ALEA Mid- and Post-Train Resources
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Various Q&A, abstractive/extractive summarization, classification, drafting, prediction, and conversational tasks
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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-1_09-cv-05968/USCOURTS-cand-1_09-cv-05968-1/pdf.json | 220 | Foreclosure | 28:1331 Fed. Question | Stephen C. Ruehmann (167533)
LAW OFFICES OF STEPHEN C. RUEHMANN
2 770 L Street, Suite 950
Sacramento, Ca. 95814
3 (916) 449-3939
4 LAW OFFICES OF MARC A. FISHER
5 Marc A. Fisher, Esq. (47794)
9580 Oak:Avenue Parkway, #15
6 Folsom, CA 95630
7 (916) 988-8001
Case No.: 3:09-CV-05968
STIPULATION and ORDER
8 Attorneys for Plaintiffs
9 ANILECH SHARMA AND PARMA SHARMA
lO
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UNITES STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
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vs. )
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PROVIDENT FUNDING ASSOCIATES, )
18 L.P., a California limited partnership; )
19 ~~:i~I~~ ~~~~~~~b )
20 REGISTRATION SYSTEMS, INC., a ~
Delaware corporation; MAX DEFAULT
SERVICES CORPORATION, a California)
corporation; and DOES 1 to 100, inclusive, »
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ANILECH SHARMA AND PARMA
14 SHARMA,
15 Plaintiffs,
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Defendants.
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Chief Hon. Vaughn R. Walker
ACTION FILED: December 21,2009
- 1 -
STIPULATION
Case 1:09-cv-05968-NJV Document 16 Filed 03/29/10 Page 1 of 2
2
- 2 -
STIPULA nON
The undersigned Plaintiffs and Defendants hereby request and stipulate to continue and reset the
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Case Management Conference, currently set for April 1,2010 to a date to be determined by the
4 Court.
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STIPULATED A.~D AGREED:
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Dated: March 26, 2010
9 Stephen C. Ruehmann
Attorney for Plaintiffs
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Dated: March1~ 2010 14 Darren J. Devlin
Attorney for Defendants Provident Funding
Associates, L.P.; Mortgage Electronic Registration Systems, Inc.; Max Default Services Corp.
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19 ORDER
20 IT IS HEREBY ORDERED that the Case Management Conference set for April 1, 2010 is
21 vacated and reset to ,2010.
------
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IT IS SO ORDERED.
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28 Hon. Vaughn R. Walker
May 13
at 3:30pm. The parties are directed to file a joint
case management statement no later than
May 6, 2010.
U
NITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
IT IS SO ORDERED
Judge Vaughn R Walker
Case 1:09-cv-05968-NJV Document 16 Filed 03/29/10 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-alsd-2_10-cv-00168/USCOURTS-alsd-2_10-cv-00168-2/pdf.json | 440 | Other Civil Rights | 28:1983 Civil Rights | IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
TRACY JACKSON, :
:
Plaintiff, :
:
vs. : CIVIL ACTION 10-00168-WS-B
:
MUNICIPALITY OF SELMA, et al., :
:
Defendants. :
ORDER
After due and proper consideration of all portions of this file deemed relevant to the issues
raised, and there having been no objections filed, the Report and Recommendation of the Magistrate
Judge made under 28 U.S.C. § 636(b)(1)(B) and dated May 3, 2010, is ADOPTED as the opinion
of this Court.
DONE and ORDERED this the 24th day of May, 2010.
s/WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
Case 2:10-cv-00168-WS-B Document 12 Filed 05/24/10 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-casd-3_14-cv-01794/USCOURTS-casd-3_14-cv-01794-2/pdf.json | 550 | Prisoner - Civil Rights (U.S. defendant) | 42:1983pr Prisoner Civil Rights | 1
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
JONATHAN AYALA,
CDCR #F-25736,
Civil
No.
14cv1794 GPC (JLB)
Plaintiff, ORDER DENYING MOTION TO
APPOINT COUNSEL
[ECF No. 16]
vs.
W. FERMON; W.L. MONTGOMERY,
Defendants.
On May 7, 2015, Plaintiff Jonathan Ayala (“Plaintiff”), proceeding pro se, filed
a letter noticing his change of address. (ECF No. 16.) In that letter he requests that he “be
permitted by the honorable Judge to obtaine [sic] Assistance ofCounsel.” (Id.) TheCourt
construes this as a motion for appointment of counsel. This is a civil rights action where
Plaintiff alleges violations of 42 U.S.C. § 1983 based on allegations that Defendant W.
Fermon, a prison guard, shot Plaintiff. (ECF No. 8.) Generally, litigants have no right to
counsel in civil actions. See Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981).
However, the Court may appoint counsel for indigent civil litigants pursuant to 28 U.S.C.
-1- 14cv1794 GPC (JLB)
Case 3:14-cv-01794-GPC-JLB Document 17 Filed 05/08/15 PageID.<pageID> Page 1 of 2
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§ 1915(e)(1) in “exceptional circumstances.” Agyeman v. Corrs. Corp. of Am., 390 F.3d
1101, 1103 (9th Cir. 2004), cert. denied sub nom. Gerber v. Agyeman, 545 U.S. 1128
(2005). In determining whether “exceptional circumstances” exist, the Court considers
“the likelihood of success on the merits” as well as “the ability of the petitioner to
articulate his claims pro se in light of the complexity of the legal issues involved.”
Wilborn v. Escalderson, 789 F.2d 1328, 1331 (9th Cir.1986) (citations and internal
quotation marks omitted). “Neither of these factors is dispositive and both must be
viewed together before reaching a decision on request of counsel under section 1915(d).”
Id.
Plaintiff states that he “will be admitted long term in the system of Department of
State Hospitals” to “receive extensive long term treatment for mental state health and
pain due to trauma injury.” (ECF No. 16.) While Plaintiff will allegedly be receiving
mental health treatment, the clarity of Plaintiff’s letter and complaint appearsto indicate
that he can articulate his claims pro se. (See id.; ECF No. 8) Additionally, a review of
Plaintiff’s complaint does not indicate that the legal issues involved are complex. (See
ECF No. 8.) Accordingly, the Court findsthat, based on the record before it, there do not
exist exceptional circumstances that warrant the appointment of counsel and thus
DENIES without prejudice Plaintiff’s motion for appointment of counsel. (ECF No. 16.)
IT IS SO ORDERED.
DATED: May 8, 2015
HON. GONZALO P. CURIEL
United States District Judge
-2- 14cv1794 GPC (JLB)
Case 3:14-cv-01794-GPC-JLB Document 17 Filed 05/08/15 PageID.<pageID> Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_14-cv-03945/USCOURTS-cand-3_14-cv-03945-2/pdf.json | 490 | Cable/ Satellite TV | 47:553 Communications Act of 1994 | United States District Court
For the Northern District of California
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
J&J SPORTS PRODUCTIONS INC.,
Plaintiff,
v.
RICHMOND APANDE, ET AL.,
Defendants. /
No. C14-03945 CRB
ORDER RE: PROPOSED ORDERS
On May 22, 2015, the Court held a case management conference in this case, and
defendants did not appear. See Minutes (dkt. 36). Defendant Carol Apande has now filed a
number of Proposed Orders, asking that: (1) she be permitted to call into subsequent case
management conferences; (2) the parties be ordered to “share all supporting documents
relating to the case”; and (3) a new case management conference be scheduled for
Wednesday, July 22, 2015 at 10:00 a.m. See Proposed Orders (dkt. 37). This Court holds
case management conferences at 8:30 a.m. on Fridays. See Standing Order. Accordingly,
the Court SETS a case management conference in this case for Friday, July 24, 2015 at 8:30
a.m. Defendant may appear by telephone at this hearing but must seek further leave to
appear by telephone at any further hearings. Defendant need not call in; the Court will call
Defendant at the appointed time. The Court will not rule on discovery matters in advance of
//
Case 3:14-cv-03945-CRB Document 38 Filed 06/10/15 Page 1 of 2
United States District Court
For the Northern District of California
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the hearing.
IT IS SO ORDERED.
Dated: June 10, 2015
CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE
Case 3:14-cv-03945-CRB Document 38 Filed 06/10/15 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_15-cv-01208/USCOURTS-cand-3_15-cv-01208-2/pdf.json | 470 | Civil (Rico) | 18:1962 Racketeering (RICO) Act | 1
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
JOSEPH CREAM, et al.,
Plaintiffs,
v.
NORTHERN LEASING SYSTEMS, INC.,
et al.,
Defendants.
Case No. 15-cv-01208-MEJ
ORDER DEFERRING RULING ON
MOTION TO DISMISS AND
REQUESTING AUTHENTICATION OF
DOCUMENTS
Re: Dkt. No. 16
INTRODUCTION
Plaintiffs Joseph Cream, Jr., Amanda Cream, Cathy Cream, and Fernando Carillo
(“Plaintiffs”) bring this action against Defendant Northern Leasing Systems, Inc. and related
Defendants,1alleging that they fraudulently induce small business owners like Plaintiffs to lease
credit card machines under undisclosed and onerous terms. First Am. Compl. (“FAC”) at 1, Dkt.
No. 13. Defendants Northern Leasing Systems, Inc., Lease Finance Group, LLC, CIT Financial
USA, Inc., Lease Source, Inc. and Jay Cohen (collectively, “Defendants”) move to dismiss the
FAC pursuant to Federal Rule of Procedure 12(b)(3) on the ground that the action is improperly
venued in this Court, as the leases referenced in the FAC contain forum selection clauses requiring
that actions be filed in New York (and one lease requires filing in Illinois). Dkt. No. 16 (“Mot.”).
Plaintiffs filed an Opposition (Dkt. No. 23), and Defendants filed a Reply (Dkt. No. 28). The
Court finds this matter suitable for disposition without oral argument and VACATES the hearing.
See Fed. R. Civ. P. 78(b); Civil L.R. 7-1(b). Having considered the parties’ positions, relevant
legal authority, and the record in this case, the Court DEFERS ruling on Defendants’ Motion at
this time for the reasons discussed below.
1
Plaintiffs named as Defendants Northern Leasing Systems, Inc; Lease Finance Group LLC; EVO
Merchant Services, LLC; EVO Payments International, LLC; Allen & Associates; Lease Source
Inc.; Lease Source-LSI, LLC; CIT Financial USA, Inc; Jay Cohen; Peter S Cohen; Ron G
Arrington; and Does 1-100.
Case 3:15-cv-01208-MEJ Document 37 Filed 06/26/15 Page 1 of 3
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United States District Court
Northern District of California
DISCUSSION
Defendants argue that this action must be dismissed or transferred because each of the
leases referenced in Plaintiffs’ FAC require that actions relating to those agreements be filed in
jurisdictions other than California. Mot. at 1. Defendants thus request that the Court take judicial
notice of 14 lease agreements, which they assert are the same agreements specifically referenced
by number in Plaintiffs’ FAC. Reply at 1; Req. for Judicial Notice, Dkt. No. 16-4; see also id.,
Exs. A-N. Plaintiffs object, arguing that judicial notice is not appropriate for these documents
under Federal Rule of Evidence 201, which permits judicial notice only of documents capable of
immediate and accurate determination by resort to easily accessible sources of indisputable
accuracy. See Dkt. No. 23-1. Plaintiffs also challenge the validity of these agreements, alleging
that they did not receive a copy of their agreements and that they were unaware of the existence of
the additional pages or of the onerous terms contained in the agreements. FAC at 6-9.
While the Court agrees that the documents are not judicially noticeable, the Court may
nevertheless consider them under certain circumstances. First, while generally a court may not
look beyond the four corners of a complaint in ruling on a Rule 12(b) motion, there is an exception
for documents incorporated into the complaint by reference. See Swartz v. KPMG LLP, 476 F.3d
756, 763 (9th Cir. 2007) (per curiam); Lee v. City of L.A., 250 F.3d 668, 688-89 (9th Cir. 2001).
Under the doctrine of incorporation by reference, the Court may consider documents whose
contents are alleged in the complaint, provided the complaint “necessarily relies” on the
documents or contents thereof, the document’s authenticity is uncontested, and the documents’
relevance is uncontested. Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010);
United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (“Even if a document is not attached to
a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively
to the document or the document forms the basis of the plaintiff’s claim.”). “The defendant may
offer such a document, and the district court may treat such a document as part of the complaint,
and thus may assume that its contents are true for purposes of a motion to dismiss under Rule
12(b)(6).” Id. Although the pending Motion is not made under Rule 12(b)(6), the same principles
apply, as Plaintiffs’ FAC refers to the lease agreements but does not include the actual documents.
Case 3:15-cv-01208-MEJ Document 37 Filed 06/26/15 Page 2 of 3
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United States District Court
Northern District of California
As such, Defendants should be permitted to offer these documents for the Court’s consideration.
Second, Courts regularly accept such evidence in determining motions to transfer based on
forum selection clauses. See, e.g., T & M Solar & Air Conditioning, Inc. v. Lennox Int’l Inc., __
F. Supp. 3d __, 2015 WL 1289497, at *3-5 (N.D. Cal. Mar. 20, 2015); Monastiero v. appMobi,
Inc., 2014 WL 1991564, at *1 (N.D. Cal. May 15, 2014); Bayol v. Zipcar, Inc., 2014 WL
4793935, at *1 (N.D. Cal. Sept. 25, 2014) (all reviewing and considering the agreements that
contained the allegedly applicable forum-selection clause).
That said, Defendants submitted the lease agreements only through a request for judicial
notice, with no affidavit or declaration authenticating these documents. Defendants state that such
declarations “appear[] to be an unnecessary waste of judicial resources and time.” Reply at 1.
Nonetheless, in this District, Civil Local Rule 7-5 requires that factual contentions made in
support of any motion “must be supported by affidavit or declaration” and “evidentiary matters
must be appropriately authenticated by an affidavit or declaration.” Accordingly, Defendants must
properly authenticate these lease agreements to support their Motion.
CONCLUSION
In light of the foregoing, the Court currently DEFERS ruling on Defendants’ Motion to
Dismiss. To support their Motion, Defendants must file the lease agreements as properly
authenticated documents in accordance with Local Rule 7-5 by July 10, 2015. Failure to timely
file the authenticated documents will result in denial of Defendants’ Motion without prejudice.
Following Defendants’ filing of such authenticated documents, Plaintiffs will have one week (i.e.,
by July 17, 2015) to assert any objections to the Defendants’ evidence before the Court makes its
ruling on Defendants’ Motion.
IT IS SO ORDERED.
Dated: June 26, 2015
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge
Case 3:15-cv-01208-MEJ Document 37 Filed 06/26/15 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_08-cv-00068/USCOURTS-caed-1_08-cv-00068-0/pdf.json | 530 | Prisoner Petitions - Habeas Corpus | 28:2254 Petition for Writ of Habeas Corpus (State) | 1
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
RICHARD WALTON,
Petitioner, No. CIV S-08-0001 GEB DAD P
vs.
DERRAL G. ADAMS, et al.,
Respondents. ORDER
/
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma
pauperis. In his application, petitioner challenges a guilty finding on a rule violation charge
against him issued at California State Prison - Corcoran in Kings County. Kings County is part
of the Fresno Division of the United States District Court for the Eastern District of California.
See Local Rule 3-120(d).
Pursuant to Local Rule 3-120(f), a civil action which has not been commenced in
the proper division of a court may, on the court’s own motion, be transferred to the proper
division of the court. Therefore, this action will be transferred to the Fresno Division of the
court. This court will not rule on petitioner’s request to proceed in forma pauperis.
/////
Case 1:08-cv-00068-WQH -LSP Document 4 Filed 01/14/08 Page 1 of 2
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Good cause appearing, IT IS HEREBY ORDERED that:
1. This court has not ruled on petitioner’s request to proceed in forma pauperis;
2. This action is transferred to the United States District Court for the Eastern
District of California sitting in Fresno; and
3. All future filings shall reference the new Fresno case number assigned and
shall be filed at:
United States District Court
Eastern District of California
2500 Tulare Street
Fresno, CA 93721
DATED: January 11, 2008.
DAD:cm/4
walt0001.109
Case 1:08-cv-00068-WQH -LSP Document 4 Filed 01/14/08 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-alsd-1_13-cv-00258/USCOURTS-alsd-1_13-cv-00258-5/pdf.json | 422 | Bankruptcy Appeals Rule 28 USC 158 | 28:0158 Notice of Appeal re Bankruptcy Matter (BA | IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
In Re: )
)
RICHARD D. HORNE and )
PATRICIA NELSON HORNE, )
)
Debtors, )
)
MARY BETH MANTIPLY, )
) CIVIL ACTION NO. 13-00258-CB-B
Plaintiff/Appellant, )
)
v. )
)
PATRICIA NELSON HORNE, )
as Personal Representative of the )
Estate of RICHARD D. HORNE and )
PATRICIA NELSON HORNE, individually, )
)
Defendants/Appellees. )
JUDGMENT
Pursuant to separate order entered this date granting the Motion for the
Assessment of Additional Appellate Attorneys’ Fees, it is hereby ORDERED,
ADJUDGED and DECREED that the Defendants/Appellees, Patricia Nelson Horne, as
Personal Representative of the Estate of Richard D. Horne, and Patricia Nelson
Horne, individually, recover of the Plaintiff/Appellant, Mary Beth Mantiply,
additional appellate attorney’s fees in the amount of fourteen thousand nine
hundred eighteen and 60/100ths ($14,918.60) dollars.1
DONE this the 19th day of January, 2016.
s/Charles R. Butler, Jr.
Senior United States District Judge
1 This amount is in addition to the attorney’s fee judgment dated January 8,
2014 in the amount of $34,551.28.
Case 1:13-cv-00258-CB-B Document 98 Filed 01/20/16 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-5_07-cv-03011/USCOURTS-cand-5_07-cv-03011-3/pdf.json | 890 | Other Statutory Actions | 28:1361 Petition for Writ of Mandamus | United States District Court
For the Northern District of California
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*E-FILED 11/13/07*
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
RICK BREWSTER, et al.,
Plaintiffs,
v.
MICHAEL CHERTOFF, et al.,
Defendants. /
NO. C 07-03011 RS
ORDER DENYING LEAVE TO
CONDUCT DISCOVERY,
WITHOUT PREJUDICE
On October 16, 2007, the Court issued an order clarifying that discovery in this action is not
presently open, but providing plaintiffs an opportunity to file a brief setting forth any reasons they
believe discovery should be permitted prior to hearing the cross-motions for summary judgment that
the Court directed the parties to file in its order of September 19, 2007. Plaintiffs have responded
that the discovery they are seeking is relevant to the issues presented in this action and have
articulated reasons they believe that to be so. Plaintiffs have not, however, identified any reason that
this case differs from numerous other cases resolved in this District on summary judgment without
prior discovery proceedings. See, e.g., Dong v. Chertoff, 2007 WL 2601107 (N.D. Cal. Sept. 6,
2007) (holding delay in processing I-485 application of close to two years unreasonable as a matter
of law); Gelder v. Chertoff, 2007 WL 902382 at *3 (N.D. Cal. March 22, 2007) (holding that a more
than two year delay in processing unreasonable as a matter of law); Clayton v. Chertoff, 2007 WL
2904049 at * 6 (N.D. Cal. Oct. 1, 2007) (recognizing that courts within the district have adopted two
years as an unreasonable amount of time.).
Case 5:07-cv-03011-RS Document 25 Filed 11/13/07 Page 1 of 3
United States District Court
For the Northern District of California
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ORDER DENYING LEAVE TO CONDUCT DISCOVERY
C 07-03011 RS
2
Under the circumstances, plaintiffs have not shown that it would be appropriate to permit
discovery at this juncture. This ruling is without prejudice should it subsequently appear that
discovery is necessary to resolve the issues presented by the parties’ cross-motions for summary
judgment.
IT IS SO ORDERED.
Dated: November 13, 2007
RICHARD SEEBORG
United States Magistrate Judge
Case 5:07-cv-03011-RS Document 25 Filed 11/13/07 Page 2 of 3
United States District Court
For the Northern District of California
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ORDER DENYING LEAVE TO CONDUCT DISCOVERY
C 07-03011 RS
3
THIS IS TO CERTIFY THAT NOTICE OF THIS ORDER HAS BEEN GIVEN TO:
Ila Casy Deiss [email protected], [email protected]
Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the Court's CM/ECF program.
AND A COPY OF THIS ORDER WAS MAILED TO:
Rick G Brewster
1513 Flamingo Way
Sunnyvale, CA 94087
Daomin Yang
1513 Flamingo Way
Sunnyale, CA 94087
Dated: 11/13/07 Chambers of Judge Richard Seeborg
By: /s/ BAK
Case 5:07-cv-03011-RS Document 25 Filed 11/13/07 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-casd-3_10-cv-00419/USCOURTS-casd-3_10-cv-00419-4/pdf.json | 820 | Copyright | 17:101 Copyright Infringement | 1
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
BRIGHTON COLLECTIBLES, INC.,
Plaintiff,
CASE NO. 10-CV-419-GPC (WVG)
ORDER
(1) DENYING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT ON TRADE DRESS;
(2) GRANTING IN PART
DEFENDANTS’ MOTION TO
EXCLUDE DR. WUNDERLICH’S
EXPERT TESTIMONY; AND
(3) GRANTING IN PART
DEFENDANTS’ MOTION TO
EXCLUDE DR. FRAZIER’S EXPERT
TESTIMONY; AND
(4) DENYING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT ON LOST PROFITS
[Doc. Nos. 144, 163, 184, 187, & 225]
vs.
RK TEXAS LEATHER MFG.; K & L
IMPORTS, INC.; et al.,
Defendants;
and related cross claims.
Plaintiff Brighton Collectibles, Inc. ("Brighton") manufactures and sells women's
fashion accessories, including handbags. Brighton filed this copyright infringement action
against Defendants RK Texas Leather Manufacturing, Inc., Richard Ohr, K & L Import,
Inc., NHW, Inc., YK Trading, Inc., JC NY, Joy Max Trading Inc., and AIF Corporation
("Defendants"). The Court heard oral argument on December 20, 2012. For the reasons
stated below, the Court denies both summary judgment motions, and grants in part and
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denies in part the motions to exclude two of Brighton’s expert witnesses.1
I. Defendants' Motion for Summary Adjudication of Trade Dress Claim
The Lanham Act, 15 U.S.C. § 1125(a), “gives a producer a cause of action for the
use by any person of ‘any word, term, name, symbol, or device, or any combination thereof
. . . which . . . is likely to cause confusion . . . as to the origin, sponsorship, or approval of
his or her goods. . . .’” Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 209
(2000) (children's clothing). The Lanham Act “has been held to embrace not just word
marks, such as ‘Nike,’ and symbol marks, such as Nike’s ‘swoosh’ symbol, but also ‘trade
dress’ – a category that originally including only the packaging, or ‘dressing,’ of a product,
but in recent years has been expanded . . . to encompass the design of a product.” Id.
In its second claim, Brighton alleges that Defendants infringed its distinctive trade
dress in the “Brighton” line of fashion accessories. Brighton describes its trade dress as “a
sculpted, silver heart, used in conjunction with any two or more of the following: (i)
leather embossed to resemble exotic materials such as crocodile, alligator, snake and lizard;
(ii) filigreed, silver ornamentation; (iii) a silver heart dangling from a leather strap; (iv)
cowhide or brocaded fabrics; and/or (v) additional sculpted silver hearts.” Second
Amended Compl. ¶ 36.
To prove trade dress infringement, plaintiff must prove “(1) that its claimed trade
dress is nonfunctional; (2) that its claimed trade dress serves as a source-identifying role
either because it is inherently distinctive or has acquired secondary meaning; and (3) that
the defendant's product . . . creates a likelihood of consumer confusion.” Clicks Billiards,
Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1258 (9th Cir. 2001) (footnote omitted).2
Defendants seek summary adjudication on the first and second elements. Summary
judgment is appropriate when the “pleadings, depositions, answers to interrogatories, and
The Court considered all of the arguments presented, even those not discussed in this 1
Order. To the extent that the parties sought relief that is not expressly granted in this Order,
the Court denies the motion.
As to the second element, the Supreme Court held that a product’s design cannot be 2
“inherently distinctive,” therefore, plaintiff must prove its trade dress has acquired secondary
meaning. Wal-Mart Stores, 529 U.S. at 216; Clicks, 251 F.3d 1258 n.1.
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admissions on file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A. Nonfunctional Requirement and Aesthetic Functionality Doctrine
The first element of a trade dress claim is that the product design is “not functional.”
15 U.S.C. § 1125(a)(3).
Over the years, the Supreme Court has articulated the functionality standard in
several ways. In 1982, the Supreme Court held that “a product feature is functional if it is
essential to the use or purpose of the article or if it affects the cost or quality of the article.”
Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 850 n.10 (1982). This is known as the
traditional or utilitarian test. Au-Tomotive Gold, Inc. v. Volkswagen of Am., Inc., 457 F.3d
1062, 1067 (9th Cir. 2006) (“‘utilitarian’ functionality . . . relates to the performance of the
product in its intended purpose”); Clicks, 251 F.3d at 1260 (“functionality denotes utility”).
In 1995, the Court announced another test and explained that a feature is functional
if “exclusive use of the feature would put competitors at a significant non-reputationrelated disadvantage.” Qualitex Co. v. Jacobson Prods. Co., Inc., 514 U.S. 159, 165
(1995). Under this “competition theory of functionality,” courts consider whether trade
dress protection would leave a “variety of comparable alternative features that competitors
may use to compete in the market.” Maker’s Mark Distillery, Inc. v. Diageo N. Am., Inc.,
679 F.3d 410, 418 (6th Cir. 2012). “If the feature is not a likely impediment to market
competition, then the feature is nonfunctional.” Id.; Disc Golf Ass’n v. Champion Discs,
Inc., 158 F.3d 1002, 1008 (9th Cir. 1998) (considering whether “commercially feasible
alternative configurations exist”) (quotations and emphasis omitted).
In 2001, the Supreme Court held that a plaintiff can prove a feature is not functional
“by showing that it is merely an ornamental, incidental, or arbitrary aspect” of the product.
TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 30 (2001).
In the Ninth Circuit, when the feature also “contributes to the consumer appeal and
saleability of the product,” the “aesthetic functionality” doctrine “retains some limited
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viability.” Au-Tomotive Gold, 457 F.3d at 1070; Vuitton et fil S.A. v. J. Young Enters., Inc.,
644 F.2d 769 (9th Cir. 1981). In that situation, the Ninth Circuit first applies the utilitarian
test (supplemented by additional factors) before turning to the competition test. AuTomotive Gold, 457 F.3d at 1072 & n.8 (citing Disc Golf, 158 F.3d at 1006-09).
Defendants invoke the aesthetic functionality doctrine. Pagliero v. Wallace China
Co., 198 F.2d 339 (9th Cir. 1952). They argue Brighton cannot meet its burden of proving
that its trade dress is not aesthetically functional because its eye-pleasing quality does not
identify the source of the handbags. Defendants contend customers buy Brighton’s
products simply because they are attractive. The elements are aesthetically functional
because “some people will simply wish to purchase a leather purse adorned with silver
hearts, regardless of who supplies it.” Br. at 18.
Defendants also rely on the competition theory of functionality. They argue that
protecting Brighton’s monopoly would significantly hinder competition because there are
virtually no other alternative designs. Defendants emphasize that Brighton is seeking to
prevent others from using a rudimentary shape (heart) and common fabrics (brocade,
leather, crocodile) that are basic elements of women’s fashion accessories. Granting
Brighton the exclusive right to use those characteristics “impoverishes other designers’
palettes.” Jay Franco & Sons, Inc. v. Franek, 615 F.3d 855, 860 (7th Cir. 2010).
The Court agrees with Brighton that summary judgment is not appropriate on this
record under any of the tests. “The issue of functionality has been consistently treated as a
question of fact.” Vuitton, 644 F.2d at 775. As with the luggage in the Vuitton case,
Brighton’s handbags “carry the same number of items, last just as long, and [are] just as
serviceable” without the trade dress features. Id. at 776-77. The source-identifying role is
discussed in more detail below but it is sufficient to note here that the “Brighton look” can
be “aesthetically pleasing and still play a source-identifying role.” Clicks, 251 F.3d at
1260. Turning to the competition theory, Brighton identified a wide-variety of designs
made by other manufacturers as well as by the Defendants that do not infringe even though
the handbags contain components of Brighton’s trade dress. Wesley Decl., Exs. 88-90;
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Opp. Br. at 17. Two sales representative testified that other manufacturers sell handbags
that do not copy the distinctive “Brighton look.” Wesley Decl., Ex. 105 (Bell Depo. at 19-
20, 51-52, 58, 66, 70, 82-83); id., Ex. 106 (Lombardi Depo. at 10-13, 48-49).
B. Source-Identifying Role
A trade dress must be “capable of distinguishing the [plaintiff’s] work from the
goods of others.” Kendall-Jackson Winery, Ltd. v. E. & J. Gallo Winery, 150 F.3d 1042,
1047 (9th Cir. 1998). Plaintiff has the burden of proving that the trade dress “serves a
source-identifying role” because it is either distinctive or has acquired a secondary
meaning. Clicks, 251 F.3d at 1258. Defendants charge that Brighton cannot establish this
element by either standard; therefore, asks for summary judgment.
1. Genericness versus Distinctiveness
The Lanham Act does not protect generic terms. Filipino Yellow Pages, Inc. v.
Asian Jrl. Publ’ns., Inc., 198 F.3d 1143, 1147 (9th Cir. 1999). In trade dress cases, the
distinctiveness inquiry is whether the “definition of a product design is overbroad or too
generalized.” Jeffrey Milstein, Inc. v. Greger, Lawlor, Roth, Inc., 58 F.3d 27, 32 (2d Cir.
1995); Big Island Candies, Inc. v. Cookie Corner, 269 F. Supp. 2d 1236, 1243 (D. Haw.
2003).
Defendants argue Brighton’s trade dress definition cannot survive summary
judgment because it is generic, overbroad, and vague. Defendants criticize the reach of
Brighton’s definition because it combines a sculpted silver heart ornament with any two or
more of five other elements (such as embossed leather or brocade fabrics or a dangling
silver heart). This “pick-and- choose” definition results in a “staggering” 26 combinations.
Br. at 21. “[T]he marketplace is left wondering what are the specific types of elements that
are off limits.” Id. Defendants bolster this argument with expert testimony that silver heart
ornaments and the named materials have been “the most rudimentary” and “essential
building blocks” of women’s fashion accessories for centuries. Heller Decl., Ex. H (Nunes
Report). Defendants repeat their argument that they can envision a very narrow range of
leather handbags with a heart that would not infringe Brighton’s trade dress. Brief at 16-
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17. Defendants’ expert drew several designs that would infringe the trade dress but
Defendants contend that none of them look-alike. They argue this exercise in imagination
shows that Brighton’s definition is overbroad.
The Court holds that there are factual issues as to whether Brighton’s trade dress is
generic because Brighton offers testimony from two independent sales representatives that
the Brighton “look” is distinctive and that customers associate the overall look with
Brighton. E.g., Wesley Decl., Exs. 105 & 106 (Bell and Lombardi Depos.).
2. Secondary or Acquired Meaning
Defendants also argue they are entitled to summary judgment because Brighton does
not have evidence that its trade dress has a “secondary” or “acquired” meaning.
Secondary meaning is “a term of art for identification of source.” Clicks, 251 F.3d
at 1262. A trade dress acquires secondary meaning “when, in the minds of the public, the
primary significance of [the trade dress] is to identify the source of the product rather than
the product itself.” Wal-Mart Stores, 529 U.S. at 211. “Secondary meaning can be
established in many ways, including (but not limited to) direct consumer testimony; survey
evidence; exclusivity, manner and length of use . . . , amount and manner of advertising;
amount of sales and number of customers; established place in the market; and proof of
intentional copying by the defendant.” Filipino Yellow Pages, 198 F.3d at 1151.
The Court finds that Brighton has come forward with evidence that raises a material
question of fact as to whether its trade dress has acquired secondary meaning. Clicks, 251
F.3d at 1262. Industry participants, including Brighton employees and neutral sales
representatives, testified they recognize a Brighton bag when they see one. Br. at 23
(collecting citations). Brighton submitted examples of ads that marketed the image of its
trade dress. First Brands Corp. v. Fred Meyer, Inc., 809 F.2d 1378, 1383 (9th Cir. 1987).
Brighton submitted evidence that it owns 160 stores, sells its handbags at 5,000 other
stores, has sold its line for almost 20 years, and has wholesale sales exceeding $100
million. Clamp Mfg. Co. Inc. v. Enco Mfg. Co., Inc., 870 F.2d 512, 517 (9th Cir. 1989); Br.
at 23-24 (collecting citations). The Court also credits Brighton’s argument that the
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similarity of the allegedly infringing designs suggests Defendants intentionally copied
Brighton’s trade dress. Clicks, 251 F.3d at 1264; Br. at 24 (collecting citations). This
evidence bears on the relevant factors and defeats the summary judgment motion.
II. Daubert Motions to Exclude Expert Witnesses
The trial judge must act as the gatekeeper for expert testimony by carefully applying
Federal Rule of Evidence 702 to ensure specialized and technical evidence is “not only
relevant, but reliable.” Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 589 & n.7
(1993); accord Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 147 (1999) (Daubert
imposed a special “gatekeeping obligation” on trial judge).
An expert witness may testify “if (1) the testimony is based upon sufficient facts or
data, (2) the testimony is the product of reliable principles and methods, and (3) the witness
has applied the principles and methods reliably to the facts of the case.” Fed. R. Evid. 702.
The proponent of the evidence bears the burden of proving the expert’s testimony
satisfies Rule 702. Cooper v. Brown, 510 F.3d 870, 880 (9th Cir. 2007).
A. Plaintiff’s Accounting Expert Witness Robert Wunderlich
Defendants move to exclude Dr. Robert Wunderlich’s expert testimony on
Brighton’s actual damages. In particular, Defendants focus on the expert’s assumption that
one infringing sale correlates with one lost transaction in which the Brighton customer
would have purchased 2.06 authentic items (including handbags, wallets, jewelry, and
watches). In brief, Defendants contend Wunderlich’s opinion is (1) not relevant because it
is not tied to the facts; (2) unreliable because he did not use a scientific methodology that
can be replicated by others, but instead offers an ipse dixit conclusion; and (3) unhelpful
because Wunderlich’s impermissible assumptions are non-committal and evasive.
Defendants claim Brighton seeks a windfall because Wunderlich’s math awards Brighton
$115 million in lost sales even though Defendants collectively had sales of only $8 million.
After careful consideration, the Court agrees with Defendants that the lost profits part of
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Wunderlich’s opinion is not admissible.3
The current copyright statute allows a plaintiff to recover “either (1) the copyright
owner’s actual damages and additional profits of the infringer” or instead (2) statutory 4
damages. 17 U.S.C. § 504 (emphasis added). Brighton seeks to recover damages under the
first measure, which has two distinct elements: (1) Brighton’s “actual damages,” including
lost profits and damage to goodwill; and (2) Defendants’ profits from the sales of
infringing products.
“[P]roof of actual damage is often difficult.” Lindy Pen Co., Inc. v. Bic Pen Corp.,
982 F.2d 1400, 1407 (9th Cir. 1993). A plaintiff must establish with “reasonable
probability the existence of a causal connection between the infringement and a loss of
revenue.” Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 567 (1985).
This includes “both the fact of damage and the amount of damage.” Lindy Pen, 982 F.2d at
1407. Plaintiff must have “a reasonable bases for the computation” even though lost profits
cannot be calculated with “absolute exactness.” Id.; McClaran v. Plastic Indus., Inc., 97
F.3d 347, 361 (9th Cir. 1996) (plaintiff must show existence of lost profits with “reasonable
certainty” not “speculation or guesswork”). For example, lost profits can sometimes be
quantified with confidence by comparing the plaintiff’s actual sales before infringement to
sales figures during the time defendant improperly competed. Ziegelheim v. Flohr, 119 F.
Supp. 324, 325, 329 (E.D.N.Y. 1954) (four years of plaintiff’s sales data showed loses
when defendants copied a Hebrew prayer book that was not readily available from a source
other than plaintiff).
District courts presiding over prior Brighton trials have reached conflicting decisions 3
about whether to admitsimilar expert testimonyon actual damages. Brighton Collectibles, Inc.
v. Coldwater Creek, Inc., 2010 U.S. Dist. LEXIS 98224 (Case No. 08-cv-2307-H) (Order filed
Sept. 20, 2010); Monagle Decl., Exs. L, O, & R. And while a judge’s questions during
argument are simply food for thought, a Ninth Circuit panel pointedly criticized Wunderlich’s
theory in a prior appeal. Swift Supp. Decl., Ex. B at 38, 40-43, 45-48.
The statute prevents double recovery in that it allows plaintiff to recover both (1) its 4
actual damages and (2) defendant’s wrongful gains only to the extent that “any profits of the
infringer . . . are not taken into account in computing the actual damages.” 17 U.S.C. § 504(b).
As to defendant’s wrongful gain, the statute requires the copyright owner “to present proof
only of the infringer’s gross revenue.” Id. The burden then shifts to defendant to establish
deductions for other factors. Id.
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Brighton is not attempting to prove lost profits by a tried and true method that is
grounded on plaintiff’s sales data, whether actual sales or forecasts of future sales; instead,
Brighton’s expert proposes a theory that plaintiff’s lost profits can be based solely upon the
number of the Defendants’ sales. But the number of sales by Defendants is relevant to the
alternative measure of Defendant’s wrongful gain. Wunderlich fails to demonstrate a
rational connection between the separate measures. The Court finds that Brighton has not 5
carried its burden to prove that Wunderlich’s opinion satisfies Rule 702.
Wunderlich improperly equates Defendants’ infringing sales with Brighton’s own
lost profits on a scale of 1:1. Following Defendants’ persuasive remarks at the hearing, the
Court conducted a thorough search of case law to determine if that is an accepted theory.
There are cases where the evidence suggested a customer bought a defendant’s counterfeit
product in place of and instead of the plaintiff’s product. E.g., Stevens Linen Assocs., Inc.
v. Mastercraft Corp., 656 F.2d 11, 15 (2d Cir. 1981) (remanding damages calculation to
district court when plaintiff introduced evidence it sent samples to 22 customers, who
instead bought similar, cheaper design from defendant because it was defendant’s burden to
show that its infringement did not cause every one of these regular customers to switch to
defendant); Mfrs. Techs., Inc. v. Cams, Inc., 728 F. Supp. 75, 80-81(D. Conn. 1989) (“very
compelling” customer testimony); Dolori Fabrics, Inc. v. The Limited, Inc., 662 F. Supp.
1347, 1355 (S.D.N.Y. 1987) (awarding lost profits of actual, shared customer); Key West
Hand Print Fabrics, Inc. v. Serbin, Inc., 269 F. Supp. 605, 613 (S.D. Fla. 1966) (awarding
lost profits when customer testified she cancelled large order because defendant flooded
market with cheap counterfeit), aff’d 381 F.2d 735 (5th Cir. 1967) (per curiam); see also
RSO Records, Inc. v. Peri, 596 F. Supp. 849, 860 (S.D.N.Y. 1984) (when defendants made
exact copies of stolen musical recordings and sold the records at the same price, “[i]t would
“A damage theory based upon a copyright owner’s lost profits must be distinguished 5
from a claim based upon the infringer’s profits.” Law Bulletin Publ’g Co. v. Rodgers, 1988
WL 130024 (N.D. Ill., filed Nov. 28, 1988); Melville B. Nimmer & David Nimmer, Nimmer
on Copyright §14.02[A][1] (2012) (cautioning courts not to confuse defendant’s profits with
plaintiff’s lost revenue); e.g., Orgel v. Clark Boardman Co. Ltd., 128 U.S.P.Q. 531 (S.D.N.Y.
1960) (rejecting expert testimony that every sale to defendant would have gone to plaintiff if
defendant’s book had not been in the market).
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be reasonable to assume that for every counterfeit copy of plaintiffs’ copyrighted records
and tapes sold by defendants plaintiffs lost a corresponding sale,” but plaintiffs did not seek
that measure). Those cases are distinguishable because each plaintiff had convincing
evidence from a customer to support the calculation of lost profits by referencing the
defendant’s infringing sales.
By contrast, Brighton’s expert has not grounded his assumption with the real world
facts of this case. As Defendants correctly observe, it is not plausible that every woman
who bought a $20 or $50 knockoff would have paid over $200 for an authentic handbag.
While it is not for the Court to challenge the correctness of Wunderlich’s conclusion, the
Court has a duty to ensure that his methodology is sound and that his testimony is
supported by the underlying facts. Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311,
1318 (9th Cir. 1995) (Daubert II). Yet, Wunderlich has no data to demonstrate that the 1:1
scale corresponds with Defendants’ cheap handbags and Brighton’s expensive products.
See Hamil Am., Inc. v. GFI, Inc., 193 F.3d 92, 107-08 (2d Cir. 1999) (affirming district
court’s finding that shared customers who obtained samples from plaintiff would not
necessarily have purchased expensive product but for the infringement); Peter Pan Fabrics,
Inc. v. Jobela Fabrics, Inc., 329 F.2d 194, 195-96 (2d Cir. 1964) (conclusion that plaintiff
would make “identical sales” “was merely an assumption and was not supported by any
proof whatsoever”); Alouf v. Expansion Prods., Inc., 417 F.2d 767, 768 (2d Cir. 1969) (per
curiam) (“in light of plaintiff’s high price policy, it was not clear that she would have made
all the sales that defendant did.”); L & L White Metal Casting Corp. v. Cornell Metal
Specialties Corp., 353 F. Supp. 1170, 1176 (E.D.N.Y. 1972) (plaintiff’s castings were one
third more expensive), aff’d 177 U.S.P.Q. 673 (2d Cir. 1973). His speculation would not 6
By comparison, the plaintiff’s lost sales is one relevant factor when awarding the 6
alternative measure ofstatutorydamages. Yet courts often reject estimates of alleged lost sales
when there is a price difference. Pret-A-Printee, Ltd. v. Allton Knitting Mills, Inc., 218
U.S.P.Q. 150, 153 (S.D.N.Y. 1982) (“defendants’ lower price might have resulted in greater
sales than plaintiff could have obtained at its higher price”); see Original Appalachian
Artworks, Inc. v. J.F. Reichert, Inc., 658 F. Supp. 458, 465 (E.D. Penn. 1987) (noting that
courts awarding statutory damages often “do not attach great weight” to income lost because
amount is difficult to monetize).
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help the jury but could mislead them.
Wunderlich’s report lacks any indication that he considered that this case involves
the highly competitive fashion marketplace. His opinion is not based on any evidence of
direct competition between the retail Defendant, which operates small, Western-style
stores, and Brighton, which owns upscale boutiques and sells to high-end department
stores. Peter Pan Fabrics, 329 F.2d at 196 (maker of expensive fabric “cannot reasonably
expect to sell the same number of yards as the infringer who caters to the bargain basement
market” by selling inferior quality). The expert has not provided a nexus from the knockoff
customer to the typical Brighton customer who would spend $240 or $400 on one handbag.
Daubert, 509 U.S. at 590 (in Rule 702, “the word ‘knowledge’ connotes more than
subjective belief or unsupported speculation”).
Brighton defends its expert by arguing that the amount of lost profits is inherently
imprecise and that Wunderlich offers a “framework” the jury could – but is not required to
– use to determine a reasonable award. Story Parchment Co. v. Paterson Parchment Paper
Co., 282 U.S. 555 (1931); Skydive Ariz., Inc. v. Quattrocchi, 673 F.3d 1105, 1112 (9th Cir.
2012) (“Upon proving causation, the plaintiff’s evidentiary burden relaxes considerably.”);
e.g., GTFM, Inc. v. Solid Clothing, Inc., 215 F. Supp. 2d 273, 305 (S.D.N.Y. 2002) (after
bench trial, court estimated plaintiff would have sold one-third of the garments that
defendant sold).
The Court is not persuaded by this argument because the Court must ensure that
Wunderlich’s methodology is sound before the jury can consider his expert opinion.
Mukhtar v. Cal. State Univ., Hayward, 299 F.3d 1053, 1063-64 (9th Cir. 2002)
(“Maintaining Daubert’s standards is particularly important considering the aura of
authority experts often exude, which can lead juries to give more weight to their
testimony”) (footnote omitted), amended 319 F.3d 1073 (9th Cir. 2003). The gatekeeping
requirement ensures that “an expert, whether basing testimony on professional studies or
personal experience, employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.” Kumho Tire, 526 U.S. at 152.
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Wunderlich’s flimsy assertion is no more convincing than a copyright owner’s speculation
about a 1:1 scale. Cf. L & L White Metal Casting, 353 F. Supp. at 1176 (rejecting owner’s
testimony that it “would have made every one the sales” as too speculative). The report on
its face does not articulate a reliable principle or method that could be explained or tested.7
Daubert, 509 U.S. at 593-94. When deposed, Wunderlich could not identify the factual
basis for his assumptions or provide any assurance that his conclusion is based upon a
method that is generally accepted in the field or that has a known margin of error that could
be tested by other professionals. Monagle Decl., Ex. B; Br. at 3-6, 8-9, 13-14, 18-25
(collecting citations). He did not perform any economic analysis to reach his conclusion.
He does not provide the jury with any guidance on the factors to consider in selecting an
appropriate ratio. Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987) (excluding
expert opinion that relied on a source “of such little weight” that it “would not actually
assist the jury in arriving at an intelligent and sound verdict”); Rambus Inc. v. Hynix
Semiconductor Inc., 254 F.R.D. 597, 606 (N.D. Cal. 2008) (excluding expert report that did
not “apply a reliable methodology to reach a helpful conclusion”).
In sum, “there is simply too great an analytical gap between the data and the opinion
proffered.” G.E. Co. v. Joiner, 522 U.S. 136, 146 (1997).
B. Plaintiff’s Marketing Expert Witness Gary Frazier
Brighton hired Dr. Gary Frazier to give his expert opinion whether (1) customers
would likely confuse the source of Defendant RK Texas Leather’s allegedly infringing
handbags with Brighton’s designs and (2) knockoffs harm Brighton’s reputation.
Defendants challenge his opinions as unreliable due to the flawed methodology of Frazier’s
Two telling examples illustrate the unreliabilityof the correlation between Defendants’ 7
sales and Brighton’s profits. Wunderlich states that for every product the Defendants sold,
Brighton lost the sale of 2.06 products. Yet the sales data shows that a Brighton customer
spent on average $84 per transaction and that Brighton’s handbags sell for an average of $240.
Second, most ofthe Defendants are wholesale importers and distributors, while one, RK Texas
Leather, operates a retail store. Yet Wunderlich counts each transaction in the chain of
distribution as a separate sale without regard to the number of handbags ultimately sold to
consumers. These simple mathematical exercises seriously undermine Brigthon’s argument
that Wunderlich’s opinion is a helpful framework for the jury to determine reasonable
damages.
- 12 - 10-CV-419
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marketing surveys. The Court grants the motion to the extent discussed, but denies it in all
other respects.
1. First Survey: Likelihood of Confusion of Trade Dress
The Court agrees that Defendants identify a fatal flaw in Dr. Frazier’s first survey,
which renders inadmissible his opinion on the likelihood of confusion. Fortune Dynamic,
Inc. v. Victoria’s Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1036 (9th Cir. 2010);
McGlinchy v. Shell Chem. Co., 845 F.2d 802, 806-07 (9th Cir. 1988) (affirming exclusion
of “hopelessly flawed” expert report on damages when lost profit analysis “rests on
unsupported assumptions and ignores distinctions crucial to arriving at a valid
conclusion”). The survey’s design was so blatantly biased that the results are unreliable.
Daubert, 509 U.S. at 589; cf. Clicks, 251 F.3d at 1262-63 (court can exclude a survey that
is undermined by a fatal flaw).
8
Participants were first shown four authentic products. In that display, two of
Brighton’s products were black and red, and all four had large heart ornaments. Carswell
Decl. at 63-70 (A-1 to A-4). Next, Frazier showed participants four similar handbags made
by other manufacturers. Yet, only the Defendants’ handbag was two-color (black and
brownish-red) with heart decorations. Id. at 71-102 (B-1 to B-4). Participants were then
asked which, if any, item was “made, sponsored, or endorsed” by the same company that
made the first set of handbags.
A line-up in which only one bag shares the most prominent and eye-catching
features – two colors and silver hearts – improperly suggested to the participants that
Defendants’ bag was the “correct” answer. Consequently, the survey does not prove actual
consumer confusion about Brighton’s brand, but instead tested the ability of participants to
pick the most obvious match. The flaw is readily apparent because color is not an element
of Brighton’s definition of trade dress; rather, Brighton defines its trade dress based first
In Prudential Ins. Co. of Am. v. Gibraltar Fin. Corp. of Cal., 694 F.2d 1150, 1156 (9th 8
Cir. 1982), the Ninth Circuit stated that “[t]echnical unreliability goes to the weight accorded
a survey, not its admissibility.” That case predates the Supreme Court’s Daubert decision and
that broad statement must be construed in light of Court’s gatekeeping obligation.
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upon the use of a sculpted, silver heart in combination with two or more other features such
as filigreed ornamentation and embossed leather material. SAC ¶ 36. The high number of
participants who selected the Defendants’ two-color handbag with the heart ornaments –
89% – shows that it stood out as the best match, regardless of whether participants were
actually confused by features in Brighton’s trade dress. The Court excludes Dr. Frazier’s
expert opinion that this survey shows consumers are likely to be confused by Defendants’
products. See Sunbeam Corp. v. Equity Indus. Corp., 635 F. Supp. 625, 634 (E.D. Va.
1986) (rejecting survey when defendant’s product “stood out like a bearded man in a lineup
with four clean-shaven men”; “When a survey question begs its answer it is not a true
indicator of the likelihood of consumer confusion.”), aff’d 811 F.2d 1505 (4th Cir. 1987);
see also Simon Prop. Grp. L.P. v. mySimon, Inc., 104 F. Supp. 2d 1033, 1051 (S.D. Ind.
2000) (rejecting survey when format tested “nothing more than the memory and common
sense of a respondent” but nothing relevant about consumer confusion).
The problem was exacerbated because Frazier did not use a control to test the
accuracy of his survey. Br. at 12-13 (collecting citations).
2. Second Survey: Knockoffs Harm Brighton’s Reputation
Frazier conducted a second survey to prove that knockoffs harmed Brighton’s brand
and sales. He conducted an internet survey of 408 customers with high incomes who had
purchased Brighton products in the past. Carswell Decl., Ex. A (¶¶ 34-37). They were
shown pictures of products made by Brighton and by Defendants. Participants were first
asked: “If you knew that less expensive handbags, such as the ones pictured here, were
being sold, would you be any less likely to buy an authentic Brighton product?” Id. at 121.
Frazier reported that 23% (93) responded “yes.” He concludes this confirmed his expert
opinion that “the proliferation of lower-priced, lower-quality knockoffs harms the authentic
brand.” Id. (¶ 41).
If the answer was “yes,” the second question asked participants to rank their
“feelings” into one of these categories: I wouldn’t buy Brighton; I would reduce my
buying of Brighton by 1 to 25% per year; by 26 to 50% per year; by 51 to 75% per year; by
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more than 75% per year; or I don’t know. Id. Of the 93 women had answered “yes” to the
first question, Frazier found that 12% would not buy Brighton; 19% would reduce
purchases by 1 to 25% per year; 25% by 26 to 50%; 17% by 51 to 75%; 11% would reduce
purchases by more than 75% per year; and 16% did not know. Id. (¶ 42). These results
support Frazier’s opinion that “[f]or an appreciable percentage of consumers, the sale of
knockoffs causes such negative feelings that they will stop buying the authentic brand
altogether, or severely reduce future purchases of the authentic brand.” Id.
The third question asked all participants: “Do you believe you have seen Brighton
knockoffs in public?” Id. (¶ 43). Frazier found that 41% (167) responded “yes,” which is
consistent with his opinion that “the sale of knockoffs such as Texas Leather bags in issue
in this case caused actual harm to Brighton.” Id.
The Court shares Defendants’ concern that the sloppy questions are problematic and
the sweeping conclusions are careless. Nonetheless, the Court concludes that Defendants
can explore the weaknesses in Frazier’s second marketing survey through the traditional
methods such as vigorous cross examination and by presenting their own expert testimony.
Daubert, 509 U.S. at 596.
III. Defendants’ Summary Judgement Motion on Lost Profit Damages
Brighton claims that Defendants’ infringement caused it to suffer actual damages in
the form of lost profits and injury to its goodwill. Defendants’ summary judgment
arguments are similar to the arguments in their Daubert motion to exclude the expert
testimony of Wunderlich and Frazier. Because the Court granted those motions in part, the
scope of the summary judgment motion is narrowed.
Defendants are not entitled to summary judgment. Brighton has presented evidence
that Defendants’ sales of cheap, low quality imitations damaged Brighton’s reputation and
goodwill. For example, Brighton’s owner, several Brighton employees, and some
independent sales representatives will testify based upon their knowledge of sales data,
press reports, and photographs that Brighton sells distinctive products and that Defendants’
intentional copies caused Brighton to lose sales and customers. Opp. Br. at 9-12 (collecting
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citations to record). In addition, Dr. Frazier’s second survey is relevant. This evidence
raises a question of fact for the jury to decide.
Conclusion
Upon due consideration of the memoranda and exhibits, the arguments of counsel,
and for the reasons set forth above, the Court (1) DENIES Defendants’ Motion for
Summary Judgment on Trade Dress Infringement [# 144]; (2) GRANTS IN PART AND
DENIES IN PART Defendants’ Motion to Exclude Expert Testimony of Dr. Wunderlich [#
187 & 225]; (3) GRANTS IN PART AND DENIES IN PART Defendants’ Motion to
Exclude the Surveys and Expert Testimony of Dr. Frazier. [# 163]; and (4) DENIES
Defendants’ Motion for Summary Judgment on Lost Profits [# 184].
IT IS SO ORDERED.
DATED: February 12, 2013
HON. GONZALO P. CURIEL
United States District Judge
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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_15-cv-01666/USCOURTS-caed-1_15-cv-01666-0/pdf.json | 550 | Prisoner - Civil Rights (U.S. defendant) | 42:1983 Prisoner Civil Rights | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
RAYMOND GEORGE GLASS,
Plaintiff,
v.
MARTIN BITER,
Defendant.
1:15-cv-01666 MJS (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document# 2)
On November 2, 2015, plaintiff filed a motion seeking the appointment of counsel.
Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland,
113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent
plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the
Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain
exceptional circumstances the court may request the voluntary assistance of counsel pursuant to
section 1915(e)(1). Rand, 113 F.3d at 1525.
Without a reasonable method of securing and compensating counsel, the court will seek
volunteer counsel only in the most serious and exceptional cases. In determining whether
Aexceptional circumstances exist, the district court must evaluate both the likelihood of success of
the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the
complexity of the legal issues involved.@ Id. (internal quotation marks and citations omitted).
Case 1:15-cv-01666-MJS Document 6 Filed 11/05/15 Page 1 of 2
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In the present case, the court does not find the required exceptional circumstances. Even
if it is assumed that plaintiff is not well versed in the law and that he has made serious allegations
which, if proved, would entitle him to relief, his case is not exceptional. This court is faced with
similar cases almost daily. Further, at this early stage in the proceedings, the court cannot make a
determination that plaintiff is likely to succeed on the merits, and based on a review of the record
in this case, the court does not find that plaintiff cannot adequately articulate his claims. Id.
For the foregoing reasons, plaintiff=s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.
IT IS SO ORDERED.
Dated: November 5, 2015 /s/Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
Case 1:15-cv-01666-MJS Document 6 Filed 11/05/15 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-almd-2_11-cv-00281/USCOURTS-almd-2_11-cv-00281-0/pdf.json | 442 | Civil Rights Employment | 42:2000 Job Discrimination (Sex) | IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
VERONICA THOMAS, )
)
Plaintiff, ) Case No. 2:11-cv-281-MEF
v. )
)
AVERITT EXPRESS, INC., ) (WO- DO NOT PUBLISH)
)
Defendant. )
ORDER
This cause is before the Court on Plaintiff Veronica Thomas’s Motion for Default
Judgment against Defendant Averitt Express, Inc. (“Averitt”). (Doc. # 9). Averitt has
filed an answer in this case (Doc. # 11), despite the Plaintiff’s failure to properly serve it
with a copy of the complaint. Accordingly, it is hereby ORDERED that the Plaintiff’s
Motion for Default Judgment is DENIED.
Done this the 31 day of May, 2011.
st
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
Case 2:11-cv-00281-MEF-TFM Document 13 Filed 05/31/11 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_10-cv-02257/USCOURTS-cand-3_10-cv-02257-3/pdf.json | 195 | Contract Product Liability | 28:1332 Diversity-Other Contract | 1
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STIPULATED REQUESTS TO CHANGE TIME; KNAPP DECL. ISO SAME—CASE NO. CV 10-2257 SI
CBM-SF\SF498868
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
(SAN FRANCISCO DIVISION)
TIM NGUYEN, as an individual and on
behalf of all others similarly situated,
Plaintiff,
v.
BMW OF NORTH AMERICA, LLC; and
DOES 1-100,
Defendants.
Case No. CV 10-2257 SI
STIPULATED REQUEST TO: (1) MODIFY
BRIEFING SCHEDULE RELATING TO BMW
NA’S MOTIONS TO DISMISS AND STRIKE; AND
(2) CONTINUE INITIAL CASE MANAGEMENT
CONFERENCE AND RELATED DATES;
DECLARATION OF ERIC J. KNAPP IN SUPPORT
THEREOF
[N.D. CAL. L.R. 6-2]
Troy M. Yoshino, No. 197850
Eric J. Knapp, No. 214352
Aengus H. Carr, No. 240953
CARROLL, BURDICK & McDONOUGH LLP
Attorneys at Law
44 Montgomery Street, Suite 400
San Francisco, CA 94104
Telephone: 415.989.5900
Facsimile: 415.989.0932
Email: [email protected]
[email protected]
[email protected]
Attorneys for Defendant
BMW OF NORTH AMERICA, LLC
Case 3:10-cv-02257-SI Document 30 Filed 01/03/11 Page 1 of 8
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CBM-SF\SF498868 1
STIPULATED REQUESTS TO CHANGE TIME; KNAPP DECL. ISO SAME—CASE NO. CV 10-2257 SI
By and through their respective counsel of record, plaintiff Tim Nguyen, as an individual
and on behalf of all others similarly situated, and Defendant BMW of North America (“BMW
NA”) stipulate and agree as follows:
STIPULATED REQUEST FOR ORDER CHANGING TIME PURSUANT TO L.R. 6-2
(BRIEFING SCHEDULE ON BMW NA’S PENDING MOTIONS TO DISMISS AND STRIKE)
1. On December 3, 2010, the Court issued an Order approving the parties’ stipulated
request to: (1) revise the briefing schedule on BMW NA’s pending Motion to Dismiss Plaintiff’s
Individual Claims and Motion to Strike Plaintiff’s Class Allegations (collectively, “Motions”) and
(2) extend the dates for the Initial Case Management Conference and ADR deadlines.
2. A revised briefing schedule was necessary to ameliorate the difficulties for both
parties posed by the briefing schedule called for under the Local Rules given the upcoming
holidays. However, in the interim, plaintiff has indicated that he is contemplating filing a Third
Amended Complaint to address issues raised by the pending Motions and potentially make other
changes. Plaintiff indicates that if he so amends, he would file on or around January 15, 2011.
Accordingly, the parties mutually recognize that the briefing schedule and subsequent hearing and
case management dates need to be altered to account for the possibility of the filing of a Third
Amended Complaint, which would moot the pending Motions and trigger a new filing date for
BMW NA’s responsive pleadings in any event.
3. Accordingly, the parties propose that all opposition briefs relating to the Motions be
filed on or before January 28, 2011. The parties also propose that all reply briefs relating to the
Motions be filed on or before February 18, 2011, and that the hearing on the Motions (currently
scheduled for January 28, 2011) be continued to March 4, 2011 at 11:00 a.m. or a later date and
time convenient for the Court.
4. Pursuant to Civil Local Rule 6-1(a), the parties have previously stipulated to two
extensions of time for BMW NA to respond to plaintiff’s Complaint. The first extension was up
to and including August 17, 2010, and the second was to September 28, 2010. The parties have
also previously stipulated to extensions of time for the briefing schedule on the Motions, to
continue the Initial Case Management Conference, and to extend the ADR deadlines, and the
Case 3:10-cv-02257-SI Document 30 Filed 01/03/11 Page 2 of 8
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CBM-SF\SF498868 2
STIPULATED REQUESTS TO CHANGE TIME; KNAPP DECL. ISO SAME—CASE NO. CV 10-2257 SI
Court has approved such stipulations. See Docket No. 14 (Aug. 5, 2010 Order); Docket No. 26
(Oct. 13, 2010 Order); and Docket Entry of December 3, 2010 (Order).
5. Pursuant to N.D. Cal. Local R. 6-1(b) and 6-2, the parties seek approval of this
stipulated request for an order changing time, as the agreements set forth in paragraph 3 affect
dates involving papers required to be filed with the Court and a hearing date currently set on the
Court’s calendar.
6. Other than as discussed in paragraph 4, there have been no prior time modifications in
this case. The extensions of time requested herein would require continuation of the hearing on
the Motions from January 28, 2011 to March 4, 2011.
STIPULATED REQUEST FOR ORDER CHANGING TIME PURSUANT TO L.R. 6-2
(CONTINUANCE OF INITIAL CASE MANAGEMENT CONFERENCE)
7. The parties hereby further agree that the initial case management conference
(“CMC”) should be continued to a date and time convenient to the Court, no earlier than April 22,
2011. This additional time is requested primarily because, as set forth above, the parties are
requesting an extension of time on the briefing schedule and hearing related to the Motions.
8. As set forth in the parties’ prior stipulation and the Court’s order approving that
stipulation (see Docket Entry of December 3, 2010), the parties have requested that the Court
continue the CMC because the parties acknowledge that the full scope of issues presented by this
lawsuit will not be known until the Court rules on BMW NA’s responsive pleadings. Given this
situation, the parties agree that meet-and-confers on the subjects discussed in the Court’s
Scheduling Order would be more productive if postponed until after such rulings.
9. Given the requested change in the Motions schedule, the parties request that the
Court continue the CMC to at least April 22, 2011, to allow the timeline contemplated in the
Court’s Scheduling Order to progress normally, i.e., to allow for: (a) a 14-day period in which to
meet and confer; (b) an additional 14 days to prepare the Rule 26(f) report, initial disclosures,
and the Court-mandated Joint Case Management Statement; and (c) for the Court to have 7 days
to review relevant materials before the initial Case Management Conference.
Case 3:10-cv-02257-SI Document 30 Filed 01/03/11 Page 3 of 8
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CBM-SF\SF498868 3
STIPULATED REQUESTS TO CHANGE TIME; KNAPP DECL. ISO SAME—CASE NO. CV 10-2257 SI
10. Pursuant to N.D. Cal. Local R. 6-2, the parties seek approval of this stipulated
request for an order changing time, as the agreements set forth in paragraph 7 affect certain dates
fixed by Court order and the Local Rules of this Court.
11. Other than as discussed in paragraph 4, there have been no prior time modifications
in this case. The requested time modification would continue the CMC (currently on the Court’s
calendar for March 18, 2011) to April 22, 2011.
Dated: December 21, 2010 Respectfully submitted,
CARROLL, BURDICK & McDONOUGH LLP
By /s/ Eric J. Knapp
ERIC J. KNAPP
Attorneys for Defendant
BMW of North America, LLC
Dated: December 21, 2010 KERSHAW, CUTTER & RATINOFF LLP
By /s/ Stuart C. Talley
STUART C. TALLEY
Attorneys for Plaintiff
Tim Nguyen
General Order 45, § X Certification
The filing attorney hereby certifies that concurrence in the filing of the document has been
obtained from each of the other signatories, in full accordance with N.D. Cal Gen. Ord. 45, §
X(B).
Case 3:10-cv-02257-SI Document 30 Filed 01/03/11 Page 4 of 8
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CBM-SF\SF498868 1
DECLARATION OF ERIC J. KNAPP IN SUPPORT OF STIPULATED REQUESTS FOR ORDER CHANGING TIME
DECLARATION OF ERIC J. KNAPP IN SUPPORT OF
STIPULATED REQUESTS FOR ORDER CHANGING TIME
I, Eric J. Knapp, declare and state as follows:
1. I am an attorney duly licensed to practice before this Court, and am associated with
Carroll, Burdick & McDonough LLP, counsel for Defendant BMW NA in the above-entitled
action. The matters referred to in this Declaration are based upon my best personal knowledge
and belief, and if called and sworn as a witness, I could and would competently testify as to each
of them.
2. On December 3, 2010, the Court issued an Order approving the parties’ stipulated
request to: (1) revise the briefing schedule on BMW NA’s pending Motion to Dismiss Plaintiff’s
Individual Claims and Motion to Strike Plaintiff’s Class Allegations (collectively, “Motions”) and
(2) extend the dates for the Initial Case Management Conference and ADR deadlines.
3. A revised briefing schedule was necessary to ameliorate the difficulties for both
parties posed by the briefing schedule called for under the Local Rules given the upcoming
holidays. However, in the interim, plaintiff has indicated that he is contemplating filing a Third
Amended Complaint to address issues raised by the pending Motions and potentially make other
changes. Plaintiff indicates that if he so amends, he would file on or around January 15, 2011.
Accordingly, the parties mutually recognize that the briefing schedule and subsequent hearing and
case management dates need to be altered to account for the possibility of the filing of a Third
Amended Complaint, which would moot the pending Motions and trigger a new filing date for
BMW NA’s responsive pleadings in any event.
4. Specifically, the parties propose that all opposition briefs relating to the Motions be
filed on or before January 28, 2011. The parties also propose that all reply briefs relating to the
Motions be filed on or before February 18, 2011, and that the hearing on the Motions (currently
scheduled for January 28, 2011) be continued to March 4, 2011 at 11:00 a.m. or to a later date and
time convenient for the Court.
5. Pursuant to Civil Local Rule 6-1(a), the parties have previously stipulated to two
extensions of time for BMW NA to respond to plaintiff’s Complaint. The first extension was up
Case 3:10-cv-02257-SI Document 30 Filed 01/03/11 Page 5 of 8
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CBM-SF\SF498868 2
DECLARATION OF ERIC J. KNAPP IN SUPPORT OF STIPULATED REQUESTS FOR ORDER CHANGING TIME
to and including August 17, 2010, and the second was up to and including September 28, 2010.
The parties have also previously stipulated to extensions of time for the briefing schedule on the
Motions, to continue the Initial Case Management Conference, and to extend the ADR deadlines,
and the Court has approved such stipulations. See Docket No. 14 (Aug. 5, 2010 Order); Docket
No. 26 (Oct. 13, 2010 Order); and Docket Entry of December 3, 2010 (Order).
6. Pursuant to N.D. Cal. Local R. 6-1(b) and 6-2, the parties seek approval of this
stipulated request for an order changing time, as the agreements set forth in paragraph 4 affect
dates involving papers required to be filed with the Court and a hearing date currently set on the
Court’s calendar.
7. Other than as discussed in paragraph 5 of this Declaration, there have been no prior
time modifications in this case. The extensions of time requested herein would require
continuation of the hearing on the Motions from January 28, 2011 to March 4, 2011.
8. The parties also agree that the initial case management conference (“CMC”) should
be continued to a date and time convenient to the Court, no earlier than March 18, 2011. This
additional time is requested primarily because, as set forth above, the parties are requesting an
extension of time on the briefing schedule and hearing related to the Motions.
9. On December 3, 2010, this Court ordered that the CMC shall be continued to March
18, 2011. (See Docket Entry of December 3, 2010.) As discussed in the stipulation relating to
that Order, the parties have requested that the Court continue the CMC because the parties
acknowledge that the full scope of issues presented by this lawsuit will not be known until the
Court rules on BMW NA’s responsive pleadings. Given this situation, the parties agree that
meet-and-confers on the subjects discussed in the Court’s Scheduling Order would be more
productive if postponed until after such rulings.
10. Given the requested change in the Motions schedule, the parties request that the
Court continue the CMC to at least April 22, 2011, to allow the timeline contemplated in the
Court’s Scheduling Order to progress normally, i.e., to allow for: (a) a 14-day period in which to
meet and confer; (b) an additional 14 days to prepare the Rule 26(f) report, initial disclosures,
Case 3:10-cv-02257-SI Document 30 Filed 01/03/11 Page 6 of 8
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CBM-SF\SF498868 3
DECLARATION OF ERIC J. KNAPP IN SUPPORT OF STIPULATED REQUESTS FOR ORDER CHANGING TIME
and the Court-mandated Joint Case Management Statement; and (c) for the Court to have 7 days
to review relevant materials before the initial Case Management Conference.
11. Pursuant to N.D. Cal. Local R. 6-2, the parties seek approval of this stipulated
request for an order changing time, as the agreements set forth in paragraph 8 of this Declaration
affect certain dates fixed by Court order and the Local Rules of this Court.
12. The requested time modification would continue the CMC (currently on the Court’s
calendar for March 18, 2011) to April 22, 2011.
I declare under penalty of perjury under the laws of the United States that the foregoing
is true and correct.
Executed this 21st day of December 2010 at San Francisco, California.
/s/ Eric J. Knapp
ERIC J. KNAPP
Case 3:10-cv-02257-SI Document 30 Filed 01/03/11 Page 7 of 8
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CBM-SF\SF498868 4
DECLARATION OF ERIC J. KNAPP IN SUPPORT OF STIPULATED REQUESTS FOR ORDER CHANGING TIME
ORDER
For good cause shown, the Court hereby enters the Stipulation set forth above as the Order
of the Court. The schedule in this case is hereby modified as follows:
a. BMW NA has filed: (1) a Motion to Dismiss Plaintiff’s Individual Claims; and (2) a
Motion to Strike Plaintiff’s Class Allegations (collectively, the “Motions”). All opposition briefs
relating to the Motions shall be filed on or before January 28, 2010. All reply briefs relating to
the Motions shall be filed on or before February 18, 2011. The hearing on these Motions shall be
continued to March 4, 2011 at 11:00 a.m.
b. The case management conference shall be continued to April 22, 2011 at 2:00 p.m.
IT IS SO ORDERED
Dated: ___________________, 2010
By:
HONORABLE SUSAN ILLSTON
9:00 a.m.
Case 3:10-cv-02257-SI Document 30 Filed 01/03/11 Page 8 of 8 |
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
JEFFREY SHAWN HENDERSON,
Petitioner, No. CIV S-04-1341 GEB CMK P
vs.
MIKE KNOWLES, Warden,
Respondent. ORDER
/
Petitioner has requested the appointment of counsel. There currently exists no
absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d
453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at
any stage of the case “if the interests of justice so require.” See Rule 8(c), Fed. R. Governing
§ 2254 Cases. In the present case, the court does not find that the interests of justice would be
served by the appointment of counsel at the present time.
Accordingly, IT IS HEREBY ORDERED that petitioner’s February 16, 2007
request for appointment of counsel is denied without prejudice to a renewal of the motion at a
later stage of the proceedings.
DATED: March 7, 2007.
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
Case 2:04-cv-01341-GEB-CMK Document 33 Filed 03/07/07 Page 1 of 1 |
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
SMS VanKirk, L.L.C., )
)
Plaintiff, ) No. CV-06-3013-PHX-PGR
)
vs. )
) ORDER
John Craig VanKirk, et ux., )
)
Defendants. ) )
Pending before the Court is the parties' Stipulation to Vacate Oral
Argument set for Monday, June 11, 2007 at 2:00 P.M., filed June 1, 2007,
wherein the parties state that they want to vacate the hearing on the defendants'
pending motion to dismiss (doc. #2) until such time as they decide to re-schedule
the hearing because they have been engaged in settlement discussions and
because defendant John Craig VanKirk died on May 28, 2007. While the Court
will vacate the hearing, the Court is not willing to let the motion to dismiss simply
stay dormant unless and until the parties decide otherwise and will thus deem the
motion to dismiss to be withdrawn without prejudice to being reinstated upon
motion of a party or by the Court sua sponte.
Case 2:06-cv-03013-PGR Document 12 Filed 06/04/07 Page 1 of 2
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The parties are advised that the Court construes their stipulation as a
suggestion upon the record of the death of Mr. VanKirk for purposes of
Fed.R.Civ.P. 25(a). Therefore,
IT IS ORDERED that the parties' Stipulation to Vacate Oral Argument set
for Monday, June 11, 2007 at 2:00 P.M. (doc. #11) is accepted and that the
hearing on the defendants' Motion to Dismiss for Lack of Personal and In Rem
Jurisdiction/Motion to Dismiss for Improper Venue (doc. #2) set for June 11, 2007
is vacated.
IT IS FURTHER ORDERED that the defendants' Motion to Dismiss for
Lack of Personal and In Rem Jurisdiction/Motion to Dismiss for Improper Venue
(doc. #2) is deemed withdrawn without prejudice.
IT IS FURTHER ORDERED that the parties shall file a joint report setting
forth the status of this action no later than August 6, 2007.
DATED this 4th day of June, 2007.
Case 2:06-cv-03013-PGR Document 12 Filed 06/04/07 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-5_04-cv-03843/USCOURTS-cand-5_04-cv-03843-24/pdf.json | 190 | Other Contract Actions | 28:1332 Diversity-Other Contract | United States District Court
For the Northern District of California
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*E-filed 3/19/07*
NOT FOR CITATION
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
MEMRY CORPORATION,
Plaintiff,
v.
KENTUCKY OIL TECHNOLOGY, N.V.,
PETER BESSELINK, MEMORY METALS
HOLLAND, B.V.,
Defendants.
KENTUCKY OIL TECHNOLOGY, N.V.,
Counterclaimant,
v.
MEMRY CORPORATION and
SCHLUMBERGER TECHNOLOGY
CORPORATION,
Counterdefendants. /
Case No. C04-03843 RMW (HRL)
ORDER DENYING STC'S MOTION TO
COMPEL
Re: Docket No. 398
Schlumberger Technology Corporation (“STC”) moves to compel production from
Kentucky Oil Technology ("KOT") on two unrelated topics: (1) an intellectual property
evaluation conducted for one of KOT’s predecessors-in-interest, and (2) original documents,
including computer hard drives.
Case 5:04-cv-03843-RMW Document 546 Filed 03/19/07 Page 1 of 7
United States District Court
For the Northern District of California
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A. IP Portfolio Evaluation (“the Portfolio Evaluation”)
Before being retained as litigation counsel for KOT, Nicola Pisano was engaged in 2003
to perform an evaluation of an intellectual property portfolio held by Jomed, N.V. This
portfolio included the bistable cell technology that is the basis of the current lawsuit. STC
wants access to the Portfolio Evaluation, as well as related materials that Pisano relied on in
producing it. KOT objects on grounds of attorney-client privilege and work product protection.
When STC first requested a copy, KOT contended that the Portfolio Evaluation was not
in the possession, custody, or control of KOT. Indeed, KOT contended that the document was
never disclosed to KOT. In response, STC served subpoenas on Pisano and Luce Forward
(Pisano’s firm at the time the Portfolio Evaluation was conducted).
1. Waiver of Attorney-Client Privilege
STC now argues that any attorney-client privilege for the Portfolio Evaluation was
waived when it was disclosed to prospective purchasers of assets of Jomed’s bankruptcy estate
during the due diligence process in 2003. KOT admits that Jomed showed the Portfolio
Evaluation to Abbott Laboratories during the course of due diligence.
KOT relies on Hewlett-Packard Co. v. Bausch & Lomb Inc., 115 F.R.D. 308 (N.D. Cal.
1987). That case confronted a similar situation where one defendant disclosed an attorney’s
opinion letter in the process of negotiating the sale of a business. The court concluded that “the
interests that would be harmed by finding waiver in these circumstances outweigh the interests
that would be advanced by such a finding.” Id. at 309. In reaching that conclusion, the court
took a flexible stance in interpreting the “common interest” exception to waiver. Id. at 309-12.
The court also highlighted the strict conditions of confidentiality that were shown to be in place
during the disclosure. Id. at 311.
STC argues that Hewlett-Packard is distinguishable because KOT has not shown that
Jomed took substantial steps to assure that the prospective purchasers maintained the
confidentiality of the Portfolio Evaluation. Also, STC distinguishes Hewlett-Packard because
in that case the court found that the prospective seller and buyer jointly anticipated litigation in
which they would have a common interest, because the purchase would probably lead to the
Case 5:04-cv-03843-RMW Document 546 Filed 03/19/07 Page 2 of 7
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For the Northern District of California
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two companies both working to defend the same patent in one lawsuit. STC argues that KOT
has not shown that Jomed and prospective purchasers had a shared anticipation of litigation at
the time Pisano’s declaration was disclosed.
STC’s arguments are more compelling than KOT’s. KOT makes no showing that the
disclosure of the Portfolio Evaluation was conducted under strict standards of confidentiality.
Also, KOT does not show that Jomed and Abbott anticipated any specific litigation against a
common adversary. KOT has not borne its burden of showing that the privilege was not
waived.
Because the court finds that attorney-client privilege was waived, it does not proceed to
analyze STC's next argument, that the privilege was extinguished when Jomed became defunct.
2. Work Product Protection
Federal Rule of Civil Procedure 26(b)(3) provides that a party may obtain discovery of
documents and things “prepared in anticipation of litigation or for trial by or for another party
or by or for that other party's representative ... only upon a showing that the party seeking
discovery has substantial need of the materials in the preparation of the party's case and that the
party is unable without undue hardship to obtain the substantial equivalent of the materials by
other means.”
The first issue is whether or not the Portfolio Evaluation was “prepared in anticipation
of litigation.” There is “both a subjective and objective element to the inquiry; that is, a party
must ‘have had a subjective belief that litigation was a real possibility, and that belief must have
been objectively reasonable.’” United States v. Roxworthy, 457 F.3d 590, 594 (6th Cir. 2006)
(citations omitted). Pisano declares, under penalty of perjury, that Jomed sought the Portfolio
Evaluation in anticipation of potential civil lawsuits direct at Jomed’s Management Board
concerning allegations that the company’s funds had been misspent in connection with the
acquisition of certain technologies. Also, Jomed’s Bankruptcy Trustees’ Report shows that
several months after the Portfolio Evaluation was performed, the trustees actually did accuse
Jomed’s managers and directors of mismanagement. The court is satisfied that Jomed
subjectively anticipated litigation and that that belief was objectively reasonable.
Case 5:04-cv-03843-RMW Document 546 Filed 03/19/07 Page 3 of 7
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For the Northern District of California
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STC makes unconvincing waiver and extinguishment arguments, citing no case
specifically about work product. KOT points out that an attorney has an independent right to
claim work-product protection (Hobley v. Burge, 433 F.3d 946, 949 (7th Cir. 2006)), so any
waiver by Jomed or extinguishment of Jomed would not impact Pisano’s and Luce Forward’s
right to invoke work product protection. Also, work product protection is only waived when
the work product is shown to an adversary or when there is substantial risk that it will fall into
the hands of an adversary. Kendall et al., Matthew Bender Practice Guide: Federal Pretrial
Civil Procedure in Cal. § 24.102[3] (2006). Finally, work product protection “endures after
termination of the proceedings for which the documents were created.” Hobley, 433 F.3d at
949.
The main issue to be decided with respect to work product is whether STC has shown
“substantial need” for the Portfolio Evaluation. “The substantial need prong examines: 1)
whether the information is an essential element in the requesting party's case and 2) whether the
party requesting discovery can obtain the facts from an alternate source.” Fletcher v. Union
Pacific Railroad Co., 194 F.R.D. 666, 671 (S.D. Cal. 2000) (citing 6 James Wm. Moore et al.,
Moore's Federal Practice § 26.70[5][c], at 26-221 to 26-222 (3d ed.1999)). “A party...does not
demonstrate substantial need when it merely seeks corroborative evidence.” O’Connor v.
Boeing North American, Inc., 216 F.R.D. 640, 643 (C.D. Cal. 2003), citing Baker v. General
Motors Corp., 209 F.3d 1051, 1054 (8th Cir. 2000).
STC argues that it has shown the requisite good cause. There is a dispute about whether
Jomed thought the development of its applications for the bistable cell technology were going
well or not. STC argues that KOT has put Jomed’s state of mind at issue by asserting a
damages theory based on the contention that Jomed would not have licensed the bistable cell
technology to STC for anything less than tens of millions of dollars. Thus, STC would want to
use a negative Portfolio Evaluation to undermine this damages theory.
It seems that the Portfolio Evaluation would only serve as “corroborating evidence,”
because STC already has deposition testimony from Jomed and Abbott employees to support its
theory. The information sought is not an essential element of STC’s prima facie case.
Case 5:04-cv-03843-RMW Document 546 Filed 03/19/07 Page 4 of 7
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For the Northern District of California
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Therefore the court finds that the Portfolio Evaluation and the documents Pisano reviewed in
connection with composing this document remain protected by the work product doctrine, and
STC's motion is DENIED in this respect.
B. STC’s Complaints about KOT’s Document Production
STC alleges that many of the documents produced by KOT have not been originals and
have been produced in such a way as to obscure important information. STC also alleges that
KOT has failed to produce numerous responsive documents, thus warranting full disclosure of
KOT’s computer hard drives.
1. Originals
Based on the showing made by KOT in its papers, this issue appears to be moot. STC's
motion is therefore DENIED in this respect.
2. Incomplete Production
STC wants KOT to produce its computers and storage media for forensic inspection by a
third party consultant pursuant to a protocol to be determined by the parties or the court. STC
argues that this is especially appropriate in light of KOT’s “selective and incomplete document
production” and failure to preserve hard drives. For several reasons, the court DENIES STC's
motion in this respect.
First, this case is distinguishable from other cases where courts have allowed
independent experts to obtain and search a “mirror image” of a party’s computer equipment.
These cases all involve an extreme situation where data is likely to be destroyed or where
computers have a special connection to the lawsuit. For instance, in Ameriwood Industries, Inc.
v. Liberman, No. 4:06CV524-DJS, 2006 WL 3825291 (E.D. Mo. Dec. 27, 2006), the court
allowed such a search where the main allegation of the complaint was that defendants
improperly used their employer’s computers to sabotage the plaintiff’s business. In Physicians
Interactive v. Lathian Sys. Inc., No. CA 03-1193-A, 2003 WL 23018270 (E.D. Va. Dec. 5,
2003), the court granted limited expedited discovery of the mirror image of defendants’ hard
drives where the plaintiff alleged that the defendants had launched attacks on plaintiff’s file
servers, and electronic data related to those attacks was apparently on the computers. In
Case 5:04-cv-03843-RMW Document 546 Filed 03/19/07 Page 5 of 7
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For the Northern District of California
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Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645 (D.Minn. 2002) the court allowed hard
drive mirroring where the defendants’ continuous use of computers was making it likely that
relevant electronic data would be overwritten before it could be accessed in the normal course
of discovery. Meanwhile, the Tenth Circuit has ruled that a mere desire to check that the
opposition has been forthright in its discovery responses is not a good enough reason. See
McCurdy Group LLC v. American Biomedical Group, Inc., 9 Fed.Appx. 822, 831 (10th Cir.
2001). The current lawsuit is simply not comparable to the cases discussed above where
computer content was intricately related to the very basis of the lawsuit.
Second, KOT states that it has made a reasonable search for documents responsive to all
of STC’s document requests. KOT representatives testified at depositions that they searched
the hard drives of all of their computers for potentially responsive documents. STC can only
point to two missing emails out of thousands of documents produced in this discovery-intensive
case. While KOT’s document production may not have been absolutely perfect, the flaws do not
rise to the level of necessitating production of hard drives.
Finally, it is too late in the game to be designing a protocol for an independent
consultant to search hard drives. Fact discovery closed in February. The case goes to trial in
April. STC's motion is DENIED.
IT IS SO ORDERED.
Dated: 3/19/07 ____________________________________
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE
Case 5:04-cv-03843-RMW Document 546 Filed 03/19/07 Page 6 of 7
United States District Court
For the Northern District of California
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THIS SHALL CERTIFY THAT A COPY OF THIS ORDER WILL BE SENT TO:
Michael H. Bierman [email protected],
William J. Cass [email protected],
Kimberly K. Dodd [email protected], [email protected]
Nancy J. Geenen [email protected], [email protected]
Benjamin J. Holl [email protected], [email protected]
Thomas J Mango [email protected]
David B. Moyer [email protected], [email protected]; [email protected];
[email protected]
Nicola A. Pisano [email protected]
Charles A. Reid , III [email protected], [email protected]; [email protected];
[email protected]; [email protected]
Andrew C Ryan [email protected],
Jeffrey David Wexler [email protected], [email protected]
Counsel are responsible for forwarding a copy to co-counsel who have not registered for efiling.
Case 5:04-cv-03843-RMW Document 546 Filed 03/19/07 Page 7 of 7 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-azd-2_07-cv-01002/USCOURTS-azd-2_07-cv-01002-3/pdf.json | 423 | Bankruptcy Withdrawal 28 USC 157 | 28:0157 Motion for Withdrawal of Reference | 1
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
In re:
No. CIV. 07-1002-PHX-SMM
AMERICAN NATIONAL MORTGAGE
PARTNERS, LLC,
Debtor.
_____________________________________
In re:
ANMP 74th ST., LLC,
Debtor.
_____________________________________
TAYLOR R. COLEMAN,
Plaintiff,
v.
VERN SCHWEIGERT and JANE DOE
SCHWEIGERT; BILTMORE ASSOCIATES
L.L.C., an Arizona Limited Liability
Company; JAMES C. SELL and JANE DOE
SELL; LYMAN DAVIS; AMERICAN
NATIONAL MORTGAGE PARTNERS,
L.L.C., an Arizona Limited Liability
Company; DAVID HOPKINS and JANE DOE
HOPKINS; STANLEY CHERNOFF and
JANE DOE CHERNOFF; MARK FRANKS
and JANE DOE FRANKS, and BRETT
FREDERICK and JANE DOE FREDERICK;
CASTLE REALTY CORPORATION, an
Arizona Corporation; 300 EAST
CAMELBACK, L.L.C., an Arizona Limited
Liability Company; REAL ESTATE HOLDING
Corporation; I17-DUNLAP, L.L.C., an
Arizona Limited Liability Company;
Case 2:07-cv-01002-SMM Document 31 Filed 12/27/07 Page 1 of 2
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- 2 -
SILVERDALE BUILDING, L.L.C., an
Arizona Limited Liability Company; EAST
SPRAGUE AVENUE, L.L.C., a Washington
Limited Liability Company; 522 N.
COLUMBIA CENTER BLVD., L.L.C., an
Arizona Limited Liability Company; 9815
S.W. CAPITOL HIGHWAY, L.L.C., an
Arizona Limited Liability Company; DEER
VALLEY/26th AVENUE, L.L.C., an Arizona
Limited Liability Company; 1851 E. FIFTH
AVE., L.L.C., an Arizona Limited Liability
Company; 5110 CENTRAL AVENUE S.E.,
L.L.C., a New Mexico Limited Liability
Company; 8315 EAST APACHE TRAIL,
L.L.C., an Arizona Limited Liability
Company; 6015 TACOMA MALL BLVD.,
L.L.C., a Washington Limited Liability
Company,
Defendants.
Pending before the Court is the Defendant’s Motion to Withdraw the Reference to the
Bankruptcy Court filed by Taylor Coleman (Doc. 2). On August 7, 2007, the Bankruptcy
Court held a hearing on the issue of whether or not the claims in Plaintiff’s Complaint are
“core” or “noncore”. Accordingly, the parties are to file with this Court, no later than
January 11, 2008, supplemental briefs no longer than 5 pages in length, which include the
findings of the bankruptcy Court and how said findings effect the parties’ respective
positions as they relate to the pending motion to withdraw.
DATED this 27th day of December, 2007.
Case 2:07-cv-01002-SMM Document 31 Filed 12/27/07 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_10-cv-01848/USCOURTS-caed-2_10-cv-01848-27/pdf.json | 550 | Prisoner - Civil Rights (U.S. defendant) | 42:1983 Prisoner Civil Rights | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ANTHONY R. TURNER,
Plaintiff,
v.
WARDEN SALINAS, ET AL.,
Defendants.
___________________________/
No. 2:10-cv-01848-MCE-KJN-P
ORDER CONTINUING TRIAL
After review of the Motion for Continuance of Trial Date
(ECF No. 120), the Motion is granted. Accordingly, the
January 6, 2014 jury trial is vacated and continued to
February 24, 2014, at 9:00 a.m. in Courtroom 7. The parties
shall file trial briefs not later than December 16, 2013.
Counsel are directed to Local Rule 285 regarding the content of
trial briefs.
Accordingly, the November 14, 2013 Final Pretrial Conference
is vacated and continued to December 19, 2013, at 2:00 p.m. in
Courtroom 7. The Joint Final Pretrial Statement is due not later
than November 27, 2013 and shall comply with the procedures
outlined in the Court’s Pretrial Scheduling Order.
1
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The personal appearances of the trial attorneys or person(s) in
pro se is mandatory for the Final Pretrial Conference.
Telephonic appearances for this hearing are not permitted.
Any evidentiary or procedural motions are to be filed by
November 27, 2013. Oppositions must be filed by December 4, 2013
and any reply must be filed by December 11, 2013. The motions
will be heard by the Court at the same time as the Final Pretrial
Conference.
IT IS SO ORDERED.
Dated: October 22, 2013
_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE
2
Case 2:10-cv-01848-MCE-KJN Document 121 Filed 10/23/13 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-alnd-4_06-cv-01134/USCOURTS-alnd-4_06-cv-01134-1/pdf.json | 110 | Insurance | 28:1332 Diversity-Insurance Contract | IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
NATIONWIDE MUTUAL INSURANCE
COMPANY,
Plaintiff,
v.
DARRELL G. WILLIAMS; WANDA F.
WILLIAMS,
Defendants.
}
}
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}
}
}
}
}
Case No.: 4:06-CV-1134-RDP
MEMORANDUM OPINION
The court has before it Plaintiff Nationwide Mutual Insurance Company’s (“Nationwide”)
Motion for Summary Judgment against Defendants Darrell G. Williams and Wanda F. Williams
(collectively the “Williams Defendants”) (Doc. # 27) filed September 19, 2006. Pursuant to the
court’s briefing scheduling for summary judgment motions, the Williams Defendants’ opposition
was due by October 10, 2006. (Doc. # 19, at Appendix II). As of the date of entry of this order, no
opposition has been filed and therefore, the Plaintiff’s unopposed motion for summary judgment is
properly under submission. For the reasons outlined below, the court finds that the motion is due
to be granted.
I. Procedural History
This action was commenced on June 9, 2006, by the filing of Nationwide’s declaratory
judgment complaint against Scott Gober, individually (“Gober”), Scott Gober Construction, LLC
(“SGC”), and the Williams Defendants. (Doc. # 1). Nationwide’s complaint seeks a declaration
regarding its duties to indemnify and defend Defendant Gober and SGC, who have been sued by the
Williams Defendants in the underlying action, Darrell G. Williams and Wanda F. Williams v. Scott
FILED
2006 Nov-13 AM 10:36
U.S. DISTRICT COURT
N.D. OF ALABAMA
Case 4:06-cv-01134-RDP Document 29 Filed 11/13/06 Page 1 of 9
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Gober, Scott Gober Construction Company, LLC, et al., CV-05-1118, pending in the Circuit Court
of Etowah County, Alabama.
The Williams Defendants are the only defendants remaining in this lawsuit. Gober was
dismissed from this action on August 24, 2006 after properly notifying this court that he had filed
for bankruptcy in the United States Bankruptcy Court for the Northern District of Alabama pursuant
to Chapter 7 of the Bankruptcy Code. (Doc. # 20). On September 11, 2006, Plaintiff was granted
a default judgment against SGC because that entity failed to answer or otherwise defend the
arguments located in Nationwide’s complaint. (Doc. # 26). The default judgment entered against
SGC declared that Nationwide is not obligated to defend nor indemnify SGC in the underlying
action. (Doc. # 26).
Nationwide now moves for summary judgment in its favor in the form of a declaration that
it owes no duty to indemnify the Williams Defendants in the underlying lawsuit on the grounds that
the their underlying complaint does not implicate coverage under the general business liability
policy, Contractors Policy No. 77 AC 738-703-3001, issued to Gober and SGC because (1) there are
no allegations of “bodily injury” or “property damage” caused by an “occurrence” and (2) several
relevant policy exclusions defeat coverage.
II. Legal Standards for Evaluating a Summary Judgment Motion
Summary judgment is proper only when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Fed. R .Civ. P. 56(c). All reasonable doubts
about the facts and all justifiable inferences are resolved in favor of the nonmovant. See Fitzpatrick
v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Case 4:06-cv-01134-RDP Document 29 Filed 11/13/06 Page 2 of 9
If facts are in dispute, they are stated in the manner most favorable to the non-movants.
1
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).
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Inc., 477 U.S. 242, 248 (1986). If the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted. See id. at 249.
II. Relevant Undisputed Facts
1
Nationwide issued SGC an insurance policy, which was effective from February 25, 2004
until February 25, 2005, and then renewed until February 25, 2006. (Doc. # 28, Ex. 3). The
insurance policy issued by Nationwide to SGC provides “business liability” coverage which is
described as follows: “[w]e will pay those sums that the insured becomes legally obligated to pay
as damages because of ‘bodily injury,’ ‘property damage,’ ‘personal injury’ or ‘advertising injury’
to which this insurance applies.” (Doc. # 28, Ex. 3). The policy further states that, “[n]o other
obligation or liability to pay sums or perform acts or services is covered unless explicitly provided
for under COVERAGE EXTENSION – SUPPLEMENTAL PAYMENTS.” (Doc. # 28, Ex. 3).
Specifically, the policy provides that insurance applies:
(1) To “bodily injury” or “property damage” only if:
(a) The “bodily injury” or “property damage” is caused by an “occurrence” that
takes place in the “coverage territory”; and
(b) The “bodily injury” or “property damages” occurs during the policy period.
(2) To:
(a) “Personal injury” caused by an offense arising out of your business, excluding
advertising, publishing, broadcasting or telecasting done by or for you;
(b) “Advertising injury” caused by an offense committed in the course of
advertising your goods, products or services; but only if the offense was
committed in the “coverage territory” during the policy period.
Case 4:06-cv-01134-RDP Document 29 Filed 11/13/06 Page 3 of 9
The court has not reproduced all of those provisions here, but instead will refer to them as 2
necessary in the body of this opinion.
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(3) Damages because of “bodily injury” include damages claimed by any
person or organization for care, loss of services or death resulting at
any time from the “bodily injury.”
(4) “Property damage” that is loss of use of tangible property that is not
physically injured will be deemed to occur at the time of the “occurrence” that caused
it.
(Doc. # 28, Ex. 3). Certain exclusions to coverage and definitions of the relevant terms further
outline the scope of policy coverage. (Doc. # 28, Ex. 3).2
The underlying lawsuit filed by the Williams Defendants asserts that Gober and SGC failed
to properly construct a residence. (Doc. # 28, Ex. 4). The complaint asserts claims for breach of
contract, fraudulent misrepresentation, negligence and/or wantonness, negligent and/or wanton
construction, civil conspiracy, and breach of warranty. (Doc. # 28, Ex. 4). The Williams Defendants
seek damages including: (1) losing “the use of their monies;” (2) incurring expenses to cure defects
to make the home habitable as a residence; (3) incurring future expenses to repair defects in the
home; (4) losing the quiet enjoyment of their residence; (5) suffering severe mental anguish and
emotional distress; and (6) losing the value of their home. (Doc. # 28, Ex. 4).
III. Applicable Substantive Law and Discussion
As outlined below, the court finds that Nationwide has no duty to indemnify the Williams
Defendants for any actions taken by Gober and SGC as alleged in the underlying action for the
following reasons: (1) none of the events giving rise to the breach of contract, fraudulent
misrepresentation, negligence and/or wantonness, negligent and/or wanton construction, civil
conspiracy, and breach of warranty claims fall within the definition of “occurrence” in the policy;
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(2) SGC and Gober’s actions giving rise to the claims for breach of contract, negligence and/or
wantonness, negligent and/or wanton construction, fraudulent misrepresentation, and breach of
warranty are excluded from coverage by the “property damage” and “professional services” policy
exclusions; and (3) because the claim for civil conspiracy is an intentional tort, SGC and Gober are
not entitled to a defense and/or indemnity as the intentional acts of the insured are excluded from
coverage.
A. The Definition of Occurrence
It is undisputed that the policy at issue in this case limits coverage to an “occurrence,”
defined as “an accident, including continuous or repeated exposure to substantially the same general
harmful conditions.” (Doc. # 28, Ex. 3). Not only have the Williams failed to allege in their
complaint they suffered any damage as a result of “an accident, including continuous or repeated
exposure to substantially the same general harmful conditions (Doc. # 28, Ex. 4)," but the relevant
case law makes clear that the Williams’ claims for faulty workmanship and defective construction
cannot constitute an “occurrence” necessary to trigger coverage under this policy. See Berry v. South
Carolina Ins. Co., 495 So. 2d 511, 512 (Ala. 1985) (finding no coverage for lawsuit by homeowners
against contractor for breach of contract, misrepresentation, and breach of warranty because
homeowners failed to allege that “any damage to the existing structure [was] a result of ‘an accident,
including continuous or repeated exposure to conditions’” and “all of the ‘damages’ [were] related
to the work done pursuant to the contract”); United States Fidelity & Guar. Co. v. Warwick
Development Co., Inc., 446 So. 2d 1021, 1023 (Ala. 1984) (finding that “faulty workmanship” and
use of non-complying materials did not constitute an “accident” for purposes of the policy’s
definition of an “occurrence” which is identical to the one in this case).
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Therefore, based upon the authority of Berry and Warrick, the court finds that the conduct
described by the Williams Defendants in their underlying complaint falls outside of the definition
of “occurrence” and thus, outside of the scope of coverage. Accordingly, Nationwide is due to have
summary judgment granted in its favor.
B. Property Damage and Professional Services Exclusions
In addition, for the reasons stated below, the court also finds that the policy exclusions for
“Damage to Your Product” and “Professional Services” bar coverage for the Williams Defendants’
claims in the underlying lawsuit.
First, the policy excludes coverage for property damage to the contractor’s “product” arising
out of the contractor’s “work,” which includes “[w]ork or operations performed by you or on your
behalf . . . [and] [m]aterials, parts, or equipment furnished in connection with such work or
operations,” including “warranties or representations made at any time with respect to the fitness,
quality, durability, performance or use of ‘your product.’” (Doc. # 28, Ex. 3, at 12). Alabama courts
construing similar contract provisions have held that such provisions exclude coverage for damage
to the actual product or work of the insured. See, e.g., USF&G v. Bonitz Insulation Co. of Ala., 424
So. 2d 569, 573 (Ala. 1982) (finding no coverage for contractor as to property owner’s claim that
the contractor negligently installed a roof because the roof was “work” performed by the insured).
In this case, the Williams Defendants allege that SGC and Gober’s construction of their home
was faulty and defective, and they make no allegations of damage to any other property other than
the home itself. (Doc. # 28, Ex. 4). Based upon both Alabama precedent and the unambiguous
policy definitions of “work” and “product,” the court finds that all of the property damage alleged
in the underlying lawsuit arose out of SGC and Gober’s “work” and constitutes damages to their
Case 4:06-cv-01134-RDP Document 29 Filed 11/13/06 Page 6 of 9
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“product.” Accordingly, the Williams Defendants’ underlying claims against SGC and Gober are
excluded from coverage under the “Damage to Your Product” policy exclusion.
Second, the court finds that the policy exclusion for claims relating to, or arising out of, SGC
and Gober’s rendering or failure to render “professional services” bars coverage for the claims in the
underlying lawsuit. Although the policy does not specifically define “professional services,” it
specifies that those services include: (1) the “[p]reparing, approving, or failing to prepare or approve
[...] drawings, opinions, reports, surveys, [...] designs or specifications”; and (2) “[s]upervisory,
inspection or engineering services.” (Doc. # 28, Ex. 3). Here, theWilliams Defendants’ claims arise
out of SGC and Gober’s professional contractor services, including ascertaining the objectives for
the house, formulating an “opinion” on how the house could or should be constructed, hiring the
necessary subcontractors for constructing the house, obtaining any reports, surveys, designs or
specifications necessary to construct the house, and constructing the house based upon SGC and
Gober’s analysis of all this information. (Doc. # 28, Ex. 4).
Based upon the plain language of the policy, the court finds that the services rendered by
SGC and Gober to the Williams Defendants fall within the policy exclusion for “professional
services.” See also Brosnahan Builders, Inc. v. Harleysville Mut. Ins. Co., 137 F. Supp. 2d 517 (D.
Del. 2001)(finding that general contractor “was directly responsible for supervising and inspecting
the work of the subcontractor to ensure that the home was built properly and in accordance with the
terms of the contract” and that his failure to adequately render a “professional service” was not
covered under his contractor’s policy); Vogelsang v. Allstate Ins. Co., 46 F. Supp. 2d 1319, 1323
(S.D. Fla. 1999)(finding that claims against insured attorney arising out of insured’s representation
in the divorce proceeding were excluded as “professional services” because the attorney’s “liability
Case 4:06-cv-01134-RDP Document 29 Filed 11/13/06 Page 7 of 9
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flowed directly from [the] performance of a professional activity” and did not stem from “the
commercial aspect of his business”); Allstate Ins. Co. v. Sellers-Bok, 942 F. Supp. 1428, 1433 (M.D.
Ala. 1996)(adopting Black’s Law definition of “professional services” as services relating to
“vocation or occupation requiring special, usually advanced, education, knowledge, and skill” and
finding that psychiatrist’s report and clinical observations constituted “professional services” within
the meaning of the policy exclusion). Accordingly, for this alternative reason, Nationwide is due
summary judgment on the issue of whether it owed a duty to indemnify SGC and Gober in the
underlying action with respect to the claims asserted by the Williams Defendants.
C. Intentional Tort Exclusion
Finally, the court finds that Nationwide has no duty to indemnify SGC and Gober with
respect to their civil conspiracy claim the Williams Defendants have asserted in the underlying
action. This is because any injury arising from such a claim is excluded from coverage as “‘bodily
injury’ or ‘property damage’ expected or intended from the standpoint of the insured.” (Doc. # 28,
Ex. 3, at 2). In order to prevail on their conspiracy claim, the Williams Defendants must show that
SGC and Gober (1) agreed with at least one co-conspirator, (2) to accomplish an unlawful end, and
(3) intended to have that unlawful end brought about. First Bank of Childersburg v. Florey, 676 So.
2d 324 (Ala. Civ. App. 1996). Because a claimed conspirator must have “actual knowledge of, and
the intent to bring about, the object of the claimed conspiracy,” Florey, 676 So. 2d at 327, SGC and
Gober could not have committed the tort of civil conspiracy without “expecting or intending” to
cause injury to the underlying plaintiffs. See also Ladner and Company, Inc. v. Southern Guaranty
Ins., Co., 347 So. 2d 100 (Ala. 1977) (finding no duty to defend a civil conspiracy claim brought by
property owners against a construction company for injuries suffered by them when their homes
Case 4:06-cv-01134-RDP Document 29 Filed 11/13/06 Page 8 of 9
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flooded because the claim was based upon conduct expected or intended from the standpoint of the
insured). Accordingly, because the civil conspiracy claim brought by the Williams Defendants is
excluded from the policy’s coverage, Nationwide is not obligated to indemnify them for any
conspiratorial conduct by SGC and Gober.
V. Conclusion
For the reasons outlined above, Plaintiff’s unopposed motion for summary judgment is due
to be granted. The court will enter a separate order declaring that Plaintiff Nationwide owes no duty
to indemnify Darrell and Wanda Williams for any actions by Scott Gober or Scott Gober
Construction Company, LLC under the liability policy issued to Scott Gober Construction Company,
LLC.
DONE and ORDERED this 13th day of November, 2006.
___________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
MARK NOBILI,
Plaintiff,
v.
CALIFORNIA HIGHWAY PATROL,
et al.,
Defendants.
No. 2:12-cv-02804-MCE-GGH
MEMORANDUM AND ORDER
Through this action, Plaintiff Mark Nobili (“Plaintiff”) seeks to recover damages
from Defendants Galley and Manciu (collectively, “Defendants”) for their alleged violation
of Plaintiff’s constitutional right to be free from unreasonable seizures. Presently before
the Court is Defendants’ Motion for Summary Judgment (ECF No. 35). For the reasons
that follow, Defendants’ Motion for Summary Judgment is DENIED.
1
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1 Because oral argument would not have been of material assistance, the Court ordered this
matter submitted on the briefs. See E.D. Cal. Local Rule 230(g).
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BACKGROUND2
Defendants are California Highway Patrol (“CHP”) Officers. On June 26, 2010,
Defendants were patrolling downtown Sacramento in a fully marked CHP vehicle. At
approximately 1:00 a.m., Galley allegedly observed Plaintiff driving a truck without his
seatbelt fastened. Based on that observation alone, Defendants initiated a traffic stop.
Plaintiff pulled over and Galley walked to the driver’s side window of Plaintiff’s truck.
When Galley approached Plaintiff, he noticed that Plaintiff’s seatbelt was fastened.
Nevertheless, Galley informed Plaintiff that he initiated the traffic stop because Plaintiff
was driving without his seatbelt fastened, in violation of California Vehicle Code section
27315.
While speaking with Plaintiff, Galley observed a strong odor of alcohol in the truck
and that Plaintiff’s eyes were red and watery. Plaintiff denied that he had been drinking
alcohol, but Galley’s observations and Plaintiff’s performance on field sobriety tests
indicated otherwise. Galley placed Plaintiff under arrest for driving under the influence in
violation of California Vehicle Code section 23152. Two breathalyzer tests indicated
that Plaintiff had a blood alcohol content of .15%.3
Plaintiff’s SAC, which is unverified, alleges that Galley is simply lying about
observing Plaintiff driving without his seatbelt fastened: not only did Plaintiff have his
seatbelt fastened when Galley allegedly observed otherwise, “both officers knew” he had
his seatbelt fastened at that time. SAC at 5 (emphasis added). The SAC also notes that
there is video footage indicating that Plaintiff’s seatbelt was fastened when he exited a
parking garage just minutes before Defendants initiated the traffic stop.
2 The following statement of facts is based on the allegations in Plaintiff’s Second Amended
Complaint (“SAC”) (ECF No. 18) and Defendants’ Motion for Summary Judgment (ECF No. 35). Unless
otherwise noted, the parties do not dispute these facts.
3 The Sacramento County District Attorney’s Office dismissed the criminal case against Plaintiff
after a Sacramento County Superior Court Judge granted Plaintiff’s motion to suppress evidence on the
basis that Defendants did not have probable cause to initiate the traffic stop. Plaintiff and Galley testified
at the suppression hearing.
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STANDARDS
A. Summary Judgment
The Federal Rules of Civil Procedure provide for summary judgment when “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). One of the principal
purposes of Rule 56 is to dispose of factually unsupported claims or defenses. Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986).
In a summary judgment motion, the moving party always bears the initial
responsibility of informing the court of the basis for the motion and identifying the
portions in the record “which it believes demonstrate the absence of a genuine issue of
material fact.” Id. at 323. If the moving party meets its initial responsibility, the burden
then shifts to the opposing party to establish that a genuine issue as to any material fact
actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986).
In attempting to establish the existence or non-existence of a genuine factual
dispute, the party must support its assertion by “citing to particular parts of materials in
the record, including depositions, documents, electronically stored information,
affidavits[,] or declarations . . . or other materials; or showing that the materials cited do
not establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The
opposing party must demonstrate that the fact in contention is material, i.e., a fact that
might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 251-52 (1986). The opposing party must also demonstrate that
the dispute about a material fact “is ‘genuine,’ that is, [] the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. at 248. In other
words, the judge needs to answer the preliminary question before the evidence is left to
the jury of “not whether there is literally no evidence, but whether there is any upon
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which a jury could properly proceed to find a verdict for the party producing it, upon
whom the onus of proof is imposed.” Id. at 251 (quoting Improvement Co. v. Munson,
81 U.S. 442, 448 (1871)) (emphasis in original). As the Supreme Court explained:
“When the moving party has carried its burden under Rule [56(a)], its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita, 475 U.S. at 586. Therefore, “[w]here the record taken as a whole could not
lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for
trial.’” Id. at 87.
In resolving a summary judgment motion, the evidence of the opposing party is to
be believed, and all reasonable inferences that may be drawn from the facts placed
before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at
255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s
obligation to produce a factual predicate from which the inference may be drawn.
Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d,
810 F.2d 898 (9th Cir. 1987).
B. Qualified Immunity
The doctrine of qualified immunity protects government officials “from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). More succinctly: “Qualified immunity is applicable
unless the official’s conduct violated a clearly established constitutional right.”
Pearson v. Callahan, 555 U.S. 223, 232 (2009).
C. Fourth Amendment Search and Seizure
The Fourth Amendment guarantees “[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” Temporary
detention of individuals during the stop of an automobile by
the police, even if only for a brief period and for a limited
purpose, constitutes a “seizure” of “persons” within the
meaning of this provision. An automobile stop is thus subject
to the constitutional imperative that it not be “unreasonable”
under the circumstances. As a general matter, the decision
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to stop an automobile is reasonable where the police have
probable cause to believe that a traffic violation has occurred.
Whren v. United States, 517 U.S. 806, 809-10 (1996) (citations omitted).
ANALYSIS
As the moving party, Defendants bear the initial burden of informing the Court of
the basis of their Motion and identify the portions of the record that they believe
demonstrate the absence of a genuine issue of material fact. Defendants’ Motion
accomplishes both of these objections.
Defendants argue that they are entitled to qualified immunity because their
conduct did not violate Plaintiff’s constitutional rights.4 Specifically, Defendants argue
that they had probable cause to believe that a traffic violation had occurred—and that
the seizure of Plaintiff was therefore reasonable—because Galley observed Plaintiff
driving without his seatbelt fastened in violation of the California Vehicle Code.
Defendants further argue that the seizure of Plaintiff was not unreasonable even if
Galley’s observation was mistaken and Plaintiff did have his seatbelt fastened. Def.s’
Mot. at 7 (citing Heien v. North Carolina, 135 S. Ct. 530 (2014)). In addition to stating
the basis of their Motion, Defendants also identify the portions of the record that they
believe support their arguments (such as Galley’s and Manciu’s declarations).
Accordingly, Defendants have fulfilled their initial burden.
Plaintiff’s Reply, however, establishes that there is a genuine issue of material
fact that precludes summary judgment. Specifically, the parties dispute whether Galley
was mistaken about observing Plaintiff driving without his seatbelt fastened, or whether
he knew that Plaintiff’s seatbelt was fastened and is lying about having observed
otherwise. This dispute is material: if Galley was mistaken and his mistake was
4
Defendants do not suggest that the right to be free from unreasonable seizures is not a clearly
established right.
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reasonable,5 then Defendants had probable cause to initiate the traffic stop and the
seizure was reasonable under the Fourth Amendment; if Galley is lying about having
observed Plaintiff driving without his seatbelt fastened, Defendants did not have
probable cause to initiate the traffic stop and the seizure was unreasonable under the
Fourth Amendment.
The dispute is also genuine. Contrary to Defendants’ version of events, Plaintiff
contends that his seatbelt was fastened and that Galley is lying about observing
otherwise. That specific allegation, however, appears only in Plaintiff’s unverified SAC
and his Opposition to Defendants’ Motion. See Butler v. San Diego Dist. Attorney’s
Office, 370 F.3d 956, 962 (9th Cir. 2004) (finding a district court erred in “assuming that
factual allegations in a plaintiff’s § 1983 complaint [we]re true when [] defendant move[d]
for summary judgment based on official immunity,” and explaining that district courts
must consider whether allegations have evidentiary support). Plaintiff does not contend
that he has direct evidence that Galley is lying; rather, he bases that inference on the
evidence indicating that he had his seatbelt fastened when Galley allegedly observed
otherwise. This raises two questions for the Court on Defendants’ Motion: (1) is the
evidence that Plaintiff had his seatbelt fastened while driving admissible, and (2) could a
rational trier of fact, examining the admissible evidence as a whole, conclude that Galley
did not observe Plaintiff driving without his seatbelt fastened (and thus had no
justification to initiate the traffic stop)?
In a single, conclusory sentence, Defendants argue—for the first time in their
Reply brief—that Plaintiff has “provide[d] no admissible evidence to support” the
contention that Galley is lying. Def.s’ Reply, ECF No. 42, at 2. Cf. Fraser v. Goodale,
342 F.3d 1032, 1036-37 (9th Cir. 2003) (explaining that at the summary judgment stage,
the focus is not on the admissibility of the evidence’s form, but on the admissibility of its
contents). Defendants fail to identify, and the Court cannot otherwise discern, the
grounds on which the following evidence would be inadmissible: (1) Plaintiff’s testimony
5
See Heien, 135 S. Ct. at 356 (“seizures based on mistakes of fact can be reasonable”).
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that he had his seatbelt fastened when Galley allegedly observed otherwise, and (2) the
videotape evidence indicating that Plaintiff had his seatbelt fastened just minutes before
Galley’s alleged observation. Thus, contrary to Defendants’ suggestion, Plaintiff has
produced admissible evidence to support the contention that Galley is lying about
observing Plaintiff driving without his seatbelt fastened.
The Court also finds that a rational trier of fact examining the admissible evidence
as a whole, could conclude that Galley did not observe Plaintiff driving without his
seatbelt fastened, that Galley did not otherwise have probable cause to believe that a
traffic violation had occurred, and that Defendants’ seizure of Plaintiff was therefore
unreasonable. In fact, the Sacramento County Superior Court Judge that presided over
the suppression hearing opined as much. See Ortiz Decl. (Ex. A, 38:10-11), ECF No. 40
(suggesting that Galley was acting on “his eagerness to enforce the DUI law”).
Defendants’ arguments to the contrary are not persuasive. Their emphasis on
Heien, for example, is misplaced. In Heien, the Supreme Court explained that “seizures
based on mistakes of fact can be reasonable.” 135 S. Ct. at 536 (emphasis added).
Defendants acknowledge but fail to appreciate the significance of the qualifier in the
preceding quotation. They simply assume that Galley’s mistake of fact was reasonable.
See Def.’s Mot. at 7 (concluding, without discussing the reasonableness of Galley’s
mistake, that Galley’s “mistake does not establish a constitutional violation.”).
Defendants also fail to appreciate that Plaintiff disputes whether Galley was mistaken;
again, Plaintiff contends that both Defendants knew he had his seatbelt fastened, and
that Galley lied about observing otherwise just to initiate the traffic stop. Defendants
also argue there is no evidence that they “had any animosity toward Plaintiff that
resulted in the traffic stop.” Def.s’ Reply at 3. Notwithstanding its accuracy, Defendants’
argument is irrelevant. The Fourth Amendment prohibits unreasonable seizures; it is
silent as to animosity.
On Defendants’ Motion for Summary Judgment, the Court must believe Plaintiff’s
evidence. Anderson, 477 U.S. at 255. Believing Plaintiff’s evidence that he had his
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seatbelt fastened when Galley allegedly observed otherwise, there is a triable issue as
to whether the traffic stop was effectuated without probable cause and was therefore an
unreasonable seizure. Accordingly, Defendants are not entitled to qualified immunity on
the ground that their actions did not amount to a constitutional deprivation.
CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No.
35) is DENIED.
IT IS SO ORDERED.
Dated: May 8, 2015
Case 2:12-cv-02804-MCE-KJN Document 44 Filed 05/11/15 Page 8 of 8 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca4-07-07467/USCOURTS-ca4-07-07467-0/pdf.json | 530 | Prisoner Petitions - Habeas Corpus | null | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7467
BENJAMIN JERMAIN TUCKER,
Petitioner - Appellant,
v.
NOTTOWAY CORRECTIONAL CENTER,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, District Judge.
(7:07-cv-00224)
Submitted: February 28, 2008 Decided: March 6, 2008
Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Benjamin Jermain Tucker, Appellant Pro Se. Kathleen Beatty Martin,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
Appeal: 07-7467 Doc: 14 Filed: 03/06/2008 Pg: 1 of 2
- 2 -
PER CURIAM:
Benjamin Jermain Tucker seeks to appeal the district
court’s order denying relief on his 28 U.S.C. § 2254 (2000)
petition. The order is not appealable unless a circuit justice or
judge issues a certificate of appealability. See 28 U.S.C.
§ 2253(c)(1) (2000). A certificate of appealability will not issue
absent “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this
standard by demonstrating that reasonable jurists would find that
any assessment of the constitutional claims by the district court
is debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. See Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S.
473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).
We have independently reviewed the record and conclude that Tucker
has not made the requisite showing. Accordingly, we deny a
certificate of appealability and dismiss the appeal. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
DISMISSED
Appeal: 07-7467 Doc: 14 Filed: 03/06/2008 Pg: 2 of 2 |
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
THERESA BROOKE,
Plaintiff,
v.
H&K PARTNERSHIP, a California
partnership dba Best Economy Inn & Suites,
Defendant.
____________________________________
THERESA BROOKE,
Plaintiff,
v.
C & S CHONG INVESTMENT
CORPORATION, a California corporation
dba La Quinta Inn Bakersfield North,
Defendant.
____________________________________
THERESA BROOKE,
Plaintiff,
v.
JDS HOSPITALITY GROUP, LLC, a
California limited liability company dba
Days Inn Bakersfield,
Defendant.
Case No.: 1:16-cv-1406-AWI-JLT
ORDER STAYING ALL OF THE RELATED
ACTIONS
Case No.: 1:16-cv-1407-LJO-JLT
Case No.: 1:16-cv-1408-DAD-JLT
Case 1:16-cv-01409-AWI-JLT Document 8 Filed 10/28/16 Page 1 of 9
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THERESA BROOKE,
Plaintiff,
v.
JHP HOSPITALITY GROUP, INC., a
California corporation dba Ramada Limited
Bakersfield North,
Defendant.
____________________________________
THERESA BROOKE,
Plaintiff,
v.
D.P.R.L. INVESTMENTS, LLC, a
California limited liability company dba
Hotel Rosedale,
Defendant.
____________________________________
THERESA BROOKE,
Plaintiff,
v.
KOO JIN HYUN & CHU MYUNG HEE,
trustees of the KOO JIN HYUN & CHU
MYUNG HEE TRUST dba Hampton Inn &
Suites Bakersfield North-Airport,
Defendants.
____________________________________
THERESA BROOKE,
Plaintiff,
v.
PRIME HOSPITALITY SERVICES, LLC, a
California limited liability company dba
Hampton Inn & Suites Bakersfield/Hwy 58,
Defendant.
Case No.: 1:16-cv-1409-AWI-JLT
Case No.: 1:16-cv-1410-LJO-JLT
Case No.: 1:16-cv-1411-DAD-JLT
Case No.: 1:16-cv-1414- LJO-JLT
Case 1:16-cv-01409-AWI-JLT Document 8 Filed 10/28/16 Page 2 of 9
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THERESA BROOKE,
Plaintiff,
v.
RP GOLDEN STATE MGT, LLC, a
California limited liability company dba
Garden Suites Inn,
Defendant.
____________________________________
THERESA BROOKE,
Plaintiff,
v.
KPK, INC., a California corporation dba
Travelodge Turlock,
Defendant.
____________________________________
THERESA BROOKE,
Plaintiff,
v.
LILJENQUIST MODESTO COMPANY,
LLC, a California limited liability company
dba Modesto Hotel,
Defendant.
____________________________________
THERESA BROOKE,
Plaintiff,
v.
METRO HOSPITALITY SERVICES, INC.,
a California corporation dba Hampton Inn
Fresno NW,
Defendant.
Case No.: 1:16-cv-1415-LJO-JLT
Case No.: 1:16-cv-1449-LJO -JLT
Case No.: 1:16-cv-1454-DAD-JLT
Case No.: 1:16-cv-1455- DAD-JLT
Case 1:16-cv-01409-AWI-JLT Document 8 Filed 10/28/16 Page 3 of 9
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THERESA BROOKE,
Plaintiff,
v.
JAYESHKUMAR PATEL, an individual;
PRAFULBHAI PATEL, an individual, both
individuals dba Budget Inn Modesto,
Defendants.
____________________________________
THERESA BROOKE,
Plaintiff,
v.
KHATRI BROTHERS, L.P., a California
limited partnership dba Clarion Modesto,
Defendant.
____________________________________
THERESA BROOKE,
Plaintiff,
v.
A&A TARZANA PLAZA, LP, a California
limited partnership dba Hilton Garden Inn
Clovis,
Defendant.
____________________________________
THERESA BROOKE,
Plaintiff,
v.
THANDI ENTERPRISES, LLC, a California
limited liability company dba Holiday Inn
Express Fresno,
Defendant.
____________________________________
Case No.: 1:16-cv-1456-LJO-JLT
Case No.: 1:16-cv-1465-AWI-JLT
Case No.: 1:16-cv-1499-AWI- JLT
Case No.: 1:16-cv-1503-DAD- JLT
Case 1:16-cv-01409-AWI-JLT Document 8 Filed 10/28/16 Page 4 of 9
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THERESA BROOKE,
Plaintiff,
v.
FRESNO AIRPORT HOTELS, LLC, a
California limited liability company dba
Ramada Fresno Airport,
Defendant.
____________________________________
THERESA BROOKE,
Plaintiff,
v.
KAINTH BROTHERS, INC., a California
corporation dba Country Inn Suites Fresno
North,
Defendant.
____________________________________
THERESA BROOKE,
Plaintiff,
v.
SHIV HOTELS, LLC, a California limited
liability company dba Hampton Inn Fresno,
Defendant.
____________________________________
THERESA BROOKE,
Plaintiff,
v.
SHIVKRUPA INVESTMENTS, INC., a
California corporation dba La Quinta Inn
Suites Fresno,
Defendant.
Case No.: 1:16-cv-1506-DAD- JLT
Case No.: 1:16-cv-1508-LJO- JLT
Case No.: 1:16-cv-1509-LJO- JLT
Case No.: 1:16-cv-1510-LJO- JLT
Case 1:16-cv-01409-AWI-JLT Document 8 Filed 10/28/16 Page 5 of 9
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THERESA BROOKE,
Plaintiff,
v.
SHRIGI, INC., a California corporation dba
Welcome Inn Fresno,
Defendant.
____________________________________
THERESA BROOKE,
Plaintiff,
v.
THE DAE SUNG & HEE JAE CHA TRUST
dba Quality Inn Tulare,
Defendant.
____________________________________
THERESA BROOKE,
Plaintiff,
v.
HANFORD INVESTORS, INC., a
California corporation dba Comfort Inn
Hanford,
Defendant.
____________________________________
THERESA BROOKE,
Plaintiff,
v.
INTERLINK PROPERTIES L.P., a
California limited partnership dba Hampton
Inn Visalia,
Defendant.
Case No.: 1:16-cv-1511-LJO- JLT
Case No.: 1:16-cv-1520-LJO- JLT
Case No.: 1:16-cv-1521-AWI- JLT
Case No.: 1:16-cv-1522-LJO- JLT
Case 1:16-cv-01409-AWI-JLT Document 8 Filed 10/28/16 Page 6 of 9
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THERESA BROOKE,
Plaintiff,
v.
NMA HOSPITALITY LLC, a California
limited liability company dba La Quinta
Tulare,
Defendant.
____________________________________
THERESA BROOKE,
Plaintiff,
v.
TERRA INVESTMENTS I, LLC, a
California limited liability company dba
Charter Inn Suites,
Defendant.
____________________________________
THERESA BROOKE,
Plaintiff,
v.
PICADILLY INN UNIVERSITY, dba
University Square Hotel,
Defendant.
____________________________________
THERESA BROOKE,
Plaintiff,
v.
DAYS INN OF FRESNO PARTNERSHIP,
dba Days Inn Fresno Central,
Defendant.
Case No.: 1:16-cv-1529-DAD- JLT
Case No.: 1:16-cv-1530-DAD- JLT
Case No.: 1:16-cv-1594-AWI- JLT
Case No.: 1:16-cv-1595-DAD- JLT
Case 1:16-cv-01409-AWI-JLT Document 8 Filed 10/28/16 Page 7 of 9
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A district court has the inherent power to stay its proceedings. This power to stay is “incidental
to the power inherent in every court to control the disposition of the causes on its docket with economy
of time and effort for itself, for counsel, and for litigants.” Landis v. North American Co., 299 U.S.
248, 254 (1936); see also Gold v. Johns–Manville Sales Corp., 723 F.2d 1068, 1077 (3d Cir.1983)
(holding that the power to stay proceedings comes from the power of every court to manage the cases
on its docket and to ensure a fair and efficient adjudication of the matter at hand). This is best
accomplished by the “exercise of judgment, which must weigh competing interests and maintain an
even balance.” Landis, 299 U.S. at 254–55. In determining whether to issue a stay, courts consider the
potential prejudice to the non-moving party; the hardship or inequity to the moving party if the action is
not stayed; and the judicial resources that would be saved by simplifying the case or avoiding
duplicative litigation if the case before the court is stayed. CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th
Cir.1962).
Recently, the Court ordered the plaintiff to show cause why the actions should not be dismissed
for lack of standing and lack of subject matter jurisdiction. To allow time for this issue to be resolved
and to avoid the occurrence of events inconsistent with the Court’s attempts to preserve judicial
resources—including, for example, the filing of motions to dismiss—until the standing issue is
resolved, the Court concludes that a stay is necessary. Thus, explicitly, the Court finds the parties’ and
the Court’s resources would be preserved if the matter was stayed pending the resolution of the
standing issue. Finally, the Court finds that there would be no hardship as a result of the brief stay that
it anticipates. Accordingly, the Court ORDERS:
THERESA BROOKE,
Plaintiff,
v.
PICADILLY INN EXPRESS,
Defendant.
Case No.: 1:16-cv-1596-DAD- JLT
Case 1:16-cv-01409-AWI-JLT Document 8 Filed 10/28/16 Page 8 of 9
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1. Except for the plaintiff’s obligation to comply with the orders to show cause, the
actions are STAYED. All other deadlines—including the obligation of the defendants to file
responsive pleadings—are not in effect at this time.
IT IS SO ORDERED.
Dated: October 28, 2016 /s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
Case 1:16-cv-01409-AWI-JLT Document 8 Filed 10/28/16 Page 9 of 9 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_09-cv-05439/USCOURTS-cand-3_09-cv-05439-0/pdf.json | 530 | Prisoner Petitions - Habeas Corpus | 28:2254 Petition for Writ of Habeas Corpus (State) | United States District Court
For the Northern District of California
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United States District Court
For the Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
DAVID G. GONZALEZ,
Petitioner,
v.
ROBERT K. WONG, warden,
Respondent. /
No. C 09-5439 MHP (pr)
ORDER TO SHOW CAUSE
INTRODUCTION
David G. Gonzalez, an inmate at San Quentin State Prison, filed this pro se action
seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the
court for review pursuant to 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section
2254 Cases.
BACKGROUND
Gonzalez states in his petition that he is serving a sentence of 16 years to life in prison
as a result of a conviction in an unstated court for second degree murder with use of a
weapon. His petition does not challenge his conviction but instead challenges an October 14,
2008 decision by the Board of Parole Hearings ("BPH") to find him not suitable for parole.
Gonzalez apparently filed an unsuccessful habeas petition in the California Supreme Court,
before filing this action.
/ / /
/ / /
Case 3:09-cv-05439-MHP Document 5 Filed 02/16/10 Page 1 of 3
United States District Court
For the Northern District of California
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DISCUSSION
This court may entertain a petition for writ of habeas corpus "in behalf of a person in
custody pursuant to the judgment of a State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
A district court considering an application for a writ of habeas corpus shall "award the writ or
issue an order directing the respondent to show cause why the writ should not be granted,
unless it appears from the application that the applicant or person detained is not entitled
thereto." 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in
the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See
Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
Petitioner alleges in his petition that the BPH's decision violated his federal right to
due process because it was not supported by sufficient evidence. Liberally construed, this
claim is cognizable in a federal habeas action.
The court is aware that a decision in a particular case pending in the Ninth Circuit
may provide guidance for the consideration of the petition. In Hayward v. Marshall, 9th Cir.
Case No. 06-55392, the panel's published decision, 512 F.3d 536 (9th Cir. 2008), was
vacated when rehearing en banc was granted on May 16, 2008. The en banc oral argument
took place on June 24, 2008, and the parties have finished their original briefing, as well as
two supplemental rounds of briefing. There is no set date for a decision in the Hayward,
however. Respondent should not seek a stay of this action pending a decision in Hayward.
See Yong v. INS, 208 F.3d 1116, 1120-22 (9th Cir. 2000) (it is an abuse of discretion for a
district court to stay a habeas petition indefinitely pending resolution of a different case
involving parallel issues on the basis of judicial economy). As an alternative to a stay, the
court will be receptive to a reasonable request for an extension of time if a decision in
Hayward is not issued by 30 days before the date respondent's brief is due.
/ / /
/ / /
Case 3:09-cv-05439-MHP Document 5 Filed 02/16/10 Page 2 of 3
United States District Court
For the Northern District of California
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CONCLUSION
For the foregoing reasons,
1. The petition's federal claim warrants a response.
2. The clerk shall serve by certified mail a copy of this order, the petition and all
attachments thereto upon respondent and respondent's attorney, the Attorney General of the
State of California. The clerk shall also serve a copy of this order on petitioner.
3. Respondent must file and serve upon petitioner, on or before June 11, 2010, an
answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases,
showing cause why a writ of habeas corpus should not be issued. Respondent must file with
the answer a copy of all portions of the parole hearing record that have been previously
transcribed and that are relevant to a determination of the issues presented by the petition.
4. If petitioner wishes to respond to the answer, he must do so by filing a traverse
with the court and serving it on respondent on or before July 16, 2010. Petitioner's traverse
may not exceed 20 pages in length.
5. Petitioner is responsible for prosecuting this case. He must keep the court
informed of any change of address and must comply with the court's orders in a timely
fashion. Failure to do so may result in the dismissal of this action for failure to prosecute
pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.
DATED: February 12, 2010
Marilyn Hall Patel
United States District Judge
Case 3:09-cv-05439-MHP Document 5 Filed 02/16/10 Page 3 of 3 |
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Case No. 4:10-CV-01059-SBA
STIPULATION RE: SCHEDULING ORDER
BAKER BOTTS L.L.P.
Bryant C. Boren Jr. (SBN 260602)
Kevin E. Cadwell (SBN 255794)
620 Hansen Way
Palo Alto, CA 94304
Telephone: (650) 739-7500
Facsimile : (650) 739-7699
Email: [email protected]
Email: [email protected]
Attorneys for Plaintiffs and Counterclaim Defendants
AT&T Intellectual Property I, L.P. and
AT&T Intellectual Property II, L.P.
IRELL & MANELLA LLP
Morgan Chu (SBN 70446)
Perry M. Goldberg (SBN 168976)
Andrei Iancu (SBN 184973)
1800 Avenue of the Stars, Suite 900
Los Angeles, CA 90067-4276
Telephone: (310) 277-1010
Facsimile: (310) 203-7199
Email: [email protected]
Email: [email protected]
Email: [email protected]
Attorneys for Defendant and Counterclaim Plaintiff
TiVo Inc.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
AT&T INTELLECTUAL PROPERTY I, L.P. and
AT&T INTELLECTUAL PROPERTY II, L.P.,
Plaintiffs,
v.
TIVO INC.,
Defendant.
AMENDED STIPULATION
CONCERNING THE COURT'S
CASE MANAGEMENT
SCHEDULING ORDER
Case No. 4:10-CV-01059-SBA
TIVO INC.,
Counterclaim Plaintiff,
v.
AT&T INTELLECTUAL PROPERTY I, L.P. and
AT&T INTELLECTUAL PROPERTY II, L.P.,
Counterclaim Defendants.
Case 4:10-cv-01059-SBA Document 38 Filed 07/21/10 Page 1 of 5 Case4:10-cv-01059-SBA Document37 Filed07/08/10 Page1 of 7
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Case No. 4:10-CV-01059-SBA -2-
STIPULATION RE: SCHEDULING ORDER
I. CORRECTIONS TO THE CASE MANAGEMENT SCHEDULING
ORDER ARE CORRECT AND APPROPRIATE
On June 24, 2010, the Court held an initial case management conference in the abovecaptioned case. The Court set a claim construction schedule based on the Local Patent Rules for
the Northern District of California. Among the dates set by the Court were the following:
Event Dates Set By Court at Case
Management Conference
Infringement Contentions
(Patent L.R. 3-1) due
July 8, 2010
Invalidity Contentions (Patent
L.R. 3-3) due
August 23, 2010
Proposed Terms for
Construction (Patent L.R. 4-1)
due
September 7, 2010
Preliminary Claim
Constructions (Patent L.R. 4-2)
due
September 27, 2010
Joint Claim Construction and
expert reports regarding claim
construction due (Patent L.R. 4-
3)
October 22, 2010
On July 1, 2010, the Court issued a Case Management Scheduling Order. Docket No. 34.
However, the Case Management Scheduling Order sets forth dates for the events listed above that
differ from the dates set by the Court at the initial case management conference. The dates set
forth in the Case Management Scheduling Order are as follows:
Case 4:10-cv-01059-SBA Document 38 Filed 07/21/10 Page 2 of 5 Case4:10-cv-01059-SBA Document37 Filed07/08/10 Page2 of 7
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Case No. 4:10-CV-01059-SBA -3-
STIPULATION RE: SCHEDULING ORDER
Event Dates Set By Court in
Scheduling Order
Infringement Contentions (Patent
L.R. 3-1) due
September 13, 2010
Invalidity Contentions (Patent
L.R. 3-3) due
September 28, 2010
Proposed Terms for Construction
(Patent L.R. 4-1) due
September 28, 2010
Preliminary Claim Constructions
(Patent L.R. 4-2) due
October 18, 2010
Joint Claim Construction and
expert reports regarding claim
construction due (Patent L.R. 4-3)
November 12, 2010
These dates deviate significantly from the Local Patent Rules. For example, defendant's
invalidity contentions are due fifteen days after plaintiffs' infringement contentions are served.
Under the Local Patent Rules, defendant should have forty-five days in which to prepare its
invalidity contentions. In addition, the parties' proposed terms for construction are due the same
day as defendant's invalidity contentions. Under the Local Patent Rules, the parties should have
fourteen days in which to identify their proposed terms for construction.
The other dates set by the Court (i.e., the dates that are not identified above) are correct.
However, the Case Management Scheduling Order contains the following italicized language in
the Deadline to Amend Pleadings Without Leave of Court: "TiVo proposes that this deadline
should not apply to inequitable conduct allegations (after this date it is necessary to obtain leave
of Court to amend pleadings)." Both parties agree that, in view of the Court's statements at the
initial case management conference, this language should be stricken.
Counsel for the parties jointly contacted the Court regarding the incorrect dates and the
italicized language in the Case Management Scheduling Order. The parties were told to file the
Case 4:10-cv-01059-SBA Document 38 Filed 07/21/10 Page 3 of 5 Case4:10-cv-01059-SBA Document37 Filed07/08/10 Page3 of 7
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Case No. 4:10-CV-01059-SBA -4-
STIPULATION RE: SCHEDULING ORDER
instant stipulation, requesting a correction of the Case Management Scheduling Order to reflect
the dates set by the Court at the initial case management conference (in accordance with the Local
Patent Rules) and removing the italicized language.
II. STIPULATION
THEREFORE, THE PARTIES HEREBY STIPULATE, by and through their respective
counsel, and respectfully request that the Court correct the Court's Case Management Scheduling
Order as follows:
Event Current Date New Corrected Date
Infringement Contentions (Patent
L.R. 3-1) due
September 13, 2010 July 8, 2010
Invalidity Contentions (Patent L.R.
3-3) due
September 28, 2010 August 23, 2010
Proposed Terms for Construction
(Patent L.R. 4-1) due
September 28, 2010 September 7, 2010
Preliminary Claim Constructions
(Patent L.R. 4-2) due
October 18, 2010 September 27, 2010
Joint Claim Construction and
expert reports regarding claim
construction due (Patent L.R. 4-3)
November 12, 2010 October 22, 2010
Deadline to amend pleadings
without leave of Court.
December 17, 2010 December 17, 2010
Case 4:10-cv-01059-SBA Document 38 Filed 07/21/10 Page 4 of 5 Case4:10-cv-01059-SBA Document37 Filed07/08/10 Page4 of 7
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Case No. 4:10-CV-01059-SBA
STIPULATION RE: SCHEDULING ORDER
DATED: July 8, 2010 Respectfully submitted,
BAKER BOTTS L.L.P.
By: /s/ Kevin E. Cadwell
Kevin E. Cadwell
Attorneys for Plaintiffs and Counterclaim
Defendants
AT&T Intellectual Property I, L.P. and
AT&T Intellectual Property II, L.P.
IRELL & MANELLA LLP
By: /s/ Azar Mouzari
Azar Mouzari
Attorneys for Defendant and Counterclaim
Plaintiff
TiVo Inc.
PURSUANT TO STIPULATION, IT IS SO ORDERED
Date: _________________________________
Hon. Saundra B. Armstrong
United States District Judge
Case4:10-cv-01059-SBA Document37 Filed07/08/10 Page5 of 7
7/20/10
Case 4:10-cv-01059-SBA Document 38 Filed 07/21/10 Page 5 of 5 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-casd-3_07-cv-00817/USCOURTS-casd-3_07-cv-00817-11/pdf.json | 362 | Medical Malpractice | 28:1346t Tort Claim | 1
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
OSWALDO ENRIQUE TOBAR, et
al.,
Plaintiff,
CASE NO. 07cv00817-WQH-JLB
ORDER
v.
UNITED STATES OF AMERICA,
Defendant.
HAYES, Judge:
The matter before the Court is Plaintiffs’ Emergency Rule 37 and Rule 26(b)
Motion. (ECF No. 207).
On September 24, 2015, Plaintiffs filed an Emergency Rule 37 and Rule 26(b)
Motion or in the Alternative Plaintiffs’ Motion for a Continuance explaining that on
September 16, 2015 Plaintiffs “obtained a written agreement . . . between the
governments of the United States and Ecuador which heretofore has not been produced
by Defendant.” (ECF No. 212 at 3). Plaintiffs attached a document titled
“OPERATIONAL PROCEDURES FOR BOARDING AND INSPECTING VESSELS
SUSPECTED OF ILLICIT TRAFFIC IN NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES AND OF SMUGGLING MIGRANTS BY SEA”
signed by Admiral Eduardo Navas Nájera and Rear Admiral Wayne Justice on August
20, 2006 (“the 2006 Agreement”).
During discovery, Plaintiffs served a Request for Production on Defendant
- 1 - 07cv00817-WQH-JLB
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requesting that Defendant provide “[a] copy of the contract or agreement between the
Defendant and Ecuadorian government concerning the search and seizure of vessels in
the open sea or in Ecuadorian waters.” (ECF No. 207-4 at 5). In response, Defendant
stated, in relevant part,
[N]o formal relevant treaty or Bi-Lateral agreements between Ecuador and the United States existed at the time of the boarding of the F/V JOSTIN, and the boarding of JOSTIN and other vessels boarded within a short
distance of the JOSTIN (e.g. F/V Jose Antonio), which resulted in the discovery of several tons of cocaine, was handled on a case-by-case basis by and between (a) Ecuadorean officials who gave express permission for the boarding and (b) the Coast Guard personnel identified in the documents to be provided in response to these requests for production.
The United States also identifies the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances available at: http://www.unodc.org/pdf/convention_1988_en.pdf, and the Maritime Drug Law Enforcement Act.
Id. at 8. Plaintiffs did not move to compel further discovery on Plaintiffs’ Request for
Production from Defendant. Defendant did not supplement Defendant’s response to
Plaintiffs’ Request for Production.
On October 1, 2014, Defendant’s international law expert, Professor Thomas
Schoenbaum, discussed and identified the 2006 Agreement in his Rule 26 report. (ECF
No. 210-3 at 14). In his report, Professor Schoenbaum wrote,
In my opinion the payment of the plaintiffs’ claims through the Military
Claims Act is what was contemplated under the various arrangements
between Ecuador and the United States. On the web site of the U.S.
Department of State (www.state.gov), there is an undated document signed
in ink by Admiral Eduardo Navas Najera, Director General of the Bureau
of the Merchant Navy and Coastal Affairs of the Republic of Ecuador and Rear Admiral Wayne Justice, Director of Enforcement and Incident
Management of the United States Coast Guard, titled “Operational Procedures for Boarding and Inspecting Vessels Suspected of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances and of Smuggling Migrants by Sea.[”] The stated purpose of this document is to implement US-Ecuador cooperation under the 1988 United Nations Convention. This
document pledges (para. 13) “effective and timely recourse in respect of any claims for damages to [a] vessel for any loss or harm that results.” This document appends forms to make claims that are identical to the
forms that implement the Military Claims Act.” Id. at 14-15.
Plaintiffs contend that the 2006 Agreement “constitute[s] matter relevant to the
subject matter involved in the pending action within the meaning of Rule 26” and that
- 2 - 07cv00817-WQH-JLB
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Defendant’s response to Plaintiffs’ Request for Production failed to comply with Rule
26. (ECF No. 207 at 2). Plaintiffs contend that Defendant’s violated Rule 26(b)(1) and
Rule 26(e) by “either intentionally or negligently” withholding the 2006 Agreement.
(ECF No. 212 at 5-7). Plaintiffs contend that the 2006 Agreement is relevant to “[t]he
type of claim that can be considered” and “the persons who are eligible for
compensation” in this case. (ECF No. 207-2 at 3-4). Plaintiffs assert that the 2006
Agreement “reflects clearly that prior to the signing of this agreement in 2006, a prior
agreement existed since it states on the date of 07/09/06, it was a revised document . .
. .” (ECF No. 212 at 4 (emphasis in original)). Plaintiffs further assert that “Defendant
knew or should have known of this agreement with Ecuador and should have produced
it.” (ECF No. 207-2 at 8). Plaintiffs requested, among other things, that the Court
“enter judgment by default against the Defendant” or, alternatively, “order a
continuance of the trial date and allow further discovery.” (ECF No. 207-2 at 6).
Plaintiffs also request that the Court “order the Defendant to pay Plaintiffs’ costs in
conducting. . . discovery” and “order the Defendant to pay Plaintiffs attorney fees and
costs caused by the failure to comply with discovery.” Id. at 6-7.
On October 2, 2015, Defendant filed a response. (ECF No. 210). Defendant
contends that the 2006 Agreement is “irrelevant” because it was executed on “August
30, 2006” after the incident at issue occurred. Id. at 2. Defendant also contends that
“the [2006 Agreement] was disclosed to plaintiffs and identified by its full name, along
with the full names and titles of both of its signators, prior to close of discovery . . . .”
Id. (emphasis in original). Specifically, Defendant explains that on October 1, 2014,
its international law expert, Professor Thomas Schoenbaum, discussed and identified
the 2006 Agreement in his Rule 26 report. Id. 5.
On October 8, 2015, the Court granted Plaintiff’s motion in part and denied it in
part. (ECF No. 216). The Court ordered that the trial go forward as scheduled, on
October 14, 2015, as to all issues of liability as to all plaintiffs. The Court stated that,
in the event that the Court found liability, “the Court will consider whether additional
- 3 - 07cv00817-WQH-JLB
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discovery and further hearing will be required in order to determine the proper award
of damages.” Id. The trial was held on October 14-16, 2015. (ECF No. 219, 220, 221).
The Court has determined that additional inquiry into the adequacy of discovery is
required before deciding liability.
Rule 26(b)(1) provides that:
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense– including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.
Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible
evidence.
Fed. R. Civ. P. 26(b)(1). “Mutual knowledge of all the relevant facts gathered by both
parties is essential to proper litigation.” Hickman v. Taylor, 329 U.S. 495, 507 (1947).
The scope of discovery permitted under the civil rules is “broadly construed” in order
to ensure that the interests of justice are served in civil litigation. Oppenheimer Fund
v. Sanders, 437 U.S. 340, 351 (1978). Pursuant to Rule 26(e) of the Federal Rules of
Civil Procedure,
(1) In General. A party who has made a disclosure under Rule 26(a)--or
who has responded to an interrogatory, request for production, or request
for admission--must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material
respect the disclosure or response is incomplete or incorrect, and if
the additional or corrective information has not otherwise been
made known to the other parties during the discovery process or in
writing; or
(B) as ordered by the court.
(2) Expert Witness. For an expert whose report must be disclosed under
Rule 26(a)(2)(B), the party's duty to supplement extends both to
information included in the report and to information given during the
expert's deposition. Any additions or changes to this information must be
disclosed by the time the party's pretrial disclosures under Rule 26(a)(3)
are due.
Fed. R. Civ. P. 26(e). Federal Rule of Civil Procedure 37(c) provides remedy for a
party’s failure to make a disclosure under Rule 26(a) or to supplement its disclosures
- 4 - 07cv00817-WQH-JLB
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under Rule 26(e). Fed. R. Civ. P. 37.
The Court will conduct an evidentiary hearing on December 11, 2015, at 9:30
p.m. in Courtroom 14B to determine whether Defendant failed to comply with
discovery obligations under Rule 26 and whether any additional undisclosed
agreements existed prior to the 2006 Agreement.
IT IS HEREBY ORDERED that Defendant shall appear on December 11, 2015,
at 9:30 p.m. in Courtroom 14B with all necessary witnesses and exhibits. Plaintiffs
shall appear on December 11, 2015, at 9:30 a.m. in Courtroom 14B to respond with all
necessary witnesses and exhibits.
DATED: October 30, 2015
WILLIAM Q. HAYES
United States District Judge
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Case 3:07-cv-00817-WQH-JLB Document 228 Filed 10/30/15 Page 5 of 5 |
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1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
RUDOLPH LOUIS WILLIS, JR.,
Plaintiff, No. 2:05-cv-01200 FCD GGH P
vs.
TOM L. CAREY, et al.,
Defendants. ORDER
/
Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant
to 42 U.S.C. § 1983. Plaintiff has not, however, filed an in forma pauperis affidavit or paid the
required filing fee. See 28 U.S.C. §§ 1914(a), 1915(a). Plaintiff will be provided the opportunity
either to submit the appropriate affidavit in support of a request to proceed in forma pauperis or
to submit the appropriate filing fee.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff shall submit, within thirty days from the date of this order, an affidavit
in support of his request to proceed in forma pauperis on the form provided by the Clerk of
Court, or the appropriate filing fee; plaintiff’s failure to comply with this order will result in the
dismissal of this action; and
/////
Case 2:05-cv-01200-FCD-GGH Document 4 Filed 07/12/05 Page 1 of 2
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2. The Clerk of the Court is directed to send plaintiff a new Application to
Proceed In Forma Pauperis By a Prisoner.
DATED: 7/12/05
/s/ Gregory G. Hollows
GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE
GGH:bb
will1200.3a
Case 2:05-cv-01200-FCD-GGH Document 4 Filed 07/12/05 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca11-14-10123/USCOURTS-ca11-14-10123-0/pdf.json | 530 | Prisoner Petitions - Habeas Corpus | null | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10123
Non-Argument Calendar
________________________
D.C. Docket No. 5:11-cv-00490-VMC-TBS
ISAAC KELVIN ALLEN,
Petitioner-Appellant,
versus
WARDEN,
FCC COLEMAN-MEDIUM,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 11, 2015)
Before JORDAN, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
USCA11 Case: 14-10123 Date Filed: 03/11/2015 Page: 1 of 5
2
Isaac Kelvin Allen appeals the district court’s dismissal of his habeas corpus
petition filed pursuant to 28 U.S.C. § 2241. His petition raised multiple grounds
for relief, including that the court had wrongly imposed three-year terms of
supervised release for his convictions of aggravated identity theft, instead of the
statutory one-year maximum; he was wrongly ordered to pay restitution covering
losses and victims that were unrelated to his offenses; and his trial attorney had
rendered ineffective assistance during the plea colloquy that resulted in violations
of Fed.R.Crim.P. 11. In dismissing the instant § 2241 petition, the district court
concluded that Allen had not met the requirements under the savings clause of 28
U.S.C. § 2255(e).
On appeal, Allen argues that the district court failed to fully review the
arguments and evidence he had submitted to show that he met all of the
requirements of the § 2255(e) savings clause. He asserts that the court instead
simply concluded in its order that he could not demonstrate that § 2255 was
inadequate or ineffective to test the legality of his detention because “his challenge
to his sentence [was] foreclosed by” Gilbert v. United States, 640 F.3d 1293 (11th
Cir. 2011). The fact that the court ignored the very evidence that would allow it to
hear the issues in the § 2241 petition constituted a denial of due process. Second,
Allen argues that his three-year terms of supervised release, which exceeded the
statutory maximum for convictions of aggravated identity theft, qualify as a
USCA11 Case: 14-10123 Date Filed: 03/11/2015 Page: 2 of 5
3
“fundamental defect” in sentencing that ultimately would allow him to seek relief
under § 2241. Lastly, Allen argues that, for purposes of “opening the portal” to the
§ 2255(e) savings clause, a § 2255 motion would qualify as an “inadequate” or
“ineffective” remedy to address technical violations of Fed.R.Crim.P. 11, since the
Supreme Court barred such § 2255 claims in United States v. Timmreck, 441 U.S.
780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979).
The availability of habeas relief under 28 U.S.C. § 2241 presents a question
of law that we review de novo. Cook v. Wiley, 208 F.3d 1314, 1317 (11th Cir.
2000). Typically, collateral attacks on the validity of a federal conviction or
sentence must be brought under 28 U.S.C. § 2255. Sawyer v. Holder, 326 F.3d
1363, 1365 (11th Cir. 2003). The “savings clause” of § 2255, however, permits a
federal prisoner, under very limited circumstances, to file a habeas petition
pursuant to § 2241. Sawyer, 326 F.3d at 1365. Under the savings clause, a court
may entertain a § 2241 petition attacking custody resulting from a federally
imposed sentence if the petitioner establishes that the remedy provided for under
§ 2255 is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C.
§ 2255(e). We recently held that the savings clause is a jurisdictional provision,
such that a petitioner must show that § 2255 is “inadequate or ineffective” before
the district court has jurisdiction to review the § 2241 petition. Williams v.
USCA11 Case: 14-10123 Date Filed: 03/11/2015 Page: 3 of 5
4
Warden, Fed. Bureau of Prisons, 713 F.3d 1332, 1339-40 (11th Cir. 2013), cert.
denied, No. 13-1221 (Oct. 6, 2014).
In Williams, we noted two necessary, if not sufficient, conditions for a
sentencing claim to be viable under § 2255(e)’s savings clause. Id. at 1343-44.
First, the claim must be based on a retroactively applicable Supreme Court
decision. Id. at 1343. Secondly, the Supreme Court “must have overturned a
circuit precedent that squarely resolved the claim so that the petitioner had no
genuine opportunity to raise it at trial, on appeal, or in his first § 2255 motion.”
Id..
In Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir.
2013), we faced the question whether a petitioner can use the savings clause to
“open the portal” to § 2241 where an erroneous application of the Armed Career
Criminal Act (“ACCA”) resulted in a sentence that exceeded the statutory
maximum. Bryant, 738 F.3d at 1256. We held that, in order to show that his prior
§ 2255 motion had been “inadequate or ineffective to test the legality of his
detention,” Bryant had to establish that: (1) throughout his sentencing, on direct
appeal, and the first § 2255 proceeding, our binding precedent had specifically
addressed his distinct prior state conviction that triggered 18 U.S.C. § 924(e) and
had squarely foreclosed his § 924(e) claim that he was erroneously sentenced
above the ten-year statutory maximum penalty in § 924(a); (2) subsequent to his
USCA11 Case: 14-10123 Date Filed: 03/11/2015 Page: 4 of 5
5
first § 2255 proceeding, the Supreme Court’s decision in Begay v. United States,
553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), as extended by us to his
prior conviction, overturned our precedent that had foreclosed his § 924(e) claim;
(3) the new rule announced in Begay applied retroactively on collateral review;
(4) as a result of Begay’s new rule being retroactive, Bryant’s current sentence
exceeded the ten-year statutory maximum authorized in § 924(a); and (5) the
savings clause in § 2255(e) reached his pure § 924(e)-Begay error claim of illegal
detention above his statutory maximum penalty in § 924(a). Id. at 1274.
Here, the district court did not err in dismissing Allen’s petition because he
had failed to open the portal to § 2241 relief. He has not shown that § 2255 relief
was inadequate or ineffective to challenge his sentences’ legality, as he did not
base his claims on retroactively applicable Supreme Court decisions. Bryant, 738
F.3d at 1274; Williams, 713 F.3d at 1343. Furthermore, Allen’s claim of a dueprocess violation by the district court is meritless, as the court’s written order
restated all of Allen’s claims before reviewing the case law and discussing its
conclusions. Allen also has pointed to nothing else in the record to substantiate his
claim that the court deliberately ignored his arguments that he qualified for § 2241
relief. Accordingly, we affirm.
AFFIRMED.1
1 Allen’s Motion for Leave to File Out of Time Reply brief is GRANTED.
USCA11 Case: 14-10123 Date Filed: 03/11/2015 Page: 5 of 5 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-alnd-2_94-cv-02493/USCOURTS-alnd-2_94-cv-02493-1/pdf.json | 870 | Tax Suits | 28:1346 Recovery of IRS Tax | Case 2:94-cv-02493-RBP Document 95 Filed 10/10/03 Page 1 of 1 |
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