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[ "721 So. 2d 371" ]

[ { "author_str": null, "per_curiam": true, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n721 So. 2d 371 (1998)\nJames CARUTHERS, Appellant,\nv.\nSTATE of Florida, Appellee.\nNo. 97-01313.\nDistrict Court of Appeal of Florida, Second District.\nOctober 28, 1998.\nDomingo G. Alvarez, III, Orlando, for Appellant.\nRobert A. Butterworth, Attorney General, Tallahassee, and Anne E. Sheer, Assistant Attorney General, Tampa, for Appellee.\nPER CURIAM.\nJames Caruthers appeals the judgment of the trial court in this misdemeanor battery case. Caruthers asserts, and the State concedes, that the trial court erred in denying his jury instruction on the justifiable use of nondeadly force. We agree and reverse.\nThe State charged Caruthers with two counts of aggravated battery and alleged that Caruthers used an ax handle to attack two men during an altercation. Caruthers denied using a weapon and claimed self-defense. At trial, both parties agreed that the court would read the self-defense instruction of justifiable use of deadly force. However, the court declined Caruthers' request for an instruction on the justifiable use of nondeadly force. During the jury deliberations, the jury requested a rereading of the instruction on self-defense. The jury then found Caruthers guilty of misdemeanor battery, a lesser included offense, on both counts.\nWhere a defendant asserts self-defense, if the defendant used force that is deadly or nondeadly as a matter of law, the court need only give the applicable jury instruction. See Stewart v. State, 672 So. 2d 865, 868 (Fla. 2d DCA 1996). However, when the evidence fails to establish whether the force used was deadly or nondeadly as a *372 matter of law, the question must be determined by the jury. See id. The only act that has been deemed deadly as a matter of law is that of firing a firearm. See id.\nThere was no determination in this case, as a matter of law, that an ax handle was a deadly weapon. Therefore, it was error to refuse the instruction on the justifiable use of nondeadly force. Further, it is not harmless error where the court fails to instruct the jury on nondeadly force in an aggravated battery case involving a weapon that is not deadly as a matter of law. See DeLuge v. State, 710 So. 2d 83, 85 (Fla. 5th DCA 1998).\nReversed and remanded for a new trial on the charges of misdemeanor battery.\nPARKER, C.J., and CAMPBELL and QUINCE, JJ., concur.\n", "ocr": false, "opinion_id": 1725778 } ]

[ "275 F.2d 52" ]

[ { "author_str": "Jertberg", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/275/275.F2d.52.16140.html", "author_id": null, "opinion_text": "275 F.2d 52\n FORMULABS, INC., Appellant,v.HARTLEY PEN COMPANY and E. I. du Pont de Nemours & Company, Appellees.\n No. 16140.\n United States Court of Appeals Ninth Circuit.\n February 15, 1960.\n Rehearing Denied April 8, 1960.\n \n William Douglas Sellers, Pasadena, Cal., for appellant.\n Owen A. Bartlett, A. V. Falcone, Los Angeles, Cal., for Hartley Pen Co.\n Lawler, Felix & Hall, John M. Hall, Brenton L. Metzler, Los Angeles, Cal., for E. I. du Pont de Nemours & Co.\n Before BARNES and JERTBERG, Circuit Judges, and JAMESON, District judge.\n JERTBERG, Circuit Judge.\n \n \n 1\n Hartley Pen Company, a California corporation, the plaintiff in the district court and one of the appellees on this appeal, filed a complaint against E. I. du Pont de Nemours & Company, a Delaware corporation, the other appellee on this appeal, in the Superior Court of the State of California, in and for the County of Los Angeles, alleging breach of warranty. Such parties will hereafter be referred to respectively as Hartley and du Pont. The action was transferred to the United States District Court for the Southern District of California, Central Division, on petition of du Pont.\n \n \n 2\n Jurisdiction was vested in the district court under the provisions of Title 28 U.S.C.A. § 1332, by reason of diversity of citizenship, the amount in controversy exceeding the sum of $10,000 exclusive of interest and costs.\n \n \n 3\n It appears from the record that Hartley manufactures ball point pens incorporating cartridges filled with ink made under a secret formula comprising a trade secret belonging to Formulabs, Inc., the appellant on this appeal, which appellant will hereafter be referred to as Formulabs. The use of the secret formula by Hartley was under the terms of a written license agreement between Hartley and Formulabs.1\n \n \n 4\n The ink manufactured by Hartley and placed in the cartridges incorporated a dye purchased by Hartley from du Pont. In August 1953 du Pont sold to Hartley lots 36 and 37 of blue B dyes. The complaint alleges that the inks made by Hartley using dye lots 36 and 37 proved to be defective and unmerchantable. Hartley claimed that it suffered general and special damages in large amounts as the proximate result of the alleged defective and unmarketable dye.\n \n \n 5\n Du Pont filed its answer to the complaint, in which it denied most of the material allegations of the complaint. In its second defense du Pont alleged that it had been advised in October of 1952 by Formulabs that Formulabs had licensed Hartley to manufacture ink according to a formula developed by Formulabs using du Pont's dye, and that in the future Hartley would purchase from du Pont the dye to be used in said ink.\n \n \n 6\n As part of its discovery proceedings du Pont sought to learn the Formulabs' secret formula used by Hartley in the formulation of the alleged defective ink using the alleged defective dye, lots 36 and 37, as well as certain of Formulabs' secret test procedures which had been disclosed to Hartley. On du Pont's motion for production and inspection of documents, made under Rule 34, Federal Rules of Civil Procedure, 28 U.S.C.A., and over the objections of Hartley, the district court granted du Pont the right to inspect documents in Hartley's custody or under its control. It is conceded that such inspection would presumably disclose the secret formula and test procedures. Among the interrogatories propounded by du Pont to Hartley were interrogatories 34 and 37. Interrogatory 34 is in the following form:\n \n \n 7\n \"State in detail the formula and procedure used and/or followed by plaintiff in manufacturing each and every batch of ink which plaintiff contends was defective because Lot 36 or Lot 37 of Luxol Fast Blue MBS dye was used therein.\"\n \n Interrogatory 37 is as follows:\n \n 8\n \"Describe in detail the `secret tests' made by plaintiff and referred to in plaintiff's answer to defendant's interrogatory No. 14, and state what the results of said `secret tests' were.\"\n \n \n 9\n Hartley objected to such interrogatories. The objections were overruled, but no formal order has as yet been entered by the district court. It is conceded that such interrogatories if answered by Hartley would presumably disclose the secret formula and test procedures belonging to Formulabs.\n \n \n 10\n The district court was fully aware of the existence of the license agreement between Hartley and Formulabs. The record is likewise clear that under statements made by the district judge Hartley must disclose the secret formula and secret test procedures or be faced with a dismissal of its suit for damages against du Pont. Among other statements made by the district judge to counsel for Hartley in connection with various discovery hearings are the following: \"You can talk all you want to, but if you go to trial in this case you are going to have to submit your formula. Now, I don't care what it does or anything else to your contractual rights.\" \"I told you before and I meant it, that you are either going to divulge your formula or out the case goes.\"\n \n \n 11\n On February 5, 1958, Formulabs moved the district court to intervene in the pending action between Hartley and du Pont on the ground that the property affected belonged to it and that its right of ownership would be seriously injured and destroyed by disclosure of the trade secret. Attached to the motion was the proposed intervenor's cross complaint. Attached to the cross complaint was a copy of the license agreement between Formulabs and Hartley. In the cross complaint it is alleged that the secret formula and the secret test procedures are of great value and disclosure of them would do great and irreparable damage to Formulabs' business. The cross complaint prayed that Hartley be enjoined from disclosing such trade secrets. After hearing, the district court entered a final judgment, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, denying Formulabs' petition for intervention.\n \n \n 12\n The district court ordered there be no disclosure of any secret formula or test procedures by Hartley to du Pont pending determination of this appeal.\n \n \n 13\n The sole issue on this appeal is whether the district court erred in denying Formulabs' motion to intervene. The resolution of that issue in turn depends upon the construction to be given to the provisions of the pertinent provisions of Rule 24, Federal Rules of Civil Procedure.2 Section (a) of this rule deals with intervention of right. Section (b) of the rule deals with permissive intervention. Since appellant concedes that intervention was not sought under this section, we will not extend this opinion by quoting the provisions thereof. Section (c) of the rule deals with procedure. Since no problem of procedure is involved, we will not quote the provisions of section (c).\n \n \n 14\n The issue before us is further narrowed by Formulabs' concession that unless the intervention sought was a matter of right under Rule 24(a) necessary grounds of jurisdiction to order intervention were lacking, and the order denying intervention was not an appealable order. We will, therefore, return to a discussion of Rule 24(a). Rule 24(a) states that upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene. Formulabs makes no contention under this subsection. Section (a) (2) provides for the right of intervention \"when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action.\" Formulabs makes no contention under this section. Formulabs rests its entire right to intervene under section (a) (3) of the rule, which reads: \"(3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof.\"\n \n \n 15\n Rule 24(a) (3) was amended December 27, 1946, effective March 19, 1948, [italics indicate added matter]: \"(3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof.\"\n \n \n 16\n We have been unable to find any controlling decision which has interpreted or construed this amended sub-section.\n \n \n 17\n Moore's Federal Practice, Volume 4, page 58 states: \"The 1946 amendment to Rule 24(a) (3) clarified the question of court control. Under the amendment, property need not be actually in the custody of the court or an officer thereof if it is `subject to the control or disposition' of the court.\"\n \n \n 18\n It must be borne in mind that the issue of the propriety of the orders to disclose which the district court has or intends to make is not directly involved in this appeal. Hence we will not comment on that subject or discuss the decisions on that subject which appear in the briefs. The issue before us is whether Formulabs had a right to intervene under Rule 24(a) (3). If so, intervention is a matter of right. State of Oklahoma v. State of Texas, United States Intervener, 1922, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771; Krippendorf v. Hyde, 110 U.S. 276, 4 S.Ct. 27, 28 L.Ed. 145.\n \n \n 19\n The law appears to be well settled that if an applicant seeks to intervene under the provisions of Rule 24(a) (2) the intervenor must have an interest in the subject matter of the litigation of such a nature that he will gain or lose by the direct legal operation of the judgment, Kelley v. Summers, 10 Cir., 1954, 210 F.2d 665, and that the requirement in 24(a) (2) that a party seeking to intervene must be \"bound by\" the judgment in the main action has been held to mean that such judgment must be res adjudicata as to such party. Sutphen Estates v. United States, 1951, 342 U.S. 19, 72 S.Ct. 14, 96 L.Ed. 19.\n \n \n 20\n Du Pont and Hartley contend on this appeal that the requirements to intervene under Rule 24(a) (2) are applicable to intervene under the provisions of Rule 24(a) (3). They cite in support of their position Dowdy v. Hawfield, 88 U.S.App.D.C. 241, 189 F.2d 637 (decided March 1, 1951), certiorari denied 342 U.S. 830, 72 S.Ct. 54, 96 L.Ed. 628. In that case the probate court entered its decree admitting to probate a last will and testament after trial by jury of the issues raised by certain parties wherein they charged the will was procured by fraud and undue influence. The issues were determined against such parties, and the order admitting the will to probate was affirmed by the circuit court, and a writ of certiorari to the Supreme Court was denied. Later the same parties filed a motion to intervene and stay the probate proceedings. Such motions were denied by the district court, and on appeal such order was affirmed, the court stating at page 638, of 189 F.2d: \"The appellants' interest in the estate was determined to be nothing in the former contest of the issues which are also presented in this case.\" It is clear that in the Dowdy case those seeking to intervene had no interest in or property rights to be protected in the probate proceedings. The factual situation is entirely different from the instant case. The opinion contains no analysis of Rule 24(a) (3), and the court was in no manner required to pass upon the issue which is involved in this appeal.\n \n \n 21\n Appellees have also called our attention to Pure Oil Co. v. Ross, 7 Cir., 170 F.2d 651, decided November 17, 1948. This case involved an interpleader action by the plaintiff to determine a conflict in claims to money in its possession. The defendants counterclaimed. The money in the possession of the plaintiff was deposited with the court. One Schiff petitioned to intervene, claiming a part of the money. The order denying intervention was reversed by the circuit court. In its opinion the court stated, at page 653:\n \n \n 22\n \"Rule 24(a) (3), Federal Rules of Civil Procedure, 28 U.S.C.A., permits anyone upon timely application to intervene in an action as a matter of right when the applicant is so situated as to be adversely affected by a distribution of property in the custody of the court or of an officer thereof, and the law is well settled, that to authorize an intervention, the intervenor must have an interest in the subject matter of the litigation of such a nature that he will gain or lose by the direct legal operation of the judgment.\"\n \n \n 23\n The opinion contains no analysis of Rule 24(a) (3), and the facts are so different from the situation in the instant case that we derive no help from that decision in solving the problem before us.\n \n \n 24\n The provision contained in Rule 24(a) (2) is entirely different than the language contained in 24(a) (3). Under 24(a) (2) it must appear that the applicant to intervene is or may be bound by the judgment in the main action. There is no such requirement contained in the provisions of Rule 24 (a) (3). Under its plain language any person has the right to intervene if he is so situated as to be adversely affected by a distribution or other disposition of the property which is in the custody or subject to the control or disposition of the court. In our view, Formulabs is so situated. Admittedly it is the owner of the secret formula and secret testing procedures. They are being used by Hartley under a license agreement which forbids disclosure by Hartley. Admittedly Hartley has knowledge of the secret formula and the secret testing procedures. It is a party to the main action pending in the district court. It is subject to the jurisdiction of that court. Under such circumstances, the secret formula and secret testing procedures are subject to the control or disposition of the court. There can be no question that Formulabs will be adversely affected by an order of the court requiring publication of these trade secrets. As stated in Cincinnati Bell Foundry Co. v. Dodds, 1887, 19 Week. Law Bull. 10 Ohio Dec. Reprint 154:\n \n \n 25\n \"The property in a trade secret is the power to make use of it to the exclusion of the world. If the world knows the process then the property disappears. There can be no property in a process, and no right of protection if knowledge of it is common to the world.\"\n \n \n 26\n The fact that Formulabs may have the right to seek damages or an injunction against Hartley in the state court is in our view a completely inadequate remedy.\n \n \n 27\n We hold that under the plain language of Rule 24(a) (3) Formulabs had a right to intervene in the main action, and that the district court erred in denying its application.\n \n \n 28\n The order of the district court denying intervention is reversed.\n \n \n \n Notes:\n \n \n 1\n The license agreement states that Formulabs is the owner of a secret formula for making ball pen ink which Hartley, engaged in the manufacture of ball pen inks, desired to use in the manufacture of ink. Under the license agreement Hartley agreed, among other things, that it would not \"in any way or manner make known, divulge or communicate the secret of said formula to any person or persons whomsoever, and will take all reasonable precaution against the secret of said formula being learned or acquired by any unauthorized person or persons.\"\n \n \n 2\n Rule 24 of the Federal Rules of Civil Procedure provides:\n \"(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof.\" As amended Dec. 27, 1946, eff. March 19, 1948.\n \n \n ", "ocr": false, "opinion_id": 250172 } ]

[ "559 F. App'x 846" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 4, "download_url": "http://www.ca11.uscourts.gov/unpub/ops/201312821.pdf", "author_id": null, "opinion_text": " Case: 13-12821 Date Filed: 03/14/2014 Page: 1 of 4\n\n\n [DO NOT PUBLISH]\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 13-12821\n Non-Argument Calendar\n ________________________\n\n D.C. Docket No. 5:13-cv-00164-JSM-PRL\n\n\nCLAYTON ALBERS,\n\n Petitioner-Appellant,\n\n versus\n\n\nWARDEN, FCC COLEMAN – USP I,\n\n Respondent-Appellee.\n\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Florida\n ________________________\n\n\n (March 14, 2014)\n\n\nBefore PRYOR, MARTIN and BLACK, Circuit Judges.\n\nPER CURIAM:\n\f Case: 13-12821 Date Filed: 03/14/2014 Page: 2 of 4\n\n\n Clayton Albers, a federal prisoner proceeding pro se, appeals the denial of\n\nhis motion for reconsideration of the district court’s dismissal, without prejudice,\n\nof his 28 U.S.C. § 2241 petition for a writ of habeas corpus. In Albers’ § 2241\n\npetition, he stated that he was indigent and requested the waiver of all fees with the\n\npetition, and all other considerations afforded to pro se petitioners. He requested\n\nhis letter be accepted in lieu of a standard § 2241 form. After over 30 days had\n\npassed since Albers’ filing, the district court dismissed his petition without\n\nprejudice on the basis that he failed to pay the filing fee or request to proceed in\n\nforma pauperis (IFP) within 30 days of the filing of his petition, as required by the\n\ncourt’s local rule. Albers filed a motion for reconsideration of the dismissal of his\n\npetition, claiming his statement of indigency in his petition should have been\n\naccepted in lieu of a formal application to proceed IFP. The district court denied\n\nthe motion for reconsideration.\n\n Albers contends the certification he was indigent in his original § 2241\n\npetition sufficiently constituted a request to proceed IFP. He asserts he was never\n\nsent any forms, as required by the local rules. Thus, he contends his petition was\n\nerroneously dismissed.\n\n Rule 60(b) allows a party to move a court for relief from a final judgment\n\ndue to, in relevant part, mistake, inadvertence, surprise, or excusable neglect, or\n\nany other reason justifying relief. See Fed. R. Civ. P. 60(b)(1), (b)(6). Generally,\n\n\n 2\n\f Case: 13-12821 Date Filed: 03/14/2014 Page: 3 of 4\n\n\nin reviewing an appeal of an order denying a motion for reconsideration, we may\n\nonly consider the denial of relief of the motion for reconsideration, not the\n\nunderlying judgment itself. Rice v. Ford Motor Co., 88 F.3d 914, 918-19 (11th\n\nCir. 1996).\n\n The district court did not abuse its discretion in denying Albers’ motion for\n\nreconsideration. See Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003)\n\n(stating we review a district court’s denial of a motion for reconsideration for\n\nabuse of discretion). The record shows Albers had neither paid the required filing\n\nfee nor filed an application to proceed IFP with the district court within 30 days of\n\nfiling his petition, in violation of the court’s local rules. M.D. Fla. Local Rule\n\n1.03(e) (stating a prisoner case “will be subject to dismissal by the Court, sua\n\nsponte, if the filing fee is not paid or if the application [to proceed IFP] is not filed\n\nwithin 30 days of the commencement of the action”). Albers has not identified any\n\nerror under Rule 60(b) that justified relief such that the district court was required\n\nto vacate its initial order. See Solaroll Shade & Shutter Corp., Inc. v. Bio-Energy\n\nSys., Inc., 803 F.2d 1130, 1132 (11th Cir. 1986) (“To demonstrate an abuse of\n\ndiscretion” in denying a Rule 60(b) motion, a movant “must prove some\n\njustification for relief . . . [and] cannot prevail simply because the district court\n\nproperly could have vacated its order).” Although Albers argues the court should\n\nhave accepted his statement that he was indigent in lieu of a formal application to\n\n\n 3\n\f Case: 13-12821 Date Filed: 03/14/2014 Page: 4 of 4\n\n\nproceed IFP, he has not shown how the court’s refusal to do so entitled to him\n\nrelief under Rule 60(b). Similarly, there is no authority that supports his\n\ncontention that the court was required to send him the requisite application forms\n\nwhen it declined to accept his letter as a substitute for a formal application.\n\nAccordingly, we affirm.\n\n AFFIRMED.\n\n\n\n\n 4\n\f", "ocr": false, "opinion_id": 2656730 } ]

[ "520 F.3d 822" ]

[ { "author_str": "Flaum", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n520 F.3d 822 (2008)\nSAMUEL C. JOHNSON 1988 TRUST, et al., Plaintiffs-Appellees,\nv.\nBAYFIELD COUNTY, WISCONSIN, Defendant-Appellant.\nNo. 07-1348.\nUnited States Court of Appeals, Seventh Circuit.\nArgued November 8, 2007.\nDecided April 2, 2008.\n*823 Carl A. Sinderbrand, Axley Brynelson, Madison, WI, Cecilia Fex (argued), Ackerson Kauffman Fex, Washington, DC, William T. Stuart, Meissner, Tierney, Fisher & Nichols, Milwaukee, WI, for Plaintiffs-Appellees.\nRichard K. Nordeng (argued), Stafford Rosenbaum, Steven Pray O'Connor, Office of the United States Attorney, Madison, WI, for Defendant-Appellant.\nAndrea C. Ferster, Washington, DC, Rails to Trail Conservancy, Amicus Curiae.\nDebra P. Conrad, Wisconsin Realtors Ass'n, Madison, WI, Wisconsin Realtors Ass'n, Amicus Curiae.\nJ. Bushnell Nielson, Reinhart, Boerner, Van Deuren, Waukesha, WI, Wisconsin Land Title Ass'n, Amicus Curiae.\nBefore EASTERBROOK, Chief Judge, and FLAUM and KANNE, Circuit Judges.\nFLAUM, Circuit Judge.\nAt issue in this lawsuit are Bayfield County's (\"the County\") ongoing efforts to convert unused railway lines in the County into snowmobile trails. As the legal basis for its plans, the County alleges that the United States retains a reversionary interest in these railroad right-of-ways and that Congress has established that, pursuant to this reversionary interest, if the railway lines are formally abandoned, local governments are then provided with a one-year window with which to establish a public highway if they so choose. 43 U.S.C. § 912; 16 U.S.C. § 1248(c). local landowners (\"landowners\"), who have been using these old railway lines as their own, took preemptive measures and filed a quiet title action seeking declaratory relief *824 against the County and the united states, claiming that the United States had not retained a reversionary interest over these particular railway lines, and, in the alternative, that the land had vested in the landowners because the one-year period from the date of abandonment had already lapsed. The district court never made a determination on these claims. Instead, the United States filed a Disclaimer of Interest in the property. See 28 U.S.C. § 2409a(e). The district court then determined that, even assuming that the United States retained a reversionary interest and the railway lines had not been abandoned, the Disclaimer of interest had the same effect as eliminating the United States's reversionary interest, which the court classified as a necessary predicate for the County to have any interest in the railway lines. Accordingly, the district court found for the Landowners. For the following reasons, however, we vacate the grant of summary judgment for the Landowners, vacate the quiet title finding in the Landowners' favor, and remand for further proceedings.\n\nI. BACKGROUND\nA. Grants to the Railroads\nIn the 1850's and 1860's, Congress passed a series of laws granting tracts of land and right-of-ways for purposes of constructing railway lines. Particularly relevant to this case are Acts enacted on August 4, 1852; June 3, 1856; and May 5, 1864. See ch. 80, 10 stat. 28, 28-29 (1852); ch. 43, 11 stat. 20, 20-21 (1856); and ch. 80, 13 stat. 66, 66-68 (1864). The parties agree that the railroad's property interest in the railway line traversing the property owned by Samuel C. Johnson 1988 trust and Imogene P. Johnson (\"SC Johnsons\") was originally acquired by the railroad via the 1856 and 1864 Acts. This is because those Acts governed odd numbered sections of property, which would include the SC Johnsons' land, located at section 21, Township 44 North, Range 7 West in Bayport County. The parties are in disagreement, however, as to whether the United States maintained a reversionary interest in this land. According to the landowners, the 1856 and 1864 acts vested the title of fee simple absolute with the State of Wisconsin, which then in turn transferred this full property interest to the railroad companies. See 1874 Wis. Sess. Laws ch. 126, § 1. The County, however, argues that the Western District of Wisconsin and this Court have already found that the United States retained a reversionary interest in odd-numbered sections of Bayfield County granted to the State of Wisconsin for the purpose of constructing railroads under the 1856 and 1864 Acts. Mauler v. Bayfield County, 204 F. Supp. 2d 1168, 1176 (W.D.Wis.2001); Mauler v. Bayfield County, 309 F.3d 997, 1001 (7th Cir.2002).\nAlso in dispute is the United States's reversionary interest in the parcels of land owned by John and Kay Hawksford (\"Hawksfords\") and Dean and Kathryn Johnson (\"DK Johnsons\"), which lie in an even section — specifically, Government Lot 2 of Section 32, Township 44 North, Range 7 West, in Bayfield County. According to the Landowners, railroads seeking rights of way in even-numbered sections generally obtained this interest through private conveyance or condemnation on a parcel-by-parcel basis. With respect to the property in Section 32, the Landowners maintain that a private homesteader initially acquired title to the property in 1882 by patent from the United States, without the United States retaining any reversionary interest. Approximately seven months later, the state condemned a portion of this property, completely outside any federal land grant program.\nThe County disagrees with the landowners' characterization of the property interest over the railway line in Section 32.\n*825 The Act of 1852 granted a right-of-way to railways \"charted within ten years hereafter\" on the United States's public lands, with construction then needing to be completed within the next fifteen years. Ch. 80, § 1, 10 stat. 28 (1852). The County maintains that the railway line in Section 32 is covered by this Act because, even though construction on the line did not begin until the mid-1870's, the railroad filed a map with the Land Office in 1858 that showed the intended railway line. The County argues that court decisions have not required railroads to have strictly complied with statutorily imposed time limits, and that thus, with the Act of 1852 applying here, the United States retained a reversionary interest in the property. According to the County, the 1882 land grant to the homesteader and subsequent state condemnation proceeding did not affect the United States's reversionary interest in the railway line.\nB. Congress's Scheme for the United States's Reversionary Interests\nThe basis for finding that the United States holds a reversionary interest in the railway lines can be traced back to a 1903 Supreme Court decision, where the Court characterized railroad grants as a \"limited fee, made on an implied condition of reverter in the event that the company ceased to use or retain the land for the purpose for which it was granted.\" Mauler, 309 F.3d at 1001 (quoting Northern Pacific Ry. Co. v. Toumsend, 190 U.S. 267, 271, 23 S. Ct. 671, 47 L. Ed. 1044 (1903)). Subsequently, in 1922, Congress passed the Abandoned Railroad Right of Way Act, 43 U.S.C. § 912, which addressed how Congress wished to dispose of its reversionary Interest. Id., at 999. Section 912 provided that when a railway line was declared abandoned by a proper court or by Congress, the United States's reversionary interest would vest in the adjacent landowner, unless the abandoned line was converted into a public highway within one year of the declaration of abandonment. 43 U.S.C. § 912.[1] At approximately the same time, congress also passed another law permitting the railroads to sell their right of way to state or local governments to establish public highways.[2] Pub.L. No. *826 66-217, 41 Stat. 621 (enacted in 1920, codified at 43 U.S.C. § 913). In an effort to preserve these abandoned railway lines for use as trails, Congress amended § 912 in 1988. 16 U.S.C. § 1248(c). Under this amendment, abandoned railway lines would no longer pass to the adjacent landowner, but instead the United States would retain title to the property, provided again that the line was not converted to a public highway within one year of a determination of abandonment.[3]Id.\nC. Dissolution of the Railway Line\nIn addition to disputing whether the United States maintained a reversionary interest in these railway lines, the County and the Landowners also dispute whether the railway lines have already been abandoned in accord with § 912 and § 1248(c). In 1974, the Chicago & North Western Transportation Company filed a Notice of Proposed Abandonment with the Interstate Commerce Commission (\"ICC\") with respect to the portion of railway line running through Bayfield County that is relevant to this case. Then, in 1978, the ICC issued a Certificate and Order permitting the abandonment of the railway line. One month later, in April 1978, the railroad cancelled its tariffs on the line, and in 1980, the railroad pulled up the tracks. In November 1979, soon before the tracks were pulled up, the County had declined an opportunity to purchase this right-of-ways.\nAccording to the Landowners, the railway line was abandoned in accord with the terms of § 912 in either 1978 or 1980,[4] while the County contends that a proper declaration of abandonment has not yet been issued. Regardless, while the County disputes the validity of the following actions, on March 4, 1980, the railroad executed a quitclaim deed purporting to convey its interests over all the property at issue to the SC Johnsons. The SC Johnsons then donated the majority of these lands to the Forest Service, while retaining some of the land for themselves, and issuing quitclaim deeds to other parties, including the Hawksfords and DK Johnsons, whose properties abutted the right of way.\nD. Procedural History\nThis lawsuit arose out of the County's ongoing efforts to convert and integrate abandoned railway lines into the 500 miles of snowmobile trails that already exist in the County. See Travel Info: Ashland and Bayfield County, Snowmobile Report & Information, http://www.travelbay *827 fieldcounty.com/files/rsnowmobilefr.html (last visited March 14, 2008). In the hopes of preventing the County from moving forward with its plan, the Landowners filed an action in federal court against the County and the United States seeking declaratory relief, see 28 U.S.C. § 2201, under the Quiet Title Act, 28 U.S.C. § 2409a. On November 1, 2006, the Landowners filed a motion for summary judgment, contending that § 912, § 913, and § 1248(c) were inapplicable because the United States had not retained any reversionary interests over the former railway lines, and alternatively, that the railway lines had been abandoned for purposes of § 912 in 1978, and thus the County could no longer lay claim to the property. The County filed its brief opposing the Landowners' motion for summary judgment on November 21, 2006, disputing both of the Landowners' claims. On that same date, the United States filed a Disclaimer of Interest in the property. This Disclaimer, submitted by the United States Attorney's Office, stated that the United States had determined that the lands in question had been deeded without the United States retaining any reversionary interest in the property, and that accordingly, the United States, under 28 U.S.C. § 2409a(e), disclaimed all interest in the property at issue in this suit. The following day, the district court issued an order confirming the Disclaimer of Interest. Subsequently, the Landowners filed a motion to dismiss, claiming that the Disclaimer resolved the issues in their favor in the case.\nOn January 19, 2007, the district court dismissed the United States from the case and issued its Memorandum and Order on the Landowners' motions. After establishing that despite the Disclaimer, an independent basis for federal jurisdiction still existed, see 28 U.S.C. § 2409a(e), the district court proceeded to analyze the impact the Disclaimer had on the County's asserted property rights over the railway lines. The court determined that the County did not acquire any interest in the railway lines until after they were abandoned, and that prior to that date, the United States could treat its reversionary interests as it wished. Accordingly, assuming abandonment had not yet occurred, the United States's Disclaimer of Interest destroyed any property interest the County had in the railway lines. Based on these findings, the district court granted the Landowners' motion for summary judgment and provided declaratory relief to the Landowners by quieting title in their favor with respect to any claim to the property made by the County under 43 U.S.C. § 912 or 16 U.S.C. § 1248(c).\n\nII. Analysis\nA. Federal Jurisdiction\nBefore proceeding to examine the Disclaimer of Interest's effect on the merits of this suit, we must first determine whether this Court has jurisdiction over this case. The Landowners brought suit under the Declaratory Judgment Act, 28 U.S.C. § 2201, to quiet title in the disputed property. When the suit was originally filed, federal jurisdiction existed by virtue of the fact that the United States was named as a defendant. See 28 U.S.C. § 2409a(a); see also 28 U.S.C. § 1346(f). This basis for jurisdiction, however, was eliminated when the district court confirmed the Disclaimer of Interest. 28 U.S.C. § 2409a(e). Thus, in order for the suit to have remained in federal court, an independent basis for federal jurisdiction was required. Id. The district court properly found that such an independent basis exists.\nAlthough the Landowners brought suit under the Declaratory Judgment Act, this Act does not serve as an independent basis for federal jurisdiction. Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 935 (7th Cir.2008) (citing GNB Battery *828 Technologies v. Gould, Inc., 65 F.3d 615, 619 (7th Cir.1995)). Instead, \"jurisdiction is determined by whether federal question jurisdiction would exist over the presumed suit by the declaratory judgment defendant.\" Id. (quoting GNB Battery Technologies, 65 F.3d at 619). Thus, the issue is whether the County's presumed complaint against the Landowners, on its face, would include an action \"arising under\" federal law. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987); 28 U.S.C. § 1331. Here, the County's property interest in the railway lines is dependent upon the United States retaining a reversionary interest in the land pursuant to the congressional acts deeding the land away, and then rests upon Congress's disposal of this reversionary interest under 43 U.S.C. § 912 and 16 U.S.C. § 1248(c). The centrality of these federal laws' interpretation to the proper adjudication of this suit gives rise to federal jurisdiction. This comports with a long history of Supreme Court decisions finding federal jurisdiction to exist over state quiet title actions. See Grable & Sons Metal Prods, v. Darue Eng'g & Mfg., 545 U.S. 308, 315-16, 125 S. Ct. 2363, 162 L. Ed. 2d 257 (2005) (finding federal jurisdiction when the issue of notice under a federal statute was a critical element in a quiet title claim) (citing Hopkins v. Walker, 244 U.S. 486, 490-91, 37 S. Ct. 711, 61 L. Ed. 1270 (1917) (federal jurisdiction exists over a quiet title action when the construction and effect of a federal mining law was an essential, real, and substantial part of the plaintiffs claim); Northern Pacific R. Co. v. Soderberg, 188 U.S. 526, 528, 23 S. Ct. 365, 47 L. Ed. 575 (1903); Wilson Cypress Co. v. Del Pozo y Marcos, 236 U.S. 635, 643-644, 35 S. Ct. 446, 59 L. Ed. 758, (1915)). Accordingly, having found that federal jurisdiction exists despite the United States's Disclaimer of Interest, we turn to the merits on this appeal.\nB. Effect of Disclaimer of Interest\nIn reviewing the lower court's decision on the merits, because this is an appeal from a grant of the Landowners' motion for summary judgment, we review the decision de novo, Jackson v. County of Racine, 474 F.3d 493, 498 (7th Cir.2007), drawing all facts and reasonable inferences in the light most favorable to the nonmovant, the County. Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir.2007) (citing South v. III. EPA 495 F.3d 747, 751 (7th Cir.2007)). The facts, however, appear to be uncontested, with the dispute solely involving the legal property interests held by the different parties. Thus, to the extent that the resolution of the Disclaimer's effect on the County's interest involves a pure question of law, drawing upon issues of statutory interpretation, this too we review de novo. Zeigler Coal Co. v. Office of Workers' Comp. Programs, 490 F.3d 609, 613 (7th Cir.2007) (\"We review pure questions of law de novo.\"); United States v. Genendo Pharm., N.V., 485 F.3d 958, 962 (7th Cir.2007) (\"a question of statutory interpretation [is] subject to de novo review\").\nWe note at the outset that we are provided with little guidance in addressing the effect of the United States's Disclaimer of Interest. The statute itself, under which the United States disclaimed its interest, fails to define \"disclaimer,\" does not address under what circumstances a district court should \"confirm\" such a disclaimer, and fails to address what effect, if any, such a disclaimer has on a suit other than to divest the federal court of jurisdiction under 28 U.S.C. § 1346(f). See 28 U.S.C. § 2409a(e). Similarly, little help can be found on this matter by turning to our sister circuits or the lower federal courts. Fortunately, our task here is a narrow one. Despite the lack of clarity as to what effect the Disclaimer has on the County's interest, the parties in this suit do not dispute *829 that the United States properly issued its Disclaimer of Interest, and the County does not directly challenge the district court's confirmation of this Disclaimer, nor raise any charge that the United States acted in bad faith. Accordingly, we also find no issue with the United States's filing, and the district court's confirmation, of the Disclaimer.[5] Furthermore, it is unnecessary for us to determine what effect the United States's Disclaimer had on parties aside from the County, since the only issue to determine in this suit is whether the County has superior title to the Landowners by virtue of § 912 and § 1248(c). See United States v. Oregon, 295 U.S. 1, 24-25, 55 S. Ct. 610, 79 L. Ed. 1267 (1935) (\"A bill to quiet title may not be defeated by showing that the plaintiffs interest, otherwise sufficient to support the bill, is subject to possibly superior rights in third persons not parties to the suit. It is enough that the interest asserted by the plaintiff in possession of land is superior to that of those who are parties defendant.\") (internal citations omitted). Thus, our focus is truly limited to ascertaining the Disclaimer's effect on the County's property interest in the railway lines.\nIn trying to determine whether the Disclaimer served to destroy the County's property interest, it is first necessary to define \"disclaimer.\" Given that the statute does not define the term, we turn to the common understanding of the word, which is that the Disclaimer operates as \"[a] renunciation of [the United States's] legal right or claim\" over the railway lines. BLACK'S LAW DICTIONARY 496 (8th ed.2004); see Bel v. United States, 452 F.2d 683, 693 (5th Cir.1971), cert, denied, 406 U.S. 919, 92 S. Ct. 1770, 32 L. Ed. 2d 118 (1972) (quoting City Nat'l Bank & Trust Co. v. United States, 203 F. Supp. 398, 402 (S.D.Ohio 1962)) (defining disclaimer as \"the repudiation or renunciation of a claim or power invested in a person for which he formally alleged to be his. The refusal, or rejection of an estate or right offered to a person. The disavowal, denial, or renunciation of an interest, right, or property imputed to a person or alleged to be his.\"); see BLACK'S LAW DICTIONARY 417 (5th ed.1979) (defining \"disclaimer\" in the context of estates as \"[t]he act by which a party refuses to accept an estate which has been conveyed to him.\"). If the Disclaimer is deemed a *830 \"renunciation,\" the issue then becomes what it is that is being renounced — that the United States ever held a reversionary interest in the land, or merely the United States's current reversionary interest in the property. If it is the former, it would mean that § 912 and § 1248(c) were never applicable to the railway lines at issue in the suit. If instead it is the latter, then the question is whether such a disclaimer still renders § 912 and § 1248(c) wholly inapplicable to the railway lines, or whether, under the statutory scheme in § 912 and § 1248(c), the County's interest is destroyed by the Disclaimer.\nWe turn first to the question of whether the United States's Disclaimer has the effect of renouncing that the United States ever held a reversionary interest in the land at issue. As the district court observed below, as a general matter, under common law principles for trusts and estates, a disclaimer or renunciation is treated as making an interest ineffective from its inception. See Jewett v. Comm'r, 455 U.S. 305, 323, 102 S. Ct. 1082, 71 L. Ed. 2d 170 (1982) (Blackmun, dissenting) (in a trust case, stating, \"[a] disclaimer is a refusal to accept property ab initio\"); see also RESTATEMENT (FIRST) OF PROPERTY § 231 cmt. d (1936) (in the estates context, describing how, \"Normally renunciation is not manifested until a date subsequent to the time when the creating instrument becomes operative. When, however, such renunciation is manifested, the resulting ineffectiveness operates . . . as an ineffectiveness in the inception.\") However, this legal fiction does not alter whether the United States in fact retained a reversionary interest in the railway lines at issue in this suit.\nEven if, as a general matter, the mere filing of a disclaimer of interest cannot alter the underlying history of conveyances and property interests surrounding a given piece of land, the Landowners argue that this Court should defer to the specific legal assertions made by the United States in the Disclaimer filed in this suit. Here, the Disclaimer filed by the United States Attorney's Office on behalf of the United States did not merely disclaim the United States's interest in the property, but also included the legal predicate for doing so — namely, that the United States had not retained any reversionary interest or right of reentry to the land ultimately deeded to the Landowners. The Landowners argue that the district court, upon confirming the Disclaimer, should have accepted these assertions at face value, and thus found that because the United States lacked any reversionary interest in the railway lines, § 912 was inapplicable to the property at issue and accordingly the County lacked any interest in the right-of-way. This, however, is not the case. The Department of Justice's mission \"[t]o enforce the law and defend the interests of the United States,\" United States Department of Justice, Mission Statement, http://www.usdoj.gov/02 organizations/ (last visited on March 10, 2008), and the United States Attorney's duty to represent the United States in all civil matters, 28 U.S.C. § 547, does not bestow that office with the power to authoritatively determine mixed questions of law and fact, such as whether the United States originally maintained a reversionary interest over the railway lines at issue in this suit. Thus, the district court's confirmation of the Disclaimer only confirmed the United States's renunciation of its interest in the property as of the date of the Disclaimer's filing — whether the United States ever in fact held a reversionary interest in the railway lines is a matter left to the courts, assuming jurisdiction over the suit still exists.[6]See Marbury v. *831 Madison, 1 Cranch 137, 5 U.S. 137, 177, 2 L. Ed. 60 (1803) (\"It is emphatically the province and duty of the judicial department to say what the law is.\"); Alaska v. United States, 662 F. Supp. 455, 457-58 (D.Alaska 1987), affirmed by Alaska v. Ahtna, Inc., 891 F.2d 1401 (9th Cir.1989) (district court's confirmation of United States's disclaimer of interest did not strip the court of jurisdiction to review the Secretary of Interior's determination of a waterway's navigability, the sole issue in determining whether property interest originally lay with the United States or with Alaska).\nAssuming, then, that the United States did in fact retain a reversionary interest in the railway lines at issue in this suit, the remaining question is what legal effect, if any, the Disclaimer now has on the County's property interest. Here too, separation of powers concerns exist, which in this case prevent the Disclaimer from effectively repealing § 912 and § 1248(c)'s applicability to this land. As has already been discussed, § 912, § 913, and § 1248(c) were passed by Congress pursuant to the United States's reversionary interest in the railway's right-of-way. This interest can best be characterized as a \"possibility of reverter,\" which only vests upon abandonment of the railway line, at which point the interest is still subject to divestment if a public highway is established within one year's time. See Vieux v. E. Bay Reg'l Park Dist, 906 F.2d 1330, 1337 (9th Cir. 1990). Tracking the district court's reasoning, the Landowners assert that similarly, the County's interest in the property cannot vest unless three contingencies occur: 1) the United States retains its reversionary interest; 2) the railway line is abandoned; and 3) a public highway is established. Accordingly, assuming abandonment has not yet occurred, the Landowners claim that the United States was free to alter, amend, or release the nonvested property interests it held, as well as those of the County.\nThe Landowners are partially correct in their argument. As the cases cited by the Landowners to support their position reflect, when a legislature disposes of a possibility of reverter in a statute, until that interest vests into an enforceable right, the legislature is free to repeal that reversionary interest or amend the contingencies upon which the interest will vest. Independent School Dist. v. Smith, 190 Iowa 929, 181 N.W. 1, 2 (Iowa 1921);[7]Commonwealth Transp. Comm'r v. Windsor Indus., 272 Va. 64, 630 S.E.2d 514, 521 (Va.2006) (\"Thus, we are of opinion that until the possibility of having an estate in the property vested into an enforceable right, the contingencies upon which it depended and the procedures for exercising the right accrued remained subject to modification by future amendment.\"). Thus, as reflected by Congress's 1988 amendment to § 912 with § 1248(c), Congress was free to modify the disposal of the United States's reversionary interest for railway lines that had not yet been abandoned according to the terms set forth in § 912. The Landowners fail to recognize, however, that there is a distinction *832 between Congress modifying the disposal of the United States's reversionary interest and the United States Attorney's Office trying to do the same. While it is uncontested by the County that the United States Attorney's Office has been granted the authority to disclaim the United States's own interest in the property at issue, that does not give the United States Attorney's Office the authority to also effectively disclaim the County's statutorily created interest. See Royal Indemnity Co. v. United States, 313 U.S. 289, 294, 61 S. Ct. 995, 85 L. Ed. 1361 (1941) (\"Subordinate officers of the United States are without [the] power [to release or otherwise dispose of the rights and property of the United States], save only as it has been conferred upon them by Act of Congress or is to be implied from other powers so granted.\") If the United States Attorney's Office, by filing a Disclaimer of Interest, is \"free to foreclose Bayfield County's future contingent rights\" in the right-of-way as the district court maintained, this effectively amounts to the executive branch's usurpation of Congress's decision to bestow the County with a future, contingent property interest in the right-of-way, creating separation of powers concerns.\nThe Landowners further argue, however, that common law principles must be applied to the property interests in § 912 and § 1248(c), in which case the Landowners claim that by the very terms of § 912 and § 1248(c), the Disclaimer serves to extinguish the County's property interest. According to the Landowners, the Disclaimer should be treated the same as a \"release\" of the United States's possibility of reverter, which, as the Landowners maintain, at common law served to convert what was previously a determinable or qualified fee into a fee simple absolute. 28 AM.JUR.2D ESTATES § 210 (2007); HERBERT T. TIFFANY & BASIL JONES, 2 TIFFANY REAL PROP. § 314 (1939). While this Court acknowledges that at common law, a \"release\" of a possibility of reverter generally has this effect, see RESTATEMENT (FIRST) OF PROPERTY § 58 (1936), it is still not altogether clear whether the County's interest would invariably be extinguished under common law principles. First, the authorities cited by the Landowners do not clearly state whether such a release invariably destroys the executory limitation that would attach to the United States's estate upon reversion of the right-of-way. See RESTATEMENT (FIRST) OF PROPERTY § 46 cmt. n (1936) (discussing springing executory limitations, and noting that when a deed \"contains a limitation in favor of persons not ascertainable until after the end of such prior interests, the conveyor, or his successor in interest retains a reversionary interest which, at the end of the other created interests, becomes a present estate in fee simple subject to an executory limitation of the springing type.\"). Furthermore, it is not a given that a \"release\" is the proper analogy to this Disclaimer under common law principles, or whether a \"renunciation\" is the better analog. See RESTATEMENT (FIRST) OF PROPERTY §§ 231, 233 (1936) (discussing \"renunciation\" and its impact on succeeding interests). Fortunately, contrary to the Landowners' position, this Court is not required to decipher how the County's property interest and the Disclaimer fit within common law property classifications. As the Supreme Court stated in an early case involving a congressional land grant to a railroad:\nIt is always to be borne in mind, in construing a congressional grant, that the act by which it is made is a law as well as a conveyance, and that such effect must be given to it as will carry out the intent of Congress. That intent should not be defeated by applying to the grant the rules of the common law, which are properly applicable only to transfers between private parties. *833 Missouri, Kan. and Tex. Ry. v. Kansas Pac. Ry., 97 U.S.,491, 497, 24 L. Ed. 1095 (1878); Leo Sheep Co. v. United States, 570 F.2d 881, 885 (10th Cir.1977) (\"In order to determine whether there was an implied reservation of an easement of access, we look solely to the intent of Congress, as such will not be defeated by application of the rules of common law.\") (citing Missouri, Kan. and Tex. Ry., 97 U.S. at 491). This rule, specifically articulated by the Supreme Court with respect to statutorily granted property interests in the railroads, takes precedent over general language by the Supreme Court cited by the Landowners that Congress intends for common law definitions to be applied to terms not otherwise defined in a given statute. See Neder v. United States, 527 U.S. 1, 23, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (\"Congress intends to incorporate the well-settled meaning of the commonlaw terms it uses . . . `unless the statute otherwise dictates.'\") (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322, 112 S. Ct. 1344, 117 L. Ed. 2d 581 (1992)); see also Evans v. United States, 504 U.S. 255, 259-60, 112 S. Ct. 1881, 119 L. Ed. 2d 57 (1992). Indeed, courts have specifically stated, in reference to § 912, that \"[t]he precise nature of [the United States's] retained interest need not be shoe-horned into any specific category cognizable under the rules of real property law.\" Marshall v. Chicago & Northwestern Transp. Co., 31 F.3d 1028, 1032 (10th Cir.1994) (quoting Idaho v. Oregon Short Line R.R. Co., 617 F. Supp. 207, 212 (D.Idaho 1985)). Accordingly, the Landowners' claim as to what effect the Disclaimer has on the County's property interest under common law principles is immaterial. Congress, in passing § 912 and § 1248(c), provided that local governments could take claim to properly abandoned railway lines by establishing a public highway within a one-year time period. Congress has the means to further amend, modify, or repeal this property interest, but under the current terms of the statute, Congress's intent would be frustrated by permitting the Disclaimer to extinguish local governments' interest in establishing a public highway on these lands.\nAccordingly, for the reasons discussed, we hold that the United States's Disclaimer did not serve to extinguish any interest the County holds in the railway line, assuming the United States originally retained a reversionary interest in the right-of-way and formal abandonment, according to the terms in § 912, has not yet occurred.[8] In reaching this decision, we *834 are mindful of the important policy considerations raised by the parties and the amicus curiae, particularly with respect to the County and Congress's interest in preserving abandoned railway lines for conversion into trails, as opposed to the Landowners' interest in not being stripped of land they have deemed their own for over twenty years. These policy concerns, however, are more appropriately addressed with respect to the issue of when the railway lines were abandoned according to the terms of § 912, assuming that the United States did in fact retain a reversionary interest in the property. Given that the district court based its grant of summary judgment and order quieting title in the Landowners' favor based solely upon what we have found to be an erroneous finding regarding the Disclaimer's effect on the County's alleged interest in the right-of-way, we remand for consideration of whether the United States did in fact retain a reversionary interest in the land at issue and, if so, whether the railroad's right-of-way has been abandoned according to the terms of § 912 and § 1248(c).\n\nIII. Conclusion\nFor the foregoing reasons, we VACATE the district court's grant of summary judgment and declaratory judgment quieting title in the Landowners' favor, and REMAND for further proceedings consistent with this opinion.\nNOTES\n[1] The full text of 43 U.S.C. § 912 provides:\n\nWhenever public lands of the United States have been or may be granted to any railroad company for use as a right of way for its railroad or as sites for railroad structures of any kind, and use and occupancy of said lands for such purposes has ceased or shall hereafter cease, whether by forfeiture or by abandonment by said railroad company declared or decreed by a court of competent jurisdiction or by Act of Congress, then and thereupon all right, title, interest, and estate of the United States in said lands shall, except such part thereof as may be embraced in a public highway legally established within one year after the date of said decree or forfeiture or abandonment be transferred to and vested in any person, firm, or corporation, assigns, or successors in title and interest to whom or to which title of the United States may have been or may be granted, conveying or purporting to convey the whole of the legal subdivision or subdivisions traversed or occupied by such railroad or railroad structures of any kind as aforesaid, except lands within a municipality the title to which, upon forfeiture or abandonment, as herein provided, shall vest in such municipality, and this by virtue of the patent thereto and without the necessity of any other or further conveyance or assurance of any kind or nature whatsoever. . . .\n[2] This statute, 43 U.S.C. § 913, reads in full:\n\nAll railroad companies to which grants for rights of way through the public lands have been made by Congress, or their successors In interest or assigns, are hereby authorized to convey to any State, county, or municipality any portion of such right of way to be used as a public highway or street: Provided, That no such conveyance shall have the effect to diminish the right of way of such railroad company to a less width than fifty feet on each side of the center of the main tract of the railroad as now established and maintained.\n[3] The full text of this amendment, 16 U.S.C. § 1248(c), reads:\n\nCommencing upon the date of enactment of this subsection [enacted Oct. 4, 1988], any and all right, title, interest, and estate of the United States in all rights-of-way of the type described in the Act of March 8, 1922,(43 U.S.C. 912), shall remain in the United States upon the abandonment or forfeiture of such rights-of-way, or portions thereof, except to the extent that any such right-of-way, or portion thereof, is embraced within a public highway no later than one year after a determination of abandonment or forfeiture, as provided under such Act.\n[4] The Landowners offer various theories as to why this is the case, including: 1) that the ICC's 1978 Certificate and Order operated as an Act of Congress; 2) that the decision in State v. Holmgren, 111 Wis. 2d 700, 332 N.W.2d 311 (Wis.Ct.App.1983), holding that the railway lines over other properties in Bayfield County had been abandoned, similarly served as a \"decree [] by a court of competent jurisdiction\" that the property at issue in this suit had been abandoned; and 3) that the court can make its declaration of abandonment retroactive, such that this court or the district court could issue a declaration that the railway line was abandoned in 1978. See Vieux v. East Bay Regional Park Dist., 906 F.2d 1330, 1340 (9th Cir. 1990).\n[5] We do note, however, that there is some tension in the case law as to whether a district court, prior to confirming the United States's disclaimer, is to ascertain the validity of the United States's justification for issuing the disclaimer, or whether confirmation is a mere formality. Compare Donnelly v. United States, 850 F.2d 1313, 1317 (9th Cir.1988) (discussing how the district court confirmed the disclaimer as \"valid\" in light of the United States's proper conveyance of the disputed property in accord with the governing statute), with W.H. Pugh Coal Co. v. United States, 418 F. Supp. 538, 539 (E.D.Wis.1976) (\"confirmation of the disclaimer of the United States is deemed a formality and one which this court should not deny\"). There appears to be greater uniformity among the courts, however, in finding that a disclaimer should not be confirmed if the United States is acting in bad faith. See Donnelly, 850 F.2d at 1317 (also noting that the district court found the disclaimer to be made in \"good faith\"); see also W.H. Pugh Coal Co., 418 F.Supp. at 539 (after confirming disclaimer, stating, \"If this were a situation in which the state and federal authorities were attempting to whipsaw the plaintiff and to harass it so as to avoid a resolution of this dispute, I would be reluctant to grant the dismissal.\"). In a case such as this, where the United States has filed a formal Disclaimer of Interest as part of the quiet title suit (as opposed to a claim by the United States, for example, that an alleged prior conveyance of its property served as its disclaimer of interest), we find it unnecessary for the court to examine the validity of the underlying factual and legal basis offered for filing the Disclaimer, although confirmation could be withheld if the United States were found to have acted in bad faith.\n[6] We note that this is not to say that the United States could not express, as a litigant in this lawsuit, the position it has adopted in the Disclaimer. We only find that the Disclaimer does not bind this Court to adopt those legal conclusions.\n[7] The relevant language in Independent School Dist. v. Smith states:\n\nAs to the parties who might ultimately become entitled to a reversion under the provisions of the statute then existing, no right then vested. The legislature could thereafter have repealed the provision for reversion, without violating the rights of anyone. It could have again enacted different provisions pertaining to reversion, without violating the rights of anyone. In other words, no one then had a vested right in the future operation of the statute.\n[8] We observe that this holding is entirely consistent with other cases to have addressed the effect of a disclaimer of interest under 28 U.S.C. § 2409a(e). The most closely analogous case is Leisnoi, Inc. v. United States, 313 F.3d 1181 (9th Cir.2002), in which Leisnoi, an Alaska Native village corporation, sought to quiet title against the United States with respect to land it had obtained from the United States under the Alaska Native Claims Settlement Act. Id. at 1182-83. A third-party, Stratman, who had conducted ranching operations on the land when it was federally owned, moved to intervene, claiming that the lands should be returned to the federal government because Lesnoi did not qualify as a Native Village under the Act. Id. The United States issued a disclaimer of title, which the district court confirmed, then dismissing Stratman's motion to intervene as moot. Id. at 1184. The Ninth Circuit affirmed the dismissal of the motion to intervene. Id. at 1184-85. Contrary to the Landowners' claim that Stratman and the County are similarly situated in both cases, a clear distinction exists. Stratman had no interest in the disputed property — his sole claim was that title should remain with the United States. Id. at 1185. In contrast, the County has a statutorily created interest in establishing a public highway on the railway lines within one year of abandonment according to the terms in § 912. This distinction allows for the difference in outcome between the dismissal in Leisnoi and the continued vitality of the County's claim at this stage of the proceedings.\n\n", "ocr": false, "opinion_id": 1200872 } ]

[ "2006 OK 75", "145 P.3d 1088" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 5440, "opinion_text": "\n145 P.3d 1088 (2006)\n2006 OK 75\nSTATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant,\nv.\nTony Ray BURNS, Respondent.\nOBAD No. 1679. SCBD No. 5144.\nSupreme Court of Oklahoma.\nOctober 10, 2006.\nDan Murdock, General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.\nC.W. Bill Morgan, Anadarko, OK, for Respondent.\nEDMONDSON, J.\n¶ 1 In this proceeding against a lawyer for imposition of professional discipline we are asked to decide whether six months suspension from the practice of law together with two years supervised probation and assessment of costs is the appropriate disciplinary sanction for this respondent's professional misconduct. We find that it is and we adopt the recommendation of the Professional Responsibility Tribunal, (PRT).\n\nI.\n¶ 2 On December 16, 2005, the Oklahoma Bar Association, (complainant), filed a complaint pursuant to Rule 6 of the Rules Governing Disciplinary Proceedings, (RGDP), 5 O.S.2001, ch. 1, app. 3-A, against Tony Ray Burns, (respondent), a licensed attorney, alleging violations of the RGDP and the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S.2001, ch. 1, app. 3-A, in two counts setting forth multiple violations of the criminal law of Oklahoma prohibiting driving a motor vehicle while intoxicated or under the influence of alcohol. The complaint alleged these criminal acts demonstrate respondent's *1090 indifference to legal obligations, reflect adversely on the Bar, constitute a violation of the mandatory provisions of Rule 8.4, (a) and (b), ORPC, and Rule 1.3, RGDP, and warrant the imposition of professional discipline.\n¶ 3 On January 24, 2006, the PRT held a hearing to consider the charges. It heard the testimony of Mr. Burns and received evidence by exhibits. It also admitted into evidence the parties' stipulations of fact and agreed conclusions of law, and their agreed recommendation that public censure, two years probation under conditions and payment of costs would be appropriate discipline. Respondent stipulated that his conduct did violate the Rules as alleged, admitted that he had abused alcohol and was an alcoholic, and asked that certain mitigating circumstances be taken into account in the determination of his discipline.\n¶ 4 Respondent stipulated to the following facts alleged by complainant in Count I of the complaint. On January 17, 2005, he was arrested in Caddo County for the crime of driving a motor vehicle while under the influence of alcohol, and was charged with a felony; and on February 4, 2005, he again was arrested in Caddo County for the crimes of driving a motor vehicle while under the influence of alcohol, charged as a felony, and transporting an open container of liquor. On February 8, 2005, a newspaper article was published which described his arrest and previous similar violations, and was seen in the Office of the General Counsel of the Bar Association.\n¶ 5 Complainant then began an investigation and, on February 14, 2005, sent a letter to respondent's counsel requesting the facts and circumstances surrounding the reported felony arrest. Counsel responded on March 1, 2005, stating his client had contacted Lawyers Helping Lawyers and entered Valley Hope Treatment Facility on February 28, 2005. On April 7, 2005, counsel sent complainant a letter from Valley Hope Treatment Services which confirmed that respondent had successfully completed a 28-day treatment program and had been attending Alcoholics Anonymous meetings twice a week.\n¶ 6 On June 9, 2005, counsel notified complainant that respondent had waived his preliminary hearing for the two pending charges of driving a motor vehicle while under the influence of alcohol, as second and subsequent offenses, in the District Court of Caddo County, and would be entering pleas of guilty. On July 20, 2005, respondent entered blind pleas to two felony charges of driving a motor vehicle while under the influence of alcohol, second and subsequent offense, in cases numbered CF-2005-17 and CF-2005-36. In CF-2005-17, he was sentenced to a term of three years in the Oklahoma Department of Corrections, all suspended, to run concurrently with the sentence in CF-2005-36 and ordered to pay a fine in the amount of $1,000.00 and costs. In CF-2005-36, he received a five-year deferred sentence to run concurrently with CF-2005-17 and fined $1,000.00 plus costs.\n¶ 7 Respondent was also ordered by the district court to comply with certain rules and conditions of probation which required him to complete inpatient treatment, attend Aftercare every two weeks for twelve months, attend AA meetings at least twice weekly, have a monthly urinalysis, voluntarily give up his driver's license for one year, meet with an AA sponsor for at least one hour a week, and execute a Lawyers Helping Lawyers contract.\n¶ 8 In Count II, respondent stipulated to the allegations that he had previously been charged with alcohol related offenses and admitted the following facts concerning those incidents:\n1) In 1997, in Grady County, respondent was charged with driving while impaired, a misdemeanor and received a three-month deferred sentence and a $100.00 fine plus court costs;\n2) On August 17, 1999, in Caddo County, respondent was arrested for driving under the influence of intoxicating liquor, a misdemeanor, to which he entered a plea of nolo contendere, receiving a one-year deferred sentence with costs and an order to continue counseling once a week during the probation term;\n3) On March 3, 2001, in Caddo County, respondent was arrested for being in actual *1091 physical control of a motor vehicle while under the influence of intoxicants;\n4) On October 31, 2001, in Caddo County, respondent was arrested for three counts of alcohol-related traffic violations;\n5) On January 16, 2002, in Caddo County, respondent entered pleas of nolo contendere to misdemeanor charges of driving under the influence, failure to yield while turning left and driving without a valid drivers license, all in case no. CM-2001-876, for which he was sentenced to a one-year suspended sentence, ordered to pay a fine of $500.00 plus costs and required to enter a 28-day inpatient treatment program; and\n6) On January 25, 2002, in Caddo County, respondent entered pleas of nolo contendere in case no. CM-2001-161 and was given a one-year deferred sentence, to run concurrently with CM-2001-876, fined $500.00 plus costs and required to enter a 28-day inpatient treatment program.\n¶ 9 Respondent testified he joined the Oklahoma Bar Association in 1974 and had served as the District Attorney for Caddo, Grady, Stephens and Jefferson Counties for many years. At the time the complaint was filed, he was practicing law with an associate in Caddo County. He related that he began drinking excessively in 1987 when he was going through a difficult divorce, but did not recognize his drinking was a problem until 1990. He then began going to Alcoholics Anonymous meetings, after which he remained sober for approximately 18 months. Respondent testified to a history of alcoholism in his family. He stated he had twice been in treatment in Tucson, Arizona, leading to a period of sobriety of more than one year, and had twice been in treatment at Valley Hope.\n¶ 10 Respondent related his pride in being an attorney and the importance of his membership in the Bar. He stated that he was embarrassed by his actions, disappointed in himself, sorry for what he had done, and sick and tired of the misery he has put his family and friends and the Bar Association through. Respondent testified that his drinking had caused great conflict in his family; that while they were now on good terms, after his arrest his son had been very angry and hostile toward him and did not speak to him for six months and had not allowed him to see his grandchildren for a year. Because of his success in recovery, respondent said he is now able to be with his grandchildren.\n¶ 11 Respondent testified he believed he has gained an understanding of his problems through his treatment programs and counseling, and has changed his lifestyle and perspective on life so that he now recognizes that sobriety must be first in importance in his life, which is where he now places it. He stated he recognized that the practice of law had been stressful for him and that he takes his clients' problems personally; but by attending the meetings and receiving counseling, he has learned to get his thoughts off his clients and their stressful legal problems and concentrate on his sobriety. Exhibits were admitted which showed respondent is complying with all requirements of his treatment programs, his efforts seem quite sincere, he is making above average progress and is stable in his recovery. Respondent also testified that he is current in his MCLE requirements. Respondent stated he had tried to get admitted to Valley Hope following the January 17, 2005, DUI arrest, but the insurance company would not approve his admission prior to his arrest on February 4, 2005, and he was forced to wait for a later admission date.\n¶ 12 Loraine Farabow, Assistant General Counsel for the Bar Association, testified that the Bar knew that diligent efforts were being made to get respondent into a treatment facility before it mailed its letter to him on February 14, 2005. When the Bar learned of respondent's January 17 arrest in the February 8 newspaper, Farabow learned from respondent's counsel that they were working hard to get respondent admitted but there were problems with insurance which had delayed approval.\n¶ 13 Dan Murdock, General Counsel of the Bar, advised the panel that no clients were neglected or harmed by respondent's misconduct, nor were there any previous complaints against him which had resulted in an investigation. He also stated that while respondent's son is in the same office where respondent *1092 was charged and where respondent was formerly the district attorney, the pleas which respondent entered to the charges were blind pleas; i.e., with no recommendation from the district attorney's office.\n¶ 14 Respondent stipulated that his conduct violated the mandatory provisions of Rule 1.3 of the Rules Governing Disciplinary Proceedings and Rule 8.4(a) and (b) of the Oklahoma Rules of Professional Conduct and warrants the imposition of professional discipline. In their Agreed Conclusions of Law, the parties recognized that respondent's numerous and repeated violations of Oklahoma's criminal laws prohibiting driving a motor vehicle while intoxicated or under the influence of alcohol demonstrate a disregard for the law and an indifference to legal obligations which adversely reflect on the Bar Association.\n¶ 15 Following the hearing, the trial panel issued its report which found the Oklahoma Bar Association had clearly and convincingly established the facts necessary to support the charges against respondent. The panel found respondent's misconduct resulted from alcoholism and, by his own admission, from an intentional disregard for the law pertaining to driving a motor vehicle while under the influence of alcohol as far back as 1997. The panel considered the mitigating circumstances put forth by the parties' stipulations, including respondent's expressions of remorse, his full cooperation with the Bar Association, his acceptance of responsibility for his conduct, and his commitment to continuing treatment. The panel recognized respondent's misconduct was not shown to be directly related to the practice of law or an attorney-client relationship, and that until the arrests his record at the bar had been unblemished. The panel recognized that respondent had abstained from alcohol since February 27, 2005, and believed that he is no longer a risk to the public due to alcoholism so long as he remains in recovery.\n¶ 16 The panel stated its concern that respondent did not seek earlier treatment for alcoholism. It also noted that despite the numerous alcohol-related charges, the respondent had not been incarcerated. The panel members expressed their admiration for respondent's admission of his alcoholism and his apparent willingness and sincere determination to change his life, but noted that compassion for the offending lawyer \"must be tempered where public protection and deterrence of openly scandalous behavior and repeated indifference toward the law are concerned.\" Accordingly, the panel found the discipline agreed to by the parties was not appropriate under the circumstances and unanimously recommended that respondent be suspended from the practice of law for six months, have a supervised probationary period of two years with certain conditions, and pay the costs incurred in his case.\n\nII.\n¶ 17 This Court has exclusive and original jurisdiction of bar disciplinary proceedings. RGDP 1.1. In the exercise of our constitutionally invested and nondelegable power to regulate both the practice of law and legal practitioners, we are not bound by the admissions or stipulations of the parties nor by the findings or recommendations of the trial authority, as our review is de novo. State ex rel. Oklahoma Bar Association. v. Donnelly, 1992 OK 164, 848 P.2d 543, 545-6. It is our ultimate responsibility to examine the record and assess the credibility and weight of the evidence in order to determine whether it clearly and convincingly establishes professional misconduct by respondent and, if so, what the appropriate discipline, if any, should be. Id.\n¶ 18 Accordingly, since our review may not be accomplished unless the panel submits a complete record sufficient for our thorough and independent examination of all essential facts and relevant issues, the issue of the sufficiency of the record must be our first determination. State ex rel. Oklahoma Bar Association. v. Giger, 2001 OK 96, 37 P.3d 856, 860-61, 37 P.3d 856. We find the record here — which consists of the parties' stipulations, a transcript of the hearing before the trial panel, exhibits offered by the parties and admitted into evidence at that hearing, and the report of the trial panel-is adequate for our de novo review.\n*1093 ¶ 19 Respondent admits by stipulation to those facts set out in the two counts of the complaint in support of the charges of professional misconduct brought against him, and we find those stipulations were made voluntarily and knowingly and are consistent with other evidence in the record. We approve and adopt the parties' stipulations of fact and we find by clear and convincing evidence that respondent's conduct did violate the provisions of Rule 1.3, RGDP, and Rule 8.4(a) and (b), ORPC.\nRule 1.3, RGDP, provides:\nThe commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action, whether or not the act is a felony or misdemeanor, or a crime at all. Conviction in a criminal proceeding is not a condition precedent to the imposition of discipline.\nRule 8.4 (a) and (b), ORPC, provides:\nIt is professional misconduct for a lawyer to:\n(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;\n(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.\n\nIII\n¶ 20 Complainant joins with respondent in opposing the panel's recommendation for discipline, and the parties contend generally that a six-month suspension is not warranted under the facts of this case. They argue that suspension will not serve the aims of professional discipline, that it is punishment of respondent which will not encourage others in similar circumstances to seek treatment and will be detrimental to his recovery.\n¶ 21 They contend the appropriateness of their stipulated discipline of censure and probation for two years is particularly compelled by consideration of the agreed mitigating circumstances, especially respondent's remorsefulness, his acceptance of responsibility for his actions and his willing participation in treatment programs with AA and Lawyers Helping Lawyers which has led to his abstinence from alcohol for more than one year. Also, they point to his previously unblemished bar record and the absence of an allegation of harm suffered by the public or a client by reason of his drinking or actions.\n¶ 22 We have taken these positive factors into account in our assessment of discipline. We are certain they will serve respondent well in his struggle to reach his goal of life-long sobriety; however, they do not persuade us that the agreed discipline is appropriate here.\n¶ 23 The record shows that respondent repeatedly got drunk and then chose to drive a vehicle in violation of the law of Oklahoma. Such acts support the conclusion of law, agreed to by respondent, that he acted in disrespect of the law and was indifferent to his legal obligations. As respondent recognized in his admissions, his actions warrant professional discipline because he is guilty of serious violations of the criminal law which have brought disrepute upon the judiciary and the legal profession, and which reflect adversely on his fitness as a lawyer.\n¶ 24 This disciplinary proceeding was brought to maintain the public's confidence in the bench and bar by disciplining a lawyer who has harmed the public image of the profession by criminal misconduct outside the setting of his professional practice. The counts of the complaint brought against respondent do not concern questions regarding the quality of his professional practice or his conduct within the attorney-client relationship. His professional competence and honesty are not placed in question here and are not germane to issues concerning the quantum of appropriate professional discipline. This Court has recognized that discipline may be imposed for occurrences outside the professional setting and attorney-client relationship. See State ex rel. Oklahoma Bar Association v. Garrett, 2005 OK 91, 127 P.3d 600; State ex rel. Oklahoma Bar Association v. Foster, 2000 OK 4, 995 P.2d 1138; State ex *1094 rel. Oklahoma Bar Association v. Rogers, 2006 OK 54, 142 P.3d 428 (2006).\n¶ 25 The purpose of disciplinary proceedings is not to inflict punishment on the offending lawyer but to safeguard the interests of the of the public, the judiciary and the legal profession. Donnelly, 848 P.2d at 546; State ex rel. Oklahoma Bar Association v. Carpenter, 1993 OK 86, 863 P.2d 1123, 1129. While one of the responsibilities of this Court in the discipline process is to inquire into the lawyer's continued fitness to practice law, other responsibilities include purification of the bar, instillation of confidence in the profession by the public and deterrence of commission of similar acts in the future by the offending lawyer and other members of the bar. Id. at 1130.\n¶ 26 Additionally, our responsibility requires us to ensure that the discipline is consistent with discipline imposed on other attorneys. While discipline should be administered fairly and evenhandedly, the terms will vary since each situation must be decided case by case, each involving different offenses and different mitigating circumstances. Id. Because of these differences, the range of discipline imposed in alcohol-related disciplinary matters is quite wide. See, State ex rel. Oklahoma Bar Association v. Beasley, 2006 OK 49, ¶¶ 37-43, 142 P.3d 410.\n¶ 27 For instance, the parties contend we should follow State ex rel. Oklahoma Bar Association v. Garrett, 2005 OK 91, 127 P.3d 600, where we found public censure and one year of probation was the appropriate discipline when an attorney's alcohol addiction and abuse led to his arrest for two counts of felonious sexual battery outside the attorney-client relationship. After settlement with the victims, the attorney pled guilty to misdemeanor sexual battery. We considered the attorney's post-conviction behavior which showed he had taken full responsibility for his actions, he recognized the discredit he had brought on the legal profession in Oklahoma and he made a serious commitment to permanently maintain his sobriety through involvement in AA and LHL programs.\n¶ 28 More on point and persuasive, however, is our recent decision in State ex rel. Oklahoma Bar Association v. Rogers, 2006 OK 54, 142 P.3d 428, where we suspended an attorney for two years and one day for professional misconduct arising from a pattern of repeated alcohol-related vehicle felony and misdemeanor offenses spanning over a decade. Speaking of the Court's charge to safeguard the public interest and protect the judicial system, we found it clear that the attorney's conduct had brought the bench and bar into disrepute and, considering the numerous violations and their apparent escalation of severity, we found suspension to be the appropriate discipline. Noting that the attorney's continued sobriety would be the key to his rehabilitation and reinstatement, we found it was his responsibility to participate in AA or LHL programs and we refrained from ordering him to do so.\n¶ 29 In Rogers, the Court also stressed that the \"fitness to practice law encompasses more than an absence of detriment to specific clients,\" and we recognized that a \"`pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.' State ex rel. Oklahoma Bar Ass'n v. Doris, 1999 OK 94, n. 17, 991 P.2d 1015, 1026 (quoting Rule 8.4, Comment ORPC).\" Rogers, 142 P.3d at 433.\n¶ 30 The first rule governing the admission of an individual to the practice of law in Oklahoma requires that he or she \"shall have good moral character, due respect for the law, and fitness to practice law.\" Rules Governing Admission to Practice, 5 O.S. ch. 1, app. 5, Rule 1, Section 1. As this Court explained in the first syllabus in In re Bond, 1934 OK 228, 31 P.2d 921, this requirement is absolute and continues throughout an attorney's lifetime:\n1. \"Membership in the bar is a privilege burdened with conditions. A fair private and professional character is one of them. Compliance with that condition is essential at the moment of admission; but it is equally essential afterwards (citations omitted). Whenever the condition is broken, the privilege is lost\" (citation omitted).\n*1095 ¶ 31 The Supreme Court of South Dakota set forth the following admonishment in In re Discipline of Parker, 269 N.W.2d 779, 780, which we find helpful in these circumstances:\nAs officers of this court, attorneys are charged with the obedience of the laws of this state and the United States. The intentional violation of those laws by those who are specially trained and knowledgeable of them is particularly unwarranted and constitutes a breach of the attorney's oath of office. Because of his position in society, even minor violations of law by a lawyer tend to lessen public confidence in the legal profession. Obedience of the law exemplifies respect for the law. To lawyers especially, respect for the law must be more than a platitude.\n¶ 32 This Court stressed in Giger the importance of the purpose of discipline, explaining that \"[t]he public must have confidence that the legal profession, which is self-regulated, will not look the other way when its members break the law. Equally important, members of the Bar must be reminded that substance abuse of any kind is incompatible with the practice of law.\" State ex rel. Oklahoma Bar Association v. Giger, 37 P.3d at 864.\n¶ 33 We have consistently expressed our strong belief that substance abuse is incompatible with the fitness of an individual to practice law. See generally Donnelly, 848 P2d 543; Carpenter, 863 P.2d 1123; State ex rel. Oklahoma Bar Association v. Adams, 1995 OK 17, 895 P.2d 701; Doris, 991 P.2d 1015; Giger, 37 P.3d 856; State ex rel. Oklahoma Bar Association v. Beasley, 142 P.3d 410; Rogers, 142 P.3d 428.\n¶ 34 Respondent's testimony and evidence reveal that he has struggled many years with alcoholism. He began attending AA meetings in 1990 and he was hospitalized twice before 2005. His criminal history of driving a motor vehicle while intoxicated spans nearly a decade. We note the determination he has shown in his recent effort to bring his problems under control and reach his goal of sobriety. We agree with the panel's conclusion, however, that under the circumstances of this case respondent should be suspended from the practice of law for six months and placed under supervised probation for two years and we adopt that recommendation. He is further ordered to pay the costs incurred in this proceeding in the amount of $415.72 within ninety days of the date this opinion becomes final.\n¶ 35 We therefore suspend respondent from the practice of law for six months and place him on supervised probation for two years with the following conditions under the auspices of a member of the Lawyers Helping Lawyers Committee. Respondent must (a) abide by all existing conditions for probation imposed by the District Court of Caddo County, Oklahoma; (b) abide by the Rules of Professional Conduct; (c) sign a contract with Lawyers Helping Lawyers and be supervised by a designated Committee member for the entire period of his probation; (d) participate in the Alcoholics Anonymous program or in one of another organization recognized by his contract with Lawyers Helping Lawyers; (e) report his attendance and status to his designated Committee member; and (f) refrain from the use or possession of intoxicants.\n¶ 36 During his two-year period of supervised probation, the designated Committee member of Lawyers Helping Lawyers is required to immediately notify the General Counsel of the Oklahoma Bar Association of any failure by respondent to comply with the terms of his probation. Upon receipt of this information from this or any other source, if the General Counsel concludes that respondent has violated any of the terms of his probation, the Bar may file an application to proceed for additional discipline. The panel will then determine whether a violation has occurred and, if so, it shall forward a sufficient record of the proceedings to this Court for imposition of appropriate discipline.\n¶ 37 RESPONDENT IS SUSPENDED FROM THE PRACTICE OF LAW FOR SIX MONTHS AND PLACED UNDER SUPERVISED PROBATION FOR TWO YEARS, BOTH TO BEGIN ON THE DAY THIS OPINION IS FINAL; RESPONDENT IS ORDERED TO PAY THE COSTS OF THIS PROCEEDING IN THE *1096 AMOUNT OF $415.72 WITHIN NINETY DAYS AFTER THIS OPINION IS FINAL.\n¶ 38 WATT, C.J., OPALA, EDMONDSON, COLBERT, JJ.-Concur.\n¶ 39 KAUGER, J.-Concurs specially.\n¶ 40 LAVENDER, HARGRAVE, JJ.-Concur in part, dissent in part.\n¶ 41 TAYLOR, J.-Dissents and joined by LAVENDER, J.\nI respectfully dissent. I would impose similar discipline as we recently did in Oklahoma Bar Association v. Rogers, 2006 OK 54, 142 P.3d 428, by suspending this respondent for two years and a day.\n¶ 42 WINCHESTER, V.C.J.,-Disqualified.\nKAUGER, J., concurring specially.\n¶ 1 I agree that discipline is necessary and that the discipline imposed is appropriate. However, this proceeding should have been brought under Rule 10, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A.[1] As early as February 14, 2005, the Oklahoma Bar Association arguably had notice that the respondent had an alcohol problem, and certainly by March 1, 2005, when it was notified that the respondent entered Valley Hope Treatment Facility.\n¶ 2 This cause represents yet another in a string of recent bar cases in which the Oklahoma Bar Association has failed to invoke the provisions of Rule 10. See, State ex rel. Oklahoma Bar Association v. Beasley, 2006 OK 49, 142 P.3d 410; State ex rel. Oklahoma Bar Association v. Rogers, 2006 OK 54, 142 P.3d 428; State ex rel. Oklahoma Bar Association v. Chapman, 2005 OK 16, 114 P.3d 414; State ex rel. Oklahoma Bar Association v. Hummel, 2004 OK 30, 89 P.3d 1105. Instead, the Oklahoma Bar Association in this cause, as well as others, has chosen to ignore the proper procedures, then to join with the respondents in presenting recommendations of discipline which are less severe than the discipline recommended by the trial panel — apparently belatedly to utilize the spirit of the Rule.\nNOTES\n[1] Rule 10, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A governs suspension for personal incapacity to practice law.\n\n", "ocr": false, "opinion_id": 2624060 }, { "author_str": "Edmondson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nEDMONDSON, J.\n1 In this proceeding against a lawyer for imposition of professional discipline we are asked to decide whether six months suspension from the practice of law together with two years supervised probation and assessment of costs is the appropriate disciplinary sanction for this respondent's professional misconduct. We find that it is and we adopt the recommendation of the Professional Responsibility Tribunal, (PRT).\nI.\nT2 On December 16, 2005, the Oklahoma Bar Association, (complainant), filed a complaint pursuant to Rule 6 of the Rules Governing Disciplinary Proceedings, (RGDP), 5 ©.S$.2001, ch. 1, app. 3-A, against Tony Ray Burns, (respondent), a licensed attorney, alleging violations of the RGDP and the Oklahoma Rules of Professional Conduct (ORPC), 5 0.9$.2001, ch. 1, app. 8-A, in two counts setting forth multiple violations of the erimi-nal law of Oklahoma prohibiting driving a motor vehicle while intoxicated or under the influence of alcohol. The complaint alleged these criminal acts demonstrate respondent's *1090indifference to legal obligations, reflect adversely on the Bar, constitute a violation of the mandatory provisions of Rule 8.4, (a) and (b), ORPC, and Rule 1.3, RGDP, and warrant the imposition of professional discipline.\n13 On January 24, 2006, the PRT held a hearing to consider the charges. It heard the testimony of Mr. Burns and received evidence by exhibits. It also admitted into evidence the parties' stipulations of fact and agreed conclusions of law, and their agreed recommendation that public censure, two years probation under conditions and payment of costs would be appropriate discipline. Respondent stipulated that his conduct did violate the Rules as alleged, admitted that he had abused alcohol and was an alcoholic, and asked that certain mitigating cireumstances be taken into account in the determination of his discipline.\n4 Respondent stipulated to the following facts alleged by complainant in Count I of the complaint. On January 17, 2005, he was arrested in Caddo County for the crime of driving a motor vehicle while under the influence of alcohol, and was charged with a felony; and on February 4, 2005, he again was arrested in Caddo County for the crimes of driving a motor vehicle while under the influence of alcohol, charged as a felony, and transporting an open container of liquor. On February 8, 2005, a newspaper article was published which described his arrest and previous similar violations, and was seen in the Office of the General Counsel of the Bar Association.\n15 Complainant then began an investigation and, on February 14, 2005, sent a letter to respondent's counsel requesting the facts and cireumstances surrounding the reported felony arrest. Counsel responded on March 1, 2005, stating his client had contacted Lawyers Helping Lawyers and entered Valley Hope Treatment Facility on February 28, 2005. On April 7, 2005, counsel sent complainant a letter from Valley Hope Treatment Services which confirmed that respondent had successfully completed a 28-day treatment program and had been attending Alcoholics Anonymous meetings twice a week.\nT6 On June 9, 2005, counsel notified complainant that respondent had waived his preliminary hearing for the two pending charges of driving a motor vehicle while under the influence of alcohol, as second and subsequent offenses, in the District Court of Cad-do County, and would be entering pleas of guilty. On July 20, 2005, respondent entered blind pleas to two felony charges of driving a motor vehicle while under the influence of alcohol, second and subsequent offense, in cases numbered CF-2005-17 and CF-2005-36. In CF-2005-17, he was sentenced to a term of three years in the Oklahoma Department of Corrections, all suspended, to run concurrently with the sentence in CF-2005-36 and ordered to pay a fine in the amount of $1,000.00 and costs. In CF-2005-36, he received a five-year deferred sentence to run concurrently with CF-2005-17 and fined $1,000.00 plus costs.\nT7 Respondent was also ordered by the district court to comply with certain rules and conditions of probation which required him to complete inpatient treatment, attend Aftercare every two weeks for twelve months, attend AA meetings at least twice weekly, have a monthly urinalysis, voluntarily give up his driver's license for one year, meet with an AA sponsor for at least one hour a week, and execute a Lawyers Helping Lawyers contract.\nT8 In Count II, respondent stipulated to the allegations that he had previously been charged with alcohol related offenses and admitted the following facts concerning those incidents:\n1) In 1997, in Grady County, respondent was charged with driving while impaired, a misdemeanor and received a three-month deferred sentence and a $100.00 fine plus court costs;\n2) On August 17, 1999, in Caddo County, respondent was arrested for driving under the influence of intoxicating liquor, a misdemeanor, to which he entered a plea of molo contendere, receiving a one-year deferred sentence with costs and an order to continue counseling once a week during the probation term;\n3) On March 3, 2001, in Caddo County, respondent was arrested for being in actu*1091al physical control of a motor vehicle while under the influence of intoxicants;\n4) On October 31, 2001, in Caddo County, respondent was arrested for three counts of alcohol-related traffic violations;\n5) On January 16, 2002, in Caddo County, respondent entered pleas of nolo contende-re to misdemeanor charges of driving under the influence, failure to yield while turning left and driving without a valid drivers license, all in case no. CM-2001-876, for which he was sentenced to a one-year suspended sentence, ordered to pay a fine of $500.00 plus costs and required to enter a 28-day inpatient treatment program; and\n6) On January 25, 2002, in Caddo County, respondent entered pleas of nolo contende-re in case no. CM-2001-161 and was given a one-year deferred sentence, to run concurrently with CM-2001-876, fined $500.00 plus costs and required to enter a 28-day inpatient treatment program.\nT9 Respondent testified he joined the Oklahoma Bar Association in 1974 and had served as the District Attorney for Caddo, Grady, Stephens and Jefferson Counties for many years. At the time the complaint was filed, he was practicing law with an associate in Caddo County. He related that he began drinking excessively in 1987 when he was going through a difficult divorce, but did not recognize his drinking was a problem until 1990. He then began going to Alcoholics Anonymous meetings, after which he remained sober for approximately 18 months. Respondent testified to a history of aleoholism in his family. He stated he had twice been in treatment in Tucson, Arizona, leading to a period of sobriety of more than one year, and had twice been in treatment at Valley Hope.\n{10 Respondent related his pride in being an attorney and the importance of his membership in the Bar. He stated that he was embarrassed by his actions, disappointed in himself, sorry for what he had done, and sick and tired of the misery he has put his family and friends and the Bar Association through. Respondent testified that his drinking had caused great conflict in his family; that while they were now on good terms, after his arrest his son had been very angry and hostile toward him and did not speak to him for six months and had not allowed him to see his grandchildren for a year. Because of his success in recovery, respondent said he is now able to be with his grandchildren.\nT11 Respondent testified he believed he has gained an understanding of his problems through his treatment programs and counseling, and has changed his lifestyle and perspective on life so that he now recognizes that sobriety must be first in importance in his life, which is where he now places it. He stated he recognized that the practice of law had been stressful for him and that he takes his clients' problems personally; but by attending the meetings and receiving counseling, he has learned to get his thoughts off his clients and their stressful legal problems and concentrate on his sobriety. Exhibits were admitted which showed respondent is complying with all requirements of his treatment programs, his efforts seem quite sincere, he is making above average progress and is stable in his recovery. Respondent also testified that he is current in his MCLE requirements. Respondent stated he had tried to get admitted to Valley Hope following the January 17, 2005, DUI arrest, but the insurance company would not approve his admission prior to his arrest on February 4, 2005, and he was forced to wait for a later admission date.\n{12 Loraine Farabow, Assistant General Counsel for the Bar Association, testified that the Bar knew that diligent efforts were being made to get respondent into a treatment facility before it mailed its letter to him on February 14, 2005. When the Bar learned of respondent's January 17 arrest in the February 8 newspaper, Farabow learned from respondent's counsel that they were working hard to get respondent admitted but there were problems with insurance which had delayed approval.\nT 13 Dan Murdock, General Counsel of the Bar, advised the panel that no clients were neglected or harmed by respondent's misconduct, nor were there any previous complaints against him which had resulted in an investigation. He also stated that while respondent's son is in the same office where respon*1092dent was charged and where respondent was formerly the district attorney, the pleas which respondent entered to the charges were blind pleas; i.e., with no recommendation from the district attorney's office.\nT14 Respondent stipulated that his conduct violated the mandatory provisions of Rule 1.8 of the Rules Governing Disciplinary Proceedings and Rule and (b) of the Oklahoma Rules of Professional Conduct and warrants the imposition of professional discipline. In their Agreed Conclusions of Law, the parties recognized that respondent's numerous and repeated violations of Oklahoma's criminal laws prohibiting driving a motor vehicle while intoxicated or under the influence of alcohol demonstrate a disregard for the law and an indifference to legal obligations which adversely reflect on the Bar Association.\n1 15 Following the hearing, the trial panel issued its report which found the Oklahoma Bar Association had clearly and convincingly established the facts necessary to support the charges against respondent. The panel found respondent's misconduct resulted from alcoholism and, by his own admission, from an intentional disregard for the law pertaining to driving a motor vehicle while under the influence of alcohol as far back as 1997. The panel considered the mitigating cireum-stances put forth by the parties' stipulations, including respondent's expressions of remorse, his full cooperation with the Bar Association, his acceptance of responsibility for his conduct, and his commitment to continuing treatment. The panel recognized respondent's misconduct was not shown to be directly related to the practice of law or an attorney-client relationship, and that until the arrests his record at the bar had been unblemished. The panel recognized that respondent had abstained from alcohol since February 27, 2005, and believed that he is no longer a risk to the public due to alcoholism so long as he remains in recovery.\n116 The panel stated its concern that respondent did not seek earlier treatment for alcoholism. It also noted that despite the numerous alcohol-related charges, the respondent had not been incarcerated. The panel members expressed their admiration for respondent's admission of his alcoholism and his apparent willingness and sincere determination to change his life, but noted that compassion for the offending lawyer \"must be tempered where public protection and deterrence of openly scandalous behavior and repeated indifference toward the law are concerned.\" Accordingly, the panel found the discipline agreed to by the parties was not appropriate under the cireumstances and unanimously recommended that respondent be suspended from the practice of law for six months, have a supervised probationary period of two years with certain conditions, and pay the costs incurred in his case.\nIL.\n117 This Court has exclusive and original jurisdiction of bar disciplinary proceedings. RGDP 1.1. In the exercise of our constitutionally invested and nondelegable power to regulate both the practice of law and legal practitioners, we are not bound by the admissions or stipulations of the parties nor by the findings or recommendations of the trial authority, as our review is de movo. State ex rel. Oklahoma Bar Association. v. Donnelly, 1992 OK 164, 848 P.2d 548, 545-6. It is our ultimate responsibility to examine the record and assess the credibility and weight of the evidence in order to determine whether it clearly and convincingly establishes professional misconduct by respondent and, if so, what the appropriate discipline, if any, should be. Id.\n118 Accordingly, since our review may not be accomplished unless the panel submits a complete record sufficient for our thorough and independent examination of all essential facts and relevant issues, the issue of the sufficiency of the record must be our first determination. State ex rel. Oklahoma Bar Association. v. Giger, 2001 OK 96, 37 P.3d 856, 860-61, 37 P.3d 856. We find the record here-which consists of the parties' stipulations, a transcript of the hearing before the trial panel, exhibits offered by the parties and admitted into evidence at that hearing, and the report of the trial panel-is adequate for our de novo review.\n*1093(119 Respondent admits by stipulation to those facts set out in the two counts of the complaint in support of the charges of professional misconduct brought against him, and we find those stipulations were made voluntarily and knowingly and are consistent with other evidence in the record. We approve and adopt the parties' stipulations of fact and we find by clear and convincing evidence that respondent's conduct did violate the provisions of Rule 1.3, RGDP, and Rule 8.4(a) and (b), ORPC.\nRule 1.3, RGDP, provides:\nThe commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action, whether or not the act is a felony or misdemeanor, or a crime at all. Conviction in a criminal proceeding is not a condition precedent to the imposition of discipline.\nRule 84 (a) and (b), ORPC, provides:\nIt is professional misconduct for a lawyer to:\n(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;\n(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.\nIII\n120 Complainant joins with respondent in opposing the panel's recommendation for discipline, and the parties contend generally that a six-month suspension is not warranted under the facts of this case. They argue that suspension will not serve the aims of professional discipline, that it is punishment of respondent which will not encourage others in similar cireumstances to seek treatment and will be detrimental to his recovery.\n{21 They contend the appropriateness of their stipulated discipline of censure and probation for two years is particularly compelled by consideration of the agreed mitigating cireumstances, especially respondent's re-morsefulness, his acceptance of responsibility for his actions and his willing participation in treatment programs with AA and Lawyers Helping Lawyers which has led to his absti-nenee from alcohol for more than one year. Also, they point to his previously unblemished bar record and the absence of an allegation of harm suffered by the public or a client by reason of his drinking or actions.\n¶22 We have taken these positive factors into account in our assessment of discipline. We are certain they will serve respondent well in his struggle to reach his goal of lifelong sobriety; however, they do not persuade us that the agreed discipline is appropriate here.\nT23 The record shows that respondent repeatedly got drunk and then chose to drive a vehicle in violation of the law of Oklahoma. Such acts support the conclusion of law, agreed to by respondent, that he acted in disrespect of the law and was indifferent to his legal obligations. As respondent recognized in his admissions, his actions warrant professional discipline because he is guilty of serious violations of the criminal law which have brought disrepute upon the judiciary and the legal profession, and which reflect adversely on his fitness as a lawyer.\n124 This disciplinary proceeding was brought to maintain the public's confidence in the bench and bar by disciplining a lawyer who has harmed the public image of the profession by criminal misconduct outside the setting of his professional practice. The counts of the complaint brought against respondent do not concern questions regarding the quality of his professional practice or his conduct within the attorney-client relationship. His professional competence and honesty are not placed in question here and are not germane to issues concerning the quantum of appropriate professional discipline. This Court has recognized that discipline may be imposed for occurrences outside the professional setting and attorney-client relationship. See State ex rel. Oklahoma Bar Association v. Garrett, 2005 OK 91, 127 P.3d 600; State ex rel. Oklahoma Bar Association v. Foster, 2000 OK 4, 995 P.2d 1138; State ex *1094rel. Oklahoma Bar Association v. Rogers, 2006 OK 54, 142 P.3d 428 (2006).\n125 The purpose of disciplinary proceedings is not to inflict punishment on the offending lawyer but to safeguard the interests of the of the public, the judiciary and the legal profession. Donnelly, 848 P.2d at 546; State ex rel. Oklahoma Bar Association v. Carpenter, 1993 OK 86, 863 P.2d 1123, 1129. While one of the responsibilities of this Court in the discipline process is to inquire into the lawyer's continued fitness to practice law, other responsibilities include purification of the bar, instillation of confidence in the profession by the public and deterrence of commission of similar acts in the future by the offending lawyer and other members of the bar. Id. at 1130.\n126 Additionally, our responsibility requires us to ensure that the discipline is consistent with discipline imposed on other attorneys. While discipline should be administered fairly and evenhandedly, the terms will vary since each situation must be decided case by case, each involving different offenses and different mitigating cireum-stances. Id. Because of these differences, the range of discipline imposed in aleohol-related disciplinary matters is quite wide. See, State ex rel. Oklahoma Bar Association v. Beasley, 2006 OK 49, ¶¶ 37-43, 142 P.3d 410.\n127 For instance, the parties contend we should follow State ex rel. Oklahoma Bar Association v. Garrett, 2005 OK 91, 127 P.3d 600, where we found public censure and one year of probation was the appropriate discipline when an attorney's alcohol addiction and abuse led to his arrest for two counts of felonious sexual battery outside the attorney client relationship. After settlement with the victims, the attorney pled guilty to misdemeanor sexual battery. We considered the attorney's post-conviction behavior which showed he had taken full responsibility for his actions, he recognized the discredit he had brought on the legal profession in Oklahoma and he made a serious commitment to permanently maintain his sobriety through involvement in AA and LHL programs.\n' 28 More on point and persuasive, however, is our recent decision in State ex rel. Oklahoma Bar Association v. Rogers, 2006 OK 54, 142 P.3d 428, where we suspended an attorney for two years and one day for professional misconduct arising from a pattern of repeated alcohol-related vehicle felony and misdemeanor offenses spanning over a decade. Speaking of the Court's charge to safeguard the public interest and protect the judicial system, we found it clear that the attorney's conduct had brought the bench and bar into disrepute and, considering the numerous violations and their apparent escalation of severity, we found suspension to be the appropriate discipline. Noting that the attorney's continued sobriety would be the key to his rehabilitation and reinstatement, we found it was his responsibility to participate in AA or LHL programs and we refrained from ordering him to do so.\n129 In Rogers the Court also stressed that the \"fitness to practice law encompasses more than an absence of detriment to specific clients,\" and we recognized that a \" 'pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation. State ex rel. Oklahoma Bar Ass'n v. Doris, 1999 OK 94, n. 17, 991 P.2d 1015, 1026 (quoting Rule 84, Comment ORPC).\" Rogers, 142 P.3d at 488.\n130 The first rule governing the admission of an individual to the practice of law in Oklahoma requires that he or she \"shall have good moral character, due respect for the law, and fitness to practice law.\" Rules Governing Admission to Practice, 5 0.8. ch. 1, app. 5, Rule 1, Section 1. As this Court explained in the first syllabus in In re Bond, 1934 OK 228, 31 P.2d 921, this requirement is absolute and continues throughout an attorney's lifetime:\n1. \"Membership in the bar is a privilege burdened with conditions. A fair private and professional character is one of them. Compliance with that condition is essential at the moment of admission; but it is equally essential afterwards (citations omitted). Whenever the condition is broken, the privilege is lost\" (citation omitted).\n*1095T31 The Supreme Court of South Dakota set forth the following admonishment in In re Discipline of Parker, 269 N.W.2d 779, 780, which we find helpful in these cireumstances:\nAs officers of this court, attorneys are charged with the obedience of the laws of this state and the United States. The intentional violation of those laws by those who are specially trained and knowledgeable of them is particularly unwarranted and constitutes a breach of the attorney's oath of office. Because of his position in society, even minor violations of law by a lawyer tend to lessen public confidence in the legal profession. Obedience of the law exemplifies respect for the law. To lawyers especially, respect for the law must be more than a platitude.\n32 This Court stressed in Giger the importance of the purpose of discipline, explaining that \"Itlhe public must have confidence that the legal profession, which is self-regulated, will not look the other way when its members break the law. Equally important, members of the Bar must be reminded that substance abuse of any kind is incompatible with the practice of law.\" State ex rel. Oklahoma Bar Association v. Giger, 37 P.3d at 864.\n183 We have consistently expressed our strong belief that substance abuse is incompatible with the fitness of an individual to practice law. See generally Donnelly, 848 P.2d 543; Carpenter, 863 P.2d 1123; State ex rel. Oklahoma Bar Association v. Adams, 1995 OK 17, 895 P.2d 701; Doris, 991 P.2d 1015; Giger, 37 P.3d 856; State ex rel. Oklahoma Bar Association v. Beasley, 142 P.3d 410; Rogers, 142 P.3d 428.\n« 34 Respondent's testimony and evidence reveal that he has struggled many years with alcoholism. He began attending AA meetings in 1990 and he was hospitalized twice before 2005. His criminal history of driving a motor vehicle while intoxicated spans nearly a decade. We note the determination he has shown in his recent effort to bring his problems under control and reach his goal of sobriety. We agree with the panel's conclusion, however, that under the cireumstances of this case respondent should be suspended from the practice of law for six months and placed under supervised probation for two years and we adopt that recommendation. He is further ordered to pay the costs incurred in this proceeding in the amount of $415.72 within ninety days of the date this opinion becomes final.\n135 We therefore suspend respondent from the practice of law for six months and place him on supervised probation for two years with the following conditions under the auspices of a member of the Lawyers Helping Lawyers Committee. Respondent must (a) abide by all existing conditions for probation imposed by the District Court of Caddo County, Oklahoma; (b) abide by the Rules of Professional Conduct; (c) sign a contract with Lawyers Helping Lawyers and be supervised by a designated Committee member for the entire period of his probation; (d) participate in the Aleoholies Anonymous program or in one of another organization recognized by his contract with Lawyers Helping Lawyers; (e) report his attendance and status to his designated Committee member; and (£) refrain from the use or possession of intoxicants.\n136 During his two-year period of supervised probation, the designated Committee member of Lawyers Helping Lawyers is required to immediately notify the General Counsel of the Oklahoma Bar Association of any failure by respondent to comply with the terms of his probation. Upon receipt of this information from this or any other source, if the General Counsel concludes that respondent has violated any of the terms of his probation, the Bar may file an application to proceed for additional discipline. The panel will then determine whether a violation has occurred and, if so, it shall forward a sufficient record of the proceedings to this Court for imposition of appropriate discipline.\n137 RESPONDENT IS SUSPENDED FROM THE PRACTICE OF LAW FOR SIX MONTHS AND PLACED UNDER SUPERVISED PROBATION FOR TWO YEARS, BOTH TO BEGIN ON THE DAY THIS OPINION IS FINAL; RESPONDENT IS ORDERED TO PAY THE COSTS OF THIS PROCEEDING IN THE *1096AMOUNT OF $415.72 WITHIN NINETY DAYS AFTER THIS OPINION IS FINAL.\n\" 38 WATT, C.J., OPALA, EDMONDSON, COLBERT, JJ.-Concur.\n1 39 KAUGER, J.-Concurs specially.\n140 LAVENDER, HARGRAVE, JJ.Concur in part, dissent in part.\n", "ocr": false, "opinion_id": 9795653 }, { "author_str": "Taylor", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n\" 41 TAYLOR, J.\n-Dissents and joined by LAVENDER, J.\nI respectfully dissent. I would impose similar discipline as we recently did in Oklahoma Bar Association v. Rogers, 2006 OK 54, 142 P.3d 428, by suspending this respondent for two years and a day.\n42 WINCHESTER, V.C.J.,-Disqualified.\n", "ocr": false, "opinion_id": 9795654 }, { "author_str": "Kauger", "per_curiam": false, "type": "030concurrence", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nKAUGER, J.,\nconcurring specially.\n1 1 I agree that discipline is necessary and that the discipline imposed is appropriate. However, this proceeding should have been brought under Rule 10, Rules Governing Disciplinary Proceedings, 5 0.$.2001, Ch. 1, App. 1-A.1 As early as February 14, 2005, the Oklahoma Bar Association arguably had notice that the respondent had an alcohol problem, and certainly by March 1, 2005, when it was notified that the respondent entered Valley Hope Treatment Facility.\nT2 This cause represents yet another in a string of recent bar cases in which the Oklahoma Bar Association has failed to invoke the provisions of Rule 10. See State ex rel. Oklahoma Bar Association v. Beasley, 2006 OK 49, 142 P.3d 410; State ex rel. Oklahoma Bar Association v. Rogers, 2006 OK 54, 142 P.3d 428; State ex rel. Oklahoma Bar Association v. Chapman, 2005 OK 16, 114 P.3d 414; State ex rel. Oklahoma Bar Association v. Hummel, 2004 OK 30, 89 P.3d 1105. Instead, the Oklahoma Bar Association in this cause, as well as others, has chosen to ignore the proper procedures, then to join with the respondents in presenting recommendations of discipline which are less severe than the discipline recommended by the trial panel-apparently belatedly to utilize the spirit of the Rule.\n\n. Rule 10, Rules Governing Disciplinary Proceedings, 5 0.$.2001, Ch. 1, App. 1-A governs suspension for personal incapacity to practice law.\n\n", "ocr": false, "opinion_id": 9795655 } ]

[ "185 F.3d 1162" ]

[ { "author_str": "Brorby", "per_curiam": false, "type": "010combined", "page_count": 38, "download_url": "http://www.ca10.uscourts.gov/opinions/98/98-1379.pdf", "author_id": null, "opinion_text": "185 F.3d 1162 (10th Cir. 1999)\n COLORADO ENVIRONMENTAL COALITION; DEFENDERS OF WILDLIFE; WILDERNESS SOCIETY; SIERRA CLUB; SINAPU; SOUTHERN ROCKIES ECOSYSTEM PROJECT; ANNE VICKERY, Plaintiffs-Appellants,v.MICHAEL DOMBECK, in his official capacity asChief of the United States Forest Service; LYLE K. LAVERTY, in his official capacity as Regional Forester of the Rocky Mountain Region; MARTHA KETTELE, in her official capacity as Supervisor of the White River National Forest; UNITED STATES FOREST SERVICE, Defendants-Appellees.VAIL ASSOCIATES, INC., Intervenor-Appellee.\n No. 98-1379\n UNITED STATES COURT OF APPEALS TENTH CIRCUIT\n August 9, 1999\n \n Appeal from the United States District Court for the District of Colorado. D.C. No. 98-N-1276[Copyrighted Material Omitted][Copyrighted Material Omitted]\n Edward B. Zukoski (Richard E. Condit of Land and Water Fund of the Rockies, Boulder, Colorado, and Stephen D. Harris of Merrill, Anderson, King & Harris, Colorado Springs, Colorado, with him on the briefs for Colorado Environmental Coalition, Defenders of Wildlife, The Wilderness Society, Sinapu, Southern Rockies Ecosystem Project, and Anne Vickery; Gretchen Biggs, Boulder, Colorado, with him on the briefs for Sierra Club), of Land and Water Fund of the Rockies, Boulder, Colorado, for Plaintiffs-Appellants.\n Ellen J. Durkee of the United States Department of Justice, Washington, D.C., and David S. Neslin of Arnold & Porter, Denver, Colorado (Lois J. Schiffer, Assistant Attorney General, and Andrea Berlowe, United States Department of Justice, Washington, D.C.; Linda A. McMahan, United States Attorney, and Michael Hegarty, Assistant United States Attorney, Denver, Colorado, with them on the brief for Michael Dombeck, Lyle K. Laverty, and Martha Kettelle, in their official capacities, and the United States Forest Service; Peter Krumholz of Arnold & Porter, and Bruce F. Black of Holme Roberts & Owen LLP, Denver, Colorado, with them on the brief for Vail Associates, Inc.; and Kenneth Capps, United States Department of Agriculture, Of Counsel, Denver, Colorado, with them on the brief), for Defendants-Appellees and Intervenor-Appellee.\n Before SEYMOUR, BRORBY and HENRY, Circuit Judges.\n BRORBY, Circuit Judge.\n \n \n 1\n Appellants, one individual and various groups that promote the protection of the environment, natural resources and wildlife, appeal a district court order refusing to enjoin the defendant, United States Forest Service (\"Forest Service\"), from permitting the Intervenor, Vail Associates, Inc. (\"Vail\"), to expand its existing ski area into a new area known as Category III. Appellants present two principal issues on appeal: (1) whether the Forest Service violated the National Forest Management Act, 16 U.S.C. § 1604(g)(3)(B), and its implementing regulations, 36 C.F.R. § 219.19, in analyzing the effects of the proposed ski area expansion on the viability of Canada lynx populations within the Category III area; and (2) whether the Forest Service violated the National Environmental Policy Act, 42 U.S.C. § 4332, and its implementing regulations, 40 C.F.R. §§ 1500-1508, in analyzing the environmental impacts of the proposed expansion. Having carefully reviewed the administrative record, we conclude the Forest Service's lynx habitat analysis did not contravene the National Forest Management Act or the forest planning regulations. We further conclude the Forest Service's final environmental impact statement satisfied National Environmental Policy Act standards, and the Forest Service was not required to prepare a supplemental environmental impact statement. Accordingly, we affirm.\n \n I. FACTUAL AND PROCEDURAL BACKGROUND\n \n 2\n In 1996, the Forest Service approved Vail's site-specific, detailed proposal to expand its existing ski area into roughly half of a 4,100 acre area south of the developed back bowls of Vail Mountain known as Category III. The Forest Service exercised jurisdiction over this matter because the existing ski area and the Category III area are within the White River National Forest. In approving the proposed expansion, the Forest Service concluded the expansion : (1) is consistent with the applicable Forest Plan; (2) will significantly improve the recreational experience for visitors to the Vail Ski Area and the White River National Forest by providing more reliable and dependable skiing conditions, and by adding needed intermediate terrain; (3) will build skier visitation during non-peak periods, thus making more efficient use of existing infrastructure; and (4) as modified and restricted, will not threaten the viability of lynx, will have minor socioeconomic effects, and will have an acceptable level of impact on other resources.\n \n \n 3\n By way of history we point out that Vail submitted a general expansion proposal in 1986. The Forest Service conceptually approved expansion into Category III and included that area in Vail's special use permit, designating it as a potential area for future ski area expansion, subject to subsequent site-specific environmental analysis.1 The environmental assessment supporting the Forest Service's conceptual approval concluded it was unknown whether lynx use portions of Category III, but nevertheless treated them as a species of concern and required Vail to develop guidelines to protect potential lynx habitat.\n \n \n 4\n Vail developed the lynx habitat guidelines in consultation with the Forest Service and the Colorado Division of Wildlife.2 Vail also worked with the Forest Service and Colorado Division of Wildlife to conduct over thirty specialized resource studies on Category III, which it then utilized to prepare a detailed development plan. In order to preserve natural contours, avoid wetlands and old growth forest, and protect potential habitat identified by those studies, Vail eliminated plans for development in about half of Category III, and agreed to maintain the ski area's existing capacity of 19,900 skiers-at-one-time. Vail submitted its site-specific, detailed development proposal to the Forest Service in 1994.\n \n \n 5\n Upon receipt of Vail's site-specific proposal, the Forest Service initiated an environmental review process as required by the National Environmental Policy Act. This process included a scoping period to identify issues for analysis and the preparation of a biological evaluation and environmental impact statement. Particularly relevant to this appeal, the biological evaluation and environmental impact statement concluded that each expansion alternative considered may adversely impact individual lynx and their habitat, but is unlikely to result in a loss of species viability on the White River National Forest. Based on these documents, in August 1996, the Forest Service published a Record of Decision approving one of the expansion alternatives, as modified to minimize environmental impacts.\n \n \n 6\n A number of entities, including several of the Appellants, appealed that decision to the Deputy Regional Forester, raising many of the same issues before us. The Deputy Regional Forester denied the appeal, but directed the Forest Service to prepare further documentation on potential cumulative impacts and proposed forest plan amendments. The Forest Service conducted and documented its further review, and again approved the modified expansion plan in August 1997. Expansion opponents filed another administrative appeal, which the Forest Service denied.3\n \n \n 7\n Appellants brought the present judicial action in June 1998, seeking a preliminary injunction enjoining the commencement of work on the expansion and a declaration the Forest Service violated the National Forest Management Act and the National Environmental Policy Act. The district court consolidated the hearing on the motion for preliminary injunction with a trial on the merits. Concluding the Appellants did not show a likelihood of success on the merits, or questions going to the merits so serious, substantial, difficult, and doubtful as to make the issues ripe for litigation, the district court denied the preliminary injunction motion, entered final judgment in favor of the Forest Service, and dismissed the case. Those rulings are now before us on appeal.4\n \n II. DISCUSSION\n \n 8\n Appellants seek judicial review of the Forest Service's final decision pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701-706. We review that decision under 5 U.S.C. § 706(2)(A) to determine, de novo,5 whether it was \"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.\" See Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1521 (10th Cir. 1992).\n \n \n 9\n \"[I]n determining whether the agency acted in an 'arbitrary and capricious manner,' we must ensure that the agency 'decision was based on a consideration of the relevant factors' and examine 'whether there has been a clear error of judgment.'\" Friends of the Bow v. Thompson, 124 F.3d 1210, 1215 (10th Cir. 1997) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). We consider an agency decision arbitrary and capricious if\n \n \n 10\n \"the agency ... relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.\"\n \n \n 11\n Id. (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Inc. Co., 463 U.S. 29, 43 (1983)).\n \n \n 12\n Applying this standard, we examine Appellants' claims under the National Forest Management Act and the National Environmental Policy Act to ascertain whether the Forest Service examined the relevant data and articulated a rational connection between the facts found and the decision made. Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43.\n \n A. National Forest Management Act\n 1. Overview\n \n 13\n The National Forest Management Act directs the Forest Service to develop Land and Resource Management Plans (\"Forest Plans\") by which to manage each National Forest under principles of \"multiple-use\" and \"sustained yield.\" 16 U.S.C. § 1604. Forest management occurs at two distinct levels. See Ohio Forestry Ass'n, Inc. v. Sierra Club, 118 S. Ct. 1665, 1668-69 (1998).\n \n \n 14\n At the first level, the Forest Service develops the Forest Plan, a broad, programmatic document, accompanied by an environmental impact statement and public review process conducted in accordance with the National Environmental Policy Act. 42 U.S.C. § 4331 et seq.; see also 16 U.S.C. § 1604(d); 36 C.F.R. § 219.10(b). The Forest Plan must incorporate multiple forest uses, and thus coordinate the management of \"outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.\"6 16 U.S.C. § 1604(e)(1). The Forest Plan must also \"provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives.\" Id. at § 1604(g)(3)(B).\n \n \n 15\n At the second level, the Forest Service implements the Forest Plan by approving (with or without modification) or disapproving particular projects such as the Category III expansion. Proposed projects must be consistent with the Forest Plan, id. at § 1604(i), 36 C.F.R. § 219.10(e), and are subject to further National Environmental Policy Act review. See Ohio Forestry Ass'n, 118 S. Ct. at 1668-69.\n \n \n 16\n 2. Maintaining Viable Populations: Population Data v. Habitat Analysis\n \n \n 17\n To \"provide for diversity of plant and animal communities\" when planning or evaluating proposed projects on our national forests, the Forest Service must, among other things, manage:\n \n \n 18\n [f]ish and wildlife habitat ... to maintain viable populations of existing native and desired non-native vertebrate species in the planning area. For planning purposes, a viable population shall be regarded as one which has the estimated numbers and distribution of reproductive individuals to insure its continued existence is well distributed in the planning area. In order to insure that viable populations will be maintained, habitat must be provided to support, at least, a minimum number of reproductive individuals and that habitat must be well distributed so that those individuals can interact with others in the planning area.\n \n \n 19\n 36 C.F.R. § 219.19 (emphasis added).\n \n \n 20\n Appellants claim that in order to comply with the plain language of 36 C.F.R. § 219.19, the Forest Service must compile hard lynx population data (e.g., the number of lynx, including reproductive lynx, found in the White River National Forest and Category III planning area, and lynx distribution in those areas), not just manage habitat for a hypothetical population. The Forest Service and Vail contend it is permissible to substitute a habitat analysis for population data where, as here, (1) population data or estimates are unavailable, and (2) even if such data existed it would not improve the overall analysis because the project will not result in species loss.\n \n \n 21\n To determine what type of data or analysis is necessary to satisfy 36 C.F.R. § 219.19, we, too, begin with the plain language, which unmistakably focuses on the provision and distribution of habitat in order to maintain existing viable populations. To the extent the regulation discusses, and therefore arguably requires, specific analysis of the estimated numbers and distribution of individual members of a species, it does so only in the narrow context of defining what constitutes a \"viable population.\" A \"viable population\" exists when enough reproductive individuals of a given species are distributed throughout a given area to insure the continued existence of that species in that area. The regulatory language clearly presupposes the ascertainable presence of a species' population within a given planning area.\n \n \n 22\n The administrative record before us indicates there is no existing lynx population in Category III or the White River National Forest from which to gather census or distribution data.7 Indeed, the Colorado Division of Wildlife believes \"if any lynx remain in Colorado their numbers are so small that they do not represent a viable population, and are not detectable by known census methods.\" The United States Fish and Wildlife Service similarly \"concludes that a self-sustaining resident [lynx] population does not exist in Colorado, but individual animals may be present.\" Because no ascertainable lynx population exists within Category III or the White River National Forest, we do not read 36 C.F.R. § 219.19 to require the Forest Service to collect or evaluate hard lynx population data prior to making its decision in this case.\n \n \n 23\n A review of the plain language of 36 C.F.R. § 219.19 and its enabling statute, the National Forest Management Act, establishes Congress never intended to require the Forest Service to collect population data and make data-based population viability assessments as a precondition to managing habitat if, despite good faith efforts to confirm the presence of lynx,8 no one has seen an actual lynx in the project area in over twenty-five years, and only a few sets of tracks have been documented in the past ten years. Under the circumstances, the best the Forest Service could do to comply with the Forest Plan mandate to develop additional skiing opportunities at existing resorts and provide for diversity of plant and animal communities within Category III, was to provide and distribute lynx habitat based on the best information available, on the remote chance a population of reproductive lynx might reoccupy the area in the future.\n \n \n 24\n Our views on this issue are in complete accord with the Ninth Circuit's decision in Inland Empire Pub. Lands Council v. United States Forest Serv., 88 F.3d 754 (9th Cir. 1996). In Inland Empire, the Forest Service approved timber sales based on a habitat analysis for seven sensitive species living in the Upper Sunday area of the Kootenai National Forest in Montana. The Ninth Circuit concluded the Forest Service's habitat analysis was not \"in any way 'plainly erroneous'\" or \"'inconsistent'\" with the plain language of 36 C.F.R. § 219.19, which \"specifically provides that the Forest Service may discharge its duties through habitat management as long as 'habitat [is] provided to support, at least, a minimum number of reproductive individuals and that habitat [is] well distributed so that those individuals can interact with others in the planning area.'\" Id. at 761 (quoting 36 C.F.R. § 219.19). The court further upheld the Forest Service's more limited analysis of the flammulated owl's nesting and feeding habitat requirements, because \"such data were unavailable\" and \"an analysis that uses all the scientific data currently available is a sound one.\" Id. at 762. In so holding, the court appropriately noted the deference due an agency's interpretation of its own regulations, especially when that interpretation involves questions of scientific methodology. Id. at 760; see also Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1153-54 (9th Cir. 1998).\n \n \n 25\n To the extent other courts have read 36 C.F.R. § 219.19 to prohibit reliance on habitat analysis without hard population data, see, e.g., Sierra Club v. Martin, 168 F.3d 1 (11th Cir. 1999); Sierra Club v. Glickman, 974 F. Supp. 905 (E.D. Tex. 1997); Seattle Audubon Soc'y v. Lyons, 871 F. Supp. 1291 (W.D.Wash. 1994), aff'd sub nom. Seattle Audubon Soc'y v. Moseley, 80 F.3d 1401 (9th Cir. 1996), those decisions are distinguishable from this case in at least two important ways: (1) they involved the application of § 219.19 under circumstances in which population data was available; and (2) they involved the provisions of § 219.19 applicable to the use of a Management Indicator Species as a proxy for determining the effects of management activities on other species. See Martin, 168 F.3d at 4-8; Glickman, 974 F. Supp. at 936-38; Seattle Audubon Soc'y, 871 F. Supp. at 1315-16. As discussed above, there simply is no lynx population data available to the Forest Service in this case. Moreover, when considering the Category III expansion, the Forest Service logically did not select the rare and elusive lynx as a Management Indicator Species. Thus, the population inventory requirements of § 219.19 that apply to Management Indicator Species are irrelevant to the issue before us.\n \n \n 26\n It would be inappropriate to comment here on the soundness of those opinions requiring population inventories and data-based viability assessments under very different facts and forest planning contexts. We simply hold the regulatory language does not require the Forest Service, under the circumstances of this case, to collect actual lynx population data. It would be absurd to permit project opponents to utilize the population viability regulation to block consideration and approval of projects otherwise consistent with the applicable Forest Plan when no evidence shows a population of a given species is present within the relevant planning area, and when the viability of any individual members of that species can otherwise be protected by appropriate habitat preservation and distribution. Thus, in this case, where no viable population exists, we recognize habitat identification and preservation as a legitimate means of ensuring any future lynx viability.9\n \n \n 27\n Appellants further argue that even if we read 36 C.F.R. § 219.19 to permit the use of a habitat analysis instead of a data-based viability assessment, the Forest Service nevertheless made assumptions without the necessary background information and failed to make important viability findings. These claims lack logic and support in the record.\n \n \n 28\n In large part, Appellants' back-up argument amounts to a repackaging of their primary argument. As we fail to see how the Forest Service could be required to gather population data where no population exists, we similarly fail to see how the Forest Service could be required to determine precisely how much habitat is necessary to maintain a nonexistent lynx population, or to conclude it is maintaining a viable population where none exists.10\n \n \n 29\n Here again, we conclude it was entirely reasonable under the circumstances for the Forest Service to rely on the best available scientific information11 to (1) identify the parameters of suitable habitat, (2) estimate the amount of suitable habitat available in and adjacent to the project area, and (3) determine the anticipated effects of the proposed action on each type of habitat in order to provide and distribute sufficient habitat to mitigate the loss of any individual lynx possibly present in the planning area.\n \n \n 30\n Having studied the administrative record, and giving a practical interpretation to the Forest Service's regulatory mandate, consistent with the \"overall multiple use objectives\" and \"inherent flexibility\" of the National Forest Management Act, Moseley, 80 F.3d at 1404, we hold the Forest Service's lynx habitat analysis and lynx viability assessment did not violate the National Forest Management Act or 36 C.F.R. § 219.19, and was not arbitrary and capricious.\n \n B. National Environmental Policy Act\n \n 31\n Federal agencies must comply with certain procedures prior to taking any action or making any decision that could significantly affect the quality of the human environment. More precisely, the National Environmental Policy Act directs all federal agencies to:\n \n \n 32\n (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on\n \n \n 33\n (i) the environmental impact of the proposed action,\n \n \n 34\n (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,\n \n \n 35\n (iii) alternatives to the proposed action,\n \n \n 36\n (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and\n \n \n 37\n (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.\n \n \n 38\n 42 U.S.C. § 4332(2)(C) (listing the requirements for an environmental impact statement); see also 40 C.F.R. § 1500 et seq. (Council on Environmental Quality regulations expanding upon the appropriate form and content of an environmental impact statement).\n \n \n 39\n Congress intended these \"action-forcing procedures\" merely to guarantee that agencies take a \"hard look\" at the environmental consequences of proposed actions utilizing public comment and the best available scientific information. Robertson v. Methow Valley Citizens Council,490 U.S. 332, 350 (1989); Holy Cross, 960 F.2d at 1521; see also 40 C.F.R. § 1500.1. Consequently, the National Environmental Policy Act \"prescribes the necessary process,\" but \"does not mandate particular results.\" Holy Cross, 960 F.2d at 1522 (quotation marks and citation omitted); see also Methow Valley, 490 U.S. at 350. Stated differently, the Act \"prohibits uninformed rather than unwise agency action.\" Methow Valley, 490 U.S. at 351.\n \n \n 40\n Appellants claim the Forest Service failed to take the \"hard look\" Congress intended when it analyzed the environmental impact of Vail's proposed Category III expansion. Specifically, Appellants contend the Forest Service failed to: (1) obtain necessary information concerning the lynx or disclose that such information was unavailable; (2) properly analyze mitigation measures; (3) analyze a range of reasonable alternatives; (4) properly analyze indirect and cumulative impacts caused by an increase of up to 218,000 skier visits per year; and (5) analyze significant new information concerning significant undisclosed impacts of the project. We consider these claims in turn.\n \n \n 41\n 1. Adequacy of the Final Environmental Impact Statement.\n \n \n 42\n The first four National Environmental Policy Act issues Appellants raise pertain to the adequacy of the Final Environmental Impact Statement. In reviewing the adequacy of a final environmental impact statement we merely examine \"whether there is a reasonable, good faith, objective presentation of the topics [the National Environmental Policy Act] requires an [environmental impact statement] to cover.\" Holy Cross, 960 F.2d at 1522 (quotation marks and citation omitted). Our objective is not to \"fly speck\" the environmental impact statement, but rather, to make a \"pragmatic judgment whether the [environmental impact statement]'s form, content and preparation foster both informed decision-making and informed public participation.\" Oregon Envtl. Council v. Kunzman, 817 F.2d 484, 492 (9th Cir. 1987) (quotation marks and citation omitted).\n \n \n 43\n a. Lynx Information\n \n \n 44\n Council on Environmental Quality regulations require agencies to include complete information in an environmental impact statement \"[i]f the incomplete information relevant to reasonably foreseeable significant adverse impacts is essential to a reasoned choice among alternatives and the overall costs of obtaining it are not exorbitant.\" 40 C.F.R. § 1502.22(a). Appellants' claim that the Forest Service violated the National Environmental Policy Act and this regulation by failing to obtain and analyze all information concerning the lynx, amounts to a second attempt to have this court read regulatory language to impose data gathering requirements under circumstances where no such data exists.\n \n \n 45\n As noted above, the Forest Service collected and utilized the best available data to (1) analyze the possible impact of the proposed Category III expansion and reasonable expansion alternatives on lynx habitat, and (2) identify and preserve sufficient lynx habitat to mitigate any impact on individual lynx that may live in or travel through the Category III area. We reiterate our belief the Forest Service was not arbitrary and capricious in its analysis, and conclude the analysis constitutes a reasonable, good faith presentation of the best information available under the circumstances. Appellants simply fail to show how additional, site-specific lynx data is \"essential\" to reasoned decision making; thus, we hold the Forest Service did not violate 40 C.F.R. § 1502.22(a) or the National Environmental Policy Act.\n \n \n 46\n Moreover, we are unwilling to give a hyper-technical reading of the regulations to require the Forest Service to include a separate, formal disclosure statement in the environmental impact statement to the effect that lynx population data is incomplete or unavailable. See 40 C.F.R. § 1502.22(b). Congress did not enact the National Environmental Policy Act to generate paperwork or impose rigid documentary specifications. See 40 C.F.R. § 1500.1(c). The record in this case amply demonstrates the participants in the environmental review process were well aware of the relevance of lynx population data to consideration of the Category III expansion, the scarcity of such data, and the studies and reports the Forest Service used to evaluate lynx impacts based on available distribution, denning, and foraging habitat information. As such, an additional, formal statement citing and specifically parroting the regulatory language at 40 C.F.R. § 1502.22(b) would serve no useful purpose, and the omission of such a statement in this case does not violate the National Environmental Policy Act. See 40 C.F.R. § 1500.3 (trivial violations not actionable).\n \n \n 47\n b. Mitigation Analysis\n \n \n 48\n By statute and regulation, an environmental impact statement must include a discussion of possible mitigation measures to avoid adverse environmental impacts. See 42 U.S.C. § 4332(C)(ii); 40 C.F.R. §§ 1502.14(f), 1502.16(h), 1508.14, 1508.25(b)(3); see also Methow Valley, 490 U.S. at 351-52. Such discussion must be \"reasonably complete\" in order to \"properly evaluate the severity of the adverse effects\" of a proposed project prior to making a final decision. Methow Valley, 390 U.S. at 352; see also Holy Cross, 960 F.2d at 1523. It is not enough to merely list possible mitigation measures. See Neighbors of Cuddy Mountain v. United States Forest Service, 137 F.3d 1372, 1380 (9th Cir. 1998).\n \n \n 49\n Appellants contend the Forest Service's mitigation discussion pertaining to the Category III expansion is insufficient because, although the agency listed and numerically rated the effectiveness of a number of mitigation measures, it \"failed to evaluate the measures' effectiveness in any way.\" Appellants further claim the Forest Service included mitigation measures in its 1996 and 1997 Records of Decision that it never analyzed or proposed in the underlying environmental review documents. The administrative record belies both claims.\n \n \n 50\n It can hardly be said the Forest Service did little more than list numerous mitigation measures. To the contrary, the Forest Service identified nearly 150 project-specific mitigation measures, and, as evidenced by the numerical effectiveness ratings,12 separately analyzed and evaluated each. The Forest Service provided a narrative discussion of the possible mitigation measures applicable to each resource affected by the proposed expansion. The intent and efficacy of certain mitigation measures is further derived from the impact analysis pertaining to issues of particular public interest, such as trees, wetlands, erosion control, and lynx and other wildlife. Finally, the Forest Service properly identified which mitigation measures it adopted in its Records of Decision,13 40 C.F.R. § 1505.2(c), and where relevant, noted the cooperating agencies' recommendations and/or findings regarding those adopted measures.\n \n \n 51\n This record demonstrates the Forest Service included a reasonably complete discussion of possible mitigation measures in the appropriate environmental review documents. The mitigation analysis certainly was adequate to foster informed public participation as well as an informed decision, and thus satisfied the National Environmental Policy Act mandate.\n \n \n 52\n c. Alternatives Analysis\n \n \n 53\n The alternatives analysis is characterized as \"the heart\" of the environmental impact statement. 40 C.F.R. § 1502.14. To comply with the National Environmental Policy Act and its implementing regulations, the Forest Service is required to rigorously explore all reasonable alternatives to the Category III expansion in comparative form, and give each alternative substantial treatment in the environmental impact statement. Id. at §§ 1502.1, 1502.14(a); 42 U.S.C. §§ 4332(2)(C)(iii) & (E); All Indian Pueblo Council v. United States, 975 F.2d 1437, 1444 (10th Cir. 1992).\n \n \n 54\n When evaluating the adequacy of the Forest Service's alternatives analysis (i.e., the number of alternatives the Forest Service was required to consider and the requisite level of detail), we employ the \"rule of reason\" to ensure the environmental impact statement contained sufficient discussion of the relevant issues and opposing viewpoints to enable the Forest Service to take a hard look at the environmental impacts of the proposed expansion and its alternatives, and to make a reasoned decision. Pueblo Council, 975 F.2d at 1445. We note the National Environmental Policy Act \"does not require agencies to analyze the environmental consequences of alternatives it has in good faith rejected as too remote, speculative, or ... impractical or ineffective.\" Id. at 1444 (quotation marks and citation omitted). \"What is required is information sufficient to permit a reasoned choice of alternatives as far as environmental aspects are concerned.\" Id. (quotation marks and citation omitted).\n \n \n 55\n Appellants assert the Forest Service violated the National Environmental Policy Act by \"arbitrarily and capriciously refus[ing] to consider in detail a reasonable development alternative proposed by Appellant Colorado Environmental Coalition.\" Appellants further argue the district court erred by allowing Vail's stated purpose and need for the expansion to \"categorically preclude\" consideration of Colorado Environmental Coalition's \"Conservation Biology Alternative.\"14 They encourage us to adopt the standard applied by the Seventh Circuit, such that \"the evaluation of 'alternatives' mandated by [the National Environmental Policy Act] is to be an evaluation of alternative means to accomplish the general goal of an action; it is not an evaluation of the alternative means by which a particular applicant can reach his goals.\" Van Abbema v. Fornell, 807 F.2d 633, 638 (7th Cir. 1986); see also Simmons v. United States Army Corps of Eng'rs, 120 F.3d 664, 669 (7th Cir. 1997).\n \n \n 56\n As noted, the National Environmental Policy Act and Council on Environmental Quality Regulations require the Forest Service to study in detail all \"reasonable\" alternatives. 42 U.S.C. §§ 4332(2)(C)(iii) and (E), 40 C.F.R. §§ 1502.1, 1502.14(a). The Seventh Circuit, and other courts, have interpreted this requirement to preclude agencies from defining the objectives of their actions in terms so unreasonably narrow they can be accomplished by only one alternative (i.e., the applicant's proposed project). See, e.g., Simmons, 120 F.3d at 669; c.f. Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195-96 (D.C. Cir.), cert. denied, 502 U.S. 994 (1991). Agencies also are precluded from completely ignoring a private applicant's objectives. See Busey, 938 F.2d at 196; Louisiana Wildlife Fed'n, Inc. v. York, 761 F.2d 1044, 1048 (5th Cir. 1985); Guidance Regarding NEPA Regulations, 48 Fed. Reg. 34263, 34267 (July 28, 1983). We do not perceive these authorities as mutually exclusive or conflicting. They simply instruct agencies to take responsibility for defining the objectives of an action and then provide legitimate consideration to alternatives that fall between the obvious extremes. Beyond this, there are no hard and fast rules to guide the alternatives analysis. Our task, then, is to determine whether the Forest Service stepped outside the established parameters by declining to give more attention to the Conservation Biology Alternative the Appellants prefer, or, stated differently, whether the alternatives analysis provided satisfies the rule of reason.\n \n \n 57\n The record reveals the Forest Service considered the Regional Guide, the White River Forest Plan, prior Forest Service planning and permitting decisions in accordance with the National Forest Ski Area Permit Act of 1986, and Vail's expressed needs and goals, when drafting the statement of purpose and need for the Category III expansion environmental impact statement. Indeed, the Forest Service expressly referenced the agency management goals to be achieved vis-a-vis implementation of the Category III proposal. The record thus disproves Appellants' claim the Forest Service blindly adopted Vail's articulated purpose and need.\n \n \n 58\n While we appreciate that Appellants zealously advocate a wilderness conservation philosophy and would like to see that philosophy expressly recognized in environmental impact statements and other environmental review documents, and implemented by the Forest Service and other federal land/resource management agencies, the fact is the Forest Service could not consider the proposed Category III expansion in a vacuum. The White River Forest Plan, itself subject to National Environmental Policy Act review, previously prescribed additional winter recreation development on the Forest, and designated the Category III area for that purpose. We hold the Forest Service was fully authorized within this decision-making context to limit its consideration to expansion alternatives designed to substantially meet the recreation development objectives of the Forest Plan. Accordingly, the statements of purpose and need drafted to guide the environmental review process concerning the proposed Category III expansion are not unreasonably narrow.15 See City of Angoon v. Hodel, 803 F.2d 1016, 1021 (9th Cir. 1986), cert. denied, 484 U.S. 870 (1987) (court not at liberty to restate the purpose in terms of a broad social interest).\n \n \n 59\n It is within this defined context that the Forest Service analyzed four alternatives in detail, including the required \"no action\" alternative. The three development alternatives varied primarily in the amount and type of additional skiable terrain and related amenities to be developed, and, consequently, in the type and degree of environmental impacts each would impose. The Forest Service made clear it formulated alternatives \"to respond to the significant issues identified during scoping while still addressing the purpose and need for the Proposed Action and maintaining consistency with pertinent Forest Service policy.\"\n \n \n 60\n In declining to analyze more thoroughly the Conservation Biology Alternative, the Forest Service noted it would not add \"appreciably more\" or \"substantially increase\" intermediate ski terrain. In fact, \"[t]he most optimistic estimate of skiable terrain that could be made available under this alternative (232 acres) represents about half of the terrain that would result from the most limited of the development alternatives.\"16 The Forest Service reasoned, \"[w]hen the purpose is to add terrain in order to respond to specific qualitative needs at the ski area, it is appropriate to dismiss from consideration ski trail development opportunities that would not advance those objectives.\" In light of the defined purpose and need for the expansion, which we have upheld as reasonable, we conclude the Forest Service provided a reasonable explanation for declining to further consider the Conservation Biology Alternative in accordance with 40 C.F.R. § 1502.14(a). Moreover, the Forest Service provided sufficient discussion of the relevant issues and opposing viewpoints to demonstrate it took the requisite \"hard look\" at an adequate array of alternatives to make a reasoned decision.\n \n \n 61\n d. Impact Analysis\n \n \n 62\n An environmental impact statement must analyze not only the direct impacts of a proposed action, but also the indirect and cumulative impacts of \"past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.\" 40 C.F.R. § 1508.7; see also §§ 1508.8 (including ecological, aesthetic, historical, cultural, economic, social and health impacts) and 1508.25(a)(2), (c).\n \n \n 63\n Appellants contend the Forest Service failed to adequately consider off-site, indirect cumulative impacts. More specifically, they claim (1) the Forest Service gave short shrift to its analysis of the socioeconomic impact of increased skier visitation and spending in Vail and Eagle County, and (2) the agency's conclusions concerning socioeconomic impacts are arbitrary and capricious because they are based on unreasonable assumptions and are not supported by the record. According to Appellants, \"[i]ncreased visitorship and spending attributable to the expansion will undoubtedly further spur real estate speculation, ... worsen parking and housing woes, increase activity in the retail industry, and harm virtually every aspect of the human environment.\" In support of their argument, Appellants cite to the comments of Mr. Charles Romaniello, a natural resource economist, to the effect the Forest Service is capable of, but failed to project or discuss the secondary and tertiary revenue flows produced by increased skier numbers.\n \n \n 64\n Here again, the fact that Appellants cite an expert who agrees with their position and alleges a lack of analysis is not dispositive. It merely reflects the crux of their complaint they disagree with the Forest Service's decision. Our job is not to question the wisdom of the Forest Service's ultimate decision or its conclusion concerning the magnitude of indirect cumulative impacts. Cf. Holy Cross, 960 F.2d at 1522. Rather, we must examine the administrative record, as a whole, to determine whether the Forest Service made a reasonable, good faith, objective presentation of those impacts sufficient to foster public participation and informed decision making. Id. Having carefully reviewed the record, we conclude the Forest Service's impact analysis is adequate.\n \n \n 65\n First, we take issue with Appellants' characterization of the Forest Service's conclusions concerning socioeconomic impacts. We found no evidence in the record, nor did Appellants provide a citation to the record, to support their claim the Forest Service assumed or concluded there would be \"no impact at all on numerous aspects of Vail's and Eagle County's socioeconomy.\" To the contrary, the record demonstrates that after identifying and analyzing various off-mountain, growth-related socioeconomic factors potentially impacted by the Category III expansion, the Forest Service concluded that those impacts would be relatively minor under any of the alternatives, including the no action alternative.\n \n \n 66\n The Forest Service's analysis includes discussions of the assumptions applied,17 the facts and rationale supporting those assumptions, the appropriate scope of analysis given those assumptions, and the foreseeable direct, indirect and cumulative impacts on socioeconomic resources in Vail and Eagle County. Read in context, as a whole, the documentation patently refutes Appellants' arguments the assumptions \"contradict logic and reason\" and the analysis is arbitrary and capricious. Accordingly, Appellants' challenge to the adequacy of the off-site indirect and cumulative impact analysis fails.\n \n \n 67\n 2. New Information Requiring a Supplemental Environmental Impact Statement.\n \n \n 68\n Appellants' final National Environmental Policy Act issue pertains to the Forest Service's obligation to prepare a supplemental environmental impact statement to analyze the cumulative environmental impact of potential development on land adjacent to the Category III expansion area known as the \"Gilman Tract.\" Appellants contend they provided the Forest Service with \"clear information\" it is now reasonably foreseeable Vail \"or some other purchaser will use the [Gilman tract] for development of private homes, commercial activities, and recreation, with consequently dramatic cumulative impacts on wildlife, water, forests, and other resources in and around the [Category III] area.\" Appellants further claim Vail has a financial interest in, and has discussed specific development plans for, the Gilman Tract. According to Appellants, the Forest Service \"bluntly and blithely ignore[d] the new information.\"\n \n \n 69\n Agencies are required to prepare supplemental environmental impact statements, before or after issuing a record of decision, if there are \"significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.\" 40 C.F.R. § 1502.9(c)(1)(ii); Marsh, 490 U.S. at 372. This requirement is not interpreted to require a supplemental environmental impact statement \"every time new information comes to light.\" Marsh, 490 U.S. at 373. A supplemental environmental impact statement comes into play only \"if the new information is sufficient to show [the proposed action] will affect the quality of the human environment in a significant manner or to a significant extent not already considered.\" Id. at 374 (quotation marks and citation omitted). Because the relative significance of new information is a factual issue, we review the Forest Service's decision regarding the need for a supplemental environmental impact statement under the \"arbitrary and capricious\" standard. Holy Cross, 960 F.2d at 1524 (citing Marsh, 490 U.S. at 374, 377). Consequently, we must uphold the Forest Service's decision to forego a supplemental environmental impact statement so long as the record demonstrates the Forest Service reviewed the proffered supplemental information, evaluated the significance or lack of significance of the new information, and provided an explanation for its decision not to supplement the existing analysis. Holy Cross, 960 F.2d at 1527. Applying this standard, we reject Appellants' claim.\n \n \n 70\n The record shows the Forest Service received Appellants' April 1998 letter notifying it of \"new\" information concerning the Gilman Tract. The record further shows the Forest Service reviewed and considered the import of such information, but determined it previously disclosed and addressed the relevant substantive content of the proffered information in the existing environmental review documents. Additional documents further evidence Forest Service and general public awareness of Vail's interest in potential development of the Gilman tract long before Appellant's April 1998 letter. In sum, the record amply proves the Forest Service did not arbitrarily and capriciously determine the proffered information was neither new nor significant. We therefore uphold the agency's decision to forego preparation of a supplemental environmental impact statement.\n \n III. CONCLUSION\n \n 71\n For the foregoing reasons, we hold the Forest Service complied with the National Forest Management Act and 36 C.F.R. § 219.19, and provided the \"hard look\" at the Category III expansion mandated by the National Environmental Policy Act. Accordingly, we AFFIRM the district court's judgment and orders.\n \n \n \n Notes:\n \n \n 1\n The Forest Service first contemplated an expansion into the Category III area as early as 1962, when it issued Vail's first special use permit. The 1983 and 1992 Rocky Mountain Regional Guides, which establish general policies and programmatic direction for ski area development in National Forests in Colorado and nearby states, likewise acknowledged the high priority for further development at Vail. Moreover, the 1984 White River National Forest Plan specifically designated the Category III area for ski development, and contemplated completion of such development by 1999.\n \n \n 2\n The guidelines specifically evaluated and discussed numerous aspects of lynx ecology and the impacts of proposed ski area expansion on lynx habitat. In the discussion preceding the specific guidelines identified to mitigate such impacts, Vail and the federal and state agencies acknowledged it is preferable to develop a management plan with the specific knowledge that the species in question actually exists in or adjacent to the management area. Nevertheless, they concluded that even if the species is absent, implementation of the guidelines \"is prudent for maintaining adequate habitat, if and when the species reoccupies the area.\"\n \n \n 3\n Between 1986 and its approval of the expansion in 1997, the Forest Service conducted or considered over seventy different environmental studies on Category III and nearby areas; participated in over forty meetings with the general public, environmental groups and government agencies; formally consulted with seventeen federal, state and local agencies; and prepared an environmental assessment, an environmental impact statement, a supplemental environmental impact statement, and two biological evaluations.\n \n \n 4\n This court denied Appellants' motion for injunction pending appeal by order dated October 14, 1998. Appellants' request for expedited decision, or, in the alternative, for stay pending the court's decision was likewise denied by order dated June 30, 1999.\n \n \n 5\n We afford no particular deference to the district court's review of an agency action; our review of the administrative record pertaining to the challenged action is independent. Webb v. Hodel, 878 F.2d 1252, 1254 (10th Cir. 1989); see also Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1569 n.16 (10th Cir. 1994). We compliment the parties on their extraordinary efforts to compile, organize and accurately cite to the voluminous record.\n \n \n 6\n Relevant to the issues presented here, the White River National Forest Plan allocates approximately 3% of the 2.2 million acre forest for downhill skiing. The Forest Plan instructs the Forest Service to meet the desires of recreation visitors by developing additional skiing opportunities and amenities at existing resorts. Pursuant to its authority under the National Forest Ski Area Permit Act, the Forest Service may issue permits for this purpose. The permits \"shall encompass such acreage as the Secretary determines sufficient and appropriate to accommodate the permittee's needs for ski operations and appropriate ancillary facilities.\" 16 U.S.C. § 497b(b)(3).\n \n \n 7\n For example: although probable lynx tracks were recorded in the area in 1991, last confirmed lynx sighting was on Vail Ski Area during the winter of 1973-74; last reported lynx capture within Colorado occurred twenty-five years ago on the Vail Ski Area; lack of a verifiable lynx population in Colorado is attributable to a variety of natural conditions and historic factors; only two sets of lynx tracks were positively identified after transecting 190.5 miles on and around the Vail ski area in thirteen days in 1989; a single set of possible tracks identified after transecting 2,053 miles primarily within the boundaries of the White River National Forest in 1992; after intensive efforts using snowtracking (5,833.5 mi), hair snags (62 locations), remote cameras (110 locations) and snares (686 trap nights), only eleven sets of tracks that appeared to have a high probability of being lynx were found; the Colorado Division of Wildlife has offered a $500 reward for any positive information on lynx since 1993 and has not received any; there have been no road kills or accidental trapping or shooting of lynx since 1973.\n \n \n 8\n Appellants' claim there has been no meaningful effort to collect lynx population data is unfounded. The Colorado Division of Wildlife acknowledges twelve investigations since 1972 attempting to document the presence of lynx in Colorado. In its proposal to list the lynx as \"threatened,\" the United States Fish and Wildlife Service acknowledged that \"[s]ince the late 1970's, intensive surveying efforts have revealed only minimal evidence of lynx presence\" in Colorado. Appellants cite no authority for the proposition the Forest Service itself must conduct or commission a study, concurrent with its environmental assessment of a proposed project, to satisfy its planning or species diversity mandates.\n \n \n 9\n Like the Ninth Circuit in Inland Empire, however, we encourage the Forest Service to analyze the viability of any species' population in terms of actual population size, trends, dynamics, and distribution when such data is available. See Inland Empire, 88 F.3d at 761 n.8.\n \n \n 10\n We are particularly puzzled by Appellants' argument that the Forest Service somehow acted arbitrarily and capriciously by providing and distributing lynx habitat, even in the absence of population data, in order to protect the species' future viability. They reason, \"[p]roviding habitat where few or no animals exist will not protect lynx, particularly given that the lynx may already have dropped below the level of viability.\" Apparently, Appellants seek the protection of habitat or species based on hard population data, or no protection at all; unless, as counsel suggested at oral argument, Appellants take the position that if no lynx population exists in the planning area, to comply with 36 C.F.R. § 219.19 the Forest Service may be required to introduce a lynx population and then maintain habitat for that population. Because Appellants did not raise or support that argument in their brief on appeal, we do not address it here, except to state we see no support for that proposition in the statutory or regulatory language cited.\n \n \n 11\n The Forest Service examined available data on the characteristics of lynx denning, foraging, and traveling habitats, and, based on that data, established conservative parameters for each so as to define suitable habitat and determine the amount of each type habitat contained in the project area, the landscape area, the regional area, and the eastern portion of the White River National Forest. The Forest Service concluded that because fundamental habitat needs for lynx are similar throughout their North American range, it could reasonably assume that data from the Northern Rocky Mountains are applicable to lynx habitat needs in Colorado. We agree.\n \n \n 12\n Appellants cite no evidence and do not appear to argue that the Forest Service arbitrarily assigned a numerical value to each mitigation measure. That Appellants cite to an \"expert\" who opined the Forest Service failed to discuss the mitigation measures in adequate detail, is of little consequence given our deferential standard of review and the established principal that agencies are entitled to rely on their own experts so long as their decisions are not arbitrary and capricious. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989).\n \n \n 13\n Having reviewed the record, we simply cannot agree with Appellants' assertion that the decision documents themselves adopted mitigation measures substantially different from those proposed and analyzed in the environmental impact statements.\n \n \n 14\n According to Appellants, the Colorado Environmental Coalition's Conservation Biology Alternative would provide (1) up to 232 additional acres of skiable terrain; (2) increased reliable, early season skiing without additional snowmaking; (3) a lift to improve access and alleviate skier crowding at certain areas and provide a back-up evacuation route; (4) improved and increased front-side intermediate terrain; and (5) transportation to nearby resorts to improve the overall distribution of skiers during peak periods.\n \n \n 15\n The Forest Service defined the needs of the proposal as:\n 1. To respond to a proposal which has the potential for offering more effective recreation utilization of public lands without creating additional demands and impacts on off-site lands and communities.\n 2. To help to achieve Forest Service goals by providing high quality recreation experiences for visitors to the National Forest, specifically within the Vail Ski Area [special use permit] area.\n 3. To fulfill the broad management goals of the [White River National Forest] Land and Resource Management Plan.\n The identified objectives (purposes) correspond to those needs:\n 1. Enhance the quality of skiing opportunities within [Vail's] existing [special use permit] area by [specified] means....\n 2. Make more efficient use of existing local and on-mountain infrastructure at Vail Ski Area during traditionally low periods of use.\n 3. Support community and ski area efforts to stabilize seasonal economic fluctuations and build annual skier visitation at Vail Ski Area without increasing peak-days.\n \n \n 16\n The Forest Service further explained that much of the terrain proposed under the Conservation Biology Alternative was either previously approved, and hence available under the no-action alternative (130 acres), or would not provide needed intermediate skiing due to topography, elevation or location (74 acres). Moreover, the new access lift and skier busing components of the Conservation Biology Alternative were already in place or contemplated under the other alternatives.\n \n \n 17\n The Forest Service assumed Vail's skiers-at-one-time capacity of 19,900 will remain constant as reflected and approved in Vail's existing special use permit. The Forest Service further assumed many \"pertinent aspects\" of the community's infrastructure (e.g., skier service and retail employment base, and lodging and restaurant capacity) \"have been developed to accommodate high-use periods and are underutilized during off-peak periods.\" Both assumptions are based on documented facts. The 19,900 skiers-at-one-time capacity was formally evaluated in the 1986 environmental assessment analyzing the impacts of Vail's master development plan.\n \n \n ", "ocr": false, "opinion_id": 158389 } ]

[ "278 F.2d 606" ]

[ { "author_str": "Staley", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/278/278.F2d.606.12964_1.html", "author_id": null, "opinion_text": "278 F.2d 606\n EASTERN PRODUCE CO., Inc., and Charles Taxin, Petitioners,v.Ezra Taft BENSON, Secretary of Agriculture of the United States, Respondent.\n No. 12964.\n United States Court of Appeals Third Circuit.\n Argued March 11, 1960.\n Decided May 12, 1960.\n Rehearing Denied June 8, 1960.\n \n Tom P. Monteverde, Philadelphia, Pa. (Arlin M. Adams, Josephine H. Klein, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., on the brief), for petitioners.\n Donald A. Campbell, Washington, D. C. (George Cochran Doub, Asst. Atty. Gen., Samuel D. Slade, Atty., Dept. of Justice, Washington, D. C., Neil Brooks, Asst. Gen. Counsel, U. S. Dept. of Agriculture, Washington, D. C., on the brief), for respondent.\n Before GOODRICH, STALEY and FORMAN, Circuit Judges.\n By STALEY, Circuit Judge.\n \n \n 1\n This action was instituted to review and determine the validity of an order made by the Judicial Officer of the United States Department of Agriculture1 issued under the Perishable Agricultural Commodities Act, 1930, as amended, (\"Commodities Act\"), 46 Stat. 531, 7 U.S.C.A. § 499a et seq. Two actions have been combined in this administrative proceeding: (1) an action initiated by a complaint against Eastern Produce Co., Inc. (\"Eastern\"), and (2) an action initiated by a Notice to Show Cause why a license under the Commodities Act should not be denied to Charles Taxin, the president, treasurer, and sole or principal stockholder of Eastern.\n \n \n 2\n In view of the concession by the petitioners that they committed some of the violations of the Commodities Act with which they were charged, the only issue remaining on this appeal is whether the license suspensions ordered by the Secretary of Agriculture were warranted in law.\n \n \n 3\n The facts found by the Judicial Officer, which are amply supported by the record, may be summarized as follows: On January 28, 1958, Taxin, who had held a license under the Commodities Act from December 13, 1950, until December 13, 1957, applied to the Regulatory Branch, Fruit and Vegetable Division, Agricultural Marketing Service, United States Department of Agriculture for a license. His previous license to act as a commission merchant, dealer, or broker to engage in the business of handling fresh and frozen fruits and vegetables in interstate and foreign commerce had lapsed because the annual fee had not been paid. Within a month, on February 25, 1958, the Chief, Regulatory Branch, Fruit and Vegetable Division, filed the Notice to Show Cause why a license should not be denied to Taxin because of past actions of the character prohibited by the Commodities Act while acting as an officer of Eastern. Three days thereafter a disciplinary proceeding was instituted against Eastern, alleging violations of Section 2 of the Commodities Act in that Eastern failed or refused truly and correctly to account and make full payment promptly for numerous shipments of perishable agricultural commodities received in interstate commerce on consignment or joint account. Eastern was the holder of license No. 136579, issued to it on October 24, 1951, and successively renewed on each anniversary date thereafter.\n \n \n 4\n A hearing was held in June, 1958, before a hearing examiner of the Department of Agriculture, at which all parties were represented by counsel. Briefs were thereafter filed, and following issuance of the hearing examiner's report and recommendations on February 17, 1959, exceptions were taken. The hearing examiner found against both Eastern and Taxin and recommended a 75-day license suspension as to Eastern and denial of Taxin's application until the expiration of the same period. The Judicial Officer heard oral argument on May 6, 1959, and thereafter filed a detailed decision and an order which suspended Eastern's license for forty-five days and withheld issuance of Taxin's license until the expiration of this period of suspension.2\n \n \n 5\n The Judicial Officer found that from January through May, 1956, Eastern received 53 shipments of perishable agricultural commodities on joint account in interstate commerce and failed to account truly and correctly therefor, underpaying four joint account partners. He additionally found that during the same period Eastern received 20 shipments of perishable agricultural commodities on consignment for which it failed to account truly and correctly and underpaid the consignors. The false accountings and underpayments made by Eastern were found to have been caused by Taxin.\n \n \n 6\n Although conceding that they committed some of the violations of the Commodities Act with which they are charged, petitioners vigorously contend that the sanctions imposed are unlawful inasmuch as the violations were not of such a nature as would warrant their imposition and that before the suspension was ordered full corrective measures had been instituted. In support of the first proposition, petitioners introduced evidence to show that the underpayments made in the 44 transactions with Peninsula Seafood and Produce Company, Inc., which underpayments were admitted, resulted from an attempt by Eastern to collect a claim of $4,000 it allegedly held against Jody Rhodes, president and part owner of Peninsula. The debt was asserted to have arisen as the result of his failure to pay his share of a loss sustained in a joint account transaction involving a tomato crop in Fort Pierce, Florida. To say the least, the evidence regarding this explanation and the entire series of transactions with Peninsula and Rhodes was highly conflicting and dependent upon the credibility of the witnesses. The Judicial Officer thoroughly considered each and every aspect of the evidence and chose, in the main, to disbelieve the petitioners' explanation.\n \n \n 7\n With respect to the remaining transactions, petitioners contended that the false accountings and underpayments represented alleged anticipated clips3 to be made by Eastern's customers from the purchase price of the produce sold by Eastern on behalf of the shippers. Once again the evidence presented was conflicting, and the Judicial Officer chose to disbelieve some of that proffered by petitioners.4 In this regard, it is particularly significant that the accountings of the sales rendered to these consignors and joint venturers stated lower unit sales prices and gross proceeds than the actual sales prices and gross proceeds for which the produce was sold to Eastern's customers. The shippers were paid the lesser amounts shown on the accountings which never indicated that deductions had been made, either for anticipated clips or as recoupment for tomato transaction losses.\n \n \n 8\n The Judicial Officer in considering the proper remedy for these violations recognized that, despite the broad authority seemingly granted to the Secretary in 7 U.S.C. § 499h(a), the standard to be applied with regard to suspension of licenses was that set forth in Section 9 (b) of the Administrative Procedure Act, 5 U.S.C. § 1008(b). That section provides:\n \n \n 9\n \"* * * Except in cases of willfulness * * * no * * * suspension * * * of any license shall be lawful unless, prior to the institution of agency proceedings therefor, facts or conduct which may warrant such action shall have been called to the attention of the licensee by the agency in writing and the licensee shall have been accorded opportunity to demonstrate or achieve compliance with all lawful requirements. * * *\"\n \n \n 10\n The Judicial Officer made a specific finding of \"willfulness\" which if supported by the evidence would warrant imposition of the license suspension.\n \n \n 11\n Petitioners, as we have heretofore noted, urge upon this court two grounds for voiding the orders of the Judicial Officer, namely, (1) that inasmuch as full corrective measures had been instituted prior to the time suspension was ordered and no willfulness was shown by the evidence, the orders were arbitrary, capricious and contrary to law, and (2) that the violations were not of such nature as would legally warrant punitive sanctions.\n \n \n 12\n It is clear that where willfulness can be shown on the part of individuals violating valid regulations, license suspension is authorized without resort on the part of the agency to notice and opportunity for compliance. 5 U.S.C. § 1008(b). Petitioners assert that the record does not support a finding of willfulness and that the Judicial Officer's conclusion to this effect is inconsistent with his finding of neglect on the part of the petitioners. A fair reading of the Decision and Order rendered by the Judicial Officer indicates that this argument is in great measure semantical. The Decision states: \"At the least, underpayment to the shippers involved herein, including Peninsula, in many transactions over a five-month period demonstrates such neglect of the requirements of the act as to constitute willful violations thereof. We conclude that Eastern's willful failures to account truly and correctly and to make full payment promptly to shippers in the many transactions involved herein constitute repeated and flagrant violations of Section 2 of the act.\" This is not equation of neglect and willfulness but, on the contrary, a finding, although perhaps unartfully phrased, that notorious neglect of explicit provisions of law may be evidence of willfulness. Nor can we subscribe to the proposition that the test of willfulness in this context is to be evil purpose or criminal intent, for this is not a criminal statute. As the Supreme Court stated in United States v. Illinois Central R. Co., 1938, 303 U.S. 239, 242-243, 58 S. Ct. 533, 535, 82 L. Ed. 773:\n \n \n 13\n \"* * * In statutes denouncing offenses involving turpitude, `willfully' is generally used to mean with evil purpose, criminal intent or the like. But in those denouncing acts not in themselves wrong, the word is often used without any such implication. Our opinion in United States v. Murdock, 290 U.S. 389, 394 [54 S. Ct. 223, 225, 78 L. Ed. 381], shows that it often denotes that which is `intentional, or knowing, or voluntary, as distinguished from accidental,' and that it is employed to characterize `conduct marked by careless disregard whether or not one has the right so to act.'\"\n \n \n 14\n We are convinced that the provisions of the Commodities Act are clear, and the repeated violation thereof by the petitioners fully justified the finding of willfulness by the Judicial Officer.\n \n \n 15\n Petitioners' second contention is equally without merit. It must be remembered that on this appeal we are being asked to review and set aside an order of the Secretary of Agriculture, not to enforce a cease and desist or like order of a regulatory body. Thus the scope of our review is quite limited,5 and referral to cases such as Hecht Co. v. Bowles, 1944, 321 U.S. 321, 64 S. Ct. 587, 88 L. Ed. 754 is unwarranted. As we pertinently stated in Arrow Metal Products Corp. v. Federal Trade Commission, 3 Cir., 1957, 249 F.2d 83, 85, where petitioners sought to have us set aside a cease and desist order issued against them by the Commission:\n \n \n 16\n \"The petitioners complain that the cease and desist order is too drastic and that some other manner of preventing deception, if any, should be adopted. But the matter of shaping a remedy is for the Commission. Our function is simply, in the words of the Supreme Court, to find whether the Commission has made `an allowable judgment in its choice of the remedy.' Jacob Siegel Co. v. Federal Trade Commission, 1946, 327 U.S. 608, 612, 66 S. Ct. 758, 760, 90 L. Ed. 888. * *\"\n \n \n 17\n See also G. H. Miller & Co. v. United States, 7 Cir., 1958, 260 F.2d 286, 296, certiorari denied Miller v. United States, 1959, 359 U.S. 907, 79 S. Ct. 582, 3 L. Ed. 2d 572.\n \n \n 18\n Petitioners' extended argument to the effect that this license suspension is purely punitive, not remedial, and thus cannot be justified is simply not persuasive. The order invokes only a civil, administrative remedy. The issue was put to rest in Helvering v. Mitchell, 1938, 303 U.S. 391, 399, 58 S. Ct. 630, 633, 82 L. Ed. 917, where Justice Brandeis indicated that \"Remedial sanctions may be of varying types. One which is characteristically free of the punitive criminal element is revocation of a privilege voluntarily granted.\" We concur with the expressed opinions of the First and Seventh Circuits that \"suspension of a registrant is not primarily punishment for a past offense but is a necessary power granted to the Secretary of Agriculture to assure a proper adherence to the provisions of the Act.\" Nichols & Co. v. Secretary of Agriculture, 1 Cir., 1942, 131 F.2d 651, 659, modified in another particular on rehearing, 1 Cir., 1943, 136 F.2d 503; Daniels v. United States, 7 Cir., 242 F.2d 39, 42, certiorari denied 1957, 354 U.S. 939, 77 S. Ct. 1402, 1 L. Ed. 2d 1538.\n \n \n 19\n The Judicial Officer considered all mitigating circumstances in arriving at his decision. Since his order is well within the allowable choice of remedy, we have no right to change the penalty because the agency might have imposed a different one.6 Moog Industries, Inc. v. Federal Trade Commission, 1958, 355 U.S. 411, 78 S. Ct. 377, 2 L. Ed. 2d 370; G. H. Miller & Co. v. United States, supra.\n \n \n 20\n The order will be affirmed.\n \n \n \n Notes:\n \n \n 1\n The Judicial Officer acted for the Secretary of Agriculture pursuant to authority so delegated to him. 10 Fed.Reg. 13769; 11 Fed.Reg. 177A-233; 18 Fed.Reg. 3219; 18 Fed.Reg. 3648; 19 Fed.Reg. 74\n \n \n 2\n Authority for this action was grounded upon 7 U.S.C. § 499h(a):\n \"Whenever (a) the Secretary determines * * * that any commission merchant, dealer, or broker has violated any of the provisions of section 499b of this title * * * the Secretary may publish the facts and circumstances of such violation and/or, by order, suspend the license of such offender for a period not to exceed ninety days, except that, if the violation is flagrant or repeated, the Secretary may, by order, revoke the license of the offender * * *.\"\n Section 499b reads in part:\n \"It shall be unlawful in or in connection with any transaction in interstate or foreign commerce —\n * * * * *\n \"(4) For any commission merchant, dealer, or broker to make, for a fraudulent purpose, any false or misleading statement in connection with any transaction involving any perishable agricultural commodity which is received in interstate or foreign commerce by such commission merchant, or bought or sold, or contracted to be bought, sold, or consigned, in such commerce by such dealer, or the purchase or sale of which in such commerce is negotiated by such broker; or to fail or refuse truly and correctly to account and make full payment promptly in respect of any transaction in any such commodity to the person with whom such transaction is had * * *.\"\n \n \n 3\n Deductions made by purchasers of perishable commodities for defects in the quality of the produce delivered to them\n \n \n 4\n Petitioners' evidence failed to prove that the actual clips made by its customers related to any particular lot or lots of produce and therefore comparison of anticipated and actual clips was impossible\n \n \n 5\n Authority is conferred upon us by 5 U.S. C. § 1032, which reads as follows:\n \"The court of appeals shall have exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of, all final orders (a) of the Federal Communications Commission made reviewable in accordance with the provisions of section 402(a) of title 47, and (b) of the Secretary of Agriculture made under the Packers and Stockyards Act, 1921, as amended, and under the Perishable Agricultural Commodities Act, 1930, as amended, except orders issued under sections 210(e), 217a, and 499g(a) of Title 7, * * *.\"\n \n \n 6\n In a footnote in petitioners' reply brief, they suggest that the orders cannot be sustained unless the violations are \"repeated and/or flagrant\" as well as \"willful\" inasmuch as the Judicial Officer made both findings. This argument is unsound inasmuch as the statute is clear that the Secretary, if he makes a finding of willfulness, has authority to suspend licenses for not only forty-five days but up to and including ninety days. In any case, there is no doubt that this finding of the Judicial Officer has ample support, for a mere lumping of similar illegal acts into categories cannot conceal their number\n \n \n ", "ocr": false, "opinion_id": 251027 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 2, "download_url": "http://www.courts.state.hi.us/docs/opin_ord/sct/2014/March/SCWC-29440am2.pdf", "author_id": null, "opinion_text": " Electronically Filed\n Supreme Court\n SCWC-29440\n 14-MAR-2014\n 10:10 AM\n\n\n\n\n SCWC-29440\n\n IN THE SUPREME COURT OF THE STATE OF HAWAI#I\n\n\n KAUAI SPRINGS, INC.,\n Petitioner/Appellant-Appellee,\n\n vs.\n\n PLANNING COMMISSION OF THE COUNTY OF KAUA#I,\n Respondent/Appellee-Appellant.\n\n\n CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS\n (ICA NO. 29440; CIV. NO. 07-1-0042)\n\n ORDER OF CORRECTION\n (By: Pollack, J.)\n\n IT IS HEREBY ORDERED that the Opinion of the Court,\n\nfiled on February 28, 2014, is corrected as follows:\n\n 1. On page 107, in the attorney credits, add the\n\nfollowing:\n\n Issac Moriwake\n on the brief for Amici Curiae\n Mâlama Kaua#i and Hawaii’s Thousand Friends\n\n Jon M. Van Dyke\n Ernest M. Kimoto\n on the brief for Amicus Curiae\n Office of Hawaiian Affairs\n\f The Clerk of the Court is directed to take all\n\nnecessary steps to notify the publishing agencies of this change.\n\n DATED: Honolulu, Hawai#i, March 14, 2014.\n\n /s/ Richard W. Pollack\n\n Associate Justice\n\n\n\n\n -2-\n\f", "ocr": false, "opinion_id": 2656805 } ]

[ "966 So. 2d 998" ]

[ { "author_str": null, "per_curiam": true, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n966 So. 2d 998 (2007)\nKevin Lamar FOUNTAIN, Petitioner,\nv.\nSTATE of Florida, Respondent.\nNo. 1D07-4836.\nDistrict Court of Appeal of Florida, First District.\nOctober 10, 2007.\nKevin Lamar Fountain, pro se, Petitioner.\nBill McCollum, Attorney General, Tallahassee, for Respondent.\nPER CURIAM.\nThe petition alleging ineffective assistance of appellate counsel is denied on the merits.\nBROWNING, C.J., BARFIELD and BENTON, JJ., concur.\n", "ocr": false, "opinion_id": 1682418 } ]

[ "914 A.2d 834", "189 N.J. 203" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n914 A.2d 834 (2007)\n189 N.J. 203\nIn the Matter of Maria Ines GONZALEZ, an Attorney at Law (Attorney No. XXXXXXXXX).\nSupreme Court of New Jersey.\nJanuary 25, 2007.\n\nORDER\nThe Disciplinary Review Board having filed with the Court its decision in DRB 06-184, concluding that MARIA INES GONZALEZ of JAMAICA, NEW YORK, who was admitted to the bar of this State *835 in 1987, should be suspended from the practice of law for a period of six months for violating RPC 1.5 and Rule 1:21-6(c)(1)(a) (failure to safeguard funds by impermissibly allowing the use of a signature stamp on trust account checks), RPC 5.3(a) (failure to properly supervise non-lawyer assistants), RPC 5.4(a) (sharing legal fees with a non-lawyer), former RPC 5.5(b) (now RPC 5.5(a)(2)) (assisting non-lawyer in the unauthorized practice of law), and RPC 8.4(a) (assisting another to violate the RPCs);\nAnd the Disciplinary Review Board having further concluded that on reinstatement to the practice of law, respondent should be required to practice under supervision;\nAnd the Court having determined from its review of the record that the appropriate quantum of discipline for respondent's unethical conduct is a three-month suspension from practice;\nAnd good cause appearing;\nIt is ORDERED that MARIA INES GONZALEZ is suspended from the practice of law for a period of three months and until the further Order of the Court, effective February 24, 2007; and it is further\nORDERED that on reinstatement to practice, respondent shall practice under the supervision of a practicing attorney approved by the Office of Attorney Ethics for a period of one year and until the further Order of the Court;\nORDERED that respondent comply with Rule 1:20-20 dealing with suspended attorneys; and it is further\nORDERED that pursuant to Rule 1:20-20(c), respondent's failure to comply with the Affidavit of Compliance requirement of Rule 1:20-20(b)(15) may (1) preclude the Disciplinary Review Board from considering respondent's petition for reinstatement for a period of up to six months from the date respondent files proof of compliance; (2) be found to constitute a violation of RPC 8.1(b) and RPC 8.4(c); and (3) provide a basis for an action for contempt pursuant to Rule 1:10-2; and it is further\nORDERED that the entire record of this matter be made a permanent part of respondent's file as an attorney at law of this State; and it is further\nORDERED that respondent reimburse the Disciplinary Oversight Committee for appropriate administrative costs and actual expenses incurred in the prosecution of this matter, as provided in Rule 1:20-17.\n", "ocr": false, "opinion_id": 2363220 } ]

[ "920 F. Supp. 2d 73" ]

[ { "author_str": "Wilkins", "per_curiam": false, "type": "010combined", "page_count": 17, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2010cv1223-44", "author_id": null, "opinion_text": " UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n\nDELARSE MONTGOMERY,\n\n Plaintiff,\n\n v. Civil Action No. 10-cv-1223 (RLW)\n\nJOSHUA GOTBAUM, Director,\n Pension Benefit Guaranty Corporation,\n\n Defendant.\n\n\n MEMORANDUM OPINION\n\n Plaintiff DeLarse Montgomery (“Montgomery”) brings this lawsuit against his former\n\nemployer the Pension Benefit Guaranty Corporation (“PBGC”), proceeding against Joshua\n\nGotbaum, Director of the PBGC, in his official capacity. 1 Montgomery’s claims all stem from\n\nhis non-selection for a GS-510-12/13 Accountant position in the Collection and Compliance\n\nDivision of PBGC’s Financial Operations Department. As set forth in his Complaint,\n\nMontgomery asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e,\n\net seq., and the Age Discrimination of Employment Act (“ADEA”), 29 U.S.C. §§ 633a, et seq.,\n\narguing that PBGC’s failure to select him for the position was discriminatory on the basis of age\n\n(58 at the time), gender (male), and race (African American). He also alleges that PBGC\n\nunlawfully retaliated against him for engaging in protected activity—lodging prior complaints of\n\ndiscrimination against PBGC with the Equal Employment Opportunity Commission (“EEOC”).\n1\n Montgomery initially named as defendants Hilda L. Solis, Secretary of Labor and Chair\nof the PBGC, and Vincent K. Snowbarger, former Executive Director of the PBGC, in their\nofficial capacities. Pursuant to Federal Rule of Civil Procedure 25(d), and with the parties’\nconsent, Joshua Gotbaum, the present Director of the PBGC, was subsequently substituted as the\ndefendant. (See Dkt. No. 18). As Director Gotbaum is named in his official capacity, the Court\nwill refer to the defendant throughout this opinion as “PBGC” for simplicity’s sake.\n 1\n\fThis matter is presently before the Court on PBGC’s Motion for Summary Judgment. (Dkt. No.\n\n34). Having carefully considered the parties’ briefing and the entire record in this case, the Court\n\nconcludes that the PBGC’s Motion will be GRANTED for the reasons set forth herein.\n\n\n\n BACKGROUND\n\n The Pension Benefit Guaranty Corporation is a wholly-owned United States Government\n\ncorporation established by the Employee Retirement Income Security Act of 1975 (ERISA), 28\n\nU.S.C. § 1302, to administer the pension plan termination insurance program under Title IV of\n\nERISA, 29 U.S.C. §§ 1301-1461. PBGC is funded preliminary through the collection of\n\npremiums paid by certain types of pension plans. Id. at §§ 1306-07. (Dkt. No. 43-1, Joint\n\nStatement of Material Facts (“Joint Facts”) at ¶ 1). 2\n\n On September 14, 2005, PBGC issued vacancy announcement “FODCCD-2005-006,” for\n\na GS-510-12/13 Accountant position within the Collections and Compliance Division of PBGC’s\n\nFinancial Operations Department. (Id. at ¶ 11). The vacancy announcement was posted on the\n\nPBGC Online Automated Referral System (“POLARS”), as well as the Office of Personnel\n\nManagement’s USA JOBS website. (Id.). The announcement advised that “it [was] strongly\n\nrecommended that applicants submit a complete online application and electronic resume via\n\n[POLARS].” (Id.).\n\n Plaintiff DeLarse Montgomery began his employment with PBGC in 1986 as a GS-5\n\nsecretary in the Financial Operations Division. (Id. at ¶ 2). He subsequently progressed within\n\nPBGC, ultimately becoming a GS-12 Financial Specialist in the Investment Accounting Branch.\n\n\n\n2\n The facts set forth herein are drawn largely from the parties’ “Joint Document of Material\nFacts” at Docket Entry 43-1, although the Court sometimes cites directly to evidence in the\nrecord, where appropriate.\n 2\n\f(Id. at ¶ 3). On October 5, 2005, Montgomery applied for the GS-510-12/13 Accountant\n\nposition, submitting a paper copy of his application to PBGC’s Human Resources Division. (Id.\n\nat ¶ 14). At the time the vacancy announcement was published, PBGC’s Human Resources\n\nDepartment used a program called “QuickHire” to determine whether an applicant met the\n\nminimum qualifications for the position. (Id. at ¶ 15). Based on applicants’ responses in the\n\nPOLARS electronic system, QuickHire automatically “screened out” applicants when the\n\nsoftware determined that the minimum qualifications for the position were not met, and it\n\ngenerated a list of the remaining candidates that did meet the position’s qualifications. (Id.).\n\nThe lists were then reviewed by Human Resources Specialists, who generated a roster of\n\nminimally-qualified applications for the Subject Matter Expert (“SME”) to review. (Id.).\n\n In this case, after QuickHire conducted an initial screening of the candidates, the list of\n\neligible applicants was forwarded to Kenneth Kofsky, the SME for the vacancy, in early\n\nNovember 2005. (Id. at ¶ 16). Mr. Kofsky rated the applicants and they were then placed on\n\n“Certificates of Eligibles,” which were forwarded to the sole decisionmaker for the position,\n\nRobert Callahan, the Financial Program Manager for the Collections and Compliance Division.\n\n(Id. at ¶¶ 16, 18). Because Montgomery did not submit his application electronically, it appears\n\nthat the QuickHire system failed to include his application on the original list of eligible\n\napplicants, which meant that his application was not initially provided to Mr. Kofsky for rating,\n\nor to Mr. Callahan for consideration. (Id. at ¶¶ 16-17). Based on the listing he did receive, Mr.\n\nCallahan proceeded to interview the candidates and initially selected Kathryn Gillis for the\n\nposition, but Ms. Gillis declined the offer. 3 (Id. at ¶ 18).\n\n\n\n3\n Ms. Gillis had a Bachelor of Science degree in Accounting, was in the process of\ncompleting a Master of Science in Accounting, and held a Certified Public Accountant\ndesignation. (Joint Facts at ¶ 18).\n 3\n\f After Ms. Gillis turned down the position, PBGC proceeded to compile a second round of\n\ncandidates to be considered for the vacancy. During that timeframe, on December 13, 2005,\n\nMontgomery contacted Human Resources to inquire about the status of his application. (Id. at ¶\n\n17). Montgomery was initially informed that his application was not considered because he did\n\nnot apply electronically via POLARS. (Id.). Nevertheless, Rick Lattimer, a Human Resources\n\nManager, directed Jacqueline Isaac, a Human Resources Specialist, to place Montgomery’s name\n\non the second round of certificates to be sent to Mr. Callahan. (Id. at ¶ 19; Dkt. No. 34-3 at ECF\n\npp. 107-113; Dkt. No. 34-10 at 33).\n\n Thereafter, Mr. Callahan contacted Montgomery to schedule an interview, and because\n\nMontgomery was on a scheduled leave of absence at the time, Mr. Callahan offered Montgomery\n\nthe option of interviewing in person or by telephone. (Joint Facts at ¶ 21.). Montgomery chose\n\nto interview by telephone; he was the only candidate who did not interview in person. (Id.).\n\nDuring the interview, Mr. Callahan recognized that Montgomery met the “minimum”\n\neducational requirements for the position, but asked if Montgomery had any intention of\n\npursuing further education that could be beneficial to the position. (Id.). According to Mr.\n\nCallahan, Montgomery replied that he had no interest in pursuing additional education because\n\nhe “was tired.” (Id.; Dkt. No. 34-13 at ¶ 3). 4 In addition, although Mr. Callahan had\n\nadministered an electronic writing and a Microsoft Excel exercise to the other applicants for the\n\nposition, he did not ask Montgomery to complete the exercise due to his poor performance\n\n\n\n\n4\n Montgomery argues that this fact is “flatly contradicted” by his deposition testimony,\nwherein he supposedly stated that he told Mr. Callahan that the reason he could not go back to\nschool was because the cost of his blood pressure medication was prohibitive, not because he\n“was tired.” (See Dkt. No. 37 (“Pl.’s Opp’n”) at 9). But regardless of the reason, Montgomery\ndoes not dispute that he told Mr. Callahan he was not in a position to pursue any further\neducation.\n 4\n\fduring the initial portions of the interview. (Joint Facts at ¶ 21.). According to Mr. Callahan’s\n\naffidavit:\n\n [He] formulated the opinion, based on [Montgomery’s] overall performance in the\n interview, the qualifications listed on his applications, and his specific posture in\n exhibiting no interest in professional growth or improvement, that Mr.\n Montgomery was not the best candidate for the position and in fact, made the\n least favorable impression among all the candidates.\n\n(Dkt. No. 34-13 at ¶ 4).\n\n Mr. Callahan also interviewed Rhonda Dickerson-Mack for the vacancy. (Joint Facts at ¶\n\n22). Ms. Mack submitted her application electronically via POLARS, but she initially received a\n\nnotification that she did not qualify for the position. (Id.). After she contacted the Human\n\nResources Department, PBGC determined that the QuickHire software erroneously “screened\n\nout” Ms. Mack, such that her name was also not included on the initial candidate listings\n\nforwarded to Mr. Callahan for consideration. (Id.). Upon discovering the issue, PBGC\n\nforwarded Ms. Mack’s application to Mr. Callahan for review and consideration. (Id.). Thus,\n\nlike Montgomery, Ms. Mack’s application was also submitted to Mr. Callahan for review much\n\nlater in the process than some of the other candidates. Ms. Mack possessed an Associate’s\n\nDegree in Accounting, was employed by PBGC as an Accountant at the time of her application,\n\nand had prior work experience as an Operating Accounting at the GS-510-13 level with the\n\nFederal Aviation Administration from 1997 to 2005. (Id.; Dkt. No. 37-24 at 8-11). During his\n\ninterview of Ms. Mack, Mr. Callahan administered the writing and Microsoft Excel exercise.\n\n(Id. at ¶ 23). Mr. Callahan ultimately selected Ms. Mack for the position. (Id.). Ms. Mack, like\n\nMontgomery, is African American. (Dkt. No. 37-3 at 11-12).\n\n On January 23, 2006, Montgomery was notified that he was not chosen for the\n\nAccountant vacancy because “[a]nother candidate was selected.” (Dkt. No. 37-15). On March\n\n7, 2006, Montgomery filed a formal complaint of discrimination with the EEOC, and he\n 5\n\fsubsequently filed the instant lawsuit on July 20, 2010. (Joint Facts at ¶¶ 25-26). Overall,\n\nMontgomery has filed a total of four complaints with the EEOC, including the complaint that\n\npreceded the instant lawsuit. 5 (Id. at ¶ 7). Montgomery has since retired from PBGC, electing to\n\nparticipate in a voluntary early retirement program effective September 30, 2006. (Id. at ¶ 3).\n\n\n\n ANALYSIS\n\n A. Standard of Review\n\n Summary judgment is appropriate when the moving party demonstrates that there is no\n\ngenuine issue as to any material fact and that the moving party is entitled to judgment as a matter\n\nof law. FED. R. CIV. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Moore\n\nv. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). To establish a genuine issue of material fact, the\n\nnonmoving party must demonstrate—through affidavits or other competent evidence, FED. R.\n\nCIV. P. 56(c)(1)—that the quantum of evidence “is such that a reasonable jury could return a\n\nverdict for the nonmoving party.” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting\n\nAnderson, 477 U.S. at 248). While the Court views all facts in the light most favorable to the\n\nnonmoving party in reaching that determination, Keyes v. District of Columbia, 372 F.3d 434,\n\n436 (D.C. Cir. 2004), the nonmoving party must nevertheless provide more than “a scintilla of\n\nevidence” in support of its position, Anderson, 477 U.S. at 252.\n\n\n\n\n5\n At least one of those prior complaints was ultimately litigated in the U.S. District Court\nfor the District of Columbia. Judge Ricardo Urbina dismissed Montgomery’s claims in that\ncase—which asserted allegations of gender, race, and age discrimination and of retaliation based\non his non-selection for an Accountant vacancy at PBGC—on summary judgment. See\nMontgomery v. Chao, 495 F. Supp. 2d 2 (D.D.C. 2007). That decision was subsequently\naffirmed by the Court of Appeals in a published opinion. Montgomery v. Chao, 546 F.3d 703,\n705 (D.C. Cir. 2008).\n 6\n\f B. Montgomery’s Discrimination Claims Based On Race, Sex, and Age\n\n Title VII forbids an employer from discriminating against any individual because of race\n\nor sex. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting 42 U.S.C. § 2000e-2(a)(1)).\n\nUnder McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Title VII discrimination claims\n\nare assessed under a familiar, three-step framework. First, to establish a prima facie case of\n\ndiscrimination a plaintiff must demonstrate, by a preponderance of the evidence, that: “(1) [ ]he\n\nis a member of a protected class; (2) [ ]he suffered an adverse employment action; and (3) the\n\nunfavorable action gives rise to an inference of discrimination.” Wiley v. Glassman, 511 F.3d\n\n151, 155 (D.C. Cir. 2007) (quoting Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)).\n\nSecond, once a plaintiff establishes a prima facie case, the burden shifts to the employer to\n\narticulate a “legitimate, nondiscriminatory reason” for the challenged employment action.\n\nMcDonnell Douglas, 411 U.S. at 802-04; Wiley, 511 F.3d at 155. Finally, the plaintiff “must be\n\nafforded the opportunity to prove” that the employer’s proffered motive “was not its true reason,\n\nbut was a pretext for discrimination.” Barnette v. Chertoff, 453 F.3d 513, 516 (D.C. Cir. 2006)\n\n(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)).\n\n The Age Discrimination in Employment Act (ADEA) makes it unlawful for an employer\n\nto terminate or otherwise discriminate against an individual “because of such individual’s age.”\n\n29 U.S.C. § 623(a)(1). Like claims under Title VII, ADEA claims are evaluated pursuant to the\n\nsame three-part, burden-shifting framework outlined above. Barnette, 453 F.3d at 515. As to\n\nboth categories of claims, however, the D.C. Circuit has instructed that, once an employer\n\nprovides a legitimate, non-discriminatory basis for its decision at the summary judgment stage,\n\n“the district court need not—and should not—decide whether the plaintiff actually made out a\n\nprima facie case.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008)\n\n(emphasis in original). Rather, the central question for the Court to resolve is whether “the\n 7\n\femployee produced sufficient evidence for a reasonable jury to find that the employer’s asserted\n\nnon-discriminatory reason was not the actual reason and that the employer intentionally\n\ndiscriminated against the employee on the basis of race, . . . sex, [and/or age].” Id.; see also\n\nHampton v. Vilsack, 685 F.3d 1096, 1100 (D.C. Cir. 2012). In so doing, the Court must\n\nconsider: “(1) the plaintiff’s prima facie case; (2) any evidence the plaintiff presents to attack the\n\nemployer’s proffered explanations for its actions; and (3) any further evidence of discrimination\n\nthat may be available to the plaintiff (such as independent evidence of discriminatory statements\n\nor attitudes on the part of the employer) or any contrary evidence that may be available to the\n\nemployer (such as evidence of a strong track record in equal opportunity employment).”\n\nCzekalski v. Peters, 475 F.3d 360, 363-64 (D.C. Cir. 2007) (quoting Aka v. Wash. Hosp. Ctr.,\n\n156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc)). “This boils down to two inquiries: could a\n\nreasonable jury infer that the employer’s given explanation was pretextual, and, if so, could the\n\njury infer that this pretext shielded discriminatory motives?” Murray v. Gilmore, 406 F.3d 709,\n\n713 (D.C. Cir. 2005).\n\n Here, since the PBGC has advanced a legitimate reason for its decision—that it simply\n\nselected a better-qualified candidate for the Accountant position—the Court proceeds directly to\n\nthe ultimate question and asks whether Montgomery has adduced sufficient evidence for a\n\nreasonable jury to conclude that the PGBC’s proffered reason for its decision is pretextual, and\n\nthat its real motivation was discrimination based on Montgomery’s race, sex, and/or age. The\n\nCourt concludes he has not.\n\n To show pretext, a plaintiff may generally offer evidence that similarly-situated\n\nemployees outside the protected class were treated “more favorably in the same factual\n\ncircumstances,” or “[a]lternatively, the employee may attempt to demonstrate that the employer\n\n\n\n 8\n\fis making up or lying about the underlying facts that formed the predicate for the employment\n\ndecision.” Brady, 520 F.3d at 495; see also Royall v. Nat’l Ass’n of Letter Carriers, AFL-CIO,\n\n548 F.3d 137, 144 (D.C. Cir. 2008). Under the latter approach, which Montgomery pursues\n\nhere, “[i]f the employer’s stated belief about the underlying facts is reasonable in light of the\n\nevidence, however, there ordinarily is no basis for permitting a jury to conclude that the\n\nemployer is lying about the underlying facts.” Brady, 520 F.3d at 495. Indeed, this Court does\n\nnot sit as a “super-personnel department” that reexamines an employer’s business decisions.\n\nBarbour v. Browner, 181 F.3d 1342, 1346 (D.C. Cir. 1999); see also George v. Levitt, 407 F.3d\n\n405, 415 (D.C. Cir. 2005) (“[A]n employer’s action may be justified by a reasonable belief in the\n\nvalidity of the reason given even though that reason may turn out to be false.”); Fischbach v.\n\nD.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (explaining that a court “may not\n\nsecond-guess an employer’s personnel decision absent demonstrably discriminatory motive”).\n\n Montgomery attempts to establish pretext by attacking the legitimacy of PBGC’s\n\nexplanation for not selecting him for the Accountant position. He principally argues that Mr.\n\nCallahan’s explanations for selecting Ms. Mack (and, in turn, for not selecting Montgomery) are\n\n“inconsistent” and have “shifted” over time. (Pl.’s Opp’n at 12-16). In turn, he contends that a\n\njury could infer from this evidence that Mr. Callahan’s explanations are pretextual and that his\n\ntrue motivation was discrimination—whether based on Montgomery’s age, gender, and/or race.\n\nMore specifically, Montgomery points out then when Mr. Callahan initially explained his\n\ndecision—in his statement to the EEOC in 2007—he first indicated that the main reason he\n\nchose Ms. Mack over Montgomery was that she held a Bachelor’s Degree in Accounting, while\n\nMontgomery did not. (Id. at 14). In reality, Ms. Mack has an Associate’s Degree in accounting,\n\nnot a Bachelor’s Degree. (Joint Facts at ¶ 22). Second, during his deposition in the EEOC\n\n\n\n 9\n\fproceedings, Mr. Callahan testified that he found Ms. Mack to be a better candidate because of\n\nher experience—she was an accountant and had previous accounting experience, while Mr.\n\nMontgomery did not. (Pl.’s Opp’n at 14 (citing Dkt. No. 37-19 at 65)). Finally, Montgomery\n\npoints to the affidavit submitted by Mr. Callahan in connection with the instant motion, wherein\n\nhe attested that he did not select Montgomery due to “his overall performance in the interview . .\n\n. and his specific posture in exhibiting no interest in professional growth or improvement.” (Id.\n\nat 15 (citing Dkt. No. 34-13)). Pointing to these explanations, Montgomery argues that Mr.\n\nCallahan’s “waffling” between reasons is sufficient evidence of pretext to withstand summary\n\njudgment. The Court disagrees.\n\n It is true that a decision-maker’s “shifting and inconsistent” explanations for an adverse\n\nemployment action can be probative of pretext. See Geleta v. Gray, 645 F.3d 408, 413 (D.C.\n\nCir. 2011) (collecting cases); Czekalski, 475 F.3d at 367. However, the Court does not find Mr.\n\nCallahan’s explanations in this case to be “inconsistent.” While it is true that he did not always\n\narticulate his decision in precisely the same manner or using precisely the same words, his\n\noverarching rationale for choosing Ms. Mack over Montgomery has always remained the same—\n\nhe found Ms. Mack to be the better-qualified candidate for the position. Moreover, the key issue\n\nis whether Mr. Callahan “honestly and reasonably believed” that Ms. Mack was more qualified\n\nfor the position, Brady, 520 F.3d at 496, and Montgomery offers no evidence to undermine the\n\nlegitimacy of Mr. Callahan’s belief in this regard.\n\n The Court recognizes that Mr. Callahan may have misremembered the level of Ms.\n\nMack’s accounting degree during his first explanation—recounting that she had a Bachelor’s\n\nDegree, rather than an Associate’s Degree—but the fact remains that Ms. Mack has a specialized\n\ndegree in accounting, while Montgomery does not. Montgomery does not dispute this fact.\n\n\n\n 10\n\f(Joint Facts at ¶ 22). Additionally, it bears noting that, in his initial response to the EEOC, Mr.\n\nCallahan only stated that the candidates’ educational comparison was “the biggest difference,”\n\nnot the only difference. (Dkt. No. 37-3 at 13). He never contradicted that justification, but he\n\nlater elaborated on his rationale during deposition proceedings, explaining that Ms. Mack’s prior\n\naccounting experience—as compared to Montgomery’s lack of any accounting experience—\n\nmade her a better candidate for the position. 6 Finally, both of those explanations square\n\ncompletely with Mr. Callahan’s most recent explanation, and in arguing otherwise, Montgomery\n\nomits the critical portion of the complete statement in Mr. Callahan’s affidavit, wherein he stated\n\nthat he did not choose Montgomery based on “his overall performance in the interview, the\n\n6\n Montgomery goes so far as to argue that Mr. Callahan “disavowed” his earlier\nexplanation—that Ms. Mack’s education was superior to Montgomery’s—during his deposition.\n(Pl.’s Opp’n at 14). The record does not support this assertion. Rather, the deposition passage\nMontgomery cites in support of this contention reveals only that his counsel attempted to secure\nthis concession from Mr. Callahan, but Mr. Callahan did not agree with counsel’s representation\nand never testified as much:\n Q: Are you able to tell me what it was about Ms. Mack that made you think that\n she’s a better candidate than Mr. Montgomery? It wasn’t education. Right?\n A: She had better experience. She was - - she had worked at the GS-13 level for a\n number of years. She was an accountant. Mr. Montgomery was - - had never been an\n accountant.\n Q: But he was qualified to be an accountant, though, wasn’t he? Or he wouldn’t\n have been on the list.\n A: True. But I had to choose the best candidate, and I chose the one that had\n accounting experience over the one that didn’t, had a lot of accounting experience and at\n a higher grade level.\n(Dkt. No. 37-19 at 65). While Mr. Callahan focused his response on Ms. Mack’s experience,\nrather than her education, he did not “disavow,” as Montgomery suggests, that her education\nplayed no role in his decision.\n Montgomery argues that Mr. Callahan also contradicted himself by testifying, at pages 61\nand 63 of his deposition transcript, that he believed both Montgomery and Ms. Mack “met the\nminimum [educational] qualification.” (Pl.’s Opp’n at 14-15). But the excerpts Montgomery\nsubmitted from Mr. Callahan’s deposition at Docket No. 37-19 do not include pages 61 or 63.\n(See Dkt. No. 37-19 (comprised of transcript pages 1, 65-66, 68, 80, 87)). Accordingly, no such\ntestimony or evidence is before the Court. But even if the Court were to take that supposed\ntestimony into account, the fact that Mr. Callahan testified that both candidates met the minimum\neducational qualifications certainly does contradict the explanation that he found Montgomery’s\nqualifications—though minimally sufficient—to be less impressive than Ms. Mack’s.\n 11\n\fqualifications listed on his application, and his specific posture in exhibiting no interest in\n\nprofessional growth or improvement.” (Dkt. No. 34-13 at ¶ 4) (emphasis added). Of course, the\n\n“qualifications listed on [Montgomery’s] application”—an aspect of Mr. Callahan’s decision that\n\nMontgomery conveniently omitted with opportunely-placed ellipses, (Pl.’s Opp’n at 15)—\n\nundoubtedly encompassed Montgomery’s education and professional background, as compared\n\nto Ms. Mack. Therefore, the Court finds Montgomery’s argument that Mr. Callahan’s\n\nexplanations are “shifting” or “inconsistent” to be unpersuasive. In addition, to the extent that\n\nMr. Callahan’s explanations could arguably be characterized as “inconsistent,” the Court\n\nbelieves that any such inconsistencies are “so minor that no reasonable jury could find that\n\n[PBGC’s] proffered reasons are a pretext for discrimination.” Butler v. Sebelius, Case No. 12-\n\n5042, 2012 WL 2372867, 2012 U.S. App. LEXIS 12485 (D.C. Cir. June 19, 2012); Dominguez-\n\nCruz v. Suttle Caribe, Inc., 202 F.3d 424, 432 (1st Cir. 2000) (“Substantial changes over time in\n\nthe employer’s proffered reason for its employment decision support a finding of pretext.”) (cited\n\nwith approval in Geleta, 645 F.3d at 413) (emphasis added); see also Kranz v. Gray, 842 F.\n\nSupp. 2d 13, 24 (D.D.C. 2012) (observing that “[t]his logic applies when an employer’s reason\n\nfor allegedly discriminatory actions changes in a material way throughout the stages of\n\nlitigation”) (emphasis added).\n\n Montgomery also argues that Mr. Callahan’s explanation is pretextual because he\n\nconducted Montgomery’s interview differently from all of the other candidates—deciding not to\n\nadminister the writing and Microsoft Excel exercises during the interview. He argues that, based\n\non this distinction, a jury could infer that Mr. Callahan “had made up his mind not to select\n\n[Montgomery] even before the interview.” (Pl.’s Opp’n at 16). But Mr. Callahan offered an\n\nexplanation for this discrepancy—he did not administer the exercises because Montgomery\n\n\n\n 12\n\f“made the least favorable impression among all the candidates” during his interview. (Dkt. No.\n\n34-13 at ¶ 4). Furthermore, although Mr. Callahan testified that he already had a “pretty good\n\nidea who [he] wanted to select” by the time he interviewed Montgomery, “evidence of pre-\n\nselection is relevant only insofar as it logically supports an inference of discriminatory intent.”\n\nKolstad v. Am. Dental Ass’n, 139 F.3d 958, 969 (D.C. Cir. 1998), vacated on other grounds by\n\n527 U.S. 526 (1999); Oliver-Simon v. Nicholson, 384 F. Supp. 2d 298, 310 (D.D.C. 2005)\n\n(“[P]laintiff's pre-selection claim does not advance h[is] case for pretext unless [he] produces\n\nsome evidence that discrimination played a role in [the selectee’s] pre-selection and thus\n\nplaintiff’s non-selection.”). Even if Mr. Callahan were already leaning toward selecting Ms.\n\nMack for the position at the time he interviewed Montgomery, Montgomery fails to point to any\n\nevidence suggesting that any such pre-selection was motivated by a discriminatory animus\n\ntowards Montgomery, whether due to his age, his gender, or his race. If anything, the record\n\nstrongly suggests the opposite—that Mr. Callahan was leaning toward Ms. Mack because she\n\nwas a strongly-qualified candidate for the position.\n\n Finally, the Court notes that Montgomery can also attempt to “avoid summary judgment\n\nby presenting other evidence, direct or circumstantial, that permits an inference of\n\ndiscrimination,” such as “discriminatory statements,” “other attitudes suggesting the decision\n\nmaker harbors discriminatory animus,” and/or other “data” concerning his protected class(es).\n\nHolcomb v. Powell, 433 F.3d 889, 899 (D.C. Cir. 2006) (internal citations omitted). But\n\nMontgomery presents no such evidence. Most notably, the Court observes that Montgomery\n\nexpressly does not argue that he actually was more qualified for the Accountant position than\n\nMs. Mack. (See Pl.’s Opp’n at 15-16) (“[W]hether Ms. Mack was more qualified . . . is not the\n\ncritical issue in this case.”). Instead, he has sought to establish pretext by “expos[ing] other\n\n\n\n 13\n\fflaws in the employer’s explanation,” Aka, 156 F.3d at 1295—namely, that the reasoning\n\nunderlying Mr. Callahan’s decision has changed over time and that the veracity of that reasoning\n\nshould not be credited as a result. The Court rejects that argument for the reasons stated. And\n\nthe fact that Montgomery does not even attempt to argue that he was better qualified—let alone\n\n“significantly better qualified,” id. at 1294—simply adds to the void of evidence suggesting that\n\nPBGC’s decision was discriminatory. Indeed, the undisputed record before the Court amply\n\nsupports the opposite conclusion—that Ms. Mack was demonstrably and objectively more\n\nqualified for the position than Montgomery. Ms. Mack holds an Associate’s Degree in\n\naccounting, while Montgomery does not have any accounting degree. (Joint Facts at ¶¶ 4, 22).\n\nIn addition, Ms. Mack had nearly a decade of accounting experience working for the federal\n\ngovernment, whereas Montgomery had never been employed as an accountant and had no\n\naccounting experience. (Id.). These facts further undermine Montgomery’s assertion that\n\nPBGC’s motive was discriminatory. Hamilton v. Geithner, 666 F.3d 1344, 1352 (D.C. Cir.\n\n2012) (“[A] disparity in qualifications, standing alone, can support an inference of discrimination\n\nonly when the qualifications gap is ‘great enough to be inherently indicative of discrimination’—\n\nthat is, when the plaintiff is ‘markedly more qualified,’ ‘substantially more qualified,’ or\n\n‘significantly better qualified’ than the successful candidate.”) (internal citations omitted). 7\n\n Therefore, the Court concludes that Montgomery fails to raise a genuine issue of material\n\nfact with respect to his age, gender, or race discrimination claims. No reasonable jury could find\n\ndiscrimination under these circumstances, even when viewing the evidence in the light most\n\nfavorable to Montgomery. Even if the Court were to find that Montgomery created a “weak\n\n\n\n7\n As our Circuit has explained, this principle is grounded in the idea that a reasonable\nemployer would usually not select a less-qualified candidate “unless some other strong\nconsideration, such as discrimination, enters into the picture.” Aka, 156 F.3d at 1294.\n 14\n\fissue of fact” as to pretext, the uncontroverted evidence of Ms. Mack’s superior qualifications\n\nand experience constitutes “independent evidence that no discrimination . . . occurred.” Reeves,\n\n530 U.S. at 148 (citing Aka, 156 F.3d at 1291-92). 8 The Court grants summary judgment on\n\nthese claims in favor of PBGC.\n\n\n\n C. Montgomery’s Retaliation Claim\n\n Title VII also prohibits an employer from retaliating against an employee “‘because he\n\nhas opposed any practice’ made unlawful by Title VII or ‘has made a charge, testified, assisted,\n\nor participated’ in a Title VII investigation or proceeding.” Steele, 535 F.3d at 695 (quoting 42\n\nU.S.C. § 2000e-3(a)). Retaliation claims under Title VII are also subject to the three-part\n\nburden-shifting framework of McDonnell Douglas. Thus, a plaintiff must first establish a prima\n\nfacie case of retaliation by showing: “(1) that he engaged in statutorily protected activity; (2) that\n\nhe suffered a materially adverse action by his employer; and (3) that a causal link connects the\n\ntwo.” Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009) (citing Wiley, 511 F.3d at 155).\n\nThereafter, if the plaintiff is able to satisfy the requirements of a prima facie case, the burden\n\nshifts back to the employer to articulate a legitimate, non-retaliatory reason for its actions. Id.\n\nOnce the employer does so, the burden-shifting framework disappears, and “a court reviewing\n\nsummary judgment looks to whether a reasonable jury could infer retaliation from all the\n\nevidence, which includes not only the prima facie case, but also the evidence the plaintiff offers\n\nto attack the employer’s proffered explanation for its action and other evidence of retaliation.”\n8\n Furthermore, Montgomery’s race discrimination claim is particularly undercut by the fact\nthat Ms. Mack is also African American. See, e.g., Murray v. Gilmore, 406 F.3d 708, 715 (D.C.\nCir. 2005) (“[A] replacement within the same protected class cuts strongly against any inference\nof discrimination.”). And while Ms. Mack, as a younger, female employee, falls outside\nMontgomery’s protected class with respect to his age and gender discrimination claims, this fact,\nwithout more, is woefully insufficient to raise an inference of discrimination, particularly given\nthe Court’s earlier analysis herein.\n 15\n\fGeleta, 645 F.3d at 411; see also Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C.\n\nCir. 2004).\n\n Here, even assuming that Montgomery can establish a prima facie case, he fails to adduce\n\nsufficient evidence to suggest that PBGC’s legitimate justification for his non-selection—i.e.,\n\nthat Ms. Mack was simply more qualified—is pretextual. 9 First, to the extent that he attacks Mr.\n\nCallahan’s explanation as “false” or “shifting,” the Court rejects that argument for the reasons\n\nalready stated. Alternatively, Montgomery argues that the PBGC’s delay in submitting his\n\napplication to Mr. Callahan amounts to evidence of pretext and a retaliatory motive. (Pl.’s\n\nOpp’n at 17-18). Specifically, he argues that Ms. Isaac’s involvement with his application\n\nimbued the process with retaliatory animus, given her knowledge of Montgomery’s prior EEO\n\ncase and her stated belief that promotions should be based on experience, not settlement\n\nagreements. (Id.). He also argues that Ms. Isaac was substantially involved in determining\n\ncandidates’ minimum qualifications for the position and purposefully delayed his inclusion on\n\nthe list of candidates submitted to the selecting official. (Joint Facts at ¶ 20). PBGC disputes\n\nthis proposition and maintains that Ms. Isaac’s only involvement with Montgomery’s application\n\nwas to affirmatively place him on the candidate listing that was submitted to Mr. Callahan for\n\nreview. (Id. at ¶¶ 19-20). This dispute is immaterial, however, because even assuming Ms. Isaac\n\nwere more substantively involved in the process, the Court finds Montgomery’s argument\n\nunpersuasive for several reasons. First, while Montgomery’s application was delayed somewhat,\n\nso too was Ms. Mack’s, and she was ultimately selected for the position nevertheless. (Joint\n\nFacts at ¶¶ 22-23). Insofar as the selectee encountered similar procedural setbacks and delay,\n\n\n\n9\n In view of this conclusion, the Court need not reach PBGC’s argument that Montgomery\nis unable establish a prima facie case of retaliation because Mr. Callahan was arguably unaware\nof any of Montgomery’s prior EEO activity.\n 16\n\fthis fact strongly cuts against Montgomery’s pretext argument. Second, Montgomery’s\n\nargument is refuted by his own testimony, wherein he confirmed that he does not believe the\n\ndelay in his application process was discriminatory or retaliatory:\n\n Q: So do you contend that the delay in sending your application up\n discriminated against you based on your race, color, sex, age or for reprisal?\n A: I did not make that allegation.\n Q: And the selectee was selected from applications that came up late; is that\n correct?\n A: That’s correct.\n\n(Dkt. No. 42-1 at ECF p. 2). The Court thus finds that Montgomery failed to raise a genuine\n\nissue of material fact to suggest that PBGC’s proffered explanation for its decision is pretextual,\n\nnor does he otherwise present evidence sufficient to raise an inference of retaliation. In turn, the\n\nCourt grants summary judgment in favor of PBGC on Montgomery’s retaliation claim.\n\n\n\n CONCLUSION\n\n For the foregoing reasons, the Court concludes that PBGC’s Motion for Summary\n\nJudgment must be GRANTED. An appropriate Order accompanies this Memorandum Opinion.\n\n Digitally signed by Judge Robert L. Wilkins\nDate: February 1, 2013 DN: cn=Judge Robert L. Wilkins, o=U.S. District\n Court, ou=Chambers of Honorable Robert L.\n Wilkins, email=RW@dc.uscourt.gov, c=US\n Date: 2013.02.01 11:03:19 -05'00'\n\n\n\n\n ROBERT L. WILKINS\n United States District Judge\n\n\n\n\n 17\n\f", "ocr": false, "opinion_id": 2661183 } ]

[ "883 F.2d 324" ]

[ { "author_str": "Sprouse", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/883/883.F2d.324.88-1392.html", "author_id": null, "opinion_text": "883 F.2d 324\n 14 Fed. R. Serv. 3d 759\n Debra ROGERS, Plaintiff-Appellant,v.JEFFERSON-PILOT LIFE INSURANCE COMPANY, Defendant-Appellee.\n No. 88-1392.\n United States Court of Appeals,Fourth Circuit.\n Argued May 9, 1989.Decided Aug. 29, 1989.\n \n Barry Warren Streeter (H. Wayne Floyd, on brief), West Columbia, for plaintiff-appellant.\n Ashley Bryan Abel (Gene V. Pruet, Paul A. Dominick, Nexsen, Pruet, Jacobs & Pollard, on brief), Columbia, S.C., for defendant-appellee.\n Before SPROUSE and WILKINS, Circuit Judges, and HADEN, Chief Judge, United States District Court for the Southern District of West Virginia, sitting by designation.\n SPROUSE, Circuit Judge:\n \n \n 1\n Debra Rogers appeals from the judgment of the district court dismissing her action against Jefferson-Pilot Life Insurance Company pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure. Her complaint, based on both state and federal grounds, demanded hospitalization benefits under an employee group health care policy. We reverse the court's dismissal of Rogers' federal claim.\n \n \n 2\n Rogers alleges in her amended complaint that, when she contacted Jefferson-Pilot in the summer of 1987 to determine if her health care policy would cover the hospitalization and medical treatment of her minor child, Jefferson-Pilot assured her that the expenses were covered. Relying on that assurance, she caused her child to be hospitalized for surgery. When she submitted a claim, however, Jefferson-Pilot refused to pay the medical bills of $6,703.10. Rogers filed a contract action in South Carolina state court, but Jefferson-Pilot removed it to district court. Jefferson-Pilot then asserted that the action was preempted by the Employee Retirement Income Security Act (\"ERISA\"). Rogers amended her complaint by adding a fourth count alleging that Jefferson-Pilot's refusal to pay her claim was a violation of ERISA.\n \n \n 3\n The district court dismissed all four counts of the complaint. It held that ERISA preempted the three state law pendent claims and that the ERISA count was erroneously grounded on 29 U.S.C. Sec. 1140. Section 1140 applies only to actions against an employer, not against insurers or other third parties administering insurance benefits. Rogers appeals only the dismissal of her ERISA count. We reverse.\n \n \n 4\n In the ERISA count of her complaint, Rogers stated:\n \n \n 5\n 19. This action is brought for relief arising from Defendant's interference with Plaintiff's rights under the Employee Retirement Income Securities Act, 29 USC Section 1001 et. seq., in violation of 29 USC Section 1140.\n \n \n 6\n 20. Jurisdiction is conferred upon this Court by the Employee Retirement Income Security Act, 29 USC Section 1001 et. seq.\n \n \n 7\n 21. Plaintiff is an employee of Recco Tape and Label, Inc., and was provided with health insurance by her employer which afforded coverage of herself and her minor children by a group policy with Defendant. This policy is an employee benefit plan governed by the Employment Retirement Income Security Act, 29 USC Section 1001, et. seq.\n \n She concluded by stating:\n \n 8\n 25. Defendant's refusal to pay the aforementioned medical bills was for the purpose of interfering with the attainment of a right to which a participant or beneficiary may become entitled under the plan and was therefore unlawful under 29 USC Section 1140.\n \n \n 9\n Rogers' complaint, to say the least, was inartfully drafted and her attorney compounded that problem by failing to respond to Jefferson-Pilot's rule 12(b)(6) motion for dismissal. In our view, however, a rule 12(b)(6) motion should be granted only in very limited circumstances. The Supreme Court has explained that \"[t]he Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.\" Conley v. Gibson, 355 U.S. 41, 48, 78 S. Ct. 99, 103, 2 L. Ed. 2d 80 (1957). We have long held \"that a motion to dismiss for failure to state a claim for relief should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim.\" Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.1969) (citation omitted).\n \n \n 10\n In Robertson v. Johnston, 376 F.2d 43 (5th Cir.1967), the Fifth Circuit reversed the dismissal of Robertson's claim that she filed under title II of the Civil Rights Act of 1964. Although Robertson had a claim possibly cognizable under 42 U.S.C. Sec. 2000a-1, she stated in her complaint that her claim was based on 42 U.S.C. Secs. 2000a to 2000a-6. In remanding the case to district court, the Fifth Circuit explained:\n \n \n 11\n Although the district court points out that [Robertson's] suit was based upon Sections 2000a-2000a-6 of the Act, Section 2000a-1 was not specifically relied upon by [Robertson], nor was it mentioned in the Court's opinion. However, [w]e see no reason why we should make what we think would be an erroneous decision, because the applicable law was not insisted upon by one of the parties.\n \n \n 12\n Id. at 44 (citations and quotation marks omitted); see also Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir.1974); United States v. Howell, 318 F.2d 162, 166 (9th Cir.1963).\n \n \n 13\n Rogers' complaint, despite its faulty drafting, alleges that her employer had purchased a health care insurance policy for her and other employees from Jefferson-Pilot. She alleged that Jefferson-Pilot assured her that the policy would cover her child's hospitalization and medical care but refused to pay the claim. Although Rogers incorrectly designated 29 U.S.C. Sec. 1140 as the specifically controlling ERISA provision in the concluding paragraph of her claim, she also referred to general ERISA provisions, i.e., 29 U.S.C. 1001 et seq., in three other paragraphs.\n \n \n 14\n While we agree with Jefferson-Pilot and the district court that section 1140 relief is only available to an employee against his employer, section 1132(a)(1)(B) authorizes a suit by an employee against an insurance carrier responsible for administering and paying claims under a covered insurance plan:\n \n \n 15\n A civil action may be brought--\n \n \n 16\n (1) by a participant or beneficiary--\n \n \n 17\n ....\n \n \n 18\n (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan....\n \n \n 19\n Although the complaint does not specifically identify section 1132(a)(1) as the authority for Rogers' complaint, read in its entirety and viewed in a light most favorable to Rogers, the ERISA count states a valid claim for relief.\n \n \n 20\n That part of the judgment of the district court dismissing the first three counts of Rogers' complaint is affirmed. The part of the judgment denying count four is reversed and the case is remanded for a trial on the merits of Rogers' ERISA allegations.\n \n \n 21\n AFFIRMED IN PART; REVERSED IN PART.\n \n ", "ocr": false, "opinion_id": 528215 } ]

[ "630 P.2d 1339", "53 Or. App. 133" ]

[ { "author_str": "Richardson", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n630 P.2d 1339 (1981)\n53 Or.App. 133\nBernard VAIL, F.M. Vail, Ronald E. Baker and Ronald E. Baker, Sr., Appellants,\nv.\nCITY OF BANDON, a Municipal Corporation, Milan M. Brace, Blythe Tiffany, Eleanor C. Lorenz, Diane C. Chappell, W.B. Dunshee, Marina S. Gardiner, Raymond H. Kelley, and Mary H. Schamehorn, Respondents.\nAlice Stadelman, Appellant,\nv.\nCity of Bandon, a Municipal Corporation, Milan M. Brace, Blythe Tiffany, Eleanor C. Lorenz, Diane C. Chappell, W.B. Dunshee, Marina S. Gardiner, Raymond H. Kelley, and Mary H. Schamehorn, Respondents.\nNos. 80-801, 80-802; CA 19218.\nCourt of Appeals of Oregon.\nArgued and Submitted May 18, 1981.\nDecided July 13, 1981.\nReconsideration Denied August 20, 1981.\n*1340 Kent W. Day, Coos Bay, argued the cause for appellants. With him on the briefs was McInturff, Thom & Collver, Coos Bay.\nRoger Gould, Coos Bay, argued the cause for respondents. With him on the brief were David A. Dorsey, and Bedingfield, Joelson and Gould, Coos Bay.\nBefore RICHARDSON, P.J., and THORNTON and VAN HOOMISSEN, JJ.\nRICHARDSON, Presiding Judge.\nThese are consolidated suits by owners of unimproved real property who seek to enjoin the defendant city from enforcing ordinances which impose higher sewer district assessments on unimproved property than on improved property. The trial court granted the city's motions for summary judgment, and plaintiffs appeal. We affirm.\nThe city's Ordinance No. 842, section 11(4), was adopted through an initiative measure and took effect on February 27, 1979. As originally enacted, it provided in relevant part:\n\"* * * [I]n all instances in which an improvement district contains at least forty (40%) per cent unimproved property (property on which no residential or commercial building is located) the council shall first obtain an assessment figure by dividing the total improvement cost by the number of front feet located within the district, then reduce the resulting figure for each parcel of improved property by one-half (1/2). The reduced figure shall be the assessment on the already improved property. The total of the one-half reduced figure shall then be added to the base assessment of the unimproved properties on a proportionate basis by dividing this total by the number of front feet within the district of unimproved property. The resulting sum shall be the assessment on the unimproved property. The assessments obtained following the procedure set forth in this subsection may be reduced further if assessments are also made on other benefited property not abutting the improvements constructed.\"\nOn March 4, 1980, the subsection was amended by the city's common council \"by striking the words `number of front feet' and inserting in their place the words `number of front feet, amount of square feet, or other equitable method determined by the Council.'\" The following month, the council adopted Ordinances Nos. 1042 and 1043, levying special assessments in accordance with the amended Ordinance No. 842 formula in the respective sewer districts where plaintiffs' properties are located.\nPlaintiffs' arguments fail to segregate or distinguish two very different issues: first, whether the legislative assessment formula of the ordinances is impermissibly *1341 discriminatory or otherwise unlawful; and, second, whether the particular special assessments levied on plaintiffs' properties were made consistently with the procedural and evidentiary requirements to which such quasi-judicial determinations are subject. See, e.g., Western Amusement v. Springfield, 274 Or. 37, 545 P.2d 592 (1976). Our review of the first issue would be subject to a minimal scrutiny test, essentially equivalent to the rational basis test which applies when tax or other socioeconomic legislation is challenged on equal protection grounds. See Or. State Homebuilders v. City of Tigard, 43 Or. App. 791, 604 P.2d 886 (1979), rev.den. 288 Or. 527 (1980). Our review of the second issue would be for substantial evidence to support the city's determination of the existence and amount of benefit to the assessed property. See Western Amusement v. Springfield, supra; Hiransomboon v. City of Tigard, 35 Or. App. 595, 582 P.2d 34 (1978), rev. den. 285 Or. 1 (1979). We do not suggest that the two issues cannot be raised in a single proceeding; however, it is unclear from their arguments which issue or issues these plaintiffs seek to raise on appeal. Be that as it may, we conclude that plaintiffs' pleadings in the trial court were sufficient to raise only the first issue, and, therefore, only that issue can be considered here.\nPlaintiffs' complaints allege, as material:\n\"That the assessment provisions of the aforedescribed Ordinance No. 1042 [and 1043] should be declared by the Court to be void and the Defendants should hereafter be restrained from enforcing such ordinance[s] and from applying the assessment procedures set forth in Ordinance No. 842, Section 11, subparagraph 4, for the following reasons:\n\"(a) That the apportionment of the cost of the subject property between `improved' and `unimproved' property is unjust and unequitable, relying solely on an arbitrary and capricious formula.\n\"(b) That the unimproved property within the subject district is being required to bear an unfair share of the cost of the improvement, the assessment having no relationship to the relative benefits to the properties within the district.\n\"* * *\n\"(d) That to enforce the ordinance as presently constituted would produce irreparable damage to the Plaintiffs and to all other owners of unimproved property within the district.\n\"* * *.\"\nWe understand these allegations to challenge the disparity in treatment under the three ordinances between improved and unimproved property within a particular district. We do not understand the allegations to raise any question about the city's determinations that plaintiffs' properties will be benefited by the improvements for which the assessments were levied, or the amount of the specific assessments.[1]\nPlaintiffs' basic contention is that the formula by which unimproved property in the sewer districts is assessed more heavily than improved property is \"arbitrary,\" \"capricious\" and \"abusive.\" In light of the authority plaintiffs cite and the thrust of their arguments, we understand that terminology to mean that the ordinances which *1342 embody the formula discriminate between the two classes of property in an impermissible way. As noted above, the test for determining whether classifications of the kind in question are supported by a rational basis is the so-called \"minimum rationality\" standard. See Or. State Homebuilders v. City of Tigard, supra; Clinkscales v. Lake Oswego, 30 Or. App. 851, 568 P.2d 696, rev. den. 280 Or. 683 (1977). The minimal nature of the scrutiny under that test is illustrated by the fact that virtually no special assessment legislation in Oregon has ever failed it. In Clinkscales, we upheld a sewer financing plan which assessed commercial property differently from residential property. In Or. State Homebuilders, we sustained a development charge which fell disproportionally on newly developed property and on expensive houses, notwithstanding our observation that\n\"* * * [i]t is difficult to envisage a relationship between the purchase price of a single family home and the burden which the construction of that home will have on arterial or collector streets. It is this lack of reasonable relationship which persuaded the trial judge that the ordinance ran afoul of the equal protection clause.\" 43 Or. App. at 797, 604 P.2d 886.\nIn holding that there was a rational basis for the disparities in the charges, we cited authority which is quite apposite here, and stated:\n\"A closely analogous case is Ivy Steel and Wire Co., Inc. v. City of Jacksonville, 401 F. Supp. 701 (Md.Fla. 1975). That case involved a city ordinance requiring payment of a water pollution control charge by all persons connecting to the Jacksonville sewer system after a specified date. It was not a connection charge or a use charge, but a means of raising revenue, much like the SDC [system development charge] involved in the ordinance at issue here. It was upheld against challenge on equal protection and due process grounds. The court there found that the City of Jacksonville was growing rapidly and that\n\"`* * * the City Council may well have determined that it was fiscally sound to impose the costs of the accelerated expansion, renewal and improvement of the sewer system onto those who were creating the immediate need for these increased expenditures, namely those who were connecting to the system for the first time. Such a determination is certainly enough to uphold this ordinance.' 401 F. Supp. at 705.\n\"Plaintiffs in that case argued, as do plaintiffs here, that the ordinance unfairly required one group of persons to pay for the benefit and exempted another group who also receive some benefit. That factor, however, did not render the ordinance unconstitutional. Finding the charge much like a tax, the court quoted from San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973):\n\"`* * * No scheme of taxation, whether the tax is imposed on property, income, or purchases of goods and services, has yet been devised which is free of all discriminatory impact. In such a complex arena in which no perfect alternatives exist, the Court does well not to impose too rigorous a standard of scrutiny lest all local fiscal schemes become subjects of criticism under the Equal Protection Clause.' 411 U.S. at 41, 93 S.Ct. at 1301. (Footnote omitted.)\n\"See also Olsen v. State ex rel. Johnson, 276 Or. 9, 554 P.2d 139 (1976). The SDC imposed by the City of Tigard is subject to the same analysis. Imposition of a charge on new construction to pay for improvements to streets which it may reasonably be assumed will be burdened by increased traffic is not without a rational basis.\" 43 Or. App. at 799-800, 604 P.2d 886.\nSee also, Wing v. City of Eugene, 249 Or. 367, 437 P.2d 836 (1968); Stanley v. City of Salem, 247 Or. 60, 427 P.2d 406 (1967).\nThe Supreme Court has recognized that whether particular land will be benefited *1343 by a particular improvement is not contingent on the present use of the land. See Western Amusement v. Springfield, supra, 274 Or. at 44-45, 545 P.2d 592, and authorities cited therein. We find no difference between a disparity in the tax treatment of improved and unimproved land, as here, and a disparity in the treatment of newly developed land and land with longer-standing improvements, as in Or. State Homebuilders.\nThe city argues that the disparity in the assessments of improved and unimproved property is justified because the sewage facilities will be of greater benefit to unimproved land which has no existing sewage or septic facilities; and because the potential for increase in the value of the unimproved land is greater than the potential appreciation of already developed land, and the benefit will therefore ultimately be greater. We cannot say, in light of the cited cases, that these bases for assessing improved and unimproved property differently do not survive the minimal rationality test.[2]\nPlaintiffs also appear to make what is, in essence, a due process argument. They contend that the formula under Ordinance No. 842, section 11(4) controls the city's assessment decisions in the districts where it applies and that the formula \"does not require or allow the council to determine which property is benefited, nor does it require the council to apportion the costs between the properties that are benefited.\" Hence, according to plaintiffs, the city cannot make meaningful quasi-judicial assessment decisions, because the substance of the decisions is preordained by the requirement of the ordinance.[3]\nAs we read subsection 11(4), it does not preclude the common council from deciding whether particular property will be benefited by an improvement; the formula presumably applies only to the assessment of benefited property, and the concluding sentence of the subsection bears out that presumption by referring to reductions in the base assessments \"if assessments are also made on other benefited property not abutting the improvements constructed.\" (Emphasis added.) Further, subsection 11(4) as amended permits apportionment of the amount of assessments among the benefited unimproved properties in a district \"on a proportionate basis,\" determined \"by the number of front feet, amount of square feet, or other equitable method determined by the council * * *.\" We conclude that Ordinance No. 842, section 11(4) provides the city with sufficient flexibility to make quasi-judicial determinations of the existence and amount of benefit to particular properties.\nIt is of course true that there is a separate apportionment of assessments upon improved and unimproved properties and that the ordinance does predetermine that the amount of benefit ascribed to unimproved property will be greater than the benefit to otherwise comparable developed property. Those facts do not make the assessment formula violative of due process any more than they give rise to an equal protection violation. The formula which ascribes greater benefit to unimproved than improved property generally may properly be applied by the city in determining the *1344 amount of benefit to particular property without violating due process.\nAffirmed.\nNOTES\n[1] It appears from the record of the city common council proceedings, portions of which were introduced as supporting exhibits to the parties' summary judgment motions, that plaintiffs raised little question in the city proceedings about the specific assessments on their property. One of the plaintiffs did seek to have a number of lots exempted from assessment, apparently on the ground that the lots would not be benefited by the sewer improvements. The city excluded all but three of those lots from the levy ordinance, and plaintiffs do not complain specifically on appeal about the city's actions regarding any of the lots.\n\nWe also note that it is questionable whether the quasi-judicial actions involved in the specific special assessment levies can be challenged in these injunction suits, rather than through a writ of review. But see, Western Amusement v. Springfield, 274 Or. 37, 42, 545 P.2d 592 (1976).\n[2] Plaintiffs' arguments are addressed only to the disparity in the assessments upon improved and unimproved property within individual districts. Plaintiffs do not contend that the ordinances discriminate impermissibly by requiring the enhanced assessments on unimproved property only in districts where 40 percent or more of the property is unimproved. That question that plaintiffs do not raise may be a closer one than the question they do present.\n[3] It is questionable whether this argument can be considered, in view of the fact plaintiffs have not preserved any issue relating to the specific assessment decisions affecting their own properties. However, we resolve the question in favor of reaching the argument; in our view, the argument pertains more to the facial validity of the ordinance's assessment formula than to the specific assessments.\n\n", "ocr": false, "opinion_id": 1167106 } ]

[ "787 P.2d 1159", "117 Idaho 351" ]

[ { "author_str": "Johnson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nJOHNSON, Justice.\nThis is a ski accident case. The primary issues presented are whether a ski area operator may be liable (1) for personal injuries to a skier who struck a signpost at the confluence of several ski runs and (2) for failing to determine the identity of another skier who was involved in the accident. In reaching a decision on these issues we are required to construe I.C. §§ 6-1101 through 6-1109 (the Act), which define the responsibilities and liabilities of skiers and ski area operators. We also consider whether the act violates the equal protection clause of the Idaho Constitution or of the United States Constitution.\nWe hold:\n1. Under the Act a ski area operator is not liable for the improper placement of a sign erected to eliminate, alter, control or lessen the inherent risks in skiing or for the improper design, construction or padding of a signpost that supported the sign.\n2. A ski area operator does not have the duty to provide a ski patrol that will determine the identity of a skier who was involved in a ski accident with another skier.\n3. The Act does not violate the equal protection clause of the Idaho Constitution or of the United States Constitution.\nWe affirm the order of the trial court granting summary judgment to Sun Valley Company.\nI.\nTHE BACKGROUND AND PRIOR PROCEEDINGS.\nChristopher Northcutt was severely injured in a skiing accident that occurred on Bald Mountain, one of the ski areas operated by Sun Valley Company. Christopher was injured when he struck a signpost at the confluence of several ski runs after another skier (the unidentified skier) collided with him. Other skiers at the scene of the accident detained the unidentified skier, who refused to identify himself. A member of the Sun Valley ski patrol who arrived and began to administer first aid to Christopher permitted the unidentified skier to leave the scene without requiring him to identify himself.\nChristopher sued Sun Valley to recover damages for his injuries. His wife joined the suit to recover damages for loss of consortium. The Northcutts alleged that their damages were caused by Sun Valley’s negligence in (1) placing a rigid wooden sign at a dangerous location, (2) designing and constructing the sign using materials that would injure a skier who collided with *353it, (3) failing to construct the sign of “break-away” materials, (4) failing adequately to pad the signpost to protect skiers who might collide with it, and (5) failing to identify the skier who collided with Christopher, thereby depriving the Northcutts of the ability to pursue their claims against him.\nSun Valley moved for summary judgment. In its memorandum in support of the motion, Sun Valley contended that it was absolved from liability by the Act and that it could not be held liable for not identifying the unidentified skier. In part of its argument that it was absolved from liability by the Act, Sun Valley noted that similar ski area liability statutes have been attacked on constitutional grounds and that courts in other states have found that the statutes further a rational state purpose in protecting the local ski economy. Sun Valley also noted that this Court has upheld the constitutionality of the statute which limits the liability of landowners to nonpaying recreational users of land.\nIn opposition to the motion, the Northcutts presented opinions of experts through their depositions that the sign was improperly placed and the signpost improperly padded. An expert skier gave his deposition testimony that the sign was in a dangerous location and that the sign should have been constructed with “break-away poles” instead of the wooden posts that were used.\nThe deposition testimony of the director of the ski patrol on Bald Mountain indicated that the Sun Valley ski patrol had a policy concerning the identification of a skier who caused an accident:\nQ. What was the policy of the ski patrol, at that time, with regard to securing the name of anyone who was alleged to have caused an injury?\nA. We are to ask for their name, if time permits; our primary duty is first aid.\n(Deposition of Bruce Malone of January 9,1986, at 37)\nAlso another member of the Sun Valley ski patrol testified in his deposition that the ski patrol was told to get the name of the person who caused the accident after they had attended to any injury. When asked what the reason for this procedure was, he answered: “The skier’s liability law in the state of Idaho.” (Deposition of Frank Cutler, at 32)\nThe Northcutts did not challenge the constitutionality of the Act in the trial court.\nThe trial court granted summary judgment in favor of Sun Valley on the ground that the Act “places the sole responsibility and liability for any injuries suffered by a skier, while participating in the sport on that skier.” The trial court concluded that the Act “provides blanket immunity to ski areas and their operators for all but the most intentional torts.” The trial court also found no authority on which to hold that Sun Valley had a duty to identify qr detain the unidentified skier. In addition, the trial court noted that this Court “has ruled that these types of statutes are constitutional.”\nThe trial court certified the order granting summary judgment in favor of Sun Valley as a final judgment pursuant to I.R.C.P. 54(b). The Northcutts then filed this appeal.\nThe Northcutts also sued Athalon Products, the manufacturer of the padding on the signpost. The claims against Athalon are not before us in this appeal.\nII.\nSUN VALLEY IS NOT LIABLE FOR CHRISTOPHER’S INJURIES.\nThe Northcutts assert that the Act immunizes ski area operators only from liability arising from risks inherent in the sport of skiing. With that proposition we agree. They argue that Christopher’s injuries were not caused by a risk inherent in the sport of skiing and that therefore Sun Valley should be liable. With that conclusion we disagree.\nThe first section of the Act states its purpose:\n6-1101. Legislative purpose. — The legislature finds that the sport of skiing is *354practiced by a large number of citizens of this state and also attracts a large number of nonresidents, significantly contributing to the economy of Idaho. Since it is recognized that there are inherent risks in the sport of skiing which should be understood by each skier and which are essentially impossible to eliminate by the ski area operation, it is the purpose of this chapter to define those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage or injury, and to define those risks which the skier expressly assumes and for which there can be no recovery.\nI.C. § 6-1101 (Supp.1989). In interpreting the meaning of other provisions of the Act we must read this statement of purpose together with the balance of the Act so as to give meaning to all of its parts in light of the legislative intent. Moss v. Bjornson, 115 Idaho 165, 166-67, 765 P.2d 676, 677-78 (1988).\nI.C. § 6-1106 (Duties of skiers) contains these provisions:\nIt is recognized that skiing as a recreational sport is hazardous to skiers, regardless of all feasible safety measures which can be taken.\nEach skier expressly assumes the risk of and legal responsibility for any injury to person or property which results from participation in the sport of skiing____\nI.C. § 6-1107 (Liability of ski area operators) provides:\nAny ski area operator shall be liable for loss or damages caused by its failure to follow the duties set forth in sections 6-1103 [Duties of ski area operators with respect to ski areas] and 6-1104 [Duties of ski area operators with respect to aerial passenger tramways], Idaho Code, where the violation of duty is causally related to the loss or damage suffered. The ski area operators shall not be liable to any passenger or skier acting in violation of their duties as set forth in sections 6-1105 [Duties of passengers] and 6-1106 [Duties of skiers], Idaho Code, where the violation of duty is causally related to the loss or damage suffered; nor shall a ski area operator be liable for any injury or damage to a person who is not legally entitled to be in the ski area; or for any loss or damages caused by any object dropped, thrown or expelled by a passenger from an aerial passenger tramway.\nThese statutes clearly indicate that in enacting the Act the legislature intended to limit rather than expand the liability of ski area operators.\nUnder the Act one of the duties of ski area operators is “[n]ot to intentionally or negligently cause injury to any person.” I.C. § 6-1103(10) (Supp.1989). The key to deciding whether Sun Valley may be liable for negligently locating the sign or designing, constructing or padding the signpost is interpreting what the legislature intended by imposing on ski area operators the duty not to cause injury to any person negligently-\ncomplicating our interpretation of the legislative intent with regard to this duty is the qualifying provision in the same subsection of the Act:\n[Provided, that except for the duties of the operator set forth in subsections (1) through (9) of this section and in section 6-1104, Idaho Code, the operator shall have no duty to eliminate, alter, control or lessen the risks inherent in the sport of skiing, which risks include but are not limited to those described in section 6-1106, Idaho Code; and, that no activities undertaken by the operator in an attempt to eliminate, alter, control or lessen such risks shall be deemed to impose on the operator any duty to accomplish such activities to any standard of care.\nI.C. § 6-1103(10) (emphasis added).\nWe interpret this portion of I.C. § 6-1103(10) to mean that the duties set forth in subsections (1) through (9) of I.C. § 6-1103 and in I.C. § 6-1104 are duties to eliminate, alter, control or lessen the inherent risks of skiing. We also interpret this portion to mean that a ski area operator has no other duties to eliminate, alter, control or lessen the inherent risks of skiing beyond those stated in I.C. §§ 6-1103 and *3556-1104. We construe the last clause of this portion of I.C. § 6-1103(10) to eliminate any standard of care for a ski area operator in carrying out any of the duties described in I.C. §§ 6-1103 and 6-1104.\nIf a ski area operator has no duty to accomplish any activity undertaken in an attempt to eliminate, alter, control or lessen the inherent risks of skiing and if the duties described in I.C. §§ 6-1103 and 6-1104 are the only duties an operator has with regard to the inherent risks of skiing, then it necessarily follows that any activity of an operator to fulfill those duties may not be held to be negligence, since the operator had no duty to accomplish the activity “to any standard of care.” The first element of a cause of action based upon negligence is “a duty, recognized by law, requiring a defendant to conform to a certain standard of conduct.” Brizendine v. Nampa Meridian Irrigation Dist., 97 Idaho 580, 583, 548 P.2d 80, 83 (1976). Without a duty, there can be no negligence.\nConstruing all the provisions of the Act together to give meaning to each portion, we interpret the duty of a ski area operator not to cause injury negligently to refer to the failure to follow (1) any of the duties set forth in I.C. §§ 6-1103 and 6-1104 or (2) any duty that does not relate to eliminating, altering, controlling or lessening the inherent risks of skiing. While this reading of the duty not to cause injury negligently may seem tortured and unjust to an injured skier such as Christopher, this is the only interpretation we can give to I.C. § 6-1103(10) that is consistent with the purpose of the Act and that gives meaning to all of the provisions of the Act. If we were to say that a ski area operator could be liable for negligence in carrying out any of the duties described in subsections (1) through (9) of I.C. § 6-1103 or in I.C. § 6-1104, we would negate giving any meaning to the last clause of I.C. § 6-1103(10) (“no activities undertaken by the operator in an attempt to eliminate, alter, control or lessen [the inherent] risks [of skiing] shall be deemed to impose on the operator any duty to accomplish such activities to any standard of care.”). (Emphasis added.)\nOne of the duties imposed on operators by I.C. § 6-1103 is “[t]o mark conspicuously the top or entrance to each slope or trail or area, with an appropriate symbol for its relative degree of difficulty.” I.C. § 6-1103(3) (Supp.1989). It is apparent that the sign that was supported by the signpost with which Christopher collided was erected to fulfill this duty. The sign directed skiers to three ski runs and contained a symbol indicating the relative degree of difficulty of each. While I.C. § 6-1103(3) did require Sun Valley to mark the entrance to each of these slopes, trails or areas, the last clause of I.C. § 6-1103(10) negates any duty to accomplish this marking “to any standard of care.”\nTherefore, even assuming that Sun Valley may not have properly located the sign or properly designed, constructed or padded the signpost,' the Act excludes any liability of Sun Valley to the Northcutts caused by these activities.\nIII.\nSUN VALLEY DID NOT HAVE THE DUTY TO PROVIDE A SKI PATROL TO DETERMINE THE IDENTITY OF THE UNIDENTIFIED SKIER.\nThe Northcutts assert that Sun Valley had a duty to determine the identity of the unidentified skier. We disagree.\nWe first note that the responsibility for the collision between Christopher and the unidentified skier is theirs and not Sun Valley’s and that the unidentified skier had the duty to identify himself following the accident:\nThe responsibility for collisions by any skier while actually skiing, with any person, shall be solely that of the individual or individuals involved in such collision and not that of the ski area operator.\nNo person shall ... depart when involved in a skiing accident, from the scene of the accident without leaving personal identification, including name and address, before notifying the proper authorities ____\n*356I.C. § 6-1106 (Supp.1989).\nUnder the Act one of the duties of a ski area operator is “[t]o provide a ski patrol with qualifications meeting the standards of the national ski patrol system.” I.C. § 6-1103(8) (Supp.1989). This is one of the duties imposed on a ski area operator to eliminate, alter, control or lessen the inherent risks of skiing. Therefore, in accord with our analysis above concerning the duty of a ski area operator not to cause injury negligently, in providing a ski patrol a ski area operator has only the duty to provide a ski patrol meeting the standards of the national ski patrol system. There is no evidence that the ski patrol member who attended Christopher after the accident did not meet the standards of the national ski patrol system. The evidence that Sun Valley instructed its ski patrol to ask for the name of anyone who was alleged to have caused an injury or who was responsible for an accident, if time permitted following the administration of first aid, even when construed liberally, does not create any duty under I.C. § 6-1103(8) to determine the identity of a skier involved in an accident. Sun Valley’s only duty under that subsection was to provide a ski patrol with qualifications meeting the standards of the national ski patrol. Because there is no evidence in the record that Sun' Valley failed to follow the duty set forth in I.C. § 6-1103(8), it is not liable for the failure to determine the identity of the unidentified skier.\nIV.\nTHE ACT DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSES OF THE STATE AND FEDERAL CONSTITUTIONS.\nThe Northcutts have listed as one of the issues presented on appeal whether those sections of the Act relied on by the trial court in its rulings are unconstitutional because they violate the equal protection clause of the Idaho Constitution and of the United States Constitution. Although the Northcutts did not present this issue to the trial court, we address it here, because it was presented to the trial court by Sun Valley, because the trial court held the Act constitutional, because the Northcutts have raised the issue here and because it has been fully briefed and argued before us.\nIn its memorandum in support of its motion for summary judgment, Sun Valley argued that the Act was constitutional because it furthers a rational state purpose in protecting the local ski economy. In its decision and order granting summary judgment to Sun Valley, the trial court stated:\nThis Act, simply put, provides blanket immunity to ski areas and their operators for all but the most intentional torts. As a matter of policy, this Court is opposed to the kind of protections afforded to certain persons and industries. However, our Supreme Court has ruled that these types of statutes are constitutional. It is, therefore, up to the legislature to change or repeal these special immunity provisions should they see fit, or for the Idaho Supreme Court to further review these statutes.\nOrdinarily, issues not raised below and presented for the first time on appeal will not be considered or reviewed. Sandpoint Convalescent Servs. v. Idaho Dep’t of Health, 114 Idaho 281, 284, 756 P.2d 398, 401 (1988). This rule has been applied where a constitutional issue is raised for the first time on appeal. Bogert v. Kinzer, 93 Idaho 515, 517, 465 P.2d 639, 641 (1970). However, we note that on some occasions when the Court has applied this rule it has qualified the rule. In Oregon Shortline R.R. v. City of Chubbuck, 93 Idaho 815, 817, 474 P.2d 244, 246 (1970) (emphasis added) in ruling that the Court would not consider whether a statute violated the equal protection clause of the fourteenth amendment to the United States Constitution and article 1, sections 1 and 2 of the Idaho Constitution we said that “these issues were not raised by the pleadings nor were they argued or decided in the trial court and we will not now consider them for the first time on appeal.” In at least one case this court has considered a constitutional issue that was not raised in the trial court, even though we acknowledged *357that the issue was not properly before us. State v. Goodmiller, 86 Idaho 233, 242, 386 P.2d 365, 370 (1963). On occasion we have allowed an issue that was not formally raised below to be considered on appeal when the issue was implicitly before the lower tribunal, and was considered and passed on by that tribunal. Manookian v. Blaine County, 112 Idaho 697, 700, 735 P.2d 1008, 1011 (1987). Here, the constitutionality of the Act was argued in the trial court by Sun Valley, and the trial court, in essence, ruled that the Act is constitutional. The parties have fully briefed and argued the issue in this Court. Therefore, under these circumstances, we will consider whether the sections of the Act relied on by the trial court in its rulings are unconstitutional on the ground that they violate the equal protection clause of the Idaho Constitution and of the United States Constitution.\nIt is apparent from the decision of the trial court granting summary judgment that the trial court relied on I.C. §§ 6-1103(10), 6-1106 and 6-1107 in reaching its decision. As we have interpreted these sections of the Act, they do not grant “blanket immunity” to ski area operators for injuries to skiers. We have concluded above that an operator may be liable for negligence based on failing to follow the duties set forth in I.C. §§ 6-1103 and 6-1104 or for any failing to follow any duty that does not relate to eliminating, altering, controlling or lessening the inherent risks of skiing. While substantial limitations have been placed on the liability of ski area operators, the Act does impose liability for some acts.\nEqual protection of the laws is guaranteed by article 1, section 2 of the Idaho Constitution and by the fourteenth amendment to the United States Constitution. This Court has recognized three possible standards of review that may be employed in an equal protection analysis. Where the classification is based on a “suspect” classification or involves a “fundamental right,” we have employed the “strict scrutiny” test. Where “ ‘the discriminatory character of a challenged statutory classification is apparent on its face and where there is also a patent indication of a lack of relationship between the classification and the declared purpose of the statute,’ ” the “means-focus” test is applicable. In other cases, the “rational basis” test is employed. Johnson v. Sunshine Mining Co., 106 Idaho 866, 869, 684 P.2d 268, 271 (1984) (quoting Leliefeld v. Johnson, 104 Idaho 357, 373, 659 P.2d 111, 127 (1983)).\nIn Johnson we addressed whether Idaho’s recreational use statute violated the state and federal equal protection clauses. This statute exempts a landowner from a “duty of care to keep premises safe for entry by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.” I.C. § 36-1604(c) (Supp.1989). There, we held:\nThe appropriate test to review a statute such as this is the rational basis test, which requires only that the statute “advances legitimate legislative goals in a rational fashion.” Leliefeld v. Johnson, 104 Idaho at 374, 659 P.2d at 128. The encouragement of recreation enhances the physical well-being of Idaho’s people, has a positive effect on Idaho’s economy, and is a legitimate legislative goal.\n106 Idaho at 869-70, 684 P.2d at 271-72.\nIn oral argument before this Court counsel for the Northcutts argued that a “fundamental right” is involved here because the Northcutts are entitled to “a speedy remedy ... for every injury of person” under article 1, section 18 of our constitution. However, that argument was laid to rest in Jones v. State Bd. of Medicine, 97 Idaho 859, 555 P.2d 399 (1976). There we held: “Nothing in Art. I, § 18 either explicitly or implicitly prohibits legislative modification of common law actions.” 97 Idaho at 864, 555 P.2d at 404.\nIt is significant that when the legislature stated the legislative purpose of the Act, it included the statement that “the sport of skiing is practiced by a large number of citizens of this state and also attracts a large number of nonresidents, significantly contributing to the economy of Idaho.”\n*358I.C. § 6-1101. As in Johnson, we hold that this was a legitimate legislative goal and satisfies the rational basis test.\nV.\nCONCLUSION.\nWe affirm the summary judgment of the trial court and award costs to Sun Valley.\nBAKES, C.J., concurs in all but Part II in which he specially concurs.\nMcDEVITT, J., concurs.\n", "ocr": false, "opinion_id": 9631133 }, { "author_str": "Bakes", "per_curiam": false, "type": "030concurrence", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nBAKES, Chief Justice,\nconcurring specially as to Part II:\nThe duty allegedly violated by the Sun Valley Company was the duty imposed by I.C. § 6-1103(3), “[t]o mark conspicuously the top or entrance to each slope or trail or area, with an appropriate symbol for its relative degree of difficulty____” In this case there is no claim that the sign in question violated that duty in that it did not “mark conspicuously the top or entrance to [the] slope or trail or area, with an appropriate symbol for its relative degree of difficulty____” Had appellant Northcutt’s injury been proximately caused by an inaccurate description of the relative degree of difficulty of the slope, or had the sign not been sufficiently “conspicuous” so that it could not reasonably have been observed, and as a result Northcutt descended a slope which exceeded his ability to negotiate, then in my view there would have been a violation of the duty provided in § 6-1103(3) for which liability would be imposed under I.C. § 6-1107, and which would not have been excused by I.C. § 6-1103(10).\nHowever, that is not the claim being made. The allegation being made is that the sign was not safely located, or safely constructed of materials which would absorb an impact. However, I.C. § 6-1106 provides that “[e]ach skier expressly assumes the risk of and legal responsibility for any injury to person or property'which results from participation in the sport of skiing including any injury caused by [impact with] ... rocks, trees, other forms of forest growth or debris, lift towers and components thereof, utility poles, and snowmaking and grooming equipment____” For those risks, and other risks “not limited to those described in section 6-1106,” the exception contained in 6-1103(10) provides that the operator shall not have any duty to lessen such risks, and shall not be held to any standard of care if he attempts to lessen them.\nOn that basis, I specially concur with Part II of the Court’s opinion.\n", "ocr": false, "opinion_id": 9631134 }, { "author_str": "McDEVITT", "per_curiam": false, "type": "030concurrence", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMcDEVITT, Justice,\nspecially concurring.\nWith the broad Legislative purpose set forth in I.C. § 6-1101 and the extremely restrictive language of I.C. § 6-1107, that has led the majority to the conclusion that Sun Valley Company is not liable for the injuries sustained by the plaintiff in this action, I concur.\nThe injuries sustained here were severe. The lack of planning, foresight, minimum caution, or attempt to minimize possible injury exhibited by Sun Valley Company in the design, construction and placement of the signpost causing those injuries is apparent.\nThe continuation of the disregard of all these factors by ski operators could, in a future time, lead one to the conclusion that their acts were not “an attempt to eliminate, alter, control or lessen such risks.”\n", "ocr": false, "opinion_id": 9631135 }, { "author_str": "Bistline", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nBISTLINE, Justice,\ndissenting.\nJustice Johnson opens his opinion by stating the three primary issues and the holdings which he would make if commanding a majority who adhere to his interpretation of The Act (I.C. §§ 6-1101 through 6-1109). Pairing the issues with the proposed holdings, I will point out my most cogent reasons for being unable to join the proposed opinion. Where appropriate I will rephrase the issues to better suit my understanding of the factual circumstances.\nPART I.\nISSUE NO. 1. Whether Sun Valley Company may be liable for personal inju*359ries to a skier who was run into by another skier and knocked into a Company sign standard with such force that he suffered serious permanent injury. The holding proposed for Issue No. 1:\n1. Under the Act a ski area operator is not liable for the improper placement of a sign erected to eliminate, alter, control or lessen the inherent risks in skiing or for the improper design, construction or padding of a signpost that supported the sign.\nDiscussion: It should be enough that I fully agree with Justice McDevitt’s view that, “The injuries sustained here were severe. The lack of planning, foresight, minimum caution, or attempt to minimize possible injury exhibited by Sun Valley Company in the design, construction and placement of the signpost causing those injuries is apparent.” However, I deem it necessary to expand upon Justice McDevitt’s views in order to fully express the sense of outrage which surfaces upon ascertaining the happening of an “accident” which was not accidental, considering the actions of the primary actor, “X” whose identity has been shielded by an employee of Sun Valley Company, and the severity of the injuries which appear to be 100 percent attributable to the solid and poorly padded sign standard which was unnecessarily positioned in a place of apparent peril to amateur skiers and almost deadly peril to an experienced skier who has the misfortune to be run into by a hot-dog skier run amuck.\nAmong the duties of operators enumerated in I.C. § 6-1103 is I.C. § 6-1103(3), to mark conspicuously, presumably by visible sign as stated in preceding duty number (2), the top or entrance to each slope or trail or area, with an appropriate symbol for the relative degree of difficulty. Idaho Code § 6-1107 makes the operator specifically liable for damages “caused by its failure to follow the duties set forth in § 6-1103 ... where the violation of duty is causally related to the loss or damage suffered.”\nIt does not require years and years of experience in driving motor vehicles to understand that reasonable prudence has guided the location of standards supporting both illuminating lights and traffic lights; such standards simply are not placed smack-dab in the middle of well-travelled thoroughfares. Rather the placement is well off of such thoroughfares. By the use of arms as long as necessary the signs are seen hanging well out over the thoroughfares, and the standard supporting the signs or signals presents no hazard.\nNo reason has been made to appear why the signpost standard here involved was not set well back and away from the area which was open to skiers. It is necessarily to be inferred that the Company recognized the hazard, but, for whatever reasons, chose to pad the standard as against relocating it in the woods, or at least off a main intersection at the top of three different slopes available for the Company’s paying customers.1\nAlthough I.C. § 6-1106 — Duties of skiers, purports to impose upon skiers an assumption of the risk of injury caused by, inter alia, lift towers and components thereof, utility poles, and snow-making and snow-grooming equipment, a utility pole is a utility pole, concerning which “The Act” places no duty on the skier, and so far as has been learned, there are no utility poles on the ski slopes, and perhaps none in the area.\nIn this case our concern is with a sign standard which any reasonably prudent operator would have located so that it created no hazard. As far as is known on a record which is sparse because the issues were “tried” below in summary judgment proceedings, as compared to a record which would be developed at a trial, an off-track sign standard would have incurred no great expense, and the presence of the one at issue was not a risk by the legislature declared to be inherent to the recreational sport of skiing. To that extent I am in agreement with Justice Boyle’s view that the risks inherent in skiing would be those *360exact same risks which a skier subjects himself to when he embarks on a ski venture onto the public domain or private lands “open” to recreational trespassing. Obviously skiers using Sun Valley Company’s facility are paying for the luxury of riding to the top, of knowing that the entire area is being policed by ski patrols, and for the quid pro quo they have the Company’s implied obligation, plus the statutory obligation, to not negligently cause injury to their patrons. Northcutt was injured while enjoying the Company’s facility, and clearly he has a right to have a jury assess how much of his damages should be assessed to the Company, if it be that the standard supporting the trail marker sign was not prudently located and is so found by the jury. The holding which I propose:\n1. Under the Act a ski area operator may be held liable for the dangerous placement of a sign standard which the operator was legislatively required to erect, a jury question, and here improperly resolved in summary judgment proceedings.\nPART II.\nISSUE NO. 2. Should a ski area operator have any liability by reason of its agent or employee releasing an unidentified skier who ran into a skier, Northcutt, knocking the latter with great force into a sign standard, by reason of which the innocent skier, Northcutt, suffered great injury?\nDISCUSSION: First, it is important to keep in mind that the particular collision between the two skiers here involved, while it was a precipitating cause of Northcutt being knocked with great force into a sign standard which obviously should not have been there, was not by any person declared to be attributable to Northcutt. He was as much run into as the 60 or 80-year old lady walking across Fairview Avenue in Boise, or Blue Lakes Boulevard in Twin Falls, in the crosswalk, going with the light and doing nothing which partakes of negligence. On the record before us, the skier who bombed into Northcutt, known now only as “X,” would be amenable to a negligence action against him with or without the provisions of I.C. § 6-1106, which although captioned “Duties of skiers,” is artfully worded so as to purport to wholly exonerate operators. It provides that “[t]he responsibility for collisions by any skier while actually skiing, with any person, shall be solely that of the individual or individuals involved in such collision and not that of the ski area operator.” This sentence standing alone is open to serious challenge because of its location (like the sign standard) in the wrong place, but it is somewhat savingly modified by the provisions of I.C. § 6-1107 which do deal with the question of an operator’s liability. One of the more understandable provisions of “the Act,” it would deprive Northcutt of any claim against the operator if, and only if, Northcutt at the time of the collision was “acting in a manner which may cause or contribute to the injury of anyone.” I.C. § 6-1106. As it appears in the record before us, Northcutt was an innocent victim when “X” ran into him, and was guilty of no violation within the contemplation of I.C. § 6-1107. Northcutt, in all probability, was desirous of naming “X” as a defendant in his action for the injuries and damages which he suffered. There is only one reason why he has not done so and cannot do so. That is because of the irresponsible behavior of a Company employee in releasing “X” without obtaining the personal identification of “X,” to wit, name and address as required by I.C. § 6-1106. Compounding this clear violation of duty, the culprit, “X,” when he first refused to identify himself, had been subjected to the equivalent of a citizen’s arrest by an on-the-scene skier who told “X” that should he attempt to leave without furnishing personal identification he, “X,” would be forcibly detained. “X” apparently respected the admonition, and did remain. The ski patrol arrived, was fully advised of the circumstances, and for unknown reasons directed the release of “X,” who quickly left the scene of the accident, taking with him the secret of his identity. In that manner Northcutt was deprived of any opportunity to seek redress from “X.” The holding which I propose:\n*3612. An operator is liable for the negligent acts of his agents or employees. A ski patroller has an obligation to know the statutory responsibilities which “the Act” places on ski area operators, one of which is his employer, and, whatever may be the independent grounds of an operator’s liability to an innocent skier, where the operator’s employee has deprived an innocent skier of his chance to hail into court the culprit who ran into him, it is only just that the operator be made to bear the liability for damages which would have been assessed against “X,” except for the ski patrol’s violation of duty, whether it be a negligent or a wilful violation.\nPART III.\nAs to the constitutional question, I see no reason to address it because there clearly exists in Northcutt a right to have a jury determine the issues of the Company’s liability, both as to the dangerous placement of the sign standard, and on application of the doctrine of respondeat superior.\nPART IV.\nDespite Justice Johnson’s assertion to the contrary, his is not “the only interpretation we can give to I.C. § 6-1103(10) that is consistent with the purpose of the Act and that gives meaning to all of the provisions of the Act.” There is, in fact, an interpretation which is consistent with common sense, general rules of statutory construction, and legislative intent.\nIdaho Code § 6-1103(10) reads:\n6-1103. Duties of ski area operators with respect to ski areas. — Every ski area operator shall have the following duties with respect to their operation of a skiing area:\n(10) Not to intentionally or negligently cause injury to any person; ...\nAn exception which should have been separately stated, and perhaps in a section of its own — is then tagged on to the duty clearly delineated in (10). It reads:\nprovided, that except for the duties of the operator set forth in subsections (1) through (9) of this section and in section 6-1104, Idaho Code, the operator shall have no duty to eliminate, alter, control or lessen the risks inherent in the sport of skiing, which risks include but are not limited to those described in section 6-1106, Idaho Code; and, that no activities undertaken by the operator in an attempt to eliminate, alter, control or lessen such risks, shall be deemed to impose on the operator any duty to accomplish such activities to any standard of care.\nI.C. § 6-1103(10) (emphasis added). Justice Johnson, according to my reading, interprets this section to say that while I.C. §§ 6-1103(1) through (9) do establish duties the operator of a ski area must fulfill, subsection (10) of I.C. § 6-1103 relieves the operator of the obligation to perform those duties with any standard of care. While the unfortunately poor drafting of the statute may have lead to this “tortured” interpretation, it is not even a plausible interpretation, much less the only interpretation. A far more rational interpretation would be as follows: The legislature set forth in subsections (1) through (9) certain duties which an operator must perform in order to provide skiers with a minimum level of safety which public policy demands. Those duties, as with any other legally imposed duty, must be performed in a non-negligent manner. I.C. § 6-1103(10). Then, in subsection (10), the legislature specified that, except for those nine previously enumerated duties, an operator does not have any duty to attempt to eliminate, lessen, etc., the inherent risks of skiing, and, if the operator does undertake to eliminate, lessen, etc., those risks in some way other than is enumerated in subsections (1) through (9), that additional remedial measure need not be undertaken with any standard of care.\nThis interpretation has numerous advantages that Justice Johnson’s interpretation lacks. First, it more fully gives effect to the whole Act, by recognizing that the legislature “define[d] those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage, or injury,” I.C. § 6-1101 (emphasis *362added), in subsections (1) through (9) of I.C. § 6-1103 and in I.C. § 6-1104.\nSecond, the interpretation outlined above gives a meaning to the legislature’s actions which is much more compatible with common sense than the interpretation put forward by Justice Johnson. The legislature clearly did not intend to give ski area operators free license to do whatever they choose on the slopes without any regard for the safety of skiers. Rather, the legislators were attempting to balance the interests of skiers in safe recreation with the inability of operators to eliminate all risks of skiing and still remain a profitable industry. Justice Johnson’s interpretation of the Act essentially eliminates the skiers’ half of that equation. The interpretation set forth in this opinion gives the legislature far more credit for having performed that balancing in an equitable manner.\nThird, my interpretation of the statute is consistent with accepted principles of both statutory construction and tort law, while Justice Johnson’s is not. When construing a statute, “[w]here there is an express exception, it comprises the only limitation on the operation of the statute and no other exceptions will be implied. An enumeration of exceptions from the operation of a statute indicates that [the statute] should apply to all cases not specifically enumerated [in the exception].” Sutherland, Statutes and Statutory Construction § 47.11, at 145 (1984). Thus, only those duties enumerated in subsections (1) through (9) of I.C. § 6-1103 and I.C. § 6-1104 are excepted from the no standard of care provision of I.C. § 6-1103(10). Otherwise put, §§ (1) through (9) are the affirmative actions requirement in the statement of purpose. A statutory exception should not be read so that it excepts nothing from the operation of the statute. Erspamer Adv. Co. v. Dept. of Labor, 214 Neb. 68, 333 N.W.2d 646 (1983). Yet Justice Johnson’s opinion would read I.C. § 6-1103(10)’s exception in just that way, i.e., that the “except for” clause of subsection (10) in actuality excepts nothing.\nOrdinary principles of tort law also militate against Justice Johnson’s approach to statutory interpretation.\n‘[D]uty’ is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence causes, the duty is always the same — to conform to the legal standard of reasonable conduct in the light of the apparent risk. What the defendant must do, or must not do, is a question of the standard of conduct required to satisfy that duty. The distinction is one of convenience only, and it must be remembered that the two are correlative, and one cannot exist without the other.\nKeeton, Prosser and Keeton on Torts 356 (5th Ed.1984). This understanding of the inter-relationship of duty and standard of care is almost axiomatic. Justice Johnson’s reading of I.C. § 6-1103(10) does great violence to this long-standing principle. The interpretation of I.C. § 6-1103(10) proffered herein preserves the principle, recognizing that the legislature specifically stated that if the operator has no duty to do an act, and if the operator nevertheless does choose to do that act, the doing so cannot be converted into a duty by attaching some standard of care to its performance.\nThe impact of these differing interpretations is dramatically illustrated by Christopher Northcutt’s case. Northcutt was seriously injured when he collided with a sign standard which the operator of Sun Valley ski resort had posted on the slope. According to Justice Johnson, the operator had a duty to erect such a sign, but no standard of care attached to the manner in which the operator performed that duty. According to the theory advanced in this opinion, the operator had a duty to erect the sign supporting it with something, and locating it somewhere, and that duty is inseparable from the ordinary standard of care which attaches to any legal duty. It is up to a jury to determine whether the operator’s conduct met that standard of care, and if it did not, whether that failure was a proximate cause of Northcutt’s injuries.\n\n. An expert testified that break-away poles supporting the sign would also have been preferable to the solid post which the Company utilized to support its sign in question.\n\n", "ocr": false, "opinion_id": 9631136 }, { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4157, "opinion_text": "\n787 P.2d 1159 (1990)\n117 Idaho 351\nChristopher NORTHCUTT and Theresa Ann Northcutt, husband and wife, Plaintiffs-Appellants,\nv.\nSUN VALLEY COMPANY, Defendant-Respondent, and\nAthalon Products, Ltd., a Colorado corporation; and Does I through IV, Defendants.\nNo. 17679.\nSupreme Court of Idaho.\nFebruary 27, 1990.\n*1160 E. Lee Schlender, Chartered, Hailey, for plaintiffs-appellants.\nElam, Burke & Boyd, Boise, for defendant-respondent. Robert M. Tyler, Jr. argued.\nJOHNSON, Justice.\nThis is a ski accident case. The primary issues presented are whether a ski area operator may be liable (1) for personal injuries to a skier who struck a signpost at the confluence of several ski runs and (2) for failing to determine the identity of another skier who was involved in the accident. In reaching a decision on these issues we are required to construe I.C. §§ 6-1101 through 6-1109 (the Act), which define the responsibilities and liabilities of skiers and ski area operators. We also consider whether the act violates the equal protection clause of the Idaho Constitution or of the United States Constitution.\nWe hold:\n1. Under the Act a ski area operator is not liable for the improper placement of a sign erected to eliminate, alter, control or lessen the inherent risks in skiing or for the improper design, construction or padding of a signpost that supported the sign.\n2. A ski area operator does not have the duty to provide a ski patrol that will determine the identity of a skier who was involved in a ski accident with another skier.\n3. The Act does not violate the equal protection clause of the Idaho Constitution or of the United States Constitution.\nWe affirm the order of the trial court granting summary judgment to Sun Valley Company.\n\nI.\n\nTHE BACKGROUND AND PRIOR PROCEEDINGS.\nChristopher Northcutt was severely injured in a skiing accident that occurred on Bald Mountain, one of the ski areas operated by Sun Valley Company. Christopher was injured when he struck a signpost at the confluence of several ski runs after another skier (the unidentified skier) collided with him. Other skiers at the scene of the accident detained the unidentified skier, who refused to identify himself. A member of the Sun Valley ski patrol who arrived and began to administer first aid to Christopher permitted the unidentified skier to leave the scene without requiring him to identify himself.\nChristopher sued Sun Valley to recover damages for his injuries. His wife joined the suit to recover damages for loss of consortium. The Northcutts alleged that their damages were caused by Sun Valley's negligence in (1) placing a rigid wooden sign at a dangerous location, (2) designing and constructing the sign using materials that would injure a skier who collided with *1161 it, (3) failing to construct the sign of \"break-away\" materials, (4) failing adequately to pad the signpost to protect skiers who might collide with it, and (5) failing to identify the skier who collided with Christopher, thereby depriving the Northcutts of the ability to pursue their claims against him.\nSun Valley moved for summary judgment. In its memorandum in support of the motion, Sun Valley contended that it was absolved from liability by the Act and that it could not be held liable for not identifying the unidentified skier. In part of its argument that it was absolved from liability by the Act, Sun Valley noted that similar ski area liability statutes have been attacked on constitutional grounds and that courts in other states have found that the statutes further a rational state purpose in protecting the local ski economy. Sun Valley also noted that this Court has upheld the constitutionality of the statute which limits the liability of landowners to nonpaying recreational users of land.\nIn opposition to the motion, the Northcutts presented opinions of experts through their depositions that the sign was improperly placed and the signpost improperly padded. An expert skier gave his deposition testimony that the sign was in a dangerous location and that the sign should have been constructed with \"break-away poles\" instead of the wooden posts that were used.\nThe deposition testimony of the director of the ski patrol on Bald Mountain indicated that the Sun Valley ski patrol had a policy concerning the identification of a skier who caused an accident:\nQ. What was the policy of the ski patrol, at that time, with regard to securing the name of anyone who was alleged to have caused an injury?\nA. We are to ask for their name, if time permits; our primary duty is first aid.\n(Deposition of Bruce Malone of January 9, 1986, at 37)\nAlso another member of the Sun Valley ski patrol testified in his deposition that the ski patrol was told to get the name of the person who caused the accident after they had attended to any injury. When asked what the reason for this procedure was, he answered: \"The skier's liability law in the state of Idaho.\" (Deposition of Frank Cutler, at 32)\nThe Northcutts did not challenge the constitutionality of the Act in the trial court.\nThe trial court granted summary judgment in favor of Sun Valley on the ground that the Act \"places the sole responsibility and liability for any injuries suffered by a skier, while participating in the sport on that skier.\" The trial court concluded that the Act \"provides blanket immunity to ski areas and their operators for all but the most intentional torts.\" The trial court also found no authority on which to hold that Sun Valley had a duty to identify or detain the unidentified skier. In addition, the trial court noted that this Court \"has ruled that these types of statutes are constitutional.\"\nThe trial court certified the order granting summary judgment in favor of Sun Valley as a final judgment pursuant to I.R.C.P. 54(b). The Northcutts then filed this appeal.\nThe Northcutts also sued Athalon Products, the manufacturer of the padding on the signpost. The claims against Athalon are not before us in this appeal.\n\nII.\n\nSUN VALLEY IS NOT LIABLE FOR CHRISTOPHER'S INJURIES.\nThe Northcutts assert that the Act immunizes ski area operators only from liability arising from risks inherent in the sport of skiing. With that proposition we agree. They argue that Christopher's injuries were not caused by a risk inherent in the sport of skiing and that therefore Sun Valley should be liable. With that conclusion we disagree.\nThe first section of the Act states its purpose:\n6-1101. Legislative purpose. — The legislature finds that the sport of skiing is *1162 practiced by a large number of citizens of this state and also attracts a large number of nonresidents, significantly contributing to the economy of Idaho. Since it is recognized that there are inherent risks in the sport of skiing which should be understood by each skier and which are essentially impossible to eliminate by the ski area operation, it is the purpose of this chapter to define those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage or injury, and to define those risks which the skier expressly assumes and for which there can be no recovery.\nI.C. § 6-1101 (Supp. 1989). In interpreting the meaning of other provisions of the Act we must read this statement of purpose together with the balance of the Act so as to give meaning to all of its parts in light of the legislative intent. Moss v. Bjornson, 115 Idaho 165, 166-67, 765 P.2d 676, 677-78 (1988).\nI.C. § 6-1106 (Duties of skiers) contains these provisions:\nIt is recognized that skiing as a recreational sport is hazardous to skiers, regardless of all feasible safety measures which can be taken.\nEach skier expressly assumes the risk of and legal responsibility for any injury to person or property which results from participation in the sport of skiing... .\nI.C. § 6-1107 (Liability of ski area operators) provides:\nAny ski area operator shall be liable for loss or damages caused by its failure to follow the duties set forth in sections 6-1103 [Duties of ski area operators with respect to ski areas] and 6-1104 [Duties of ski area operators with respect to aerial passenger tramways], Idaho Code, where the violation of duty is causally related to the loss or damage suffered. The ski area operators shall not be liable to any passenger or skier acting in violation of their duties as set forth in sections 6-1105 [Duties of passengers] and 6-1106 [Duties of skiers], Idaho Code, where the violation of duty is causally related to the loss or damage suffered; nor shall a ski area operator be liable for any injury or damage to a person who is not legally entitled to be in the ski area; or for any loss or damages caused by any object dropped, thrown or expelled by a passenger from an aerial passenger tramway.\nThese statutes clearly indicate that in enacting the Act the legislature intended to limit rather than expand the liability of ski area operators.\nUnder the Act one of the duties of ski area operators is \"[n]ot to intentionally or negligently cause injury to any person.\" I.C. § 6-1103(10) (Supp. 1989). The key to deciding whether Sun Valley may be liable for negligently locating the sign or designing, constructing or padding the signpost is interpreting what the legislature intended by imposing on ski area operators the duty not to cause injury to any person negligently.\nComplicating our interpretation of the legislative intent with regard to this duty is the qualifying provision in the same subsection of the Act:\n[P]rovided, that except for the duties of the operator set forth in subsections (1) through (9) of this section and in section 6-1104, Idaho Code, the operator shall have no duty to eliminate, alter, control or lessen the risks inherent in the sport of skiing, which risks include but are not limited to those described in section 6-1106, Idaho Code; and, that no activities undertaken by the operator in an attempt to eliminate, alter, control or lessen such risks shall be deemed to impose on the operator any duty to accomplish such activities to any standard of care.\n\nI.C. § 6-1103(10) (emphasis added).\nWe interpret this portion of I.C. § 6-1103(10) to mean that the duties set forth in subsections (1) through (9) of I.C. § 6-1103 and in I.C. § 6-1104 are duties to eliminate, alter, control or lessen the inherent risks of skiing. We also interpret this portion to mean that a ski area operator has no other duties to eliminate, alter, control or lessen the inherent risks of skiing beyond those stated in I.C. §§ 6-1103 and *1163 6-1104. We construe the last clause of this portion of I.C. § 6-1103(10) to eliminate any standard of care for a ski area operator in carrying out any of the duties described in I.C. §§ 6-1103 and 6-1104.\nIf a ski area operator has no duty to accomplish any activity undertaken in an attempt to eliminate, alter, control or lessen the inherent risks of skiing and if the duties described in I.C. §§ 6-1103 and 6-1104 are the only duties an operator has with regard to the inherent risks of skiing, then it necessarily follows that any activity of an operator to fulfill those duties may not be held to be negligence, since the operator had no duty to accomplish the activity \"to any standard of care.\" The first element of a cause of action based upon negligence is \"a duty, recognized by law, requiring a defendant to conform to a certain standard of conduct.\" Brizendine v. Nampa Meridian Irrigation Dist., 97 Idaho 580, 583, 548 P.2d 80, 83 (1976). Without a duty, there can be no negligence.\nConstruing all the provisions of the Act together to give meaning to each portion, we interpret the duty of a ski area operator not to cause injury negligently to refer to the failure to follow (1) any of the duties set forth in I.C. §§ 6-1103 and 6-1104 or (2) any duty that does not relate to eliminating, altering, controlling or lessening the inherent risks of skiing. While this reading of the duty not to cause injury negligently may seem tortured and unjust to an injured skier such as Christopher, this is the only interpretation we can give to I.C. § 6-1103(10) that is consistent with the purpose of the Act and that gives meaning to all of the provisions of the Act. If we were to say that a ski area operator could be liable for negligence in carrying out any of the duties described in subsections (1) through (9) of I.C. § 6-1103 or in I.C. § 6-1104, we would negate giving any meaning to the last clause of I.C. § 6-1103(10) (\"no activities undertaken by the operator in an attempt to eliminate, alter, control or lessen [the inherent] risks [of skiing] shall be deemed to impose on the operator any duty to accomplish such activities to any standard of care.\"). (Emphasis added.)\nOne of the duties imposed on operators by I.C. § 6-1103 is \"[t]o mark conspicuously the top or entrance to each slope or trail or area, with an appropriate symbol for its relative degree of difficulty.\" I.C. § 6-1103(3) (Supp. 1989). It is apparent that the sign that was supported by the signpost with which Christopher collided was erected to fulfill this duty. The sign directed skiers to three ski runs and contained a symbol indicating the relative degree of difficulty of each. While I.C. § 6-1103(3) did require Sun Valley to mark the entrance to each of these slopes, trails or areas, the last clause of I.C. § 6-1103(10) negates any duty to accomplish this marking \"to any standard of care.\"\nTherefore, even assuming that Sun Valley may not have properly located the sign or properly designed, constructed or padded the signpost, the Act excludes any liability of Sun Valley to the Northcutts caused by these activities.\n\nIII.\n\nSUN VALLEY DID NOT HAVE THE DUTY TO PROVIDE A SKI PATROL TO DETERMINE THE IDENTITY OF THE UNIDENTIFIED SKIER.\nThe Northcutts assert that Sun Valley had a duty to determine the identity of the unidentified skier. We disagree.\nWe first note that the responsibility for the collision between Christopher and the unidentified skier is theirs and not Sun Valley's and that the unidentified skier had the duty to identify himself following the accident:\nThe responsibility for collisions by any skier while actually skiing, with any person, shall be solely that of the individual or individuals involved in such collision and not that of the ski area operator.\nNo person shall ... depart when involved in a skiing accident, from the scene of the accident without leaving personal identification, including name and address, before notifying the proper authorities... .\n*1164 I.C. § 6-1106 (Supp. 1989).\nUnder the Act one of the duties of a ski area operator is \"[t]o provide a ski patrol with qualifications meeting the standards of the national ski patrol system.\" I.C. § 6-1103(8) (Supp. 1989). This is one of the duties imposed on a ski area operator to eliminate, alter, control or lessen the inherent risks of skiing. Therefore, in accord with our analysis above concerning the duty of a ski area operator not to cause injury negligently, in providing a ski patrol a ski area operator has only the duty to provide a ski patrol meeting the standards of the national ski patrol system. There is no evidence that the ski patrol member who attended Christopher after the accident did not meet the standards of the national ski patrol system. The evidence that Sun Valley instructed its ski patrol to ask for the name of anyone who was alleged to have caused an injury or who was responsible for an accident, if time permitted following the administration of first aid, even when construed liberally, does not create any duty under I.C. § 6-1103(8) to determine the identity of a skier involved in an accident. Sun Valley's only duty under that subsection was to provide a ski patrol with qualifications meeting the standards of the national ski patrol. Because there is no evidence in the record that Sun Valley failed to follow the duty set forth in I.C. § 6-1103(8), it is not liable for the failure to determine the identity of the unidentified skier.\n\nIV.\n\nTHE ACT DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSES OF THE STATE AND FEDERAL CONSTITUTIONS.\nThe Northcutts have listed as one of the issues presented on appeal whether those sections of the Act relied on by the trial court in its rulings are unconstitutional because they violate the equal protection clause of the Idaho Constitution and of the United States Constitution. Although the Northcutts did not present this issue to the trial court, we address it here, because it was presented to the trial court by Sun Valley, because the trial court held the Act constitutional, because the Northcutts have raised the issue here and because it has been fully briefed and argued before us.\nIn its memorandum in support of its motion for summary judgment, Sun Valley argued that the Act was constitutional because it furthers a rational state purpose in protecting the local ski economy. In its decision and order granting summary judgment to Sun Valley, the trial court stated:\nThis Act, simply put, provides blanket immunity to ski areas and their operators for all but the most intentional torts. As a matter of policy, this Court is opposed to the kind of protections afforded to certain persons and industries. However, our Supreme Court has ruled that these types of statutes are constitutional. It is, therefore, up to the legislature to change or repeal these special immunity provisions should they see fit, or for the Idaho Supreme Court to further review these statutes.\nOrdinarily, issues not raised below and presented for the first time on appeal will not be considered or reviewed. Sandpoint Convalescent Servs. v. Idaho Dep't of Health, 114 Idaho 281, 284, 756 P.2d 398, 401 (1988). This rule has been applied where a constitutional issue is raised for the first time on appeal. Bogert v. Kinzer, 93 Idaho 515, 517, 465 P.2d 639, 641 (1970). However, we note that on some occasions when the Court has applied this rule it has qualified the rule. In Oregon Shortline R.R. v. City of Chubbuck, 93 Idaho 815, 817, 474 P.2d 244, 246 (1970) (emphasis added) in ruling that the Court would not consider whether a statute violated the equal protection clause of the fourteenth amendment to the United States Constitution and article 1, sections 1 and 2 of the Idaho Constitution we said that \"these issues were not raised by the pleadings nor were they argued or decided in the trial court and we will not now consider them for the first time on appeal.\" In at least one case this court has considered a constitutional issue that was not raised in the trial court, even though we acknowledged *1165 that the issue was not properly before us. State v. Goodmiller, 86 Idaho 233, 242, 386 P.2d 365, 370 (1963). On occasion we have allowed an issue that was not formally raised below to be considered on appeal when the issue was implicitly before the lower tribunal, and was considered and passed on by that tribunal. Manookian v. Blaine County, 112 Idaho 697, 700, 735 P.2d 1008, 1011 (1987). Here, the constitutionality of the Act was argued in the trial court by Sun Valley, and the trial court, in essence, ruled that the Act is constitutional. The parties have fully briefed and argued the issue in this Court. Therefore, under these circumstances, we will consider whether the sections of the Act relied on by the trial court in its rulings are unconstitutional on the ground that they violate the equal protection clause of the Idaho Constitution and of the United States Constitution.\nIt is apparent from the decision of the trial court granting summary judgment that the trial court relied on I.C. §§ 6-1103(10), 6-1106 and 6-1107 in reaching its decision. As we have interpreted these sections of the Act, they do not grant \"blanket immunity\" to ski area operators for injuries to skiers. We have concluded above that an operator may be liable for negligence based on failing to follow the duties set forth in I.C. §§ 6-1103 and 6-1104 or for any failing to follow any duty that does not relate to eliminating, altering, controlling or lessening the inherent risks of skiing. While substantial limitations have been placed on the liability of ski area operators, the Act does impose liability for some acts.\nEqual protection of the laws is guaranteed by article 1, section 2 of the Idaho Constitution and by the fourteenth amendment to the United States Constitution. This Court has recognized three possible standards of review that may be employed in an equal protection analysis. Where the classification is based on a \"suspect\" classification or involves a \"fundamental right,\" we have employed the \"strict scrutiny\" test. Where \"`the discriminatory character of a challenged statutory classification is apparent on its face and where there is also a patent indication of a lack of relationship between the classification and the declared purpose of the statute,'\" the \"means-focus\" test is applicable. In other cases, the \"rational basis\" test is employed. Johnson v. Sunshine Mining Co., 106 Idaho 866, 869, 684 P.2d 268, 271 (1984) (quoting Leliefeld v. Johnson, 104 Idaho 357, 373, 659 P.2d 111, 127 (1983)).\nIn Johnson we addressed whether Idaho's recreational use statute violated the state and federal equal protection clauses. This statute exempts a landowner from a \"duty of care to keep premises safe for entry by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.\" I.C. § 36-1604(c) (Supp. 1989). There, we held:\nThe appropriate test to review a statute such as this is the rational basis test, which requires only that the statute \"advances legitimate legislative goals in a rational fashion.\" Leliefeld v. Johnson, 104 Idaho at 374, 659 P.2d at 128. The encouragement of recreation enhances the physical well-being of Idaho's people, has a positive effect on Idaho's economy, and is a legitimate legislative goal.\n106 Idaho at 869-70, 684 P.2d at 271-72.\nIn oral argument before this Court counsel for the Northcutts argued that a \"fundamental right\" is involved here because the Northcutts are entitled to \"a speedy remedy ... for every injury of person\" under article 1, section 18 of our constitution. However, that argument was laid to rest in Jones v. State Bd. of Medicine, 97 Idaho 859, 555 P.2d 399 (1976). There we held: \"Nothing in Art. I, § 18 either explicitly or implicitly prohibits legislative modification of common law actions.\" 97 Idaho at 864, 555 P.2d at 404.\nIt is significant that when the legislature stated the legislative purpose of the Act, it included the statement that \"the sport of skiing is practiced by a large number of citizens of this state and also attracts a large number of nonresidents, significantly contributing to the economy of Idaho.\" *1166 I.C. § 6-1101. As in Johnson, we hold that this was a legitimate legislative goal and satisfies the rational basis test.\n\nV.\n\nCONCLUSION.\nWe affirm the summary judgment of the trial court and award costs to Sun Valley.\nBAKES, C.J., concurs in all but Part II in which he specially concurs.\nMcDEVITT, J., concurs.\nBAKES, Chief Justice, concurring specially as to Part II:\nThe duty allegedly violated by the Sun Valley Company was the duty imposed by I.C. § 6-1103(3), \"[t]o mark conspicuously the top or entrance to each slope or trail or area, with an appropriate symbol for its relative degree of difficulty... .\" In this case there is no claim that the sign in question violated that duty in that it did not \"mark conspicuously the top or entrance to [the] slope or trail or area, with an appropriate symbol for its relative degree of difficulty... .\" Had appellant Northcutt's injury been proximately caused by an inaccurate description of the relative degree of difficulty of the slope, or had the sign not been sufficiently \"conspicuous\" so that it could not reasonably have been observed, and as a result Northcutt descended a slope which exceeded his ability to negotiate, then in my view there would have been a violation of the duty provided in § 6-1103(3) for which liability would be imposed under I.C. § 6-1107, and which would not have been excused by I.C. § 6-1103(10).\nHowever, that is not the claim being made. The allegation being made is that the sign was not safely located, or safely constructed of materials which would absorb an impact. However, I.C. § 6-1106 provides that \"[e]ach skier expressly assumes the risk of and legal responsibility for any injury to person or property which results from participation in the sport of skiing including any injury caused by [impact with] ... rocks, trees, other forms of forest growth or debris, lift towers and components thereof, utility poles, and snowmaking and grooming equipment... .\" For those risks, and other risks \"not limited to those described in section 6-1106,\" the exception contained in 6-1103(10) provides that the operator shall not have any duty to lessen such risks, and shall not be held to any standard of care if he attempts to lessen them.\nOn that basis, I specially concur with Part II of the Court's opinion.\nMcDEVITT, Justice, specially concurring.\nWith the broad Legislative purpose set forth in I.C. § 6-1101 and the extremely restrictive language of I.C. § 6-1107, that has led the majority to the conclusion that Sun Valley Company is not liable for the injuries sustained by the plaintiff in this action, I concur.\nThe injuries sustained here were severe. The lack of planning, foresight, minimum caution, or attempt to minimize possible injury exhibited by Sun Valley Company in the design, construction and placement of the signpost causing those injuries is apparent.\nThe continuation of the disregard of all these factors by ski operators could, in a future time, lead one to the conclusion that their acts were not \"an attempt to eliminate, alter, control or lessen such risks.\"\nBISTLINE, Justice, dissenting.\nJustice Johnson opens his opinion by stating the three primary issues and the holdings which he would make if commanding a majority who adhere to his interpretation of The Act (I.C. §§ 6-1101 through 6-1109). Pairing the issues with the proposed holdings, I will point out my most cogent reasons for being unable to join the proposed opinion. Where appropriate I will rephrase the issues to better suit my understanding of the factual circumstances.\n\nPART I.\nISSUE NO. 1. Whether Sun Valley Company may be liable for personal injuries *1167 to a skier who was run into by another skier and knocked into a Company sign standard with such force that he suffered serious permanent injury. The holding proposed for Issue No. 1:\n1. Under the Act a ski area operator is not liable for the improper placement of a sign erected to eliminate, alter, control or lessen the inherent risks in skiing or for the improper design, construction or padding of a signpost that supported the sign.\nDiscussion: It should be enough that I fully agree with Justice McDevitt's view that, \"The injuries sustained here were severe. The lack of planning, foresight, minimum caution, or attempt to minimize possible injury exhibited by Sun Valley Company in the design, construction and placement of the signpost causing those injuries is apparent.\" However, I deem it necessary to expand upon Justice McDevitt's views in order to fully express the sense of outrage which surfaces upon ascertaining the happening of an \"accident\" which was not accidental, considering the actions of the primary actor, \"X\", whose identity has been shielded by an employee of Sun Valley Company, and the severity of the injuries which appear to be 100 percent attributable to the solid and poorly padded sign standard which was unnecessarily positioned in a place of apparent peril to amateur skiers and almost deadly peril to an experienced skier who has the misfortune to be run into by a hot-dog skier run amuck.\nAmong the duties of operators enumerated in I.C. § 6-1103 is I.C. § 6-1103(3), to mark conspicuously, presumably by visible sign as stated in preceding duty number (2), the top or entrance to each slope or trail or area, with an appropriate symbol for the relative degree of difficulty. Idaho Code § 6-1107 makes the operator specifically liable for damages \"caused by its failure to follow the duties set forth in § 6-1103 ... where the violation of duty is causally related to the loss or damage suffered.\"\nIt does not require years and years of experience in driving motor vehicles to understand that reasonable prudence has guided the location of standards supporting both illuminating lights and traffic lights; such standards simply are not placed smack-dab in the middle of well-travelled thoroughfares. Rather the placement is well off of such thoroughfares. By the use of arms as long as necessary the signs are seen hanging well out over the thoroughfares, and the standard supporting the signs or signals presents no hazard.\nNo reason has been made to appear why the signpost standard here involved was not set well back and away from the area which was open to skiers. It is necessarily to be inferred that the Company recognized the hazard, but, for whatever reasons, chose to pad the standard as against relocating it in the woods, or at least off a main intersection at the top of three different slopes available for the Company's paying customers.[1]\nAlthough I.C. § 6-1106 — Duties of skiers, purports to impose upon skiers an assumption of the risk of injury caused by, inter alia, lift towers and components thereof, utility poles, and snow-making and snow-grooming equipment, a utility pole is a utility pole, concerning which \"The Act\" places no duty on the skier, and so far as has been learned, there are no utility poles on the ski slopes, and perhaps none in the area.\nIn this case our concern is with a sign standard which any reasonably prudent operator would have located so that it created no hazard. As far as is known on a record which is sparse because the issues were \"tried\" below in summary judgment proceedings, as compared to a record which would be developed at a trial, an off-track sign standard would have incurred no great expense, and the presence of the one at issue was not a risk by the legislature declared to be inherent to the recreational sport of skiing. To that extent I am in agreement with Justice Boyle's view that the risks inherent in skiing would be those *1168 exact same risks which a skier subjects himself to when he embarks on a ski venture onto the public domain or private lands \"open\" to recreational trespassing. Obviously skiers using Sun Valley Company's facility are paying for the luxury of riding to the top, of knowing that the entire area is being policed by ski patrols, and for the quid pro quo they have the Company's implied obligation, plus the statutory obligation, to not negligently cause injury to their patrons. Northcutt was injured while enjoying the Company's facility, and clearly he has a right to have a jury assess how much of his damages should be assessed to the Company, if it be that the standard supporting the trail marker sign was not prudently located and is so found by the jury. The holding which I propose:\n1. Under the Act a ski area operator may be held liable for the dangerous placement of a sign standard which the operator was legislatively required to erect, a jury question, and here improperly resolved in summary judgment proceedings.\n\nPART II.\nISSUE NO. 2. Should a ski area operator have any liability by reason of its agent or employee releasing an unidentified skier who ran into a skier, Northcutt, knocking the latter with great force into a sign standard, by reason of which the innocent skier, Northcutt, suffered great injury?\nDISCUSSION: First, it is important to keep in mind that the particular collision between the two skiers here involved, while it was a precipitating cause of Northcutt being knocked with great force into a sign standard which obviously should not have been there, was not by any person declared to be attributable to Northcutt. He was as much run into as the 60 or 80-year old lady walking across Fairview Avenue in Boise, or Blue Lakes Boulevard in Twin Falls, in the crosswalk, going with the light and doing nothing which partakes of negligence. On the record before us, the skier who bombed into Northcutt, known now only as \"X,\" would be amenable to a negligence action against him with or without the provisions of I.C. § 6-1106, which although captioned \"Duties of skiers,\" is artfully worded so as to purport to wholly exonerate operators. It provides that \"[t]he responsibility for collisions by any skier while actually skiing, with any person, shall be solely that of the individual or individuals involved in such collision and not that of the ski area operator.\" This sentence standing alone is open to serious challenge because of its location (like the sign standard) in the wrong place, but it is somewhat savingly modified by the provisions of I.C. § 6-1107 which do deal with the question of an operator's liability. One of the more understandable provisions of \"the Act,\" it would deprive Northcutt of any claim against the operator if, and only if, Northcutt at the time of the collision was \"acting in a manner which may cause or contribute to the injury of anyone.\" I.C. § 6-1106. As it appears in the record before us, Northcutt was an innocent victim when \"X\" ran into him, and was guilty of no violation within the contemplation of I.C. § 6-1107. Northcutt, in all probability, was desirous of naming \"X\" as a defendant in his action for the injuries and damages which he suffered. There is only one reason why he has not done so and cannot do so. That is because of the irresponsible behavior of a Company employee in releasing \"X\" without obtaining the personal identification of \"X,\" to wit, name and address as required by I.C. § 6-1106. Compounding this clear violation of duty, the culprit, \"X,\" when he first refused to identify himself, had been subjected to the equivalent of a citizen's arrest by an on-the-scene skier who told \"X\" that should he attempt to leave without furnishing personal identification he, \"X,\" would be forcibly detained. \"X\" apparently respected the admonition, and did remain. The ski patrol arrived, was fully advised of the circumstances, and for unknown reasons directed the release of \"X,\" who quickly left the scene of the accident, taking with him the secret of his identity. In that manner Northcutt was deprived of any opportunity to seek redress from \"X.\" The holding which I propose:\n\n*1169 2. An operator is liable for the negligent acts of his agents or employees. A ski patroller has an obligation to know the statutory responsibilities which \"the Act\" places on ski area operators, one of which is his employer, and, whatever may be the independent grounds of an operator's liability to an innocent skier, where the operator's employee has deprived an innocent skier of his chance to hail into court the culprit who ran into him, it is only just that the operator be made to bear the liability for damages which would have been assessed against \"X,\" except for the ski patrol's violation of duty, whether it be a negligent or a wilful violation.\n\nPART III.\nAs to the constitutional question, I see no reason to address it because there clearly exists in Northcutt a right to have a jury determine the issues of the Company's liability, both as to the dangerous placement of the sign standard, and on application of the doctrine of respondeat superior.\n\nPART IV.\nDespite Justice Johnson's assertion to the contrary, his is not \"the only interpretation we can give to I.C. § 6-1103(10) that is consistent with the purpose of the Act and that gives meaning to all of the provisions of the Act.\" There is, in fact, an interpretation which is consistent with common sense, general rules of statutory construction, and legislative intent.\nIdaho Code § 6-1103(10) reads:\n6-1103. Duties of ski area operators with respect to ski areas. — Every ski area operator shall have the following duties with respect to their operation of a skiing area:\n(10) Not to intentionally or negligently cause injury to any person; ...\nAn exception which should have been separately stated, and perhaps in a section of its own — is then tagged on to the duty clearly delineated in (10). It reads:\nprovided, that except for the duties of the operator set forth in subsections (1) through (9) of this section and in section 6-1104, Idaho Code, the operator shall have no duty to eliminate, alter, control or lessen the risks inherent in the sport of skiing, which risks include but are not limited to those described in section 6-1106, Idaho Code; and, that no activities undertaken by the operator in an attempt to eliminate, alter, control or lessen such risks, shall be deemed to impose on the operator any duty to accomplish such activities to any standard of care.\nI.C. § 6-1103(10) (emphasis added). Justice Johnson, according to my reading, interprets this section to say that while I.C. §§ 6-1103(1) through (9) do establish duties the operator of a ski area must fulfill, subsection (10) of I.C. § 6-1103 relieves the operator of the obligation to perform those duties with any standard of care. While the unfortunately poor drafting of the statute may have lead to this \"tortured\" interpretation, it is not even a plausible interpretation, much less the only interpretation. A far more rational interpretation would be as follows: The legislature set forth in subsections (1) through (9) certain duties which an operator must perform in order to provide skiers with a minimum level of safety which public policy demands. Those duties, as with any other legally imposed duty, must be performed in a non-negligent manner. I.C. § 6-1103(10). Then, in subsection (10), the legislature specified that, except for those nine previously enumerated duties, an operator does not have any duty to attempt to eliminate, lessen, etc., the inherent risks of skiing, and, if the operator does undertake to eliminate, lessen, etc., those risks in some way other than is enumerated in subsections (1) through (9), that additional remedial measure need not be undertaken with any standard of care.\nThis interpretation has numerous advantages that Justice Johnson's interpretation lacks. First, it more fully gives effect to the whole Act, by recognizing that the legislature \"define[d] those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage, or injury,\" I.C. § 6-1101 (emphasis *1170 added), in subsections (1) through (9) of I.C. § 6-1103 and in I.C. § 6-1104.\nSecond, the interpretation outlined above gives a meaning to the legislature's actions which is much more compatible with common sense than the interpretation put forward by Justice Johnson. The legislature clearly did not intend to give ski area operators free license to do whatever they choose on the slopes without any regard for the safety of skiers. Rather, the legislators were attempting to balance the interests of skiers in safe recreation with the inability of operators to eliminate all risks of skiing and still remain a profitable industry. Justice Johnson's interpretation of the Act essentially eliminates the skiers' half of that equation. The interpretation set forth in this opinion gives the legislature far more credit for having performed that balancing in an equitable manner.\nThird, my interpretation of the statute is consistent with accepted principles of both statutory construction and tort law, while Justice Johnson's is not. When construing a statute, \"[w]here there is an express exception, it comprises the only limitation on the operation of the statute and no other exceptions will be implied. An enumeration of exceptions from the operation of a statute indicates that [the statute] should apply to all cases not specifically enumerated [in the exception].\" Sutherland, Statutes and Statutory Construction § 47.11, at 145 (1984). Thus, only those duties enumerated in subsections (1) through (9) of I.C. § 6-1103 and I.C. § 6-1104 are excepted from the no standard of care provision of I.C. § 6-1103(10). Otherwise put, §§ (1) through (9) are the affirmative actions requirement in the statement of purpose. A statutory exception should not be read so that it excepts nothing from the operation of the statute. Erspamer Adv. Co. v. Dept. of Labor, 214 Neb. 68, 333 N.W.2d 646 (1983). Yet Justice Johnson's opinion would read I.C. § 6-1103(10)'s exception in just that way, i.e., that the \"except for\" clause of subsection (10) in actuality excepts nothing.\nOrdinary principles of tort law also militate against Justice Johnson's approach to statutory interpretation.\n`[D]uty' is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence causes, the duty is always the same — to conform to the legal standard of reasonable conduct in the light of the apparent risk. What the defendant must do, or must not do, is a question of the standard of conduct required to satisfy that duty. The distinction is one of convenience only, and it must be remembered that the two are correlative, and one cannot exist without the other.\nKeeton, Prosser and Keeton on Torts 356 (5th Ed. 1984). This understanding of the inter-relationship of duty and standard of care is almost axiomatic. Justice Johnson's reading of I.C. § 6-1103(10) does great violence to this long-standing principle. The interpretation of I.C. § 6-1103(10) proffered herein preserves the principle, recognizing that the legislature specifically stated that if the operator has no duty to do an act, and if the operator nevertheless does choose to do that act, the doing so cannot be converted into a duty by attaching some standard of care to its performance.\nThe impact of these differing interpretations is dramatically illustrated by Christopher Northcutt's case. Northcutt was seriously injured when he collided with a sign standard which the operator of Sun Valley ski resort had posted on the slope. According to Justice Johnson, the operator had a duty to erect such a sign, but no standard of care attached to the manner in which the operator performed that duty. According to the theory advanced in this opinion, the operator had a duty to erect the sign supporting it with something, and locating it somewhere, and that duty is inseparable from the ordinary standard of care which attaches to any legal duty. It is up to a jury to determine whether the operator's conduct met that standard of care, and if it did not, whether that failure was a proximate cause of Northcutt's injuries.\n*1171 BOYLE, Justice, dissenting.\nI am unable to concur in Part II of the majority opinion and respectfully dissent. The language of I.C. § 6-1103(10) expressly relieves a ski operator from any duty to eliminate, alter or lessen the \"risks inherent\" in the sport of skiing. In my opinion, however, this limitation on a ski operator's liability relates only to injuries caused by snow, ice or weather conditions, collisions with lift towers, utility poles, snowmaking equipment, trees, rocks, debris or other objects under or protruding from the snow, variations in the terrain and other factors expressly specified in I.C. § 6-1106.\nA ski operator is expressly required by the statute not to \"negligently cause injury\" to any person. I.C. § 6-1103(10). It is my opinion that the Act contemplates liability for negligence and does not give ski operators total immunity. Once a ski operator has undertaken the placement of markings or warning signs pursuant to the Act it must do so in a manner not to intentionally or negligently cause injury.\nThe record before us raises genuine issues of material fact as to the ski operator's possible negligence in the method and manner of placing the sign. Generally, questions of negligence and proximate cause are issues reserved for the trier of fact and in my opinion, summary judgment should not have been granted. I would reverse and allow the case to be presented to a jury to determine whether the ski operator was negligent in the placement of the sign.\nNOTES\n[1] An expert testified that break-away poles supporting the sign would also have been preferable to the solid post which the Company utilized to support its sign in question.\n\n", "ocr": false, "opinion_id": 1442601 }, { "author_str": "Boyle", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n*363BOYLE, Justice,\ndissenting.\nI am unable to concur in Part II of the majority opinion and respectfully dissent. The language of I.C. § 6-1103(10) expressly relieves a ski operator from any duty to eliminate, alter or lessen the “risks inherent” in the sport of skiing. In my opinion, however, this limitation on a ski operator’s liability relates only to injuries caused by snow, ice or weather conditions, collisions with lift towers, utility poles, snowmaking equipment, trees, rocks, debris or other objects under or protruding from the snow, variations in the terrain and other factors expressly specified in I.C. § 6-1106.\nA ski operator is expressly required by the statute not to “negligently cause injury” to any person. I.C. § 6-1103(10). It is my opinion that the Act contemplates liability for negligence and does not give ski operators total immunity. Once a ski operator has undertaken the placement of markings or warning signs pursuant to the Act it must do so in a manner not to intentionally or negligently cause injury.\nThe record before us raises genuine issues of material fact as to the ski operator’s possible negligence in the method and manner of placing the sign. Generally, questions of negligence and proximate cause are issues reserved for the trier of fact and in my opinion, summary judgment should not have been granted. I would reverse and allow the case to be presented to a jury to determine whether the ski operator was negligent in the placement of the sign.\n", "ocr": false, "opinion_id": 9631137 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 1, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?1981cr0306-405", "author_id": 1124, "opinion_text": " UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n____________________________________\n )\n )\nUNITED STATES OF AMERICA )\n )\n v. ) Criminal No. 81-0306 (PLF)\n )\nJOHN W. HINCKLEY, JR. )\n )\n____________________________________)\n\n\n ORDER\n\n Upon consideration of the government’s motion for extension of time to submit\n\nsupplemental expert report, and Mr. Hinckley’s memorandum in response, it is hereby\n\n ORDERED that the government’s motion is GRANTED in part and DENIED in\n\npart; and it is\n\n FURTHER ORDERED that the supplemental expert report of Dr. Raymond\n\nPatterson must be submitted on or before February 19, 2013; the date for submission of\n\nDr. Robert Phillips’ expert report remains February 21, 2013. No extensions of these dates will\n\nbe granted.\n\n SO ORDERED.\n\n\n /s/______________________________\n PAUL L. FRIEDMAN\nDATE: January 31, 2013 United States District Judge\n\f", "ocr": false, "opinion_id": 2661195 } ]

[ "2011 Ohio 7084" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 4, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/13/2011/2011-ohio-7084.pdf", "author_id": null, "opinion_text": "[Cite as In re Langwasser, 2011-Ohio-7084.]\n\n\n\n\n Court of Claims of Ohio\n Victims of Crime Division\n The Ohio Judicial Center\n 65 South Front Street, Fourth Floor\n Columbus, OH 43215\n 614.387.9860 or 1.800.824.8263\n www.cco.state.oh.us\n\n\nIN RE: CHRISTIAN M. LANGWASSER\n\nCHRISTIAN M. LANGWASSER\n\n Applicant\n\n\nCase No. V2009-40790\n\nJudge Clark B. Weaver Sr.\n\nDECISION\n\n\n{¶1} This matter came on to be considered upon the applicant’s appeal from the\n January 27, 2011, order issued by the panel of commissioners. The panel’s\n determination affirmed the final decision of the Attorney General, which had\n granted applicant awards representing medical, mileage, and evidence\n replacement expenses, but denied applicant’s claim for work loss.\n{¶2} R.C. 2743.52(A) places the burden of proof on an applicant to satisfy the Court of\n Claims Commissioners that the requirements for an award have been met by a\n preponderance of the evidence. In re Rios (1983), 8 Ohio Misc.2d 4, 8 OBR 63,\n 455 N.E.2d 1374. The panel found, upon review of the evidence, that applicant\n failed to present sufficient evidence to meet his burden regarding work loss.\n{¶3} The standard for reviewing claims that are appealed to the court is established by\n R.C. 2743.61(C), which provides in pertinent part: “If upon hearing and\n consideration of the record and evidence, the judge decides that the decision of\n the panel of commissioners is unreasonable or unlawful, the judge shall reverse\n and vacate the decision or modify it and enter judgment on the claim. The\n decision of the judge of the court of claims is final.”\n{¶4} Applicant suffered injuries as a result of criminally injurious conduct which\n prevented him from participating in the University of Kentucky ROTC program.\n\fCase No. V2009-40790 - 2 - ORDER\n\n\n According to evidence in the claim file, applicant had been awarded an ROTC\n scholarship and he would have received an annual $3,000 stipend for\n participating in the program. Applicant asserts that the loss of the stipend\n constitutes work loss as defined in R.C. 2743.51(G).\n{¶5} The two-commissioner panel determined that “the stipend was an integral part of\n the scholarship, no different than an athletic scholarship which has already been\n found to be a non-compensable expense” pursuant to the holding in In re Gilford,\n V92-85377sc (11-30-93). Specifically, the majority of the panel found that\n applicant failed to provide sufficient information to show either “what specific job\n duties, hours of employment, or performance requirements were necessary” to\n receive the stipend or “the relationship between the scholarship and the stipend”\n so as to prove that he is entitled to an award for work loss.\n{¶6} The sole issue before the court is whether the loss of the stipend meets the\n statutory definition of work loss as set forth in R.C. 2743.51(G), which states:\n “‘Work loss’ means loss of income from work that the injured person would have\n performed if the person had not been injured . . .”\n{¶7} In his dissent, Commissioner Pierre-Louis noted that the court has previously\n granted an award representing work loss to a victim of crime who was injured\n after having been accepted into a military program which offered educational and\n financial benefits. In re Dimon, Jr., V83-61532tc (11-2-84). He also observed\n that Black’s Law Dictionary defines stipend as “a salary or other regular periodic\n payment.”\n{¶8} The court finds that the evidence in the claim file, including the October 27, 2008\n letter signed by Bradley D. Harrington, Lieutenant Colonel, USAR, shows that\n applicant was eligible to receive the ROTC scholarship and stipend. According\n to Lieutenant Colonel Harrington, the stipend was awarded in addition to full\n tuition and fees, room and board, and an annual book allowance. Therefore,\n the court finds that the stipend constituted a benefit that was to be paid in\n\fCase No. V2009-40790 - 3 - ORDER\n\n\n addition to the scholarship and that applicant has satisfied his burden of proving\n that the stipend represented compensation for duties that applicant would have\n been required to perform in the ROTC program. Accordingly, the court\n concludes that the loss of such compensation represents work loss pursuant to\n R.C. 2743.51(G).\n{¶9} Upon review of the file in this matter, the court finds that applicant has shown by a\n preponderance of the evidence that he was entitled to an additional award of\n reparations.\n{¶10} Based on the evidence and R.C. 2743.61, it is the court’s opinion that the\n decision of the panel of commissioners was unreasonable. Therefore, the\n decision of the two-commissioner panel shall be reversed.\nORDER\n{¶11} Upon review of the evidence, the court finds the order of the panel of\n commissioners must be reversed.\n{¶12} IT IS HEREBY ORDERED THAT:\n{¶13} The order of January 27, 2011, (Jr. Vol. 2277, Page 179) is reversed and\n judgment is rendered in favor of applicant;\n{¶14} This claim is REMANDED to the Attorney General for economic loss calculation\n and decision;\n{¶15} Costs assumed by the reparations fund.\n\n\n\n CLARK B. WEAVER SR.\n Judge\n\nAMR/mdw\n\n A copy of the foregoing was personally served upon the Attorney\n General and sent by regular mail to Delaware County Prosecuting\n Attorney and to:\n\fCase No. V2009-40790 - 4 - ORDER\n\n\nFiled 6-8-11\nJr. Vol. 2279, Pg. 8\nSent to S.C. Reporter 7-19-13\n\f", "ocr": false, "opinion_id": 2695213 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 2, "download_url": "http://www.tsc.state.tn.us/sites/default/files/OPINIONS/tcca/PDF/043/HurleyRD.pdf", "author_id": 8294, "opinion_text": " IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE\n AT KNOXVILLE\n Assigned on Briefs June 15, 2004\n\n RANDY D. HURLEY v. HOWARD CARLTON, WARDEN\n\n Direct Appeal from the Criminal Court for Johnson County\n No. 4303 Lynn W. Brown, Judge\n\n\n No. E2004-00381-CCA-R3-HC - Filed July 12, 2004\n\n\nThe petitioner appeals the trial court’s dismissal of his petition for writ of habeas corpus. We agree\nwith the habeas court that the petitioner has failed to state a facially valid claim for habeas corpus\nrelief. We affirm the habeas court’s dismissal of the petitioner’s application for the writ of habeas\ncorpus.\n\n Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed\n\nJOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and\nTHOMAS T. WOODALL, JJ., joined.\n\nRandy D. Hurley, Mountain City, Tennessee, Pro Se.\n\nPaul G. Summers, Attorney General and Reporter, and Brent C. Cherry, Assistant Attorney General,\nfor the appellee, Howard D. Carlton, Warden.\n\n OPINION\n\n The petitioner, Randy D. Hurley, appeals the Johnson County Criminal Court’s dismissal of\nhis petition for writ of habeas corpus. A Cocke County jury found the petitioner guilty of\npremeditated first degree murder, felony murder, and armed robbery. State v. Hurley, 876 S.W.2d\n57, 60 (Tenn. 1993). He was sentenced to death on each of the murder convictions and to a\nconsecutive sentence of twelve years for the armed robbery conviction. Id. On appeal, the\nTennessee Supreme Court held that the trial court erred in imposing two death sentences for the\nmurder of one individual. “There was only one first-degree murder, and there should be only one\npunishment. Therefore, we affirm the conviction for premeditated first degree murder and for armed\nrobbery. The conviction for felony murder is vacated and set aside.” Id. at 70.\n\n The petitioner filed a petition for writ of habeas corpus claiming that the judgments are void\nbecause “[the petitioner] was twice placed in jeopardy, was denied his right to a jury trial i.e., denied\na valid legal/constitutional jury verdict on the charges, was denied due process, substantive and\nprocedural, and equal protection of the law, and has suffered from the imposition of cruel and\n\funusual punishment.” The State filed a motion to dismiss, arguing that the petitioner had failed to\nstate a facially valid claim for habeas corpus relief. The habeas court granted the motion and\ndismissed the petition.\n\n The petitioner now appeals the habeas court’s dismissal of his petition and contends that the\nactions of the Tennessee Supreme Court vacating the felony murder conviction and affirming the\nconviction for premeditated murder violated his right to a trial by jury. When reviewing a petition\nfor habeas corpus relief, the determination of whether relief should be granted is a question of law.\nMcLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001) (citing Hart v. State, 21 S.W.3d 901, 903 (Tenn.\n2000)). Thus, this Court’s review is de novo with no presumption of correctness given to the\nfindings of the court below. Id. The grounds upon which habeas corpus relief is warranted are\ndecidedly narrow. The writ will issue only when it appears upon the face of the judgment or the\nrecord of the proceedings upon which the judgment is rendered that a court lacked jurisdiction or\nauthority to sentence a defendant or that the sentence has expired. Stephenson v. Carlton, 28 S.W.3d\n910, 911 (Tenn. 2000); Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). A habeas corpus\npetition may be used to challenge judgments that are void, not merely voidable. Taylor v. State, 995\nS.W.2d 78, 83 (Tenn. 1999). “A void judgment is one in which the judgment is facially invalid\nbecause the court lacked jurisdiction or authority to render the judgment or because the defendant’s\nsentence has expired.” Id. (citations omitted). By contrast, a voidable conviction or sentence is one\nwhich is facially valid and thus requires proof beyond the face of the record or judgment to establish\nits invalidity. Id. The burden of proof that the judgment or sentence is “void,” rather than\n“voidable,” rests with the petitioner. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). Where the\nallegations in a petition for writ of habeas corpus do not demonstrate that the judgment is void, a trial\ncourt may dismiss the petition without a hearing. Archer, 851 S.W.2d at 164.\n\n The record before us contains certified copies of two judgments submitted by the petitioner,\none for the offense of first degree murder and one for the offense of armed robbery. The judgments\nwere entered on December 7, 1998, and indicate that the petitioner received a sentence of life for the\nmurder conviction and sixteen years for the armed robbery conviction.1 The judgments submitted\nby the petitioner, along with his petition for habeas corpus relief, do not concern the actions by the\nTennessee Supreme Court in their 1993 opinion. The judgments before us appear valid on their face.\nTherefore, based upon the foregoing reasoning and the record as a whole, we affirm the habeas\ncourt’s dismissal of the petitioner’s application for the writ of habeas corpus.\n\n\n ___________________________________\n JOHN EVERETT WILLIAMS, JUDGE\n\n 1\n The record before us is devoid of any explanation as to why the original sentences have been modified. Upon\nfurther research of court records, we have found that, following the filing of a post-conviction petition, an agreement was\nmade between the petitioner and the State for a new trial. A negotiated agreement was entered whereby the petitioner\nwould not receive the death penalty. Judge Rex H. Ogle set aside the original sentences and, on December 7, 1998,\nimposed a sentence of life for the first degree murder conviction and a sentence of sixteen years for the armed robbery\nconviction. The defendant waived his right to appeal.\n\n -2-\n\f", "ocr": false, "opinion_id": 1057063 } ]

[ "938 A.2d 1129" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n938 A.2d 1129 (2007)\nSEALS\nv.\nKUKLINSKI.\nNo. 2214 WDA 2005.\nSuperior Court of Pennsylvania.\nSeptember 17, 2007.\nReversed.\n", "ocr": false, "opinion_id": 1440656 } ]

[ "400 A.2d 1277", "484 Pa. 628" ]

[ { "author_str": "Manderino", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n484 Pa. 628 (1979)\n400 A.2d 1277\nJ.A. & W.A. HESS, INC., Appellant,\nv.\nHAZLE TOWNSHIP, Appellee.\nSupreme Court of Pennsylvania.\nArgued October 17, 1978.\nDecided May 1, 1979.\n*629 *630 Frank D. Llewellyn, Summit Hill, George I. Puhak, Hazleton, for appellant.\nThomas L. Kennedy, Hazleton, for appellee.\nBefore EAGEN, C.J., and O'BRIEN, ROBERTS, NIX, MANDERINO and LARSEN, JJ.\n\nOPINION OF THE COURT\nMANDERINO, Justice.\nThis appeal results from an action in assumpsit brought by appellant, J.A. & W.A. Hess, Inc., (Hess), against appellee, Hazle Township. Appellant alleged that it had not been paid for over 6,000 tons of gravel delivered to the appellee and used in the construction of township roads during August, September, and October of 1966. The complaint alleged that payment for the gravel in the amount of $23,528.75, plus interest, was due under an agreement existing between appellant and the appellee. Alternatively, the appellant sought recovery on a quasi-contract basis seeking restitution to prevent unjust enrichment of the appellee. The trial court awarded judgment on the contract for $350, but denied any relief on the quasi-contract claim. On appeal, the Commonwealth Court affirmed. 9 Pa.Cmwlth. 409, 305 A.2d 404 (1976). This Court then granted appellant's *631 petition for allowance of appeal. After consideration of the appeal, the matter was remanded to the Commonwealth Court. Hess v. Hazle Township, 465 Pa. 465, 350 A.2d 858 (1975). The Commonwealth Court after reconsideration following remand again affirmed the trial court. 26 Pa. Cmwlth. 379, 363 A.2d 844 (1976). Appellant's petition for allowance of appeal from that order was granted, and the appeal is now before us.\nThe appellant contends that the trial court erred in denying recovery on a quasi-contract theory. We agree.\nIn 1966, appellee advertised for bids for 100 tons, more or less, of gravel to be used in the township roads. Appellant was the successful bidder at a unit price of $3.50 per ton. Subsequently, during the summer of 1966 appellee requested and appellant delivered over 6,000 tons of gravel. Upon the advice of the appellee's solicitor, the appellee refused to pay for the gravel. Essentially, payment on the contract has been refused because of the significant difference between the amount of gravel specified in the advertisement — 100 tons, more or less, and the amount actually requested — over 6,000 tons. Because of this significant discrepancy, the trial court and the Commonwealth Court concluded that the gravel delivered could not come under the contract calling for 100 tons, more or less.\nAppellant's offer to present evidence of past practices to establish that large quantities of gravel had, in previous years, been delivered and paid for by the township under similar circumstances was rejected by the trial court. The Commonwealth Court concluded that even had such evidence been presented, appellant was not entitled to recover on the contract because, although some flexibility is permitted in a \"more or less\" contract, the differences here between the amount of gravel stated in the contract and the amount of gravel actually delivered was too great to permit payment under the contract without ignoring the bidding and contract provisions of the Second Class Township Code. 26 Pa.Cmwlth. at 383, n.2, 363 A.2d at 846, n.2. We have not been persuaded that this result is erroneous. Hess v. Hazle *632 Township, 9 Pa.Cmwlth. 409, 305 A.2d 404 (1976); Hess v. Hazle Township, 26 Pa.Cmwlth. 379, 363 A.2d 844 (1976).\nWe cannot agree, however, that the appellant was not entitled to recovery on a quasi-contract basis. Over seventy years ago, this Court recognized that a quasi-contract recovery could be had against a municipality.\n\"Municipal repudiation of honest indebtedness which the municipality intended to contract and could have lawfully contracted, is no more to be tolerated than individual repudiation of honest indebtedness merely because it was not incurred in pursuance of a duly executed express contract, unless the municipal charter or the statutes prohibit the municipality from incurring any liability by implication.\"\n\nLong v. Lemoyne Boro., 222 Pa. 311, 318, 71 A. 211, 212 (1908).\nSee also, Ohlinger v. Maidencreek Township, 312 Pa. 289, 294-296, 167 A. 882, 884-885 (1933); Aspinwall-Delafield Co. v. Borough of Aspinwall, 229 Pa. 1, 6, 77 A. 1098, 1100 (1910). Cases which have denied recovery on a quasi-contract basis have done so, not because such recovery cannot be had against a municipality as it can against an individual, but for other overriding reasons. In some cases, because the municipality or an agency of a municipality had no authority to legally contract in the first place for the benefit received, the court concluded that had there been a contract, it would have been ultra vires, either beyond constitutional or statutory authority. Kreusler v. McKees Rocks School District, 256 Pa. 281, 100 A. 821 (1917); Willis v. York County Directors of the Poor, 284 Pa. 138, 142, 143, 130 A. 401 (1925). Contractors have also been denied recovery when the benefit for which recovery was sought was not conferred upon the municipality but upon a private person. Meehan v. Cheltenham Township, 410 Pa. 446, 451, 189 A.2d 593, 595 (1963). Quasi-contract recovery has also been denied when a contract existed, and under the existing contract the contractor and not the municipality was found to have assumed the risk under the contract for unanticipated work. Montgomery *633 v. Philadelphia, 391 Pa. 607, 139 A.2d 347 (1958). Recovery has also been denied when subterfuge is present and it was obvious to the contractor as well as to the school district. Charleroi Land Co. v. Boro. School Dist., 334 Pa. 424, 6 A.2d 88 (1939).\nIn Luzerne Township v. Fayette Co., 330 Pa. 247, 199 A. 327 (1938), we again reaffirmed the rule that a quasi-contract recovery may be had against a municipality. There we said:\n\"It is true that, in order to avoid results involving obvious injustice, the courts of some jurisdictions, including our own, have held that where a municipality or other local agency of government has voluntarily accepted and retained the benefits of a contract which it had the power to make but which was defective in the method of its execution and consequently invalid, the party who, by furnishing labor or material, has conferred such benefits may recover compensation therefor in a suit, not on the invalid contract itself, but upon a quantum valebat, quantum meruit, or for money had and received; see article on `Quasi-Contractual Liability of Municipal Corporations' by Professor Tooke, 47 Harvard Law Review 1143. Common honesty requires that a municipality or other governmental agency should not be allowed, any more than a private individual, wholly to repudiate an obligation of which it has deliberately appropriated the benefits, and, in such cases, if the municipality does not restore the property which it has received, an implied obligation to make compensatory payment for it arises: Rainsburg Borough v. Fyan, 127 Pa. 74, 80, 17 A. 678, 4 L.R.A. 336; Long v. Lemoyne Borough, 222 Pa. 311, 317, 318, 71 A. 211, 21 L.R.A.,N.S., 474; Aspinwall-Delafield Co. v. Borough of Aspinwall, 229 Pa. 1, 6, 77 A. 1098; Ohlinger v. Maidencreek Township, 312 Pa. 289, 294, 295, 296, 167 A. 882, 90 A.L.R. 1227; Ephrata Water Co. v. Ephrata Borough, 16 Pa.Super. 484, 489, 490; Washington Female Seminary v. Washington Borough, 18 Pa.Super. 555, 559.\"\n330 Pa. at 253, 199 A. at 330.\n*634 In this case, none of the reasons given in prior cases for not permitting a quasi-contract recovery is present. The appellee had the constitutional and statutory authority to contract for the purchase of approximately 6,000 tons of gravel, had it chosen to do so. There is no contention that the municipality did not receive a benefit, nor is there any claim that subterfuge was involved or that the contractor assumed the risk of the municipality needing more gravel than 100 tons. Under these circumstances, it was error to deny appellant relief under a quasi-contract recovery.\nSome confusion has existed in this area because the Luzerne case, from which we quoted above, contains language stating that there is an exception to the right to obtain a quasi-contract recovery against a municipality. Luzerne said that the quasi-contract principle\n\". . . does not extend to benefits which by their very nature cannot be surrendered and the retention of which is therefore not voluntary, as, for example, paved highways or improvements upon buildings: Kreusler v. McKees Rocks School District, 256 Pa. 281, 100 A. 821; Willis v. York County Directors of the Poor, 284 Pa. 138, 142, 143, 130 A. 401; Chester School District's Audit, 301 Pa. 203, 216, 151 A. 801 . . .\"\nWe are at a loss to explain the above dicta appearing in Luzerne if it is made on the basis of the cases of this Court cited after the statement of the exception. Those cases have been examined and do not support the exception. On the other hand, we agree with the exception if it is intended to state a principle normally applicable when recovery is sought on a quasi-contract basis, although that principle is not applicable to the case before us. For example, if one paints a house in the owner's absence without the owner's knowledge, there can be no restitution for unjust enrichment because the owner at no time had an opportunity to reject or return the benefit. See Restatement of Restitution § 112. On the other hand, if the owner is present and silently watches, without objecting, his house being painted in error when the adjacent house should have been painted *635 — the owner cannot later avoid restitution by claiming that he cannot return the benefit because he did have the opportunity to reject the benefit. See Restatement of Restitution § 56(a) and Restatement of Contracts § 72.\nIn this case, the exception does not apply. The township requested the gravel over a three month period. It had an opportunity to reject the gravel. It did not do so. It had an opportunity at one point to reject the benefit. It did not do so. The benefit was not one conferred without knowledge by the municipality. Under these circumstances, the appellant is entitled to a quasi-contract recovery, not to exceed the $3.50 per ton.\nThere is no question that appellant conferred a benefit upon appellee in supplying over 6,000 tons of gravel to the roads in need of repair delivered to the sites as requested. It would be unjust for appellee to accept and retain this benefit without rendering compensation. The measure of recovery in these cases is the reasonable value of the materials furnished. Luzerne Township v. Fayette County, 330 Pa. 247, 199 A. 327 (1938). Am.Jur.2d, Vol. 56, p. 576. Because a factual determination of the reasonable value of the materials furnished by appellant was not made by the trial court, we remand on that issue.\nWe have examined other issues raised and find them to be without merit.\nThe judgment of the trial court awarding the appellant $350.00 for 100 tons of material delivered pursuant to the contract which was vacated by this Court, J.A. & W.A. Hess, Inc. v. Hazle Township, 465 Pa. 465, 350 A.2d 858 (1976), is reinstated and affirmed. The order of the trial court and the order of the Commonwealth Court denying recovery for the materials delivered over and above the 100 tons are reversed and the matter remanded to the trial court for further proceedings consistent with this opinion.\nFormer Justice POMEROY did not participate in the decision of this case.\n", "ocr": false, "opinion_id": 1463190 } ]

[ "691 F.2d 500" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/691/691.F2d.500.82-1361.html", "author_id": null, "opinion_text": "691 F.2d 500\n *U. S.v.3701 Briarhaven Lane, Tex.\n 82-1361\n UNITED STATES COURT OF APPEALS Fifth Circuit\n 10/29/82\n \n 1\n N.D.Tex.\n \n DISMISSED\n \n 2\n ---------------\n \n \n \n * Fed.R.App. P. 34(a); 5th Cir. R. 18.\n \n \n ", "ocr": false, "opinion_id": 409939 } ]

[ "2013 Ohio 2968" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 7, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/12/2013/2013-ohio-2968.pdf", "author_id": 8124, "opinion_text": "[Cite as BAC Home Loans Servicing, LP v. Mapp, 2013-Ohio-2968.]\n\n\n\n IN THE COURT OF APPEALS\n\n TWELFTH APPELLATE DISTRICT OF OHIO\n\n BUTLER COUNTY\n\n\n\n\nBAC HOME LOANS SERVICING, L.P., :\n CASE NO. CA2013-01-001\n Plaintiff-Appellee, :\n OPINION\n : 7/8/2013\n - vs -\n :\n\nCURTIS MAPP, :\n\n Defendant-Appellant. :\n\n\n\n CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS\n Case No. CV2010-09-4025\n\n\n\nLaurito & Laurito, LLC, Colette S. Carr, 7550 Paragon Road, Dayton, Ohio 45459, for\nplaintiff-appellee\n\nLaw Office of Joseph C. Lucas, LLC, Tyler W. Kahler, P.O. Box 36736, Canton, Ohio 44735,\nfor defendant-appellant\n\n\n\n M. POWELL, J.\n\n {¶ 1} Defendant-appellant, Curtis Mapp, appeals a decision of the Butler County\n\nCourt of Common Pleas denying his Civ.R. 60(B) motion for relief from judgment.\n\n {¶ 2} In July 2008, Mapp executed a promissory note in favor of Countrywide Bank,\n\nSFB, in the principal amount of $284,200. The note was secured by a mortgage which\n\ndesignated Mapp as mortgagor, and Mortgage Electronic Registration Systems, Inc. (MERS)\n\f Butler CA2013-01-001\n\nas mortgagee. MERS was identified in the mortgage as a corporation acting \"solely as\n\nnominee for [Countrywide] * * * and [Countrywide's] successors and assigns.\" The\n\npromissory note does not mention MERS. On May 28, 2010, MERS, \"acting solely as\n\nnominee for Countrywide,\" assigned the mortgage and promissory note to plaintiff-appellee,\n\nBAC Home Loans Servicing, L.P., f.k.a. Countrywide Home Loans Servicing, L.P. (BAC).\n\nEffective July 1, 2011, BAC was merged into Bank of America, N.A.1\n\n {¶ 3} On September 28, 2010, BAC filed a complaint against Mapp and Jane Doe,\n\nthe unknown spouse of Mapp, demanding judgment on the note in the amount of\n\n$276,924.21 plus late fees and interest, and seeking foreclosure of the property. Ten days\n\nlater, Mapp filed a letter in the trial court which the trial court construed as an answer to\n\nBAC's complaint. On September 28, 2011, BAC moved for default judgment against Doe\n\nand for summary judgment against Mapp. Neither Mapp nor Doe responded to BAC's\n\nmotions. On November 2, 2011, the trial court granted BAC's motions for default judgment\n\nand summary judgment, entered a judgment in favor of BAC in the amount of $276,924.21\n\nplus interest, and ordered the sale of the property. Mapp's subsequent pro se motion to\n\ndismiss was overruled by the trial court.\n\n {¶ 4} On October 25, 2012, Mapp filed a motion for relief from judgment pursuant to\n\nCiv.R. 60(B)(1), (3), and (5). Mapp asserted three meritorious defenses: (1) he was not\n\nproperly credited with some of the mortgage payments he made; (2) documents attached to\n\nBAC's complaint were forged, altered, or tampered with; and (3) BAC lacked standing to\n\nbring the foreclosure action and/or was not the real party in interest.\n\n {¶ 5} Mapp asserted that his neglect of the case was excusable under Civ.R.\n\n60(B)(1). Mapp also asserted that given the forgery, alteration, or tampering of the\n\n\n1. By entry filed on September 28, 2011, the trial court substituted \"Bank of America, N.A., successor by merger\nto BAC Home Loans Servicing, L.P. fka Countrywide Home Loans Servicing, L.P.\" as the plaintiff.\n -2-\n\f Butler CA2013-01-001\n\ndocuments attached to BAC's complaint, he was entitled to relief under Civ.R. 60(B)(3).\n\nFinally, Mapp challenged the amount of damages awarded by the trial court to BAC, pursuant\n\nto Civ.R. 60(B)(5), on the ground the award was not supported by the record.\n\n {¶ 6} On December 5, 2012, the trial court denied Mapp's Civ.R. 60(B) motion\n\nwithout a hearing. The trial court found that although the motion was filed within a\n\nreasonable time, Mapp failed to establish he had meritorious defenses, and he was not\n\nentitled to relief under Civ.R. 60(B)(1), (3), or (5).\n\n {¶ 7} Mapp appeals, raising three assignments of error.\n\n {¶ 8} Assignment of Error No. 1:\n\n {¶ 9} THE TRIAL COURT ABUSED ITS DISCRETION WHERE IT DENIED THE\n\nMOTION MADE PURSUANT TO CIV.R. 60(B)(1), WHICH ASSERTED THAT CURTIS\n\nMAPP HAD EXCUSABLY NEGLECTED THE CASE AND HAD MERITORIOUS DEFENSES\n\nTO PRESENT IF RELIEF WAS GRANTED, INCLUDING (1) THAT THE AMOUNT OF THE\n\nJUDGMENT WAS IN EXCESS OF ANY AMOUNT OWED, (2) THAT PLAINTIFF LACKED\n\nSTANDING OR WAS NOT THE REAL PARTY IN INTEREST, AND (3) THAT THE\n\nMORTGAGE AND NOTE DOCUMENTS WERE FORGED OR TAMPERED WITH TO THE\n\nEXTENT THAT THE DOCUMENTS PURPORT TO PERTAIN TO MORE THAN ONE\n\nPARCEL OF LAND.\n\n {¶ 10} Mapp argues the trial court's denial of his Civ.R. 60(B)(1) motion was an abuse\n\nof discretion because his neglect of the case was excusable and he presented three\n\nmeritorious defenses, including that BAC lacked standing to bring the foreclosure action\n\nand/or was not the real party in interest. In its decision, the trial court rejected this defense\n\nas follows:\n\n Finally, Mapp asserts that he has a meritorious defense because\n BAC \"lacks standing and/or is not the real party in interest.\" He\n alleges that the mortgage was assigned to BAC on May 28,\n -3-\n\f Butler CA2013-01-001\n\n 2010, which \"was after Countrywide FSB had been converted\n into a national bank and merged into Bank of America, NA.\"\n Therefore, according to Mapp, Countrywide was out of\n exist[e]nce at the time of the purported assignment. This\n argument presupposes, however, that Countrywide Bank, FSB\n was the transferor. According to the evidence in the record, the\n deed to the property at issue was assigned by Mortgage\n Electronic Registration Systems, Inc. (\"MERS\") to BAC. Mapp\n has made no allegation with regard to MERS. Therefore, BAC's\n alleged lack of standing does not constitute a meritorious\n defense.\n\n {¶ 11} We note that although Mapp's Civ.R. 60(B) motion was captioned \"Motion for\n\nRelief from Judgment,\" the portion of his motion challenging BAC's standing was in\n\nsubstance a motion to vacate a void judgment because it challenged the trial court's\n\njurisdiction. See In re Adoption of Goldberg, 12th Dist. No. CA2001-04-026, 2001 WL\n\n1079032 (Sept. 17, 2001) (construing a motion for relief from judgment as a motion to vacate\n\na void judgment for lack of jurisdiction). A motion to vacate a void judgment need not satisfy\n\nthe requirements of Civ.R. 60(B), which permits equitable relief from a jurisdictionally valid\n\njudgment. Id. at *2, citing Demianczuk v. Demianczuk, 20 Ohio App.3d 244, 245 (8th\n\nDist.1984). An Ohio court has inherent power to vacate its own void judgment irrespective of\n\nCiv.R. 60(B). Patton v. Diemer, 35 Ohio St.3d 68 (1988), paragraph four of the syllabus;\n\nDemianczuk at 245. Therefore, it was not incumbent upon Mapp to establish a basis for\n\nrelief under Civ.R. 60(B) by showing a meritorious defense. Rather, what is at issue is\n\nwhether the trial court had jurisdiction over the foreclosure proceeding or whether it lacked\n\nsuch jurisdiction because BAC lacked standing to file the foreclosure complaint. See\n\nGoldberg.\n\n {¶ 12} In a recent decision involving a foreclosure action, the Ohio Supreme Court\n\nheld that standing is jurisdictional, and that because standing to sue is required to invoke the\n\njurisdiction of the common pleas court, standing is to be determined as of the filing of the\n\ncomplaint. Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-\n -4-\n\f Butler CA2013-01-001\n\n5017, ¶ 22, 24, 27. The court emphasized that Civ.R. 17(A), which requires actions to be\n\nprosecuted in the name of the real part in interest, does not address standing but rather,\n\nsimply concerns proper party joinder. Id. at ¶ 33. Accordingly, \"a lack of standing at the\n\noutset of litigation cannot [subsequently] be cured by receipt of an assignment of the claim.\"\n\nId. at ¶ 41. Likewise, \"a common pleas court cannot substitute a real party in interest for\n\nanother party if no party with standing has invoked its jurisdiction in the first instance.\" Id. at\n\n¶ 38.\n\n {¶ 13} In the case at bar, Mapp alleged that BAC lacked standing to file the\n\nforeclosure complaint because Countrywide no longer existed when the mortgage was\n\nassigned to BAC. The trial court rejected Mapp's allegation on the ground it was MERS, not\n\nCountrywide, that assigned the mortgage to BAC. However, as Mapp notes, the assignment\n\nof mortgage clearly states: \"(MERS) Mortgage Electronic Registration Systems, Inc., acting\n\nsolely as nominee for Countrywide Bank, FSB, * * * does hereby sell, assign, transfer, and\n\nset over unto BAC Home Loans Servicing, LP * * * a certain mortgage deed * * * together\n\nwith the Promissory Note[.]\" (Emphasis added.) The trial court's decision does not address\n\nMapp's allegation that Countrywide no longer existed when MERS, \"acting solely as nominee\n\nfor Countrywide,\" assigned the mortgage to BAC. There is no evidence in the record as to\n\nwhen Countrywide ceased to exist and/or was merged into Bank of America.\n\n {¶ 14} We therefore reverse the trial court's finding that \"BAC's alleged lack of\n\nstanding does not constitute a meritorious defense\" and remand the case to the trial court for\n\na hearing to determine BAC's standing to sue, and correspondingly whether the trial court\n\nhad jurisdiction over the foreclosure proceedings. On remand, the trial court must determine\n\nwhether MERS had the authority to assign the mortgage and/or the note as the nominee for\n\nCountrywide in light of the claim that Countrywide was no longer in existence when the\n\nmortgage was assigned to BAC. In this regard, we observe that Schwartzwald only requires\n -5-\n\f Butler CA2013-01-001\n\na party to establish an interest in either the note or the mortgage at the time the complaint is\n\nfiled in order to have standing to prosecute a foreclosure action. Schwartzwald, 2012-Ohio-\n\n5017 at ¶ 28.\n\n {¶ 15} In light of the foregoing, we decline to address whether Mapp's neglect of the\n\ncase was excusable under Civ.R. 60(B)(1). We also decline to address his two other\n\nmeritorious defenses (that he was not properly credited with some of the mortgage payments\n\nhe made, and that documents attached to BAC's complaint were forged, altered, or tampered\n\nwith). Mapp's first assignment of error is sustained to the extent indicated.\n\n {¶ 16} Assignment of Error No. 2:\n\n {¶ 17} THE TRIAL COURT ABUSED ITS DISCRETION WHERE IT DENIED THE\n\nMOTION MADE PURSUANT TO CIV.R. 60(B)(3) WHERE FRAUD, MISREPRESENTATION\n\nAND/OR MISCONDUCT OF AN ADVERSE PARTY IS PRESENT BASED UPON THE\n\nPURPORTED MORTGAGE OF TWO PARCELS, WHERE THE MORTGAGE WAS TO BE\n\nFOR ONLY ONE PARCEL, AS DEMONSTRATED BY THE SECOND PAGE OF THE OPEN-\n\nEND MORTGAGE.\n\n {¶ 18} Assignment of Error No. 3:\n\n {¶ 19} THE TRIAL COURT ABUSED ITS DISCRETION WHERE IT DENIED THE\n\nMOTION MADE PURSUANT TO CIV.R. 60(B)(5), WHICH CHALLENGED THE AMOUNT\n\nOF THE JUDGMENT.\n\n {¶ 20} Given our holding on Mapp's first assignment of error, we decline to address his\n\nsecond and third assignments of error as they are not ripe for review at this time. If, upon\n\nremand, the trial court determines that BAC had standing to file the foreclosure complaint,\n\nMapp may appeal that decision and renew his arguments pertaining to the trial court's denial\n\nof his Civ.R. 60(B) motion, and in particular, the trial court's ruling on his several Civ.R. 60(B)\n\nclaims and meritorious defenses.\n -6-\n\f Butler CA2013-01-001\n\n {¶ 21} Judgment reversed and remanded for further proceedings in accordance with\n\nthis opinion.\n\n\n RINGLAND, P.J., and S. POWELL, J., concur.\n\n\n\n\n -7-\n\f", "ocr": false, "opinion_id": 2708110 } ]

[ "65 P.3d 688" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 8463, "opinion_text": "\n65 P.3d 688 (2003)\nSTATE of Washington, Respondent,\nv.\nJames Edwin SHAVER, Appellant.\nNo. 20137-6-III.\nCourt of Appeals of Washington, Division 3, Panel Six.\nApril 3, 2003.\n*689 Paul J. Wasson, Spokane, WA, Appellant.\nTimothy S. O'Neill, Prosecuting Attorney, Goldendale, WA, David B. Trefry, Spokane, WA, Respondent.\nSCHULTHEIS, J.\nJames Edwin Shaver appeals his judgment and sentence on drug charges. He contends the convictions should be reversed and the case remanded or dismissed due to: (1) ineffective assistance of counsel; (2) erroneous denial of his pretrial motion to suppress; (3) prosecutorial misconduct; and (4) denial of his motion for a new trial. Finding Mr. Shaver received ineffective assistance of defense counsel, we reverse.\n\nFACTS\nMr. Shaver was charged in the Klickitat County Superior Court with: (1) manufacturing methamphetamine (RCW 69.50.401(a)(1)); conspiracy to manufacture methamphetamine (RCW 60.50.401 and .407); and (3) possession of methamphetamine (RCW 69.50.401(d)). Just prior to trial the State amended the information to add two counts of distribution of a controlled substance to a person under the age of 18 (RCW 69.50.406). Mr. Shaver filed a CrR 3.6 motion to suppress evidence seized as the result of an allegedly defective search warrant. The motion was ultimately denied.\nThe day trial was to begin, the State informed the court it had added two new witnesses to its list of witnesses for trial. Defense counsel objected on the basis of timeliness and also disclosed he had previously represented both of the new witnesses in criminal matters. Mr. Shaver refused to waive his speedy trial rights and/or any conflict of interest his attorney would have when cross-examining these witnesses. Initially, the court refused to allow the two witnesses to testify at trial. The next day, on the State's motion for reconsideration, the trial court reversed its earlier decision and determined it was proper to allow one of the former clients, Marvin Dean Gregory, to testify. It concluded current case law allowed defense counsel to continue to represent Mr. Shaver even though counsel had represented Mr. Gregory in the past since the subject of Mr. Gregory's prior representation was not substantially related to Mr. Shaver's current charges. Further, the court determined the interests of the former and current clients were not materially adverse. See State v. Ramos, 83 Wash.App. 622, 922 P.2d 193 (1996); State v. Hunsaker, 74 Wash.App. 38, 873 P.2d 540 (1994).\nDefense counsel then argued that a defense witness, Robert Estes, had been intimidated by the prosecutor in a jailhouse interview prior to trial. Mr. Estes was listed as both a defense and prosecution witness. A hearing occurred outside the presence of the jury. At its conclusion, the court found no evidence of witness intimidation and required *690 Mr. Estes to testify, but limited questioning to matters that would not elicit incriminating responses. The trial proceeded and the defense made a motion to dismiss the charges at the conclusion of the State's case in chief, which was denied.\nMr. Shaver testified on his own behalf. He admitted he was a methamphetamine user but denied manufacturing, conspiring to manufacture, or delivering the drug as charged in the information. On direct examination, defense counsel asked Mr. Shaver questions about some, but not all, of his prior criminal convictions. This opened the door for the State to impeach Mr. Shaver with a prior felony drug conviction that was similar to one of the counts charged in the current trial. Mr. Shaver candidly admitted the former drug conviction in response to the prosecutor's questions.\nAt the conclusion of the trial, a jury found Mr. Shaver guilty of four of the five charges. He requested a new trial but the motion was denied. Mr. Shaver was sentenced in the standard range.\n\nANALYSIS\n\n1. CrR 3.6 Motion\nMr. Shaver contends the trial court erred when it denied his motion to suppress evidence seized as the result of an allegedly defective search warrant. He argues that neither the informant's basis for knowledge nor his credibility was sufficiently established to allow the magistrate to make an appropriate probable cause determination prior to issuing the search warrant.\nAn appellate court limits its review of findings of fact entered following a suppression motion solely to \"those facts to which error has been assigned.\" State v. Hill, 123 Wash.2d 641, 647, 870 P.2d 313 (1994). Unchallenged findings are verities on appeal. Id. at 644, 870 P.2d 313.\nUnfortunately, no findings or conclusions were submitted with the record on appeal, which is a procedural anomaly. \"A separate assignment of error for each finding of fact a party contends was improperly made must be included with reference to the finding by number.\" RAP 10.3(g). When parties challenge findings of fact, they must include them verbatim in the brief or attach a copy of them in an appendix to the brief. RAP 10.4(c). Mr. Shaver complied with neither rule. Instead, he merely claims the trial court erred in denying his motion to suppress based on the State's inability to meet the Aguilar-Spinelli[1] test regarding confidential informants. Because the CrR 3.6 hearing and the court's oral decision were included in the record we hesitantly address the issue despite Mr. Shaver's inadequate briefing. However, the trial court's oral findings of fact are treated as unchallenged, and thus verities on appeal. Hill, 123 Wash.2d at 644, 870 P.2d 313.\nMr. Shaver's contention regarding the sufficiency of the affidavit of probable cause ultimately depends on whether the court's findings support its legal conclusion that the incriminating evidence was lawfully obtained as the result of a valid search warrant. The appellate court conducts a de novo review of conclusions of law in an order pertaining to a suppression motion. State v. Mendez, 137 Wash.2d 208, 214, 970 P.2d 722 (1999).\nThe trial court determined that the affidavit in support of the application for the search warrant written and submitted by the investigating officer, included a handwritten statement signed by the confidential informant (CI), which relayed critical information to the officer investigating the drug crime that led to Mr. Shaver's arrest. This investigating officer's affidavit included his basis of knowledge surrounding the drug crime at issue and the reasons the CI's information was credible. These are the two prongs of the Aguilar-Spinelli test that must be satisfied prior to the search warrant issuing. The court made several findings regarding the affidavit in support of the search warrant. They include: (1) the named CI initially contacted the investigating officer to report the alleged methamphetamine operation at the *691 home of Robert Estes; (2) the officer was told the CI wanted to rid the community of drug dealers and also hoped for a favorable recommendation to the prosecutor regarding an outstanding criminal charge; (3) the investigating officer had been investigating the Estes household regarding illegal drug activity for many years prior to being contacted by the CI and had personal knowledge of high foot and automobile traffic in and out of the Estes residence and knew from license plate numbers that many visitors to the residence were known drug users; (4) in response to the investigating officer's directive, the CI went to the Estes home; (5) while at the Estes home the CI learned that Mr. Shaver was presently cooking meth and was teaching Mr. Estes to do so as well; (6) the comments Mr. Estes made to the CI were statements against penal interests, which made the statements more credible; (7) the investigating officer knew the CI for several years and knew the CI had been involved in the drug sub-culture in the past; and (8) the CI had previously provided reliable information to the investigating officer. The court then concluded that, taken as a whole, the information presented in the officer's affidavit and the CI's personal, signed statement provided sufficient compliance with the twoprong test of Aguilar-Spinelli. As a result, it determined there was sufficient probable cause for the search warrant to issue and denied Mr. Shaver's motion to suppress evidence. The findings support the court's conclusion. The trial court did not abuse its discretion when it denied Mr. Shaver's CrR 3.6 motion to suppress.\n\n2. Ineffective Assistance of Defense Counsel\nNext, Mr. Shaver claims the trial court erred when it refused to grant him a new trial on the basis of ineffective assistance of counsel. He lists five prejudicial errors committed by defense counsel: (1) failure to move in limine to exclude portions of his prior criminal record; (2) introducing his entire criminal history even though some of the offenses could not have been used for impeachment purposes; (3) failing to object to the State's use of a previous drug conviction for impeachment purposes when the prejudice clearly outweighed the probative value; (4) deficient cross-examination of State witnesses; and (5) improperly arguing the motion to suppress.\nWe review an ineffective assistance of counsel claim de novo. State v. S.M., 100 Wash.App. 401, 409, 996 P.2d 1111 (2000). We indulge in a strong presumption that defense counsel's performance is within the broad range of reasonable professional assistance. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wash.2d 322, 335, 899 P.2d 1251 (1995). The test for ineffective assistance of counsel is whether: (1) defense counsel's performance fell below the objective standard of reasonableness; and (2) this deficiency prejudiced the defendant. State v. Thomas, 109 Wash.2d 222, 226, 743 P.2d 816 (1987). Prejudice results when it is reasonably probable that \"`but for counsel's unprofessional errors, the result of the proceeding would have been different.'\" State v. Lord, 117 Wash.2d 829, 883-84, 822 P.2d 177 (1991) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. 2052).\nMr. Shaver contends he did not receive effective assistance of defense counsel, especially as it relates to the issue of a prior drug conviction from the state of Oregon. When called to the stand to testify in his own behalf the following colloquy took place between Mr. Shaver and his attorney:\nQ ... I meant to ask you earlier—you do have a criminal record; isn't that—\nA Yes, sir.\nQ —right, Mr. Shaver? Okay. In fact, what charges were you charged with, and I believe convicted of?\nA Burglary two was two of the charges, and then a walk away from work release, which is an escape, they call it.\nQ Okay.\nA It was a walk away on a pass, and I just didn't return.\nQ All right.\nA That was back in 1985 and '86.\nQ Okay. That's when you were charged with those?\nA Yes.\n\n*692 Q And—\nA I think I finally was convicted on everything in '90—in '87, I believe.\nQ Okay. And that's included—that's the burglaries and the escape?\nA Yes.\n. . . .\nQ ... Have you had any criminal violations whatsoever since those in '85, '86, `87?\nA No, sir.[[2]]\nLater, during the State's cross-examination of Mr. Shaver the following occurred:\nBY MR. HAGERTY [deputy prosecutor]:\nQ Mr. Shaver, you indicated that you have burglary, burglary, and escape; is that correct?\nA Yes, sir.\nQ Do you also have a drug case.\nA No (inaudible) drug case?\nQ Did you also enter a judgment and conviction and sentence on a drug case in the State of—\nA Yes, it was—\nQ —Oregon?\nA—in the State of Oregon. Yes, it was. It wasn't shown on my—on my criminal history that you guys prepared.\n. . . .\nQ ... When you sat here and just testified, you didn't mention anything about the possession conviction; did you?\nA I didn't know if it was listed or not.\nQ Did you know you had it?\nA Yes.\nQ When he [defense counsel] asked you what crimes you were convicted of, didn't you think it was important to admit that you had a felony—\nA I was—\nQ —drug conviction?[[3]]\nDefense counsel did not object or even request a sidebar during this colloquy. This is the basis of Mr. Shaver's ineffective assistance of counsel claim. He argues an adequate defense attorney would have made a pretrial motion to suppress the prior escape and drug convictions because their probative value did not outweigh the substantial potential for prejudice pursuant to ER 403. Additionally, Mr. Shaver argues adequate defense counsel would have immediately objected to the line of questioning by the State regarding the drug crime that occurred in Oregon, or, at a minimum, requested a sidebar so the jury would not hear the conversation until the court had a chance to rule on the potential for prejudice. Mr. Shaver candidly admits the burglary convictions may have been allowed into evidence as crimes of dishonesty pursuant to ER 609(a)(2) but maintains the escape and drug convictions may well have been excluded if a hearing had taken place outside the presence of the jury. ER 403, 404, 609; State v. Bankston, 99 Wash.App. 266, 270-71, 992 P.2d 1041 (2000) (court must look at probative value and prejudice as well as consider and weigh Alexis[4] factors).\nMr. Shaver argues, and we agree, that he was denied effective representation and that he was prejudiced as a result pursuant to the well known Strickland test. It appears defense counsel was caught by surprise regarding Mr. Shaver's drug felony from the state of Oregon. Adequate representation should include accurate knowledge of prior criminal history, especially since the State had the information and used it to prepare a damaging cross-examination. We find it reasonably probable that defense counsel's lack of preparation adversely affected the outcome of this proceeding.\nMr. Shaver also argues that defense counsel did not adequately cross-examine the State's witnesses and did not sufficiently argue the CrR 3.6 motion to suppress. The record does not support these contentions. Because we determine Mr. Shaver was not adequately represented by defense counsel, his conviction must be reversed on this basis.\n*693 We do not address Mr. Shaver's remaining contentions as they are not dispositive.\nReversed.\nI CONCUR: KURTZ, J.\nSWEENEY, J. (dissenting).\nI respectfully dissent. This case was the subject of a motion on the merits by the respondent, State of Washington. RAP 18.14. I cannot do better than simply to adopt Commissioner Frank V. Slak's ruling, to-wit:\nJames Edwin Shaver appeals from Klickitat County convictions of manufacturing and possessing methamphetamine and two counts of distribution of a controlled substance to a person younger than 18. He claims (1) he was denied the effective assistance of counsel; (2) the trial court improperly denied his motion to suppress; (3) the prosecutor engaged in reversible misconduct, and (4) the trial court erred in denying his motion for a new trial.\nPerceiving the issues as clearly controlled by settled law, evidentiary questions for which there is the necessary quantum of proof in the record or discretionary decisions involving a reasoned application of the law to the facts, the Respondent State of Washington has moved on the merits to affirm. RAP 18.14.\nBecause (1) Mr. Shaver has failed to overcome the presumption of counsel's competence; (2) the record adequately discloses and supports both the knowledge and credibility of the informants; (3) there was no State misconduct warranting a new trial, and (4) there were no grounds for granting a new trial, the State's motion is granted, and the judgment and sentence are affirmed.\nTo prevail upon a claim of ineffective assistance of counsel, a defendant must show (1) his counsel's actions fell below an objective standard of competence and (2) but for counsel's unprofessional errors, the results of the proceeding would have been different. State v. McFarland, 127 Wash.2d 322, 334-35, 899 P.2d 1251 (1995). But counsel is strongly presumed competent, and an appellant \"must show in the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel.\" Id. at 336, 899 P.2d 1251.\nMr. Shaver contends his trial lawyer was ineffective in (1) failing to move in limine to exclude his prior criminal record; (2) introducing his criminal history even though some of the offenses could not have been used for impeachment purposes; (3) failing to object to the State's use of a previous drug conviction for impeachment purposes; (4) placing himself in a position in which his testimony was necessary to impeach a witness, and (5) incorrectly arguing a motion to suppress.\nThe first three grounds relate to trial counsel's direct examination of Mr. Shaver so he could explain why he was hiding from police when they executed a search warrant. Mr. Shaver had been previously convicted and was on probation. Although he denied any probation violations, he said he had received notice of one for failure to report, and he believed the officers who were executing the search warrant were actually there to arrest him on the probation-violation allegation. That theory, of course, would negate any inference that he was hiding in the closet to avoid connection with the methamphetamine manufacturing operation. Without his explanation the jury could easily have drawn the inference that he had guilty knowledge of what was transpiring at the residence and was hiding to avoid an arrest for it. Thus, counsel's inquiry was a legitimate trial tactic.\nAlthough counsel might have avoided asking about the specific crimes for which Mr. Shaver was on probation, once he mentioned the probation, it was probably fair game on cross-examination, and it would have lessened the impact of the offenses if they were first revealed by Mr. Shaver on direct examination. Again, that could well have been a legitimate trial tactic.\nThe fact that Mr. Shaver did not fully answer the question about his criminal history—and thus allowed the State to impeach him by pointing out that he also had a drug conviction involving methamphetamine *694 —was not counsel's fault. The mistake, if any were made, was Mr. Shaver's for failing to fully answer the question propounded by his own lawyer. And, because he had \"opened the door\" by discussing his record, the State was free to further inquire. There was no error by trial counsel in failing to object and no error by the trial court in permitting the inquiry. Therefore, Mr. Shaver was not denied the effective assistance of counsel as alleged in his first three arguments.\nMr. Shaver next contends trial counsel ineffectively argued the motion to suppress and that the trial court erred in denying the motion. Mr. Shaver argues that neither the informant's basis for knowledge nor his credibility was sufficiently established to allow the trial court to make an appropriate probable cause determination for issuing the search warrant. Mr. Shaver is incorrect.\nThe affidavit in support of the application for the search warrant disclosed the name of the informant and indicated both his basis for his knowledge and the reasons for believing him. Those are necessary elements under the two-part test of Aguilar-Spinelli. See State v. Cole, 128 Wash.2d 262, 287, 906 P.2d 925 (1995). The affidavit indicated the informant had initially contacted an officer to report the methamphetamine operation by noting that one of the other residents, Robert Estes, had told the informant that. The officer directed the informant to verify the information, and the informant then went to the residence. He there contacted Mr. Estes, who denied him entry, saying that Mr. Shaver was teaching him how to cook meth and did not want anyone in the apartment when he was doing so. The informant noticed Mr. Estes' disheveled state and \"spun\" out conduct. The officer said in the affidavit that he had known the informant for several years and reported that the informant had been associated with the drug sub-culture for several years. The officer said the informant wanted to rid the community of drug dealers and wanted a favorable recommendation from the officer to the prosecutor on some apparently outstanding allegations. The officer said the informant had previously provided reliable information.\nFinding Mr. Estes' comments were statements against his penal interest, and thus clothed with more credibility, and that when coupled with the officer's direct observation of high foot and automobile traffic in and out of the residence, along with the informant's established \"track record\" for reliability, the court determined there was sufficient compliance with Aguilar-Spinelli to establish probable cause for issuance of the search warrant.\nGreat deference is given to the issuing magistrate's probable cause determination, State v. Young, 123 Wash.2d 173, 195, 867 P.2d 593 (1994), and supporting affidavits are to be read as a whole, in a common sense, non-technical manner, with doubts resolved in favor of the warrant. State v. Casto, 39 Wash.App. 229, 232, 692 P.2d 890 (1984), review denied, 103 Wash.2d 1020 (1985). The trial court's oral findings and conclusions are supported by the affidavit in support of the request for the warrant, and they are reasonable inferences and conclusions to be drawn from it. They are legally sound, too, because statements against penal interest help establish reliability, State v. Lair, 95 Wash.2d 706, 630 P.2d 427 (1981), and a general statement that an informant has given an affiant \"information proven to be true and correct in the past\" is sufficient to establish the informant's credibility. State v. Fisher, 96 Wash.2d 962, 965, 639 P.2d 743, cert. denied, 457 U.S. 1137, 102 S. Ct. 2967, 73 L. Ed. 2d 1355 (1982). There was no error in denying the motion to suppress.\nFinally, Mr. Shaver claims prosecutorial misconduct deprived him of a fair trial. He claims the State (1) violated the Rules of Professional Conduct by calling a witness represented by defense counsel without obtaining a waiver from him; (2) intimidated a witness by threatening to bring perjury charges against him; (3) used improper felonies for the purposes of impeachment, and (4) argued that he had a duty to produce certain proof at trial.\nA defendant alleging prosecutorial misconduct bears the burden of showing both *695 the improper conduct and its prejudicial effect. State v. Brown, 132 Wash.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007, 118 S. Ct. 1192, 140 L. Ed. 2d 322 (1998). To establish prejudice, the defendant must show a substantial likelihood that the misconduct affected the jury's verdict. Id.\nMr. Shaver's first complaint is that the State violated the RPC's by calling a witness represented by his lawyer without obtaining a waiver from him. This does not appear to be an instance of misconduct by the State. Rather, it appears to be an assignment of error directed to the trial court's ruling that there was not such a conflict between the interests of Mr. Shaver and the witness (and not such an indication that the witness was represented by Mr. Shaver's counsel) to warrant counsel's withdrawal or preventing the witness from testifying. In any event, there was no error. First, there was truly no indication of a continuing representation of the witness by Mr. Shaver's trial lawyer. Although the lawyer had represented the witness in a previous criminal matter, that matter had been concluded, and there was no other ongoing representation. Secondly, that witness consented to a waiver of the lawyer-client privilege, and trial counsel vigorously cross-examined him. Nothing in the record suggests that Mr. Shaver's trial lawyer was caught in a \"struggle to serve two masters.\" State v. Robinson, 79 Wash.App. 386, 395, 902 P.2d 652 (1995) (citations omitted). Absent such a showing, prejudice cannot be presumed. In re Richardson, 100 Wash.2d 669, 677, 675 P.2d 209 (1983). Since there is neither actual prejudice shown nor prejudice that may be presumed, Mr. Shaver has not demonstrated any error respecting the calling of the witness.\nNext, Mr. Shaver contends the State engaged in prosecutorial misconduct by threatening perjury charges against a defense witness if he failed to tell the truth. While the State deprives a defendant of due process when it effectively keeps a defense witness off the stand by threatening the witness, State v. Carlisle, 73 Wash. App. 678, 679, 871 P.2d 174 (1994), \"[i]t is hardly a threat for a prosecutor to advise a potential witness, who is telling two stories with respect to a defendant's criminal involvement, that he might be prosecuted for perjury if he testifies falsely.\" United States v. Simmons, 670 F.2d 365, 371 (D.C.Cir.1982).\nThe alleged threats here were directed to witness Estes, who testified out of the jury's presence that the prosecutor threatened him with perjury if he testified inconsistently with the physical evidence. Called as a defense witness, Mr. Estes testified that he was the person cooking the meth and that Mr. Shaver was not really involved. He said that Mr. Shaver may have handed him a few things, but that he was not involved with the actual cooking. This testimony tended to exonerate Mr. Shaver and also explained how Mr. Shaver's fingerprints were found on an item used in the making of the meth. Mr. Estes further denied that Mr. Shaver gave any meth to a young female at the residence. Since State v. Green, 94 Wash.2d 216, 221, 616 P.2d 628 (1980), which requires that the evidence and all reasonable inference to be drawn from it be viewed in a light most favorable to the State's conduct did not appear in any way to have prevented Mr. Estes from testifying favorably for Mr. Shaver, he cannot establish the necessary prejudice. There was no prosecutorial misconduct.\nAs for the third alleged instance of prosecutorial misconduct, the use of the felony for impeachment purposes has already been resolved adversely to Mr. Shaver.\nFinally, Mr. Shaver argues that the State engaged in prosecutorial misconduct during its closing argument when the prosecutor said he had a duty to produce evidence of his innocence. Specifically, the contention is directed to the prosecutor's argument about Mr. Shaver's testimony that witness Gregory was aware of events at the residence because he had read Mr. Shaver's copy of police reports while they were in the jail. Mr. Gregory denied having seen the statements, but Mr. Shaver insisted he had read them in the jail. Moreover, Mr. Shaver testified he still had *696 the copies of the reports—not in his cell, though. He did not produce those copies, however, and that is the evidence about which the prosecutor was arguing. He said:\nThe State has the burden to prove beyond a reasonable doubt, but if the defendant raises a piece of evidence, and an issue to you, he can't just say it and move on, because he has it. He uniquely has the position. If there was a statement, why wasn't it produced? Why aren't you able to see it?\nThe State didn't have it. We couldn't do anything about it. We didn't even know it existed until he got on the stand. He says he has it now. Do you have it as a piece of evidence? No. Why? Question why we don't have it.\nIf he has it, fine, let's see it. But if we don't have it, then there's no way for you to really grasp Mr. Gregory's denial of ever seeing anything, and his allegation that Mr. Gregory knew all these unique facts in this case, particularly distribution to an under age female, because of this statement, this elusive statement we don't have.\nThe prosecutor's remarks had nothing to do with placing a burden upon Mr. Shaver to prove anything. It was directed to his burden of production; he mentioned a document that he said was in his control, but he did not produce it. The prosecutor's remarks did not require Mr. Shaver to prove his innocence or to disprove any of the elements of the offense. Rather, they were directed at a piece of evidence exclusively in his possession and not introduced as an exhibit. Since Mr. Shaver raised the point, the State was entitled to address it. Moreover, trial counsel correctly did not object to the statements.\nWhen viewed, as required, \"in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury,\" State v. Brown, 132 Wash.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007, 118 S. Ct. 1192, 140 L. Ed. 2d 322 (1998), the comments simply did not have a substantial likelihood of affecting the verdict. They did not constitute improper closing argument.\nThe State's motion on the merits is granted. The judgment of the Superior Court is affirmed.\nCommissioner's Ruling filed June 4, 2002 (footnote omitted).\nI would only add to this well-reasoned ruling that there are many ways to try the same jury case. The way Mr. Shaver's attorney elected to defend this criminal prosecution is a legitimate one. Appellate courts should avoid substituting their judgment, which is necessarily based upon a cold record, for that of the lawyers and a judge who were there and tried the case.\nI would affirm this conviction.\nNOTES\n[1] Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964).\n[2] Report of Proceedings (RP) at 389-90.\n[3] RP at 395-96.\n[4] State v. Alexis, 95 Wash.2d 15, 19, 621 P.2d 1269 (1980).\n\n", "ocr": false, "opinion_id": 2625845 } ]

[ "621 F.3d 610" ]

[ { "author_str": "Ripple", "per_curiam": false, "type": "010combined", "page_count": 27, "download_url": "http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=09-2578_002.pdf", "author_id": null, "opinion_text": "\n621 F.3d 610 (2010)\nJune O. CARLSON, Plaintiff-Appellant,\nv.\nScott BUKOVIC, et al., Defendants-Appellees.\nNo. 09-2578.\nUnited States Court of Appeals, Seventh Circuit.\nArgued February 17, 2010.\nDecided September 2, 2010.\n*612 Arthur G. Jaros, Jr., Attorney, Richter & Jaros, Oak Brook, IL, for Plaintiff-Appellant.\n*613 Laura L. Scarry, Attorney, Deano & Scarry, Chicago, IL, for Defendants-Appellees.\nBefore RIPPLE, MANION and SYKES, Circuit Judges.\nRIPPLE, Circuit Judge.\nJune Carlson brought a multi-count civil rights action under 42 U.S.C. § 1983 against Officer Scott Bukovic and the City of Darien, an Illinois municipal corporation. Certain counts were dismissed by the district court and are not at issue in this appeal. Remaining are a Fourth Amendment excessive force claim against Officer Bukovic and a Monell[1] claim against the City for failure to train the officer.[2] With respect to these claims, the parties cross-moved for summary judgment. The district court granted summary judgment in favor of the City on the Monell claim but denied summary judgment to both parties on the excessive force claim. That claim proceeded to trial, and a jury determined that Officer Bukovic did not violate Ms. Carlson's constitutional rights because no Fourth Amendment seizure had occurred. Ms. Carlson now appeals the district court's final determination of both the excessive force claim and the Monell claim. For the reasons stated in this opinion, we affirm the judgment of the district court.[3]\n\nI\n\nBACKGROUND\n\nA.\nThe facts surrounding Ms. Carlson's excessive force claim were contested initially. Because the action was tried to a jury, however, we must take the facts in the light most favorable to the party who prevailed at trial, Officer Bukovic, and draw all inferences in his favor. See Majeske v. City of Chi., 218 F.3d 816, 820 (7th Cir. 2000).\nOn January 3, 2005, Ms. Carlson and her son, Paul Carlson, visited the WalMart store in Darien, Illinois. At that time, Ms. Carlson was approximately 83 years old; Mr. Carlson is a handicapped adult. During their visit to the store, Mr. Carlson scratched his arm on a fire hose box and reported the incident to store employees. The employees consequently requested that Mr. Carlson complete certain forms. During that process, a dispute arose between the store employees and the Carlsons over whether the store would provide Ms. Carlson with copies of the forms. The store manager explained:\nWell, as [Ms. Carlson] was upset and agitated by not having the forms, [Mr. Carlson] made a gesture towards me as to come towards me where I felt like I was threatened by his actions, and then I had asked him to step back, that I had felt threatened by him coming towards me. And there was some—a little bit of commotion. When I did ask him to step back, he did move back, and I remember her saying that, we're not threatening you. And I remember stating, no, I feel threatened, and, you know, I'm asking for him to step back. He made a step again.\nAnd then at some point in time . . . we phoned the police department to help, *614 not to banish them or—but to alleviate the situation because at that point in time, I felt threatened to the point where it was—I would not be able to end the situation.\nTrial Tr. at 454-55. A store employee called the City of Darien Police Department to complain that the Carlsons were being disruptive.\nDarien Police Officers Scott Bukovic and Richard Stutte soon arrived and asked the store manager what had happened. The manager explained that Mr. Carlson had scratched his arm and that, during the claims process, he had become loud and threatening. Ms. Carlson accused the manager of lying and tried to interrupt Officer Bukovic's conversation with the manager several times. Ms. Carlson's voice was raised; she was upset and, by some accounts, hysterical. She tapped Officer Bukovic on the arm, to which he said, \"let me finish with [the store manager], please don't touch me, and then I will get to you.\" Trial Tr. at 461.\nOfficer Bukovic spoke next to Mr. Carlson, who explained his side of the story. Officer Bukovic observed Mr. Carlson to be loud and boisterous. Officer Bukovic relayed to the manager what Mr. Carlson had said; the manager reiterated that she had felt threatened. Officer Bukovic believed the manager.\nOfficer Bukovic then attempted to get Ms. Carlson's side of the story, but she would not explain what had happened. Ms. Carlson said that the manager was lying. Ms. Carlson's manner also was loud and boisterous. Officer Bukovic then asked the store manager what she wanted him to do. The manager said that Mr. Carlson could remain and complete his paperwork, but that Ms. Carlson would have to leave the store because she was being disruptive. Officer Bukovic told Ms. Carlson that, if she did not leave, he could arrest her for trespass. Ms. Carlson said she would not leave because she was concerned about her son.\nOfficer Bukovic tried three or more times to convince Ms. Carlson to leave the store, but she would not go. As Officer Bukovic made his last request, he reached for Ms. Carlson's right arm with both of his hands, placing one hand on her forearm and one hand on her upper arm. The touch was a calm, escorting gesture in an attempt to guide Ms. Carlson out of the store. The Personnel Manager of the WalMart, who witnessed the scene, testified that Officer Bukovic \"was just asking her to—that it was time to leave the store, I think, and he kind of went like this. . . . To like you would do a grandmother, you know, to sort of maybe turn towards the exit. He barely touched her, and she started screaming.\" Trial Tr. at 392-93.[4]\nThe Store Manager of the WalMart testified that \"when the officers went to go help [Ms. Carlson] to the front door or escort [her] to the front door, one of them—how can I describe it?—as if you were helping your grandma through the parking lot on an icy day, grabbed her elbow, let me help you to the front.\" Id. at 462. Ms. Carlson \"freaked out\" and began flailing her arms. Id. at 511. Officer Bukovic grabbed onto one or both of her arms to prevent her from striking him and, at the same time, tried to get her to calm down. Ms. Carlson put her hands up and crossed her arms in front of her chest. *615 The incident lasted no more than five seconds.[5]\nAfter Ms. Carlson had calmed down, Officer Bukovic asked her if she needed any medical attention, but she refused to acknowledge him. Eventually, she left the store. The officers did not arrest Ms. Carlson.\n\nB.\nThe Carlsons brought this action against various WalMart corporate entities, the City of Darien and Officer Bukovic. After filing a series of amended complaints, Mr. Carlson abandoned his claims, and Ms. Carlson narrowed her complaint to consist only of a Fourth Amendment excessive force claim against Officer Bukovic and a section 1983 Monell claim against the City for failure to train. Importantly, Ms. Carlson disavowed any intention to assert a Fourth Amendment false arrest claim.[6]\nThe parties cross-moved for summary judgment on both outstanding claims. Ms. Carlson's version of the facts, described in her motion, was very different from the version described by the defendants. She essentially contended that Officer Bukovic attacked and brutalized her in the WalMart store. Ms. Carlson contended that, because Officer Bukovic had touched her, no genuine issue of material fact existed as to whether a Fourth Amendment seizure had occurred. She also claimed, however, that summary judgment was appropriate on the reasonableness of the force used, as well as on the Monell claim asserted against the City. The defendants cross-moved for summary judgment on those same issues and also asserted that Officer Bukovic was entitled to qualified immunity.\nThe district court[7] denied the cross-motions for summary judgment because a genuine issue of material fact existed as to whether Officer Bukovic had seized Ms. Carlson.[8] The district court also concluded that, due to the conflicting factual accounts, a genuine issue of material fact existed as to whether the seizure, assuming one had occurred, was unreasonable. The district court also denied Officer Bukovic qualified immunity due to the factual differences. However, the district court granted the City summary judgment on the Monell failure-to-train claim.\nMs. Carlson asked the court to reconsider its ruling; she argued that the force used by Officer Bukovic, even though minimal, was a seizure as a matter of law. She essentially maintained that any touching used by an officer to influence a citizen's movements constitutes a Fourth Amendment seizure. In her view, the district court's contrary ruling was based on a misunderstanding of established Supreme Court precedent governing the law of Fourth Amendment seizure. She further argued that other cases that had determined that, despite the occurrence of some physical contact, no Fourth Amendment seizure had taken place were not controlling. *616 The district court denied that motion.\nPrior to trial, Officer Bukovic filed a motion in limine to exclude, among other things, any reference to or statement about Ms. Carlson's lawful presence in the WalMart store. See R.112 (item # 9).[9] Officer Bukovic argued that, because Ms. Carlson had not advanced a Fourth Amendment false arrest claim, the issue of Ms. Carlson's lawful presence at the WalMart store was irrelevant to the excessive force claim to be tried.[10] He contended that, in any event, Ms. Carlson's reading of the Illinois trespass statute was legally incorrect because the criminal law of Illinois prohibits remaining on the property of another after having been asked to leave. Officer Bukovic contended that Ms. Carlson's anticipated presentation of the trespass issue would be erroneous and would mislead the jury. He asked that such evidence be excluded under Federal Rule of Evidence 403.\nMs. Carlson opposed the motion. She contended that the issue of her lawful presence and Officer Bukovic's probable cause to detain her were central to the action. She further argued that the Illinois criminal trespass statute did not apply because the statute included an \"open to the public\" exception. Tr. at 76-77, May 18, 2009. She maintained that the issue was related to the reasonableness of Officer Bukovic's seizure, and, thus, testimony about the trespass issue should be admissible at trial.\nThe district court granted the motion in limine, ruling that \"injecting the issue of criminal trespass will mislead and confuse the jury and lead to unfair prejudice.\" R.124 at 5 (citing Rule 403). The district court also ruled:\nMs. Carlson may argue only that she did not want to leave and that she did not believe she was trespassing because the store was open to the public; she was there during normal business hours; and she was not creating a disturbance. Officer Bukovic, in turn, may argue that he believed Ms. Carlson was trespassing because the store owner wanted her to leave; she refused his order to leave; and she was behaving in a disruptive manner.\nId. at 5-6. Over the course of several pretrial conferences, Ms. Carlson asked the district court to reconsider its ruling. However, the district court steadfastly maintained that, because Ms. Carlson had disavowed any intention to assert a Fourth Amendment false arrest claim, the issue of Ms. Carlson's legal status on the WalMart property and Officer Bukovic's probable cause to seize her were irrelevant to the issues to be tried.[11]\nWith these parameters in place, the district court conducted a four-day jury trial. The evidence consisted of testimony from Officer Bukovic, Ms. Carlson, Mr. Carlson, the WalMart store employees and Ms. Carlson's doctors. The evidence established that Officer Bukovic asked Ms. Carlson to leave the store, and that he momentarily placed his hands on her arm.\nUnsatisfied with the parties' proposed jury instructions, the district court crafted instructions using the Seventh Circuit and Ninth Circuit pattern instructions on the law of Fourth Amendment excessive force *617 claims. The district court removed references to arrest situations and, instead, proposed giving instructions on how to determine whether a Fourth Amendment seizure had occurred.\nMs. Carlson objected, primarily taking issue with the court's instruction that \"in performing his job, an officer can use force that is reasonably necessary under the circumstances.\" See R.151. She maintained that any touching by an officer without probable cause to detain was per se unreasonable. She proposed several alternative instructions. The first would have required the jury to determine whether Officer Bukovic had probable cause to detain her for questioning. Another would have instructed that, if Officer Bukovic lacked probable cause to detain, any \"knowing or intentional use of force. . . is automatically [that is, per se] unreasonable.\" See Appellant's Br. 24 (brackets in original); see also Tr. at 33-37, June 15, 2009. Ms. Carlson also proposed an instruction essentially requiring the jury to find that she was not trespassing because she was in the store during normal business hours. See Appellant's Br. 26.\nThe district court rejected Ms. Carlson's proposed instructions because they misstated the law of Fourth Amendment excessive force claims. The district court decided to give the instructions that it had formulated. The parties also disagreed over how the verdict form should be structured. Ms. Carlson proposed a special verdict form that would have asked the jury nine questions about disputed facts, such as whether Officer Bukovic \"intentionally applied some degree of force to the person of Plaintiff.\" See R.183.[12] Her proposed verdict form also asked the jury to determine whether Officer Bukovic had \"probable cause to believe that Plaintiff was committing the crime of disorderly conduct\" and \"the crime of criminal trespass to property in his presence.\" See id.\nThe district court rejected Ms. Carlson's proposed verdict form because it interjected irrelevant issues and would confuse the jury. Instead, the district court fashioned a special verdict form that tracked the law of Fourth Amendment excessive force claims. It asked: \"Do you find that Plaintiff has proven by a preponderance of evidence that Defendant, Scott Bukovic[,] `seized' Plaintiff, June Carlson, as that term has been defined in these instructions?\"; if the jury answered \"yes\" to that question: \"Do you find that Plaintiff has proven by a preponderance of evidence that Defendant, Scott Bukovic[,] used `excessive force' against Plaintiff, June Carlson, as that term has been defined in these instructions?\" R.185.\nThe jury answered no to the first question, concluding that no Fourth Amendment seizure had occurred. The district court accepted the verdict. Ms. Carlson did not file a motion for judgment as a matter of law under Federal Rule of Civil Procedure 50.\n\nII\n\nDISCUSSION\n\nA.\n\nThe Section 1983 Fourth Amendment Excessive Force Claim\nMs. Carlson's primary contention is that the district court erred by sending the question of whether there was a seizure to the jury because Officer Bukovic's touching was a seizure as a matter of law and that the seizure was \"per se\" unreasonable.[13]\n*618 Throughout the district court proceedings, Ms. Carlson maintained that she was \"seized as a matter of law\" and that the seizure was \"per se unreasonable.\" As her counsel stated at one point: \"[E]ven though Defendant opted not to arrest Plaintiff, his initiation and continuation of unconsented-to physical contact against her person, no matter how brief, falls within an exception to the per se unreasonable rule only if he had probable cause to arrest her.\" R.132 at 11. The district court correctly rejected Ms. Carlson's formulations of the law.\nAny Fourth Amendment inquiry necessarily begins with a determination of whether a search or seizure actually occurred. See Scott v. Harris, 550 U.S. 372, 381, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (beginning a section 1983 Fourth Amendment excessive force inquiry with a determination that a seizure occurred and then turning to whether the force used was unreasonable); Leaf v. Shelnutt, 400 F.3d 1070, 1089 (7th Cir.2005) (\"In order to determine whether [an officer] seized [an individual] in violation of the Fourth Amendment, . . . [w]e first consider whether [the individual] was seized. . . .\"). If that question is answered in the affirmative, the next question is whether the seizure was unreasonable. See Brower v. County of Inyo, 489 U.S. 593, 599, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989) (\"`Seizure' alone is not enough for § 1983 liability; the seizure must be `unreasonable.'\"); see also Graham v. Connor, 490 U.S. 386, 395 n. 10, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (distinguishing the seizure inquiry from the reasonableness inquiry); Leaf, 400 F.3d at 1089 (\"[I]f we conclude that [the individual] was seized, we then must determine whether the seizure was unreasonable.\"). The seizure and reasonableness inquiries are distinct and should not be conflated. Furthermore, an officer's probable cause to seize is not antecedent to this two-step inquiry but rather is a subset of the larger reasonableness inquiry of the second step.\nWith respect to the first inquiry—whether there has been a seizure—the traditional approach is whether the person believed he was \"free to leave.\" This standard is an objective one and \"is made on the basis of the `totality of the circumstances' surrounding the encounter.\" United States v. Jerez, 108 F.3d 684, 690 (7th Cir.1997) (quoting Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)). For an understanding of this standard, we begin with Justice *619 Stewart's opinion in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), and the plurality opinion of the Supreme Court in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).[14] In Mendenhall, Justice Stewart noted that physical contact with the police was but one of several \"circumstances that might indicate a seizure.\" See Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870. Additional circumstances include the number and threatening presence of officers, the display of a weapon and the police officers' language and tone of voice suggesting compulsion. Id. at 554-55, 100 S.Ct. 1870. In Royer, the Court determined that a seizure had occurred in an airport when the officers took a man's plane ticket and license, thus preventing him from walking away. See 460 U.S. at 504-06, 103 S.Ct. 1319. In both cases, the focus was squarely on whether a reasonable person would have felt free to leave.\nLater, in I.N.S. v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984), the Court ruled that immigration \"sweeps\" in workplaces, whereby government agents asked questions of workers while other agents stood at the doors, did not constitute a Fourth Amendment seizure. The Court explained that \"[u]nless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment.\" Id. at 216, 104 S.Ct. 1758. Notably, the agents had tapped one of the workers on the shoulder and asked her questions; the Court found that no seizure had occurred. Id. at 220, 104 S.Ct. 1758. In Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), while holding that \"there can be no question that apprehension by the use of deadly force is a seizure,\" the Court reaffirmed the continued viability of the Mendenhall totality of the circumstances approach because, in other circumstances, \"it is not always clear just when minimal police interference becomes a seizure.\"\nIn cases where physical contact with a citizen occurred, the Court has suggested that the official purpose of the contact matters.[15] In Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), the Court reversed an appellate court determination that a police roadblock that caused a fatal car crash was not a seizure. The Supreme Court determined that the roadblock was indeed a seizure because the roadblock effectively controlled and stopped the suspect. The Court explained,\nViolation of the Fourth Amendment requires an intentional acquisition of physical control. A seizure occurs even when an unintended person or thing is the object of the detention or taking, but *620 the detention or taking itself must be willful. . . . In sum, the Fourth Amendment addresses misuse of power, not the accidental effects of otherwise lawful government conduct.\n. . . .\n. . . It is clear, in other words, that a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmentally desired termination of an individual's freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied.\n\nBrower, 489 U.S. at 596-97, 109 S.Ct. 1378 (internal citations and quotation marks omitted) (emphasis in original); see also County of Sacramento v. Lewis, 523 U.S. 833, 844, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (concluding that no seizure occurred where the police accidentally struck and killed a motorcyclist during a high-speed pursuit). The Court expanded on that rationale in California v. Hodari D., 499 U.S. 621, 624-29, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), where the Court determined that no seizure occurred when a suspect was approached by police, then ran away and was chased. The Court stated that \"[t]he word `seizure' readily bears the meaning of laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful.\" Id. at 626, 111 S.Ct. 1547. The Court cited with approval commentary that explained that an arrest could be accomplished by \"`constructive detention,'\" which \"`is accomplished by merely touching, however slightly, the body of the accused, by the party making the arrest and for that purpose.'\" Id. at 625, 111 S.Ct. 1547 (citing A. Cornelius, Search and Seizure 163-64 (2d ed. 1930)) (emphasis added). Finally, an important caveat to the free to leave standard, often employed in bus sweep contexts, is that \"when a person `has no desire to leave' for reasons unrelated to the police presence, the `coercive effect of the encounter' can be measured better by asking whether `a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter.'\" Brendlin v. Cal., 551 U.S. 249, 255, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (quoting Bostick, 501 U.S. at 435-36, 111 S.Ct. 2382).\nAs this discussion makes clear, mere physical contact by an officer, although a significant factor, does not automatically qualify an encounter as a Fourth Amendment seizure. See 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.4(a), p. 427 (4th ed. 2010) (\"Even physical contact is acceptable if it is consensual, a normal means of attracting a person's attention or obviously serves some nonseizure purpose.\" (internal quotation marks and citations omitted)); see also id. at n. 85 & accompanying text (commenting that \"physically grabbing and moving the suspect,\" with a concomitant show of force and authority, may indicate that a seizure occurred). For instance, we have suggested that physical contact does not elevate automatically an encounter to the level of a Fourth Amendment seizure. As we said in Acevedo v. Canterbury, 457 F.3d 721, 725 (7th Cir.2006), \"[c]ertain types of non-restraining physical contact, without a concomitant showing of authority, are just too minor to constitute a `seizure' for Fourth Amendment purposes without doing violence to that word.\" See also Williams v. City of Champaign, 524 F.3d 826, 829 (7th Cir.2008) (\"In constitutional tort cases (including cases brought to vindicate rights created by the Fourth Amendment) as *621 elsewhere in the law, de minimis non curat lex.\"); Leaf, 400 F.3d at 1090-91 (determining that no seizure occurred where officers pointed guns and shined lights towards a sleeping man, even if they nudged him). In sum, there are, of course, situations in which the totality of the circumstances require a determination that a seizure has occurred as a matter of law. See, e.g., Tenn. v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (fatal shooting of suspect constituted seizure). However, it is also clear that a mere touch is not per se a seizure under the Fourth Amendment.\nThe application of these principles to this case centers on the question of whether a seizure took place. In this case, this question admittedly is one of some difficulty. We conclude, accordingly, that the district court correctly submitted the matter to the jury. Even accepting the evidence in the light most favorable to Officer Bukovic, we cannot characterize the situation as the sort of de minimis touching that, as a matter of law, has no Fourth Amendment implications. There certainly was evidence of record that would have permitted the jury to determine that a seizure in fact did take place. On the other hand, the jury also was entitled to reach the opposite conclusion: Officer Bukovic's contact with Ms. Carlson's arm may have been so light and so momentary that it did not convey, to the objective observer, a demonstration of anything more than an encouragement that she leave the area. We must remember that police officers find themselves in a myriad of contentious, and potentially explosive, situations where in an effort to defuse the situation, a combination of verbal declarations and gestures must be employed. When considered in context, such actions may be more exhortatory than commanding in nature. While it could have determined otherwise, we believe that the jury was entitled to determine that, at the time he touched Ms. Carlson's arm, Officer Bukovic's action was just this type of gesture: more exhortatory than commanding. The appropriate characterization of this situation was a question for the jury after it had heard all the evidence. Cf. Acevedo, 457 F.3d at 725 (concluding that the question of whether an officer seized an individual by punching him in the face was a question for the jury).\nThe district court's formulation of jury instructions adequately articulated these legal principles.[16] The district court informed the jury that the seizure determination depended on whether Ms. Carlson's liberty was restrained and whether \"a reasonable person would not have felt free to ignore the presence of law enforcement and to go about her business.\" Trial Tr. at 568. The jury was instructed to evaluate objectively the totality of the circumstances. The district court provided, moreover, appropriate factors to guide the jury's consideration of the issue. Ms. Carlson was not entitled to an instruction that made the determination depend entirely on whether physical contact had occurred; that factor is but one that the jury *622 ought to consider. See Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870.[17] Nor was Ms. Carlson entitled to an instruction linking the seizure inquiry to the issue of probable cause because those concepts are not to be conflated. The district court did not abuse its discretion in rejecting Ms. Carlson's proposed jury instructions.\nThe district court also acted well within its discretion when it declined to give a jury instruction describing the Illinois criminal trespass statute and when it precluded Ms. Carlson from presenting evidence to show that she had not violated the statute.[18] Whether the statute was violated was not relevant to the threshold issue of whether a seizure had occurred. Determining whether a seizure occurred needed to be decided separate and apart from the question of reasonableness.[19]\nFor the same reasons, the district court acted well within its discretion in *623 declining to approve a verdict form submitted by Ms. Carlson. It simply did not comport accurately with the governing legal principles.[20]\n\nB.\n\nThe Section 1983 Monell Claim\nMs. Carlson also appeals the district court's dismissal of her Monell failure-to-train claim asserted against the City. However, because Ms. Carlson's section 1983 Fourth Amendment excessive force claim failed, her Monell claim failed as well. See Jenkins v. Bartlett, 487 F.3d 482, 492 (7th Cir.2007) (\"[T]here can be no liability under Monell for failure to train when there has been no violation of the plaintiff's constitutional rights.\"); Windle v. City of Marion, Ind., 321 F.3d 658, 663 (7th Cir.2003) (\"[A] plaintiff must prove that the individual officers are liable on the underlying substantive claim in order to recover damages from a municipality under [a theory of] . . . failure to train.\"). Accordingly, we affirm the district court's grant of summary judgment in favor of the City on the Monell claim.\n\nC.\n\nThe District Court's Alleged Bias\nMs. Carlson contends that the district court was biased because it showed sympathy for Officer Bukovic when it referred to him as \"this poor cop\" during a pretrial conference. See Appellant's Br. 45-47. Ms. Carlson does not specifically request a form of relief under this theory, but we assume she demands a new trial with a different presiding judge. Ms. Carlson, however, did not move for the district court's disqualification under 28 U.S.C. § 455. Although we have left open the question of \"whether we may review a refusal to recuse under section 455(b) when the argument is raised for the first time on appeal,\" United States v. Smith, 210 F.3d 760, 764 (7th Cir.2000), we need not resolve that issue today because recusal was unnecessary in this case.[21] The district court's off-the-cuff remark did not \"display a deep-seated favoritism or antagonism that would make fair judgment impossible.\" In re Huntington Commons Assocs., 21 F.3d 157, 158 (7th Cir.1994) (internal quotation marks omitted); see also Hook v. McDade, 89 F.3d 350, 354-56 (7th Cir.1996) (describing the various forms of and bases for § 455 recusal). Our review of the entire record has assured us that the district court managed Ms. Carlson's case competently and fairly.\nMs. Carlson also appears to contend that the district court was biased and should have been removed pursuant to 28 U.S.C. § 144. However, Ms. Carlson concedes that she did not comply with the \"procedural and substantive requirements\" of § 144. See United States v. Barnes, 909 F.2d 1059, 1072 (7th Cir.1990).\n\nConclusion\nFor the reasons stated in this opinion, we affirm the judgment of the district court.\nAFFIRMED\nNOTES\n[1] Monell v. Dep't of Soc. Servs., 436 U.S. 658, 701, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).\n[2] The district court had jurisdiction over the action pursuant to 28 U.S.C. § 1331.\n[3] We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.\n[4] See also Trial Tr. at 400 (\"He didn't really have any physical actions with her other than when he barely—when he put his arm around her, but that was like you would to your grandmother or something, or mother or something if you were saying, you know, let's go this way. It's more of a guiding manner than—there was no other physical interaction that I saw.\").\n[5] See Trial Tr. at 187-90, 201-03, 393-400, 412, 469, 488, 511-12.\n[6] See Appellant's Br. 22; see also Tr. at 20, May 18, 2009 (\"We're not bringing a false arrest claim.\"); Tr. at 4-6, June 5, 2009 (\"This is not a false arrest case.\").\n[7] The parties agreed to have the case tried before a magistrate judge. See 28 U.S.C. § 636(c); see also R.15 (joint consent form).\n[8] See R.82 at 12 (\"There is a question of fact as to the nature of the physical interaction between Plaintiff and Officer Bukovic and, thus, summary judgment is not appropriate to either party on this portion of Plaintiff's claim that she was seized in violation of the Fourth Amendment.\").\n[9] Ms. Carlson's attorney had posed questions during Officer Bukovic's deposition about whether he believed he could have arrested Ms. Carlson for trespassing. Officer Bukovic anticipated that Ms. Carlson intended to discuss the trespass issue at trial.\n[10] See R.112; see also Tr. at 18-20, May 18, 2009.\n[11] See Tr. at 19-21, May 18, 2009; see also R.145 at 12-14.\n[12] See also Tr. at 2-10, 15-16, June 11, 2009.\n[13] We do not understand Ms. Carlson's argument to be related solely to the sufficiency of the evidence—an argument that was waived when Ms. Carlson neglected to file a Rule 50 motion at trial. See Unitherm Food Sys. v. Swift-Eckrich, Inc., 546 U.S. 394, 401-02, 126 S.Ct. 980, 163 L.Ed.2d 974 (2006). To the extent Ms. Carlson appeals purely legal issues—she contends that the district court misapprehended the law of Fourth Amendment seizure, erred by granting the motion in limine and erred by rejecting her preferred verdict form—such issues have been preserved for our review. See Fuesting v. Zimmer, Inc., 448 F.3d 936, 940 (7th Cir.2006) (\"[T]he ability of the court of appeals to award a new trial where there is prejudicial evidentiary error is well-established and undisturbed by Unitherm.\"); Chemetall GMBH v. ZR Energy, Inc., 320 F.3d 714, 720 (7th Cir.2003) (\"[I]f the legal question can be separated from the factual one, then we see no bar to reviewing the legal question notwithstanding the party's failure to raise it in a motion for judgment as a matter of law at trial.\"); see also Pediatrix Screening, Inc. v. Telechem Intern., Inc., 602 F.3d 541, 548 (3d Cir.2010) (\"Given the length and breadth of the District Court's examination of the issues and the opportunities extended to both parties to present their arguments, we are satisfied that [the plaintiff's legal] challenge was fully aired in the District Court and preserved for appellate review.\").\n[14] In Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), Justices Marshall, Powell and Stevens joined an opinion authored by Justice White, adopting the \"reasonable person-free to leave\" standard enunciated in Justice Stewart's decision in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Justice Blackmun joined, in his dissenting opinion, the plurality's adoption of that standard. See Royer, 460 U.S. at 514, 103 S.Ct. 1319 (Blackmun, J., dissenting).\n[15] The purpose of an encounter must not be confused with an officer's subjective intent when engaging the encountered individual. The reasonable person-free to leave standard is an objective one, and both the officer's and the encountered individual's subjective beliefs during the encounter are not determinative as to whether a seizure occurred. See 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.4(a), pp. 413-14 (4th ed. 2010).\n[16] Ms. Carlson does not dispute that the jury was competent to serve as the factfinder on the issue of whether a Fourth Amendment seizure had occurred. Indeed, that proposition is well established. See, e.g., Acevedo v. Canterbury, 457 F.3d 721, 725 (7th Cir.2006) (\"Based on this testimony, a reasonable jury could have found that Acevedo was seized by Canterbury's blow to his head.\"); Driebel v. City of Milwaukee, 298 F.3d 622, 638 (7th Cir.2002) (commenting that \"a rational jury might very well conclude that Officer Sgrignuoli. . . was seized by the detectives who accosted him,\" but assuming that seizure had occurred); see also Gardenhire v. Schubert, 205 F.3d 303, 313-15 (6th Cir.2000); Hawkins v. City of Farmington, 189 F.3d 695, 702 (8th Cir.1999); Cassady v. Tackett, 938 F.2d 693, 697-98 (6th Cir.1991).\n[17] See also 4 Martin A. Schwartz & George C. Pratt, Section 1983 Litigation § 8.01 (2d ed. 2009) (Instruction 8.01.7).\n[18] We review a rejected jury instruction in comparison to the actual charge issued by the district court. See Ammons-Lewis v. Metro. Water Reclamation Dist. of Greater Chi., 488 F.3d 739, 751 (7th Cir.2007). We review Rule 403 rulings for abuse of discretion. See Estate of Moreland v. Dieter, 395 F.3d 747, 754-55 (7th Cir.2005).\n[19] Additionally, the trespass issue had very little relevance to whether Officer Bukovic used excessive force in committing the alleged seizure. The doctrine of Fourth Amendment reasonableness has distinct, component parts. A seizure without probable cause is conceptually different from a seizure that employs excessive force; both are unreasonable, but for different reasons. See Evans v. Poskon, 603 F.3d 362, 364 (7th Cir.2010) (distinguishing between Fourth Amendment unreasonableness based on lack of probable cause and excessive force in the exclusionary rule context); McKenna v. City of Phila., 582 F.3d 447, 460 (3d Cir.2009) (\"The District Court properly rejected Timothy McKenna's argument that it should have instructed the jury, which rejected plaintiffs' excessive force claims, that any amount of force used to effect an arrest without probable cause is per se excessive. [That] statement of the law is unsupported by citation, and, moreover, is wrong. As the Court correctly concluded, the jury was required to review any excessive force claims under a totality of the circumstances test, as enunciated in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), to determine whether the force used was reasonable.\" (parallel citations omitted)); Snell v. City of York, Pa., 564 F.3d 659, 672-73 (3d Cir.2009) (rejecting \"efforts to bootstrap excessive force claims and probable cause challenges\"); Cortez v. McCauley, 478 F.3d 1108, 1127 (10th Cir.2007) (distinguishing between Fourth Amendment excessive force and false arrest claims); Jones v. Parmley, 465 F.3d 46, 62 (2d Cir.2006) (\"[T]he reasonableness test established in Graham remains the applicable test for determining when excessive force has been used, including those cases where officers allegedly lack probable cause to arrest.\"); Beier v. City of Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004) (\"Because the excessive force and false arrest factual inquiries are distinct, establishing a lack of probable cause to make an arrest does not establish an excessive force claim, and vice-versa.\").\n\nOf course, we have recognized false arrest as a valid basis for a section 1983 Fourth Amendment claim. See Bentz v. City of Kendallville, 577 F.3d 776, 779 (7th Cir.2009) (\"Where an arrest occurs without probable cause, the plaintiff may bring a claim for unreasonable seizure.\"). Such a claim necessarily focuses the reasonableness metric on the existence of an officer's probable cause to detain. See, e.g., Belcher v. Norton, 497 F.3d 742, 748 (7th Cir.2007). Often times, Fourth Amendment excessive force and false arrest claims are asserted in the same action. See, e.g., Catlin v. City of Wheaton, 574 F.3d 361, 364-65 (7th Cir.2009); Williams v. City of Champaign, 524 F.3d 826, 827 (7th Cir.2008); Tibbs v. City of Chi., 469 F.3d 661, 662 (7th Cir.2006); Morfin v. City of E. Chi., 349 F.3d 989, 994-96 (7th Cir.2003). In this case, however, Ms. Carlson did not advance a false arrest claim. In fact, she affirmatively disavowed any intention to assert a false arrest claim. See Appellant's Br. 22; Tr. at 20, May 18, 2009; Tr. at 4-6, June 5, 2009.\n[20] We review the rejection of a verdict form for abuse of discretion. See Evans v. City of Chi., 513 F.3d 735, 741 (7th Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 899, 173 L.Ed.2d 117 (2009).\n[21] \"[T]he denial of a request that the judge recuse himself under section 455(a) must be appealed immediately by application for writ of mandamus, or it is waived.\" United States v. Horton, 98 F.3d 313, 316 (7th Cir.1996).\n\n", "ocr": false, "opinion_id": 174636 } ]

[ "754 F.2d 404" ]

[ { "author_str": "Bownes", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/754/754.F2d.404.84-1194.html", "author_id": null, "opinion_text": "754 F.2d 404\n 77 A.L.R.Fed. 465, 53 USLW 2405, 1985-1Trade Cases 66,400,1 Fed.R.Serv.3d 70\n CIA. PETROLERA CARIBE, INC., Plaintiff, Appellant,v.ARCO CARIBBEAN, INC., et al., Defendants, Appellees.\n No. 84-1194.\n United States Court of Appeals,First Circuit.\n Argued Sept. 6, 1984.Decided Feb. 6, 1985.\n \n Celso E. Lopez, San Sebastian, P.R., with whom Carlos F. Lopez, San Juan, P.R., was on brief, for plaintiff, appellant.\n Max K. Jamison, Santa Monica, Cal., with whom Alvaro R. Calderon, Jr., and Calderon, Rosa-Silva & Vargas, Hato Rey, P.R., were on brief, for defendants, appellees.\n Before COFFIN and BOWNES, Circuit Judges, and SELYA,* District judge.\n BOWNES, Circuit Judge.\n \n \n 1\n In this antitrust action, plaintiff-appellant Cia. Petrolera Caribe, Inc. (Caribe) appeals entry of summary judgment in favor of defendants Arco Carribean, Inc. (Arco), U.S.A. Petroleum Corp. (USAP), Isla Petroleum Corporation (Isla), and Gasolinas de Puerto Rico (GPR). The complaint alleges that USAP's acquisition of Arco's Puerto Rican assets violated Secs. 7 and 8 of the Clayton Act, 15 U.S.C. Secs. 18, 19, and Secs. 1 and 2 of the Sherman Act, 15 U.S.C. Secs. 1, 2. Although the complaint originally requested both damages and injunctive relief, Caribe abandoned the request for damages in the district court and asked only for an injunctive remedy, particularly divestiture, pursuant to Sec. 16 of the Clayton Act, 15 U.S.C. Sec. 26.\n \n \n 2\n Caribe challenges three rulings of law by the district court. It first claims that the district court erred in ruling that it lacked standing to bring the action because it had not been and would not be injured as a proximate result of the alleged antitrust violations. Second, Caribe contends that the court erred in holding that the specific injunctive remedy it sought--divestiture--is not available to a private litigant such as Caribe. Finally, plaintiff contends that disputed relevant and material facts rendered summary judgment inappropriate.\n \n \n 3\n Caribe also forwards as error two procedural rulings: the district court's acceptance and reliance upon affidavits and a reply brief submitted by the defendants on their motion for summary judgment despite the court's refusal to accept plaintiff's affidavit or to allow it an opportunity to reply; and, the district court's refusal to allow oral argument on summary judgment.\n \n \n 4\n We first discuss whether plaintiff has \"standing\" for maintaining this suit. Because we conclude that it does, we then review plaintiff's procedural claims. We next examine the propriety of awarding summary judgment on liability in favor of defendants, and conclude with a discussion of why we believe plaintiff's remedies include divestiture.\n \n I. BACKGROUND\n \n 5\n We recount the facts in the light most favorable to the plaintiff, against whom summary judgment was entered. Caribe is in the wholesale and retail gasoline business. It wholesales refined gasoline to a small chain of service stations in Puerto Rico it owns and operates. Defendant USAP is an oil company headquartered in the continental United States that bought the Puerto Rican assets of Arco Carribean, Inc., a subsidiary of the multinational oil company Atlantic Richfield, Inc. This acquisition constitutes the merger contested here. Prior to this acquisition, USAP's only participation in the Puerto Rican gasoline market was through its wholly owned subsidiary, GPR. GPR owns and operates a number of service stations in Puerto Rico. As part of the merger plan formulated by USAP, another wholly owned subsidiary, Isla, was created. Isla's purpose was to take title to the Puerto Rican assets of Arco Carribean and to continue the management and operation of the former Arco stations. After consummation of the merger in July 1981, Isla became the wholesaler of gasoline not only to the former Arco (now Isla) service stations but also to those operated by GPR. Neither GPR nor Isla markets gasoline outside Puerto Rico.\n \n \n 6\n Caribe entered the gasoline market in Puerto Rico in 1979 and slowly but steadily expanded its operations. By mid-1981, it was operating twenty-four stations and was planning an additional eight. It appears that most of these stations served rural and less populous regions of Puerto Rico. At its highest point, Caribe's market share was 1.1%. Caribe claims that because of the merger, a trend toward greater concentration in the market has occurred, lessening competition and threatening the survival of the smaller companies including itself. It alleges that it will be \"squeezed\" out of the market by the oligopolist firms. It further claims that the increase in market share of the top five has increased their market power, and consequently their ability to dictate the conditions for doing business to the smaller companies. Caribe believes the inevitable result will be harm to consumers in the form of price hikes. Caribe asserts that the harm to itself resulting from this concentration of market power is affirmatively shown by its inability to expand beyond the hinterlands of Puerto Rico into the more populous metropolitan areas. It also claims that increased market concentration, in conjunction with other barriers to entry, effectively prevents the entrance of other competitors into the market.\n \n \n 7\n Immediately preceding the merger, the Puerto Rican gasoline market also included seven multinational, vertically integrated companies: Texaco, Esso, Shell, Gulf, Mobil, Chevron and Arco.1 The first four of these firms plus GPR controlled 77% of the market at the time of the merger but, after the merger, their proportion rose to a high of 83%. GPR's own market share rose from 5.29% to 9.33% after its merger with the former Arco subsidiary. Caribe's market share at that time was 0.4%.\n \n II. STANDING UNDER Sec. 16\n \n 8\n Caribe's claims for injunctive relief are based on Sec. 16 of the Clayton Act, 15 U.S.C. Sec. 26, which reads in pertinent part:\n \n \n 9\n Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws ... when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings....\n \n \n 10\n The district court held, without more, that Caribe lacked standing \"on all causes of action because it has not been, and will not be, damaged as a result of any conduct alleged in its complaint.\"\n \n \n 11\n Although the complaint would never serve as a model for antitrust pleadings, it does specifically invoke Sec. 16 of the Clayton Act in paragraph one. In Count I, paragraph 12b, it is alleged that the merger will \"materially impair the competitive effectiveness of Plaintiff and others that were and are now competing with ARCO and the buyer.\" In Count II, paragraph 15, it is alleged that the objective of the merger was to \"restrain[ ] and prevent[ ] plaintiff and others from exercising an essential and necessary part of their lawful trade or business in interstate trade or commerce.\" Paragraph 17 in Count II also alleges \"plaintiff has lost customers, patronage and trade and has been prevented and detered [sic] from continuing and expanding and increasing its business as otherwise [sic] would have done.\" These bare bones allegations have been supplemented with additional facts through affidavits and depositions of record.\n \n \n 12\n It appears that the district court erroneously applied the requirements of Sec. 4 of the Clayton Act, 15 U.S.C. Sec. 15, which authorizes treble damages for antitrust violations, to plaintiff's request for Sec. 16 injunctive relief. In Hawaii v. Standard Oil Co., 405 U.S. 251, 260, 92 S.Ct. 885, 890, 31 L.Ed.2d 184 (1972), the Supreme Court noted an important difference between the requirements of Sec. 16 and those of Sec. 4. The Court pointed out that a Sec. 4 claim requires an injury to \"business or property\" that Sec. 16 omits. The Court noted that, by contrast, Sec. 16 provides that \"any individual threatened with injury by an antitrust violation may ... sue for injunctive relief against violations of the antitrust laws....\" Hawaii v. Standard Oil Co., 405 U.S. at 261, 92 S.Ct. at 890-91 (emphasis added). Plainly, Congress empowered a broader range of plaintiffs to bring Sec. 16 actions because the standards to be met are less exacting than those under Sec. 4; under Sec. 16, a plaintiff need show only a threat of injury rather than an accrued injury.\n \n \n 13\n The Court's remarks in Hawaii reaffirm its conclusions in Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969), a case more nearly on point. The Court took to task the court of appeals for vacating a portion of an injunction because it believed that\n \n \n 14\n Zenith's failure to prove the fact of injury barred injunctive relief as well as treble damages. This was unsound, for Sec. 16 of the Clayton Act, 15 U.S.C. Sec. 26, which was enacted by the Congress to make available equitable remedies previously denied private parties, invokes traditional principles of equity and authorizes injunctive relief upon the demonstration of \"threatened\" injury ...; he need only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur.\n \n \n 15\n Id. at 130, 89 S.Ct. at 1580 (citations omitted; emphasis added). Although this was an enunciation of the standard a plaintiff must satisfy for an injunction to issue after trial, it applies here because to withstand a motion for summary judgment, a plaintiff is not required to plead additional matters and submit supporting proof more exacting than that ultimately required for judgment in its favor.\n \n \n 16\n As we have recently observed, \"[t]he principles of standing determine whether a particular plaintiff is the type of person the law intends to protect against the harm of which he complains.\" Ozonoff v. Berzak, 744 F.2d 224, at 227 (1st Cir.1984). We cannot conceive of a more appropriate plaintiff to challenge defendants' merger.2 Caribe is a direct competitor of defendants in the refined gasoline market. The gravamen of its complaint is that defendants' merger tends to lessen competition and to yield a greater concentration of firms within that market. Caribe acknowledges that it has not sustained an actual measurable injury in the short term flowing from the merger, but it correctly claims that this is not required for a Sec. 16 action; its allegations that the refined gasoline market has been harmed by these putative antitrust violations and that it will likely be \"squeezed\" out of the market in the foreseeable future because of defendants' actions are sufficient. Accordingly, we rule that Caribe has alleged sufficient facts showing it \" 'personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,' Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 [99 S.Ct. 1601, 1608, 60 L.Ed.2d 66] (1979), and that the injury 'fairly can be traced to the challenged action' and 'is likely to be redressed by a favorable decision,' Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 41 [96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450] (1976).\" Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (footnote omitted). None of the prudential considerations we summarized in Ozonoff counsel otherwise. See Ozonoff v. Berzak, 744 F.2d 224, at 227-228. Caribe is a proper plaintiff to bring this action.\n \n III. PROCEDURAL CLAIMS\n A. The Reply Brief and Affidavits\n \n 17\n Faced with a motion for partial summary judgment filed by plaintiff Caribe and a cross-motion for summary judgment filed by defendants, the district court established a timetable at a pretrial conference on November 7, 1983, and restated it in an order dated November 14. All motions for summary judgment were to be filed by November 15 and the hearing on the cross-motions was scheduled for December 19.\n \n \n 18\n The announced timetable notwithstanding, on the day of hearing, both plaintiff and defendants arrived at the courthouse with additional papers pertaining to the cross-motions. Defendants, prior to the hearing, went to the clerk of court's office and filed a reply brief and affidavits. Plaintiff proceeded to the hearing and sought to file in open court affidavits supporting its opposition to defendants' motion for summary judgment. According to the clerk's minutes of the proceeding (no transcript is available), short statements were heard from each of the parties prior to the court's announcement of its decision to grant defendants' motion for summary judgment. Plaintiff requested permission to file affidavits but the court refused to accept them. Defendants then informed the court that they had filed a reply to plaintiff's opposition to summary judgment, but the court did not amend its earlier ruling rejecting plaintiff's affidavits or strike defendants' reply. Plaintiff claims that by this action, the court transgressed the requirements of Federal Rules of Civil Procedure 6(d) and 56(c), and that it was fundamentally unfair to allow defendants' papers, but not its own, to be filed on the day of hearing. Further, Caribe claims that once it accepted defendants' reply brief and affidavits, the court should have granted it time to respond to these papers before considering and ruling on the motions for summary judgment.\n \n \n 19\n Rule 56(c) of the Federal Rules of Civil Procedure states that a motion for summary judgment is to be served at least ten days prior to the hearing. Under the requirements of Rule 6(d), if an affidavit is used to support a motion, it must be served with the motion. Accord In re Stone, 588 F.2d 1316, 1321 (10th Cir.1978); Mount Vernon Preservation Society v. Clements, 415 F.Supp. 141, 143 (D.N.H.1976); see also Moore's Federal Practice p 56.14 at 56-358. The party adverse to the motion has a more extensive period for filing affidavits, viz., \"prior to the day of hearing [it] may serve opposing affidavits.\" Although Rule 56 does not create an explicit timetable for replies, the \"purpose of Rule 56(c) is to allow a party to have a meaningful opportunity to challenge a summary judgment motion.\" Indiana Port Comm'n v. Bethlehem Steel Corp., 702 F.2d 107, 111 (7th Cir.1983); Winbourne v. Eastern Airlines, Inc., 632 F.2d 219, 223 (2d Cir.1980).\n \n \n 20\n In this case, defendants filed a reply brief and supporting affidavits which contained new evidence; one affidavit was by defendants' expert, Dr. Freyre, which set forth an analysis of the most recent data from the Puerto Rican Energy Department, and concluded that increased concentration and lessened competition had not occurred as a result of defendants' merger. While Federal Rule of Civil Procedure 6(b) allows \"for cause shown\" a discretionary enlargement of time, this discretion must not be exercised in a manner that prejudices the other party's substantial rights. The defendants here not only failed to show cause for not serving the affidavits with their motion, or at least by November 15, the date all motions for summary judgment were to be served, but the late affidavits plainly prejudiced plaintiff. As Judge Aldrich has explained, \"[t]here is a substantial difference between accepting matters at the hearing which show that an issue of fact exists, and taking evidence in support of the motion at the last minute when there is no opportunity to rebut.\" Chan Wing Cheung v. Hamilton, 298 F.2d 459, 460 (1st Cir.1962). Defendants' affidavits and attachments filed on December 19, the day of hearing, should not have been considered. Cf. Jones v. Mernard, 559 F.2d 1282 (5th Cir.1977) (moving party's affidavit could not be served during oral argument on motion instead of being served prior to the date of hearing).\n \n \n 21\n For similar reasons, we believe defendants' reply brief was also improperly before the court below. At oral argument, plaintiff informed us that it had requested an opportunity to respond to defendants' reply brief, which it had received by hand on the day of hearing contrary to Rule 56(c). The district court refused to grant an opportunity to respond. The court then granted defendants' motion for summary judgment and stated that it was already drafting an opinion. When the opinion issued, it relied heavily on defendants' reply brief and supporting affidavits and even incorporated verbatim a number of consecutive pages directly from defendants' brief. Although a busy trial judge is entitled to obtain assistance from the parties, this heavy reliance on the moving party's brief and affidavits suggests that the district court failed to accord the nonmovant's papers the indulgence required. Cf. Cuthbertson v. Biggers Brothers, Inc., 702 F.2d 454, 459 (4th Cir.1983) (extensive verbatim use of party's proposed findings of fact undercuts appearance of disinterested court). On motions for summary judgment, the indulgence required at both the trial and appellate levels mandates the court to review the record and draw all inferences in the light most favorable to the nonmoving party. Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Metropolitan Life Insurance Co. v. Ditmore, 729 F.2d 1, 4 (1st Cir.1984); Stepanischen v. Merchants Despatch Transportation Co., 722 F.2d 922, 928 (1st Cir.1983).\n \n \n 22\n We believe that as the nonmoving party, Caribe should have had an opportunity to examine and reply to the moving party's papers before the court considered them in its decision process. This conclusion is especially required here because in its reply brief, the defendants advanced new reasons justifying summary judgment in their favor and relied on the untimely filed affidavits. Moreover, reply briefs were not authorized for either party under the district court's timetable. The district court therefore had two choices when it was informed that defendants had filed a reply brief: it could strike the brief or grant plaintiff as the nonmoving party the opportunity to respond to it. Certainly, after discovering that use of the information contained in the tardily served brief and affidavit would be helpful to its opinion, the district court should then have provided the nonmoving party with an opportunity to respond.\n \n \n 23\n Whether the plaintiff as adverse party was entitled to have its affidavit accepted by the court presents a somewhat different question. As already noted, Rule 56(c) provides that an adverse party may file affidavits \"prior to the day of hearing.\" Rule 6(d) restates this requirement with the modification that the court may \"permit\" an opposing party's affidavit \"to be served at some other time.\" A district court's refusal to accept a late affidavit is reviewable only for abuse of discretion. Accord Alghanim v. Boeing Co., 477 F.2d 143, 148-9 (9th Cir.1973). While the district court is not required to accommodate additional untimely submissions, we think that the trial court abused its discretion by allowing defendants' tardy submissions but declining to accept plaintiff's where neither party showed cause for the delay. The rules are structured to provide the nonmovant with substantially more time for filing affidavits than moving parties. Where no cause for the delay is shown by either party, we cannot discern any reason for the district court's reversal of the indulgence structurally provided to the nonmoving party by the Federal Rules. Accord id. (where moving party filed his affidavits two days after his motion, this is legitimate factor to be considered in determining whether court had abused its discretion in not allowing an extension of time for plaintiff to file affidavits in opposition). Accordingly, in evaluating the grant of summary judgment, we shall utilize only those portions of the court's opinion that do not rely on defendants' reply brief, affidavits, and other attachments. In this way, we deprive the defendants of the benefit of the procedural error.3\n \n B. Oral Argument\n \n 24\n Oral argument on the cross-motions for summary judgment was calendared and the parties arrived prepared, but at the start of the hearing the district judge announced his decision in favor of defendants and declined to hear oral argument. Caribe urges us to hold that the district court erred in not having oral argument on defendants' motion for summary judgment. Inasmuch as we have concluded that the grant of summary judgment was wrong on the merits of the motion, this procedural point may well be academic. But, the matter arises with sufficient frequency in the trial courts that we believe a general statement of our views would be beneficial.\n \n \n 25\n Rule 56(c) is again our text. It states in pertinent part: \"The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits.\" Fed.R.Civ.P. 56(c). We note that at least five circuits have held that the rule's reference to a \"hearing\" does not necessarily imply oral argument; a matter can be heard simply on the papers. The Third, Fourth, Seventh, Eighth, and District of Columbia Circuits have held that oral argument may be dispensed with in appropriate circumstances. See Spark v. Catholic University, 510 F.2d 1277, 1280 (D.C.Cir.1975); Ailshire v. Darnell, 508 F.2d 526 (8th Cir.1974); Season-All Industries, Inc., v. Turkiye, 425 F.2d 34, 39 (3d Cir.1970); United States Fidelity & Guaranty Co. v. Lawrenson, 334 F.2d 464, 466-67 (4th Cir.), cert. denied, 379 U.S. 869, 85 S.Ct. 141, 13 L.Ed.2d 71 (1964); Sarelas v. Porikos, 320 F.2d 827 (7th Cir.1963), cert. denied, 375 U.S. 985, 84 S.Ct. 519, 11 L.Ed.2d 473 (1964); cf. Hazen v. Southern Hills National Bank of Tulsa, 414 F.2d 778, 780 (10th Cir.1969) (holding oral argument not required on motions in general unless a local rule provides otherwise). These circuits decline to displace the local rules promulgated under Federal Rule of Civil Procedure 78 that governs the submission and determination of motions without oral argument. Cf. United States v. One 1974 Porsche 911-S, 682 F.2d 283, 286-87 (1st Cir.1982) (burden is on parties to request oral argument pursuant to local rules and, if not requested, argument is waived); but see Dredge Corp. v. Penny, 338 F.2d 456, 462 (9th Cir.1964).\n \n \n 26\n We think this rule is sound. As those courts have recognized, ordinarily it is appropriate to hear oral argument before rendering summary judgment. But, the trial court has wide latitude in this regard. Where affidavits, depositions, and other documentary material indicate that the only issue is a question of law, and where the briefs have adequately developed the relevant legal arguments, it is not error to deny oral argument consistent with the district court's local rules. This antitrust action, however, as the next section will elaborate, presented a number of critical factual and fact-law questions. Given the posture of the case, we need not rule that it was error to refuse to grant oral argument. But, the case underscores the wisdom of hearing oral argument on motions bottomed on difficult questions of law and alleged questions of fact. It is likely that oral argument here would have highlighted the obstacles to a supportable summary judgment decision and resulted in the denial of the motion.\n \n IV. SUMMARY JUDGMENT\n \n 27\n The standard for granting summary judgment is well established. Summary judgment is appropriate only when the pleadings and other submissions show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In reviewing a grant of summary judgment, we must view the record in the light most favorable to the party opposing the motion, and indulge all inferences favorable to that party. Adickes v. Kress & Co., 398 U.S. at 157, 90 S.Ct. at 1608; Stepanischen v. Merchants Despatch Transportation Co., 722 F.2d at 928. Applying this standard, we find that there were disputed material issues of fact and that the court erred in its application of the law, which it adopted from defendants' brief.4 Although these reasons are sufficient unto themselves for reversing the grant of summary judgment, the record also shows that the district court failed to grant plaintiff all favorable inferences suggested by the evidence and, instead, weighed the conflicting evidence, and did so in the light most favorable to the moving party.\n \n \n 28\n The parties continually differed regarding a number of crucial facts at issue. They also bitterly contested the appropriate inferences to be drawn from the facts on which they were agreed. Examples of controverted facts and inferences include: whether competition has been increased or decreased by the merger; whether the Isla-GPR merger was an attempt to monopolize the gasoline market; whether gasoline is a homogenous product; whether it is likely Caribe will be \"squeezed\" from the market and, if so, whether this would be fairly traceable to the merger; whether the post-merger market share of Isla-GPR is sufficient to allow it to diminish competition; what the appropriate time frame is for analyzing the effects of the merger on the gasoline market; what the barriers to entry into this market are; and whether these barriers are significant deterrents to new entries.5 Rather than denying the motion, the district court acted as a trier of fact. It assessed the challenged merger's impact upon competition in the gasoline market, it evaluated the statistical data available, and it compared and weighed the parties' expert testimony regarding a number of the other issues. This was not appropriate in ruling on a motion for summary judgment.\n \n \n 29\n We now turn to the central error of law. Although the law governing each of the substantive claims must be applied with reference to the remedy requested, see, e.g., Brunswick Corp. v. Pueblo Bowl-O Mat, 429 U.S. 477, 486, 97 S.Ct. 690, 696, 50 L.Ed.2d 701 (1979), the district court made use of the wrong remedial law. The sole remedy requested by Caribe was injunctive relief pursuant to Clayton Act Sec. 16, yet the district court utilized the legal standards governing the recovery of treble damages under Clayton Act Sec. 4. This was prejudicial error because the standards for relief under Sec. 4 are substantially more stringent than those under Sec. 16. Section 4 is retrospective in orientation; it seeks to remedy the past by penalizing wrongdoers with treble damages, thereby deterring other wrongdoing. Id. at 485, 97 S.Ct. at 695. Accordingly, Sec. 4 \"makes awards available only to injured parties, and measures the award by a multiple of the injury actually proved.\" Id. By contrast, Sec. 16 is prospective and prophylactic, allowing injunctive relief upon demonstration of \"a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur.\" Zenith Radio Corp. v. Hazeltine, 395 U.S. at 130, 89 S.Ct. at 1580. As we emphasized in our earlier discussion of plaintiff's \"standing,\" the district court cannot require plaintiff to show fact of injury, id., in an action under Sec. 16. Summary judgment, therefore, was not and could not have been properly granted on the Sherman Act Sec. 1 and Sec. 2 claims and the Clayton Act Sec. 7 claim.\n \n \n 30\n Although the grant of summary judgment for defendants on the Clayton Act Sec. 8 claim alleging that some of the defendant corporations have interlocking directorates is a closer question, that ruling must also be reversed. The district court held that Sec. 8 did not apply because \"the corporations Isla and GPR are separate entities in form only and [ ] they are truly one merged corporation. There is no evidence to the contrary....\" Caribe correctly points out that some contrary evidence may be found in an affidavit of Nelson Capote, chief operating officer of both GPR and Isla, dated October 31, 1983. Mr. Capote states:\n \n \n 31\n At the time of the acquisition, GPR had its own middle management and lower organizational structure. ISLA, which was the Puerto Rican of [sic] ARCO Carribean, Inc., inhereted [sic] from it the existing middle management and lower organizational structure. For convenience of operation, I decided to maintain these two entities so as to be able to distinguish between the performance of each....\n \n \n 32\n The district court grounded its ruling partly on a stipulation that the corporations had merged, but we find no such stipulation in the record. What we do find is plaintiff's statement of material facts at issue, appended to docket entry 91, which alleges that defendants are separate entities for purposes of Sec. 8 but a single entity for Sec. 7.\n \n \n 33\n We venture no opinion now as to whether plaintiff can have it both ways but, ordinarily, such a statement could not constitute a stipulation. It may well be that there was an oral stipulation by Caribe upon which the district court relied. On the record before us, however, we must set aside the summary judgment granted defendants on plaintiff's claim under Sec. 8 of the Clayton Act.\n \n \n 34\n It is possible that the factual dispute can be settled with stipulations such that the question becomes one of law. Because the parties failed to cite the law relevant to determining the question, we draw attention to, inter alia, T.R.W., Inc. v. F.T.C., 647 F.2d 942 (9th Cir.1981) (proof that interlock has actual anticompetitive effect is not required); Las Vegas Sun, Inc. v. Summa Corp., 610 F.2d 614 (9th Cir.), cert. denied, 447 U.S. 906, 100 S.Ct. 2988, 64 L.Ed.2d 855 (1980) (where district court found that six entities owned and operated by one individual neither competed with each other nor represented themselves as competitors, no violation of Clayton Act Sec. 8); Kennecott Copper Corp. v. Curtiss-Wright Corp., 584 F.2d 1195, 1205 (2d Cir.1978) (Sec. 8 does not prohibit interlocking directorships between parent companies whose subsidiaries are competitors); Protectoseal Co. v. Barancik, 484 F.2d 585, 588-89 (7th Cir.1973) (Stevens, J.) (by Sec. 8, Congress intended, inter alia, to prohibit interlocks between corporations that could not lawfully merge; Sec. 8 has broader coverage than Sec. 7); In re Penn Central Securities Litigation, 367 F.Supp. 1158, 1168 (E.D.Pa.1973); Paramount Pictures Corp. v. Baldwin-Montrose Chemical Co., 1966 Trade Cas. (CCH) p 71,678 at 82,065 (S.D.N.Y.1966); and more generally to Bankamerica Corp. v. United States, 462 U.S. 122, 128, 103 S.Ct. 2266, 2270, 76 L.Ed.2d 456 (1983); Copperweld Corp. v. Independence Tube Corp., --- U.S. ----, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984); Borg Warner Corp., 3 Trade Reg.Rep. (CCH) p 22,663 (FTC 1983); ABA Section on Antitrust Law, Antitrust Law Developments (Second) 210-14 (1984); Kramer, Interlocking Directorships and the Clayton Act After 35 Years, 59 Yale L.J. 1266 (1950). The court below should, upon renewed motions for summary judgment or at trial, as the case may be, study the issues in the afterlight of these authorities.\n \n V. DIVESTITURE\n \n 35\n We now turn to consider whether divestiture is excluded per se from the armory of equitable relief available to a district judge in Sec. 16 cases. Caribe petitions solely for injunctive relief from defendants' antitrust violations and specifically requests an order directing USAP to divest itself of Isla Corporation, the former ARCO subsidiary. Caribe asserts that unless divestiture is ordered, the competitive conditions in the Puerto Rican retail gasoline market will be destroyed and the trend toward monopolization of the market will continue unabated. Such a result, it claims, would work a manifest detriment to Caribe and the other minority share companies.\n \n \n 36\n The defendants contend that divestiture is not an authorized form of injunctive relief under Sec. 16, standing solely upon the analysis set forth in International Telephone and Telegraph v. GTE Corp., 518 F.2d 913, 921 (9th Cir.1975) (hereinafter I.T.T.), and reaffirmed in Calnetics v. Volkswagen of America, 532 F.2d 674 (9th Cir.1975), cert. denied, 429 U.S. 940, 97 S.Ct. 355, 50 L.Ed.2d 309 (1976).6 In its cases, the Ninth Circuit decided that the statutory language of Sec. 16 authorizing private plaintiffs to sue for and obtain \"injunctive relief\" was ambiguous. It then concluded on the basis of the legislative history of the Clayton Act that Congress had not intended divestiture as one of the equitable remedies available to private plaintiffs under Sec. 16.\n \n \n 37\n Other courts, however, have concluded that divestiture is an available Sec. 16 remedy. In NBO Industries Companies, Inc. v. Brunswick Corp., 523 F.2d 262 (3d Cir.1975), rev'd on other grounds sub nom. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 the Third Circuit explicitly rejected both the Ninth Circuit's approach to the question and its conclusion, while deciding that divestiture was not an appropriate remedy in its case. Several district courts also provide support for Caribe's position. Most recently, in Fuchs Sugar and Syrups, Inc. v. Amstar Corp., 402 F.Supp. 636 (S.D.N.Y.1975), and Nasso Concrete Corp. v. DIC Concrete Corp., 467 F.Supp. 1016, 1025 (S.D.N.Y.1979), divestiture was held to be a remedy available to private plaintiffs suing for injunctive relief. Preceding these rulings were four district court opinions that reached the same conclusion, excluding, of course, the district courts the Ninth Circuit reversed in the two cases cited above. See Bay Guardian Co. v. Chronicle Publishing Co., 340 F.Supp. 76, 82 (N.D.Cal.1972) (divestiture available for Clayton Act Sec. 7 violation); Credit Bureau Reports v. Retail Credit Co., 358 F.Supp. 780, 797 (S.D.Tex.1971) (divestiture available under Sec. 16 generally), aff'd, 476 F.2d 989, 992 (5th Cir.1973); Burkhead v. Phillips Petroleum Co., 308 F.Supp. 120, 126-27 (N.D.Cal.1970) (same); Julius M. Ames Co. v. Bostitch, Inc., 240 F.Supp. 521, 526 (S.D.N.Y.1965) (same).\n \n \n 38\n In view both of the split in authority, and of the long-range ramifications of a decision concerning the availability of divestiture as a potential remedy in a private antitrust suit, a comprehensive treatment of this question is necessary. Accordingly, our statutory construction of Sec. 16 begins by recounting the general antitrust legislative background. We next turn to an analysis of the statute's plain language. Because the statutory language does not explicitly state whether Congress intended divestiture to be a remedy available to private plaintiffs, we examine the legislative history of the Clayton Act in some detail. We then consider the question in light of the goals the statutory language and legislative history enunciated. We conclude that Sec. 16 encompasses divestiture.\n \n A. Legislative Background\n \n 39\n In 1890, as a result of widespread alarm over concentration and anticompetitive conditions in the transportation, fuel and beef industries, Congress passed the Sherman Act. It prohibits, inter alia, \"[e]very contract, combination, ... or conspiracy in restraint of trade,\" and every monopolization or attempt to monopolize. 15 U.S.C. Secs. 1, 2 (1982). As the Supreme Court has observed,\n \n \n 40\n The Sherman Act was designed to be a comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade. It rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time providing an environment conducive to the preservation of our democratic political and social institutions.\n \n \n 41\n Northern Pacific Railway Co. v. United States, 356 U.S. 1, 4, 78 S.Ct. 514, 517, 2 L.Ed.2d 545 (1958).7\n \n \n 42\n Despite the expansive language and broad remedial purposes of the Sherman Act,8 it soon became apparent that the Act was an inadequate instrument for achieving some of the lofty goals Congress had identified. Chief among its deficiencies was its inability to obstruct and prohibit corporate integrations that could lead to future monopoly. To supplement the Sherman Act so as \"to arrest the creation of trusts, conspiracies, and monopolies in their incipiency,\" S.Rep. No. 698, 63d Cong., 2d Sess. (July 22, 1914) (Judiciary Committee), Congress passed the Clayton Act, 15 U.S.C. Secs. 12-27. Section 7 of the Clayton Act, 15 U.S.C. Sec. 18, which originally provided that no corporation engaged in commerce shall acquire directly or indirectly the whole or any part of the stock of another corporation where the effect of such acquisition is to lessen competition substantially or tend to create a monopoly, was subsequently amended to extend its reach still farther. In 1950, Sec. 7 was amended to encompass the acquisition of assets as well as of stock, and to apply unequivocally both to mergers between actual competitors and to mergers effected vertically or by conglomerates whose effect may tend to lessen competition. See 15 U.S.C. Sec. 18 (1982) as amended by Pub.L. No. 81-899, 64 Stat. 1125; see also Brown Shoe Co. v. United States, 370 U.S. 294, 315-18, 82 S.Ct. 1502, 1518-20, 8 L.Ed.2d 510 (1962).\n \n \n 43\n Private parties may sue to enforce the antitrust laws, including the substantive provisions of the Sherman and Clayton Acts, under Sec. 4 and Sec. 16 of the Clayton Act. Section 4 offers the successful private litigant treble damages, costs, and attorney's fees upon proving measurable injuries actually sustained. 15 U.S.C. Sec. 15. Section 16, by contrast, provides injunctive relief to \"any person, firm, corporation, or association ... against threatened loss or damage by a violation of the antitrust laws....\" 15 U.S.C. Sec. 26. Section 16 has recently been amended to provide attorney's fees and costs to a prevailing plaintiff who receives injunctive relief. Id. (as amended by Pub.L. 94-435 (1976)). Courts have long recognized that Congress intended private antitrust suits both to provide a remedy to injured parties when the government fails to act or is not able to provide an adequate remedy, and to enlist the business public as private attorneys general to aid the government in \"achieving the broad social object of the statute.\" Karseal Corp. v. Richfield Oil Corp., 221 F.2d 358, 365 (9th Cir.1955); see also Monarch Life Insurance Co. v. Loyal Protective Life Insurance Co., 326 F.2d 841, 845 (2d Cir.1963), cert. denied, 376 U.S. 952, 84 S.Ct. 968, 11 L.Ed.2d 971 (1964).\n \n B. Plain Language\n \n 44\n Our starting point in determining the scope of the injunctive relief available under Sec. 16 is the statutory language. North Haven Board of Education v. Bell, 456 U.S. 512, 520, 102 S.Ct. 1912, 1917, 72 L.Ed.2d 299 (1981); Consumer Product Safety Commission v. GTE Sylvania Corp., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). If the statutory language is unambiguous, in the absence of \"a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.\" Id.; Russello v. United States, 464 U.S. 16, 104 S.Ct. 296, 299, 78 L.Ed.2d 17 (1983); United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981). Section 16 provides:\n \n \n 45\n Any person, firm, corporation or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws, including sections 13, 14, 18, and 19 of this title, when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity....\n \n \n 46\n 15 U.S.C. Sec. 26 (1982) (no amendment in pertinent part since original enactment) (emphasis added). The section further provides that a preliminary injunction may issue upon the posting of a bond if plaintiff shows the \"danger of irreparable loss or damage is immediate....\" Id.\n \n \n 47\n We are first struck by the broad language Congress employed in Sec. 16. \"Injunctive relief\" is made available \"when and under the same conditions as injunctive relief against threatened conduct ... is granted by courts of equity.\" Id. Significantly, the statute states no restrictions or exceptions to the forms of injunctive relief a private plaintiff may seek, or that a court may order. \" 'Nothing on the face of the statute suggests a congressional intent to limit [the types of injunctions a court may order].' \" Lewis v. United States, 445 U.S. 55, 60, 100 S.Ct. 915, 918, 63 L.Ed.2d 198 (1980) (quoting United States v. Culbert, 435 U.S. 371, 373, 98 S.Ct. 1112, 1113, 55 L.Ed.2d 349 (1978)). Rather, the statutory language indicates Congress' intention that traditional principles of equity govern the grant of injunctive relief.\n \n \n 48\n The Supreme Court has described the principles of equity as derived from a \"practice with a background of several hundred years of history.\" Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 591-2, 88 L.Ed. 754 (1944). The Court has noted, \"The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mold each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it.\" Equity is the instrument \"for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims.\" Id.; see also Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91 (1982). Because of the vital role of equity in our system of law,\n \n \n 49\n \"this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. 'The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.' Brown v. Swann, 10 Pet. 497, 503 [9 L.Ed. 508].\"\n \n \n 50\n Weinberger v. Romero-Barcelo, 456 U.S. at 313, 102 S.Ct. at 1803-04 (quoting Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332 (1946)) (emphasis added). This directive clarifies the onerous burden that must be discharged for us to restrict the district court's inherent equity powers; in either the plain language of the statute, or in authoritative legislative history, a \"clear and valid legislative command\" must be identified.\n \n \n 51\n Although \"Congress may intervene and guide or control the exercise of the courts' discretion,\"9 Weinberger v. Romero-Barcelo, 456 U.S. at 313, 102 S.Ct. at 1803; see also Yakus v. United States, 321 U.S. 414, 441-42, 64 S.Ct. 660, 675-76, 88 L.Ed. 834 (1944), the plain language of Sec. 16 fails to indicate by either \"a clear and valid legislative command,\" Porter v. Warner Holding Co., 328 U.S. at 398, 66 S.Ct. at 1089, or even a veiled suggestion, any intended limitation of the types of injunctive relief available to private litigants under Sec. 16. Nor do we find any indication of an intention to limit the district court's inherent powers of equity.10 Accordingly, we believe Congress intended that courts should fashion their injunctions by exercising sound discretion according to the exigencies of the particular situation before them, which is to allow courts their \"traditional equitable discretion.\" Romero-Barcelo, 456 U.S. at 319, 102 S.Ct. at 1806. It is reasonable to hypothesize that, in some aggravated cases, the threatened or actual injury to the market and a litigant will not cease unless the acquiring corporation is required to divest itself of its acquisition. The plain language of Sec. 16 does not suggest that Congress intended to exempt from the district court's equity jurisdiction the power to order divestiture in appropriate cases brought by private plaintiffs.\n \n \n 52\n Our conclusion is fortified by comparing the language Congress utilized in granting the government the power to obtain equitable relief, Sec. 15 of the Clayton Act, 15 U.S.C. Sec. 25, to that used in Sec. 16. Section 15 vests the government with the power \"to institute proceedings in equity to prevent and restrain\" violations of the antitrust laws and allows it to petition \"that such violation ... be enjoined or otherwise prohibited.\" 15 U.S.C. Sec. 25. The predecessor statute to Sec. 15, Sec. 4 of the Sherman Act, contained language that the Congress reenacted virtually verbatim in Sec. 15. The government's ability to seek and obtain divestiture or \"dissolution\" under this general language was clear by 1914, at the time the Clayton Act was passed. See United States v. American Tobacco Co., 221 U.S. 106, 31 S.Ct. 632, 55 L.Ed. 663 (1911); Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911). That Congress knew of the use of these remedies by the government under this broadly-phrased language is clear from the discussion of these cases during the hearings and debate on the Clayton Act. See infra at 419.\n \n \n 53\n We are unable to discern from the plain language of these statutes any intended distinction between the equitable remedies Congress provided to the government and those it provided to private plaintiffs. The Ninth Circuit, however, determined that \"proceedings in equity\" (Sec. 15) and \"injunctive relief\" (Sec. 16) were not coextensive in their embrace of divestiture and dissolution. I.T.T., 518 F.2d at 923-24. Although that opinion appears to concede that divestiture is within the ambit of \"injunctive relief\" as presently conceived and practiced, the Ninth Circuit declined to take the currently recognized scope of possible injunctions as its guidepost for determining the kinds of remedies available under Sec. 16. It, instead, apparently believed that the proper inquiry was the meaning of the words employed in 1914, at the time of enactment. The Ninth Circuit identified what it considered to be a significant distinction between injunctive relief and dissolution or divestiture current at that time, and concluded that divestiture is not available under Sec. 16.\n \n \n 54\n Although ascertaining the intent of Congress is a court's primary objective in construing a statute, we disagree with the Ninth Circuit's interpretive approach. We do not believe that a court can ignore the contemporary legal meaning and scope of words employed in statutes and base its interpretation of the plain language solely on what it surmises was the meaning of the words at the time of original enactment. See generally Brest, The Misconceived Quest for the Original Understanding, 60 B.U.L.Rev. 204 (1980). Just as the concepts of \"discrimination\" and \"equal protection of the laws\" are susceptible of varying interpretations that change over time, University of California v. Bakke, 438 U.S. 265, 284, 98 S.Ct. 2733, 2745, 57 L.Ed.2d 750 (1978) (Powell, J., announcing the judgment of the Court), so, too, are other words, such as \"injunctive relief,\" that are invested with legal meaning. We must recognize, as Justice Holmes so perceptively stated, that \"[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used.\" Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372 (1918). Especially in view of the growth and change of equity powers and injunctive relief over the centuries,11 and Congress' general authorization of \"injunctive relief\" with no restrictions or exceptions, we believe it is inappropriate to interpret this statute's language restrictively. We are, moreover, specifically charged to interpret a remedial statute generously. See Gomez v. Toledo, 446 U.S. 635, 639, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980); Doe v. Brookline, 722 F.2d 910, 919 (1st Cir.1983). Because the Ninth Circuit based most of its determination of the 1914 meaning of \"injunctive relief\" on the comments made in the legislative history, we reserve our specific critique for our discussion of those materials. We now turn to that analysis.\n \n C. Legislative History\n \n 55\n The legislative history of the Clayton Act is voluminous, comprising approximately 3000 pages of committee reports, hearings, and debate. This unusual breadth of attention found its impetus in the widespread public perception that trusts and monopolistic corporations possessed excessive economic, political, and social power, and that government action in this area was necessary to remedy the problem. See Katzmann, The Attenuation of Antitrust, 2 Brookings Rev. 23, 23-25 (1984). The political significance of the issue is evinced by President Wilson's 1914 State of the Union address; his sole topic was to propose in general terms legislation to supplement the Sherman Act. 51 Cong.Rec. 1964-65 (daily ed. Jan. 20, 1914).\n \n \n 56\n Following the President's address, a subcommittee of the House Judiciary Committee was appointed to draft legislation along the lines proposed by the President. That drafting process consumed approximately two weeks, and the result was styled a \"tentative bill by Mr. Clayton.\" Although the Judiciary Committee reported one bill to the House, H.R. 15657, the subcommittee proposal was initially contained in three separate \"committee print\" bills which were published in newspapers throughout the country with an express invitation to the public, especially \"businessmen,\" to testify at the House hearings or to otherwise contact committee members with comments. The bulk of the committee hearings and other commentary was devoted to four issues: determining what substantive offenses should be expressly prohibited; the proper reach of the interlocking directorates proscription; suggested restrictions on the use of federal injunctions against striking workers; and a reform of the criminal contempt process.\n \n \n 57\n Before turning to our analysis of specific legislative materials, we must explore one additional interpretive problem. At no point in the legislative history of the Clayton Act do we find any use of the term \"divestiture.\" Consequently, any inquiry into the intent of Congress regarding the availability of divestiture is at least one step removed; the inquiry must focus on other terms used at that time, such as \"dissolution\" and \"partition,\" in an effort to ascertain the relationship between these concepts and \"divestiture.\"\n \n \n 58\n Defendants rely on the analysis set forth by the Ninth Circuit on this question. That court ruled that \"the terms 'dissolution' and 'divestiture' are not interchangeable,\" I.T.T., 518 F.2d at 923 n. 49, but that \" 'dissolution' is the inclusive term and 'divestiture' is a subcategory.\" Id. at 923. The crux of this argument is found in the following passage:\n \n \n 59\n During the hearings on Sec. 16, the members of the House Judiciary Committee used \"dissolution\" to include the remedy of divestiture. Throughout the hearings references were made by members of the committee and witnesses to \"dissolution of the trusts.\" One of the more frequently mentioned trusts whose \"dissolution\" was discussed was the Standard Oil Trust. The Committee was intimately familiar with the Supreme Court's decision \"dissolving\" the Standard Oil Trust. If any specific equitable remedy was in the minds of the members of the committee when they were considering the right to bring dissolution suits, then it was the remedy obtained by the government in the Standard Oil case.\n \n \n 60\n That remedy was divestiture.... In short, the dissolution of Standard Oil Co. of New Jersey was accomplished by an order that it divest itself of the stock of the subsidiary corporations. In that case, the Supreme Court used the term \"dissolution\" to refer to the remedy of divestiture.\n \n \n 61\n Id. at 923-24 (footnotes omitted).\n \n \n 62\n We agree with the Ninth Circuit that one starting point in understanding what Congress meant by the term \"dissolution\" is the antitrust experience in the opinion issued in Standard Oil v. United States, 221 U.S. at 77-81, 31 S.Ct. at 522-524. But we would add that the companion opinion of United States v. American Tobacco Co., 221 U.S. at 184-88, 31 S.Ct. at 650-51, the district court opinion and decree in Standard Oil, 173 Fed. 177 (E.D.Mo.1909), which the Supreme Court affirmed, and the order for relief on remand in American Tobacco, 191 Fed. 371 (S.D.N.Y.1911), also were explicit parts of this experience, figuring in congressional discussions on whether the power to order relief, and the relief actually ordered, was sufficient.12 These cases were continually referred to both by Members of Congress and by witnesses when speaking of \"dissolution.\"13 To discern the meaning and scope of that term we look to the historical framework within which it was used.14\n \n \n 63\n During the late nineteenth century, when monopolistic corporate power was at its height, state courts of equity,15 and eventually federal courts, refashioned traditional equitable powers in order to do \"complete justice\" in the face of this new evil. The power to dissolve a partnership, upon petition of a partner, or to dissolve and wind up a corporation, evidently were the old equity powers gradually remolded into the antitrust power of dissolution.16 This was a period of judicial creativity in adapting the traditional tools of the court when necessary to achieve the statutory goals enunciated by the Sherman Act.17\n \n \n 64\n The Supreme Court had explicitly approved the use of \"dissolution\" as a remedy available under Sec. 4 of the Sherman Act in the American Tobacco and Standard Oil cases. In American Tobacco, the Court observed: \"[this case] involves difficulties in the application of remedies greater than have been presented by any case involving the Antitrust Act which has been hitherto considered by this court.\" American Tobacco Co., 221 U.S. at 185, 31 S.Ct. at 650. In stating the considerations which brought it to that conclusion, the Court observed that a \"mere decree forbidding stock ownership by one part of the combination in another part ... would afford no adequate measure of relief, since the ingredients of the combination would remain unaffected, and by the very nature and character of their organization would be able to continue the wrongful situation which it is our duty to destroy.\" Id. at 185-86, 31 S.Ct. at 650-51 (emphasis added). To achieve this goal, the Court noted that it might\n \n \n 65\n resort to one or the other of two general remedies--a, the allowance of a permanent injunction restraining the combination ... from continuing to engage in interstate commerce until the illegal situation be cured, ... or, b, to direct the appointment of a receiver to take charge of the assets and property ... of the combination ... for the purpose of preventing a continued violation of the law, and thus working out by a sale of the property of the combination.\n \n \n 66\n Id. at 186-187, 31 S.Ct. at 651 (emphasis added). Rather than ordering either of these two means of effectuating a dissolution, the Court directed that, on remand, the trial court hear the parties and fashion a plan \"of dissolving the combination and of recreating, out of the elements now composing it, a new condition which shall be honestly in harmony with and not repugnant to the law.\" Id. at 187, 31 S.Ct. at 651.\n \n \n 67\n We think this discussion in American Tobacco indicates that the Supreme Court envisioned a dissolution being accomplished in any of several ways. The combination's market power could effectively be dissolved by a prohibitory injunction forbidding the corporation from engaging in interstate commerce, with the result that the offending combination partitions itself, sells assets, or otherwise restricts itself in a manner that recreates a competitive market. Or, the court could take a more active role as by appointing a receiver to sell assets in such a manner as to restore market conditions. Or, in lieu of either of these two drastic remedies, the court could encourage the formulation of a consent decree under the direction of the court. All of these approaches may be called dissolutions--dissolutions of market power, of combinations of assets, or of the corporation itself. Today, as then, we would say that dissolutions achieved through the use of any of these mechanisms were achieved by use of the injunctive power according to principles of equity, see, e.g., United States v. Standard Oil Co., 173 Fed. 177, 192-93 (E.D.Mo.1909), aff'd, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911); O. Fiss, The Civil Rights Injunction 10 (1978). Forcing a corporation to divest itself of some of its assets, as by a sale, is one means through which the remedy of dissolution could be achieved, but it plainly is not the only means. See Adams, Dissolution, Divorcement, Divestiture: The Pyrric Victories of Antitrust, 27 Ind.L.J. 1 n. 1 (1951) (\"The term 'dissolution' is generally used to refer to any situation where the dissolving of an illegal combination or association is involved, including the use of divestiture and divorcement as methods of achieving that end\") (quoting Oppenheim, Cases on Federal Antitrust Laws 885 (1948)).\n \n \n 68\n Moreover, when the Second Circuit, on remand in American Tobacco, fashioned relief according to what it conceived to be mandated by the Supreme Court's order for \"dissolution,\" some members of Congress considered this not to be a dissolution in fact, but merely a \"circuitous course\" by which that end was not achieved. See, e.g., 51 Cong.Rec. 16326 (daily ed. Oct. 8, 1914) (remarks of Rep. Nelson); 51 Cong.Rec. 15864 (daily ed. Sept. 29, 1914) (remarks of Sen. Reed).18 These congressmen apparently equated dissolution with the complete destruction and reorganization of an offending corporation: a court should \"cause all of its assets to be sold in such a manner ... as to restore competition ... fully and completely....\" 51 Cong.Rec. 16326 (daily ed. Oct. 8, 1914) (remarks of Rep. Nelson). Thus, even within Congress, there existed a difference of opinion as to what the remedy of dissolution entailed.19 We, therefore, find the relationship between the terms \"dissolution\" and \"divestiture\" more complex than defendants would have it, and we cannot in good faith simply substitute the latter term for the former in reviewing the legislative history.\n \n \n 69\n We now turn to an analysis of the legislative materials. It bears repeating that in order to limit or displace the meaning of a statute's plain language, authoritative legislative history that rises to the level of \"a clearly expressed legislative intent\" must be identified. Consumer Products Safety Commission v. GTE Sylvania Corp., 447 U.S. at 108, 100 S.Ct. at 2056; United States v. Turkette, 452 U.S. at 580, 101 S.Ct. at 2527. Moreover, to restrict a court's inherent powers of equity, we must have nothing less than \"a clear and valid legislative command.\" Weinberger v. Romero-Barcelo, 456 U.S. at 313, 102 S.Ct. at 1803. Defendants' legislative arrows lack the velocity necessary to reach either mark.\n \n 1. Committee Reports\n \n 70\n In reviewing the legislative process, we first look to see whether Congress specifically addressed the question in the official committee reports, which are entitled to substantial weight. The House Judiciary report does not speak to whether Sec. 16 was meant to encompass dissolution or divestiture. Its explanation of Sec. 16 essentially reiterates the text of that provision and states that it was aimed at remedying a defect in prior law which had enabled private parties to recover damages but not injunctive relief. H.Rep. No. 627, 63d Cong., 2d Sess. 22 (1914) (hereinafter House Report). The report fails to identify any intended limits on the scope of injunctive relief available to private parties.\n \n \n 71\n Somewhat more revealing is a House minority report from the Judiciary Committee, in which some committee members dissatisfied with the bill expressed their reservations about the broad scope of private relief authorized by Sec. 16:20\n \n \n 72\n The provision giving to any individual the right to enjoin any threatened loss or damage is a serious one.... The beginning of an investigation by the government on any complaint that a concern has violated the antitrust laws almost immediately to some extent affects his credit but not so seriously as an injunction and perhaps receivership which might be brought by an individual.\n \n \n 73\n Minority Views, pt. 2 to H.R. 15637, H.Rep. No. 627, 63d Cong.2d Sess. (1914) (emphasis added). The specific reference to receivership suggests that some committee members believed dissolution and corporate reorganization would fall within the scope of Sec. 16 \"injunctive relief.\"21\n \n \n 74\n The report from the Senate Committee on the Judiciary does not shed much, if any, additional light on our particular inquiry. The report's preface announces that the bill's purpose \"is only to supplement\" the Sherman and other antitrust provisions. S.Rep. No. 698, 63d Cong., 2d Sess. 1 (1914) (hereinafter Senate Report). It \"seeks to prohibit and make unlawful certain trade practices which, as a rule,\" are not presently illegal, \"and thus, by making these practices illegal, to arrest the creation of trusts, conspiracies, and monopolies in their incipiency and before consummation.\" Id. The Senate report then reproduced in its entirety the House report on the proposed Clayton Act.\n \n \n 75\n The Senate committee proposed several amendments to the bill, including amendments to Sec. 16. In particular, the committee sought to make the injunctive relief section apply specifically to four named sections of the bill, \"so that all doubt of the cumulative and not exclusive character of the remedy may be removed.\"22 Plainly, none of this material evinces a congressional intention that Sec. 16 injunctive relief have restrictions placed upon it beyond the principles traditionally governing a court sitting in equity.\n \n 2. Floor Debates\n \n 76\n The House began its consideration of H.R. 15657 in early May, 1914. 51 Cong.Rec. 8201 (daily ed. May 6, 1914). Although Representative Clayton, the chair of the House Judiciary Committee, did not participate in the floor debates, his coauthors of the bill, Representatives Carlin and Floyd, and other committee members were actively involved in explaining the bill to their colleagues. Committee Member McGillicuddy, on behalf of the committee, discussed the purpose of Sec. 16:\n \n \n 77\n Under the [Sherman Act] any person injured in his business or property by acts in violation of the [Act] ... is entitled to recover threefold damage whenever he is able to prove his case. There is no provision under the present law, however, to prevent threatened loss or damage even though it be irreparable. The practical effect of this is that a man would have to sit by and see his business ruined before he could take advantage of his remedy. In what condition is such a man to take up a long and costly lawsuit to defend his rights?\n \n \n 78\n The proposed bill solves this problem for the person, firm, or corporation threatened with loss or damage to property by providing injunctive relief against the threatened act that will cause such loss or damage. Under this most excellent provision a man does not have to wait until he is ruined in his business before he has his remedy.\n \n \n 79\n 51 Cong.Rec. 9261 (daily ed. May 26, 1914) (emphasis added). Representative McGillicuddy mentioned no limitations on the injunctive power either he or the committee understood to be implied by Sec. 16.\n \n \n 80\n Later that same day, in response to criticism that the bill lacked substance, Representative Carlin took the floor in defense of the bill and said:\n \n \n 81\n First, we found that the Sherman law did not permit an injunction on petition of an individual. The Government could enjoin a combination or trust; and though an individual was standing face to face with destruction, though the monster of monopoly was knocking at his door, he would have to wait until destruction came, and then pursue his remedy at law for treble damages. So ... the committee, proposed to place in this bill a law which allows the individual to sue for equitable relief and to enjoin monopoly when he is threatened with irreparable loss or damage.\n \n \n 82\n Id. at 9270 (emphasis added). After drawing this express parallel between the government's and the individual's right to enjoin antitrust violations, Representative Carlin then outlined other protections for the individual contained in the bill. In particular, he named the right to use a governmentally obtained judgment as evidence in a private suit, and the suspension of the statute of limitations for individuals while a pertinent government suit is pending. All these remarks indicate a desire to provide the individual with effective remedies against anticompetitive practices, and to permit early intervention to protect a business and market.23 The House passed the committee's bill without amendment.\n \n \n 83\n As noted above, the Senate committee's bill contained a number of amendments differentiating it from the House bill. On the floor of the Senate, still more amendments were passed. One such amendment passed by the Senate, Sec. 25, is pertinent to our inquiry:\n \n \n 84\n That whenever a corporation shall acquire or consolidate the ownership or control of the plants, franchises or property of other corporations, copartnerships, or individuals, so that it shall be adjudged to be a monopoly or combination in restraint of trade, the court rendering such judgment shall decree its dissolution and shall to that end appoint receivers to wind up its affairs and shall cause all of its assets to be sold in such manner and to such persons as will, in the opinion of the court, restore competition as fully and completely as it was before said combination began to be formed. The court shall reserve in its decree jurisdiction over said assets so sold for a sufficient time to satisfy the court that full and free competition is restored and assured.\n \n \n 85\n 51 Cong.Rec. 15863 (daily ed. Sept. 29, 1914) (emphasis added). We note that the amendment was the only explicit proposal for the codification of the dissolution remedy, and that the amendment's plain language would not have restricted its availability to the government. The Senate approved this amendment and passed the bill. When the bill was returned to the House, a call was made for a conference committee to resolve the differences between the two bills. While this amendment was rejected by the conference committee and ultimately not enacted, we believe that it indicates greater conflict over the meaning of \"dissolution\" than the Ninth Circuit acknowledges. Plainly, a number of Senators appear to have connected \"dissolution\" with the winding up of a corporation, or its general termination.24\n \n 3. Conference Committee Reports\n \n 86\n Both the Senate and the House issued conference reports, but neither mentioned the Senate amendment except to note that the Senate \"recede[s].\" H.Rep. No. 1168, 63d Cong., 2d Sess. 1 (1914); S.Doc. No. 585, 63d Cong., 2d Sess. 3 (1914). It is unclear what inferences should be drawn from the conference's rejection of Sec. 25. One position that could be advanced is that because Sec. 25 was rejected by the committee and ultimately not enacted, Congress explicitly rejected dissolution as a remedy available to private plaintiffs. Such an argument, however, fails to take into consideration that both the government and private plaintiffs would be swept within such an inferred intention because the amendment did not differentiate between types of plaintiffs. We would also note that rejection of Sec. 25 has not obstructed the government from obtaining divestiture in appropriate cases. See, e.g., Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962); United States v. E.I. du Pont de Nemours, 353 U.S. 586, 77 S.Ct. 872, 1 L.Ed.2d 1057 (1957). Because a significant number of substantive provisions were contained within Sec. 25, including, inter alia, the authorization of dissolution with no restrictions as to type of plaintiff, we apprehend no reason for assigning the rejection of the amendment to a congressional decision that dissolution should be restricted to the government's cases alone. This perspective receives additional support from a comparison between the Senate amendment and the alternative language pressed upon the conference committee. This alternative would have made it permissive rather than mandatory for a court to order the sale of all assets when a Sherman Act Sec. 1 or Sec. 2 violation was found, and would have restricted the availability of dissolution to the government. This alternative language, too, was rejected by the conference. See 51 Cong.Rec. 16325-26 (Oct. 8, 1914) (remarks of Rep. Nelson, conference committee member).\n \n 4. Floor Debates on the Conference Bill\n \n 87\n Representative Floyd, one of the conference members, explained the conference bill to the House:\n \n \n 88\n Heretofore there has been only one power that might enjoin an unlawful trust or monopoly in restraint of trade, and that was the Government of the United States....\n \n \n 89\n This provision in Sec. 16 gives any individual, company, or corporation damaged in its property or business by the unlawful operations or actions of any corporation or combination the right to go into court and enjoin the doing of these unlawful acts....\n \n \n 90\n 51 Cong.Rec. 16319 (Oct. 8, 1914) (emphasis added). We note that Representative Floyd reiterated the explicit parallel drawn between the government's power to obtain an injunction and that of the individual under Sec. 16 of the Clayton Act, a point which had originally been elaborated by Representative Carlin during floor debates on the initial bill. Again, no distinction between the two authorizations was noted.\n \n 5. Committee Hearings\n \n 91\n We review the committee hearings last because these are entitled to less weight than committee reports, United States v. Auto Workers, 352 U.S. 567, 585, 77 S.Ct. 529, 538, 1 L.Ed.2d 563 (1957), and remarks on the floor by a bill's sponsor which are entitled to substantial weight. North Haven Bd. of Educ. v. Bell, 456 U.S. at 526-27, 102 S.Ct. at 1920-21; FEA v. Algonquin SNG, Inc., 426 U.S. 548, 564, 96 S.Ct. 2295, 2304, 49 L.Ed.2d 49 (1976).\n \n \n 92\n When reviewed as a whole, only scant consideration was given in the hearings to the remedy provisions, or the judicial \"machinery,\" of the proposed act. In House hearings that lasted over four months and filled over 2000 pages of record, the testimony relating specifically to the scope of Sec. 16 is contained in approximately thirty pages. The Ninth Circuit accorded particular weight to an exchange between Representative Floyd and a witness who testified at the committee's request. The witness commented \"when a private individual is allowed to begin a suit to dissolve a corporation, or an injunctive suit, the same kind of suit the Government may begin....\" H. Hearings on H.R. 15657, 63d Cong., 2d Sess. 842 (February 6, 1914) (hereinafter H. Hearings). Mr. Floyd, one of the members of the drafting subcommittee, responded:\n \n \n 93\n We did not intend by section to give the individual the same power to dissolve the corporation that the Government has.... We discussed it very thoroughly among ourselves and decided he should not have [it].\n \n \n 94\n Id. (remarks of Rep. Floyd).\n \n \n 95\n We think the context of the remark belies any idea that the committee had arrived at an understanding about the intended scope of Sec. 16. Just a few days prior to the time this remark was made, a national invitation had been issued for citizens to comment on the bill and elaborate their views regarding its proper scope. On the day the comment was made, the hearings had been in session barely one week. It is difficult to believe that a committee intention had been formed at this early stage. This perception is borne out by the repeated inquiries committee members made of other witnesses on later dates regarding whether individuals should have a right to obtain the dissolution of an offending corporation. See, e.g., House Hearings at 492 (Feb. 12, 1914); id. at 666 (Feb. 16); id. at 1183 (March 4).25\n \n \n 96\n Additionally, a close reading of the Floyd remarks shows that he stated there was no intent to give the individual the same power to bring a suit to dissolve a corporation that the government was intended to possess. We cannot ascertain whether Representative Floyd intended that the individual should have the power to request and obtain dissolution in certain kinds of cases but not others, for instance, in especially egregious cases or upon more stringent proof than the government. Moreover, congressional members' comments during committee hearings while interviewing witnesses may indicate preliminary concerns and issues but generally are not weighted as representative of the intent of Congress embedded in the proposed statute eventually reported to the floor. Having considered these aspects of Representative Floyd's remarks, we hold them to be insufficiently reliable for a court to give them interpretive weight in construing Sec. 16. See New England Power Co. v. New Hampshire, 455 U.S. 331, 342, 102 S.Ct. 1096, 1102, 71 L.Ed.2d 188 (1982) (\"Reliance on such isolated statements of legislative history in divining the intent of Congress is an exercise fraught with hazards, and 'a step to be taken cautiously' \") (quoting Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 26, 97 S.Ct. 926, 941, 51 L.Ed.2d 124 (1977)).\n \n \n 97\n Finally, regardless what weight is accorded these remarks, we note that Representative Floyd rejected the individual's power to bring a suit for dissolution of a combination. As divestiture of an acquisition can be so different in degree of impact on a combination as to amount to a difference in kind, we cannot hold these remarks to indicate a proscription of divestiture.\n \n \n 98\n We derive support for our analysis from NBO Industries Treadways Companies, Inc. v. Brunswick Corp., 523 F.2d 262 (3d Cir.1975). There, the Third Circuit stated that while it was possible that members of the House committee assumed that Sec. 16 did not create a private divestiture remedy, it doubted whether comments made during 1914 committee hearings should \"control the contemporary application of a statute laying down a fundamental national economic policy.\" Rather, the court held[t]he antitrust laws are of necessity statements of general principle. They must be given meaning on a case-by-case basis. It is impossible for a legislature to devise codes so all-encompassing as to predict every case to which the general principles should apply. So, too, with antitrust remedies. There is a danger in permitting the pronouncements of statesmen long deceased to control the contemporary meaning of statutes which are almost an economic constitution for our complex national economy.\n \n \n 99\n NBO Industries, 523 F.2d at 278-79. This is especially so where the statements on which reliance is to be grounded lack indicia of reliability and authority, as do these remarks made near the inception of committee hearings, the import of which is controverted by other comments and materials. While the Third Circuit concluded that a rule of general application was not required in its case because less drastic remedies would adequately redress the violations, the court hypothesized that divestiture might be an appropriate injunctive remedy where the effect of a merger of two competitors would be to lessen competition. Id. at 279; see also id. at 278 n. 17 (collecting cases on the availability of divestiture under Sec. 16). Similarly, in Fuchs Sugar and Syrups, Inc. v. Amstar Corp., 402 F.Supp. 636 (S.D.N.Y.1975), Judge Ward refused to grant a motion to dismiss on the grounds that divestiture was not available to a private plaintiff, and suggested that \"[b]elaboring inconclusive scraps of legislative history may be less worthwhile than examining the broad aim of the statutory scheme.\" Id. at 639. The court concluded that divestiture is a potential remedy for private parties suing under the Clayton Act.\n \n \n 100\n We draw additional support for our position from the comments of Professors Areeda and Turner. In commenting on the Ninth Circuit's I.T.T. opinion, these scholars stated:\n \n \n 101\n The court also gave decisive weight to a colloquy in the course of hearings in a House committee on the Clayton Act in which a congressman asserted a distinction between dissolution on the one hand and injunctions on the other. That fragment of legislative history cannot bear the weight the court placed upon it, when the reports of the relevant House and Senate committees were silent on the point, which also did not appear to have been mentioned on the House or Senate floor. Indeed, the court recognized that its conclusion deprived it of the natural and perhaps only effective remedy in the case before it. To hold a merger unlawful in a private suit while refusing to decree the undoing of that merger makes little sense in terms of antitrust policy.\n \n \n 102\n Fortunately, other courts have indicated, correctly, that divestiture is available in a private suit challenging unlawful mergers. The existence of power to order divestiture is distinct from the appropriateness of decreeing it in a particular case. Nevertheless, divestiture is the normal and usual remedy against an unlawful merger, whether sued by the government or by a private plaintiff.\n \n \n 103\n II P. Areeda & D. Turner, Antitrust Law Sec. 328b (1978) (footnotes omitted; emphasis added).\n \n \n 104\n In conclusion, the Ninth Circuit's interpretation of the legislative history, on which the defendant relies, can be stated as follows. In 1914, there was such a clearly demarked and uniformly understood division between the equitable remedies of dissolution and injunction that it must be found that by authorizing \"injunctive relief\" but not other equitable remedies, Congress26 expressly and intentionally excluded the latter from the purview of Sec. 16. We summarize our response as follows.\n \n \n 105\n First, a court possesses inherent powers of equity regardless of whether equitable remedies are expressly authorized under the statute. Romero-Barcelo, 456 U.S. at 313, 102 S.Ct. at 1803; Doe v. Brookline, 722 F.2d 910, 917-18 (1st Cir.1983). To hold Congress to have restricted these powers, a \"clear and valid legislative command\" must be identified. Id.; Romero-Barcelo 456 U.S. at 313, 102 S.Ct. at 1803. We do not believe that a technical distinction between two equitable remedies arguably current in 1914 rises to the level of a congressional command to restrict the court's inherent powers to secure \"complete justice.\"\n \n \n 106\n Second, we do not agree that \"dissolution\" and \"injunctive relief\" had unequivocal, or even generally agreed upon, definitions sufficient to conclude that injunctive relief was separate and distinct from dissolution. Indeed, the Supreme Court of that period, as now, appeared to view injunctions as one mechanism for bringing about a dissolution. See American Tobacco Co., 221 U.S. at 186, 188, 31 S.Ct. at 650, 651. Moreover, at that time traditional equitable remedies were being refashioned to combat antitrust violations and labor strikes, see O. Fiss, The Civil Rights Injunction 1-4, 10, 20-21 (1978), and thus, in this transitional period during which the law was grappling with the changes wrought by the accelerating industrialization of the nation, it is doubtful that a sharp distinction between the remolded dissolution remedy, and injunctive relief, was understood and intended by the Congress.\n \n \n 107\n Third, unlike the Ninth Circuit, we do not believe that the term \"injunctive relief\" can be limited to what a court surmises was the meaning of the words at the time of the original statutory enactment.27 The Clayton Act is a living statute; the current legal meaning and scope of its words cannot be ignored.\n \n \n 108\n Although we have no way of definitively determining the congressional intent in passing Sec. 16, there remains at least one secure guidepost: when Congress uses broad generalized language in a remedial statute, and that language is not contravened by authoritative legislative history, a court should interpret the provision generously so as to effectuate the important congressional goals.28 This principle has been understood and endorsed repeatedly both by the federal judiciary, see, e.g., Gomez v. Toledo, 446 U.S. at 639, 100 S.Ct. at 1923 (1980); Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977); Doe v. Brookline, 722 F.2d at 919; McComb v. Super-A Fertilizer Works, 165 F.2d 824, 826 (1st Cir.1948), and Congress, see, e.g., supra note 8, and it is therefore an especially reliable and legitimate canon of construction. The attempt to restrict \"injunctive relief\" to its putative meaning in 1914 collides head-on with this principle and must be rejected.\n \n \n 109\n Our reliance on this principle of statutory construction here is especially appropriate because the Sherman and Clayton Acts were drafted in broad terms to defeat an evil that Congress knew could take many forms. The explanations of record offered by committee and conference members were equally broad and general, stressing the purpose for which the section had been drafted. On the floor of neither the Senate nor the House, nor in any committee report, is there a single reference to any limitations or restrictions on Sec. 16 \"injunctive relief\" which would negate the plain language or the sponsors' broad explanations of the provision. Accordingly, we decline to engraft judicially a per se limitation on Sec. 16 forbidding an order for divestiture.\n \n \n 110\n D. \"Doing Equity\" and Implementing the Goals of the Statute\n \n \n 111\n Section 16 requires that injunctive relief for private plaintiffs be dispensed \"when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity....\" 15 U.S.C. Sec. 26. In an important private action requesting injunctive relief, the Court clarified the important role of Sec. 16:\n \n \n 112\n [T]he purpose of giving private parties treble-damages and injunctive relief was not merely to provide private relief but was to serve as well the high purpose of enforcing the antitrust laws.... Section 16 should be construed and applied with this purpose in mind, and with the knowledge that the remedy it affords [injunctive relief], like other equitable remedies, is flexible and capable of nice \"adjustment and reconciliation between the public interest and private needs as well as between competing private claims.\" ... Its availability should be \"conditioned by the necessities of the public interest which Congress sought to protect.\"\n \n \n 113\n Zenith Radio Corp. v. Hazeltine, 395 U.S. at 130-31, 1580-81.\n \n \n 114\n An order to divest stock or assets acquired in effecting a combination is one of the most effective kinds of remedies available to combat mergers that have, or threaten to have, anticompetitive consequences. See, e.g., United States v. du Pont & Co., 366 U.S. at 326, 81 S.Ct. at 1250; I.T.T., 518 F.2d at 925. As the Supreme Court has observed:\n \n \n 115\n Divestiture is the most important of the antitrust remedies. It is simple, relatively easy to administer, and sure. It should always be in the forefront of the court's mind when a violation of Sec. 7 has been found.\n \n \n 116\n United States v. du Pont & Co., 353 U.S. at 597, 77 S.Ct. at 879. See also United States v. Greater Buffalo Press, 402 U.S. 549, 556, 91 S.Ct. 1692, 1697, 29 L.Ed.2d 170 (1971) (\"Divestiture performs several functions, the foremost being the liquidation of the illegally acquired market power\"). Although the Court was speaking of divestiture in the context of a suit brought by the government, we apprehend no reasons why the efficacy of divestiture as a remedy would not hold as well in Sec. 16 cases. Because we are concerned with \"doing equity,\" efficacy concerns are relevant; the goal is to \"secur[e] complete justice.\" Brown v. Swann, 10 Pet. at 503.\n \n \n 117\n Under the Clayton Act, courts have always possessed the power to prohibit a merger through a preliminary injunction. It is a logical extension of that power to divorce the partners to a merger at a later time when anticompetitive effects of the merger are, if not actually felt, considerably more imminent. Caribe here initially requested a preliminary injunction to prohibit the merger and backed that up with a petition for divestiture of the acquired company if it failed to achieve interlocutory relief. We cannot understand the logic of allowing a plaintiff, on the one hand, to obtain a congressionally intended result--the prohibition of an anticompetitive merger--on a showing that there will likely be market deterioration; but, on the other hand, if it fails to make the preliminary showing yet actually proves at trial that a merger is anticompetitive, obtain perhaps far less in that the same relief is barred.\n \n \n 118\n Moreover, it is contrary to equitable principles to permit some defendants to maintain an illegal market share merely because they were able to merge before any of their competitors could prevent it. This places a premium on gamesmanship and stealth, and allows anticompetitive mergers to be treated differently on the basis of the speed and skill with which the merger is consummated. Unfortunately, the public is also the loser under such an approach as it cannot bring its own suit except through the Justice Department and must rely on the adventitious suits of private plaintiffs to maintain competitive conditions. We can conceive of no valid reason for allowing the presence or absence of proof at an interlocutory stage in and of itself to determine whether the private enforcement of antitrust laws prohibiting anticompetitive mergers will be deprived of one of its most effective remedies. See Dexter & Peacock, Private Divestiture Suits Under Section 16 of the Clayton Act, 48 Tex.L.Rev. at 55.\n \n \n 119\n Any determination regarding whether divestiture would be an appropriate remedy in this case is, of course, premature and we venture no suggestion regarding what remedy the trial court should order if Caribe prevails. A range of injunctive relief is possible and, like all equitable remedies, the relief ordered is highly dependent upon the proof adduced at trial. We note only that \"[t]he key to the whole question of an antitrust remedy is of course the discovery of measures effective to restore competition.\" United States v. du Pont & Co., 366 U.S. at 326, 81 S.Ct. at 1250. We do not direct or constrain the district court's sound discretion as to how the public and private interests in effective enforcement of the antitrust laws can best be effectuated and refer the trial court both to traditional equitable principles and to those cases where the Supreme Court has applied those principles in an antitrust context.\n \n \n 120\n Reversed and remanded.\n \n \n 121\n Since the district court originally adopted so strong a position against the availability of the divestiture remedy, we think that this is a case where it would be easier all around, including for the judge himself (without any reflection on him), to have the case reassigned to a different trier. Costs to appellants.\n \n \n \n *\n Of the District of Rhode Island, sitting by designation\n \n \n 1\n At oral argument, we were informed that the Puerto Rican assets of Gulf and Chevron have recently been merged\n \n \n 2\n Because the plaintiff in this action is within the \"core\" of possible plaintiffs under Sec. 16, we have no need to examine the outer limits of standing under this section, and this discussion should not be interpreted as adumbrating requirements that must be met by all Sec. 16 plaintiffs\n \n \n 3\n We must also note that the defendants were not alone in disregarding the Federal Rules of Civil Procedure. Our review of the record reveals that Caribe, too, was far from scrupulous in following the Rules. The cavalier attitude of the parties towards the Federal Rules of Civil Procedure and the court's orders cannot be condoned\n \n \n 4\n We note that, even if the defendants' late-filed affidavits are factored into the Rule 56 equation, the calculus remains unchanged; genuine issues of material fact nonetheless appear distinctly and in some abundance\n \n \n 5\n One of the few facts about which the parties did not disagree was the relevant geographic market--the island of Puerto Rico. Some disagreement may exist, however, on the existence of relevant geographic submarkets\n \n \n 6\n The Sixth Circuit adopted summarily the Ninth Circuit's position in Langenderfer v. S.E. Johnson Co., 729 F.2d 1050 (6th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 510, 511, 83 L.Ed.2d 401 (1984)\n \n \n 7\n At the time his bill was called for discussion on the floor of the Senate, Senator Sherman identified the impetus of the legislation later to be known as the Sherman Act:\n The popular mind is agitated with problems that may disturb social order, and among them all none is more threatening than the inequality of condition, of wealth, and opportunity that has grown within a single generation out of the concentration of capital into vast combinations to control production and trade and to break down competition. These combinations already defy or control powerful transportation corporations and reach State authorities. They reach out their Briarean arms to every part of our country. They are imported from abroad. Congress alone can deal with them, and if we are unwilling or unable there will soon be a trust for every production and a master to fix the price for every necessity of life.\n \n \n 21\n Cong.Rec. 2460 (daily ed. March 21, 1890). See generally Katzmann, The Attenuation of Antitrust, 2 Brookings Rev. 23, 23-25 (1984) (\"Antitrust reflected the deep-rooted and persistent American fear that concentrated private power could undermine democratic government\")\n \n \n 8\n Senator Sherman explained: \"The first section, being a remedial statute, would be construed liberally, with a view to promote its object. It defines a civil remedy, and the courts will construe it liberally....\" 21 Cong.Rec. 2456 (daily ed. March 21, 1890)\n \n \n 9\n The Supreme Court has noted a number of \"instances in which Congress has regulated and restricted the power of the federal courts to grant injunctions.\" Yakus v. United States, 321 U.S. 414, 442 n. 8, 64 S.Ct. 660, 676 n. 8, 88 L.Ed. 834 (1944). See, e.g.,\n section 16 of the Judiciary Act of 1789, 1 Stat. 82, Judicial Code Sec. 267, 28 U.S.C. Sec. 384, denying relief in equity where there is adequate remedy at law; section 5 of the Act of March 2, 1973, 1 Stat. 334, Judicial Code Sec. 265, 28 U.S.C. Sec. 379, prohibiting injunction of state judicial proceedings; Act of March 2, 1867, 14 Stat. 475, 26 U.S.C. Sec. 3653, prohibiting suits to enjoin collection or enforcement of federal taxes; the Johnson Act of May 14, 1934, 48 Stat. 775, 28 U.S.C. Sec. 41(1), restricting jurisdiction to enjoin orders of state bodies fixing utility rates; Act of Aug. 21, 1937, 50 Stat. 738, 28 U.S.C. Sec. 41(1), similarly restricting jurisdiction to enjoin collection or enforcement of state taxes; section 17 of the Act of June 18, 1910, 36 Stat. 557 and Sec. 3 of the Act of Aug. 24, 1937, 50 Stat. 752, 28 U.S.C. Secs. 380 and 380(a), requiring the convening of a three-judge court for the granting of temporary injunctions in certain cases and allowing a temporary restraining order by one judge only to prevent irreparable injury; the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. Secs. 101-15, regulating the issue of injunctions in labor disputes and prohibiting their issue \"contrary to the public policy\" declared in the Act.\n Id.\n \n \n 10\n At the time the Clayton Act was passed, a split in authority existed among the circuits regarding the availability of injunctive relief to a private party suing under the Sherman Act. Although the Sherman Act expressly conferred the power to initiate \"proceedings in equity\" for injunctive or other equitable relief only upon the government, the Sixth Circuit affirmed a case where the district court had granted a preliminary injunction to a private party pursuant to its inherent powers of equity. Through the injunction, the court had forbidden an acquiring corporation to vote the stock of its new acquisition, and then, after trial, had dissolved the injunction and dismissed the bill. See Bigelow v. Calumet & Hecla Mining Co., 155 F.2d 869 (W.D.Mich.1907), aff'd, 167 F. 704 (6th Cir.1909). The Second Circuit, however, held that injunctions were not available to private parties under the Sherman Act. See Greater New York Film Rental Co. v. Biograph Co., 203 Fed. 39 (2d Cir.1913) (by implication). These cases, and the question whether inherent powers of equity were withdrawn from the courts under the Sherman Act, were discussed in the committee hearings. See Senate Hearings at 629-31 (issue and cases); House Hearings at 485-87 (case), 963-64 (issue but not cases). In view of these discussions, it is noteworthy that no exclusion of inherent powers of equity, or of certain kinds of injunctive relief, was included in the Clayton Act\n \n \n 11\n The evolution of judicial powers of equity was a subject before congressional committee hearings on the Clayton Act and its unsuccessful precursors. See, e.g., Senate Hearings at 1091-95 (witness Samuel Gompers); 1130-1163\n \n \n 12\n See, e.g., 51 Cong.Rec. 9090 (daily ed. May 22, 1914) (remarks of Rep. Mitchell); at 9169 (daily ed. May 23, 1914) (remarks of Rep. Nelson); at 16326 (daily ed. Oct. 8, 1914) (remarks of Rep. Nelson); H.R. No. 627, 63d Cong., 2d Sess. 648, 652, 689-90 (remarks of witness Louis Brandeis); at 666 (Rep. Nelson) (1914) (hereinafter House Hearings)\n \n \n 13\n See, e.g., the discussions identified in note 10 supra; House Hearings at 263 (Rep. Floyd); at 273 (Rep. Nelson); 331 (Rep. McCoy); 51 Cong.Rec. at 15821-23 (Sept. 28, 1914) (Sen. Reed); at 15864 (Sept. 29, 1914) (Sen. Reed); at 15864-5 (Sept. 29, 1914) (Sen. Overman)\n \n \n 14\n As Arthur Corbin observed, a \"word appearing suddenly, in empty space and with no history, would express nothing at all. To be expressive of any meaning, all words must have a context and a history....\" 3 Corbin, Contracts 90 (1960)\n \n \n 15\n Injunctive relief had regularly been sought and awarded to private plaintiffs under state antitrust laws and in common law suits alleging restraint of trade and price fixing. See, e.g., Gibbs v. Consolidated Gas, 130 U.S. 396, 9 S.Ct. 553, 32 L.Ed. 979 (1889) (price fixing agreement)\n \n \n 16\n During the House hearings, a famous antitrust lawyer of the day, Louis Brandeis, suggested remolding the power to order a \"partition.\" Brandeis stated his belief that the courts already had this power--the power to order the division and sale of assets--but that it was doubted by some members of the judiciary, as evidenced by the American Tobacco opinion on remand, see 191 Fed. 371 (S.D.N.Y.1911), and was not utilized as broadly as it should. Brandeis proposed that Congress \"educate\" the courts and facilitate achievement of the antitrust goals by passing statutes specifically authorizing the use of this and other equitable powers in the antitrust context. See House Hearings at 652\n \n \n 17\n Other traditional equitable tools, specifically the injunctive power, were refashioned for the purpose of quelling labor strikes and boycotts. See generally F. Frankfurter & N. Greene, The Labor Injunction (1930)\n \n \n 18\n Evidently this perspective was shared by some officials in the Justice Department. See 51 Cong.Rec. 15864 (daily ed. Sept. 29, 1914) (\"The fundamental weakness in the enforcement of the antitrust act in previous administrations was the failure to insist upon a real dissolution of monopolies and combinations which the courts had adjudged unlawful\") (excerpt from Justice Dept. letter quoted by Sen. Reed)\n \n \n 19\n It appears that over the years the legal meaning of the concepts \"dissolution\" and \"divestiture\" has become somewhat more settled than in 1914, so much so that the Supreme Court has recently pronounced them to be a \"large degree interchangeable.\" United States v. du Pont & Co., 366 U.S. 316, at 330 n. 11, 81 S.Ct. 1243, at 1252 n. 11, 6 L.Ed.2d 318 (1961). In reviewing the Court's cases, we found that the term \"dissolution\" tended to be used when ordering a remedy for violations of Sec. 1 and Sec. 2 of the Sherman Act, but not for Clayton Act Sec. 7 violations. See, e.g., United States v. Reading Co., 253 U.S. 26, 40 S.Ct. 425, 64 L.Ed. 760 (1920) (dissolution); United States v. Lehigh Valley R.R., 254 U.S. 255, 41 S.Ct. 104, 65 L.Ed. 253 (1920) (same); United States v. Southern Pacific Co., 259 U.S. 214, 42 S.Ct. 496, 66 L.Ed. 907 (1922) (same). This was especially true for the older cases. \"Divestiture\" of some assets or interests was frequently ordered as a part of the remedy of dissolution, see, e.g., United States v. Crescent Amusement Co., 323 U.S. 173, 189, 65 S.Ct. 254, 262, 89 L.Ed. 160 (1944) (Sherman Act Secs. 1, 2); Schine Chain Theatres v. United States, 334 U.S. 110, 68 S.Ct. 947, 92 L.Ed. 1245 (1948) (same); International Boxing Club of New York v. United States, 358 U.S. 242, 79 S.Ct. 245, 3 L.Ed.2d 270 (1959) (same). These last three cases clarify that a distinction between the two terms was felt at one time. In Schine Theatres, the Court stated: \"The plan does not provide for the dissolution of the Schine circuit through the separation of the several affiliated corporations as was done in [Crescent Amusement]. It keeps the circuit intact in that sense but requires Schine to sell certain theatres.... Schine is to be divested of more than 50 of its theatres.\" 334 U.S. at 126-27, 68 S.Ct. at 956. And again, our view that a \"dissolution\" tends to be ordered where monopolies and restraints of trade are found, and has as one of its essential elements a major judicial reorganization of the corporation, is supported by International Boxing. There, the Court ordered dissolution of the combination, recognizing that new corporations would be formed to handle the business formerly transacted by the combination. The Court further noted that \"dissolution might well have the salutary effect of completely clearing new horizons that the trial judge was attempting to create in the boxing world, especially when effected in conjunction with the stock divestiture provision.\" 358 U.S. at 260-61, 79 S.Ct. at 255 (emphasis added)\n \n \n 20\n Section 16, 15 U.S.C. Sec. 26, was originally Sec. 13 of the proposed Clayton Act. Although most of the legislative history speaks in terms of Sec. 13, we shall avoid confusion by referring to the provision as Sec. 16\n \n \n 21\n While the fears and doubts of the minority are not an authoritative guide to the construction of legislation, see Schwegmann Brothers v. Calvert Distillers Corp., 341 U.S. 384, 394, 71 S.Ct. 745, 750, 95 L.Ed. 1035 (1951), their report did comprise the only specific explanation of the meaning of the private injunction provision that was readily accessible to the whole Congress. Moreover, the Supreme Court has consistently favored the \"presumably well considered and carefully prepared committee report\" over informal or casual statements made in the course of the legislative process. Id. at 396, 71 S.Ct. at 751 (Jackson, J. concurring); United States v. Auto Workers, 352 U.S. 567, 585, 77 S.Ct. 529, 538, 1 L.Ed.2d 563 (1957); United States v. Public Utilities Commission, 345 U.S. 295, 73 S.Ct. 706, 97 L.Ed. 1020 (1953)\n \n \n 22\n The Senate committee also sought to delete the exception for common carriers the House had provided in Sec. 16, although it ultimately failed to do so\n \n \n 23\n Representative Carlin then turned to clarify the relaxed standard for anticompetitive practices under the bill:\n The Sherman law in its operation is limited to three things: First, a contract or combination in the form of a trust or otherwise; second, a conspiracy in restraint of trade; third, an attempt to monopolize. There is nothing about competition in the Sherman law. There must be actual restraint of trade under the Sherman law to bring anyone under either its civil or criminal process.\n Under this bill there has to be only a lessening of competition. Competition may be lessened without restraint of trade. Competition may be lessened without attempt to monopolize. Competition may be lessened without conspiracy. It may be the natural effect of the putting together in close relationship through a holding company of two corporations that are natural competitors, or ought to be. Yet there would not be restraint. So instead of subtracting from the Sherman law, ... we have added to the Sherman law a most effective rule by which the actions of these combinations in the future may be determined....\n \n \n 51\n Cong.Rec. 9271 (daily ed. May 26, 1914)\n \n \n 24\n The author and prime proponent of the Senate amendment expressed his view of a dissolution:\n Wh[at] I propose [is] that we shall have a real decree, that there shall be a real burial, and that we shall sod down the grave upon the monster that was created in defiance of law, but that we shall at the same time preserve its parts and restore them to competition and activity....\n \n \n 51\n Cong.Rec. 15864 (Sept. 29, 1914) (remarks of Sen. Reed)\n \n \n 25\n Our belief that Representative Floyd's comments cannot be taken as stating a Judiciary Committee intention regarding the scope of Sec. 16 is supported by an exchange between Representative Floyd and a later witness. Floyd stated during the hearings on February 27, 1914, in reference to another proposed section \"the purpose of these provisions as tentatively drafted....\" The next witness that day then begins his comments by referring to that clarification and stating, \"but as that point has been disposed of by the committee, ... it is unnecessary to discuss that phase.\" Representative Floyd responded: \"I think it has not been disposed of, Mr. Harlan. There are 21 members of this Committee, and matters are not so easily disposed of. I simply made an explanation as one member of the subcommittee that had prepared the bill, as to my view of it. I would be very glad ... if you would state your views....\" House Hearings at 1049-53\n \n \n 26\n The Ninth Circuit explicitly holds this to be the House Judiciary Committee's view, and states that \"[w]hether Congress shared this intention is not subject to rigorous proof.\" I.T.T., 518 F.2d at 922. But the opinion treats its view of the Committee's understanding cum intention as that of Congress, viz., asking \"[w]hether by refusing to allow private 'dissolution' suits, Congress also refused to allow private 'divestiture' suits.\" Id\n \n \n 27\n The problems inherent in that approach to statutory construction have been elaborated by Professor Brest:\n [such an interpreter] must determine what the adopters intended future interpreters to make of their substantive views. Even if she can learn how the adopters intended contemporary interpreters to construe the [statute], she cannot assume they intended the same canons to apply one or two hundred years later. Perhaps they wanted to bind the future as closely as possible to their own notions. Perhaps they intended a particular provision to be interpreted with increasing breadth as time went on. Or--more likely than not--the adopters may have had no intentions at all concerning these matters.\n Brest, The Misconceived Quest for the Original Understanding, 60 B.U.L.Rev. at 220 (footnotes omitted). Although Professor Brest's comments were directed to constitutional interpretation, they are equally appropriate here. See Appalachian Coals, Inc. v. United States, 288 U.S. 344, 351, 359-60, 53 S.Ct. 471, 473-74, 77 L.Ed. 825 (1933) (\"as a charter of freedom, the [Sherman Act] has a generality and adaptability comparable to that found to be desirable in constitutional provisions\"); NBO Industries v. Brunswick Corp., 523 F.2d 262, 298 (3d Cir.1975) (antitrust laws are almost an \"economic constitution\" for this nation), rev'd on other grounds sub nom. Brunswick Corp. v. Pueblo Bowl-O-Mat, 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977).\n \n \n 28\n See also Leh v. General Petroleum Corp., 382 U.S. 54, 59, 86 S.Ct. 203, 207, 15 L.Ed.2d 134 (1965) (\"effect must be given to the broad terms of the statute itself ... read in the light of Congress' belief that private antitrust litigation is one of the surest weapons for effective enforcement of the antitrust laws\"); Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.) (L. Hand, J.) (\"it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning\"), aff'd, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945)\n \n \n ", "ocr": false, "opinion_id": 447837 } ]

[ "524 F.3d 1126" ]

[ { "author_str": "Kelly", "per_curiam": false, "type": "010combined", "page_count": 21, "download_url": "http://www.ca10.uscourts.gov/opinions/07/07-5103.pdf", "author_id": null, "opinion_text": "\n524 F.3d 1126 (2008)\nUNITED STATES of America, Plaintiff-Appellee,\nv.\nLeslie Schobe THOMPSON, also known as Grasshopper, Defendant-Appellant.\nNo. 07-5103.\nUnited States Court of Appeals, Tenth Circuit.\nMay 5, 2008.\n*1128 Leena Alam, Assistant United States Attorney (David E. O'Meilia, United States Attorney, Northern District of Oklahoma, on the brief), Tulsa, OK, for Plaintiff-Appellee.\nFred Lynn, Tulsa, OK, for Defendant-Appellant.\nBefore KELLY, ANDERSON, and TYMKOVICH, Circuit Judges.\nPAUL KELLY, JR., Circuit Judge.\nDefendant-Appellant Leslie Schobe Thompson was convicted by a jury of three counts of armed bank robbery in violation of 18 U.S.C. § 2113(a), (d) (counts 1, 3, 5), three counts of use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (counts 2, 4, 6), and one count of possession of a firearm after conviction of a felony in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), (e) (count 7). Mr. Thompson was sentenced to life in prison on counts 1 through 6, 235 months' imprisonment on count 7, and 5 years' supervised release. The sentences for counts 1, 3, 5, and 7 are to run concurrently; the sentences for counts 2, 4, and 6 are to run consecutively to each other and to any other term of imprisonment. On appeal, Mr. Thompson challenges his convictions, claiming his Fourth Amendment, Speedy Trial Act, and due process rights were violated in connection with his arrest and prosecution. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.\n\nBackground\nOn December 9, 2006, the Tulsa Police Department received a telephone call from a woman indicating that the person who robbed BancFirst in Tulsa on December 8 was a black male known as \"Grasshopper\" and was at her mother's house located at 4686 North Main Street. She informed the police that she had seen Grasshopper the night before at that residence with a handgun and that she had recognized his picture on television. She also stated that Grasshopper frequently wore dark glasses.\nPolice officers were immediately dispatched to 4686 North Main Street. The dispatch informed the police that Grasshopper was a black male who was approximately 5 feet, 6 inches tall and weighed 185 pounds. The dispatch did not indicate *1129 the existence of any emergency or exigent circumstance. Officers Meadors and Bowman arrived at 4686 North Main Street minutes later, without a search warrant or arrest warrant. Corporal Blair arrived shortly thereafter with a surveillance photograph of the suspect. Additional officers took positions around the house.\nOfficers Meadors and Bowman and Corporal Blair approached the front door and Officer Meadors knocked. Officer Meadors could hear the lock open and people moving around inside but it took a few minutes for anyone to open the door, which he found suspicious. Dianne Snell ultimately answered the door. Ms. Snell told Officer Meadors her name, acknowledged that the house was hers, and allowed the officers to enter. Officer Meadors informed Ms. Snell that he was looking for somebody named Grasshopper because he was a suspect in an armed bank robbery and asked her if Grasshopper was in the house. Ms. Snell indicated that he had been there earlier but that she was not certain whether he was still there. Officer Meadors asked for permission to search the house for Grasshopper and Ms. Snell granted permission for him to do so, placing no limitations on the search.\nOfficer Meadors entered the southwest bedroom of the residence and saw a man who did not match the picture of the suspect. Officer Meadors handcuffed him and placed him in the living room. Other officers found another man in the southeast bedroom, handcuffed him, and placed him in the living room as well.\nAfter the officers searched the first two bedrooms without finding Grasshopper, Officer Meadors approached the northwest bedroom, the door to which was closed but not locked. While outside that bedroom, Officer Meadors again asked Ms. Snell where Grasshopper was. She told him that if Grasshopper were in the house, he would likely be in the northwest bedroom. Ms. Snell never told Officer Meadors anything about whether Grasshopper was a boarder, and at the time of the search, Officer Meadors did not know that Grasshopper was renting the bedroom. Officer Meadors opened the door and entered the bedroom. He saw no one in the room and proceeded to open the closet door. Inside, he saw that someone was hiding in the closet because he saw a person's foot. He then ordered, at gunpoint, the person to exit the closet. The man who exited the closet identified himself as Leslie Thompson.\nAccording to Officer Meadors, Mr. Thompson exactly matched the surveillance photo brought by Corporal Blair. Officer Meadors placed Mr. Thompson under arrest, handcuffed him, searched him for weapons, and escorted him to the dining room. Once Mr. Thompson saw the other men in handcuffs, he asked Officer Meadors why they had been handcuffed. Officer Meadors explained that the police did not know who was involved in the robbery. Mr. Thompson then told Officer Meadors that no one else was involved.\nOfficer Meadors then asked Mr. Thomspon for permission to search the northwest bedroom. Mr. Thompson did not have his eyeglasses so Officer Meadors read a \"search waiver\"[1] to him. Mr. Thompson then signed the waiver in Officer Meadors' presence. A few minutes earlier (but after the officers had apprehended Mr. Thompson), Ms. Snell had signed a nearly identical waiver giving the *1130 police permission to search the entire house. In the northwest bedroom where Mr. Thompson had been hiding, officers found a loaded black pistol, dark sunglasses and a black hooded sweatshirt.\nAbout twenty minutes after he signed the search waiver, Mr. Thompson signed a Tulsa Police Rights Waiver form waiving his Miranda rights. Later, Detective Stephen St. Clair arrived at the scene and asked Ms. Snell about Mr. Thompson's relationship to the house. She told him that Mr. Thompson had been living at her home for the past month and had paid her $100 rent for the northwest bedroom. However, she later stated that the room was not exclusively Mr. Thompson's, as anyone could go in and out of the room and the door to the room did not have a lock on it.\nAfter being arrested, Mr. Thompson was transported to the Robbery Division Office, where he was re-read his Miranda rights from the waiver form he had earlier signed. Mr. Thompson agreed to make a statement and admitted to committing multiple armed bank robberies.\nThe grand jury returned the seven-count indictment on January 12, 2007. Mr. Thompson subsequently filed a motion to dismiss the indictment on the basis of a Speedy Trial Act violation. He argued that because he was arrested on December 9, 2006, the time between his arrest and indictment spanned 34 calendar days, exceeding the 30-day period provided in 18 U.S.C. § 3161(b). The district court denied the motion, concluding that the 30-day period expired on January 13, 2007. The court found that since the federal arrest warrant was issued on December 11, Mr. Thompson was taken into federal custody as of that date. The court also noted that when Mr. Thompson was arrested on December 9, even though no federal arrest warrant had been issued, there was a Kansas state arrest warrant outstanding for him and thus he would have been detained on that state warrant even if federal charges had not been forthcoming. Then, relying on 18 U.S.C. § 3161(h)(1)(F), the court excluded December 12, 13, and 14 from the 30-day period because the government had made an oral motion for detention on December 11 that was not resolved until December 14. The court alternatively held that even if Mr. Thompson had been placed in federal custody on December 9, the indictment would be still be timely under 18 U.S.C. § 3161(b) since there was no grand jury in session between December 5, 2006 and January 9, 2007.\nMr. Thompson also filed a motion to suppress, arguing his arrest and the subsequent search of his room violated the Fourth Amendment. He also argued that the incriminating statements he made at the time of the seizure and later at the police station were the fruit of the unlawful search and seizure. After a suppression hearing, the court denied that motion as well. The court found that Ms. Snell had actual and apparent authority to consent to the search and held that she voluntarily consented to the search of her house. The court also found that Ms. Snell had actual authority to consent to the search of the northwest bedroom based upon the fact that she and others were free to go in and out of that bedroom. In the alternative, the court found that the officers reasonably believed that Ms. Snell had authority to consent to their entry of the northwest bedroom because the officers did not learn that Mr. Thompson had paid rent for that bedroom until after they had entered the room and taken Mr. Thompson into custody.\nOnce the district court found the initial search and seizure was constitutional, it determined that the subsequent search of *1131 Mr. Thompson's room did not violate the Fourth Amendment because Mr. Thompson voluntarily signed the search waiver, even though he was under arrest when he gave his consent. For the same reason, the court found that Mr. Thompson's incriminating statements should not be excluded because they were not tainted by any prior illegal conduct. In addition, the court found that the statements Mr. Thompson made before he was read his Miranda rights were admissible because he volunteered them; they were not made in response to police interrogation.\nFinally, in a pre-trial conference, the government notified the district court that it intended to have Mr. Thompson wear the hooded sweatshirt and sunglasses recovered from the northwest bedroom at trial. The government sought to have Mr. Thompson don the hooded sweatshirt and glasses because it planned to show the jury videotapes of the charged robberies in which the perpetrator wears sunglasses and a hooded sweatshirt. Mr. Thompson objected and argued that the procedure would be impermissibly suggestive and would violate his due process rights. The court issued an order requiring Mr. Thompson to wear the hooded sweatshirt and glasses, concluding that doing so would not violate his Fifth Amendment right against self-incrimination or his due process rights. During Mr. Thompson's trial, at the government's request, the court ordered Mr. Thompson to wear the sunglasses in front of the jury. Mr. Thompson was not ordered to wear the sweatshirt.\nOn appeal, Mr. Thompson challenges each of the district court's three rulings, which we now address in turn.\n\nDiscussion\n\nI.\nWe review the district court's denial of a motion to dismiss for violation of the Speedy Trial Act for an abuse of discretion and review de novo the district court's compliance with the Act's legal requirements. See United States v. Abdush-Shakur, 465 F.3d 458, 461 (10th Cir. 2006). We accept the district court's factual findings unless they are clearly erroneous and, if the district court properly considers the statutory factors without making clearly erroneous factual findings, the \"district court's judgment of how opposing considerations balance should not lightly be disturbed.\" Id. (quotation omitted).\nThe Speedy Trial Act is designed to protect a criminal defendant's constitutional right to a speedy trial and serve the public interest in bringing prompt criminal proceedings. United States v. Apperson, 441 F.3d 1162, 1177-78 (10th Cir.2006). As part of that protection, it requires that an \"indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.\" 18 U.S.C. § 3161(b). On appeal, Mr. Thompson argues that because he was arrested on December 9, 2006 and not indicted until 34 days later on January 12, 2007, the indictment should have been dismissed. However, the district court found that there was no grand jury in session in the Northern District of Oklahoma between December 5, 2007 and January 9, 2007 and Mr. Thompson does not challenge this finding. Therefore, because there was no grand jury in session when the time to file the indictment would have otherwise expired, the period for filing the indictment extended an additional 30 days. See id. (\"If an individual has been charged with a felony in a district in which no grand jury has been in session during *1132 such thirty-day period, the period of time for filing of the indictment shall be extended an additional thirty days.\"). The indictment was filed well within that additional 30-day period and thus was timely.[2]\n\nII.\nIn reviewing the denial of a motion to suppress, we accept the district court's factual findings unless they are clearly erroneous and we view the evidence in the light most favorable to the government. United States v. Worthon, 520 F.3d 1173, 1178-79 (10th Cir.2008). However, we review de novo the ultimate determination of reasonableness under the Fourth Amendment. Id. \"The credibility of witnesses, the weight accorded to evidence, and the reasonable inferences drawn therefrom fall within the province of the district court.\" Id.\nThe Fourth Amendment protects \"[t]he right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures.\" U.S. Const. amend. IV. \"It is axiomatic that the `physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'\" Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (quoting United States v. U.S. District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972)). The principal protection against unnecessary intrusions into the home by police is the Fourth Amendment's warrant requirement. Id. Thus, warrantless searches and seizures inside the home are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). This protection extends to rented premises. See Chapman v. United States, 365 U.S. 610, 616-17, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961).\nHowever, the \"Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained.\" Georgia v. Randolph, 547 U.S. 103, 106, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) (citing Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974)). In other words, a third party who voluntarily consents to the search of commonly held property must have actual or apparent authority to do so. See Rodriguez, 497 U.S. at 188, 110 S.Ct. 2793.\nActual authority, which the government must prove by a preponderance of the evidence, United States v. McAlpine, 919 F.2d 1461, 1463 (10th Cir.1990), rests on \"mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.\" Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. 988. In United States v. Rith, we clarified that actual authority requires \"either (1) mutual use of the property by virtue of joint access, or (2) *1133 control for most purposes over it.\" 164 F.3d 1323, 1329 (10th Cir.1999). Apparent authority exists when officers reasonably, even if erroneously, believe that the person consenting to the search has the authority to do so. See Rodriguez, 497 U.S. at 186, 188-89, 110 S.Ct. 2793. We review the validity of consent to search de novo. See United States v. Andrus, 483 F.3d 711, 716, on reh'g, 499 F.3d 1162 (10th Cir. 2007).\nIn addition, the Fourth Amendment requires that consent be voluntary and \"not be coerced, by explicit or implicit means, by implied threat or covert force.\" Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Voluntariness is a factual finding that is determined under the totality of the circumstances. Id. at 227, 93 S.Ct. 2041. Thus, we review the district court's determination of voluntariness for clear error. See United States v. Davis, 197 F.3d 1048, 1050 (10th Cir.1999).\nOn appeal, Mr. Thompson argues that (1) Ms. Snell did not have actual or apparent authority to consent to the search of the northwest bedroom because he was a boarder in her home; (2) she did not consent to any search until she executed the search waiver, after he was arrested; (3) her consent was not voluntary; and (4) his incriminating statements and execution of the search waiver were tainted by the above resulting in his unlawful arrest. We address each argument in turn and find that each is without merit.\nAs an initial matter, there is no serious dispute that Ms. Snell had actual authority to consent to the search of the common areas of the residence, as she owned the residence and lived there. Our inquiry thus focuses on whether she had actual authority to consent to the search of the northwest bedroom and whether she in fact voluntarily did so before the police entered that room. Mr. Thompson argues that Ms. Snell had no authority to consent to the search of the northwest bedroom because Mr. Thompson had rented that room from her for $100. To be sure, the Fourth Amendment does not permit a landlord to consent to the search of an area leased exclusively to a tenant. Chapman, 365 U.S. at 616-17, 81 S.Ct. 776. But here, the facts the district court credited support the conclusion that Mr. Thompson did not have exclusive use of, or control over, the northwest bedroom. Detective St. Clair testified that Ms. Snell told him that the northwest bedroom was not exclusively Mr. Thompson's room, rather \"[i]t was a room she was allowing him to stay in until he got situated.\" See IV. R. at 41. She also told Detective St. Clair that the door to the bedroom did not lock and that she and others were free to go in and out of that bedroom. Id. Accordingly, Ms. Snell had \"mutual use of the [northwest bedroom] by virtue of joint access\" to it, Rith, 164 F.3d at 1329, and Mr. Thompson assumed the risk that Ms. Snell might permit it to be searched, see Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. 988. Therefore, Ms. Snell had actual authority to consent to the search.[3]\nFurther, Ms. Snell consented to the search before she executed the search waiver and before Officer Meadors entered the northwest bedroom and arrested Mr. Thompson. After Ms. Snell allowed the officers to enter the residence, the officers told her they were there looking for Grasshopper. She told them that Grasshopper had been there but that she was not sure if he was there at that moment. Officer *1134 Meadors then specifically asked for her permission to search the home for Grasshopper. She granted permission and placed no limitations on where the officers could search. See IV. R. at 16-17. When the officers did not find Mr. Thompson after searching two bedrooms, Officer Meadors again asked Ms. Snell where Grasshopper was. She specifically told Officer Meadors that if Grasshopper were in the house, he would be in the northwest bedroom. Id. at 34. Thus, she clearly consented to the search before Officer Meadors entered the northwest bedroom.\nWe also find that nothing in the record indicates that Ms. Snell's consent was involuntary. Mr. Thompson argues that Ms. Snell's consent was coerced given the number of officers present, the fact that the search request was made in the home, that the officers indicated that they were there to arrest Grasshopper, and that they did not tell her she could refuse. First, the record demonstrates that when Officer Meadors requested permission to search for Grasshopper, Ms. Snell was approached by three police officers. In general, \"the presence of more than one officer increases the coerciveness of an encounter,\" but that alone does not render consent per se involuntary. United States v. Iribe, 11 F.3d 1553, 1557 (10th Cir.1993) (internal quotation omitted) (finding that presence of five officers did not by itself render consent involuntary). Second, the fact that the police made their request inside Ms. Snell's home is of little moment as Ms. Snell voluntarily allowed the police to enter after they knocked on the door. Third, we reject Mr. Thompson's argument that Ms. Snell was coerced into consenting because the police indicated they were there to arrest Grasshopper. Nothing in the record demonstrates that the police indicated that they were there to arrest or question Ms. Snell, that they threatened or coerced her in any way, or that she was otherwise suspected of being involved in the bank robberies.[4] Finally, we reject Mr. Thompson's argument that Ms. Snell's consent was not voluntary because the police did not inform her of her right to refuse consent, as it is well established that \"knowledge of the right to refuse consent\" is not \"a necessary prerequisite to demonstrating a `voluntary' consent.\" Schneckloth, 412 U.S. at 232-33, 93 S.Ct. 2041. Rather, we need only look for evidence that her consent was coerced, and here we find none.\nBecause we have found no constitutional violation in connection with the events leading up to the arrest of Mr. Thompson, there is no predicate violation to invoke the derivative evidence doctrine. We therefore reject Mr. Thompson's argument that his consent to search and incriminating statements were the fruit of a poisonous tree. See Davis, 197 F.3d at 1052; United States v. Lewis, 24 F.3d 79, 82 (10th Cir.1994).\n\nIII.\nMr. Thompson's final challenge is that the in-court identification procedure that took place in front of the jury was unconstitutionally suggestive and thus violated his due process rights. As an initial matter, we note that although Mr. Thompson takes issue with the district court's pre-trial *1135 order requiring him to wear in front of the jury the black hooded sweatshirt and sunglasses found in the northwest bedroom, at trial the court ordered him to wear only the sunglasses. The prosecution requested this identification procedure so that the jury could compare the defendant wearing the sunglasses to videotapes obtained from the robberies that showed the perpetrator wearing sunglasses.\n\"We review de novo the constitutionality of identification procedures, but we review for clear error the factual basis for the district court's decision.\" United States v. Curtis, 344 F.3d 1057, 1062 (10th Cir.2003). \"We examine whether the in-court identification procedure was so suggestive that it denied defendant due process of law. We recognize that if there is a very substantial likelihood of irreparable misidentification under an in-court identification procedure, the district court should take the eyewitness credibility issue from the jury.\" Id. at 1062-63 (quotation and brackets omitted). Accordingly, when suggestive identification procedures are used at trial, \"reliability is the linchpin for determining admissibility. Even an identification at trial under circumstances that are tantamount to a showup is not per se inadmissible, but rather depends upon the totality of the circumstances.\" Id. at 1064.\nIn arguing that the in-court identification procedure used here was unconstitutionally suggestive, Mr. Thompson primarily relies on authorities concerning pre-trial identification procedures. However, the identification that took place here was in court and by the jury. Therefore, the authorities relied upon by Mr. Thompson are not controlling. Rather, in conducting our review, we rely on our decisions in Curtis, 344 F.3d 1057, and United States v. Robertson, 19 F.3d 1318 (10th Cir.1994), both of which involved in-court identifications by the jury. The distinction between pre-trial and in-court identifications is not unimportant. Although \"there can be little doubt that the initial in-court identification is suggestive,\" we have previously observed that \"[w]hen the initial identification is in court, there are different considerations. The jury can observe the witness during the identification process and is able to evaluate the reliability of the initial identification.\" Robertson, 19 F.3d at 1323 (quotation omitted).\nIn Curtis, we concluded that the district court's order that required the defendant to show his gapped teeth to the jury was reasonable in light of the corroborative testimony by two of the victims that the perpetrator had gapped teeth. 344 F.3d at 1063. The district court allowed the in-court identification procedure only after the testimony of the two corroborating witnesses and gave a cautionary instruction to the jury. See id. We found nothing unduly suggestive about this procedure because it simply allowed the jury to make its own comparison between the description given by the two corroborating witnesses and the defendant's actual appearance. See id.\nSimilarly, in Robertson, we upheld the district court's decision to force the defendant to don, in front of an eyewitness and the jury, the cap and dark glasses worn by the bank robber in that case. 19 F.3d at 1322-24. Again, we did not find that procedure to be unduly suggestive or to create a substantial likelihood of misidentification because the district court \"included a jury instruction which emphasized that the jury should carefully scrutinize an in-court identification for its credibility and reliability,\" and \"there was substantial other evidence of defendant's guilt presented at trial.\" Id. at 1323.\nIn light of our precedent, we conclude that the in-court identification procedure used in the instant case was not unconstitutionally *1136 suggestive and did not create a substantial likelihood of misidentification. Like the procedures used in Curtis and Robertson, the procedure used here simply allowed the jury to make its own comparison between the appearance of the perpetrator in the videotapes and the defendant's actual appearance. In addition, the government submitted other evidence showing Mr. Thompson's guilt, including the videotape of his confession. Finally, the district court used its discretion to lessen the suggestiveness of the procedure. For example, the court allowed Mr. Thompson to use an in-court line-up or show the jury pictures of other black men of similar stature donning the same apparel. Mr. Thompson speculates that it was unrealistic to find other men of similar appearance willing to participate in such a procedure so close to trial, but he offers no evidence that he even attempted to do so. The court also gave a cautionary instruction to the jury.[5] Thus, in light of the evidence of Mr. Thompson's guilt and the court's efforts to lessen the suggestiveness of the in-court identification procedure, we find that the procedure used was not unduly suggestive and did not violate Mr. Thompson's due process rights.\nMr. Thompson also complains about being the only black person in the courtroom during the trial. Although we recognize that it is suggestive to identify Mr. Thompson as the robber when the robber was a black man and Mr. Thompson was the only black man in the courtroom, it is not unconstitutionally suggestive. See Curtis, 344 F.3d at 1063; see also United States v. Davis, 103 F.3d 660, 670 (8th Cir.1996); Romero v. Tansy, 46 F.3d 1024, 1031-32 (10th Cir.1995). Further, although the district court offered Mr. Thompson the opportunity to use an in-court line-up or photos to lessen the suggestiveness of the in-court identification, he was not constitutionally entitled to such methods and, in any event, did not take advantage of them. See Curtis, 344 F.3d at 1063-64 (citing United States v. Domina, 784 F.2d 1361, 1369 (9th Cir.1986)). Thus, the fact that Mr. Thompson was the only black man in the courtroom does not change our conclusion that, under the totality of the circumstances and in light of the evidence of Mr. Thompson's guilt, which included his confession, the identification procedure was sufficiently reliable and not unconstitutionally suggestive.\nAFFIRMED.\nNOTES\n[1] The \"search waiver\" recites that the defendant has been informed of the right to have a search conducted with a warrant and the right to refuse consent to search, and authorizes the police to search. I.R. Doc. 37, Ex. E.\n[2] The district court alternatively held that the indictment was timely because Mr. Thompson was taken into federal custody on December 11 and the 30-day period, after excluding three days due to a pending detention motion filed by the government, expired on January 13, 2007. Because we resolve this issue as above, we need not consider this additional ground.\n[3] Because we have concluded that Ms. Snell had actual authority to consent to the search, we need not address whether she had apparent authority to do so.\n[4] We also note that Mr. Thompson's reliance on Bumper v. North Carolina for the proposition that Ms. Snell's acquiescence to the search was nothing \"more than acquiescence to a claim of lawful authority\" is misplaced. 391 U.S. 543, 549, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Bumper held that there can be no lawful consent when \"that `consent' has been given only after the official conducting the search has asserted that he possesses a warrant.\" Id. at 548, 88 S.Ct. 1788. No officer made any such assertion here.\n[5] The instruction stated:\n\nThe government must prove, beyond a reasonable doubt, that the offenses charged in this case were actually committed and that it was defendant who committed them. Thus, the identification of defendant as the person who committed the offenses charged is a necessary and important part of the government's case.\nMr. Thompson was asked to appear before you wearing sunglasses. You are instructed that the fact that defendant donned such apparel in court is not evidence that defendant has committed any of the charged crimes. The sole purpose of requiring defendant to appear before you wearing sunglasses was for identification purposes.\nYou are instructed that, during your deliberations, you are to examine all of the evidence in this case, including but not limited to identification evidence. If, after examining all of the testimony and evidence in this case, you have a reasonable doubt as to the identity of defendant as the person who committed any of the offenses charged, you must find the defendant not guilty of that offense or offenses.\nI.R. Doc. 104 at 17-18.\n\n", "ocr": false, "opinion_id": 170672 } ]

[ "775 F. Supp. 2d 525" ]

[ { "author_str": "Dearie", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 841, "opinion_text": "\n775 F. Supp. 2d 525 (2011)\nSTMICROELECTRONICS, Plaintiff,\nv.\nCREDIT SUISSE GROUP, Defendant.\nNo. 08 CV 3201(RJD)(RML).\nUnited States District Court, E.D. New York.\nMarch 31, 2011.\n*530 Andrew Weissmann, Elisabeth Genn, Danielle F. Tarantolo, Jenner & Block, New York, NY, for Plaintiff.\nAmanda Joan Gallagher, Linklaters, New York, NY, for Defendant.\n\nMEMORANDUM & ORDER\nDEARIE, Chief Judge.\nPlaintiff STMicroelectronics (\"ST\") seeks to hold defendant Credit Suisse Group (\"CSG\") liable under Securities Exchange Act Section 20(a) as a \"controlling person\" of non-party subsidiary Credit Suisse Securities (\"CSS\"), for the intentional breach of investment obligations by *531 the pair of Credit Suisse brokers in charge of ST's account. ST brings related claims for conversion, unjust enrichment and aiding and abetting common law fraud. Additionally, ST moves to amend its complaint to bolster allegations of wrongdoing by Credit Suisse entities and their employees, and to add a claim against CSG for primary liability under Exchange Act Section 10(b) and Rule 10b-5. ST further requests a modification of the discovery stay imposed by the Private Securities Litigation Reform Act (\"PSLRA\") to allow for the production of identified categories of documents.\nDefendant CSG moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, and likewise argues that amendment would be futile. In the alternative, CSG asks the Court to dismiss the action in the absence of subsidiary CSS or to stay this action pending the appeal by CSS of an arbitration award confirmed in ST's favor on March 19, 2010, by the Honorable Deborah Batts of the Southern District of New York. The Court grants ST's motion to amend its complaint, allows ST's claims under Exchange Act Sections 10(b) and 20(a) to proceed, dismisses ST's state law claims with the exception of the conversion claim and denies as moot ST's request to modify the PSLRA stay.\n\nI. Background.\n\nThe following facts are contained in the plaintiff's Amended Complaint (\"AC\") and are assumed to be true. Given the prior criminal prosecution of the individual brokers involved, many of the facts regarding their activities are beyond dispute.\n\nA. The parties.\n\nPlaintiff ST, a major producer of semiconductors, is a Netherlands corporation with headquarters in Switzerland. ST's shares are publicly traded on the New York Stock Exchange and other markets. Defendant CSG is a multi-national banking institution with offices around the globe, including the New York headquarters of wholly-owned subsidiary CSS. CSG is registered as a foreign issuer with the Securities and Exchange Commission (\"SEC\").\n\nB. ST's investment agreement with CSS.\n\nIn April 2006, two directors in Credit Suisse's Private Banking Division, Julian Tzolov and Eric Butler, approached ST with the specific offer of investing in auction-rate securities backed by federally guaranteed student loans (\"SLARS\"). On several occasions, Tzolov and Butler touted the SLARS as being virtually risk-free and highly liquid.[1] Based on these representations and given \"ST's corporate treasury policies, which did not allow investments in structured or speculative securities,\" (AC ¶ 35), ST opened an account with CSS for the express purpose of investing exclusively in SLARS, with the limited exception of investing in overnight commercial paper to act as a bridge between auctions. ST made these restrictions clear to Tzolov and Butler, who confirmed their understanding. During their presentations to ST, moreover, Tzolov and Butler had not referenced *532 any other securities. In May 2006, ST wired an initial $200 million into the newly opened account. By August 2007, ST had funded the account with over $450 million.\n\nC. CSS breaches the investment agreement.\n\nAlthough ST's funds were to be invested solely in SLARS, Tzolov, Butler and their assistants bought and sold other securities without ST's authorization and contrary to ST's investment criteria. These securities included, for example, auction-rate securities that were not investment grade and collateralized debt obligations (\"CDOs\") backed by subprime mortgages. The brokers, however, \"repeatedly sent email messages to ST stating falsely that ST's portfolio consisted entirely of student loan securities.\" (Id. ¶ 38.) In trade confirmations sent via email, Butler and Tzolov changed the names of non-authorized securities—by deleting words such as \"CDO\" and adding words like \"funding\" or \"student loan\"—to lead ST to believe that these securities were SLARS.[2] Although Tzolov and Butler \"confirmed to ST in writing\" that additional investments would \"be invested in the 28-day Aaa/AAA rated student loan issues,\" (id. ¶ 42), they did not provide ST with a private placement prospectus containing a description and risk profile of any \"of the 28 different issues of non-student loan securities in which they invested ST's money between May 2006 and August 2007,\" (id. ¶ 44).\nBy November 2006, non-conforming securities comprised approximately 37% of ST's account holdings. By February 2007, the figure reached 100%, and CSS \"did not place a single conforming security in ST's account\" from that point forward. (Id. ¶ 68.)\n\nD. ST discovers the fraud.\n\nIn July 2007, ST observed that $21 million of its funds had been invested in a security with a credit rating below the SLARS' normal Aaa/AAA rating. ST objected in writing, telling Tzolov and Butler to \"stick to the mandate to buy only\" SLARS. (Id. ¶ 45.) The brokers responded that the $21 million would be promptly reinvested in SLARS, but they failed to execute on that promise and made further unauthorized investments the \"very next day.\" (Id. ¶ 46.)\nIn August 2007, when the market for auction-rate securities was liquid, ST instructed Tzolov and Butler to liquidate $200 million of the $476 million in ST's account and not to make new purchases for the account. The brokers ignored these instructions and made a non-authorized purchase the following day. ST again objected in writing, after which the managing director of Credit Suisse's Private Banking Division in New York \"reassured ST that it had high-quality investments in its account and that ST had nothing to worry about.\"[3] (Id. ¶ 50.)\nAfter demanding to no avail that CSS immediately liquidate any non-conforming holdings, in September 2007, ST reported the problem to CSG management in Switzerland, who admitted to ST that the \"directors and brokers who handled ST's account violated ST's mandate to buy only\" SLARS. (Id. ¶ 53.) Since that time, however, the market for auction-rate securities *533 has collapsed and ST has been unable to withdraw any funds from its account.[4] These events allegedly have forced ST to arrange costly alternative financing while recording impairments of over $300 million due to the illiquidity and degraded ratings of the securities within its account.\n\nE. CSG's alleged role in the fraud.\n\nIn the Amended Complaint, ST alleges that parent company CSG either knew about or ignored warning signals of the fraud perpetrated by CSS. ST alleges, in somewhat hazy fashion, that a supervisor reviewed doctored emails sent by Tzolov and Butler and that the same (or another) supervisor repeatedly caught Tzolov and Butler using unapproved marketing materials. In late 2006, CSG recognized that subprime CDOs and auction-rate securities, the types of securities being placed in ST's account, could be unsafe investments. To quote CEO Bradley Dugan, \"`all along [CSG] had a clear view that this was a market that was going to have difficulty,'\" a concern allegedly expressed by high-level CSG executives as early as 2005. (Id. ¶¶ 67, 76.) Due to this concern, Credit Suisse allegedly \"had an intentional strategy of reducing its exposure\" to these holdings, which resulted in the press lauding CSG for weathering the credit crisis better than its competitors. (Id. ¶ 67.) During this same period, CSS \"was selling risky and unsuitable [auction-rate securities] through its Corporate Cash Management Group, whose customers typically require extremely low-risk, highly liquid investments that can be treated as cash equivalents.\" (Id. ¶ 70.) In 2008, moreover, after writing down $2.65 billion due to unrelated misconduct by brokers involved with CDOs and asset-backed securities, CSG publicly conceded the ineffectiveness of its internal controls.\nIn 2007, details regarding CSG's knowledge of the fraud began to emerge. In October 2007, The Wall Street Journal published a story in which an attorney for Butler and Tzolov admitted that at least one customer had received a \"misleading email.\" (Id. ¶ 60.) Credit Suisse publicly minimized the scope of the alleged misconduct as relating to a \"`limited number of clients'\" with whom Credit Suisse was in \"`active discussions.'\" (Id.) A month earlier, however, after ST informed CSG management about the unauthorized trading, CSG's general counsel had allegedly \"falsely stated that ST was the only victim.\" (Id. ¶ 53.) In July 2008, The Wall Street Journal published another story in which Credit Suisse admitted that it had \"`detected prohibited activity'\" by Butler and Tzolov nearly a year earlier and \"`immediately suspended'\" them for \"`violat[ing] their obligations'\" to Credit Suisse and to clients. (Id. ¶ 82.)\nAdditionally, ST alleges that parent company CSG had a motive to ignore signals that Credit Suisse brokers may have been defrauding customers like ST. Credit Suisse allegedly \"benefited from the substantially higher fees\" earned on the nonconforming securities by capturing the excess return for itself while shifting the increased risk to consumers. (Id. ¶¶ 63, 70.) For some of these issues, Credit Suisse entities earned additional fees as collateral manager or for making the initial placement on the underwriter's behalf. CSG also allegedly created the incentive structure which led Butler and Tzolov to elevate short-term profits over clients' long-term goals.[5]\n*534 Finally, ST alleges that CSG, through its officers, exercised authority over Butler and Tzolov and conducted negotiations arising from the brokers' misconduct. For instance, in late 2007, the CEO of CSG's Private Banking Division traveled to New York to discuss the brokers and the accounts they managed. At around that time, CSG met with ST in Europe on multiple occasions regarding how to deal with ST's account. After negotiating with state regulators, CSG allegedly authorized the repurchase by Credit Suisse of securities held by individual and institutional investors, but not ST. And it allegedly was CSG, rather than CSS, that years earlier had announced Butler and Tzolov's promotions.\n\nF. The arbitration, criminal and SEC proceedings.\n\nIn February 2008, ST commenced an arbitration against CSS with the Financial Industry Regulatory Authority (\"FINRA\"). In the FINRA arbitration, ST asserted claims under Exchange Act Section 10(b) and Rule 1 Ob-5, as well as for common law fraud, misrepresentation, fraudulent concealment, breach of contract, breach of fiduciary duty, unjust enrichment, unsuitability, unauthorized transactions and failure to supervise. See Award, FINRA Dispute Resolution, Case No. 08-00512, http://finraawardsonline. finra.org/turing.aspx?doc=41723. While the arbitration was pending, ST filed its initial complaint with this Court in August 2008.\nIn February 2009, on the strength of \"a record replete with evidence of Credit Suisse's fraud, and devoid of any impropriety on behalf of the arbitrators,\" the FINRA panel unanimously awarded ST over $406 million plus post-award interest exceeding $50,000 per day. (3/19/10 Order, 09 CV 1388(DAB), Dkt. # 21, at 8.) The award, in the nature of rescission, requires CSS \"immediately\" to pay ST in exchange for ST's transferring ownership of the securities in its account back to CSS. (Id. at 4.) In March 2010, Judge Batts of the Southern District of New York confirmed the award. In later rejecting CSS's motion to alter the judgment, Judge Batts expressed that CSS had exhibited \"remarkable gall\" by requesting credit for funds ST had received from a third party, \"particularly where Credit Suisse has yet to satisfy even a sou of the hundreds of millions it owes ST under the Award.\" (8/25/10 Order, 09 CV 1388(DAB), Dkt. # 31, at 5.) After posting a sizeable bond, CSS filed a timely notice of appeal. The Second Circuit heard oral argument in the case on March 28, 2011; a decision is pending.\nIn August 2009, after a trial before the Honorable Jack B. Weinstein, a jury convicted Butler of three counts of securities fraud. Judge Weinstein sentenced Butler to concurrent five-year prison terms and imposed a $6 million fine. See United States v. Butler, 264 F.R.D. 37 (E.D.N.Y. 2010). According to Judge Weinstein, Butler's \"trial laid bare the pernicious and pervasive culture of corruption in the financial services industry.\" Id. at 37. Judge Weinstein concluded that Butler \"disregarded his responsibility, to the financial well-being of his clients for the sake of his own short-term financial gain, in the form of commissions he earned on fraudulent sales.\" Id. at 39-40. While faulting inattentive purchasers, among others, Judge Weinstein specifically noted \"a failure by Credit Suisse, Butler's employer,... to adequately supervise [its] own brokers and traders.\" Id. at 40.\nTzolov, who fled prosecution and was apprehended in Spain, pleaded guilty and testified at Butler's trial. Tzolov's sentencing is scheduled for April of this year.\nIn September 2008, moreover, the SEC commenced a successful civil enforcement *535 action against both defendants, who are now permanently enjoined from violating Exchange Act Sections 10(b) and 17(a). See SEC v. Tzolov, 08 CV 7699 (S.D.N.Y.). In June 2010, Tzolov consented to judgment without admitting liability. In January 2011, the court granted the SEC's motion for summary judgment against Butler, who has since appealed to the Second Circuit.\n\nII. Claims against CSG.\n\nThe Court assesses the merit of ST's proposed Amended Complaint by the familiar Rule 12(b)(6) standard. See Lucente v. IBM Corp., 310 F.3d 243, 258 (2d Cir.2002) (\"An amendment to a pleading is futile if the proposed claim could not withstand a motion to dismiss....\"). The Court must \"constru[e] the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor.\" Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). \"For purposes of this rule, `the complaint is deemed to include any written instrument attached to it as an exhibit, or any statements or documents incorporated in it by reference.'\"[6]Id. at 152 (quoting Int'l Audiotext Network, Inc. v. AT & T Co., 62 F.3d 69, 72 (2d Cir.1995)).\n\nA. ST has sufficiently pled a Section 20(a) claim.\n\nAs the parties acknowledge, ST's successful arbitration against CSS does not bar a claim for controlling person liability against CSG. See Boguslavsky v. Kaplan, 159 F.3d 715, 720 (2d Cir.1998). Exchange Act Section 20(a) provides that \"[e]very person who, directly or indirectly, controls any person liable\" for a primary Section 10(b) violation \"shall also be liable jointly and severally with and to the same extent as such controlled person.\" 15 U.S.C. § 78t(a). \"In order to establish a prima facie case of liability under § 20(a), a plaintiff must show: (1) a primary violation by a controlled person; (2) control of the primary violator by the defendant; and (3) `that the controlling person was in some meaningful sense a culpable participant' in the primary violation.\" Boguslavsky, 159 F.3d at 720 (quoting SEC v. First Jersey Sec., Inc., 101 F.3d 1450, 1472 (2d Cir.1996)). Controlling person liability \"is a separate inquiry from that of primary liability and provides an alternative basis of culpability.\" Suez Equity Investors, L.P. v. Toronto-Dominion Bank, 250 F.3d 87, 101 (2d Cir.2001).\n\ni. Primary violation.\nGiven the FINRA award and earlier criminal proceedings, CSG no longer disputes that ST has adequately alleged a primary Section 10(b) violation by CSS. Nor could it; any argument by CSG denying the existence of a well pleaded underlying violation would be quickly rejected. As discussed below, liability hinges on a \"determination of [CSG]'s control of the primary violator as well as [CSG]'s particular culpability.\" Boguslavsky, 159 F.3d at 720. As the Second Circuit has dictated, however, \"possible recovery under § 20(a) cannot exceed the damages assessed by the arbitrators against the primary violators.\" Id. at 721.\n\nii. Control over primary violator.\nST has properly alleged CSG's control over CSS and, by extension, Butler and Tzolov. To allege control, as with any other element, a \"plaintiff[ ] must plead only sufficient factual matter, accepted as *536 true, to state a claim to relief that is plausible on its face.\" Cornwell v. Credit Suisse Grp., 689 F. Supp. 2d 629, 639 (S.D.N.Y.2010) (internal quotation marks omitted). \"Control over a primary violator may be established by showing that the defendant possessed `the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.'\" First Jersey, 101 F.3d at 1472-73 (quoting 17 C.F.R. § 240.12b-2). \"For purposes of Section 20(a) liability, `actual control requires only the ability to direct the actions of the controlled person, and not the active exercise thereof.'\" Dietrich v. Bauer, 126 F. Supp. 2d 759, 765 (S.D.N.Y.2001) (quoting Sanders v. Gardner, 7 F. Supp. 2d 151, 163 (E.D.N.Y.1998)). \"In cases involving parent-subsidiary relationships, courts have regularly based findings of control person liability on allegations of substantial stock ownership and common principals.\" Kalin v. Xanboo, Inc., 526 F. Supp. 2d 392, 406 (S.D.N.Y.2007).\nCSG did not dispute the control element in its initial opposition brief. In opposing ST's motion to amend, CSG argues in conclusory fashion that it cannot control employees of CSS because the latter cannot delegate control over its individual brokers. In support of this argument, CSG cites to a single district court case, AXA Distributors, LLC v. Bullard, 2008 WL 5411940 (M.D.Ala.2008), holding that an annuity distributor was not \"associated\" under FINRA regulations with the individual employees of an unrelated retail agent with whom the distributor contracted. This case does not undermine CSG's alleged control over subsidiary CSS within the meaning of Section 20(a).\nHere, ST \"has sufficiently pled a mix of substantial stock ownership, shared officers and principals, and at least some direct involvement\" by CSG in the underlying events to survive a motion to dismiss. Kalin, 526 F.Supp.2d at 406. ST asserts that CSS is a wholly-owned subsidiary of CSG and that the entities' executives overlap significantly at the highest levels. Indeed, ST spends a considerable portion of its motion papers arguing that CSG and CSS operate internally and market themselves externally as a single entity, to the point where the managing director of Credit Suisse's Private Banking Division, who supervised Butler and Tzolov, allegedly testified during the arbitration that he was unsure for which entity he ultimately worked. (See AC ¶ 57.) When Butler and Tzolov were promoted, ST asserts that it was CSG, rather than CSS, that announced the promotions. Perhaps most importantly, ST alleges that CSG \"retained ultimate authority to decide how to respond to the complaints of ST and other\" clients regarding the fraud and in fact negotiated settlements with public entities. (Id. ¶¶ 58-59.) These allegations pass the threshold required to indicate control.\n\niii. Culpable participation.\nThe text of Section 20(a) provides an exception from liability where \"the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation.\" 15 U.S.C. § 78t(a). From this language arise the dual notions of culpability and participation in the underlying fraud. The parties diverge, however, over whether \"culpable participation\" is an element which a plaintiff must plead to state a claim for controlling person liability.\nAs this Court previously has noted, the Second Circuit has yet to decide the issue. See In re CINAR Corp. Sec. Litig., 186 F. Supp. 2d 279, 309 (E.D.N.Y.2002). Since then, other district courts have exhaustively catalogued the relevant authority and concluded that, whoever bears the burden of proving or negating \"culpable participation,\" *537 the statute mandates no such allegations at the pleading stage. See, e.g., In re Parmalat Sec. Litig., 375 F. Supp. 2d 278, 309 (S.D.N.Y.2005) (\"[P]laintiffs state a legally sufficient claim under this statute if they plead (1) a primary violation by a controlled person and (2) control of the primary violator by the defendant.\"); In re WorldCom, Inc. Sec. Litig., 294 F. Supp. 2d 392, 415 (S.D.N.Y.2003) (\"[I]t appears that a plaintiff must plead only the existence of a primary violation by a controlled person and the direct or indirect control of the primary violator by the defendant in order to state a claim under Section 20(a).\").\nThe Court agrees with this approach, which the Second Circuit has endorsed in the broker/dealer context. In cases in which a salesperson completes unauthorized \"transactions through the employing brokerage house and the brokerage house receives a commission on the transactions, the burden of proving good faith is shifted to the brokerage house.\" Marbury Mgmt., Inc. v. Kohn, 629 F.2d 705, 716 (2d Cir.1980). To avoid liability, the employer must \"show at least that it has not been negligent in supervision and that it has maintained and enforced a reasonable and proper system of supervision and internal control over sales personnel.\" Id. ST having sufficient pled a primary Section 10(b) violation and CSG's control over CSS, the burden shifts to CSG to prove the adequacy of its internal controls.\nCSG argues that Kohn is irrelevant because ST's Section 20(a) claim is aimed not at the brokers' direct employer, but rather the employer's parent company. The fact that CSG may be a corporate level removed from Butler and Tzolov, however, does not necessarily alter the result. See id. at 714 (\"[T]he controlling person provisions were intended to expand... the scope of liability under the securities laws.\"). ST alleges that CSG incorporates CSS's financial results directly into its own, meaning that any commissions earned by CSS on fraudulent transactions inure ultimately to CSG's benefit. This burden-shifting rule, moreover, has an outer limit, and will not apply where the relationship between an organizational defendant and the individual brokers is so attenuated as to break the chain of control required by Section 20(a). See Moss v. Morgan Stanley Inc., 553 F. Supp. 1347, 1350 (S.D.N.Y.1983) (refusing to apply Kohn standard where employee who leaked inside information was \"operating outside of the scope of his employment,\" thus providing \"no relationship between the parties to give Morgan Stanley control... with respect to the acts in question\").\nEven were ST required to plead CSG's culpable participation in the underlying fraud, ST has adequately done so. Opinions following Kohn have held that \"the failure to supervise satisfies the culpable participation element to establish liability under Section 20(a).\" CompuDyne Corp. v. Shane, 453 F. Supp. 2d 807, 830 (S.D.N.Y.2006); see also First Jersey, 101 F.3d at 1473 (\"To meet the burden of establishing good faith, the controlling person must prove that he exercised due care in his supervision of the violator's activities....\"); Ruiz v. Charles Schwab & Co., Inc., 736 F. Supp. 461, 464 (S.D.N.Y.1990) (\"[T]he failure of the controlling person to diligently enforce a proper system of internal supervision may be sufficient for liability.\").\nContrary to CSG's contention, ST's allegations of deficient oversight are not repackaged control allegations. Rather, ST alleges \"particularized facts of the controlling person's conscious misbehavior or recklessness.\" Lapin v. Goldman Sachs Grp., Inc., 506 F. Supp. 2d 221, 246 (S.D.N.Y.2006). ST paints a picture showing a reckless failure to supervise. CSG allegedly created the incentive structure *538 that motivated brokers like Butler and Tzolov to inflate their own short-term profits at their clients' long-term expense, which allowed Credit Suisse entities and brokers to rake in substantial commissions on the unauthorized sales of risky auction-rate securities and CDOs to unsuitable customers, with some transactions bringing additional fees to Credit Suisse as collateral manager or placement agent. All the while, according to the Amended Complaint, CSG limited its own exposure to these same securities and privately questioned their value. ST alleges that, upon learning of the fraud in the middle of 2007, CSG delayed notifying clients or regulatory authorities to continue collecting fees in the auction-rate securities market, to obscure the true extent of losses and to maintain its reputation for relatively sound risk management. Had the supervisors who allegedly caught Butler and Tzolov using unauthorized promotional materials bothered to verify the numbers within, they would have discovered, as Tzolov has since testified, blatant fabrications.\nIndeed, the epithets CSG lobs at ST for failing to monitor its own investments— i.e., \"shocking,\" \"cavalier\" and \"irresponsible\" (Opp. at 4)—more aptly describe CSG's alleged failure to prevent or detect the flagrant, calculated and sustained misconduct of brokers within a major global office. In early 2008, after writing down billions of dollars due to a separate intentional fraud by Credit Suisse brokers, CSG publicly stated that its internal controls \"`were not effective,'\" and at least one major ratings agency agreed. (AC ¶ 77.) These allegations, taken together, raise the plausible inference that CSG did not \"act[ ]in good faith\" and that it \"directly or indirectly induce[d] the act or acts constituting the [primary] violation.\" 15 U.S.C. § 78t(a). Thus, irrespective of whether culpable participation is required at the pleading stage, ST is \"entitled to offer evidence to support\" its control person claim. Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995).\n\nB. ST has sufficiently pled a Section 10(b) claim.\n\nIn the Amended Complaint, ST asserts that CSG committed the fraud and, therefore, is primarily liable under Section 10(b) and Rule 10b-5. Citing to the Second Circuit's holding in Boguslavsky, CSG responds that because the FINRA panel has already determined the amount of damages caused by Butler and Tzolov's primary violations, ST is collaterally estopped from asserting a Section 10(b) claim against CSG. Such a reading of Boguslavsky is misguided.\nThe plaintiff in Boguslavsky commenced an arbitration proceeding with FINRA's predecessor, the National Association of Securities Dealers (\"NASD\"), alleging violations of Section 10(b) and Rule 10b-5 for material omissions in connection with the purchase of securities from a broker/dealer's inventory. Among the named defendants were a law firm and lawyer who acted as voting trustee for all of the broker/dealer's outstanding shares. The law firm \"refused to submit to the NASD panel's jurisdiction, so it was not a party to the arbitration.\" Id. at 718. The plaintiff then filed Section 10(b) claims, along with claims for \"control person\" liability under Exchange Act Section. 20(a), against the lawyer and law firm in the Southern District of New York. After the NASD panel issued an award in the plaintiff's favor, the District Court dismissed the subsequently filed lawsuit.\nThe Second Circuit agreed that to the extent the plaintiff \"sought to relitigate the issue of damages for violations of Rule[ ] 10b-5,\" collateral estoppel barred the plaintiff's claim. Id. at 720. The plaintiff's \"claim that the defendants were liable as controlling persons under § 20(a) was *539 not collaterally estopped,\" however, as that claim involved issues which \"could not have been resolved in the NASD proceeding.\" Id. at 721. Congruent with its holding regarding the Section 10(b) claim, the Second Circuit concluded that recovery under Section 20(a) could not \"exceed the damages assessed by the arbitrators\" and limited the plaintiff's \"recovery to the unrecovered portion of the arbitration award.\" Id. at 721.\nAs the parties recognize, Boguslavsky controls. Under these circumstances, the fact that CSG refused to submit to the FINRA panel's jurisdiction does not \"prevent[ ] it from invoking collateral estoppel.\" Id. at 719 n. 3. Because CSG would not submit to arbitration, however, its own liability under Section 10(b) \"could not have been resolved in the [FINRA] proceeding.\" Id. at 721; see also Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 223, 105 S. Ct. 1238, 84 L. Ed. 2d 158 (1985) (\"[C]ourts may directly and effectively protect federal interests by determining the preclusive effect to be given to an arbitration proceeding.\"). It is well established that \"[w]hen a litigant files consecutive lawsuits against separate parties for the same injury, the entry of a judgment in the prior action does not bar the claims against other potentially liable parties.\" Cent. Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 367 (2d Cir.1995).\nThus, the Court will allow ST's claim under Section 10(b) to proceed on an actual agency theory.[7] The same allegations which support the element of control under Section 20(a), as described above, raise the plausible inference that CSS may have acted as CSG's agent in dealing with ST. Indeed, \"[t]he element of control often is deemed the essential characteristic of the principal-agent relationship.\" In re Parmalat Sec. Litig., 594 F. Supp. 2d 444, 451 (S.D.N.Y.2009) (holding that a genuine issue of material fact existed regarding whether a global company could be held liable for a fraudulent audit conducted by a member firm and putative agent). At this stage, therefore, ST is entitled to press claims under Sections 10(b) and 20(a) in the alternative. See Kohn, 629 F.2d at 717 (\"[T]here is no warrant for believing that Section 20(a) was intended to narrow the remedies of the customers of brokerage houses or to create a novel defense in cases otherwise governed by traditional agency principles.\").\nCSG correctly asserts that \"[t]he presence of a parent's logo on documents created and distributed by a subsidiary, standing alone, does not confer authority upon the subsidiary to act as an agent.\" Fletcher v. Atex, Inc., 68 F.3d 1451, 1461-62 (2d Cir.1995) (awarding summary judgment to the defendant). But ST has alleged more than simply that Credit Suisse entities share the same brand logo and email suffix. According to the Amended Complaint, CSG publicly has described the New York headquarters of CSS as a \"local office\" within an \"integrated bank.\" (AC ¶ 57.) Further, ST alleges with particularity that CSG, in devising the incentive and compliance structures in place at CSS and deciding how to respond to customer complaints in the wake of Butler and Tzolov's misconduct, played \"a substantial role in the legal and risk management affairs\" of CSS. In re Parmalat, *540 594 F.Supp.2d at 453. Although ST's agency theory may prove unfounded, \"questions as to the existence and scope of the agency are issues of fact and are not properly the basis of a motion to dismiss.\" Heredia v. United States, 887 F. Supp. 77, 80 (S.D.N.Y.1995) (internal quotation marks omitted). The bones are enough for now; discovery may provide the meat.\n\"Importantly, whether such an agency exists depends upon the actual interactions of the putative agent and principal and not on the perception a third party may have of the relationship.\" Manchester Equip. Co., Inc. v. Am. Way, 60 F. Supp. 2d 3, 8 (E.D.N.Y.1999). By comparison, \"`apparent authority is dependent upon verbal or other acts by a principal which reasonably give an appearance of authority to conduct the transaction.'\" Atex, 68 F.3d at 1462 (quoting Greene v. Hellman, 51 N.Y.2d 197, 204, 433 N.Y.S.2d 75, 412 N.E.2d 1301 (1980)). Notwithstanding the scope or extent of CSS's actual authority, ST has not sufficiently alleged that CSG conferred apparent authority on CSS to bind CSG, contractually or otherwise, to ST. The allegations in each of ST's complaints show that during the period in which Butler and Tzolov made the unauthorized purchases, ST believed that it was dealing with CSS. Only when CSS refused to liquidate ST's non-conforming account holdings did ST allegedly appeal to CSG management in Switzerland. (See AC ¶ 53.) Further, ST bases its Section 10(b) claim on \"substantial evidence that has emerged\" since ST filed its initial complaint against CSG in August 2008. (Mem. in Support of Mot. to Amend, Dkt. # 50, at 6.) Discovered well after the unauthorized purchases took place, this information could not have influenced ST's \"perception of the [CSG-CSS] relationship\" during the period at issue. Manchester Equip., 60 F.Supp.2d at 9.\nLikewise, ST may not prosecute its Section 10(b) claim utilizing a respondeat superior theory that would impute liability for Butler and Tzolov's acts directly to CSG. See Suez Equity, 250 F.3d at 100-01. Where the evidence supports a finding that an agent made misrepresentations simultaneously on behalf of distinct entities, there is \"no difference in the fact of liability of the two as principals.\" Slotkin v. Citizens Cas. Co. of New York, 614 F.2d 301, 316-17 (2d Cir.1979) (holding that reinsurer could be held equally liable for misstatements made by insurer's agent during settlement negotiations, where reinsurer consented to settlement with no other employee present). Here, however, ST has provided irreconcilable allegations regarding Butler and Tzolov's employment status. Although ST's initial complaint refers repeatedly to CSS as the party responsible for the fraud, the Amended Complaint asserts that CSG \"has admitted publicly,\" albeit ambiguously, that the brokers' Private Banking Division is in fact located within CSG. (AC ¶ 57.) Having previously secured an arbitration award against CSS under a respondeat superior theory, ST cannot now take the contrary position that separate entity CSG is directly and vicariously liable for Butler and Tzolov's primary securities violations.[8]See DeRosa v. Nat'l Envelope Corp., 595 F.3d 99, 103 (2d Cir.2010).\nNor has ST plausibly alleged that CSG is CSS's alter ego, which \"cannot be inferred from the close relationship and overlap in executives.\" In re Parmalat, 375 F.Supp.2d at 296-97 (requiring \"an intermingling of funds or a failure to adhere *541 to corporate formalities\"). Although ST alleges a potentially reckless failure of oversight by CSG, the Amended Complaint presents no \"specific facts or circumstances\" to support the conclusion that \"the fraudulent actions taken by [CSS] employees\" resulted from CSG's domination. De Jesus v. Sears, Roebuck & Co., Inc., 87 F.3d 65, 70 (2d Cir.1996). \"To hold otherwise would create an alter ego relationship between almost every parent and subsidiary.\" In re Parmalat, 375 F.Supp.2d at 297. ST's factual allegations in this regard, however, which the Court accepts as true for purposes of this motion, bolster the independent claim of a principal-agent relationship between CSG and CSS.\nThe legal theory, if any, upon which ST might hold CSG liable may ultimately prove irrelevant. Despite ST's argument that the amount of the arbitration award does not represent the full extent of its damages, \"[t]he issue of compensatory damages,\" whether under Section 10(b) or 20(a), \"is totally precluded from relitigation in the District Court.\" Boguslavsky, 159 F.3d at 721.\n\nC. State law claims.\n\nIn addition to federal securities claims, ST brings claims against CSG for unjust enrichment, aiding and abetting common law fraud and conversion. Of these, only the conversion claim survives.\n\ni. Unjust enrichment.\nCollateral estoppel bars ST's claim for unjust enrichment. When a party secures an arbitration award for \"violation of federal securities laws,\" any \"claims under state law [a]re barred under the doctrine of collateral estoppel [if] they were actually and necessarily decided in the arbitration.\" Ganguly v. Charles Schwab & Co., Inc., 142 Fed.Appx. 498, 499 (2d Cir.2005). ST basis its unjust enrichment claim against CSG on the undifferentiated allegation that \"Credit Suisse obtained sales credits and other fees on purchases\" of unauthorized securities for ST's account. (AC ¶ 105.) This issue was \"litigated in the arbitral forum,\" and the determination of whether Credit Suisse profited from the fraud \"was necessary to the result reached by the arbitrators.\" Boguslavsky, 159 F.3d at 720. No additional evidence of action or culpable inactivity would be required to hold CSG liability under this theory, for which ST seeks the same recessionary damages pursued via the Section 10(b) and 20(a) claims. Thus, ST may not relitigate its unjust enrichment claim in this forum.[9]\n\nii. Aiding and abetting common law fraud.\nCollateral estoppel does not bar assertion of claims that were not presented during the FINRA arbitration. Boguslavsky, 159 F.3d at 722. This includes the claim that CSG aided and abetted common law fraud. \"To establish liability for aiding and abetting fraud, the plaintiffs must show (1) the existence of a fraud; (2)[the] defendant's knowledge of the fraud; and (3) that the defendant provided substantial assistance to advance the fraud's commission.\" Lerner v. Fleet Bank, N.A., 459 F.3d 273, 292 (2d Cir. 2006). On account of this claim, ST seeks *542 damages for the period beginning in August 2007.\nThe pertinent question, which the parties dispute vigorously, is whether ST adequately alleges that CSG substantially assisted the underlying fraud. \"`Substantial assistance occurs when a defendant affirmatively assists, helps conceal or fails to act when required to do so, thereby enabling the breach to occur.'\" Lerner, 459 F.3d at 295 (quoting Kaufman v. Cohen, 307 A.D.2d 113, 126, 760 N.Y.S.2d 157 (1st Dep't 2003)). \"In the aiding and abetting context, a plaintiff must allege that the defendant's substantial assistance in the primary violation proximately caused the harm on which the primary liability is predicated.\" Fraternity Fund Ltd. v. Beacon Hill Asset Mgmt., LLC, 479 F. Supp. 2d 349, 371 (S.D.N.Y. 2007).\nST argues that CSG substantially assisted and therefore caused the fraud by CSS, Butler and Tzolov by failing to disclose the extent of the fraud in statements to the press and regulators and by refusing to return ST's funds. None of these actions could have aided and abetted the underlying fraud against ST, which, by the time CSG allegedly learned of it, \"already ha[d] been committed.\" United States v. Shulman, 624 F.2d 384, 387 (2d Cir.1980). ST has not plausibly alleged that the fraud was \"continuous\" or \"ongoing\" by the time CSG became involved in September 2007. Dreieck Finanz AG v. Sun, 1990 WL 11537, at *5 (S.D.N.Y.1990). Nor do the Amended Complaint's allegations support the inference that, while unauthorized purchases still were being made, CSG \"participated in the venture as something it wished to bring about and sought by its action to make the venture succeed.\" Armstrong v. McAlpin, 699 F.2d 79, 92 (2d Cir.1983); see also Lerner, 459 F.3d at 294 (holding \"`red flags'\" incapable of \"establish[ing] a claim for aiding and abetting fraud\" where they \"do not create a strong inference of actual knowledge of [a broker's] out-right theft of client funds\").\nAlthough banks have a duty to safeguard \"funds deposited with them when confronted with clear evidence indicating that those funds are being mishandled,\" Lerner, 459 F.3d at 295, ST alleges that by the time it informed CSG of the fraud, the market for its securities already was frozen. (See AC ¶ 69.) It is unclear what new information CSG could have disclosed that would have allowed ST to protect its interests after this time—and ST specifically alleges none—given that ST's aiding and abetting claim is based on the inability or outright refusal of Credit Suisse to return ST's funds. ST does not allege any subsequent unauthorized purchases, moreover, which are the precise \"harm on which the primary liability is predicated.\" Fraternity Fund, 479 F.Supp.2d at 371. In short, the prior purchases would have been as likely to occur had ST never informed CSG of the fraud at all.\n\niii. Conversion.\nTo the extent that ST seeks to hold CSG accountable under New York law for wrongfully retaining the funds in ST's account, the proper cause of action is conversion. Under New York law, \"to establish a claim for conversion, a plaintiff must show that: `(1) the property subject to conversion is a specific identifiable thing; (2) plaintiff had ownership, possession or control over the property before its conversion; and (3) defendant exercised an unauthorized dominion over the thing in question, to the alteration of its condition or to the exclusion of the plaintiff's rights.'\" AD Rendon Commc'ns, Inc. v. Lumina Ams., Inc., 2007 WL 2962591, at *5 (S.D.N.Y.2007) (quoting Moses v. Martin, 360 F. Supp. 2d 533, 541 (S.D.N.Y. *543 2004)). Further, \"when the original possession of the property is lawful, a plaintiff must make a demand for the allegedly converted property and the possessor must refuse.\" Id.\nCSG argues that ST's conversion claim should be dismissed as \"duplicative of [its] breach of contract claim\" decided in the FINRA proceeding. Id. at *4. The Amended Complaint, however, sets forth acts by CSG that could be viewed as \"unlawful or wrongful as opposed to mere violations of contractual rights.\" Fabry's S.R.L. v. IFT Int'l, Inc., 2003 WL 21203405, at *7 (S.D.N.Y.2003). Specifically, ST asserts that CSG, after learning of prohibited activity by Butler and Tzolov in the summer of 2007, misrepresented the scope of the fraud to clients and to the public and refused to return ST's funds. ST also alleges that CSG's general counsel and Chief Operating Officer \"vowed that, if ST brought [a] legal action to recover its funds, [CSG] would blame ST.\" (AC ¶ 5.) Hence, the Amended Complaint permits the finding that CSG's \"retention of the payments collected from [ST] without authorization and in defiance of [ST]'s superior right of ownership is sufficient to establish conversion as an action distinct from any breach of contract claim.\" Fabry's S.R.L., 2003 WL 21203405, at *7; see also Pilliard v. Sotheby's, Inc., 1997 WL 381795, at *4 (S.D.N.Y.1997) (allowing a consignor to bring a conversion claim that was \"arguably based upon improper conduct by\" a negligent consignee, including misrepresentations made after the fact \"in an attempt to minimize damages\").\nOn the merits, CSG disputes both that it controlled ST's account and that its alleged passivity in the face of ST's demand could have comprised an exercise of authority over the account. ST asserts the opposite, and further alleges that CSG, rather than CSS, negotiated with account holders regarding the unauthorized purchases after the fraud came to light. Whether proof will support these allegations remains for another day, as does the issue of whether ST may be entitled to the punitive damages it seeks. (See AC ¶ 103.) Although the FINRA panel denied ST's request for punitive damages against CSS, \"the imposition of such damages requires an individualized examination of, among other factors, the conduct and state of mind of each defendant.\" Boguslavsky, 159 F.3d at 721 (\"Since the defendants in this case were not parties to the NASD proceeding, there was no inquiry into their specific liability for punitive damages in the arbitral forum.\").\n\nIII. CSG's request for Rule 12(b)(7) dismissal or a stay.\n\nCSG requests dismissal under Rule 12(b)(7) for ST's failure to join CSS as an indispensable party. In the alternative, CSG requests that this Court stay the action pending the resolution of CSS's appeal of the FINRA award's confirmation. Both arguments lack merit.\n\nA. Rule 12(b)(7).\n\nCSG offers an array of arguments why this case cannot proceed due to ST's \"failure to join [CSS] under Rule 19.\" Fed.R.Civ.P. 12(b)(7). CSG has failed to show, however, that CSS is either a necessary or an indispensable party to this litigation.\n\"When deciding a Rule 12(b)(7) motion, a court must initially determine if the absent person should be joined as a party.\" Ashley v. Am. Airlines, Inc., 738 F. Supp. 783, 788 (S.D.N.Y.1990). \"The burden is on the moving party to show the nature of the material interests of the absent person in the subject matter of the suit.\" Id. Despite CSG's assertions, the Court cannot conceive of any interest of CSS that may \"as a practical matter [be] *544 impair[ed] or impede[d]\" should this lawsuit proceed in its absence. Fed.R.Civ.P. 19(a)(1)(B)(i). The actions of CSG and its officers during the relevant time period are the focus of this litigation. The arbitration proceedings involving CSS are complete, and the amount of compensatory damages under Section 10(b) has been fully litigated.[10] Thus, there is little danger of CSS being bound by findings made in its absence, and CSS need not worry about \"the effect of the doctrines of issue and claim preclusion on a parallel, subsequently-filed\" action. Vedder Price Kaufman & Kammholz v. First Dynasty Mines, 2001 WL 1190996, at *3 (S.D.N.Y.2001).\nFor the same reasons, CSS's absence will not subject CSG to \"multiple\" or \"inconsistent obligations,\" Fed.R.Civ.P. 19(a)(1)(B)(ii), or mean that \"the court cannot accord complete relief among existing parties,\" id. 19(a)(1)(A). Either CSG is liable as a controlling person or a corporate principal under the federal securities laws, or it is not; and either CSG is liable for conversion under state law, or it is not. Any of these results is consistent with the previous finding of primary liability as against CSS. The Court also notes that CSS's multi-billion dollar parent company, represented here by the same lawyers who represented CSS in the FINRA arbitration, will more than adequately represent any interest of CSS in this litigation.\nEven if CSS were considered a necessary party, \"Rule 19(b) does not authorize dismissal simply because such a party cannot be joined.\" Jota v. Texaco, Inc., 157 F.3d 153, 162 (2d Cir.1998). Rather, \"the Court is to determine `whether in equity and good conscience the action should proceed among the parties before it.'\" Id. (quoting Fed.R.Civ.P. 19(b)). For the reasons discussed above, CSS will suffer little or no hardship from this action beyond that which it would suffer if joined as a party. More importantly, CSG \"present[s] no evidence that [ST] could bring `the same action, against the same parties... in a[nother] court.'\" Prescription Plan Serv. Corp. v. Franco, 552 F.2d 493, 497 (2d Cir.1977) (quoting Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 112, 88 S. Ct. 733, 19 L. Ed. 2d 936 (1968)). By agreement, ST was required to arbitrate any claims against CSS. CSG refused to submit to the FINRA panel's jurisdiction, prompting the very piecemeal litigation that CSG now invokes as a ground for dismissal. Dismissing an action on this basis would immunize corporate parents from secondary liability for the actions of subsidiary FINRA members. Thus, this Court agrees \"that there is no requirement in the language of [the] statute that the controlled person be named as a defendant as a predicate to imposing liability upon the controlling\" defendant. In re Suprema Specialties, Inc. Sec. Litig., 438 F.3d 256, 286 (3d Cir.2006).\n\nB. Request for a stay.\n\nAlternatively to dismissal, CSG requests that this Court stay the action pending \"resolution by the Second Circuit\" of CSS's appeal of the arbitration award \"in accordance with normal, orderly appellate procedures.\" (Ltr. from L. Byrne, Dkt. # 53, at 2.) In the same vein, CSG argues that \"this is essentially a collection action that becomes ripe only if [CSS] fails to pay any final non-appealable judgment.\" (Opp. to Mot. to Amend, Dkt. # 58, at 6.) These arguments, although somewhat inviting, are not persuasive.\n\"The decision whether or not to stay or dismiss a proceeding rests within *545 a district judge's discretion.\" Adam v. Jacobs, 950 F.2d 89, 92 (2d Cir.1991). \"If cases involving substantially the same issues are filed in different district courts, generally the court hearing the second case should exercise its discretion to stay or dismiss its case in favor of the first-filed case, unless the balance of conveniences or other special circumstances suggest otherwise.\" Tiffany & Co. Intern., Inc. v. Dhirim, Inc., 2009 WL 2569190, at *1 (S.D.N.Y. 2009) (refusing to stay confirmation of an arbitration award based on existence of prior lawsuit filed in separate district). As discussed above, the fact of a prior arbitration decision awarding Section 10(b) damages \"does not bar litigation of the defendants' liability as controlling persons.\" Boguslavsky, 159 F.3d at 720. The issues in the two actions, moreover, are not substantially similar, in that only \"issues [which] were not raised and, thus, could not have been resolved in the [FINRA] proceeding\" may be litigated in this action. Id. at 720-21.\nIn this case, judicial economy mandates resolving ST's claim. Over time, employees leave, memories fade and documents disappear. For example, CSG allegedly has dismantled its Cash Management Group. In a separate action relating to Butler and Tzolov, moreover, CSG has argued that former employees residing outside of the judicial district could not be compelled to testify. In the meantime, ST alleges that it alone bears the growing costs of its devalued investments, including having to arrange for alternative financing without the half-billion dollars in formerly ready capital sitting frozen in its account. CSG's representing that CSS will pay the arbitration award if and when it becomes final, so as to justify a stay, is incompatible with its arguing that it cannot represent CSS's interests, so as to justify Rule 12(b)(7) dismissal. The action will proceed.\n\nIV. Conclusion.\n\nFor the above reasons, ST's motion to amend its complaint is granted and ST's Section 10(b), Section 20(a) and conversion claims may proceed. The Court denies as moot ST's request to modify the PSLRA discovery stay and directs the parties to proceed with discovery.\nSO ORDERED.\nNOTES\n[1] ST alleges that CSS marketing materials falsely represented that the SLARS derived their investment grade (Aaa/AAA) credit ratings from being \"over-collateralized\" and thus \"100% guaranteed.\" (AC ¶ 14.) Further, because the SLARS could be sold or repurchased every 28 days at an interest rate (known as a \"clearing rate\") determined via auction, Tzolov and Butler described the investments as highly liquid. (Id. ¶¶ 34, 36.) Tzolov has since testified at Butler's criminal trial that the pair, during sales pitches, lied to prospective clients about the SLARS' return rates, credit ratings, maturity rates, investor profile and overall market value.\n[2] For example, in three mid-2006 emails, South Coast Funding V, \"a sub-prime CDO security that ST had not authorized,\" was described as \"South Coast Funding St. Loan.\" (AC ¶ 41.)\n[3] The same executive also allegedly told clients that their accounts failed due to \"market forces,\" created false documentation to show that clients had authorized the trades and gave a \"pretextual reason\" for the change in ST's account management. (AC ¶¶ 51, 79.)\n[4] ST alleges that \"while the ARS market did not `freeze' until February 2008, the auctions for every single security in ST's account failed six months earlier.\" (AC ¶ 69.)\n[5] In accordance with \"widespread\" practice, Butler and Tzolov allegedly often purchased auction-rate securities on the secondary market at less than par value, then sold them to customers at market prices and kept the excess part of the purchase price. (AC ¶ 74.)\n[6] In this case, such documents include, for example, the brokers' fraudulent emails and the written FINRA Resolution.\n[7] Despite CSG's assertion to the contrary, the Supreme Court's reaffirmance in Stoneridge Investment Partners v. Scientific-Atlanta, 552 U.S. 148, 128 S. Ct. 761, 169 L. Ed. 2d 627 (2008), that no private cause of action for aiding and abetting exists under the federal securities laws does not abrogate, or even speak to, the application of \"agency principles to hold brokerage firms liable for the acts of their employees.\" SEC v. Mgmt. Dynamics, Inc., 515 F.2d 801, 813 (2d Cir.1975).\n[8] Of course, that ST no longer can argue that Butler and Tzolov individually were agents of CSG does not exclude the possibility that CSS acted as CSG's agent in transactions with customers, including ST, in which Butler and Tzolov participated.\n[9] Even in the absence of collateral estoppel, ST's contract with CSS, the validity of which is undisputed, bars the unjust enrichment claim. As here, \"where an express and valid contract exists concerning the rights at issue, quasi-contract claims such as unjust enrichment are precluded\" even when asserted against non-signatories to the contract. SCM Grp., Inc. v. McKinsey & Co., Inc., 2011 WL 1197523, at *7-8 (S.D.N.Y.2011); see also Beth Israel Med. Ctr. v. Horizon Blue Cross & Blue Shield of N.J., Inc., 448 F.3d 573, 587 (2d Cir.2006).\n[10] In the unlikely event that the Second Circuit vacates the confirmation of the arbitration award, the Court expects that CSG will raise this development in defense to ST's claims.\n\n", "ocr": false, "opinion_id": 2469428 } ]

[ "816 F. Supp. 2d 245" ]

[ { "author_str": "Quarles", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 2643, "opinion_text": "\n816 F. Supp. 2d 245 (2011)\nHeadley ROSE, et al., Plaintiffs,\nv.\nNEW DAY FINANCIAL, LLC, et al., Defendants.\nCivil No. WDQ-10-2761.\nUnited States District Court, D. Maryland, Northern Division.\nSeptember 9, 2011.\n*249 John Michael Singleton, Singleton Law Group, Lutherville, MD, Stephen J. Springer, Law Office of Stephen J. Springer, Philadelphia, PA, for Plaintiffs.\nHoward Benjamin Hoffman, Howard B. Hoffman Esquire Attorney at Law, Rockville, MD, for Defendants.\n\nMEMORANDUM OPINION\nWILLIAM D. QUARLES, JR., District Judge.\nHeadley Rose, Bryan Harrison, Thomas Zwirecki, Ryan George, John Hamilton, Sean Stuart, Carmen Aumendo, and Chad Schneider (collectively \"the plaintiffs\") sued New Day Financial, LLC (\"New *250 Day\"), Robert Posner, and LeeAnn Rodriguez (collectively \"the defendants\") for violations of the Fair Labor Standards Act (\"FLSA\") and Maryland law. For the following reasons, the defendants' motion to dismiss and compel arbitration will be granted.\n\nI. Background[1]\nRose, Harrison, Zwirecki, George, Hamilton, Aumendo, and Schneider are Maryland residents and former \"Account Executives\" for New Day, a Maryland corporation with offices in Maryland and Pennsylvania. Compl. ¶¶ 2-6, 8, 9, 16, 17. Stuart, a New York resident, was also an Account Executive for New Day. Id. ¶ 7. The Plaintiffs allege that New Day required them to work at least 65 hours per week, but did not pay them overtime. Id. ¶¶ 19, 20.\nAs a condition of employment, each Account Executive was required to sign an \"Arbitration Agreement\" either in mid-2005 if they had worked for New Day before that time, or soon after they began employment. Pls.' Mem. in Op. 9; id. Ex. 1. New Day did not inform any of the plaintiffs about the arbitration agreement before they were required to sign it, and provided about five minutes for each plaintiff to sign the agreement, or 40 minutes to sign a collection of forms including the agreement. Id.\nZwirecki asked if he could take the agreement home to review or redact portions that he did not understand. Id. at 11. New Day denied his requests and told Zwirecki that if he did not sign the agreement he would not be permitted to work for New Day. Id. Each plaintiff signed. Id. Although several plaintiffs requested and were promised copies of the agreement, none received a copy. Id.\nThe arbitration agreement states that New Day and the employee:\nagree that any legal or equitable claims, disputes or controversies, between employee and NewDay, or between employee and any of NewDay's officers, directors, agents, employees, attorneys, or assigns, whether arising out of or in connection with the employment relationship, the terms and conditions of employment, or the termination of employment, will be submitted to and resolved by binding arbitration.\nDefs.' Mem. in Supp. Ex. 1. The agreement states that \"this agreement to arbitrate shall . . . includ[e] the applicability of this arbitration agreement and the validity of the entire agreement.\" Id.\nThe agreement prohibits the parties from participating in \"a class action in court or in arbitration, . . . including claims arising under the Federal Fair Labor Standards Act, 29 U.S.C. § 201 et seq.,\" and from \"join[ing] or consolidat[ing] claims with any other claims asserted by any other person.\" Defs.' Mot. to Compel Ex. 1. It excepts either party's use of judicial \"remedies in aid of arbitration. . . [or for] bankruptcy, replevin, judicial foreclosure, injunction, or any other pre-judgment or provisional remedy.\" Id.\nThe agreement states:\nNewDay shall advance the fees associated with filing and arbitrating any claims subject to this agreement. If NewDay is deemed to be the prevailing party by the arbitrator, then employee shall reimburse NewDay for the arbitration fees which NewDay has advanced, in addition to any other costs or expenses *251 which NewDay Financial, LLC may otherwise have a right to recover under law. However, if employee produces an affidavit and other relevant evidence demonstrating to the satisfaction of the arbitrator that the employee ... cannot reimburse NewDay for the arbitration fees that have been advanced, then NewDay shall pay all fees associated with arbitrating the claim.\nDefs.' Mem. in Supp. Ex. 1.\nThe agreement states that it is governed by the Federal Arbitration Act (\"FAA\"). Id. A paragraph above the signature line states:\nBY SIGNING BELOW, THE PARTIES ACKNOWLEDGE THAT THEY HAD A RIGHT TO LITIGATE CERTAIN CLAIMS ... AND THAT THEY WILL NOT HAVE THAT RIGHT IF EITHER PARTY ELECTS ARBITRATION PURSUANT TO THIS AGREEMENT.... THIS ARBITRATION AGREEMENT ... INVOLVES NO SURRRENDER, BY EITHER PARTY, OF ANY SUBSTANTIVE STATUTORY OR COMMON LAW BENEFIT, PROTECTION, OR DEFENSE.\nId.\nIn 2009, nine former employees sued New Day in Pennsylvania,[2] alleging the FLSA violations pled here. Hopkins v. New Day Financial, 643 F. Supp. 2d 704, 708 (E.D.Pa.2009). New Day moved to dismiss and compel arbitration, relying on the arbitration agreements. Id. As here, the former employees argued that the arbitration agreement was unenforceable because it was unconscionable. Id. at 715.\nApplying Pennsylvania common law,[3] United States District Judge Joel H. Slomsky held that there was a \"genuine issue of material fact as to whether the Arbitration Agreements are unconscionable.\" Id. Judge Slomsky denied the motion to compel arbitration and ordered a trial on the issue of unconscionability. Id. at 721. At trial, the parties disputed whether the ban on class action prevented employees from resolving disputes, and the jury found that the arbitration agreements were unconscionable as applied to eight of the nine former employees. Defs.' Rep. 3-6; id. Ex. 2.\nOn October 5, 2010, the plaintiffs sued the defendants in this Court for violating the FLSA and the Maryland Wage and Hour Law. ECF No. 1. On November 9, 2010, the defendants moved to dismiss and compel arbitration. ECF No. 8.\n\nII. Analysis\n\nA. Standard of Review\nMotions to compel arbitration in which the parties dispute the validity of the arbitration agreement are treated as motions for summary judgment. Shaffer v. ACS Gov't Servs., Inc., 321 F. Supp. 2d 682, 683-84, 684 n. 1 (D.Md.2004).[4] Therefore, *252 such motions \"shall [be] grant[ed] ... if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.\" Fed.R.Civ.P. 56(a). In considering the motion, \"the judge's function is not... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.\" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute about a material fact is genuine \"if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.\" Id. at 248, 106 S. Ct. 2505.\nThe Court must \"view the evidence in the light most favorable to ... the nonmovant, and draw all reasonable inferences in h[is] favor,\" Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir.2002), but it also must abide by the \"affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial,\" Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir.2003) (citations and internal quotation marks omitted).\n\nB. The Defendants' Motion to Dismiss and Compel Arbitration\nNew Day has moved to dismiss and compel arbitration. The plaintiffs argue that New Day's Motion should be denied because the arbitration agreements are unconscionable. To compel arbitration, the movant must show:\n(1) the existence of a dispute between the parties, (2) a written agreement that includes an arbitration provision which purports to cover the dispute, (3) the relationship of the transaction, which is evidenced by the agreement, to interstate or foreign commerce, and (4) the failure, neglect or refusal of the [other party] to arbitrate the dispute.\nAdkins v. Labor Ready, Inc., 303 F.3d 496, 500-01 (4th Cir.2002); see also Hightower v. GMRI, Inc., 272 F.3d 239, 242 (4th Cir.2001). Only the second element is disputed. Pls.' Resp. 2.[5]\nArbitration agreements governed by the FAA are \"valid, irrevocable, and enforceable, save upon such grounds as exist at law or equity for the revocation of any contract.\" 9 U.S.C. § 3 (2006). The validity of an arbitration agreement is determined under state contract formation law. AT & T Mobility, LLC v. Concepcion, ___ U.S. ___, ___ _ ___, 131 S. Ct. 1740, 1745-46, 179 L. Ed. 2d 742 (2011); Hill v. PeopleSoft USA, Inc., 412 F.3d 540 (4th Cir.2005).\n\n1. Choice of Law\nUnder the FAA, the Court must apply the \"federal substantive law of arbitrability,\" which directs the Court to rely on \"ordinary state-law principles that govern the formation of contracts\" to determine whether the parties agreed to arbitrate. Hill, 412 F.3d at 543 (internal citations and quotation marks omitted); see also AT & T Mobility, LLC, 131 S.Ct. at 1745-46.\n*253 Applying Maryland choice of law rules, the Court must first determine what state law governs formation of the arbitration agreement. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941). Maryland uses the lex loci contractus rule: \"the law of the jurisdiction where the contract was made controls its validity and construction.\" Kramer v. Bally's Park Place, Inc., 311 Md. 387, 390, 535 A.2d 466, 467 (1988). Because plaintiffs Rose, Stuart, George, and Zwirecki signed the arbitration agreements in Maryland, Maryland law governs their agreements.[6] Pls.' Mem. in Op. Ex. 1.\nNeither party has addressed Schneider's statement that he signed the arbitration agreement in Pennsylvania, Id. Ex. 1, and Hamilton, Aumendo, and Harrison, have not indicated where they signed the agreements. Pls.' Mem. in Op. Ex. 1. Thus, for at least Schneider, this Court must look to Pennsylvania's law, including its choice of law rules to determine the governing law.[7]See Am. Motorists Ins. Co. v. ARTRA Grp., Inc., 338 Md. 560, 574, 659 A.2d 1295, 1302 (1995).\n\ni. Pennsylvania Choice of Law\nAlthough the Pennsylvania Supreme Court has not expressly rejected the traditional rule of lex locus contractus, the Third Circuit has predicted that the Pennsylvania Supreme Court would reject it and apply the law of the state with (1) the greatest interest in having its law applied and (2) most contacts with the case.[8]Hammersmith v. TIG Ins. Co., 480 F.3d 220, 227-29 (3d Cir.2007). Pennsylvania's lower courts have also consistently applied an interest and contacts choice-of-law analysis to contract cases. See, e.g., Wilson v. Transp. Ins. Co., 889 A.2d 563, 571 (Pa.Super.Ct.2005). This Court will do the same.[9]\nUnder this analysis, the Court must first determine whether the laws of Pennsylvania and Maryland conflict. If they do not, no choice of law analysis is necessary and the Court may apply the common rule. Hammersmith, 480 F.3d at 230. If the laws have \"relevant differences,\" the Court must determine whether either state's interests would be harmed by applying the other state's law. Id. If only one state's interests would be harmed, the Court applies the law of that state. Id. If neither state's interests would be harmed, the Court uses the lex locus contractus rule. Id. at 230 n. 9. If both states' interests would be harmed, the Court will apply the law of the state with the greater interest in the application of its law. Id. at 231.\n\n\n*254 ii. Conflict Determination\nThe parties dispute whether the arbitration agreement is void as unconscionable because, among other things, it bars collective action. Defs.' Mem. in Supp. 4-6; Pls.' Mem. in Op. 17-23. Accordingly, the Court must compare Maryland and Pennsylvania's standards for contract unconscionability.\nIn Maryland, a contract is unconscionable if it is procedurally unconscionable, evidencing \"one party's lack of meaningful choice\" in making the contract, and substantively unconscionable, containing terms that \"unreasonably favor\" the more powerful party. Walther v. Sovereign Bank, 386 Md. 412, 426, 872 A.2d 735, 744 (2005).\nIn Pennsylvania, the test is whether \"there was a lack of meaningful choice in the acceptance of the challenged provision\" and \"the provision unreasonably favors\" the contract's proponent. Salley v. Option One Mortg. Corp., 592 Pa. 323, 331, 925 A.2d 115, 119 (2007).\nHowever, the states differ about whether class action bars in arbitration agreements are unconscionable. In Maryland an express waiver of the right to collective action will be enforced, even if it increases the expense of pursuing a claim.[10]Walther, 386 Md. at 436-38, 872 A.2d at 750-51. In Pennsylvania class-action waivers \"are unconscionable ... when they prohibit individual[s]... from obtaining relief due to prohibitive cost.\" Quilloin v. Tenet HealthSystem Phila., Inc., 763 F. Supp. 2d 707, 727 (E.D.Pa.2011) (citing Thibodeau v. Comcast Corp., 912 A.2d 874, 885-86 (Pa.Super.Ct.2006)). Because these standards have \"relevant differences,\" the Court must continue the conflicts analysis. See Hammersmith, 480 F.3d at 230.\n\niii. Effect of the Conflict\nAfter determining that the laws of the states differ, the Court asks whether either state's interests would be harmed by applying the other state's law. Hammersmith, 480 F.3d at 230. The Court considers the kind of entity each state's law protects. See id. at 232.\nPennsylvania's law is more protective of, and favors, individuals with lesser bargaining power: it resists enforcement of the class-action bans. See Quilloin, 763 F.Supp.2d at 727. Pennsylvania also protects individuals by encouraging class action litigation when individual suits would be impracticable. Thibodeau, 912 A.2d at 885-86.\nMaryland's law favors the drafter by rigorously enforcing arbitration agreements. See Walther, 386 Md. at 438, 872 A.2d at 750. Maryland courts \"cannot ignore the strong policy, made clear in both federal and Maryland law, that favors the enforcement of arbitration provisions.\" Id., 386 Md. at 438, 872 A.2d at 751.\nHere, no plaintiffs are citizens of Pennsylvania. Compl. ¶¶ 2-9. Thus, Pennsylvania's aversion to class-action bars will not be harmed if the bar is enforced. See Hammersmith, 480 F.3d at 232. New Day, the drafter of the agreement, is a Maryland corporation. Compl. ¶ 10. Maryland law favors the drafters, and the state has an interest in applying its law in this case. See Hammersmith, 480 F.3d at 232. Maryland also has a substantial relationship to the case, as most of the plaintiffs, and the defendants, are Maryland citizens and the plaintiffs worked primarily in Maryland. Compl. ¶¶ 2-10.\n*255 Because Pennsylvania's interests will not be harmed by applying Maryland law—but Maryland's interests would be harmed by applying Pennsylvania law— Pennsylvania courts would apply Maryland law to this claim. See Hammersmith, 480 F.3d at 230. Because Maryland has a substantial relationship to the claim, Maryland courts would also apply Maryland's law to the issue. See Am. Motorists Ins. Co., 338 Md. at 574, 659 A.2d at 1304. Accordingly, Maryland substantive law will govern the validity of the arbitration agreements for all the plaintiffs, including those who signed the agreement in Pennsylvania.\n\n2. Effect of Hopkins v. New Day Financial, 643 F. Supp. 2d 704 (E.D. Pa. 2009)\nThe plaintiffs argue that the Defendants are collaterally estopped from relying on the arbitration agreement because of Hopkins. Pls.' Resp. 1-2.\nCollateral estoppel bars relitigation of an issue determined in an earlier proceeding when:\n(1) the issue sought to be precluded is identical to one previously litigated; (2) the issue ... ha[s] been actually determined in the prior proceeding; (3) determination of the issue [was] a critical and necessary part of the decision in the prior proceeding; (4) the prior judgment [is] final and valid; and (5) the party against whom estoppel is asserted ... had a full and fair opportunity to litigate the issue in the previous forum.\nSedlack v. Braswell Svc's Group, Inc., 134 F.3d 219, 224 (4th Cir.1998).[11] The defendants contend that the first and fifth factors do not favor estoppel.\n\ni. Identity of Issues\nThe defendants argue that the issues in this case differ from Hopkins because (1) there was a mixed verdict, (2) the nature of the Pennsylvania legal market was disputed there, and (3) the Hopkins court applied Pennsylvania law. Defs.' Reply 8-9.\nIssues are not identical if the governing laws differ.[12] In Hopkins, the court applied Pennsylvania law to determine whether the arbitration agreement was unconscionable. Hopkins v. New Day Financial, 643 F. Supp. 2d 704, 715 (E.D.Pa.2009). Although the court noted that Maryland law is similar to the Pennsylvania law of unconscionability, id. at 715, the court did not apply Maryland law, which, unlike Pennsylvania, does not consider class-action bars as unconscionable. Thus, the legal standard here differs from Hopkins, and collateral estoppel does not bar relitigation.[13]\n\nii. Identity of Parties\nCollateral estoppel does not bar Rodriguez's suit. A party has had a *256 full and fair opportunity to litigate an issue only if she was a party in the prior suit, or is within certain limited circumstances. See Taylor v. Sturgell, 553 U.S. 880, 892-96, 128 S. Ct. 2161, 171 L. Ed. 2d 155 (2008). Under one of these exceptions, a non-party (from a prior case) will be deemed to have had a full and fair opportunity to litigate an issue if she was \"adequately represented by someone with the same interests who was a party to the suit.\" Id. at 894, 128 S. Ct. 2161 (internal citations and quotation marks omitted). This exception is generally limited to members of a class in a class action suit and parties who had a legal duty to represent the interests of the non-party.[14]See id. A company's interests are identical to those of its officers, and an officer will be bound by issues the company litigated. Cf. Nat'l Spiritual Assembly of Baha'is of U.S. Under Hereditary Guardianship, Inc. v. Nat'l Spiritual Assembly of Baha'is of U.S., Inc., 628 F.3d 837, 848 (7th Cir.2010) (\"an order issued to a corporation is identical to an order issued to its officers\").\nA non-party is also bound if she (1) agrees to be bound, (2) had a pre-existing \"substantive legal relationship\" with a party,[15] (3) took control of the prior litigation, (4) litigates as a proxy for a party, or (5) a statute prohibits successive litigation by non-litigants. Taylor, 553 U.S. at 894-95, 128 S. Ct. 2161.\nRodriguez was not a party in Hopkins. See 643 F.Supp.2d at 708 (listing the defendants). However, she is an officer of New Day, a Hopkins party. If New Day had been barred from relitigating, Rodriguez would also be barred.\nBecause the issues are identical, the Defendants are not barred from litigating the unconscionability of the agreement.\n\n3. Unconscionability\nUnder Maryland law, an unconscionable contract is void. See Walther v. Sovereign Bank, 386 Md. 412, 426, 872 A.2d 735, 743 (2005). Maryland courts require that a showing of procedural unconscionability—\"one party's lack of meaningful choice\" in making the contract—and substantive unconscionability—contract terms that \"unreasonably favor\" the more powerful party—to void the contract. Id., 386 Md. at 426, 872 A.2d at 744.\n\ni. Procedural Unconscionability\nThe plaintiffs argue that the arbitration agreement is procedurally unconscionable because they were given little time to review the terms, were not permitted to consult with others about the meaning of the agreement, and were told that they would lose their jobs if they did not sign it. Pls.' Mem. in Op. 18-19. They contend that the agreement was an adhesion contract, and the defendants intended to avoid explaining its terms to them. Pls.' Mem. in Op. 19-21.\nIn Maryland, \"`the law presumes that a person knows the contents of a document that he executes and understands at least the literal meaning of its terms.'\" Walther, 386 Md. at 429, 872 A.2d at 745 (quoting Merit Music Serv., Inc. v. Sonneborn, 245 Md. 213, 221-22, 225 A.2d 470, 474 (1967)).[16]\nHowever, contracts of adhesion-those \"offered on a take-it-or-leave-it basis, *257 with no opportunity for negotiation\"—are procedurally unconscionable under Maryland law and enable a substantively unconscionable challenge to the contract. Walther, 386 Md. at 430, 872 A.2d at 746.\nThe plaintiffs argue that the arbitration agreement is a contract of adhesion because New Day presented the agreements to them on a take-it-or-leave-it basis, with no chance to negotiate the terms. Id., 386 Md. at 430, 872 A.2d at 746. The plaintiffs have presented evidence that they were given the agreement in final form and had no part in drafting it. Pls.' Mem. in Op. 18-19. Further, when Zwirecki asked if he could cross out clauses he did not understand, New Day \"told [him] that the documents had to be signed as is, without any cross-outs.\" Pls.' Mem. in Op. Ex. 1 (emphasis added). Accordingly, a reasonable fact finder could conclude that the arbitration agreements are procedurally unconscionable contracts of adhesion. See Shaffer, 321 F.Supp.2d at 683-84, 684 n. 1.\n\nii. Substantive Unconscionability\nThe plaintiffs argue that the arbitration agreements are substantively unconscionable because they (1) contain a class action waiver, (2) contain an illusionary promise, and (3) grant unequal access to the courts. Pls.' Mem. in Op. 23-25.\n\na. Waiver of a Substantive Right\nThe plaintiffs argue that the right to collective action is substantive and may only be knowingly waived. Pls.' Mem. in Op. 23. In support, the plaintiffs rely on Federal cases—decided under Pennsylvania law—which held that when a party signs away substantive rights without reading or understanding what he is signing, his waiver is not knowing or enforceable. Id. (citing Hopkins, 643 F.Supp.2d at 719; Ellis v. Edward D. Jones & Co., L.P., 527 F. Supp. 2d 439 (W.D.Pa.2007)).\nThese cases conflict with Maryland law. First, as discussed above, Maryland law presumes that parties read and understand the contracts they sign. Walther, 386 Md. at 429, 872 A.2d at 745. Here, the class action ban is contained in the main text of the agreement for the employees to read. Defs.' Mem. in Supp. Ex. 1. It is no *258 more inconspicuous than other class action waivers that Maryland courts have upheld.[17]\nFurther, the Court of Appeals of Maryland has determined that collective action waivers in arbitration agreements are valid if the agreement is \"freely-signed.\" Walther, 872 A.2d at 750, 386 Md. at 438. The Court of Appeals \"would be averse to a holding\" otherwise. Id. Maryland courts \"cannot ignore the strong policy, made clear in both federal and Maryland law, that favors the enforcement of arbitration provisions.\" Id., 386 Md. at 438, 872 A.2d at 751.\n\nb. Illusionary promise\nThe plaintiffs also argue that the agreement, by its own terms, cannot take away the right to collective action because the agreement states that both parties would \"retain all substantive legal rights and remedies.\" Pls.' Mem. in Op. 24. As discussed above, the plaintiffs argue that the limitation on collective actions restrains a substantive legal right, and thus conflicts with this clause. Id.\nAny internal inconsistency of the agreement is a matter for the arbitrator to consider. See Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983) (holding that all issues other than arbitrability, such as fraud in the inducement, are for the arbitrator to decide after a court has determined that the arbitration agreement is valid). An internal inconsistency does not destroy the enforceability of the agreement, and is not relevant to New Day's motion to compel. Id.[18]\n\nc. Unequal Access to the Courts\nFinally, the plaintiffs argue that the agreement unreasonably favors New Day because of the lack of mutuality in court access. Pls.' Mem. in Op. 25. They contend that the agreement allows New Day *259 to file \"many types of actions\" in court while the Plaintiffs have no equivalent exceptions to the arbitration requirement. Id. The plaintiffs argue that because New Day has shown no valid basis for the exceptions, the agreement lacks mutuality and is substantively unconscionable. Id.\nMutuality \"does not require an exactly even exchange of identical rights and obligations\" between the parties. Walther, 386 Md. at 433, 872 A.2d at 748.[19]\nThe plaintiffs argue Walther is not determinative because the exception was narrower there. Pls.' Mem. in Op. 26. However, arbitration agreements that more frequently bind the employee than the employer are valid despite the differences in the parties' rights. See Adkins, 303 F.3d at 501-503.\nThe FAA mandates that \"courts cannot treat arbitration in general as an inferior or less reliable means of vindicating important substantive rights.\" Id. at 502 (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 628, 105 S. Ct. 3346, 87 L. Ed. 2d 444 (1985)). That an agreement restricts a party's access to a court does not make it unfair; the arbitration is not inferior to the courtroom. Id.\nBecause there is no genuine dispute of material fact that the arbitration agreement is substantively unreasonable, it will be enforced, and New Day's motion will be granted.\n\nIII. Conclusion\nFor the reasons stated above, the defendants' motion to dismiss and compel arbitration will be granted.\nNOTES\n[1] Because the motion to dismiss is construed as one for summary judgment, the plaintiffs' evidence \"is to be believed, and all justifiable inferences are to be drawn in [its] favor.\" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).\n[2] None are plaintiffs in the present case. Compare Hopkins, 643 F.Supp.2d at 704, with Compl. caption.\n[3] Judge Slomsky considered whether Pennsylvania or Maryland law would govern the validity of the agreement, and held that \"both states employ almost identical definitions of unconscionability, consisting of both procedural and substantive aspects, there is no conflict between Maryland and Pennsylvania laws in this respect.\" Hopkins, 643 F.Supp.2d at 715 (emphasis added). The court relied on both states' requirement of substantive unfairness, i.e., a lack of meaningful choice by one party, and procedural unfairness, i.e., the terms of the agreement \"unreasonably favor\" one party. Id. at 714-15.\n[4] The FAA applies to all written agreements to settle controversies arising out of the contract or the transactions by arbitration in contracts involving transactions in interstate commerce. 9 U.S.C. § 2 (2006). The plaintiffs do not dispute that the agreement is governed by the FAA, which requires the court, on application of a party, to stay the trial if the action is referable to arbitration. 9 U.S.C. § 3. If all the issues in the action are arbitrable, the court may dismiss the action when it orders arbitration. Choice Hotels Int'l, Inc. v. BSR Tropicana Resort, Inc., 252 F.3d 707, 709-10 (4th Cir.2001).\n[5] If the parties dispute the existence of an arbitration agreement, the court must \"hear the parties\" on the issue, and the party alleged to have violated the arbitration agreement is entitled to a jury trial on the existence of an agreement. 9 U.S.C. § 4. Standard summary judgment rules apply. Shaffer, 321 F.Supp.2d at 684 n. 1.\n[6] \"For choice-of-law purposes, a contract is made where the last act necessary to make the contract binding occurs.\" Konover Prop. Trust, Inc. v. WHE Assocs., Inc., 142 Md.App. 476, 490, 790 A.2d 720, 728 (2002).\n[7] A state's \"body of substantive law\" includes its choice of law rules. Am. Motorists Ins. Co., 338 Md. at 574, 659 A.2d at 1302. Maryland will apply its own substantive law even if its choice of law rules direct the application of another state's law if (1) Maryland has a substantial relationship to the contract issue at bar, and (2) the state where the contract was made would apply Maryland law rather than its own law. Id., 338 Md. at 579, 659 A.2d at 1304. This doctrine avoids the possibility of an \"endless cycle\" of remissions between the states' choice of law provisions. Id., 338 Md. at 574, 659 A.2d at 1302.\n[8] The Pennsylvania Supreme Court has adopted that approach in torts cases. Hammersmith, 480 F.3d at 227.\n[9] The Court may consider lower state court and federal appellate decisions to predict the law of Pennsylvania's highest court. Hammersmith, 480 F.3d at 227-28.\n[10] In Maryland prohibitive cost is a distinct form of unconscionability, to be analyzed separately from the class-action terms of the contract. Walther, 872 A.2d at 751-52, 386 Md. at 439-40. The Plaintiffs do not rely on those grounds here. Pls.' Mem. in Op. 22-25.\n[11] The federal law of collateral estoppel governs this Court's decisions of federal questions. Heck v. Humphrey, 512 U.S. 477, 488 n. 9, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994).\n[12] Boomer v. AT & T Corp., 309 F.3d 404, 422 n. 10 (7th Cir.2002); cf. Collins v. Pond Creek Mining Co., 468 F.3d 213, 218 (4th Cir.2006) (collateral estoppel does not apply when a change in the law \"could render the previous determination inconsistent with prevailing doctrine\").\n[13] Unconscionability may also require a fact-intensive analysis, as the plaintiffs recognize, Pls.' Mem. in Op. 20, because it depends on the circumstances in which the agreement was presented to each plaintiff. Although the plaintiffs were presented with the arbitration agreements under circumstances similar to those in Hopkins, the Plaintiffs do not assert that they were at the same meetings as the Hopkins employees. As the defendants note, the mixed verdicts in Hopkins also demonstrate that the issue can differ for each plaintiff and must be relitigated. See Defs.' Resp. 8-10.\n[14] For example, \"trustees, guardians, and other fiduciaries.\" Taylor, 553 U.S. at 894, 128 S. Ct. 2161.\n[15] The relationships include preceding and succeeding property owners, bailee and bailor, and assignee and assignor, and are generally limited to property law issues. Taylor, 553 U.S. at 895, 128 S. Ct. 2161.\n[16] A party's failure to thoroughly review an agreement before signing it does not make the agreement procedurally unconscionable. Walther, 386 Md. at 428, 430, 872 A.2d at 745. \"There must exist something more before we can find the arbitration clause ... to be unconscionable.\" Id., 386 Md. at 430, 872 A.2d at 745. Even if a party could not take the time to understand an agreement, he will be bound by the agreement. Dieng v. College Park Hyundai, DKC 09-0068, 2009 WL 2096076 at *5 (D.Md. July 9, 2009). \"In its simplest terms, Plaintiffs argue that they should not be held to an agreement that they signed, but did not have or take the time to read and understand. Plaintiffs' argument has no merit.\" Dieng, 2009 WL 2096076 at *5. Further, an arbitration agreement is not procedurally unconscionable merely because it was not mentioned or provided to employees before they began work, even if signing was a condition of employment, and the employees \"needed time [they were not given] to consult with counsel\" to understand the document. Id. In Dieng, the plaintiffs, former employees of a car dealership, sued the dealership for violations of the FLSA and Maryland law based on alleged company requirements that the employees work 40-60 hours per week without full overtime payment. Dieng, 2009 WL 2096076 at *1-2. The employer filed a motion to dismiss and compel arbitration, based on an arbitration agreement that the employees were required to sign on their first day of work, as a condition of employment. Id. at *1. The employees argued that the agreement was procedurally and substantively unconscionable because they were not given sufficient time to read and understand the agreement before they were required to sign it, the employer failed to explain the agreement to them, and the agreement was \"replete with vague and ambiguous language which no one but those involved in the drafting of the document could ascertain.\" Id. at *4. The court granted the motion to dismiss and compel. Id. at *1.\n[17] The plaintiffs have attempted to distinguish Walther. They note that Walther involved a no-class-action clause that was \"conspicuously presented as part of the arbitration clause.\" Id., 386 Md. at 438, 872 A.2d at 750. The reference to collective action in that agreement was no more conspicuous than the reference in the agreement here. The entire arbitration clause in Walther was set off from the loan disclosure agreement that contained the clause, but the collective action ban was not set apart from the remainder of the arbitration clause. Id., 872 A.2d at 739, 386 Md. at 418-19. Both were \"buried in single space.\" Pls.' Mem. in Op. 26.\n\nThe plaintiffs argue that Walther is also distinguishable because the underlying claim in that case did not involve \"any statutory or substantive right to bring a collective action or join in a collective action,\" as, they claim, the FLSA creates. Pl. Mem. in Op. 25-26. The plaintiffs rely on 29 U.S.C. § 216(b) for the right to bring a collective action or join in a collective action. Id. However, the Fourth Circuit has determined that the FLSA's right to collective action can be waived in contracts of adhesion such as employment arbitration agreements. See Adkins v. Labor Ready, Inc., 303 F.3d 496, 503 (4th Cir.2002). As in Adkins, that the plaintiffs were not aware of their right to class action does not render the agreement substantively unconscionable. See id.\n[18] To the extent the plaintiffs challenge the clause as an illusionary promise that undermines the consideration for the agreement, their argument also fails. An illusionary promise is one that \"appears to be a promise, but it does not actually bind or obligate the promisor to anything.\" Cheek v. United Healthcare of Mid-Atlantic, Inc., 378 Md. 139, 149, 835 A.2d 656, 662 (2003). Illusionary promises cannot provide consideration for an agreement. Id.\n\nAssuming, arguendo, that the retention of legal rights clause is an illusionary promise, this fact does not render the agreement substantively unconscionable because that clause does not form the consideration for the agreement. In arbitration agreements, the exchanged promises to arbitrate constitute the consideration that forms the basis of the agreement. See Dieng, 2009 WL 2096076 at *3.\n[19] E.g., an exception to an arbitration agreement in a loan contract allowing the lender to exercise a judicial foreclosure remedy was valid even though the debtor retained no similar right to judicial remedies. Walther, 386 Md. at 433, 872 A.2d at 748.\n\n", "ocr": false, "opinion_id": 2183569 } ]

[ "38 L. Ed. 2d 344", "94 S. Ct. 466", "414 U.S. 113", "1973 U.S. LEXIS 178" ]

[ { "author_str": null, "per_curiam": true, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n414 U.S. 113 (1973)\nCHICAGO MERCANTILE EXCHANGE\nv.\nDEAKTOR ET AL.\nNo. 73-241.\nSupreme Court of United States.\nDecided December 3, 1973.\nON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.\nPER CURIAM.\nThe petitioner, Chicago Mercantile Exchange, was sued in two separate actions in the District Court. In one, the Phillips suit, it was alleged that the Exchange had forced sales of futures contracts in March 1970 fresh eggs at artificially depressed market prices and had thereby monopolized and restrained commerce in violation of §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S. C. §§ 1, 2, and had violated § 9 (b) of the Commodity Exchange Act (CEA), as amended, 82 Stat. 33, 7 U.S. C. § 13 (b), by manipulating prices of a commodity for future delivery on a contract market. The Exchange was also accused of violating § 5a of the CEA, 7 U.S. C. § 7a (8), for failure to enforce one of its own rules. In the second suit, the Deaktor case, the Exchange was charged with violating the CEA and its own rules as a designated contract market because it had failed *114 to exercise due care to halt the manipulative conduct of certain of its members who allegedly had cornered the July 1970 market in frozen pork bellies futures contracts.\nThe Exchange defended both actions on the ground that it was faithfully discharging its statutory duty of self-regulation. It asserted that its challenged acts in the Phillips case were measures taken to prevent speculation in futures contracts and as such were not in violation of the CEA. Rather, they were authorized and required by the statute and hence cannot be considered within the reach of the antitrust laws. Likewise, in the Deaktor suit, the Exchange claimed that it had taken all proper and reasonable steps to perform its statutory responsibility to prevent manipulation.\nThe Exchange further urged that because the Commodity Exchange Commission had jurisdiction to determine whether the Exchange was violating the CEA or its own rules and to impose sanctions for any such offense, both suits should be stayed to permit the Commission to determine in the first instance whether or not the actions of the Exchange under scrutiny were in discharge of its proper duties under the CEA and its regulations. The District Court refused the stay, and the Court of Appeals affirmed. Deaktor v. L. D. Schreiber & Co., 479 F.2d 529 (CA7 1973). Both courts were in error.\nRicci v. Chicago Mercantile Exchange, 409 U.S. 289 (1973), held that an antitrust action against the Exchange should have been stayed to afford the Commodity Exchange Commission an opportunity to determine if the challenged conduct of the Exchange was in compliance with the statute and with Exchange rules. Because administrative adjudication of alleged violations of the CEA and the rules lay at the heart of the task assigned the Commission by Congress, we recognized that *115 the court, although retaining final authority to interpret the CEA and its relationship to the antitrust laws, should avail itself of the abilities of the Commission to unravel the intricate and technical facts of the commodity industry and to arrive at some judgment as to whether the Exchange had conducted itself in compliance with the law. An adjudication by the Commission that the actions of the Exchange were authorized or required by the CEA would not necessarily dispose of the question of immunity from antitrust liability. We nevertheless thought the considered view of the Commission would be of sufficient aid to the court that the action should not go forward without making reasonable efforts to invoke the jurisdiction of the Commission. Id., at 305-306. As we did in Ricci,\n\"we simply recognize that Congress has established a specialized agency that would determine either that a . . . rule of the Exchange has been violated or that it has been followed. Either judgment would require determination of facts and the interpretation and application of the Act and Exchange rules. And either determination will be of great help to the antitrust court in arriving at the essential accommodation between the antitrust and the regulatory regime . . . .\" Id., at 307.\nIn our judgment, the Court of Appeals, as in Ricci, should have requested the District Court to stay the proceedings in the Phillips case to afford an opportunity to invoke the jurisdiction of the Commission. For very similar reasons, the Deaktor plaintiffs, who also alleged violations of the CEA and the rules of the Exchange, should be routed in the first instance to the agency whose administrative functions appear to encompass adjudication of the kind of substantive claims made against the Exchange in this case.\n*116 The petition for writ of certiorari is granted, the judgment of the Court of Appeals is reversed, and the case remanded for further proceedings consistent with this opinion.\nSo ordered.\nMR. JUSTICE STEWART dissents. He would affirm the judgment substantially upon the reasoning of Judge Castle's concurring opinion in the Court of Appeals. 479 F.2d 529, 535.\n", "ocr": false, "opinion_id": 108886 }, { "author_str": "Per Curiam", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPer Curiam.\nThe petitioner, Chicago Mercantile Exchange, was sued in two separate actions in the District Court. In one, the Phillips suit, it was alleged that the Exchange had forced sales of futures contracts in March 1970 fresh eggs at artificially depressed market prices and had thereby monopolized and restrained commerce in violation of §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1, 2, and had violated § 9 (b) of the Commodity Exchange Act (CEA), as amended, 82 Stat. 33, 7 U. S. C. § 13 (b), by manipulating prices of a commodity for future delivery on a contract market. The Exchange was also accused of violating § 5a of the CEA, 7 U. S. C. § 7a (8), for failure to enforce one of its own rules. In the second suit, the Deaktor case, the Exchange was charged with violating the CEA and its own rules as a designated contract market because it had failed *114to exercise due care to halt the manipulative conduct of certain of its members who allegedly had cornered the July 1970 market in frozen pork bellies futures contracts.\nThe Exchange defended both actions on the ground that it was faithfully discharging its statutory duty of self-regulation. It asserted that its challenged acts in the Phillips case were measures taken to prevent speculation in futures contracts and as such were not in violation of the CEA. Rather, they were authorized and required by the statute and hence cannot be considered within the reach of the antitrust laws. Likewise, in the Deaktor suit, the Exchange claimed that it had taken all proper and reasonable steps to perform its statutory responsibility to prevent manipulation.\nThe Exchange further urged that because the Commodity Exchange Commission had jurisdiction to determine whether the Exchange was violating the CEA or its own rules and to impose sanctions for any such offense, both suits should be stayed to permit the Commission to determine in the first instance whether or not the actions of the Exchange under scrutiny were in discharge of its proper duties under the CEA and its regulations. The District Court refused the stay, and the Court of Appeals affirmed. Deaktor v. L. D. Schreiber & Co., 479 F. 2d 529 (CA7 1973). Both courts were in error.\nRicci v. Chicago Mercantile Exchange, 409 U. S. 289 (1973), held that an antitrust action against the Exchange should have been stayed to afford the Commodity Exchange Commission an opportunity to determine if the challenged conduct of the Exchange was in compliance with the statute and with Exchange rules. Because administrative adjudication of alleged violations of the CEA and the rules lay at the heart of the task assigned the Commission by Congress, we recognized that *115the court, although retaining final authority to interpret the CEA and its relationship to the antitrust laws, should avail itself of the abilities of the Commission to unravel the intricate and technical facts of the commodity industry and to arrive at some judgnaent as to whether the Exchange had conducted itself in compliance with the law. An adjudication by the Commission that the actions of the Exchange were authorized or required by the CEA would not necessarily dispose of the question of immunity from antitrust liability. We nevertheless thought the considered view of the Commission would be of sufficient aid to the court that the action should not go forward without making reasonable efforts to invoke the jurisdiction of the Commission. Id., at 305-306. As we did in Ricci,\n“we simply recognize that Congress has established a specialized agency that would determine either that a . . . rule of the Exchange has been violated or that it has been followed. Either judgment would require determination of facts and the interpretation and application of the Act and Exchange rules. And either determination will be of great help to the antitrust court in arriving at the essential accommodation between the antitrust and the regulatory regime . . . .” Id., at 307.\nIn our judgment, the Court of Appeals, as in Ricci, should have requested the District Court to stay the proceedings in the Phillips case to afford an opportunity to invoke the jurisdiction of the Commission. For very similar reasons, the Deaktor plaintiffs, who also alleged violations of the CEA and the rules of the Exchange, should be routed in the first instance to the agency whose administrative functions appear to encompass adjudication of the kind of substantive claims made against the Exchange in this case.\n*116The petition for writ of certiorari is granted, the judgment of the Court of Appeals is reversed, and the case remanded for further proceedings consistent with this opinion.\n\nSo ordered.\n\n", "ocr": false, "opinion_id": 9425468 }, { "author_str": "Stewart", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMe. Justice Stewart\ndissents. He would affirm the judgment substantially upon the reasoning of Judge Castle’s concurring opinion in the Court of Appeals. 479 F. 2d 529, 535.\n", "ocr": false, "opinion_id": 9425469 } ]

[ "850 F. Supp. 2d 288" ]

[ { "author_str": "Huvelle", "per_curiam": false, "type": "010combined", "page_count": 18, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2011cv1347-15", "author_id": 1582, "opinion_text": " UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n__________________________________________\n )\nAMERICAN SPORTS COUNCIL )\n )\n Plaintiff, )\n )\n v. )\n ) Civil Action No. 11-1347 (ESH)\nUNITED STATES DEPARTMENT OF )\nEDUCATION, et al., )\n )\n Defendants. )\n_________________________________________ )\n\n\n MEMORANDUM OPINION\n\n Plaintiff American Sports Council has sued the Department of Education and the\n\nSecretary of Education (“defendants”) alleging that they violated the Administrative Procedure\n\nAct, 5 U.S.C. § 706 et seq. (“APA”), when they denied plaintiff’s Petition to Repeal, Amend,\n\nand Clarify Rules Applying Title IX to High School Athletics (“Petition”). Plaintiff seeks\n\ndeclaratory and injunctive relief to prevent defendants from applying their rules implementing\n\nTitle IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688 (“Title IX”), to high\n\nschools.\n\n Defendants have moved to dismiss for lack of subject matter jurisdiction on the ground\n\nthat plaintiff lacks standing to pursue its claims, or, in the alternative, for failure to state a claim.\n\nFor the reasons that follow, the Court concludes that plaintiff lacks standing and therefore, it will\n\ngrant defendants’ motion.\n\f BACKGROUND\n\n In 1972, Congress passed Title IX, which provides that, subject to certain limitations,\n\n“[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be\n\ndenied the benefits of, or be subjected to discrimination under any education program or activity\n\nreceiving Federal financial assistance[.]” 20 U.S.C. § 1681(a). Congress amended Title IX in\n\n1974 with language requiring the Department of Health, Education, and Welfare (“HEW”)1 to\n\npromulgate implementing regulations. Education Amendments of 1974, Pub. L. No. 93-380, §\n\n844, 88 Stat. 484, 612 (1974). HEW issued these regulations, 40 Fed. Reg. 24128 et seq. (June\n\n4, 1975), and subsequently issued a 1979 Policy Interpretation, 44 Fed. Reg. 71413 et seq. (Dec.\n\n11, 1979) (“Three-Part Test”), to guide institutions on how to comply with Title IX.2 The\n\nDepartment also issued policy clarifications to the Three-Part Test in 1996, 2003, 2005, and\n\n2010. (Compl. ¶ 13.)\n\n\n\n\n                                                            \n1\n Congress established the Department of Education as a successor to HEW in The Department\nof Education Organization Act, Pub. L. No. 96-88, § 201, 93 Stat. 668, 674 (1979).\n2\n The Three-Part Test provides:\n\n Compliance [with Title IX] will be assessed in any one of the following ways: (1)\n Whether intercollegiate level participation opportunities for male and female\n students are provided in numbers substantially proportionate to their respective\n enrollments; or (2) Where the members of one sex have been and are\n underrepresented among intercollegiate athletes, whether the institution can show\n a history and continuing practice of program expansion which is demonstrably\n responsive to the developing interests and abilities of the members of that sex; or\n (3) Where the members of one sex are underrepresented among intercollegiate\n athletes, and the institution cannot show a history and continuing practice of\n program expansion, as described above, whether it can be demonstrated that the\n interests and abilities of the members of that sex have been fully and effectively\n accommodated by the present program.\n\n44 Fed. Reg. 71418 (Dec. 11, 1979).\n 2\n\f Plaintiff American Sports Council is a “coalition of coaches, athletes, former-athletes,\n\nparents, and fans” organized as a nonprofit in the District of Columbia. (Compl. ¶ 4.) Plaintiff\n\nand its predecessor organization (College Sports Council) have advocated reform or repeal of\n\ndefendants’ 1979, 1996, 2003, and 2005 guidance. (See Compl. ¶ 4; Defs.’ Mem. in Support of\n\nMot. to Dismiss (“Defs.’ Mot.”), at 1-2.) Having failed in its prior efforts, plaintiff petitioned\n\ndefendants on June 19, 2007, pursuant to the APA, 5 U.S.C. § 553(e), to initiate rulemaking that\n\nwould “rescind existing application of the Three-Part Test to high school athletics.”3 (Pl.’s\n\nOpp’n at 12; see also Compl. Ex. 1, at 3, 13-15.) In a four-page letter dated March 27, 2008,\n\nformer Secretary of Education Margaret Spellings declined plaintiff’s Petition. (Compl. Ex. 2.)\n\n On July 21, 2011 plaintiff filed a complaint for declaratory and injunctive relief seeking\n\n(1) declarations that defendants’ petition denial violates the APA, 5 U.S.C. § 706(2)(A), (2)(B);\n\n(2) an injunction preventing defendants from using the Three-Part Test with respect to high\n\nschools; and (3) an injunction requiring the Department to initiate rulemaking in accordance with\n\nplaintiff’s Petition. (Prayer for Relief ¶¶ 1-5). Before the Court is defendants’ motion to dismiss\n\nthe complaint. Under Rules 12(b)(1) and 12(b)(6), given the Court’s holding that plaintiff lacks\n\nstanding, it need not address defendants’ alternative motion to dismiss for failure to state a claim.\n\n ANALYSIS\n\nI. LEGAL STANDARD\n\n Defendant’s motion to dismiss for lack of Article III standing challenges fulfillment of an\n\n“essential and unchanging predicate to any exercise of our jurisdiction.” Nat’l Ass’n of Home\n\nBuilders v. EPA, 667 F.3d 6, 11 (D.C. Cir. 2011) (internal citations and quotation marks\n\n                                                            \n3\n Plaintiff asserts that a petition to rescind existing application of a rule is distinct from a petition\nthat seeks to initiate rulemaking proceedings. (See Pl.’s Opp’n at 12.) This distinction is\nsemantic, as the APA defines a petition for rulemaking as a “petition for the issuance,\namendment, or repeal of a rule” (emphasis added). 5 U.S.C. § 553(e)\n 3\n\fomitted). “For purposes of ruling on a motion to dismiss for want of standing, both the trial and\n\nreviewing courts must accept as true all material allegations of the complaint, and must construe\n\nthe complaint in favor of the complaining party.” Muir v. Navy Federal Credit Union, 529 F.3d\n\n1100, 1105 (D.C. Cir. 2008) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)) (quoted in\n\nparenthetical). Plaintiff bears the burden of establishing proper standing “at the outset of a case.”\n\nSierra Club v. EPA, 292 F.3d 895, 901 (D.C. Cir. 2002).\n\n In alleging facts sufficient to establish the “irreducible constitutional minimum” of\n\nArticle III standing, plaintiff must demonstrate that it or those it represents suffered an injury-in-\n\nfact, the cause of which is fairly traceable to the defendants’ challenged conduct, and which a\n\nfavorable judicial decision would likely redress. See Ctr. for Law and Educ. v. Dep’t of Educ.,\n\n396 F.3d 1152, 1157 (D.C. Cir. 2005) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-\n\n61 (1992)). A “mixture of speculation and conclusory assertion . . . does not satisfy the Supreme\n\nCourt's requirement for ‘specific, concrete facts’ demonstrating injury, and ‘particularized\n\nallegations of fact.’” Block v. Meese, 793 F.2d 1303, 1308 (D.C. Cir. 1986) (quoting Warth, 422\n\nU.S. at 508).\n\n When causation and redressability “hinge on the independent choices of [a] regulated\n\nthird party, ‘it becomes the burden of the plaintiff to adduce facts showing that these choices\n\nhave been or will be made in such manner as to produce causation and permit redressability of\n\ninjury.’” Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 366 F.3d 930, 938 (D.C. Cir.2004)\n\n(“NWCA”) (quoting Lujan, 504 U.S. at 562). A plaintiff has not shown a redressable injury, and\n\ntherefore lacks Article III standing, when “it is purely speculative that a requested change in\n\ngovernment policy will alter the behavior of regulated third parties that are the direct cause of the\n\nplaintiff's injuries.” Id. at 938 (citing Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976)).\n\n\n\n 4\n\fOn the other hand, a plaintiff's injury is redressable when “the relief sought, assuming that the\n\ncourt chooses to grant it, will likely alleviate the particularized injury” alleged. Fla. Audubon\n\nSoc'y v. Bentsen, 94 F.3d 658, 663-64 (D.C.Cir.1996) (citation omitted).\n\n In an effort to defeat defendants’ Rule 12(b)(1) motion, plaintiff claims it has standing to\n\nbring this suit as: (1) an agency petitioner independently injured by defendants’ refusal to grant\n\nplaintiff’s requested rulemaking (see Pl.’s Opp’n at 1-2); (2) a representative of members who\n\nhave purportedly suffered cognizable injury as a result of defendants’ refusal to grant plaintiff’s\n\nrequested rulemaking (see Pl.’s Opp’n at 7-9); and (3) an organization that has itself suffered a\n\ncognizable injury as a result of defendants’ refusal. (See Pl.’s Opp’n at 9-11.)\n\nII. STANDING BASED ON DENIAL OF PETITION FOR RULEMAKING\n\n Under APA § 553(e), “[e]ach agency shall give an interested person the right to petition\n\nfor the issuance, amendment, or repeal of a rule.” 5 U.S.C. § 553(e). Plaintiff alleges that\n\ndefendants’ denial of its § 553(e) Petition violated the APA, and was thus itself a cognizable\n\ninjury conferring constitutional standing. (See Compl. ¶¶ 4, 18, 29; Pl.’s Opp’n at 1-2.) This\n\ntheory cannot survive in light of extensive Circuit precedent holding that “the grant of a\n\nprocedural right alone cannot serve as the basis for Article III standing unless the procedures in\n\nquestion are designed to protect some threatened concrete interest of [petitioner’s] that is the\n\nultimate basis of his standing.” Gettman v. DEA, 290 F.3d 430, 433 (D.C. Cir. 2002) (alteration\n\nin original) (citing Fund Democracy, LLC v. SEC, 278 F.3d 21, 27 (D.C. Cir. 2002) (“Fund\n\nDemocracy”)); see also Hydro Investors, Inc. v. FERC, 351 F.3d 1192, 1197 (D.C. Cir. 2003)\n\n(“Hydro”); Shipbuilders Council of Amer. v. United States, 868 F.2d 452, 456 n.3 (D.C. Cir.\n\n1989). Because plaintiff has not satisfied this test, its claim to standing based on denial of its\n\nPetition must fail.\n\n\n\n 5\n\f The Circuit was presented with an argument similar to the one plaintiff makes here in\n\nGettman. In that case, the DEA denied a petition by John Gettman and High Times Magazine to\n\ninitiate rulemaking proceedings to reschedule marijuana under 21 U.S.C. § 811(a). 290 F.3d at\n\n432. The plaintiffs contended that because 21 U.S.C. § 811(a)(2) permitted “any interested\n\nparty” to file a petition to initiate rulemaking, they had “automatic standing” to appeal the DEA’s\n\ndenial of their petition in federal court. Id. at 433. The Circuit separated its standing inquiry\n\nfrom the DEA’s petition denial, holding that even given the DEA’s petition denial, “unless\n\npetitioners can demonstrate an injury in fact . . . they lack standing to appear before an Article III\n\ncourt.” Id. at 434. Plaintiff distinguishes Gettman by pointing to the Circuit’s decision to uphold\n\ndismissal of the plaintiff magazine’s claim on the grounds that the magazine lacked associational\n\nstanding (see Pl.’s Opp’n at 9), but this distinction is inapposite because the Circuit separately\n\nrejected an argument that the DEA’s refusal to initiate rulemaking alone conferred Article III\n\nstanding on the plaintiffs. Id. at 433.\n\n The Circuit came to a similar conclusion in Fund Democracy, in which an advocacy\n\norganization attempted to intervene in the SEC exemption proceeding of a company, but the SEC\n\ndeclined to give the plaintiff a hearing and granted the exemption. 278 F.3d at 23-25. Plaintiff\n\nthen brought suit and alleged that it had standing to sue as an “interested person” to whom\n\nCongress intended to grant a right to a hearing before the SEC. Id. at 27; see also 17 C.F.R.\n\n270.0-5. Consistent with Gettman, the Circuit held that even assuming Congress had intended to\n\ngrant to plaintiff the statutory right to intervene in an SEC exemption proceeding, “the\n\ndeprivation of that right does not alone confer Article III standing.” Fund Democracy, 278 F.3d\n\nat 28 (“Fund Democracy has no standing” to bring suit for review of SEC order when only\n\ngrounds for standing is adverse order itself).\n\n\n\n 6\n\f Section 553(e) of the APA permits plaintiff to petition defendants for rulemaking just as a\n\nfederal statute, 21 U.S.C. § 811(a), permitted Gettman to petition the DEA for rulemaking and\n\nfederal regulations, 17 C.F.R. 270.0-5, permitted Fund Democracy to petition for a hearing in\n\nSEC exemption proceedings; but as Gettman and Fund Democracy recognized, the right to\n\npetition agencies is not alone sufficient to confer standing for purposes of review in federal court.\n\nSee Gettman, 290 F.3d at 434; Fund Democracy, 278 F.3d at 28. The Circuit precedent is\n\nclear—plaintiff must demonstrate an underlying cognizable injury, aside from the petition denial\n\nitself, to seek review of that denial in federal court.\n\n Furthermore, plaintiff’s assertion that the APA authorizes judicial review here does not\n\nreinforce its claim to standing based solely on denial of its Petition. (See Compl. ¶ 18.) In\n\nHydro, a developer of hydroelectric power projects petitioned FERC as an “interested part[y]”\n\nunder the Federal Power Act, 16 U.S.C. § 825e, alleging that a licensing arrangement between\n\ntwo other corporations violated distinct provisions of the Federal Power Act. 351 F.3d at 1194.\n\nFERC rejected all of the developer’s claims and the developer subsequently brought suit alleging\n\nthat FERC “has failed to regulate [the relevant] projects in accordance with the Federal Power\n\nAct.” Id. The Circuit held that although the Federal Power Act grants the right to petition FERC\n\nto any person complaining of a violation of the Act, FERC’s denial of such a petition was not\n\nalone sufficient grounds to demonstrate Article III standing—even if the denial created a\n\nstatutory right to judicial review under the Federal Power Act. Id. at 1197. In so ruling, the\n\nCircuit noted that “[i]f the petitioner has no Article III concrete interest in receiving the relief\n\nrequested before the agency, this Court has held, Congress has no power to grant a petitioner a\n\nright to seek judicial review of an agency's decision to deny him relief.” Id. (citing Gettman, 290\n\nF.3d at 433; Fund Democracy, 278 F.3d at 27-28).\n\n\n\n 7\n\f Hydro reasoned that if denial of an agency petition were alone sufficient to confer\n\nstanding on the petitioner, Congress could perform an end run around the Article III “cases” or\n\n“controversies” requirement by granting a right to petition agencies to tangential parties. See id.\n\nThus, even assuming arguendo, as plaintiff alleges, that the APA “grants the right of judicial\n\nreview to interested parties when an agency denies a petition to rescind a rule” (Compl. ¶ 18),\n\nCongress would have no power to grant petitioner this right when, as here, plaintiff has no\n\nunderlying Article III interest in receiving the relief requested in its Petition.4 Regardless of\n\nwhether Congress intended to grant plaintiff the right to judicial review under the APA, plaintiff\n\ncannot have standing to bring this suit solely on the basis of defendants’ denial of its Petition.\n\n Plaintiff’s attempts to distinguish Hydro and Fund Democracy are unavailing. Plaintiff\n\nattempts to limit both Hydro and Fund Democracy to a petitioner who was not a party, noting\n\nthat the Hydro plaintiff “was not directly involved in the petitioned for matter” and that the Fund\n\nDemocracy plaintiff “did not have a concrete interest in the exemption petition filed by the\n\ninvestment company with the SEC.” (See Pl.’s Opp’n at 6.) Yet Hydro clearly stated, without\n\nreference to plaintiff’s interest vel non in the matter before FERC, that a petitioner “has not been\n\nindependently wronged simply because the agency denied his advisory request.” 351 F.3d at\n\n1197. Fund Democracy similarly found that “[p]articipation in agency proceedings is alone\n\ninsufficient to satisfy judicial standing requirements.” 278 F.3d at 27. Furthermore, even\n\ngranting that plaintiff has a relatively heightened interest in its Petition as compared to the\n\nplaintiffs in Hydro and Fund Democracy, the proper question for this Court is whether plaintiff\n\n                                                            \n4\n It is far from clear that Congress intended to grant the right to judicial review to disappointed\nagency petitioners who have not independently met the prerequisites for Article III standing. In\nfact, the language of the APA provision granting the statutory right to judicial review\ndemonstrates just the opposite, since Congress recognized cognizable injury to be a necessary\nprerequisite to such review. See 5 U.S.C. § 702 (“A person suffering legal wrong because of an\nagency action . . . is entitled to judicial review thereof.”) (emphasis added).\n 8\n\fhas suffered an injury cognizable under Article III, and not whether plaintiff has a direct and\n\nconcrete interest in filing an agency rulemaking petition. See Gettman, 290 F.3d at 433 (“The\n\nsufficiency of the sort of ‘interest’ allowing an interested party to petition an agency at the will\n\nof Congress and the justicially protectable ‘interest’ required for an inquiry to afford standing in\n\nthe courts is fundamentally the difference between the political branches on the one hand and the\n\nArticle III courts on the other.”). Plaintiff’s status as the sole interested petitioner in this case\n\ndoes not alter its obligation to show an underlying cognizable injury aside from the petition\n\ndenial.\n\n In the face of this well-established precedent, plaintiff relies on a case it previously\n\nlitigated—College Sports Council v. Department of Education, 357 F. Supp. 2d 311 (D.D.C.\n\n2005), rev’d per curiam, 465 F.3d 20 (D.C. Cir. 2007) (“CSC”)—which is factually similar to\n\nthis one. The story of CSC dates back to NWCA, 263 F. Supp. 2d 82 (D.D.C. 2003), aff’d, 366\n\nF.3d 930 (D.C. Cir. 2004). In NWCA, the Circuit affirmed the district court’s dismissal for lack\n\nof standing of the plaintiff men’s college wrestling advocates’ statutory and constitutional claims\n\nthat the Department of Education and other defendants unlawfully applied the Three-Part Test to\n\ncollege athletic programs. 366 F.3d at 949. The Circuit reasoned that while the plaintiffs alleged\n\nthat the defendants’ application of the Three-Part Test to colleges led to elimination or reduction\n\nof men’s wrestling teams, the injury “results from the independent decisions of federally funded\n\neducational institutions that choose to eliminate or reduce the size of men’s wrestling teams in\n\norder to comply with Title IX.” Id. at 933. More relevant to plaintiff’s argument here, Judge\n\nEmmet G. Sullivan of this Court in NWCA accepted a theory of automatic standing by finding\n\nthat “improper denial of a petition brought under 5 U.S.C. § 553(e) constitutes a concrete and\n\nparticularized injury, directly caused by the agency to which the petition was addressed, and\n\n\n\n 9\n\fredressable by this Court through remand to the agency for proper consideration of the petition.”\n\n263 F. Supp. 2d at 126. 5 As to this holding by Judge Sullivan, the Circuit found that the\n\nplaintiffs had not properly petitioned the defendant for repeal or amendment of the Three-Part\n\ntest, and that a new petition pending before the defendants was not ripe for review. NWCA, 366\n\nF.3d at 949. Thus, the Circuit did not reach the automatic standing argument which the district\n\ncourt had endorsed.\n\n A year later in CSC, plaintiffs sought review for claims substantially similar to those in\n\nNWCA. See 357 F. Supp. 2d at 311; (see also Compl. ¶ 4.) Judge Sullivan dismissed several of\n\nthese claims as res judicata, but this time he rejected the argument that the Department of\n\nEducation’s denial of a new petition to repeal the Three-Part Test as applied to college athletics\n\nalone conferred standing on plaintiffs. CSC, 357 F. Supp. 2d at 313. Addressing plaintiffs’\n\nclaim of automatic standing in light of the Circuit’s Gettman and Shipbuilders rulings, Judge\n\nSullivan departed from NWCA to hold that “[a]lthough APA § 553(e) requires agencies to\n\nreceive and consider rulemaking petitions from interested persons, the provision does not\n\nindependently create jurisdiction to challenge denials of such petitions.” Id. On appeal, the\n\nCircuit upheld partial dismissal on res judicata grounds, but found that the “District Court\n\nerroneously concluded that appellant College Sports Council lacked standing to seek judicial\n\nreview of the Department’s denial of the petition to initiate rulemaking” and remanded with\n\ninstructions to review the merits of the plaintiff’s petition denial claim under an “‘extremely\n\nlimited’ and ‘highly deferential’” standard of review. CSC, 465 F.3d at 23 (citing WWHT, Inc. v.\n\n\n                                                            \n5\n While this holding supports plaintiff’s theory of automatic standing, as explained herein, this\nCourt does not find it persuasive. It conflicts with the Circuit’s guidance in Gettman, Fund\nDemocracy, Hydro, and Shipbuilders, it was never explicitly affirmed by the Circuit, and\nultimately Judge Sullivan reversed himself in his subsequent decision in CSC. See 357 F. Supp.\n2d at 313.\n 10\n\fFCC, 656 F.2d 807, 818 (D.C. Cir. 1981)). Plaintiff voluntarily dismissed the suit before\n\nproceedings on remand, and now, over three years later, plaintiff brings this suit, again attacking\n\nthe Three-Part Test claiming standing based on the denial of a petition. (See CSC, Notice of\n\nVoluntary Dismissal, No. 03-2588 [Dkt. 37].)\n\n CSC is not dispositive, for it did not hold, as plaintiff argues, that standing can be based\n\nsolely upon defendants’ denial of its Petition. With regard to denial of the CSC plaintiff’s\n\npetition for rulemaking, the Circuit only held that “[t]he judgment in [NWCA] is not res judicata\n\nas to this issue, and . . . the allegations of the complaint are sufficient to confer standing to bring\n\nthis new claim.” CSC, 465 F.3d at 23. Although the Circuit provided no explanation for finding\n\nthe CSC complaint sufficient to confer standing, there are obvious differences between that case\n\nand this one which undercut plaintiff’s argument here, despite NWCA’s prior holding that\n\nplaintiff lacked standing to challenge the Three-Part Test’s application to college athletics.\n\n The CSC complaint included (1) an affidavit and facts indicating a nexus between the\n\nThree-Part Test and school decisions to cut programs that affected CSC members, (2) a claim\n\nthat the College Sports Council intended to pursue administrative complaints against schools if\n\nthe relief requested were to be granted, and (3) allegations of unlawful interference by the\n\ngovernment in interactions between members of the College Sports Council and individual\n\nschools. (See CSC, Am. Compl., No. 03-2588, at ¶¶ 18-32 (July 30, 2004)). As the College\n\nSports Council itself argued before the Circuit (see Appellants’ Corrected Brief, No. 05-5133, at\n\n14-29 (March 15, 2006)), all of these allegations in favor of a finding of standing could lead a\n\ncourt to conclude that the defects in standing outlined in NWCA were cured in the CSC\n\ncomplaint. In other words, the CSC complaint alleged facts showing some underlying\n\ncognizable injury, not foreclosed by res judicata and independent from the denial of plaintiff’s\n\n\n\n 11\n\fpetition for rulemaking, upon which the Circuit may have based standing. In this case, plaintiff\n\nlimits its standing allegations to the conclusory statements that “the Council has standing for\n\ndeclaratory and injunctive relief to sue the Department over the denial of its Petition” and that\n\nthe “APA grants the right of judicial review to interested parties when an agency denies a\n\npetition to rescind a rule.” (Compl. ¶¶ 4, 18.) The differences between the allegations in the\n\nCSC complaint and those in this case counsel against a conclusion that the Circuit’s unexplained\n\ndecision in CSC should be interpreted as an implicit reversal of Hydro, Fund Democracy,\n\nGettman, and Shipbuilders.6\n\n Moreover, the Circuit in CSC at no point endorsed the theory that denial of a rulemaking\n\npetition automatically confers standing;7 it only announced that “‘[R]efusals to institute\n\nrulemaking proceedings . . . are subject to a judicial check.” CSC, 465 F.3d at 23 (alterations in\n\noriginal) (quoting Nat’l Customs Brokers & Forwarders Ass’n of Amer., Inc. v. United States,\n\n883 F.3d 93, 96 (D.C. Cir. 1989) (“National Customs Brokers”)). National Customs Brokers\n\n\n                                                            \n6\n Because the Circuit in CSC neither sat en banc nor asserted that the full Circuit had been\nconsulted on the issue, an implicit reversal of this sort would be anathema. See United States v.\nCaldwell, 543 F.2d 1333, 1370 n. 19 (D.C. Cir. 1974) (citations omitted) (The Circuit “has long\nadhered to the rule that a recent decision of one panel may not be overruled by another panel, but\nonly by the court en banc.”); Irons v. Diamond, 670 F.2d 265, 268 n. 11 (D.C. Cir. 1981) (One\npanel may reverse another on a discrete point of law provided that the reversal “resolves an\napparent conflict between two prior decisions” and “has been separately considered and\napproved by the full Court.”) \n7\n This argument was briefed before the Circuit in CSC because the Department of Education\ncontended that the district court correctly held that a petition denial was alone insufficient to\nconfer standing. (See Brief for Appellees, No. 05-5133, at 16-17 (Feb. 27, 2006)). College\nSports Council rebutted this assertion only by contending that the district court made\n“inconsistent decisions” when it credited plaintiffs-appellants’ automatic standing argument in\nNWCA, 263 F. Supp. 2d at 126, but not in CSC, 357 F. Supp.2d at 313. (See Appellants’\nCorrected Reply Brief, No. 05-5133, at 10 (March 15, 2006)). College Sports Council argued\nthat a ruling by the Circuit that petition denial did not automatically confer standing “would\nsuggest that the NWCA petition-denial holding exceeded the Court’s jurisdiction, perhaps freeing\nthe district court to consider the NWCA plaintiffs’ Rule 60(b) motion.” (Id. at 10-11.)\n 12\n\fonly notes that refusals to initiate rulemaking are not presumptively unreviewable like\n\nnonenforcement decisions, but it does not stand for the proposition that denials of rulemaking\n\npetitions are sufficient to confer standing. 883 F.3d at 96 (“While Heckler v. Chaney, 470 U.S.\n\n821 (1985), teaches that nonenforcement decisions are presumptively unreviewable, we recently\n\nclarified that refusals to institute rulemaking proceedings remain outside Chaney's core and are\n\nsubject to a judicial check.”).\n\n To interpret CSC’s holding and its citation to National Customs Brokers to mean that\n\nplaintiff has standing based solely on defendants’ denial of its Petition would contravene Circuit\n\nprecedent that requires plaintiff to demonstrate an underlying injury to satisfy the requirements\n\nof Article III. Consistent with that precedent, this Court finds that since petitioners cannot\n\n“demonstrate an injury in fact, both particularized and concrete, as required by the Constitution,\n\nthey lack standing to appear before an Article III court.” Gettman, 290 F.3d 434.\n\nIII. ASSOCIATIONAL STANDING\n\n Alternatively, plaintiff claims standing to bring this suit as the representative of “coaches,\n\nathletes, former-athletes, parents, and fans” affected by the application of the Three-Part Test.\n\n(See Pl.’s Opp’n at 7-9.) The Supreme Court reaffirmed in Hunt v. Washington State Apple\n\nAdvertising Commission, 432 U.S. 333, 342 (1977), that “an association may have standing\n\nsolely as the representative of its members” where, inter alia, its members would have standing\n\nto sue in their own right. See also Fund Democracy, 278 F.3d at 25-26 (applying Hunt test); Am.\n\nLegal Found. v. FCC, 808 F.2d 84, 89 (D.C. Cir. 1987) (same). In Hunt, the Supreme Court\n\ngranted associational standing to a statutorily-created commission that lacked formal members\n\nbecause the commission effectively represented Washington state apple growers who themselves\n\nhad standing to sue. 432 U.S. at 342.\n\n\n\n 13\n\f Plaintiff has not alleged facts sufficient to show that any one of the individuals or entities\n\nit claims to represent has standing to sue in its own right, defeating its claim to associational\n\nstanding.8 The only potentially cognizable injuries to purported members that plaintiff alleges,\n\nalbeit in a conclusory fashion, are that defendants’ “application of the three-part test to high\n\nschool athletics will result in reductions in beneficial athletic opportunities for student-athletes,\n\nand fewer coaching opportunities” (Compl. ¶ 21) and that plaintiff’s purported members “have\n\nbeen, are, and will be directly, adversely, and irreparably affected by the Department’s illegal\n\ndetermination to apply the Three-Part Test to high school athletics.” (Compl. ¶ 30.)\n\n The Circuit has already rejected arguments for associational standing in the Title IX\n\ncontext. See NWCA, 366 F.3d at 933-34. Difficulties with the lack of concreteness,\n\nparticularity, and immediacy of the alleged injuries notwithstanding, causation and redressability\n\nhere “hinge on the independent choices” of a third party to this suit, the federally-funded high\n\nschools that fall under defendants’ regulations. Id. at 938. “The Supreme Court has made it\n\nclear that ‘when the plaintiff is not himself the object of the government action or inaction he\n\nchallenges, standing is not precluded, but it is ordinarily substantially more difficult to\n\nestablish.’” Id. at 933 (quoting Lujan, 504 U.S. at 562).\n\n Plaintiff does not claim to represent the direct object of defendants’ regulations. In light\n\nof the Circuit’s decision in NWCA, plaintiff also fails to allege sufficient facts showing that\n\ndefendants’ actions either caused injuries to those whom it does claim to represent, or that such\n\n                                                            \n8\n Defendants assert that plaintiff is a “member” association, while plaintiff portrays itself as a\n“non-member” association. (See Defs.’ Rep. at 8-9; Pl.’s Opp’n at 11.) Whether plaintiff\nactually has members is irrelevant to disposition of the associational standing claim, since the\nCircuit has construed Hunt to require all organizations claiming such standing to demonstrate\nthat at least one purported member has standing to sue in its own right. See American Library\nAss’n v. FCC, 406 F.3d 689, 696 (D.C. Cir. 2005); Fund Democracy, 278 F.3d at 25-26; Am.\nLegal Found., 808 F.2d at 89. Plaintiff has not fulfilled this requirement.\n\n 14\n\finjuries could be redressed by a favorable decision from this Court. Moreover, plaintiff’s\n\nPetition calls for a repeal as applied to high schools of the 1979, 1996, 2003, and 2005\n\nregulations, but neither Title IX itself nor the 1975 implementing regulations. (See Compl. Ex. 1\n\nat 1). Thus, even if this Court were to grant the sought-after relief and order defendants to\n\ninitiate rulemaking pursuant to plaintiff’s Petition, third party high schools “would still have the\n\ndiscretion to eliminate [plaintiff’s members’] programs, as necessary, to comply with the gender\n\nequity mandate of Title IX.” See NWCA, 366 F.3d at 933. The standing claims of plaintiff’s\n\npurported members, and thus plaintiff’s associational standing claim, are defective for precisely\n\nthe reasons set forth in NWCA. See id.\n\n While plaintiff does assert that high school “administrators have expressed concerns over\n\nthe ramification to student athletes of having to comply with the proportionality mandates of the\n\nThree-Part Test” (Compl. ¶ 23), those concerns do not change the fact that it is “purely\n\nspeculative that a requested change in government policy will alter the behavior of regulated\n\nthird parties that are the direct cause of plaintiff’s injuries.” See NWCA, 366 F.3d at 938. The\n\nidentity of the regulated third parties—in NWCA, postsecondary institutions, and in this case,\n\nhigh schools—does not alter the speculative nature of causation and redressability here.\n\nTherefore, without demonstrating that at least one of its purported members has suffered an\n\ninjury directly caused by defendants and redressable by the relief requested, plaintiff cannot\n\nclaim associational standing.\n\nIV. ORGANIZATIONAL STANDING\n\n Plaintiff’s final theory of standing is that defendants’ actions caused injury to the\n\norganization itself, and that this injury is redressable by a favorable decision from this Court.\n\n(See Pl.’s Opp’n at 9-11.) While it is true under Havens Realty Corporation v. Coleman, 455\n\n\n\n 15\n\fU.S. 363, 378-82 (1982), that an organization can have standing based upon cognizable injury to\n\nitself, that claim fails here for lack of causation and redressability.\n\n “[W]e begin an inquiry into Havens standing by asking whether the defendant's allegedly\n\nunlawful activities injured the plaintiff's interest in promoting its mission.” Am. Soc. for\n\nPrevention of Cruelty to Animals v. Feld Entm't, Inc., 659 F.3d 13, 25 (D.C. Cir. 2011) (citation\n\nomitted). Plaintiff alleges that defendants’ refusal to rescind the Three-Part Test as applied to\n\nhigh school athletics frustrates its organizational mission. (See Pl.’s Opp’n at 10-11.) Yet,\n\nregardless of whether defendants’ Petition denial conflicts with plaintiff’s mission of “preserving\n\nand promoting opportunities for students to participate in organized athletics at the collegiate and\n\nhigh school levels” (Compl. ¶ 4), the “presence of a direct conflict between the defendant's\n\nconduct and the organization's mission is necessary—though not alone sufficient—to establish\n\nstanding.” Nat’l Treasury Emp. Union v. United States, 101 F.3d 1423, 1430 (D.C. Cir. 1996).\n\nTo claim organizational standing, plaintiff must allege that its “activities have been impeded[,]”\n\nnot just that its “mission has been compromised.” See Abigail Alliance for Better Access v.\n\nEschenbach, 469 F.3d 129, 133 (D.C. Cir. 2006) (citation omitted). Thus, the allegation that\n\ndefendants’ actions impede plaintiff’s other activities by necessitating diversion of resources to\n\ncombat the campaigns of “activist groups” to “apply the Three-Part Test to high school\n\nAthletics” becomes central to plaintiff’s claim. (See Pl.’s Opp’n at 10-11.)\n\n There can be no organizational standing where plaintiff cannot “show ‘actual or\n\nthreatened injury in fact that is fairly traceable to the alleged illegal action and likely to be\n\nredressed by a favorable court decision.’” Equal Rights Ctr. v. Post Properties, Inc., 633 F.3d\n\n1136, 1138 (D.C. Cir. 2011) (quoting Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C. Cir.\n\n1990)). Here, plaintiff fails to allege that its diversion of resources was “fairly traceable” to\n\n\n\n 16\n\fdefendants’ conduct, or that a favorable court decision would redress the organizational injuries\n\nsuffered by that diversion. Plaintiff alleges, without any supporting facts, that defendants’ denial\n\nof its Petition directly caused unregulated third parties to file administrative complaints, over two\n\nyears later, seeking application of the Three-Part Test to high school athletics. (See Pl.’s Opp’n\n\nat 10.) In this context, causation and redressability turn on the independent decisions of third\n\nparty activist groups, meaning that plaintiff must allege additional facts linking defendants’\n\nconduct to the third party activist groups’ decisions. As the Supreme Court stated in Lujan:\n\n When . . . a plaintiff's asserted injury arises from the government's allegedly\n unlawful regulation (or lack of regulation) of someone else, much more is needed.\n In that circumstance, causation and redressability ordinarily hinge on the response\n of the regulated (or regulable) third party to the government action or inaction-and\n perhaps on the response of others as well. The existence of one or more of the\n essential elements of standing depends on the unfettered choices made by\n independent actors not before the courts and whose exercise of broad and\n legitimate discretion the courts cannot presume either to control or to predict, and\n it becomes the burden of the plaintiff to adduce facts showing that those choices\n have been or will be made in such manner as to produce causation and permit\n redressability of injury.\n\n504 U.S. at 561–62 (internal citations and quotation marks omitted).\n\n Based on plaintiff’s pleadings, even if this Court were to grant the requested relief, the\n\ndecision of third party activist groups to file Title IX administrative complaints against school\n\ndistricts would remain a matter within the discretion of those groups. Plaintiff’s failure to allege\n\nany facts showing a link between the actions of the third party activist groups and defendants’\n\ndenial of its Petition negates a showing of any causation or redressability here.9 The claim that\n\nactivist groups filed complaints “[p]ursuant to the Department’s failure to clarify that the Three-\n\n\n                                                            \n9\n While the third parties allegedly causing plaintiff’s organizational injuries are unregulated,\nplaintiff still bears the heightened burden of alleging facts to show that the choices of these third\nparties are caused by defendants and would be redressable by a favorable decision from this\nCourt. See Lujan, 504 U.S. at 561-62 (heightened burden when injury caused by decisions of\nregulated third parties or “the response of others”).\n 17\n\fPart Test does not apply to high school athletics” (Pl.’s Opp’n at 10) is no more than “mere\n\n‘unadorned speculation’ as to the existence of a relationship between the challenged government\n\naction and the third-party conduct [and] ‘will not suffice to invoke the federal judicial power.’”\n\nSee NWCA, 366 F.3d at 938 (quoting Simon, 426 U.S. at 44). Without showing that its\n\norganizational injury is fairly traceable to defendants’ conduct or that such injury is redressable\n\nby a favorable decision, plaintiff cannot claim organizational standing.\n\n CONCLUSION\n\n Plaintiff does not have standing merely by virtue of the procedural injury suffered by\n\ndefendants’ denial of its Petition. In addition, plaintiff’s failure to allege sufficient facts to show\n\ndefendants’ actions caused the relevant injuries suffered, or that a favorable court decision would\n\nredress these injuries, defeats its claims of associational and organizational standing. Therefore,\n\nthis Court is without subject matter jurisdiction, and will grant defendants’ motion to dismiss. A\n\nseparate Order accompanies this Memorandum Opinion.\n\n\n\n\n /s/\n ELLEN SEGAL HUVELLE\n United States District Judge\n\nDate: March 27, 2012\n\n\n\n\n 18\n\f", "ocr": false, "opinion_id": 2662690 } ]

[ "628 F.2d 1350" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/628/628.F2d.1350.80-8024.html", "author_id": null, "opinion_text": "628 F.2d 1350\n Newsomev.Garrison\n 80-8024\n UNITED STATES COURT OF APPEALS Fourth Circuit\n 8/14/80\n \n 1\n E.D.N.C.\n \n CPC DENIED; DISMISSED\n ", "ocr": false, "opinion_id": 381613 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 9, "download_url": "http://www.ca5.uscourts.gov/opinions\\pub\\92/92-4126.0.wpd.pdf", "author_id": null, "opinion_text": " United States Court of Appeals,\n\n Fifth Circuit.\n\n No. 92–4126\n\n Summary Calendar.\n\n In The Matter of: Jeani MALOY HILL, Debtor.\n\nEdmond J. ZIELINSKI, Interim Trustee for the Bankruptcy Estate of Jeani Maloy Hill, Appellant,\n\n v.\n\n Jeani MALOY HILL, Appellee.\n\n Sept. 14, 1992.\n\nAppeal from the United States District Court For the Eastern District of Texas.\n\nBefore JONES, DUHÉ and WIENER, Circuit Judges.\n\n PER CURIAM:\n\n The bankruptcy trustee, substitute Appellant on behalf of the FDIC as receiver for\n\nMetropolitan National Bank, formerly Sherry Lane National Bank (Sherry Lane), appeals the\n\njudgment of the district court affirming the bankruptcy court's allowance of a 200 acre rural\n\nhomestead to Debtor, Jeani Maloy Hill, a single grandmother in whose rural Texas home resides her\n\ndivorced and remarried daughter and minor granddaughter. The principal thrust of Appellant's\n\nallegations of error is that Hill, as an unmarried adult, is not entitled to a rural homestead in excess\n\nof 100 acres. In particular, Sherry Lane complains that (1) the bankrupt cy and district courts\n\nmisconstrued Texas homestead law, and (2) Hill's pleadings were deficient in failing to indicate the\n\nnumber of acres comprising her claimed homestead, and the court erred in permitting Hill to amend\n\nher pleading to reflect the acreage claimed. As we find neither error of law nor clearly erroneous\n\nfactual determinations by either of those courts, we affirm.\n\n\n\n I\n\n FACTS AND PROCEEDINGS\n\n In February 1988, Hill filed a voluntary petition for bankruptcy. Electing the state exemption\n\fscheme authorized in the Bankruptcy Code,1 Hill claimed a family rural homestead containing 200\n\nacres. As Hill's primary creditor, Sherry Lane objected, insisting that Hill was limited to the 100 acre\n\nhomestead exemption applicable to single adults. The bankruptcy court conducted a hearing at which\n\nHill and her adult daughter testified regarding Hill's status as head of the household. The testimony\n\nreflects that in 1984, Hill removed and protected her daughter and infant granddaughter from a\n\nhousehold of domestic violence, and that they have ever since resided with and depended upon Hill\n\nfor financial and emotional support. The daughter's first husband has never supported his child. In\n\n1987, Hill's daughter remarried, but her second husband did not live with her until 1988, and then\n\nonly to reduce his expenses. He was unemployed at the time of the hearing and has never financially\n\nsupported either Hill's daughter or granddaughter. According to the testimony, Hill's daughter\n\nreturned to work in 1988, but her income is insufficient to support her and her child. Hill testified\n\nthat she pays the household expenses with funds received from a former business partner.\n\n\n\n The bankruptcy court found that Hill is a head of household and that her daughter and\n\ngranddaughter are dependent upon her for financial, moral and emotional support, as well as for their\n\nphysical safety. The bankruptcy court accordingly held that Hill was entitled to the 200 acre family\n\nrural homestead exemption. The district court affirmed. Sherry Lane timely appealed; this court\n\ngranted its motion to substitute the bankruptcy trustee as appellant.\n\n\n\n II\n\n ANALYSIS\n\n The bankruptcy court's factual findings regarding Hill's homestead interest are subject to the\n\nclearly erroneous standard of review.2 Pursuant to this standard, we must defer to that court's\n\n 1\n A Texas debtor in bankruptcy proceedings must elect between the federal and the state\nexemption scheme. In re Dyke, 943 F.2d 1435, 1438 (5th Cir.1991). Because Hill elected the\nTexas scheme, Texas state law delineates her available exemptions.\n 2\n In re Bradley, 960 F.2d 502, 507 (5th Cir.1992) (citing In re Niland, 825 F.2d 801, 806 (5th\nCir.1987)); see also United States v. Blakeman, ––– F.2d ––––, No. 91–1027 (5th Cir.1992)\n(citing Bradley) (district court determination of a rural homestead is reviewed for clear error).\n\ffindings unless, after review of all the evidence, we are left with a firm and definite conviction that\n\nthe bankruptcy court erred.3 We review the court's legal conclusions de novo.4\n\n\n\n The constitutional and statutory provisions protecting Texas homestead exemptions are\n\naccorded liberal construction.5 The Texas Constitution provides:\n\n\n\n Section 50. The homestead of a family, or of a single adult person, shall be, and is hereby\n protected....\n\n Section 51. The homestead, not in a town or city, shall consist of not more than two hundred\n acres of land, which may be in one or more parcels, with the improvements thereon; the\n homestead in a city, town or village, shall consist of lot or lots amounting to not more than\n one acre of land, together with any improvements on the land; provided, that the same shall\n be used for the purposes of a home, or as a place to exercise the calling or business of the\n homestead claimant, whether a single adult person, or the head of a family; provided also,\n that any temporary renting of the homestead shall not change the character of the same, when\n no other homestead has been acquired.6\n\n The \"homestead\" is also defined statutorily:\n\n\n\n If used for the purposes of a rural home, the homestead shall consist of:\n\n (1) for a family, not more than 200 acres, which may be in one or more parcels, with\n the improvements thereon; or\n\n (2) for a single, adult person, not otherwise entitled to a homestead, not more than\n 100 acres, which may be in one or more parcels, with the improvements thereon.7\n\n Prior to 1973, a homestead only inured to the benefit of a \"family.\" The framers of the Texas\n\n 3\n Bradley, 960 F.2d at 507 (citing United States v. Gypsum Co., 333 U.S. 364, 68 S. Ct. 525,\n92 L. Ed. 746 (1948)).\n 4\n Bradley, 960 F.2d at 507 (citation omitted).\n 5\n Bradley, 960 F.2d at 507; In re Moody, 862 F.2d 1194, 1197 (5th Cir.1989), cert. denied,\n––– U.S. ––––, 112 S. Ct. 1562, 118 L. Ed. 2d 209 (1992) (\"Texas constitutional and statutory\nprotection of the homestead is absolute.\" (citing In re Reed, 700 F.2d 986, 990 (5th Cir.1983)));\nInwood North Homeowners' Assoc. v. Harris, 736 S.W.2d 632 (Tex.1987); In re Harrison, 1990\nWL 338989, No. 390–34092 (Bankr.N.D.Tex. November 14, 1990) (describing the broad\nhomestead protection as well established).\n 6\n TEX.CONST. art. 16, §§ 50, 51.\n 7\n TEX.PROP.CODE ANN. § 41.002(b) (Vernon Supp.1992) (emphasis added).\n\fconstitution intended that the legislature or the judiciary would define or apply this term.8 The\n\nlegislature has not given \"family\" a statutory definition. For over a century, however, the courts of\n\nTexas have held that (1) the family relation is one of status, (2) the head of the family must be legally\n\nor morally obligated to support at least one other family member, and (3) there must be a\n\ncorresponding dependence on the other member for this support.9 There has never been a\n\nrequirement that the head of the family be married.10 The requisite familial relationship may be\n\nbetween siblings,11 adult children and their parents,12 or grandparents and grandchildren.13\n\n\n\n In 1973, the Texas legislature amended the definition of homestead to provide for single\n\nadults.14 Sherry Lane argues that this augmentation of the homestead right changed the definition of\n\n\n 8\n Reconstruction Finance Corp. v. Burgess, 155 S.W.2d 977 (Tex.Civ.App.1941); 43 TEXAS\nJUR § 54, p. 467 (3d ed. 1985).\n 9\n Roco v. Green, 50 Tex. 483 (1878); Henry S. Miller Company v. Shoaf, 434 S.W.2d 243,\n244 (Tex.Civ.App.1968); Stout v. Anthony, 254 S.W.2d 879, 880 (Tex.Civ.App.1952); Garrard\nv. Henderson, 209 S.W.2d 225, 228 (Tex.Civ.App.1948); Seley v. Howell, 115 Tex. 583, 285\nS.W. 815, 817 (Tex.Comm.App.1926); see also 43 TEXAS JUR § 54.\n 10\n Renaldo v. Bank of San Antonio, 630 S.W.2d 638 (Tex.1982) (interpreting the pre–1973\nrevision law and holding that divorced husband was entitled to a homestead as head of family);\nWoods v. Alvarado State Bank, 118 Tex. 586, 19 S.W.2d 35 (1929); Henry S. Miller Co. v.\nShoaf, 434 S.W.2d 243 (single woman was head of household where her mother was dependent\nupon her); Lynda Beck Fenwick, Note, 26 BAYLOR L.REV. 658, 658–59 (1974).\n 11\n See Henry S. Miller Co. v. Shoaf, 434 S.W.2d at 244; Garrard v. Henderson, 209 S.W.2d\nat 229 (citing Central Life Assurance Society v. Gray, 32 S.W.2d 259 (Tex.Civ.App.1930)).\n 12\n Henry S. Miller Co. v. Shoaf, 434 S.W.2d 243 (single woman was head of household where\nher mother was dependent upon her); Hutchenrider v. Smith, 242 S.W. 204\n(Tex.Com.App.1922).\n 13\n Elliott v. Texas Pacific Coal & Oil Co., 29 S.W.2d 982 (Tex.Com.App.1930) (applying the\nfamily homestead test to a grandmother's claim that granddaughter was dependent upon her but\nconcluding that evidence was insufficient to support the grandmother's claim); Tunnell v.\nJohnson, 209 S.W. 451 (Tex.Civ.App.1919) (debtor grandmother and two granddaughters\nqualified for family status).\n 14\n TEX.REV.CIV.STAT. art. 3833, amended by Acts 1973, 63rd Leg., p. 1627, ch. 588, § 1,\nrepealed by Acts 1983, 68th Leg., p. 3729, ch. 576, § 6 (current version at Tex.Prop.Code §\n41.002). Since 1973, the Property Code definition of homestead has undergone stylistic changes,\ninitially being codified at section 41.001 of the Code. See discussion, In re Mitchell, 132 B.R.\n553 (Bankr.W.D.Tex.1991).\n\fthe word \"family\" to exclude any family unit in which an unmarried person is the head of the\n\nhousehold. We disagree.\n\n\n\n The 1973 amendments were intended to grant additional homestead rights to single adults,\n\nnot to decrease the pre-revision homestead acreage afforded families with a single adult head of\n\nhousehold.15 The word \"family\" is a term of art in Texas jurisprudence.16 A well settled rule of\n\nstatutory construction holds that an enacting legislature is presumed to have been aware of the\n\njudicial construction of existing law.17 Indeed, the homestead statute applies the 100 acre limitation\n\nto \"a single, adult person, not otherwise entitled to a homestead.\" The legislature thereby\n\naccommodated the jurisprudential definition of family that has been consistently applied in Texas since\n\nthe nineteenth century.18 The legislature thereby accommodated the jurisprudential definition of\n\nfamily that has been consistently applied in Texas since the nineteenth century.19\n\n\n\n Sherry Lane also argues that Hill has not proved the elements of a family. Again, we\n\ndisagree. Texas jurisprudence has recognized in the context of the homestead, regarding the requisite\n\nelement of status, that \"[a] social status greatly exists between parents and their children[.]\"20 In this\n\ncase the testimony reflects that Hill, her daughter and granddaughter function and appear as a unit\n\nin the community.\n\n\n\n 15\n Cf. L. Fenwick, supra note 8 at 658–59 (explaining that the change in law extends new rights\nto single adults).\n 16\n See In re Barnett, 33 B.R. 70, 71 (Bankr.N.D.Tex.1983) (\"The term \"family' contained in the\nold Article 3833, construed to include a single divorced parent by the Texas Supreme Court in a\ncontinuing line of cases for over 50 years, is a term of art, and was left undisturbed by the\nlegislature when it enacted the 1973 amendments.\").\n 17\n See Shapiro v. United States, 335 U.S. 1, 16, 68 S. Ct. 1375, 1383, 92 L. Ed. 1787 (1948).\n 18\n TEX.PROP.CODE ANN. § 41.002(b)(2) (emphasis added).\n 19\n In re Barnett, 33 B.R. at 71.\n 20\n Garrard v. Henderson, 209 S.W.2d at 228.\n\f Sherry Lane next contends that because her daughter is married, Hill does not have a financial\n\nor moral obligation to support her. Sherry Lane cites no Texas authority for such a per se rule, and\n\nwe find none. In the absence of such a rule, we conclude that the bankruptcy court in this case was\n\nentitled to credit and to rely on the testimony that the daughter and granddaughter were in physical\n\ndanger in 1984, had no other avenue of assistance but Hill, and have depended on her for emotional\n\nand financial support continually since that time. That they have never received assistance from either\n\nof the daughter's husbands underscores the propriety of the bankruptcy court's conclusion.\n\n\n\n We recognize that married children are not expressly included in the Texas Probate Code's\n\nhomestead estate exemption.21 We also note, however, that neither siblings nor parents are\n\nmentioned in the restrictive probate estate definition, yet both siblings and parents have been held to\n\nqualify as family members for homestead purposes generally. Even assuming that the Probate Code\n\nrestriction applies to the homestead exemption in a bankruptcy case, Hill could have attained head\n\nof household status prior to the daughter's marriage.22 In addition, a grandchild may qualify as the\n\ndependent family member even if the parents are still living.23\n\n\n\n Sherry Lane's next argument, that the daughter's employment disproves her dependence on\n\nher mother, overlooks the testimony that the daughter's income is insufficient to enable her to leave\n\nher mother's household. This argument overlooks the fact that absolute dependence is not necessary\n\nto fulfill the third prong of the Texas test. Central Life Assure Society v. Gray, 32 S.W.2d 259\n\n(Ct.Civ.App.—Waco, 1930, writ ref.). The findings of the bankruptcy judge prove the level of\n\nsupport necessary for dependence under Texas law. Although the term has not been directly defined\n\n 21\n TEX.PROB.CODE § 271 (Vernon 1980) (Exemption benefits \"surviving spouse and minor\nchildren and unmarried children remaining with the family of the deceased.\"); see In re Nunnally,\n506 F.2d 1024 (5th Cir.1975) (citing Givens v. Hudson, 64 Tex. 471 (1885) and explaining the\nprobate rule).\n 22\n See Woods v. Alvarado State Bank, 118 Tex. 586, 19 S.W.2d 35 (1929) (homestead rights of\nhead of family were not destroyed when children lost family member status by moving away).\n 23\n Tunnell v. Johnson, 209 S.W. 451 (Tex.Civ.App.1919).\n\fin Texas Ho mestead law, other areas of law have defined the term \"dependence\" in analogous\n\nsituations.\n\n\n\n Under Texas Workman's Compensation law a dependent is one who is sustained in whole\n\nor part by another for reasonable necessaries in subst antial amounts allowing the recipient to live\n\nconsistent with his or her position in society. Turner v. Travelers Insurance Co., 401 S.W.2d 618,\n\n622 (Tex.Civ.App.1966, writ ref. n.r.e.) (defining dependence in general); Stanaland v. Traders &\n\nGeneral Insurance Co., 195 S.W.2d 118 (Tex.1946) (substantial part); Industrial Accident Bd. v.\n\nLance, 556 S.W.2d 101, 102 (Tex.Civ.App.—Amarillo, 1977, no writ) (noting at 103 \"the test is:\n\nWas the alleged beneficiary relying in whole or in part upon the labors of the deceased for support?\");\n\nFederal Underwriters Exchange v. Hall, 179 S.W.2d 519, 523 (Tex.Civ.App.—Dallas, 1944),\n\nmodified on other grounds, 143 Tex. 36, 182 S.W.2d 703 (noting \"dependence may be proven as a\n\nfact without arithmetical demonstration.\") (citing Consolidated Underwriters v. Free, 253 S.W. 941\n\n(Tex.Civ.App.—Fort Worth, 1923, writ ref.)). If that test is applied to the instant case the debtor\n\nhad to prove that her daughter relied on her for some part of her support; that is, \"but for\" such\n\nsupport the recipient's position would be altered. Although the lower court erroneously used a much\n\nlighter \"any dependency\" standard, this error is harmless. The lower court's factual findings fulfill the\n\ncorrect Texas test.\n\n\n\n Appellee asserts alternatively that the moral support given to her daughter alone fulfills the\n\nthird prong of the Texas test. This is an incorrect reading of Texas law. Texas cases have held that\n\nin the case of minor children, to satisfy the third prong of the Roco test, financial dependence is not\n\nnecessary. See, e.g., American National Bank of Austin v. Cruger, 31 Tex. Civ. App. 17, 71 S.W.\n\n784, 788 (1902, no writ) (noting that even though supposed dependents were owners of a valuable\n\nfarm they still depended upon appellant for moral training); Garrard v. Henderson, 209 S.W.2d 225,\n\n227 (Tex.Civ.App.—Dallas, 1948, no writ) (minor child); Wolf v. Buckley, 52 Tex. 641 (1890)\n\n(minor children although having an estate still dependent for moral training). Texas courts have taken\n\fone further step and said that a dependent and infirm elderly parent may be dependent in terms of\n\nmoral support. Hutchenrider v. Smith, 242 S.W. 204, 209 (Tex.Comm.App.—Section B 1922, no\n\nwrit). However, in that case it was stated that absent the help of the children the \"father would be\n\nin poverty.\" Id. at 207.\n\n\n\n In this case there are neither minor children nor infirm parents who may be morally dependent\n\nupon the debtor. The cases cited by the debtor for moral support alone are inapposite as they deal\n\nwith the definition of the family in terms of the first prong of the Roco test. Because that prong is\n\nsatisfied by a legal or moral obligation, cases mentioning moral obligation in that context have no\n\nbearing on the dependency issue that constitutes the third prong. However, as mentioned above, even\n\nthough the bankruptcy court accepted appellee's incorrect argument to some degree, its factual\n\nfindings demonstrate the degree of financial dependence that is the true measure of Roco's third\n\nprong.\n\n\n\n Sherry Lane also contends that the admission of Hill's homestead evidence was reversible\n\nerror because Sherry Lane's counsel was surprised by it and had no opportunity to respond. The\n\ntrustee makes the related argument that Hill neglected to plead entitlement to a 200 acre homestead\n\nproperly. Sherry Lane objected to this evidence at the time of the bankruptcy hearing and in a Motion\n\nto Strike. We conclude that the bankruptcy court did not abuse it s discretion in denying these\n\nmotions.24\n\n\n\n Schedule B–1 of Hill's bankruptcy petition lists the homestead and recites its value, but not\n\nits acreage. In its objection to the homestead exemption, Sherry Lane asserted that the homestead\n\nclaimed by Hill comprises 200 acres but that by law Hill is limited to a 100 acre exemption. In\n\nresponse, Hill admitted that the acreage claimed is 200 but denied that the law limits her to 100 acres.\n\n\n 24\n See In Matter of Beaubouef, 966 F.2d 174 (5th Cir.1992) (abuse of discretion review of\nchallenge to admitted evidence based on allegation of surprise and failure to plead).\n\fIn denying Sherry Lane's objection to the homestead claim, the bankruptcy court took \"judicial notice\n\nof the fact that [Hill] claims and has claimed in her schedules 200 acres as exempt property.\" Even\n\nassuming that Hill's pleadings were deficient on this issue, the court was empowered to allow\n\namendment of the pleadings instanter as long as Sherry Lane was not prejudiced by the amendment.25\n\nAs the record reflects that Sherry Lane had ample notice of the homestead issue, we find no basis for\n\nthe claim of reversible error.\n\n\n\n We also reject Sherry Lane's contention that the district court erred in accepting the\n\nbankruptcy court's findings of fact. Pursuant to Bankruptcy rule 8013, the district court was required\n\nto accept the findings unless they were clearly erroneous. As all of the findings are directly based on\n\nreasonable testimonial evidence, we find no clear error.\n\n\n\n III\n\n CONCLUSION\n\n The bankruptcy court did not abuse its discretion in allowing Hill to amend her pleadings\n\ninstanter to include the acreage figure for the clearly identifiable homestead for which she had already\n\nclaimed an exemption. As such, her evidence of head of household status was admissible, and the\n\nbankruptcy court was not clearly erroneous in finding that Hill was in fact the head of a family\n\nhousehold within the contemplation of the applicable homestead laws of Texas. Concluding that\n\nneither the bankruptcy court nor the district court committed reversible error, the judgment appealed\n\nfrom is\n\n\n\n AFFIRMED.\n\n\n\n\n 25\n Id. (citing Fed.R.Civ.P. Rule 15(b) and Hardin v. Manitowoc–Forsythe Corp., 691 F.2d 449,\n457 (10th Cir.1982)).\n\f", "ocr": false, "opinion_id": 5173 } ]

[ "639 F.2d 785" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/639/639.F2d.785.79-2560.html", "author_id": null, "opinion_text": "639 F.2d 785\n Thompsonv.Larry Goad and Co., Inc.\n 79-2560\n UNITED STATES COURT OF APPEALS Seventh Circuit\n 10/16/80\n \n 1\n S.D.Ill.\n \n AFFIRMED\n ", "ocr": false, "opinion_id": 386702 } ]

[ "910 F. Supp. 2d 242" ]

[ { "author_str": "Sullivan", "per_curiam": false, "type": "010combined", "page_count": 35, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2011cv1733-144", "author_id": 3133, "opinion_text": " UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n\n )\nDANIEL BRINK, et al., )\n )\n Plaintiffs, )\n ) Civil Action No. 11-1733 (EGS)\n v. )\n )\nXE HOLDING, LLC, et al., )\n )\n Defendants. )\n )\n\n MEMORANDUM OPINION\n\n Plaintiffs, thirty-one civilian government contractor\n\nemployees (and/or their surviving relatives), bring this\n\npurported class action against twenty-three defendants, which\n\ninclude United States government contractors (the “Contractor\n\nDefendants”) and their insurance carriers (the “Insurer\n\nDefendants”) (collectively, “Defendants”).1 Plaintiffs allege\n\nviolations of the Longshore and Harbor Workers’ Compensation\n\nAct, 33 U.S.C. § 948a, the Racketeer Influenced and Corrupt\n\nOrganizations Act (“RICO”), 18 U.S.C. § 1861, et seq., the\n\nAmericans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et\n\nseq., and several common law tort claims, based upon Defendants’\n\nhandling of Plaintiffs’ claims for medical benefits under the\n\n\n                                                            \n 1\n Pursuant to a Stipulation filed on August 27, 2012,\nPlaintiffs dismissed all claims against Defendant Parsons Group.\nSee Docket No. 108.\n\fDefense Base Act. Pending before the Court are fourteen motions\n\nto dismiss pursuant to Rules 12(b)(1), 12(b)(2), 12(b)(3), and\n\n12(b)(6) of the Federal Rules of Civil Procedure.2 Upon\n\n\n                                                            \n 2\n In resolving the pending motions, the Court has relied on\nthe following documents: Plaintiffs’ Second Amended Complaint\n[Docket No. 50]; Contractor Defendants’ Joint Motion to Dismiss\n[Docket No. 80]; Plaintiffs’ Opposition to Contractor\nDefendants’ Joint Motion to Dismiss [Docket No. 114]; Contractor\nDefendants’ Joint Reply [Docket No. 127]; Insurer Defendants’\nJoint Motion to Dismiss [Docket No. 82]; Plaintiffs’ Opposition\nto Insurer Defendants’ Joint Motion to Dismiss [Docket No. 115];\nInsurer Defendants’ Reply [Docket No. 138]; Plaintiffs’\nOpposition to Defendant KBR and Halliburton’s Motion to Dismiss\n[Docket No. 121]; Defendants KBR and Halliburton’s Reply [Docket\nNo. 130]; Defendant Academi’s Motion to Dismiss [Docket No. 83];\nPlaintiffs’ Opposition to Defendant Academi’s Motion to Dismiss\n[Docket No. 109]; Defendant Academi’s Reply [Docket No. 133];\nDefendants Wackenhut International and Ronco Consulting’s Motion\nto Dismiss [Docket No. 85]; Plaintiffs’ Opposition to Defendants\nWackenhut International and Ronco Consulting’s Motion to Dismiss\n[Docket No. 111]; Defendants Wackenhut International and Ronco\nConsulting’s Reply [Docket No. 134]; Defendant Northrop\nGrumman’s Motion to Dismiss [Docket No. 87]; Plaintiffs’\nOpposition to Defendant Northrop Grumman’s Motion to Dismiss\n[Docket No. 120]; Defendant Northrop Grumman’s Reply [Docket No.\n140]; Defendant Global Linguist Solutions’ Motion to Dismiss\n[Docket No. 88]; Plaintiffs’ Opposition to Defendant Global\nLinguist Solutions’ Motion to Dismiss [Docket No. 117];\nDefendant Global Linguist Solutions’ Reply [Docket No. 136];\nDefendants AECOM Government Services and Combat Support\nAssociates’ Motion to Dismiss [Docket No. 89]; Plaintiffs’\nOpposition to Defendants AECOM Government Services and Combat\nSupport Associates’ Motion to Dismiss [Docket No. 113];\nDefendants AECOM Government Services and Combat Support\nAssociates’ Reply [Docket No. 135]; Defendant Exelis Systems’\nMotion to Dismiss [Docket No. 91]; Plaintiffs’ Opposition to\nDefendant Exelis Systems’ Motion to Dismiss [Docket No. 116];\nDefendant Exelis Systems’ Reply [Docket No. 139]; Defendant L-3\nServices’ Motion to Dismiss [Docket No. 93]; Plaintiffs’\nOpposition to Defendant L-3 Services’ Motion to Dismiss [Docket\nNo. 119]; Defendant L-3 Services’ Reply [Docket No. 131];\nDefendant US Investigations Services’ Motion to Dismiss [Docket\nNo. 94]; Defendant USIS International’s Motion to Dismiss\n 2\n \n\fconsideration of the motions, the responses and replies thereto,\n\nthe relevant law, and the entire record in this case, the Court\n\nwill GRANT the motions and DISMISS Plaintiffs’ claims.\n\nI. BACKGROUND\n\n A. Statutory Background\n\n The Defense Base Act (“DBA”), 42 U.S.C. § 1651 et seq.,\n\nestablishes a uniform, federal compensation scheme for civilian\n\ncontractors and their employees for injuries sustained while\n\nproviding functions under contracts with the United States\n\noutside its borders. The DBA applies “the provisions of the\n\nLongshore and Harbor Workers’ Compensation Act [33 U.S.C. § 901\n\net seq. (the “LHWCA” or the “Longshore Act”)] . . . in respect\n\nto the injury or death of any employee engaged in any employment\n\n. . . under a contract entered into with the United States . . .\n\nwhere such contract is to be performed outside the continental\n\nUnited States . . . .” 42 U.S.C. § 1651(a)(4). As Plaintiffs\n                                                                                                                                                                                               \n  \n[Docket No. 95]; Plaintiffs’ Combined Opposition to Defendants\nUS Investigations Services and USIS International’s Motions to\nDismiss [Docket No. 122]; Defendant US Investigations Services’\nReply [Docket No. 128]; Defendant USIS International’s Reply\n[Docket No. 129]; Defendant DynCorp International’s Motion to\nDismiss [Docket No. 99]; Plaintiffs’ Opposition to Defendant\nDynCorp International’s Motion to Dismiss [Docket No. 112];\nDefendant DynCorp International’s Reply [Docket No. 132];\nDefendant CNA Financial’s Motion to Dismiss [Docket No. 90];\nPlaintiffs’ Opposition to Defendant CNA Financial’s Motion to\nDismiss [Docket No. 110]; Defendant CNA Financial’s Reply\n[Docket No. 137]; Defendant Khudairi Group’s Motion to Dismiss\n[Docket No. 100]; Plaintiffs’ Opposition to Defendant Khudairi\nGroup’s Motion to Dismiss [Docket No. 118]; Defendant Khudairi\nGroup’s Reply [Docket No. 141].\n 3\n \n\fnote at the outset of their Complaint, “[the] DBA system is\n\nadministered according to statute by the United States\n\nDepartment of Labor (DOL), in the administrative Office of\n\nWorkers’ Compensation Programs (OWCP), subject to hearing and\n\ndecision in contested cases by the Office of Administrative Law\n\nJudges (OALJ) of the DOL, and administrative appeal to the\n\nBenefits Review Board. If a matter works its way through the\n\nOWCP, OALJ, and Board, only then can a party appeal into the\n\nfederal courts.” Second Am. Compl. (“SAC”) ¶ 2 (citing 33\n\nU.S.C. §§ 919, 921(b)(3)).\n\n The DBA includes a provision that makes an employer’s\n\nliability under the statutory scheme exclusive:\n\n The liability of an employer, contractor (or any\n subcontractor or subordinate subcontractor with respect to\n the contract of such contractor) under this chapter shall\n be exclusive and in place of all other liability of such\n employer, contractor, subcontractor, or subordinate\n contractor to his employees (and their dependents) coming\n within the purview of this chapter, under the workmen’s\n compensation law of any State, Territory, or other\n jurisdiction, irrespective of the place where the contract\n of hire of any such employee may have been made or entered\n into.\n\n42 U.S.C. § 1651(c); see also 33 U.S.C. § 905(a) (“The liability\n\nof an employer prescribed in section 4 [of the LHWCA, 33 U.S.C.\n\n§ 904] shall be exclusive and in place of all other liability of\n\nsuch employer to the employee, his legal representative, husband\n\nor wife, parents, dependents, next of kin, and anyone otherwise\n\nentitled to recover damages from such employer at law . . . on\n\n 4\n \n\faccount of [an employee’s] injury or death.”). Like the LHWCA\n\nand other workers’ compensation statutes, the DBA represents a\n\ncompromise between employees and their employers: “[e]mployers\n\nrelinquish[] their defenses to tort actions in exchange for\n\nlimited and predictable liability,” and “[e]mployees accept the\n\nlimited recovery because they receive prompt relief without the\n\nexpense, uncertainty, and delay that tort actions entail.”\n\nMorrison-Knudsen Constr. Co. v. Dir., Office of Workers’ Comp.\n\nPrograms, 461 U.S. 624, 636 (1983).\n\n The DBA incorporates the LHWCA’s detailed administrative\n\nprocedures for the filing, adjudication, and payment of workers’\n\ncompensation claims. An injured employee or decedent is\n\nrequired to give written notice of injury or death within thirty\n\ndays after either the date of the injury or death, or the date\n\nthe employee or beneficiary becomes aware or should have been\n\naware of the injury or death. See 33 U.S.C. § 912; 20 C.F.R. §\n\n702.212. A claimant then has one year within which to file a\n\nclaim for compensation on account of that injury or death. See\n\n33 U.S.C. § 913(a). Within ten days of learning that an\n\nemployee has been injured, an employer must send a report to the\n\nDepartment of Labor “District Director.” See 33 U.S.C. §\n\n930(a); 20 C.F.R. § 702.201. Unless the employer is self-\n\ninsured, the employer’s DBA insurance carrier is responsible for\n\nprocessing and payment of an injured employee’s claim. See 33\n\n 5\n \n\fU.S.C. § 935; 20 C.F.R. § 703.115. The District Director must\n\nbe notified when payments commence and if payment is suspended\n\nfor any reason. See 20 C.F.R. § 702.234. If the right to\n\ncompensation is controverted by the employer, 33 U.S.C. §\n\n914(d); 20 C.F.R. § 702.251, no benefits are due until a\n\ncompensation award is made by the District Director. Upon\n\nreceiving a notice of controversion or an employee’s challenge\n\nto reduction, suspension, or termination of benefits, the\n\nDistrict Director commences adjudication proceedings. See 20\n\nC.F.R. §§ 702.252, 702.261-262. There is a mandatory three-tier\n\nprocess for adjudicating claims: (1) informal mediation before\n\nthe District Director; (2) formal hearings and fact-finding\n\nproceedings before an Administrative Law Judge; and (3)\n\nappellate review by the Department of Labor Benefits Review\n\nBoard, which is subject to further appellate review by a court\n\nof competent jurisdiction. See 33 U.S.C. § 921; 20 C.F.R. §§\n\n702.311-319 (“Action by District Directors”); 702.331-351\n\n(“Formal Hearings”); 702.371-373 (“Interlocutory Matters”);\n\n702.391-394 (“Appeals”); see also 42 U.S.C. § 1653(b). An\n\nemployee who successfully prosecutes a controverted claim is\n\nentitled to attorneys’ fees. See 33 U.S.C. § 928; 20 C.F.R. §\n\n702.134.\n\n The LHWCA’s administrative scheme also provides for a\n\nnumber of penalties, which include, inter alia:\n\n 6\n \n\f  penalties for failure to timely report employee\n injuries, see 33 U.S.C. § 930(e); 20 C.F.R. § 702.204;\n  penalties paid directly to the employee for failure to\n timely pay pre-award or post-award compensation, see\n 33 U.S.C. §§ 914(e)-(f); 20 C.F.R. §§ 702.233,\n 702.350;\n  penalties for making false statements or\n misrepresentations in reporting employee injuries, see\n 33 U.S.C. § 930(e); 20 C.F.R. § 702.204;\n  criminal penalties and imprisonment for false\n statements or misrepresentations made to reduce, deny,\n or terminate benefits, 33 U.S.C. § 931(c); 20 C.F.R. §\n 702.217(b);\n  criminal penalties, imprisonment, and other remedies\n for failure to pay compensation, see 33 U.S.C. § 938;\n  judicial enforcement of a final compensation order,\n see 33 U.S.C. § 921(d); and\n  penalties and the payment of lost wages for\n retaliation, wrongful discharge or discrimination with\n regard to employees who claim or attempt to claim\n benefits, see 33 U.S.C. § 948a; 20 C.F.R. § 702.271.\n\n B. Factual and Procedural Background\n\n This action arises out of Defense Base Act claims filed by\n\ncivilian government contractor employees who suffered injuries\n\nwhile working in Afghanistan and Iraq. Plaintiffs, the\n\ncontractor employees and/or their surviving relatives,3 purport\n\nto bring this action on behalf of more than 10,000 similarly\n\nsituated individuals who were denied benefits under the DBA.\n\n\n\n\n                                                            \n 3\n One plaintiff, Nicky Pool, is the nurse for another\nPlaintiff, Daniel Brink. See SAC ¶¶ 477-88. Ms. Pool alleges\nthat CNA has refused to pay medical invoices that she sent for\ncare of Mr. Brink.\n 7\n \n\f According to the SAC, Defendants, in conspiracy with\n\nothers, have sought to defeat the rights of American citizens\n\nand foreign nationals to receive their lawful compensation under\n\nthe DBA. SAC ¶ 2. Throughout the two hundred page Complaint,\n\nPlaintiffs allege that Defendants:\n\n  failed or refused to provide medical benefits owed to\n Plaintiffs under the DBA, see, e.g., SAC ¶¶ 41, 57,\n 59, 62, 83, 103, 123, 133, 158, 178, 186, 210, 225,\n 260, 282, 315, 343, 366, 375, 382, 401, 422-24, 450,\n 495, 533, 546-47;\n  cut off medical benefits owed under the DBA, see,\n e.g., SAC ¶¶ 59, 61, 62, 75, 81, 106, 175, 200, 205,\n 214, 227, 240, 273, 276, 351, 377, 394;\n  delayed the provision of medical benefits or\n compensation owed under the DBA, see, e.g., SAC ¶¶ 59,\n 61, 87, 145, 262, 361, 376, 408, 423, 434, 540, 545;\n  made false statements and misrepresentations to the\n DOL and Plaintiffs regarding the payment of their DBA\n benefits while actually reducing, denying or ignoring\n Plaintiffs’ medical needs, see, e.g., SAC ¶¶ 6, 59,\n 103, 109-10, 122, 135, 146, 150, 154, 163, 179, 202,\n 214, 273-74, 277, 283, 351, 357, 378, 461-62;\n  failed to comply with DOL orders to pay DBA benefits,\n see, e.g., SAC ¶¶ 59, 82, 242, 261, 316, 357, 384;\n  threatened or discouraged workers from making DBA\n claims, see, e.g., SAC ¶¶ 54, 55, 78-79, 132, 137,\n 250, 269; and\n  terminated Plaintiffs after they were disabled by\n their DBA-covered injuries, see, e.g., SAC ¶¶ 13, 62,\n 84, 111, 203, 215, 252-54, 260, 420.\n\nPlaintiffs further state that the “[c]ontractors and their\n\ninsurance carriers . . . have utilized fear, threats, implied\n\nthreats, and elaborate ruses to deprive whole classes of . . .\n\npersons injured from effectively obtaining any benefits, have\n\n 8\n \n\femployed devices and artifices to prevent any medical treatment\n\nfor PTSD, [and have] accus[ed] persons of faking or of\n\nmalingering . . . .” SAC ¶ 12. According to Plaintiffs, all of\n\nthese actions exacerbated the harm that Plaintiffs had already\n\nsuffered based on their DBA-covered injuries and caused\n\nadditional financial and emotional harm. See, e.g., SAC ¶¶ 52,\n\n88, 126, 166, 182, 206, 217, 228, 245, 256, 268, 278, 283, 292,\n\n320, 344, 394, 403, 412, 439, 463, 476, 523, 534. Plaintiffs\n\nemphasize that the damages they seek in this action are not\n\nrelated to what they claimed in their DBA actions. See id.\n\n Plaintiffs filed their initial Complaint in this matter on\n\nSeptember 26, 2011. They filed an Amended Complaint on November\n\n22, 2011. On April 23, 2012, the Court granted Plaintiffs’\n\nunopposed request to file a Second Amended Complaint\n\n(hereinafter “SAC”) pursuant to Federal Rule of Civil Procedure\n\n15(a)(2). The SAC alleges claims for: retaliatory discharge and\n\ndiscrimination under the LHWCA, 33 U.S.C § 948a (Count I);\n\nviolations of RICO, 18 U.S.C. § 1961 et seq. (Count II); bad\n\nfaith, tortious breach of the covenant of good faith (Count\n\nIII); unconscionable, fraudulent and deceptive trade practices\n\n(Count IV); civil conspiracy (Count V); violations of the ADA,\n\n42 U.S.C. § 12101 et seq. (Count VI); outrage (Count VII); and\n\n\n\n\n 9\n \n\fwrongful death (Count VIII).4 The Complaint seeks $2 billion in\n\ndamages, as well as injunctive relief in order to prevent harm\n\nto Plaintiffs and those similarly situated, “and to require\n\nDefendants to comply with their legal obligations here and\n\naround the world, as to all past, present and future individuals\n\nwho work in support of America’s wars.” SAC ¶ 1.\n\n On July 13 and 16, 2012, Defendants filed fourteen motions\n\nto dismiss, including two joint motions filed by the Contractor\n\nDefendants and the Insurer Defendants. See n.2 supra. The\n\nmotions are ripe for determination by the Court.\n\nII. LEGAL STANDARDS\n\n Federal district courts are courts of limited jurisdiction,\n\nKokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994),\n\nand a Rule 12(b)(1) motion for dismissal presents a threshold\n\nchallenge to a court’s jurisdiction, Haase v. Sessions, 835 F.2d\n\n902, 906 (D.C. Cir. 1987). On a motion to dismiss for lack of\n\nsubject matter jurisdiction, the plaintiff bears the burden of\n\nestablishing that the court has jurisdiction. Lujan v.\n\nDefenders of Wildlife, 504 U.S. 555, 561 (1992). In evaluating\n\nsuch a motion, the Court must “accept as true all of the factual\n\nallegations contained in the complaint,” Wilson v. Dist. of\n\n\n                                                            \n 4\n Plaintiffs additionally include a request for preliminary\nand permanent injunctive relief, which is titled Count IX but is\nproperly construed as a claim for relief, rather than a separate\ncause of action.\n 10\n \n\fColumbia, 269 F.R.D. 8, 11 (D.D.C. 2010) (citation omitted), and\n\nshould review the complaint liberally while accepting all\n\ninferences favorable to the plaintiff, Barr v. Clinton, 370 F.3d\n\n1196, 1199 (D.C. Cir. 2004). Because subject matter\n\njurisdiction focuses on the court’s power to hear the claim,\n\nhowever, the court must give the plaintiff’s factual allegations\n\ncloser scrutiny when resolving a Rule 12(b)(1) motion than would\n\nbe required for a Rule 12(b)(6) motion. Macharia v. United\n\nStates, 334 F.3d 61, 64, 69 (D.C. Cir. 2003). Thus, to\n\ndetermine whether it has jurisdiction over a claim, the court\n\nmay consider materials outside the pleadings where necessary to\n\nresolve disputed jurisdictional facts. Herbert v. Nat’l Acad.\n\nof Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).\n\n Faced with motions to dismiss under Rule 12(b)(1) and Rule\n\n12(b)(6), a court should first consider the Rule 12(b)(1) motion\n\nbecause “[o]nce a court ‘determines that it lacks subject matter\n\njurisdiction, it can proceed no further.’” Sledge v. United\n\nStates, 723 F. Supp. 2d 87, 91 (D.D.C. 2010) (quoting Simpkins\n\nv. Dist. of Columbia, 108 F.3d 366, 371 (D.C. Cir. 1997)).\n\n A motion to dismiss under Rule 12(b)(6) tests the legal\n\nsufficiency of the complaint. Browning v. Clinton, 292 F.3d\n\n235, 242 (D.C. Cir. 2002). A complaint must contain “a short\n\nand plain statement of the claim showing that the pleader is\n\nentitled to relief, in order to give the defendant fair notice\n\n 11\n \n\fof what the . . . claim is and the grounds upon which it rests.”\n\nBell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal\n\nquotation marks and citations omitted). “[W]hen ruling on\n\ndefendant’s motion to dismiss, a judge must accept as true all\n\nof the factual allegations contained in the complaint.”\n\nAtherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C.\n\nCir. 2009) (quoting Erikson v. Pardus, 551 U.S. 89, 94 (2007)).\n\nThe court must also grant the plaintiff “the benefit of all\n\ninferences that can be derived from the facts alleged.” Kowal\n\nv. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). A\n\ncourt need not, however, “accept inferences drawn by plaintiffs\n\nif such inferences are unsupported by the facts set out in the\n\ncomplaint.” Id. In addition, “[t]hreadbare recitals of\n\nelements of a cause of action, supported by mere conclusory\n\nstatements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct.\n\n1937, 1949 (2009). Only a complaint that states a plausible\n\nclaim for relief survives a motion to dismiss. Id.\n\nIII. ANALYSIS\n\n All of the Defendants argue that the Second Amended\n\nComplaint should be dismissed in its entirety because the\n\nDefense Base Act provides the exclusive process and forum to\n\nresolve Plaintiffs’ claims. See, e.g., Contractor Defs.’ Joint\n\nMem. at 10-22; Insurer Defs.’ Joint Mem. at 7-21; Khudairi\n\nGroup’s Mem. at 13-17. Defendants further argue that Plaintiffs\n\n 12\n \n\ffail to state a claim under RICO, the ADA, or any of their\n\ncommon law causes of action. See, e.g., Contractor Defs.’ Joint\n\nMem. at 23-37; Insurer Defs.’ Joint Mem. at 21-36. Finally,\n\nseveral Defendants argue (1) that this Court lacks personal\n\njurisdiction over them and that venue is improper, see Global\n\nLinguist Solutions’ Mem. at 4-11; AECOM and CSA’s Mem. at 4-7;\n\nUSIS International’s Mem. at 3-4, 9; CNA Financial’s Mem. at 8-\n\n9; (2) that they are not proper parties to this action because\n\nthere are no claims alleged directly against them, see Northrop\n\nGrumman’s Mem. at 10-11; CNA Financial’s Mem. at 5-8; Khudairi\n\nGroup’s Mem. at 17-22; and (3) that they were improperly named\n\nin the Complaint because they settled all claims with the\n\nrelevant plaintiff (and counsel of record in this action) months\n\nbefore the initial Complaint was filed, see Exelis Systems’ Mem.\n\nat 10-11. As discussed in more detail below, the Court\n\nconcludes that the Defense Base Act preempts all of Plaintiffs’\n\nstate law claims, as well as Plaintiffs’ RICO and retaliatory\n\ndischarge claims. The Court further concludes that Plaintiffs\n\nfail to state a claim under the ADA. The Court therefore does\n\nnot reach the Defendants’ alternative arguments.\n\n\n\n\n 13\n \n\f A. Exclusivity of the DBA and the LHWCA\n\n 1. State Law Claims (Counts III, IV, V, VII, and\n VIII)\n\n The D.C. Circuit has held that the LHWCA, which is\n\nincorporated into the DBA, “provides a comprehensive scheme for\n\ncompensating employees who are injured or killed in the course\n\nof employment.” Hall v. C&P Tel. Co., 809 F.2d 924, 926 (D.C.\n\nCir. 1987) [Hall II] (emphasis in original). In Hall, the\n\nplaintiff alleged that his employer had wrongfully delayed and\n\ndenied his benefits under the D.C. Workers’ Compensation Act,\n\nwhich at the time incorporated the LHWCA’s statutory framework.\n\nThe plaintiff filed suit for intentional infliction of emotional\n\ndistress and bad-faith refusal to make timely workers’\n\ncompensation benefits payments. See Hall v. C&P Tel. Co., 793\n\nF.2d 1354, 1355 (D.C. Cir. 1986) [Hall I]. On rehearing, the\n\nD.C. Circuit stated that the plaintiff, “[u]nsatisfied with the\n\n[LHWCA’s] statutory quid pro quo . . . contend[ed] that\n\nemployees should be permitted to bring tort claims when the\n\nemployer refuses to make timely compensation payments with an\n\nintent to injure.” Hall II, 809 F.2d at 926 (emphasis added).\n\nThe court found, however, that recognizing such a cause of\n\naction would “undo[] the legislated compromise between the\n\ninterests of employees and the concerns of employers.” Id.\n\n(internal quotation marks and citation omitted). Therefore, the\n\n\n 14\n \n\fcourt held that tort claims based upon delayed or denied\n\nbenefits “fall within the Act’s exclusivity provisions,” and it\n\naffirmed the district court’s dismissal of the suit for lack of\n\nsubject matter jurisdiction. See id.\n\n Courts in several other circuits have likewise found this\n\nexclusive remedy scheme to bar state tort claims like those\n\nalleged here. See Barnard v. Zapata Haynie Corp., 975 F.2d 919,\n\n920 (1st Cir. 1992) (holding that the LHWCA preempts state tort\n\nclaims for intentional failure to make timely compensation\n\npayments, as well as willful and malicious refusal to pay);\n\nAtkinson v. Gates, McDonald & Co., 838 F.2d 808, 809-12 (5th\n\nCir. 1988) (same); Sample v. Johnson, 771 F.2d 1335, 1344-47\n\n(9th Cir. 1985) (same); Nauert v. Ace Prop. & Cas. Ins. Co., No.\n\n04-cv-2547, 2005 WL 2085544, at *3-5 (D. Colo. Aug. 27, 2005)\n\n(dismissing claims for bad faith failure to pay compensation\n\nbased on exclusivity of DBA and LHWCA); see also Brown v. Gen.\n\nServs. Admin., 425 U.S. 820, 834-35 (1976) (“We have\n\nconsistently held that a narrowly tailored employee compensation\n\nscheme preempts the more general tort recovery statutes.”).5\n\n\n                                                            \n 5\n Courts recognize that the LHWCA “grants the employer’s\ninsurance carrier . . . the same immunity which it grants the\nemployer . . . .” Atkinson, 838 F.2d at 811; see also Barnard,\n975 F.2d at 921 (finding nonpayment claims against insurer\npreempted by LHWCA); Johnson v. Am. Mut. Liab. Ins. Co., 559\nF.2d 382, 383 (5th Cir. 1977) (finding that the LHWCA’s\nexclusivity provision barred a negligence claim against an\ninsurer).\n 15\n \n\f In addition, the LHWCA precludes state tort claims alleging\n\n“false statement[s] or representation[s] for the purpose of\n\nreducing, denying, or terminating” a claimant’s benefits.\n\nTipton v. Northrop Grumman Corp., No. 08-1267, 2008 WL 5378129,\n\nat *4 (E.D. La. Dec. 22, 2008). As several courts have\n\nrecognized, Section 931(c) of the LHWCA, as incorporated by the\n\nDBA, establishes an employer’s exclusive liability for such\n\nalleged conduct in the form of criminal penalties and liability.\n\nSee Barnard, 975 F.2d at 921 n.4; Atkinson, 838 F.2d at 811.\n\nFurther, courts have found that the exclusive remedies and\n\nadjudication processes in the LWHCA preempt claims of\n\nretaliation or discrimination in connection with a claim for\n\nbenefits. See LeSassier v. Chevron USA, Inc., 776 F.2d 506,\n\n509-10 (5th Cir. 1985) (holding that exclusive administrative\n\nremedy 33 U.S.C. § 948a preempted state law retaliatory\n\ndischarge claim); Ravencraft v. Sundowner Offshore Servs., No.\n\n97-3572, 1998 WL 246699, *2 (E.D. La. May 14, 1998) (same).\n\n Plaintiffs do not address or acknowledge this Circuit’s\n\nbinding precedent set forth in Hall. Instead, they make several\n\narguments in an attempt to avoid the exclusivity of the DBA.\n\nNone of these arguments are persuasive.\n\n First, Plaintiffs rely on a purported exception recognized\n\nin Martin v. Travelers Insurance Co., 497 F.2d 329 (1st Cir.\n                                                                                                                                                                                               \n  \n\n\n 16\n \n\f1974). See Pls.’ Opp’n to Contractor Defs.’ Joint Mem. at 9-11;\n\nPls.’ Opp’n to Insurer Defs.’ Joint Mem. at 24-26. There, after\n\nthe defendant insurer had issued a benefits check to the\n\nplaintiff, and the plaintiff had deposited and substantially\n\ndrawn on the check, the defendant stopped payment without\n\nwarning. The First Circuit held that this constituted an\n\nindependent wrong, and that the plaintiff was not precluded\n\nunder the LHWCA from pursuing independent state law remedies.\n\n497 F.2d at 330-31. However, in a later opinion, the First\n\nCircuit distinguished Martin, stating that the crux of the\n\ncomplaint in Martin was “the insurer’s callous stopping of\n\npayment without warning when it should have realized that acute\n\nharm might follow. A stop payment on a sizable compensation\n\ncheck which may have been deposited and drawn upon carries the\n\nobvious possibility of embarrassment and distress.” Barnard,\n\n975 F.2d at 920 (citing Martin, 497 F.2d at 331); see also\n\nAtkinson, 838 F.2d at 814 n.6 (“[I]t is perhaps possible to\n\nconstrue Martin as involving a situation where the conduct\n\ncomplained of . . . would be actionable even if the compensation\n\nbenefits for which the drafts were given were not actually owing\n\nto begin with. In other words, it might be possible to construe\n\nMartin as presenting a situation where the plaintiff’s recovery\n\nwould not depend on a determination that he was owed\n\ncompensation under the LHWCA . . . if this is not a correct\n\n 17\n \n\freading of Martin, then we expressly decline to follow that\n\ndecision.”).6 Departing from Martin, the court in Barnard found\n\nthat the refusal to pay benefits and the failure to make timely\n\npayments, irrespective of defendants’ intent, were the types of\n\nclaims that fell under the exclusive remedies of the LWHCA. See\n\n975 F.2d at 920.7 In doing so, the First Circuit relied upon\n\nother circuits, including the D.C. Circuit, which had rejected\n\nsimilar attempts to bring state law tort claims based upon the\n\nfailure to pay LHWCA benefits. See id. at 921 (citing Hall, 809\n\nF.2d at 924; Atkinson, 838 F.2d at 812; Sample, 771 F.2d at\n\n1347); see also Fisher v. Halliburton, 667 F.3d 602, 619 (5th\n\nCir. 2012) (“[A]llowing an injured employee to recover from his\n\nemployer under this theory of intentional-tort liability would\n\n\n                                                            \n 6\n Given the Fifth Circuit’s statement in Atkinson that it\n“expressly decline[d] to follow” Martin -- to the extent that it\nwas inconsistent with the Fifth Circuit’s holding that the LWHCA\npreempts claims for intentional torts -- Plaintiffs’ reference\nto a “Martin/Atkinson” exception is puzzling, to say the least.\n 7\n The First Circuit noted one additional distinction:\n“Martin was decided by this court in 1974. In 1984, Congress\npassed extensive amendments to the LHWCA following a debate over\nUnion concerns regarding abuse by insurers arbitrarily\nwithholding payment of benefits under the Act. Congress\nultimately enhanced the criminal penalty for such arbitrary\nwithholdings from a misdemeanor to a felony, increasing the\nmaximum fine to $ 10,000 and the maximum imprisonment to five\nyears.” Barnard, 975 F.2d at 921 n.4 (citing 33 U.S.C. § 931(c)\n(1988); Longshoremen’s and Harbor Worker’s Compensation Act\nAmendments of 1981: Hearings on S. 1182 Before the Subcommittee\non Labor of the Senate Committee on Labor and Human Resources,\n97th Cong., 1st Sess. 433, 516-23, 545 (1981)).\n\n\n 18\n \n\finject into the DBA’s workers’ compensation scheme an element of\n\nuncertainty at odds with the statute’s basic purpose: providing\n\nprompt relief for employees, and limited and predictable\n\nliability for employers.”).8 Martin thus conflicts with the\n\nprecedent of this Circuit, as well as several others.\n\n Even were the Court persuaded that Martin provided an\n\nexception to Hall -- which does not appear to be the case -–\n\nbecause Plaintiffs’ claims all depend on a determination that\n\nthey were owed compensation under the DBA, they do not fall\n\nunder any such exception. Each of Plaintiffs’ state law causes\n\nof action directly relates to Plaintiffs’ claims for DBA\n\nbenefits:\n\n  With respect to Count III (Bad Faith and Tortious\n Breach of Covenant of Good Faith), Plaintiffs allege\n that Defendants engaged in “bad faith denial of\n claims, and bad faith refusal to pay reasonable and\n necessary medical bills” by, e.g., “unreasonably\n denying claims . . . , failing to properly and\n adequately investigate claims, delaying payments for\n medical bills and disability,” SAC ¶¶ 587-92;\n\n\n\n                                                            \n 8\n Ross v. Dyncorp, 362 F. Supp. 2d 344 (D.D.C. 2005), is not\nto the contrary. There, another Judge in this District\nconcluded that the DBA barred plaintiffs’ negligence-based\nclaims regarding the death of their son; however, the\nintentional infliction of emotional distress claim, which the\ncourt determined failed as a matter of law, was based upon the\nemployer’s communication with the family about the decedent’s\nremains, and thus did not arise out of an entitlement to\nbenefits under the DBA. See 362 F. Supp. 2d at 358-59. It does\nnot appear that any party there argued that the DBA barred the\nintentional infliction of emotional distress claim.\n\n\n 19\n \n\f  With respect to Count IV (Unconscionable, Fraudulent\n and Deceptive Trade Practices), Plaintiffs allege that\n Defendants “engaged in deceptive, unconscionable acts\n and practices by representing they provided all\n benefits covered under law, when in fact they did not\n intend to provide such, and . . . act[ed] with\n deception toward Plaintiffs concerning the\n characteristics of their . . . medical and disability\n benefits,” SAC ¶¶ 593-601;\n  With respect to Count V (Civil Conspiracy), Plaintiffs\n allege that Defendants engaged in a “conspiracy to\n deprive injured and disabled workers of DBA benefits\n in violation of the DBA,” SAC ¶¶ 602-07;\n  With respect to Count VII (Outrage, or Intentional\n Infliction of Emotional Distress), Plaintiffs allege\n that Defendants intended to inflict emotional distress\n on Plaintiffs or knew or should have known that\n emotional distress was likely to result from their\n denial of DBA benefits, SAC ¶¶ 619-25; and\n  With respect to Count VIII (Wrongful Death),\n Plaintiffs allege that those Plaintiffs who are\n deceased died as a result of the neglect and\n intentional misconduct of Defendants, SAC ¶¶ 626-31.9\n\n As Plaintiffs reaffirm in their own Opposition briefs, the\n\ncrux of their Complaint is that “Defendants’ failure to make the\n\nproper compensation payments resulted in the infliction of harm\n\non Plaintiffs, which Defendants could have reasonably\n\nanticipated . . . . Defendants’ delay, termination, and/or\n\nminimization of compensation have aggravated Plaintiffs’\n\ninjuries.” Pls.’ Opp’n to Contractor Defs.’ Joint Mem. at 16;\n                                                            \n 9\n Plaintiffs also allege that their claims for detrimental\nreliance and breach of contract are valid. See, e.g., Pls.’\nOpp’n to Contractor Defs.’ Joint Mem. at 14-15, 22; Pls.’ Opp’n\nto Insurer Defs.’ Joint Mem. at 14-15, 21. Plaintiffs did not\ninclude these claims in their Complaint and cannot add them in\ntheir Opposition briefs.\n\n\n 20\n \n\fsee also Pls.’ Opp’n to Insurer Defs.’ Joint Mem. at 16.\n\nPlaintiffs claim that Defendants, in conspiracy with each other,\n\nrefused to pay for Plaintiffs’ medical benefits, terminated\n\ntheir medical benefits, repeatedly lied and made\n\nmisrepresentations to DOL regarding payments for medical\n\ntreatment, wrongfully terminated certain Plaintiffs, and\n\nprovided inadequate care. See Pls.’ Opp’n to Contractor Defs.’\n\nJoint Mem. at 20-22. Although Plaintiffs allege that these\n\nactions exacerbated their underlying employment-related injuries\n\nand/or that the claims process itself caused them undue stress\n\nand financial hardship, it is clear that Plaintiffs’ state law\n\ncauses of action all arise out of their underlying claims to DBA\n\nbenefits and thus are barred by the exclusive scheme set forth\n\nin the DBA and LHWCA.\n\n Plaintiffs also argue that the exclusive remedy bar only\n\nexists as to damages “on account of the injury or death” claimed\n\nunder the DBA, not for damages intentionally, fraudulently, and\n\nin bad faith inflicted by Defendants after they have accepted\n\nthe claim and are paying benefits. See Pls.’ Opp’n to\n\nContractor Defs.’ Joint Mem. at 7-8; Pls.’ Opp’n to Insurer\n\nDefs.’ Joint Mem. at 7. According to Plaintiffs, because their\n\ninjuries occurred outside the scope of their employment, the\n\nexclusive remedy is inapplicable to their claims. See Pls.’\n\nOpp’n to Contractor Defs.’ Joint Mem. at 26-27; Pls.’ Opp’n to\n\n 21\n \n\fInsurer Defs.’ Joint Mem. at 10-11, 23-24, 30-31. But the D.C.\n\nCircuit rejected these identical arguments in Hall, as did the\n\nFifth Circuit in Atkinson. See Hall, 809 F.2d at 926; Atkinson,\n\n838 F.2d at 811; see also Nauert, 2005 WL 2085544, at *3-5. As\n\nthe court stated in Atkinson:\n\n [Plaintiff] asserts that the exclusivity provision of\n section 5(a) applies only to liability “on account of such\n injury,” and that . . . the damages which she claims for\n the subsequent failure to pay compensation benefits cannot\n possibly arise out of her employment. . . . Th[is]\n contention overlooks the fact that [plaintiff’s] claim\n necessarily presupposes an obligation to pay LHWCA\n benefits, and hence necessarily arises out of her on-the-\n job injury.\n\n838 F.2d at 811 (internal citation omitted).10\n\n Alternatively, Plaintiffs argue that Defendants’ “failure\n\nto secure payment of compensation,” through false statements and\n\nrepresentations estops them from asserting preemption. Pls.’\n\nOpp’n to Contractor Defs.’ Joint Mem. at 11; see also Pls.’\n\nOpp’n to Insurer Defs.’ Joint Mem. at 26-27.11 The LHWCA\n\nprovides an exception to the exclusivity-of-remedy provision\n\nwhen “an employer fails to secure payment of compensation as\n                                                            \n 10\n Plaintiffs’ reliance on numerous state court cases\ninterpreting either state worker’s compensation acts or state\nlaw regarding adequate remedies are neither relevant nor\npersuasive.\n 11\n The DBA requires that a contractor must “provide for . .\n. the payment of compensation and other benefits under the\nprovisions of” the Act and must “maintain in full force and\neffect during the terms of such contract . . . the said security\nfor the payment of such compensation and benefits.” 42 U.S.C. §\n1651(a)(4); see also 33 U.S.C. § 932(a).\n 22\n \n\frequired by” the Act. 33 U.S.C. § 905(a). However,\n\nimplementing regulations to the DBA make clear that an employer\n\n“secures payment of compensation” by obtaining a DBA “workers’\n\ncompensation insurance” policy “before commencing performance,”\n\nand maintaining that insurance “until performance is completed.”\n\n48 C.F.R. § 52.228-3. Plaintiffs do not allege that any of the\n\nDefendants failed to obtain and maintain such an insurance\n\npolicy, and this argument thus fails.\n\n Finally, Plaintiffs argue quite perplexingly that the\n\nexclusive remedy provision of the DBA does not apply to them\n\nbecause they are independent contractors, not employees, and\n\nthus are not covered by the DBA. They also assert that they are\n\nsuing certain Defendants who were not their actual employers or\n\ninsurers. See Pls.’ Opp’n to Contractor Defs.’ Joint Mem. at\n\n24-25; Pls.’ Opp’n to Insurer Defs.’ Joint Mem. at 28-29. These\n\narguments undermine the premise of the claims set forth in the\n\nComplaint, all of which allege that Plaintiffs were harmed by\n\nDefendants’ refusal or failure to timely provide the DBA\n\nbenefits to which Plaintiffs were entitled.\n\n The allegations in the Complaint are extremely serious and\n\ndeeply disturbing. However, Congress has expressly set forth\n\nits intention that employers’ liability under the DBA “shall be\n\nexclusive and in place of all other liability.” 42 U.S.C. §\n\n1651(c); see also Hall, 809 F.2d at 925-26. Based on the\n\n 23\n \n\fbinding authority from this Circuit, as well as persuasive\n\nauthority from several other circuits, the Court finds that all\n\nof Plaintiffs’ state law claims are barred by the exclusive\n\nscheme set forth in the DBA and the LHWCA. Accordingly, Counts\n\nIII, IV, V, VII, and VIII are hereby DISMISSED.\n\n 2. Federal Claims (Counts I and II)\n\n Defendants further argue that Plaintiffs’ federal claims\n\nare barred. As the D.C. Circuit and several others have\n\nrecognized, federal enabling statutes that provide exclusive\n\nadministrative remedies bar RICO actions for alleged violations\n\nof those schemes. See Danielsen v. Burnside-Ott Aviation\n\nTraining Ctr., Inc., 941 F.2d 1220 (D.C. Cir. 1991) (affirming\n\ndismissal of RICO claims as barred by exclusive statutory\n\nremedies under the Federal Services Contract Act); Bridges v.\n\nBlue Cross & Blue Shield Ass’n, 935 F. Supp. 37, 43 (D.D.C.\n\n1996) (finding that the Federal Employees Health Benefits Act’s\n\nadministrative remedy bars RICO claims); see also, e.g., Ayres\n\nv. Gen. Motors Corp., 234 F.3d 514, 522-25 (11th Cir. 2000)\n\nBodimetric Health Servs., Inc. v. Aetna Life & Cas., 903 F.2d\n\n480, 486-87 (7th Cir. 1990); Norman v. Niagara Mohawk Power\n\nCorp., 873 F.2d 634, 637-38 (2d Cir. 1989); cf. Brown v. Cassens\n\nTransport Co., 675 F.3d 946, 954-55 (6th Cir. 2012) (noting that\n\nfederal courts “have held RICO inapplicable to claims that\n\nshould have been raised before federal agencies that had\n\n 24\n \n\fexclusive-remedy clauses in their enabling statutes,” but\n\nfinding that state statute did not preempt RICO claim).\n\n In Danielsen, the D.C. Circuit held that the plaintiffs’\n\nclaims against their government contractor employer were\n\nprecluded by the comprehensive statutory scheme under the\n\nService Contract Act, 41 U.S.C. § 351, et seq. There, the\n\nplaintiff-employees alleged that the defendants had entered into\n\ncontracts with the government using improper wage\n\nclassifications (in violation of the Service Contract Act), and\n\nhad repeatedly used the mails to further the contracts, thus\n\nconstituting to mail fraud under RICO. See 941 F.2d at 1225-26.\n\nHowever, the court held that because the Act provided “an\n\nextensive series of regulations governing the wage determination\n\nprocess, including procedures for enforcement and review,” the\n\nadministrative remedies available under the Service Contract Act\n\nwere “exclusive” and did not give rise to a separate cause of\n\naction under RICO. See id. at 1226-29. This Court later\n\napplied the holding in Danielsen to the Federal Employee Health\n\nBenefits Act (“FEHBA”), 5 U.S.C. § 8901 et seq., which\n\nauthorizes the U.S. Office of Personnel Management “to procure\n\nand administer health benefits plans for federal workers by\n\ncontracting with private health insurance carriers.” Bridges,\n\n935 F. Supp. at 39. The court stated, “[a]lthough the governing\n\nstatute in this case is different [from that in Danielsen], the\n\n 25\n \n\funderlying principles are the same, and the claims cannot\n\nstand.” Id. at 40 (citing Danielsen, 941 F.2d 1220). Because\n\nthe FEHBA created a “comprehensive administrative enforcement\n\nmechanism for review of disputed claims,” the court found that\n\nthe RICO claims were precluded and must be dismissed. See id.\n\nat 41-43 (“The FEHBA leaves no room for a remedy under RICO; the\n\nbroad enforcement and oversight powers of the OPM established in\n\nthe statute indicate that the exclusive remedy for an action\n\ncognizable under the FEHBA lies under the FEHBA, not under\n\nanother federal statute.”).\n\n Plaintiffs do not respond to this argument or this\n\nauthority whatsoever. For this reason alone, the Court could\n\ntreat this argument as conceded and dismiss all of the federal\n\nclaims. See Hopkins v. Women’s Div., Gen. Bd. of Global\n\nMinistries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003), aff’d, 98 F.\n\nApp’x 8 (D.C. Cir. 2004) (“It is well understood in this Circuit\n\nthat when a plaintiff files an opposition to a dispositive\n\nmotion and addresses only certain arguments raised by the\n\ndefendant, a court may treat those arguments that the plaintiff\n\nfailed to address as conceded.” (citation omitted)). However,\n\nthe Court has analyzed the arguments with respect to each of\n\nPlaintiffs’ federal claims individually.\n\n The allegations that form the basis of Plaintiffs’ RICO\n\nclaim (Count II) are directly addressed by the comprehensive\n\n 26\n \n\fadministrative procedures and remedies available under the DBA.\n\nFor example, Plaintiffs claim that Defendants conspired to\n\n“[make] misrepresent[ations] to injured parties and the DOL and\n\ncommit crimes under the DBA by denying claims using fraud . . .\n\n.” SAC ¶ 573. However, Section 931(c) of the LHWCA, which is\n\nincorporated in the DBA, provides specific criminal penalties\n\nagainst any “employer, his duly authorized agent, or an employee\n\nof an insurance carrier who knowingly and willfully makes a\n\nfalse statement or representation for the purpose of reducing,\n\ndenying, or terminating benefits to an injured employee . . . .”\n\n33 U.S.C. § 931(c). Likewise, Plaintiffs’ allegation that\n\nDefendants committed “various forms of wire and mail fraud” to\n\n“delay payments to providers or to claimants” is addressed in\n\nSections 914(e) and (f) of the LHWCA, as incorporated by the\n\nDBA, which provide financial penalties for delays in\n\ncompensation. See 33 U.S.C. §§ 914(e), (f); 20 C.F.R. §§\n\n702.233, 702.350. Based upon the reasoning of Danielsen and\n\nBridges, the Court concludes that to permit Plaintiffs to\n\nconvert non-compliance with the DBA -- a statute with its own\n\ncomprehensive administrative remedies -- into mail and wire\n\nfraud and thereby maintain a civil RICO action would contradict\n\nthe purpose and intent of the DBA.12 Accordingly, Plaintiffs’\n\nRICO claim (Count II) is DISMISSED.\n                                                            \n 12\n Even if Plaintiffs’ RICO claim were not barred by the\n 27\n \n\f                                                                                                                                                                                               \n  \nexclusive remedies in the DBA, the Court would find that\nPlaintiffs fail to state a cause of action under RICO. In order\nto make out a claim under RICO, a plaintiff must allege the\nfollowing elements: “(1) conduct (2) of an enterprise (3)\nthrough a pattern (4) of racketeering activity.” Sedima,\nS.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985). To show such a\npattern, RICO requires at least two predicate criminal\nracketeering acts over a ten-year period. See 18 U.S.C. §\n1961(5). “[T]hese predicate offenses are acts punishable under\ncertain state and federal criminal laws, including mail and wire\nfraud.” Western Assocs. Ltd. P’ship ex rel. Ave. Assocs. Ltd.\nv. Market Square Assocs., 235 F.3d 629, 633 (D.C. Cir. 2001)\n(citing 18 U.S.C. § 1961(1)(B)). First, Plaintiffs fail to\nallege the existence of a RICO enterprise. An “enterprise is an\nentity, . . . a group of persons associated together for a\ncommon purpose of engaging in a course of conduct.” United\nStates v. Turkette, 452 U.S. 576, 583 (1981). Plaintiffs allege\nthat Defendants associated with an undefined “RICO enterprise of\nindividuals” that included “insurance companies, attorneys,\nadjusters, third party medical providers, third party case\nadministrators, third party investigators and contractors.” SAC\n¶ 576. Plaintiffs completely fail to provide sufficient factual\nallegations to suggest, however, that the Defendants combined as\na unit with any semblance of (1) a common purpose, (2)\norganization, and/or (3) continuity. See Doe I v. State of\nIsrael, 400 F. Supp. 2d 86, 119-20 (D.D.C. 2005); see also In re\nIns. Brokerage Antitrust Litig., 618 F.3d 300, 374 (3d Cir.\n2010); McCullough v. Zimmer, Inc., 382 F. App’x 225, 231 (3d\nCir. 2010) (“Simply listing a string of individuals or entities\nthat engaged in illegal conduct, without more, is insufficient\nto allege the existence of a RICO enterprise.”). Second,\nPlaintiffs fail to allege any predicate acts with particularity.\nThe predicate acts of an alleged RICO fraud must be pled with\nparticularity as required under the heightened pleading standard\nof Rule 9(b) of the Federal Rules of Civil Procedure. See\nPrunte v. Universal Music Grp., 484 F. Supp. 2d 32, 42 (D.D.C.\n2007). Plaintiffs fail to allege with any specificity the “who,\nwhat, when, where, and how” related to their mail and wire fraud\nclaims –- they fail to allege specific fraudulent statements,\nwho made the statements, what was said, when or where these\nstatements were made, and how or why the alleged statements were\nfraudulent. See Insurer Defs.’ Joint Mem. at 27-29. Finally,\nPlaintiffs fail to allege a RICO conspiracy under Section\n1962(d). Even had Plaintiffs properly alleged two predicate\nacts of mail, wire, or bank fraud, Plaintiffs nonetheless fail\nto plead facts demonstrating that any of the Defendants reached\n 28\n \n\f Furthermore, Count I, which alleges a violation of the\n\nLHWCA’s anti-retaliation and discrimination provision, 33 U.S.C.\n\n§ 948a, is also barred.13 Plaintiffs allege that they “were\n\ndiscriminated against in the terms, conditions, and benefits of\n\nemployment, retirement, insurance, and status due to their\n\naccessing or attempting to access the DBA system . . . .” SAC ¶\n\n565. Yet Plaintiffs seek precisely the same remedies provided\n\nby the DBA for such alleged conduct. Id. at ¶ 570 (seeking\n\nreinstatement or damages and attorneys’ fees); cf. § 948a (“Any\n\nemployee so discriminated against shall be restored to his\n\nemployment and shall be compensated by his employer for any loss\n\nof wages arising out of such discrimination.”). Plaintiffs may\n\nnot pursue their claims for retaliation and discrimination in\n\nthe federal courts without first exhausting their administrative\n\nremedies through the exclusive process provided in the LHWCA.\n\nSee § 948a; 20 C.F.R. §§ 702.271-274; see also LeSassier, 776\n\nF.2d at 508-10; Slightom v. Nat’l Maint. & Repair, Inc., 747 F.\n                                                                                                                                                                                               \n  \nan agreement to commit the two predicate acts. Plaintiffs’ RICO\nallegations are precisely the type of threadbare recitals of the\nelements of a cause of action, supported by mere conclusory\nstatements, that the Supreme Court has found insufficient to\nstate a claim for relief under Rule 12(b)(6), let alone under\nRule 9(b). See Iqbal, 129 S. Ct. at 1949.\n 13\n Section 948a provides, in pertinent part: “It shall be\nunlawful for any employer or his duly authorized agent to\ndischarge or in any other manner discriminate against an\nemployee as to his employment because such employee has claimed\nor attempted to claim compensation from such employer . . . .”\n33 U.S.C. § 948a.\n 29\n \n\fSupp. 2d 1032, 1037-38 (S.D. Ill. 2010). Plaintiffs nowhere\n\nallege that they have exhausted their administrative remedies.\n\nMoreover, Plaintiffs’ reliance on cases involving state law\n\nwrongful discharge claims is irrelevant and not persuasive.14\n\nAccordingly, Count I is also DISMISSED.\n\n B. ADA Claims (Count VI)\n\n Three individual Plaintiffs, Merlin Clark, Harbee Kreesha,\n\nand Mohsen Alsaleh, bring claims for violation of the ADA\n\nagainst their employers, Ronco Consulting (as to Clark) and\n\nGlobal Linguist Solutions (as to Kreesha and Alsaleh). See SAC\n\n¶¶ 111, 113, 203, 215, 608-618. Specifically, Plaintiffs allege\n\nthat they were fired after they became disabled, and that their\n\ndisabilities “were motivating factors in the decisions of\n\nDefendant contractors not to offer jobs with accommodations, or\n\nto fire persons who were . . . being treated for DBA injuries,\n\nor to rehire but fail to accommodate restrictions or\n\ndisabilities reasonably.” SAC ¶¶ 611-13. The Court interprets\n\n\n                                                            \n 14\n In addition, the plain text of Section 948a states that\n“the employer alone and not his [insurance] carrier shall be\nliable for such penalties and payments.” Plaintiffs explicitly\nconcede that this is so, and then attempt to argue that they may\nnonetheless bring claims against the Insurer Defendants under\nstate statutes. See Pls.’ Opp’n to Insurer Defs.’ Joint Mem. at\n32-33. However, the Complaint does not allege claims of\nretaliation under state statutes, and Plaintiffs cannot escape\nthe explicit language of Section 948a, which precludes them from\nasserting retaliation and discrimination claims against the\nInsurer Defendants even had they exhausted their administrative\nremedies.\n 30\n \n\fthese allegations as including two possible claims under the\n\nADA: (1) failure to accommodate, and (2) disability\n\ndiscrimination for firing Plaintiffs.\n\n The ADA prohibits an employer from discriminating against\n\nan “individual with a disability” who can perform the essential\n\nfunctions of his job with “reasonable accommodations.” 42\n\nU.S.C. § 12112(a)-(b). As relevant here, to “‘discriminate’ is\n\ndefined to include ‘not making reasonable accommodations to the\n\nknown physical or mental limitations of an otherwise qualified\n\nindividual with a disability . . . , unless [the employer]\n\ndemonstrates that the accommodation would impose an undue\n\nhardship on the operation of the business . . . .’” Woodruff v.\n\nPeters, 482 F.3d 521, 527 (D.C. Cir. 2007) (quoting 42 U.S.C. §\n\n12112(b)(5)(A)). A “qualified individual” is “an individual\n\nwho, with or without reasonable accommodation, can perform the\n\nessential functions of the employment position that such\n\nindividual holds or desires.” 42 U.S.C. § 12111(8). The ADA\n\ndefines “disability” as “a physical or mental impairment that\n\nsubstantially limits one or more of the major life activities\n\nof” an individual. 42 U.S.C. § 12102(2)(A).\n\n To establish a prima facie case of unlawful discrimination\n\nbased on a failure to accommodate under the ADA, a plaintiff\n\nmust show that: (1) he is a qualified individual with a\n\ndisability within the meaning of the ADA; (2) that the employer\n\n 31\n \n\fhad notice of his disability; (3) there was some reasonable\n\naccommodation denied to him; and (4) such accommodation would\n\nhave enabled him to perform the essential functions of this\n\njob.” Saunders v. Galliher & Huguely Assocs., Inc., 741 F.\n\nSupp. 2d 245, 248 (D.D.C. 2010) (citing Duncan v. Wash. Metro.\n\nArea Transit Auth., 240 F.3d 1110, 1114 (D.C. Cir. 2001)). The\n\nemployee bears the burden of proving that he is qualified.\n\nMiller v. Hersman, 759 F. Supp. 2d 1, 10 (D.D.C. 2011). In\n\naddition, “[a]n underlying assumption of any reasonable\n\naccommodation claim is that the plaintiff-employee has requested\n\nan accommodation which the defendant-employer has denied.”\n\nFlemmings v. Howard Univ., 198 F.3d 857, 861 (D.C. Cir. 1999);\n\nSaunders, 741 F. Supp. 2d at 249 (“It is the employee’s burden\n\nto identify reasonable accommodations which would allow him to\n\nperform the essential functions of the job . . . .”).\n\n A disability discrimination claim under the ADA is subject\n\nto the familiar burden-shifting framework of McDonnell Douglas\n\nCorp. v. Green, 411 U.S. 792 (1973). First, the plaintiff must\n\nestablish a prima facie case of discrimination under the ADA by\n\nshowing that he: (1) had a disability; (2) was qualified for the\n\nposition with or without a reasonable accommodation; and (3)\n\nsuffered an adverse employment action because of the disability.\n\nSwanks v. Wash. Metro. Area Transit Auth., 179 F.3d 929, 933-34\n\n(D.C. Cir. 1999). If the plaintiff does so, the burden shifts\n\n 32\n \n\fback to the employer to articulate a “legitimate non-\n\ndiscriminatory reason for its action,” leaving the plaintiff an\n\nopportunity to prove that the employer’s proffered justification\n\nwas not the true reason, but a pretext for discrimination. Id.\n\n(citing Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir.\n\n1998) (en banc)).\n\n Plaintiffs have failed to state the essential elements of a\n\nclaim for either failure to accommodate or disability\n\ndiscrimination under the ADA. First, Plaintiffs make only\n\nconclusory allegations regarding each individual Plaintiff’s\n\nstatus as a “qualified individual” under the ADA. Plaintiff\n\nKreesha alleges that he has Post-Traumatic Stress Disorder, and\n\nthat this “substantially limits his major life activities.”\n\nPls.’ Opp’n to Contractor Defs.’ Joint Mem. at 42; see also SAC\n\n¶¶ 193-95. Plaintiff Clark alleges that he suffered numerous\n\nphysical injuries and a traumatic brain injury as a result of an\n\nexplosion, and that these injuries “qualify [him] as having a\n\ndisability under the ADA.” Pls.’ Opp’n to Contractor Defs.’\n\nJoint Mem. at 42; see also SAC ¶¶ 90-100. Finally, Plaintiff\n\nAlsaleh claims that he contracted Leishmaniasis after being\n\nbitten by a sand fly. See SAC ¶¶ 209-210. Alsaleh also claims\n\nthat he has conditions including “cardiac issues, chest pain and\n\npressure, lung issues, shortness of breath and collapse, sleep\n\ndisorder . . . .” Id. ¶¶ 212-13. These allegations are\n\n 33\n \n\finsufficient for Plaintiffs to meet their burden of\n\ndemonstrating that their injuries substantially limited a major\n\nlife activity and thus qualified them as disabled under the ADA.\n\nMoreover, Plaintiffs completely fail to allege that they\n\nrequested any accommodation for their disabilities that their\n\nemployers then denied. They have therefore failed to state a\n\nclaim for either failure to accommodate or disability\n\ndiscrimination under the ADA. See Hovsepyan v. Blaya, 770 F.\n\nSupp. 2d 259, 266 (D.D.C. 2011); Reynolds v. U.S. Capitol Police\n\nBd., 357 F. Supp. 2d 2, 18 (D.D.C. 2004).\n\n Accordingly, Plaintiffs’ ADA claims (Count VI) are\n\nDISMISSED.15\n\nIV. CONCLUSION\n\n For the foregoing reasons, the Court concludes that the\n\nexclusive remedies in the DBA preclude Plaintiffs’ state law\n\nclaims, their RICO claim, and their claim under Section 948a of\n\nthe LHWCA and must therefore be dismissed pursuant to Rule\n\n12(b)(1). The Court further concludes that Plaintiffs’ ADA\n                                                            \n 15\n  Global Linguist Solutions (“GLS”) argues alternatively in\nits motion to dismiss that “should any claims survive,” the\nCourt should dismiss the allegations against GLS pursuant to\neither Rule 12(b)(2) or 12(b)(3) of the Federal Rules of Civil\nProcedure because this Court lacks personal jurisdiction over\nGLS and venue is improper in the District of Columbia. Global\nLinguist Solutions’ Mem. at 1-2. Because the Court concludes\nthat none of Plaintiffs’ claims, including the two ADA claims\nagainst GLS, survive, the Court does not reach GLS’s alternative\narguments.\n \n\n 34\n \n\fclaims fail to state a claim for relief under Rule 12(b)(6).\n\nAccordingly, Defendants’ Motions to Dismiss are hereby GRANTED\n\nand the Second Amended Complaint is DISMISSED. A separate Order\n\naccompanies this Memorandum Opinion.\n\nSIGNED: Emmet G. Sullivan\n United States District Judge\n December 21, 2012\n\n\n\n\n 35\n \n\f", "ocr": false, "opinion_id": 2661345 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 24, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2011cv1733-265", "author_id": 3133, "opinion_text": " UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n\n\n\n DANIEL BRINK, et al.,\n\n Plaintiffs,\n\n v. Civ. Action No. 11-1733\n (EGS/ZMF)\n XE HOLDING, LLC et al.,\n\n Defendants.\n\n\n\n\n MEMORANDUM OPINION\n\nI. Introduction\n\n Nicky Pool (“Ms. Pool” or “Plaintiff”) brings this action\n\nagainst Continental Insurance Company (“CNA” or “Defendant”),\n\nalleging breach of contract and tortious breach of the covenant\n\nof good faith and fair dealing. See Fourth Amended Compl. for\n\nDamages & Declaratory & Injunctive Relief (“FAC”), ECF No. 214\n\n¶¶ 1, 153-68. 1\n\n Pending before the Court is CNA’s Motion to Dismiss for\n\nlack of subject matter jurisdiction and for failure to state a\n\nclaim. See Def. Continental Insurance Company’s Mot. Dismiss\n\n\n\n1 When citing electronic filings throughout this Opinion, the\nCourt refers to the ECF page numbers, not the page numbers of\nthe filed documents.\n 1\n\fCounts VI & VII Fourth Am. Compl. (“Def.’s Mot.”), ECF No. 220.\n\nOn May 19, 2022, Magistrate Judge Zia M. Faruqui issued a Report\n\n& Recommendation (“R. & R.”) recommending that the Court grant\n\nin part and deny in part CNA’s motion, ECF No. 220. See R. & R.,\n\nECF No. 248 at 12.\n\n Both parties raise several objections to Magistrate Judge\n\nFaruqui’s R. & R. See generally Pl. Nicky Pool’s Mem. Supp.\n\nObjs. R. & R. of Magistrate on CNA’s Mot. Dismiss Fourth Am.\n\nCompl. (“Pl.’s Objs.”), ECF No. 250-1; Def. Continental\n\nInsurance Company’s Objs. Magistrate Judge’s Proposed Findings &\n\nRecommendations Def.’s Mot. Dismiss Counts VI & VII Fourth Am.\n\nCompl. (“Def.’s Objs.”), ECF No. 252. Upon careful consideration\n\nof the R. & R.; the objections, oppositions, and reply thereto;\n\nthe applicable law; and the entire record herein, the Court\n\nhereby ADOPTS IN PART Magistrate Judge Faruqui’s R. & R., ECF\n\nNo. 248; and GRANTS IN PART and DENIES IN PART CNA’s Motion to\n\nDismiss, ECF No. 220.\n\nII. Background\n\n A. Factual\n\n For the purposes of resolving CNA’s Motion to Dismiss, the\n\nCourt assumes the facts alleged in the Fourth Amended Complaint\n\nto be true and construes them in Ms. Pool’s favor. See Baird v.\n\nGotbaum, 792 F.3d 166, 169 n.2 (D.C. Cir. 2015) (citation\n\nomitted).\n\n 2\n\f In 2007, CNA arranged for Ms. Pool to provide daily nursing\n\nservices in South Africa to Daniel Brink (“Mr. Brink”), a\n\ncontractor who had sustained several injuries from an explosion\n\nin Iraq. See FAC, ECF No. 214 ¶¶ 86–87. Ms. Pool submitted a\n\nseries of invoices to CNA seeking payment for her services and\n\nreimbursement for other services and supplies. See id. ¶ 88. CNA\n\ninitially paid some invoices but at some point, stopped. See id.\n\n¶ 89. Because she had not been reimbursed for services and\n\nsupplies, medical companies and service providers later brought\n\ncollections actions totaling over $150,000 against Ms. Pool and\n\nher company, Guardian Medical. See id. ¶¶ 90–91.\n\n On September 26, 2011, Ms. Pool and other plaintiffs\n\n(collectively, “Plaintiffs”) filed this class action against\n\nvarious government contractors and their insurance carriers. See\n\nCompl., ECF No. 1 ¶¶ 453–64. Plaintiffs alleged violations of\n\nthe Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §\n\n901 et seq.; the Racketeer Influenced and Corrupt Organizations\n\nAct, 18 U.S.C. § 1961 et seq.; and the Americans with\n\nDisabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; along with\n\nvarious state-law claims. See generally id. The Court dismissed\n\nall claims, see Brink v. XE Holding, LLC, 910 F. Supp. 2d 242,\n\n258 (D.D.C. 2012), aff’d in part, vacated in part, remanded sub\n\nnom. Brink v. Cont’l Ins. Co., 787 F.3d 1120 (D.C. Cir. 2015);\n\nand the Court of Appeals for the District of Columbia Circuit\n\n 3\n\f(“D.C. Circuit”) affirmed the ruling except the dismissal of the\n\nADA claims, see Brink, 787 F.3d at 1126, 1128–29. The D.C.\n\nCircuit stated that its ruling did “not preclude separate\n\nproceedings for . . . Nicky Pool to allege a breach of\n\ncontract.” Id. at 1126. Ms. Pool thereafter filed an amended\n\ncomplaint alleging breach of contract and tortious breach of the\n\ncovenant of good faith and fair dealing. See FAC, ECF No. 214 ¶¶\n\n1, 153-68.\n\n B. Procedural\n\n On March 5, 2018, CNA filed this Motion to Dismiss Ms.\n\nPool’s state-law claims in the Fourth Amended Complaint. See\n\nDef.’s Mot., ECF No. 220. Ms. Pool submitted her opposition\n\nbrief on April 8, 2018, see Pl.’s Resp. & Opp’n Def. CNA’s Mot.\n\nDismiss Counts V & VI Fourth Am. Compl. Pursuant Rules 12(b)(1)\n\n& 12(b)(6) of Fed. R. Civ. P., ECF No. 227; and CNA filed its\n\nreply brief on April 17, 2018, see Def. Continental Insurance\n\nCompany’s Reply Mem. P. & A. in Further Supp. Mot. Dismiss\n\nCounts VI & VII Fourth Am. Compl., ECF No. 234.\n\n On May 19, 2022, Magistrate Judge Faruqui issued his R. &\n\nR. recommending that the Court grant in part and deny in part\n\nCNA’s motion, ECF No. 220. See R. & R., ECF No. 248 at 12. Both\n\nparties raise several objections to the R. & R., see Pl.’s\n\nObjs., ECF No. 250-1; Def.’s Objs., ECF No. 252; and have\n\nsubmitted briefs in opposition, see Pl. Nicky Pool’s Mem. Opp’n\n\n 4\n\fDef. Continental Insurance Company’s Objs. Magistrate Judge’s\n\nProposed Findings & Recommendations (“Pl.’s Opp’n”), ECF No.\n\n253; Def. Continental Insurance Company’s Resp. Pl. Nicky Pool’s\n\nObjs. Magistrate Judge’s Proposed Findings & Recommendation\n\nDef.’s Mot. Dismiss Counts VI & VII Fourth Am. Compl. (“Def.’s\n\nOpp’n”), ECF No. 255. Ms. Pool also submitted a reply brief. See\n\nPl.’s Reply Mem. Objs. R. & R. CNA’s Mot. Dismiss Counts (“Pl.’s\n\nReply”), ECF No. 256. The motion is now ripe and ready for\n\nadjudication.\n\nIII. Legal Standard\n\n A. Objections to a Magistrate Judge’s Report and\n Recommendation\n\n Pursuant to Federal Rule of Civil Procedure 72(b), a party\n\nmay file specific written objections once a magistrate judge has\n\nentered a recommended disposition. Fed. R. Civ. P. 72(b)(1)-(2).\n\nA district court “may accept, reject, or modify the recommended\n\ndisposition.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. §\n\n636(b)(1)(C) (“A judge of the court may accept, reject, or\n\nmodify, in whole or in part, the findings or recommendations\n\nmade by the magistrate judge.”). A district court “must\n\ndetermine de novo any part of the magistrate judge’s disposition\n\nthat has been properly objected to.” Fed. R. Civ. P. 72(b)(3).\n\n“If, however, the party makes only conclusory or general\n\nobjections, or simply reiterates his original arguments, the\n\n\n 5\n\fCourt reviews the [R. & R.] only for clear error.” Houlahan v.\n\nBrown, 979 F. Supp. 2d 86, 88 (D.D.C. 2013) (citation and\n\ninternal quotation marks omitted). “Under the clearly erroneous\n\nstandard, the magistrate judge’s decision is entitled to great\n\ndeference” and “is clearly erroneous only if on the entire\n\nevidence the court is left with the definite and firm conviction\n\nthat a mistake has been committed.” Buie v. Dist. of Columbia,\n\nNo. CV 16-1920 (CKK), 2019 WL 4345712, at *3 (D.D.C. Sept. 12,\n\n2019) (citing Graham v. Mukasey, 608 F. Supp. 2d 50, 52 (D.D.C.\n\n2009)) (internal quotation marks omitted).\n\n Objections must “specifically identify the portions of the\n\nproposed findings and recommendations to which objection is made\n\nand the basis for the objection[s].” LCvR 72.3(b). “[O]bjections\n\nwhich merely rehash an argument presented and considered by the\n\nmagistrate judge are not ‘properly objected to’ and are\n\ntherefore not entitled to de novo review.” Shurtleff v. EPA, 991\n\nF. Supp. 2d 1, 8 (D.D.C. 2013) (quoting Morgan v. Astrue, No.\n\n08-2133, 2009 WL 3541001, at *3 (E.D. Pa. Oct. 30, 2009)).\n\n B. Rule 12(b)(1) Motion to Dismiss\n\n Federal Rule of Civil Procedure 12(b)(1) provides for\n\ndismissal of an action for “lack of subject matter\n\njurisdiction.” Fed. R. Civ. P. 12(b)(1). On a Rule 12(b)(1)\n\nmotion to dismiss, the party asserting jurisdiction has the\n\nburden of establishing that the Court has subject matter\n\n 6\n\fjurisdiction over the case. See Logan v. Dep’t of Veterans\n\nAffs., 357 F. Supp. 2d 149, 153 (D.D.C. 2004) (citing McNutt v.\n\nGen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 182–83,\n\n(1936)). “Because Rule 12(b)(1) concerns a court’s ability to\n\nhear a particular claim, the court must scrutinize the [party]’s\n\nallegations more closely when considering a motion to dismiss\n\npursuant to Rule 12(b)(1) than it would under a motion to\n\ndismiss pursuant to Rule 12(b)(6).” Schmidt v. U.S. Capitol\n\nPolice Bd., 826 F. Supp. 2d 59, 65 (D.D.C. 2011) (citations\n\nomitted).\n\n To assess whether a complaint sufficiently alleges subject\n\nmatter jurisdiction, the Court accepts as true the allegations\n\nof the complaint, see Ashcroft v. Iqbal, 556 U.S. 662, 678\n\n(2009); and liberally construes the pleadings in the plaintiff’s\n\nfavor, see Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir.\n\n2004). The Court may also consider “undisputed facts evidenced\n\nin the record” as well as its own “resolution of disputed\n\nfacts.” Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C.\n\nCir. 1992).\n\n C. Rule 12(b)(6) Motion to Dismiss\n\n A motion to dismiss pursuant to Federal Rule of Civil\n\nProcedure 12(b)(6) tests the legal sufficiency of a complaint.\n\nBrowning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A\n\ncomplaint must contain “a short and plain statement of the claim\n\n 7\n\fshowing that the pleader is entitled to relief, in order to give\n\nthe defendant fair notice of what the . . . claim is and the\n\ngrounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550\n\nU.S. 544, 555 (2007) (citation and internal quotation marks\n\nomitted).\n\n Despite this liberal pleading standard, to survive a motion\n\nto dismiss, a complaint “must contain sufficient factual matter,\n\naccepted as true, to state a claim to relief that is plausible\n\non its face.” Iqbal, 556 U.S. at 678 (citation and internal\n\nquotation marks omitted). “In determining whether a complaint\n\nfails to state a claim, [the court] may consider only the facts\n\nalleged in the complaint, any documents either attached to or\n\nincorporated in the complaint and matters of which [the court]\n\nmay take judicial notice.” EEOC v. St. Francis Xavier Parochial\n\nSch., 117 F.3d 621, 624 (D.C. Cir. 1997). A claim is facially\n\nplausible when the facts pled in the complaint allow the court\n\nto “draw the reasonable inference that the defendant is liable\n\nfor the misconduct alleged.” Iqbal, 556 U.S. at 678. The\n\nstandard does not amount to a “probability requirement,” but it\n\ndoes require more than a “sheer possibility that a defendant has\n\nacted unlawfully.” Id.\n\n “[W]hen ruling on a defendant’s motion to dismiss [pursuant\n\nto Rule 12(b)(6)], a judge must accept as true all of the\n\nfactual allegations contained in the complaint.” Atherton v.\n\n 8\n\fD.C. Off. of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009)\n\n(citation and internal quotation marks omitted). In addition,\n\nthe court must give the plaintiff the “benefit of all inferences\n\nthat can be derived from the facts alleged.” Kowal v. MCI\n\nCommc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).\n\nIV. Analysis\n\n A. The Court Has Diversity Jurisdiction Over Ms. Pool’s\n Claims\n\n The Fourth Amended Complaint (“FAC”) alleges diversity of\n\ncitizenship as a basis for the Court’s jurisdiction. See FAC,\n\nECF No. 214 ¶ 3. Magistrate Judge Faruqui concluded that Ms.\n\nPool failed to establish diversity jurisdiction because she\n\nprovided no facts to support her legal conclusion that “there is\n\ncomplete diversity of citizenship of the parties.” R. &. R., ECF\n\nNo. 248 at 4-5. Ms. Pool did not object to Magistrate Judge\n\nFaruqui’s conclusion in her objections to the R. &. R., see\n\ngenerally Pl.’s Objs., ECF No. 250-1; but did argue in her\n\nresponse to CNA’s objections that CNA incorrectly argued that\n\nthere is no diversity jurisdiction, arguing that the FAC alleges\n\ncomplete diversity of citizenship as to herself and CNA, Pl.’s\n\nOpp’n, ECF No. 253 at 15-16.\n\n The Court has an “affirmative obligation to determine\n\nwhether it has subject matter jurisdiction over the action.”\n\nFriends Christian High Sch. v. Geneva Fin. Consultants, 321\n\n\n 9\n\fF.R.D. 20, 22 (D.D.C. 2017). Diversity jurisdiction exists when\n\nthe action involves citizens of different states, and the amount\n\nin controversy exceeds $75,000.00 per plaintiff, exclusive of\n\ninterest and costs. 28 U.S.C. § 1332(a). Each plaintiff must be\n\ndiverse from each defendant for diversity jurisdiction to exist.\n\nSee In re Lorazepam & Clorazepate Antitrust Litig., 631 F.3d\n\n537, 541 (D.C. Cir. 2011). “[T]he party seeking the exercise of\n\ndiversity jurisdiction bears the burden of pleading the\n\ncitizenship of each and every party to the action.” Naartex\n\nConsulting Corp. v. Watt, 722 F.2d 779, 792 (D.C. Cir. 1983). At\n\nthis time, the only parties that remain in this action are Ms.\n\nPool and CNA. Accordingly, Ms. Pool needs to allege complete\n\ndiversity between herself and CNA. For the reasons explained\n\nbelow and liberally construing the pleadings in her favor, the\n\nCourt concludes that Ms. Pool has adequately alleged diversity\n\njurisdiction.\n\n Ms. Pool alleges that she is a foreign national of South\n\nAfrica. The FAC alleges that “[o]ne of the Plaintiffs described\n\nbelow is a foreign national from South Africa who was denied pay\n\nunder an agreement with Continental Insurance Company that\n\ncaused loss to her and her business as described below.” FAC,\n\nECF No. 214 ¶ 5. The only Plaintiff who alleges that she was\n\ndenied pay under an agreement with CNA is Ms. Pool. See id. ¶¶\n\n153-167.\n\n 10\n\f “[A] corporation shall be deemed to be a citizen of every\n\nState and foreign state by which it has been incorporated and of\n\nthe State or foreign state where it has its principal place of\n\nbusiness.” 28 U.S.C. § 1332(c)(1). The FAC alleges that CNA’s\n\nheadquarters is in Chicago, Illinois. See FAC, ECF No. 214 ¶ 93.\n\nWith these allegations, Ms. Pool has adequately alleged complete\n\ndiversity between herself and CNA because she has alleged that\n\nshe is a citizen of South Africa and that CNA is a citizen of\n\nIllinois. Ms. Pool also alleges damages in excess of $200,000.\n\nId. ¶ 97, 156. For these reasons, the Court concludes that Ms.\n\nPool has adequately alleged diversity jurisdiction.\n\n The FAC does not allege that the Court has supplemental\n\njurisdiction over Ms. Pool’s claims against CNA. Ms. Pool\n\nalleges claims for breach of contract, see id. ¶¶ 153-164; and\n\ntortious breach of covenant of good faith and fair dealing, see\n\nid. ¶¶ 165-168. However, the FAC alleges only that “[t]he court\n\nhas supplemental jurisdiction over the federal common law or\n\nstate law claims for fraud, bad faith insurance practices,\n\noutrage, and deception in trade practices.” Id. ¶ 3. Because the\n\nCourt has determined that it has diversity jurisdiction over Ms.\n\nPool’s claims, however, the Court need not address the parties’\n\narguments regarding supplemental jurisdiction.\n\n\n\n\n 11\n\f B. The Court Adopts the Portion of the R. & R. Regarding\n the Statute of Limitations\n\n Both parties object to Magistrate Judge Faruqui’s\n\nconclusions as to whether the statute of limitations bars Ms.\n\nPool’s claims. For the reasons that follow, the Court agrees\n\nwith Magistrate Judge Faruqui that Ms. Pool’s invoices from June\n\n30, 2008 to October 30, 2009 fall within the statute of\n\nlimitations and that her invoices preceding that period are\n\nbarred.\n\n 1. Ms. Pool’s Claims Relate Back to the Original\n Complaint\n\n CNA objects to Magistrate Judge Faruqui’s conclusion that\n\nMs. Pool’s claims in the Fourth Amended Complaint relate back to\n\nthe original Complaint. See Def.’s Objs., ECF No. 252 at 18-20.\n\n An amended complaint “relates back to the date of the\n\noriginal pleading when[] . . . the amendment asserts a claim or\n\ndefense that arose out of the conduct, transaction, or\n\noccurrence set out—or attempted to be set out—in the original\n\npleading.” Fed. R. Civ. P. 15(c)(1)(B). To determine whether the\n\namendment relates back, the court inquires “whether the original\n\ncomplaint adequately notified the defendant[] of the basis for\n\nliability the plaintiff[] would later advance in the amended\n\ncomplaint.” Meijer, Inc. v. Biovail Corp., 533 F.3d 857, 866\n\n(D.C. Cir. 2008).\n\n\n\n 12\n\f CNA asserts that Magistrate Judge Faruqui erred for two\n\nreasons. See Def.’s Objs., ECF No. 252 at 18-20. First, CNA\n\ncontends that Magistrate Judge Faruqui failed to consider that\n\n“a new claim cannot relate back to claims that were eliminated\n\nfrom the prior complaint.” Id. at 18 (citing Halldorson v. Sandi\n\nGrp., 934 F. Supp. 2d 147, 158 (D.D.C. 2013); Wagner v.\n\nGeorgetown Univ. Med. Ctr., 768 A.2d 546, 559 (D.C. 2001)).\n\nSecond, CNA argues that Magistrate Judge Faruqui erroneously\n\nlimited his inquiry to whether CNA was on notice of Ms. Pool’s\n\nclaims and “did not undertake the necessary analysis of whether\n\n[Ms.] Pool’s new individual claim for breach of contract arises\n\nfrom the ‘same conduct’ that forms the basis of” the claims that\n\nremain in the case. Id. at 19 (citations omitted). Here, CNA\n\nconcludes that Ms. Pool’s claims in the Fourth Amended Complaint\n\ncannot relate back to the claims in the original Complaint\n\nbecause: the Court dismissed the Second Amended Complaint “in\n\nits entirety”; the only claims that remain now are the ADA\n\nclaims by other plaintiffs in the case; and the ADA claims do\n\nnot pertain to Mr. Brink, Ms. Pool, or CNA. Id.\n\n As to CNA’s first point, Ms. Pool argues that CNA has\n\nmisinterpreted the caselaw and that the caselaw limits relation\n\nback only when the older claim was voluntarily dismissed. See\n\nPl.’s Opp’n, ECF No. 253 at 14 (citing Halldorson, 934 F.2 at\n\n158). The Court agrees with Ms. Pool that the caselaw does not\n\n 13\n\fsupport CNA’s position. In Halldorson, the Court held that the\n\nstate-law retaliation claims in the third amended complaint did\n\nnot relate back to previous allegations because the second\n\namended complaint “eliminated” the state-law retaliation claims\n\nand the settlement agreement preceding the second amended\n\ncomplaint otherwise barred common-law theories of recovery.\n\nHalldorson, 934 F.2 at 158. Here, by contrast, previous\n\nlitigation “eliminated” only the class claims alleged by Ms.\n\nPool and other plaintiffs against CNA and other defendants but\n\n“d[id] not preclude separate proceedings for . . . [Ms.] Pool to\n\nallege [an individual claim for] breach of contract” against\n\nCNA. Brink, 787 F.3d at 1126. Halldorson is therefore\n\ndistinguishable from the instant case.\n\n Ms. Pool does not address CNA’s second point that\n\nMagistrate Judge Faruqui failed to consider whether her new\n\nclaim arose from the same conduct as the original claim. See\n\nPl.’s Opp’n, ECF No. 253 at 12-14. She instead defends\n\nMagistrate Judge Faruqui’s conclusion that CNA had notice of Ms.\n\nPool’s claims, see id.; an issue that CNA does not dispute in\n\nits Objections, see generally Def.’s Objs., ECF No. 252 at 18-\n\n20. Despite her silence, the Court is persuaded that Magistrate\n\nJudge Faruqui undertook the necessary Rule 15 analysis here.\n\n“[B]oth elements [of Rule 15]—same conduct and adequate notice—\n\nmust be satisfied before relation back of new claims is\n\n 14\n\fpermitted.” Constr. Interior Sys., Inc., 813 F. Supp. at 37. The\n\ndistrict court there held that the new claim did not relate back\n\nto the original pleadings in part because the “factual\n\nunderpinnings” of the new claim were “entirely different” from\n\nthose in the original complaint. Id. at 36-37. Here, as\n\nMagistrate Judge Faruqui explained in the R. & R., see R. & R.,\n\nECF No. 248 at 6; the factual underpinnings of Ms. Pool’s new\n\nclaims are the same as those of her previous class claim,\n\ncompare FAC, ECF No. 214 ¶¶ 86-97, with Compl., ECF No. 1 ¶¶\n\n453-64. Stated differently, the new individual claim arose from\n\nthe same conduct as the original pleading. See United States v.\n\nHicks, 283 F.3d 380, 388 (D.C. Cir. 2002).\n\n Finally, CNA argues that Ms. Pool’s claims do not relate\n\nback because the D.C. Circuit “did not remand the case with\n\ndirections to allow amending the complaint to include Pool’s\n\nindividual claims.” Def.’s Objs., ECF No. 252 at 20. This\n\nargument ignores, however, that the D.C. Circuit did not\n\nprohibit Ms. Pool from seeking leave to amend the complaint to\n\nallege individual claims. Cf. Brink, 787 F.3d at 1126\n\n(explaining that the decision “does not preclude separate\n\nproceedings for . . . [Ms.] Pool to allege a breach of\n\ncontract”); Fed. R. Civ. P. 15(a)(2) (“The court should freely\n\ngive leave [to amend the complaint] when justice so requires.”).\n\n\n\n 15\n\f Accordingly, the Court concludes that Ms. Pool’s individual\n\nclaims relate back to the original Complaint and ADOPTS that\n\nportion of the R. & R.\n\n 2. Magistrate Judge Faruqui Correctly Assumed an\n Installment Contract with a Three-month Payment\n Term\n\n Both parties object to Magistrate Judge Faruqui’s analysis\n\nand conclusion as to when Ms. Pool’s claims accrued. See Pl.’s\n\nObjs., ECF No. 250-1 at 7-12; Def.’s Objs., ECF No. 252 at 20-\n\n21.\n\n CNA argues that Magistrate Judge Faruqui incorrectly\n\nassumed the existence of an installment contract. Def.’s Objs.,\n\nECF No. 252 at 20. CNA asserts that this assumption is erroneous\n\nbecause it is based on information in Ms. Pool’s Opposition to\n\nCNA’s Motion to Dismiss and not any allegations in the FAC. See\n\nid. (citing Afram v. United Food & Commercial Workers Unions &\n\nParticipating Emp’rs Health & Welfare Fund, 958 F. Supp. 2d 275,\n\n279 n.1 (D.D.C. 2013), appeal dismissed, No. 13–7136, 2014 WL\n\n1378304 (D.C. Cir. Feb. 21, 2014); Briscoe v. Costco Wholesale\n\nCorp., 61 F. Supp. 3d 78, 83 n.2 (D.D.C. 2014)). Ms. Pool does\n\nnot respond to this objection. See generally Pl.’s Objs., ECF\n\nNo. 250-1; Pl.’s Opp’n, ECF No. 253; Pl.’s Reply, ECF No. 256.\n\n The Court is not persuaded that Magistrate Judge Faruqui\n\nerred by considering the exhibits Ms. Pool filed with her\n\nOpposition to CNA’s Motion to Dismiss. Although a court may not\n\n 16\n\fconsider new allegations raised in response to a motion to\n\ndismiss, see Briscoe, 61 F. Supp. 3d at 83 n. 2 (citing Sloan v.\n\nUrban Title Servs., Inc., 689 F. Supp. 2d 94, 114 (D.D.C.\n\n2010)); it also “may consider . . . any documents either\n\nattached to or incorporated in the complaint,” EEOC, 117 F.3d at\n\n624. Here, the FAC discusses the “regular invoices [Ms. Pool\n\nsent to CNA] for services she provided, and for the services,\n\nsupplies and medical providers whom she engaged to care for Mr.\n\nBrink’s various needs from hospitalizations, wound care,\n\noperations, therapy, and transportation and medical supplies” as\n\nwell as CNA’s payment of “some of those invoices.” FAC, ECF No.\n\n214 ¶¶ 88-89. Because the FAC incorporates those invoices and\n\npayment records by reference, Magistrate Judge Faruqui\n\nappropriately considered Ms. Pool’s exhibits. See Gerlich v.\n\nU.S. Dep’t of Just., 659 F. Supp. 2d 1, 5 n.2 (D.D.C. 2009).\n\n In the alternative, CNA contends that Magistrate Judge\n\nFaruqui did not imply a reasonable time for performance under an\n\ninstallment contract. See Def.’s Objs., ECF No. 252 at 21.\n\nSpecifically, CNA argues that Magistrate Judge Faruqui “erred in\n\ndisregarding [Ms.] Pool’s own declaration, which concedes that\n\n‘CNA stopped paying invoices in 2007.’” Id. (quoting Pool Decl.,\n\nECF No. 227-2 ¶ 8). The Court disagrees with this assessment. In\n\nher declaration, Ms. Pool references documentation of CNA’s\n\npayment history. See Pool Decl., ECF No. 227-2 ¶ 8 (“attached\n\n 17\n\fspread sheet, attachment 3 hereto, showing invoicing and\n\npayments with interest, to today’s date that have been\n\nincurred”). In that exhibit, Ms. Pool states that CNA paid her\n\nin three-month intervals. See Ex. 3, ECF No. 227-2 at 21-22. The\n\nCourt therefore concludes that Magistrate Judge Faruqui fairly\n\nimplied a three-month payment term. See R. & R., ECF No. 248 at\n\n8 (discussing Exhibit 3).\n\n Ms. Pool also objects to Magistrate Judge Faruqui’s\n\nanalysis as to whether CNA repudiated the contract. See Pl.’s\n\nObjs., ECF No. 250-1 at 7-12. However, as CNA states in its\n\nOpposition, see Def.’s Opp’n, ECF No. 255 at 9; her objection\n\nmerely repeats her Opposition to CNA’s Motion to Dismiss\n\nverbatim, compare Pl.’s Objs., ECF No. 250-1 at 7-12, with Pl.’s\n\nOpp’n & Resp. Def. CNA’s Mot. Dismiss Fourth Am. Compl., ECF No.\n\n227 at 15-19. Accordingly, the Court reviews this objection only\n\nfor clear error, see Houlahan, 979 F. Supp. 2d at 88; and\n\nconcludes that Magistrate Judge Faruqui did not err with respect\n\nto his analysis in this portion of the R. & R.\n\n In sum, the Court concludes that Magistrate Judge Faruqui\n\nappropriately assumed the existence of an installment contract\n\nand implied a three-month payment term.\n\n\n\n\n 18\n\f 3. Magistrate Judge Faruqui Correctly Disregarded\n Ms. Pool’s Equitable Tolling Arguments\n\n Ms. Pool objects to Magistrate Judge Faruqui’s failure to\n\napply the doctrine of equitable tolling to her claims. See Pl.’s\n\nObjs., ECF No. 250-1 at 12-15. As with her repudiation argument,\n\nsee supra, her objection largely restates her Opposition to\n\nCNA’s Motion to Dismiss verbatim, compare id., with Pl.’s Opp’n\n\n& Resp. Def. CNA’s Mot. Dismiss Fourth Am. Compl., ECF No. 227\n\nat 20-23. The Court therefore reviews Ms. Pool’s objection only\n\nfor clear error. See Houlahan, 979 F. Supp. 2d at 88. Finding no\n\nerror, the Court ADOPTS the portion of the R. & R. pertaining to\n\nthe statute of limitations.\n\n C. Ms. Pool Adequately Pleaded a Claim for Breach of\n Contract\n\n CNA objects to Magistrate Judge Faruqui’s conclusion that\n\nMs. Pool adequately pleaded her claim for breach of contract.\n\nSee Def.’s Objs., ECF No. 252 at 21-25. In particular, CNA\n\nargues that: (1) Magistrate Judge Faruqui incorrectly considered\n\nevidence Ms. Pool submitted with her Opposition to its Motion to\n\nDismiss; (2) Ms. Pool has not alleged the existence of a\n\ncontract; and (3) Magistrate Judge Faruqui erred by not\n\nconsidering its documentary evidence. See id. For the reasons\n\nthat follow, the Court concludes that Ms. Pool has properly\n\npleaded her breach of contract claim.\n\n\n\n 19\n\f CNA first contends that the Court should reject Magistrate\n\nJudge Faruqui’s recommendation because it “is based, in large\n\npart, on new allegations and documentation proffered by [Ms.]\n\nPool in her opposition.” Id. at 21. As the Court explained\n\nsupra, it was appropriate for Magistrate Judge Faruqui to\n\nconsider Ms. Pool’s exhibits because they are incorporated into\n\nthe FAC by reference. See EEOC, 117 F.3d at 624.\n\n CNA next argues that Magistrate Judge Faruqui should have\n\nrecommended dismissal because Ms. Pool has not alleged the\n\nexistence of a contract. See Def.’s Objs., ECF No. 252 at 22-24.\n\nIndeed, a plaintiff alleging a breach of contract must plead,\n\ninter alia, a valid contract between the parties. Tsintolas\n\nRealty Co. v. Mendez, 984 A.2d 181, 187 (D.C. 2009). Looking\n\nonly at the FAC and not the documents incorporated by reference,\n\nCNA argues that Ms. Pool has failed to allege material terms of\n\na contract, including: whether Ms. Pool had a contract, when the\n\ncontract was executed, when Ms. Pool submitted invoices, the\n\ndetails of her invoices, or the payment terms. See Def.’s Objs.,\n\nECF No. 252 at 22-23. CNA further contends that Ms. Pool’s\n\nallegations in the FAC suggest only: that CNA had a contractual\n\nrelationship with other entities; and that Ms. Pool had a\n\nrelationship with Mr. Brink. See id. at 23-24.\n\n Ms. Pool counters that she has alleged the existence of a\n\ncontract. See Pl.’s Opp’n, ECF No. 253 at 16-18. Citing the FAC,\n\n 20\n\fshe argues that she alleged: “[t]here was an agreement, CNA\n\nacted as if there was, [she] performed services in reliance on\n\nsuch, [and] CNA paid for some of the invoices (accounts\n\nstated).” Id. at 18. The Court agrees that Ms. Pool has\n\n“sufficiently allege[d] the existence of a contract, its general\n\nterms, and the contractual obligation that [CNA] purportedly\n\nviolated (i.e. failing to pay [her]).” Burnett v. Am. Fed’n of\n\nGov’t Emps., 102 F. Supp. 3d 183, 193 (D.D.C. 2015) (explaining\n\nthat “[w]hen those elements are pled, . . . courts have held\n\nthat plaintiffs have adequately stated a claim, despite the\n\notherwise imprecise or vague nature of the complaint”). In the\n\nFAC, she alleges an agreement—for her “to perform nursing\n\nservices and nurse case management services for [CNA]” and for\n\nCNA “to pay her for her services.” FAC, ECF No. 214 ¶¶ 154-55.\n\nShe also alleges the terms of the contract by describing how\n\nboth parties performed pursuant to that agreement. See id. ¶¶\n\n156-59 (describing the services Ms. Pool was bound to provide\n\nand the payments CNA was bound to make). The Court concludes\n\nbased on these allegations that Ms. Pool has adequately pleaded\n\nthe existence of a contract. See Burnett, 102 F. Supp. 3d at\n\n192-93.\n\n Finally, CNA objects to Magistrate Judge Faruqui’s failure\n\nto consider the settlement agreement it entered into with Mr.\n\nBrink. See Def.’s Objs., ECF No. 252 at 24-25. The Court agrees\n\n 21\n\fwith CNA that it may take judicial notice of this record. See\n\nVenable LLP v. Overseas Lease Grp., Inc., No. CV 14-02010 (RJL),\n\n2015 WL 4555372, at *3 n.7 (D.D.C. July 28, 2015) (taking\n\njudicial notice of a settlement agreement in the public record).\n\nHowever, this settlement agreement does not alter the Court’s\n\nanalysis because, as with its briefing on its Motion to Dismiss,\n\nCNA cites no legal authority to explain why Ms. Pool is bound by\n\nits agreement with Mr. Brink. See generally Def.’s Objs., ECF\n\nNo. 252 at 24-25.\n\n Accordingly, the Court concludes that Ms. Pool has stated a\n\nclaim for breach of contract and ADOPTS this portion of the R. &\n\nR.\n\n D. Ms. Pool Has Not Pleaded a Claim for Breach of the\n Covenant of Good Faith and Fair Dealing\n\n Finally, Ms. Pool objects to Magistrate Judge Faruqui’s\n\nconclusion that she has not pleaded a claim for breach of the\n\nimplied covenant of good faith and fair dealing. See Pl.’s\n\nObjs., ECF No. 250-1 at 15-18.\n\n Under District of Columbia law, all contracts contain an\n\nimplied covenant of good faith and fair dealing. Nugent v. Unum\n\nLife Ins. Co. of Am., 752 F.Supp.2d 46, 56 (D.D.C. 2010) (citing\n\nAllworth v. Howard Univ., 890 A.2d 194, 201 (D.C. 2006)). A\n\nplaintiff alleging a claim for a breach of this implied covenant\n\n“must allege either bad faith or conduct that is arbitrary and\n\n\n 22\n\fcapricious.” Wright v. Howard Univ., 60 A.3d 749, 754 (D.C.\n\n2013). “Bad faith requires more than mere negligence,” such as\n\n“lack of diligence, purposeful failure to perform, and\n\ninterference with the other party’s ability to perform.” Id.\n\n Ms. Pool argues that CNA’s actions “were malicious and\n\nintended to deceive and deprive [her] of” payment for the\n\nservices she rendered. See Pl.’s Objs., ECF No. 250-1 at 16.\n\nCiting the Restatement (Second) of Contracts, she contends that\n\nthe following constitutes bad faith: evasion; agreement and\n\nsubsequent refusal to meet; delay of payment; and refusal to\n\nnegotiate with her attorney. See id. at 17.\n\n CNA defends Magistrate Judge Faruqui’s determination that\n\nMs. Pool’s allegations are vague, conclusory, and otherwise\n\nduplicative of her breach of contract claim. See Def.’s Opp’n,\n\nECF No. 255 at 13-15. The Court agrees with CNA. Ms. Pool’s\n\nallegations of “evasion” and “refusal” are vague and conclusory.\n\nSee Ruiz v. Millennium Square Residential Ass’n, No. 1:19-cv-\n\n3765, 2022 WL 296200, at *8 (D.D.C. Feb. 1, 2022), appeal\n\ndocketed, No. 22-7024 (D.C. Cir. Mar. 10, 2022). Other\n\nallegations merely repeat the allegations she made in connection\n\nwith her breach of contract claim. See generally FAC, ECF No.\n\n214. The Court therefore is persuaded that Ms. Pool has failed\n\nto state a claim for a breach of the implied covenant of good\n\nfaith and fair dealing and ADOPTS this portion of the R. & R.\n\n 23\n\fV. Conclusion\n\n For the foregoing reasons, the Court ADOPTS IN PART\n\nMagistrate Judge Faruqui’s R. & R., ECF No. 248; and GRANTS IN\n\nPART and DENIES IN PART CNA’s Motion to Dismiss, ECF No. 220. An\n\nappropriate Order accompanies this Memorandum Opinion.\n\n SO ORDERED.\n\n\nSigned: Emmet G. Sullivan\n United States District Judge\n September 11, 2023\n\n\n\n\n 24\n\f", "ocr": false, "opinion_id": 9839063 } ]

[ "839 F. Supp. 2d 259" ]

[ { "author_str": "Lamberth", "per_curiam": false, "type": "010combined", "page_count": 7, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2011cv1189-14", "author_id": 1844, "opinion_text": " UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n )\nKEITH TAYLOR, )\n )\n Plaintiff, )\n )\n v. ) 11-cv-1189 (RCL)\n )\nFANNIE MAE, et al., )\n )\n Defendants. )\n )\n\n\n MEMORANDUM OPINION\n\nI. INTRODUCTION\n\n Pending before the Court is the defendants’ motion [7] to dismiss the plaintiff’s first\n\namended complaint [11] or, in the alternative, motion to compel arbitration.1 Upon consideration\n\nof the filings and the relevant law, the Court will GRANT the defendants’ motion to compel\n\narbitration.\n\nII. BACKGROUND\n\n Plaintiff Keith Taylor (“Taylor”) in this action claims he was wrongfully retaliated\n\nagainst after raising concerns that an employee was reporting fraudulent data to federal\n\nregulators. After complying with the administrative claims process before the Occupational\n\nSafety and Health Administration (“OSHA”), Taylor filed a complaint with this Court on June\n\n28, 2011. Id. ¶ 87. Taylor subsequently amended his complaint on November 15, 2011. In the\n\ncomplaint, Taylor argues that if Fannie Mae is considered a private employer, the defendants\n\n\n1\n After all briefings were filed with respect to the defendants’ motion to dismiss Taylor’s original\ncomplaint, Taylor amended his complaint to include an additional claim under the Sarbanes-Oxley Act.\nBoth parties filed a joint stipulation, however, agreeing that no further briefing was necessary. Therefore,\nthe Court addresses the defendants’ motion to dismiss Taylor’s original complaint here.\n\fretaliated against him in violation of the Dodd-Frank Wall Street and Consumer Protection Act\n\n(“Dodd-Frank Act”), 15 U.S.C. § 78u-6 et seq., and the Sarbanes-Oxley Act (“Sarbanes-Oxley”),\n\n18 U.S.C.A. § 1514A. Taylor further alleges a common law claim for wrongful termination. Id.\n\nIf, in the alternative, Fannie Mae is considered a government employer, Taylor’s amended\n\ncomplaint alleges the defendants violated his constitutional rights under the First Amendment.\n\nThe defendants assert the threshold contention that Taylor’s executed employment agreement\n\nobligates him to submit such a dispute to arbitration.2.\n\nII. LEGAL STANDRD\n\n The Federal Arbitration Act (“FAA”) provides that “a written provision in . . . a contract\n\nto settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid,\n\nirrevocable, and enforceable save upon any grounds as exist at law or in equity for the revocation\n\nof any contract.” 9 U.S.C. § 2. The FAA creates a strong presumption in favor of enforcing\n\narbitration agreements and “[a]ny doubts concerning the scope of arbitrable issues should be\n\nresolved in favor of arbitration.” Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 226-27\n\n(1987) (stating that arbitration agreements must be rigorously enforced); Moses H. Cone Mem'l\n\nHosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983) (noting that federal policy favors\n\narbitration). Nevertheless, parties cannot be forced into arbitration unless they have agreed to do\n\nso. AT & T Techs. Inc. v. Commc'ns Workers, 475 U.S. 643, 648-49 (1986). Moreover, the\n\nauthority of arbitrators to resolve disputes is derived from the agreement of parties to engage in\n\narbitration. Equal Employment Opportunity Comm'n v. Waffle House, Inc., 534 U.S. 279, 294\n\n(2002). Because arbitration provisions are in essence a matter of contract between the parties, it\n\n\n2\n In March 2010, Taylor entered into an employment agreement. This agreement provided that if an\nemployee has a claim involving a legally protected right, that indirectly or directly relates to his\nemployment or the termination of that employment, he must arbitrate the claim prior to bringing suit in\ncourt. Def.’s Mot. Ex. 2.\n\n\n 2\n\fis for the courts to decide whether the parties are bound by a given arbitration clause. Howsam v.\n\nDean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002) (holding that “a gateway dispute about\n\nwhether the parties are bound by a given arbitration clause raises a question of arbitrability for a\n\ncourt to decide”) (internal quotation omitted).\n\n Such questions of arbitrability are typically brought before the court pursuant to section 4\n\nof the FAA, which permits a party to petition any United States district court which would\n\notherwise have subject-matter jurisdiction “for an order directing that such arbitration proceed in\n\nthe manner provided for in such agreement.” 9 U.S.C. § 4. When presented with a motion to\n\ncompel arbitration, a district court must “determine the enforceability of the agreement [to\n\narbitrate] and decide whether arbitration should be compelled.” Nelson v. Insignia/Esg, Inc., 215\n\nF. Supp. 2d 143, 146 (D.D.C. 2002). To make such a determination, courts must engage in a\n\ntwo-part inquiry. Id. at 149-50. First, the court must decide whether the parties entered into a\n\nvalid and enforceable arbitration agreement. Nur v. K.F.C. USA, Inc., 142 F. Supp. 2d 48, 50-51\n\n(D.D.C. 2001). If the court finds that the parties did enter a valid arbitration agreement, the\n\nsecond step is to determine whether the arbitration agreement encompasses the claims raised in\n\nthe complaint. Id.\n\nIII. ANALYSIS\n\n Taylor does not challenge that he entered into a valid arbitration agreement but rather, he\n\nchallenges the enforceability of his agreement. Sarbanes-Oxley provides protection for\n\nwhistleblowers, stating that publicly traded companies are prohibited from “discharg[ing],\n\ndemot[ing],” or otherwise harming or threatening an employee because of a lawful act done by\n\nthe employee to provide information about company conduct that the employee believes to be\n\nunlawful. 18 U.S.C. § 1514A. While Sarbanes-Oxley claims were arbitrable at the time the law\n\nwas originally enacted, the recent Dodd–Frank Act, enacted in July 2010, amended Section\n\n\n 3\n\f1514A to prohibit arbitration of Sarbanes-Oxley claims. 18 U.S.C. § 1514A(e)(2) (“No\n\npredispute arbitration agreement shall be valid or enforceable, if [it] requires arbitration of a\n\ndispute arising under this section.”). As the defendants are attempting to enforce a dispute\n\nresolution policy over a Sarbanes-Oxley claim, the question before the Court is whether the\n\nDodd–Frank Act applies retroactively to arbitration agreements that existed prior to July 2010.\n\n In Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994), the Supreme Court\n\nreaffirmed the judicial presumption against applying a statute that “would impair rights a party\n\npossessed when he acted, increase a party's liability for past conduct, or impose new duties with\n\nrespect to [completed] transactions.” Landgraf and its sequelae prescribe a process for\n\ndetermining whether a statute applies to past conduct. We first look for an “express command”\n\nregarding the temporal reach of the statute, id., or, “in the absence of language as helpful as\n\nthat,” determine whether a “comparably firm conclusion” can be reached upon the basis of the\n\n“normal rules of [statutory] construction.” Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37\n\n(2006) (quoting Lindh v. Murphy, 521 U.S. 320, 326 (1997)). If we cannot reach a firm\n\nconclusion, then we turn to judicial default rules, asking whether applying the statute “would\n\nhave a retroactive consequence in the disfavored sense of ‘affecting substantive rights, liabilities,\n\nor duties [on the basis of] conduct arising before [its] enactment.’ ” Id. (quoting Landgraf, 511\n\nU.S. at 278). If applying the statute would have such a disfavored effect, then we do not apply it\n\nabsent clear evidence in the legislative history that the Congress intended retroactive application.\n\nSee Landgraf, 511 U.S. at 280; Summers v. U.S. Dep't of Justice, 569 F.3d 500, 504 (D.C. Cir.\n\n2009); Koch v. SEC, 177 F.3d 784, 786 n. 3 (9th Cir. 1999).\n\n The key question in the instant action, then, is whether the Dodd-Frank Act’s updated\n\nSarbanes-Oxley provisions, contained in § 922 of the Dodd-Frank Act, would affect the\n\n\n\n\n 4\n\fsubstantive rights of the parties.3 Because of its recent passage, very little precedent interpreting\n\nthe Dodd-Frank Act exists. Nevertheless, the parties have presented the Court with two non-\n\nbinding, but opposed, cases supporting their respective positions.\n\n The defendants rely on Henderson v. Masco Framing Corp., 2011 WL 3022535 (D. Nev.\n\nJuly 22, 2011) to support their contention that applying the Dodd-Frank Act’s Sarbanes-Oxley\n\nprovisions retroactively would “fundamentally interfere with the parties’ contractual rights and\n\nwould impair the ‘predictability and stability’ of their earlier agreement.” Def.’s Mot. at 20-21.\n\nThe court in Henderson concluded that a retroactive revocation of the parties’ rights to arbitrate\n\nSarbanes-Oxley claims would impair the rights possessed by the parties when they acted.\n\nHenderson, 2011 WL at *4. Because it would impair a substantive right, the court held that a\n\nretroactive application would not “merely affect the jurisdictional location in which such claims\n\ncould be brought.” Id.\n\n In opposition, Taylor cites Pezza v. Investors Capital Corp, 767 F. Supp. 2d 225 (D.\n\nMass. 2011) to support his contention that applying the statute retroactively would simply\n\nchange the tribunal that is to hear the case. Pl.’s Opp’n at 19. The district court in Pezza\n\nengaged in a lengthy analysis of the Dodd-Frank Act before determining that, under the plain\n\nlanguage of the statute, Congress' intent concerning the retroactivity of § 922 was unclear. Id. at\n\n232. Allegedly acting under the impetus of Supreme Court precedent as elaborated in cases such\n\nas Landgraf, the court then examined the practical consequences of allowing § 922 to apply\n\nretroactively. Id. at 232-35. Asserting that a retroactive application of § 922 would merely\n\naffect the conferral of jurisdiction—a procedural right-rather than the substantive rights of the\n\n3\n All courts that have addressed this issue agree that the portions of the Dodd-Frank Act addressing predispute\narbitration do not evidence any express intent from Congress that they be applied retroactively. See e.g., Henderson\nv. Masco Framing Corp., 2011 WL 3022535 (D. Nev. July 22, 2011); Pezza v. Investors Capital Corp., 767 F.\nSupp. 2d 225 (D. Mass. 2011); Homes v. Air Liquide USA LLC, 2012 WL 267194 (S.D. Tex. Jan. 30, 2012). This\nCourt agrees and proceeds to address whether the presumption against retroactivity is rebutted in this case.\n\n\n 5\n\fparties—the court held that § 922 qualifies as just the sort of quasi-retroactive statutory provision\n\nthat can be applied retroactively because it does not have affect the parties substantive rights.\n\nSee Id. at 233-34.\n\n After reviewing the relevant case law, the Court agrees with the ruling in Henderson. At\n\nthe time Taylor agreed to the dispute resolution policy in 2010, the parties had the right to\n\ncontract for the arbitration of Sarbanes-Oxley claims. Further, the agreement states that the\n\narbitration clause applies to all claims dealing with legally protected rights that directly or\n\nindirectly relate to the termination of his employment. Def.’s Mot. Ex. 2. Therefore, the Court\n\nhere fails to see how a retroactive application would not impair the parties’ rights possessed\n\nwhen they acted. Accordingly, the Court finds that Taylor’s Sarbanes-Oxley and Dodd-Frank\n\nclaims fall within the provisions of the valid arbitration agreement and, recognizing the FAA's\n\nmandatory enforcement of such valid arbitration agreements, the Court grants the defendants’\n\nmotion to compel arbitration with respect to the three claims asserted against it as a private\n\nemployer.4\n\n Because the Court does not reach the merits on whether Fannie Mae is considered a\n\npublic or private employer, the Court dismisses Taylor’s First Amendment claim without\n\nprejudice, noting that Taylor may obtain the relief he seeks from the remaining claims in\n\narbitration. The Court will not unnecessarily reach and determine what, if any, constitutional\n\nclaim may be maintained.\n\nV. CONCLUSION\n\n For the foregoing reasons, the Court GRANTS the defendants’ motion [7] to compel\n\narbitration. The Court DISMISSES WITH PREJUDICE Taylor’s Dodd-Frank, Sarbanes-Oxley,\n\n4\n Taylor does not argue that his additional claim, asserting the defendants wrongfully terminated him in\nviolation of public policy, escapes the arbitration clause in his employment agreement. For this reason,\nthe Court will submit this claim to arbitration as well.\n\n\n 6\n\fand wrongful termination claims; however, the Court DISMISSES WITHOUT PREJUDICE,\n\nTaylor’s First Amendment claim.\n\n A separate Order and Judgment consistent with these findings shall issue this date.\n\n Signed by Royce C. Lamberth, Chief Judge, on March 20, 2012.\n\n\n\n\n 7\n\f", "ocr": false, "opinion_id": 2662726 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 4, "download_url": "http://www.tsc.state.tn.us/sites/default/files/OPINIONS/tcca/PDF/054/JohnsonClareOPN.pdf", "author_id": null, "opinion_text": " IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE\n AT KNOXVILLE\n Assigned on Briefs November 29, 2005\n\n STATE OF TENNESSEE v. CLARENCE EDWARD JOHNSON\n\n Direct Appeal from the Criminal Court for Sullivan County\n Nos. S49, 341-42; S49, 371-73; S49, 647; S49, 739 Phyllis H. Miller, Judge\n\n\n\n No. E2005-00718-CCA-R3-CD - Filed December 15, 2005\n\n\nThe defendant, Clarence Edward Johnson, entered pleas of guilty to four counts of forgery, four\ncounts of identity theft, speeding, failure to provide proof of financial responsibility, two counts of\nsecond offense driving on a revoked license, misdemeanor failure to appear, two counts of felony\nfailure to appear, and theft under $500. The trial court imposed an effective sentence of six years\nof incarceration followed by three years of supervised probation. In this appeal, the defendant asserts\nthat the trial court erred by denying an alternative sentence. The judgments of the trial court are\naffirmed.\n\n Tenn R. App. P. 3; Judgments of the Trial Court Affirmed.\n\nGARY R. WADE, P.J., delivered the opinion of the court, in which JOSEPH M. TIPTON and THOMAS\nT. WOODALL, JJ., joined.\n\nLeslie Hale, Blountville, Tennessee, for the appellant, Clarence Edward Johnson.\n\nPaul G. Summers, Attorney General & Reporter; Leslie Price, Assistant Attorney General; and\nRobert H. Montgomery, Jr., Assistant District Attorney General, for the Appellee, State of\nTennessee.\n\n OPINION\n\n On January 12, 2005, the defendant entered pleas of guilty as a Range II, multiple offender\nto the following offenses:\n\n Case Number Offense Sentence\n 49,342 Forgery (4 counts) 4 years each count\n 49,342 Identity Theft (4 counts) 4 years each count\n 49,371 Speeding 30 days\n 49,371 Failure to provide proof of\n financial responsibility Payment of costs\n\f 49,371 Driving on revoked, 2nd offense 11 months, 29 days\n 49,372 Driving on revoked, 2nd offense 11 months, 29 days\n 49,373 Misdemeanor failure to appear 11 months, 29 days\n 49,647 Felony failure to appear 2 years\n 49,739 Felony failure to appear 3 years, suspended\n 49,341 Theft under $500 11 months, 29 days\n\nPursuant to a plea agreement, the trial court ordered that the sentences for forgery, identity theft,\nspeeding, driving on a revoked license, misdemeanor failure to appear, and theft under $500 be\nserved concurrently. The sentences for felony failure to appear were ordered to be served\nconsecutively to each other and to the remaining sentences for an effective sentence of nine years.\nAlso pursuant to the plea agreement, the trial court ordered that the three-year sentence for felony\nfailure to appear be suspended to supervised probation. The plea agreement left the manner of\nservice of the remaining six-year sentence to be determined by the trial court.\n\n At the sentencing hearing, the thirty-seven-year-old defendant testified that he was the father\nof three sons, each of whom was in the custody of his ex-wife. He contended that he had always\nprovided financial and emotional support to his children and explained that he committed some of\nthe crimes to which he pled guilty in order to provide shoes for his children. The defendant\napologized to the victims of the forgery and identity theft crimes and expressed his willingness to\nprovide restitution. He testified that his mother had been recently diagnosed with lung cancer and\nasked for lenience so that he could take care of her and his fourteen-year-old nephew who also\nresided with his mother. The defendant blamed the crimes on his addiction to drugs and alcohol and\npromised to work as a painter if granted a sentence involving release into the community. The\ndefendant also expressed a desire to enter a residential drug and alcohol treatment program, claiming\nthat he had made contact with two possible programs. He acknowledged that he had a pending\nprobation violation charge in Hawkins County and a pending charge for assault. The defendant\nadmitted that in 1999, while in a halfway house, he violated his probation by assaulting another\nresident.\n\n After determining that the defendant, a Range II, multiple offender, was not entitled to the\npresumption in favor of an alternative sentence, the trial court denied alternative sentencing. The\ndecision was based upon the defendant's criminal record and his inability to successfully complete\nsentences involving release into the community.\n\n In this appeal, the defendant asserts that the trial court should have granted an alternative\nsentence. When there is a challenge to the length, range, or manner of service of a sentence, it is the\nduty of this court to conduct a de novo review with a presumption that the determinations made by\nthe trial court are correct. Tenn. Code Ann. § 40-35-401(d) (2003). This presumption is\n\"conditioned upon the affirmative showing in the record that the trial court considered the sentencing\nprinciples and all relevant facts and circumstances.\" State v. Ashby, 823 S.W.2d 166, 169 (Tenn.\n1991); see State v. Jones, 883 S.W.2d 597, 600 (Tenn. 1994). \"If the trial court applies inappropriate\nfactors or otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls.\"\n\n\n -2-\n\fState v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission\nComments provide that the burden is on the defendant to show the impropriety of the sentence.\nTenn. Code Ann. § 40-35-401 (2003), Sentencing Commission Comments.\n\n Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing\nhearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel\nrelative to sentencing alternatives; (4) the nature and characteristics of the offenses; (5) any\nmitigating or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7)\nthe defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210\n(2003); State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).\n\n An alternative sentence is any sentence that does not involve total confinement. See State\nv. Fields, 40 S.W.3d 435, 442 (Tenn. 2001). As a Range II, multiple offender, the defendant is not\npresumed to be a favorable candidate for alternative sentencing. See Tenn. Code Ann. §\n40-35-102(6) (2003) (\"A defendant . . . who is an especially mitigated or standard offender convicted\nof a Class C, D or E felony is presumed to be a favorable candidate for alternative sentencing options\nin the absence of evidence to the contrary.\"); see also State v. Souder, 105 S.W.3d 602, 607 (Tenn.\nCrim. App. 2002). Further, because the sentence imposed is less than eight years, the trial court was\nrequired to consider probation as a sentencing option. See Tenn. Code Ann. § 40-35-303(b) (2003).\nThe defendant bears the burden of demonstrating his suitability for total probation, see State v.\nBingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995), overruled in part on other grounds by\nState v. Hooper, 29 S.W.2d 1 (Tenn. 2000), and must demonstrate that probation would \"subserve\nthe ends of justice and the best interests of both the public and the defendant,\" Hooper v. State, 297\nS.W.2d 78, 81 (Tenn. 1956). Among the factors applicable to probation consideration are the\ncircumstances of the offense; the defendant's criminal record, social history, and present condition;\nthe deterrent effect upon the defendant; and the best interests of the defendant and the public. State\nv. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).\n\n Here, the trial court ordered a fully incarcerative sentence based upon the defendant's\ncriminal record and his previous unsuccessful attempts at alternative sentencing in the past. The\npresentence report establishes that the defendant has fifty-three prior convictions, including\nconvictions for driving under the influence, driving on a revoked license, possession of marijuana,\npossession of cocaine, possession of drug paraphernalia, public intoxication, assault, various traffic\noffenses, criminal trespass, burglary of a building, vehicle burglary, and domestic violence. The\nrecord also establishes that the defendant has been granted suspended sentences on at least twenty\nprior occasions and was, in fact, serving a probationary term when he committed the offenses at\nissue. A probation violation charge and an assault charge were pending against the defendant at the\ntime of the sentencing hearing. While in a halfway house for previous criminal behavior, he\ncommitted an assault against another resident. Under these circumstances, it can hardly be said that\nthe trial court abused its discretion by denying alternative sentencing.\n\n Accordingly, the judgments of the trial court are affirmed.\n\n\n\n -3-\n\f ___________________________________\n GARY R. WADE, PRESIDING JUDGE\n\n\n\n\n-4-\n\f", "ocr": false, "opinion_id": 1055143 } ]

[ "576 So. 2d 742" ]

[ { "author_str": null, "per_curiam": true, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n576 So. 2d 742 (1991)\nArthur FLEWELLING, Appellant,\nv.\nSTATE of Florida, Appellee.\nNo. 89-2450.\nDistrict Court of Appeal of Florida, First District.\nFebruary 6, 1991.\nOn Motion for Rehearing March 27, 1991.\nBarbara M. Linthicum, Public Defender, and Lynn A. Williams, Asst. Public Defender, Tallahassee, for appellant.\nRobert A. Butterworth, Atty. Gen., and William A. Hatch, Asst. Atty. Gen., Tallahassee, for appellee.\nPER CURIAM.\nArthur Flewelling appeals his conviction and sentence on charges of grand theft of an automobile, forgery, uttering, and petit theft. He was sentenced as an habitual felony offender. He raises four points on appeal dealing with his sentence as an habitual felony offender. Since we reverse on the first point, we find it unnecessary to reach the other three.\nFlewelling contends that the trial court erred in sentencing him as an habitual felony offender based only on prior out-of-state felony convictions because the applicable statute, section 775.084, Florida Statutes (1988 Supp.), explicitly requires proof that the \"defendant has previously been convicted of two or more felonies in this state.\" It is agreed that Flewelling's prior felony convictions did not occur in Florida. This court has previously held that the 1988 habitual offender statute requires that the prior convictions of felonies must have occurred in Florida. Parrish v. State, 571 So. 2d 97 (Fla. 1st DCA 1990). Therefore, *743 we vacate the sentence and remand for resentencing.\nERVIN, NIMMONS and ZEHMER, JJ., concur.\n\nON MOTION FOR REHEARING\nPER CURIAM.\nAppellee's motion for rehearing is denied. We note that in Parrish v. State, 571 So. 2d 97 (Fla. 1st DCA 1990), upon which our opinion in the instant case relied, the state, through another assistant attorney general, conceded error as to the very same point upon which the state relies for rehearing in its present motion.\nNIMMONS and ZEHMER, JJ., and WENTWORTH, Senior Judge, concur.\n", "ocr": false, "opinion_id": 1653236 } ]

[ "873 So. 2d 198" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 3671, "opinion_text": "\n873 So.2d 198 (2003)\nFUNLINER OF ALABAMA, L.L.C., et al.\nv.\nFred PICKARD and Lewis Dowdell.\n1012411.\nSupreme Court of Alabama.\nMay 23, 2003.\nRehearing Denied August 22, 2003.\n*201 John M. Bolton III of Sasser, Littleton & Stidham, P.C., Montgomery; and Ralph L. Armstrong, Bessemer, for appellants.\nRobert B. Roden and M. Shane Lucado of Shelby, Roden & Cartee, P.C., Birmingham, for appellees.\nSTUART, Justice.\nFunliner of Alabama, L.L.C.; John Abbott; Abbott Amusement Co., Inc.; Alabama Amusements; Barry Kelly d/b/a Movie Time Arcade; Darrell Westfaul; Dixie Novelty Company, Inc.; Franco Novelty, L.L.C.; Montgomery 76 Auto Truck Plaza; Kevin Sharp Enterprises, Inc.; Willie Vines; and Vines Vending, Inc., the defendants in an action pending in the Jefferson Circuit Court (hereinafter collectively referred to as \"the defendants\") appeal[1] from the August 27, 2002, orders of the Jefferson Circuit Court certifying a class of plaintiffs and certifying two classes of defendants in this action.[2] The defendants also appeal from the trial *202 court's issuance of a preliminary injunction.\nWe reverse the trial court's certification of the plaintiff class and its certification of the defendant classes. We also dissolve the preliminary injunction issued by the trial court. We remand this action for further proceedings.\n\nI.\n\nBackground\nThe defendants may be categorized into two groups; each group is engaged in a different but related business. Both groups are involved with video-gaming machines. The first group of defendants consists of the owners of arcades in which there are 20 or more video-gaming machines for the public's use. If a player wins a game at one of these arcades, the player wins a merchandise certificate valued at approximately $5. Funliner of Alabama, L.L.C., is a member of this group; this group is hereinafter referred to as the \"arcade defendant class.\"\nThe second group consists of entities that lease the video-gaming machines to certain businesses throughout Alabama; these businesses include, among others, retail establishments, truck stops, bars, convenience stores, bowling alleys, and lounges. Alabama Amusements, Dixie Novelty Company, Inc., Franco Novelty, L.L.C., and Vines Vending, Inc., are members of this group, which is hereinafter referred to as the \"leasing defendant class.\"\nIn November 1999, Fred Pickard and Lewis Dowdell sued the defendants as a result of these gaming activities. Pickard and Dowdell alleged public nuisance, violations of § 8-1-150, Ala.Code 1975, unjust enrichment or money had and received, and civil conspiracy. They seek to recover, for each and every claim asserted, compensatory and punitive damages,[3] prejudgment and postjudgment interest, court costs, declaratory relief, injunctive relief, imposition of a constructive trust to reimburse the plaintiffs for the money they lost in playing the video-gaming machines, attorney fees, and any other legal and equitable relief deemed to be proper.\nPickard and Dowdell moved the trial court to certify as a class \"all persons who spent money playing the video gaming machines owned or operated by any of the named Defendants in any business establishment located in Alabama from November 3, 1993, to the present.\" They also requested that the trial court certify the two groups of defendants—the arcade defendant class and the leasing defendant class—as two separate classes of similarly situated defendants.\nOn March 15, 2002, the trial court conducted a hearing on Pickard and Dowdell's motion for class certification.[4] At the hearing, Fred Pickard, a practicing attorney, testified that sometime during the summer of 2000, he spent between $12 and $15 playing two to four video-gaming machines at an arcade located in either Lipscomb or Brighton. He testified that he won \"two or three\" redemption certificates with a value of \"probably about $4.00 total.\" He also testified that he visited the arcade a second time and again played the video-gaming machines but that he does not remember the details of his second visit. He said that he did not spend as much money on his second visit to the *203 arcade as he spent on his first visit. He testified that he does not know exactly how much money he lost on his visits to the arcade.\nPickard testified that there is no written record of his visits to the arcades and that, while there, he saw no logbook that would identify any of the visitors to the arcade. Pickard indicated that he has no personal knowledge of how to identify the individuals who have played the video-gaming machines at the arcade.\nPickard testified that he filed this action because, based on conversations he had had with others, he thought the video-gaming machines were cheating people. At the class-certification hearing, he denied that he had already decided that the video-gaming machines were illegal when he played them.\nHowever, on cross-examination, Pickard was questioned about his deposition testimony. He testified during his deposition that, before playing the gaming machines, he had overheard conversations discussing the legality of these gaming machines when he was at the courthouse on other business. He stated that he had also overheard conversations about a statute that related to gambling and that he had personally researched the issue whether the video-gaming machines were illegal under that statute. Pickard testified that he had concluded that the games might be illegal under Alabama law. He testified that he then played the video-gaming machines. He admitted that he reached his conclusion that the machines were possibly illegal before he played the gaming machines and that his conclusion that the games might be illegal did not change after he played the games.\nPickard also testified during his deposition that he first played a video-gaming machine \"out of curiosity.\" He testified that one day before he ever played a video-gaming machine he was on his way to the courthouse in Cullman or Jasper when he stopped at a gasoline station. While there, he saw an older woman playing a video-gaming machine. Three and one-half hours later, when he returned to the gasoline station, she was still playing the same machine. He testified that he \"just wanted to see what they were doing really. I felt like it might be illegal.\"\nPickard also testified that he has previously played \"slot machines\" in Biloxi, Mississippi. He testified that the only difference between the video-gaming machines in Alabama and the slot machines he played in Biloxi was that the video-gaming machine \"paid out a coupon\" and the slot machine \"was supposed to pay out cash or coins.\"\nPlaintiff Lewis Dowdell has a fourth-grade education. Although he did not testify at the class-certification hearing, his deposition was submitted for the court's consideration. He testified in his deposition that, in November or December 1999, he visited an unidentified arcade and spent approximately $42 playing a video-gaming machine. He won two certificates valued at $5 each.\nDowdell stated that he did not go back to the arcade because he heard from a friend and from television reports that the video-gaming machines were illegal. These reports of the illegality of the machines prompted him to consult a lawyer. Dowdell testified that he never would have played the video-gaming machine if he had known it was illegal. He testified that he did not know the amount of his damages, and other than his redemption certificates, he had no receipt or other documentation to prove that he had actually played a video-gaming machine.\nDowdell admitted that he has visited Biloxi with friends, that he has visited a *204 dog-racing track, and, that he has \"shot craps\" with friends in alleyways. He also admitted that he has been convicted of the following felonies: burglary, robbery, carrying a concealed weapon, and breaking and entering. He testified that during one of his periods of confinement in prison on those convictions, he escaped while he was assigned to a road camp.\nRobert D. Sertell testified at the class-certification hearing as an expert for the plaintiffs. He serves as the chairman of a firm that specializes in gaming and gambling machinery. He consults with and trains agencies that regulate the gaming industry, law-enforcement agencies, and manufacturers of gaming devices.\nSertell testified that he traveled to 11 counties in Alabama and visited various arcades to observe and play the video-gaming machines. He stated that he saw at least 1,000 video-gaming machines in use in Alabama. He played several video-gaming machines at various arcades and while at those arcades he spoke with patrons. He does not know how much money he lost or won while playing; he did not have any receipt or record to document his losses; and he did not have any receipt or record to document his visits or to prove that he had played the video-gaming machines.\nHe testified that the video-gaming machines used in Alabama are all games of chance and that a player's skill has no impact on whether a player wins or loses. He also stated that unlike the gaming machines approved for use in Nevada, New Jersey, or Mississippi, the machines he found in Alabama (which he referred to as \"gray-area\" or \"gray-market\" machines) are not random in their operation. Sertell testified that the gray-market machines are preset to pay winnings at a set percentage and that the owner of the machine controls that percentage by manipulating a \"dip switch\" located inside the machine. He referred to this manipulation as \"cheating\" and testified that for this reason the video-gaming machines he observed and played in Alabama would not be approved for use in jurisdictions in which the gaming industry is supervised and regulated.\nSertell testified that, although there are many variations on the type of video-gaming machine, all of the machines operate on the principles of consideration (the player's money or token), a chance (the odds of winning), and a reward (the redemption certificate or ticket). Sertell testified that a \"gambling device\" or a \"game of chance\" is any game that has those three components: consideration, chance, and reward. Sertell testified that even some games found in children's amusement arcades fall within this definition of \"gambling devices.\" Therefore, according to Sertell, children who have played those games at such establishments have engaged in illegal gambling and are therefore putative members of the plaintiff class.\nSertell also testified that, in his opinion, the individuals he spoke to who played these video-gaming machines did so under the impression that the machines were legal. He agreed that the players could have formed this belief for numerous reasons and that each player would have to be questioned in order to determine his or her basis for believing that video-gaming machines were legal.\nOn cross-examination, Sertell testified that he did not know the source of the video-gaming machine offered as an exhibit at the hearing and he did not know if it belonged to or was leased by one of the defendants. He also admitted that during his visits to the arcades, he did not actually open any of the video-gaming machines to examine the computer boards, the internal workings, or the dip switches. His testimony *205 appeared to be based on information obtained from tests and studies in which he had been previously involved and that did not involve the video-gaming machines at issue in this action.\nAt the conclusion of the class-certification hearing, the trial judge indicated that, although the plaintiffs had filed a stipulation of dismissal as to a certain group of defendants, the trial judge, on his own initiative, decided to consult with a law firm not involved in the litigation to determine if a civil claim under the Racketeer Influenced and Corrupt Organizations Act (\"RICO\") should be brought in this action. The trial judge indicated that, if a RICO claim was appropriate, that claim would encompass the group of defendants the plaintiffs sought to dismiss. The trial judge indicated that he was unwilling to dismiss those defendants until he obtained input from the outside law firm.\nThe trial judge's following comments, although unclear, could be construed to mean that he did not intend to certify any class (as to any of the plaintiffs or any of the defendants) until he received the additional information from the outside law firm:\n\"The Court: Well, we are going to—I think it is up to the Court to decide whether ... to let them out or not let them out as to whether or not it is going to prejudice the rest of the class or not prejudice the rest of the class whether or not they ought to be left in here. We are still going to hold on to it for right now.\n\"What we are going to do is this, we are going to do some more studying on that part of it. In order to study on it, I am going to have somebody look at it. I am not going to certify them right now. And I am not going to dismiss them right now.\n\"What I am going to do [is] this: I am going to tell you that I am going to have some folks to look at this and see whether or not all of this may tie in together as to whether or not there was a civil RICO violation—state, not a federal, but a state. If it is, then that would be a class. I am not going to involve y'all in that. It may not be anything. Y'all may be out. I don't know. I don't know that yet. I can't tell you.\n\"Mr. Coppage [counsel for one of the defendants]: Do we have an opportunity to make like a summation?\n\"The Court: Yes, sir. I am going to let y'all put something on the record. I am going to be fair. [It] would not be right for y'all not to say anything. But what I am going to do is, I am sort of previewing what I am going to do. That way you can put some stuff on the record. That way you will know ahead of time what I am thinking about.\n\". . . .\n\"The Court: Do y'all want to argue anything?\n\"Mr. Armstrong [counsel for one of the defendants]: I don't think there is need, is it?\n\"The Court: Not right now. I am just glad to have you up here.\n\"Mr. Bolton [counsel for one of the defendants]: Your Honor, if I understand the Court correctly, we are going to reconvene after you have had the opportunity to confer with Mobile counsel, then we will make our arguments at that time.\n\"The Court: That will be great. I don't know about these other [defendants], now. You may want to check with those and see what happened to them.\n\"Mr. Bolton: I don't represent any of them, Judge.\"\n*206 However, the trial court did not hold another hearing and the parties were not reconvened. On August 27, 2002, the trial court issued an order certifying the following plaintiff class pursuant to Rule 23(b)(1), (b)(2), and (b)(3), Ala. R. Civ. P.:\n\"A class of Alabama citizens that (1) spent money playing any video gaming machines, (2) that was owned and/or operated by any of the Named Defendants or any members of the Proposed Defendant Classes, (3) in any business establishment located in the State of Alabama (4) from November 3, 1993, to the present.\"[5]\nOn that same date, the trial court also certified the following defendant classes: (1) the proposed arcade defendant class, and (2) the proposed leasing defendant class. The trial court defined these classes as follows:\n\"(1) Proposed Arcade Defendant Class—individuals or entities that own or operate arcades situated in Alabama where there are large amounts (i.e.— twenty plus (20+)) of video gaming machines available for use by the Alabama public and where a winner wins redemption certificates in $5.00 increments which can be exchanged for merchandise sold by the Certificate Defendants' various shopping centers.\n\"(2) Proposed Leasing Defendant Class—individuals or entities that lease video gaming machines to small Alabama businesses, including (but not limited to) truck stops, adult bars, convenience stores, bowling alleys, lounges, retail establishments, and quick markets where a winner wins redemption certificates in $5.00 increments which can be exchanged for merchandise in that particular establishment.\"\nThe trial court also issued a preliminary injunction, pursuant to Rule 65(d)(2), Ala. R. Civ. P., enjoining all members of the defendant classes from operating any video-gaming machines within the State of Alabama until the completion of a trial or until all of the plaintiffs' claims were otherwise resolved.\nThe defendants appeal from the August 27, 2002, orders certifying the plaintiff class and the defendant classes.\n\nII.\n\nStandard of Review\nThis Court will apply \"an abuse-of-discretion standard of review to a trial court's class-certification order, but we will review de novo the question whether the trial court applied the correct legal standard in reaching its decision.\" Compass Bank v. Snow, 823 So.2d 667, 671 (Ala. 2001). We further stated in Compass Bank:\n\"[A]n abuse of discretion in certifying a class action may be predicated upon a showing by the party seeking to have the class-certification order set aside that `the party seeking class certification failed to carry the burden of producing sufficient evidence to satisfy the requirements of Rule 23.' Ex parte Green Tree Fin. Corp., 684 So.2d 1302, 1307 (Ala. 1996). Thus, we must consider the sufficiency of the evidence submitted by the plaintiff[s].\"\nCompass Bank, 823 So.2d at 672. We also apply \"an abuse-of-discretion standard\" to our review of a trial court's order granting *207 a preliminary injunction. Blaylock v. Cary, 709 So.2d 1128 (Ala.1997); Alabama Power Co. v. Drummond, 559 So.2d 158 (Ala.1990).\n\nIII.\n\nThe Proposed Plaintiff Class Rule 23(b)(1)\nThe trial court certified the plaintiff class pursuant to Rule 23(b)(1), Ala. R. Civ. P.,[6] which allows certification of a class if the prerequisites of Rule 23(a) have been met and if\n\"(1) the prosecution of separate actions by or against individual members of the class would create a risk of\n\"(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of the conduct for the party opposing the class....\"\nHowever, federal courts have recognized that certification under this subsection of the Federal Rules of Civil Procedure is inappropriate when the plaintiffs seek monetary damages.[7] For example, in In re Dennis Greenman Securities Litigation, 829 F.2d 1539 (11th Cir.1987), the United States Court of Appeals for the Eleventh Circuit agreed with numerous authorities that certification under Rule 23(b)(1)(A) does not apply to actions seeking compensatory damages but is for actions in which only declaratory or injunctive relief is sought.[8] See 829 F.2d at 1545 (\"Underlying is the concern that if compensatory damage actions can be certified under Rule 23(b)(1)(A), [Fed.R.Civ.P.,] then all actions could be certified under the section, thereby making all other sub-sections of Rule 23 meaningless, particularly Rule 23(b)(3).\").\nThere is little dispute that the plaintiffs in this case seek monetary damages, including compensatory damages. In their sixth amended complaint, they specifically demanded compensatory and punitive damages under each and every cause of action stated. (See note 3.) The plaintiffs have also indicated to the trial court that they intend to seek damages for emotional distress. Accordingly, we find that the trial court exceeded its discretion in certifying the plaintiffs' claims for class treatment under Rule 23(b)(1)(A), Ala. R. Civ. P.\n\nRule 23(b)(2)\nThe trial court also certified the plaintiffs' claims for class treatment under Rule 23(b)(2), Ala. R. Civ. P., which allows certification of a class if the prerequisites of Rule 23(a) are met and \"the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive *208 relief or corresponding declaratory relief with respect to the class as a whole.\"\nThis Court has previously considered whether a class may be certified under this subdivision when the plaintiffs seek monetary damages. In Compass Bank v. Snow, supra, the plaintiffs sued Compass Bank, alleging breach of contract, conversion, and fraudulent suppression arising out of the bank's practice of posting checks to the plaintiffs' accounts in a particular order. The plaintiffs also sought a declaratory judgment and a permanent injunction preventing the bank from continuing to post checks in the manner in which it had been posting them. The trial court certified the plaintiff class pursuant to Rule 23(b)(2) and (b)(3).\nThis Court in Compass Bank stated: \"As a general rule, certification of a class pursuant to Rule 23(b)(2) is improper if the primary relief sought is money damages.\" 823 So.2d at 678. In determining that the plaintiffs' claims for monetary damages predominated over their claims for declaratory and injunctive relief, the Court followed the rationale of the United States Court of Appeals for the Fifth Circuit in Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir.1998).\nIn Allison, the Fifth Circuit stated:\n\"[M]onetary relief `predominates' under Rule 23(b)(2)[, Fed.R.Civ.P.,] when its presence in the litigation suggests that the procedural safeguards of notice and opt-out are necessary, that is, when the monetary relief being sought is less of a group remedy and instead depends more on the varying circumstances and merits of each potential class member's case....\n\". . . .\n\"Consistent with this analysis, we reach the following holding: monetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief. By incidental, we mean damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief. See Fed.R.Civ.P. 23(b)(2) (referring only to relief appropriate `with respect to the class as a whole'). Ideally, incidental damages should be only those to which class members automatically would be entitled once liability to the class (or subclass) as a whole is established. That is, the recovery of incidental damages should typically be concomitant with, not merely consequential to, class-wide injunctive or declaratory relief. Moreover, such damages should at least be capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member's circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual's case; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations. Thus, incidental damages will, by definition, be more in the nature of a group remedy, consistent with the forms of relief intended for (b)(2) class actions.\"\n151 F.3d at 414-15 (citations and footnotes omitted). See also Murray v. Auslander, 244 F.3d 807 (11th Cir.2001) (class certification under Rule 23(b)(2), Fed.R.Civ.P., was unavailable where the plaintiff class sought monetary damages, because the claim for monetary damages was not incidental to the claims for injunctive and declaratory relief).\nWe conclude that the plaintiffs' claims for money damages in this action predominate over their claims for injunctive relief and that those claims do not flow out of a *209 group injury. The plaintiffs' claim of public nuisance requires them to establish that they have sustained a special injury that is different from the injury suffered by the public at large. See, e.g., Russell Corp. v. Sullivan, 790 So.2d 940, 951 (Ala.2001), and § 6-5-123, Ala.Code 1975. The plaintiffs allege that they have lost money and that this loss is in addition to that suffered by the public generally. As damages, they seek to recover the moneys they lost playing the video-gaming machines owned or leased by the defendants and they seek damages for emotional distress. This claim is obviously one for money damages. Moreover, in order to prevail on this claim, the plaintiffs must establish, on an individual basis, the amount of their damages.\nThe plaintiffs also claim that the defendants have violated § 8-1-150, Ala.Code 1975.[9] In support of this claim, the plaintiffs allege that they entered into a wagering contract with the defendants and that, as a result, they lost money. They seek to recover the moneys they lost playing the video-gaming machines owned or leased by the defendants. This is clearly a claim to recover moneys, and in order to recover the plaintiffs must establish, on an individual basis, the amount they lost to the defendants.\nThe plaintiffs also allege a claim of unjust enrichment or money had and received. To prevail on this claim, the plaintiffs must establish that the defendants hold money that, in equity and good conscience, belongs to the plaintiffs, or that the defendants hold money that was improperly paid to the defendants because of mistake or fraud. See Mitchell v. H & R Block, Inc., 783 So.2d 812, 817 (Ala.2000). As damages, the plaintiffs seek to recover the money they claim was unjustly paid to the defendants. Again, the plaintiffs seek to recover monetary damages and must establish their damages on an individual basis.\nAccordingly, we conclude that the plaintiffs' claims for monetary damages predominate over their claims for injunctive relief and that those claims depend upon a showing of individual damages rather than upon a showing of damages suffered by the class as a whole. For these reasons, we conclude that the trial court improperly certified the plaintiff class pursuant to Rule 23(b)(2).\n\nRule 23(b)(3)\nBecause the plaintiffs seek to recover monetary damages under each and every one of their claims, Rule 23(b)(3), Ala. R. Civ. P., appears at first blush to be the appropriate subdivision under which to certify the plaintiff class. Although it is somewhat unclear from the trial court's orders, we will presume for purposes of this appeal that the trial court intended to certify the plaintiff class under subdivision (b)(3) of Rule 23.\nTo obtain certification of a class under Rule 23(b)(3), a plaintiff must establish the prerequisites of Rule 23(a), as well as those set forth in 23(b)(3). Subdivision (b)(3) allows class certification if the prerequisites of Rule 23(a) are met and\n\"the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other *210 available methods for the fair and efficient adjudication of the controversy.\"\nIn the recent case of Reynolds Metals Co., supra, we addressed this predominance test and determined that the plaintiffs in that case had not met their burden of proof in establishing that questions of law or fact common to the members of the class predominated over individual issues. The Court in Reynolds Metals stated:\n\"The predominance requirement `tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.' It is `far more demanding' than the commonality requirement of Rule 23(a). In deciding whether common questions of fact or law predominate, a court must examine each plaintiff's cause of action and consider `what value the resolution of the class-wide issue will have in each class member's underlying cause of action.'\"\n825 So.2d at 104 (citations omitted). Thus, we review the elements of each claim of the plaintiffs to determine whether individual issues will predominate over common questions of law or fact.\nThe plaintiffs first allege public nuisance. To assert a claim of public nuisance, the plaintiffs must have sustained an injury different from and in addition to the one suffered by the public at large. See, e.g., Russell Corp v. Sullivan, supra, and § 6-5-123, Ala.Code 1975. The plaintiffs allege that they have sustained a monetary loss and that this loss is different from and in addition to the injury suffered by the public generally. As damages, the plaintiffs seek to recover the moneys they lost playing the video-gaming machines owned or leased by the defendants.\nHowever, in order to recover under this public-nuisance theory, each plaintiff will be required to establish that he or she played the video-gaming machines, as well as the amount of his or her damages. We note that, based on the testimony before the trial court, there appears to be little, if any, evidence available to establish objectively who has played the video-gaming machines owned or leased by the defendants or when those persons might have played the machines. There also appears to be little documentation, if any, to establish the amount of the players' claimed losses. Therefore, resolution of these issues, if they can be resolved at all, will require individual testimony.\nMoreover, the plaintiffs have indicated to the trial court that they intend to seek damages for emotional distress under their public-nuisance claim. Under Alabama law, recovery of damages for emotional distress requires individualized proof. See Kmart Corp. v. Kyles, 723 So.2d 572 (Ala.1998). For this reason, class certification of claims seeking damages for emotional distress is inappropriate. See Allison v. Citgo Petroleum Corp., 151 F.3d at 417.\nThe plaintiffs also seek to recover under § 8-1-150, Ala.Code 1975, which provides, in pertinent part:\n\"(a) All contracts founded in whole or in part on a gambling consideration are void. Any person who has paid any money or delivered any thing of value lost upon any game or wager may recover such money, thing, or its value by an action commenced within six months from the time of such payment or delivery.\"\nIn support of this claim, the plaintiffs allege that they entered into a wagering contract with the defendants and that they lost money as a result of that contract. However, in order to recover under § 8-1-150, the plaintiffs must establish that they, in fact, filed this action within six months of their playing the video-gaming machines at which they suffered the losses they are *211 seeking to recover. The plaintiffs must also establish that they lost money and the amount of their losses. See Bryant v. Starkey, 252 Ala. 21, 39 So.2d 291 (Ala. 1949); § 8-1-150, Ala.Code 1975, and cases cited in the annotations to that Code section. Because of the evidentiary problems already noted, numerous individualized inquiries will be required to establish the plaintiffs' claim under § 8-1-150.\nThe plaintiffs also allege unjust enrichment or money had and received. To prevail on this claim, the plaintiffs will have to establish that the defendants hold money that, in equity and good conscience, belongs to the plaintiffs, or that was improperly paid to the defendants because of mistake or fraud. See Mitchell v. H & R Block, Inc., 783 So.2d at 817. As we have already noted, in order to prevail on this theory, the plaintiffs will have to establish that they paid money to the defendants, either by mistake or fraud, that, in equity or good conscience, should be returned to the plaintiffs.\nThis theory of recovery, therefore, requires individualized inquiry into the state of mind of each plaintiff. For example, in order to determine whether each putative member of the plaintiff class paid money by mistake or fraud, the trial court will have to determine whether he or she believed that the gaming activities were illegal and, if so, whether he or she intended to engage in an illegal activity. Moreover, the trial court would then have to determine, on an individual basis, the amount each plaintiff paid to which defendants. Numerous individualized inquiries are required, which makes this claim inappropriate for class certification. See, e.g., Reynolds Metals Co., 825 So.2d at 108 (concluding that the unjust-enrichment claim in that case was inappropriate for class certification because of the predominance of individualized issues of proof).\nFinally, the plaintiffs allege that the defendants have committed a civil conspiracy. The plaintiffs allege that the defendants have conspired to advance illegal gambling activities in an effort to profit illegally by causing the plaintiffs unknowingly to engage in unlawful conduct. A civil conspiracy is not an independent cause of action. Drill Parts & Serv. Co. v. Joy Mfg. Co., 619 So.2d 1280, 1290 (Ala. 1993). Because none of the plaintiffs' other claims is appropriate for class certification, we must also decline to certify their civil-conspiracy claim for class treatment. See Millett v. Atlantic Richfield Co., (Ms. Civ.A.CV-98-555, March 2, 2000) (not reported in A.2d), appeal dismissed, 760 A.2d 250 (Me.2000), in which that court stated:\n\"Having found that plaintiffs' [other] claims ... are not suitable for class certification, this court must also decline to certify this action on plaintiffs' claim of civil conspiracy. [A] defendant cannot be held liable for civil conspiracy absent the commission of some other independently recognized tort. Therefore, plaintiffs' claim for civil conspiracy is not appropriate for class certification because this court has found that none of their other claims for tort liability are appropriate for certification.\"\n(Citations omitted.)\nResolution of the plaintiffs' claims depends upon a large number of individualized issues. We conclude that the number of individual issues present in this action predominate over the questions of law or fact common to the class members. Such a case is not appropriate for class certification under Rule 23(b)(3).\n\nIV.\n\nThe Proposed Defendant Classes\nThe trial court certified this action for bilateral class treatment. In addition to *212 certifying the plaintiffs' class, the trial court also certified two defendant classes: the proposed arcade defendant class and the proposed leasing defendant class.\nAlthough this Court has never had occasion to address the propriety of an action in which a defendant class is certified, federal courts have recognized that the language of Rule 23, Fed.R.Civ.P., authorizes defendant class actions. See 7A Charles Alan Wright et al., Federal Practice & Procedure § 1770 (2002). A proposed defendant class must meet the same prerequisites identified in Rule 23(a)—numerosity, commonality of questions of law or fact, typicality, and adequacy of representation—and must meet the requirements of one of the subdivisions set forth in Rule 23(b). The trial court purported to certify these two defendant classes pursuant to Rule 23(b)(1)(A), (b)(2), and (b)(3), Ala. R. Civ. P.\n\nRule 23(a)\nIn addressing the typicality requirement of Rule 23(a), the trial court's certification order stated:\n\"Defendant class actions focus on typicality of defenses rather than the typicality of claims. Newberg [on Class Actions], § 4.45, p. 4-179. The rule does not require that each plaintiff in the Plaintiff Class have a cause of action against each defendant in the defendant class, particularly when the suit seeks injunctive relief, as long as there is a juridical link between defendants. Where a `juridical link' exists, courts find typicality among the members of the defendant classes—even though the Representative Plaintiffs were injured by the conduct of a few (or possibly one) of the members of the defendant class— as long as the `defendants [are] so closely related that they should be treated substantially as a single unit.'\"\nWe cannot accept the trial court's statement as a proper statement of the law on the certification of defendant class actions, particularly as to the application of the juridical-link exception to the typicality requirement of Rule 23(a).\nCourts have recognized that certification of defendant class actions give rise to certain due-process concerns not found in plaintiff class actions. In In re Gap Stores Securities Litigation, 79 F.R.D. 283 (N.D.Cal.1978), the District Court for the Northern District of California stated:\n\"Commentators have frequently criticized the potential for inadequate representation of defendant classes....\n\". . . .\n\"More disquieting than the potential for inadequate representation is the [f]act of representative adjudication itself. In theory there may be no legitimate distinction between a judgment eliminating an absent class member's monetary claim and one ordering an absent class member to pay, but in practice people respond quite differently to lost claims as opposed to new-found obligations. Two authors, Peter Parsons and Kenneth Starr, [Environmental Litigation and Defendant Class Actions: the Unrealized Viability of Rule 23, 4 Envtl. L.Q. 881 (1975),] have reviewed the use of defendant class actions in environmental litigation and have carefully explored the due process problems posed by defendant class adjudications. They have observed:\n\"`The basic constitutional dilemma of defendant class actions arises out of the due process rights of absent members of the defendant class. Fundamental to due process is the notion that the authoritative determination of a personal liability, obligation or right of a defendant requires the court's in personam jurisdiction over that party.\n*213 \"`The other horn of the dilemma grows from the class action concept that in personam jurisdiction over all class members is not mandatory. Imposing such a requirement would completely undercut the broad purposes of the class action device—requiring personal jurisdiction over all of the class members would in effect destroy the class action concept since by definition there could be no \"absent\" class members. All class members would have to be named and be before the court as a prerequisite to the prosecution of the action. This tension between the due process requirements and the nature of the class action has been resolved for Plaintiff class actions by requiring that the designated class representatives [a]dequately represent the interests of the entire class. If the named parties are effective representatives of the broader class, absent members are viewed as vicariously present and thus afforded their day in court.' Parsons & Starr at 888-89.\n\"The fiction of vicarious presence may be justified in plaintiff class actions, the authors explain, where `many if not all absent members of a plaintiff class would never enjoy a day in court but for the class action,' and `while technically lacking a day in court' they `are compensated by free, effective representation and the possibility of a windfall recovery in a suit they might never have brought.' Id. at 892. The same fiction may not be justified in defendant class actions where, `no defendant class member will be effectively \"deprived\" of his day in court by dismissal or limitation of the defendant class action,' Id., since most defendants seek to eliminate such days in court. Similarly, `(a)ny presumed advantage inuring to the absent defendant from the elimination or reduction of attorney's fees is outweighed by being thrust into the litigation at all, or, if suit was inevitable, by loss of control of the litigation resulting from not having been designated a class representative. Id.\n\". . . .\n\"... [D]efendant classes are seldom certified. They are most commonly found in patent infringement cases or in suits against local public officials challenging the validity of state laws. But, attempts to certify defendant classes in antitrust cases have been generally unsuccessful, as have reported attempts to certify defendant classes in securities litigation.\n\"One apparent difficulty with defendant class actions is determining how to handle individual defenses. Unlike plaintiff class actions, successful defendant class actions traditionally have been limited to resolution of issues perfectly common to all class members.\"\n79 F.R.D. at 290-93 (citations and footnotes omitted).\nThe federal district court in In re Gap went on to discuss three cases from the Ninth Judicial Circuit that illustrate the \"common theme of discomfort\" experienced by courts attempting to certify bilateral class actions. See In re Gap, 79 F.R.D. at 293. The court noted that, in La Mar v. H & B Novelty & Loan Co., 489 F.2d 461 (9th Cir.1973), the United States Court of Appeals for the Ninth Circuit addressed the issue \"`whether a plaintiff having a cause of action against a single defendant can institute a class action against a single defendant [a]nd an unrelated group of defendants who have engaged in conduct closely similar to that of the single defendant on behalf of all those injured by all the defendants sought to be included in the defendant class.'\" In re Gap, 79 F.R.D. at 293 (quoting La Mar, *214 489 F.2d at 462). According to the district court:\n\"`[T]ypicality is lacking when the representative plaintiff's cause of action is against a defendant unrelated to the defendants against whom the cause of action of the members of the class lies.' [La Mar,] 489 F.2d at 465. Similarly, the [La Mar ] court expressed the view that a plaintiff who has no cause of action against a particular defendant cannot fairly and adequately protect the interests of the class members who do. 489 F.2d at 466. The single exception envisioned by the court to the blanket rule that each named plaintiff must have a cause of action against every member of the defendant class involved cases where the defendants were related by law or conspiracy.\"\nIn re Gap, 79 F.R.D. at 293.[10]\nAccording to the federal district court in In re Gap, the Ninth Circuit Court of Appeals next addressed just such an alleged conspiracy. In In re Hotel Telephone Charges, 500 F.2d 86 (9th Cir.1974), a plaintiff class alleged that numerous hotel chains and individual hotels had engaged in a conspiracy and had violated federal antitrust laws by adding telephone surcharges to their room rates. The plaintiffs sought certification of a defendant class.\nDespite the conspiracy exception to the typicality requirement of Rule 23(a) noted in La Mar, the Ninth Circuit Court of Appeals in In Re Hotel Telephone Charges refused to certify the defendant class because individual questions predominated over any common questions raised by the alleged conspiracy:\n\"`In order substantially to establish each hotel's involvement in a conspiracy to violate the antitrust laws, participation would be a requisite element of proof. Furthermore, since the surcharges varied from hotel to hotel, the amount of each defendant's surcharge would necessarily require individual treatment, as would the period in which each hotel's surcharge was in effect.... After the basis of computing damages had been individually determined for each defendant, each member of the class seeking recovery would then be required to prove that he patronized the hotel while the surcharge was in effect and that he absorbed the cost of the surcharge. Furthermore, it would then be necessary to compute the amount of damages due the class member.... [T]his suit raises far too many individual questions to qualify for class action treatment.'\"\nIn re Gap, 79 F.R.D. at 294 (quoting In re Hotel Telephone Charges, 500 F.2d at 89).\nThe court in In re Gap then turned to the final case in this series of decisions by the Ninth Circuit Court of Appeals: Kline v. Coldwell, Banker & Co., 508 F.2d 226 (9th Cir.1974). The defendants in that case were all members of the Los Angeles Realty Board, its several divisions, and 32 individual real estate brokers. The plaintiff class consisted of all sellers of residential real estate in Los Angeles County, California, during the four-year period prior to the filing of the action. The plaintiff class alleged that the realty board had recommended and distributed a brokerage commission schedule to its members and that the members ratified and adhered to that recommendation. The plaintiffs alleged *215 that these acts violated the federal antitrust laws.\nThe Kline court refused to certify the defendant class, rejecting the plaintiffs' claim that individualized proof would not be required and concluding that individualized inquiries predominated over common questions of law or fact. The Ninth Circuit Court of Appeals also expressed concern over the unfair burden class certification would place on members of the putative defendant class, in light of the provisions of the antitrust statute allowing treble damages and in light of the plaintiffs' request that the defendants be jointly and severally liable. In re Gap, 79 F.R.D. at 293, citing Kline, 508 F.2d at 235.\nThe federal district court in In re Gap summarized these cases, stating:\n\"When read together, La Mar, Hotel Telephone Charges and Kline set forth certain ground rules for plaintiff classes attempting to set up defendant class opposition. Preliminarily, certification will not be forthcoming unless every named plaintiff has a cause of action against every member of the defendant class except where the defendants are related by law or conspiracy. Even then, plaintiffs attempting to certify defendant classes under Rule 23(b)(3) [, Fed.R.Civ. P.,] must demonstrate clearly that common questions do in fact predominate over individual questions. Finally, a defendant class action may be simply an inappropriate method of adjudicating any case where the combination of punitive damages and joint and several liability threaten to transform a statutory scheme for personal accountability into ready martyrdom for the unlucky defendant whose deep pocket will pay for the sins of the multitude.\"\n79 F.R.D. at 295.\nIn this action, the trial court found a juridical link among all defendants and held that they could all be joined in one action because, the court presumed, all of the defendants would rely on the same statutory defense and because each time a plaintiff played a video-gaming machine owned or leased by one of the defendants, it was an identical contractual transaction, wherever it occurred in Alabama, regardless of which plaintiff was playing and regardless of which defendant owned the game. The trial court stated in its order certifying the defendant class that the examples of the juridical link noted in Activision Securities Litigation, 621 F.Supp. 415 (N.D.Cal.1985), and in Ragsdale v. Turnock, 625 F.Supp. 1212 (N.D.Ill.1985), were both applicable in this case. We do not agree. We conclude that the trial court improperly found the existence of a juridical link between the defendants in this case.\nFor example, we do not find the examples of the juridical link noted in Activision Securities Litigation, supra, and in Ragsdale v. Turnock, supra, to be applicable in this case. In In Re Activision Securities, supra, the Court found that the defendants, who were all underwriters and members in a securities syndicate, had entered into a written agreement, entitled \"Agreement Among Underwriters,\" authorizing two of the syndicate members to act on behalf of the syndicate in connection with the issuance of a certain security. When purchasers of the security sued the underwriters alleging that the offering materials contained misrepresentations or omissions, the Activision court stated:\n\"Defendants in this action have entered into an Agreement Among Underwriters. The court finds this Agreement sufficient to provide the `juridical' link to take this case out of the La Mar [v. H & B Novelty & Loan Co., 489 F.2d 461 (9th Cir.1973)] situation. By the *216 terms of this Agreement defendant underwriters are bound together in a common course of conduct for purposes of the Activision offering. Thus, a `single resolution of the dispute would be expeditious.'\"\nIn re Activision Sec. Litig., 621 F.Supp. at 432.\nWe do not find the facts of Activision analogous to those of the instant case. There has been no finding that the defendants in this case entered into a written agreement or that they agreed to be bound to a common course of conduct; the trial court did not even note that the plaintiffs alleged a conspiracy among the defendants. Thus, the juridical-link exception found in Activision is missing here.\nNor do we find the example of the juridical-link exception recognized in Ragsdale v. Turnock, 625 F.Supp. 1212 (N.D.Ill. 1985), to exist in this case. The plaintiffs in Ragsdale sought to enjoin a state statute they alleged was unconstitutional; the plaintiffs in Ragsdale did not seek to recover monetary damages. The plaintiff class sought to certify a group of state's attorneys as a defendant class. The federal district court in Ragsdale stated:\n\"There is clearly a `juridical link' between the Illinois State's Attorneys here. Under Ill. Rev. Stat. ch. 14, para. 5, each and every State's Attorney is charged with the duty of prosecuting all civil and criminal actions in which the people of the state or county may be concerned. Also, under section 14 of the [Illinois Health Facilities Planning Act], which deals with violations, the State's Attorneys are specifically charged with the duty of representing the people of Illinois in proceedings under that section. As all State's Attorneys are charged under the same statutes with the duty to take uniform enforcement action with respect to plaintiffs, the court therefore finds that the State's Attorneys are related in a way such that single resolution of the dispute is preferred to a multiplicity of similar actions.\"\n625 F.Supp. at 1223 n. 11. See also Turpeau v. Fidelity Fin. Servs., Inc., 936 F.Supp. 975, 978 (N.D.Ga.1996) (noting that \"[j]uridical links are most often found in cases involving a defendant class whose members are `officials of a single state ... charged with enforcing or uniformly acting in accordance with a state statute, or common rule or practice of a state-wide application, which is alleged to be unconstitutional,' \" federal district court refused to find juridical link under facts before it, even though the plaintiffs alleged that the defendants had violated a state statute, because the defendants were not state officials).\nWe find the facts of this case to be most like those presented in Turpeau v. Fidelity Financial Services, Inc., supra. In that case, the federal district court for the Northern District of Georgia held that automobile purchasers, as class-action plaintiffs, could not use the juridical-link exception to validly join as defendants all of the lenders and providers of credit-life insurance that the plaintiffs sought to hold liable for the sales of credit-life insurance in amounts that allegedly exceeded the statutory limits. The Turpeau court noted that each credit transaction at issue was made by different plaintiffs with different defendants, and, thus, each defendant had not injured each plaintiff. See Turpeau, 936 F.Supp. at 978.\nThis case presents a scenario very similar to the one presented in Turpeau. In this case, the trial court's class-certification order does not indicate that each named plaintiff has a cause of action against each member of the defendant *217 class, and it is clear that each member of the defendant class has not injured each plaintiff. Nor did the evidence presented at the class-certification hearing properly bring this case within one of the exceptions to this requirement discussed above. Rather, the trial court attempted to rely upon the fact that each plaintiff and each defendant interacted in essentially the same manner and, therefore, the claims of the plaintiff class could relate to the defendant class as a whole. However, this was the exact scenario rejected in Turpeau as a basis for applying the juridical-link exception.\nAs was the case in Turpeau, the defendants sought to be named as a class in this action are not state officials charged with enforcing, or acting uniformly in accordance with, a state statute. They are simply business entities and individuals located throughout this state that have engaged in the business of operating or leasing video-gaming machines. The fact that the defendants engage in similar or related businesses is insufficient to overcome the due-process concerns raised by plaintiffs' attempt to certify a defendant class.\nWe note that the plaintiffs, at least at one point in this litigation, alleged that a conspiracy existed among the defendants to cause the plaintiffs to engage unknowingly in unlawful conduct. The trial court's certification order does not address this claim in the context of the typicality requirement or the juridical-link exception. See La Mar, supra (recognizing that when the plaintiffs' injuries are the result of a conspiracy or a concerted scheme among the defendants, each member of the plaintiff class need not have a cause of action against every defendant before a defendant class can be certified). Accordingly, it is unclear whether the plaintiffs have abandoned this claim or whether the trial court found this claim to be inapplicable to the plaintiffs' attempts to certify the defendant classes. We simply note that the trial court's finding that each plaintiff in the plaintiff class had similar transactions but with a different defendant in the defendant class, standing alone, is inadequate to meet the typicality requirement of Rule 23(a), Ala. R. Civ. P. We conclude that the trial court improperly applied the juridical-link exception to find that the plaintiffs had met the typicality requirement for certification of the defendant class. Without an adequate showing of typicality among the claims and defenses of the defendant class members, the plaintiffs have not met the requirements of Rule 23(a) and the defendant class they seek to certify cannot be certified.\n\nRule 23(b)(1)\nWe also note that even if we found that the typicality requirement of Rule 23(a) had been met in this case, certification of a defendant class gives rise to problems under Rule 23(b). As we noted in our discussion of certification of the plaintiff's class, certification under Rule 23(b)(1) is inappropriate when a plaintiff seeks monetary damages. The plaintiffs in this case unquestionably seek to recover monetary damages, and the trial court's certification order did not limit the claims against the defendant classes to injunctive and declaratory relief. Thus, the trial court's order, as it is currently phrased, improperly certifies the defendant classes under Rule 23(b)(1), Ala. R. Civ. P.\n\nRule 23(b)(2)\nLike certification of a plaintiff class under Rule 23(b)(2), Ala. R. Civ. P., certification of a defendant class under Rule 23(b)(2) is subject to the same limitation—the relief sought must be predominately injunctive relief. See Compass Bank v. Snow, 823 So.2d at 678. \"A party's intention to seek damages does not *218 foreclose certification under Rule 23(b)(2), as long as the final relief sought does not relate `exclusively or predominantly to monetary damages.'\" Tilley v. TJX Cos., 212 F.R.D. 43, 49 (D.Mass.2003) (discussing court's refusal to certify a defendant class under Rule 23(b)(2), Fed.R.Civ.P., and citing Markarian v. Connecticut Mutual Life Ins. Co., 202 F.R.D. 60, 70 (D.Mass.2001) (quoting in turn the 1966 Advisory Committee Note to Rule 23, Fed. R.Civ.P.)).\nAs established in our discussion of the certification of the plaintiff class, the plaintiffs seek to recover compensatory damages, including the money they spent while playing the video-gaming machines owned or leased by the defendants, as well as damages for alleged emotional distress. The plaintiffs also seek punitive damages. We have already concluded that the plaintiffs' claims for money damages predominate over their claims for declaratory and injunctive relief. For this reason, certification of the defendant classes is improper under Rule 23(b)(2).\n\nRule 23(b)(3)\nWe must also conclude that, as the class-certification orders are now presented to us, the trial court improperly certified the defendant classes pursuant to Rule 23(b)(3) because individual issues predominate over those issues common to the members of the defendant class. This conclusion is best illustrated by considering the conspiracy claim alleged in the plaintiffs' complaint. If that allegation remains in this case, it raises far more individual issues than it does ones common to the defendants. See, e.g., In re Hotel Telephone Charges, supra (in action alleging a conspiracy among the defendants to violate antitrust laws, the United States Court of Appeals for the Ninth Circuit held that defendants could not be certified as a class because the conspiracy claim created numerous individual issues, which predominated over those issues common to the defendants). However, that allegation is the only mechanism that might establish the element of typicality necessary to certify the defendants as a class in this action. Thus, if the conspiracy allegation is part of this action, the defendant classes may not be certified under Rule 23(b)(3) because of the predominance requirement; if the plaintiffs no longer allege a conspiracy among the members of the defendant classes, the plaintiffs have not established the typicality requirement of Rule 23(a). This dichotomy amply illustrates that the relief sought by the plaintiffs, as well as the manner in which the classes are now structured, makes this case inappropriate for class-action treatment. We conclude that the trial court improperly certified the defendant classes.\n\nV.\n\nThe Preliminary Injunction\nIn its class-certification orders, the trial court also granted the plaintiffs' motion for a preliminary injunction and enjoined the \"operation of any [video-gaming] machines within the State of Alabama until the trial or other resolution of all claims\" in this action. The trial court determined that no security bond was required under the exception applicable to issues of overriding public concern \"given the subject matter and issues involved in this case.\"\nThe defendants challenge the trial court's failure to provide notice that it would be considering the preliminary injunction at the class-certification hearing; they also challenge the trial court's finding that the plaintiffs need not post a security bond.\n*219 Notice to the adverse party before a preliminary injunction is issued is mandatory, pursuant to Rule 65(a), Ala. R. Civ. P. The defendants had no indication that the request for a preliminary injunction was to be heard at the class-certification hearing, that the defendants needed to address the preliminary injunction at that time, or that the request had been set for a hearing. An adverse party must have notice and a hearing in order to adequately oppose a request for a preliminary injunction. Under the facts of this case, we have no difficulty concluding that the trial court exceeded its discretion in issuing the preliminary injunction in conjunction with the class-certification orders. Based on our resolution of this issue, we pretermit consideration of whether the trial court exceeded its discretion by not requiring the plaintiffs to post a security bond. We dissolve the preliminary injunction issued by the trial court, and we remand this case for further proceedings consistent with this opinion.\n\nConclusion\nWe reverse the trial court's orders certifying the plaintiff class and the defendant classes. We also dissolve the preliminary injunction issued by the trial court. We remand this case to the trial court for further proceedings consistent with this opinion.\nPRELIMINARY INJUNCTION DISSOLVED; REVERSED AND REMANDED.\nHOUSTON, SEE, LYONS, BROWN, HARWOOD, and WOODALL, JJ., concur.\nJOHNSTONE, J., concurs in the rationale in part and concurs in the judgment.\nJOHNSTONE, Justice (concurring in the rationale in part and concurring in the judgment).\nBut for one narrow exception, I concur in the scholarly main opinion. The exception does not affect the result in the case.\nThe exception is that I do not agree that a claim for \"unjust enrichment or money had and received\" based solely on the alternative theory \"that the defendants hold money that, in equity and good conscience, belongs to the plaintiffs,\" \"requires individualized inquiry into the state of mind of each plaintiff,\" as suggested by the main opinion. 873 So.2d at 211. This particular alternative, as distinguished from the \"fraud-or-mistake\" alternative for a claim for unjust enrichment or money had and received, would not necessarily require individualized inquiry into the putative class plaintiffs' respective states of mind, if the plaintiffs were pursuing this theory. For example, this Court has recognized money had and received as a valid theory for the recovery of purchase money held by the seller of a business who failed to satisfy a condition precedent of the sales contract, Kennedy v. Collins, 250 Ala. 503, 35 So.2d 92 (1948); for the recovery of purchase money held by the seller of a parcel of land under an executory sales contract that was not performed, Chandler v. Wilder, 215 Ala. 209, 110 So. 306 (1926); and for the recovery of money held by one seller of land who reneged on his agreement to pay it to two other sellers, Christie v. Durden, 205 Ala. 571, 88 So. 667 (1921).\nIn the case before us, however, the plaintiffs do not allege any claim based solely on the theory \"that the defendants hold money that, in equity and good conscience, belongs to the plaintiffs.\" Thus the potential suitability of such a claim for class certification does not avail these plaintiffs. Rather, these plaintiffs rely on *220 the fraud-or-mistake alternative for a claim for unjust enrichment or money had and received, which is not suitable for class certification, as the main opinion explains.\nNOTES\n[1] These appellants are named on an attachment to the notice of appeal.\n[2] The trial court issued two separate orders; however, the orders were issued on the same date.\n[3] See Pickard and Dowdell's sixth amended complaint, in which they state that they seek compensatory and punitive damages for \"each and every claim asserted.\"\n[4] This hearing was continued; it was then completed on April 1, 2002.\n[5] Although the trial court indicated in its memorandum opinion in support of its order that it was certifying a class under all of the subdivisions of Rule 23, Ala. R. Civ. P., including Rule 23(b)(3), the trial court's order, issued simultaneously with the memorandum opinion, does not mention Rule 23(b)(3). This Court will presume that the trial court intended to certify a class pursuant to Rule 23(b)(3), Ala. R. Civ. P.\n[6] Although the trial court's order specifically mentions only Rule 23(b)(1), we assume the trial court intended to certify the plaintiffs' claims pursuant to Rule 23(b)(1)(A); that is the only subsection we find applicable and that is the only subsection referred to or discussed at the class-certification hearing.\n[7] \"Because the Alabama Rules of Civil Procedure were patterned after the Federal Rules of Civil Procedure, cases construing the federal rules are considered authoritative in construing the Alabama rules.\" Reynolds Metals Co. v. Hill, 825 So.2d 100, 104 n. 1 (Ala. 2002), citing Cutler v. Orkin Exterminating Co., 770 So.2d 67 (Ala.2000).\n[8] See also Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 114 S.Ct. 1359, 128 L.Ed.2d 33 (1994) (noting the existence of \"at least a substantial possibility\" that actions seeking monetary damages are certifiable only under Rule 23(b)(3)). Thus, the United States Supreme Court has strongly questioned the practice of certifying under Rule 23(b)(1) or Rule 23(b)(2) actions in which money damages are sought.\n[9] Section 8-1-150(a), Ala.Code 1975, provides:\n\n\"(a) All contracts founded in whole or in part on a gambling consideration are void. Any person who has paid any money or delivered any thing of value lost upon any game or wager may recover such money, thing, or its value by an action commenced within six months from the time of such payment or delivery.\"\n[10] See also Akerman v. Oryx Communications, Inc., 609 F.Supp. 363, 375 (S.D.N.Y.1984) (requiring, as a general rule, each member of the designated plaintiff class to have a colorable claim against each member of the defendant class); accord Vulcan Soc'y v. Fire Dep't, 82 F.R.D. 379, 398-99 (S.D.N.Y.1979).\n\n", "ocr": false, "opinion_id": 1844448 } ]

[ "966 So. 2d 394" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n966 So. 2d 394 (2007)\nGEORGE\nv.\nSTATE.\nNo. 2D06-4971.\nDistrict Court of Appeal of Florida, Second District.\nOctober 3, 2007.\nDecision without published opinion. Affirmed.\n", "ocr": false, "opinion_id": 1682969 } ]

[ "465 F.2d 361" ]

[ { "author_str": "Russell", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/465/465.F2d.361.72-1042.html", "author_id": null, "opinion_text": "465 F.2d 361\n UNITED STATES of America, Appellee,v.Charles Edward SHELTON, Appellant.\n No. 72-1042.\n United States Court of Appeals,\n Fourth Circuit.\n Argued June 5, 1972.Decided Aug. 25, 1972.\n \n Weldon Leroy Maddox, Baltimore, Md. (Court-appointed), for appellant.\n John G. Sakellaris, Asst. U. S. Atty. (George Beall, U. S. Atty., on brief), for appellee.\n Before BOREMAN, Senior Circuit Judge, and WINTER and RUSSELL, Circuit Judges.\n DONALD RUSSELL, Circuit Judge:\n \n \n 1\n While discussing the issue under several headings and stating it in different ways, this appeal as set forth in defendant's brief poses really but a single issue. Convicted under an indictment charging violations under Section 2113(a), (b) and (d), 18 U.S.C., the defendant complains of the failure of the District Judge to charge and hold \"that in order to convict the defendant on Count 3 (i. e., Section 2113(d)) it will be necessary to show that the gun, if in fact, the jury determines that a gun or firearm was used, it will be necessary to show that the weapon was, in fact, loaded and could be fired\". He contends in substance that Section 2113(d), which authorizes an increase in the punishment for the crime of bank robbery if, in the course of the robbery, the defendant \"assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device\", does not embrace a situation where the Government fails to establish that the \"dangerous weapon\" was actually capable of putting the lives of the bank employee in actual, as opposed to apparent, jeopardy.\n \n \n 2\n The argument is unconvincing. We refuse to adopt a construction so rigid in its application as to make a nullity of the statute and to rob it of its manifest purpose. It has been well stated that, \"A gun is commonly known, regarded and treated by society as a dangerous device by both the reasonable man and the person at whom it is pointed, without pause to determine whether a round is in the chamber.\" Baker v. United States (5th Cir. 1969) 412 F.2d 1069, 1071-1072, cert. den. 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509. In our judgment, the pointing by a bank robber of a sawed-off shot-gun at bank employees in the course of a robbery, menacingly and with an implied threat to use it (as in this case), is a sufficient basis for a jury to find that the lives of such employees were placed in jeopardy and that an aggravated assault of the type contemplated under Section 2113(d) was committed, irrespective of whether there was any proof that the gun was loaded or was fired during the robbery. United States v. Beasley (6th Cir. 1971) 438 F.2d 1279, 1282-1283, cert. den. 404 U.S. 866, 92 S.Ct. 124, 30 L.Ed.2d 110, reh. den. 404 U.S. 1006, 92 S.Ct. 566, 30 L.Ed.2d 559; Baker v. United States, supra; United States v. De Palma (9th Cir. 1969) 414 F.2d 394, 396, cert. den. 396 U.S. 1046, 90 S.Ct. 697, 24 L.Ed.2d 690.1 As the Court in United States v. Thomas (6th Cir. 1972) 455 F.2d 320, 322-3, said, \"We specifically reject the contention that this statute should be construed so as to put the burden of proof on the government of showing that such weapons were in fact operable and loaded during the course of the crime. The actual facts are, of course, peculiarly within the control of the perpetrators of the crime and peculiarly invulnerable to law enforcement investigation. In most instances (other than those where the bandits are captured on the scene), such interpretation would serve to render this section of the statute totally ineffective. We decline to attribute any such intent to Congress.\" Since it was thus not necessary for the Government to prove that the gun used on this occasion was loaded in order to make out its case under Section 2113(d), the refusal by the District Court of the request to charge was not error, and the assignments of error on this account are without merit. It might be added that, while the Government did not offer any direct proof that the gun was loaded, the defendant himself did not testify or offer any testimony that the gun was unloaded or would not fire.\n \n \n 3\n The other exceptions are wholly without merit.\n \n \n 4\n After the defendant was convicted under several counts of a violation of subsections (a), (b) and (d) of Section 2113, 18 U.S.C., the District Court imposed sentences under all three counts, to run concurrently. Such duplicitous sentences are improper, and this case must accordingly be remanded for the purpose of correcting the sentence by vacating all but one of the sentences imposed. See United States v. Brown (4th Cir. 1971) 443 F.2d 1174; United States v. Spears (4th Cir. 1971) 442 F.2d 424, 425; cf., however, United States v. Corson (3d Cir. 1971) 449 F.2d 544, 551, and Gorman v. United States (2d Cir. 1972) 456 F.2d 1258, 1259.\n \n \n 5\n Affirmed on merits but remanded for purpose of correction of sentence.\n \n \n \n 1\n Some Courts, while demanding an \"objective\" finding of \"fear\" to support a conviction under Section 2113(d), reach substantially the same result by finding that the brandishing of the gun in the face of bank employees warrants an inference that the gun was loaded; but whatever the rationale employed, the use by a bank robber of a sawed-off shot-gun in a threatening manner, has uniformly been held sufficient to withstand a motion for acquittal under Section 2113(d) and thus to render inappropriate the requested charge in this case. See United States v. Roustio (7th Cir. 1972) 455 F.2d 366, 371-372; United States v. Marshall (2d Cir. 1970) 427 F.2d 434, 436-437; Note, 32 La.L.Rev. 158, 160-1 (1971)\n \n \n ", "ocr": false, "opinion_id": 305128 } ]

[ "465 F.2d 299" ]

[ { "author_str": "Pell", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/465/465.F2d.299.71-1084.html", "author_id": null, "opinion_text": "465 F.2d 299\n 72-2 USTC P 9541\n Haldane M. PLUNKETT, Petitioner-Appellant,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.\n No. 71-1084.\n United States Court of Appeals,\n Seventh Circuit.\n July 10, 1972.Argued Dec. 3, 1971.Decided July 10, 1972.\n \n Raymond J. Smith, Chicago, Ill., for petitioner-appellant; Arthur N. Nasser, Chicago, Ill., of counsel.\n Fred B. Ugast, Acting Asst. Atty. Gen., Bruce I. Kogan, Gilbert E. Andrews, Elmer J. Kelsey, Attys., Tax Division, Dept. of Justice, Washington, D. C., for respondent-appellee.\n Before KERNER*, PELL, and SPRECHER, Circuit Judges.\n PELL, Circuit Judge.\n \n \n 1\n In 1968, taxpayer Haldane M. Plunkett filed two petitions in the Tax Court challenging the Commissioner's determinations regarding deficiencies in income tax, additions to tax, and alleged overpayments. The two petitions, one involving the years 1957 through 1959 and the other 1960 through 1963, were consolidated for trial and decision.1 On October 2, 1970, the Tax Court entered its decisions sustaining a deficiency of $9,504.96 for the taxable year 1957 and additions to tax under 26 U.S.C. Sec. 6653(b)2 of $35,141.10 for the years 1957 through 1963.3 After the Tax Court denied his petition for reconsideration, Plunkett appealed to this court.\n \n \n 2\n During the years in question, the taxpayer ran a food catering business with the assistance of Mrs. Plunkett. Both Plunkett, who has had little formal education, and his wife are allegedly untutored in the intricacies of bookkeeping and accounting. The taxpayer did not maintain any formal records for his business nor did he retain a bookkeeper or accountant to do so for him. He did, however, keep a customer order book which reflected each catering event and, in most instances, the amount charged therefor. He also separated paid bills from unpaid bills and retained them in different drawers.\n \n \n 3\n Plunkett timely filed original individual income tax returns for the years 1957 through 1959 and original joint returns for the years 1960 through 1963. The original returns for 1957, 1958 and 1959 were prepared by others on the basis of information supplied by Plunkett. To compute the net income shown on those returns, the taxpayer had estimated his total expenses and deducted that amount from his estimated gross receipts or else he had deducted the total estimated expenses from the amount that he had deposited in his bank account.\n \n \n 4\n During this period, Plunkett engaged in transactions in the stock market and in the commodity futures market. He subscribed to a security advisory service and maintained a margin account with a brokerage house, which periodically sent him information concerning his account and periodically credited cash dividends to the account.\n \n \n 5\n Although Plunkett knew that dividends were taxable income, he failed to report such income for the taxable years 1957, 1958 and 1959. In his testimony in the Tax Court, he attributed this omission to his claimed belief at the time that dividends credited to an account need be reported only if they are withdrawn from the account. Plunkett did not withdraw any dividends during 1957, 1958 or 1959.\n \n \n 6\n In about December 1963, the taxpayer became concerned with the manner in which he was handling his tax matters, and in early 1964, he consulted an alderman who helped him find an attorney to advise him. Shortly after Plunkett began working with the attorney, a revenue officer conferred with Plunkett, his wife, and one of his employees about the employee's tax affairs. At this time, late June 1964, the IRS had not assigned an agent to examine Plunkett's income tax returns.\n \n \n 7\n On the advice of his attorney, Plunkett decided to file amended returns for the years 1958 through 1963. (Counsel recommended that no amended return be prepared for 1957.) With the help of a CPA, Plunkett completed this task by the end of July. The returns were based on information that had been available to the taxpayer when he had filed originally. On August 6, 1964, Plunkett filed the amended returns and paid the additional taxes shown on them, plus interest. The Commissioner generally accepted the new returns as reflecting accurately Plunkett's income, expenses and deductions for 1958 through 1963.4\n \n \n 8\n Subsequent to August 11, 1964, IRS agents conducted a criminal investigation of Plunkett's original and amended returns. On the basis that the amended returns \"spoke for themselves,\" Plunkett and his represenatives declined any cooperation during the course of the criminal investigation. In December 1966, a four-count indictment was returned against Plunkett and his wife for violating 26 U.S.C. Sec. 7201 with respect to their joint income tax returns for the years 1960 through 1963. The defendants entered pleas of not guilty. Plunkett later changed his pleas to nolo contendere upon his counsel's understanding that the Government would then move to dismiss the indictment as to Mrs. Plunkett. However, the Government objected to the tendered pleas and stated that it would not move to dismiss. Plunkett, by his attorney, thereupon withdrew his tender of the nolo contendere pleas and pleaded guilty. Following a colloquy between Plunkett and the district court, the court entered the guilty pleas and granted the Government's motion to dismiss Mrs. Plunkett.\n \n \n 9\n Plunkett was sentenced to three years' probation on each count of the indictment, the sentences to run concurrently on the condition that he serve 90 days of the probation in a \"jail type\" institution. He was also fined $20,000. Before the commencement of the jail term, Plunkett, then aged 73, suffered a stroke, and the court vacated the imposition of the 90 days' imprisonment. Plunkett has never appealed from the conviction or sentence in the criminal case.\n \n \n 10\n In the civil suit in the Tax Court below, the Commissioner introduced evidence as to the years 1957, 1958 and 1959 to meet his burden of proving fraud on the part of the taxpayer. However, to sustain the fraud penalties for the years 1960 through 1963 he relied entirely on the original and amended returns and the doctrine of collateral estoppel, based on Plunkett's criminal conviction.\n \n \n 11\n Plunkett's first contention is that the Tax Court erred in finding that a part of his underpayments of income tax for the years 1957, 1958 and 1959 was due to fraud with intent to evade tax within the meaning of 26 U.S.C. Sec. 6653(b) so as to render the petitioner liable for the \"fraud penalty\" addition to tax. More particularly, Plunkett argues that the court improperly ignored his defense of voluntary disclosure and that the Commissioner failed to satisfy the \"clear and convincing evidence\" standard.\n \n \n 12\n Contrary to the Commissioner's assertion, we think that the record supports Plunkett's claim that his disclosure of the inaccuracies in his original returns was voluntary. He had filed amended returns for the years 1958 through 1963 before the criminal investigation of his tax affairs was initiated. The conferences between the Plunketts and Internal Revenue Service agents prior to the time the amended returns were filed concerned the tax returns of one of Plunkett's employees; that is, the petitioner was involved only as the employer of a person being investigated.\n \n \n 13\n We cannot therefore conclude, however, that the United States Attorney was foreclosed from prosecuting Plunkett or that the Commissioner of Internal Revenue was precluded from pursuing civil remedies, including the imposition of fraud penalties, against a taxpayer whom he believed evidence showed to have filed false and fraudulent original returns. The IRS may have an informal policy of sometimes not seeking full sanctions against an errant taxpayer who voluntarily and prior to the initiation of an IRS investigation files amended returns and pays the additional taxes due, but it is not required to follow that policy of leniency. Cf. United States v. Shotwell Mfg. Co., 225 F.2d 394, 397-398 (7th Cir. 1955), cert. denied on the cross petition, 352 U.S. 998, 77 S.Ct. 552, 1 L.Ed.2d 544, and the decision vacated on other grounds, 355 U.S. 233, 78 S.Ct. 245, 2 L.Ed.2d 234 (1957).\n \n \n 14\n Although we find that such admissions create no legal bar, we appreciate the irony that-as Plunkett points out-a taxpayer may thereby become the unintended victim of his own defensive maneuvers. An objective observer might well come to the conclusion that the combination of criminal and civil penalties visited upon Plunkett was unduly harsh under the circumstances here involved. Nevertheless, it is apparent that one of the calculated risks of tax evasion, as well as of the violation of any criminal law, is that the full measure of the law's retribution may be asserted by way of demonstrating its irrefragability.\n \n \n 15\n We turn then to the second prong of the petitioner's challenge.\n \n \n 16\n It is well established that whether an underpayment of income is due to fraud is a question of fact. \"[A]lthough . . . this is a fact which the Commissioner is required to prove by clear and convincing evidence, it, like other findings of fact, will not be upset unless clearly erroneous. . . .\" Archer v. Commissioner of Internal Revenue, 227 F.2d 270, 274 (5th Cir. 1955). See also Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960). To meet his burden of proof, the Commissioner need not prove the precise amount of the underpayment resulting from fraud, but only that \"any part\" of the underpayment is attributable to fraud. See Estate of W. Y. Brame v. Commissioner of Internal Revenue, 25 T.C. 824 (1956), aff'd per curiam, 256 F.2d 343 (5th Cir. 1958). We are also mindful that fraud may be established by circumstantial evidence and that the taxpayer's background and the context of the events in question may be considered, e. g., Gano v. Commissioner, 19 B.T.A. 518, 532 (1930).\n \n \n 17\n Applying these principles to the present case, we hold that the Tax Court's finding was not clearly erroneous. The court had a sufficient basis for sustaining the Commissioner's determination that Plunkett filed false and fraudulent income tax returns for 1957, 1958 and 1959 within the purview of section 6653(b).\n \n \n 18\n The factors that the court cited adequately support its finding that Plunkett \"was more than grossly negligent. . . .\" 29 C.C.H. Tax Ct.Mem. at 1246. Among the factors considered were: Plunkett's being a person of at least average intelligence and average business understanding; his success as a businessman; his long experience in investing in the stock market; his failure to maintain proper books and records of his business receipts; his further failure to utilize fully what information he did have at the time the original returns were prepared so as to facilitate the accurate reconstruction of his taxable income; and his consistent and substantial understatement of income on his original tax returns.\n \n \n 19\n Plunkett calls to our attention the fact, which the Commissioner does not contest, that his estimates of his business expenses on the original returns were much lower than his actual expenses.5 5] He argues that this belies his supposed fraudulent intent.\n \n \n 20\n We agree that this circumstance is not without significance. However, because Plunkett understated his receipts by $35,649.76 more than he understated his expenses-resulting in a concealed net profit-we cannot fault the Tax Court for finding that that element of the misreporting was insufficient to counteract the combined force of all the other factors listed above.6\n \n \n 21\n Our resolution of the first issue raised by Plunkett controls our disposition of the second issue: whether the Tax Court erred in finding that the statute of limitations did not bar the assessment and collection of a deficiency in income tax for 1957, where no assessment for 1957 had been made within three years from the filing of the return for that year.\n \n \n 22\n It is true that, as a general rule, the amount of any deficiency in income tax must be assessed within three years after the return was filed. 26 U.S.C. Sec. 6501. But in the case of a false or fraudulent return with the intent to evade tax, the tax deficiency may be assessed at any time. 26 U.S.C. Sec. 6501(c) (1). The Tax Court was therefore correct in holding that the statute of limitations had not run against the Commissioner.\n \n \n 23\n The taxpayer next urges that he was entitled to receive credit for or a refund of overpayments of tax he made for 1958 and 1959 resulting from carrying forward to those years a capital loss incurred in 1957. This carry-forward loss was not reflected in the original or the amended returns filed by Plunkett for 1958 and 1959.7 The Commissioner contends that, because the taxpayer did not timely file a claim for refund, the statute of limitations bars him from receiving any credit or refund of the overpayments of tax. In rebuttal, Plunkett asserts that he should not be barred from recovering by any statutory limitations period because the Commissioner, having proven fraud for the years 1958 and 1959, is not restricted by any time limitation in the assessment of deficiencies and penalties for those years. \"[T]he years should be open for all purposes including refunds.\"\n \n \n 24\n The Tax Court did not pass on Plunkett's claim for a refund because it erroneously believed that the Commissioner had given the petitioner full credit for the overassessments in his recomputation of taxes and penalties for the years in question.8 Rather than remanding the case to the Tax Court, we have decided to settle the dispute since it involves a matter of law only.\n \n \n 25\n Although Plunkett's proposition that \"the government should not have any greater advantage than the [taxpayer]\" sounds appealingly evenhanded, unfortunately it has no support in the cases or in the existing statutes. Claims for credit or refund of an overpayment of tax are required to be filed within three years from the time the return respecting the overpaid tax was filed or within two years from the time the tax was paid, whichever expires the later. 26 U.S.C. Sec. 6511(a). Generally, after the expiration of those time periods, the taxpayer is barred from receiving credit or refund unless he had timely filed his claim. 26 U.S.C. Sec. 6511(b) (1). Plunkett cannot meet these requirements. He also cannot satisfy the conditions set out in 26 U.S.C. Sec. 6511(c) and 26 U.S.C. Sec. 6512.\n \n \n 26\n Finally, Plunkettt argues that the Tax Court erred in determining that his conviction in 1967 for income tax evasion for the years 1960 through 1963 collaterally estopped him in the subsequent civil proceedings from denying that the returns for those years were fraudulent. The Commissioner introduced no affirmative evidence of fraud in the Tax Court but relied on the returns and Plunkett's plea of guilty and his criminal conviction to sustain the imposition of the 50 percent \"fraud penalty,\" 26 U.S.C. Sec. 6653(b).\n \n \n 27\n Most courts faced with the question have held that a prior conviction for tax evasion after a trial on the merits operates as a collateral estoppel on the issue of civil fraud in a fraud penalty proceeding. The criminal conviction necessarily carries with it the ultimate factual determination that the underpayments of tax were \"due to fraud\" within the meaning of section 6653(b). E. g., Moore v. United States, 360 F.2d 353 (4th Cir. 1965), cert. denied, 385 U.S. 1001, 87 S.Ct. 704, 17 L.Ed.2d 541 (1967); Armstrong v. United States, 354 F.2d 274, 173 Ct.Cl. 944 (1965); Tomlinson v. Lefkowitz, 334 F.2d 262 (5th Cir. 1964), cert. denied, 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965); Amos v. Commissioner of Internal Revenue, 43 T.C. 50 (1964), aff'd, 360 F.2d 358 (4th Cir. 1965). Two recent decisions of the Tax Court reiterate this principle, C.B.C. Super Markets, Inc. v. Commissioner of Internal Revenue, 54 T.C. 882 (1970), and Rodney v. Commissioner of Internal Revenue, 53 T.C. 287 (1969).\n \n \n 28\n Plunkett does not contest the validity of this rule, but he does maintain that it is inapplicable under the special circumstances of his guilty plea.\n \n \n 29\n We note that there is strong authority holding that a guilty plea is an admission of all the elements of a formal criminal charge. McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927).\n \n \n 30\n In Arctic Ice Cream Co. v. Commissioner of Internal Revenue, 43 T.C. 68 (1964), a corporate taxpayer was held to be collaterally estopped from denying fraud in a civil proceeding by its previous conviction for tax evasion based upon a guilty plea. In upholding the imposition of a civil fraud penalty, the court declared:\n \n \n 31\n \"It is not material that Arctic's conviction was based upon a guilty plea, because for purposes of applying the doctrine of collateral estoppel, as well as for other purposes, there is no difference between a judgment of conviction based upon such a plea and a judgment of conviction rendered after a trial on the merits. . . . Arctic's plea of guilty to this indictment was therefore a conclusive judicial admission that its return for 1946 was false and fraudulent and that the deficiency in tax which was the necessary result of its being filed was due to fraud with intent to evade tax.\" 43 T.C. at 75.\n \n \n 32\n See also Otsuki v. Commissioner of Internal Revenue, 53 T.C. 96 (1969) (dicta).\n \n \n 33\n In oral argument before this court, Plunkett conceded that perhaps there may be convictions based on pleas of guilty that should operate as estoppels. He stoutly contended, though, that his conviction requires different treatment. He urges us \"to look behind [his] conviction\" and to conclude that \"where the circumstances of the plea, such as coercion induced by his wife's indictment and failure by the trial court to inquire as to whether, in fact, he evaded taxes, indicate that the plea might have been involuntary, the government should not be allowed to use that plea to collaterally estop the appellant in a civil case.\" Cf. Worcester v. Commissioner of Internal Revenue, 370 F.2d 713 (1st Cir. 1966).\n \n \n 34\n The judge presiding at the criminal proceeding informed Plunkett of the offenses charged against him in the indictment and of the consequences of his pleading guilty. Plunkett then acknowledged that he was fully aware of the charges against him and of the consequences of his plea. When the court inquired, \"[Have] there been any representations of any kind made to you as to what disposition of your case would be, in view of your plea of guilty here, Mr. Plunkett?,\" he answered, \"No, your Honor.\" This colloquy does not substantiate the appellant's claim that his guilty plea was coerced as a matter of law.\n \n \n 35\n We concur in the opinion of the court below that\n \n \n 36\n \"[t]he stated understanding of counsel, that the government would move to dismiss charges against Mrs. Plunkett if petitioner would plead guilty to the charges against him, does not vitiate petitioner's otherwise voluntary plea of guilty where the agreement was fully performed in conformity with the petitioner's expectations. Petitioner did not misunderstand the terms or the immediate consequences of the agreement and his plea of guilty. Hence, the existence of the agreement does not affect the voluntariness of his plea.\" 29 CCH Tax Ct.Mem. at 1247.\n \n \n 37\n We find ample support for this holding in United States ex rel. Cunningham v. Follette, 397 F.2d 143 (2d Cir. 1968), cert. denied, 393 U.S. 1058, 89 S.Ct. 699, 21 L.Ed.2d 699 (1969); Cortez v. United States, 337 F.2d 699 (9th Cir. 1964), cert. denied, 381 U.S. 953, 85 S.Ct. 1811, 14 L.Ed.2d 726 (1965); and Kent v. United States, 272 F.2d 795 (1st Cir. 1959). See also United States v. Carlino, 400 F.2d 56 (2d Cir. 1968), cert. denied, 394 U.S. 1013, 89 S.Ct. 1630, 23 L.Ed.2d 39 (1969).\n \n \n 38\n Plunkett also complains that the judge who accepted his guilty plea was not informed of any evidentiary foundation to support the criminal charge. Consequently, the provision of Rule 11 of the Federal Rules of Criminal Procedure that \"[t]he court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea\" was allegedly violated.\n \n \n 39\n Plunkett relies heavily on McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), where the Supreme Court admonished federal district courts to adhere rigorously to Rule 11. It held that if a district court does not comply fully with the rule, the defendant's guilty plea must be set aside and his case remanded for another hearing at which he may plead anew. The Court carefully noted that its holding was not based upon constitutional grounds. In Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969), the Court decided that McCarthy should be applied only to guilty pleas accepted after the date of that decision, April 2, 1969.\n \n \n 40\n The alleged defect in the proceedings against Plunkett was not of constitutional dimensions. The petitioner took no appeal directly attacking his conviction or sentence, and he has paid the fine imposed upon him. In light of these circumstances and the restrictions placed on McCarthy by Halliday, we can see no justification for sustaining Plunkett's collateral attack on the conviction and for voiding the consequences of that conviction in the present case.\n \n \n 41\n In sum, we agree with the Tax Court below that \"petitioner's conviction for tax evasion in the years 1960, 1961, 1962 and 1963, pursuant to a plea of guilty, collaterally estops the petitioner from denying fraud for those years.\" 29 CCH Tax Ct.Mem. at 1247.\n \n \n 42\n We conclude that the decision of the Tax Court (as supplemented herein as to the point not reached by that court) should be and is\n \n \n 43\n Affirmed.\n \n \n \n *\n Judge Kerner heard oral argument but did not participate in the adoption of this opinion\n \n \n 1\n A petition filed by the appellant's wife, Dorothy Plunkett, for a redetermination of deficiencies and additions to tax was also consolidated for the trial. The results of that redetermination are not involved in the appeal before us\n \n \n 2\n Subsection (b) of 26 U.S.C. Sec. 6653, \"Failure to pay tax,\" provides in part:\n \"(b) Fraud.\n If any part of any underpayment (as defined in subsection (c)) of tax required to be shown on a return is due to fraud, there shall be added to the tax an amount equal to 50 percent of the underpayment. In the case of income taxes . . ., this amount shall be in lieu of any amount determined under subsection (a) . . . .\"\n \n \n 3\n Judge Quealy's memorandum findings of fact and opinion of Sept. 29, 1970, are unofficially reported at 29 CCH Tax Ct. Mem. 1237 [CCH Dec. 30,349 (M)]\n \n \n 4\n The original and amended returns for each of the years 1957 through 1963 reported taxable income and net tax due (including self-employment tax) as follows:\n Original Returns Amended Returns\nYear Taxable Income Income Tax Taxable Income Income Tax\n1957 $ 5,445.23 $1,357.51 $ $\n1958 12,611.62 3,804.75 40,147.89 19,512.43\n1959 4,460.69 1,139.78 43,685.38 19,775.34\n1960 6,166.56 1,492.64 32,695.45 10,473.05\n1961 6,312.10 1,524.66 35,460.82 12,346.41\n1962 6,544.65 1,585.42 18,679.54 5,056.64\n1963 8,245.60 1,673.24 39,955.96 14,121.48\n According to the statutory notice for 1957-1959, Plunkett's taxable income for 1957 was $26,792.88, and his income tax due was $10,862.47.\n \n \n 5\n For the years 1957, 1958 and 1959, Plunkett understated his business expenses by a total of $326,294.78\n \n \n 6\n The record shows that the sizable understatements of income resulted from taxpayer's total failure to report his dividend income as well as from his understating the receipts and profits of his catering business. From 1957 through 1959, Plunkett received $37,203.60 in cash dividends which were credited to his margin account and of which he was notified by his stockbrokers. Although the Tax Court decided that it did not need to consider whether petitioner's omission of this dividend income was due to fraud with intent to evade taxes, the Commissioner argued in his appellate brief that the omission of such income was further evidence of Plunkett's fraudulent intent, citing Irolla v. United States, 390 F.2d 951, 954, 82 Ct.Cl. 775 (1968), and Lusk v. Commissioner of Internal Revenue, 250 F.2d 591, 594-595 (7th Cir. 1957), cert. denied, 357 U.S. 932, 78 S.Ct. 1376, 2 L.Ed.2d 1375 (1958)\n \n \n 7\n In its investigation of Plunkett's returns for the years 1957 through 1959, the Internal Revenue Service had determined that Plunkett had incurred capital losses that were not reflected in the returns. It advised him of this in the notice of deficiency dated July 11, 1968\n \n \n 8\n The Commissioner did in reality carry forward the 1957 capital losses in arriving at the figure to which the 50 percent penalty under 26 U.S.C. Sec. 6653(b) would be applicable. Thus, the amended return for 1958 showed income tax of $19,512.43, which was paid. In effect, this figure, however, was reduced by (a) the amount paid in the original return and (b) the amount of the 1957 carryover applicable to 1958. The penalty was based on the remaining balance of $13,117.80 and not on the tax actually paid. The same procedure was followed for 1959\n It is also to be noted that while the Tax Court referred to \"recomputation of taxes and penalties\" for 1958 and 1959, no deficiency of tax was assessed for those years; the recomputation was only for the purpose of determining the correct income tax liability to which the penalty would be applicable. The determination here was not whether the taxpayer owed more or less tax for 1958 and 1959 but involved the amount of the penalty for those years.\n \n \n ", "ocr": false, "opinion_id": 305114 } ]

[ "2013 Ohio 1383" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 8, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/12/2013/2013-ohio-1383.pdf", "author_id": 8124, "opinion_text": "[Cite as First Fin. Bank, FSB v. Doellman, 2013-Ohio-1383.]\n\n\n\n IN THE COURT OF APPEALS\n\n TWELFTH APPELLATE DISTRICT OF OHIO\n\n BUTLER COUNTY\n\n\n\n\nFIRST FINANCIAL BANK, FSB, :\n CASE NO. CA2012-05-112\n Plaintiff-Appellee, :\n OPINION\n : 4/8/2013\n - vs -\n :\n\nNORBERT M. DOELLMAN, JR., et al., :\n\n Defendants-Appellants. :\n\n\n\n CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS\n Case No. CV2004-06-1855\n\n\n\nVincent E. Mauer, 3300 Great American Tower, 301 East Fourth Street, Cincinnati, Ohio\n45202, for plaintiff, First Financial Bank\n\nAdam R. Fogelman, 120 East Fourth Street, Suite 800, Cincinnati, Ohio 45202, for plaintiff-\nappellee, US Bank Home Mortgage\n\nNorbert M. Doellman, Jr., P.O. Box 475, Hamilton, Ohio 45012, for defendants-appellants,\nNorbert M. Doellman and Karen E. Doellman\n\nDan L. Ferguson, Government Services Center, 315 High Street, Hamilton, Ohio 45011, for\ndefendant, Butler County Treasurer\n\nJoseph T. Chapman, 150 East Gay Street, 21st Floor, Columbus, Ohio 43215, for defendant,\nState Department of Taxation\n\n\n\n S. POWELL, J.\n\n {¶ 1} Homeowners, fighting foreclosure, claim their bank failed to notify them in 2004\n\f Butler CA2012-05-112\n\nthat they were in default of payment and thwarted their attempts to bring their loan current.\n\nWe overrule the homeowners' arguments and affirm the judgment of foreclosure.\n\n {¶ 2} Appellants, Norbert M. Doellman Jr. and Karen E. Doellman, executed a\n\npromissory note secured by a mortgage on the real property at issue in this case. The note\n\nand mortgage were later assigned to First Financial Bank, FSB (First Financial).\n\n {¶ 3} First Financial filed a complaint in foreclosure on June 23, 2004 in Butler\n\nCounty Common Pleas Court. First Financial assigned the mortgage and note in 2005 to\n\nappellee, U.S. Bank, N.A. The trial court granted summary judgment and a judgment of\n\nforeclosure to U.S. Bank. This court found genuine issues of material fact precluded\n\nsummary judgment and reversed and remanded the case to the trial court in First Financial\n\nBank v. Doellman, 12th Dist. No. CA2006-02-029, 2007-Ohio-222.\n\n {¶ 4} This case was heard by a trial to the bench. A court magistrate found that U.S.\n\nBank was entitled to foreclose on the note and mortgage due to default of payment. The\n\nmagistrate specifically found that, according to the terms of the note and mortgage, notice of\n\npayment default was properly provided to the Doellmans, and the Doellmans had the\n\nopportunity to bring the loan current, but failed to do so.\n\n {¶ 5} The Doellmans filed objections to the magistrate's decision. The trial court\n\noverruled the objections, and in a separate opinion, adopted the magistrate's decision. The\n\nDoellmans filed this appeal, presenting two assignments of error for our review.\n\n {¶ 6} As we begin our review, we are aware that U.S. Bank asserted it was only\n\nentitled to judgment on the note against Karen Doellman. According to the findings of the\n\ntrial court, Norbert Doellman has \"personal immunity from judgment on the note,\" pursuant to\n\nbankruptcy statutes. Therefore, judgment was entered on the note against Karen Doellman.\n\nThe notice of appeal indicates the couple filed this appeal, and Norbert Doellman argues on\n\nbehalf of the couple. For ease of discussion only, we will refer to the party appealing as the\n -2-\n\f Butler CA2012-05-112\n\nDoellmans.\n\n {¶ 7} Assignment of Error No. 1:\n\n {¶ 8} APPELLANTS DOELLMAN NEVER RECEIVED A REQUIRED NOTICE OF\n\nDEFAULT FROM APPELLEE FIRST FINANCIAL BANK[.] [sic]\n\n {¶ 9} The Doellmans contend they must receive the notice of default, and because\n\nthey never received from First Financial the purported payment default letter, or demand\n\nletter, U.S. Bank cannot proceed with the foreclosure action. We interpret this assignment of\n\nerror to challenge the manifest weight of the evidence of this aspect of the trial court's\n\ndecision.\n\n {¶ 10} When evaluating whether a judgment is against the manifest weight of the\n\nevidence in a civil case, the standard of review is the same as in the criminal context. Jones\n\nv. Holmes, 12th Dist. No. CA2012-07-133, 2013-Ohio-448, ¶ 24, citing Eastley v. Volkman,\n\n132 Ohio St. 3d 328, 2012-Ohio-2179, ¶ 17.\n\n {¶ 11} That is, the appellate court weighs the evidence and all reasonable inferences,\n\nconsiders the credibility of witnesses, and determines whether in resolving conflicts in the\n\nevidence, the finder of fact clearly lost its way and created such a manifest miscarriage of\n\njustice that the judgment must be reversed and a new trial ordered. Holmes. Every\n\nreasonable presumption must be made in favor of the judgment and the finding of facts.\n\nVolkman at ¶ 21. If the evidence is susceptible of more than one construction, the reviewing\n\ncourt is bound to give the evidence the interpretation that is consistent with the verdict and\n\njudgment, most favorable to sustaining the verdict and judgment. Id.\n\n {¶ 12} The underlying rationale of giving deference to the findings of the trial court\n\nrests with the knowledge that the trier of fact is best able to view the witnesses and observe\n\ntheir demeanor, gestures and voice inflections, and use these observations in weighing the\n\ncredibility of the proffered testimony. Seasons Coal Co., Inc. v. City of Cleveland, 10 Ohio\n -3-\n\f Butler CA2012-05-112\n\nSt.3d 77, 80 (1984); see McBride v. McBride, 12th Dist. No. CA2011-03-061, 2012-Ohio-\n\n2146.\n\n {¶ 13} In the case at bar, the pertinent provisions of the note and mortgage with regard\n\nto the notice of default are set forth below.\n\n {¶ 14} Paragraph 8 of the promissory note provides, in part:\n\n If the Note Holder has not received the full amount of any\n monthly payment by the end of [15] calendar days after the date\n it is due, I will pay a late charge to the Note Holder. The amount\n of the charge * * *.\n\n If I do not pay the full amount of each monthly payment on the\n date it is due, I will be in default. * * *\n\n If I am in default, the Note Holder may send me a written notice\n telling me that if I do not pay the overdue amount by a certain\n date, the Note Holder may require me to pay immediately the full\n amount of principal which has not been paid and all the interest\n that I owe on that amount. That date must be at least 30 days\n after the date on which the notice is delivered or mailed to me. * *\n *\n\n {¶ 15} Paragraph 9 of the note provides, in part:\n\n * * * any notice that must be given to me under this Note will be\n given by delivering it or by mailing it by first class mail to me at\n the Property Address above * * *.\n\n {¶ 16} Under paragraph 18 of the mortgage instrument, upon a breach and prior to\n\nacceleration, the lender was required to mail a notice of default specifying the breach; the\n\naction required to cure such breach; a date, not less than 30 days from the date the notice\n\nwas mailed, by which such breach must be cured; and that failure to cure such breach on or\n\nbefore the date specified in the notice may result in acceleration of the sums secured by the\n\nmortgage, foreclosure by judicial proceeding, and sale of the property.\n\n {¶ 17} Paragraph 14 of the mortgage provided that notice was to be given \"by mailing\n\nsuch notice by certified mail addressed to Borrower at the Property Address * * *.\" \"Any\n\nnotice provided for in this Mortgage shall be deemed to have been given to Borrower or\n -4-\n\f Butler CA2012-05-112\n\nLender when given in the manner designated herein.\"\n\n {¶ 18} A mortgage supervisor for U.S. Bank testified at trial that U.S. Bank now has\n\ncustody of the pertinent loan records from First Financial. A copy of those records was\n\nadmitted into evidence.\n\n {¶ 19} The magistrate observed that the records show the Doellmans \"consistently fell\n\nbehind on paying the note between 1999 and 2004,\" and \"demand letters,\" or letters\n\nindicating the Doellmans were in default of payment, were sent during that time.\n\n {¶ 20} The mortgage supervisor testified that the servicing records indicated a default\n\nletter was created and mailed to the Doellmans at the address of the property at issue on\n\nMay 5, 2004. The witness testified that the records indicate the letter was mailed by certified\n\nmail and by \"standard mail.\" A copy of the letter was admitted as an exhibit.\n\n {¶ 21} Specific to the demand letter of May 5, 2004, the trial court found the contents\n\nof the demand letter included the required terms to notify the Doellmans of a default in\n\npayment and possible acceleration. The magistrate also made a finding that the record\n\nindicated the certified mail service of the May 5, 2004, letter was returned \"unclaimed.\"\n\n {¶ 22} U.S. Bank asserts that mailing the letter was sufficient; U.S. Bank adds that the\n\nDoellmans received the notice because the servicing records contained communication\n\nbetween Norbert Doellman and First Financial several days after May 5, including notations\n\nabout waiting for the money to cover the March 2004 payment \"to clear,\" and securing funds\n\nto \"get him under 60 days delinquent.\"\n\n {¶ 23} However, the Doellmans argue that U.S. Bank was required to show the\n\nborrowers received the demand letter, not simply that it was mailed. To that end, both\n\nNorbert and Karen Doellman testified they never received the May 5 letter. The U.S. Bank\n\nmortgage supervisor acknowledged the servicing records contained a copy of letter, but did\n\nnot contain any evidence from the postal service that the letter was received by the\n -5-\n\f Butler CA2012-05-112\n\nDoellmans.\n\n {¶ 24} We have reviewed the case law advanced by the Doellmans for this\n\nassignment of error, and while those cases may have been helpful at the summary judgment\n\nstage, we find none of those cases pertinent or persuasive to the resolution of this appeal.\n\n {¶ 25} The outstanding issues in this case were tried to the bench. After hearing the\n\ntestimony and evidence, the trial court determined the letter was sent by certified mail, which\n\nwas returned unclaimed, and by ordinary mail.\n\n {¶ 26} The trial court found the Doellmans did not rebut the presumption the demand\n\nletter was received when sent by ordinary mail, as it found not credible the Doellmans'\n\ntestimony they did not receive the payment default letter. See Cantrell v. Celotex Corp., 105\n\nOhio App. 3d 90, 94 (1st Dist.1995) (rebuttable presumption of mailbox rule).\n\n {¶ 27} Certainly, there was conflicting evidence presented at the trial, and the trial\n\ncourt made a determination of the credibility of the evidence. As previously noted, when the\n\nevidence is susceptible of more than one construction, the reviewing court is bound to give\n\nthe evidence the interpretation that is most favorable to sustaining the judgment. Applying\n\nthe pertinent standard of review for the Doellmans' challenge, we cannot say the finder of fact\n\nclearly lost its way and created such a manifest miscarriage of justice that the judgment must\n\nbe reversed and a new trial ordered. Accordingly, the Doellmans' first assignment of error is\n\noverruled.\n\n {¶ 28} Assignment of Error No. 2:\n\n {¶ 29} APPELLEE FIRST FINANCIAL BANK DENIED APPELLANTS DOELLMAN\n\nTHE REQUIRED OPPORTUNITY TO BEING THEIR LOAN CURRENT PRIOR TO\n\nACCELERATION AND FORECLOSURE IN ACCORDANCE WITH THE NOTE AND THE\n\nMORTGAGE[.] [sic]\n\n {¶ 30} The Doellmans assert in their second assignment of error that First Financial\n -6-\n\f Butler CA2012-05-112\n\nimproperly refused their attempts to bring their loan current prior to acceleration and\n\nforeclosure. Specifically, they maintain they were able to amass approximately $4,000,\n\nwhich they claim represented three months of mortgage payments, but First Financial\n\nrefused the money, stating additional amounts were owed because of the default and\n\nforeclosure proceedings.\n\n {¶ 31} We note that U.S. Bank argues the Doellmans did not object to this portion of\n\nthe magistrate's decision. A review of the Doellmans' written objections indicates otherwise.\n\n {¶ 32} With regard to the attempt to bring the loan current, the U.S. Bank mortgage\n\nsupervisor testified that the loan documents stated that the amount owed by the Doellmans\n\nincluded the monthly payments, expenses incurred in the enforcement of the note and\n\nmortgage, as well as late charges. See i.e., Wilborn v. Bank One Corp., 121 Ohio St. 3d 546,\n\n2009-Ohio-306.\n\n {¶ 33} The magistrate found the Doellmans sent an amount on June 1, 2004, but that\n\namount was not sufficient to bring the loan current. The magistrate further found the\n\nDoellmans contacted First Financial on June 17, 2004, to remit what would constitute\n\nadditional monthly payments, but the payments were refused because the payments \"came\n\nafter the time to cure the default had passed.\" The magistrate concluded the Doellmans\n\n\"failed to cure their default and breach, and First Financial accelerated the balance of the\n\nloan in accordance with the terms of the note and mortgage.\"\n\n {¶ 34} Applying the pertinent standard of review for the Doellmans' manifest weight of\n\nthe evidence challenge on the second assignment of error, we cannot say the finder of fact\n\nclearly lost its way and created such a manifest miscarriage of justice that the judgment must\n\nbe reversed and a new trial ordered. The Doellmans second assignment of error is\n\noverruled.\n\n {¶ 35} Finally, we note the Doellmans also argued the magistrate was young and\n -7-\n\f Butler CA2012-05-112\n\ninexperienced, and therefore, not qualified to hear the case. They further claim they were\n\nprevented from filing objections by the manner in which the magistrate issued his decision.\n\n {¶ 36} We cannot agree the Doellmans were denied the right to file or were hampered\n\nin filing objections. The record indicates the Doellmans filed written objections and those\n\nobjections were considered by the trial court. Further, the written objections do not\n\nspecifically raise the perceived inexperience or lack of qualifications of the magistrate. See\n\nCiv.R. 53. Even if such arguments were raised in the objections, the Doellmans have failed\n\nto prove any aspect of their allegations.\n\n {¶ 37} As previously noted, we have thoroughly considered the issues raised by the\n\nDoellmans in this appeal and find none of them well-taken.\n\n {¶ 38} Judgment affirmed.\n\n\n HENDRICKSON, P.J., and RINGLAND, J., concur.\n\n\n\n\n -8-\n\f", "ocr": false, "opinion_id": 2708203 } ]

[ "230 P.3d 933", "348 Or. 280" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n230 P.3d 933 (2010)\n348 Or. 280\nRUTH and RUTH.\n(S058294).\nSupreme Court of Oregon.\nApril 29, 2010.\nPetition for review denied.\n", "ocr": false, "opinion_id": 2626149 } ]

[ "607 So. 2d 311" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 3639, "opinion_text": "\n607 So. 2d 311 (1992)\nEx parte Daniel Amos PILOT.\n(Re Daniel Amos Pilot, v. State).\n1911116.\nSupreme Court of Alabama.\nOctober 23, 1992.\nJim Zeigler, Mobile, for petitioner.\nJames H. Evans, Atty. Gen., and Ed Carnes, Asst. Atty. Gen., and Chris N. Galanos, Dist. Atty., Mobile, for respondent.\nMADDOX, Justice.\nThe issue presented by this petition for the writ of certiorari is whether the standard of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), applies to a defendant in a criminal case. The Court of Criminal Appeals held that it does. 607 So. 2d 306. Because the United States Supreme Court has recently answered this question in the affirmative, we affirm.\nOn June 18,1992, the day after we granted review in this case, the United States Supreme Court released Georgia v. McCollum, ___ U.S. ___, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992). In McCollum, the Court, faced with the identical issue, held:\n\"[T]he Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges. Accordingly, if the State demonstrates a prima facie case of racial discrimination by the defendants, the defendants must articulate a racially neutral explanation for peremptory challenges.\"\n___ U.S. at ___, 112 S.Ct. at 2359, 120 L.Ed.2d at 51.\nMcCollum forecloses Pilot's argument and requires that we affirm the judgment of the Court of Criminal Appeals.\nAFFIRMED.\nHORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.\n", "ocr": false, "opinion_id": 1142624 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 5, "download_url": "http://www.tsc.state.tn.us/sites/default/files/OPINIONS/tcca/PDF/054/MeeksyOPN.pdf", "author_id": 8295, "opinion_text": " IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE\n AT NASHVILLE\n Assigned on Briefs October 26, 2005\n\n DANNY RAY MEEKS v. STATE OF TENNESSEE\n\n Appeal from the Circuit Court for Davidson County\n No. 05-C-13 Thomas W. Brothers, Judge\n\n\n\n No. M2005-00624-CCA-R3-HC - Filed December 1, 2005\n\n\nAggrieved of the Davidson County Circuit Court’s summary dismissal of his petition for habeas\ncorpus relief, the petitioner, Danny Ray Meeks, appeals. The habeas corpus court dismissed the\npetition because the petitioner did not make a partial payment of the filing fee as required by Code\nsection 41-21-807. Although we believe that the court acted precipitantly, we affirm the order of\ndismissal on the basis that the petition fails to establish a claim for habeas corpus relief.\n\n Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.\n\nJAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which THOMAS T. WOODALL\nand ROBERT W. WEDEMEYER , JJ., joined.\n\nDanny Ray Meeks, Appellant, Pro Se.\n\nPaul G. Summers, Attorney General & Reporter; and Blind Akrawi and Richard H. Dunavant,\nAssistant Attorneys General, for the Appellee, State of Tennessee.\n\n OPINION\n\n The petitioner stands convicted of aggravated kidnapping, especially aggravated\nrobbery, aggravated burglary and extortion. He was tried and found guilty by a Grundy County jury\nin 1990, and the trial court imposed an effective sentence of 48 years for the convictions. His\nconvictions and sentences were affirmed on direct appeal, see State v. Meeks, 867 S.W.2d 361, 364\n(Tenn. Crim. App. 1993), and the supreme court denied permission to appeal. The facts underlying\nthe convictions relate to the abduction and robbery of Roger Phipps and the subsequent extortion of\nhim and his wife, Lisa. The evidence and trial testimony are set forth in great detail in the court’s\nopinion on direct appeal. Id. at 363-68.\n\n In 1994, the petitioner instigated his first collateral attack by seeking post-conviction\nrelief. See Danny Ray Meeks v. State, No. 01C01-9709-CC-00387 (Tenn. Crim. App., Nashville,\nOct. 23, 1998). The petitioner alleged 57 grounds for relief, all of which were dismissed following\n\fan evidentiary hearing. Another appeal ensued wherein the petitioner winnowed the number of\nissues to 10. Six of the issues involved allegations of trial counsel’s ineffectiveness, one issue\nchallenged the sufficiency of the evidence in terms of establishing that the victim suffered “serious\nbodily injury,” two issues contested the correctness of the trial court’s jury instructions, and the last\nissue complained of the trial court’s sentencing determinations. See id., slip op. at 2-3. On appeal,\nthis court affirmed the dismissal of the post-conviction petition.\n\n The instant appeal stems from the petitioner’s second collateral attack1 on his\nconvictions and sentences via a pro se application for writ of habeas corpus filed in Davidson\nCounty. The rather amorphous and rambling grounds alleged in the petition include an attack on the\nconstitutionality of the entire 1989 Criminal Sentencing Reform Act, another evidence-sufficiency\ncomplaint dealing with “serious bodily injury,” a sentencing challenge based on Blakely v.\nWashington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and a constitutional attack on the judicial\ninterpretation of the extent of habeas corpus relief.\n\n On January 12, 2005, the habeas corpus court entered an order, evidently sua sponte,\ndirecting the petitioner to comply with the requirements of Code section 41-21-801 et seq. within\n20 days or suffer dismissal of his petition. The order recited that the petitioner had failed to file a\npauper’s oath, the affidavit required by section 41-21-805, and a partial payment of the filing fee as\nrequired by section 41-21-807. Subsequently, the habeas corpus court entered an order on February\n11, 2005, dismissing the action because the petitioner “[f]ailed to file the partial payment of the\nfiling fee as required by T.C.A. 41-21-807.”\n\n The appellate record before us discloses that on February 23, 2005, the petitioner filed\na motion to alter or amend the February 11, 2005 order on the basis that he had made a good faith\neffort to pay the filing fee by submitting a written inmate trust account personal withdrawal request\non January 21, 2005. The motion alleged that the prison staff had failed to process the withdrawal\nrequest in a timely fashion and that the petitioner was attempting to remedy the situation by\n“mak[ing] arrangements to pay the fee by Cashiers Check Number 14788.” From the record, we\ndiscern that no action was taken with respect to the motion to alter or amend, and on March 8, 2005,\nthe petitioner filed a notice of appeal from the February 11, 2005 order dismissing the application\nfor writ of habeas corpus.\n\n On appeal, the petitioner challenges the dismissal of his application based on a failure\nto pay a filing fee. He also raises as issues the trial court’s failure to comply with Code section 29-\n21-108 and the failure to conduct an evidentiary hearing on his application.\n\n\n\n 1\n One of the attachments to the application is an uncertified copy of a pleading entitled “Application for W rit\nof Habeas Corpus,” that purportedly was filed in 2000 with the Grundy County Circuit Court. A likewise uncertified\ncopy of an order entered July 19, 2000 that dismissed the action is included. Consequently, it may be that the instant\nappeal is from the petitioner’s third collateral attack on his convictions and sentences; even so, our decision is not\naffected.\n\n -2-\n\f I. Failure to Pay Filing Fee\n\n The payment of an initial filing fee was succinctly explained in Jason Eugene Mize\nv. State, No. M2003-00986-CCA-R3-CD (Tenn. Crim. App., Nashville, Dec. 18, 2003), involving\na pro se litigant appealing the dismissal of his petition for writ of habeas corpus.\n\n Persons commencing a civil action in Tennessee’s courts must\n pay an initial filing fee. Indigent persons are not excused from paying\n the initial filing fees required by Tennessee Code Annotated §\n 8-21-401(a) (2003). Because of the dramatic increase in the number\n of pro se civil proceedings being commenced by state prisoners, the\n Tennessee General Assembly enacted section 41-21-807 in 1996 to\n provide an orderly procedure for collecting the required filing fee\n from prisoners who file civil suits in state court. Tennessee Code\n Annotated § 41-21-807(a) requires prisoners to file certified copies\n of their trust fund account statements for the six months immediately\n preceding the filing of the complaint. In addition, Tennessee Code\n Annotated § 41-21- 807(b) provides:\n\n (1) If an inmate brings a civil action or files an appeal in\n forma pauperis, the inmate shall be required to pay the full amount of\n a filing fee. The court shall assess and, when funds exist, collect as a\n partial payment of any court fees required by law, an initial partial\n filing fee of twenty percent (20%) of the greater of the average\n monthly:\n\n (A) Deposits to the inmate’s account; or\n\n (B) Balance in the inmate’s account for the six-month period\n immediately preceding the filing of the complaint or notice of appeal.\n\n . . . [.]\n\n (4) In no event shall an inmate be prohibited from bringing a\n civil action or appealing a civil or criminal judgment for the reason\n that the inmate has no assets and no means by which to pay the initial\n partial filing fee.\n\nId., slip op. at 2-3 (footnote omitted). The Mize court held that the petitioner should not have been\nprevented from proceeding with his petition for habeas corpus relief because he was unable to pay\nthe initial partial filing fee. Even so, strict adherence to the dictates of Code section 41-21-807 is\nrequired before paying a filing fee is excused. See Michael Settle v. State, No. M2004- 00411- CCA-\nR3-HC (Tenn. Crim. App., Nashville, Nov. 7, 2005).\n\n\n -3-\n\f We note at the outset that we are not dealing with the petitioner’s inability to pay a\npartial filing fee in the instant case. Rather, the petitioner announced his ability, intention, and\nefforts to pay the partial filing fee, and he asked the court to reconsider its dismissal of his action.\nIn our view, the habeas corpus court should have explored the veracity and merits of the facts and\nallegations in the petitioner’s motion to alter or amend judgment. From the record before us, we find\nno evidence that the court ever reconsidered whether the petitioner’s action should be reinstated.\n\n The state is suspicious of the written inmate trust account personal withdrawal request\nthat the petitioner attached to his motion to alter or amend. The state notes, “The request has a typed\ndate of January 21, 2005; however, it is presumably witnessed by a prison official, but it is not dated\nby the witness or the warden of the facility. The withdrawal request was filed on February 23, 2005,\napproximately 12 days after the petition was dismissed.” The state may well be justified in\nquestioning the petitioner’s good faith efforts and/or intentions to pay the initial partial filing fee.\nWe, however, are not prepared to credit the state’s suspicions from a bare record, and we believe that\nthe habeas corpus court had an obligation to make reasonable factual inquiries before allowing its\norder of dismissal to stand.\n\n II. Failure to Conduct Evidentiary Hearing\n\n The petitioner’s remaining issues essentially claim that he is entitled to a hearing on\nhis application for a writ of habeas corpus. The state contends that the petitioner’s failure to state\na cognizable claim for habeas corpus relief should end the matter. We agree. Remanding this case\nwould be an exercise in futility, and the interests of judicial economy and efficiency are better served\nby disposing of this case at this time.\n\n We have carefully reviewed the petitioner’s pro se brief on appeal and his filings\nseeking habeas corpus relief. It is abundantly evident that he has failed to state a cognizable claim\nfor habeas corpus relief. We note, for example, that the petitioner writes the following in the initial\nparagraph of his statement of the case on appeal.\n\n This case presents the continued attempts of [the petitioner]\n to receive a judicial determination on the merits of his claims of\n constitutional due process and equal protection violations which have\n resulted in the denial of his Sixth Amendment right to a jury trial and\n the effective assistance of counsel; violation of the Due Process\n Clause of the Fifth Amendment, made applicable to the states through\n the Fourteenth Amendment by the trial judge’s determination of\n alleged facts rather than by proof; and the imposition of excessive\n sentences and the improper denial of his petition for habeas corpus\n relief.\n\nElsewhere in his brief, the petitioner charges that there exists in Tennessee “an unconstitutional\nprocedure which has been adopted by the Trial Court Judges for the disposition of habeas corpus\n\n\n -4-\n\fcases,” that in 1989 “the Legislature unconstitutionally repealed the common law through the 1989\nCriminal Sentencing Reform Act, which took away the defendant’s right to have a jury determine\nthe elements of the charged offense,” and that state judges have made unconstitutional “use of judge-\nmade law to deny prisoners their statutory and constitutional right to prosecute a writ of habeas\ncorpus, to inquire into the cause of such imprisonment and restraint.”\n\n This court has often noted that the “writ of [habeas corpus ] will issue in Tennessee\n‘only when “it appears upon the face of the judgment or the record of the proceedings upon which\nthe judgment is rendered” that a convicting court was without jurisdiction or authority to sentence\na defendant, or that a defendant’s sentence of imprisonment or other restraint has expired.’” State\nv. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000) (quoting Archer v. State, 851 S.W.2d 157, 164 (Tenn.\n1993)). “A void judgment is one in which the judgment is facially invalid because the court lacked\njurisdiction or authority to render the judgment or because the defendant’s sentence has expired.”\nTaylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). In contrast, “[a] voidable conviction or sentence\nis one which is facially valid and requires the introduction of proof beyond the face of the record or\njudgment to establish its invalidity.” Ritchie, 20 S.W.3d at 630-31 (quoting Taylor, 995 S.W.2d at\n83). Facial invalidity means that the “fact [depriving the court of jurisdiction] must appear clearly\nand indisputably either on the face of the judgment or in the original trial record before a writ of\nhabeas corpus can issue from a Tennessee court.” Id. at 633.\n\n The burden is on the petitioner to establish that the judgment is void or that the\nsentence has expired. State ex rel. Kuntz v. Bomar, 214 Tenn. 500, 504, 381 S.W.2d 290, 291-92\n(1964). A petition seeking issuance of a writ of habeas corpus may be summarily dismissed by a\ntrial court if it fails to indicate that the petitioner’s conviction is void. Tenn. Code Ann. § 29-21-109\n(2000).\n\n We have no doubt that measured by these well-settled standards and guidelines, the\npetitioner has failed to establish a claim for habeas corpus relief. His condemnation of the habeas\ncorpus system in this state and of the 1989 Criminal Sentencing Reform Act in its entirety is not only\nbaseless but completely beyond the scope of habeas corpus relief.\n\n The dismissal of the petitioner’s application for habeas corpus relief is hereby\naffirmed.\n\n\n ___________________________________\n JAMES CURWOOD WITT, JR., JUDGE\n\n\n\n\n -5-\n\f", "ocr": false, "opinion_id": 1055221 } ]

[ "770 F.2d 157" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/770/770.F2d.157.85-2125.html", "author_id": null, "opinion_text": "770 F.2d 157\n Jenkinsv.Goldberg\n 85-2125\n United States Court of Appeals,Second Circuit.\n 6/26/85\n \n 1\n E.D.N.Y.\n \n AFFIRMED\n ", "ocr": false, "opinion_id": 456480 } ]

[ "96 A.2d 14", "202 Md. 240" ]

[ { "author_str": "Delaplaine", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n202 Md. 240 (1953)\n96 A.2d 14\nLENT\nv.\nLENT (Two Appeals in One Record)\n[No. 122, October Term, 1952.]\nCourt of Appeals of Maryland.\nDecided April 17, 1953.\n*242 The cause was argued before SOBELOFF, C.J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.\nSusan Jane Hendershott for the appellant.\nNo brief and no appearance for the appellee.\nDELAPLAINE, J., delivered the opinion of the Court.\nMary Jane Adams Lent, of Bethesda, has appealed here from a decree of the Circuit Court for Montgomery County, which dismissed her amended cross-bill for a divorce a vinculo matrimonii from her husband, Worthington C. Lent, a consulting engineer, also of Bethesda.\nAppellee had instituted suit for a divorce, and the decree also dismissed his bill. He also appealed, but since he did not file a brief in this Court his appeal will be dismissed. Rule 40 of our Rules relating to Appeals provides that within 30 days after the filing of the transcript of the record in this Court, counsel for the appellant shall file 40 copies of the printed brief; and when an appellant fails to comply with this rule, the case may be dismissed on motion or by the Court of its own motion.\nThe parties were married in the District of Columbia in September, 1944. The bride was 22, the groom 42. It was the bride's first marriage, the groom's third. The groom's previous marriages had ended in divorce. The parties have two children, a daughter born in 1945 and a son born in 1948.\nIn September, 1950, appellee entered the United States Air Force with the rank of Lieutenant Colonel. The parties separated on August 15, 1951, and appellee entered suit for a partial divorce on September 14, 1951. It was testified that appellee's income was $618 per month. The Court ordered him to pay $57.50 per week *243 as alimony pendente lite and for the support of the children.\nAppellant testified at the trial that her husband lost all interest in her after the birth of their first child, and that after he entered the Air Force he repulsed all her efforts to have marital relations with him. She declared that he swore he would never touch her again, and that he had refused to have sexual intercourse with her since September, 1950. On the other hand, appellee claimed that it was not until May, 1951, that he terminated marital relations. However, he admitted that he did not want children, claiming that his financial condition did not warrant having any more. He called his wife \"careless\" when she became pregnant in 1948.\nAppellant testified that her husband called her \"lousy rat,\" \"bitch,\" and other vile names. Her witnesses corroborated her testimony that he called her offensive names in the presence of their children, and that her \"hysterical, upset condition\" had reduced her to a \"nervous wreck.\" Appellant further testified that while she was washing clothes in the basement of their home in Bethesda one evening in the summer of 1951, her husband struck her and threatened to kill her, so that it was necessary to call the police for protection.\nAppellant further testified that on August 15, 1951, her husband treated her so harshly that she feared he would kill her. After calling the police again, she fled with the two children to the home of her mother in Washington. Appellee testified that he did not call his wife a \"prostitute,\" but merely told her she was \"acting like a prostitute.\" Appellant stayed with her mother until December, when she moved back into Montgomery County. She charged her husband with constructive desertion, alleging that she was compelled to leave him because of his intolerable conduct. She declared that she left \"in mortal terror.\"\nThe chancellor stated that he was not convinced that appellee was guilty of cruelty or that his wife left him because of fear. He accordingly dismissed both the *244 bill and the cross-bill; authorized appellee to discontinue paying alimony pendente lite; awarded the custody of the children to appellant, with the right of appellee to have the children visit him each Saturday afternoon; and ordered appellee to pay $40 per week for the support of the children.\nWhile appellant testified in the Court below that her husband had refused to have intercourse with her since September, 1950, she conceded in her brief and also in the oral argument in the Court of Appeals that there was no corroboration of her claim that the refusal to cohabit commenced in September, 1950, and therefore she did not ask immediately for a divorce a vinculo matrimonii. The Maryland divorce statute authorizes a decree of divorce a vinculo matrimonii on the ground of abandonment when the abandonment has continued uninterruptedly for at least eighteen months, and is deliberate and final, and the separation of the parties is beyond any reasonable expectation of reconciliation. Laws 1949, ch. 520; Code 1951, art. 16, sec. 33. Appellee admitted that there has been no cohabitation since May, 1951, and appellant's cross-bill, which prayed for a divorce a vinculo matrimonii was filed in March, 1952. But appellant says that she is entitled to a divorce a mensa et thoro. We agree with her contention. The statute provides that where a divorce a vinculo matrimonii is prayed, the court may decree a divorce a mensa et thoro if the evidence supports such a decree. Code 1951, art. 16, sec. 34; Downs v. Downs, 154 Md. 430, 434, 140 A. 831.\nIt is the law of this State that permanent refusal of either the husband or the wife to have sexual intercourse with the other spouse, from no consideration of health or other good reason, constitutes matrimonial desertion, although the parties continue to live in the same house. Fleegle v. Fleegle, 136 Md. 630, 110 A. 889; Miller v. Miller, 153 Md. 213, 138 A. 22; Timanus v. Timanus, 177 Md. 686, 10 A.2d 322; Kelsey v. Kelsey, 186 Md. 324, 46 A.2d 627. Of course, the complainant *245 has the burden of proving the allegation that the defendant refused to fulfill the marital duty. But where the possibility of collusion is precluded, only slight corroboration is required. Code 1951, art. 35, sec. 4; Harp v. Harp, 198 Md. 485, 84 A.2d 895.\nThe chancellor refused to grant appellant a divorce a mensa et thoro, saying he was not convinced that her husband had made up his mind \"not to have intercourse with her again and thus bring the marriage to an end.\" We think the evidence amply supports appellant's allegation that her husband refused cohabitation unjustifiably and permanently. Appellant declared that her husband lost all affection for her within a year after they were married. The chancellor, believing her, commented: \"The evidence seems clear that Colonel Lent was not interested in entertaining his young wife. He spent much of his spare time playing cards and golfing. She craved attention and companionship. This he gave her sparingly and with some disdain.\"\nIn the fall of 1950 or the spring of 1951, appellee refused to have marital relations with his wife. He admitted at the trial that he told Mrs. Bernice Blair several weeks after his wife left him that he had not had any sexual relations with his wife since May, 1951. His whole attitude, as shown by his conduct as well as his statements to others, proves conclusively that he determined never to resume marital relations with his wife. Miss Katherine di Cessare, directress of the Wood-lawn School, which the two children attended, testified that appellee told her he was determined upon getting a divorce, giving as his complaint that she spent too much money.\nAppellee testified that, at the time of their quarrel one evening in the summer of 1951, he urged his wife not to leave home; but apparently he did so principally because he wanted someone to look after the children. He admitted on the stand: \"I was thinking about the children, that is all. And I took the wedding ring, when *246 I saw it served no useful purpose, took the wedding ring off, and laid it on the corner of the ironing board, and said: `Here, Mary you have it. It's all yours.'\"\nThe fact that appellee's conduct became increasingly reprehensible, until he finally likened his wife to a prostitute, confirms our opinion that he had no intention of resuming marital relations. It is our opinion that appellant was justified in leaving the home with the children and taking refuge in her mother's home. The chancellor, in commenting on appellee's harsh treatment of his wife, said: \"It was his duty to change his attitude and conduct. To grant him a limited divorce would put a premium on indifference, harshness and neglect.\" It is well established that any misconduct of the husband will justify the wife in leaving him and entitle her to a divorce on the ground of constructive desertion when it makes it impossible for her to live with him without loss of her health or self-respect, or gives her reasonable apprehension of bodily injury. Scheinin v. Scheinin, 200 Md. 282, 89 A.2d 609. But it is actually unnecessary to rely on the additional ground of constructive desertion alleged by appellant in her amended cross-bill.\nAfter appellant separated from her husband, he hired detectives to show that she renewed her friendship with a man she had known since she was 14. The chancellor remarked that she was very indiscreet, but he was firmly convinced that she was not guilty of adultery. As we have said, appellee did not comply with the rules of this Court, and his appeal will be dismissed. Our conclusion, therefore, is that appellant is entitled to a divorce and alimony.\nWe accordingly reverse that part of the decree which dismissed appellant's cross-bill and allowed appellee to discontinue paying alimony, and direct the chancellor to grant appellant a divorce a mensa et thoro and to order appellee to pay alimony in such amount as the chancellor shall find proper.\n*247 We affirm that part of the decree which awarded the custody of the children to appellant and ordered appellee to pay $40 per week for their support.\nDecree reversed in part and affirmed in part, and case remanded for the passage of a decree in accordance with this opinion, with costs to appellant.\n", "ocr": false, "opinion_id": 1475528 } ]

[ "36 So. 3d 688" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n36 So.3d 688 (2010)\nISOM\nv.\nSTATE.\nNo. 5D10-517.\nDistrict Court of Appeal of Florida, Fifth District.\nMay 25, 2010.\nDecision Without Published Opinion Affirmed.\n", "ocr": false, "opinion_id": 1554979 } ]

[ "853 F.2d 920" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/853/853.F2d.920.88-1041.html", "author_id": null, "opinion_text": "853 F.2d 920\n Purnell (Evangeline), on behalf of Estate of Purnell (AndreKevin, Evangeline)v.U.S., Du Pont Pharmaceutical E.I. DuPont De Nemours & Co., Inc.\n NO. 88-1041\n United States Court of Appeals,Third Circuit.\n JUN 21, 1988\n \n 1\n Appeal From: E.D.Pa.\n \n \n 2\n AFFIRMED.\n \n ", "ocr": false, "opinion_id": 509757 } ]

[ "905 F. Supp. 2d 356" ]

[ { "author_str": "Lamberth", "per_curiam": false, "type": "010combined", "page_count": 11, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2012cv1852-20", "author_id": 1844, "opinion_text": " UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n______________________________________\n )\nSIERRA CLUB, )\n )\n Plaintiff, )\n )\n v. ) Civil Case No. 12–1852\n )\nTENNESSEE VALLEY AUTHORITY, )\n )\n Defendant. )\n )\n______________________________________ )\n\n MEMORANDUM OPINION\n\nI. INTRODUCTION\n\n Now before the Court is plaintiff’s Motion for a Preliminary Injunction. ECF No. 3.\n\nUpon consideration of this Motion, defendant’s opposition, ECF No. 9, plaintiff’s reply, ECF\n\nNo. 14, and applicable law, this Court will DENY plaintiff’s motion and, because it lacks\n\npersonal jurisdiction over defendant, will TRANSFER the case to the Eastern District of\n\nTennessee.\n\nII. BACKGROUND 1\n\n Between April and June 2012, Sierra Club filed several FOIA requests with the\n\nTennessee Valley Authority (“TVA”) 2 seeking information regarding a Tennessee coal plant as\n\nwell as other more general information. Compl. ¶¶ 30, 34–36, ECF No. 1; Pl.’s Mem. in Support\n\n1\n Because the Court finds that it lacks personal jurisdiction over this lawsuit, this opinion provides only a brief\nsummary of the relevant background.\n2\n The TVA is a “wholly owned Federal corporation whose ‘business . . . as defined by statute, is the development of\nthe natural resources of the Tennessee Valley and adjacent and related areas.’” Def.’s Opp’n at 5 (citing Fehlhaber\nPile Co. v. TVA,, 155 F.2d 864, 865 (D.C. Cir. 1946), superseded by state statute on other grounds, as noted in\nJenkins v. Wash. Convention Ctr., 236 F.3d 6 (D.C. Cir. 2001); see also Compl. ¶ 17 (“Defendant TVA is a federal\ncorporation . . . [which] provides the vast bulk of electric power to” Tennessee and a “larger seven-state service\nregion.”).\n\fof its Emergency Mot. For Prelim. Inj. at 11–12 (“Pl.’s Br.”) ECF No. 3–1; Def.’s Opp’n at 2,\n\nECF No. 9. In October, the TVA issued a draft Environmental Assessment (“EA”) regarding its\n\nplans for the plant. Compl. ¶ 31; Pl.’s Br. at 2, 13–14. The TVA announced a public comment\n\nperiod for the draft EA that was initially to be open until November 16 and was later extended\n\nuntil the present deadline of November 30. Compl. ¶¶ 43, 46. The Club quickly sought to\n\nexpedite its still pending requests. Compl. ¶ 45; Pl.’s Br. at 3, 14; Def.’s Opp’n at 3. In early\n\nNovember, the Sierra Club received what TVA described as its “partial response.” Compl. ¶ 47;\n\nPl.’s Br. at 3, 15; Def.’s Opp’n at 3 (noting that TVA sent the CD on November 5). Not satisfied\n\nwith the documents they had received, and with the public comment period’s November 30\n\nclosing date looming, the Club filed this action on November 15 and on the same day moved for\n\na preliminary injunction. See Compl.; Pl.’s Emergency Mot., ECF No. 3. The Club seeks an\n\norder forcing TVA to turn over all requested documents or, if necessary, to extend or re-open the\n\ncomment period. Pl.’s Br. at 4, 17; Pl.’s Reply at 4.\n\nIII. ANALYSIS\n\n A preliminary injunction is “an extraordinary remedy that may only be awarded upon a\n\nclear showing that the plaintiff is entitled to such relief.” Winter v. NRDC, 555 U.S. 7, 21\n\n(2008). Here the Court will not decide whether Sierra Club meets this demanding standard\n\nbecause it concludes that it lacks personal jurisdiction over TVA.\n\n Far from a “hyper-technical procedural argument,” see Pl.’s Reply at 3, personal\n\njurisdiction is “an essential element of the jurisdiction of a district court without which the court\n\nis powerless to proceed to an adjudication.” See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,\n\n584 (1999) (internal quotations and citations omitted). “[B]efore a court may exercise personal\n\njurisdiction over a defendant, there must be . . . a basis for the defendant’s amenability to service\n\n\n\n\n 2\n\fof summons. Absent consent, this means there must be authorization for service of summons on\n\nthe defendant.” Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987).\n\nThis requirement applies with no less force in the context of a motion for a preliminary\n\ninjunction. See Khatib v. Alliance Bankshares Corp., 846 F. Supp. 2d 18, 25 (D.D.C. 2012); cf.\n\nLipofsky v. N.Y. State Workers Comp. Bd., 861 F.2d 1257 (11th Cir. 1988) (holding that a district\n\ncourt could not dismiss a case for lack of personal jurisdiction on its own motion without giving\n\nplaintiff notice or an opportunity to present its views on the issue).\n\n The Sierra Club pursues two arguments for personal jurisdiction, pointing first to 5\n\nU.S.C. § 552(a)(4)(B) of FOIA, Compl. ¶ 14; Pl.’s Reply at 20–22, and second to TVA’s\n\ncontacts with and presence in the forum and its status as a federal agency. Id. at 22–23; see also\n\nCompl. ¶ 15 (arguing that this venue is appropriate because TVA has an office here). As\n\ndiscussed below, neither avenue leads to personal jurisdiction.\n\n A. FOIA Does Not Provide This Court with Personal Jurisdiction Over TVA\n\n In 1974, Congress amended FOIA in two relevant respects. See Pub. L. No. 93–502, 88\n\nStat. 1561 (Nov. 21, 1974). First, through the provision now codified at 5 U.S.C. § 552(a)(4)(B),\n\nCongress made this district a proper forum for venue purposes. The subsection provides, in part:\n\n On complaint, the district court of the United States in the district in which the\n complainant resides, or has his principal place of business, or in which the agency\n records are situated, or in the District of Columbia, has jurisdiction to enjoin the\n agency from withholding agency records and to order the production of any\n agency records improperly withheld from the complainant.\n\n5 U.S.C. § 552(a)(4)(B). Second, Congress made it clear that “Government corporations [and]\n\nGovernment controlled corporations,” such as TVA, are subject to FOIA. See § 552(f)(1).\n\n Three judges on this court have addressed the question of whether § 552(a)(4)(B)\n\nprovides personal jurisdiction over TVA in this district, and have reached opposing conclusions.\n\n\n\n\n 3\n\fCompare Jones v. U.S. Nuclear Regulatory Comm’n, 654 F. Supp. 130 (D.D.C. 1987) (Hens\n\nGreen, J.) (finding § 552(a)(4)(B) did not confer personal jurisdiction over TVA), with Murphy\n\nv. TVA, 559 F. Supp. 58 (D.D.C. 1983) (Richey, J.) (finding the opposite), and E. Tenn. Research\n\nCorp. v. TVA, 416 F. Supp. 988 (D.D.C.) (Sirica, J.) (same) vacated on other grounds, 424 F.\n\nSupp. 1329 (D.D.C. 1976); see also 2 Dep’t of Justice, Guide to the Freedom of Information Act\n\n§ 3–17.100B (2012) (“[E]ven though the District Court for the District of Columbia is the\n\n‘universal’ venue for FOIA lawsuits, it is not settled whether the Tennessee Valley Authority is\n\namenable to FOIA suit in Washington, D.C. or only in the Northern District of Alabama (the\n\nvenue set by statute for that wholly owned government corporation).” 3 (internal citations\n\nomitted)).\n\n This Court concludes that § 552(a)(4)(B) does not allow the Sierra Club to pursue their\n\nFOIA claim against the TVA in this Court. Pl.’s Reply at 20. Because neither the provision’s\n\nplain language nor its legislative history provide conclusive evidence as to what Congress\n\nintended on this issue, the Court falls back on the presumption that a court’s process is only valid\n\nwithin its district.\n\n 1. The Plain Language of the Provision is Ambiguous\n\n Subsection 552(a)(4)(B) provides in part that “the district court . . . in the District of\n\nColumbia . . . has jurisdiction . . .” over FOIA cases. The Sierra Club points to the word\n\n“jurisdiction” and concludes that this “plain language” gives this Court personal jurisdiction over\n\nTVA. Pl.’s Reply at 20. This is incorrect. Congress could have used the term “jurisdiction” to\n\nrefer to (a) subject matter jurisdiction and not personal jurisdiction; (b) personal jurisdiction and\n\nnot subject matter jurisdiction; (c) both personal and subject matter jurisdiction; or (d) neither\n\n3\n But see TVA v. Tenn. Elec. Power Co., 90 F.2d 885, 889 (6th Cir. 1937) (finding that the TVA statute does not\nprohibit venue in the Eastern District of Tennessee).\n\n\n\n 4\n\fpersonal nor subject matter jurisdiction in the technical legal sense of those terms. 4 The Sierra\n\nClub has offered no textual or logical support for its conclusion that either one of the possible\n\nreadings that include personal jurisdiction—(b) or (c)—is the best reading.\n\n Judge Richey attempted to mount such an argument in Murphy by suggesting that “[t]he\n\nquestion of venue only arises once it has been determined that personal jurisdiction lies” and\n\nbecause the provision conferred venue, it must also confer personal jurisdiction. 559 F. Supp. at\n\n59. However, as Judge Joyce Hens Green correctly noted in Jones, this syllogism is faulty—“the\n\npresence of venue does not dispense with the necessity for service in order to acquire personal\n\njurisdiction.” 654 F. Supp. at 132 (quoting Rabiolo v. Weinstein, 357 F.2d 167, 168 (7th Cir.\n\n1966)). Other venue-conferring statutes have similarly been held not to confer personal\n\njurisdiction. See Robertson v. R.R. Labor Bd., 268 U.S. 619, 622 (1925).\n\n Accordingly, plain meaning fails to resolve the issue.\n\n 2. The Legislative History of the Provision is Also Ambiguous\n\n Subsection 552(a)(4)(B) was enacted at the same time as a provision clarifying that FOIA\n\napplied to “Government corporations [and] Government controlled corporations,” such as TVA.\n\nSee § 552(f)(1). The Sierra Club argues that this simultaneous enactment means that Congress\n\n“knew what [it] was doing”—i.e. “giv[ing] plaintiffs in FOIA suits against the TVA the right to\n\nsue in this district court.” Pl.’s Reply at 21 (quoting E. Tenn. Research Corp., 416 F. Supp. at\n\n990). Because “Congress passed the Amendments as one package, discussing both changes in a\n\nsingle conference report,” the Club argues, Congress must have intended that § 552(a)(4)(B)\n\nwould provide personal jurisdiction over the TVA. Pl.’s Reply at 21–22 (citing S. Conf. Rep.\n4\n It should be noted that, although the provision does not use the word “venue,” there appears to be universal\nagreement that it makes venue appropriate in any of the four listed fora. See, e.g., In re Scott, 709 F.2d 717, 722\n(D.C. Cir. 1983) (examining § 552(a)(4)(B) and concluding that “Congress expressly established the District of\nColumbia as a place of proper venue in all FOIA cases”); see also 2 Dep’t of Justice, Guide to the Freedom of\nInformation Act § 3–17.100B (2012) (referring to this provision as the “venue provision of the FOIA” and collecting\ncases).\n\n\n 5\n\f93–1200, 1974 USCCAN 6285, 6287, 6293 (Oct. 1, 1974)); see also Murphy, 559 F. Supp. at 59\n\n(finding simultaneous enactment created a “strong presumption” that Congress intended TVA to\n\nbe suable in the D.C. Court).\n\n This Court disagrees. Simultaneous enactment, without more, does not imply that\n\nCongress intended the TVA to be subject to personal jurisdiction in D.C. It is notable that “the\n\ntwo amendments originated in different houses of Congress,” as Judge Joyce Hens Green pointed\n\nout. Jones, 654 F. Supp. at 132. And, at the time of enactment in 1974, Congress may have\n\nbeen aware that courts had already found in a different but related context that the TVA was not\n\nsubject to the same extraterritorial service of process as ordinary agencies. See NRDC v. TVA,\n\n459 F.2d 255, 257 (2d Cir. 1972) (holding that the federal venue statute which specifically\n\nauthorizes extraterritorial service on federal agencies in mandamus actions was inapplicable to\n\nthe TVA); Envtl. Def. Fund v. TVA, 71–cv–1615 (D.D.C. Oct. 13, 1971) (same); see also Jones,\n\n654 F. Supp. at 131–32. 5 Given that there is “nothing at all about service of process or personal\n\njurisdiction” in the provision at issue here, it seems “just as likely” that Congress enacted the two\n\nprovisions at the same time without contemplating the thorny issue now presented. See id.\n\n Judge Sirica, who found personal jurisdiction over TVA under the provision, also\n\nacknowledged a fundamental ambiguity in the provision’s purpose when made to apply to the\n\nTVA. E. Tenn. Research Corp., 16 F. Supp. at 990. Congress wanted to allow plaintiffs to bring\n\nsuits in the D.C. District Court, he concluded, because of the court’s substantial expertise on\n\nFOIA matters as well as to promote convenience for the D.C.-based Department of Justice\n\n\n5\n Judge Joyce Hens Green points to several statements drawn from the legislative history of a later amendment to the\nfederal venue statute, suggesting that Congress agreed with these courts that the TVA was subject to “restricted” or\n“limited” service of process, compared with federal agencies. Id. (citing 122 Cong. Rec. 33,454 (1976) (remark of\nSen. Kennedy); H.R. Rep. No. 1656, 94th Cong., 2d Sess. 3, 18 (1976)). However, the Court does not make much of\nthis evidence as it comes after the enactment of the provision at issue here and pertains to an entirely different\nstatute.\n\n\n\n 6\n\fattorneys handling the cases for the government. Id. at 989 (citing S. Rep. No. 854, 93d Cong.,\n\n2d Sess., 12–13 (1974)); see also In re Scott, 709 F.2d 717, 720 (D.C. Cir. 1983) (articulating the\n\nsame two reasons). But he noted the second reason “loses all its force” when TVA is a\n\ndefendant, since “the corporation neither is represented by nor confers with the Justice\n\nDepartment on FOIA matters” and “the TVA’s own attorneys in Knoxville, Tennessee, do this\n\nwork.” E. Tenn. Research Corp., 16 F. Supp. at 989.\n\n Accordingly, the Court concludes that legislative history does not provide a conclusive\n\nresolution to the interpretive question here.\n\n 3. Finding No Indication of Congressional Intent, The Court Falls Back on the\n Presumption that a Court’s Process is Valid Only In the District Within Which\n it Sits\n\n Lacking clear guidance from Congress, this Court falls back on the “widespread\n\nunderstanding that federal courts may serve process nationwide only when a federal statute\n\nauthorizes such service.” Omni Capital, 484 U.S. at 110 n.12; see also Georgia v. Penn. R.R.\n\nCo., 324 U.S. 439, 467 (1945) (“Apart from specific exceptions created by Congress the\n\njurisdiction of the district courts is territorial.”); accord United States v. Hill, 694 F.2d 258, 261\n\n(D.C. Cir. 1982). “To assess the propriety of the District Court’s exercise of enforcement\n\njurisdiction on the basis of extraterritorial service of process, therefore, we must determine\n\nwhether Congress has created a ‘specific exception’ to the usual rule.” Id.\n\n In Omni Capital the Supreme Court found that the Commodities Exchange Act did not\n\ncontain an “implied provision for nationwide service of process in a private cause of action,” and\n\nheld that courts should not invent such provisions in the face of Congressional silence. 6 484\n\nU.S. at 108. The Court noted that federal courts should not expand their own powers of service\n6\n Congress subsequently amended the statute to allow for nationwide service of process. See Futures Trading\nPractices Act of 1992 § 211, Pub. L. No. 102–546 (1992); see also In re Amaranth Natural Gas Commodities Litig.,\n587 F. Supp. 2d 513, 526 n.69 (S.D.N.Y. 2008).\n\n\n\n 7\n\fwithout clear guidance from Congress because “it seems likely that Congress has been acting on\n\nthe assumption that federal courts cannot add to the scope of service of summons Congress has\n\nauthorized.” Id. (collecting cases). And, in the early case of Robertson v. Railroad Labor Bd.,\n\nthe Supreme Court held that a “congressional grant of nationwide venue did not carry with it an\n\nimplicit grant of nationwide service of process” because “[i]t is not lightly to be assumed that\n\nCongress intended to depart from a long established policy.” 268 U.S. at 622; see also Jones,\n\n654 F. Supp. at 132.\n\n These principles tip the balance in this case. Neither the plain meaning nor the legislative\n\nhistory of the provision provide sufficient evidence that Congress intended to allow\n\nextraterritorial service of process. This Court will not do Congress’ work for them. Accordingly,\n\n§ 552(a)(4)(B) does not give the Court personal jurisdiction over TVA.\n\n B. Neither TVA’s Contacts with, nor its Presence In the Forum, nor its Status as a\n Federal Agency Give This Court Personal Jurisdiction\n\n The Sierra Club argues that “TVA’s federal affairs office here in the District serves as\n\nanother basis for jurisdiction.” Pl.’s Reply at 22. Again, the Court disagrees.\n\n “Under the District of Columbia’s long-arm statute, local courts may exercise so-called\n\n‘specific jurisdiction’ over a person for claims that arise from the person’s ‘transacting any\n\nbusiness’ in the District.” Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 509 (citing D.C.\n\nCode § 13–423(a)(1)). However, the Sierra Club’s FOIA claim against TVA does not arise out\n\nof any business transacted between the parties in the District so this font of jurisdiction is\n\nunavailable. See id.\n\n D.C. law also permits courts to exercise “general jurisdiction” over a foreign corporation\n\nas to claims not arising from the corporation’s conduct in the District, if the corporation is “doing\n\nbusiness” in the District. See Gorman, 293 F.3d at 509 (D.C. Cir. 2002) (citing D.C.Code § 13–\n\n\n\n 8\n\f334(a)). The D.C. Court of Appeals has indicated that the reach of “doing business” jurisdiction\n\nunder § 13–334(a) is coextensive with the reach of constitutional due process. Hughes v. A.H.\n\nRobins Co., 490 A.2d 1140, 1148 (D.C. 1985). However, D.C. Courts have long carved out a\n\n“government contacts” exception for alien corporations which keep an office in the District for\n\nthe purpose of maintaining contact with Congress and governmental agencies. See, e.g., Fandel\n\nv. Arabian Am. Oil Co., 345 F.2d 87, 88–89 (D.C. Cir. 1965); Morgan v. Richmond Sch. Of\n\nHealth and Tech., Inc., 857 F. Supp. 2d 104, 107–09 (D.D.C. 2012); Lex Tex Ltd. V. Skillman,\n\n579 A.2d 244, 246–47 (D.C. 1990). As the D.C. Circuit reasoned, “Washington presents many\n\nbusiness organizations with special needs for a continuous and ponderable physical presence\n\nhere,” but such presence should not be made “in every case a base for the assertion of personal\n\njurisdiction.” Fandel, 345 F.2d at 89.\n\n The Sierra Club argues that “[t]he continued staff presence which TVA maintains in [its\n\nlocal D.C.] office, and its continuous and deep involvement with this District—hiring and paying\n\nstaff, communicating with citizens and officials here and advocating for TVA’s interests” should\n\nlead this Court to find jurisdiction. Pl.’s Reply at 22–23. Further, they argue, the “government\n\ncontacts” is “inapposite” in this case, which involves a federal defendant, not a private\n\ncorporation, and a federal cause of action, not a private lawsuit. Pl.’s Reply at 23 nn.14 & 15.\n\n This Court disagrees. The TVA’s D.C. office has “a staff of four that obtains information\n\nconcerning matters affecting TVA, circulates information about TVA to Federal Government\n\nofficials and the public, and arranges meetings between TVA officers and officials of other\n\nFederal Government agencies.” Def.’s Opp’n at 6 (citing Declaration of Katherine J. Black at P\n\n2, ECF No. 12). This office fits squarely into the government contacts exception, and prevents\n\nthis Court from finding personal jurisdiction.\n\n\n\n\n 9\n\f It is true, as the Sierra Club notes, that TVA is not wholly like the private corporations at\n\nissue in previous government contacts exception cases in that its “Board is appointed by the\n\nPresident . . . which is subject to continued Congressional oversight.” See Pl.’s Reply at 23 n.14.\n\nBut neither is it wholly like an ordinary agency. See NRDC, 459 F.2d at 257 (noting that the\n\nTVA “operates in much the same way as an ordinary business corporation, under the control of\n\nits directors in Tennessee, and not under that of a cabinet officer or independent agency\n\nheadquartered in Washington”); see also Fehlhaber Pile Co. v. TVA, 155 F.2d 864, 865 (D.C.\n\nCir. 1946) (finding that the TVA was “clearly not domestic to the District of Columbia” and their\n\nD.C.-based federal affairs office did not “constitute[] the doing of business in the District of\n\nColumbia in the jurisdictional sense”). This Court holds that the TVA has enough of the\n\nqualities of a private corporation to qualify for the governmental contacts exception—an\n\nexception which, in this case, applies to keep this Court from finding personal jurisdiction.\n\n It is also true that the FOIA cause of action here is unlike the tort and contract disputes in\n\nprevious government contacts exception cases, but the Sierra Club does not adequately explain,\n\nand this Court does not see any reason why this distinction should make a difference in the\n\napplicability of this exception.\n\n In sum, this Court lacks personal jurisdiction over TVA.\n\nIV. TRANSFER\n\n The Sierra Club requested that if this Court found a lack of personal jurisdiction it should\n\ntransfer the case to the Middle District of Tennessee, where the power plant in question is\n\nlocated, and where “many citizens who will be affected by it . . . reside.” Pl.’s Reply at 24.\n\n “Transfer is appropriate under 28 U.S.C. § 1406(a) when procedural obstacles [such as\n\nlack of personal jurisdiction] impede an expeditious and orderly adjudication . . . on the merits.”\n\n\n\n\n 10\n\fMorgan, 857 F. Supp. 2d at 110 (internal citations and quotations omitted). “A court may\n\ntransfer a case to another district even though it lacks personal jurisdiction over the defendants.”\n\nNaartex Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983). “The decision whether a\n\ntransfer or a dismissal is in the interest of justice . . . rests within the sound discretion of the\n\ndistrict court.” Naartex, 722 F.2d at 789. Transfer of a case is usually preferable to dismissal.\n\nJones v. United States, 820 F. Supp. 2d 58, 61 (D.D.C. 2011).\n\n While the TVA Act provides that it “shall be held to be an inhabitant and resident of the\n\nnorthern judicial district of Alabama within the meaning of the laws of the United States relating\n\nto the venue of civil suits,” 16 U.S.C. § 831g(a), the Sixth Circuit has found that this does not\n\nprohibit venue in the Eastern District of Tennessee. TVA v. Tenn. Elec. Power Co., 90 F.2d 885,\n\n889 (6th Cir. 1937). According to TVA’s Vice President of Human Resources, “TVA’s Freedom\n\nof Information Officer works in TVA’s corporate headquarters in Knoxville, Tennessee” and\n\n“[t]he majority of personnel whose work involves environmental compliance and the installation\n\nof pollution controls are based in TVA’s office in Chattanooga, Tennessee.” Declaration of\n\nKatherine J. Black ¶ 3, ECF No. 12. Accordingly, the Court finds that transfer to the Eastern\n\nDistrict of Tennessee is appropriate.\n\nV. CONCLUSION\n\n For the reasons set forth above, the Sierra Club’s Motion for a Preliminary Injunction is\n\nDENIED, and the case shall be TRANSFERRED to the Eastern District of Tennessee. An Order\n\nwill issue with this opinion.\n\n Signed November 29, 2012 by Royce C. Lamberth, Chief Judge.\n\n\n\n\n 11\n\f", "ocr": false, "opinion_id": 2661461 } ]

[ "255 P.3d 51" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n255 P.3d 51 (2011)\nA.L. EX REL. LANK\nv.\nFLOREZ.\nNo. 104684.\nCourt of Appeals of Kansas.\nJuly 15, 2011.\n\nDecision Without Published Opinion\nAffirmed.\n", "ocr": false, "opinion_id": 2465060 } ]

[ "2005 OK CR 6", "108 P.3d 1052" ]

[ { "author_str": "Lumpkin", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 5420, "opinion_text": "\n108 P.3d 1052 (2004)\n2005 OK CR 6\nJimmie Ray SLAUGHTER, Appellant\nv.\nSTATE of Oklahoma, Appellee.\nNo. PCD-2005-77.\nCourt of Criminal Appeals of Oklahoma.\nMarch 10, 2005.\n*1053 Steven M. Presson, Robert W. Jackson, Jackson & Presson, Norman, OK, attorneys for petitioner on appeal.\nSeth S. Branham, Assistant Attorney General, Oklahoma City, OK, attorney for the State on appeal.\n\nOPINION DENYING THIRD APPLICATION FOR POST-CONVICTION AND OTHER RELIEF\nLUMPKIN, V.P.J.\n¶ 1 Petitioner Jimmie Ray Slaughter was convicted of two counts of First Degree Murder in the District Court of Oklahoma County, Case Number CF-1992-82. He was sentenced to death.[1] Petitioner appealed to this Court in Case No. F-1994-1312. We affirmed his convictions and sentences. Slaughter v. State, 1997 OK CR 78, 950 P.2d 839. Rehearing was denied on February 23, 1998. The United States Supreme Court denied certiorari review on October 5, 1998. Slaughter v. Oklahoma, 525 U.S. 886, 119 S. Ct. 199, 142 L. Ed. 2d 163 (1998).\n¶ 2 Petitioner filed his first post-conviction application, but we denied relief. Slaughter v. State, 1998 OK CR 63, 969 P.2d 990. The Federal District Court and 10th Circuit Court of Appeals denied habeas relief, and the U.S. Supreme Court denied certiorari. Slaughter v. Mullin, 541 U.S. 947, 124 S. Ct. 1681, 158 L. Ed. 2d 374 (2004).\n¶ 3 In March of 2004, Petitioner filed his second application for post-conviction relief. We denied relief in January of 2005. Slaughter v. State, 2005 OK CR 2, 105 P.3d 832.[2] Petitioner then filed this, his third application for post-conviction relief, on January 27, 2005, raising essentially the same issues raised in his second application for post-conviction relief.\n*1054 ¶ 4 As we have repeatedly stated in our opinions, Oklahoma's Post-Conviction Procedure Act is not designed or intended to provide applicants repeated appeals of issues that have previously been raised on appeal or could have been raised but were not.[3] Our focus is limited to outcome determinative errors and factual innocence claims. See 22 O.S.2001, § 1089(C)(2).\n¶ 5 Nevertheless, a repeating theme in Petitioner's third post-conviction application concerns the somewhat conspiratorial allegation that this Court has relied on procedural bars and has not conducted \"merits review\" of the claims Petitioner has raised on appeal.[4] Petitioner steadfastly maintains he has made a \"clear and convincing showing of actual innocence.\" However, we continue to find his statements regarding the strength of those innocence claims to be exaggerated and insufficient to merit post-conviction relief.\n¶ 6 Be that as it may, this Court's rules and cases do not impede the raising of factual innocence claims at any stage of an appeal. We fully recognize innocence claims are the Post-Conviction Procedure Act's foundation. But in this case we continue to find the evidence presented at trial and on appeal does not support or make a clear and convincing showing of factual innocence.\n¶ 7 In proposition one, Petitioner claims \"newly discovered\" DNA evidence, \"new developments\" in the field of comparative bullet lead analysis, and \"new evidence\" of brain fingerprinting demonstrate (1) he is not guilty of murder, (2) no reasonable fact finder could have convicted him of the crimes, and (3) there is now insufficient evidence to support the convictions. We note these claims were previously raised in Petitioner's second post-conviction application.\n¶ 8 Regarding brain fingerprinting, we disposed of that claim in our second post-conviction opinion by noting Petitioner never provided the \"comprehensive report\" regarding the nature of the brain fingerprinting test conducted, the manner in which it was administered, and the results.[5] We thus found the claim was not backed up with sufficient information for us to act upon.\n¶ 9 Nothing has changed. The instant post-conviction application omits the same information. Thus, we reject the assertion that brain fingerprinting \"evidence\" (which he has yet to provide) is entitled to any weight or may have somehow tipped the scales if it had been presented to his jury.[6]\n¶ 10 Regarding the \"recent DNA testing,\" we noted in our second post-conviction opinion that Petitioner had failed to timely present supporting documentation regarding that claim, that DNA testing could have been raised as error in prior appeals but was not,[7] and that the so-called \"Vicki Mosley\" hair was \"only one circumstantial, theoretical piece of the puzzle\" in a strong evidentiary case of guilt. That being so, we found the post-conviction record lacked sufficient evidence to support a conclusion of factual innocence.\n¶ 11 Again, nothing has changed. Petitioner raises the same issue and makes the same arguments regarding the crime scene hair.[8]\n*1055 ¶ 12 We acknowledge Miotyping Technologies's lab report indicates Ms. Mosley was excluded as the source of one crime scene hair through mitochondrial DNA testing. But this evidence is far from exculpatory.[9] The trial testimony was that the hair was consistent with Ms. Mosley's hair, not that it was in fact Ms. Mosley's hair. Petitioner's complaint is with the State's arguments and inferences drawn from the evidence, not the evidence itself.\n¶ 13 Regarding comparative bullet analysis, our second post-conviction opinion noted the issue was untimely as the research behind this claim was published in July of 2002, nearly two years before Petitioner's instant filing.[10]\n¶ 14 Moreover, while it appears comparative bullet lead analysis is coming under fire from some in the scientific community, the bullets fragments here were not identified by that method only. Prior to the lead analysis testimony, the State's firearms experts testified the bullets found at the crime scene were .22 caliber long rifle subsonic bullets with hollow points and no copper wash. One expert testified there were only two brands of that bullet marketed in the U.S. during the relevant time period, the Eley brand from England and RWS made in Germany. Petitioner was in possession of both brands, including the rare Eley brand.[11]\n¶ 15 Thus the distinctiveness of these particular bullets is strong evidence of guilt, even if the unobjected-to (and somewhat invited) lead analysis testimony was flawed. This proposition does not warrant post-conviction relief.\n¶ 16 In proposition two, Petitioner claims ineffective assistance of his direct appeal counsel resulted in Petitioner's DNA claim being delayed. He claims his counsel should have had the \"single hair used to convict\" Petitioner DNA tested by mitochondrial procedures during the pendency of his direct appeal.\n¶ 17 This claim fails for two reasons. First, we have already found the testing done on the hair, which showed it was not Vicki Mosley's hair, was far from exculpatory. The evidence of guilt remains strong, even without this hair.\n¶ 18 Secondly, Petitioner notes he was not considered a candidate for DNA testing because the DNA results alone would not have been exculpatory. Petitioner claims he did not become a viable candidate for the testing until after brain fingerprinting tests were conducted. That being so, his direct appeal counsel cannot be said to have been ineffective for failing to obtain DNA testing, when those efforts would have been fruitless and the results alone would not be exculpatory.\n¶ 19 Petitioner has thus failed to show errors by direct appeal counsel that were so serious as to deprive him of effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Furthermore, we find no miscarriage of justice or substantial violation of a constitutional or statutory right. 20 O.S.2001, § 3001.1.\n¶ 20 In proposition three, Petitioner raises the familiar claim that Oklahoma's post-conviction statute, 22 O.S.Supp.2004, § 1089, is unconstitutional under the state and federal constitutions because it prohibits \"merits review\" of \"actual innocence\" evidence, thereby depriving inmates of due process of law and resulting in cruel and unusual punishment. Then, in proposition four, Petitioner takes issue with Rule 9.7(G)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2004), which requires a Petitioner to file subsequent post-conviction *1056 applications \"within sixty (60) days from the date the previously unavailable legal or factual basis serving as the basis for a new issue is announced or discovered.\" Petitioner claims this rule is unconstitutional because, again, it bars review of his actual innocence claims.\n¶ 21 However, we reject both propositions, as we find no actual innocence claims in Petitioner's post-conviction filings that have been barred from review. Given the prosecution's accomplice and alternative theories, along with the strong evidence of guilt admitted at trial, it is a gross overstatement to claim that the DNA results from one crime scene hair, the conceivable flaws in comparative bullet lead analysis, and uncorroborated and likely inadmissible brain fingerprinting tests rise to the level of actual innocence claims.[12]\n\nDECISION\n¶ 22 After carefully reviewing Petitioner's third application for post-conviction relief, motion for evidentiary hearing, motion for discovery, and motion for stay of execution, we find relief is not warranted, and therefore said application and motions are HEREBY DENIED.\nCHAPEL, P.J., and JOHNSON, J.,: concur.\nNOTES\n[1] Petitioner was also convicted of five counts of perjury.\n[2] Petitioner's execution date is currently set for March 15, 2005. A clemency hearing was held on February 15, 2005, and Petitioner was denied relief.\n[3] We do not repeat those cases here, as the principles are sufficiently set forth in the opinion rendered just last month in Petitioner's second application for post-conviction relief.\n[4] This argument loses strength when considering Petitioner's conviction by a jury of his peers and his various appellate claims that have been rejected seven times by four separate courts.\n[5] We also found the issue could have been previously raised in the direct appeal and insufficient evidence to support a conclusion that brain fingerprinting, based solely upon the MERMER effect, would survive a Daubert analysis.\n[6] Moreover, the significance of the uncorroborated brain fingerprinting results has been overstated, as the prosecution also theorized that Petitioner acted with an accomplice.\n[7] Petitioner now admits this type of testing became available in 1996.\n[8] Petitioner argues this hair, a single strand found on a sheet at the crime scene, was used extensively to connect him to the murders. He points to the prosecutor's closing arguments speculating Ms. Mosley, Petitioner's then co-worker, was the source of that hair. (The State's theory was that Petitioner or an accomplice planted or left the hair at the scene. A State expert found the crime scene hair and Ms. Mosley's hair to be microscopically similar.) But because hair comparison evidence has been discredited and Ms. Mosley has been excluded as the donor as per DNA testing, Petitioner claims the strength of the evidence has been compromised.\n[9] Petitioner conveniently ignores other strong evidence admitted at trial. See, e.g. Slaughter, 1997 OK CR 78, ¶¶ 147-159, 950 P.2d at 876-879. This would include Cecilia Johnson's actions in mailing Negroid hairs to Petitioner for purpose of planting at the crime scene.\n[10] Rule 9.7(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2004).\n[11] Eley's bullets comprised .0125-.0116% of the ammunition sold in the U.S. in 1990-91. The RWS bullets were excluded as the bullets found at the crime scene.\n[12] Moreover, we find the sixty days provided in Rule 9.7(G) to be a reasonable time period. The rule addresses post-conviction applicants filing subsequent applications. It is wholly reasonable to require these subsequent applicants to notify the Court of \"previously unavailable legal or factual\" grounds \"serving as the basis for a new issue\" within sixty days that they are announced or discovered. Once a timely application is filed, an extension of time to further develop the application with added materials pertaining to the timely raised issue can be submitted to the Court. The Court will then determine the merits of the need for additional time on a case-by-case basis.\n\n", "ocr": false, "opinion_id": 2626349 } ]

[ "216 F. App'x 419" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": 1, "download_url": "http://www.ca5.uscourts.gov/opinions\\unpub\\05/05-41600.0.wpd.pdf", "author_id": null, "opinion_text": " United States Court of Appeals\n Fifth Circuit\n F I L E D\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT February 7, 2007\n\n Charles R. Fulbruge III\n Clerk\n No. 05-41600\n Conference Calendar\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee,\n\nversus\n\nOSBALDO ENRIQUEZ-MORALES,\n\n Defendant-Appellant.\n\n --------------------\n Appeal from the United States District Court\n for the Southern District of Texas\n USDC No. 5:05-CR-345-ALL\n --------------------\n\nBefore REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.\n\nPER CURIAM:*\n\n Appealing the Judgment in a Criminal Case, Osbaldo Enriquez-\n\nMorales raises arguments that are foreclosed by Almendarez-Torres\n\nv. United States, 523 U.S. 224, 235 (1998), which held that\n\n8 U.S.C. § 1326(b)(2) is a penalty provision and not a separate\n\ncriminal offense. The Government’s motion for summary affirmance\n\nis GRANTED, and the judgment of the district court is AFFIRMED.\n\n\n\n\n *\n Pursuant to 5TH CIR. R. 47.5, the court has determined that\nthis opinion should not be published and is not precedent except\nunder the limited circumstances set forth in 5TH CIR. R. 47.5.4.\n\f", "ocr": false, "opinion_id": 47993 } ]

[ "287 F.2d 393" ]