dest_id
int64 456
12.5M
| source_id
int64 457
12.5M
| dest_date
stringlengths 4
10
| dest_court
stringclasses 392
values | dest_name
stringlengths 3
1.01k
| dest_cite
stringlengths 23
1.03k
| source_date
stringlengths 4
10
| source_court
stringclasses 358
values | source_name
stringlengths 3
233
| source_cite
stringlengths 24
254
| passage_id
stringlengths 5
12
| quote
stringlengths 13
10.1k
| destination_context
stringlengths 5
14.3k
|
|---|---|---|---|---|---|---|---|---|---|---|---|---|
3,603,110 | 9,435,945 | 2008-03-20 | United States District Court for the Northern District of Illinois | Vulcan Golf, LLC v. Google Inc. | Vulcan Golf, LLC v. Google Inc., 552 F. Supp. 2d 752 (2008) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_52 | on or in connection with any goods or services. | ”) (citation omitted). However, since the court is not dismissing those claims for the reasons stated above, it declines to dismiss the false designation of origin claim for the same reasons.
b. Oversee
According to Oversee, the plaintiffs have not adequately alleged that Oversee used a false designation of origin in connection with goods or services. However, since the arguments were unavailing for the infringement claims, they are also unavailing for the false designation of origin claim. Google
Google argues that the false designation of origin claim fails because the plaintiffs do not allege that Google uses the domain names “ |
4,225,693 | 9,435,945 | 2010-04-08 | United States Court of Appeals for the Seventh Circuit | Tamburo v. Dworkin | Tamburo v. Dworkin, 601 F.3d 693 (2010) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_44 | does not offend traditional notions of fair play and substantial justice. | ” (internal quotation marks omitted)).
Where no federal statute authorizes nationwide service of process, personal jurisdiction is governed by the law of the forum state. FED. R. CIV. P. 4(k)(l)(A); see also Citadel Group Ltd. v. Wash. Reg’l Med. Ctr., 536 F.3d 757, 760 (7th Cir.2008). A court’s exercise of personal jurisdiction may be limited by the applicable state statute or the federal Constitution; the Illinois long-arm statute permits the exercise of jurisdiction to the full extent permitted by the Fourteenth Amendment’s Due Process Clause, 735 III. Comp. Stat. 5/2-209(c), so here the state statutory and federal constitutional inquiries merge. The key question is therefore whether the defendants have sufficient “minimum contacts” with Illinois such that the maintenance of the suit “ |
4,225,693 | 9,435,945 | 2010-04-08 | United States Court of Appeals for the Seventh Circuit | Tamburo v. Dworkin | Tamburo v. Dworkin, 601 F.3d 693 (2010) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_40 | create[s] a ‘substantial connection’ with the forum State. | We concluded that Calder did not alter the prevailing jurisdictional requirement that the defendant must engage in conduct that “ |
4,254,148 | 9,435,945 | 2012-11-29 | United States District Court for the Southern District of Ohio | Dayton Superior Corp. v. Yan | Dayton Superior Corp. v. Yan, 288 F.R.D. 151 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_40 | [t]his factor does not require that the cause of action formally arise from a defendant’s contacts with the forum, rather this criterion requires only that the cause of action, of whatever type, have a substantial connection with the defendant’s in-state activities. |
In all of the examples, section (A)(6) conferred personal jurisdiction when the claim in question was related to property located in Ohio or the tortious injury was suffered in Ohio. In contrast, section (A)(6) did not confer jurisdiction when the claim in question was related to property not located in Ohio or the injury was not suffered in Ohio.
Due Process
The Sixth Circuit has established a three part test for determining whether personal jurisdiction under Ohio’s Long-Arm Statute comports with the Due Process Clause. Burnshire, 198 Fed.Appx. at 430(citing Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374, 381 (6th Cir. 1968)). First, the non-resident must purposely avail himself of the privilege of acting in Ohio or causing a consequence in Ohio. Id. Second, the cause of action must arise from the defendant’s activities in Ohio. Id. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with Ohio to make the exercise of jurisdiction over the defendant reasonable. Id.
“Purposeful Availment”
The purposeful availment prong of the constitutional analysis is coextensive with the “transacting any business” standard of Ohio’s Long-Arm Statute. Id. at 432. Identical standards are used to interpret the “transacting any business” standard of Ohio’s Long-Arm Statute and the “purposeful availment” prong of the constitutional standard. Id.
“Arising From”
The “arising from” prong requires only that the cause of action have a substantial connection with the defendant’s activities in Ohio. Genesis, 425 F.Supp.2d at 893. The Sixth Circuit has found that the requirement that contacts be the proximate cause of the asserted harm under Ohio’s Long-Arm Statute is more restrictive than the “arising from” standard applicable to the Due Process analysis. However, “ |
3,846,840 | 9,435,945 | 2012-05-25 | United States District Court for the Southern District of Ohio | International Paper Co. v. Goldschmidt | International Paper Co. v. Goldschmidt, 872 F. Supp. 2d 624 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_9 | The party seeking to assert personal jurisdiction bears the burden of demonstrating that such jurisdiction exists. | In that position, he functioned as the general manager of SPG’s western region and participated in xpedx’s management incentive plan. (Doc. 1, PAGEID 2).
As Vice President of SPG, Goldschmidt possessed access to confidential and trade secret information. In consideration and as a condition of employment, Goldschmidt executed an Employee Agreement Concerning Inventions, Intellectual Property, Confidential Information and Conflict of Interest (“Confidentiality Agreement”).
Beginning in mid-2011, Goldschmidt was asked to participate with a group of seven other xpedx managers on xpedx’s Directed Buy team to address xpedx’s future strategy for its direct buy business. Goldschmidt’s participation on the Directed Buy team included frequent communication with xpedx members in Ohio via email communications, videoconferencing and teleconferencing. Members of the Directed Buy team also had access to a password protected xpedx website. In addition to communications by email, video, phone and websites, between May and October 2011, Goldschmidt attended Directed Buy meetings in person in Ohio.
In mid-October 2011, IPC contends that Goldschmidt began meeting with and discussing with xpedx sales professionals he supervised the topic of leaving xpedx and going to work for a competitor company, Midland Paper Company (“Midland”). Soon thereafter, Goldschmidt and these sales professionals purportedly met with Midland in Chicago, Illinois. On December 14, 2011, Goldschmidt abruptly resigned his position as Vice President of SPG and informed xpedx that he had accepted a position with Midland. Six other xpedx employees under Goldschmidt’s direct or second-level supervision also resigned their positions with xpedx to purportedly work for Midland.
IPC now brings suit alleging that Goldschmidt: (1) breached the Confidentiality Agreement by virtue of his employment with Midland; (2) violated the Ohio Uniform Trade Secrets Act, Ohio Rev.Code § 1333.61 et seq., by allegedly disclosing IPC’s trade secrets; (3) breached fiduciary duties owed to IPC; and (4) breached a duty of loyalty owed to IPC.
II. “ |
3,846,840 | 9,435,945 | 2012-05-25 | United States District Court for the Southern District of Ohio | International Paper Co. v. Goldschmidt | International Paper Co. v. Goldschmidt, 872 F. Supp. 2d 624 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_48 | Ohio’s long-arm statute is not coterminous with federal constitutional limits[,] | Id. (citing Brunner v. Hampson, 441 F.3d 457 (6th Cir.2006)); see also Schneider, 669 F.3d at 699 (stating that because “ |
3,846,840 | 9,435,945 | 2012-05-25 | United States District Court for the Southern District of Ohio | International Paper Co. v. Goldschmidt | International Paper Co. v. Goldschmidt, 872 F. Supp. 2d 624 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_58 | must consider the pleadings and affidavits in the light most favorable to the plaintiff. |
In the absence of an evidentiary hearing, plaintiffs “burden is merely that of making a prima facie showing that personal jurisdiction exists[,]” and the court “ |
3,846,840 | 9,435,945 | 2012-05-25 | United States District Court for the Southern District of Ohio | International Paper Co. v. Goldschmidt | International Paper Co. v. Goldschmidt, 872 F. Supp. 2d 624 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_41 | only if their contacts with Ohio satisfy [a] three-part test |
“Because Ohio’s long-arm statute is not coterminous with the Due Process Clause,” in addition to satisfying the long-arm statute, personal jurisdiction over Defendant must comport with due process. A court may exercise specific jurisdiction over defendants “ |
3,846,840 | 9,435,945 | 2012-05-25 | United States District Court for the Southern District of Ohio | International Paper Co. v. Goldschmidt | International Paper Co. v. Goldschmidt, 872 F. Supp. 2d 624 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_27 | If a defendant’s contacts with the forum state are related to the operative facts of the controversy, then an action will be deemed to have arisen from those contacts. | The district court there concluded that:
Defendant purposefully availed himself of the privileges of conducting activities within the forum state when he became employed by a company headquartered in Michigan; entered into a non-compete, non-solicit, and non-disclosure agreement with [plaintiff]; entered into the Agreement containing a Michigan choice of law provision; continuously reported to supervisors working in Michigan; made several trips to Michigan for training purposes, and frequently used information stored on the company’s Michigan based servers.
Id. at 653 (citing Cole v. Mileti, 133 F.3d 433 (6th Cir.1998); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Superior Consulting, Inc. v. Walling, 851 F.Supp. 839, 844 (E.D.Mich.1994)).
Here, although Goldschmidt worked from California and managed SPG’s western region, he accepted a promotion to a high level position within the Ohio-based xpedx division. He also entered into a Confidentiality Agreement in consideration of and as a condition of his employment which encompasses information learned concerning xpedx. Goldschmidt also frequently communicated with xpedx’s Ohio-based employees and officers, including his second-level supervisor. He frequently received confidential and trade secret information from Ohio, including information learned as a member of xpedx’s Directed Buy team, and maintained access to a password protected website containing confidential xpedx strategic information. Finally, between May and October 2011 alone, Goldschmidt twice visited Ohio to participate in xpedx strategic planning. Thus, IPC makes a prima facie showing that Goldschmidt purposefully availed himself of the privileges of conducting activities in Ohio. “ |
3,846,840 | 9,435,945 | 2012-05-25 | United States District Court for the Southern District of Ohio | International Paper Co. v. Goldschmidt | International Paper Co. v. Goldschmidt, 872 F. Supp. 2d 624 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_40 | does not require that the cause of action formally ‘arise from’ defendant’s contacts with the forum; rather, this criterion requires only ‘that the cause of action, of whatever type, have a substantial connection with the defendant’s in-state activities.’ | This factor “does not require that the cause of action formally ‘arise from’ defendant’s contacts with the forum; rather, this criterion requires only ‘that the cause of action, of whatever type, have a substantial connection with the defendant’s in-state activities. |
3,846,840 | 9,435,945 | 2012-05-25 | United States District Court for the Southern District of Ohio | International Paper Co. v. Goldschmidt | International Paper Co. v. Goldschmidt, 872 F. Supp. 2d 624 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_39 | the operative facts are at least marginally related to the alleged contacts between ... defendants and Ohio. | Given the “lenient standard” courts are to apply, this test is satisfied where “the operative facts are at least marginally related to the alleged contacts between... defendants and Ohio. |
3,846,840 | 9,435,945 | 2012-05-25 | United States District Court for the Southern District of Ohio | International Paper Co. v. Goldschmidt | International Paper Co. v. Goldschmidt, 872 F. Supp. 2d 624 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_22 | must have a substantial enough connection with [Ohio] to make the exercise of jurisdiction over the defendant reasonable. | Id.
Here, the operative facts of IPC’s claims are, at the very least, marginally related to Goldschmidt’s acquisition of con fidential and trade secret information through his contacts with Ohio, most notably through xpedx’s Directed Buy team and access granted to a password protected xpedx website given only to members of that team. IPC specifically alleges that Goldschmidt’s purported disclosure of such information will cause xpedx significant harm.
Finally, IPC must demonstrate that Goldschmidt, or the consequences of his alleged actions, “ |
3,846,840 | 9,435,945 | 2012-05-25 | United States District Court for the Southern District of Ohio | International Paper Co. v. Goldschmidt | International Paper Co. v. Goldschmidt, 872 F. Supp. 2d 624 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_57 | ‘the burden on the defendant, the interests of the forum State, and the plaintiffs interest in obtaining relief.’ |
To determine reasonableness, the Court balances three factors, namely “ ‘the burden on the defendant, the interests of the forum State, and the plaintiffs interest in obtaining relief. |
4,353,909 | 9,435,945 | 2016-09-02 | United States Court of Appeals for the Sixth Circuit | Alixpartners, LLP v. Brewington | Alixpartners, LLP v. Brewington, 836 F.3d 543 (2016) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_40 | the cause of action need not ‘formally’ arise from defendant’s contacts. | It is clear, however, that this is a “ ‘lenient standard’ ” and “ |
4,353,909 | 9,435,945 | 2016-09-02 | United States Court of Appeals for the Sixth Circuit | Alixpartners, LLP v. Brewington | Alixpartners, LLP v. Brewington, 836 F.3d 543 (2016) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_40 | ‘the cause of action, of whatever type, ha[s] a substantial connection with the defendant’s in-state activities.’ | At a minimum, this factor is satisfied if “ ‘the cause of action, of whatever type, ha[s] a substantial connection with the defendant’s in-state activities. |
4,353,909 | 9,435,945 | 2016-09-02 | United States Court of Appeals for the Sixth Circuit | Alixpartners, LLP v. Brewington | Alixpartners, LLP v. Brewington, 836 F.3d 543 (2016) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_57 | (1) the burden on the defendant; (2) the interest of the forum state; (3) the plaintiffs interest in obtaining relief; and (4) other states’ interest in securing the most efficient resolution of the policy. | In analyzing this requirement, we consider a number of factors, including: “ |
3,786,496 | 9,435,945 | 2009-09-11 | United States District Court for the Eastern District of Michigan | Hige v. Turbonetics Holdings, Inc. | Hige v. Turbonetics Holdings, Inc., 662 F. Supp. 2d 821 (2009) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_40 | formally ‘arise from’ defendant’s contacts with the forum; | See Mohasco, 401 F.2d at 382 (noting that the allegation that the plaintiff had solicited the licensing agreement from the defendant was immaterial because the fact that the defendant was “fortunate enough to get the business without active solicitation” does not diminish the purposefulness of the defendant’s choice to contract with the plaintiff) (quoting Shealy v. Challenger Manufacturing Co., 304 F.2d 102, 104 (4th Cir.1962)).
In sum, the Court finds that by entering into a continuing contract with the plaintiff, which was signed by the plaintiff in this state, was performed by the plaintiff in part in this state, and involved some duties directed toward establishing business in this state, Turbonetics has purposefully availed itself of the privilege of transacting business in Michigan and therefore the first Mohasco factor is met.
D. “Arising Under”
Defendant also argues that the plaintiff cannot establish the second prong of the Sixth Circuit’s test for limited personal jurisdiction because his claim does not arise under the defendant’s contacts with the forum state. Turbonetics argues that Hige’s claims involve and arise from the obligations, rights and duties of the parties under the employment agreement, which was performed in California. Further, Turbonetics argues, the decision to terminate the plaintiff was made outside of Michigan and notice was sent from Ohio to Michigan. The plaintiffs claim need not “ |
3,786,496 | 9,435,945 | 2009-09-11 | United States District Court for the Eastern District of Michigan | Hige v. Turbonetics Holdings, Inc. | Hige v. Turbonetics Holdings, Inc., 662 F. Supp. 2d 821 (2009) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_40 | substantial connection with the defendant’s in-state activities. | The plaintiffs claim need not “formally ‘arise from’ defendant’s contacts with the forum;” it is sufficient if the plaintiffs claim has a “ |
4,228,905 | 9,435,945 | 2008-06-10 | United States District Court for the Western District of Pennsylvania | Nationwide Contractor Audit Service, Inc. v. National Compliance Management Services, Inc. | Nationwide Contractor Audit Service, Inc. v. National Compliance Management Services, Inc., 622 F. Supp. 2d 276 (2008) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_44 | comport[s] with fair play and substantial justice, |
If the plaintiff is successful in demonstrating that jurisdiction “ |
4,228,905 | 9,435,945 | 2008-06-10 | United States District Court for the Western District of Pennsylvania | Nationwide Contractor Audit Service, Inc. v. National Compliance Management Services, Inc. | Nationwide Contractor Audit Service, Inc. v. National Compliance Management Services, Inc., 622 F. Supp. 2d 276 (2008) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_44 | such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. | The minimum contacts with the forum state must be “ |
4,228,905 | 9,435,945 | 2008-06-10 | United States District Court for the Western District of Pennsylvania | Nationwide Contractor Audit Service, Inc. v. National Compliance Management Services, Inc. | Nationwide Contractor Audit Service, Inc. v. National Compliance Management Services, Inc., 622 F. Supp. 2d 276 (2008) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_20 | engaging in commerce with residents of the forum state is not in and of itself the kind of activity that approximates physical presence within the state’s borders | The court concluded the Zippo sliding scale was
not well adapted to the general jurisdiction inquiry, because even repeated contacts with forum residents by a foreign defendant may not constitute the requisite substantial, continuous and systematic contacts required for a finding of general jurisdiction — in other words, while it may be doing business with Texas, it is not doing business in Texas.
Id. at 471 (emphasis in original). See Bird v. Parsons, 289 F.3d 865, 874 (6th Cir.2002), citing Bancroft & Masters, Inc. v. Augusta Nat’l, Inc., 223 F.3d 1082, 1086 (9th Cir.2000) (“ |
5,902,649 | 9,435,945 | 2015-09-09 | United States District Court for the Eastern District of Michigan | AlixPartners, LLP v. Brewington | AlixPartners, LLP v. Brewington, 133 F. Supp. 3d 947 (2015) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_47 | need only make a prima facie showing of jurisdiction. | Pl.’s Compl., Dkt. #1, ¶28.
Defendant subsequently filed this Motion to Dismiss (Dkt.# 7), asserting that (1) the Court lacks personal jurisdiction over Defendant, (2) the Eastern District of Michigan is not the proper venue for this action, and (3) in the alternative, the Court should transfer the case to another district pursuant to 28 U.S.C. § 1404(a). The Court addresses each argument below.
III. DISCUSSION
A. Rule 12(b)(2) Standard
On a motion to dismiss for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2), Plaintiff has the burden of establishing that the exercise of jurisdiction over the defendant is proper. Where, as here, there has been no evidentiary hearing regarding personal jurisdiction, a plaintiff “ |
5,902,649 | 9,435,945 | 2015-09-09 | United States District Court for the Eastern District of Michigan | AlixPartners, LLP v. Brewington | AlixPartners, LLP v. Brewington, 133 F. Supp. 3d 947 (2015) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_1 | Where a federal court’s subject matter jurisdiction over a case stems from the existence of a federal question, personal jurisdiction over a defendant exists ‘if the defendant is amenable to service of process under the [forum] state’s long-arm statute and if the exercise of personal jurisdiction would not deny the defendant ] due process.’ | Alisoglu v. Cent. States Thermo King of Oklahoma, Inc., No. 12-CV-10230, 2012 WL 1666426, at *3 (E.D.Mich. May 11, 2012) (citing Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 108, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987)). See Bird v. Parsons, 289 F.3d 865, 871 (6th Cir.2002) (“Where a federal court’s subject matter jurisdiction over a case stems from the existence of a federal question, personal jurisdiction over a defendant exists ‘if the defendant is amenable to service of process under the [forum] state’s long-arm statute and if the exercise of personal jurisdiction would not deny the defendant ] due process. |
5,902,649 | 9,435,945 | 2015-09-09 | United States District Court for the Eastern District of Michigan | AlixPartners, LLP v. Brewington | AlixPartners, LLP v. Brewington, 133 F. Supp. 3d 947 (2015) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_14 | traditional notions of fair play and substantial justice. | As the Supreme Court has reiterated for nearly three-quarters of a century, this inquiry centers on the Due Process Clause’s requirement that a defendant have “certain minimum contacts” with the forum state such that the defendant being haled into court in the forum state does not offend “ |
5,902,649 | 9,435,945 | 2015-09-09 | United States District Court for the Eastern District of Michigan | AlixPartners, LLP v. Brewington | AlixPartners, LLP v. Brewington, 133 F. Supp. 3d 947 (2015) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_40 | The only requirement is that the cause of action, of whatever type, have a substantial connection with the defendant’s in-state activities. | At bottom, Defendant’s contract and job duties appeared to “envision[ ] continuing and wide-reaching contacts” between himself and Michigan through his employment with Plaintiff. Burger King, 471 U.S. at 480, 105 S.Ct. 2174. Put together, each of these facts indicates that Defendant established connections with Michigan and availed himself of the forum.
2. “ |
5,902,649 | 9,435,945 | 2015-09-09 | United States District Court for the Eastern District of Michigan | AlixPartners, LLP v. Brewington | AlixPartners, LLP v. Brewington, 133 F. Supp. 3d 947 (2015) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_22 | the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable. | Walden, 134 S.Ct. at 1122. Regardless of Plaintiffs status as a forum resident, Defendant’s actions established connections with Michigan, and those connections gave rise to this action. The Exercise of Jurisdiction Over Defendant is Reasonable
Last, under the third requirement of the Southern Machine test, “ |
5,902,649 | 9,435,945 | 2015-09-09 | United States District Court for the Eastern District of Michigan | AlixPartners, LLP v. Brewington | AlixPartners, LLP v. Brewington, 133 F. Supp. 3d 947 (2015) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_8 | headquarters are in New York City, | But this case does not involve the typical “race to the courthouse” scenario where the plaintiff of the declaratory judgment case seeks resolution of the identical question that the defendant of the declaratory judgment suit would have sought in its own separate action. Instead, Plaintiff in this case seeks resolution of whether arbitration is appropriate for the Defendant’s claim. Thus, Plaintiff here did not steal the opportunity for Defendant to select the forum of the underlying action— that underlying action will eventually be heard in the forum of Defendant’s preference, as explained above.
Examining the other factors, the Court finds no compelling argument warranting transfer. The question presented is predominantly a legal one that does not rely on facts or documents located in one forum. If anything, the operative facts relate to the formation of the Agreement between the parties, and most of the witnesses and documents relating to that Agreement appear to be located in Michigan. At the very least, transfer would appear to “exchange[] the inconvenience of one party for that of the other. Walling, 851 F.Supp. at 845. Last, the agreement contains a Michigan choice-of law provision, and this Court likely has greater familiarity with the governing law than would a federal court in Texas. Accordingly, the Court finds that transfer pursuant to § 1404(a) is not warranted.
IV. CONCLUSION
For all of the foregoing reasons,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss (Dkt.# 7) is DENIED.
IT IS SO ORDERED.
1
. The original Opinion and Order entered on September 04, 2015 in Footnote No. 1 incorrectly included the text “See also”. This is a non-substantive correction.
1
. Defendant asserts in its Motion to Dismiss that Plaintiffs " |
4,328,643 | 9,435,945 | 2015-05-28 | United States District Court for the District of New Mexico | Fabara v. Gofit, LLC | Fabara v. Gofit, LLC, 308 F.R.D. 380 (2015) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_3 | [M]ere purchases of goods by customers in New Mexico, even if occurring at regular intervals, are not enough to warrant a state’s assertion of in personam jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions. | Reply at 4 (citing Sproul v. Rob & Charlies, Inc., 2013-NMCA-072, ¶ 14, 304 P.3d 18 (“ |
4,328,643 | 9,435,945 | 2015-05-28 | United States District Court for the District of New Mexico | Fabara v. Gofit, LLC | Fabara v. Gofit, LLC, 308 F.R.D. 380 (2015) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_14 | traditional notions of fair play and substantial justice. | Second, exercising personal jurisdiction over the defendant must comport with “ |
4,328,643 | 9,435,945 | 2015-05-28 | United States District Court for the District of New Mexico | Fabara v. Gofit, LLC | Fabara v. Gofit, LLC, 308 F.R.D. 380 (2015) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_14 | traditional notions of fair play and substantial justice, | Although exercising personal jurisdiction over GoFit, LLC comports with “ |
4,328,643 | 9,435,945 | 2015-05-28 | United States District Court for the District of New Mexico | Fabara v. Gofit, LLC | Fabara v. Gofit, LLC, 308 F.R.D. 380 (2015) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_20 | engaging in commerce with residents of the forum state is not in and of itself the kind of activity that approximates physical presence within the state’s borders. | Unlike Gator.com Corp. v. L.L. Bean, Inc., where California had general personal jurisdiction over L.L. Bean, a nonresident clothing manufacturer, because it had sold “millions of dollars worth of products” to California residents through its catalog, toll-free number, and its “Internet website,” 341 F.3d at 1074- 80, GoFit, LLC has sold only $20,842.36 worth of products to New Mexicans through its website in over nine years, see Caswell Deel. ¶¶ 16-17, at 2. GoFit, LLC’s sales to New Mexico are more similar to the defendant in Campbell Pet Co. v. Miale, which had only $14,000.00 in sales to Washington residents over eight years — an amount that the United States Court of Appeals for the Federal Circuit found insufficient for the defendant to be subject to general personal jurisdiction in Washington, see 542 F.3d at 884. GoFit, LLC’s sales also fall short of the four-million dollars in total transactions between the defendant and the forum state that the Supreme Court found insufficient to establish general jurisdiction in Helicopteros. See 466 U.S. at 411, 418,104 S.Ct. 1868. As the Tenth Circuit made clear in Shrader v. Biddinger, however, “ |
4,328,643 | 9,435,945 | 2015-05-28 | United States District Court for the District of New Mexico | Fabara v. Gofit, LLC | Fabara v. Gofit, LLC, 308 F.R.D. 380 (2015) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_4 | to find general jurisdiction over a defendant, contacts must be ‘continuous and systematic.’ | Even assuming that GoFit, LLC’s products are selling like hotcakes across the state, it does not take an economist to conclude that GoFit, LLC’s sales of personal exercise equipment to New Mexicans likely pale in comparison to Daimler’s sales of Mercedes-Benz vehicles to Californians, see Daimler AG v. Bauman, 134 S.Ct. at 752, or a helicopter manufacturer’s four million dollars in total transactions with Texans, see Helicopteros, 466 U.S. at 411, 418, 104 S.Ct. 1868 — both of which the Supreme Court found insufficient to establish general personal jurisdiction. Accordingly, under controlling law, the volume of GoFit, LLC’s indirect sales to New Mexicans through the stream of commerce does not justify exercising general personal jurisdiction over it.
The cases that Fabara cites do not dictate a different result. Fabara argues that three of the Court’s personal jurisdiction opinions — Whiting v. Hogan, Tompkins v. Executive Committee of Southern Baptist Convention, and Emberton v. Rutt — set forth a spectrum for a nonresident defendant’s contacts with a forum state. See Tr. at 14:16-16:5 (Segel). Fabara explains that “random, fortuitous, and attenuated contacts” lie at one end of the spectrum, and “systemic and continuous contacts” lie at the other. Tr. at 16:1-5 (Segel). Fabara says that, because GoFit, LLC’s contacts with New Mexico are closer to “systemic and continuous” than “random, fortuitous, and attenuated,” the Court can exercise general personal jurisdiction over it. Tr. at 16:6-8 (Segel). The Court disagrees. The Court has previously said that, “to find general jurisdiction over a defendant, contacts must be ‘continuous and systematic. |
4,328,643 | 9,435,945 | 2015-05-28 | United States District Court for the District of New Mexico | Fabara v. Gofit, LLC | Fabara v. Gofit, LLC, 308 F.R.D. 380 (2015) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_4 | A court has general jurisdiction over an out-of-state defendant when the defendant’s contacts with the forum state are ‘continuous and systematic,’ even if the suit is unrelated to the defendant’s contacts with the state. | See Tompkins v. Executive Comm. of S. Baptist Convention, 2015 WL 1569034, at *5 (“ |
4,328,643 | 9,435,945 | 2015-05-28 | United States District Court for the District of New Mexico | Fabara v. Gofit, LLC | Fabara v. Gofit, LLC, 308 F.R.D. 380 (2015) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_4 | General jurisdiction, on the other hand, lies when the defendant’s contacts with the forum state are so ‘continuous and systematic’ that the state may exercise personal jurisdiction over the defendant even if the suit is unrelated to the defendant’s contacts with the state. | ” (quoting Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1532-33 (10th Cir.1996))); Emberton v. Rutt, 2008 WL 4093714, at *5 (“ |
4,328,643 | 9,435,945 | 2015-05-28 | United States District Court for the District of New Mexico | Fabara v. Gofit, LLC | Fabara v. Gofit, LLC, 308 F.R.D. 380 (2015) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_14 | traditional notions of fair play and substantial justice. | 2013-NMCA-072, ¶ 14, 304 P.3d 18 (brackets omitted) (citations omitted)(internal quotation marks omitted) (emphasis in original). The Court of Appeals of New Mexico concluded that the availability of the Taiwanese manufacturer’s products in New Mexico, by itself, did not establish sufficient contacts for it to be subject to general personal jurisdiction. See 2013-NMCA-072, ¶ 14, 304 P.3d 18. Accordingly, Sproul v. Rob & Charlies, Inc. supports rather than undercuts the Court’s general personal jurisdiction analysis. Because the Court finds that Fabara has not made a prima facie showing that GoFit, LLC has sufficient “minimum contacts” with New Mexico, International Shoe Co. v. State of Wash., Office of Unemployment Compensation and Placement, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the Court does not have personal jurisdiction over GoFit, LLC.
B. EXERCISING PERSONAL JURISDICTION OVER GOFIT, LLC WOULD NOT OFFEND TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE. If the defendant had minimum contacts with the forum state, however, the Court would have to determine whether exercising personal jurisdiction would offend “ |
2,653,194 | 9,435,945 | 2006-02-14 | United States Court of Appeals for the Sixth Circuit | See, Inc. v. Imago Eyewear Pty, Ltd. | See, Inc. v. Imago Eyewear Pty, Ltd., 167 F. App'x 518 (2006) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_14 | traditional notions of fair play and substantial justice. | ” Due Process Analysis
Pursuant to the Due Process Clause, the defendants must have significant minimum contacts with the forum in order for the assertion of jurisdiction over the defendants to not offend “ |
2,653,194 | 9,435,945 | 2006-02-14 | United States Court of Appeals for the Sixth Circuit | See, Inc. v. Imago Eyewear Pty, Ltd. | See, Inc. v. Imago Eyewear Pty, Ltd., 167 F. App'x 518 (2006) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_36 | if the website is interactive to a degree that reveals specifically intended interaction with residents of the state. | ” Neogen held that purposeful availment is shown “ |
2,653,194 | 9,435,945 | 2006-02-14 | United States Court of Appeals for the Sixth Circuit | See, Inc. v. Imago Eyewear Pty, Ltd. | See, Inc. v. Imago Eyewear Pty, Ltd., 167 F. App'x 518 (2006) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_2 | [T]he fact that [the defendant] maintains a website that is accessible to anyone over the Internet is insufficient to justify general jurisdiction. | Neogen Corp., 282 F.3d at 890; Bird v. Parsons, 289 F.3d 865, 874 (6th Cir.2002) (“ |
2,587,110 | 9,435,945 | 2006-10-31 | United States District Court for the Northern District of Ohio | Faurecia Exhaust Systems, Inc. v. Walker | Faurecia Exhaust Systems, Inc. v. Walker, 464 F. Supp. 2d 700 (2006) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_1 | if the defendant is amenable to service of process under the [forum] state’s long-arm statute and if the exercise of personal jurisdiction would not deny the defendant ] due process. | That is, personal jurisdiction exists over a nonresident “ |
2,587,110 | 9,435,945 | 2006-10-31 | United States District Court for the Northern District of Ohio | Faurecia Exhaust Systems, Inc. v. Walker | Faurecia Exhaust Systems, Inc. v. Walker, 464 F. Supp. 2d 700 (2006) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_30 | the Ohio Supreme Court has ruled that the Ohio long-arm statute does not extend to the constitutional limits of the Due Process Clause | Bird v. Parsons, 289 F.3d 865, 871 (6th Cir.2002) (quoting Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 954 F.2d 1174, 1176 (6th Cir.1992)). In Bird, however, the court stated: Calphalon Corp. v. Rowlette, 228 F.3d 718, 721 (6th Cir.2000) (noting that “ |
2,587,110 | 9,435,945 | 2006-10-31 | United States District Court for the Northern District of Ohio | Faurecia Exhaust Systems, Inc. v. Walker | Faurecia Exhaust Systems, Inc. v. Walker, 464 F. Supp. 2d 700 (2006) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_14 | traditional notions of fair play and substantial justice. | Nevertheless, in evaluating whether personal jurisdiction is proper under Ohio’s long-arm statute, we have consistently focused on whether there are sufficient minimum contacts between the nonresident defendant and the forum state so as not to offend “ |
2,587,110 | 9,435,945 | 2006-10-31 | United States District Court for the Northern District of Ohio | Faurecia Exhaust Systems, Inc. v. Walker | Faurecia Exhaust Systems, Inc. v. Walker, 464 F. Supp. 2d 700 (2006) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_4 | General jurisdiction is proper only where ‘a defendant’s contacts with the forum state are of such a continuous and systematic nature that the state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant’s contacts with the state.’ | Id. (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)); Cole v. Mileti, 133 F.3d 433, 436 (6th Cir.1998) (addressing the due process concerns rather than inquiring into the propriety of jurisdiction under Ohio’s long-arm statute).
Bird, 289 F.3d at 871-72.
Personal jurisdiction may be based on either general or specific jurisdiction. “General jurisdiction is proper only where ‘a defendant’s contacts with the forum state are of such a continuous and systematic nature that the state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant’s contacts with the state. |
2,587,110 | 9,435,945 | 2006-10-31 | United States District Court for the Northern District of Ohio | Faurecia Exhaust Systems, Inc. v. Walker | Faurecia Exhaust Systems, Inc. v. Walker, 464 F. Supp. 2d 700 (2006) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_25 | where a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum. | In contrast, specific jurisdiction is proper under circumstances “ |
2,587,110 | 9,435,945 | 2006-10-31 | United States District Court for the Northern District of Ohio | Faurecia Exhaust Systems, Inc. v. Walker | Faurecia Exhaust Systems, Inc. v. Walker, 464 F. Supp. 2d 700 (2006) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_22 | the acts of the defendant or consequences caused by the defendant ... have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable. | An understanding of this difference is important to the proper application of the “purposeful availment” test.
Walker claims that Plaintiffs cannot satisfy the “purposeful availment” prong because he was “directed” to sign the employment agreement with Faurecia Toledo. He claims that it was the “unilateral” decision of Faurecia France, and he had no choice in the matter. Although it may have been Faurecia’s idea, Walker still reaped a benefit in this arrangement, which contributed to his attractiveness as a job candidate and may well have landed him the job. Further, Walker could have refused this arrangement, but he did not. Instead, he knowingly entered into the employment agreement with Faurecia Toledo and subsequently accepted compensation and benefits through the Ohio entity. Viewing the facts in the light most favorable to Plaintiffs, Walker purposefully availed himself of the benefit of acting in Ohio.
Plaintiffs, however, cannot satisfy the third prong of the due process analysis: that “the acts of the defendant or consequences caused by the defendant... have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable. |
8,968,405 | 9,432,750 | 2005-06-16 | United States Court of Appeals for the First Circuit | United States v. Mercado | United States v. Mercado, 412 F.3d 243 (2005) | 2002-05-06 | United States Court of Appeals for the First Circuit | United States v. Perrotta | United States v. Perrotta, 289 F.3d 155 (2002) | 9432750_2 | [0]nly rarely — and in extraordinarily compelling circumstances — will we, from the vista of a cold appellate record, reverse a district court’s on-the-spot judgment concerning the relative weighing of probative value and unfair effect. | Nothing in the record suggests that the court would have reached a different decision about the appropriateness of the cross-examination absent the prosecutor’s statement that there had been bail and violation hearings on the state charges. Irrespective of any such hearings where she might have testified, Acosta would have still had an incentive to share with state authorities her exculpatory information about Mercado. There was thus no prejudice from the prosecutor’s allusion to bail and violation hearings.
2. Rule i03
Mercado also asserts that references to the state court charges were prejudicial and irrelevant, and therefore should not have been permitted. Because this objection was preserved at trial, we review the court’s evidentiary decision for an abuse of discretion. This is a deferential standard: “ |
3,899,635 | 9,432,750 | 2007-03-13 | United States District Court for the District of Rhode Island | United States v. Stierhoff | United States v. Stierhoff, 477 F. Supp. 2d 423 (2007) | 2002-05-06 | United States Court of Appeals for the First Circuit | United States v. Perrotta | United States v. Perrotta, 289 F.3d 155 (2002) | 9432750_3 | permits the seizure of items located in plain view if ‘(1) the seizing officer has a prior justification for being in a position to see the item in plain view and (2) the evidentiary value of the item is immediately apparent.’ | The government does not deny that Donahue searched the “Offshore” folder without a warrant. The Court concludes, therefore, that given the narrow scope of Defendant’s consent to search, Donahue’s search of the “Offshore” folder exceeded Defendant’s consent, and thus, any evidence derived from this search should be suppressed unless the government can offer some other exception to the warrant requirement. The government responds that Donahue was entitled to search the “Offshore” folder and seize its contents under the plain view exception to the warrant requirement. Plain View Doctrine
The plain view doctrine “permits the seizure of items located in plain view if ‘(1) the seizing officer has a prior justification for being in a position to see the item in plain view and (2) the evidentiary value of the item is immediately apparent. |
3,899,635 | 9,432,750 | 2007-03-13 | United States District Court for the District of Rhode Island | United States v. Stierhoff | United States v. Stierhoff, 477 F. Supp. 2d 423 (2007) | 2002-05-06 | United States Court of Appeals for the First Circuit | United States v. Perrotta | United States v. Perrotta, 289 F.3d 155 (2002) | 9432750_1 | Evidentiary value is ‘immedi ately apparent’ if there are ‘enough facts for a reasonable person to believe that the items in plain view may be contraband or evidence of a crime.’ | “Evidentiary value is ‘immedi ately apparent’ if there are ‘enough facts for a reasonable person to believe that the items in plain view may be contraband or evidence of a crime. |
4,358,011 | 9,432,750 | 2015-10-22 | United States Court of Appeals for the Sixth Circuit | Trimble v. Bobby | Trimble v. Bobby, 804 F.3d 767 (2015) | 2002-05-06 | United States Court of Appeals for the First Circuit | United States v. Perrotta | United States v. Perrotta, 289 F.3d 155 (2002) | 9432750_4 | unable to explain why the jury needed to see the actual weapons | Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). Trimble has the unenviable task of proving that the Ohio Supreme Court reached an outcome that falls outside this broad leeway. See United States v. Perrotta, 289 F.3d 155, 166 (1st Cir.2002) (upholding on direct review the admission of unrelated weapons even though the government was “ |
4,358,011 | 9,432,750 | 2015-10-22 | United States Court of Appeals for the Sixth Circuit | Trimble v. Bobby | Trimble v. Bobby, 804 F.3d 767 (2015) | 2002-05-06 | United States Court of Appeals for the First Circuit | United States v. Perrotta | United States v. Perrotta, 289 F.3d 155 (2002) | 9432750_0 | [n]othing in the record suggests that the guns or the fake bomb would have inflamed the jury or inspired them to decide the case on an emotional basis | See United States v. Perrotta, 289 F.3d 155, 166 (1st Cir.2002) (upholding on direct review the admission of unrelated weapons even though the government was “unable to explain why the jury needed to see the actual weapons” because “ |
4,115,020 | 9,432,750 | 2014-01-06 | United States Court of Appeals for the First Circuit | United States v. Briceno | United States v. Briceno, 550 F. App'x 14 (2014) | 2002-05-06 | United States Court of Appeals for the First Circuit | United States v. Perrotta | United States v. Perrotta, 289 F.3d 155 (2002) | 9432750_0 | inflamed the jury or inspired them to decide the case on an emotional basis | That evidence’s relevance to the drug conspiracy thus need not be resolved: Briceno did not request that the jury be instructed to consider certain evidence only with respect to certain counts. See United States v. Perrotta, 289 F.3d 155, 166-67 (1st Cir.2002) (upholding admission of firearms evidence to prove extortion conspiracy where nothing in record suggested that evidence would have “ |
2,160,952 | 9,433,262 | 2003-04-07 | United States Court of Appeals for the Ninth Circuit | Vasquez-Zavala v. Ashcroft | Vasquez-Zavala v. Ashcroft, 324 F.3d 1105 (2003) | 2002-05-01 | United States Court of Appeals for the Third Circuit | Uspango v. Ashcroft | Uspango v. Ashcroft, 289 F.3d 226 (2002) | 9433262_4 | alien[s] present in the United States without having been admitted or paroled | The BIA held that because the Immigration and Naturalization Service’s charging document was not filed until after April 1, 1997 — the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), PL 104-208 Div. C, 110 Stat. 3009 (1996) — petitioners were no longer statutorily eligible for the pre-IIRIRA remedy of suspension of deportation but instead could only seek cancellation of removal under IIRIRA. Petitioners seek to distinguish their situation from the one presented to us in Jimenez-Angeles v. Ashcroft, 291 F.3d 594 (9th Cir.2002), where we held that an alien who presented herself to the INS before April 1, 1997 did not have “settled expectations” of being placed in deportation proceedings and was therefore properly in removal proceedings because the INS did not file the charging document until after April 1, 1997. Petitioners argue that because of the way they presented themselves to the INS-by filing an application for asylum before April 1, 1997 — they had “settled expectations” of being placed in deportation proceedings rather than removal proceedings, or, alternatively, that they had due process rights to the same. We disagree and deny the petition.
I. Background
Petitioners are natives and citizens of Mexico. Mr. Vasquez-Zavala entered the United States without inspection in January 1986 near San Ysidro, California, while his wife and co-petitioner, Ms. Vasquez Patino, entered in the same vicinity, also without inspection, in March 1980. On July 8, 1997 the INS denied the asylum application and filed a Notice to Appear (“NTA”), charging Petitioners as being removable as “ |
1,387,476 | 9,433,262 | 2005-02-23 | United States Court of Appeals for the Third Circuit | Kika v. Attorney General of United States | Kika v. Attorney General of United States, 123 F. App'x 86 (2005) | 2002-05-01 | United States Court of Appeals for the Third Circuit | Uspango v. Ashcroft | Uspango v. Ashcroft, 289 F.3d 226 (2002) | 9433262_5 | prevented from reasonably presenting his case. | ” In order to show that the alleged ineffective assistance of his former counsel amounted to a due process violation, as is required for such a claim to succeed in immigration cases, Kika must show that he was “ |
3,807,290 | 9,433,262 | 2006-12-27 | United States Court of Appeals for the Third Circuit | Oladokun v. Attorney General | Oladokun v. Attorney General, 207 F. App'x 254 (2006) | 2002-05-01 | United States Court of Appeals for the Third Circuit | Uspango v. Ashcroft | Uspango v. Ashcroft, 289 F.3d 226 (2002) | 9433262_6 | there is no Sixth Amendment right to counsel in deportation hearings, so any claim of ineffective assistance of counsel advanced by [an alien] must be based on the Fifth Amendment's due process guaranty | ” Mudric v. Attorney General, 469 F.3d 94, 98 (3d Cir.2006). Without such an interest at stake, Oladokun simply had no process due to him and could not have suffered a constitutional due process violation as a result of his counsel’s alleged ineffective assistance. Therefore, although Oladokun’s claim of ineffective assistance may have some factual basis, it clearly has no legal basis and, consequently, cannot be deemed “colorable” such that it would compel the BIA to consider Oladokun’s motion to reopen.
III.
For these reasons, we will deny Oladokun’s petition for review.
1
. Uspango v. Ashcroft, 289 F.3d 226, 231 (3d Cir.2002) (holding that " |
12,390,267 | 9,433,262 | 2017-01-09 | United States Court of Appeals for the Third Circuit | Patel v. Attorney General United States | Patel v. Attorney General United States, 674 F. App'x 158 (2017) | 2002-05-01 | United States Court of Appeals for the Third Circuit | Uspango v. Ashcroft | Uspango v. Ashcroft, 289 F.3d 226 (2002) | 9433262_5 | must show that he was prevented from reasonably presenting his case. |
**
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
1
. The record indicates that the Immigration Judge clearly stated that Patel must file his asylum application at the August 18, 2014 hearing. Patel nonetheless argues that he was not made aware of the absolute nature of the deadline to file for asylum.
2
. This Court may review both the Board’s and Immigration Judge's decisions when the Board's decision "substantially relies upon" the Immigration Judge’s decision. Kaita v. Atty. Gen. of U.S., 522 F.3d 288, 295 (3d Cir. 2008).
3
. Khan v. Atty. Gen. of U.S., 448 F.3d 226, 233 (3d Cir. 2006).
4
. See Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir. 2008) (reviewing application of 8 C.F.R. § 1003.31(c) for abuse of discretion).
5
. Contreras v. Atty. Gen. of U.S., 665 F.3d 578, 583 (3d Cir. 2012).
6
. Hashmi v. Atty. Gen. of U.S., 531 F.3d 256, 259 (3d Cir. 2008) (quoting 8 C.F.R. § 1003.29) (internal quotation marks omitted).
7
. Ponce-Leiva v. Ashcroft, 331 F.3d 369, 377 (3d Cir. 2003) (quoting Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988) (internal quotation marks omitted));
8
. Without referring this Court to any portion of the record, Patel claims that he offered to testify about his brother’s kidnapping on August 18, 2014. This Court could not uncover anywhere in the record where Patel offered to testify.
9
. Khan, 448 F.3d at 235.
10
. 8 C.F.R. § 1003.31(c).
11
. Id.
12
. Patel states in his brief that the waiver of his asylum application violated his “due process procedural rights." To establish this claim, Patel " |
3,102,405 | 9,433,262 | 2007-04-23 | United States Court of Appeals for the Third Circuit | Hrinakova v. Attorney General | Hrinakova v. Attorney General, 241 F. App'x 36 (2007) | 2002-05-01 | United States Court of Appeals for the Third Circuit | Uspango v. Ashcroft | Uspango v. Ashcroft, 289 F.3d 226 (2002) | 9433262_5 | prevented from reasonably presenting [her] case. | After questioning Hrinakova about her allegations, the IJ asked her attorney “[ajnything I missed when I was asking her questions?” The attorney answered, “very little.” Her attorney then asked why Hrinakova was afraid to go back to her country. C.A.R. at 121. After the IJ asked Hrinakova a few more questions, her attorney asked her if there was anything else that she wished to tell the IJ. Hrinakova began to talk about her husband and children as described below. Her own citation to the record indicates that when the IJ found one of her attorney’s questions on this issue irrelevant, the attorney stated she had no further questions. To show a violation of due process, Hrinakova must demonstrate that she was “ |
3,955,031 | 9,433,262 | 2010-08-18 | United States Court of Appeals for the Third Circuit | Mayne v. Attorney General of the United States | Mayne v. Attorney General of the United States, 392 F. App'x 94 (2010) | 2002-05-01 | United States Court of Appeals for the Third Circuit | Uspango v. Ashcroft | Uspango v. Ashcroft, 289 F.3d 226 (2002) | 9433262_6 | there is no Sixth Amendment right to counsel in deportation hearings | See 8 U.S.C. § 1229a(b)(4)(A) (“the alien shall have the privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing”); § 1362 (same). See Uspango v. Ashcroft, 289 F.3d 226, 231 (3d Cir.2002) (“ |
3,800,475 | 9,433,262 | 2010-08-25 | United States Court of Appeals for the Eighth Circuit | Molina Jerez v. Holder | Molina Jerez v. Holder, 625 F.3d 1058 (2010) | 2002-05-01 | United States Court of Appeals for the Third Circuit | Uspango v. Ashcroft | Uspango v. Ashcroft, 289 F.3d 226 (2002) | 9433262_2 | filing an asylum petition did not implicate any quid pro quo arrangement with the government | Landgraf, 511 U.S. at 275, 114 S.Ct. 1483.
Two eases from the Ninth Circuit Court of Appeals, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105 (9th Cir.2003) and Lopez-Urenda v. Ashcroft, 345 F.3d 788 (9th Cir.2003), are instructive. In Vasquez-Zavala, the Ninth Circuit held an illegal alien had no settled expectation DHS would initiate pre-IIRIRA deportation proceedings-as opposed to post-IIRIRA removal proceedings-after denial of his asylum application simply because he submitted such application before IIRIRA’s effective date. Vasquez-Zavala, 324 F.3d at 1108. In Lopez-Urenda, a similar case, the Ninth Circuit observed:
Proceedings could have begun several months after [the alien] filed his [asylum] application, in which case suspension of deportation would have remained a viable option; or they could have begun years later, as they did, at a time when the law had undergone significant change. That [the alien] did not know of the specific change — the enactment of IIRIRA and its permanent rules abolishing suspension of deportation — does not mean that he had a settled expectation that proceedings would commence before any such change took place.
Lopez-Urenda, 345 F.3d at 794. See also Uspango v. Ashcroft, 289 F.3d 226, 230 (3d Cir.2002) (reaching a similar conclusion and saying, “ |
12,151,451 | 9,433,262 | 2016-07-05 | United States Court of Appeals for the Third Circuit | Bhinder v. Attorney General of the United States | Bhinder v. Attorney General of the United States, 654 F. App'x 537 (2016) | 2002-05-01 | United States Court of Appeals for the Third Circuit | Uspango v. Ashcroft | Uspango v. Ashcroft, 289 F.3d 226 (2002) | 9433262_5 | must show that he was prevented from reasonably presenting his case. | In other words, Bhinder “ |
12,151,451 | 9,433,262 | 2016-07-05 | United States Court of Appeals for the Third Circuit | Bhinder v. Attorney General of the United States | Bhinder v. Attorney General of the United States, 654 F. App'x 537 (2016) | 2002-05-01 | United States Court of Appeals for the Third Circuit | Uspango v. Ashcroft | Uspango v. Ashcroft, 289 F.3d 226 (2002) | 9433262_5 | prevented [him] from reasonably presenting his case. | Bhinder has not even attempted to show the IJ’s denial of a continuance prejudiced him or “ |
6,046,543 | 9,433,262 | 2006-05-22 | United States Court of Appeals for the Third Circuit | Khan v. Attorney General of the United States | Khan v. Attorney General of the United States, 448 F.3d 226 (2006) | 2002-05-01 | United States Court of Appeals for the Third Circuit | Uspango v. Ashcroft | Uspango v. Ashcroft, 289 F.3d 226 (2002) | 9433262_5 | must show that he was prevented from reasonably presenting his case. | ”); Ahmed, 447 F.3d at 439. To make this claim successfully, Khan “ |
3,932,803 | 9,433,262 | 2006-12-27 | United States Court of Appeals for the Third Circuit | Hadi v. Attorney General | Hadi v. Attorney General, 209 F. App'x 136 (2006) | 2002-05-01 | United States Court of Appeals for the Third Circuit | Uspango v. Ashcroft | Uspango v. Ashcroft, 289 F.3d 226 (2002) | 9433262_5 | must show that [s]he was prevented from reasonably presenting [her] case. | ” Secondly, to be successful in a due process claim an alien “ |
9,317,776 | 9,433,262 | 2002-12-18 | United States Court of Appeals for the Second Circuit | Theodoropoulos v. Immigration & Naturalization Service | Theodoropoulos v. Immigration & Naturalization Service, 313 F.3d 732 (2002) | 2002-05-01 | United States Court of Appeals for the Third Circuit | Uspango v. Ashcroft | Uspango v. Ashcroft, 289 F.3d 226 (2002) | 9433262_0 | A statute may not be applied retroactively ... absent a clear indication from Congress that it intended such a result. | Able v. United States, 88 F.3d 1280, 1288 (2d Cir.1996). The district court, relying on the magistrate judge’s erroneous factual finding, adopted'the magistrate’s conclusion that Theodoropoulos raised a “substantial constitutional question” as to the retroactive applicability of AEDPA and IIRIRA to his case, allowing the court to consider his petition despite his waiver of BIA appeal. On appeal to this Court, the INS argues that once the factual error is corrected, Theodoropoulos is without a constitutional claim that could waive the exhaustion requirement. Reviewing the case after correcting the facts to reflect Theodoropoulos’s trial by jury, we agree that the exhaustion requirement is not waived in this case.
In INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), the Supreme Court affirmed this Court’s conclusion that provisions of the AEDPA and IIRIRA repealing the possibility of discretionary relief from deportation did not apply retroactively to an alien defendant convicted on a guilty plea entered before the passage of AEDPA and IIRIRA. In interpreting the statutory provisions in question, the Court refused to find retroactive effect unless the statutory language required that result. (“A statute may not be applied retroactively... absent a clear indication from Congress that it intended such a result. |
9,317,776 | 9,433,262 | 2002-12-18 | United States Court of Appeals for the Second Circuit | Theodoropoulos v. Immigration & Naturalization Service | Theodoropoulos v. Immigration & Naturalization Service, 313 F.3d 732 (2002) | 2002-05-01 | United States Court of Appeals for the Third Circuit | Uspango v. Ashcroft | Uspango v. Ashcroft, 289 F.3d 226 (2002) | 9433262_3 | St. Cyr addressed the rights of non-permanent resident aliens who fall into .one particular category: individuals who, as defendants in criminal cases, entered into quid pro quo agreements with the government in which they waived certain constitutional rights and conferred specified benefits upon the government in exchange for receiving certain benefits, including the possibility of a waiver of deportation | Thus, the Court found retroactive application of the retraction of § 212(c) relief “contrary to familiar considerations of fair notice, reasonable reliance, and settled expectations” when applied to alien defendants pleading guilty before the passage of AEDPA and IIRIRA. See, e.g., Uspango v. Ashcroft, 289 F.3d 226, 230 (3d Cir.2002) (“St. Cyr addressed the rights of non-permanent resident aliens who fall into.one particular category: individuals who, as defendants in criminal cases, entered into quid pro quo agreements with the government in which they waived certain constitutional rights and conferred specified benefits upon the government in exchange for receiving certain benefits, including the possibility of a waiver of deportation”); Velasquez Gabriel v. Crocetti, 263 F.3d 102, 106, 108 (4th Cir.2001) (describing St. Cyr as finding inappropriate retroactive effect of statute on aliens who pled guilty to crime in reliance on availability of discretionary deportation waiver, and noting that key factors in the decision included the likelihood of receiving a waiver under old rules and detrimental reliance on the possibility waiver). |
9,106,337 | 9,433,262 | 2003-07-28 | United States Court of Appeals for the Third Circuit | DiPeppe v. Quarantillo | DiPeppe v. Quarantillo, 337 F.3d 326 (2003) | 2002-05-01 | United States Court of Appeals for the Third Circuit | Uspango v. Ashcroft | Uspango v. Ashcroft, 289 F.3d 226 (2002) | 9433262_1 | INS regulations provide that removal proceedings commence with the filing of a notice to appear with the Immigration Court. Reg. §§ 3.14 and 239.1 | 289 F.3d at 230. Moreover, we clearly stated “INS regulations provide that removal proceedings commence with the filing of a notice to appear with the Immigration Court. |
9,052,729 | 9,433,262 | 2003-10-30 | United States District Court for the District of New Jersey | Gutierrez v. Ashcroft | Gutierrez v. Ashcroft, 289 F. Supp. 2d 555 (2003) | 2002-05-01 | United States Court of Appeals for the Third Circuit | Uspango v. Ashcroft | Uspango v. Ashcroft, 289 F.3d 226 (2002) | 9433262_5 | [T]o meet the standard for a due process violation, [petitioner] must show that he was ‘prevented from reasonably presenting his case’ |
If the ineffective assistance of counsel can amount to a violation of petitioner’s due process protections, this Court must determine whether this particular instance of ineffective assistance of counsel falls into the narrow category of extraordinary circumstances that may merit equitable relief. In considering equitable relief, this Court notes that the time limitation for filing a habeas petition is a statute of limitations subject to equitable tolling. See, e.g., Miller v. New Jersey State Dep’t of Corrections, 145 F.3d 616, 618 (3d Cir.1998) (equitable tolling is an appropriate remedy when principles of equity would make a rigid application of the statute of limitations unfair); Shendock v. Office of Workers’ Compensation Programs, 893 F.2d 1458, 1462 (3d Cir.1990) (same). In Miller, the district court denied petitioner’s habeas petition because it was filed more than one year after the one year limitation period of 28 U.S.C. § 2244(d)(1) became effective under the AEDPA. The Third Circuit reversed on the ground that the time limitation provision of § 2242(d)(1) is not a jurisdictional bar, but is analogous to a statute of limitations and, therefore, is subject to equitable modifications such as tolling. Miller, 145 F.3d at 617 (citing Calderon v. United States Dist. Court, 128 F.3d 1283, 1289 (9th Cir.1997), cert. denied, 522 U.S. 1099, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998)). See also Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.1994); New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1125 (3d Cir.1997).
A mere claim of ineffective assistance of counsel is insufficient to constitute a denial of due process. See Uspango, 289 F.3d at 231 (“ |
9,111,580 | 9,433,262 | 2003-06-05 | United States Court of Appeals for the Third Circuit | Ponce-Leiva v. Ashcroft | Ponce-Leiva v. Ashcroft, 331 F.3d 369 (2003) | 2002-05-01 | United States Court of Appeals for the Third Circuit | Uspango v. Ashcroft | Uspango v. Ashcroft, 289 F.3d 226 (2002) | 9433262_6 | there is no Sixth Amendment right to counsel in deportation hearings. | Accordingly, in part by the government’s own admissions, the issue regarding the denial of the continuance request appeared both in the BIA’s order and in Ponce-Leiva’s submission to the BIA, and it forms the basis of Ponce-Leiva’s due process claims. Thus, no procedural bar exists.
Second, Ponce-Leiva’s claim for ineffective assistance of counsel was not waived. We note that Lozada sets forth a three-step procedure that an alien must follow to justify the reopening of removal proceedings on the basis of ineffective assistance of counsel. The steps include, inter alia, filing a motion and giving the allegedly ineffective counsel an opportunity to respond. Lu v. Ashcroft, 259 F.3d 127, 132 (3d Cir.2001) (citing Lozada, 19 I. & N. Dec. at 639). We concluded in Lu that the BIA’s three-prong test was a reasonable exercise of the BIA’s discretion, id. at 132, but we also warned that there were inherent dangers in applying a strict, formulaic interpretation of Lozada. Id. at 133. While Ponce-Leiva’s brief places most of its emphasis on showing that he has fulfilled Lozada’s requirements, it also suggests that counsel’s ineffectiveness was a denial of due process. Accordingly, we may analyze the claim, at least within the parameters of due process.
III.
As stated above, Ponce-Leiva now raises the following claims: (1) the denial of the continuance request and the subsequent holding of the hearing constituted a violation of his statutory and constitutional right to counsel and a violation of due process; and (2) counsel’s unreasonable absence at the hearing constituted ineffective assistance of counsel.
First, we consider whether denial of the continuance request violated PonceLeiva’s right to counsel. It is equally well-settled, though, that “ |
9,111,580 | 9,433,262 | 2003-06-05 | United States Court of Appeals for the Third Circuit | Ponce-Leiva v. Ashcroft | Ponce-Leiva v. Ashcroft, 331 F.3d 369 (2003) | 2002-05-01 | United States Court of Appeals for the Third Circuit | Uspango v. Ashcroft | Uspango v. Ashcroft, 289 F.3d 226 (2002) | 9433262_5 | must show that he was prevented from reasonably presenting his case. | ” Chlomos, 516 F.2d at 311. That was not the case here. No further due-process discussion is necessary.
IV.
Ponce-Leiva next advances a claim for ineffective assistance of counsel. This claim is based on the Fifth Amendment due process clause. To advance a successful claim for ineffective assistance of counsel, an alien must demonstrate prejudice — he “ |
9,118,272 | 9,433,262 | 2003-05-08 | United States District Court for the Eastern District of Pennsylvania | Da Rosa Silva v. Immigration & Naturalization Service | Da Rosa Silva v. Immigration & Naturalization Service, 263 F. Supp. 2d 1005 (2003) | 2002-05-01 | United States Court of Appeals for the Third Circuit | Uspango v. Ashcroft | Uspango v. Ashcroft, 289 F.3d 226 (2002) | 9433262_5 | prevented from reasonably presenting his case. | Silva is eligible for § 212(c) relief because at the time he plead guilty to the 1995 burglary offense, § 212(c) relief was still available, even for those aliens convicted of an aggravated felony.
At a hearing held on March 12, 2002, the IJ made a preliminary finding that Silva was eligible to seek a § 212(c) waiver. At the next hearing on April 15, 2002, the INS informed the IJ that Silva had two convictions that post-dated the 1996 change in the law. After learning this new information, the IJ incorrectly advised Silva that he was not eligible for a § 212(c) waiver. The IJ reasoned that without a waiver for all of Silva’s convictions, a § 212(c) waiver for his 1995 conviction would be fruitless.
Granting Silva a § 212(c) waiver may, in fact, be fruitless, however, this does not affect his eligibility to receive such a waiver under the statute. Therefore, I find Silva is eligible for a § 212(c) waiver, vacate the IJ’s decision and remand Silva’s petition back to the IJ for a determination of whether Silva should receive a § 212(c) waiver.
F. Silva’s Due Process Rights Were Not Violated by His Lack of Representation in the Removal Proceedings
Silva claims that his due process rights were violated by the IJ’s alleged failure to advise him that he could obtain legal representation for the removal proceedings. There is no Sixth Amendment right to counsel in deportation hearings. Therefore, any claim of ineffective assistance of counsel must be based on a deprivation of due process under the Fifth Amendment umbrella of “procedural” due process. To meet the standard for a due process violation, Silva must show that he was “ |
9,118,272 | 9,433,262 | 2003-05-08 | United States District Court for the Eastern District of Pennsylvania | Da Rosa Silva v. Immigration & Naturalization Service | Da Rosa Silva v. Immigration & Naturalization Service, 263 F. Supp. 2d 1005 (2003) | 2002-05-01 | United States Court of Appeals for the Third Circuit | Uspango v. Ashcroft | Uspango v. Ashcroft, 289 F.3d 226 (2002) | 9433262_5 | prevented from reasonably presenting his case. | Gov’t Resp. to Pet. Ex. 3 at 1-2 (transcript from February 12, 2002 hearing). Silva opted to proceed despite the fact that he had not retained counsel. The IJ did not release Silva on bond, and at the next hearing the IJ declined to transfer the case to Rhode Island despite Silva’s reassertion that he had a family lawyer in Rhode Island who agreed to represent Silva if the case was transferred to the Boston/Rhode Island area. Gov’t Resp. to Pet. Ex. 5 at 9 (transcript of March 12, 2002 hearing).
While it is unfortunate that Silva was unable to procure his desired counsel, he was clearly informed of his right to counsel and of free legal services available in the area in which his removal proceedings were located. Moreover, Silva has failed to make any showing that he was “ |
9,286,985 | 9,433,091 | 2004-02-20 | United States District Court for the District of Connecticut | Galazo v. City of Waterbury | Galazo v. City of Waterbury, 303 F. Supp. 2d 213 (2004) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_3 | In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment ... and establish the elements of a malicious prosecution claim under state law.... | However, Galazo argues that Nardozzi should be held liable for the use of excessive force on March 17, 1999 on account of his going to Galazo’s home with the two checks and suggesting to Galazo that the police would look favorably upon Galazo’s silence regarding the incident. On the record before the court, there is no way that Nar-dozzi’s conduct, which occurred some time after the March 17, 1999 incident, could be deemed to have caused the use of excessive force upon Galazo on March 17, 1999. Nor could Nardozzi be deemed to have ratified or allowed the use of force upon Galazo on March 17, 1999. Therefore, Nardozzi cannot be held liable for the use of excessive force on Galazo.
D. FALSE ARREST
Defendants contend that Galazo has not named the officer or officers who placed him under arrest as defendants in this action. As such, defendants argue, Galazo cannot, as a matter of law, prevail on his claim of false arrest. However, it is not clear from the record the extent to which defendants who were present at the scene on March 17, 1999 participated in the arrest. Therefore, defendants have not met their burden of demonstrating that there is no material issue for trial on this claim. MALICIOUS PROSECUTION
“In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment... and establish the elements of a malicious prosecution claim under state law....” |
9,274,224 | 9,433,091 | 2004-03-12 | United States District Court for the Northern District of New York | Cea v. Ulster County | Cea v. Ulster County, 309 F. Supp. 2d 321 (2004) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_16 | To establish a malicious prosecution claim under New York law, a plaintiff must show that a proceeding was commenced or continued against him, with malice and without probable cause, and was terminated in his favor. | Dirienzo, 690 F.Supp. at 1154 n. 4 (citations omitted).
In the present case, there is no evidence that the arresting officers, Defendants Cunningham and Remsen, assisted Defendant Faluotico in preparing the criminal information. Nor is there any indication that either Defendant Remsen or Defendant Cunningham should have been aware that the warrant they were executing was not supported by probable cause. Under these circumstances, it was objectively reasonable for them to believe that there was probable cause to arrest Plaintiff. Accordingly, the Court grants Defendants’ motion for summary judgment with respect to Plaintiffs claims of false arrest and/or false imprisonment against Defendants Cunningham and Remsen.
3. Plaintiff’s malicious prosecution claim
In his second cause of action, Plaintiff alleges that Defendant Faluotico’s false allegations in the criminal information led to his malicious prosecution for criminal contempt in the second degree.
To prevail on a § 1983 claim for malicious prosecution, a plaintiff must show a violation of his Fourth Amendment rights and establish the elements of a malicious prosecution claim under New York law. “ |
9,505,765 | 9,433,091 | 2003-02-26 | United States District Court for the Western District of New York | Donovan v. Briggs | Donovan v. Briggs, 250 F. Supp. 2d 242 (2003) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_5 | felt that the probable cause was there. | Peglow testified that after discussing the matter with Briggs, he “ |
9,505,765 | 9,433,091 | 2003-02-26 | United States District Court for the Western District of New York | Donovan v. Briggs | Donovan v. Briggs, 250 F. Supp. 2d 242 (2003) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_3 | [i]n order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment, and establish the elements of a malicious prosecution claim under state law. | In addition, “ |
9,505,765 | 9,433,091 | 2003-02-26 | United States District Court for the Western District of New York | Donovan v. Briggs | Donovan v. Briggs, 250 F. Supp. 2d 242 (2003) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_4 | [tjhere can be no federal civil rights claim for false arrest where the arresting officer had probable cause. | Thus, “ |
9,505,765 | 9,433,091 | 2003-02-26 | United States District Court for the Western District of New York | Donovan v. Briggs | Donovan v. Briggs, 250 F. Supp. 2d 242 (2003) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_8 | [a]n arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint or information charging someone with the crime, has probable cause to effect an arrest absent circumstances that raise doubts as to the victim’s veracity | See also Orminski v. Village of Lake Placid, 268 A.D.2d 780, 781, 702 N.Y.S.2d 181 (3d Dep’t 2000) (“Here, the complainant reported the alleged crime within hours of its occurrence, endured a rape kit examination at the local hospital and presented herself in such a way that [police detective] believed her accusations to be true”; detective therefore had probable cause to arrest alleged culprit) (citation omitted). People v. Walker, 129 A.D.2d 751, 514 N.Y.S.2d 512 (2d Dep’t 1987); accord United States v. Anderson, 533 F.2d 1210, 1213 (D.C.Cir.1976); see also Singer, 63 F.3d at 119 (“ |
9,505,765 | 9,433,091 | 2003-02-26 | United States District Court for the Western District of New York | Donovan v. Briggs | Donovan v. Briggs, 250 F. Supp. 2d 242 (2003) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_8 | officer advised of a crime by a person who claims to be the victim ... has probable cause to effect an arrest absent circumstances that raise doubts as to the victim’s veracity, | In Lee, 136 F.3d 94, which was a false arrest case brought against three state troopers, the district court, relying on the statement in Singer that an “officer advised of a crime by a person who claims to be the victim... has probable cause to effect an arrest absent circumstances that raise doubts as to the victim’s veracity,” concluded that an officer who relies on a complainant whose veracity may be challenged lacks qualified immunity for an arrest until a jury decides the witness was in fact credible. |
9,234,014 | 9,433,091 | 2004-06-03 | United States District Court for the Western District of New York | Wiggins v. Buffalo Police Department | Wiggins v. Buffalo Police Department, 320 F. Supp. 2d 53 (2004) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_4 | There can be no federal civil rights claim for false arrest where the arresting officer had probable cause | See, e.g., Broughton v. State, 37 N.Y.2d at 458, 373 N.Y.S.2d 87, 335 N.E.2d 310 (under New York law, “[j]ustification may be established by showing that the arrest was based on probable cause”); Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir.) (“ |
9,234,014 | 9,433,091 | 2004-06-03 | United States District Court for the Western District of New York | Wiggins v. Buffalo Police Department | Wiggins v. Buffalo Police Department, 320 F. Supp. 2d 53 (2004) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_0 | that the indictment was the product of fraud, perjury, the suppression of evidence by the police, or other police conduct undertaken in bad faith. | See, e.g., Broughton v. State, 37 N.Y.2d at 458, 373 N.Y.S.2d 87, 335 N.E.2d 310 (under New York law, “[j]ustification may be established by showing that the arrest was based on probable cause”); Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir.) (“There can be no federal civil rights claim for false arrest where the arresting officer had probable cause”), cert. denied, 517 U.S. 1189, 116 S.Ct. 1676, 134 L.Ed.2d 779 (1996).
To establish a claim for malicious prosecution, the plaintiff must show (1) that the defendant initiated a prosecution against the plaintiff, (2) that the defendant lacked probable cause to believe the proceeding could succeed, (3) that the defendant acted with malice, and (4) that the prosecution was terminated in the plaintiffs favor. The return of an indictment against the plaintiff, establishes a rebuttable presumption of probable cause, Fulton, 289 F.3d at 198, and the presumption is rebuttable by. a showing “ |
9,234,014 | 9,433,091 | 2004-06-03 | United States District Court for the Western District of New York | Wiggins v. Buffalo Police Department | Wiggins v. Buffalo Police Department, 320 F. Supp. 2d 53 (2004) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_15 | Where a prosecution did not result in an acquittal, it is generally not deemed to have ended in favor of the accused, for purposes of a malicious prosecution claim, unless its final disposition is such as to indicate the accused’s innocence. | See Davidson v. Flynn, 32 F.3d 27, 31 (2d Cir.1994) (“Sparse pleadings by a pro se litigant unfamiliar with the requirements of the legal system may be sufficient at least to permit the plaintiff to amend his complaint to state a cause of action”); Fed.R.Civ.P. 15(a) (leave to amend “shall be freely given when justice so requires”).
' See Fulton, 289 F.3d at 196 (“ |
9,234,014 | 9,433,091 | 2004-06-03 | United States District Court for the Western District of New York | Wiggins v. Buffalo Police Department | Wiggins v. Buffalo Police Department, 320 F. Supp. 2d 53 (2004) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_0 | that the indictment was the product of fraud, perjury, the suppression of evidence by the police, or other police conduct undertaken in bad faith. | Moreover, if plaintiff was indicted he must allege facts that would rebut the presumption of probable cause arising from the indictment; in other words, he must allege facts that would establish “ |
9,168,555 | 9,433,091 | 2004-12-13 | United States District Court for the Eastern District of New York | Brewster v. Nassau County | Brewster v. Nassau County, 349 F. Supp. 2d 540 (2004) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_15 | is such as to indicate the accused’s innocence. | In particular, a complaint alleging that a municipality was “deliberately indifferent” to the need to train, monitor, or supervise an officer, but not alleging any facts beyond the specific instance giving rise to the complaint, generally fails to adequately to plead a custom or policy on the part of the municipality. Dwares v. City of New York, 985 F.2d 94, 101 (2d Cir.1993); Sarus v. Rotundo, 831 F.2d 397, 402 (2d Cir.1987).
In the present case, Brewster has not made any allegations that the behavior of the various individual defendants is part of a recurring pattern, or has previously been the subject of complaints. He has thus failed to show a culpable municipal policy, and his claim of municipal liability based on deliberate indifference must be dismissed.
B. Brewster Fails to State Any Cognizable Claim Against the Individual Nassau County Defendants.
In addition to his municipal liability claims, Brewster’s complaint, read liberally, alleges various constitutional torts by individual Nassau County officials, officers, or employees. For varying reasons, each of these claims is legally insufficient to withstand the Defendants’ dismissal motion.
1. Brewster cannot establish malicious prosecution because his criminal case has not terminated in his favor.
Brewster accuses the Nassau County District Attorney of malicious prosecution. This traditionally common-law-based tort may be the basis for liability under Section 1983, and Federal courts borrow its substantive elements from state law. See Washington v. County of Rockland, 373 F.3d 310, 315 (2d Cir.2004). In order to prevail on a malicious prosecution claim under New York law, a plaintiff must establish that: (1) acting maliciously and (2) without probable cause, (3) the defendant initiated a criminal proceeding against the plaintiff (4) that terminated in the plaintiffs favor. Where a prosecution does not result in an acquittal, it is generally not deemed to end in the accused’s favor for purposes of a malicious prosecution claim, unless its final disposition “ |
8,951,038 | 9,433,091 | 2005-05-31 | United States District Court for the Southern District of New York | Davis v. City of New York | Davis v. City of New York, 373 F. Supp. 2d 322 (2005) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_13 | separately analyze the charges claimed to have been maliciously prosecuted. |
Although the traditional rule is that “when an officer effects an arrest with probable cause, and there is no evidence that authorities became aware of exculpatory evidence undermining the probable cause to arrest between the time of the arrest and the ensuing prosecution, then probable cause to proceed exists to defeat a claim of malicious prosecution,” Carter, 2004 WL 2181107, at *13, the facts presented in this matter do not neatly square with this often-repeated rule.
Since there are two distinct charges underlying the prosecution at issue here, the Court must “ |
8,935,657 | 9,433,091 | 2005-07-20 | United States District Court for the Southern District of New York | McLaurin v. New Rochelle Police Officers | McLaurin v. New Rochelle Police Officers, 379 F. Supp. 2d 475 (2005) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_8 | ‘An arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint or information charging someone with the crime, has probable cause to effect an arrest absent circumstances that raise doubts as to the victim’s veracity.’ | See Defense Exhibit F.
Plaintiff argues that the allegations levied by DeQuatro in her complaint are all false and, therefore, Moretti lacked the probable cause necessary to allow a war-rantless arrest. Plaintiff is effectively asserting that Moretti should have recognized that circumstances existed that should have raised doubt as to the victim’s veracity.
Plaintiff claims he never had contact with DeQuatro’s son nor did he send DeQuarto emails. Although plaintiff does not specifically deny making the harassing telephone calls as DeQuatro alleged, it shall be assumed, as is in line with the rest of his arguments, that plaintiff maintains he never made such calls. Plaintiff explains in his Summary Judgment Response how emails can be made to look as if they were sent from someone other than the actual sender. Plaintiff contends this is what occurred in the present instance and Moretti should never have assumed he sent the threatening emails to DeQuatro. Plaintiff does not inform the court as to why Moretti should not have believed the allegations regarding the telephone calls and his contact with DeQuarto’s son.
Whether plaintiff actually engaged in any of the alleged conduct is of no moment to this Court regarding the present matter. All that is at issue is whether Moretti had probable cause to arrest him. See Golino v. City of New Haven, supra, 950 F.2d at 870. ‘An arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint or information charging someone with the crime, has probable cause to effect an arrest absent circumstances that raise doubts as to the victim’s veracity. |
106,102 | 9,433,091 | 2003-06-26 | United States District Court for the District of Kansas | Rivera v. Rivera | Rivera v. Rivera, 216 F.R.D. 655 (2003) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_2 | his impartiality might reasonably be questioned |
Fifteen days later, on May 28, 2003, the court convened a status conference to set a new trial date and discuss other details relating to the retrial of this case. At that time, defense counsel suggested that the undersigned may wish to recuse himself because of the nature of the court’s order granting plaintiff a new trial. Defendant also moved to withdraw his consent to proceed before a magistrate judge. The court informed the parties that it would conduct its own independent research and determine whether the undersigned would sua sponte recuse himself. Absent a ruling on that issue, however, the court directed defendant to file a motion for recusal and set an expedited briefing schedule to facilitate a prompt resolution of both the recusal and the withdrawal of consent issues.
Defendant’s motion for recusal (doc. 62) is now before the court, as is defendant’s oral motion to withdraw his consent to proceed before a magistrate judge. For the reasons explained below, the court will deny defendant’s motion for recusal. Further, the undersigned will submit defendant’s motion to withdraw consent to proceed before a magistrate judge to the Honorable Carlos Murg-uia, U.S. District Judge, for his consideration, and will recommend that this motion be denied.
II. Motion for Recusal.
The court will first address defendant’s motion for recusal. The court has reviewed defendant’s motion and supporting memorandum (doc. 62), as well as plaintiffs response (doc. 65). The time for defendant to reply has expired.
By way of the instant motion, defendant argues the undersigned should recuse himself based on 28 U.S.C. § 455(a) & (b)(1), under which a judge must disqualify himself if “ |
106,102 | 9,433,091 | 2003-06-26 | United States District Court for the District of Kansas | Rivera v. Rivera | Rivera v. Rivera, 216 F.R.D. 655 (2003) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_14 | vacate a reference ... to a magistrate judge. |
The reasons that defendant gives in the instant motion for wanting to withdraw his consent are an obvious sham for judge shopping. This motion was coincidentally made at the status conference in conjunction with defendant’s suggestion that the court may wish to sua sponte recuse itself from this case only fifteen days after the court issued a ruling that was unfavorable to defendant. It is patently obvious that this motion was motivated by defendant’s dissatisfaction with the court’s recent order granting plaintiff a new trial. This certainly does not amount to a showing of extraordinary circumstances. Fed.R.Civ.P. 73(b) specifically allows “[t]he district judge” to “vacate a reference... to a magistrate judge. |
1,499,378 | 9,433,091 | 2004-10-28 | United States District Court for the District of Connecticut | Christman v. Kick | Christman v. Kick, 342 F. Supp. 2d 82 (2004) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_8 | An arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint or information charging someone with the crime, has probable cause to effect an arrest absent circumstances that raise doubts as to the victim’s veracity. |
The Second Circuit’s decision in Singer is particularly helpful in considering Kick’s motion for summary judgment here, and assessing whether Kick had probable cause to arrest Christman based on the undisputed facts. In that case, plaintiff Singer was a ranger with the New York State Department of Environmental Conservation, and he received a call to join a search party for a missing hunter. En route, he entered a convenience store, picked out several packages of luncheon meat and a loaf of bread for the search party and walked out of the store without paying for these items. Singer told the store clerk, who was busy with other customers, that he was a member of the search party and that he would be back later to pay for the food. Singer claimed the store clerk consented; the store clerk later denied consenting. The local police were then called and the store clerk signed a criminal information and a supporting deposition reciting his version of the incident. The police officer then went to Singer’s home, and, after hearing Singer’s version of the incident, arrested Singer for larceny. After the criminal charge against Singer was dismissed “in the interest of justice,” Singer brought an action against various individuals, including the police officer, alleging false arrest and malicious prosecution under 42 U.S.C. § 1983, conspiracy to violate his civil rights, and malicious prosecution under state common law. Singer, 63 F.3d at 112-13. The district court granted summary judgment on the false arrest claim, finding that the police officer had probable cause as a matter of law. “ |
1,499,378 | 9,433,091 | 2004-10-28 | United States District Court for the District of Connecticut | Christman v. Kick | Christman v. Kick, 342 F. Supp. 2d 82 (2004) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_8 | doubts as to the victim's veracity, | That may not be true in all circumstances, but certainly a police officer should be able to rely on a victim's statement in the absence of clearer evidence creating " |
1,499,378 | 9,433,091 | 2004-10-28 | United States District Court for the District of Connecticut | Christman v. Kick | Christman v. Kick, 342 F. Supp. 2d 82 (2004) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_3 | In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment, and establish the elements of a malicious prosecution claim under state law. | That may not be true in all circumstances, but certainly a police officer should be able to rely on a victim's statement in the absence of clearer evidence creating "doubts as to the victim's veracity,” and when the officer took the statement himself. Id.
8
. The nature of the offense would also seem to be relevant in testing probable cause. For example, Trooper Kick had little opportunity for corroborating either Christman's or McMahan's statements, given the circumstances. No other drivers were able to be contacted, and no other physical evidence was readily available. Other types of crimes could yield more corroboration and, although the test for probable cause is constant, the type of the offense and nature of the investigation could yield more information relevant to that determination.
9
. There is some confusion about the claims Christman has asserted in his complaint. As mentioned in the text above, the Court views the complaint as alleging claims for false arrest, malicious prosecution and denial of equal protection.. The parties' Rule 26(f) report states, in the plaintiff’s description of the case, that this action involves these claims. [See Doc. # 9] The parties’ joint status report, however, describes the case as involving only a false arrest claim and an equal protection claim. [See Doc. #14], Similarly, Trooper Kick’s Motion for Summary Judgment describes Christman’s complaint as setting forth only a false arrest claim and an equal protection claim, and his arguments only address those two claims. [See Doc. #15] The Court concludes that the complaint may also set forth a claim for malicious prosecution, but it is not addressed by Trooper Kick's motion for summary judgment.
This Court retains the power, however, to enter summary judgment on the malicious prosecution claim sua sponte. “ |
3,696,065 | 9,433,091 | 2007-09-27 | United States District Court for the Northern District of New York | Dawkins v. Williams | Dawkins v. Williams, 511 F. Supp. 2d 248 (2007) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_0 | fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith. | ”
However, probable cause can be rebutted or overcome by evidence that an indictment was procured by “ |
3,476,818 | 9,433,091 | 2009-03-16 | United States District Court for the Southern District of New York | Orlik ex rel. Orlik v. Dutchess County | Orlik ex rel. Orlik v. Dutchess County, 603 F. Supp. 2d 632 (2009) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_3 | [i]n order to prevail on a section 1983 claim for malicious prosecution, a plaintiff must show a violation of [her] rights under the Fourth Amendment ... and establish the elements of a malicious prosecution claim under New York law. | ”) (internal citations omitted). Given the state of the law on potential liability for malicious prosecution in a civil proceeding and, more specifically, a civil proceeding in Family Court, plaintiff has failed to state a claim of a violation of a clearly established law against Thomas or Garcia. Harlow, 457 U.S. at 818, 102 S.Ct. 2727; see also Garcia v. Scoppetta, 289 F.Supp.2d 343, 354 (E.D.N.Y.2003).
Further, even if the law on malicious prosecution in a civil proceeding in Family Court had been clearly established at the time of the events giving rise to this case, Thomas and Garcia would still be entitled to qualified immunity because, “[i]n order to prevail on a section 1983 claim for malicious prosecution, a plaintiff must show a violation of [her] rights under the Fourth Amendment... and establish the elements of a malicious prosecution claim under New York law. |
3,474,482 | 9,433,091 | 2009-03-23 | United States District Court for the District of Connecticut | Zainc v. City of Waterbury | Zainc v. City of Waterbury, 603 F. Supp. 2d 368 (2009) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_3 | In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment ... and establish the elements of a malicious prosecution claim under state law.... | Id. (quoting Anderson v. Creighton, 483 U.S. 635, 641,107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Obviously, the Plaintiffs maintain that they did nothing wrong and that all of their actions were justified. Indeed, the Court admits that, looking at the record in hindsight, they may be correct. The Plaintiffs’ ultimate innocence, however, is not relevant to the question of whether there was probable cause to arrest them. The relevant facts are not in dispute, i.e., that the Plaintiffs were involved in an altercation with Hobart and Costanzo. As the Court discussed above, this gave the police probable cause to arrest the Plaintiffs (and Costanzo and Hobart, who were not arrested). Thus, the false arrest/false imprisonment claims fail. Consequently, with regard to the false arrest/false imprisonment claims, the Defendants’ motion for partial summary judgment is granted. Malicious Prosecution
“In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment... and establish the elements of a malicious prosecution claim under state law....” |
12,409,424 | 9,433,091 | 2017-10-17 | United States Court of Appeals for the Second Circuit | D’Alessandro v. City of New York | D’Alessandro v. City of New York, 713 F. App'x 1 (2017) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_8 | advised of a crime by a person who claims to be the victim, and who has signed a complaint, | However, we have explained that probable cause exists if an officer was “ |
12,409,424 | 9,433,091 | 2017-10-17 | United States Court of Appeals for the Second Circuit | D’Alessandro v. City of New York | D’Alessandro v. City of New York, 713 F. App'x 1 (2017) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_8 | circumstances that raise doubts as to the victim’s veracity. | However, we have explained that probable cause exists if an officer was “advised of a crime by a person who claims to be the victim, and who has signed a complaint,” and there are no “ |
12,409,424 | 9,433,091 | 2017-10-17 | United States Court of Appeals for the Second Circuit | D’Alessandro v. City of New York | D’Alessandro v. City of New York, 713 F. App'x 1 (2017) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_10 | proffered no evidence to suggest that the officers had any reason to doubt [the] veracity | Krause v. Bennett, 887 F.2d 362, 372 (2d Cir. 1989).
D’Alessandro’s complaint acknowledges that Abril filed a criminal complaint with the police after the alleged kidnapping. FAC ¶ 13. D’Alessandro cites two reasons why Vazquez should have distrusted Abril, neither of which is plausible. First, D’Alessandro insists that Vazquez should have, doubted Abril’s veracity because Abril and D’Alessandro were coworkers. But D’Alessandro cites no case from this Court to support that proposition. See, e.g., Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002) (finding that the plaintiff “ |
12,173,139 | 9,433,091 | 2016-03-02 | United States District Court for the Eastern District of New York | Smalls v. City of New York | Smalls v. City of New York, 181 F. Supp. 3d 178 (2016) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_0 | was procured by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith. | Posr v. Court Officer Shield # 207, 180 F.3d 409, 417 (2d Cir.1999). For a § 1983 claim, a plaintiff must additionally submit evidence that there was a sufficient post-arraignment deprivation of liberty. Roherman v. N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir.2000).
In their motion to dismiss, defendants contend that three of the five requisite elements are not satisfied. They do not question malice or post-arraignment deprivation of liberty. They challenge to the balance of the required elements’ facts. Def. Br. at 6-7.
A. Initiating Prosecution
Police officers can initiate prosecutorial proceedings by, for example, filing charges that cause arraignment, completing affidavits, and signing felony complaints. Cameron v. City of New York, 598 F.3d 50, 63 (2d Cir.2010); Cooper v. City of New York, No. 12-CV-8008, 2013 WL 5493011, at *4 (S.D.N.Y. Oct. 2, 2013); Mitchell v. Victoria Home, 434 F.Supp.2d 219, 227 (S.D.N.Y.2006). Defendants argue that Smalls identifies only Officer Collins as having submitted fabricated evidence to the prosecutor, Compl. at ¶¶ 14-16, and urges that claims against all the other police officers named as defendants should be dismissed. Insofar as the complaint does fail to advance any specific actions on the part of those officers with respect to initiating prosecution, and makes only con-clusory allegations that “defendants” engaged in such acts, the motion to dismiss the malicious prosecution claim against them is granted. Lacking Probable Cause
Where a plaintiff is one who was indicted by a grand jury, probable cause for a prosecution is presumed unless that plaintiff can show that the indictment “ |
12,173,139 | 9,433,091 | 2016-03-02 | United States District Court for the Eastern District of New York | Smalls v. City of New York | Smalls v. City of New York, 181 F. Supp. 3d 178 (2016) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_15 | Where a prosecution did not result in an acquittal, it is generally not deemed to have ended in favor of the accused, for purposes of a malicious prosecution claim, unless its final disposition is such as to indicate the accuseds innocence. | Id. (quotation omitted). Smalls argues that the Appellate Division’s reversal of his weapon possession conviction is indicative of a favorable termination. Pl. Opp. at 11.
New York recognizes an exception to its general rule, however, requiring that the conviction’s undoing “is not inconsistent with innocence.” Rothstein, 373 F.3d at 286 (citation omitted). Defendants respond that where the conviction is vacated on procedural grounds, and does not rebut the determination of guilt, termination is not “favorable. See Fulton v. Robinson, 289 F.3d 188, 196 (2d Cir.2002) (“ |
4,122,638 | 9,433,091 | 2012-03-05 | United States Court of Appeals for the Second Circuit | Kent v. Thomas | Kent v. Thomas, 464 F. App'x 23 (2012) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_8 | [a]n arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint or information charging someone with the crime, has probable cause to effect an arrest absent circumstances that raise doubts as to the victim’s veracity. | In general, “ |
3,615,731 | 9,433,091 | 2008-04-18 | United States Court of Appeals for the Second Circuit | Zarro v. Spitzer | Zarro v. Spitzer, 274 F. App'x 31 (2008) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_9 | [A]n ‘adjournment in contemplation of dismissal,’ .... is not a favorable termination because it leaves open the question of the accused’s guilt.... | ”). Thus, we affirm dismissal of Count 11 insofar as it challenges statements that prejudiced the jury, and we affirm dismissal of Count 13’s exculpatory evidence claim. We otherwise reverse dismissal of Counts 11 and 13.
With respect to the remaining counts, numbered 3, 5, 9, and 10, we reverse. A finding that the defendants conspired to falsely arrest and imprison Plaintiff in July 2003 on charges separate from those here, as alleged in Counts 3, 9, and 10, would not necessarily imply the invalidity of Plaintiffs conviction in this case. The State, in its amicus brief, suggests that Heck bars any claims relating to the July 2003 charges because those charges have not yet been resolved in Plaintiffs favor. While the State may be correct in suggesting that Plaintiffs Complaint fails to state a claim for malicious prosecution based on the July 2003 charges because those charges have not been resolved in Plaintiffs favor, see Fulton v. Robinson, 289 F.3d 188, 196 (2d Cir.2002) (“[A]n ‘adjournment in contemplation of dismissal,’.... is not a favorable termination because it leaves open the question of the accused’s guilt....”), Heck itself is inapplicable to those charges, as there is no extant conviction that a judgment in Plaintiffs favor could impugn, see Wallace v. Kato, - U.S. -, 127 S.Ct. 1091, 1098, 166 L.Ed.2d 973 (2007) (characterizing as “impractical ]” the suggestion that Heck should bar “an action which would impugn an anticipated future conviction... until that conviction occurs and is set aside”). |
5,687,712 | 9,433,091 | 2010-01-04 | United States Court of Appeals for the Second Circuit | Cornejo v. Bell | Cornejo v. Bell, 592 F.3d 121 (2010) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_3 | In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment and establish the elements of a malicious prosecution claim under state law. | O’Brien v. Alexander, 101 F.3d 1479, 1484 (2d Cir.1996) (citing Broughton v. State, 37 N.Y.2d 451, 373 N.Y.S.2d 87, 335 N.E.2d 310, 314 (1975)). See, e.g., Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir.2002) (“ |
3,898,451 | 9,433,091 | 2013-03-22 | United States District Court for the District of Connecticut | Sharnick v. D’Archangelo | Sharnick v. D’Archangelo, 935 F. Supp. 2d 436 (2013) | 2002-05-09 | United States Court of Appeals for the Second Circuit | Fulton v. Robinson | Fulton v. Robinson, 289 F.3d 188 (2002) | 9433091_3 | a violation of his rights under the Fourth Amendment ... and establish the elements of a malicious prosecution under state law. | A section 1983 malicious prosecution claim requires the plaintiff to demonstrate “a violation of his rights under the Fourth Amendment... and establish the elements of a malicious prosecution under state law. |
Subsets and Splits
No saved queries yet
Save your SQL queries to embed, download, and access them later. Queries will appear here once saved.