June,. 1868, and afterwards extended to several of the colonies, and among others to Porto Rico.",
"This law was continued in force under the American occupation until the passage of the Revenue Act of the 31st of January, 1901, commonly known as the-Hollander Law, which repealed, or attempted to repeal, all other laws concerning taxes upon real estate and other taxes, in Porto Rico, and substituted an entirely new system of taxation constructed on the American plan. Under the Hollander Law the plantation “Blandito” was taxed in the same manner as other lands in Porto Rico, but before the law took effect, on the 1st of July, 1901, Mauricio and Arturo Guerra presented a petition to the Treasurer requesting that their taxes upon this sugar plantation be continued as before at thirty-one pesos annually, amounting to eighteen dollars and sixty cents in American money. The Treasurer of Porto Rico, Hon. W. P. Willoughby, took the opinion of the Attorney-General upon the matter, and he was advised that the plantation “Blandito” was subject to taxation as other lands, and that the Hollander Law had re*283pealed tlie benefits of the law applying to agricultural colonies under which the reduction was claimed.",
"The resolution of the Treasurer may be stated substantially in the language of the opinion rendered by the Attorney-General’s office on the 11th of December, 1901, which reads as follows: “It seems to me that these property owners, who claim that their lands are exempted from tax under a Spanish statute, have been guilty of such laches as deprive them of administrative recognition of their exemption. Under the Revenue Law they had an appeal to the Board of Review and from there to the Executive Council, and in this way they would have the question as to the propriety of the assessment settled authoritatively. To the argument that such proceeding is for the review of the assessment in toto, it is a sufficient answer to say that this confirms the position that it was the intention of the Revenue Law to establish a uniform system of taxation, that all property should be assessed, and that no exemption should be recognized.",
"From an administrative standpoint the Revenue Law must be so construed, particularly in view of the language of sections 1 and 2 of the law. Section 1 provides for a tax of one-half of 1 per cent upon all real and personal property. Section 2 says ■ all property not expressly exempted shall be subject to taxation, as herein provided. Section 3 contains the expressed exemptions last referred to. Subdivision B, under section 3, specifies property exempted from taxation by the laws of the United States. No other exemption specified in section 3 will cover the case of Messrs. Guerra. “The exemption which is claimed under sections 7 and 8 of the Spanish ‘Ley de Colonias’ was not one in the form of a contract made by the State with its citizens, but was in the nature of a special privilege or indulgence.",
"The sovereignty which gave could take away, both by repealing the statute of special favor and by stopping the continuance of the specific favor already granted. That prerogative of sovereignty passed to the Legislature of Porto Rico. The Treaty of Paris, article 8, says that the ‘relinquishment or cession, as the case may be, shall not in any respect impair the property or right which by law belongs to peaceful possession of property of all kinds, of a province, etc., or of a private individual.' This refers, however, to the cession by Spain to the United States of public domain and the Crown properties; it does not recognize either as a property or as right of property a mere grant of exemption from taxation for a term *284of years. Tlie exemption granted by sections 7 and 8 of the ‘Ley de Colonias’ is in conflict with the intention on the part of the Legislature of Porto Rico to tax all property not expressly exempted in section 3 of the act, and those sections therefore come under the operation of section 111, which repeals all conflicting acts, laws, decrees, ordinances, etc. “The officials charged with the administration of this Revenue Law must execute it with reference to the properties, extending the tax in due time, which will constitute a lien on the property if not paid.",
"Messrs. Guerra may then assert their exemption by means of the judicial remedies which are open to them ” Under the laws of Porto Eico then in force the taxpayers, instead of pursuing the remedy suggested in the last paragraph of the opinion from the Attorney-G-eneral’s office, availed themselves of what is known as the “ C-ontencioso-Administrativo” procedure and removed the question thereunder to the District Court of San Juan, where, on the 16th of January, 1904, a judgment was rendered in their favor. The petition of the plaintiffs, prosecuting their case in the District Court of San Juan, states their claim substantially as follows: “Messrs. Mauricio Guerra and Arturo Guerra, owners of the said estate, applied to the Hon.",
"Treasurer of this Island on the 8th of May 1901, setting forth that since the 18th of August of the year 1896 the benefits of Articles 7 and 8 of the Law of Agricultural Colonies had been granted to the said plantation, or that during ten years, counting from the said date, they should pay as territorial taxes only the sum which up to that time they had paid, or 31 pesos, provincial currency, annually, equivalent to $18.60, as was communicated by the central administration of taxes and revenues of the office of the Mayor of Vega Baja in an official communication dated the 11th of March, 1898; that notwithstanding the change of sovereignty in this Island, that tax was not altered on account of the privilege being respected in accordance with article 8 of the Treaty of Paris. And that, notwithstanding this, the assessor for the district of Vega Baja had .assessed the valuation of the estate of the plaintiffs, to impose taxes upon it in accordance with the so-called Hollander Law, for which reason they made application to the honorable Treasurer, petitioning him to order that their concession be respected, as had been *285done up to that time, in spite of the fact that during the military government of General Henry the system of taxation had been changed, that system being established of which Dr. Coll y Tosté was the author.",
"In the said writing and another one which they presented on the 20th of August of the same year, 1901, the petitioners also stated that when they acquired the estate, in 1895, it was completely abandoned and had not been under cultivation for more than fifteen years, while on the date of their petitions 250 cuerdas of cane had been planted thereon, which was soon increased to 300, for which it had been necessary to spend large sums of money in draining swamps and marshy land and cutting down brush and undergrowth,, and other extraordinary labor, which only under the benefits granted them by the Law of Agricultural Colonies would they have decided to undertake; that the said law was passed, not with a view to providing the Treasury of Porto Rico with revenues, but to encourage the cultivation of its lands, which would have remained unproductive if it had not been for that wise and generous law; that in granting to the owners of those lands the privilege of paying a low tax during a certain number of years also benefited the public treasury, since on the expiration of the time it would have rich lands which would contribute largely to the payment of public expenses; and, finally, that the 111th section of the law to provide revenues for The People of Porto Rico, in repealing, as it did repeal, all other laws in conflict with the same, referred only to those which established other systems1 of taxation, prior to the promulgation of the Hollander Law, with the same object as that of the latter, but not the Law of Agricultural Colonies, which was not passed with this object in view, but with a view to encouraging the cultivation and agricultural development of the Island, and has not been repealed, but continues in force.",
"“On the 9th of December of said year 1901 the Messrs. Guerra again applied to the honorable Treasurer, petitioning him to communicate to them the action taken on their former writings, and then on the 11th of the said month of December, 1901, the decision was given, which, in accordance with .the opinion of the Acting Attorney-General, denied the claim of the Messrs. Guerra, on the following grounds: 1st. On account of the petitioners having been negligent in not applying in due time to the Committee on Revision and to the Executive Council as they could have done, in accordance with the Internal Revenue Law, in which case it could have been determined whether or not it was proper to assess the estate; second, because the spirit of the said Revenue Law had been and was to establish a system *286of taxation which would be uniform in so far that all property should be assessed without acknowledging any exception whatever; third, because, in accordance with sections 1 and 2 of the said law, all property not expressly exempted is subject to taxation, and among the express exemptions provided for in its third section, none of them include the case of Messrs. Guerra; fourth, because the sovereignty which gave the privilege could have taken it away, suspending the continuation of the special favor granted; and because that prerogative of the Government passed to the Legislature of Porto Rico by reason of the change of sovereignty which occurred in this Island; fifth, because, although article 8 of the Treaty of Paris respected the property and the rights of all classes relating thereto corresponding to a province, or to a private individual, this only referring to the properties of the public domain and of the Crown, it was not applicable to an exemption from the payment of taxes during a certain time; and, sixth, because the exemptions granted by sections 7 and 8 of the Law of Agricultural Colonies is in conflict with the intention of the Revenue Law to impose taxation on all property not expressly exempted by the same, it being evident, therefore, that it comes under the operation of its section 111, which repeals all laws and orders in conflict with the Revenue Law. '",
"‘ ‘ The said administrative decision concludes by stating that Messrs. Guerra could assert their exemption by means of judicial remedies which were open to them, and therefore, on the 21st of February of the year last passed, Messrs. Guerra applied to this court, sending therewith a copy of the communication of the general Government of the Island, dated 18th of August, 1896, in regard to the concession of the benefit of the Law of Agricultural Colonies, and the original communication from the Treasurer, denying their claim, as well as the translation of the said communication, duly taking the ‘contentious-administrative’ appeal against the decision violating a pre-exist-ing right, and praying that the appeal be admitted, and that the record be ordered produced by the Administration. ‘ ‘ On the 21st of February that request was granted, the administrative record being ordered to be sent up, and with a writing of the 5th of April Messrs. Guerra presented two receipts, dated 10th of March of the same year, showing the payment corresponding to the second quarter of the fiscal year 1901-1902 of the territorial taxes, amounting to $50.79, and an equal amount for the municipal taxes, which receipts were ordered attached-to the records on the same date. On the 19th of June the administrative records ordered to be sent *287were received, the same were ordered to be referred, with the other matters pertaining thereto, to the appellants, in order that they might formulate their complaint within twenty days, which time was extended ten days, within which time the said complaint was presented by their attorney, Don Hilario Cuevillas, basing the same on certain facts set out at length.” ■ The fiscal in the district court first filed a demurrer to the complaint, ■ which was considered by the court and overruled.",
"Answer was then made setting out the defense along the lines indicated in the opinion of the Acting Attorney-General. Proof was taken and may be said to establish the essential facts alleged by the taxpayer without justifying the legal conclusions advanced by them as flowing therefrom. Some of the points made by the counsel for the government were not noticed by the trial court having probably been disposed of in the order overruling the demurrer, and do not appear to have been decided in the judgment rendered. Por a better understanding of the case this judgment will be quoted at length.",
"It reads as follows: “In the city of San Juan, Porto Rico, on the 16th day of January, 1904, this ‘contentious-administrative’ appeal, prosecuted by Arturo and Mauricio Guerra, through their attorney,. Hilario Cuevillas, Esq., and on the trial being represented by Don Antonio Sarmiento, against a.resolution of the Treasurer of Porto Rico, under date of December 11,1901, and one refusing to grant the petition of the plaintiffs herein, which was that the benefits granted to them by the Law of the Agricultural Colonies enacted by the Government of Spain for this Island during the Spanish sovereignty, continue to apply with reference to their property known as ‘ Blandito.",
"’ “1. Finding: That the lawyer, Hilario Cuevillas, in the name of Mauricio Guerra and Arturo Guerra, in due form' and time took an appeal (coniencioso-adminislraiwo) from the resolution of the'administration on the ground that the said administration refused to recognize the benefits conferred upon his 'Clients by the Law of Agricultural Colonies, under which they had cultivated and reclaimed an estate, property belonging to them, known as ‘Blandito,’ situated in the jurisdiction of Yega Baja, composed of 367 hectares, three *288ares, of which 87 hectares and 50 ares were abandoned, swampy and marshy land, and the remaining 268 hectares, 94 ares and 5 centares, was composed of land which had not been cultivated for more than fifteen years. “2.",
"Finding: That the record of the administrative proceedings was requested from the proper authority, and the same having been received, the appellants were heard in regard to other matters in order that, within the period of thirty days which term might be extended ten days, the corresponding ‘ contentious-administrative ’ complaint might be presented, at the expiration of which time the lawyer, Mr. Cuevillas, presented the same in the name of the appellants, ' basing the same on the following facts: That his clients were the owners of the estate ‘Blandito,’ containing 377 hectares and 3 ares, situated in the jurisdiction of Yega Baja; that of the said tract of land 87 hectares, 50 ares and 5 centares were marshy land and swamps, and the rest of the estate was composed of land which had not been cultivated for more than fifteen years; that his clients took advantage of the Law of Agricultural Colonies, in force in Porto Rico in 1883, as otherwise it would have been impossible to cultivate and make the property productive, and the proper procedure having been followed, the decree which accompanies the complaint was issued, granting his clients the right extended by the Law of Agricultural Colonies, to which reference has already been made; that in view of the same Messrs. Guerra have been cultivating the property under the decree referred to; that in order to compel respect to their rights they made application to the General Treasury, which, after having gone through various formalities, made the resolution from which this appeal is taken, which resolution v?as communicated to the interested parties on the 11th of December,' 1901; that from this resolution which violates a pre-existing right, a ‘contentious-administrative ’ appeal was taken against the administration, which was admitted by order dated 21st of February, 1902; that accompanying a writing of the 5th of April of the same year, they sent two receipts covering payments of taxes, without prejudice to their rights to protest against the collection of the same; that after the change of sovereignty the right granted the owners of the estate ‘Blandito’ was respected as appears from a document and various receipts for taxes which accompanied the same; that in making up the list for the payment of the Hollander tax, in the column for remarks, the benefit which the said estate enjoyed under the Law of Agricultural Colonies granted by the Spanish Government, was made to appear, in *289spite of which fact the assessor assessed the property, alleging that it was not within his jurisdiction to take cognizance of matters of this nature; for which reasons the Treasurer was appealed to, who in turn referred the matter to the Attorney-General, who denied the petition; that the estate 'Blandito’ is completely drained and reclaimed, which has been accomplished after much expenditure of money and sacrifices, which never would have been done except for the existence of the Law of Agricultural Colonies, and if it had not been believed certainly that the rights granted under the same would be permanent and stable; that when General Henry changed the system of taxation in this island the rights of the owners of the.",
"estate ‘Blandito’ were respected, under which system of taxation $1; per cuerda for land of the first class, per annum, 50 cents per cuerda for land of the second class, and 25 cents per cuerda on land of the third class was collected, but notwithstanding this, the estate ‘Blan-dito’ continued to pay the same tax of 31 pesos, provincial currency,, to the estate in accordance with the collection made and the provisions of the Law of Agricultural Colonies; and finally that he instituted the ‘contentious-administrative’ action within the period of time allowed for the same; praying that after to the proper legal proceedings the suit be declared well founded, and that- the Administration be ordered to respect the concession to the owners of the estate ‘Blandito,’ repaying them for the taxes unduly collected and declare null the resolution of the Treasurer General of Porto Rico of the 11th of December, 1901, from which this appeal is taken, and requesting a further prayer that the record in. the case be admitted in evidence. “3. Finding: That the complaint being admitted the Administration was notified, and in its name the Attorney-General, in order that reply might be made within twenty days, and before answering the complaint he presented a demurrer alleging that the said complaint did not show with sufficient clearness the claim of the plaintiffs, as required by articles 42 and 46 of the Law of ‘ Contentious-Administrative’ matters, which demurrer after having been duly heard was overruled by judgment of the 15th of April, 1903.",
"“4. Finding: That another term of fifteen days having been allowed for answer to the complaint, the same was made by the Assistant Attorney-General, setting forth the following facts; that on the 8th of May, 1901, Messrs. Mauricio and Arturo Guerra directed to the Treasurer of Porto Rico a writing giving the history of the estate in question, stating that the same, on the date of the *290concession, was composed of unproductive marslies and swamps, and that now it is composed of good land, 300 cuerdas of the same being composed of cane plantation, and finally petitioning that the Administration should compel them to pay only $18.60 as taxes until the' year 1906; the said writing was referred by the Treasury to the office of the Attorney-General, from whence it was returned duly reported upon; that the Treasurer decided on the matter and advised the interested parties, in effect in accordance with the report of the office of the Attorney-General, concluding by denying the petition presented by the plaintiffs, to which reference has already been made; and that from the said decision of the Treasury Messrs. Guerra duly took a 'contentious-administrative’ appeal, concluding by praying that after the necessary proceedings the complaint be dismissed, acquitting the Administration and deciding that the complainants are obliged to pay on the estate ‘Blandito’ the taxes required by the law of the Legislative Assembly, .approved on the 31st of January, 1902, which clearly repeals the Law of Agricultural Colonies, upon which the appellants base their claim.",
"“5. Finding: That the complainants having prayed that the trial of this cause be begun and opened to evidence, the prayer was granted fixing a term of ten days, which was not to be extended, for the introduction of all pertinent evidence, and the term of twenty days in which to answer such evidence as might be presented. “6. Finding: That the complainant introduced as written evidence the following: A copy of the resolution of the Governor General of the Island of Porto Rico, under date of the 18th of August, 1896, in which the concession granting to Messrs. Mauricio and Arturo Guerra the benefits of the Law of Agricultural Colonies, on the estate ‘Blandito,’ which original communication also came into the record in this ease; a resolution of the Treasurer of Porto Rico denying the petition of the plaintiffs to recognize the benefits enjoyed with reference to the estate ‘Blandito,’ which resolution is dated 11th of December, 1901; a certificate issued by the office of the mayor of Vega Baja in regard to various matters concerning ‘Blandito,’ dated 22d of May, 1903, the authenticity of which was certified to in due time; another certificate issued by the same office of the mayor, showing that the following documents- were to be found on file in the said office; a communication from the Governor General of the Isl- and of Porto Rico, Secretary’s Office, Department 3d, under date of 30th July, 1896; another certificate from the Central Administration of Taxes and Revenues of Porto Rico of the ilth of March, *2911899, reducing the rate of taxes on the estate ‘Blandito’ to the rate of 31 pesos; another certificate issued by the said office of the mayor showing that the said estate ‘Blandito’ paid during the fiscal years 1899-1900 and 1900-1901 the rate of eighteen dollars and sixty cents as municipal taxes; and finally a communication No.",
"1966 from the Central Administration of Taxes and Revenues of Porto Rico, dated 11th of May, 1897, which ordered that during the first three months of that fiscal year the owners of the estate ‘Blandito’ should pay the rate fixed by the board of experts, and during the following three months the tax corresponding to the 31 pesos fixed in the fore'going fiscal year. “7. Finding: That oral testimony was also proposed, and on the citation of the parties, the witnesses Messrs. Guillermo Rubert, Tulio Otero, Pedro Brüll, and Tomás Prado Landrón, testified without being qualified to do so, in accordance with the interrogatories presented and declared pertinent; that they knew to be true that Mr. Arturo Guerra, in the month of July, 1897, delivered at the sugar central ‘San Vicente’ for the first time, to be ground, 18,000 hundredweight of cane, necessarily planted in the year 1896; that during the first two months of the year 1901 he delivered with the same object 89,770 hundred-weight, which cane was planted at the latest in July, 1900, on 250 or 300 mierdas of land; that the production already mentioned has not been exceeded by the crops of 1902 and 1903; that since 1906 the lands of the estate ‘Blandito’ have been in process of being reclaimed and drained, there existing at present 300 cuerdas under cultivation in cane and the balance used for pasturing cattle; that in order to obtain such results on the estate continuous expenditures have been made by the owners, the Messrs. Guerra; that on account of such industry not only the owners may have been benefited, but also the public sanitary condition, in view of the fact that several pestilent nuisances have been removed which threatened seriously the public health, and that without the concession granted by the Law of Agricultural Colonies it would have been impossible to put the estate ‘Blandito’ in the condition it is now found.",
"“8. Finding: That the evidence of ocular inspection having been given, and the notes made, without the objection of the parties to anything relating thereto and all the evidence proposed having been presented, a day was set for the hearing, on which occasion the attorneys for the parties made such allegations as they deemed pertinent *292to tbeir rights, the record being declared closed for the entering of judgment. “9. Finding: That in this case the rules of procedure have been duly followed. “The Associate Judge Don José Tous Soto delivered the opinion of the court. “1.",
"Concluding: That it must be admitted as a fact beyond any doubt whatever that the benefits claimed by plaintiffs were granted to them; to pay on the estate ‘Blandito/ in the municipal jurisdiction'of Yega Baja) ward of Cabo Caribe, during ten years, beginning with the year one thousand eight hundred and ninety-six, the sum of thirty-one pesos provincial money, or eighteen dollars and sixty .cents, on account of the application to the same of the privileges conferred under the Law of Agricultural Colonies, of the third of June, one thousand eight hundred and sixty-eight, applied to this Island by Royal Decree of the fourth of May, one thousand eight hundred and ninety-four, not only because the Administration has not denied this fact in its answer, but because the official communication brought into the record by the complainants, shows clearly that the concession was really granted to them in the manner set forth. “2. Concluding: That the concession granted to an estate, the benefits of the Law of Agricultural Colonies, established a contract between the Administration and the grantee, by which the Administration exempts the planter from the payment, partial or total, of taxes, in compensation for the service which such planter renders to the .community by putting in cultivation unproductive and insalubrious lands; or what is the same, a real lease of service, in which the State as lessor pays as a favor the imposts which it does not collect from the lessee who renders service in reclaiming and cultivating lands.",
"“3. Concluding: That on such a supposition the contract entered into between the State and the property holder, similar to that established between a corporation incorporated with a clause of exemption from the payment óf imposts and the State, incorporating the same, must be respected and complied with by both parties to the contract, and therefore by The People of Porto Rico, subrogated by virtue of the Treaty of Paris and of the Act of Congress of 12th of April, 1900 (Foraker Law), in the rights and duties of the former Administración Provincial, or general Government of- the Island. “4. Concluding: That, the judgment of the Supreme Court of the United States, cited by the defendant, is applicable only in the part *293that states: ‘The incorporation-of a company with a special charter exempting its lands and other properties from taxation, creates by virtue of the acceptance of the charter or clauses of incorporation, a contract which guarantees the company the • exemption from taxation during the period specified in such charter on account of the similarity which this case has with the one of the concessions of the benefits to agricultural colonies by virtue of a petition of the interested party, equivalent to the charter of incorporation; but it is not applicable with reference to other points, since the exemption from taxes for the term of ten years granted by the Legislature of the District of Columbia (26th of June, 1873) of all property, real or personal, not less in value than fifty thousand dollars, employed on the date of the promulgation of the law, (be actually employed).",
"for manufacturing purposes, has no similarity to the exemption granted by the Law of Agricultural Colonies, inasmuch as exemptions from taxation made by law, in some cases specifying the time, and in other cases not, are merely concessions granted by the Law of Agricultural Colonies, revocable at the will of the same, without the establishment between the States and the grantees of any contractual obligation whatever, on account of the non-existence of concurrent wishes for the reciprocal compliance with agreements liberally stipulated, between the subjects of ample rights, nor therefore the judicial tie which constitutes a contract which cannot be broken nor untied, except for the causes bringing about the nullity or rescission of obligations. “5. Concluding: That the express repeal of the Law of Agricultural Colonies by sections 1, 2, 3 and 111 of the Law ‘to Provide Revenues for The People of Porto Rico/ of the 31st-of January,-1901, cannot touch, im its repealing effects, the rights acquired under the repealed law, in accordance with Article 3 of the Civil Code of 1899 and.Article .3 of the present Civil Code.",
"‘ ‘ 6. Concluding: That in view of the foregoing, this ‘ contentious-administrative ’ remedy should apply, making its effect retroactive to the date on which the administrative reclamation was made; therefore, to the plaintiffs should be returned the excess on the taxes collected over the sum which they were obliged to pay. “In view of the legal provisions cited, and those applicable under the law of contentious-administrative and the rule for the execution thereof: • • “We adjudge: That declaring this ‘contentious-administrative’ remedy applicable, we should revoke and do revoke, the administra*294tive resolution against which this claim is made, and we should condemn, as we do condemn, the Administration to acknowledge that the estate ‘Blandito,’ situated in the ward of Cabo Caribe, of the jurisdiction of Yega Baja, property of Mr. Arturo Guerra and Mauricio Guerra, enjoys the benefit of the Law of Agricultural Colonies, consisting in the payment, during the term of ten years, counting from one thousand eight hundred and ninety-six of the sum of eighteen dollars and sixty cents as taxes and to return the amounts collected on the said estate in excess of the said sum, imposing the costs against the same (the Government) and this judgment being final, let a copy of the same, together with the administrative record, be returned to its origin.",
"’ ’ The Insular Government having lost the suit in the district court, the Attorney-General, on the 18th of February, 1904, brought the case here by appeal. The case was argued in this court by Mr. A. Sarmiento on behalf of the taxpayers and by Mr. Jesús María Bossy the fiscal of this court, in behalf of the Government. Counsel for the Government presents for the consideration of the court arguments which may be condensed and stated, in other words, substantially as follows: “1. That an appeal by the taxpayers lay to the board of revision, created by the Revenue Law, and thence to the Executive Council; and that the petitioners in this case not having sought that remedy are cut off from this ‘contentious-administrative’ review. . “2. That the plaintiffs, having paid the taxes without protest or voluntarily, cannot now complain to the courts in order to recover back the money paid and to avoid future payments. “3.",
"That there is no authority in the ‘contentious-administrative’ law for imposing the costs upon the Government. “4. That the exemption from taxation for a part of the land and the reduced valuation for the remainder, and the consequent very light tax imposed thereon, claimed under the law for agricultural colonies, cannot be sustained in view of the repealing sections of the Revenue Law enacted in Porto Rico on the 31st of January, 1901, commonly called the Hollander Law. ’ ’ *295In reply to the first of these several propositions, advanced by the fiscal, the attorney for the taxpayers alleges that in none of the sections of the Revenue Law of Porto Rico is it enacted that the right to make a judicial claim against taxation or valuation made by the Treasury Department of the Island shall he lost through failure to use administrative remedies, which the Internal Revenue Law establishes against such assessements.",
"But even if the doctrine laid down by the fiscal were correct, says the opposing counsel, the Messrs. Guerra could not lose any right on account of non-compliance, inasmuch as the remedies referred to in the Revenue Law relate only to assessments and to valuation of property against which they make no objection. The taxpayers argue that the said remedies had no application to their case whatever, because in this proceeding they claim that the Revenue Law should not be imposed upon them, and that they are liable only to a distinct tax to establish which proposition is the object of their case presented to this tribunal. Answering the fiscal’s second proposition counsel for the tax payers contends that the principles of law relied on to support it have no foundation in the sound principles of reason and in exact justice; and further that the tax payers by their letter, addressed to the Treasurer on the 8th of May, 1901, before the Hollander Law took effect, made all the protest that was necessary on their part and the subsequent payments of the taxes demanded of them cannot be considered as voluntary.",
"In regard to the third point, which is an incidental question of costs, counsel for the taxpayers observes that the matter being so plain and the legal proposition so obvious, the trial court was perfectly right in making the application of Article 93 of the ‘‘Contentious-Administrative Law,” placing the costs upon the litigant whom it considered, with *296the most perfect legality, and the strictest justice, to he maintaining a position without justification. Concerning the fourth point it is contended by counsel for the taxpáyers that the application of Messrs. Guerra to the Spanish authorities, made under the law of the 3rd of June, 1868, for the reduction of their taxes, and the order issued by the provincial officers, granting the same constituted a contract, and that as such it is protected by that clause of the Constitution of the United States which provides that no state can pass any law impairing the obligation of contracts. .",
"(Art. 1 section 10 Cons. U. S.) In other words, that the law mentioned is irrepealable, and that the Revenue Act of the 31st of January, 1901, had no effect in modifying or abrogating this law. The attorney for the taxpayers also claims for them protection under the Treaty of Paris, arguing that the exemption from taxation of his client’s lands is a vested right, and as.such must be considered as property of which they could not be deprived, under the terms of that treaty. No Spanish authorities, save the statute known as the Ley de Colonias Agriólas, are quoted to sustain the position of the taxpayers. This law under which they claim the reduction in their taxes was promulgated by.",
"Queen Isabela II, on the 3d of June, 1868, and extended to Porto Rico in the year 1894; and the sections referred to in this case are 7th, 8th and 26th, which, together with the title of the law and other sections having application to the questions at issue, read as follows: “Law of the 3d of June 1868. “Redrafting the provisions of the law. of the 8th of January and 23d of May, 1845, Royal Decree of the latter date, laws of the 24th of June, 1849, and 21st of November, 1855, 11th of July and 3d of August, 1866, in regard to the protection and encouragement of agriculture and of the rural population and declaring the said provisions to be repealed in all those parts which are in conflict with the present law.",
"*297“Sec. 7. The lands reclaimed by the drainage of lagoons, swamps and places covered with water shall be exempt from all taxes for a period of ten years from the day on which they shall be put under cultivation, as kitchen-gardens, meadows and vineyards, or shall be planted in cereals, vegetables or industrial roots or plants; for fifteen years if they shall be planted in fruit trees; and for twenty-five years if they shall be planted in olive trees, almonds, breadfruit, mulberry and other similar trees. “If houses shall be built on the reclaimed lands, more than a kilometer from a town or village, the houses and the lands pertaining thereto shall enjoy five years more of exemption, respectively, in each of the three cases of the previous paragraph. “Sec. 8.",
"The lands which from time immemorial shall have remained without useful employment, and thus, the cultivation of which shall have been interrupted for a space of fifteen consecutive years,' shall only pay, upon being broken up and cultivated, the tax on real estate, which they shall have paid the previous year, for a period of ten years, from the day on which they shall be put under cultivation, as kitchen-gardens, or meadows, or be planted in cereals, vegetables or industrial'roots or plants; for fifteen years, if they shall be cultivated as vineyards, or planted in fruit trees; and for twenty-five years if they shall be planted in olive trees, breadfruit, mulberry, or other similar trees. “Sec. 22. The proprietors, who at present enjoy the advantages granted by the laws of the 8th of January and 23d of May, 1845, •and the Eoyal Decree of the latter date, as well as by the laws of the 24th of June, 1849; 21st of November, 1855; 11th of July and 3d of August, 1866, or other legislative provisions, and shall build one or more houses on the respective rural estates shall enjoy five years more of non-increase of taxes on vineyards and irrigated lands; and of ten years on nurseries of almond trees, olive, breadfruit, mulberry, and similar trees, the same as on lands planted in timber trees; and the inhabitants of said houses shall, besides, have all the advantages that are granted by this law, the application of which shall be reckoned from the time when the enjoyment of the advantages referred to in the previous laws commenced.",
".“Sec, 23. The proceedings begun in conformity with the laws.of colonies and of rural population, of the 21st of November, 1855,. and the 11th of July, 1886, and the decision of which is pending, shall be dispatched, according to the will of those who have insti*298tuted tlie same, either in accordance with the provisions of the afore • said laws, or in accordance with those of the present law. “See. 24. The proprietors of rural estates, who shall build on the same one or more houses or buildings, in accordance with the present law, shall be able to redeem the quitrents with which said lands may be encumbered in favor of the State, by paying the capitalized amount of the same, in twenty installments instead of those fixed by the laws in force. “Sec. 25. All the advantages and powers, which by the present law are granted to the proprietors of rural estates and of industrial establishments, situated in the country, are extended to the lessees and colonies of the estates and of the factories. “Sec. 26. The proprietors who wish to enjoy the benefits dispensed by this law, shall apply to the mayor of the municipal district in which the landed property or properties are located, with a petition addressed to the governor of the province, stating the location, area, and boundaries, condition, the products cultivated, if any, and the taxes paid at the time, for the lands which are the subject of the official proceedings.",
"“The mayor shall immediately direct that two members of the board of experts of the place ascertain the facts stated by the proprietor, by an ocular inspection of the lands, and make their report in writing. Within fifteen days after the presentation of the petition of the proprietor, and after having heard the opinion of the town council, the mayor shall forward said petition to the Governor, expressing his opinion and enclosing the report of the members of the board of experts, who have inspected the land, and the resolution of the town council.",
"‘ ‘ The Governor shall take action on the matter within the period of a month, and if he should fail to do so, it shall be understood that the petition of the proprietor has been granted. “In case the resolution of the Governor should be negative, the proprietor concerned may oppose the same before the Ministry of Public Improvements, which shall decide the matter within sixty days after the presentation of the writing of the complaint. And in case this period should elapse without any resolution being adopted it shall be understood that the petition has been granted, and the proprietor who has made the complaint shall enter upon the full enjoyment of the benefits granted by this law, in accordance with his petition. '' “See. 27.",
"The provisions contained in the law of the 8th of Jan-*299nary, and 23d of May, 1845, tlie Royal Decree of the latter date, laws of the 24th of Jnne, 1849, and 21st of November, 1885, 11th of Jnly and 3d of August, 1886, and all other provisions whatever are repealed in so far as they may be in conflict with the present law. “See. 28. The Government shall establish the necessary regulations for the application of this law.” The concession itself •which the taxpayers claim to have been made in their favor by the Spanish Government does not appear to be copied in the record, but seems to have been proven by letters from the revenue officials to the alcalde ' within whose jurisdiction the lands lay, and read, when translated, as follows: 1 ‘ 1. Central Administration of Taxes and Revenues. — -Porto Rico.— Number 1966.",
"— Under this date I say to the Alcalde of Yega Baja the following: In view of the proceedings instituted by request of Mr. Arturo Guerra, in his own name and representing his father, Mr. Mauricio Guerra, requesting a reduction of the tax imposed by the council of that town, upon his property called ‘Blandito,’ in the territorial tax assessment for 1896-1897, on the ground that the benefits of the Law of Agricultural Colonies have been extended to the said real estate. Finding: That His Excellency the Governor General, by decree of the 18th of August of the year last past, has seen proper to order that the property of the Messrs. Guerra enjoy for ten years the exemption provided for by articles 7 and 8 of the Law of Agricultural Colonies.",
"Finding: That the said council was ad-vised of the aforementioned decree of His Excellency on the 18th of August of the present year, at which date the public had already been assessed for the payment of the territorial tax for this year. Concluding: That the said article 8 provides that the property coming under the concession referred to shall pay during the term of the same amount as the year before. And concluding: That the said exemption on the estate ‘Blandito’ was granted during the first quarter of 1896-1897; the Excellent Treasurer General has deemed proper to order that, in that quarter, the interested parties satisfy the amount fixed by the board of experts, and in the remaining three the tax corresponding .to the 31 pesos fixed for the former fiscal year, which is the rate that should serve as a basis for the taxation of the said property during the term of the concession. Which I quote for *300your information.",
"May God preserve you for many years. — Porto Rico, 11th of May, 1897. — Alejandro Infiesta. — Señor Don Arturo ' Guerra. ‘ ‘ 2. Central Administration of Taxes and Revenues, Porto Rico. — ■ Under this date the following communication is directed to the Mayor of Vega Baja: “Being informed of the request made by Arturo Guerra, representing. his father, Mr. Mauricio Guerra, making claim against the council for the proportion fixed on the estate called ‘Blandito,’ in the territorial tax assessment for the year 1897-1898.' Finding: That in the present assessment list the said estate is assessed at the rate of 51 peso's and 16 cents, the same-as for the fiscal year 1896-1897.",
"Finding: That on the 11th of May, 1897, the abolished Treasurer General reduced the said rate to 31 ppsos, or the same rate as assessed in 1895-1896, on account of the estate ‘Blandito’ coming under the benefits provided for by the Law of Agricultural Colonies. Concluding: That in order to fix the rate which should be paid by the taxpayers, the former assessment list will be taken as a basis, which was not taken into consideration in the present case, notwithstanding the recognized exemption of the said estate; the illustrious Secretary of the Treasury, by virtue of a decision under date of yesterday,, has seen proper to order that the said rate be reduced in the present assessment for the estate ‘Blandito,’ which difference must be pro-' portionately distributed among the other taxpayers of that district, as the total amount to be collected is invariable, the assessors and the council being responsible in common for the collection, in accordance with the provisions of article 71 of the corresponding rules.",
"\"Which I communicate to you for your information, etc. May God preserve you for many years. — Porto Rico, 11th of March, 1898. N. Daubón,’’ The first point presented by the appellant is properly preliminary and will be first considered. It may be regarded as fundamental as it goes to the jurisdiction of the district court in the ‘ ‘ contentious-administrative ’ ’ process. It clearly appears by a reference to the Eevenne Law that an appeal is authorized from the decision of an assessor of the Board of Eevision and Equalization composed of the Treasurer, the Secretary, the Commissioner of the Interior, and two other persons appointed by the Governor.. This board is constituted “for the purpose of passing upon all claims made by *301the taxpayers in respect to the assessment of their properties.” (Eev.",
"Stat. P. R., sec. 308.) It is further enacted that “any person aggrieved hy the assessor in relation to the valuation of his property may make written complaint thereof to said board.” (Rev. Stat. P. R., sec. 309.) And again the board is authorized “to hear the appeal and determine anew any questions arising before the board which relate to the liability of the property to assessment, or to the amount thereof.” (Rev. Stat. P. R., sec. 310.) And again in the same section it is declared that “said hoard shall have power to abate, lessen or increase the valuation made in any schedule returned to it, whether any complaint has been made in relation thereto or not, and to decide all other complaints in respect to the assessment of taxes and to correct all errors, as they may be brought to its attention.” (Rev.. Stat; P. R., sec. 310.)",
"The 'fiscal, following the opinion of the Acting Attorney-General, seems to have fallen into an error in regard to an appeal lying from a decision of the Board of Review and Equalization to the Executive Council, since the law says;; “The decision of the board in all matters coming before it. shall be final.” (Rev. Stat. P. R., sec. 310, p. 411.) The claim of counsel for the taxpayers in regard to this point, referring to the defects in the Revenue Law, does not seem to us to be sound, since it was evidently the intention of the Legislature that the Board of Review and Equalization should have a general-supervision over the levying of taxes, and, in the enactment of a revenue law, no special denial of the right of the taxpayer to take his complaint to the courts was necessary. The general repealing section fully covers-this matter.",
"In xegard to the construction of repealing law we need refer to only a very few authorities. The Supreme Court, of Wisconsin in a well considered case says: *302“A revenue law, like any other statute, may be repealed by implication. But there is always a presumption, more or less strong according to circumstances, that a statute is not intended to repeal a prior statute on the same subject unless it does so in express terms. Without a repealing clause the two may stand and have effect together, unless they are inconsistent; and in that ease to the extent of the inconsistency the latter will repeal the earlier; but even then the two must be given effect so far as practicable. In the case of grants of power to tax made to municipal bodies, the presumption that it was not intended to modify or repeal these by subsequent general legislation is so strong as to be almost conclusive. “Nor does the doctrine that statutes in pari materia are' to be taken together and construed as one act affect the question.",
"It is a rule of construction resorted to in ease of doubt, and is never applicable where the statute is plain and unambiguous.” (State v. Cram, 16 Wis., 343, citing Sedgwick on Statutory Law, 231.) If further authorities are necessary they can be had’ in abundance and we will quote the following: “It is not in accordance with settled rules of construction to ascribe to the law-making power an intention to establish conflicting and hostile systems upon the same subject, or to leave in force provisions of law by which the later will of the legislature may be thwarted and overthrown. Such a result would render legislation a useless and idle ceremony and subject the law to the reproach of uncertainty and unintelligibility.",
"’ ’ (Lyddy v. Long Island City, 10th N. E. Rep., 157.) “ It is a familiar canon of construction that a thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter, and a thing which is within the letter of a statute is not within the statute unless it be within the intention of the makers.” (Riggs v. Palmer, 5 L. A. R., 340, and notes.) There can then, in the light of these and all the authorities, be no doubt of the intention of the Insular Legislature to establish a new system of taxation and to repeal all other systems; and exemptions such as seemed proper being made *303by the Revenue Law all other exemptions and reductions are recalled and abrogated, and if the power to do so existed, these exclusive privileges of the owners of “Blandito” were swept away with all others of a similar character.",
"In the same way the contention of counsel that the remedies provided for his clients before the Board of Revision and Equalization had no application must be denied, since the authority of the board is ample to adjust and determine all such questions. The objection to the jurisdiction of the trial court on the ground that the administrative recourse had not been exhausted is entitled to great weight. The Revenue Law authorizes an appeal to the Board of Review from the Treasurer’s rulings in tax matters, and the parties should have resorted to that remedy before filing their suit. (See “Contentious-Administrative” procedure articles 1, 2, and 4, Political Code articles 308 to 313 inclusive.)",
"There is a procedure in some of the States, in school matters, similar to the “contentious-administrative” practice in use in Porto Rico. It is held, in one of the States, that no suit can be brought against trustees, or other school authorities until the parties first apply to the State school board; and the pleadings must show that this has been done. The legal status upon which, the court may act is not established until some right has been denied the party by the highest administrative officer or board having jurisdiction of the subject matter. It cannot be said that the right is denied by the Government when no proper application has been made to it, in order that its officer may pass on the right, and have an opportunity to recognize or deny it. It is true that jurisdiction over the person will be presumed, when nothing appears to the contrary in the record, but jurisdiction over the subject-matter is never presumed, and consent of parties- cannot give jurisdiction in such cases.",
"The Law of “Contentious-Administrative” procedure, article *30446, provides for the filing of dilatory exceptions before making answer and among the exceptions which can be presented mentions that to the jurisdiction; and article 48 provides that exceptions which are not filed before the answer may be filed as peremtory exceptions with the answer, and the court is required to pass on them when rendering final judgment.",
"There is nothing in those articles that militates against the proposition that the court is without jurisdiction when the administrative remedy has not been resorted to; on the contrary the language of the fifth paragraph of article 46 expressly states that the court is incompetent when the claim is not of the nature and condition required by the fifth title of the law. Article 1 is very clear in stating when the ‘ ‘ contentious-administrative” procedure may be resorted to; and requires as an indispensable requisite to the court’s jurisdiction that the required legal status shall have been previously produced; and by the terms of article 2 of the same law that status cannot exist until the administrative recourse has been fully appealed to. If the points here presented are not jurisdictional, they at least go far toward the merits of the action, and are so material that they may possibly affect its foundation. The fact of the plaintiff’s having resorted to his administrative remedy is absolutely necessary to form a predicate upon which to base a decree, and when this basis has not been laid so far as the record shows, it is difficult to see how the judgment can be maintained in force.",
"We will now glance at the second preliminary proposition advanced by the appellant, that the taxpayers are cut off from their application to the courts for relief in this case because they have paid the taxes assessed on the lands and cannot recover money voluntarily paid into the Treasury of the Island. To this the appellees reply that although they have paid the tax regularly their application made to the Treasurer on the 8th of May, 1901, was in the nature of a protest, made *305before the law went into effect, and must be considered as. such. Inasmuch as the exemption claimed is for ten years, and does not expire for a year or two yet to come, there must be some taxes remaining unpaid, and as to these at least the taxpayers have a right to object in a proper manner. But as the petition seeks to recover back the sums claimed to have been paid in excess of $18.60 per annum, we may examine the force necessary to be given to the proposition laid before us by the attorney for the Island.",
"In the discussion the eminent counsel representing the taxpayers in substance says: “Reference is made by counsel for the Government to the views of a so-called eminent legal writer on the matter of voluntary payments. These propositions lack logical soundness and are not consonant with exact justice.” Let us hear the text-book speak for itself. In regard to this question of voluntary payments Judge Cooley, in his work on taxation, states the law as follows: “That a tax voluntarily paid cannot he recovered back the authorities are generally agreed. And it is immaterial in such a case that the tax has been illegally laid, or even that the law under which it was laid was unconstitutional. The principle is an ancient' one in the common law, and is of general application.",
"Every man is supposed to know the law, and if he voluntarily makes a payment which the law would not compel him to make, he cannot afterwards-assign his ignorance of the law as the reason why the State should furnish him with legal remedies to recover it back. Especially is this the case when the officer receiving the money, who is chargeable with no more knowledge of the law than the party making payment, is not put on his guard by any warning or protest, and the money is paid over to the use of the public in apparent acquiescence in the justice of the exaction. “Mistake of fact can scarcely exist in such a case except in connection with negligence; as the illegalities which render such a demand a nullity must appear from the records, and the taxpayer is *306just as much hound to inform himself what the records show, or do not show, as are the public authorities.",
"The rule of law is a rule of sound public policy also; it is a rule of quiet as well as of good faith, and precludes the courts being occupied in undoing the arrangements of parties which they have voluntarily made, and into which they have not been drawn by fraud or accident, or by any excusable ignorance of their legal rights and liabilities. “All payments are supposed to be voluntary until the contrary is made to appear. Nor is the mere fact that a tax is paid unwillingly, or with complaint, of any legal importance, but there must be in the case some degree of compulsion to which the taxpayer submits at the time, but with notificaiton of some sort equivalent to reservation of rights. It has been said in one case that ‘taxes illegally recovered may always be recovered back if the collector understands from the payer that the tax is regarded as illegal and that suit will be instituted to compel the refunding,’ but it has been repeatedly held that a mere protest, when payment was not made to save arrest or the seizure or sale of goods, or in submission to process that might immediately have been enforced, would not relieve the payment of its presumed voluntary character.",
"In some cases it is held that a payment made only to release lands from'the lien of a tax, or to prevent a sale of lands, or to redeem lands from a sale actually made, will not be held a payment under compulsion, and the party paying cannot reclaim it; but this is not universally assented to; and it seems reasonable that the rule should be restricted to eases in which if sale were made, fatal defects would appear on the face of the proceedings. A party ought not to be exposed to any more risks of loss in relieving his lands of an apparent cloud upon title than in protecting his goods against an illegal sale.",
"“When a voluntary payment is spoken of, the qualifying word is not used in its ordinary sense, and many payments are held to be voluntary which are made unwillingly and only as a choice of evils or of risks. Thus, a payment has been held to be voluntary which the owner made to save the property from being sold, as he supposed, when the collector was actually assuming to proceed to sale, but with an authority void on its face, and without possession or control of the property.",
"A like ruling has been made when the officer threatened to sell property for a tax not then delinquent, having at the time no power to carry out his threat. So where a court without authority made an order for the payment of a tax, and payment was made accordingly, the party under such circum*307stances being under no legal compulsion — the payment was held voluntary. So where one of the days fixed for the sale of his property for the illegal tax proposed to make payment on the next day if the sale should be postponed, and postponement was had and payment made as proposed, this was held a voluntary payment. And it has been said in some cases, that when it is sought to recover back a payment as having been made under compulsion, it should be made to appear that payment was made to release either person or property from the power of the officer. And this may be said to express the general sense of the authorities. ‘ ‘ Statutes in some States have changed the rule somewhat and have allowed a recovery in all cases of illegal tax, provided that at the time of payment formal protest was made as the statutes prescribe.",
"In respect to such statutes it is only necessary to say that a party relying upon them must be careful to bring his case within their provisions.” (Cooley on Taxation, pp. 809, 810, 811, 812 and 813.) In so far as the protest and the doctrine laid down by Cooley is concerned, say the distinguished counsel, representing the appellees herein, it is very doubtful, in the sound principles of reason and according to the strictest justice, whether it could have any application to the present case.",
"This text writer, says the counsel, maintains that there is no right to reclaim from the State the return of money which has been paid in without protest, and from this the fiscal jumps to the conclusion that it cannot he maintained that the Messrs. Guerra have any right to reclaim taxes paid, but that in some manner the exaction of this tax was legal and that it ought to continue to be. collected. But, continues their advocate, the Messrs. Guerra protested against the illegal collection which was being made upon them of those taxes, as is proven by the first Writing which they addressed to the Treasurer of Porto Bico, against the legality of the said exaction long before the date at which the tax was collectible, and consequently the protest which the fiscal failed to observe, as a reality is as evident as the existence of this suit. Such is substantially the position taken by counsel for the taxpayers.",
"*308In our opinion the law as laid down by Judge Cooley correctly settles the question that, in so far as the recovery of any moneys already paid into the Treasury is concerned, the taxpayers have not taken the proper measures for their own protection. The payments, made by them must be considered as voluntary. The taxpayers were under no sort of duress either as to their persons or their property. They should have waited before making payment until a sale of their property was threatened when they, to prevent such a sale, could have made payment of the taxes under protest, or have sought for an injunction preventing a sale for the taxes claimed to be illegal, and aTl the matters which are brought to issue in this suit could have been there decided.",
"When money has been inadvertently paid to the Treasury, under a mistaken claim of right, voluntarily and without protest, resort must be had to the Legislature to secure a repayment, and not to the courts, who have thus lost jurisdiction over the subject-matter. As to the third point presented by the fiscal we need only say that in the view taken of this case the discussion in reg'ard to costs is not material. If it were necessary to consider the .question, the contention that in no event should costs be adjudged against the Government in such a case as this must be sustained. The 93d article of the “Contentious-Administrative” Law cannot'be held to warrant it. This brings us to the fourth and last proposition made by counsel for the Insular Government. Notwithstanding any views expressed on the preliminary questions presented herein we will examine the main proposition as minutely as its importance demands. It is not necessary to discuss the great question formerly mooted whether or not the Constitution of the United States entire, or the- subsidiary one as to whether the clause in the 10th section of the first article thereof which provides that “no State shall pass any law impairing the obligations of *309contracts,” is in force in Porto Eico. For the purposes of this decision it may be considered that the taxpayer is entitled to all the benefits which conld be derived from that clause, the same as if it were in force in Porto Eico.",
"Let ns consider the case on this basis. But counsel for the appellees claims for his clients the protection of the Treaty of Paris, maintaining that this exemption from taxation, and reduction in the amount thereof, is property, or a right or rights belonging to the peaceful possession of property, within the terms of Article VIII of that treaty. In order more clearly to understand the proposition advanced by counsel, we will quote the first two paragraphs of the article, which read as follows: “In conformity with the provisions'of Articles I, II and III of this treatly, Spain relinquishes in Cuba and cedes in Porto Rico and other islands in the \"West Indies, in the Island of Guam and in the Philippine Archinelago, all the buildings, wharves, barracks, forts, structures, public highways and other immovable property which, in conformity with law, belong to the public domain, and as such belong to the Crown of Spain.",
"“And it is hereby declared that the relinquishment or cession, as the ease may be, to which the 'preceding paragraph refers, cannot in any respect impair Ihe property ór rights tuhich by law belong to the peaceful possession of property of all hinds, of provinces, municipalities, public or private establishments, ecclesiastical or civic bodies, or any other associations having legal capacity to acquire and possess property in the aforesaid territories renounced or ceded, or of private individuals, of whatever nationality such individuals may be.” This claim of protection under the Treaty of Paris may as well be disposed of here and now as elsewhere and at another time.",
"If the exemption from taxation is a vested right in the appellees under the Spanish statute called the Law of Agricultural Colonies, it is a right of property and either in accordance with or regardless of the treaty should be protected. (See Vryan v. Kennett, 113 U. S., 192; Soulard *310v. United States, 29 U. S., 511; Strother v. Lucas, 37 U. S., 435, 438; Head Money cases, 112 U. S., 598, 599.) Article VIII of this treaty has reference only to “ immovable property which belongs to the Crown of Spain,” and the cession thereof cannot impair the rights of private individuals. From a carefnl reading of the two sections quoted this plainly appears to be their meaning, and if such is a proper construction this article can have no reference to the lands involved in this suit, nor to the exemption from taxation, entire or partial, which is claimed herein. But there is no need to appeal to the Treaty for protection of vested rights.",
"These are protected under the Constitution and laws of the United States with or without a treaty to that effect. Courts of justice never knowingly infringe vested rights in any civilized country and the Treaty of Paris in the section referred to is merely declaratory of these principles. (See Fletcher v. Peck, 10 U. S. [6 Cranch], 132 et seq.) Then the case may be considered, not only in accordance with the treaty and the National Constitution, but with due regard to the universal principles of justice which forbid the deprivation of any citizen of his vested rights.",
"Whatever rights the appellees may have had under the laws of the former Government should be recognized under the present, and our courts should regard the status of the lands as unchanged by the cession of the Island to the American Government. The very core of the question then is: Had the exemption of a part and the reduction of the remainder of the lands, in regard to taxation, become fixed upon the real property, so as to be regarded as a vested right, arising out of a contract, in such a manner as not to be affected by subsequent legislation? We may observe at the outset that the matter of the taxation of lands in Porto Rico and the recognition of exemptions and reductions made or claimed to have been made, whether *311they are deemed to be temporary or permanent must be governed by the American laws, the sovereignty of the Island being vested in the American Government, bnt before entering fully npon the discussion of the case in the light of American jurisprudence we may glance at the Spanish statutes. A reference to the title will show that the Spanish law of the 3d of June, 1868, on which the appellees rely as the basis of their supposed contract, repealed and modified several other prior laws, of an entirely similar nature, in regard to the protection and encouragement of agriculture.",
"It would appear from this fact in itself that the law under which protection was claimed was not regarded in Spain as irrepealable, and that the exemption from taxation under that law was in no way regarded as having the sanctity of a contract. The taxpayers rely in this proceeding npon two decisions made by the Supreme Court of the United States to sustain their proposition that the reduction and exemption claimed by them from the effect of the general tax laws is an irrepealable contract. Reference is made to the opinions expressed by Mr. Justice Davis in the cases of Home of the Friendless v. Rouse, and Washington University v. Rouse, in (8 Wall.) 75 U. S., pages 435-439. Those opinions, following the case of Dartmouth College v. Woodward, (4 Wheaton,) 17 U. S., 625, and other cases in line with that celebrated decision, maintained the proposition that a charter granted by a state to a charitable or educational institution, and for the purpose of enabling the incorporators “more fully and effectually to accomplish their laudable purpose,” exempting the property of such corporation from taxation, forms a contract, based on a sufficient consideration, and thus secures the protection of that clause of section 10 of Article I of the Constitution of the United States, forbidding any State to pass a law impairing the obligation of contracts.",
"The exemption so given in a charter granted by the State *312cannot afterwards be withdrawn by a subsequent legislature owing to the force of the clause in the National Constitution mentioned. This proposition is recognized as the settled law in the United States, notwithstanding the very, able dissenting opinions which have from time to time been filed by some of the justices of the Supreme Court limiting or calling in question the doctrine which thus curtails the taxing power. Mr. Chief Justice Chase and Mr. Justice Field join Mr. Justice Miller, in the cases cited from (8 Wall.)",
"75 Ü. S., in holding that no legislature can by such a contract deprive the State forever of the power of taxation; since such action might result in the destruction of the Government by entirely surrendering the taxing power absolutely necessary to its maintenance. Giving these opinions all the force which can be claimed for them, they do not support the position taken by the taxpayers in this case, unless the plaintiffs having no charter, can show that they have a contract, based on a valid and sufficient consideration, to support the exemption, or reduction in taxation, claimed as applicable to their sugar, plantation called “Blandito.” Concerning this position taken by the counsel for the taxpayers a quotation may be made from a case covering similar circumstances. It is a case decided by the Supreme Court of the United States and arose in Pennsylvania. A law of the Legislature passed in 1833 had exempted the property of a hospital from taxation for an indefinite term, and eighteen years afterwards this law was repealed. Although it was claimed to be a contract, the Supreme Court says: “The plaintiffs claim that the exemption conceded by the act of 1833 is perpetual, and that the act itself is in effect a contract.",
"This concession of the Legislature was spontaneous, and no service or duty, or other remunerative 'condition, was imposed oq the corporation. It belongs to the class of laws denominated privilegia fa-*313vorabiUa.. It attached only to such real property as belonged to'the corporation, and while it remained as its property, but is not a necessary implication from these facts that the concession is perpetual, or was designed to continue during the corporate existence. “Such an interpretation is not to be favored, as the power of taxation is necessary to the existence of the State, and must be exerted according to the varying conditions of the Commonwealth.",
"The act of 1833 belongs to a class of statutes in which the narrowest meaning is to be taken, which will fairly carry out the intent of the legislature. All laws, all political'institutions, are dispositions for the future, and their professed object is to afford a permanent and steady security to the interest of society. Bentham says: ‘That all laws may be said to be framed with a view to perpetuity; but perpetual is not synonymous with irrevocable; and the principles on which all laws ought to be, and the greater part of them have been, established, is that of defeasable perpetuity — a perpetuity defeasible by an alteration of the circumstances and reasons on which the law is founded. “It is in the nature of such a privilege as the act of 1833 confers that it exists bene placitum, and may be revoked at the pleasure of the sovereign.” (Rector, etc., of Christ Church v. Philedalphia County, 65 U. S. [24 Howard], 302-303.",
"The Supreme Court of the United States again in a later case emphasizes this doctrine in the following clear and •concise language: ‘ ‘ It has been held many times in this court that a State may make a valid contract that a corporation or its property within its territory shall be exempt from taxation, or shall be subject to a limited and specified taxation. (Referring to many cases.) “The court has, however, in the most emphatic terms, and on ■every occasion, declared that the language in which the surrender is made must be clear and unmistakable. The covenant or enactment must distinctly express that there shall be no other or further liability to taxation. A State cannot strip itself of this most essential power by doubtful words.",
"It cannot, by ambiguous language, be deprived of this highest attribute of sovereignty. This principle is distinctly laid down in each of the cases referred to. It has never been departed from.” (Erie Railway Company v. Pennsylvania, 88 U. S., 498 and 499.) *314Counsel for the taxpayers also himself relies upon and cites the Dannouth College Case, decided in the year 1819 and reported in 17th U. S. (4th Wheaton), 628. In our view this case has no application to the present, further than to illustrate the force of the constitutional provision above referred to.",
"The main question in that famous case was whether or not a charter granted to a college situated in New Hampshire, by the British Government fifty years, previously, should be respected by the Government of the State afterwards erected among the colonies; and it was-decided that such a charter constituted a contract and was. entitled to the protection of the constitutional provision, and that therefore no State could pass a law changing such a charter in its essential features without impairing the obligation of the contract entered into bétween the former Government and the college long years before, which was forbidden by the Federal Constitution. It may perhaps be unnecessary to discuss the long line of decisions which have followed the Dartmouth College' Case, nor the effect which those cases have upon legislation and jurisprudence in the United States.",
"The famous opinions of the great Chief Justice and his. able associates, Washington and Story, were probably more far-reaching than he and his associates, who concurred in the decision at that time, anticipated. But, whatever may be thought of this notable case in the light of later history, it is the law of the land, and as such must be respected. Let us follow the current of authorities as it carries this question along from time to time. Another case decided by the Supreme Court of the United States in 1830, in which Chief Justice Marshall again wrote the opinion of the court, is Providence Bank v. Billings, 29 U. S. (4 Pet. ), 358. From that opinion may be cited the following paragraph: *315“The p.1 aim of the Providence Bank is certainly of the first impression.",
"The power of taxing moneyed corporations has been frequently exercised, and has never before, so far as is known, been resisted. Its novelty, however, furnishes no conclusive argument against it. That the taxing power is of vital importance; that it is essential to the existence of government, are truths which it cannot be necessary to reaffirm. They are acknowledged and asserted by all. It would seem that the relinquishment of such power is never to be presumed. We will not say that a State may not relinquish it; that a consideration sufficiently valuable to induce a partial release of it may not exist; but as the whole community is interested in retaining it undiminished, that community has a right to insist that its abandonment ought not to be presumed, in a case in which a deliberate purpose of the State to abandon it does not appear.” (Providence Bank v. Billings, 29 U. S. [4 Pet.",
"], 558-560.) This case was followed in 1853 by a decision of the samé high tribunal, in which Chief Justice Taney delivered the opinion of the court. It is reported in 57 IT. S. (16 Ilow. ), and a paragraph on page 428 may be quoted: “It will be admitted on all hands that with the exceptions of the powers surrendered by the Constitution of the United States, the people of the several States are absolutely and unconditionally sovereign within their respective territories. It follows that they may impose what taxes they think proper upon persons or things within their dominion, and may apportion them according to their discretion and judgment. They may, if they deem it advisable to do so, exempt certain descriptions of property from taxation and lay the bnrden of supporting the government elsewhere. And .they may -do this in the ordinary forms of legislation or by contract, as may seem best to the people of the State.",
"There is nothing in the Constitution of the United States to forbid it, nor any authority given to this court to question the right of a State to bind itself by such contracts, whenever it may think proper to make them.” (Ohio Life Insurance and Trust Company v. Debolt, 57 U. S. [16 How. ], 428.) But again in the same case, on page 434 of the same volume, the same illustrious jurist used the following lan- *316“The rule of obstruction, in eases of this kind, lias been well settled by. this court. The grant of privileges and exemptions to a corporation are strictly construed against the corporation, and in favor of the public. Nothing passes but what is granted in clear and explicit terms. And neither the right of taxation nor any other power of sovereignty which the community have an interest in preserving undiminished will be held by the court to be surrendered unless the intention of the surrender is manifested by words too plain to be mistaken. This is the rule laid down in the case of Billings v. The Providence Bank and reaffirmed in the case of the Charles River Bridge Company.” (Ohio Life Insurance and Trust Company v. Debolt, 57 U. S. [16 How. ], 434.)",
"The Chief Justice continuing, in the same opinion on the next page, says: “And if individuals choose to accept a charter in which the words used are susceptible of different meanings, or might have been considered by the representatives of the State as words of legislation only, and subject to future revision and repeal, and not words of contract, the parties who accept it have no just right to call upon this court to exercise its high power over a State upon doubtful or ambiguous words, nor upon any supposed equitable construction, or inferences made from other provisions in the act of incorporation. If there are equitable considerations in their favor the application should be made to the State and not to this court. If they came here •to claim an exemption from their equal share of the public burdens, or any peculiar exemption or privilege, they must be shown by plain and unequivocal language.” (Ohio Life Insurance and Trust Company v. Debolt, 57 U. S. [16 How.",
"], 435.) Some years later, in 1862, a case arose iu the State of Wisconsin which involved the power of a State to tax certain property within its limits, and the Supreme Court of the United States, speaking through Mr. Justice Swayne, in making its decision, announced the following propositions: “The Act of 1854 authorized the borrowing of money, the issuing of bonds, and the levying of a tax upon all the property in' the city for the purposes specified. The imposition, modification and *317removal of tases, and the exemption of property from such burdens is an ordinary exercise of the power of a State sovereignty. There is no pledge, express or implied, that this power should not thereafter be exercised.",
"“Admitting that the State could enter into such an engagement there is no evidence that it did. This fact should never be assumed unless the language used be too clear to admit of doubt. If the agreement existed, the complainant is not in a position to make the question. There is no allegation that the tax levied is insufficient. We-hear of no complaint from the bondholders. They are not before us. It does not belong to the complainant vicariously to enforce their contract and protect their rights.” (Gilman v. City of Sheboygan, 67 U. S. [Blk. ], 513.) In 1871 a case came from the Supreme Court of Michigan to the Supreme Court of the United States involving questions very similar to the case at bar. The State of Michigan,, by a law regularly passed by the Legislature had offered a, bounty of ten cents for every bushel of salt manufactured for a certain number of years. This was held not to be a contract in such a sense that it could not be repealed.",
"The Supreme Court in discussing it held that such a law was. only a bounty law, and merely regulative of the internal economy of the State, and that such general encouragement, was held out to .all persons indiscriminately to engage in any particular manufacture or trade. In concluding the opinion of the Supreme Court, rendered by Mr. Justice Bradley, the following language is used: “In short, the law does not, in our judgment, belong to that class of laws which can be denominated contracts, except so far as they have been actually executed and complied with. There is no stipulation, express or impliéd, that it shall not be repealed.",
"General encouragement, held out to all persons indiscriminately, to engage in a particular trade or manufacture, whether such encouragement be in the shape of bounties or drawbacks, or other advantage, are always under the legislative control and may be discontinued at any time.”' (Salt Company v. East Saginaw, 80 U. S. [13 Wall. ], 397.) *318Again in the year 1874 in the case of Tucker v. Ferguson, reported in 89 U. S. (22 Wall. ), beginning on page1 527, the Supreme Court reaffirmed this doctrine. Mr. Justice Swayne delivered a very lengthy and able opinion, from which the following paragraphs are quoted: “The company, so far as the matter of right is concerned, were upon a footing with all other alienees of the United States. The imposition of taxes can in no just sense be said to be a diminution of the value of the lands. If Congress had thought so, they would have forbidden it.",
"Liability to taxation is an incident to all real estate. Exemption is an exception. When claimed, to be effectual, it must be clearly made out. * * * “The provision of the thirty-seventh section of the Act of 1871, exempting the lands specified from local taxation until three years from the 1st of April, 1871, which period has not elapsed, was not a contract. There was no consideration. The company was required to do nothing and did nothing in return. As. between individuals the stipulation would belong to the category'of nude pacts. It has no higher character because one of the parties was a State, the other a corporation, and it was put in the form of a statute. It was the promise of a gratuity spontaneously made, which might be kept, changed or recalled at pleasure.",
"* * * “The taxing power is vital to the functions of government. It helps to sustain the social compact and to give it efficacy. It is intended to promote the general welfare. It reaches the interest of every member of the community. It may be restrained by contract in special cases for the public good, where such contracts are not forbidden. But the contract must be shown to exist. There is no presumption in its favor. Every reasonable doubt should be resolved against it. Where it exists it is to be rigidly scrutinized, and never permitted to extend, either in scope or duration, beyond what the terms of the concession clearly require.",
"It is in derogation of public right and narrows a trust created for the good of all.” (Tucker v. Ferguson, 89 U. S. [22 Wall. ], 573, 574, 575.) The doctrine announced and the decision rendered in the case of Tucker v. Ferguson (22 Wall., 527) was reaffirmed in a subsequent Wisconsin case in October, 1876. This was the case of West Wisconsin Railroad Company v. Super*319visors of Trempealeau County, 93 U. S., 597 et seq. Mr. Justice S wayne, delivering tlie opinion of the court in this case also and referring to the case above cited, and quoting from it, says: “We hold here, as we held there, that the exemptions in question were gratuities offered by the State, without any element of a contract. There was no assurance or intimation that they were intended to be irrevocable, or that the laws in question should not be at all times subject to modification or repeal in like manner as other legislation.",
"If a different intent had existed, it would doubtless have been clearly manifested by the language employed. It would not have been left to encounter the possible results of such a struggle and conflict as have occurred in this litigation. * * * . “The State chose to continue the gratuity for a time and then withdrew it. The exemption given by both acts wa's abrogated a year before the bonds of the last series were issued and before the first term of exemption expired or the second began. The State did what it had an unqualified right to do. In such cases, a reasonable doubt is fatal to the claim. Prima facie every presumption is against it. It is only when the terms of the concession are too explicit to admit fairly of any other construction that the proposition can be supported. (Providence Bank v. Billings, 4 Pet., 561; Christ’s Church v. Philadelphia, 24 How., 302; Gilman v. Sheboygan, 2 Black, 513; Herrick v. Randolph, 13 Vt., 531; Easton Bank v. Commonwealth, 10 Penn.",
"St., 450; People v. Ropper, 35 N. Y., 629.) “We hold the conclusion we have announced to be the law of this case. With its ethics we have nothing to do. That subject is not open to our consideration.” This brings us, in the current of authorities, to the case of Welch v. Cook, 97 U. S., 541, which is the one mainly relied on by the fiscal in his argument before this court. In this case it appears that the District of Columbia, which at that time had a legislative assembly, passed an act, providing that all property, real and personal, which might thereafter be actually employed for manufacturing purposes, should he exempt from taxation for a period of ten years. After-, wards the Legislative Assembly of the District of Columbia, *320was abolished by the Congress of the United States, and a tax law was enacted imposing certain taxes on all real estate in the said district except that belonging to the United States and to the Distinct of Columbia, and that used for educational and charitable purposes, thus repealing the law exempting property employed for manufacturing purposes. Welch and others, who had invested their money in manufacturing enterprises within said district, brought a suit to enjoin the collection of taxes, claiming the exemption under the act of the legislature. The case finally reached the Supreme Court of the United States, and Hr. Justice Hunt delivered the opinion of the court.",
"The whole opinion is worthy of a careful reading and consideration; however, we will quote but two paragraphs: “Under these circumstances, and prefaced, as was the act by the recital that this levy was made to support the Government and maintain its credit, it is apparent that the Act of Congress was intended to create a separate system, and to be independent of the action of all preceding bodies. Other and different exemptions have before existed; no settled system had been adopted. The Act of the Legislative Assembly of 1871, fixing the taxes for that year, gave more than forty exemptions in great detail, covering an entire page in the statute book (p. 26) ; that of the same body, fixing the taxes for 1872, exempted only personages, churches, the ground on which they stood, and burial grounds (p. 109).",
"Here it is declared that all real estate shall be taxed except that therein specifically exempted. We think that the system in regard to taxation, including what should be taxed, the rates and the exemptions from taxation, Avas intended to be an independent one, to abolish existing impositions or exemptions, and to form a complete system of itself. “Nor are we able to see that this action involves a breach of faith towards the owner of the manufacturing property. Conceding, as the plaintiff must and does, that the exemption of this property was of the bounty of the Legislature, he knew when he accepted it that it was liable to be revoked whenever either the local legislature or Congress should be of the opinion that the public interest demanded such action. He could not but realize that an assessment of three per cent upon the value of property in Washington or two and a half *321per cent upon that in Georgetown, created a heavy burden. Others felt it as it did, and it is reasonable to suppose that Congress considered it a duty to lighten the burden of taxation by increasing the subjects of it as far as justice required.” (Welch v. Cook, 97 U. S., 544-545.)",
"■Although, it is not a practice which ought to he generally followed to make long quotations from text writers in the opinions of courts of appeal, yet in this case, as the discussion has taken a wide range and there does not seem to be among members of the local bar great familiarity with the elementary principles governing this case as understood on the Continent, a discussion from a textbook universally recognized as one of the best of its class may not be inappropriate. That eminent jurist, Thomas M. Cooley, who for so many years adorned the Supreme Bench in Michigan, in his great work on taxation, so often quoted with approval by the highest courts on the American Continent, summing up the consensus of judicial opinion as expressed by the courts and adding and intermingling his own wisdom therewith, says: “Tlie taxing power is an incident to sovereignty. — The power of taxation is an incident of sovereignty, and is possessed by the Government without being expressly conferred by the people. It is a legislative power; and when the people, by their constitutions create a department of government upon which they confer the power to make laws, the power of taxation is conferred as part of the more general power. Even a wrongful government, if it be for the time a government de facto, maintaining its authority and enforcing obedience to its laws, may exercise the power of taxation, and the power, so far as it has been completely enforced, must be recognized as lawful.",
"But the overthrow of the de facto government defeats the power; and the rightful government will not thereafter aid in enforcing the uncollected levies. “Everything to which the legislative power extends may be the subject of taxation, whether it be person or property, or posses*322sion, franchise or privilege, or occupation or right. Nothing but express constitutional limitation upon legislative authority can exclude anything to which the authority extends from the grasp of the taxing power, if the legislature in its discretion shall at any time select it for revenue purposes. And not only is the power unlimited in its reach as to subjects, but in its very nature it acknowledges no limits and may be carried to any extent which the government may find expedient.",
"“It may therefore be employed again and again upon the same subjects, event to the extent of exhaustion and destruction, and may thus become in its exercise a power to destroy. If the power be threatened with abuse, security must be found in the responsibility of the legislature which imposes the tax to the constituency who are to pay it. The judiciary can afford no redress against oppressive taxation so long as the legislature, in imposing it, shall keep within the limits of legislative authority and violate no express provision of the Constitution. The necessity for imposing it addresses itself to the legislative discretion, and it is or may be an urgent necessity which will admit of no property or other conflicting rierht in the citizen while it remains unsatisfied.” (Cooley on Taxation, pp. 4, 5 and 6.) “Restriction or Relinquishment of the Power by Contract. — In some cases the State legislature is found to have pledged the State, in definite and formal manner, that on some particular subject of taxation the State should refrain, either wholly or for some definite period, from levying any taxes whatever, or should levy them only to a certain extent.",
"Such pledges are commonly impolitic and unwise, and it is always among the possibilities that, if sustained, they might be carried to the extreme of crippling the sovereign power of the State to perform its accustomed functions. There has always, therefore, been a strong protest against the doctrine that such pledges could constitutionally be made, the protestants insisting that no legislature is competent to limit the power of its successor, but must transmit to those to come after it the complete power which it received from its predecessor. But the Federal Supreme Court in an early case, in which the facts were that a State had exchanged lands with an Indian tribe and stipulated by legislative act that those conveyed to the Indians should not thereafter be subject to any tax, decided that this stipulation was binding upon the State as a contract; that the State could not impose taxes in contravention of the stipulation, and that the exemption was available on behalf of those who subsequently by *323legislative permission became purchasers from the Indians. The eon-tract derived its character of the inviolability from the clause of the Constitution of the United States inhibiting the States from passing any law impairing the obligation of contracts, a clause which applies to the contracts of a State equally with those of individuals.",
"£ ‘ The pledge, however, in order to constitute a contract, must have the elements of a contract, and the vital elements are consent and consideration. Consent to the exemption on the part of the State is never by itself sufficient, but there must be something received by the State for the relinquishment or something surrendered on .the other side which can be deemed a legal equivalent. In the ease first referred to the consideration was manifest, the State was bargaining away its lands, and was presenting the exemption from taxation as an inducement for better terms on the other side. “So if the legislature by law, in order to secure the establishment of a charitable institution, charter a corporation, and in the charter declare that its property shall be exempt from taxation, and individuals, in reliance thereon, invest their means to secure the accomplishment of the object of the law, a consideration for the state promise is thus made out. The case would be still plainer if the State received a bonus for the grant of a franchise, stipulating in the grant to give exemption from taxation, or if it made the grant to a corporation on a surrender by it of valuable rights. ‘ ‘ The contract of exemption may either be perpetual or limited to a definite period, and it may be for the taxes generally or only for some portion of them, or it may be a limitation of the tax within some specified bounds.",
"The same principles apply in each case; where a •certain sum is specified, or a certain percentage upon valuation, or upon receipts or acquisitions in any form, this is in the nature of a •commutation of taxes, the State agreeing that the sum named is, under the circumstances, a fair equivalent for what the customary taxes would be, or the fair proportion which the person bargained with ought to pay, and the power thus to commute, though liable to abuse, is undoubted.",
"And this rule applies when a bonus is paid for complete future exemption, to the same extent and on the same reasons ■as when the commutation is for an annual payment. “It is perfectly well settled, however, that an exemption granted for motives of state policy merely, and when the State and the citizen do not meet on a basis of bargain and consideration, is to be deemed expressive only of the present will of the State on the subject, and the law granting it, like laws in general, is subject to modification or re*324peal, in the legislative discretion, and it is immaterial that while it continued in force parties have acted in reliance upon it. It is also well settled that the contract must be clearly made.",
"The power to tax being essential to the very existence of the State, there can be no presumption that it has been either abandoned or restricted, and whoever claims that it has been, should be able to show by clear words that an intent is expressed to do so, and that consideration existed therefor. And when thus the contract is made out, it cannot be extended by implication beyond the fair import of its terms. As has been said by the Federal Supreme Court, if on any fair construction of the legislation there is reasonable doubt whether the contract is made out, this doubt must be solved in favor of the State.",
"In other words, the language used must be of such a character as, fairly interpreted, leaves no room for controversy. “By repeated decisions of the Federal Supreme Court it has been authoritatively and conclusively determined that the character of a private corporation is to be regarded as a contract between the cor-porators. on the one hand and the State on the other, and that whatever stipulations are contained therein which are intended for the benefits of the corporators, and operate as an inducement to them to accept the charter, are promises by the State based on valid and sufficient consideration and not subject to recall except with the assent of the corporation itself. Stipulations respecting taxation come within ■ the principle, and aré therefore irrepealable, and not subject to change at the mere will of the State, to the prejudice of those on whose behalf they are made.",
"But the right to amend or repeal inay be reserved in the charter, and when it is reserved it is a part of the contract, and. may be exercised by the State at pleasure, unless conditions are imposed in respect to its exercise, in which case the conditions must be observed. To avoid the force of the principle that a corporate charter is a contract which oftentimes operates in some unexpected manner, and perhaps unjustly to the public at large, the people of some of the States have made express provision by their constitutions that all-charters of private incorporation granted by the legislature shall be subject to amendment or repeal, at the legislative will. A provision of this nature is a limitation upon the power of the legislature in granting charters, and while it cannot affect any that are in existence when it takes effect, it attaches the quality of modification and repeal-ability to any afterwards granted, and all who accept them do so with full notice of the fact.",
"The charters are still contracts, but contracts with a reserved right on the part of the State to amend or ter-*325mínate them. The rule would he the same if the charter were granted while a general law of. the State was in force which declared that all grants of the kind should he subject to the legislative power of alteration and repeal, for the grantees would accept their franchises with notice of and qualified by such a declaration. “Contracts of a State, like the contracts of individuals, may be modified to any extent, subject to constitutional provisions, if any, having a bearing upon the right, by the mutual consent of the parties thereto, which in the ease of a charter of private incorporation would be the State on the one side and the corporators on the other.",
"The State consents to the modification when it adopts legislation which has that effect, and the corporation when it accepts such legislation. “A different rule prevails in the case of charters of municipal incorporation. These are not contracts, but regulations of government, and if they contain provisions respecting taxation, such provisions, like everything else in the charter, are subject to change, as the legislative judgment may change respecting questions of policy and expediency, or as changing circumstances may seem to require. ’ ’ (Cooley on Taxation, pp. 66, 67, 68, 69, 70, 71, 72, 73.)",
"It will be seen from a careful review of these extracts from the opinions of the Supreme Court of the United States and from the summary contained in the textbook quoted, that the crucial test, running all through .this line of decisions and applicable to the case before this court, is whether or not a contract exists between the Government and the taxpayer.",
"If there is a contract, under the clause quoted from the 10th section of Article I of the Constitution of the United States the taxation is illegal and should be restrained. If there is no contract, the Eevenue Law is in full force, and the taxes should be imposed and collected. We are of the opinion that a contract, to exist between the State and one of its citizens, whether it be a natural person or a corporation, the same as between two individuals, requires a consideration moving from one party to the other, otherwise it is what is denominated in one of the opinions quoted, a nude pact. In other words, unless the taxpayer is required to do something and has done something for the benefit of the *326State, lie cannot claim that the exemption or reduction in his taxes granted to him constitutes a contract and for that reason is irrepealable. A consideration may be defined to be any benefit derived or agreed to be conferred on one. party to a contract from or by the other party, to which previously the beneficiary was not -entitled; or on the other hand any prejudice suffered or conceded by one party to the contract other than such as he was previously bound to suffer; the same acting as an inducement on the one side or the other for the formation of the contract. Has the Island received any benefit or the taxpayers suffered any prejudice on account of the concession claimed under the Spanish law? Have not all the benefits been on the part of those taking the concessions?",
"Have not all the moneys expended been returned to them many fold? Even the increased- salubrity of the neighborhood is enjoyed solely by them and their tenants. \"Why should their neighbors be required to contribute a greater sum to the support of the Government in order' to lessen the burden on these sugar planters? They have done so for several years, but has not the time arrived when such inequalities in the burdens of Government should cease? In the case at bar nothing whatever indicates, and nothing appears from the record to show that the Messrs. Guerra did anything or suffered any loss or inconvenience by virtue of which they could ask the Government to reduce their taxes or to exempt them from taxation.",
"It is quite plain that the Government derived no benefit whatever from any act of theirs. All the benefit derived from their acts, in regard to the estate known as “Blandito” upon which the exemption is claimed, was applied to their own property. It is true, the property may have been reclaimed from the marshes; uncultivated lands may have been put in cultivation, and other investments and improvements may have been made, *327-but in return for that the record shows that the health of their families and their tenants and employees may have been rendered more secure; and that they have annually reaped large crops of sugar, and that the Insular Government did not participate in those benefits and profits, to the extent of a single centavo. The further fact that this privilege which they obtained from the Spanish Government in 1896 was left undisturbed by the American Government, and was not withdrawn until the passage of the Revenue Law by the Insular Government on the 31st of January, 1901, does not strengthen the position which is sought to be maintained. Although the Government having control of the Island had the right to act at any time it was not bound to act until it seemed proper, in the opinion of its legislative authorities, so to do.",
"The delay in the repeal was for the benefit of the appellees, and they cannot complain of it or claim anything under it except the incidental benefits naturally arising from temporary reductions and exemptions. There is nothing whatever in this case which is analogous to an estoppel, so as to bind the Government or its officers to respect or perpetuate the temporary privilege enjoyed by the appellees. It is useless to prolong this discussion which already exceeds the limits ordinarily allowed to cases of this nature and importance. A consideration being wanting in the transaction between the Government and the taxpayer, there could be no valid contract, and therefore, the exemption law enacted by the, Queen of Spain in 1868, must be regarded as repealed by the Revenue Law of the Legislative Assembly of Porto Rico, of the 31st of January, 1901. For this and the other reasons stated herein the judgment of the district court should be reversed, and a judgment here rendered in favor of the Insular Government permitting the Treasurer to collect the taxes imposed, and denying the relief sought by the *328appellees, imposing upon them all the costs of these proceedings, both in this court and the court below. Reversed.",
"Chief Justice Quiñones and Justices Hernández and Fi-gueras concurred. Mr. Justice Wolf did not sit at the hearing of this case."
]
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United States Court of Appeals Fifth Circuit
FILED IN THE UNITED STATES COURT OF APPEALS August 18, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 04-20052 Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE SANTOS ZUNIGA-VERAS,
Defendant-Appellant.
-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-03-CR-157-ALL --------------------
Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Jose Santos Zuniga-Veras appeals his guilty-plea conviction
for illegal reentry into the United States following an
aggravated felony conviction in violation of 8 U.S.C. § 1326.
For the first time on appeal, Zuniga-Veras argues that the
sentencing provisions of 8 U.S.C. § 1326(b)(1) & (2) are
unconstitutional in light of the Supreme Court’s holding in
Apprendi v. New Jersey, 530 U.S. 466 (2000).
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 04-20052 -2-
Under either a de novo or plain error standard of review,
Zuniga-Veras acknowledges that his argument is foreclosed by the
Supreme Court’s decision in Almendarez-Torres v. United States,
523 U.S. 224 (1998), but he seeks to preserve the issue for
Supreme Court review. Apprendi did not overrule Almendarez-
Torres. See Apprendi, 530 U.S. at 489-90; United States
v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). Zuniga-Veras’s
argument is foreclosed. The judgment of the district court is
AFFIRMED. | 04-25-2010 | [
"United States Court of Appeals Fifth Circuit FILED IN THE UNITED STATES COURT OF APPEALS August 18, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 04-20052 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE SANTOS ZUNIGA-VERAS, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-03-CR-157-ALL -------------------- Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges. PER CURIAM:* Jose Santos Zuniga-Veras appeals his guilty-plea conviction for illegal reentry into the United States following an aggravated felony conviction in violation of 8 U.S.C. § 1326. For the first time on appeal, Zuniga-Veras argues that the sentencing provisions of 8 U.S.C.",
"§ 1326(b)(1) & (2) are unconstitutional in light of the Supreme Court’s holding in Apprendi v. New Jersey, 530 U.S. 466 (2000). * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 04-20052 -2- Under either a de novo or plain error standard of review, Zuniga-Veras acknowledges that his argument is foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve the issue for Supreme Court review.",
"Apprendi did not overrule Almendarez- Torres. See Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). Zuniga-Veras’s argument is foreclosed. The judgment of the district court is AFFIRMED."
]
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FAKE, District Judge. This is an application for a temporary-restraining order pending the convening of a three-judge court to pass upon the validity of a New Jersey statute bearing upon labor disputes. The court convenes pursuant to Title 28 U.S.C.A. § 380, Judicial Code 266. Under this statute I am authorized to grant the temporary relief sought if the necessary requirements are met. In this connection there are two major problems to be considered. The first bears upon the question as to whether or not it appears on the face of the record before me that something more than a mere capricious or wholly unreasonable attack is made upon the State statute. It is not for me at this time to deal with the ultimate question of validity. It is sufficient for present purposes if the record presents a justiciable issue. It appears that issues are raised bearing upon involuntary servitude said to be in conflict with the 13th Amendment to the United States Constitution. Freedom of speech and peaceable picketing are also involved. An issue is also raised as to the extent of the police power of the State to pass an act in conflict with the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. So also a nice question looms up in the offing as to whether the State enjoys immunity as does the Federal Government from the spirit of the Norris-LaGuardia, 29 U.S.C A. § 101 et seq., and the Clayton Acts, 15 U.S.C.A. § 12 et seq., in so far as injunctive relief is concerned. There are other issues as well but those above mentioned indicate the far-reaching seriousness of the basic issues. They indicate that something considerably more than a frivolous attack is to be met when the three-judge court convenes. The second major factor bears upon a weighing of the inconveniences. In this connection the equitable approach is suggested in a Federal statute which provides "That as to each item of relief granted greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief.” 29 U.S.C.A. § 107. Here I look into the situation as it now prevails throughout the State. Private business is seriously impeded by a total failure of telephone service. Picket lines are established to prevent either the State or the Telephone Company from furnishing service to private users. In the event of the validity of the statute, these pickets and their aiders and abetters are laying themselves liable to criminal prosecutions and continuing daily penalties of at least $250 each, while the unions themselves are subject under the statute to penalties of $10,000 for each day the strike continues with their connivance. Whether I like it or not this Court is bound by the statutory and case law as it is written. In the Federal sphere peaceful strikes are validated by statute and as well by case law. Thus the Clayton Act provides that this Court shall not function to “prohibit any person or persons, whether singly or in concert, from terminating any relation of employment, or from ceasing to perform any work or labor, or from recommending, advising, or persuading others by peaceful means so to do.” 29 U. S.C.A. § 52. In American Federation of Labor v. Watson, 327 U.S. 582, 66 S.Ct. 761, 766, 90 L.Ed. 873, the Supreme Court deals with one of the rights of organized labor as follows: “It is fair to say on a reading of the bill that from the viewpoint both of the appellant unions and the appellant employers the disruption in collective bargaining which would be occasioned by holding closed-shop agreements illegal would be so serious as to make it futile to attempt to measure the loss in money damages. * * * The loss in bargaining position by the unions, the disruption of harmonious relationships between the union and the employers, the almost certain decrease in union membership — these are matters involving intangible values.” While I am not now concerned with a closed-shop issue, I am concerned, among other things, with a Federal right to strike and this right falls in the same class as the right to maintain a closed-shop which the *683Supreme Court protects as above stated. It follows here that if the statute complained of is eventually found' to be invalid the unions and the strikers here will suffer an irreparable injury by the continued enforcement of the State statute. At this moment they are confronted not only with the hazards of arrests but with a multiplicity of suits tending to destroy their union. In weighing the equities and the inconveniences involved, I take notice of the fact that the pending strike has not impeded official calls, or private emergency calls, so the problem narrows down to a consideration of private individual inconveniences on the one side and the heretofore recognized right of the strikers on the other. The answer is found in Stapleton v. Mitchell, D.C., 60 F.Supp. 51, 61, where it is held, “The right to peaceably strike or to participate in one, to work or refuse to work and to choose the terms and conditions under which one will work, like the right to make a speech, are fundamental human liberties which the state may not condition or abridge in the absence of grave and immediate danger to the community. * * * In this setting we think it is the inherent prohibitions of the statute standing alone which impose the unconstitutional restraint, and those against whom the statute is plainly directed should not be required to abide the processes of criminal justice in order to obtain the redress to which they are entitled under the Federal Constitution.” This is recited and italicized here not because of its possible bearing on the ultimate question of the validity of the State statute but because of the weight given to the right involved. I am of the opinion in weighing the equities that the status quo should be maintained so far as possible until the question of the validity or constitutionality of said sections of said statute is established one way or the other. It is therefore concluded that the defendants, Alfred E. Driscoll, Governor of the State of New Jersey, Walter D. Van Riper, Attorney General of the State of New Jersey, and Harry C. Harper, Commissioner of Labor of the State of New Jersey, and their agents, servants and employees, and all law enforcement officers of the State of New Jersey, and all persons in active concert and participation with them be and they are hereby enjoined and restrained as follows: They shall hold in status quo all actions at law or in equity, civil or criminal, now pending in the New Jersey courts and heretofore commenced by them under or pursuant to the terms and conditions of the statute complained of in these proceedings, and they shall take no further or other actions, civil or criminal, in any court in pursuance of said statute except as hereinafter provided, until the further order of this Court. Nothing herein contained, however, shall be construed to restrain the defendants above named from proceeding under the arbitration provisions of said statute without prejudice to their rights asserted in these proceedings, the result thereof to abide the final judgment of the Court as to the validity or constitutionality of the said statute, or from instituting such actions or suits as they may be advised are proper under any other statute of the State of New Jersey, or ordinance of any political subdivision thereof. | 11-27-2022 | [
"FAKE, District Judge. This is an application for a temporary-restraining order pending the convening of a three-judge court to pass upon the validity of a New Jersey statute bearing upon labor disputes. The court convenes pursuant to Title 28 U.S.C.A. § 380, Judicial Code 266. Under this statute I am authorized to grant the temporary relief sought if the necessary requirements are met. In this connection there are two major problems to be considered. The first bears upon the question as to whether or not it appears on the face of the record before me that something more than a mere capricious or wholly unreasonable attack is made upon the State statute.",
"It is not for me at this time to deal with the ultimate question of validity. It is sufficient for present purposes if the record presents a justiciable issue. It appears that issues are raised bearing upon involuntary servitude said to be in conflict with the 13th Amendment to the United States Constitution. Freedom of speech and peaceable picketing are also involved. An issue is also raised as to the extent of the police power of the State to pass an act in conflict with the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. So also a nice question looms up in the offing as to whether the State enjoys immunity as does the Federal Government from the spirit of the Norris-LaGuardia, 29 U.S.C A. § 101 et seq., and the Clayton Acts, 15 U.S.C.A.",
"§ 12 et seq., in so far as injunctive relief is concerned. There are other issues as well but those above mentioned indicate the far-reaching seriousness of the basic issues. They indicate that something considerably more than a frivolous attack is to be met when the three-judge court convenes. The second major factor bears upon a weighing of the inconveniences. In this connection the equitable approach is suggested in a Federal statute which provides \"That as to each item of relief granted greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief.” 29 U.S.C.A. § 107. Here I look into the situation as it now prevails throughout the State.",
"Private business is seriously impeded by a total failure of telephone service. Picket lines are established to prevent either the State or the Telephone Company from furnishing service to private users. In the event of the validity of the statute, these pickets and their aiders and abetters are laying themselves liable to criminal prosecutions and continuing daily penalties of at least $250 each, while the unions themselves are subject under the statute to penalties of $10,000 for each day the strike continues with their connivance. Whether I like it or not this Court is bound by the statutory and case law as it is written. In the Federal sphere peaceful strikes are validated by statute and as well by case law. Thus the Clayton Act provides that this Court shall not function to “prohibit any person or persons, whether singly or in concert, from terminating any relation of employment, or from ceasing to perform any work or labor, or from recommending, advising, or persuading others by peaceful means so to do.” 29 U. S.C.A. § 52.",
"In American Federation of Labor v. Watson, 327 U.S. 582, 66 S.Ct. 761, 766, 90 L.Ed. 873, the Supreme Court deals with one of the rights of organized labor as follows: “It is fair to say on a reading of the bill that from the viewpoint both of the appellant unions and the appellant employers the disruption in collective bargaining which would be occasioned by holding closed-shop agreements illegal would be so serious as to make it futile to attempt to measure the loss in money damages. * * * The loss in bargaining position by the unions, the disruption of harmonious relationships between the union and the employers, the almost certain decrease in union membership — these are matters involving intangible values.” While I am not now concerned with a closed-shop issue, I am concerned, among other things, with a Federal right to strike and this right falls in the same class as the right to maintain a closed-shop which the *683Supreme Court protects as above stated. It follows here that if the statute complained of is eventually found' to be invalid the unions and the strikers here will suffer an irreparable injury by the continued enforcement of the State statute.",
"At this moment they are confronted not only with the hazards of arrests but with a multiplicity of suits tending to destroy their union. In weighing the equities and the inconveniences involved, I take notice of the fact that the pending strike has not impeded official calls, or private emergency calls, so the problem narrows down to a consideration of private individual inconveniences on the one side and the heretofore recognized right of the strikers on the other. The answer is found in Stapleton v. Mitchell, D.C., 60 F.Supp. 51, 61, where it is held, “The right to peaceably strike or to participate in one, to work or refuse to work and to choose the terms and conditions under which one will work, like the right to make a speech, are fundamental human liberties which the state may not condition or abridge in the absence of grave and immediate danger to the community. * * * In this setting we think it is the inherent prohibitions of the statute standing alone which impose the unconstitutional restraint, and those against whom the statute is plainly directed should not be required to abide the processes of criminal justice in order to obtain the redress to which they are entitled under the Federal Constitution.” This is recited and italicized here not because of its possible bearing on the ultimate question of the validity of the State statute but because of the weight given to the right involved.",
"I am of the opinion in weighing the equities that the status quo should be maintained so far as possible until the question of the validity or constitutionality of said sections of said statute is established one way or the other. It is therefore concluded that the defendants, Alfred E. Driscoll, Governor of the State of New Jersey, Walter D. Van Riper, Attorney General of the State of New Jersey, and Harry C. Harper, Commissioner of Labor of the State of New Jersey, and their agents, servants and employees, and all law enforcement officers of the State of New Jersey, and all persons in active concert and participation with them be and they are hereby enjoined and restrained as follows: They shall hold in status quo all actions at law or in equity, civil or criminal, now pending in the New Jersey courts and heretofore commenced by them under or pursuant to the terms and conditions of the statute complained of in these proceedings, and they shall take no further or other actions, civil or criminal, in any court in pursuance of said statute except as hereinafter provided, until the further order of this Court. Nothing herein contained, however, shall be construed to restrain the defendants above named from proceeding under the arbitration provisions of said statute without prejudice to their rights asserted in these proceedings, the result thereof to abide the final judgment of the Court as to the validity or constitutionality of the said statute, or from instituting such actions or suits as they may be advised are proper under any other statute of the State of New Jersey, or ordinance of any political subdivision thereof."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8900222/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
And the Court were of opinion that by the “ severe, sickness” mentioned in the proviso, was intended such sickness as prevented the party from giving to his commanding officer, within the eight days, satisfactory evidence of his inability to appear; —and that such not appearing to have been the case here, the. Justice erred in admitting the evidence, and therefore the judgment ought to be reversed. There being some material defects in the original declaration, the judgment of the Court extended no farther than the reversal, the parties immediately adjusting the suit by compromise. | 09-24-2021 | [
"And the Court were of opinion that by the “ severe, sickness” mentioned in the proviso, was intended such sickness as prevented the party from giving to his commanding officer, within the eight days, satisfactory evidence of his inability to appear; —and that such not appearing to have been the case here, the. Justice erred in admitting the evidence, and therefore the judgment ought to be reversed. There being some material defects in the original declaration, the judgment of the Court extended no farther than the reversal, the parties immediately adjusting the suit by compromise."
]
| https://www.courtlistener.com/api/rest/v3/opinions/4925572/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Order denying defendant’s motion to dismiss complaint affirmed, with ten dollars costs and disbursements. No opinion. Lazansky, P. J., Young, Kapper, Carswell and Tompkins, JJ., concur. | 01-08-2022 | [
"Order denying defendant’s motion to dismiss complaint affirmed, with ten dollars costs and disbursements. No opinion. Lazansky, P. J., Young, Kapper, Carswell and Tompkins, JJ., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5332412/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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