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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
11
UNITES STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
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13
)
)
)
)
)
vs. )
17 )
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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)
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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
3
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
- 1 - 10-CV-419
Case 3:10-cv-00419-GPC-WVG Document 229 Filed 02/12/13 Page 1 of 16
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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.
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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 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_04-cv-01341/USCOURTS-caed-2_04-cv-01341-6/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
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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WO
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
United States District Court
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.
}
}
}
}
}
}
}
}
}
}
}
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
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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,
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If facts are in dispute, they are stated in the manner most favorable to the non-movants.
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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.
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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
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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
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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
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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.
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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 |
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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 |
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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
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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
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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
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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
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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
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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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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
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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
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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
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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.
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
AZHAR LAL,
Plaintiff,
v.
FELKER, et al.,
Defendants.
No. 2:07-cv-2060-KJM-EFB P
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action
brought under 42 U.S.C. § 1983. He moves for entry of a default judgment against defendant
Flores.1 ECF No. 214. Flores, who had not previously appeared in this case, filed an opposition
and a related motion to set aside the clerk’s entry of his default. ECF Nos. 216, 217.
The entry of Flores’ default follows a protracted history of efforts to complete service of
process on him. That history is both convoluted and frustrating. Analysis of Flores’ motion here
is informed, in part, by that history.
This action was commenced on October 1, 2007. ECF No. 1. An amended complaint was
filed on November 21, 2007, and a second amended complaint on May 5, 2008. ECF Nos. 7, 14.
1
Plaintiff originally named the defendant as “Florez.” He learned through discovery that
the correct spelling is “Flores.” See ECF No. 87, ¶ 2. The spellings are used herein
interchangeably.
Case 2:07-cv-02060-KJM-EFB Document 260 Filed 04/03/15 Page 1 of 14
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The second amended complaint was screened and on October 28, 2008, the court found that for
purposes 28 U.S.C. § 1915A, it “stated a cognizable claim that Florez, [and other named
defendants] retaliated against plaintiff and . . . interfered with his medical treatment in violation
of the Eighth Amendment.” ECF No. 17 at 2.
Plaintiff previously had been granted leave to proceed in forma pauperis. ECF No. 8 at 5.
Therefore, service of the summons and complaint became the responsibility of the U.S. Marshal.
The October 28, 2008 order instructed plaintiff to complete and submit a summons and nine
USM-285 forms, together with ten copies of the endorsed amended complaint, for use by the
Marshal in serving process on the multiple defendants. ECF No. 17 at 3-4. However, only two
copies of the complaint were subsequently submitted by plaintiff to the court. Plaintiff explained
that the prison law librarian refused to make more copies than two. Accordingly, on March 9,
2009, the court ordered that eight more copies were to be submitted for use by the Marshal to
complete service. ECF No. 31. Plaintiff then submitted all of the required documents for service
and on March 26, 2009, the court ordered the Marshal to proceed with service. ECF No. 33. On
May 28, 2009, the Marshal filed executed waivers of service for six of the named defendants, but
not for Flores.2 ECF No. 40. Deputy Attorney General James Flynn filed an answer to the
complaint on behalf of those six defendants on June 5, 2009.3 ECF No. 41.
As for Flores, the Marshal returned the summons directed to “B. Florez” as unserved with
a notation stating that he was no longer employed at High Desert State Prison and could not be
identified in the CDC locator database.4 ECF No. 63. For that reason, plaintiff was granted
2
In addition to Flores, defendants Barter and Cooper had not been served. The
information provided to the Marshal was they could not be found at the institution or in the
Department of Correction’s locator database. ECF Nos. 47, 63.
3
Plaintiff subsequently informed the court that he had written to the Attorney General’s
Office and “inquired if they were representing defendant Florez as they may have omitted his
name by mistake.” ECF No. 58 at 3. In a July 27, 2009 response, Deputy Attorney General
Flynn stated, “I do not know whether Florez has been served, and I have not been asked to
represent that defendant.” Id., Ex. D.
4
Specifically, the notation states “Mailed 4/9/9” “5/11/09 per facility – not employed per
CDC locator several –unable to identify.” ECF No. 63.
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additional time to request from the California Department of Corrections, either through
discovery or through the California Public Records Act, the information necessary for the
Marshal to complete service of process on Flores. ECF No. 65. The order granting additional
time instructed that “[i]f plaintiff’s access to the required information is denied or unreasonably
delayed, plaintiff may seek judicial intervention.” Id.
Before the court issued that order, plaintiff filed a motion to compel defendants to provide
him with further responses to certain discovery requests that might have assisted him in obtaining
the information necessary for the Marshal to complete service of process on defendant Flores.
ECF No. 61. Thereafter, plaintiff filed a motion for judicial intervention describing his further
attempts to obtain the information necessary for the Marshal to complete service of process on
Flores. See ECF No. 73, ¶¶ 2, 7, Ex. A. Plaintiff’s attempts through both the California Public
Records Act and through discovery were met with objections to his requests and refusals to
provide the information. See ECF No. 79 (order partially granting plaintiff’s motion to compel
and discussing defendants’ objections to plaintiff’s discovery requests); ECF No. 73, ¶ 8
(plaintiff’s declaration that “HDSP Officials deliberately would not provide B. Florez’s address or
location to serve with process”). Ultimately the court concluded that “despite [plaintiff’s]
diligence in seeking [Florez’s] address[ ], plaintiff has been denied access to that information.”
EFC No. 79 at 2. Therefore, the court granted the motion for judicial intervention and ordered
defendants’ counsel to inquire with the California Department of Corrections and Rehabilitation
whether it had contact information for Flores. Id. The court further ordered that if a good faith
records check revealed an appropriate address for service of process then counsel was to promptly
inform the Marshal. The court also instructed that if no such information could be obtained
counsel was to inform the court within thirty days. Id.
In response, defense counsel disclosed the following:
There was no employee named “Florez” who was a medical
technical assistant in the Facility D Medical Clinic on Third Watch
at the times at issue in the complaint. There was a medical
technical assistant named “B. G. Flores,” and defendants believe
that his name is misspelled in the complaint. Flores is no longer
employed by CDCR, and defendants have no information on his
current business address. Defendants’ attorney was advised that
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mail sent from the prison to Flores at his last known residence
address, which was 740 Hall Street, Susanville, CA 96130, was
returned as undeliverable in 2009. CDCR does not have any other
record or information as to his current residence address.
ECF No. 87, ¶ 1. Thereafter, in his continuing efforts to obtain information required for the
Marshal to complete the task of serving Flores, plaintiff requested a discovery order compelling
the production of Flores’ Social Security Number. ECF No. 99. Appropriately, plaintiff argued
that “[w]hile it may be true that Flores may not be employed by CDCR any longer, that does not
mean that he no longer exists and his Social Security Number still in fact exists and Respondents
Office can thereby locate this Defendant if it wishes to do so, but they not wish to locate this
defendant intentionally . . . .” Id. at 2. Defense counsel responded that the “Defendants do not
have custody or control of records containing Flores’s Social Security number.” ECF No. 105 at
2. Counsel added that assuming that the information is in the custody of the CDCR, it is
confidential and not subject to disclosure. Id. at 2-3.
Given the resistance to the efforts by plaintiff as well as personnel in the U.S. Marshal’s
Office to complete service of process (as mandated by the order directing service of process),
including objections to plaintiff obtaining the required information through discovery, the court
issued an order to show cause “why defendant Florez should not be served by publication.” ECF
No. 109, ¶ 6 (Order filed March 4, 2011). In doing so, the court noted that “[t]his case was filed
more than three years ago, and service has still not been effected on several defendants.” Id. at 5.
The order further instructed that “Defense counsel should feel free to contact defendant Florez, if
counsel is able to do so, to determine whether he will authorize defense counsel to accept service
on his behalf.” Id.
Six days later, on March 10, 2011, counsel finally provided the court with information that
would enable the Marshal to complete service of process. ECF Nos. 110, 111. Counsel informed
the court that the defendant’s correct name appears to be Bernabe G. Flores, and provided an
address and phone number for him. Id. Counsel added: “[h]owever, defendants’ counsel is not
authorized to accept service for Flores and will not represent him if service is made.” ECF No.
111 at 2. Counsel stated that he has “provided the Court under seal with what he believes is a
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current address and telephone number for defendant Flores, and has asked that it be available only
to Court personnel and the United States Marshal for service purposes. Because that information
would allow service to be effected with reasonable diligence by means other than publication,
defendants do not believe that service by publication is appropriate.” Id. at 2-3.
With that information, the court issued a standard order directing the Clerk to forward
instructions for service of process, a completed summons, and copies of the amended complaint
to the Marshal for service. ECF No. 126. The order directed the Marshal to request that Flores
execute and return a waiver of personal service in accordance with Fed. R. Civ. P. 4(d) and 28
U.S.C. § 566(c). Id. at 2. It also instructed that if Flores failed to sign and return the waiver
within 60 days the Marshal was to personally serve process on Flores. Id. Although other
defendants did, Flores specifically did not sign and return a waiver of personal service, and on
November 3, 2011, the Marshal served the summons and complaint by personal delivery of the
documents at Flores’ home to his daughter. ECF No. 140. Notwithstanding that personal service
of process, Flores did not timely file an answer or otherwise respond to the summons and
complaint and plaintiff filed motions for default judgment, ECF No. 145, and for the clerk’s entry
of default. ECF No. 149.
The court denied the motion for default judgment, in part as premature, noting that
although “Flores has not appeared, it is unclear whether his default was due to excusable neglect.”
ECF No. 164 at 4. The court did, however, grant the request for a clerk’s entry of default, id. at 5,
and on August 24, 2012, the Clerk of the Court entered Flores’ default. ECF No. 165.5
Thereafter, plaintiff again moved for a default judgment against Flores. ECF No. 214. That
motion finally captured the attention of Flores and he filed both an opposition and a motion to set
aside the Clerk’s entry of default. ECF Nos. 216, 217. In requesting that his default be set aside,
Flores asserts that he mistakenly assumed that the Litigation Coordinator at High Desert State
Prison “would automatically provide a defense for him with respect to this matter, along with
other Defendants.” ECF No. 216 at 2. Although the Clerk’s entry of default was served on
5
The Clerk’s entry of default was sent to Flores’ home address.
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Flores at his home address on August 24, 2012, his December 5, 2013 motion to set aside his
default makes the remarkable assertion that he “promptly filed this Motion once he learned of the
existence of the entry of default against him.” ECF No. 216 at 2. If, in fact, Flores had actual
notice that plaintiff was seeking the entry of default and failed to act, there would appear to be
little basis for concluding that he has shown “good cause” to set aside that entry.
Furthermore, the court is troubled by Deputy Attorney General Flynn’s earlier disclaimers
that his office did not represent Flores on the one hand, while on the other opposing every attempt
by plaintiff to discover the information needed to complete service on Flores.6 That lack of
congruency makes conspicuous the question not addressed in the brief. Ultimately, the brief
seeking to set aside Flores’ default was filed by a California Deputy Attorney General. But in
seeking to set aside the default, the brief fails to acknowledge Deputy Attorney General Flynn’s
past resistance to discovery needed to serve Flores7
while denying that Flores was represented by
the California Attorney General’s Office; nor does it address what, if anything, was done to
prevent a default by the persons in that office who received the ECF notification of the motion to
enter Flores’ default. Plaintiff’s motions for entry of Flores’ default (ECF No. 149) and for
default judgment (ECF No. 145), and the court’s ruling on those motions (ECF No. 164) are
clearly seen on the docket, each with an ECF notification receipt showing electronic service on
several personnel at the California Attorney General’s Office including
“[email protected], [email protected], [email protected],
[email protected], and [email protected].”
The court has the discretion to set aside the entry of default “for good cause.” Fed. R.
Civ. P. 55(c). However, the Ninth Circuit treats the standard for good cause to set aside an entry
6
Notwithstanding Deputy Attorney General Flynn’s previous representation that
“defendants’ counsel is not authorized to accept service for Flores and will not represent him if
service is made,” ECF No. 111 at 2, Flores’ motion to set aside his default and his opposition to a
default judgment were, in fact, filed by the California Attorney General’s Office.
7
At one point Flynn raised in a scheduling request the question of whether “claims against
defendants Farter, Cooper and Florez should be dismissed for failure to effect service.” ECF No.
66 at 3.
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of default under Rule 55(c) the same as the excusable neglect standard for relief from judgment
under Rule 60(b)(1). That rule allows district courts to relieve a party from a judgment or order
for reason of “mistake, inadvertence, surprise, or excusable neglect,” provided that the party
moves for such relief not more than a year after the judgment was entered. Fed. R. Civ. P.
60(b)(1). Although there is considerable discretion under the rule, the Ninth Circuit has
admonished generally that Rule 60(b) is “remedial in nature and . . . must be liberally applied.”
Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984) (per curiam). But this does not absolve the
defendant here from demonstrating that good cause exists in this case to relieve him of his failure
to timely respond to the complaint.
There are three factors derived from the “good cause” standard under Rule 55(c) which
govern the lifting of entries of default as well as the vacating of a default judgment. See TCI
Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 696 (9th Cir. 2001), overruled on other grounds
by Egelhoff v. Egelhoff, 532 U.S. 141, 121 (2001). “Those factors are: whether the defendant’s
culpable conduct led to the default; whether the defendant has a meritorious defense; and whether
reopening the default judgment would prejudice the plaintiff.” Id. This tripartite test is
“disjunctive,” meaning that the district court is free to deny the motion if any of these three
factors is shown to exist. American Ass’n of Naturopathic Physicians v. Hayhurst, 227 F.3d
1104, 1108-09 (9th Cir. 2000). It is a “well-established proposition that a finding of culpability
on the part of a defaulting defendant is sufficient to justify the district court’s exercise of its
discretion to deny relief from a default judgment.” Brandt v. American Bankers Ins. Co. of
Florida, 653 F.3d 1108, 1111 (9th Cir. 2011). Therefore, before turning to the other factors the
court first addresses the question of culpable conduct by examining the reason for the default,
including whether it was within the reasonable control of the defense, and whether the defendant
acted in good faith.
As to “culpable conduct,” the Ninth Circuit has observed that “a defendant’s conduct is
culpable if he has received actual or constructive notice of the filing of the action and
intentionally failed to answer.” TCI Group Life Ins. Plan, 244 F.3d at 697 (emphasis in original)
(quoting Alan Neuman Prods., Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir. 1988), and citing
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Meadows v. Dominican Republic, 817 F.2d 517, 521 (9th Cir. 1987)). In Pincay v. Andrews, 389
F.3d 853, 855 (9th Cir. 2004) (en banc) the Ninth Circuit further noted that the concept of
culpable conduct must be viewed in the context of Pioneer Investment Services Co. v. Brunswick
Associates Ltd. Partnership, 507 U.S. 380, 394 (1993), which notes that “for purposes of Rule
60(b), ‘excusable neglect’ is understood to encompass situations in which the failure to comply
with a filing deadline is attributable to negligence.” Flores stands on tenuous grounds on this
question. The Supreme Court pointedly observed in Pioneer Investment Services Co. that ‘[t]his
leaves of course, the Rule’s requirement that the party’s neglect of the [filing deadline] be
‘excusable.’” Id. at 395. At bottom, this determination is “an equitable one, taking account of all
relevant circumstances surrounding the party’s omission[,]” including “the danger of prejudice to
the [plaintiff], the length of the delay and its potential impact on judicial proceedings, the reason
for the delay, including whether it was within the reasonable control of the movant, and whether
the movant acted in good faith.” Id.
Here, Flores’ declaration states that he first learned of the entry of default on December 2,
2013 through the Litigation Coordinator at High Desert State Prison (HDSP), after which Flores
spoke with the Deputy Attorney General assigned to the case.8 ECF No. 216 at 9, ¶ 5. The
motion to set aside his default does not explain why the Litigation Coordinator did not inform
Flores of the motion to enter his default, or otherwise take any action to prevent Flores from
defaulting in the first place. The lack of any such explanation is conspicuous, given the
protracted history of resisting access to information the Marshal needed to complete service of
process on Flores, who once his correct address was finally obtained, declined to waive such
service.
The address for Flores was provided on March 10, 2011. ECF Nos. 110, 111. The
Marshal attempted waiver and acknowledgment of service by mail on June 22, 2011, ECF No
8
He does not say when he first learned of the pendency of the action. Further, as
discussed below, he does not address the Marshal’s attempt to effect service by mail via written
waiver of service months before the personal delivery of the complaint to his home. Nor does
Flores explain how it is that he was not on notice of the entry of default as early as August 24,
2012, when the Clerk served a copy of the entry of default against him at his home address.
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140, but Flores did not sign and return the requested waiver. 9 Id.; see also ECF No. 141
(Marshal’s request for reimbursement, citing Rule 4(d)(2)). Conspicuously, Flores does not deny
receipt of the Marshal’s attempt to complete service by mail. Indeed, his declaration simply
ignores the Marshal’s notation that mail service was attempted on June 22, 2011 and the request
for waiver of personal service was not returned. He does not disclose whether he inquired with
the prison’s Litigation Coordinator, the California Attorney General’s office, or otherwise took
any reasonable steps at that time to protect against a default. Similarly, he provides no such
information once personal service occurred on November 3, 2011. Instead, Flores states
generally in his declaration that he had an understanding based on his training about litigation that
he could rely on the Litigation Coordinator to protect his interest and provide him with a
defense.10 ECF No. 216 at 8-9, ¶ 2. He specifically “recall[s] signing papers acknowledging that
any litigation arising out of [his] employment with the CDCR would be handled by the Litigation
Coordinator.” Id. However, he ultimately concedes in his motion that he was mistaken in
assuming that the Litigation Coordinator would automatically provide him with a defense, and
that he was required to expressly request a defense from CDCR. ECF No. 216 at 2, 5.
Even assuming that his counsel or the Litigation Coordinator were at fault in causing
Flores to fail to respond to the summons and complaint, the Ninth Circuit and other circuits have
on multiple occasions addressed the concept of “excusable neglect” in the context of missed filing
deadlines resulting from attorney negligence in considering whether good cause excuses a
plaintiff’s failure to complete service of process within the 120 day deadline of Rule 4(m)
/////
9
Rule 4(d)(1) imposes “a duty to avoid unnecessary expenses of serving the summons.”
It permits a plaintiff to notify a defendant by mail that the action has been commenced and to
request that the defendant waive service of the summons. It requires that the request be
accompanied by a copy of the complaint, two copies of the waiver form and a prepaid means for
returning the form. The Marshal’s notation indicates that such a request was mailed to Flores but
not returned.
10 No declaration is submitted from the Litigation Coordinator or the persons at the
California Attorney General’s Office, who received electronic notice of the filing of the motion
for the entry of Flores’ default explaining what steps, if any, were taken to prevent the default.
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(formerly Rule 4(j)).11 In Wei v. State of Hawaii, 763 F.2d 370, 371 (9th Cir. 1985) (per curiam)
counsel’s failure to calendar the 120 day deadline was held not to be excusable neglect. Id. at 372
(“The inadvertence of Wei’s counsel likewise does not qualify as good cause for Wei’s failure to
comply with Rule 4(j)”). Likewise, in Townsel v. Contra Costa County, Cal., 820 F.2d 319, 320
(9th Cir. 1987), counsel’s unawareness of the existence of Rule 4(j) was not good cause for
failure to meet the deadline. Quoting Wei, the court noted that if an attorney’s inadvertent failure
to calendar the deadline “constitutes ‘good cause,’ the good cause exception would swallow the
rule.” Id.
The court in Wei expressly noted that because the statute of limitations had expired, the
result effectively would be a dismissal with prejudice but nonetheless held the litigant
accountable for the acts of the attorney. Id. (quoting Kung v. FOM Investment Corp., 563 F.2d
1316, 1318 (9th Cir. 1977) (“We recognize that Wei may be harmed by his attorney’s neglect, but
‘litigants are bound by the conduct of their attorneys, absent egregious circumstances which are
not present here.’”)); see also Ringgold Corp. v. Worrall, 880 F.2d 1138, 1141–42 (9th Cir. 1989)
(Litigants are “considered to have notice of all facts known to their lawyer-agent” and have a duty
to “keep track of the progress of their lawsuit.”). Similarly, reliance upon a third party who
negligently allowed a filing deadline to be missed has been rejected as a substitute for due
diligence. “We have previously held that reliance upon a third party or on a process server is an
insufficient basis to constitute good cause for failure to timely serve, and is also an insufficient
basis for granting an extension of time to effect service.” Petrucelli v. Bohringer and
Ratzinger,46 F.3d 1298, 1307 (3d Cir. 1995) (citing Braxton v. United States, 817 F.2d 238, 242
(3d Cir. 1987)).
Thus, even if the fault for not timely responding to the summons and complaint lies with
the Litigation Coordinator, or perhaps the deputy attorney general assigned to the case at the time,
no specific facts or circumstances are provided here which demonstrate that their neglect was
excusable. While there is no per se rule against delegation to paralegals, or indeed any per se rule
11 The 1990 version of Rule 4(j) allowed for the extension of the 120–day service period
only upon a showing of good cause. In re Sheehan, 253 F.3d 507, 514 (9th Cir. 2001).
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involving a missed filing deadline, see Pincay, 389 F.3d at 855 (9th Cir. 2004) (en banc), the
question nonetheless reduces to whether the neglect, be it by Flores, his counsel or the Litigation
Coordinator , or all of them was “excusable.” Pioneer Investment Services Co., 507 U.S. at 395.
The Flores declaration simply does not answer the question.
Further, Flores’ admission to having received some training as to litigation against him
arising from his employment with the prison coupled with the history in this case suggests
avoidance rather than inadvertence.12 In any event, although Flores attests that he believed any
litigation involving him “would be monitored by the Litigation Coordinator at the institution”
(ECF No. 216 at 2, ¶ 2) that assumption does not relieve him of his obligation to keep track of the
time limit for him to respond to the summons and complaint. See Ringgold Corp., 880 F.2d at
1141.
For all of these reasons, the record does not adequately support a finding of excusable
neglect. While there clearly was negligence in not timely responding to the complaint, the Flores
declaration provides far too little information as to what actions he, his counsel or the Litigation
Coordinator took to assure the he would not default. His motion and declaration do not address
whether he read the instructions in the summons that was both mail served and, months later,
personally served on him. It does not say what instructions in the summons caused him to believe
he could simply ignore it; nor does it say what specific communications he relied on regarding the
summons and how those communications caused him to believe he could simply do nothing.
Likewise, it contains no information as to Flores’ experience with other litigation and the number
of times, if any, he was previously sued for acts performed while employed with CDCR. See TCI
Grp. Life Ins. Plan, 244 F.3d at 699 n. 6 (“we have tended to consider the defaulting party’s
general familiarity with legal processes or consultation with lawyers at the time of the default as
pertinent to the determination whether the party’s conduct in failing to respond to legal process
was deliberate, willful or in bad faith.”).
12 As noted, the procedural history here demonstrates that well before Flores was served
by mail on June 22, 2011, and by personal delivery on November 3, 2011, the assigned Deputy
Attorney General at the time was keenly aware of and resisted for some time plaintiff’s efforts to
obtain and provide to the Marshal the information needed to complete service on Flores.
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Nonetheless, “[a] defendant’s default does not automatically entitle the plaintiff to a courtordered judgment.” PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002)
(citing Draper v. Coombs, 792 F.2d 915, 924–25 (9th Cir. 1986)). Here, plaintiff has not
demonstrated that he is entitled to a default judgment. His motion for a default judgment must
satisfy the standards set forth in Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). It does
not.
Among other factors,13 the court must consider the merits of plaintiff’s substantive claims,
the possibility of a dispute concerning the material facts, and the strong policy underlying the
Federal Rules of Civil Procedure favoring decisions on the merits. The court has already granted
summary judgment against plaintiff as to similar allegations and claims against the other
defendants. Thus, consideration of the merits and the possibility, indeed probability, of a factual
dispute as to those claims weigh strongly against a default judgment. The court has already
addressed its concerns as to the excusable neglect factor, which on the current record weighs in
favor of a default judgment. However, although the procedural history concerning Flores is
frustrating, the primary burden to plaintiff in not obtaining a default judgment will be the burden
of proving the truth of allegations in support of his claims. Flores has now generally appeared
and intends to defend as to the claims against him. There is no showing that the passage of time
has resulted in the loss of material witnesses or evidence or other hardship. Thus, there does not
appear to be any undue prejudice to plaintiff in having to prove his claims.14
Finally, the court considers the strong federal policy favoring adjudication of claims on
their merits. “Our starting point is the general rule that default judgments are ordinarily
disfavored. Cases should be decided upon their merits whenever reasonably possible.” Eitel v.
13 In making this determination, the court considers the following factors: (1) the
possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the
sufficiency of the complaint, (4) the sum of money at stake in the action, (5) the possibility of a
dispute concerning the material facts, (6) whether the default was due to excusable neglect, and
(7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the
merits. Id.
14 No evidence is presented on the sum of money at stake, but the court assumes that this
factor would not weigh against plaintiff’s motion.
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McCool, 782 F.2d at 1472 (citing Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th
Cir. 1985)). Here, the court has strong reservations as to the merits of plaintiff’s substantive
claims notwithstanding the troublesome procedural history as to Flores, and entry of a default
judgment would not be appropriate. Aldabe v. Aldabe, 616 F.2d 1089, 1092-93 (9th Cir. 1980)
(“Given the lack of merit in appellant’s substantive claims, we cannot say that the district court
abused its discretion in declining to enter a default judgment in favor of appellant.”); See also
Marshall v. Baggett, 616 F.3d 849 at 852 (8th Cir. 2010); Murdock v. Washington, 193 F.3d 510,
513 (7th Cir. 1999) (district court did not abuse its discretion in denying a motion for appointment
of counsel or for default judgment where the “claims were of doubtful merit”); Pinaud v. County
of Suffolk, 52 F.3d 1139, 1152 n. 11 (2d Cir. 1995) (upholding denial of default judgment which
was based, in part, on the “disputable merits of [the plaintiff's] claims”).
Although Flores has not shown excusable neglect, given that the Eitel factors do not
support entry of a default judgment and that Flores has now appeared, the court concludes that the
clerk’s entry of default should be set aside regardless of culpability. Brandt v. Am. Bankers Ins.
Co., 653 F.3d 1108, 1111-1112 (9th Cir. 2011) (district courts have discretion to set aside default
even if it finds the defaulting defending acted culpably, particularly “where the defendant has a
meritorious defense and any prejudice can be cured.”).
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Defendant Flores’ motion to motion to set aside default, ECF No. 216, be denied as to
the grounds asserted in that motion.
2. Plaintiff’s motion for default judgment, ECF No. 214, be denied.
3. That notwithstanding the denial of Flores’ motion, and in light of the balancing of the
Eitel factors which weigh against the entry of a default judgment, the clerk’s entry of
default as to Flores be aside.
4. That Flores be ordered to file a response to the complaint within 14 days of the entry
of an order as to these recommendations.
These findings and recommendations are submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written
objections with the court and serve a copy on all parties. Such a document should be captioned
“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
within the specified time may waive the right to appeal the District Court’s order. Turner v.
Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Dated: April 2, 2015.
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Appellate Case: 87-2756 Document: 01019977659 Date Filed: 06/07/1989 Page: 3 |
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The Honorable J. Leon Holmes, United States District Judge, for the Eastern
District of Arkansas, sitting by designation.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-1033
___________
United States of America, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Corey Hilliard, *
*
Appellee. *
___________
Submitted: November 19, 2004
Filed: December 28, 2004
___________
Before WOLLMAN and HEANEY, Circuit Judges, and HOLMES1
, District Judge.
___________
HEANEY, Circuit Judge.
Following his conviction and two direct appeals, Corey Hilliard was sentenced
to four months in prison, four months in a community care facility, and three years
of supervised release for aiding and abetting the illegal transfer of firearms, in
violation of 18 U.S.C. §§ 2 and 922(a)(5). He filed a motion pursuant to 28 U.S.C.
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2
The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
2
§ 2255 seeking to have his conviction vacated. The district court2
granted the motion,
holding that Hilliard’s trial counsel was ineffective for not timely filing a motion for
a new trial. The government appeals, arguing that Hilliard failed to prove he was
prejudiced by his lawyer’s failure to file a new trial motion. We affirm.
BACKGROUND
In 1994 and 1995, Eddie James and Larry Baskerville were involved in the
illegal distribution of firearms. Baskerville had a permit to buy firearms, and
purchased a substantial number of them from gun shows and pawn shops in Iowa.
James and Baskerville then resold the guns, without a license to do so, to people in
the Chicago area. See United States v. James, 172 F.3d 588 (8th Cir. 1999)
(affirming James’s conviction for illegally transferring firearms).
The government’s case against Hilliard alleged that he was essentially the
“steerer,” or a person that helped James and Baskerville find buyers for their guns.
On about September 17, 1994, Baskerville purchased firearms, and he and James then
left for Chicago to sell them. James suggested that they stop by and see Hilliard, who
lived in Chicago. Baskerville and Hilliard did not know one another, but Hilliard was
close friends with James. Once they arrived at Hilliard’s apartment, Baskerville
asked to use Hilliard’s phone to call some potential customers. Hilliard mentioned
that an acquaintance of his, Walter Meeks, might want to buy a gun. Meeks had
previously mentioned to Hilliard that he wanted a gun that was “legal” for his own
protection. (Trial Tr. at 228.)
According to the testimony of James, Hilliard was under the impression that
Baskerville was a licensed firearms dealer because Baskerville kept a receipt book,
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3
the guns were all new and in boxes, and, importantly, because James himself affirmed
that Baskerville was a legitimate dealer. Hilliard’s testimony reflected this
understanding. In response to a question about Hilliard’s introduction to Baskerville,
Hilliard responded:
Well, the first time I met Larry [Baskerville], he was with Ed [James],
and they were in Chicago, and it was just a regular conversation between
them as far as “What’s happening? What you doing? What’s up? He
tried to introduce me to Larry, which was this guy who said that he had
a license to sell guns, and he was in Chicago selling guns, whatever, you
know - -
(Id. at 225-26 (emphasis added).) Hilliard testified that before September 17, he had
never met Baskerville, had no prior dealings in gun sales, and did not own a gun.
Baskerville followed up on Hilliard’s comment that Meeks may want to buy
a gun. Hilliard drove with Baskerville and James over to Meeks’s house. Hilliard
introduced Meeks to Baskerville, and told Meeks that Baskerville could sell him the
type of pistol he wanted. Baskerville then sold Meeks firearms. Hilliard did not
share in any of the proceeds or derive any other benefit from the deal. According to
Hilliard, Baskerville and James returned to Chicago on September 18. They sought
to return to Meeks’s house, but did not remember the way. Hilliard drove with
Baskerville and James in order to assist them in finding Meeks’s house. Once there,
Hilliard and James played pool while Baskerville and Meeks conducted their
business.
Baskerville’s testimony diverged at crucial points from the testimony of
Hilliard and James. He testified that on September 17 and 18, 1994, he and James
came to Chicago and sold guns directly to Hilliard. Hilliard and James testified that
Hilliard did not buy any guns from Baskerville and that no guns ever entered
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3
Count One alleged transactions occurring on or about September 17, 1994, and
involving three Lorcin L380 pistols; Count Two alleged transactions occurring on or
about September 18, 1994, and involving five Lorcin L380 pistols and one Lorcin
L25 pistol; Count Three alleged transactions occurring on or about October 5, 1994,
and involving two Lorcin L380-BB pistols, one Lorcin L-25-BB pistol, two Bryco
38-BB pistols, and one Bryco L380-BB pistol; and Count Four alleged transactions
occurring on or about October 7, 1994, and involving one Bryco 59 pistol, one Davis
LB-9 pistol, and two Norinco SKS/PARA rifles.
4
Hilliard’s residence. James further testified that there was never any agreement for
Hilliard to sell any guns.
Even though these events took place in the fall of 1994, Hilliard was not
charged until 1998. He was indicted on four counts of aiding and abetting the illegal
transfer of firearms, in violation of 18 U.S.C. §§ 2 and 922(a)(5), and one count of
conspiring to illegally transfer firearms, in violation of 18 U.S.C. § 922(a)(5). The
first four counts alleged that Hilliard helped Baskerville and James sell guns through
separate transactions, occurring on different days, and involving different guns;3
the
conspiracy count alleged that Hilliard conspired to help Baskerville and James sell
guns from a period starting in September of 1994 and ending around March of 1995.
At trial, Baskerville and James were the principal government witnesses, and
Hilliard testified in his own defense. Neither Baskerville nor James could remember
specifics well because of the lapse of time between the alleged acts and the trial, and
did little to connect Hilliard to any of the gun sales. The government tried to
establish Hilliard’s involvement by introducing phone records showing that
Baskerville and James often called Hilliard’s pager. Hillard and Baskerville both
testified, however, that Hilliard never returned Baskerville’s pages; Hilliard and
James testified that Hilliard sporadically returned James’s pages.
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During the trial, Hilliard’s counsel moved for a judgment of acquittal, which
the district court reserved ruling on until the jury returned a verdict. The jury found
Hilliard guilty of one count of aiding and abetting the illegal transfer of firearms to
Meeks on or about September 18, 1994; he was acquitted of the other four counts,
including conspiracy. The district court “remind[ed] defense counsel to check the
rules for the requirements for filing post-trial motions and the time frames.” (Jury
Verdict Tr. at 3.) Hilliard’s lawyer did not file a motion for a new trial until forty-one
days after the verdict, although the Federal Rules of Criminal Procedure require the
motion to be filed within seven days of the verdict. Fed. R. Crim. P. 33(b)(2). The
district court dismissed the motion as untimely. At the district court’s behest,
Hilliard’s counsel then moved to withdraw so that another attorney could determine
whether to file a motion under § 2255 related to the failure to file timely post-trial
motions. In considering the motion to withdraw, the district court stated, “I indicated
at the – when I took the jury verdict that I had grave reservations about the jury
verdict, and I instructed counsel to file post-trial motions.” (Tr. of Apr. 21, 2000
Hr’g, at 2.) The court spoke to Hilliard directly about the propriety of the motion to
withdraw:
Mr. Hilliard, I want to make sure you understand what’s happening.
Your lawyer is moving to withdraw from the case. My intent is to
appoint a new lawyer to represent you, [and] continue the sentencing.
The new lawyer could then determine whether or not there are grounds
to raise in a – what we call a 2255 proceeding. Here’s what I don’t want
to happen, I don’t want to go ahead and sentence you and then get into
the issue of whether I have to postpone imposition of the sentence
pending new counsel representing you and taking a look at whether it
was error for [Hilliard’s attorney] not to have filed a timely post-trial
motion. And that’s why I think new counsel should be appointed in the
case, to take a look at that issue to make sure that your interests are fully
protected. I’m not saying I’m going to grant relief. I’m just saying that
my intent was to be able to look at the issues with a post-trial motion
that was timely filed and a post-trial motion wasn’t timely filed in this
case, and therefore, I ruled that I lacked subject matter jurisdiction to
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4
The execution of Hilliard’s sentence was stayed pending the disposition of the
§ 2255 petition. The government appealed the order staying the execution of
Hilliard’s sentence during his § 2255 proceedings, and we summarily affirmed.
6
review the matter based on an untimely filed post-trial motion. So it’s
my intent to try and make sure your interests are fully protected by
appointing new counsel to take a look at the issues and we’ll see where
we go from there.
(Id. at 4-5.) Hilliard agreed it was in his best interest to have his trial attorney
replaced by new counsel, and the district court accordingly granted the motion to
withdraw.
On September 28, 2000, Hilliard was then given a three-year probationary
sentence that included a six-month term of home confinement. The government
successfully appealed the sentence, arguing the district court erred by imposing
Hilliard a four-level role reduction. United States v. Hilliard, 16 Fed. Appx. 533 (8th
Cir. 2001) (unpublished per curiam). On remand, the district court resentenced
Hilliard without the role reduction to fifteen months in prison. Hilliard then
successfully appealed, and we remanded for the district court to consider whether
some role reduction less than four levels was appropriate. United States v. Hilliard,
No. 02-1034 (8th Cir. May 9, 2002) (unpublished interim order). The district court
found a three-level reduction was appropriate, and arrived at a sentence for Hilliard
of four months in prison, four months in a community corrections center, and three
years of supervised release. Our court summarily affirmed pursuant to Eighth Circuit
Rule 47A. United States v. Hilliard, No. 02-1034 (8th Cir. Apr. 1, 2003).
On January 6, 2003, Hilliard filed the instant § 2255 petition, arguing, inter
alia, that his trial attorney was ineffective for not filing a timely motion for a new
trial.4
The district court found that trial counsel’s failure to file a timely motion for
a new trial on behalf of Hilliard, simply because he mistook the filing deadline, fell
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below an objectively reasonable standard of professional conduct. The court further
held that Hilliard had demonstrated he was prejudiced by counsel’s failings because
the court would have likely granted the new trial motion. This appeal followed.
ANALYSIS
We review the district court’s decision to grant or deny relief on a petitioner’s
ineffective assistance of counsel claim de novo. United States v. White, 341 F.3d
673, 677 (8th Cir. 2003). The test for judging whether a criminal defendant was
deprived the effective assistance of counsel is a familiar one:
First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that
counsel's errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); United States v. Farmer, 312
F.3d 933, 937 (8th Cir. 2002).
In determining whether counsel’s performance fell below a constitutionallyacceptable standard, courts must distinguish claims that involve deficient
performance from those which reflect permissible trial strategy. Strickland, 466 U.S.
at 690-91. While “[w]e presume counsel’s conduct to be within the range of
competence demanded of attorneys under like circumstances. . . . [W]hen the
appellant shows that defense counsel ‘failed to exercise the customary skills and
diligence that a reasonably competent attorney would exhibit under similar
circumstances,’ that presumption must fail.” Starr v. Lockhart, 23 F.3d 1280, 1284
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(8th Cir. 1999) (quoting Hayes v. Lockhart, 766 F.2d 1247, 1251 (8th Cir. 1985))
(emphasis added in Starr).
In this case, there can be no serious argument that the performance of Hilliard’s
lawyer was acceptable. He admitted in deposition testimony that he failed to timely
file a motion for a new trial because he misapprehended the filing deadline. Not
filing a dispositive motion, particularly when directed to do so by the district court,
is a classic dereliction of an attorney’s obligation to provide his client with the type
of performance required by the Sixth Amendment. Accord Hollis v. United States,
687 F.2d 257, 259 (8th Cir. 1982) (holding that counsel’s failure to timely appeal his
client’s case demonstrated “such an extraordinary inattention to a client’s interests as
to amount to ineffective assistance” (quoting Williams v. United States, 402 F.2d 548,
552 (8th Cir. 1968))).
We must next ascertain whether Hilliard has shown he was prejudiced by his
lawyer’s mistake. To do so, he must show that absent the mistake, there is a
“reasonable probability” that the outcome of the proceeding would have been
different. Strickland, 466 U.S. at 694. This determination turns on whether or not
there was an appropriate basis for granting Hilliard’s new trial motion had it been
timely filed. See, e.g., DeRoo v. United States, 223 F.3d 919, 926 (8th Cir. 2000)
(finding no prejudice where counsel’s alleged deficiency was not filing a motion to
dismiss the indictment and there was no “reasonable probability” the motion would
have been successful); see also Butcher v. United States, 368 F.3d 1290, 1294-95
(11th Cir. 2004) (reviewing the merits of petitioner’s untimely new trial motion to
determine if he was prejudiced by counsel’s failure to timely file it).
Federal Rule of Criminal Procedure 33 accords the district court the power to
“vacate any judgment and grant a new trial if the interest of justice so requires.” The
court may grant a new trial motion where it finds that the verdict is “contrary to the
weight of the evidence,” United States v. Huerta-Orozco, 272 F.3d 561, 565 (8th Cir.
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2001), and the decision to grant or deny such a motion rests “within the sound
discretion of the trial court,” United States v. Campos, 306 F.3d 577, 579 (8th Cir.
2002). The court should grant the motion where the evidence presented weighs
heavily enough against the verdict that the court believes a “miscarriage of justice
may have occurred.” Huerta-Orozco, 272 F.3d at 565 (quoting United States v.
Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)). Unlike a motion for acquittal, which
requires the district court to consider all evidence in the light most favorable to the
guilty verdict, a court considering a new trial motion is free to evaluate the evidence
and credibility of the witnesses. Id. at 565, 567; see also United States v. Espinosa,
300 F.3d 981, 983 (8th Cir. 2002) (recognizing that “[t]he standard for granting a
motion for new trial is somewhat less exacting [when compared to a motion for
acquittal] because the evidence need not be viewed in the light most favorable to the
government”).
Against this backdrop, Chief Judge Bennett concluded that the trial evidence
“weighs heavily enough against the verdict for the court to conclude that a
miscarriage of justice may have occurred,” remarking that it was “an extraordinarily
close call.” (Appellant’s Addendum at 19.) The court noted that the government’s
case-in-chief rested largely on the testimony of James and Baskerville, and that both
witnesses had serious credibility problems, exemplified by their equivocal testimony
and lapses in memory. He further observed that the testimony of the two witnesses
was often contradictory. Recognizing that Hilliard was convicted of only one of the
five charged counts even though the evidence for all five overlapped, the court opined
that the weakness of the evidence may have been the reason for the inconsistent
verdict. After independently evaluating the evidence, the court held that “a
miscarriage of justice was likely done here,” and thus it would have granted the
motion for a new trial if timely filed. (Id. at 20.)
In its brief, the government contends that the testimony of James and
Baskerville was sufficient to convict Hilliard, recounting in great detail the different
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If anything, pointing to testimony from James and Baskerville that concerned
the other four counts supports the district court’s conclusion that the two were not
reliable witnesses, since Hilliard was acquitted of those charges.
10
transactions to which their testimony connected Hilliard. A review of the trial
transcript, however, reveals that this testimony principally related to those charges
that resulted in acquittals. Thus, this evidence does nothing to convince us that
Hilliard’s offense of conviction should stand.5
More importantly, though, this
argument evinces a misunderstanding of analysis undertaken in new trial motions.
In granting relief to Hilliard, the district court did not take issue with the extent of the
government’s evidence; it found problems with the quality of the evidence.
Certainly, the government’s evidence was strong enough to withstand a motion for
judgment of acquittal, where the district court does not weigh evidence or consider
the credibility of witnesses. Indeed, we have already held as much. See United States
v. Hilliard, 16 Fed. Appx. 533 (8th Cir. 2001) (unpublished per curiam) (affirming
the denial of Hilliard’s motion for judgment of acquittal). But in a new trial motion,
the district court is to “weigh the evidence and evaluate for itself the credibility of the
witnesses.” Huerta-Orozco, 272 F.3d at 565 (quoting United States v. Lacey, 219
F.3d 779, 784 (8th Cir. 2000)). The motion may even be granted where there is
“substantial evidence to sustain the verdict.” Campos, 306 F.3d at 579 (quoting
White v. Pence, 961 F.2d 776, 780 (8th Cir. 1992)). The district court presided over
Hilliard’s trial, and had a first-hand opportunity to judge the credibility of the
government’s witnesses. It was the district court’s prerogative to find the testimony
of Baskerville and James so unreliable that a conviction based on that testimony
could not stand and, after independently reviewing that testimony, we find no error
in the district court’s conclusion.
The government further argues that, even without the government’s evidence,
Hilliard was proven guilty by his own testimony. It points to Hilliard’s admission
that he knew it was not legal to buy guns in Chicago, and suggests that this means he
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11
had knowledge that sales to Meeks involved an illegal transfer. This argument is
unavailing. In order to prove Hilliard aided and abetted the illegal transfer of
firearms in violation of 18 U.S.C. §§ 2 and 922(a)(5), the government had to prove
that he knew the illegal transfer firearms was being committed and knowingly acted
in some way to aid or cause the commission of that offense. See United States v.
Hernandez, 301 F.3d 886, 890 (8th Cir. 2002) (holding that to prove a defendant
guilty of aiding an abetting an offense, government must show that defendant
associated herself with an unlawful venture, participated in it as something she
wished to bring about, sought by her actions to make it succeed, and shared the
criminal intent of the principal). “Illegal,” as used here, is a term of art, which refers
to a transfer in which the transferor is not a licensed firearms importer, manufacturer,
dealer, or collector. 18 U.S.C. § 922(a)(5). Thus, the fact that Hilliard had
knowledge that gun sales in Chicago were prohibited does not satisfy the elements
of the charged offense, which required proof that Hilliard knew Baskerville was not
licensed to make firearms transfers. Hilliard’s testimony was just the opposite:
Baskerville told Hilliard he was a licensed firearms dealer, and Hilliard’s friend
James affirmed that the sales were legitimate. Thus, the government cannot rely on
Hilliard’s testimony to establish that he knew Baskerville was not licensed to transfer
firearms.
CONCLUSION
The government appeals the district court’s grant of § 2255 relief related to
Corey Hilliard’s 1999 conviction for one count of aiding and abetting the illegal
transfer of firearms in 1994. We agree with the district court that Hilliard’s trial
attorney was ineffective for not filing a timely motion for a new trial, and that Hilliard
was prejudiced because the motion would have properly been granted. Accordingly,
we affirm the district court.
______________________________
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Stip. to Dismiss
C 06-1943 BZ
KEVIN V. RYAN, CSBN 118321
United States Attorney
JOANN M. SWANSON, CSBN 88143
Assistant United States Attorney
Chief, Civil Division
EDWARD A. OLSEN, CSBN 214150
Assistant United States Attorney
450 Golden Gate Avenue, Box 36055
San Francisco, California 94102
Telephone: (415) 436-6915
FAX: (415) 436-7169
Attorneys for Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
JEEHYUN KIM,
Plaintiff,
v.
Attorney General ALBERTO GONZALES,
Secretary of Department of Homeland Security
MICHAEL CHERTOFF, Director of United States
Citizenship and Immigration Services EMILIO T.
GONZALES, and District Director of United States
Citizenship and Immigration Services DAVID N.
STILL,
Defendants.
)
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) Case No. 06-1943 BZ
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) STIPULATION TO DISMISS AND
) ORDER
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Plaintiff, by and through her attorney of record, and Defendants, by and through their attorneys
of record, hereby stipulate, subject to the approval of the Court, to dismissal of the above-entitled
action without prejudice in light of the fact that the United States Citizenship and Immigration
Services is now prepared to adjudicate plaintiff’s application for naturalization and agrees to
adjudicate such application within 30 days of the dismissal of this action.
Each of the parties shall bear their own costs and fees.
///
///
Case 3:06-cv-01943-BZ Document 9 Filed 07/17/06 Page 1 of 2
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Stip. to Dismiss
C 06-1943 BZ 2
Date: July 14, 2006 Respectfully submitted,
KEVIN V. RYAN
United States Attorney
/s/
EDWARD A. OLSEN
Assistant United States Attorney
Attorneys for Defendants
/s/
Date: July 13, 2006 DAVID N. STRAND
Attorney for Plaintiff
ORDER
Pursuant to stipulation, IT IS SO ORDERED.
Date: July 17, 2006
BERNARD ZIMMERMAN
United States Magistrate Judge
Case 3:06-cv-01943-BZ Document 9 Filed 07/17/06 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-alnd-1_12-cv-03102/USCOURTS-alnd-1_12-cv-03102-1/pdf.json | 710 | Fair Labor Standards Act | 29:201 Fair Labor Standards Act | IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
CEDRIC BURROUGHS
Plaintiff,
v.
HONDA MANUFACTURING OF
ALABAMA, LLC,
Defendant.
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CIVIL ACTION NO.
1:08-CV-1239-VEH
(and Related Cases)
MEMORANDUM OPINION REGARDING
ORDER APPROVING SETTLEMENT
On February 7, 2014, the magistrate judge filed hisreport and recommendation
concerning the proposed approval of a compromise settlement reached by the parties
in this and 384 related cases assigned to the undersigned district judge (see
Attachment “A” hereto), as well as in 202 other cases involving and related to the
action in Thsia Briggins v. Elwood TRI, Inc, and Honda Manufacturing of Alabama,
LLC, Case Number 1:08-cv-1801-KOB, assigned to a different district judge.
1
Preliminary to the filing of his report and recommendation, the magistrate judge
entered orders requiring plaintiffs’ counsel to notify the individual plaintiffs of the
terms and conditions of the proposed settlement, including the procedures for
The Final Order Approving Settlement and Dismissing Action is entered only in this case and 1
the 384 related cases assigned to the undersigned. It does not purport of resolve the other 202
cases assigned Chief Judge Bowdre.
FILED
2014 Mar-10 PM 01:20
U.S. DISTRICT COURT
N.D. OF ALABAMA
Case 1:12-cv-03102-VEH Document 17 Filed 03/10/14 Page 1 of 6
objecting to the proposed settlement and the back-pay recoveries each plaintiff should
expect to receive under the settlement. Notification was mailed to each plaintiff by
counsel on or soon after November 12, 2013 (see Doc. 378, p. 5), expressly advising
each plaintiff of the right to appear personally and object to the proposed settlement
at a fairness hearing scheduled on December 10, 2013. On December 10, 2013, the
magistrate judge convened the fairness hearing pursuant to Lynn’s Food Stores, Inc.
v. United States, 679 F.2d 1350 (11th Cir. 1982), but no plaintiffs or persons
purporting to speak for any of them appeared at the hearing. No written objections to
the proposed settlement have been received by the court.
Following the December 10 fairness hearing, the magistrate judge filed his
report and recommendation on February 7, 2014, recommending generally that the
proposed settlement be approved by the court, with the exception of two provisions.
The magistrate judge recommended that the court reject approval of Paragraph 9 of
the proposed settlement agreement (see Attachment “B” hereto), which requires that
the agreement and its terms remain confidential. The magistrate judge also
recommended that the court reject approval of a portion of Paragraph 10, which would
impose on any late-objecting plaintiff the fees and costs incurred by defendants in
filing any motion to enforce the settlement agreement against such a plaintiff. The
magistrate judge also found that the fees to be awarded plaintiffs’ counsel are
2
Case 1:12-cv-03102-VEH Document 17 Filed 03/10/14 Page 2 of 6
reasonable in the circumstances of these cases, and he recommended approval of the
fee award.
To date, no party has filed an objection to the report and recommendation. The
court has carefully reviewed and considered de novo the report and recommendation,
as well asthe materials submitted by the parties in support of the proposed settlement,
and the court finds that the report is due to be and hereby is ADOPTED and the
recommendations in it ACCEPTED. The court agrees that the proposed settlement
is a fair and adequate compromise of the genuinely contested claims of overtime pay
by the plaintiffs. For the reasons explained by the magistrate judge, the claims of
overtime were genuinely disputed both as to entitlement to any overtime
compensation and the amounts that might be owed. The parties reached a fair and
adequate compromise to resolve disputes over whether any overtime pay was due the
plaintiff, whether it is possible to accurately quantify any overtime each plaintiff may
claim, and, by extension, whether plaintiffs are entitled to any liquidated damages.
The court agrees that the negotiated fees and expenses of plaintiffs’ counsel are fair
and reasonable and do not reduce the amount each plaintiff is entitled to receive under
the settlement.
The court also agrees with the magistrate judge that Paragraph 9 and a part of
Paragraph 10 of the proposed settlement agreement should be rejected. The court
3
Case 1:12-cv-03102-VEH Document 17 Filed 03/10/14 Page 3 of 6
agrees with the observation made by Judge Thompson that “[a]bsent some compelling
reason, the sealing from public scrutiny of FLSA agreements between employees and
employers would thwart the public’sindependent interest in assuring that employees’
wages are fair and thus do not endanger ‘the national health and well-being.’” Hogan
v. Allstate Beverage Co., Inc., 821 F. Supp. 2d 1274, 1283 (M.D. Ala. 2011) quoting
Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 708, 65 S. Ct. 895, 89 L. Ed. 1296
(1945). Confidentiality provisions may not be extracted as a part of the price of
compromise, “for they prevent the employee from alerting other workers to potential
FLSA violations on pain of personal liability” and by enabling the employer to
“‘retaliate against an employee for exercising FLSA rights’ by advising other
employees of FLSA violations.” Hogan v. Allstate Beverage Co., Inc., 821 F. Supp.
2d 1274, 1284 (M.D. Ala. 2011). o uphold such provisions, there must be
“compelling reasons,” Crabtree v. Volkert, Inc., 2013 WL 593500, *4 (S.D. Ala. Feb.
14, 2013), which simply have not been shown to exist in these cases.
Likewise, that part of Paragraph 10 that allowsthe defendants to seek their fees
and expenses incurred in connection with any motion to enforce the settlement against
any plaintiff that balks at fulfilling it unduly undermines the voluntariness of the
compromise achieved and extracts a price for recognition of the plaintiffs’ FLSA
rights, particularly as to those plaintiffs who can establish that they were unaware of
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the proposed settlement. As to plaintiffs who are unaware of the proposed settlement
or otherwise were prevented from expressing opposition, imposing fees and costs on
them to oppose the settlement later when they learn of it violates their due process
rights. Thus, the court will reject that part of Paragraph 10 allowing defendants to seek
fees and expenses for enforcement motions as to those plaintiffs who can establish
they were unaware of the settlement or otherwise prevented from stating their
objections to it until after this date.
Further, the court expressly findsthat the proposed attorneys’fees and expenses
due to plaintiffs’ counsel under the proposed settlement agreement, as set out in the
magistrate judge’s report and recommendation, are fair and reasonable, taking into
account the “lodestar” method of calculating fees and the factors enumerated in
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5 Cir. 1974). The fees and
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expenses determined by the magistrate judge in the report and recommendation are
hereby ADOPTED as the court’s own fee/expense award. In the separate Final Order
Approving Settlement, the court will award to plaintiffs’ counsel the fees, costs, and
expenses consistent with the settlement agree, as set out in the magistrate judge’s
report and recommendation. By separate Final Order Approving Settlement and
Dismissing Action, the court will approve the proposed settlement agreement, except
with respect to Paragraph 9 and that portion of Paragraph 10 that would allow
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defendants to seek fees and expenses for any motion to enforce the settlement with
respect to any plaintiff able to show that he did not know about or have a reasonable
opportunity to object to the settlement prior to this date. The parties may proceed
2
with execution of the settlement agreement, and the court will dismiss with prejudice
all actions listed in Attachment “A.”
DATED this 10th day of March, 2014.
VIRGINIA EMERSON HOPKINS
United States District Judge
To be clear, all portions of Paragraph 10 remain valid and effective as to those plaintiffs who 2
learned or knew of the proposed settlement and had a reasonable opportunity to object to it prior
to the date of this approval of the settlement.
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
JOSE SANTOS MENDOZA,
Petitioner, No. CIV S-07-1757 GEB GGH P
vs.
M.D. McDONALD, et al.,
Respondents. ORDER
/
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma
pauperis.
Examination of the in forma pauperis application reveals that petitioner is unable
to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be
granted. See 28 U.S.C. § 1915(a).
Since petitioner may be entitled to relief if the claimed violation of constitutional
rights is proved, respondents will be directed to file a response to petitioner’s habeas petition.
/////
/////
Case 2:07-cv-01757-GEB-GGH Document 4 Filed 10/18/07 Page 1 of 2
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In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner’s application to proceed in forma pauperis is granted;
2. Respondents are directed to file a response to petitioner’s habeas petition
within thirty days from the date of this order. See Rule 4, Fed. R. Governing § 2254 Cases. An
answer shall be accompanied by all transcripts and other documents relevant to the issues
presented in the petition. See Rule 5, Fed. R. Governing § 2254 Cases;
3. If the response to the habeas petition is an answer, petitioner’s reply, if any,
shall be filed and served within thirty days after service of the answer;
4. If the response to the habeas petition is a motion, petitioner’s opposition or
statement of non-opposition to the motion shall be filed and served within thirty days after
service of the motion, and respondents’ reply, if any, shall be filed and served within fifteen days
thereafter; and
5. The Clerk of the Court shall serve a copy of this order together with a copy of
the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on Michael Patrick Farrell,
Senior Assistant Attorney General.
DATED: 10/18/07
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
men1757.100
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WO SVK
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Jeremy David Henderson,
Plaintiff,
vs.
Joseph Arpaio, et al.
Defendants.
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No. CV 09-0154-PHX-GMS (LOA)
ORDER
Plaintiff Jeremy David Henderson filed this civil rights action under 42 U.S.C. § 1983
against City of Mesa Police Officers Frank Hermosillo and John LaFontaine; Joseph Arpaio,
Maricopa County Sheriff; and Greg Basye, emergency room employee at Mountain Vista
Hospital. (Doc. #12.) Bayse, the only remaining Defendant, moves for summary judgment.
(Doc. #38.) Although the Court issued a Notice pursuant to Rand v. Rowland, 154 F.3d 952,
962 (9th Cir. 1998) (en banc), advising Plaintiff of his obligation to respond, Plaintiff filed
no response. (Doc. #40.) The motion is ready for ruling.
The Court will grant Defendant’s motion and terminate the case.
I. Background
Plaintiff’s claims arise out of his arrest on January 28, 2008, by Hermosillo and
LaFontaine. The First Amended Complaint alleged that Hermosillo and LaFontaine used
excessive force on Plaintiff during his arrest when they sent a K-9 to attack Plaintiff; that
Arpaio was deliberately indifferent regarding alleged abuse by K-9 units; and that Basye was
Case 2:09-cv-00154-GMS Document 44 Filed 06/30/10 Page 1 of 7
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deliberately indifferent in treating Plaintiff’s injuries. (Doc. #12.) The Court ordered all
Defendants to answer the First Amended Complaint. (Doc. #11.) The Court subsequently
dismissed Arpaio and later dismissed Hermosillo and La Fontaine (Doc. ##27, 43.)
Bayse now moves for summary judgment on the grounds that (1) he is not a state actor
and did not act under color of law, so there is no claim against him under 42 U.S.C. § 1983,
and (2) he was not deliberately indifferent to Plaintiff’s serious medical needs. (Doc. #38.)
II. Legal Standards
A. Summary Judgment
A court must grant summary judgment if the pleadings and supporting documents,
viewed in the light most favorable to the non-moving party, “show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Under
summary judgment practice, the moving party bears the initial responsibility of presenting
the basis for its motion and identifying those portions of the record, together with affidavits,
which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477
U.S. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the
opposing party who must demonstrate the existence of a factual dispute and 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 (1986), and that the
dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for
the non-moving party. Id. at 250; see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216,
1221 (9th Cir. 1995). Rule 56(e) compels the non-moving party to “set out specific facts
showing a genuine issue for trial” and not to “rely merely on allegations or denials in its own
pleading.” Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986). The opposing party need not establish a material issue of fact
conclusively in its favor; it is sufficient that “the claimed factual dispute be shown to require
a jury or judge to resolve the parties’ differing versions of the truth at trial.” First Nat’l Bank
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of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). However, Rule 56(c) mandates
the entry of summary judgment against a party who, after adequate time for discovery, fails
to make a showing sufficient to establish the existence of an element essential to that party’s
case and on which the party will bear the burden of proof at trial. Celotex, 477 U.S. at 322-
23.
When considering a summary judgment motion, the court examines the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits,
if any. Fed. R. Civ. P. 56(c). At summary judgment, the judge’s function is not to weigh the
evidence and determine the truth but to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. The evidence of the non-movant is “to be believed, and all
justifiable inferences are to be drawn in his favor.” Id. at 255. But, if the evidence of the
non-moving party is merely colorable or is not significantly probative, summary judgment
may be granted. Id. at 249-50.
B. Claims Under 42 U.S.C. § 1983
Section 1983 provides a cause of action against persons acting under color of state
law who have violated rights guaranteed by the United States Constitution and federal law.
42 U.S.C. § 1983; see also Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995).
C. Deliberate Indifference to Serious Medical Needs
A pretrial detainee’s claim for unconstitutional treatment arises from the Due Process
Clause. Bell v. Wolfish, 441 U.S. 520 (1979). The Due Process Clause requires a
governmental authority to provide medical care to a person injured while being apprehended
by the police, and police fulfill their constitutional obligation by seeing that an injured person
is taken promptly to a hospital. City of Revere v. Mass. General Hosp., 463 U.S. 239, 244-45
(1983). The due process rights of such a person are at least as great as the Eighth
Amendment protections afforded to a convicted prisoner, which prohibit deliberate
indifference to serious medical needs. Id. at 243-44 (citing Estelle v. Gamble, 429 U.S. 97,
104 (1976).
To prevail on a claim under the Eighth Amendment for prison medical care, a prisoner
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must demonstrate “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d
1091, 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A plaintiff
must show (1) a “serious medical need” by demonstrating that failure to treat the condition
could result in further significant injury or the unnecessary and wanton infliction of pain and
(2) the defendant’s response was deliberately indifferent. Jett, 439 F.3d at 1096 (citations
omitted).
III. Motion for Summary Judgment
A. Parties’ Contentions
1. Defendant
In support of his motion, Defendant submits his Statement of Facts (Doc. #39,
(DSOF)); Incident/Investigation Supplement Reports, dated January 29, 2008 (id., Exs. A-B);
Mesa Fire Department EMS Encounter Form (id., Ex. C); Southwest Ambulance Form (id.,
Ex. D); Plaintiff’s Mountain Vista Medical Center Records (id., Ex. E); Mesa Police
Department Incident/Investigation Report (id., Ex. F); the Maricopa County Superior Court
Sentence of Imprisonment for CR2008-106716 (id., Ex. G); and the affidavit of Stuart
Richards (id., Ex. H).
Defendant submits evidence of the events leading up to Plaintiff’s arrest on the night
of January 29, 2008. Because this evidence is undisputed and because the Court has already
granted summary judgment to Officers Hermosillo and LaFontaine, the Court simply notes
that it is undisputed that during the arrest, Plaintiff sustained bites from LaFontaine’s police
dog.
Defendant’s evidence shows that once Plaintiff was under arrest, Mesa Fire
Department EMS responded to the scene to address the dog bites. (DSOF ¶ 26, Exs. B, C.)
The EMS personnel noted that Plaintiff had four puncture wounds to his left forearm
consistent with dog bites. (Id. ¶ 27.) The two puncture wounds on Plaintiff’s upper anterior
forearm had muscle tissue protruding from the wounds, and the two punctures wounds on the
posterior side of his arm showed no tissue. (Id. ¶ 28.) Bleeding from all puncture wounds
was controlled, and Plaintiff was taken to Mountain Vista Medical Center by Southwest
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Ambulance for further care. (Id. ¶ 29.)
Defendant asserts that Plaintiff arrived at the Mountain Vista Medical Center
Emergency Department (ED) at approximately 0315 and was seen at approximately 0320 by
Defendant. (Id. ¶ 30.) Defendant contends that Plaintiff reported to the triage nurse that his
immunizations were current. (Id. ¶¶ 31-34.) ED staff noted that Plaintiff’s skin was warm
and dry, on admission, his pulse was 101, “100% pulse oximetry,” and blood pressure
129/84, and Plaintiff was noted to be oriented x 4. (Id. ¶ 35.) Nursing staff noted “WNL”
in the section of the assessment marked “EENT” for eyes, ears, nose and throat. Plaintiff
reported a history of substance abuse, and use of tobacco and alcohol. (Id. ¶ 36.) No
gastrointestinal or genitourinary complaints were noted. (Id. ¶ 37.) Other than Plaintiff’s
report of pain in his left arm, no alteration in sensation is recorded in the ED records. (Id.
¶ 38.)
Defendant examined Plaintiff and noted a full range of motion in his left arm and
multiple dog bites of varying depths and lengths; the two largest lacerations had muscle
tissue sticking out. (Id. ¶¶ 39-40.) Defendant injected local anesthetic and cleaned the
wounds with copious quantities of saline and Shur-cleanse and removed small bits of grass.
(Id. ¶ 41.) He closed the three largest lacerations loosely with 4-0 prolene sutures and did
a sterile cleanse of Plaintiff’s entire left arm; a nurse applied bacitracin dressings. (Id. ¶¶ 42-
43.) Defendant advised Plaintiff about his injuries and the need to follow up with a doctor
the next day. (Id. ¶ 44.) Defendant also prescribed an antibiotic, Augmentin, to prevent
infection, and Percocet as needed for pain. (Id. ¶ 45.) Plaintiff was discharged from the ED
at approximately 0355. (Id. ¶ 46.)
After his treatment was concluded, Plaintiff was discharged, and officers transported
him to the Mesa City Jail where he was booked. (Id. ¶ 47.)
2. Plaintiff
As noted, Plaintiff did not respond to the motion. Because a verified complaint may
be used as an affidavit opposing summary judgment if it is based on personal knowledge and
sets forth specific facts admissible in evidence, the Court will consider the allegations set
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forth in Plaintiff’s First Amended Complaint. Schroeder v. McDonald, 55 F.3d 454, 460 (9th
Cir. 1995). In his First Amended Complaint, Plaintiff alleged that Defendant looked at
Plaintiff’s arm and provided inadequate medical care by only stitching the injuries and that
Plaintiff was going into shock and should have been admitted for observation and treatment.
(Doc. #12 at 4-4A.) He alleged that Defendant placed his life in danger “through circulatory
collapse.” (Id. at 4-A.) Plaintiff asserted that he was taken back to the jail with no medical
treatment or observation and that he was later transported to Maricopa County Medical
Center for emergency medical treatment. (Id.) He remained there for four weeks and had
two surgeries. (Id. at 4-B.) He claims that he now suffers from atrophy of his arm, nerve and
muscle damage, and disfigurement. (Id.)
C. Analysis
The Court will grant summary judgment to Defendant. The Court assumes that
Plaintiff’s bite wounds constituted a serious medical need, but Defendant submits evidence
that he did not act with deliberate indifference to Plaintiff’s bite wounds. Plaintiff fails to
rebut Defendant’s evidence and show a material dispute of fact on this issue.
Defendant submits undisputed evidence that he examined Plaintiff, that Plaintiff’s
vital signs were determined, and that Defendant cleaned and sutured the wounds on
Plaintiff’s arms. Plaintiff asserts in his First Amended Complaint that Defendant provided
“inadequate” medical care; but mere claims of “indifference,” “negligence,” or “medical
malpractice” do not support a claim under § 1983. Broughton v. Cutter Laboratories, 622
F.2d 458, 460 (9th Cir. 1980). Inadequate treatment due to malpractice or even gross
negligence does not constitute an Eighth Amendment violation. Wood v. Housewright, 900
F.2d 1332, 1334 (9th Cir. 1990). And differences in judgment between an inmate and prison
medical personnel regarding an appropriate medical diagnosis or treatment are not enough
to establish a deliberate-indifference claim. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.
1996).
Summary judgment is appropriate when a party fails to make a showing sufficient to
establish the existence of an element essential to his case and on which he would have the
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burden of proof at trial. Celotex Corp., 477 U.S. at 322-23. Plaintiff has the burden of proof
on standard of care—he must provide competent evidence that Defendant’s treatment fell
below the standard of care—and expert medical testimony is generally required to establish
standard of care. See Gorney v. Meaney, 150 P.3d 799, 802 (Ariz. App. 2 Div. 2007) (the
“factual basis” and “breach of duty” provisions of Ariz. Rev. Stat. § 12-2603 require a
plaintiff’s expert to state the factual basis of plaintiff’s claim and list those acts the expert
determined fell below the standard of care). It was incumbent upon Plaintiff to provide an
affidavit or deposition of an expert to establish standard of care. See Hutchinson v. United
States, 838 F.2d 390, 393 (9th Cir. 1988) (granting summary judgment against a plaintiff
who relied only on her own allegations and conclusory statements that defendants had been
negligent and who failed to provide affidavits or depositions of experts). This Plaintiff failed
to do.
The Court will grant summary judgment as to Bayse. In addition, because no claims
or Defendants remain, the Court will terminate the case.
IT IS ORDERED:
(1) The reference to the Magistrate Judge is withdrawn as Defendant Bayse’s Motion
for Summary Judgment (Doc. #38).
(2) Defendant Bayse’s Motion for Summary Judgment (Doc. #38) is granted, and
the claims against him are dismissed with prejudice.
(3) The case is terminated, and the Clerk of Court must enter judgment accordingly.
DATED this 30th day of June, 2010.
Case 2:09-cv-00154-GMS Document 44 Filed 06/30/10 Page 7 of 7 |
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James J. Elacqua (CBS No.: 187897)
[email protected]
Noemi C. Espinosa (CBS No.: 116753)
[email protected]
Ellen J. Wang (CBS No.: 215478)
[email protected]
Michelle W. Yang (CBS No.: 215199)
[email protected]
DECHERT LLP
2440 West El Camino Real
Suite 700
Mountain View, California 94040
Palo Alto, California 94304
Telephone: (650) 813-4800
Facsimile: (650) 813-4848
Attorneys for Plaintiff
MEDTRONIC, INC., MEDTRONIC USA, INC.
AND MEDTRONIC VASCULAR, INC.
Perry R. Clark (CBS No. 197101)
[email protected]
KIRKLAND & ELLIS LLP
555 California Street
San Francisco, CA 94104
Telephone: (415) 439-1400
Facsimile: (415) 439-1500
Attorney for Defendant
AGA MEDICAL CORPORATION
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
MEDTRONIC, INC., MEDTRONIC USA,
INC., and MEDTRONIC VASCULAR,
INC.,
Plaintiff,
v.
AGA MEDICAL CORPORATION,
Defendant,
Case No. C07 00567 MMC
STIPULATION AND [PROPOSED]
ORDER EXTENDING TIME TO
EXCHANGE PRELIMINARY
CLAIM CONSTRUCTIONS AND
EXTRINSIC EVIDENCE
STIPULATION AND [PROPOSED] ORDER EXTENDING TIME TO EXCHANGE PRELIMINARY CLAIM CONSTRUCTIONS AND 1
EXTRINSIC EVIDENCE; CASE NO. C07 00567 MMC
12890155.1
Case 3:07-cv-00567-MMC Document 33 Filed 08/14/07 Page 1 of 3
DECHERT LLP
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STIPULATION AND [PROPOSED] ORDER EXTENDING TIME TO EXCHANGE PRELIMINARY CLAIM CONSTRUCTIONS AND 2
EXTRINSIC EVIDENCE; CASE NO. C07 00567 MMC
12890155.1
Pursuant to Civil L.R. 6-2, Plaintiffs Medtronic, Inc., Medtronic USA, Inc., and
Medtronic Vascular, Inc. (collectively “Medtronic”) and Defendant AGA Medical Corporation
(“AGA”) (collectively, the “Parties”) hereby stipulate to request an extension of time to Exchange
Preliminary Claim Constructions and Extrinsic Evidence pursuant to Patent L.R. 4-2 to August
15, 2007.
According to the Joint Case Management Statement adopted by the Court on May 11,
2007, the Exchange of Preliminary Claim Constructions and Extrinsic Evidence was originally set
for August 13, 2007. On August 10, 2007 the Parties met and conferred in an effort to narrow the
list of proposed claim terms to construe, and are still in the process of modifying this list.
Therefore, the Parties agree to extend the date to Exchange Preliminary Claim
Constructions and Extrinsic Evidence to August 15, 2007 to allow for additional time to gather
extrinsic evidence. This time modification will not alter any other dates on the schedule for this
case.
Case 3:07-cv-00567-MMC Document 33 Filed 08/14/07 Page 2 of 3
DECHERT LLP
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Previously, the Parties have stipulated to extending the times to Answer the Complaint
and Reply to the Answer and Counterclaims.
For Plaintiffs MEDTRONIC, INC., MEDTRONIC USA, INC.,
AND MEDTRONIC VASCULAR, INC.:
DATED: August 13, 2007 DECHERT LLP
By: /s/ Michelle W. Yang
James J. Elacqua (CBS No. 187897)
Noemi C. Espinosa (CBS No. 116753)
Ellen J. Wang (CBS No. 215478)
Michelle W. Yang (CBS No. 215199)
DECHERT LLP
2440 West El Camino Real, Suite 700
Mountain View, California 94040
Palo Alto, California 94304
Telephone: (650) 813-4800
Facsimile: (650) 813-4848
For Defendant AGA MEDICAL CORPORATION:
DATED: August 13, 2007 By: /s/ Perry R. Clark
Perry R. Clark (CBS No. 197101)
KIRKLAND & ELLIS LLP
555 California Street
San Francisco, CA 94104
Telephone: (415) 439-1400
Facsimile: (415) 439-1500
ORDER
PURSUANT TO STIPULATION, IT IS SO ORDERED.
DATED: , 2007
HON. MAXINE M. CHESNEY
UNITED STATES DISTRICT COURT JUDGE
STIPULATION AND [PROPOSED] ORDER EXTENDING TIME TO EXCHANGE PRELIMINARY CLAIM CONSTRUCTIONS AND 3
EXTRINSIC EVIDENCE; CASE NO. C07 00567 MMC
12890155.1
August 14
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
MICHAEL JOHN GADDY,
Plaintiff,
v.
M. TOWNSEND, et al.,
Defendants.
Case No. 16-cv-01319-HSG (PR)
ORDER DENYING PLAINTIFF’S
MOTION TO COMPEL DEFENDANTS
TO ANSWER COMPLAINT
Re: Dkt. No. 10
Plaintiff’s motion to compel Defendants to answer his complaint is DENIED. Defendants
have filed a waiver of reply instead of an answer, which is permitted by statute. See 42 U.S.C.
§ 1997e(g). Defendants’ dispositive motion is currently due on or before October 13, 2016.
This order terminates Docket No. 10.
IT IS SO ORDERED.
Dated:
HAYWOOD S. GILLIAM, JR.
United States District Judge
9/20/2016
Case 4:16-cv-01319-HSG Document 11 Filed 09/20/16 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caDC-09-05281/USCOURTS-caDC-09-05281-0/pdf.json | 890 | Other Statutory Actions | null | United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 7, 2009 Decided March 2, 2010
No. 09-5281
TEVA PHARMACEUTICALS USA, INC.,
APPELLANT
v.
KATHLEEN SEBELIUS, IN HER OFFICIAL CAPACITY AS
SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.,
APPELLEES
Consolidated with 09-5308
Appeals from the United States District Court
for the District of Columbia
(No. 1:09-cv-01111-RMC)
Michael D. Shumsky argued the cause for appellant. With
him on the briefs were Jay P. Lefkowitz and Gregory L.
Skidmore.
Carmen M. Shepard and Kate C. Beardsley were on the
briefs for cross-appellant Apotex, Inc. in No. 09-5308.
Drake Cutini, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
USCA Case #09-5281 Document #1232766 Filed: 03/02/2010 Page 1 of 35
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Eugene M. Thirolf Jr., Director, David S. Cade, Acting
General Counsel, United States Food and Drug
Administration, Michael M. Landa, Acting Associate General
Counsel, and Eric M. Blumberg, Deputy Chief Counsel.
Carmen M. Shepard and Kate C. Beardsley were on the
brief for amicus curiae Apotex, Inc. in support of appellees.
Before: HENDERSON and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
Dissenting opinion filed by Circuit Judge HENDERSON.
WILLIAMS, Senior Circuit Judge: This is the latest
installment in a long-running series of cases concerning an
incentive that Congress established for companies to bring
“generic” versions of branded drugs to market faster than they
otherwise might. Teva Pharmaceuticals USA, Inc., a
manufacturer of generics, has received tentative approval
from the U.S. Food and Drug Administration to sell losartan
potassium products—used primarily to treat hypertension.
The approval will become final once the “pediatric exclusivity
period”1
ends, following the expiration of the last remaining
patent on Merck’s pioneered versions of the same drugs, sold
under the names Cozaar and Hyzaar. When that date arrives
(April 6, 2010), Teva believes that it should be entitled to the
six-month period of marketing exclusivity that generic drug
makers earn, in some circumstances, for successfully taking
1
This is a six-month extension of the time during which all
generic competition against a branded drug is prohibited, see 21
U.S.C. § 355a; it is not a subject of dispute here.
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the risks and bearing the costs of showing the invalidity or
inefficacy of a patent that a brand-name drug maker has said
blocks competing products. See Mova Pharmaceutical Corp.
v. Shalala, 140 F.3d 1060, 1063-65 (D.C. Cir. 1998)
(describing the incentive regime established by the HatchWaxman Act of 1984); Ranbaxy Laboratories Ltd. v. Leavitt,
469 F.3d 120, 121-22 (D.C. Cir. 2006).
Thwarting its receipt of that entitlement, however, is an
FDA interpretation of the operative statutory regime (the
Food, Drug, and Cosmetic Act, as amended by various other
laws, codified in relevant part at 21 U.S.C. § 355) that will
allow not only Teva but all generic manufacturers to sell their
approved losartan potassium products right out of the gate. In
short, Teva says that, effective April 6, 2010, the agency’s
interpretation will deprive the company of the competitive
advantage Congress has said it should enjoy.
To ward off this danger, Teva filed suit in the federal
district court for the District of Columbia in June 2009,
seeking a declaration that the relevant FDA policy is unlawful
and an injunction compelling the agency to act in accordance
with Teva’s reading of the statute. Despite protestations by
the government that the matter was not ripe for review and
that Teva lacked standing, the district court reached the merits
of the claim—but ruled in the FDA’s favor. Teva
Pharmaceuticals U.S.A, Inc. v. Sebelius, 638 F.Supp.2d 42
(D.D.C. 2009). Teva now appeals that decision. We agree
that the suit is justiciable, and hold that the FDA’s
interpretation is inconsistent with, and thus foreclosed by, the
statutory scheme.
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* * *
In the process of obtaining FDA approval to sell a
pioneering new drug, an applicant lists publicly all of the
patents that, it believes, would be infringed by
“bioequivalent” versions of the product sold by other
companies. Ranbaxy, 469 F.3d at 121-22 (discussing 21
U.S.C. § 355(a)-(b)(1)). Prospective generic competitors need
not, however, take these lists as gospel. After a new drug hits
the market, they can effectively challenge the brand maker’s
pronouncement by filing a certification that a proposed
generic version of the brand drug would not run afoul of one
(or more) of the putatively blocking patents, either because
the patent is invalid or because the generic maker has found a
way to design around it. See id. at 122 (discussing 21 U.S.C.
§ 355(j)(2)(A)(vii)(IV)). The generic producer’s filing, called
a “paragraph IV certification” in our past cases, comes in the
course of the generic’s own application for FDA approval,
known as an Abbreviated New Drug Application, or ANDA.
See id. (discussing 21 U.S.C. § 355(j)(2)).
Filing a paragraph IV certification comes with a risk,
though: it constitutes an act of patent infringement, 35 U.S.C.
§ 271(e)(2)(A), with the hazard of sparking costly litigation.
In order, then, to “compensate [generic] manufacturers for
research and development costs as well as the risk of litigation
from patent holders,” Teva Pharmaceuticals USA, Inc. v.
Leavitt, 548 F.3d 103, 104 (D.C. Cir. 2008), the statute
provides that the first company to file an ANDA containing a
paragraph IV certification earns an “exclusivity” period of
180 days, during which the FDA may not approve for sale any
competing generic version of the drug at issue, id. (discussing
21 U.S.C. § 355(j)(5)(B)(iv)). This promise of initial
marketing exclusivity is thus intended to increase competition
by expediting the availability of generic equivalents. See id.;
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Serono Laboratories, Inc. v. Shalala, 158 F.3d 1313, 1326
(D.C. Cir. 1998).
A potential bug in the system is the ability of the brand
manufacturer, after a generic has filed a paragraph IV
certification, to announce that in fact the challenged patent is
not one that protects the drug at issue and to ask the FDA to
“delist” the patent, thus purporting to pull the rug from under
the paragraph IV certification. In Ranbaxy we considered
“whether the FDA may delist a patent upon the request of the
[brand manufacturer] after a generic manufacturer has filed an
ANDA containing a paragraph IV certification so that the
effect of delisting is to deprive the applicant of a period of
marketing exclusivity.” 469 F.3d at 125. The answer, we
said, was no; an FDA policy that allowed brand manufacturers
to strategically delist challenged patents, thereby unilaterally
stripping generic manufacturers of marketing exclusivity, was
“inconsistent with the structure of the statute.” Id.
Ranbaxy, however, interpreted the law as it stood before
Congress amended it in 2003 via the Medicare Prescription
Drug, Improvement, and Modernization Act, Pub. L. No. 108-
173, 117 Stat. 2066. Id. at 122 n.*. Three times since the
effective date of the amendments, the same series of events at
issue in Ranbaxy has arisen—once involving the generic
manufacturer Cobalt Pharmaceuticals and the brand drug
Precose, made by Bayer; once involving the generic
manufacturer Hi-Tech Pharmacal Co. and the brand drug
COSOPT, made by Merck; and now involving Teva, the drugs
Cozaar and Hyzaar, and Merck. In the first two instances, the
generic makers presented arguments to the FDA why they
should still, in the modified statutory regime, be entitled to
exclusivity notwithstanding the brand companies’ delisting a
challenged patent. Teva itself responded to the FDA’s
solicitation of comments in the Cobalt matter, advocating the
same pro-exclusivity reading of the amended statute’s
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treatment of post-paragraph-IV-filing delisting requests. See
Letter from Marc Goshko, Executive Director, Teva North
America, In Response to FDA Request for Comments re
Generic Drug Applications for Acarbose Tablets (Oct. 16,
2007), in Joint Appendix (“J.A.”) 78 et seq. In both cases, the
FDA ruled that the 2003 amendments required a different
outcome from the one Ranbaxy ordered under the old version
of the law.
The agency pointed to the 2003 amendments’ addition of
a critical new term to the statute: the “forfeiture event.” See
21 U.S.C. § 355(j)(5)(D)(ii). On the occurrence of any one of
six defined scenarios, the law now says, the entitlement to a
180-day exclusivity period “shall be forfeited by a first
applicant.” See id. In both the Cobalt and Hi-Tech disputes,
the FDA decided that the facts at issue, paralleling those in
Ranbaxy and our case, had satisfied the terms of the first listed
forfeiture event, “failure to market,” and in each case denied
the generic manufacturer exclusivity.
The statutory definition of the first listed forfeiture event
is as follows:
(I) FAILURE TO MARKET. — The first applicant fails
to market the drug by the later of —
(aa) the earlier of the date that is —
(AA) 75 days after the date on which the
approval of the application of the first applicant
is made effective under subparagraph (B)(iii); or
(BB) 30 months after the date of submission of
the application of the first applicant; or
(bb) with respect to the first applicant or any other
applicant (which other applicant has received
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tentative approval), the date that is 75 days after the
date as of which, as to each of the patents with
respect to which the first applicant submitted and
lawfully maintained a certification qualifying the first
applicant for the 180-day exclusivity period under
subparagraph (B)(iv), at least 1 of the following has
occurred:
(AA) In an infringement action brought against
that applicant with respect to the patent or in a
declaratory judgment action brought by that
applicant with respect to the patent, a court
enters a final decision from which no appeal
(other than a petition to the Supreme Court for a
writ of certiorari) has been or can be taken that
the patent is invalid or not infringed.
(BB) In an infringement action or a declaratory
judgment action described in subitem (AA), a
court signs a settlement order or consent decree
that enters a final judgment that includes a
finding that the patent is invalid or not infringed.
(CC) The patent information submitted under
subsection (b) or (c) of this section is withdrawn
by the holder of the application approved under
subsection (b) of this section.
21 U.S.C. § 355(j)(5)(D)(i)(I) (emphasis added).
The FDA stated its view of the matter in terms echoing
the so-called “first prong” of Chevron, U.S.A. Inc. v. NRDC,
467 U.S. 837 (1984), see, e.g., Mova, 140 F.3d at 1067,
explaining: “The effect of patent delisting on eligibility for
180-day exclusivity is expressly addressed by the [preceding]
plain language.” Dorzolamide Hydrochloride-Timolo
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Maleate Ophthalmic Solution — 180-day generic drug
exclusivity, Dear ANDA Applicant Letter (Oct. 28, 2008)
(“Hi-Tech Letter”) at 14 n.15., J.A. 121 n.15. A company
otherwise entitled to exclusivity always forfeits it, said the
agency, if events occur satisfying both paragraphs (aa) and
(bb). Id. Paragraph (aa) gets checked off, thanks to its
subsection (BB), as soon as 30 months have passed since the
generic maker filed its ANDA—which had long since
happened in both Cobalt’s and Hi-Tech’s cases. And
paragraph (bb) is taken care of 75 days after the brand
manufacturer delists the challenged patent (under subsection
(CC)), regardless of the purpose or circumstance of the
delisting request. Id. In the later of the two letter rulings, the
FDA wrote that it had “considered and rejected in both this
case and in the matter described in the [Cobalt] Decision, the
argument that eligibility for 180-day exclusivity following the
[brand maker’s] voluntary withdrawal of its patent should be
governed not by the [new] forfeiture provisions, but by the
rule established in Ranbaxy.” Hi-Tech Letter at 14, J.A. 121.
Even though neither Cobalt nor Hi-Tech could have sold its
generic drug before the date that the FDA said amounted to a
“failure to market” event (since unchallenged patents
protected the relevant brand drugs until a good deal later), the
agency announced that both companies had forfeited
exclusivity. Both Cobalt and Hi-Tech sought judicial review,
were denied relief in district court, and didn’t appeal.
Teva filed the ANDAs at issue in this case on December
18, 2003, for Cozaar, and May 24, 2004, for Hyzaar. Both
contained a paragraph IV certification targeting Merck’s U.S.
patent No. 5,608,075, which does not expire until 2014, and
left unchallenged Merck’s other, earlier-expiring patents on
the drugs. In response to Teva’s filing, Merck chose not to
sue for infringement, as it might have. Instead, on March 18,
2005, Merck asked the FDA to delist the 075 patent, which
the agency did, though without making the action public until
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April 18, 2008. Appellees’ Br. at 17. As of the present date,
the FDA has awarded tentative approval to Teva’s ANDAs,
see Teva, 638 F.Supp.2d at 58 n.12, and also to an ANDA
filed by a competitor of Teva’s, Apotex Inc., to sell generic
Hyzaar, see Reply Br. at 11 n.9. Though the FDA does not
formally announce which ANDA filer was the first to submit
a paragraph IV certification with respect to a brand drug (or
whether any generic manufacturer is officially entitled to
exclusivity) until the date on which generic sales can actually
begin, see 21 C.F.R. § 314.430(b), Teva has every reason to
believe that it was the first filer for both drugs at issue here: it
points to the fact that the FDA’s own website lists the first
paragraph IV certification against Hyzaar (i.e., “Losartan
Potassium and Hydrochlorothiazide”) as having been filed on
the very day that Teva filed its own Hyzaar ANDA. See
http://www.fda.gov (enter “Hyzaar ANDA” in search box;
select sole result, “[PDF] Paragraph IV Patent Certifications”;
scroll to page 16) (last visited December 21, 2009).
But in light of the Hi-Tech Letter, Teva saw the writing
on the wall: under the interpretation of the “plain language” of
the amended statute that the FDA had twice adopted, Teva
had by the fall of 2008 already forfeited the exclusivity it
believed it had earned—on August 12, 2006 for the generic
Cozaar ANDA, and on January 16, 2007 for the generic
Hyzaar ANDA.2
Moreover, the agency had twice rejected the
2
The calculation under the FDA’s understanding of the statute
looks like this: With respect to Cozaar, the date satisfying paragraph
(aa) of the “Failure to Market” forfeiture event is August 12, 2006
(30 months since the filing of the ANDA, see subsection (BB))—
and the date satisfying paragraph (bb) is 75 days after March 18,
2005 (when Merck asked that the drug be delisted, see subsection
(CC)); of the two dates, August 12, 2006 is the later one, hence
(under the opening clause of § 355(j)(5)(D)(i)(I)) the forfeiture
event. With respect to Hyzaar, the analysis is the same, except that
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contention, made once by Teva itself as a commenter, that its
chosen interpretation of the statute was untenable for a
number of reasons, among them that it was inconsistent with
Ranbaxy. Eschewing presentation of the same argument to
the agency for yet a third time, though the first time with its
own ANDA directly on the line, Teva went straight to the
district court, hoping for a declaratory judgment rejecting the
FDA’s interpretation and an order that the FDA grant it
exclusivity on the date that generic losartan potassium
competition would begin, April 6, 2010.
* * *
The posture of this case raises several significant
questions about its justiciability. One concerns conventional
ripeness. A second, an issue of standing, implicates a
potential—though ultimately illusory—conflict between, on
one hand, decisions of this court regarding a plaintiff’s ability
to obtain pre-enforcement review of a policy adopted by an
agency in an adjudication and, on the other hand, the wellestablished teaching of Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992), that the imminent threat of injury
inflicted by the defendant and redressable by the court suffices
for constitutional standing.
Ripeness
Pre-enforcement judicial review of an agency’s policy is
available only if the dispute is ripe. Nat’l Park Hospitality
30 months from the date of the ANDA’s filing fell on January 16,
2007. See also Hi-Tech Letter at 15 (saying that the subsection
(CC) event is calculated from the date of the brand maker’s
delisting request, not the date that FDA makes public the delisting).
USCA Case #09-5281 Document #1232766 Filed: 03/02/2010 Page 10 of 35
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Ass’n v. Dep’t of Interior, 538 U.S. 803 (2003). The ripeness
inquiry probes the fitness for review of the legal issue
presented, along with (in at least some cases) “the hardship to
the parties of withholding court consideration.” Id. at 808.
The “fitness” prong of the analysis generally addresses
“whether the issue is purely legal, whether consideration of
the issue would benefit from a more concrete setting, and
whether the agency’s action is sufficiently final.” National
Ass’n of Home Builders v. U.S. Army Corps of Engineers, 440
F.3d 459, 463 (D.C. Cir. 2006).
In this case, the substantive issues Teva raises are
undoubtedly “purely legal” in the relevant sense. They turn
on questions of statutory construction, see Shays v. FEC, 414
F.3d 76, 95 (D.C. Cir. 2005), and the interpretations chosen
by the FDA and proposed by Teva both constitute bright-line
rules, impervious, so far as appears, to factual variation. This
in itself largely answers the question whether delay might
afford additional “concrete[ness]”; it would not. As to
finality, that largely resolves into the questions whether the
FDA actually has a policy, whether it’s clear what will happen
when the FDA applies the policy to Teva, and whether in any
event it’s sufficiently likely that the policy will matter at all,
given possible uncertainty whether Teva would be entitled to
exclusivity even if the agency’s take on 21 U.S.C.
§ 355(j)(5)(D)(i)(I)(bb)(CC) matched Teva’s.
While the FDA could in principle change its position as
to the effect on generics’ exclusivity of brand makers’
requests to delist, an about-face seems extraordinarily
unlikely. In its brief, the agency maintains, as it did in the
Cobalt matter and the Hi-Tech matter, that the interpretation it
adopted in those instances is compelled by the statute and that
arguments to the contrary are plainly futile. Appellees’ Br. at
42-43 (“[T]he plain language of subsection (CC) makes clear
that the provision applies whenever a patent is withdrawn by
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the [patent holder.]” (emphasis in original)). The mere
theoretical possibility that an agency could alter its views on a
legal issue before enforcing them against a party has not, in
the past, precluded pre-enforcement review of those views.
The same possibility exists for rulemakings, as we observed in
Association of Bituminous Contractors, Inc. v. Andrus, 581
F.2d 853, 859 (D.C. Cir. 1978), and for less finely chiseled
agency decisions, see Appalachian Power Co. v. EPA, 208
F.3d 1015, 1022 (D.C. Cir. 2000). As in Appalachian Power,
there is here virtually no doubt, as a practical matter, what
approach the agency will apply to Teva. And the implication
of the FDA’s position for any exclusivity that Teva would
otherwise merit is equally clear: as discussed above, the
unambiguous result of the agency’s interpretation is that any
such entitlement is already forfeited.
The government argues, however—relying chiefly on
Pfizer Inc. v. Shalala, 182 F.3d 975 (D.C. Cir. 1999)—that the
issue nevertheless remains unfit for review because the
agency’s challenged interpretation may not be dispositive of
the question whether Teva ultimately deserves exclusivity. In
Pfizer a brand manufacturer (Pfizer) filed suit alleging that the
FDA’s mere acceptance of an ANDA for processing was
unlawful because the proposed generic drug differed in a
crucial respect from the product it sought to replicate. 182
F.3d at 978. We found the suit unripe, suggesting that despite
the FDA’s tentative approval of the generic’s ANDA, grounds
for uncertainty over whether the generic drug would ever be
approved for sale persisted, posing concerns for “piecemeal
litigation”: we instanced a possible FDA finding of a lack of
bioequivalence, a matter that we obviously assumed the
tentative approval left open. Id. at 980.
The absence of any colorable factual dispute in Teva’s
case compels a different outcome from Pfizer. The FDA
makes no suggestion that any possible deficiency or
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uncertainty in Teva’s ANDA could thwart final approval. It
offers no reason to doubt the conclusion that the first
paragraph IV certification against Hyzaar, filed on May 24,
2004, was the paragraph IV certification against Hyzaar that
Teva filed on May 24, 2004—which in turn dictates that Teva
has satisfied the threshold requirement for exclusivity. The
agency does caution that one or more of the statutory
“forfeiture events” other than a “failure to market” might in
any case deprive Teva of exclusivity before final approval—
but as Teva’s counsel ably demonstrated at oral argument, any
such outcome is virtually inconceivable: Teva will not
withdraw its ANDA, see 21 U.S.C. § 355(j)(5)(D)(i)(II); it
will not amend its paragraph IV certification, see § (D)(i)(III);
it has already obtained tentative approval, see § (D)(i)(IV);
there is no indication that it will enter a collusive agreement
with Merck, see § (D)(i)(V); and the now-delisted patent will
not expire, see § (D)(i)(VI). See Oral Argument Tr. at 29-30
(Dec. 7, 2009). In short, the question before us is one of pure
statutory interpretation; we know precisely what the FDA
thinks the answer is; and its resolution will almost certainly
determine whether Teva is entitled to the exclusivity it claims.
The second prong of the ripeness analysis addresses
“whether postponing judicial review would impose an undue
burden on” the parties. National Ass’n of Home Builders, 440
F.3d at 464 (emphasis in original). This court has frequently
suggested that hardship is not a sine qua non of ripeness. See
id. at 465 (“[W]here . . . there are no significant agency or
judicial interests militating in favor of delay, [lack of]
hardship cannot tip the balance against judicial review.”
(second bracketed alteration in original, internal quotation
marks omitted)); Electric Power Supply Ass’n v. FERC, 391
F.3d 1255, 1263 (D.C. Cir. 2004) (“The hardship prong under
the ripeness doctrine is largely irrelevant in cases . . . in which
neither the agency nor the court have [sic] a significant
interest in postponing review.”); AT&T Corp. v. FCC, 349
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F.3d 692, 700 (D.C. Cir. 2003) (“The ‘hardship’ prong of the
Abbott Laboratories [v. Gardner, 387 U.S. 136 (1967)] test is
not an independent requirement divorced from the
consideration of the institutional interests of the court and
agency. Thus, where there are no institutional interests
favoring postponement of review, a petitioner need not satisfy
the hardship prong.” (internal citation omitted)); Village of
Bensenville v. FAA, 376 F.3d 1114, 1120 (D.C. Cir. 2004)
(“[A]lthough the FAA reasonably asserts that the
municipalities will not ‘suffer [any] immediate hardship from
an EIS,’ Respondent’s Br. at 23, we see no benefit to us in
postponing review[.]” (emphasis and second bracketed
alteration in original)). In this case we need not consider the
effect of a failure to show hardship, as Teva faces at least one
harm from delayed judicial review cognizable in the ripeness
analysis: a near-certain loss of the first-mover advantage to
which the company claims entitlement.3
3
Teva also alleges hardship resulting from the severe impact
of uncertainty on investment decisions that it must make well
before the first legal opportunity to sell its generic, whether as an
exclusive (as it claims) or not (under the FDA’s view). Delayed
resolution of the issues in this case will, depending on the
assumptions under which it operates, either (1) cost the company
much of a valuable (and lawful) commercial opportunity, if it
mistakenly assumes that the FDA view will prevail and therefore
refrains from investing sufficient resources to prepare for the
increased demand that would accompany an exclusive as opposed
to a non-exclusive product launch, or (2) waste hundreds of millions
in company resources invested in anticipation of fully exploiting its
exclusivity, if it mistakenly assumes that its view will prevail. See
Declaration of David Marshall, Vice President of New Products
Portfolio Strategy for Teva Pharmaceuticals USA, Inc., at 4-8, J.A.
128-32. (Of course a straddling investment decision would entail
some of each cost.) We express no view as to whether such harm
counts in the ripeness analysis. Cf. Exxon Mobil Corp. v. FERC,
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If Teva is right on the merits (as we must assume it is for
purposes of the ripeness inquiry, see U.S. Air Tour Ass’n v.
FAA, 298 F.3d 997, 1014 (D.C. Cir. 2002)), then as of April 6,
2010, it will be entitled to start enjoying its exclusivity period
and to continue doing so for 180 days before additional firms
lawfully enter the market. This “first-mover advantage” is a
valuable asset. In Mova we observed “the loss of [a generic’s]
officially sanctioned head start” can, at least in some
circumstances, yield a “severe economic impact.” 140 F.3d at
1066 n.6 (internal quotation marks omitted). If we refrained
from adjudicating this dispute now, Teva would almost
certainly face competition from Apotex on April 6, see 21
C.F.R. § 314.105(d) (explaining that a “tentative” approval is
the same as a final approval with a delayed effective date)—
an injury that would not be remedied by Teva’s securing 180
days of exclusivity later on.
District courts in this circuit routinely reach the merits of
generic manufacturers’ claims to exclusivity before the FDA
has granted final approval to any ANDA concerning the drug
at issue. See, e.g., Teva, 548 F.3d 103 (earliest possible date
of generic competition June 29, 2008, see Appellee’s Br. at 5;
district court decision April 11, 2008, id. at 4); Ranbaxy, 469
F.3d 120 (earliest possible date of generic competition June
23, 2006, see Appellants’ Br. at 11; district court decision
April 30, 2006, id. at 1). This makes good sense; the
exclusivity reward that Congress made available as an
incentive for patent challenges is time-sensitive, and where
there is no material ambiguity about essential facts a court can
501 F.3d 204, 208 (D.C. Cir. 2007) (hardship ample where
postponing review would cause uncertainty and cost to prospective
applicant for approval to build pipeline and would “tend to inhibit
or delay investment” in a project Congress had deemed important).
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readily decide whether it has been earned in advance of
generic competition’s onset. The alternative approach—
delaying review until the agency has made its technically
tentative decisions final—puts a court in an awkward bind,
unless it miraculously manages to resolve the merits issue
more or less instantaneously. Apart from that risky and
improbable course, there would be two possible stopgaps
available to preserve the first-mover advantage. The court
could delay all generic competition, thereby thwarting the
statutory purpose of achieving swift competition by generics
(a factor that would in turn weigh against preliminary
injunctive relief under the “public interest” component of the
standard test). Or it could delay the entrance of the
exclusivity claimant’s generic rivals into the market, thereby
giving the claimant precisely the relief it seeks, simply in
order to allow the court time to decide whether such relief was
warranted. The technical possibility that a judge might
embrace one of these highly imperfect alternatives can hardly
be thought to protect Teva from the hardship made likely by
delayed review.
When the question at issue is well-defined, and when
withholding judicial consideration would cause undeniable
harm, as here, ripeness concerns pose no obstacle to preenforcement review.
Standing
The FDA embraced the statutory interpretation that Teva
now seeks to challenge not in a rulemaking but in two
adjudications to which Teva was not a party (though actively
commenting in one). Our past cases suggest some uncertainty
whether a dispute in that posture can ever be justiciable. See,
e.g., Radiofone, Inc. v. FCC, 759 F.2d 936, 938 (D.C. Cir.
1985) (opinion of then-Judge Scalia) (“All persons adversely
affected by [a] rule [“addressed, so to speak, to the world at
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17
large”] would have standing to challenge its compliance with
legal prescriptions designed for their protection. . . . The
situation is different, however, when an interpretation of a
statute, or some other legal principle, is set forth as the
rationale of an adjudication.” (emphasis in original)).
But straightforward application of hornbook doctrine
yields the conclusion that Teva has standing. Article III of the
Constitution requires that a federal court plaintiff allege an
actual or imminent injury that is fairly traceable to the
defendant’s challenged conduct and redressable in the judicial
proceeding. Lujan, 504 U.S. at 560-61. In this instance, the
latter two elements are clearly satisfied. Any imminent
deprivation of Teva’s allegedly deserved exclusivity would be
directly attributable to the FDA’s statutory interpretation.
And if we agreed with Teva on the merits, we (or the district
court) could issue precisely the declaration it has sought,
announcing that requests to delist challenged patents should
have no more legal significance in the amended statutory
regime than they did in the old one, as per Ranbaxy, 469 F.3d
at 126.
The “injury” prong of the standard standing inquiry is a
bit thornier—but only to the extent of the trivial uncertainty
whether the FDA will on April 6, 2010 stick to the
interpretation that Teva attacks here. As discussed in the
ripeness analysis above, however, we find no uncertainty to
speak of on the matter. It is clear what the FDA will do
absent judicial intervention and what the effect of the
agency’s action will be. The inescapable implication is that
Teva faces an imminent threat of the same harm that has
sufficed for Article-III injury purposes in all of our past drugapproval cases: the impending prospect of allegedly unlawful
competition in the relevant market. See, e.g., Bristol-Myers
Squibb Co. v. Shalala, 91 F.3d 1493, 1497 (D.C. Cir. 1996)
(“[W]here . . . a statutory provision reflects a legislative
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18
purpose to protect a competitive interest, the protected
competitor has standing to require compliance with that
provision.”); Ranbaxy, 469 F.3d 120 (adjudicating a dispute in
which the only injury at issue was the prospective loss of a
generic manufacturer’s 180-day period of marketing
exclusivity). For the purpose of the classic constitutional
standing analysis, it makes no difference to the “injury”
inquiry whether the agency adopted the policy at issue in an
adjudication, a rulemaking, a guidance document, or indeed
by ouija board; provided the projected sequence of events is
sufficiently certain, the prospective injury flows from what the
agency is going to do, not how it decided to do it. Cf. City of
Los Angeles v. Lyons, 461 U.S. 95, 106 n.7 (1983) (“[T]o have
a case or controversy . . . [plaintiff] would have to credibly
allege that he faced a realistic threat from the future
application of the City’s policy.”).
The question, then, is whether the normal application of
the constitutional standing doctrine is suspended when the
court’s knowledge that an agency is about to inflict injury on a
party derives from an agency policy that originated in an
adjudication (or several). The strongest support for such a
principle would be Sea-Land Service, Inc. v. Department of
Transportation, 137 F.3d 640, 648 (D.C. Cir. 1998), in which
we rejected a pre-enforcement challenge to an agency
interpretation born of an adjudication, noting that a policy’s
“mere precedential effect within an agency is not, alone,
enough to create Article III standing, no matter how
foreseeable the future litigation” involving the plaintiff. We
have articulated a similar idea, albeit in weaker form, on
numerous other occasions. See, e.g., Shipbuilders Council of
America v. United States, 868 F.2d 452, 456 (D.C. Cir. 1989)
(“[W]e know of no authority recognizing that the mere
potential precedential effect of an agency action affords a
bystander to that action a basis for complaint.”); American
Family Life Assurance Co. v. FCC, 129 F.3d 625, 629 (D.C.
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19
Cir. 1997) (“AFLAC”) (“[W]e have said before, and we say
again, that the ‘mere precedential effect of [an] agency’s
rationale in later adjudications’ is not an injury sufficient to
confer standing on someone seeking judicial review of the
agency’s ruling.” (quoting Radiofone, 759 F.2d at 939)).
In all of these cases, we rebuffed efforts to obtain preenforcement review of policies embraced by agencies in
adjudications. In each instance, however, the failure to
demonstrate standing is more naturally understood as arising
from the lack of a sufficiently imminent and concrete injury
than from some sort of ad hoc exception to otherwiseuniversally applicable constitutional doctrine. Radiofone, for
example, addressed whether parties allegedly aggrieved by
reasoning employed by the FCC in an adjudication could
appeal the agency’s order even though the recipient of the
order had since ceased doing business. 759 F.2d at 937-38.
There was no suggestion in any of the panel’s three
opinions—including then-Judge Scalia’s, which didn’t in any
case garner a majority for its standing passage—that the
parties seeking review were at risk of injury from imminent
application of the principle the agency had articulated.
Shipbuilders similarly concerned no identifiable prospective
application of the allegedly offending policy. We explicitly
noted, in fact, that plaintiffs had failed to present “specific,
concrete facts demonstrating that the challenged [ruling
would] harm” them, adding that their “hypothesizing . . .
never descends from a highly general plane; it remains at a
considerable distance from the more concrete pleas” needed to
establish standing. Shipbuilders, 868 F.2d at 457. While the
opinion also framed the complaint as an impermissible
“request for judicial advice—a declaration that a line of
agency rulings should henceforth have no precedential effect,”
id. at 456, we simply did not address the scenario in which a
line of agency rulings threatened a party with an imminent
injury otherwise ample for Article III purposes.
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20
Sea-Land, too, did not involve a party pointing to a
particular imminent application of the disputed agency policy.
The justiciability problem in that case arose from the
“principle that prevailing parties lack standing to appeal,” 137
F.3d at 647—which is undoubtedly correct as a general
matter, but which does not foreclose review of a case in which
a party is aggrieved not by the “mere potential precedential
effect of an agency action,” Shipbuilders, 868 F.2d at 456, but
instead by the impending application of an agency’s statutory
interpretation, the firmness of which is not in dispute, on a
fast-arriving date certain. The Sea-Land opinion, to be sure,
phrased the proscription against challenges to agency
precedent qua precedent as one applying “no matter how
foreseeable the future litigation.” 137 F.3d at 648. But we
could not possibly have purported to overturn well-established
Supreme Court precedent holding that an imminent threat of
injury suffices for standing, see Lujan, 504 U.S. at 560—
particularly in a case not involving the slightest allegation of
such a threat. A more sensible reading of Sea-Land is one that
leaves it consistent with Lujan and its equally binding
progeny: merely foreseeable future litigation resulting from a
statutory interpretation that an agency has adopted in an
adjudication is, “alone,” 137 F.3d at 648—i.e., without
more—too speculative to satisfy Article III’s injury-in-fact
requirement. An agency’s imminent application of its
established interpretation of a statute, at the potential cost of
hundreds of millions of dollars to the regulated firm, remains,
by contrast, as sufficient for standing purposes today as it was
before Sea-Land. See Marshall Declaration at 4-5, J.A. 128-
29 (explaining why Teva “stands to lose hundreds of millions
of dollars in net revenues during its first year of generic
losartan potassium products sales as a direct result of the
[FDA’s policy]”).
No other case we’ve decided concerning a preenforcement challenge to an agency interpretation adopted via
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21
adjudication counsels a contrary result. See AFLAC, 129 F.3d
at 628 (“Petitioner reports no litigation on the horizon . . . no
simmering disputes about to erupt into a lawsuit[.]”); Shell Oil
Co. v. FERC, 47 F.3d 1186, 1202 (D.C. Cir. 1995) (“Shell’s
allegations of injury rest on a hypothetical scenario . . . .
Although such injury is not inconceivable, we are
unpersuaded that it is imminent.” (emphasis in original));
Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 674
(D.C. Cir. 1994) (finding impact of agency’s challenged
position on party seeking review “nebulous and remote”);
Aeronautical Radio, Inc. v. FCC, 983 F.2d 275, 284 (D.C. Cir.
1993) (“There is no indication in the record . . . that the
Commission is likely to attempt to [enforce the challenged
interpretation against TRW, the party seeking review].
TRW’s alleged injury is therefore merely conjectural.”
(internal quotation marks omitted)).
We have, on the other hand, allowed a party to challenge
in advance an agency policy adopted via adjudication when
the prospect of impending harm was effectively certain. In
International Brotherhood of Electrical Workers v. ICC, 862
F.2d 330 (D.C. Cir. 1988), a union sought judicial review of
the Interstate Commerce Commission’s exercise of
jurisdiction to review an arbitration award—even though the
ICC, having accepted jurisdiction, had ruled in favor of the
union. 862 F.2d at 334. We found ripeness and standing
requirements satisfied, noting that “[b]ecause of the ICC’s
decision to review arbitration awards, the union will be
subject to agency review in future cases involving disputes” of
the same type. Id. As we later explained, International
Brotherhood stands for the proposition that the “concrete cost
of an additional proceeding is a cognizable Article III injury,”
Sea-Land, 137 F.3d at 648—notwithstanding that the source
of the harm was an agency position adopted in an adjudication
whose outcome was no longer at issue. Teva’s alleged injury
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22
threatens to impose no less of a “concrete cost” and with no
less certainty.
We have, moreover, explicitly sanctioned review of a case
in the present posture—albeit while framing the justiciability
question as one of ripeness rather than standing. Association
of Bituminous Contractors v. Andrus, 581 F.2d 853, 858-59
(D.C. Cir. 1978), was precisely a pre-enforcement challenge
to a policy adopted in a previous adjudication by the Interior
Board of Mine Operations Appeals. The doctrine of standing
has undoubtedly evolved significantly since the time of that
decision (though not generating any new limits on imminent
injuries that happen to be traceable to adjudicative rules)—but
the case does demonstrate that we have previously considered
the lawfulness of an agency policy with precisely the kind of
provenance as the policy Teva challenges, where imminent
application of the policy was about to inflict injury. See also
Independent Insurance Agents of America, Inc. v. Hawke, 211
F.3d 638 (D.C. Cir. 2000) (adjudicating dispute over agency
interpretation adopted in letter ruling to which district court
plaintiff was not party); Air Transport Ass’n of America, Inc.
v. FAA, 291 F.3d 49 (D.C. Cir. 2002) (same, where dispute
concerned letter ruling to which circuit court petitioner was
not party).
We see no basis for concluding that this court has created
an exception to the Supreme Court’s constitutional standing
doctrine excising cases like Teva’s from the class of otherwise
justiciable matters. Teva presents a valid Article III case or
controversy.
* * *
On the merits, we review de novo the district court’s
grant of summary judgment to the FDA. See Kersey v.
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23
Washington Metropolitan Area Transit Authority, 586 F.3d
13, 16 (D.C. Cir. 2009). We evaluate the FDA’s
interpretations of the Food, Drug, and Cosmetic Act adopted
in letter rulings under the familiar two-part Chevron
framework. Mylan Labs., Inc. v. Thompson, 389 F.3d 1272,
1280 (D.C. Cir. 2004). But see Matthew C. Stephenson and
Adrian Vermeule, Chevron Has Only One Step, 95 Va. L.
Rev. 597 (2009).
Teva offers two principal reasons to conclude that the
FDA may not allow a brand manufacturer’s request to delist a
challenged patent to trigger a statutory “forfeiture event”
resulting in the loss of a generic’s exclusivity. One reason
takes the form of linguistic analysis focused almost entirely on
the text of the “failure to market” forfeiture event and a
related provision. The 2003 amendments, Teva explains,
introduced a new procedure, a counterclaim in the brand
manufacturer’s patent infringement suit, through which
generic companies can force brand companies to delist an
improperly asserted patent. See 21 U.S.C.
§ 355(j)(5)(C)(ii)(I).4 This counterclaim provision is the only
portion of the statute that explicitly provides for the delisting
of a patent after it has been challenged in an ANDA. In the
company’s view, that singular reference requires the
4
The purpose of this procedure, says Teva, is to offer generics
a means of combating brand companies’ practice of delaying
generic competition by listing “sham patents,” baiting a generic into
filing a paragraph IV certification, and then filing an infringement
suit—which typically brings a 30-month stay of generic
competition. Appellant’s Br. at 42; see 21 U.S.C. § 355(j)(5)(B)(iii)
(creating the stay and subjecting it to various limits such as the
generic manufacturer’s earlier success in the suit); aaiPharma Inc.
v. Thompson, 296 F.3d 227, 236 (4th Cir. 2002) (describing
precisely this delay tactic).
USCA Case #09-5281 Document #1232766 Filed: 03/02/2010 Page 23 of 35
24
conclusion that the counterclaim provision describes the only
scenario in which the FDA may delist a challenged patent.
Obviously, then, no other kind of delisting could ever serve as
an occurrence satisfying the terms of the “failure to market”
forfeiture trigger listed at 21 U.S.C.
§ 355(j)(5)(D)(i)(I)(bb)(CC).
The FDA, for its part, responds that “the plain language
of the statute contains no limitation on when delisting can
occur.” Appellees’ Br. at 44. Brand manufacturers are thus
free to delist challenged patents whenever they please—and
any such delisting satisfies subsection (CC) of the “failure to
market” forfeiture section. Id. at 45-46. In effect, the agency
says, the counterclaim provision says nothing about its being
an exclusive route to delisting, and if Congress meant to
confine subsection (CC) delistings to those arising from the
counterclaim procedure, it would have been natural for it to
place that limitation in (CC).
While Teva’s purely linguistic argument shows its
understanding of the relevant language to be perfectly
plausible, it hardly rules out alternative readings that, absent
consideration of statutory structure, also appear plausible. See
Chevron, 467 U.S. at 844-45; INS v. Cardoza Fonseca, 480
U.S. 421, 443 (1987) (considering “the structure of the Act” at
Chevron step one). As the FDA notes, there is simply no
express preclusion of non-counterclaim delistings, or of such
delistings’ triggering forfeiture, in either of the places one
might expect to find one, the counterclaim section or (CC).
This brings us to Teva’s structural argument. Ranbaxy,
Teva notes, concerned an FDA policy with a virtually
identical effect. See 469 F.3d at 125. This court condemned
that rule, partly because it allowed a brand manufacturer,
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25
by delisting its patent, to deprive the generic applicant of
a period of marketing exclusivity. By thus reducing the
certainty of receiving a period of marketing exclusivity,
the FDA’s delisting policy diminishe[d] the incentive for
a manufacturer of generic drugs to challenge a patent . . .
in the hope of bringing to market a generic competitor for
an approved drug without waiting for the patent to expire.
The FDA may not, however, change the incentive
structure adopted by the Congress, for the agency is
bound “not only by the ultimate purposes Congress has
selected, but by the means it has deemed appropriate, and
prescribed, for the pursuit of those purposes.”
Id. at 126 (emphasis added, citation omitted). Nothing in the
2003 amendments to the Food, Drug, and Cosmetic Act
altered that essential incentive structure, says Teva, so the
preceding portion of Ranbaxy remains applicable even under
the new regime. Indeed, it is true that the 2003 amendments
say nothing specific to undermine our prior understanding of
the statute’s intended incentive structure.
But the FDA sees a way in which its interpretation of
subsection (CC) accomplishes at least some congressional
purpose. Without the possibility of a forfeiture of exclusivity
resulting from the delisting of a challenged patent, a generic
manufacturer that had been awarded exclusivity could delay
all generic competition more or less indefinitely, since by
statute the agency can’t approve competing generics until 180
days after the first paragraph-IV filer has begun commercial
marketing of its newly approved product. See 21 U.S.C.
§ 355(j)(5)(B)(iv)(I). Congress enacted the “failure to
market” provision, in the agency’s view, precisely to avoid
such “parking” of exclusivity; allowing a brand maker to
trigger forfeiture by delisting a challenged patent positively
furthers that legislative aim. Appellees’ Br. at 45. Besides,
the agency says, “Consumers benefit from lower drug prices
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26
immediately without having to wait for one generic company
to enjoy 180 days of exclusivity when the patent owner itself
takes the position that a patent should not hinder FDA
approval of ANDAs.” Id.
The real issue, then, is whether the FDA is right that the
2003 addition of the “failure to market” forfeiture provision,
21 U.S.C. § 355(j)(5)(D)(i)(I), altered the statute’s incentive
structure to the point that Ranbaxy’s reasoning no longer
controls the agency’s treatment of a delisting request in the
wake of a paragraph-IV filing.
The terms of § 355(j)(5)(D)(i)(I), quoted in full in the
opening of this opinion, create five possible dates on which a
generic manufacturer otherwise entitled to exclusivity can
forfeit it: (1) 75 days after the agency finally approves the
relevant ANDA; (2) 30 months after the generic submits the
relevant ANDA; (3) 75 days after a court judgment that the
challenged patent is invalid or not infringed; (4) 75 days after
a suit over the challenged patent is settled favorably to the
ANDA filer; and (5) 75 days after the challenged patent is
delisted. No forfeiture occurs, however, unless one of dates
(1)-(2) and one of dates (3)-(5) have come to pass. See id.;
FDA Letter re 180-day exclusivity, Docket No. 2007N-0389,
ANDA 77-165: Granisetron Hydrochloride Injection, 1
mg/mL, at 5, J.A. 68 (“We find that under the plain language
of the statute, 180-day exclusivity is not forfeited for failure to
market when an event under subpart (aa) has occurred, but . . .
none of the events in subpart (bb) has occurred.”). Setting
aside the subsection at issue in this case—listed as (5) above,
and codified as (bb)(CC)—the “failure to market” forfeiture
provision does not permit a brand manufacturer to vitiate a
generic’s exclusivity without the generic manufacturer’s
having had some say in the matter. No forfeiture can take
place unless the brand manufacturer brings an infringement
suit against the generic and either loses on the merits or enters
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27
an unfavorable settlement agreement. The latter necessarily
entails some participation by the generic; the former
invariably involves significant expense for the brand
manufacturer, and affords the victorious generic the
opportunity to ask the court to delay entering final judgment
until a date that would not trigger forfeiture prematurely—
before the agency grants final approval to the relevant ANDA.
The FDA’s view turns the last alternative among events
(3)-(5) into a fundamentally different forfeiture trigger: it is
satisfied when the patent targeted in a paragraph-IV filing “is
withdrawn by the” brand manufacturer, full stop—meaning
that Congress has now explicitly provided for a scenario in
which the brand maker can unilaterally deprive the generic of
its exclusivity. The agency, however, offers not a single
cogent reason why Congress might have permitted brand
manufacturers to trigger subsection (CC) by withdrawing a
challenged patent, outside the counterclaim scenario identified
by Teva.
The argument that the plain language of the statute
imposes no limit on the circumstances in which the agency
may effectuate delisting requests fails. Precisely the same
could have been said of the version of the statute that Ranbaxy
addressed, and we nevertheless concluded that its structure
precluded an FDA rule allowing the agency “to delist a patent
upon the request of the [brand manufacturer]” when the
delisting would rob the generic maker of earned exclusivity.
469 F.3d at 125.
The agency fares no better in suggesting that allowing the
delisting of challenged patents prevents the ANDA filer from
“creat[ing] a bottleneck” blocking generic competition by
“parking” its exclusivity. Appellees’ Br. at 45. As a parkingprevention device, letting brand makers delist challenged
patents in order to trigger a forfeiture of exclusivity would be
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28
completely ineffective; given the incentives for the brand
manufacturer, it will be used only where its impact on
Congress’s scheme is most destructive. If the generic appears
likely to park its exclusivity, the brand maker will simply
refrain from delisting altogether, thus enjoying an extended
period during which it faces no generic competition while the
exclusivity-holder bides its time.5 If the generic appears
unlikely to park its exclusivity, the brand maker can delist
well before the generic can go to market, thus eviscerating the
exclusivity incentive altogether. In other words, the only case
in which a unilateral right for brand makers to delist
challenged patents actually results in the outcome the FDA
touts is when the brand maker deliberately accelerates the
onset of generic competition—an utterly implausible scenario.
In other cases, the brand maker either does nothing to prevent
parking, or prevents parking that was unlikely to have
occurred in any event, but with precisely the effect that
Ranbaxy proscribed. Thus the “parking” concern offers no
reason to conclude that the 2003 addition of forfeiture
provisions meant to give the brand manufacturer a right to
unilaterally vitiate a generic’s exclusivity.
Finally, the FDA’s sole effort to root its interpretation in
the policy underlying Hatch-Waxman—the thought that the
interpretation benefits consumers by allowing full generic
competition without a 180-day delay—betrays a
misunderstanding of the exclusivity incentive. The statute’s
grant of a 180-day delay in multiple generic competition for
the first successful paragraph IV filer is a pro-consumer
5
We note, in fact, that many instances of generics’ parking
their exclusivity have evidently arisen thanks to agreements with the
brand maker itself to delay generic competition. See Federal Trade
Commission, Authorized Generics: An Interim Report ch. 2, at 1
(2009).
USCA Case #09-5281 Document #1232766 Filed: 03/02/2010 Page 28 of 35
29
device. And it happens to be precisely the device Congress
has chosen to induce challenges to patents claimed to support
brand drugs. The statute thus deliberately sacrifices the
benefits of full generic competition at the first chance allowed
by the brand manufacturer’s patents, in favor of the benefits of
earlier generic competition, brought about by the promise of a
reward for generics that stick out their necks (at the potential
cost of a patent infringement suit) by claiming that patent law
does not extend the brand maker’s monopoly as long as the
brand maker has asserted. As Congress deliberately created
the 180-day exclusivity bonus, the FDA cannot justify its
interpretation by proudly proclaiming that it has eviscerated
that bonus.
We see nothing in the 2003 amendments to the Food,
Drug, and Cosmetic Act that changes the structure of the
statute such that brand companies should be newly able to
delist challenged patents, thereby triggering a forfeiture event
that deprives generic companies of the period of marketing
exclusivity they otherwise deserve. For that reason, the
interpretation of the statute that the FDA has adopted in two
recent adjudications, and that it regards itself as bound by law
to apply to Teva’s ANDAs for losartan products, fails at
Chevron step one. Cf. Ranbaxy, 469 F.3d at 126; Cardoza
Fonseca, 480 U.S. at 443.
* * *
One matter remains. Teva’s prospective generic losartan
competitor, Apotex, sought to intervene as a defendant in
Teva’s suit before the district court. The court denied the
intervention on the ground that Apotex lacked standing. Teva,
638 F.Supp.2d at 59. Apotex has appealed that ruling, but has
also, with the consent of both parties, expressed its substantive
views of this case in an amicus brief, which we have
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30
considered no less than if Apotex had formally intervened. As
Apotex and the FDA are as a practical matter identically
positioned on the issues (though from radically different
perspectives), we think it prudent to follow the line of
precedent in this circuit declining to assess a would-be
intervenor’s standing when answering the question wouldn’t
affect the outcome of the case. See Comcast Corp. v. FCC,
579 F.3d 1, 6 (D.C. Cir. 2009) (“We need not decide whether
[the harm alleged by a prospective intervenor] is too
‘conjectural or hypothetical’ to support standing . . . because
‘if one party has standing in an action, a court need not reach
the issue of the standing of other parties when it makes no
difference to the merits of the case.’” (quoting Railway Labor
Executives Ass’n v. United States, 987 F.3d 806, 810 (D.C.
Cir. 1993))); see also McConnell v. FEC, 540 U.S. 93, 233
(2003) (“It is clear . . . that the Federal Election Commission
(FEC) has standing, and therefore we need not address the
standing of the intervenor-defendants, whose position here is
identical to the FEC’s.”). We note that courts appear not to
have considered whether a party whose attempt to intervene
has been pretermitted in this fashion (or a party whose
standing has otherwise been left unresolved) can seek review
of the court’s decision on the merits, as a successful
intervenor could. Perhaps courts have assumed that that issue
could reasonably be kicked up the road to the possible
appellate body. Finally, we also note that Apotex might move
again for intervention in future proceedings before the district
court in this case in light of changed circumstances—
specifically that Apotex’s ANDA has now earned tentative
approval from the FDA, effectively removing the obstacle to
standing on which the district court relied.
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31
* * *
We therefore reverse the judgment of the district court,
but, as the court has yet to address the appropriateness of each
form of relief that Teva has sought, we remand for further
proceedings not inconsistent with this opinion.
So ordered.
USCA Case #09-5281 Document #1232766 Filed: 03/02/2010 Page 31 of 35
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
I dissent from the majority opinion because the issue Teva
seeks to litigate—its statutory eligibility vel non to exclusively
market generic versions of Cozaar and Hyzaar, brand name
drugs manufactured by Merck & Co., Inc. (Merck)—will not be
ripe unless and until the United States Food and Drug
Administration (FDA) issues its final decision either granting or
denying Teva’s Abbreviated New Drug Application (ANDA).
The United States Supreme Court has established a two-pronged
test for determining ripeness, requiring that the court analyze:
“(1) the fitness of the issues for judicial decision and (2) the
hardship to the parties of withholding court consideration.”
Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803,
808 (2003) (citing Abbott Labs. v. Gardner, 387 U.S. 136, 149
(1967)). This action satisfies neither prong of the ripeness test
as is clear from our decision in Pfizer Inc. v. Shalala, 182 F.3d
975 (D.C. Cir. 1999).
In that case, Pfizer filed a “citizen petition” with the FDA
asking that the agency recognize as “a distinct dosage form” a
patented “osmotic pump” used as an extended release
mechanism for Pfizer’s brand drug Procardia XL. Pfizer, 182
F.3d at 977. Almost four years later—with the petition still
pending—Mylan Pharmaceuticals, Inc. (Mylan) filed an ANDA
to market a generic version of Procardia XL, claiming
pharmaceutical equivalence notwithstanding Mylan’s product
used a different release mechanism. After the FDA accepted
Mylan’s ANDA for processing but before it decided whether to
approve it, Pfizer filed a suit in district court challenging the
FDA’s acceptance of the ANDA on the ground that the two
products were not equivalent because Pfizer’s osmotic pump
was a unique dosage form and thus distinct from Mylan’s
mechanism. The district court held that Pfizer’s challenge to
Mylan’s application was not ripe for judicial review but that its
unresolved citizen petition was. Id. at 978. On appeal, we
found neither challenge ripe.
USCA Case #09-5281 Document #1232766 Filed: 03/02/2010 Page 32 of 35
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1
The FDA’s “tentative approval” of Teva’s ANDA is not, as Teva
suggests, Reply Br. at 10-11, the final word on its generic drug’s
equivalence. See Pfizer, 182 F.3d at 980 (although FDA’s post-oral
argument tentative approval of Mylan’s generic made it “more likely
We first rejected Pfizer’s argument that “once having
decided, based upon the information contained in Mylan’s
application, that Mylan’s drug uses the same dosage form as
Procardia XL®, the FDA will not ‘alter its views with respect to
the necessity of Mylan filing a suitability petition.’ ” Id. at 978.
We explained:
The decision to accept Mylan’s ANDA for processing
as a pharmaceutical equivalent to Procardia XL® is . . .
merely the first step in the agency’s approval process.
The critical fact remains that the FDA may never
approve Mylan’s application—whether because it
decides in the end that the dosage form of Mylan’s
drug is different from that of Procardia XL® or for
some entirely different reason, such as a lack of
bioequivalence. Therefore, “depending upon the
agency’s future actions . . . review now may turn out to
have been unnecessary” and could deprive the agency
of the opportunity to apply its expertise and to correct
any mistakes it may have made.
Id. (quoting Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726,
736 (1998)) (first ellipsis added). Teva faces the same hurdle
here. We do not know whether the FDA’s final decision will
approve Teva’s ANDA or what the FDA’s reasoning will be if,
as the majority forecasts, maj. op. at 11-13, it does not. The
FDA may conclude Teva forfeited its eligibility upon Merck’s
delisting of its patents, as Teva and the majority insist it will, or
it may reject Teva’s application based on one of the other
forfeiture provisions “or for some entirely different reason, such
as a lack of bioequivalence.” Pfizer, 182 F.3d at 978.1
Because
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that the FDA w[ould] eventually approve Mylan’s drug, the agency’s
tentative approval cause[d] Pfizer no hardship at present or in the near
future, nor d[id] it render Pfizer’s challenge fit for review”).
the FDA has not yet issued its decision we are unable to divine
its substance. Given this uncertainty and the consequent
possibility the court may not need to resolve the
delisting/forfeiture issue after the FDA’s final decision, Teva’s
challenge to the FDA’s previous decisions in other proceedings
is not now fit for review under the first prong of the ripeness
test. In short, “[i]t makes no sense for us to anticipate a wrong
when none may ever arise.” Cronin v. FAA, 73 F.3d 1126, 1132
(D.C. Cir. 1996).
Nor does Teva fare better under the test’s hardship prong as
we applied it in Pfizer. There we explained that Pfizer was not
able to “point to any imminent hardship arising from the FDA’s
acceptance of Mylan’s ANDA”:
Before Pfizer could suffer its claimed “economic injury
from unlawful competition,” FDA approval for a
pharmaceutical equivalent to Procardia XL® would
have to be not only sought but granted. That has not
happened. Therefore “no irremediable adverse
consequences flow from requiring a later challenge.”
Pfizer, 182 F.3d 979 (quoting Toilet Goods Ass’n v. Gardner,
387 U.S. 158, 164 (1967)). For the same reason, Teva too will
suffer no imminent hardship if review is postponed. See Fed.
Express Corp. v. Mineta, 373 F.3d 112, 119 (D.C. Cir. 2004)
(hardship prong not satisfied because “postponing review . . .
w[ould] not be a hardship to [petitioners], let alone a hardship
that is ‘immediate, direct, and significant.’ ” (quoting State Farm
Mut. Auto. Ins. Co. v. Dole, 802 F.2d 474, 480 (D.C. Cir.
1986))) (emphasis added). As in Pfizer, the delay will not
“foreclose[ the appellant’s] right ever to get meaningful judicial
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2
And contrary to my colleagues’ lack of confidence in judicial
alacrity, maj. op. at 15-16, courts make speedy decisions on injunction
applications in ANDA cases all the time. See, e.g., Apotex, Inc. v.
FDA, C.A. No. 06-627 (D.D.C. Apr. 19 2006); Biovail Corp. v. FDA,
C.A. No. 06-1487 (D.D.C. Aug. 25, 2006); Merck & Co. v. FDA, C.A.
No. 01-1343 (D.D.C. June 20, 2001).
3
In support of ripeness, the majority asserts: “District courts
routinely reach the merits of generic manufacturers’ claims to
exclusivity before the FDA has granted final approval to any ANDA
concerning the drug at issue.” Maj. op. at 15 (citing Teva Pharms.,
USA, Inc. v. Leavitt, 548 F.3d 103 (D.C. Cir. 2008); Ranbaxy Labs.,
Ltd. v. Leavitt, 469 F.3d 120 (D.C. Cir. 2006)). Leaving aside what
effect a court’s routine practice may have on an issue’s ripeness vel
non, I know of no instance where the district court reached the merits
of an ANDA before the FDA has issued any decision regarding the
plaintiff and the issue raised. In the two cases the majority cites, the
district court directly reviewed FDA decisions denying relief to the
plaintiffs. See Teva Pharms., 548 F.3d at 105 (reviewing denial of
citizen petition contesting FDA’s delisting of patent certified in its
ANDA); Ranbaxy Labs., Ltd., 469 F.3d at 121 (reviewing denial of
citizen petition denial). Here, by contrast, the FDA has taken no
adverse action whatsoever regarding the effect of delisting on Teva’s
ANDA—and apparently will not do so unless and until it denies final
approval. Had Teva raised the delisting issue before the FDA in the
first instance, its status here might be different.
review,” 182 F.3d at 979; upon the FDA’s issuance of an
adverse final order, Teva is free to seek judicial
review—forestalling generic competition and the loss of the
“first-mover advantage,” maj. op. at 15, through appropriate and
immediate injunctive relief.2
For the foregoing reasons, I would find the appeal is unripe
and dismiss it for lack of jurisdiction.3
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TEH Trial Rules and Procedures (Rev. 04/02)
United States District Court
For the Northern District of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
OLEWASAMI BROWN
Plaintiff,
v.
JOHN L. GUTIERREZ, et al.
Defendant.
No. C 03 - 1141 TEH
TRIAL RULES AND PROCEDURES
In order to ensure the orderly and efficient presentation of evidence at trial, the parties
shall adhere to the following rules and procedures unless specifically ordered otherwise by
the Court.
1. EXHIBITS
Before the first witness is called to testify, the parties shall identify and provide to the
Court a list of all exhibits to which there is no objection regarding their admission into
evidence. Such exhibits shall then be formally admitted into evidence at that time. When the
Court recesses each day, counsel shall inform opposing counsel of which exhibits, if any,
they intend to introduce during the next trial day. If any such exhibits are still objected to,
counsel shall immediately notify the Court. The Court will then schedule an early
conference, prior to the starting time of the next trial day, to resolve the dispute.
2. WITNESSES
(a) Counsel are expected to have sufficient witnesses ready to testify each trial day. In
cases where the parties have been allocated a specific amount of trial time, any delays caused
by the failure to have sufficient witnesses ready shall be counted toward that party’s
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TEH Trial Rules and Procedures 2 (Rev. 04/02)
allocated time. Counsel are expected to cooperate with each other in the scheduling and
production of witnesses. Witnesses may be taken out of order if necessary. Every effort
should be made to avoid calling a witness twice (as an adverse witness and later as a party’s
witness).
(b) Only one lawyer for each party may examine any single witness.
(c) If a witness is testifying at the time of a recess or adjournment and has not been
excused, the witness shall be seated back on the stand when the court reconvenes. If a new
witness is to be called immediately following recess or adjournment, the witness should be
seated in the front row, ready to be sworn in.
(d) Counsel shall refrain from eliciting testimony regarding undisputed facts set forth
in the parties’ joint pretrial conference statement. If the case is being tried before a jury, the
Court may read to the jury such undisputed facts at appropriate points in the trial.
(e) Counsel are instructed to have their witnesses review, prior to taking the stand, all
exhibits the counsel intends to question the witness about during direct examination.
(f) Immediately before each new witness takes the stand, counsel calling the witness
shall place on the witness stand a clearly marked copy of each exhibit that counsel expects to
have the witness refer to during his or her direct examination. Immediately before beginning
cross-examination, counsel conducting cross-examination shall do the same with any
additional exhibits to be referenced on cross.
(g) If counsel intends to have the witness draw diagrams or put markings on visual
exhibits or diagrams prepared by the party calling the witness, the witness shall do so before
taking the stand. Once on the stand, the witness shall adopt the diagrams and/or markings
and explain what they represent. If the diagram or visual exhibit is prepared by the opposing
party, the witness shall not make any markings on the diagram or visual exhibit without leave
of the Court.
(h) The deposition of an adverse party may be used for any purpose. It is
unnecessary to ask the witness if s/he “recalls” it or otherwise lay a foundation. Counsel
need only identify the deposition and page and line numbers and read the relevant portion.
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Opposing counsel may then immediately ask to read any additional testimony that is
necessary to complete the context.
(i) The deposition of a non-party witness may be used for impeachment or if the
witness has been shown to be unavailable. For impeachment, counsel shall first allow the
witness to read to him- or herself the designated portion; then ask simply if the witness gave
that testimony; and then read the testimony into the record. Opposing counsel may
immediately ask to read additional testimony that is necessary to complete the context. If a
deposition is introduced because a witness is unavailable, counsel shall offer only relevant
portions of the deposition and may not offer the deposition wholesale.
(j) When the Court recesses each day, counsel shall inform opposing counsel of
which witnesses they intend to call during the next trial day.
3. OBJECTIONS
To make an objection, counsel shall rise, say “objection,” and briefly state the legal
ground (e.g., “hearsay” or “irrelevant”). There shall be no “speaking objections” or
argument from either counsel unless requested by the Court.
4. SIDEBARS
Bench conferences, or the equivalent of “sidebars,” will not be permitted absent truly
extenuating circumstances. Disputes regarding exhibits shall be resolved as set forth in
paragraph 1 above. Any other disputes or problems should be addressed either before the
trial day commences, at the end of the trial day, or during a recess, if necessary.
IT IS SO ORDERED.
DATED: 10/23/06 THELTON E. HENDERSON, JUDGE
UNITED STATES DISTRICT COURT
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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-4_20-cv-02524/USCOURTS-cand-4_20-cv-02524-0/pdf.json | 530 | Prisoner Petitions - Habeas Corpus | 28:2241 Petition for Writ of Habeas Corpus | 1
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United States District Court
Northern District of Californi
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
MICHELLE BRYANT,
Petitioner,
v.
W. Z. JENKINS, Warden,1
Respondent.
Case No. 20-cv-02524-YGR (PR)
ORDER OF PARTIAL DISMISSAL; FOR
RESPONDENT TO SHOW CAUSE; AND
DENYING PENDING MOTION FOR
COMPASSIONATE RELEASE WITHOUT
PREJUDICE TO RAISING MOTION
BEFORE SENTENCING COURT IN
DISTRICT OF SOUTH CAROLINA
I. INTRODUCTION
This action was reassigned from a magistrate judge to the undersigned in light of a recent
Ninth Circuit decision.2 Petitioner, a federal prisoner incarcerated at the Federal Correctional
Institution in Dublin, California, filed a pro se petition for a writ of habeas corpus under 28 U.S.C.
§ 2241. Dkt. 1. Thereafter, she filed an amended petition, which is the operative petition in this
action.3 Dkt. 7. Petitioner has filed a motion for leave to proceed in forma pauperis. Dkt. 8.
Petitioner also requests the Court for compassionate release/sentence reduction based on
the First Step Act of 2018 “along with the Covid-19, and the [Coronavirus Aid, Relief, and
Economic Security Act (‘The Cares Act’)].” Dkt. 5 at 1. Petitioner adds that “[o]n March 27,
2020, Congress passed The Cares Act in response to the Covid-19 pandemic . . . [which lists the
criteria required for] [t]ransferring of inmates to Home Confinement to decrease the risks of [the]
Covid-19 pandemic . . . .” Id. at 2. Petitioner seeks compassionate release because her age (she is
48 years old) and her “health issues/conditions” increase her “vulnerability to Covid-19.” Id.
1
W. Z. Jenkins, the current warden of the prison where Petitioner is incarcerated, has been
substituted as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.
2 Williams v. King, 875 F.3d 500, 503 (9th Cir. 2017) (magistrate judge lacked jurisdiction
to dismiss case on initial screening because unserved defendants had not consented to proceed
before magistrate judge).
3
As Petitioner is incarcerated within the Northern District of California and Claim 1 in
her amended petition challenges the execution of her federal sentence, venue is proper in this
district. See Dunne v. Henman, 875 F.2d 244, 249-50 (9th Cir. 1989).
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II. BACKGROUND
In April 2018, a federal grand jury in the District of South Carolina indicted Petitioner on
six counts of intentionally conveying false and misleading information, in violation of 18 U.S.C.
§ 1038(a)(1)(A), alleging she made false bomb threats to an airport and a hotel. United States v.
Bryant, Case No:4:18-cr-00437-RBH-1 (District of South Carolina), Dkt. 4. In October 2018,
Petitioner pled guilty without a written plea agreement to the first three counts in the indictment.
See id., Dkts. 41, 43, 69. In February 2019, Petitioner was sentenced to twenty-four months in
federal prison. See id., Dkts. 55, 56, 70. Petitioner filed a direct appeal, and the Fourth Circuit
Court of Appeals affirmed her convictions and sentence. See id., Dkts. 63, 72; see also United
States v. Bryant, 775 F. App’x 117 (4th Cir. 2019). The Fourth Circuit issued its mandate on
September 13, 2019. See United States v. Bryant, Case No:4:18-cr-00437-RBH-1 (District of
South Carolina), Dkt. 73.
On September 23, 2019, Petitioner filed a motion to vacate her sentence pursuant to 28
U.S.C. § 2255, in which she raised claims of ineffective assistance of counsel. See id., Dkt. 74.
On February 21, 2020, Petitioner’s section 2255 motion was denied. See id., Dkt. 94.
On March 11, 2020, Petitioner filed a motion in the Fourth Circuit seeking permission to
file a second or successive section 2255 motion to challenge her sentence, in which she again
raised claims of ineffective assistance of counsel. Dkt. 7 at 4. To date, Petitioner states that
motion is still “pending.” Id.
III. DISCUSSION
In her amended petition, Petitioner raises the following claims challenging: (1) time credits
during her pre-trial detention and requests “[c]redit for time out on bond under restriction issues
by [the] Attorney General, DA’s office, Federal Marshal and probation”; and (2) the validity of
her sentence, in which she seeks to have her sentence reduced or vacated. Dkt. 7 at 6. In Claim 3,
Petitioner raises the same allegations she brings forth in her request for compassionate
release/sentence reduction, which will be addressed below.
The Court first considers Claim 2, which is Petitioner’s challenge to the validity of her
sentence. A prisoner in custody under sentence of a federal court who wishes to attack collaterally
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the validity of her conviction or sentence must do so by way of a motion to vacate, set aside, or
correct the sentence pursuant to 28 U.S.C. § 2255 in the court that imposed the sentence. See
Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). Only the sentencing court has
jurisdiction to hear the section 2255 motion. See id. at 1163. A prisoner generally may not attack
collaterally a federal conviction or sentence by way of a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. See Grady v. United States, 929 F.2d 468, 470 (9th Cir. 1991)
(challenge to sentence following probation or parole revocation must be brought in sentencing
court via section 2255 motion); Tripati, 843 F.2d at 1162 (challenge to legality of conviction must
be brought in sentencing court via section 2255 motion); see also United States v. Flores, 616 F.2d
840, 842 (5th Cir. 1980) (where challenge is to alleged errors at or prior to sentencing remedy is
section 2255 motion, not section 2241 writ).
There is an exception to the general bar against using section 2241 to collaterally attack a
conviction or sentence: a federal prisoner authorized to seek relief under section 2255 may seek
relief under section 2241 if she can show that the remedy available under section 2255 is
“inadequate or ineffective to test the legality of [his/her] detention.” United States v. Pirro, 104
F.3d 297, 299 (9th Cir. 1997) (quoting 28 U.S.C. § 2255). Although there is little guidance from
any court on when section 2255 is an inadequate or ineffective remedy, the Ninth Circuit has
recognized that it is a very narrow exception. See id. For example, the remedy under section 2255
generally will not be inadequate or ineffective due to a delay in considering a motion under section
2255, see id. at 299 (district court’s delay in considering section 2255 motion until direct appeals
are resolved does not make section 2255 motion inadequate or ineffective), or the mere fact that a
previous section 2255 motion was denied, see Aronson v. May, __ U.S. __, 85 S. Ct. 3, 5 (1964);
Tripati, 843 F.2d at 1162-63; see also Lane v. Hanberry, 601 F.2d 805 (5th Cir. 1979) (whether
seeking to raise new issue or relitigate already decided by prior section 2255, section 2241 not
proper unless petitioner can show that section 2255 proceeding inadequate or ineffective; must
show more than lack of success in prior section 2255). Even the dismissal of a subsequent section
2255 motion as successive under 28 U.S.C. § 2244(b) does not render the remedy under section
2255 to be an ineffective or inadequate remedy. See Moore v. Reno, 185 F.3d 1054, 1055 (9th
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Cir. 1999).
Here, Petitioner fails to show that the remedy under section 2255 is inadequate or
ineffective to test the legality of her detention, and thus she does not show that this Court has
authority to entertain Claim 2 in her amended petition. When asked to explain why the remedy
under section 2255 was inadequate, Petitioner states that the sentencing court in the District of
South Carolina “indicated [she] did not prove ineffective assistance of counsel.” Dkt. 7 at 4.
However, as mentioned above, the mere fact that the section 2255 motion was denied by the
sentencing court does not show that section 2255 is inadequate or ineffective. See Tripati, 843
F.2d at 1162-63. Therefore, Claim 2 is DISMISSED because it does not fit within the very narrow
exception for situations where the remedy available under section 2255 is inadequate to test the
legality of her detention. It seems that Petitioner has filed a motion in the Fourth Circuit seeking
permission to file a second or successive section 2255 motion to challenge her sentence, but that
motion is still “pending.” Dkt. 7 at 4. Thus, this Court’s dismissal of Claim 2 is without prejudice
to bringing it in a second or successive section 2255 motion before the sentencing court in the
District of South Carolina if she is granted permission to do so by the Fourth Circuit.
Next, Petitioner seeks compassionate release from custody based on her “vulnerability to
Covid-19,”4 which was a request inappropriately raised as Claim 3 and thus it shall be construed
as a supplement to her pending motion for compassionate release/sentence reduction. See Dkt. 5
at 2; Dkt. 7 at 6. However, such a request is not proper before this Court because any relief that
may be available under 18 U.S.C. § 3582, as amended by the First Step Act of 2018, must be
sought in Petitioner’s criminal case as it is the sentencing court that would make any modification
to a term of imprisonment under that section. 18 U.S.C. § 3582(c) provides that a sentencing court
“may not modify a term of imprisonment once it has been imposed except . . . upon motion of the
Director of the Bureau of Prisons, or upon motion of the defendant.” Furthermore, Petitioner is
cautioned that 18 U.S.C. § 3582(c) requires the criminal defendant to first attempt exhaustion of
administrative remedies: a defendant may bring a section 3582(c) motion after he/she has “fully
4
The Court notes that this issue is a separate matter from the aforementioned claim (Claim
2) asserted in her amended petition, which attacks the validity of her sentence.
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exhausted all administrative rights to appeal a failure of the Bureau of Prisons” to bring the motion
on his/her behalf, or after “the lapse of 30 days from the receipt of such a request by the warden of
the defendant’s facility, whichever is earlier.” 18 U.S.C. § 3582(c)(1)(A). Accordingly,
Petitioner’s request for compassionate release from custody is DENIED without prejudice to
raising such a request before the sentencing court in the District of South Carolina. Dkt. 5.
Finally, as to the remaining claim in her amended petition challenging time credits, it does
not appear from the face of the amended petition that Claim 1 is without merit. Good cause
appearing, Claim 1 is sufficient to require a response.
IV. CONCLUSION
For the foregoing reasons, the Court orders as follows:
1. The motion for leave to proceed in forma pauperis is GRANTED. Dkt. 8.
2. Claim 2 is DISMISSED because it does not fit within the very narrow exception for
situations where the remedy available under section 2255 is inadequate to test the legality of her
detention. This dismissal is without prejudice to bringing Claim 2 in a second or successive
section 2255 motion before the sentencing court in the District of South Carolina if she is granted
permission to do so by the Fourth Circuit.
3. Petitioner’s request for compassionate release from custody, which was
inappropriately raised as Claim 3 and instead construed as a supplement to her pending motion for
compassionate release/sentence reduction, is DENIED without prejudice to raising such a request
before the sentencing court in the District of South Carolina. Dkt. 5.
4. Liberally construed, Claim 1 is sufficient to require a response.
5. The Clerk of the Court shall serve electronically a copy of this order upon the
Respondent and Respondent’s attorney, the United States Attorney for the Northern District of
California, at the following email addresses: (1) [email protected];
(2) [email protected]; and (3) [email protected]. The amended petition and the
exhibits thereto are available via the Electronic Case Filing System for the Northern District of
California. See Dkt. 7. The Clerk shall serve by mail a copy of this order on Petitioner.
6. Respondent shall file with the Court and serve on Petitioner, within sixty (60) days
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of the date this Order is filed, an answer to this amended petition, showing cause why a writ of
habeas corpus should not be granted based on Petitioner’s Claim 1. Respondent shall file with the
answer and serve on Petitioner a copy of all exhibits that are relevant to a determination of the
issues presented by Claim 1.
7. If Petitioner wishes to respond to the Answer, Petitioner shall do so by filing a
Traverse with the Court and serving it on Respondent within twenty-eight (28) days of
Petitioner’s receipt of the Answer. Should Petitioner fail to do so, the amended petition will be
deemed submitted and ready for decision twenty-eight (28) days after the date Petitioner is served
with Respondent’s Answer.
8. Respondent may file with this Court and serve upon Petitioner, within sixty (60)
days of the issuance of this Order, a motion to dismiss on procedural grounds in lieu of an
Answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section
2254 Cases. If Respondent files a motion to dismiss, Petitioner shall file with the Court and serve
on Respondent an opposition or statement of non-opposition to the motion within twenty-eight
(28) days of receipt of the motion, and Respondent shall file with the Court and serve on
Petitioner a reply within fourteen (14) days of receipt of any opposition.
9. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep the
Court and Respondent informed of any change of address and must comply with the Court’s
orders in a timely fashion. Pursuant to Northern District Local Rule 3-11 a party proceeding pro
se whose address changes while an action is pending must promptly file a notice of change of
address specifying the new address. See L.R. 3-11(a). The Court may dismiss a pro se action
without prejudice when: (1) mail directed to the pro se party by the Court has been returned to the
Court as not deliverable, and (2) the Court fails to receive within sixty days of this return a written
communication from the pro se party indicating a current address. See L.R. 3-11(b); see also
Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).
Petitioner must also serve on Respondent’s counsel all communications with the Court by mailing
a true copy of the document to Respondent’s counsel.
10. Upon a showing of good cause, requests for a reasonable extension of time will be
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United States District Court
Northern District of Californi
a
granted provided they are filed on or before the deadline they seek to extend.
11. This order terminates Docket Nos. 5 and 8.
IT IS SO ORDERED.
Dated: June 1, 2020
YVONNE GONZALEZ ROGERS
United States District Judge
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United States Court of Appeals
Tenth Circuit
October 14, 2016
Elisabeth A. Shumaker
Clerk of Court
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
TULSA AIRPORTS IMPROVEMENT
TRUST, for and on behalf of Cinnabar
Service Company,
Petitioner,
v. No. 15-5009
FEDERAL AVIATION
ADMINISTRATION,
Respondent.
ON PETITION FOR REVIEW OF A FINAL ORDER
OF THE FEDERAL AVIATION ADMINISTRATION
(Court of Federal Claims No. 13-906-CFL)
Roger M. Gassett, of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.,
Tulsa, Oklahoma, (John M. Hickey, of Hall, Estill, Hardwick, Gable, Golden &
Nelson, P.C., and Steven K. Metcalf of McDonald, McCann, Metcalf & Carwile,
L.L.P., Tulsa, Oklahoma, with him on the briefs), for Petitioner-Appellant.
Edward Himmelfarb, Attorney, Appellate Staff, Civil Division, Department of
Justice, Washington, D.C., (Benjamin C. Mizer, Principal Deputy Assistant
Attorney General; and Michael S. Raab, Attorney, Appellant Staff, Civil Division,
Department of Justice, Washington, D.C., with him on the brief), for RespondentAppellee.
Before BRISCOE, MURPHY and PHILLIPS, Circuit Judges.
BRISCOE, Circuit Judge.
Appellate Case: 15-5009 Document: 01019705212 Date Filed: 10/14/2016 Page: 1
Tulsa Airports Improvement Trust (TAIT) seeks reimbursement for
amounts it paid to a third-party contractor in furtherance of a noise abatement
program funded primarily by grants from the Federal Aviation Administration
(FAA). Because its petition for review of agency action was not timely filed, we
dismiss the action.
I
Since the mid-1990s, TAIT has been working to reduce noise caused by the
Tulsa International Airport. Tulsa Airports Improvements Trust v. United States,
120 Fed. Cl. 254, 256–57 (2015). TAIT’s efforts have largely been funded by
grants from the FAA. Id. at 257. In 2002, while awaiting the approval of
additional grant funding, TAIT instructed its contractors to place some projects
on hold until additional funds were approved. Id. at 257–58. As a result of the
delay, some contractors “demanded contract increases or terminated their
contracts.” Id. at 258. Consequently, TAIT paid $705,913.40 to its contractors
and then sought reimbursement from the FAA. Id. The FAA initially reimbursed
TAIT for the costs, but subsequently demanded repayments totalling $656,574.37
after determining that the payments were “contract delay/escalation costs,” which
were “not allowable” costs under the grants. Id. TAIT reimbursed the FAA for
these amounts. Id. In 2010, TAIT sought reconsideration and the FAA provided
2
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reimbursements for supplemental allowable costs in the amount of $569,566.00.
See Agency Record (AR) at 2187.
On January 23, 2012, TAIT informed the FAA that it had reviewed the
remaining unpaid expenses1
and had “identified numerous cost categories which
[were] eligible for reimbursement.” AR at 487. TAIT requested that the FAA
review the attached documentation and approve the reimbursements. Id. On
October 24, 2012, the FAA’s Southwest Region responded that it had “carefully
examined the information” provided and “[could not] make a favorable
determination of additional allowable costs.” AR at 1140. This letter stated that
“additional reviews on the [grants] would not be considered an efficient use of
resources.” Id. TAIT responded by appealing to the FAA’s Associate
Administrator for Airports on December 6, 2012. AR at 1141. On December 31,
2012, the Associate Administrator for Airports issued a letter to TAIT stating
that, because TAIT’s most recent request for reimbursement did not delineate
costs that had been reimbursed as well as allowable costs that were outstanding,
the FAA was “unable to find that there [were] potentially eligible costs that ha[d]
not been reimbursed.” AR at 2190. The letter further stated that TAIT should
1
Although the parties do not specify the amount contested, we estimate
from the record that TAIT is seeking reimbursement for a portion of
approximately $87,000.00 in outstanding expenses.
3
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resubmit any information that it believed had not been considered. Id. TAIT
submitted no further documentation to the FAA.
Instead, on November 14, 2013, TAIT filed a breach of contract action in
the Court of Federal Claims, invoking jurisdiction under the Tucker Act, 28
U.S.C. § 1491(a)(1). Tulsa Airports Improvements Trust, 120 Fed. Cl. at 256.
TAIT alleged that the FAA had wrongfully determined that the payments in
question were “not allowable grant costs.” Id. at 256. The Court of Federal
Claims determined that it did not have subject matter jurisdiction because either
49 U.S.C. § 46110 or 49 U.S.C. § 47111 vested exclusive jurisdiction in the
United States Court of Appeals. Id. at 263. Accordingly, it transferred the case to
this court. Id. at 265–66. For procedural purposes, we now consider it as a
petition for review of agency action.
II
TAIT asks us to compel the FAA “to conduct a hearing to formally consider
TAIT’s request for reimbursement under the Grants” — the procedure required by section
47111. Aplt. Br. at 9. TAIT argues that section 47111 applies; that under either section
46110 or section 47111, the FAA did not issue a final order appropriate for judicial
review; and that even if the FAA did issue a final order, its wording created confusion
that caused TAIT’s delay in filing this petition. We disagree.
First, we conclude that 49 U.S.C. § 46110 governs this action because 49 U.S.C
§ 47111 does not apply. Section 46110 is a general review provision that allows a person
4
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to petition for review of an order in which the person has a substantial interest.2
49
U.S.C. § 46110(a). Section 47111 specifically allows a person to petition for review of
an agency’s decision to withhold a payment that is due under a grant agreement.3
49
2
Section 46110(a) provides:
(a) Filing and Venue. — Except for an order related to a
foreign air carrier subject to disapproval by the President
under section 41307 or 41509(f) of this title, a person
disclosing a substantial interest in an order issued by the
Secretary of Transportation (or the Under Secretary of
Transportation for Security with respect to security duties and
powers designated to be carried out by the Under Secretary or
the Administrator of the Federal Aviation Administration with
respect to aviation duties and powers designated to be carried
out by the Administrator) in whole or in part under this part,
part B, or subsection (l) or (s) of section 114 may apply for
review of the order by filing a petition for review in the United
States Court of Appeals for the District of Columbia Circuit or
in the court of appeals of the United States for the circuit in
which the person resides or has its principal place of business.
The petition must be filed not later than 60 days after the order
is issued. The court may allow the petition to be filed after the
60th day only if there are reasonable grounds for not filing by
the 60th day.
3
Section 47111(d) provides:
(d) Withholding Payments. — (1) The Secretary may withhold
a payment under a grant agreement under this subchapter for
more than 180 days after the payment is due only if the
Secretary— (A) notifies the sponsor and provides an
opportunity for a hearing; and (B) finds that the sponsor has
violated the agreement. (2) The 180-day period may be
extended by— (A) agreement of the Secretary and the sponsor;
or (B) the hearing officer if the officer decides an extension is
necessary because the sponsor did not follow the schedule the
officer established. (3) A person adversely affected by an
order of the Secretary withholding a payment may apply for
review of the order by filing a petition in the United States
(continued...)
5
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U.S.C. § 47111(d). This section also sets forth procedures that must be followed before a
payment may be withheld. See 49 U.S.C. § 47111(d)(1).
Contrary to TAIT’s contention, section 47111 does not apply to a finding that
certain costs are not allowable under a grant agreement. Before the United States may be
obligated to make a payment under a grant agreement, the statutory scheme requires that
the Secretary first decide that the cost is allowable. 49 U.S.C. § 47110. Until such a
determination has been made, no payment can be due. Section 47111 only applies to the
withholding of payments that are “due” under a grant agreement. 49 U.S.C.
§ 47111(d)(1) (emphasis added). A determination that a particular cost is not allowable is
not a withholding of a payment that is due, but merely a determination that no payment
was ever owed. Furthermore, section 47111 applies to situations in which the payment is
withheld due to a violation of the grant agreement. See 49 U.S.C. § 47111(d)(1)(B). In
order to withhold a payment under this section, the Secretary must notify the sponsor,
provide an opportunity for a hearing, and make a finding that the sponsor has violated the
grant agreement. 49 U.S.C. § 47111(d)(1). The FAA made no such finding because there
is no allegation that TAIT violated the grant agreement. The payments were denied
because the costs were not allowable, and not because of an independent violation of the
(...continued)
Court of Appeals for the District of Columbia Circuit or in the
court of appeals of the United States for the circuit in which
the project is located. The petition must be filed not later than
60 days after the order is served on the petitioner.
6
Appellate Case: 15-5009 Document: 01019705212 Date Filed: 10/14/2016 Page: 6
grant agreement. Because section 47111 does not apply, TAIT must challenge the FAA’s
action under the general judicial review provision, 49 U.S.C. § 46110.
Second, we conclude that the December 31, 2012 letter is a final order issued
by the FAA. We have not previously had the opportunity to address what
constitutes an “order” under section 46110, but those circuits that have considered
the meaning of “order” under this section or its predecessor, 49 U.S.C. § 1486,
have concluded that an agency decision is an “order” only if it possesses “the
quintessential feature of agency decisionmaking suitable for judicial review:
finality.” Vill. of Bensenville v. FAA, 457 F.3d 52, 68 (D.C. Cir. 2006) (citing
Aerosource, Inc. v. Slater, 142 F.3d 572, 577 (3d Cir. 1998) (collecting cases)).
Accordingly, the agency action must “mark the consummation of the agency’s
decisionmaking process,” and “be one by which rights or obligations have been
determined, or from which legal consequences will flow.” Bennett v. Spear, 520
U.S. 154, 177–78 (1997) (quotations omitted); see also Vill. of Bensenville, 457
F.3d at 68 (applying Bennett in the context of 49 U.S.C. § 46110). In addition,
most circuits require that the alleged order “be predicated on an administrative
record sufficient to allow a court to engage in a meaningful review,” but this
requirement is “not a demanding one.” Burdue v. FAA, 774 F.3d 1076, 1080 (6th
Cir. 2014) (collecting cases).
A communication need not be formal to constitute a final agency action.
Numerous circuits have held that letters from the FAA, including those not issued
7
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by the Administrator, constitute “orders” for purposes of 49 U.S.C. § 46110.
Aerosource, Inc., 142 F.3d at 577–78 (collecting cases). Further, under a similar
statute, we have concluded that an informal agency communication may constitute
an order suitable for judicial review. TransAm Trucking, Inc. v. Fed. Motor
Carrier Safety Admin., 808 F.3d 1205, 1212 n.4 (10th Cir. 2015) (“[T]he informal
nature of the email communication doesn’t necessarily determine whether it was a
‘final order’ within the meaning of [28 U.S.C.] § 2342(3)(A).”). In addition,
“[t]he mere possibility that an agency might reconsider in light of ‘informal
discussion’ and invited contentions of inaccuracy does not suffice to make an
otherwise final agency action nonfinal.” Sackett v. E.P.A., 132 S. Ct. 1367, 1372
(2012).
The FAA’s December 31, 2012 letter is a final order. The letter marks the
consummation of the FAA’s decisionmaking process. It details TAIT’s prior
requests and the FAA’s responses thereto, including the various requests, reviews,
grants, and denials over the preceding ten years. There is no indication in the
letter or in the record that any additional process on the FAA’s part was to follow.
Although the letter does provide TAIT an opportunity to resubmit any information
the FAA had not yet considered, this invitation does not make an otherwise final
decision nonfinal. Absent additional action from TAIT, the FAA made clear that
it would not reconsider the request. Following the receipt of the December 31,
2012 letter, TAIT took no further action. In addition, the letter determined rights
8
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and obligations by concluding that TAIT had no right to reimbursement for the
requested funds and that the FAA had no obligation to pay them. These are legal
consequences sufficient to indicate finality. Further, the administrative record,
which includes nearly 3000 pages of letters, agreements, and payment records
from 2002 through 2012, is sufficient for review. The parties have provided us
with relevant communications between themselves, as well as documentation
supporting TAIT’s claim to reimbursement. Thus, the December 31, 2012 letter
from the FAA is a final order suitable for judicial review under section 46110.
Third, we conclude that the action was not timely filed. Section 46110 provides
that a petition for review of an agency order generally must be filed not later than
sixty days after the agency order is issued. 49 U.S.C. § 46110(a). A court does
have discretion to allow a petition filed after the sixtieth day if there are
reasonable grounds for the delay. Id. Because the FAA’s letter on December 31,
2012 was a final order, the sixty-day period expired on March 1, 2013. TAIT did
not file its action in the Court of Claims until November 14, 20134
— more than
eight months after the statutory period expired. Further, TAIT has not established
any reasonable grounds to justify its delay.
4
We consider this petition for review as if it had been filed in this court on
the date on which it was actually filed in the Court of Federal Claims. See 28
U.S.C. § 1631.
9
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Agency-created confusion has been recognized in some circuits as a basis
for finding delay to be reasonable. See, e.g., Safe Extensions, Inc. v. FAA, 509
F.3d 593, 603–04 (D.C. Cir. 2007) (excusing delay when the FAA had stated that a
revision was forthcoming but never issued one); Greater Orlando Aviation Auth.
v. FAA, 939 F.2d 954, 960 (11th Cir. 1991) (excusing delay when the FAA’s
inconsistent communications caused confusion), abrogated on other grounds by
Henderson v. Shinseki, 562 U.S. 428, 438 (2011), as recognized in Corbett v.
TSA, 767 F.3d 1171, 1174 (11th Cir. 2014). But we do not have such factual
circumstances here. The D.C. Circuit has twice held this year that ambiguity in a
letter issued by an agency does not excuse delay. See Nat’l Fed’n of the Blind v.
DOT, 827 F.3d 51, 57 (D.C. Cir. 2016); Elec. Privacy Info. Ctr. v. FAA, 821 F.3d
39, 43 (D.C. Cir. 2016). We agree with the D.C. Circuit that parties should
assume finality in the face of ambiguity and file protectively for judicial review.
See id. Thus, if there was any ambiguity in the December 31, 2012 letter, it does
not excuse TAIT’s delay in filing a petition for review. Moreover, a plain reading
of the December 31, 2012 letter makes clear that the FAA’s determination was
final and no reimbursements would be issued unless TAIT took further action,
either by resubmitting documentation in the format recommended by the FAA, or
by appealing to this court within sixty days. TAIT did neither.
III
The petition for review of agency action is DISMISSED as not timely filed.
10
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
CELLSPIN SOFT, INC.
Plaintiff,
v.
FITBIT, INC.
Defendant.
ORDER TO SHOW CAUSE
Case No. 17-cv-05928-YGR
v.
MOOV, INC.
Defendant.
Case No. 17-cv-05929-YGR
v.
NIKE, INC.,
Defendant.
Case No. 17-cv-05931-YGR
v.
FOSSIL GROUP, INC. ET AL
Defendant.
Case No. 17-cv-05933-YGR
v.
GARMIN INTERNATIONAL INC. ET AL
Defendant.
Case No. 17-cv-05934-YGR
v.
CANNON U.S.A., INC.
Defendant
Case No. 17-cv-05938-YGR
Case 4:17-cv-05939-YGR Document 65 Filed 03/22/18 Page 1 of 3
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v.
GOPRO, INC.
Defendant.
Case No. 17-cv-05939-YGR
v.
PANASONIC CORPORATION OF NORTH AMERICA
Defendant.
Case No. 17-cv-05941-YGR
v.
JK IMAGING, LTD.
Defendant.
Case No. 17-cv-06881-YGR
The Court is in receipt of plaintiff’s response to defendants’ supplemental brief in support of motion
to dismiss. (Dkt, No. 73.)1 By way of background, on December 22, 2017, this Court set a briefing
schedule for defendants’ motion to dismiss with a hearing date of March 6, 2018. (Dkt No. 23.) On March
2, 2017, plaintiff filed amended complaints in the above-captioned matters. At the hearing held on March 6,
2018, defense counsel asked the Court whether the Court required “additional papers addressing” the
amended complaints. (Dkt. No. 68 at 51:23–24.) The Court responded that a supplemental brief “would be
helpful to close the loop” and ordered counsel to file said brief by Monday, March 12, 2018. (Id. at 51:25–
52:1.) Defendants filed an omnibus supplemental brief on March 12, 2018. (Dkt. No. 64.)
On March 20, 2018, plaintiff filed a response to defendants’ supplemental brief without seeking prior
Court approval. (Dkt. No. 73.) Pursuant to Local Rule 7-3(d), “[o]nce a reply is filed, no additional
memoranda, papers or letters may be filed without prior Court approval, except” for objections to reply
evidence or to “[b]efore the hearing date . . . [to] bring o the Court’s attention a relevant judicial opinion
published after the date the opposition or reply was filed.” Here, counsel failed to seek “prior Court
approval” before filing the supplemental brief.
1 All citations to docket entries refer to Cellspin Soft Inc. v. Fitbit, Inc., 17-cv-05928-YGR.
Case 4:17-cv-05939-YGR Document 65 Filed 03/22/18 Page 2 of 3
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Accordingly, plaintiff is hereby ORDERED TO SHOW CAUSE as to why plaintiff’s response to
defendants’ supplemental brief should not be stricken or plaintiff should not be sanctioned $250 for failure
to follow Court rules by Monday, March 26, 2018. The hearing on the order to show cause will be held on
Monday, April 2, 2018 at 3:01 p.m. If the Court is satisfied with plaintiff’s response to the order to show
cause or if plaintiff pays the sanctions, the hearing will be taken off calendar.
IT IS SO ORDERED.
Dated:
______________________________________
YVONNE GONZALEZ ROGERS
United States District Court Judge
March 22, 2018
Case 4:17-cv-05939-YGR Document 65 Filed 03/22/18 Page 3 of 3 |
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
DONALD KENDRICKS COOK,
Petitioner, No. CIV S-07-0208 DFL EFB P
vs.
BEN CURRY, Warden, et al.,
Respondents. ORDER
/
Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus.
See 28 U.S.C. § 2254. Petitioner has paid the filing fee.
A judge “entertaining an application for a writ of habeas corpus shall forthwith 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. It is not apparent from the application that petitioner is not entitled
to relief.
Accordingly, it is hereby ordered that:
1. Respondent shall file and serve a response to petitioner’s application within 30 days
from the date of this order. See Rule 4, Fed. R. Governing § 2254 Cases. An answer shall be
accompanied by any and all transcripts or other documents relevant to the determination of the
Case 2:07-cv-00208-ALA Document 3 Filed 04/13/07 Page 1 of 2
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issues presented in the application. See Rule 5, Fed. R. Governing § 2254 Cases.
2. Petitioner’s reply, if any, shall be filed and served within 30 days of service of an
answer.
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statement of non-opposition shall be filed and served within 30 days of service of the motion,
and respondents’ reply, if any, shall be filed within 15 days thereafter.
4. The Clerk of the Court shall serve a copy of this order together with a copy of
petitioner’s January 31, 2007, petition for a writ of habeas corpus with any and all attachments
on Michael Patrick Farrell, Senior Assistant Attorney General for the State of California.
Dated: April 12, 2007.
Case 2:07-cv-00208-ALA Document 3 Filed 04/13/07 Page 2 of 2 |
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
APRIL LYNN CUMMINGS,
Petitioner,
v.
SANTA BARBARA COUNTY, et.al.,
Respondents.
/
CV F 05-1553 AWI DLB HC
ORDER RE-DESIGNATING ACTION AS
PETITION FILED PURSUANT TO 28 U.S.C. §
2255 AND RE-ASSIGNING TO JUDGE ISHII
Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241.
Petitioner filed the instant petition for writ of habeas corpus on December 6, 2005. In the
petition, Petitioner indicated that she was convicted of making false statements on a passport
application in this Court, case number 05-CR-111 AWI. On March 20, 2006, the undersigned
issued an order advising Petitioner that her claims were not cognizable via § 2241, and should
she wish to purse her claims she must do so by way of § 2255. (Court Doc. 6, at 3.) After
numerous attempts to re-serve Petitioner at her current address of record, Petitioner filed a
motion to vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255, on October 2,
2006. (Court Doc. 21.) Accordingly, the Court shall re-designate this action as a motion filed
pursuant to § 2255 and re-assign it to the Honorable Anthony W. Ishii.
IT IS HEREBY ORDERED that:
1. The Clerk’s Office shall re-designate this action as a motion to vacate, set aside or
Case 1:05-cv-01553-AWI Document 22 Filed 10/11/06 Page 1 of 2
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correct sentence pursuant to 28 U.S.C. § 2255; and
2. The action shall be re-assigned to the sentencing Judge Anthony W. Ishii.
IT IS SO ORDERED.
Dated: October 6, 2006 /s/ Dennis L. Beck
3b142a UNITED STATES MAGISTRATE JUDGE
Case 1:05-cv-01553-AWI Document 22 Filed 10/11/06 Page 2 of 2 |
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For the Northern District of California
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
GARY CASSANO,
Plaintiff,
v.
MARCUS JOHNSON,
Defendant. /
No. C 12-05144 WHA
ORDER RE MOTION FOR
SUMMARY JUDGMENT
As stated at the hearing yesterday, and as agreed to by both sides, all claims other than
plaintiff Gary Cassano’s claim for excessive force are DISMISSED. Plaintiff’s excessive force
claim against defendant Marcus Johnson is the only claim remaining in the case. It is further
ordered that R.J. Donovan Correctional Facility in San Diego, where plaintiff is currently
housed, allow plaintiff to conduct unrecorded and privileged phone calls with his attorneys.
Plaintiff’s attorneys should also go to San Diego and meet with plaintiff in person at least once
before trial. Plaintiff’s counsel’s motion for relief from their failure to timely respond to
defendant’s requests for admission is GRANTED. Plaintiff’s counsel shall promptly serve
defendant with the verifications responsive to defendant’s requests for admission.
IT IS SO ORDERED.
Dated: June 16, 2015.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
Case 3:12-cv-05144-WHA Document 92 Filed 06/16/15 Page 1 of 1 |
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SARAH BRAGA, et al.,
Plaintiffs,
v.
INTERSEC INTERACTIVE, INC.,
Defendant.
Case No. 15-cv-01145-DMR
ORDER OF DISMISSAL
The court having been advised that the parties have agreed to a settlement of this case,
IT IS HEREBY ORDERED that this case is dismissed in its entirety with prejudice;
provided, however, that if any party hereto shall certify to this court, within 30 days, with proof of
service of a copy thereon to opposing counsel, that the agreed consideration for said settlement has
not been delivered over, the foregoing Order shall stand vacated and this case shall forthwith be
restored to the calendar to be set for trial. All further dates are vacated.
IT IS SO ORDERED.
Dated: June 6, 2016
______________________________________
DONNA M. RYU
United States Magistrate Judge
Case 4:15-cv-01145-DMR Document 61 Filed 06/06/16 Page 1 of 1 |
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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Samuel Yepiz Corral, et al.,
Plaintiffs,
v.
Iron Tree Trucking, Inc., et al.,
Defendants.
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No. CV-07-1985-PHX-SMM
ORDER
Before the Court is Defendants’ Motion to Continue the Rule 16 Preliminary
Pretrial Conference currently scheduled for June 17, 2008 (Dkt. 23). Counsel for
Defendants and Defendants’ party representatives are unavailable due to conflicts. Good
cause appearing,
IT IS HEREBY ORDERED granting Defendants’ Motion to Continue (Dkt. 23).
The Preliminary Pretrial Conference currently scheduled for June 17, 2008 is rescheduled
for Monday, July 7, 2008 at 2:00 p.m. Per the Court’s previous Order, Defendants Iron
Tree Trucking, Inc. and William Welch’s party representatives may appear
telephonically. (See Dkt. 17, Order dated May 15, 2008.)
DATED this 2nd day of June, 2008.
Case 2:07-cv-01985-SMM Document 25 Filed 06/02/08 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_05-cv-01334/USCOURTS-caed-2_05-cv-01334-4/pdf.json | 360 | Other Personal Injury | 28:1331 Federal Question: Other Civil Rights | 1
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MARIANNE C. ROSSI, ESQ. (SBN: 117377)
LAW OFFICES OF MARIANNE C. ROSSI
702 Marshall St., Suite 500
Redwood City, CA 94063
(650) 364-7034
Attorney for Plaintiff
EDWARD CHAVEZ
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
EDWARD FRANCIS CHAVEZ, CASE NO. 2:05-CV-1334 GEB KJM
Plaintiff, VOLUNTARY DISMISSAL BY
STIPULATION OF DEFENDANTS
vs. TRUCKEE FIRE PROTECTION
DISTRICT AND CHIEF WILLIAM
TRUCKEE POLICE OFFICERS MICHAEL RUST
LACKL, JASON LITCHIE AND RETIRED
POLICE CHIEF DAN BOONE, TRUCKEE
POLICE DEPARTMENT and THE TOWN
OF TRUCKEE
Defendants.
__________________________________________/
It is hereby stipulated by and between the parties hereto that the following parties only
may be dismissed with prejudice, each party to bear their own costs:
Truckee Fire Protection District
Chief William Rust
Dated: December 6, 2005 LAW OFFICES OF BAILEY & BROWN
/S/ WILLIAM J. SCHMIDT
William J. Schmidt
Dated: December 6, 2005 LAW OFFICES OF MARIANNE C. ROSSI
/S/ MARIANNE C. ROSSI
Marianne C. Rossi
VOLUNTARY DISMISSAL BY STIPULATION
Case 2:05-cv-01334-GEB -KJM Document 29 Filed 01/04/06 Page 1 of 3
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ORDER
IT IS HEREBY ORDERED that defendants Truckee Fire Protection District and Chief
William Rust may be, and are hereby, dismissed with prejudice, each party to bear their own
costs.
Dated: January 3, 2006
/s/ Garland E. Burrell, Jr.
GARLAND E. BURRELL, JR.
United States District Judge
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-2-
VOLUNTARY DISMISSAL BY STIPULATION
Case 2:05-cv-01334-GEB -KJM Document 29 Filed 01/04/06 Page 3 of 3 |
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
LUIS CORDERO,
Plaintiff,
vs.
U.S. BANK, N.A., et al.,
Defendants.
Case No. 14CV1709-MMA (BLM)
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS
[Doc. No. 4]
Plaintiff Luis Cordero has filed a civil complaint alleging various violations of the
California Homeowner Bill of Rights. Defendants U.S. Bank, N.A. (“U.S. Bank”) and
Residential Credit Solutions, Inc. (“RCS”) move to dismiss Plaintiff’s complaint in its
entirety.1
[Doc. No. 4.] Plaintiff did not file a response in opposition, and Defendants
filed a Notice of Plaintiff’s Non-Opposition to the motion to dismiss. [Doc. No. 10.] The
Court determined the matter suitable for decision on the papers and without oral
argument pursuant to Civil Local Rule 7.1(d)(1). For the reasons set forth below, the
Court GRANTS Defendants’ motion to dismiss.
//
1
As noted in Defendants’ motion, Defendant Sage Point Lender Services, LLC (“Sage”) filed a Declaration of NonMonetary Status prior to the removal of this action to federal court. Plaintiff did not object, therefore, Defendant Sage is not
required to participate further in the proceeding, but is bound by any court order regarding the deed of trust that is the subject
of the action. Cal. Civ. Code § 2924l(d) (West).
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BACKGROUND
On September 8, 2005, Plaintiff executed a deed of trust against his residence at
974 Loma View, Chula Vista, CA 91910 as security for a loan of $430,400 from
Mortageit, Inc. [Cmpl. ¶ ¶ 1, 12.] On February 23, 2009, Plaintiff went into default, a
Substitution of Trustee was recorded, and a Notice of Default was recorded. [Doc. No.
4.] A Notice of Trustee’s Sale was recorded on May 27, 2009. [Id.] On October 15,
2012, an Assignment of Deed of Trust was recorded wherein all beneficial interest in the
deed of trust was assigned to Defendant U.S. Bank [Cmpl. ¶ 13], and on March 8, 2013 a
Substitution of Trustee was recorded substituting Defendant Sage, as trustee under the
deed of trust. [Doc. No. 4.] A Notice of Default and Election to Sell Under Deed of
Trust was recorded on January 16, 2014, and a Notice of Trustee’s Sale was recorded on
April 23, 2014. [Id.]
Plaintiff filed this action in the Superior Court of California, County of San Diego
on January 20, 2014 alleging claims for violations of the California Homeowner Bill of
Rights, codified as California Civil Code Sections 2923.5, 2924.17, 2924.19, 2924(a)(5),
2923.7, and 2923.6. Defendants removed the case to federal court on July 21, 2014, and
now move to dismiss Plaintiff’s claims under Federal Rule of Civil Procedure Rule
12(b)(6).
LEGAL STANDARD
A. Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6)
A Rule 12(b)(6) motion to dismiss challenges the legal sufficiency of the
complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations,
a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.
//
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Factual allegations must be enough to raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations, brackets, and
citations omitted).
In reviewing the motion to dismiss under Rule 12(b)(6), the court must assume the
truth of all factual allegations, and construe them in the light most favorable to the
nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).
However, “conclusory allegations of law and unwarranted inferences are not sufficient to
defeat a motion to dismiss,” Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th
Cir. 1998), and a court generally may not look beyond the complaint for additional facts,
United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); Parrino v. FHP, Inc., 146
F.3d 699, 705–06 (9th Cir. 1998).
Where a motion to dismiss is granted, “leave to amend should be granted ‘unless
the court determines that the allegation of other facts consistent with the challenged
pleading could not possibly cure the deficiency.’” DeSoto v. Yellow Freight Sys., Inc.,
957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. ServWell Furniture
Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). Therefore, where leave to amend would be
futile, the court may dismiss the claims without leave to amend. See id.
B. Unopposed Motions to Dismiss
A district court may properly grant an unopposed motion to dismiss pursuant to a
local rule where the local rule permits, but does not require, the granting of a motion for
failure to respond. See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995). Southern
District of California Civil Local Rule 7.1 provides: “If an opposing party fails to file the
papers in the manner required by Civil Local Rule 7.1(e)(2), that failure may constitute a
consent to the granting of a motion or other request for ruling by the court.” S.D. Cal
Civ. L. R. 7.1(f)(3)(c). “Although there is...a [public] policy favoring disposition on the
merits, it is the responsibility of the moving party to move towards that disposition at a
//
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reasonable pace, and to refrain from dilatory and evasive tactics.” In re Eisen, 31 F.3d
1447, 1454 (9th Cir. 1994) (affirming grant of motion to dismiss for failure to prosecute);
see also Ruiz v. Bank of America, N.A., 10-CV-500-MMA(BLM), 2010 WL 8510152
(S.D. Cal. Sept 30, 2010) (Anello J.) (dismissing action pursuant to local Rule 7.1 for
plaintiff’s failure to respond to a motion to dismiss); Yueh Chen v. PMC Bancorp, No.
09-CV-2704-WQH(BLM), 2010 WL 2943506 (S.D. Cal. July 23, 2010) (Hayes, J.)
(same).
C. Requests for Judicial Notice
Generally, a district court’s review on a 12(b)(6) motion to dismiss is limited to the
complaint. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). However, “a
court may take judicial notice of matters of public record,” id. at 689 (internal quotations
and citations omitted), and of “documents whose contents are alleged in a complaint and
whose authenticity no party questions, but which are not physically attached to the
pleading,” Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other
grounds by Gailbraith v. Cnty. Of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). Judicially
noticed facts “may be considered on a motion to dismiss.” Mullis v. United States Bankr.
Ct., 828 F.2d 1385, 1388 (9th Cir. 1987).
DISCUSSION
I. Unopposed Motion to Dismiss
Although the motion to dismiss in this case may be granted as unopposed pursuant
to Civil Local Rule 7.1, the Court finds it appropriate to consider the motion to dismiss
on the merits.
II. Requests for Judicial Notice
Defendants filed a Request for Judicial Notice concurrently with the motion to
dismiss, requesting the Court take judicial notice of certain public records relating to
Plaintiff’s complaint. [Doc. No. 5.] The public records include a Deed of Trust [Exh. 1],
//
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a Substitution of Trustee [Exh. 2], a Notice of Default and Election to Sell under Deed of
Trust [Exh. 3], a Notice of Trustee’s Sale [Exh. 4], an Assignment of Deed of Trust [Exh.
5], a Substitution of Trustee [Exh. 6], a Notice of Default and Election to Sell under Deed
of Trust [Exh. 7], and a Notice of Trustee’s Sale [Exh. 8].
Neither party questions the authenticity of these public records, therefore to the
extent that the Court references such documents herein, Defendant’s Request for Judicial
Notice is GRANTED.
III. Motion to Dismiss
A. First Cause of Action: Violation of Cal. Civ. Code Section 2923.5
Defendants move to dismiss Plaintiff’s Section 2923.5 claim. California Civil
Code Section 2923.5 prohibits a “mortgage servicer, mortgage trustee, beneficiary, or
authorized agent” from recording a notice of default until the mortgage servicer has
satisfied certain statutory outreach requirements.
Plaintiff alleges Defendants “did not contact [Plaintiff] with any foreclosure
alternatives and proceeded with filing a Notice of Default...Further, [Defendant Sage]
made no attempt to contact Plaintiff by phone as required by law.” [Cmpl. ¶ 17.]
Plaintiff also alleges that “the only telephonic communication [Plaintiff] was able to
maintain was with Defendant RESIDENTIAL CREDIT SOLUTIONS” and that those
communications were “both minimal and unhelpful; ultimately providing [Plaintiff] with
inadequate foreclosure prevention assistance.” [Id.] Plaintiff later contends Defendant
RCS “could not provide specifics regarding [Plaintiff’s] home loan or foreclosure
prevention alternatives,” but, “acted with bare minimum standards,” and “did send
Plaintiff written correspondence.” [Cmpl. ¶ 26.]
As a preliminary matter, Section 2923.5 requires a mortgage servicer to “contact
the borrower in person or by telephone in order to assess the borrower’s financial
situation and explore options for the borrower to avoid foreclosure.” Cal Civ. Code §
2923.5(a)(2). Although Defendant RCS is a mortgage servicer [Cmpl. ¶ ¶ 2], Defendant
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U.S. Bank is not [Cmpl. ¶ ¶ 3], so there is no cause of action against it under this
Section.2
Furthermore, Plaintiff acknowledges in his complaint Defendant RCS contacted
Plaintiff by phone and in writing, and that Defendant RCS acted with minimum standards
in providing Plaintiff with information regarding foreclosure alternatives. Indeed, as
Defendants note in the motion to dismiss, Plaintiff acknowledges he was permitted to
submit a loan modification package after the notice of default was recorded, even though
the application was denied. [Cmpl. ¶ ¶ 15, 19.] There is no requirement Plaintiff be
satisfied with the results of the mortgage servicer’s contact, as Section 2923.5 merely
“contemplates contact and some analysis of the borrower’s financial situation.” See
Davenport v. Litton Loan Servicing, LP, 725 F. Supp. 2d 862, 877 (N.D. Cal. 2010).
Plaintiff fails to state a plausible claim against Defendants under Section 2923.5.
Accordingly, this cause of action is DISMISSED.
B. Second Cause of Action: Violation of Cal. Civ. Code Section 2924.17
Plaintiff’s second claim arises under California Civil Code Section 2924.17, which
requires a mortgage servicer to review “competent and reliable evidence to substantiate
the borrower’s default and the right to foreclose” before recording a notice of default or
notice of sale in connection with a foreclosure. Section 2924.17(c) provides an additional
civil penalty for “multiple and repeated uncorrected” violations of the review
requirement, but only if the action is brought by a government entity. Defendants move
to dismiss Plaintiff’s second cause of action on grounds the claim “is not brought by a
government entity or an administrative proceeding [sic],” and “no sale has occurred to
date so the claim is not even ripe for economic damages.” [Doc. No. 4.]
2
Plaintiff’s complaint also fails to include allegations regarding whether Defendants are the types of entities described in
California Civil Code Section 2924.18(b), as required in Section 2923.5(g). If Defendants are not accurately described under
Section 2924.18(b), it is likely that Defendants’ conduct would instead be governed under Section 2923.55, which contains
provisions largely similar to those in Section 2923.5. However, the Court’s analysis would apply with equal force to an
identical claim brought by Plaintiff under Section 2923.5.
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Defendants’ argument misses the mark. Although this provision provides an
additional avenue of relief to specified government entities, it is not a prerequisite to a
claim under this Section. See Cal. Civ. Code § 2924.12(a)(1) (West) (“If a trustee’s deed
upon sale has not been recorded, a borrower may bring an action for injunctive relief to
enjoin a material violation of Section...2924.17”); Major v. Wells Fargo Bank, N.A., 14-
CV-998-LAB-RBB, 2014 WL 4103936 (S.D. Cal. Aug. 18, 2014) (“[Plaintiffs’] claim
that Wells Fargo did not ensure that they had reviewed all the information required under
Section 2924.17 is an intelligible allegation, but as Wells Fargo argues it lacks
materiality. The purpose of the statute is to make sure that lenders determine that they
have a right to foreclose before initiating foreclosure proceedings.”).
Nonetheless, Plaintiff’s claim is subject to dismissal. Section 2924.17(b) requires
a mortgage servicer “ensure that it has reviewed competent and reliable evidence to
substantiate the borrower’s default and the right to foreclose, including the borrower’s
loan status and loan information” before filing a notice of default or notice of sale. While
Plaintiff alleges he was refused a request to reapply for a second loan modification after
receiving a substantial increase in income [Cmpl. ¶ 19], there is no further allegation the
notices were inaccurate or incomplete, or that the mortgage servicer failed to review
“competent and reliable evidence” regarding Plaintiff’s default or the right of Defendants
to foreclose. These allegations are insufficient to bring an action under Section 2924.17,
therefore the second cause of action is DISMISSED.
C. Third Cause of Action: Violation of Cal. Civ. Code Section 2924.19
Pursuant to Section 2924.19(a)(1), “[i]f a trustee’s deed upon sale has not been
recorded, a borrower may bring an action for injunctive relief to enjoin a material
violation of Section 2923.5, 2924.17, or 2924.18.” Plaintiff makes no allegations for this
cause of action, but instead “request[s] damages due to lack of mortgage assistance and
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pursuit of foreclosure.”3 [Cmpl. ¶ 22.] Defendants move to dismiss on grounds that
Section 2924.19 only authorizes injunctive relief or monetary damages resulting from
material violations of Section 2923.5, 2924.17, or 2924.18, and cannot be pled as an
independent claim.
As discussed above, Plaintiff fails to state a plausible claim under Section 2923.5
or Section 2924.17. Plaintiff also fails to allege a violation of Section 2924.18, which
prohibits recording a notice of default or notice of sale while a borrower’s first lien loan
modification application is pending (commonly referred to as “dual tracking”). As such,
Plaintiff’s derivative third cause of action fails and is DISMISSED.
D. Fourth Cause of Action: Violation of Cal. Civ. Code Section 2924(a)(5)
Plaintiff’s fourth claim arises under Section 2924(a)(5), which requires written
notice be provided to a borrower “whenever a sale is postponed for a period of at least 10
business days.” Although Plaintiff alleges “no contact was made to confirm the
postponement of the Trustee sale date” [Cmpl. ¶ 24.], Plaintiff does not allege the sale
was postponed for at least 10 business days, or prejudice from the lack of formal notice.4
Therefore, the fourth cause of action is DISMISSED.
E. Fifth Cause of Action: Violation of Cal. Civ. Code Section 2923.7
Plaintiff’s fifth claim is brought pursuant to Section 2923.7, which sets forth:
“Upon request from a borrower who requests a foreclosure prevention alternative, the
mortgage servicer shall promptly establish a single point of contact and provide...direct
means of communication with the single point of contact.” Defendants move to dismiss
3
Plaintiff’s complaint does not contain a specific request for injunctive relief. The Court notes that within three days of
filing his complaint in state court, Plaintiff filed an ex parte application requesting a temporary restraining order prohibiting
Defendants from proceeding with a trustee’s sale or otherwise disposing of Plaintiff’s property. [See Doc. No. 1, Notice of
Removal, Exh. 4.] The record reflects that the ex parte hearing on Plaintiff’s application for a TRO was vacated by the state
court judge and not rescheduled prior to the action’s removal by Defendants one month later. Plaintiff did not renew his
request for injunctive relief in this Court subsequent to removal.
4 See Pantoja v. Countrywide Home Loans Inc., 640 F. Supp. 2d 1177, 1186 (N.D. Cal. 2009) (notice of default not deficient
where notice misidentified beneficiary under California Civil Code Section 2924c(b)(1) because plaintiff did not allege
prejudice); c.f. Lehner v. United States, 685 F.2d 1187, 1190-91 (9th Cir. 1982) (rejecting claim foreclosure was invalid
because notice of sale was sent to incorrect address).
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the fifth cause of action because Plaintiff acknowledges he was in contact with the
mortgage servicer, Defendant RCS, and because other allegations in the complaint appear
to indicate there was a “single point of contact” as defined in Section 2923.7. Defendants
also argue Plaintiff has failed to allege prejudice resulting from the purported failure to
create a single point of contact.
Plaintiff claims Defendants “did not provide a single point of contact
knowledgeable of both possible foreclosure prevention alternatives and the specifics of
Plaintiff’s home loan,” and “Plaintiff was never given the opportunity to contact
Defendants US. [sic] BANK or SAGE POINT.” [Cmpl. ¶ 26.] Plaintiff also alleges
Defendant RCS “could not provide specifics regarding his home loan or foreclosure
prevention alternatives.” [Id.] Section 2923.7 only requires the single point of contact be
knowledgeable of possible foreclosure prevention alternatives to ensure “the borrower is
considered for all foreclosure prevention alternatives offered by, or through, the mortgage
servicer.” Cal. Civ. Code § 2923.7(b) (West). Section 2923.7 does not impose a duty on
the single point of contact to “describe the foreclosure process, answer questions in a
timely and effective manner, and [provide] updates on the status of [a borrower’s] home.”
[Cmpl. ¶ 26]. Plaintiff acknowledges he was in contact with Defendant RCS, and that he
was able to submit an application for loan modification. [Cmpl. ¶ 26, 28.] Plaintiff’s
additional allegations are irrelevant, therefore, the fifth cause of action is DISMISSED.
F. Sixth Cause of Action: Violation of Cal. Civ. Code Section 2923.6
Finally, Plaintiff alleges Defendants violated Section 2923.6, which prohibits
recording a notice of default or notice of sale while a first lien loan modification
application is pending, and sets forth guidelines regarding denied and subsequent
applications.
Plaintiff alleges he “was not formally declined for loan modification” and
Defendant RCS “did not provide any means of appeal or other foreclosure prevention
alternatives with the denial of Plaintiff’s loan modification application.” [Cmpl. ¶ 28.]
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Defendants argue Plaintiff fails to allege Section 2923.6 applies to Defendants, Plaintiff
is not entitled protection under the statute, and that Plaintiff failed to allege prejudice
resulting from the procedural irregularity.
Section 2923.6 only applies “to mortgages or deeds of trust described in Section
2924.15.” Section 2924.15 states Section 2923.6 “shall apply only to first lien mortgages
or deeds of trust that are secured by owner-occupied residential real property containing
no more than four dwelling units.” Assuming the property at issue contains no more than
four dwelling units, Section 2923.6(i) further provides subdivisions (c)-(h) “shall not
apply to entities described in subdivision (b) of Section 2924.18,” which include entities
that foreclosed on 175 or fewer residential real properties with four or fewer dwelling
units in California during the preceding annual reporting period. Plaintiff fails to address
these requirements in the complaint, therefore there are insufficient allegations to
establish Section 2923.6 applies.
Assuming Section 2923.6 does apply, it does not require Plaintiff be provided
“means of appeal or other foreclosure prevention alternatives,” but rather it prohibits
recording “a notice of default or notice of sale...while the complete first lien loan
modification application is pending,” until “[t]he mortgage servicer makes a written
determination that the borrower is not eligible for a first lien loan modification, and any
appeal period...has expired.” Cal. Civ. Code § 2923.6(c) (West). Additionally, although
Plaintiff alleges he “was not given ample opportunity to reapply once a substantial
material change in his income occurred,” [Cmpl. ¶ 28], he fails to indicate whether his
change in income was documented and submitted to the mortgage servicer as required for
borrowers denied a first lien loan modification. Cal. Civ. Code § 2923.6(g) (West).
In sum, Plaintiff’s sixth cause of action lacks sufficient allegations to establish
grounds to his entitlement of relief. Therefore, it is DISMISSED.
//
//
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CONCLUSION
For the reasons set forth above, the Court DISMISSES Plaintiff’s complaint in its
entirety without prejudice. The Clerk of Court is instructed to close the case.
IT IS SO ORDERED.
Dated: September 17, 2014
Hon. Michael M. Anello
United States District Judge
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For the Northern District of California
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*E-filed 8/22/05*
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
MINNESOTA LIFE INSURANCE
COMPANY,
Plaintiff,
v.
RAUL MARTINEZ, as Administrator of
the ESTATE OF GILBERT RODRIGUEZ
MARTINEZ, and NADIA ANNETTE
MARTINEZ, also known as NADIA
ANNETTE NELSON, an individual,
Defendants.
/
NADIA ABELE,
Cross-Claimant,
v.
RAUL MARTINEZ, as Administrator of
the ESTATE OF GILBERT RODRIGUEZ
MARTINEZ, and FEDEX WEST, INC., a
corporation
Cross-defendants.
/
RAUL MARTINEZ, as Administrator of
the ESTATE OF GILBERT RODRIGUEZ
MARTINEZ,
Cross-claimant,
v.
No. C05-01669 HRL
ORDER GRANTING PLAINTIFF
MINNESOTA LIFE INSURANCE
COMPANY'S REQUEST TO APPEAR BY
TELEPHONE
Case 5:05-cv-01669-HRL Document 19 Filed 08/22/05 Page 1 of 3
United States District Court
For the Northern District of California
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NADIA ABELE aka NADIA ANNETTE
MARTINEZ aka NADIA ANNETTE
NELSON, FEDEX GROUND PACKAGE
SYSTEM, INC., FEDEX GROUND
PACKAGE SYSTEM, INC. AND
CERTAIN AFFILIATES WEALTH
ACCUMULATION 401(k) PLAN; and
DOES 1-5, inclusive,
Cross-defendants.
/
Having considered plaintiff Minnesota Life Insurance Company's request to appear by
telephone at the Case Management Conference, set for August 23, 2005 at 1:30 p.m., and good
cause appearing, the court grants the request.
IT IS SO ORDERED.
Dated: 8/22/05
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE
Case 5:05-cv-01669-HRL Document 19 Filed 08/22/05 Page 2 of 3
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:
Heather B. Hoesterey [email protected], [email protected]
Robert D. Phillips , Jr [email protected], [email protected]
Stephen S. Picone [email protected]
William George Priest , Jr [email protected], [email protected]
* Counsel are responsible for providing copies of this order to co-counsel.
Dated: 8/22/05
/s/ RNR
Chambers of Magistrate Judge Lloyd
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
MICHAEL E. JACQUES,
Plaintiff,
v.
JUNG, et al.,
Defendants.
No. 2:24-cv-0477 DB P
ORDER FOR PAYMENT OF INMATE
FILING FEE
To: Director of the California Department of Corrections and Rehabilitation, 1515 S Street,
Sacramento, California 95814:
Plaintiff, a state prisoner proceeding in forma pauperis, is obligated to pay the statutory
filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee of twenty
percent (20%) of the greater of (a) the average monthly deposits to plaintiff’s trust account; or (b)
the average monthly balance in plaintiff’s account for the 6-month period immediately preceding
the filing of this action. 28 U.S.C. § 1915(b)(1). Upon payment of that initial partial filing fee,
plaintiff will be obligated to make monthly payments in the amount of twenty percent of the
preceding month’s income credited to plaintiff’s trust account. The California Department of
Corrections and Rehabilitation is required to send to the Clerk of the Court the initial partial filing
fee and thereafter payments from plaintiff’s prison trust account each time the amount in the
account exceeds $10.00, until the statutory filing fee of $350.00 is paid in full. 28 U.S.C. §
1915(b)(2).
Case 2:24-cv-00477-TLN-SCR Document 7 Filed 06/25/24 Page 1 of 2
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Good cause appearing therefore, IT IS HEREBY ORDERED that:
1. The Director of the California Department of Corrections and Rehabilitation or a
designee shall collect from plaintiff’s prison trust account an initial partial filing fee in
accordance with the provisions of 28 U.S.C. § 1915(b)(1) as set forth in this order and shall
forward the amount to the Clerk of the Court. The payment shall be clearly identified by the
name and number assigned to this action.
2. Thereafter, the Director of the California Department of Corrections and Rehabilitation
or a designee shall collect from plaintiff’s prison trust account monthly payments in an amount
equal to twenty percent (20%) of the preceding month’s income credited to the prisoner’s trust
account and forward payments to the Clerk of the Court each time the amount in the account
exceeds $10.00 in accordance with 28 U.S.C. § 1915(b)(2), until the $350.00 filing fee for this
action has been paid in full. The payments shall be clearly identified by the name and number
assigned to this action.
3. The Clerk of the Court is directed to serve a copy of this order and a copy of plaintiff’s
signed in forma pauperis affidavit on the Director, California Department of Corrections and
Rehabilitation, 1515 S Street, Sacramento, California 95814.
4. The Clerk of the Court is directed to serve a copy of this order on the Financial
Department of the court.
Dated: June 24, 2024
DLB:9/
DB prisoner inbox/civil rights/S/jacq0477.cdc
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DOUGLAS WAYNE PERRY, a California
Resident d/b/a Click 1003,
Plaintiff,
v.
PAUL and SUZIE ZUPAN, California
Residents, Latitude Financial,
Inc., a California Corporation
d/b/a www.latfin.com, and DOES 1-
100, inclusive,
Defendants.
CIV. S-04-0868 DFL PAN PS
FINDINGS AND RECOMMENDATIONS
— —
Plaintiff is Douglas Wayne Perry, a California resident.
Defendants are Latitude Financial, Inc., a California
corporation, and Paul and Suzie Zupan.
Plaintiff alleges defendants violated his registered
copyright in “Click 1003,” a script written in hypertext markup
language (HTML) that functions as a unique program that compiles
Case 2:04-cv-00868-JAM-EFB Document 23 Filed 11/10/05 Page 1 of 7
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data furnished by borrowers allowing them to complete loan
applications by internet and interacts with brokers’ and lenders’
programs facilitating a loan transaction. Plaintiff alleges
defendants copied Click 1003 and published it on their web site,
making only minor changes in the process.
On April 7, 2005, Paul and Suzie Zupan moved for summary
judgment denying they copied plaintiff’s work and denying that
their “Online 1003" software is “substantially similar” to
plaintiff’s program.
A party may move, without or without supporting
affidavits, for summary judgment and the judgment sought shall be
rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law. Fed. R. Civ. P. 56(a)-(c).
An issue is “genuine” if the evidence is such that a
reasonable jury could return a verdict for the opposing party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). A fact is
“material” if it affects the right to recover under applicable
substantive law. Id. The moving party must submit evidence that
establishes the existence of an element essential to that party’s
case and on which that party will bear the burden of proof at
trial. Celotex Corporation v. Catrett, 477 U.S. 317, 322 (1986).
The moving party “always bears the initial responsibility of
informing the district court of the basis for its motion and
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identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any’” that the moving party believes
demonstrate the absence of a genuine issue of material fact.
Id., at 323. If the movant does not bear the burden of proof on
an issue, the movant need only point to the absence of evidence
to support the opponent’s burden. To avoid summary judgment on
an issue upon which the opponent bears the burden of proof, the
opponent must “go beyond the pleadings and by her own affidavits,
or by the “‘depositions, answers to interrogatories, and
admissions on file,’ designate ‘specific facts showing that there
is a genuine issue for trial.’” Id., at 324. The opponent’s
affirmative evidence must be sufficiently probative that a jury
reasonably could decide the issue in favor of the opponent.
Matsushita Electric Industrial Co., Inc. v. Zenith Radio
Corporation, 475 U.S. 574, 588 (1986).
Fed. R. Civ. P. 56(e) provides that “supporting and
opposing affidavits shall be made on personal knowledge, shall
set forth such facts as would be admissible in evidence, and
shall show affirmatively that the affiant is competent to testify
to the matters stated therein.” Nevertheless, the Supreme Court
has held that the opponent need not produce evidence in a form
that would be admissible at trial in order to avoid summary
judgment. Celotex, 477 U.S. at 324. Rather, the questions are
(1) whether the evidence could be submitted in admissible form
and (2) “if reduced to admissible evidence” would it be
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sufficient to carry the party’s burden at trial. Id., at 327;
Fraser v. Goodale, 342 F.3d 1032 (9th Cir. 2003).
A verified complaint based on personal knowledge setting
forth specific facts admissible in evidence is treated as an
affidavit. Schroeder v. McDonald, 55 F.3d 454 (9th Cir. 1995);
McElyea v. Babbitt, 833 F.2d 196 (9th Cir. 1987). A verified
motion based on personal knowledge in opposition to a summary
judgment motion setting forth facts that would be admissible in
evidence also functions as an affidavit. Johnson v. Meltzer, 134
F.,3d 1393 (9th Cir. 1998); Jones v. Blanas, 393 F.3d 918 (9th
Cir. 2004). Defects in opposing affidavits may be waived if no
motion to strike or other objection is made. Scharf v. United
States Attorney General, 597 F.2d 1240 (9th Cir. 1979).
Only the following facts are undisputed: Plaintiff
Douglas Wayne Perry maintains an internet site at
www.click1003.com; defendants Paul and Suzie Zupan are
individuals; defendant Latitude Financial, Inc., is a licensed
mortgage broker and maintains an internet site at www.latfin.com.
See parties’ respective Statement(s) of Undisputed Facts.
Suzie Zupan presented no denial and no other evidence
and, accordingly, her motion should be denied.
Latitude has not moved for summary judgment.
In support of his motion, Paul Zupan submitted a
declaration admitting that he created a page on defendant
Latitude’s web site known as Online 1003 to gather information
from prospective borrowers to complete the Fannie Mae 1003 form
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used by Latitude. He avers he has compared the two scripts and
that only one page bears any similarity. Conspicuously, he does
not in his declaration deny copying that part.
Plaintiff opposes. He presents no direct evidence of
copying but avers in his declaration that the Latitude online
application contains 200 unique field names created by plaintiff
that are not part of the Fannie Mae application, that Online 1003
contains unnamed fields that are useless to Latitude, and
contains plaintiff’s typographical errors, which is substantial
circumstantial evidence of verbatim copying.
In reply, defendants meet plaintiff’s evidence with Paul
Zupan’s declaration that to develop Latitude’s internet site he
used HTML script from “similar forms I found on the internet.”
(Both assert in their opposing brief they did not copy
plaintiff’s work but the statement is unsworn.) Most of
defendants’ arguments are off target. Defendants contend
plaintiff cannot claim copyright protection for field names,
programming language and the like but that is not plaintiff’s
claim.
Defendants, who represent themselves, appear to rest
their defense in one way or another upon Landsberg v. Scrabble
Crossword Game Players, Inc., 736 F.2d 485 (9th Cir. 1984), cert.
denied, 469 U.S. 1037 (1984). That decision first holds that to
make out a case of copyright infringement plaintiff must
establish that he owns the copyright in the work in question,
that defendant had access to it and that there is “substantial
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similarity” of the ideas and their expression. Second,
recognizing that copyright protects only an author’s expression
of an idea and not the idea itself, Landsberg draws a distinction
between fictional works on the one hand and factual works on the
other, which permit only a narrow range of expression such that
substantial similarity must amount to verbatim reproduction or
very close paraphrasing. In passing, the court noted the
doctrine of “scenes à faire.”
Literally, “scenes à faire” in French means “scenes to be
made.” It is a principle of copyright law that elements of a
creative work are not protected when they are required by or
customary to the genre of the work. For example, a spy novel is
expected to contain elements such as numbered Swiss bank
accounts, a femme fatale, and various spy gadgets hidden in
wristwatches, belts shoes and other personal effects. These
elements are not protected by copyright, though specific
sequences and compositions of them can be. See Ets-Hokin v. Skyy
Spirits, Inc., 323 F.3d 763 (9th Cir. 2003)(“scenes à faire”
upheld as an affirmative defense, upon which defendant, not
plaintiff, bears the burden of proof).
In other words, defendants claim that despite plaintiff’s
registered copyright, the content of his program is not protected
without proof of “slavish copying.” But that is exactly what
plaintiff does claim and he has supported the claim with evidence
that defendant simply ignores (if he does not in fact admit),
e.g., copying of his program including his typographical errors.
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Accordingly, I recommend that Paul Zupan’s motion also be
denied.
Based on the parties’ contentions, the court believes
defendants’ defense to plaintiff’s claims may better lie upon the
decision in Baker v. Selden, 101 U.S. 99 (1879). Should the
district judge adopt these findings and recommendations,
defendants may file a second motion for summary judgment within
thirty days of that order.
These findings and recommendations are submitted to the
Honorable David F. Levi, the United States District Judge
assigned to this case. 28 U.S.C. § 636(b)(l). Written
objections may be filed within ten days after being served with
these findings and recommendations. The document should be
captioned “Objections to Magistrate Judge’s Findings and
Recommendations.” The failure to file objections within the
specified time may waive the right to appeal the District Court’s
order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Dated: November 10, 2005.
/s/ Peter A. Nowinski
PETER A. NOWINSKI
Magistrate Judge
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NORTHERN DISTRICT OF CALIFORNIA
SCOTTSDALE INSURANCE
COMPANY,
Plaintiff(s),
v.
HUDSON SPECIALTY INSURANCE
COMPANY,
Defendant( s). _________________________ /
CASE NO. 3:15-cv-02896-HSG
STIPULATION AND [PROPOSED]
ORDER SELECTING ADR PROCESS
Counsel report that they have met and confened regarding ADR and have reached the
following stipulation pursuant to Civil L.R. 16-8 and ADR L.R. 3-5: ·
The parties agree to participate in the following ADR process:
Court Processes:
D Non-binding Arbitration (ADR L.R. 4)
12] Early Neutral Evaluation (ENE) (ADR L.R. 5)
D Mediation (ADR L.R. 6)
(Note: Parties who believe that an early settlement conference with a Magistrate Judge is
appreciably more likely to meet their needs than any other form of ADR must participate in an
ADR phone conference and may not file this form. They must instead file a Notice of Need for
ADR Phone Conference. See Civil Local Rule 16-8 andADR L.R. 3-5)
Private Process:
D Private ADR (please identify process and provider) ________ _
The parties agree to hold the ADR session by:
12] the presumptive deadline (!'he deadline is 90 days from the date of the order
referring the case to an ADR process unless otherwise ordered.)
D other requested deadline-----------=----------
Dated: C, I /z :r/~tG I CJC.~
Dated: OfD{2."'t/llf
CONTINUE TO FOLLOWING PAGE
i(ephen M. Hayes
Stephen P. Ellingson
Jonathan K. Myers
Attorneys for Hudson Spec. Ins. Co.
James R. Tenero
Christopher C. Ranck
Attorney for Scottsdale Ins. Co.
Case 4:15-cv-02896-HSG Document 31 Filed 06/28/16 Page 1 of 2
[PROPOSED] ORDER
Dated:
0 The parties' stipulation is adopted and IT IS SO ORDERED.
0 The parties' stipulation is modified as follows, and IT IS SO ORDERED.
HONORABLE HAYWOOD S. GILLIAM, JR.
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF CALIFORNIA
When filing this document in ECF, please be sure to use the appropriate Docket
Event, e.g., "Stipulation and Proposed Order Selecting Mediation."
Rev. 12111
Page 2 of2
6/28/2016 X
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BENJAMIN B. WAGNER
United States Attorney
AUDREY B. HEMESATH
Assistant United States Attorney
501 I Street, Suite 10-100
Sacramento, CA 95814
Telephone: (916) 554-2700
Email: [email protected]
Attorneys for Defendants
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CHENGYI TIAN,
Plaintiff,
v.
ALEJANDRO MAYORKAS, et al.,
Defendants.
)
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)
Case No.: 2:14-cv-939 MCE EFB
JOINT STIPULATION AND ORDER
RE: DISMISSAL
This is an immigration case in which plaintiff has challenged the alleged delay in the
adjudication of her adjustment of status application by U.S. Citizenship and Immigration
Services (USCIS). Plaintiff’s application has now been approved, and the parties stipulate to
dismissal of this lawsuit pursuant to Fed. R. Civ. P. 41(a)(2). Each side to bear its own costs of
///
///
///
///
///
///
Case 2:14-cv-00939-MCE-EFB Document 12 Filed 01/16/15 Page 1 of 2
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litigation.
Dated: January 13, 2015 Respectfully submitted,
BENJAMIN B. WAGNER
United States Attorney
s/ Audrey B. Hemesath
AUDREY B. HEMESATH
Assistant United States Attorney
s/ Douglas Lehrman
DOUGLAS LEHRMAN
Attorney for the Plaintiff
IT IS SO ORDERED.
Dated: January 15, 2015
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1-PA/3568092.1 STIPULATION
ANDREW J. GRAY IV (CA Bar No. 202137)
BRUNO TARABICHI (CA Bar No. 215129)
MORGAN, LEWIS & BOCKIUS LLP
2 Palo Alto Square
3000 El Camino Real, Suite 700
Palo Alto, CA 94306-2212
Tel: 650.843.4000
Fax: 650.843.4001
Attorneys for Plaintiff
CNF Inc.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
CNF Inc.,
Plaintiff,
vs.
CONWAYCORPORATION.COM, CONWAYCENTRAL.COM, CONWAYCENTRALEXPRESS.COM, and
MENLOWORLDWIDEFORWARDING.COM,
Defendants.
Case No. C 05 03236
STIPULATION
REQUESTING
CONTINUANCE OF THE
INITIAL CASE
MANAGEMENT
CONFERENCE TO MARCH
31, 2006
Pursuant to Local Rules 7-12 and 16-2(d), IT IS HEREBY STIPULATED AND
AGREED, by and between the parties’ undersigned counsel, subject to the Court’s approval, that
the Initial Case Management Conference be continued from December 16, 2005 at 8:30 a.m. to
March 31, 2006 at 8:30 a.m.and that the Joint Case Management Statement be due ten days
before the March 31, 2006 Case Management Conference.
Good cause exists for the continuance request as the parties have agreed in principle to a
settlement of the matter and need the additional time to finalize a written agreement, which, if
completed, will obviate the need for a Case Management Conference.
//
//
Case 3:05-cv-03236-CRB Document 18 Filed 12/12/05 Page 1 of 2
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1-PA/3568092.1
2
STIPULATION
Dated: December 8, 2005 MORGAN, LEWIS & BOCKIUS LLP
By /s/ Bruno Tarabichi
Andrew J. Gray
Bruno Tarabichi
Attorneys for Plaintiff
CNF Inc.
Dated: December 8, 2005 LAW OFFICES OF MATTHEW L. KABAK
By /s/ Matthew L. Kabak
Matthew L. Kabak
Attorneys for Defendants
PURSUANT TO THE STIPULATION, IT IS SO ORDERED
Date:
Honorable Judge Charles R. Breyer
Dec. 12, 2005
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORN
I
A
APPROVED
Judge Charles R. Breyer
Case 3:05-cv-03236-CRB Document 18 Filed 12/12/05 Page 2 of 2 |
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SOLYNDRA, LLC,
Plaintiff,
v.
SUNTECH POWER HOLDINGS CO.,
LTD., et al.,
Defendants.
Case No. 12-cv-05272-SBA (JSC)
NOTICE AND ORDER REGARDING
SETTLEMENT CONFERENCE
TO ALL PARTIES AND COUNSEL OF RECORD:
The above matter was referred to Magistrate Judge Jacqueline Scott Corley for
settlement purposes.
You are hereby notified that a Settlement Conference for counsel only is scheduled for
June 9, 2015, at 9:30 a.m., in Courtroom F, 15th Floor, Federal Building, 450 Golden Gate
Avenue, San Francisco, California 94102.
1. Lead trial counsel shall appear at the Settlement Conference.
2. At least 10 days prior to the Settlement Conference, Plaintiff shall serve a written
demand on each defendant.
3. Each party shall prepare a Settlement Conference Statement, which must be
LODGED with the undersigned’s Chambers (NOT electronically filed) no later than June 5, 2015.
Please 3-hole punch the document at the left side.
4. Each party shall also submit their Settlement Conference Statement in .pdf format
and email their statement to [email protected].
5. The Settlement Conference Statement shall be served on opposing counsel. Any
party may submit an additional confidential statement to the Court. The contents of this
Case 4:12-cv-05272-SBA Document 139 Filed 05/05/15 Page 1 of 2
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United States District Court
Northern District of California
confidential statement will not be disclosed to the other parties.
6. The Settlement Conference Statement shall include at least the following:
a. A brief statement of the facts of the case.
b. A brief statement of the claims and defenses including, but not limited to,
statutory or other grounds upon which the claims are founded, and a candid
evaluation of the parties’ likelihood of prevailing on the claims and defenses;
and a description of the major issues in dispute.
c. A summary of the proceedings to date and any pending motions.
d. The relief sought.
e. Any discrete issue that, if resolved, would facilitate the resolution of the case.
f. The party’s position on settlement, including present demands and offers and a
history of past settlement discussions.
7. At the June 9, 2015 Settlement Conference counsel shall be prepared to set a date
for a further Settlement Conference at which the parties must attend.
8. The parties shall notify Chambers immediately at (415) 522-2172 if this case settles
prior to the date set for the Settlement Conference.
IT IS SO ORDERED.
Dated: May 5, 2015
______________________________________
JACQUELINE SCOTT CORLEY
United States Magistrate Judge
Case 4:12-cv-05272-SBA Document 139 Filed 05/05/15 Page 2 of 2 |
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1
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
DONALD CATHERINE,
Plaintiff,
v.
WELLS FARGO BANK, NA,
Defendant.
No. 2:16-cv-0878 MCE CKD PS
ORDER
This matter was referred to a United States Magistrate Judge pursuant to Local Rule
302(c)(21).
On July 25, 2016, the magistrate judge filed findings and recommendations herein which
were served on the parties and which contained notice to the parties that any objections to the
findings and recommendations were to be filed within fourteen days. Objections to the findings
and recommendations have been filed.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this
court has conducted a de novo review of this case. Having carefully reviewed the entire file, the
court finds the findings and recommendations to be supported by the record and by proper
analysis.
/////
/////
Case 2:16-cv-00878-MCE-CKD Document 25 Filed 08/22/16 Page 1 of 2
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Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed July 25, 2016 are adopted in full;
2. Defendant’s motion to dismiss (ECF No. 6) is granted without leave to amend; and
3. Defendant Wells Fargo is dismissed with prejudice.
IT IS SO ORDERED.
Dated: August 19, 2016
Case 2:16-cv-00878-MCE-CKD Document 25 Filed 08/22/16 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-casd-3_16-cv-02864/USCOURTS-casd-3_16-cv-02864-0/pdf.json | 550 | Prisoner - Civil Rights (U.S. defendant) | 42:1983pr Prisoner Civil Rights | 1 FI LSD
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 FLOYD ANTHONY RODGERS,
Patient #067265-9,
Case No.: 3:16-cv-02864-BEN-JMA
12 ORDER: Plaintiff,
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(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS;
and
vs. 14
SUPERIOR COURT OF SAN DIEGO,
Defendants.
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16 (2) DISMISSING CIVIL ACTION
FOR FAILING TO STATE A CLAIM
UPON WHICH RELIEF CAN BE
GRANTED PURSUANT TO
28 U.S.C. § 1915(e)(2)(B)(ii)
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21 Floyd Anthony Rodgers (“Plaintiff’), proceeding pro se, filed this civil rights
complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 while he was civilly detained at
Atascadero State Hospital (“ASH”) in Atascadero, California.1 (Doc. No. 1.) Plaintiff
did not prepay the civil filing fee required by 28 U.S.C. § 1914(a); instead he filed a
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27 It appears Plaintiffis no longer civilly detained; on October 12,2016, he filed a Notice ofChange of
Address indicating he has been released from custody and is now residing in Chula Vista, California.
(Doc. No. 4.) 28
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Case 3:16-cv-02864-BEN-JMA Document 3 Filed 03/01/17 PageID.<pageID> Page 1 of 9
Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (Doc.
No. 2.)
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3 Motion to Proceed IFP
All parties instituting any civil action, suit or proceeding in a district court ofthe
United States, except an application for writ ofhabeas corpus, must pay a filing fee of
$400.2 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiffs failure to
prepay the entire fee only ifhe is granted leave to proceed IFP pursuant to 28 U.S.C.
§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
“Unlike other indigent litigants, prisoners proceeding IFP must pay the full amount
offiling fees in civil actions and appeals pursuant to the PLRA [Prison Litigation Reform
Act].” Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 2002). As defined by the PLRA, a
“prisoner” is “any person incarcerated or detained in any facility who is accused of,
convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or
the terms and conditions ofparole, probation, pretrial release, or diversionary program.”
28 U.S.C. § 1915(h).
A “civil detainee” is not a “prisoner” within the meaning ofthe PLRA. Andrews v.
King, 398 F.3d 1113, 1122 (9th Cir 2005); Agyeman, 296 F.3d at 886 (holding that INS
detainee not also facing criminal charges is not a “prisoner” under § 1915); see also Page
v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000) (person confined under California’s
Sexually Violent Predator Law, while a “a ‘prisoner’ within the meaning ofthe PLRA
when he served time for his conviction,... ceased being a ‘prisoner’ when he was
released from the custody ofthe Department ofCorrections.”); Mullen v. Surtshin, 590 F.
I.
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2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of$50. See
28 U.S.C. § 1914(a) (Judicial Conference Schedule ofFees, District Court Misc. Fee Schedule, § 14 (eff.
June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed
IFP. Id.
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Case 3:16-cv-02864-BEN-JMA Document 3 Filed 03/01/17 PageID.<pageID> Page 2 of 9
Supp. 2d 1233, 1240 (N.D. Cal. 2008) (holding plaintiff “adjudicated NGI [not guilty by
reason ofinsanity] and committed to [Napa State Hospital] as a result ofthat
adjudication” was “not a prisoner as defined by the PLRA.”).
As alleged in his Complaint, Plaintiffwas a civilly committed patient at ASH, and
not a “prisoner” as defined by 28 U.S.C. § 1915(h) when he filed this action. (Doc. No.
I.) Therefore, the filing fee provisions of28 U.S.C. § 1915(b) do not apply. Andrews,
398 F.3d at 1122. Accordingly, the Court has reviewed Plaintiffs affidavit of assets as it
would for any other non-prisoner litigant seeking IFP status, and finds it is sufficient to
show that he is unable to pay the fees or post securities required to maintain this action.
See S.D. Cal. CivLR 3.2(d). Plaintiffs Motion to Proceed IFP pursuant to 28 U.S.C. §
1915(a) is therefore GRANTED. (Doc. No. 2.)
II. Screening Pursuant to 28 U.S.C. § 1915(e)(2)
A. Standard ofReview
A complaint filed by any person proceeding in forma pauperis is subject to sua
sponte dismissal ifit is “frivolous, malicious, fail[s] to state a claim upon which relief
may be granted, or seek[s] monetary relieffrom a defendant immune from such relief.”
28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per
curiam) (holding that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to
prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection
1915(e) not only permits, but requires a district court to dismiss an in forma pauperis
complaint that fails to state a claim.”).
All complaints must contain “a short and plain statement ofthe claim showing that
the pleader is entitled to relief.” Fed. R. Crv. P. 8(a)(2). Detailed factual allegations are
not required, but “[t]hreadbare recitals ofthe elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,678 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining
whether a complaint states a plausible claim for relief [is]... a context-specific task that
requires the reviewing court to draw on itsjudicial experience and common sense.” Id.
3:16-cv-02864-BEN-JMA
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The “mere possibility ofmisconduct” falls short ofmeeting this plausibility standard. Id.;
see also Moss v. US. Secret Service, 572 F.3d 962, 969 (9th Gir. 2009).
“When there are well-pleaded factual allegations, a court should assume their
veracity, and then determine whether they plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)
(“[W]hen determining whether a complaint states a claim, a court must accept as true all
allegations ofmaterial fact and must construe those facts in the light most favorable to
the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that
§ 1915(e)(2) “parallels the language ofFederal Rule ofCivil Procedure 12(b)(6)”).
However, while the court “ha[s] an obligation where the petitioner is pro se,
particularly in civil rights cases, to construe the pleadings liberally and to afford the
petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.
2010) (citing Bretz v. Kelman, 773 F.2d 1026,1027 n.l (9th Cir. 1985)), it may not
“supply essential elements of claims that were not initially pled.” Ivey v. Board of
Regents ofthe University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
Plaintiffs Complaint
Plaintiff alleges that he was criminally convicted of charges of“serious great
bodily injury” on November 22, 2002, in a San Diego Superior Court. (Compl. at 3.)
Plaintiff claims his sentence resulted in “double jeopardy,” as well as “cruel and unusual
punishment,” in violation ofhis constitutional rights. (Id.) Plaintiffwas then housed in
the custody ofthe California Department ofCorrections and Rehabilitation (“CDCR”) for
fifteen years. (Id.)
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23 C. Statute ofLimitations
24 Plaintiffs claims arose when he was sentenced in 2002. (Doc. No. 1 at 1, 3-4.) “A
claim may be dismissed [for failing to state a claim] on the ground that it is barred by the
applicable statute oflimitations only when ‘the running ofthe statute is apparent on the
face ofthe complaint.”’ Von Saher v. Norton Simon Museum ofArt at Pasadena, 592
F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992,
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997 (9th Cir. 2006)). ‘“A complaint cannot be dismissed unless it appears beyond doubt
that the plaintiff can prove no set offacts that would establish the timeliness ofthe
claim.’” Id. (quoting Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir. 1995));
see also Cervantes v. City ofSan Diego, 5 F.3d 1273, 1276-77 (9th Cir. 1993) (where the
running ofthe statute oflimitations is apparent on the face of a complaint, dismissal for
failure to state a claim is proper, so long as Plaintiffis provided an opportunity to amend
in order to allege facts which, ifproved, might support tolling); see also Tahoe-Sierra
Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764, 788 (9th Cir. 2000)
(court may raise the defense ofstatute oflimitations sua sponte); Hughes v. Lott, 350
F.3d 1157, 1163 (11th Cir. 2003) (upholding sua sponte dismissal under 28 U.S.C. §
1915(e)(2)(B) ofprisoner’s time-barred complaint).
Because section 1983 contains no specific statute oflimitation, federal courts apply
the forum state’s statute oflimitations for personal injury actions. Jones v. Blanas, 393
F.3d 918, 927 (9th Cir. 2004); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004);
Finkv. Shedler, 192 F.3d911, 914 (9th Cir. 1999). Before 2003, California’s statute of
limitations was one year. Jones, 393 F.3d at 927. Effective January 1, 2003, the
limitations period was extended to two years. Id. (citing Cal. Civ. Proc. Code § 335.1).
The law ofthe forum state also governs tolling. Wallace v. Kato, 549 U.S. 384, 394
(2007) (citing Hardin v. Straub, 490 U.S. 536, 538-39 (1989)); Jones, 393 F.3d at 927
(noting that in actions where the federal court borrows the state statute oflimitation, the
federal court also borrows all applicable provisions for tolling the limitations period
found in state law).
Under California law, the statute oflimitations for prisoners serving less than a life
sentence is tolled for two years. Cal. Crv. Proc. Code § 352.1(a); Johnson v. California,
207 F.3d 650, 654 (9th Cir. 2000), overruled on other grounds, 543 U.S. 499 (2005).
Accordingly, the effective statute oflimitations for most California prisoners is three
years for claims accruing before January 1, 2003 (one year limitations period plus two
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year statutory tolling), and four years for claims accruing thereafter (two year limitations
period plus two years statutory tolling).
Unlike the length ofthe limitations period, however, “the accrual date of a § 1983
cause of action is a question offederal law that is not resolved by reference to state law.”
Wallace, 549 U.S. at 388; Hardin, 490 U.S. at 543-44 (federal law governs when a
§ 1983 cause of action accrues). “Under the traditional rule ofaccrual... the tort cause of
action accrues, and the statute oflimitation begins to run, when the wrongful act or
omission results in damages.” Wallace, 549 U.S. at 391. Put another way, “[u]nder
federal law, a claim accrues when the plaintiffknows or has reason to know ofthe injury
which is the basis ofthe action.” Maldonado, 370 F.3d at 955; TwoRivers v. Lewis, 174
F.3d 987, 991 (9th Cir. 1999).
In this case, the “wrongful act” which is alleged to have caused Plaintiffharm
occurred almost fifteen years before Plaintifffiled his Complaint in this action, and far
outside California’s statute oflimitations, even including all presumed periods oftolling
provided by statute, or pending the exhaustion of any administrative remedies. Wallace,
591 U.S. at 391; see also Maldonado, 370 F.3d at 955; Cal. Code Crv. Proc. § 335.1
(tolling statute oflimitations “for a maximum of 2 years” during a prisoner’s
incarceration); Jones, 393 F.3d at 927; Brown v. Valojf, 422 F.3d 926, 943 (9th Cir. 2005)
(finding that “the applicable statute oflimitations must be tolled while a prisoner
completes the mandatory exhaustion process” required by 42 U.S.C. § 1997e(a)).3
Specifically, Plaintiff claims he was denied his constitutional rights when he was
sentenced in 2002. (See Compl. at 1, 3-4.) Therefore, he had “reason to know” the basis
ofhis cause of action in 2002, but did not file this case until November 21, 2016— more
than a decade after the limitations period elapsed. See Maldonado, 370 F.3d at 955.
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3 In fact, Plaintiff concedes that he did not exhaust available administrative remedies prior to filing suit.
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Plaintiffs claims could be considered timely if, in his Complaint, he alleges facts
sufficient to show the limitations period may be equitably tolled. See Cervantes, 5 F.3d
at 1276-77. Generally, federal courts also apply the forum state’s law regarding equitable
tolling. Fink, 192 F.3d at 914; Bacon v. City of Los Angeles, 843 F.2d 372, 374 (9th
Cir.1988). Under California law, Plaintiffmust meet three conditions to equitably toll the
statute oflimitations: (1) he must have diligently pursued his claim; (2) his situation must
be the product offorces beyond his control; and (3) Defendants must not be prejudiced
by the application of equitable tolling. See Hull v. Central Pathology Serv. Med Clinic,
28 Cal. App. 4th 1328, 1335 (Cal. Ct. App. 1994); Addison v. State ofCalifornia, 21
Cal.3d 313, 316-17 (Cal. 1978); Fink, 192 F.3d at 916.
The Court finds Plaintiffs Complaint lacks any factual allegations that, ifproven,
would support any plausible claim for equitable tolling. See Cervantes, 5 F.3d at 1277;
Iqbal, 556 U.S. at 679. Accordingly, the Court finds Plaintiffs claims are barred by the
statute oflimitations, and his entire Complaint must be dismissed for failing to state a
claim upon which section 1983 reliefmay be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii);
Barren, 152 F.3d at 1194.
Criminal Proceedings
To the extent that Plaintiffseeks damages based on an allegedly unconstitutional
criminal conviction and sentence, he may not pursue those claims in a civil rights action
pursuant to 42 U.S.C. § 1983 without first showing that his conviction has already been
invalidated. See Heck v. Humphry, 512 U.S. 477, 486-87 (1994).
In Heck, the Supreme Court held:
in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiffmust prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into
question by a federal court’s issuance of a writ ofhabeas
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corpus, 28 U.S.C. § 2254. A claim for damages bearing that
relationship to a conviction or sentence that has not been so
invalidated is not cognizable under § 1983.
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“Suits challenging the validity ofthe prisoner’s continued incarceration lie within
‘the heart ofhabeas corpus,’ whereas ‘a § 1983 action is a proper remedy for a state
prisoner who is making a constitutional challenge to the conditions ofhis prison life, but
not to the fact or length ofhis custody.’” Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir.
2003), quoting Preiser v. Rodriguez, 411 U.S. 475, 489-99 (1973) (holding that a writ of
habeas corpus is “explicitly and historically designed” to provide a state prisoner with the
“exclusive” means to “attack the validity ofhis confinement” in federal court).
Plaintiffs claims amount to an attack on the validity ofhis underlying criminal
conviction and sentence, and may not proceed pursuant to § 1983, unless his conviction
has already been invalidated. Heck, 512 U.S. at 486-87; Ramirez, 334 F.3d at 855-56
(“Absent such a showing, ‘[e]ven a prisoner who has fully exhausted available state
remedies has no cause of action under § 1983.’”), quoting Heck, 512 U.S. at 489. Such
claims “necessarily imply the invalidity” ofhis conviction and continued incarceration.
Heck, 512 U.S. at 487. The Court takesjudicial notice that Plaintiffhas challenged,
unsuccessfully, his criminal conviction and sentence on more than one occasion by way
ofpetitions for writ ofhabeas corpus pursuant to 28 U.S.C. § 2254: Rodgers v. San
Diego County, etal., S.D. Cal. Civil Case No. 3:05-cv001814-BEN-BLM; Rodgers v.
Kernan, et al., S.D. Cal. Civil Case No. 3:06-cv-01384-L-POR. Both ofthose petitions
have been dismissed.
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While Plaintiffnames the “Superior Court of San Diego” as a Defendant, the Court
will constme this as a claim against the unnamed judicial officer who imposed Plaintiffs
criminal sentence following his conviction. However, these claims are legally frivolous,
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1 for “[jJudges are absolutely immune from damage liability for acts performed in their
official capacities.” Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986).
III. Conclusion and Order
Good cause appearing, the Court:
1. GRANTS Plaintiffs Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
(Doc. No. 2); and
2. DISMISSES Plaintiffs Complaint for failing to state a claim and as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). Because the
Court finds further amendment futile, leave to amend is DENIED. See Cahill v. Liberty
Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (denial of a leave to amend is not an
abuse of discretion where further amendment would be futile).
3. The Court further CERTIFIES that an IFP appeal from this Order of
dismissal would not be taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3). See
Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548,
550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if
appeal would not be frivolous).
The Clerk shall enterjudgment and close the file.
IT IS SO ORDERED.
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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ared-2_06-cv-00025/USCOURTS-ared-2_06-cv-00025-0/pdf.json | 530 | Prisoner Petitions - Habeas Corpus | 28:2241 Petition for Writ of Habeas Corpus | IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
NATHANIEL SANDERS PETITIONER
v. NO. 2:06CV00025 HDY
LINDA SANDERS, Warden, FCI RESPONDENT
Forrest City, Arkansas
MEMORANDUM OPINION AND ORDER
BACKGROUND. It appears that sometime in 2004, petitioner Nathaniel Sanders
(“Sanders”) was sentenced to a thirty-seven month term of imprisonment in the custody
of the Federal Bureau of Prisons (“BOP”) following his conviction of being a felon in
possession of a firearm. He eventually came to be incarcerated at the Federal
Correctional Institution-Low in Forrest City, Arkansas.
FEDERAL COURT SUBMISSIONS. In January of 2006, Sanders commenced the
proceeding at bar by filing a petition for writ of habeas corpus pursuant to 28 U.S.C.
2241. He alleged the following in his petition:
Petitioner is not tentatively scheduled for transfer to a CCC.
However, Petitioner is requesting that he be permitted to spend a
minimum of six months in CCC placement. Petitioner has cited to
respondent that he will have no resources upon his release, and that he
will need time to develop employment and other community ties, and to
truly re-establish himself in his respective community.
Case 2:06-cv-00025-HDY Document 7 Filed 03/21/06 Page 1 of 8
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Respondent has denied his request citing a new Bureau of Prisons
policy ... which took effect on February 15, 2005, whereas, [prisoners] will
only be permitted to serve the final ten [percent] of their sentences in a
CCC, without regard to their needs and individual circumstances.
See Document 1 at 2-3. Sanders maintained that the new community corrections center
placement policy (“the February 14, 2005, CCC placement policy”) is an erroneous
interpretation of 18 U.S.C. 3624(c) because the policy is contrary to Elwood v. Jeter, 386
F.3d 842 (8th Cir. 2004), and because the policy violates the Ex Post Facto Clause of the
United States Constitution. He asked that the policy be invalidated and the BOP be
ordered to transfer him to a CCC for the final six months of his sentence.
Respondent Linda Sanders (“Respondent”) filed a response to the petition. In the
response, she advanced the same positions she advanced in several earlier proceedings,
i.e., the BOP has the discretion to designate a prisoner’s place of incarceration and the
February 14, 2005, CCC placement policy is consistent with, and a permissible
interpretation of, the relevant statutes and case law. She also advanced the following:
In this case, an additional factor is involved regarding Petitioner’s
possible CCC placement. Petitioner’s projected release date is May 28,
2007. ... Under Program Statement 7310.04, Community Corrections
Center (CCC) Utilization and Transfer Procedure, CCC referral procedures
state that normally 11 to 13 months before each inmate’s probable release
date, the unit team shall decide whether to refer an inmate to a
Community Corrections program. Id. This time frame allows staff to
possess information regarding his institutional adjustment, compliance with
the financial responsibility program, discipline history and other factors
used in determining CCC placement. Any final decision regarding CCC
placement would be premature at this time.
Case 2:06-cv-00025-HDY Document 7 Filed 03/21/06 Page 2 of 8
1
Crook joined his declaration with two documents: (1) an inmate profile of Sanders maintained by
the BOP, and (2) a copy of BOP Program Statement 7310.04.
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See Document 4 at 2. Respondent accompanied her response to the petition with a
declaration signed by James D. Crook (“Crook”), the Supervisory Attorney at the BOP
Consolidated Legal Center in Oklahoma City, Oklahoma. His sworn declaration provided,
in part, the following:
Petitioner’s projected release date is May 26, 2007, via good
conduct time. [Citation omitted].
Normally 11 to 13 months before each inmate’s probable release
date, the unit team shall decide whether to refer an inmate to a
Community Corrections program. [Citation omitted].
At this time, Petitioner has not completed the required release
preparation program. [Citation omitted].
See Declaration of James D. Crook at 1-2.1
EXHAUSTION. Before addressing Sanders’ petition, the Court makes note of one
matter. A prisoner is typically required to exhaust his administrative remedies before
filing a petition pursuant to 28 U.S.C. 2241. See United States v. Chappel, 208 F.3d 1069
(8th Cir. 2000). The requirement is capable of being waived, though, when a prisoner can
show that attempting to exhaust would be futile. The Court finds that requiring Sanders
to exhaust would be futile, primarily because the BOP has taken a clear, consistent, and
widespread stand against the positions advanced by Sanders.
Case 2:06-cv-00025-HDY Document 7 Filed 03/21/06 Page 3 of 8
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BOP POLICY CHANGES AND RESULTING LITIGATION. Turning to address the
proceeding at bar, it is best understood when placed in a larger context, a context that
involves at least two changes to the BOP’s CCC placement policy. Prior to December of
2002, the BOP had a policy of “allowing [a] prisoner[] to serve [the] last six months of
incarceration in a CCC regardless of what percent of the sentence this six months
comprised.” See Elwood v. Jeter, 386 F.3d 842, 844 (8th Cir. 2004). This policy was
particularly favorable to a prisoner with a relatively short sentence because it allowed
the prisoner to serve a significant portion of his sentence in a CCC.
In December of 2002, the Department of Justice’s Office of Legal Council (“OLC”)
issued a memorandum opinion that provided, in part, the following: “[w]hen [a prisoner]
has received a sentence of imprisonment, the [BOP] does not have general authority ...
to place such [prisoner] in community confinement at the outset of his sentence or to
transfer him from prison to community confinement at any time [the] BOP chooses
during the course of his sentence.” See Cohn v. Federal Bureau of Prisons, 2004 WL
240570 at 1 (S.D.N.Y. 2004). “[The] OLC [therefore] concluded that [the] BOP could no
longer place [a prisoner] in [a CCC] to satisfy a prison term, except that, pursuant to 18
U.S.C. § 3624(c), [the] BOP could do so at the end of [a prisoner’s] sentence for the
lesser of (i) the last ten percent of the sentence or (ii) six months.” See Cato v.
Menifee, 2003 WL 22725524 at 1 (S.D.N.Y. 2003). [Emphasis in original]. Shortly
thereafter, the BOP announced that it would adhere to the OLC’s memorandum opinion.
Case 2:06-cv-00025-HDY Document 7 Filed 03/21/06 Page 4 of 8
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The United States Court of Appeals for the Eighth Circuit addressed the OLC’s
memorandum opinion and the BOP’s application of the memorandum opinion in Elwood
v. Jeter. In that decision, the Court of Appeals determined that the OLC’s memorandum
opinion was erroneous and that the BOP has the discretion to place a prisoner in a CCC
at any time during his incarceration. The Court of Appeals determined that the BOP is
not limited by the provisions of 18 U.S.C. 3624(c); instead, that statute imposes a duty
on the BOP to take steps to facilitate a prisoner’s re-entry into the outside world. That
duty, though, was not to extend beyond the last six months of the prisoner’s sentence.
In response to Elwood v. Jeter, the BOP adopted a new CCC placement policy on
February 14, 2005. The relevant portions of the policy provided as follows:
570.20. What is the purpose of this subpart?
(a) This subpart provides the Bureau of Prisons' (Bureau) categorical
exercise of discretion for designating inmates to community confinement.
The Bureau designates inmates to community confinement only as part of
pre-release custody and programming which will afford the prisoner a
reasonable opportunity to adjust to and prepare for re-entry into the
community.
(b) As discussed in this subpart, the term "community confinement"
includes Community Corrections Centers (CCC) (also known as "halfway
houses") and home confinement.
570.21. When will the Bureau designate inmates to community
confinement?
(a) The Bureau will designate inmates to community confinement
only as part of pre-release custody and programming, during the last ten
percent of the prison sentence being served, not to exceed six months.
Case 2:06-cv-00025-HDY Document 7 Filed 03/21/06 Page 5 of 8
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(b) We may exceed these time-frames only when specific Bureau
programs allow greater periods of community confinement, as provided by
separate statutory authority ...
The BOP thus acknowledged in the policy that it had the discretion to place a prisoner
in a CCC prior to the last ten percent of the sentence being served. The policy reflects,
however, that the BOP would exercise its discretion, in advance, by limiting CCC
confinement in every instance to the last ten percent of the sentence being served.
The February 14, 2005, CCC placement policy spawned much litigation, including
a considerable amount within this judicial district. In July of 2005, United States District
Judge George Howard, Jr., addressed a challenge to the policy in Fults v. Sanders,
2:05CV00091. He found that the policy was invalid because although it purported to be
a “categorical exercise of discretion,” it was actually not. “It merely repackaged the
December 2002 blanket rule that was rejected in Elwood.” See Fults v. Sanders,
2:05CV00091, Document 6 at 8.
The undersigned has also had several occasions to address the February 14, 2005,
CCC placement policy. The undersigned has followed Judge Howard’s lead in every
instance and found the policy invalid. But for the “additional factor” advanced by
Respondent, i.e., “[a]ny final decision regarding CCC placement would be premature at
this time,” see Document 4 at 2, the undersigned would do likewise in this instance. The
“additional factor,” though, compels the undersigned to deny and dismiss Sanders’
petition as premature and not reach the claims advanced in his petition.
Case 2:06-cv-00025-HDY Document 7 Filed 03/21/06 Page 6 of 8
2
The "injury in fact" element requires a showing of "'an invasion of a legally-protected interest which
is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.'" Id. at 758
[quoting Lujan v. Defenders of Wildlife, --- U.S. ---, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992)].
3
Sanders may, however, re-file his petition if he completes the required release preparation program
and the February 14, 2005, CCC placement policy is applied to him.
-7-
THE “ADDITIONAL FACTOR.” A preliminary consideration in any proceeding is
whether the complaining party has standing to challenge the action, or inaction, of the
non-complaining party. With regard to the doctrine of standing, the United States Court
of Appeals for the Eighth Circuit opined the following:
The doctrine of standing [footnote omitted] embodies both
constitutional and prudential limits.
[T]he irreducible constitutional minimum of standing contains
three elements: First, the plaintiff must have suffered an
"injury in fact" . . . Second, there must be a casual
connection between the injury and the conduct complained
of -- the injury has to be "fairly . . . trace[able] to the
challenged action of the defendant" . . . Third, it must be
"likely," as opposed to merely "speculative," that the injury
will be "redressed by a favorable decision."
Sierra Club v. Robertson, 28 F.3d 753, 757-58 (8th Cir. 1994) (other citations omitted).2
In this instance, Sanders can show no injury-in-fact and thus has no standing to
challenge the February 14, 2005, CCC placement policy. He has not completed the
required release preparation program, and the February 14, 2005, CCC placement policy
has not yet been applied to him. Thus, his petition is premature.3
Case 2:06-cv-00025-HDY Document 7 Filed 03/21/06 Page 7 of 8
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CONCLUSION. On the basis of the foregoing, Sanders’ petition for writ of habeas
corpus is denied and dismissed. All requested relief is denied.
IT IS SO ORDERED this _21__ day of March, 2006.
___________________________________________
UNITED STATES MAGISTRATE JUDGE
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EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
AMANDA ADAMS PLAINTIFF
v. NO. 3:15-CV-208-BD
CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration DEFENDANT
ORDER REMANDING TO THE COMMISSIONER
Amanda Adams seeks the review of the denial of her claims for disability benefits. Ms.
Adams alleged onset date of December 15, 2012, based on a left foot injury, bipolar condition,
personality disorder, anxiety, and PTSD. (R. at 47). The Administrative Law Judge (ALJ) held a
hearing on the denial of those applications, and issued a decision denying benefits. The Appeals
Council denied Ms. Adams’s request for reconsideration. (R. at 1). Thus, the ALJ's decision
stands as the final decision. The parties have consented to this court’s jurisdiction.
I. The Commissioner’s Decision
The ALJ determined at step 1 of the five-step process that Ms. Adams had not engaged in
substantial gainful activity since the alleged onset date. (R. at 15). At step 2, the ALJ found that
Ms. Adams had the severe impairments of mood disorder not otherwise specified, adjustment
disorder, borderline personality disorder, bipolar 1 disorder most recent/current mixed severe
without psychotic features, and generalized anxiety disorder at step 2. (R. at 15). At step 3, the
ALJ determined that Ms. Adams's impairments neither met nor equaled any of the listings. (R. at
16).
Prior to moving to step 4, the ALJ found that Ms. Adams had the residual functional
Case 3:15-cv-00208-BD Document 13 Filed 04/14/16 Page 1 of 5
capacity (RFC) to perform a full range of physical activity at all exertional levels but with
nonexertional limitations. (R. at 18). According to the ALJ’s findings, Ms. Adams retained the
mental ability to understand, remember and carry out simple jobs and instructions; make
judgments in simple work-related situations; respond appropriately to co-workers and
supervisors with occasional incidental contact that is not necessary to perform the work; and
respond appropriately to minor changes in usual work routine. He concluded that she should
have no dealings with the general public. (R. at 18).
Applying this RFC, the ALJ found that Ms. Adams could not return to past relevant work.
(R. at 22). Proceeding to step 5, the ALJ found that Ms. Adams could perform jobs such as
kitchen helper and warehouse worker and, therefore, was not disabled. (R. at 23–24).
II. Discussion
Ms. Adams asserts that the ALJ erred in denying her claims for disability benefits because
substantial evidence did not support the RFC. She argues that the hypothetical posed to the
vocational expert was flawed, thus rendering the step 5 determination error.
Specifically, Ms. Adams contends that the ALJ failed to fully develop the record because
there was no opinion from a treating or examining provider in the record. She contends that the
ALJ improperly made independent medical findings from the record and improperly disregarded
her Global Assessment of Functioning (GAF) scores.
In reviewing ALJ's decision, this Court determines if it is supported by “substantial
evidence on the record as a whole.” Wilcutts v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998). The
Court must consider the weight of the evidence supporting the ALJ’s decision and balance it
against any contradictory evidence. Id. The Court will not reverse, however, “merely because
substantial evidence exists for the opposite decision.” Long v. Chater, 108 F.3d 185, 187 (8th
Case 3:15-cv-00208-BD Document 13 Filed 04/14/16 Page 2 of 5
Cir. 1997) (quoting Johnson v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996)).
The record in this matter is devoid of opinion evidence from a treating or examining
physician. (R. at 55). Ms. Adams contends that the ALJ had the responsibility to re-contact Ms.
Adams’s treating providers or to order a consultative examination to develop the record. The
Commissioner responds that the evidence in the record is sufficient to support the ALJ's decision.
The ALJ has a duty to develop the record fully and must order a consultative examination
if necessary to make an informed decision, even where the claimant is represented by counsel.
Dozier v. Heckler, 754 F.2d 274, 276 (8th Cir. 1985). The ALJ is obligated to order an
examination, however, only if there is not sufficient medical evidence to determine whether the
claimant is disabled. Martise v. Astrue, 641 F.3d 909, 926–27 (8th Cir. 2011).
The Commissioner cites Sultan v. Barnhart, 368 F.3d 857 (8th Cir. 2004) for the
proposition that a consultative examination was unnecessary because other evidence in the record
was sufficient. Sultan is not analogous because in that case treating physicians’ opinions were
discredited, and the court of appeals held it unnecessary to re-contact those providers or order a
consultative examination. 368 F.3d at 863. The key difference between Sultan and this case is
that the record Sultan included many opinions from treating or examining providers. Id. at
860–61. The record here, by contrast, includes treatment records, but no opinion evidence from
any treating or examining physician.
Furthermore, the record here includes very little objective evidence regarding the
limitations Ms. Adams’s mental impairments impose. Almost all of the evidence regarding those
limitations derives from her testimony or treatment notes regarding her own statements. The
ALJ’s duty to develop the record “includes the responsibility of ensuring that the record includes
evidence from a treating physician, or at least an examining physician, addressing the particular
Case 3:15-cv-00208-BD Document 13 Filed 04/14/16 Page 3 of 5
impairments at issue.” Strongson v. Barnhart, 361 F.3d 1066, 1071–72 (8th Cir. 2004). The
ALJ should have taken measures to further develop the record by ordering a consultative
examination or re-contacting Ms. Adams’s treating physicians.
Ms. Adams also argues that the ALJ erred in drawing his own inferences from the
medical records. “An administrative law judge may not draw upon his own inferences from
medical reports.” Lund v. Weinberger, 520 F.2d 782, 785 (8th Cir. 1975). The Commissioner
does not directly address this argument, instead resting on the sufficiency of the evidence in the
record. The ALJ extensively discussed treatment notes throughout the decision, such as Ms.
Adams’s statements to her treating providers; notes of appearance, mood, attitude, and suicidal or
homicidal ideation; and medication changes. (R. at 19–21). The ALJ apparently drew
conclusions from the notes because the notes themselves do not address functional limitations.
As part of the evidence cited in support of the decision, the ALJ noted that Ms. Adams
was admitted overnight after overdosing on her prescribed medications, but concluded that this
was not the result of suicidal ideation, but rather, because “she just wanted to get out of a court
date and avoid going to jail for 30 days.” (R. at 19).
In her brief, the Commissioner argues this point as well, but neither the ALJ nor the
Commissioner cites any medical basis for treating an intentional overdose as a less serious issue
because it was motivated by an impending court date rather than an intent to commit suicide.
Further, the ALJ’s decision did not address Ms. Adams’s testimony that the overdose was a
suicide attempt. (R. at 37). The severity of the emotional issues that drive such actions must be
supported by medical evidence rather than the lay opinion of an ALJ. Lauer v. Apfel, 245 F.3d
700, 703–04 (8th Cir. 2001).
Substantial evidence does not support the ALJ’s decision, and the record is insufficiently
Case 3:15-cv-00208-BD Document 13 Filed 04/14/16 Page 4 of 5
developed to determine whether Ms. Adams is disabled. A consultative examination is necessary
to determine the effect of her mental impairments on her ability to work.
III. Conclusion
The ALJ’s decision is not supported by substantial evidence. The ALJ erred by not recontacting Ms. Adams’s treating providers or ordering a consultative examination. The ALJ also
erred by drawing his own inferences from the medical evidence. The case is hereby remanded
for further proceedings consistent with this opinion. This is a “sentence four” remand within the
meaning of 42 U.S.C. § 405(g) and Melkonyan v. Sullivan, 501 U.S. 89 (1991).
DATED this 14th day of April, 2016.
___________________________________
UNITED STATES MAGISTRATE JUDGE
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See attached Declaration of Maria V. Daquipa. 1
KEVIN V. RYAN, SBN 118321
United States Attorney
JOANN M. SWANSON, 88143
Assistant United States Attorney
Chief, Civil Division
SARA WINSLOW, DCBN 457643
Assistant United States Attorney
450 Golden Gate Avenue, Box 36055
San Francisco, California 94102
Telephone: (415) 436-7260
Facsimile: (415) 436-7169
Attorneys for Defendant
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
SARAH ST. HILL, )
)
Plaintiff, ) CIVIL NO. 04-01037 MEJ
)
v. ) STIPULATION AND ORDER EXTENDING
) DEFENDANT’S TIME TO FILE
JO ANNE B. BARNHART, ) RESPONSE TO PLAINTIFF’S
Commissioner of Social Security, ) MOTION FOR SUMMARY JUDGMENT
)
Defendant. )
______________________________)
IT IS HEREBY STIPULATED by and between the undersigned attorneys, subject to the
approval of the Court, that defendant Commissioner may have an extension of 30 days in which to
file her response to plaintiff's motion for summary judgment. Defendant's response was due on 1
October 3, 2005, pursuant to Civil L.R.16-5. Defendant's response is now due on November 2, 2005.
///
///
///
///
///
///
///
Case 3:04-cv-01037-MEJ Document 20 Filed 09/22/05 Page 1 of 4
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ST. HILL, EXT.MXSJ (mvd)
C 04-01037 MEJ 2
This is defendant’s first request.
Dated: September 20, 2005 /s/
HARVEY P. SACKETT
Attorney for Plaintiff
KEVIN V. RYAN
United States Attorney
Dated: September 21, 2005 By: /s/
SARA WINSLOW
Assistant United States Attorney
PURSUANT TO STIPULATION, IT IS SO ORDERED:
Dated: ____________________________
MARIA-ELENA JAMES
United States Magistrate Judge
Case 3:04-cv-01037-MEJ Document 20 Filed 09/22/05 Page 2 of 4
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KEVIN V. RYAN
United States Attorney
JOANN M. SWANSON
Assistant United States Attorney
Acting Chief, Civil Division
SARA WINSLOW
Assistant United States Attorney
450 Golden Gate Avenue, Box 36055
San Francisco, California 94102
Telephone: (415) 436-7260
Facsimile: (415) 436-7169
Attorneys for Defendant
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
SARAH L. ST. HILL, )
)
Plaintiff, )
)
v. )
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JO ANNE B. BARNHART, )
Commissioner of Social Security, )
)
)
Defendant. )
)
CIVIL NO. C 04-1037 MEJ
DECLARATION IN SUPPORT OF
DEFENDANT’S REQUEST FOR
EXTENSION OF TIME
I, Maria V. Daquipa, declare and state as follows:
1. I am an Assistant Regional Counsel in the Office of the General Counsel for the United
States Social Security Administration, Region IX.
2. I am requesting a 30-day extension for filing Defendant Commissioner’s response to
Plaintiff’s motion for summary judgment in order to provide further opportunity for review and analysis
of this case.
///
///
Case 3:04-cv-01037-MEJ Document 20 Filed 09/22/05 Page 3 of 4
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I declare under penalty of perjury that the foregoing is true and correct to the best of my
knowledge.
Executed in San Francisco, California on September 20, 2005.
By /s/
Maria V. Daquipa
Assistant Regional Counsel
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FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
JAMIE RAY, )
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Plaintiff, )
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v. ) 3:05-CV-0353-T
) WO
TALLAPOOSA COUNTY JAIL, et al., )
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Defendants. )
ORDER
There being no objections filed to the Recommendation of the Magistrate Judge filed herein
on April 21, 2005 (Doc. 6), and upon an independent review of the file in this case, said
Recommendation is hereby adopted, and it is the
ORDER, JUDGMENT and DECREE of the court that:
1. The plaintiff’s claims against the Tallapoosa County Jail are dismissed with prejudice
pursuant to the provisions of 28 U.S. C. § 1915(e)(2)(B)(i).
2. The Tallapoosa County Jail is dismissed from this cause of action.
3. The remaining claims for relief agains defendants Abbett, McMichael and Moss are
referred back to the Magistrate Judge for appropriate proceedings.
DONE, this the 17th day of May, 2005.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
TOKUKO H. SYLVESTER,
Plaintiff,
v.
STATE OF CALIFORNIA, et al.,
Defendants.
Case No. 14-cv-05595-RS
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND
I. INTRODUCTION
Plaintiff Tokuko Sylvester, proceeding pro se, alleges that she has suffered constitutional
injuries flowing from the cap on medical malpractice damages established by the California
Medical Injury Compensation Reform Act of 1975 (“MICRA”) and the California court system’s
inadequate services for unrepresented, limited English proficiency (“LEP”) civil litigants.
Sylvester’s grievance, as described in the lucid statement of facts found in her complaint, stems
from her misadventures as a pro se malpractice plaintiff in California state court. Unable to find a
lawyer willing to take her case on a contingent basis, Sylvester represented herself in a suit against
her former podiatrist, alleging complications arising out of surgeries the doctor had performed on
her foot. According to Sylvester’s present complaint, she was hamstrung in superior court by her
lack of familiarity with civil procedure and limited proficiency in the English language. Still, the
case proceeded to trial. After Sylvester presented her case in chief, however, the superior court
granted the defendant’s motion for nonsuit and dismissed the action.
1
Sylvester unsuccessfully
challenged that outcome in the court of appeal, and then filed a petition for review with the
1
See California Code of Civil Procedure § 581c.
Case 3:14-cv-05595-RS Document 24 Filed 05/14/15 Page 1 of 7
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
CASE NO. 14-cv-05595-RS
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California Supreme Court, which was also denied.
Sylvester now asserts ten claims against the State of California, Governor Edmund G.
Brown, Jr., the California Medical Board, the California courts, and the California State Bar. She
seeks $121 million in damages and sweeping injunctive relief. Defendants move to dismiss the
complaint. Pursuant to Civil Local Rule 7-1(b), the motion is suitable for disposition without oral
argument. Because Sylvester has failed to state any claim upon which relief may be granted, her
complaint will be dismissed, with leave to amend.
II. LEGAL STANDARD
A complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While “detailed factual allegations are not
required,” a complaint must have sufficient factual allegations to “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 652, 678 (2009) (citing Bell Atlantic v. Twombly,
550 U.S. 544, 570 (2007)). A claim is facially plausible “when the pleaded factual content allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. This standard asks for “more than a sheer possibility that a defendant acted unlawfully.” Id.
A motion to dismiss a complaint under Rule 12(b)(6) of the Federal Rules of Civil
Procedure tests the legal sufficiency of the claims alleged in the complaint. See Parks Sch. of
Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Dismissal under Rule 12(b)(6) may
be based on either the “lack of a cognizable legal theory” or on “the absence of sufficient facts
alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699
(9th Cir. 1990).
Pro se pleadings must be construed liberally. See Haines v. Kerner, 404 U.S. 519, 520–21
(1972). A pro se litigant in a civil rights suit must have an opportunity to amend a complaint to
overcome deficiencies unless it is clear that they cannot be overcome by amendment. Eldrige v.
Block, 832 F.2d 1132, 1135-36 (9th Cir. 1987).
Case 3:14-cv-05595-RS Document 24 Filed 05/14/15 Page 2 of 7
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
CASE NO. 14-cv-05595-RS
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III. DISCUSSION
A. Challenges to MICRA
Sylvester first argues that MICRA’s $250,000 cap on noneconomic malpractice damages2
violated her constitutional right to be represented by an attorney. The damages ceiling, she
contends, prevents her and other plaintiffs from obtaining legal counsel because California
lawyers lack sufficient financial incentives to take on malpractice cases. Without minimizing the
difficulties Sylvester seems to have experienced in her unsuccessful attempts to find legal
representation, however, there is simply “no constitutional right to counsel in a civil case” under
the circumstances described in her complaint. United States v. 30.64 Acres of Land, 795 F.2d 796,
801 (9th Cir. 1986).
Sylvester also points out that there is no California law requiring healthcare providers to
inform patients about MICRA’s damages cap. According to Sylvester, the California Patients’
Bill of Rights mandates that each healthcare consumer “know the truth about MICRA.”
However, even if an individual healthcare provider could indeed be held liable for failing to
inform a patient about MICRA’s damages cap (and it is not clear that such a claim would be
viable), Sylvester identifies no support for her claim that the State of California had an affirmative
duty to pass a law requiring such disclosures.3
B. Due Process & Equal Protection
Next, Sylvester claims the superior court violated her rights to due process and equal
protection by failing to provide her with “fair access to justice.” Her grievance apparently stems,
in part, from the assumption that the California state court system is required to treat pro se
2
The damages cap is found at section 3333.2(b) of the California Civil Code.
3
Section 1430(b) of the California Health and Safety Code authorizes a patient of a “skilled
nursing facility” or an “intermediate care facility” to bring a civil action against the facility for
alleged violations of the Patients’ Bill of Rights. It does not authorize any private right of action
against the State itself. The rights guaranteed to patients of skilled nursing facilities and
intermediate care facilities are found, respectively, at sections 72527 and 73523 of Title 22 of the
California Code of Regulations.
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ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
CASE NO. 14-cv-05595-RS
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litigants with special leniency. Yet, as the superior court informed her, Sylvester and other pro se
litigants are “entitled to the same, but no greater, consideration than other litigants and attorneys.”
Burnete v. La Casa Dana Apartments, 148 Cal. App. 4th 1262, 1267 (2007). That was an accurate
statement of California law; the same generally holds true in federal court. Jacobsen v. Filler, 790
F.2d 1362, 1364 (9th Cir. 1986) (“pro se litigants in the ordinary civil case should not be treated
more favorably than parties with attorneys of record”). This court does not doubt that Sylvester,
like many pro se plaintiffs, found civil litigation challenging. While the difficulties presented to
laypersons attempting, for example, to learn civil procedure—or, as Sylvester aptly puts it, to
“speak to the judge” the way “lawyers talk”—may be significant, those hurdles cannot alone give
rise to constitutional injuries, whether to Sylvester or to the putative class of pro se litigants she
purports to represent.
Somewhat separately, Sylvester contends that the superior court made “insulting” remarks
regarding her pro se status. Read in the light most favorable to Sylvester, the allegations in the
complaint indicate otherwise. Her factual averments are evidence of, at most, an absence of tact
on the part of the superior court judge, who allegedly made reference in open court to the
difficulties Sylvester faced as a pro se litigant. Those comments do not support a plausible
inference that Sylvester was unconstitutionally singled out for mistreatment or denied due process.
Ashcroft, 566 U.S. at 678. Moreover, although Sylvester disavows any desire to challenge the
state judgment entered against her, the portion of her complaint alleging specific misconduct on
the part of the superior court strays dangerously close to such a challenge. As defendants correctly
point out, Sylvester is barred under the Rooker–Feldman doctrine from complaining of a legal
wrong allegedly committed by the state court and seeking relief from the resulting judgment in
federal district court. See Noel v. Hall, 341 F.3d 1148, 1163 (9th Cir. 2003).
C. Title VI Claims
Sylvester also claims that the superior court, the Medical Board of California, and the State
Bar subjected her to differential treatment because of her Japanese heritage, in violation of her
right under Title VI of the Civil Rights Act of 1964 to be free from discrimination on the basis of
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ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
CASE NO. 14-cv-05595-RS
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her national origin. 42 U.S.C. § 2000d. Sylvester’s claim against the superior court stems from
her difficulties understanding the proceedings in her malpractice case and being understood, in
turn, by the court. In essence, Sylvester argues that California’s failure to provide translators for
unrepresented LEP civil litigants has a disparate impact on individuals of diverse national origin,
who may be unable to understand court proceedings conducted in English. As defendants
correctly point out, however, “there is no private right of action for disparate impact
discrimination under Title VI.” Colwell v. Dept. of Health and Human Serv., 558 F.3d 1112, 1129
(9th Cir. 2009). This is not to diminish Sylvester’s travails as a LEP litigant without translation
assistance—it is simply to say that federal law does not provide for the relief she requests.
Northstar Fin. Advisors, Inc. v. Schwab Investments, 615 F.3d 1106, 1117 (9th Cir. 2010) (“The
mere fact that a statute was designed to protect one class of individuals does not require the
implication of a private cause of action for damages on their behalf.”) (internal citation and
quotation marks omitted). 4
Title VI does prohibit intentional, targeted discrimination on the basis of national origin.
Alexander v. Sandoval, 532 U.S. 275, 281 (2001). The allegations in the complaint, however, are
insufficient to state a claim that any of the defendants intentionally discriminated against Sylvester
on the basis of her Japanese heritage or LEP status. For example, Sylvester’s claim against the
Medical Board is predicated solely on her subjective “belie[f]” that the Board conducted an
inadequate investigation of her complaint because she “spoke English with a strong accent.” Such
conclusory assertions of discrimination are not enough to bring her claims “across the line from
conceivable to plausible.” Twombly, 550 U.S. at 549.
D. Other Claims
Finally, Sylvester asserts the following putative claims: (1) the California rules of court
violate the Plain Writing Act of 2010, which requires that government documents be written in
4
The Supreme Court’s opinion in Tennessee v. Lane, 541 U.S. 509 (2004) does not change this
conclusion. That case addressed Title II of the Americans with Disabilities Act, which is a distinct
statute from the Civil Rights Act of 1964. Id. at 513.
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ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
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simple, easy-to-understand language; (2) the superior court deprived Sylvester of her right to
access her medical records in violation of the Patients’ Bill of Rights; (3) the State Bar violated its
constitutional duty to tell the truth under oath; and (4) the California Constitution is in conflict
with the United States Constitution. None of these arguments states a viable claim for relief.
First, the Plain Writing Act only applies to documents drafted by agencies of the federal
government. Pub. L. No. 111-274 at §§ 2-4, 124 Stat. 2861-62 (2010). Moreover, the statute
explicitly states that “there shall be no judicial review of compliance or noncompliance with any
provision of this Act” and that the Act creates no “right or benefit, substantive or procedural,
enforceable by any . . . judicial action.” Id. at § 6, 124 Stat. at 2862-63. Similarly, Sylvester
has not identified—and this court’s independent research has not revealed—any statutory or
common law provision authorizing a private right of action against a state court for its failure to
facilitate a litigant’s access to medical records. Sylvester’s other remaining claims, which are
made up of little more than threadbare “conclusory statements,” are likewise insufficient to
withstand dismissal. Iqbal, 566 U.S. at 676.5
E. Request for Appointment of Counsel
In her complaint, Sylvester requests that an attorney be appointed to represent her, pro
bono, in these proceedings. While a district court indeed has discretionary authority, under 28
U.S.C. § 1915(e)(1), to appoint counsel for a pro se litigant, that discretion should only be
exercised in “exceptional circumstances.” Agyeman v. Corrections Corp. of America, 390 F.3d
1101, 1103 (9th Cir. 2004). In deciding whether to appoint counsel, a district court must consider
the plaintiff’s “likelihood of success on the merits” and her ability to articulate her claims pro se
“in light of the complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954
(9th Cir. 1983). As discussed throughout this order, Sylvester is unlikely to succeed on the merits
5 Defendants argue that the shield of sovereign immunity and the Rooker-Feldman doctrine each
independently operates to bar Sylvester’s claims. They have done an inadequate job of supporting
their contention that this action is comprehensively precluded by the foregoing doctrines.
Provided Sylvester elects to amend her complaint and defendants again move to dismiss, they will
be permitted to reassert the aforementioned defenses in more persuasive fashion.
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ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
CASE NO. 14-cv-05595-RS
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of her claims. That consideration weighs against the appointment of counsel. In addition, despite
her apparently demoralizing experiences as a pro se state court litigant and her professed lack of
proficiency in the English language, Sylvester’s submissions to this court have been very
articulate. While, as discussed throughout this order, it is always challenging for unrepresented
litigants to navigate the intricacies of legal practice, Sylvester appears better suited to the
challenge than the average pro se plaintiff. Because “exceptional circumstances” are absent from
this case, Sylvester’s request for appointed counsel is denied.
IV. CONCLUSION
In the interests of justice, Sylvester is granted leave to amend her complaint in a renewed
effort to state claims upon which relief may be granted. Fed. R. Civ. P. 15(a)(2). If Sylvester
elects to take advantage of this opportunity, she must file an amended complaint no later than
June 15, 2015. In the event no amended complaint is filed by June 15, 2015, the action will be
dismissed and the file closed, without further notice.
IT IS SO ORDERED.
Dated: May 14, 2015
______________________________________
RICHARD SEEBORG
United States District Judge
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Although petitioner has commenced this action by filing a civil rights complaint 1
pursuant to 42 U.S.C. §1983, the court has construed that complaint as a petition for a writ of
habeas corpus because therein plaintiff alleges that he was improperly denied parole and seeks an
order from the court granting him a parole date. Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)
(a habeas corpus proceeding is the proper mechanism for a prisoner seeking to challenge the fact
or duration of his confinement).
1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ARMANDO HERRERA,
Petitioner, No. CIV S 08-0236 FCD DAD P
vs.
S. BRYSON, et al.,
Respondents. ORDER
/
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma
1
pauperis.
Examination of the in forma pauperis affidavit reveals that petitioner is unable to
afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is
granted. See 28 U.S.C. § 1915(a).
“A petitioner for habeas corpus relief must name the state officer having custody
of him or her as the respondent to the petition.” Stanley v. California Supreme Court, 21 F.3d
Case 2:08-cv-00236-FCD-DAD Document 6 Filed 02/21/08 Page 1 of 2
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359, 360 (9th Cir. 1994) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Petitioner has named
Commissioner S. Bryson, Deputy Commissioner J. Thompson, and the Board of Prison Terms as
respondents in this action. These individuals are not the proper respondents in this action.
Accordingly, the instant petition must be dismissed with leave to amend. See Stanley, 21 F.3d at
360. In his amended petition, petitioner must name as the respondent the warden of the facility
where he is incarcerated.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner’s request to proceed in forma pauperis is granted;
2. Petitioner’s application for writ of habeas corpus is dismissed with leave to file
an amended petition within thirty days from the date of this order;
3. Any amended petition must be filed on the form employed by this court, must
name the proper respondent, and must state all claims and prayers for relief on the form. It must
bear the case number assigned to this action and must bear the title “Amended Petition”; and
4. The Clerk of the Court is directed to send petitioner the form for habeas corpus
application.
DATED: February 20, 2008.
DAD:9
herr0236.122
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7209
HENRY J. STEELE,
Plaintiff – Appellant,
v.
DONALD MOBLEY; CLARENCE LEE FAULCON; PETER B. WOGLOM;
CAROLINE TAYLOR,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:14-ct-03298-F)
Submitted: November 17, 2016 Decided: November 22, 2016
Before GREGORY, Chief Judge, and MOTZ and TRAXLER, Circuit
Judges.
Dismissed by unpublished per curiam opinion.
Henry J. Steele, Appellant Pro Se. Joseph Finarelli, Special
Deputy Attorney General, Raleigh, North Carolina; John W.
Holton, John Walton Minier, YATES, MCLAMB & WEYHER, LLP,
Raleigh, North Carolina; Kelly Street Brown, Elizabeth Pharr
McCullough, YOUNG MOORE & HENDERSON, PA, Raleigh, North
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
Appeal: 16-7209 Doc: 10 Filed: 11/22/2016 Pg: 1 of 2
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PER CURIAM:
Henry J. Steele seeks to appeal the district court’s order
dismissing two named defendants in his 42 U.S.C. § 1983 (2012)
action. This court may exercise jurisdiction only over final
orders, 28 U.S.C. § 1291 (2012), and certain interlocutory and
collateral orders, 28 U.S.C. § 1292 (2012); Fed. R. Civ. P.
54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,
545-46 (1949). The order Steele seeks to appeal is neither a
final order nor an appealable interlocutory or collateral order.
Accordingly, we dismiss the appeal for lack of jurisdiction. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6430
ADARIUS QUANTE DENNIS,
Petitioner - Appellant,
v.
WARDEN CARTLEDGE,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Timothy M. Cain, District Judge.
(0:14-cv-04637-TMC)
Submitted: September 20, 2016 Decided: September 23, 2016
Before KING, WYNN, and THACKER, Circuit Judges.
Remanded by unpublished per curiam opinion.
Adarius Quante Dennis, Appellant Pro Se. Donald John Zelenka,
Senior Assistant Attorney General, James Anthony Mabry,
Assistant Attorney General, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
Appeal: 16-6430 Doc: 8 Filed: 09/23/2016 Pg: 1 of 3
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PER CURIAM:
Adarius Quante Dennis seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
denying relief on his 28 U.S.C. § 2254 (2012) petition. We
order a limited remand.
“[T]he timely filing of a notice of appeal in a civil case
is a jurisdictional requirement.” Bowles v. Russell, 551 U.S.
205, 214 (2007). The notice of appeal must be filed within 30
days after entry of the judgment or order appealed from. Fed.
R. App. P. 4(a)(1)(A). The district court may extend the time
to file a notice of appeal if “a party so moves no later than 30
days after the time prescribed by . . . Rule 4(a) expires,” and
the party shows excusable neglect or good cause. Fed. R. App.
P. 4(a)(5)(A).
The district court’s order was entered on February 2, 2016.
Dennis had until March 3, 2016 to timely file his notice of
appeal, and the 30-day excusable neglect period ended on April
4, 2016. See Fed. R. App. P. 4(a)(5)(A), 26(a)(1)(C). Dennis’
notice of appeal was filed within the 30-day excusable neglect
period. He stated reasons for his delay and arguably requested
an extension of the period to file the notice of appeal.
Accordingly, we remand the case to the district court for
the limited purpose of allowing the court to determine whether
Appeal: 16-6430 Doc: 8 Filed: 09/23/2016 Pg: 2 of 3
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an extension is warranted. The record, as supplemented, will
then be returned to this court for further consideration.
REMANDED
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
SACRAMENTO DIVISION
RODNEY WAYNE JONES,
Plaintiff,
v.
C. W. MCELROY, et al. ,
Defendants.
2:13-cv-1375 GEB CKD P
ORDER
Good cause appearing, Defendants’ request to seal CDCR’s 2011 Use of Force Training
Powerpoint (ECF No. 105) is GRANTED.
Dated: March 8, 2016
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
SUNIL REPAKA,
Plaintiff/Petitioner,
Case No. 13-cv-05 BTM-RBB
ORDER GRANTING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT
v.
RAND BEERS, Acting Secretary of
Homeland Security,
ALEJANDRO MAYORKAS, Director
of United States Citizenship and
Immigration Services, and
MARILYN WILES, Director, USCIS
Nebraska Service Center,
Defendants.
The parties have filed cross-motionsfor summary judgment. For the reasons set
forth below, Plaintiff’s motion is DENIED and Defendants’ motion is GRANTED.
I. BACKGROUND
A. Legal Framework: Exceptional Ability Visas
The Immigration and Nationality Act (“INA”), as amended, provides for the
issuance of visas to aliens “who are members of the professions holding advanced
degrees . . . who because of their exceptional ability in the sciences, arts, or
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business, will substantially benefit prospectively the national economy.” 8 U.S.C. §
1153(b)(2)(B)(i). An applicant for such a visa ordinarily must be sponsored by an
American employer, though the INA provides the Attorney General with discretion
1
to waive the job offer requirement if he “deems it to be in the national interest.” Id.
Authorized agency officials may exercise that discretion within the bounds of the
INA, applicable regulations, and governing decisions so long as their professional
judgment is informed, reached, and announced consistent with those laws. Recent
Past Pres. Network v. Latschar, 701 F. Supp. 2d 49, 61 (D.D.C. 2010).
“Exceptional ability” is defined as “a degree of expertise significantly above
that ordinarily encountered in the sciences, arts, or business.” 8 C.F.R. 204.5(k)(2).
Neither the INA, nor regulations promulgated thereunder, define “national interest.”
The Board of Immigration Appeals evaluates requests for a national interest waiver
as follows: The petitioner must show (1) that he seeks employment in an area of
substantial intrinsic merit, (2) that the proposed benefit will be national in scope,
and (3) requiring a labor certification would negatively affect the national interest.
Matter of New York State Dep’t of Trans., 22 I&N Dec. 215, 217-18, 1998 BIA
LEXIS 26 (BIA Aug. 7, 1998) (“NYDOT”) (“Stated another way, the petitioner,
whether the U.S. employer or the alien, must establish that the alien will serve the
national interest to a substantially greater degree than would an available U.S.
worker having the same minimum qualifications.”). NYDOT has been designated
as “precedent” with respect to national interest waiver applications. See A.R. 568.
See also Talwar v. INS, 2001 U.S. Dist. LEXIS 9248, *18 (S.D.N.Y. July 9, 2001).
USCIS continues to apply NYDOT, as evidenced by the RFE (A.R. 453) and its
decision (A.R. 559). The Court defers to this interpretation of “national interest.”
The Homeland Security Act of 2002, P.L. 107-296 §§ 441, 451-56, transferred 1
thisfunction to the Department of Homeland Security. The visa application sub judice
falls under the purview of the United States Citizenship and Immigration Service
(“USCIS”).
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See Chevron USA, Inc. V. Natural Resources Defense Council, 467 U.S. 837, 842-
43 (1994); INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (deferring to a Board
of Immigration Appeals order). See also Montana Wilderness Ass’n v. Connell,
725 F.3d 988, 994 (9th Cir. 2013). The waiver denial is reviewable under the
Administrative Procedures Act (“APA”) and 28 U.S.C. § 1331. Mikhailik v.
Ashcroft, Civ. No. 04-0904, 2004 US Dist. LEXIS 20379, *13-16, 21 2004 WL
2217511, *2 (N.D.Cal. Oct. 1, 2004) (waiver decision is not a matter of unfettered
discretion under 5 U.S.C. § 701(a)(2) because the designation of NYDOT as
precedent constitutes a settled course of adjudication “entitled to substantial
deference”) (citations omitted). See also Spencer Enters. V. United States, 345 F.3d
683, 688 (9th Cir. 2003) (“Even where statutory language grants an agency
unfettered discretion, its decision may nonetheless be reviewed if regulations or
agency practice provide a meaningful standard by which this court may review its
exercise of discretion.”); O'Neill v. Cook, 828 F. Supp. 2d 731, 736 (D. Del. 2011).
B. Facts
On January 25, 2010, Mr. Repaka filed an employment based immigrant
petition (“Form I-140") pursuant to INA § 203(b)(2), requesting classification as an
alien of exceptional ability. A.R. 1. Mr. Repaka sought a waiver of the labor
certification requirement, as his petition was not sponsored by an employer. In
support of his waiver request, he submitted eighteen exhibits. On March 29, 2010,
USCIS requested additional evidence regarding Repaka’s qualifications,
specifically requesting evidence that waiver would be in the national, rather than
merely local, interest. A.R. 452-53 (requesting evidence of his “ability to serve the
national interest to a substantially greater extent than the majority of [his] peers”
and his “influence on [his] field of employment as a whole.”). Mr. Repaka timely
filed seven additional exhibits in response. A.R. 2, 454-537.
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On October 18, 2010, USCIS denied Mr. Repaka’s waiver request, finding
that he is a “competent engineer whose skills and abilities are of value to his
employer” but “the record does not show that a job offer waiver based on the
national interest is warranted.” A.R. 538-41. Mr. Repaka appealed to the USCIS
Administrative Appeals Office (“AAO”) on November 18, 2010. A.R. 544-46. On
appeal, he provided additional evidence, including a list of 27 papers purportedly
citing his work. A.R. 547-53. The AAO affirmed the waiver denial on January 18,
2012. A.R. 557-68.
II. STANDARD OF REVIEW
In actions brought under the Administrative Procedures Act (“APA”),
summary judgment serves as an avenue for deciding whether a final agency action
is adequately supported by the administrative record. Northwest Motorcycle Ass’n
v. U.S. Dep’t Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). For jurisdiction under
the APA, the agency action at issue "must be final, it must adversely affect the party
seeking review, and it must be non-discretionary." Pinho v. Gonzales, 432 F.3d
193, 200 (3d Cir. 2005). Under the APA, the Court may set aside an agency’s final
decision only upon a finding that it was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). An
agency action is arbitrary or capricious if the agency fails to “examine the relevant
data and articulate a satisfactory explanation for its action including a rational
connection between the facts found and the choice made.” Motor Vehicle Mfrs.
Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43 (1983) (internal
citations and quotations omitted).
The Court’s review is based on the administrative record that was before the
agency decision makers at the time they made their decision. Citizens to Preserve
Overton Park v. Volpe, 401 U.S. 402, 420 (1971). The Court reviews the whole
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record, or those parts of it cited by a party, for substantial evidence. See Herrera v.
USCIS, 571 F.3d 881, 885 (9th Cir. 2009). It will not disturb the agency’s final
decision “unless the evidence presented would compel a reasonable finder of fact to
reach a contrary result.” See Herrera v. USCIS, 571 F.3d 881, 885 (9th Cir. 2009).
Id. “Review under this standard is to be searching and careful, but remains narrow,
and a court is not to substitute its judgment for that of the agency. . . . [especially
where] the challenged decision implicates substantial agency expertise.” Friends of
Clearwater v. Dombek, 222 F.3d 552, 556 (9th Cir. 2000) (citations omitted). Thus,
to prevail, Mr. Repaka must establish that the decision denying his waiver request
was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with
the law.
III. DISCUSSION
It bears emphasizing that even aliens who establish exceptional ability are
ordinarily subject to the job offer requirement. Thus, the petitioner must satisfy an
even higher burden. In other words, it does not suffice to be “good.” Indeed, it
does not suffice to be “exceptional.” By the plain language of the statute, for the
agency to even have discretion to grant a waiver, one must demonstrate such
exceptional talent that his presence is in the national interest. According to Mr.
Repaka’s application, “[w]hat makes [him] unique is that he has a background in
using remote sensed imagery in graphic information systems.” USCIS found that
Mr. Repaka is a competent engineer in a field (transportation engineering with an
emphasis on remote sensing, hazard mapping, and floodplain management) of
substantial intrinsic merit. USCIS also acknowledged the national benefit of Mr.
Repaka’s occupation. A.R. 539. The Court thus assumes that expertise in these
fields is of national importance. NYDOT (bridge safety engineering expert could
provide service of national import). But his waiver request was denied because he
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had not demonstrated such extraordinary ability that a waiver was in the national
interest.
Pointing to his research and reference letters, Mr. Repaka argues that the
AAO’s decision is arbitrary, capricious, and contrary to law. Specifically, he (1)
complains that USCIS did not provide sufficient opportunity to present clarifying
information, and (2) attacks the analysis of his past achievements. (Pl.’s Mot. 4-5.)
A. The Request for Additional Evidence
According to Mr. Repaka, USCIS requires a waiver applicant to “read minds”
because its March 28, 2010 request for additional evidence (“RFE”) was too
general. (Pl.’s Reply 2.) The Court disagrees. The RFE merely offered a second
bite at the apple. It stated that he had satisfied the first prong of the analysis, i.e.,
showing his field to be one of substantial intrinsic merit. But it also explained that
the initial waiver request was not supported by enough evidence that his work is in
the national, as opposed to local, interest. Moreover, it specifically explained that
the agency seeks evidence of his “influence on your field of employment as a
whole” and that “your abilities are greater in some capacity to the majority of your
peers.” A.R. 453. The Court finds no deficiency in the RFE, in terms of adequacy
of notice or otherwise.
B. USCIS Analysis
Mr. Repaka argues that Defendants misunderstood the significance of his
credentials, ignored his supplemental list of citations, A.R. 547-554, and failed to
give proper weight to his reference letters. Again, the Court disagrees.
1. Professional Credentials
The petitioner alone bears the burden of proof. 8 U.S.C. § 1361. See also
Matter of Treasure Craft of Cal., 14 I&N Dec. 190 (R.C. 1972). Commensurate
with that burden is responsibility for explaining the significance of proffered
evidence. The significance of membership in, e.g., the American Society of Civil
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Engineers (“ASCE”), or of any awards, accolades, or certifications, is for him to put
in context and explain in a meaningful way. As the AAO noted, “[t]he unsupported
assertions of counsel do not constitute evidence.” A.R. 560. Yet that is what Mr.
Repaka’s appeal rests upon. He does not show that USCIS failed to give sufficient
weight to his membership in, e.g., the ASCE. Even assuming arguendo that fewer
than nine percent of ASCE members obtain full “Member” status, as he claims,
there is no reason to believe that would render such Members “exceptional” for
purposes of 8 C.F.R. § 204.5(k)(2). USCIS likewise explained that a state license
does not demonstrate exceptional ability, since “every engineer in California passed
the examinations as [Mr. Repaka] did.” A.R. 561. The petitioner has shown no
error in the consideration of his credentials, awards, or affiliations in determining
the record lacked sufficient evidence of exceptional ability.
2. Publications & Citations
Although publication is not a necessary condition for a waiver, publications
and presentations form a significant part of Mr. Repaka’s case. The record indicates
that Mr. Repaka has no published journal articles (though one of his works was
cited in a 2006 journal article), and two of his articles were published in conference
proceedings, most recently in 2004. A.R. 568. USCIS explained that it is not
enough to show that the petitioner plays an important role in his field, because
qualified U.S. workers may perform the same role. A.R. 540. Additionally, if Mr.
Repaka “no longer conducts research for publication or presentation, his past history
of such work offers no prospective benefit to the United States.” A.R. 568.
Assuming that the Google Scholar printout provided by Mr. Repaka is
accurate, at least one of his works was cited as recently as 2010. A.R. 553. Yet
USCIS concluded that Mr. Repaka’s published research has a “very minimal
citation record,” that he has not demonstrated a level of interest in his work that
distinguishes him from his peers, and that his research was not “cutting edge.” Id.
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The AAO agreed that academic citations to student research says little about the
importance of his subsequent professional endeavors, and found that the citations do
not “demonstrate an unusual level of impact or influence in his field.” A.R. 561.
Citations alone establish little, as they provide no indiction as to what his works
were cited for. Thus, Mr. Repaka points to articles citing a 2004 conference paper
he coauthored entitled Comparing Spectral and Object Based Approaches for
Classification and Transportation Feature Extraction from High Resolution
Multispectral Imagery. A.R. 168, 189, 201. A supporting letter from Rodrigo A. A.
Nobrega, Ph.D. of Mississippi State University’s Geosystems Research Institute
explains that Mr. Repaka’s study explored the extraction of transportation features
from multispectral imagery from two satellites. A.R. 234. “The benefit of this
method is that it saves time and allows for accurate and speedy classification and in
turn helps with the planning phase of road construction, railroad relocation and
other major civil transportation projects. Id. That is no doubt helpful, but the cited
pieces do not indicate that Mr. Repaka was or is vital to the development of any
particular application or technique. Consequently, the record lacks sufficient
evidence to discern the prospective benefits of his work or otherwise support an
alternative result here. The Court therefore finds no deficiency in the evaluation of
citations to Plaintiff’s work.
3. Reference Letters
Mr. Repaka also provided several letters of recommendation from previous
employers and others that describe his contributions to specific projects. The letters
suggest that he was instrumental to a floodplain mapping initiative in Mississippi
(A.R. 562-63, 565) and “Trade Corridor Improvement” efforts in California (A.R.
563-65). USCIS found these letters insufficient to establish that he stands apart
from his colleagues to such a degree as to merit a waiver. The AAO considered and
discussed the letters, finding them insufficient, when combined with all the
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evidence, to establish that a waiver was in the national interest. A.R. 561-66. Mr.
Repaka demonstrates nothing to the contrary. For example, according to one letter,
he saved the California Department of Transportation $13 million. The AAO
determined, based on record evidence, that those savings were not attributable to
any particular skill wielded by Mr. Repaka, but instead to waivers obtained based on
exceptions to advisory design standards. A.R. 566.
The supporting letters leave little doubt that Mr. Repaka has expertise in
obtaining useful data from multispectral imaging and other remote sensing
techniques. See, e.g., A.R. 234-35. But, as discussed above, that is insufficient to
satisfy the heavy burden applicable here. Mr. Repaka reveals no errors in the
AAO’s analysis of his reference letters, and the Court finds no reason to disturb the
AAO decision.
IV. CONCLUSION
USCIS accepted all of Plaintiff’s evidence and provided him with an
opportunity to supplement it. The petitioner has shown nothing arbitrary,
capricious, or otherwise improper in the analysis of that evidence. Indeed, he has
failed to establish that he was eligible for a waiver, let alone that the agency abused
its discretion in declining to grant one. The Court accordingly finds that, at both the
initial and appellate level, USCIS provided a thorough analysis and explanation
consistent with the applicable law.
For the reasons stated, the Court DENIES Plaintiff’s motion for summary
judgment and GRANTS Defendants’ motion for summary judgment. The Clerk of
Court shall enter judgment accordingly.
DATED: January 6, 2014
BARRY TED MOSKOWITZ
Chief Judge
United States District Court
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For the Eighth Circuit
___________________________
No. 18-3515
___________________________
April Dixon
lllllllllllllllllllllPlaintiff - Appellant
v.
Andrew Saul, Commissioner, Social Security Administration
lllllllllllllllllllllDefendant - Appellee
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Jonesboro
____________
Submitted: September 24, 2019
Filed: January 28, 2020
[Unpublished]
____________
Before SMITH, Chief Judge, BEAM and ERICKSON, Circuit Judges.
____________
PER CURIAM.
April Dixon, who suffers from an intellectual disorder, applied for
supplemental security income under the Social Security Act. After a hearing on
Appellate Case: 18-3515 Page: 1 Date Filed: 01/28/2020 Entry ID: 4875221
June 8, 2016,
1
the administrative law judge (ALJ) concluded that her limitations,
although severe, do not rise to the level of a disability. The district court2affirmed,
and so do we.
The ALJ determined that Dixon is not disabled for two reasons. See 42 U.S.C.
§ 1382c(a)(3)(A) (defining “disabled,” as relevant here, as an inability to work
because of a “physical or mental impairment”). First, the ALJ found that Dixon’s
mild intellectual disorder, while severe, is not enough to qualify as a “listed
impairment,” specificallyListing 12.05C,
3 which requires a finding of disabilitywhen
the claimant has a valid IQ score between 60 and 70; experiences significantly
subaverage general intellectual functioning before the age of 22; and has a physical
or other mental impairment imposing additionalsignificant work-related limitations.
See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05C (2016); Carlson v. Astrue, 604 F.3d
589, 592 (8th Cir. 2010) (“If the ALJ finds that a claimant has an impairment that
meets or equals one of the listings, then the claimant will be found disabled.”).
1This was Dixon’s fifth hearing in front of an administrative law judge (ALJ),
with the first one occurring in 2009. After each of the five hearings, the ALJ denied
benefits. The first four times, that decision wasreversed: by the Appeals Council the
first two times (to consider psychiatric evidence); by the district court the third time
(to consider whether Dixon met Listing 12.05C); and by the Appeals Council again
the fourth time (to consider more mental impairment evidence).
2The Honorable Patricia S. Harris, United States Magistrate Judge for the
Eastern District of Arkansas, to whom this case was referred for final disposition by
consent of the parties under 28 U.S.C. § 636(c).
3Effective January 17, 2017, the agency revised the listings, and Listing 12.05
no longer contains a part C. Dixon acknowledges in her briefing that the rules in
effect at the time of the hearing apply, and we thus apply and analyze the former
version of 12.05. Further, nothing in the new listing convinces us that the outcome
would be different in any event.
-2-
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Second, the ALJ found that jobs for someone with Dixon’s limitations exist in the
national economy.
In reviewing these determinations, we “do not reweigh the evidence presented
to the ALJ.” Johnson v. Colvin, 788 F.3d 870, 872 (8th Cir. 2015) (quotation
omitted). Rather, we will affirm if findings are supported by substantial evidence in
the record as a whole, “even if inconsistent conclusions may be drawn from the
evidence, and even if we may have reached a different outcome.” McNamara v.
Astrue, 590 F.3d 607, 610 (8th Cir. 2010).
Dixon focuses her appellate argument on the ALJ’s conclusion that Dixon did
not establish former Listing 12.05C and so we begin our analysis there. See Cronin
v. Saul, 945 F.3d 1062, 1066 n.3 (8th Cir. 2019) (explaining the listings and their
relationship to the disability determination). The ALJfound that the evidence did not
establish that Dixon had a low enough IQ (for our purposes, between 60 and 70) to
fit within the entry point to former Listing 12.05C. Although Dixon’s past testscores
seem to fit within this standard, the ALJ noted that past results were not completely
valid or reliable because there was evidence of her malingering or exaggeration. The
district court disagreed with the ALJ’s IQ finding, and we understand why–Dixon’s
valid IQ scores were in the upper 50s and the low 60s; even taking exaggeration and
malingering into account, we are not sure substantial evidence supports the ALJ’s
implicit finding that her IQ was higher than 70. Nonetheless, an IQ of between 60
and 70 is the starting point for the inquiry into former Listing 12.05C,4 not the end.
The ALJ also considered whether Dixon’s three stated disabling conditions–obesity,
hypothyroidism, and depression–were severe enough to limit her ability to work.
4As the district court noted “there is no debate” in this matter over the second
element of former Listing 12.05C–onset before the age of 22.
-3-
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The ALJ found that Dixon’s obesity did not impose any severe limitations on
her daily functional ability. For instance, Dixon testified at the several hearings that
she: took care of her children; cooked; visited friends and family; shopped; did
laundry; rode a bike; obtained her driver’s license; and attended church. With regard
to depression, the ALJ found that depressive disorder did not cause more than a
minimal limitation in Dixon’s ability to perform basic work activities and therefore
was non-severe, citing the fact that Dixon had no history of psychotherapy or other
treatment with a mental health practitioner. While Dixon doestake an anti-depressant
prescribed by her primary care physician, the ALJ found that this medicine appeared
to adequately control her depression symptoms because the record of her daily
activities, listed above, did not appear to be restricted due to depressive disorder
symptoms. Finally, with regard to Dixon’s thyroid condition, the ALJ found that it
was adequately controlled bymedication when she is compliant with saidmedication.
The ALJ noted, and the medical evidence supports, that Dixon went entire years
without taking her thyroid medication. Further, her primary care physician found that
her thyroid condition, if treated properly with medication, was not so severe as to
constitute a disability. See, e.g., Wildman v. Astrue, 596 F.3d 959, 965 (8th Cir.
2010) (“If an impairment can be controlled by treatment or medication, it cannot be
considered disabling.” (quoting Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir.
2004))). Accordingly, substantial evidence in the record supports the ALJ’s finding
that Dixon is only moderately limited with regard to her alleged disabling conditions
of obesity, depression and hypothyroidism, and, on that basis, the ALJ correctly
found that Dixon did not meet former Listing 12.05C.
There is also substantial evidence that jobs exist for Dixon in the national
economy. Responding to a hypothetical question from the ALJ, a vocational expert
testified that such positions are available in sufficient numbers for those like Dixon
who have the ability to perform only unskilled, rote tasks that require direct
supervision and little independent judgment. Because of this, Dixon is not disabled
within the meaning of the Social Security Act and regulations. Brown, 390 F.3d at
-4-
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539 (noting that if the claimant can perform work that exists in sufficient numbers in
the national economy, she is not disabled). The judgment is accordingly affirmed.
______________________________
-5-
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FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JOSEPH THOMPSON, )
)
Plaintiff, )
)
v. ) CIVIL ACTION NO. 2:09-CV-214-SRW
)
SHERIFF LEROY UPSHAW, )
)
Defendant. )
MEMORANDUM OPINION
I. INTRODUCTION
Joseph Thompson [“Thompson”], an indigent inmate, filed this 42 U.S.C. § 1983
action on March 16, 2009. The complaint is pending before the court on Thompson’s
challenge to the validity of a two-day period of imprisonment in the Barbour County Jail
related to a detainer lodged against him by the Sheriff’s Department of Broward County,
Florida. Specifically, Thompson maintains that a jail official advised him that Broward
1
County had fourteen days after his date of release from the Barbour County Jail to obtain
custody pursuant to the detainer, and argues that his confinement for two days after
expiration of the stated fourteen-day time period deprived him of due process and
constituted cruel and unusual punishment.
The defendantfiled a specialreport and supporting evidentiarymaterials addressing
Thompson does not challenge the validity of the detainer. 1
Case 2:09-cv-00214-SRW Document 17 Filed 11/30/11 Page 1 of 12
Thompson’s claims for relief. Pursuant to the orders entered in this case, the court deems
it appropriate to treat this report as a motion for summary judgment. Order of April 28,
2009 - Court Doc. No. 12. Thus, this case is now pending on the defendant’s motion for
summary judgment. Upon consideration of this motion, the evidentiary materials filed in
support thereof and the plaintiff’sresponse, the court concludesthe defendant’s motion for
summary judgment is due to be granted.
II. STANDARD OF REVIEW
“Summary judgment is appropriate ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show there is
no genuine [dispute] as to any material fact and that the moving party is entitled to
judgment as a matter of law.’” Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258,
1263 (11 Cir. 2007) (per curiam) (citation to former rule omitted); Fed.R.Civ.P. Rule
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56(a) (“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.”). The partymoving forsummary judgment “always bearsthe initialresponsibility
2
of informing the district court of the basis for its motion, and identifying those portions of
Effective December 1, 2010, Rule 56 was “revised to improve the procedures for presenting and
2
deciding summary-judgment motions.” Fed.R.Civ.P. 56 Advisory Committee Notes. Under this revision,
“[s]ubdivision (a) carries forward the summary-judgment standard expressed in former subdivision ©, changing
only one word -- genuine ‘issue’ becomes genuine ‘dispute.’ ‘Dispute’ better reflects the focus of a summaryjudgment determination.“ Id. “‘Shall’ is also restored to express the direction to grant summary judgment.” Id.
Thus, although Rule 56 underwent stylistic changes, its substance remains the same and, therefore, all cases citing
the prior versions of the rule remain equally applicable to the current rule.
2
Case 2:09-cv-00214-SRW Document 17 Filed 11/30/11 Page 2 of 12
the [record, including pleadings, discovery materials and affidavits], which it believes
demonstrate the absence of a genuine issue [– now dispute –] of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this burden by
presenting evidence indicating there is no dispute of material fact or by showing that the
nonmoving party has failed to present evidence in support of some element of its case on
which it bears the ultimate burden of proof. Id. at 322-324.
The defendant has met his evidentiary burden and demonstrated the absence of any
genuine dispute of material fact. Thus, the burden shifts to the plaintiff to establish, with
appropriate evidence beyond the pleadings, that a genuine dispute material to his case
exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11 Cir. 1991); Celotex, 477 U.S.
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at 324; Fed.R.Civ.P. 56(e)(3) (“If a party fails to properly support an assertion of fact or
fails to properly address another party’s assertion of fact by [citing to materials in the
record including affidavits, relevant documents or other materials] the court may ... grant
summary judgment if the motion and supporting materials-- including the facts considered
undisputed -- show that the movant is entitled to it.”) A genuine dispute of material fact
exists when the nonmoving party produces probative and admissible evidence that would
allow a reasonable fact-finder to return a verdict in itsfavor. Greenberg, 498 F.3d at 1263.
In civil actions filed by inmates, federal courts
must distinguish between evidence of disputed facts and disputed matters of
professional judgment. In respect to the latter, our inferences must accord
deference to the views of prison authorities. Unless a prisoner can point to
3
Case 2:09-cv-00214-SRW Document 17 Filed 11/30/11 Page 3 of 12
sufficient evidence regarding such issues of judgment to allow him to prevail
on the merits, he cannot prevail at the summary judgment stage.
Beard v. Banks, 548 U.S. 521, 530, 126 S.Ct. 2572, 2578, 165 L.Ed.2d 697 (2006) (internal
citation omitted). Consequently, to survive the defendant’s properly supported motion for
summary judgment, Thompson is required to produce “sufficient [favorable] evidence”
which would be admissible at trial supporting his claims of constitutional violations.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Rule 56(e), Federal Rules of
Civil Procedure. “If the evidence [on which the nonmoving party relies] is merely
colorable ... or is not significantly probative ... summary judgment may be granted.” Id.
at 249-250. “A mere ‘scintilla’ of evidence supporting the opposing party’s position will
not suffice; there must be enough of a showing that the [trier of fact] could reasonably find
for that party. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L.Ed.2d
202 (1986).” Walker v. Darby, 911 F.2d 1573, 1576-1577 (11 Cir. 1990). Conclusory
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allegations based on subjective beliefs are likewise insufficient to create a genuine issue
of material fact and, therefore, do not suffice to oppose a motion for summary judgment.
Waddell v. Valley Forge Dental Associates, Inc., 276 F.3d 1275, 1279 (11 Cir. 2001);
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Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11 Cir. 1997) (plaintiff’s “conclusory
th
assertions ..., in the absence of [admissible] supporting evidence, are insufficient to
withstand summary judgment.”); Harris v. Ostrout, 65 F.3d 912, 916 (11 Cir. 1995) (grant
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of summary judgment appropriate where inmate produces nothing beyond “his own
4
Case 2:09-cv-00214-SRW Document 17 Filed 11/30/11 Page 4 of 12
conclusory allegations” challenging actions of the defendants); Fullman v. Graddick, 739
F.2d 553, 557 (11 Cir. 1984) (“mere verification of party’s own conclusory allegations is
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not sufficient to oppose summary judgment....”). Hence, when a plaintiff fails to set forth
specific facts supported by requisite evidence sufficient to establish the existence of an
element essential to his case and on which the plaintiff will bear the burden of proof at
trial, summary judgment is due to be granted in favor of the moving party. Celotex, 477
U.S. at 322 (“[F]ailure of proof concerning an essential element of the nonmoving party’s
case necessarily renders all other facts immaterial.”); Barnes v. Southwest Forest
Industries, Inc., 814 F.2d 607, 609 (11 Cir. 1987) (If on any part of the prima facie case
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the plaintiff presents insufficient evidence to require submission of the case to the trier of
fact, granting of summary judgment is appropriate).
Forsummaryjudgment purposes, onlydisputes involving materialfacts are relevant.
United States v. One Piece of Real Property Located at 5800 SW 74 Avenue, Miami,
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Florida, 363 F.3d 1099, 1101 (11 Cir. 2004). What is material is determined by the
th
substantive law applicable to the case. Anderson, 477 U.S. at 248; Lofton v. Secretary of
the Department ofChildren and Family Services, 358 F.3d 804, 809 (11 Cir. 2004) (“Only
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factual disputes that are material under the substantive law governing the case will
preclude entry of summary judgment.”). “The mere existence of some factual dispute will
not defeat summary judgment unless that factual dispute is material to an issue affecting
the outcome of the case.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243
5
Case 2:09-cv-00214-SRW Document 17 Filed 11/30/11 Page 5 of 12
(11 Cir. 2003) (citation omitted). To demonstrate a genuine dispute of material fact, the
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party opposing summary judgment “must do more than simply show that there is some
metaphysical doubt as to the material facts.... Where the record taken as a whole could not
lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine [dispute]
for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
In cases where the evidence before the court which is admissible on its face or which can
be reduced to admissible form indicatesthat there is no genuine dispute of material fact and
that the party moving for summary judgment is entitled to it as a matter of law, summary
judgment is proper. Celotex, 477 U.S. at 323-324 (Summary judgment is appropriate
where pleadings, evidentiary materials and affidavits before the court show there is no
genuine dispute as to a requisite material fact); Waddell, 276 F.3d at 1279 (To establish a
genuine dispute of material fact, the nonmoving party must produce evidence such that a
reasonable trier of fact could return a verdict in his favor).
Although factual inferences must be viewed in a light most favorable to the
nonmoving party and pro se complaints are entitled to liberal interpretation by the courts,
a pro se litigant does not escape the burden of establishing by sufficient evidence a genuine
dispute of material fact. Beard, 548 U.S. at 525, 126 S.Ct. at 2576; Brown v. Crawford,
906 F.2d 667, 670 (11 Cir. 1990). Thus, the plaintiff’s pro se status alone does not
th
mandate this court’s disregard of elementary principles of production and proof in a civil
case. In this case, Thompson fails to demonstrate a requisite genuine dispute of material
6
Case 2:09-cv-00214-SRW Document 17 Filed 11/30/11 Page 6 of 12
fact in order to preclude summary judgment. Matsushita, supra.
III. DISCUSSION
A. Absolute Immunity
With respect to any claims Thompson lodges against defendant Upshaw in his
official capacity, the defendant is entitled to absolute immunity from monetary damages.
3
Official capacity lawsuits are “in all respects other than name, ... treated as a suit against
the entity.” Kentucky v. Graham, 473 U. S. 159, 166 (1985). “A state official may not be
sued in his official capacity unlessthe state has waived its Eleventh Amendment immunity,
see Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900,
908, 79 L.Ed.2d 67 (1984), or Congress has abrogated the state’s immunity, see Seminole
Tribe v. Florida, [517 U.S. 44, 59], 116 S.Ct. 1114, 1125, 134 L.Ed.2d 252 (1996).
Alabama has not waived its Eleventh Amendment immunity, see Carr v. City of Florence,
916 F.2d 1521, 1525 (11 Cir. 1990) (citations omitted), and Congress has not abrogated
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Alabama’simmunity. Therefore, Alabama state officials are immune from claims brought
against them in their official capacities.” Lancaster v. Monroe County, 116 F.3d 1419,
1429 (11 Cir. 1997).
th
In light of the foregoing, it is clear that defendant Upshaw is a state actor entitled
Under all facets of Alabama law, a county sheriff and his correctional staff act as state officers “when
3
supervising inmates and otherwise operating the county jails.” Turquitt v. Jefferson County, Alabama, 137 F.3d
1285, 1289 (11 Cir. 1998); see Ala. Const. Art. V, § 112 (designates sheriff and, by extension, his staff as
th
members of State’s executive department); see also Parker v. Amerson, 519 So.2d 442 (Ala. 1987) (county
sheriff is executive officer of the State).
7
Case 2:09-cv-00214-SRW Document 17 Filed 11/30/11 Page 7 of 12
to sovereign immunity under the Eleventh Amendment for claims seeking monetary
damagesfromhimin his official capacity. Lancaster, 116 F.3d at 1429; Jackson v. Georgia
Department of Transportation, 16 F.3d 1573, 1575 (11 Cir. 1994). Thus, the defendant
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is entitled to absolute immunity from any claims for monetary relief presented against him
in his official capacity. Parker v. Williams, 862 F.2d 1471 (11 Cir. 1989).
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B. Relevant Factual History
4
On May 27, 2008, Barbour County law enforcement officials arrested Thompson
pursuant to a warrant for first degree rape and placed him in the Barbour County Jail. On
October 22, 2008, the Sheriff of Broward County, Florida lodged a detainer against
Thompson for third degree theft of property. Defendant’s Exhibit E - Court Doc. No. 8 at
35. The detainer contained copies of capias warrants issued by the Circuit Court of
Broward County, Florida against Thompson for third degree grand theft (two counts) and
carrying a concealed weapon. Id. at 36-37.
On December 17, 2008, Thompson posted bail on the Barbour County rape charge
and executed a waiver of extradition before the District Court of Barbour County, Alabama
The pleadings before the court indicate that the alleged actions which form the basis of the instant
4
complaint occurred during Thompson’s incarceration pursuant to a detainer lodged against him by the Sheriff of
Broward County, Florida and prior to his conviction on a pending charge of first degree rape lodged against him
by the Circuit Court of Barbour County, Alabama. Nevertheless, regardless of Thompson’s status in the jail,
either as a pre-trial detainee or sentenced inmate, the applicable standard of review remains the same. Bell v.
Wolfish, 441 U.S. 520, 99 S.Ct. 1861 (1979); Lancaster v. Monroe County, Ala., 116 F.3d 1419, 1425 n.6 (11
th
Cir. 1997); Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11 Cir. 1996) (citations omitted) (“[T]he applicable
th
standard [of reviewing claims by pre-trial detainees or convicted prisoners under the Fourteenth Amendment’s
Due Process Clause] is the same, so decisional law involving prison inmates applies equally to cases involving
arrestees or pretrial detainees.”)
8
Case 2:09-cv-00214-SRW Document 17 Filed 11/30/11 Page 8 of 12
certifying that he “freely and voluntarily agree[d] to accompany, as a prisoner, any officer
from the State of Florida, to the County of Broward in said State for the purpose of
answering the charge[s] of Grand theft 3 & Carrying Concealed Weapon there pending
rd
against me.” Defendant’s Exhibit C - Court Doc. No. 8 at 29. Thompson also waived all
formalities regarding his extradition to Florida. Id. (“I hereby waive all formality
including, but not limited to, a Requisition by the Governor of the State of Florida and a
Warrant of Extradition by the Governor of the State of Alabama and any other extradition
proceedings.”). At this time, George Parhan, the chief jailor at the Barbour County Jail,
“explained to Mr. Thompson that the Barbour County Sheriff’s Department typically gives
[other] law enforcement agencies fourteen days to pick up extradited prisoners.... On
December 18, 2008, the Broward County Sheriff’s Department arranged with Con-Link
TransportationCorporation to transport Mr. Thompson fromthe Barbour County Jail to the
Broward County Jail [and provided notice of this arrangement to the Barbour County
Sheriff’s Department]. Con-Link was not able to pick up Mr. Thompson for transfer until
January 2, 2009. Because the Broward County Sheriff’s Department made reasonable
efforts to pick up Mr. Thompson within fourteen days, they were extended the courtesy of
an additional two days.” Defendant’s Exhibit F (Affidavit of George Parhan) - Court Doc.
No. 8 at 40; Defendant’s Exhibit G (Affidavit of Leroy Upshaw) - Court Doc. No. 8 at 42-43
(“TheBarbourCountySheriff’s Department has a general policyof giving law enforcement
agencies fourteen days to pick up extradited prisoners. The fourteen-day policy is based
9
Case 2:09-cv-00214-SRW Document 17 Filed 11/30/11 Page 9 of 12
on practical reasons and courtesy towards other law enforcement agencies. The Barbour
County Sheriff’s Department informs other law enforcement agencies of the fourteen-day
policy to encourage them to timely pick up their prisoners and thus avoiding overburdening
the Barbour County Jail. The Barbour CountySheriff’s Department giveslaw enforcement
agencies fourteen days to pick up their prisoners because it is a reasonable time limit in
light of the logistics involved in transferring prisoners. Out of courtesy to other law
enforcement agencies, the Barbour County Sheriff’s Department will extend the fourteenday time limit if an agency has made reasonable efforts, but was unable, to comply.”).
The fourteen-day grace period typically allowed by the Barbour County Sheriff’s
Department for the extradition of inmates expired on December 31, 2008. It is undisputed
that Thompson remained incarcerated in theBarbourCountyJail for an additional two days
pursuant to a valid detainer lodged against him by the Broward County Sheriff’s
Department before officials employed by Florida authorities gained custody of him.
Thompson argues that the failure to follow the jail’s general policy regarding the time
permitted for extradition of an inmate violated his constitutional rights, and he seeks
monetary compensation for the two days he remained in the Barbour County Jail.
C. Claims for Relief
An essential element of a 42 U.S.C. § 1983 action is that the conduct complained
of deprived the plaintiff of rights, privileges or immunities secured by the Constitution or
laws of the United States. American Manufacturers Mutual Ins. Co. v. Sullivan, 526 U.S.
10
Case 2:09-cv-00214-SRW Document 17 Filed 11/30/11 Page 10 of 12
40, 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1999); Parratt v. Taylor, 451 U.S. 527 (1981);
Willis v. University Health Services, Inc., 993 F.2d 837, 840 (11 Cir. 1993).
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1. Due Process. It is undisputed that Thompson waived any constitutional right to
due process associated with his extradition to the State of Florida. Defendant’s Exhibit C -
Court Doc. No. 8 at 29. Thus, the failure to transfer Thompson to Florida within the
fourteen-day time period ordinarily required by Barbour County did not infringe on any
federallyprotected right.In addition, underthe circumstances ofthis case, the departmental
policy at issue did not afford a protected right and, therefore, a breech of the policy did not
violate Thompson’s constitutional rights or federal law. Taylor v. Adams, 221 F.3d 1254,
1259 (11 Cir. 2000) (Correctional officials “failure to follow [administrative policy or]
th
procedures does not, by itself, raise to the level of [a constitutional violation]....”); Harris
v. Birmingham Board of Education, 817 F.2d 1525 (11 Cir. 1987); cf. Sandin v. Conner,
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515 U.S. 472, 484, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995). Consequently, the
allegations of a due process violation provide no basis for relief and the defendant is
therefore entitled to summary judgment on this claim.
2. Cruel and Unusual Punishment. To the extent that Thompson complains that
his confinement in the Barbour County Jail for the two additional daysrequired to facilitate
his transfer subjected him to cruel and unusual punishment, he is likewise entitled to no
relief. Only actions which deny inmates “the minimal civilized measure of life’s
necessities” are grave enough to violate the Eighth Amendment. Rhodes v. Chapman, 452
11
Case 2:09-cv-00214-SRW Document 17 Filed 11/30/11 Page 11 of 12
U.S. 337, 347 (19891). A violation of the Eighth Amendment occurs only when an inmate
5
is subjected to the wanton and unnecessary infliction of pain.” Chandler v. Crosby, 379
F.3d 1278, 1289 (11 Cir. 2004). The mere fact that Thompson remained in the Barbour
th
County Jail pursuant to a valid detainer for two additional days awaiting transfer fails to
rise to the level of cruel and unusual punishment. Thus, summary judgment is due to be
granted in favor of the defendant on this claim.
A separate order will accompany this memorandum opinion.
DONE, this 30 day of November, 2011.
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/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE
The Eighth Amendment applies to the states through the Fourteenth Amendment. Rhodes, 452 U.S. at
5
344-345.
12
Case 2:09-cv-00214-SRW Document 17 Filed 11/30/11 Page 12 of 12 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-almd-3_15-cv-00942/USCOURTS-almd-3_15-cv-00942-1/pdf.json | 442 | Civil Rights Employment | 42:2000 Job Discrimination (Race) | IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
LEE WASHINGTON,
Plaintiff,
v.
RUSSELL COUNTY BOARD OF
EDUCATION, et al.,
Defendants.
)
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)
)
)
)
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)
)
CASE NO. 3:15-CV-942-WKW
[WO]
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff’s pro se Motion for Leave to File Amended
Complaint, Motion to Stay Magistrate Recommendation and Memorandum of Law
in Support. (Doc. # 47.) The court will construe this document as a motion for leave
to file an amended complaint under Fed. R. Civ. P. 15(a). See Fed. R. Civ. P. 8(e);
see also Winthrop-Redin v. United States, 767 F.3d 1210, 1215 (11th Cir. 2014)
(requiring that “pro se filings” be “liberally construe[d]”).
The Eleventh Circuit has made clear that courts should refrain from
dismissing pro se complaints for failure to state a claim where a redrafted pleading
could plausibly cure the complaint’s deficiencies. “Where a more carefully drafted
complaint might state a claim, a [pro se] plaintiff must be given at least one chance
to amend the complaint before the district court dismisses the action with prejudice.”
Case 3:15-cv-00942-WKW-WC Document 48 Filed 09/22/16 Page 1 of 5
2
Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991), overruled in part, Wagner v.
Daewoo Heavy Indus. Am. Corp., 314 F.3d 541 (11th Cir. 2002) (en banc).1 This
rule admits of only two exceptions: “(1) where the plaintiff has indicated that she
does not wish to amend her complaint; and (2) where a more carefully drafted
complaint could not state a claim and is, therefore, futile.” Carter v. HSBC Mortg.
Servs., Inc., 622 F. App’x 783, 786 (11th Cir. 2015).
Plaintiff has given no indication that he does not wish to amend his complaint.
Rather, the motion before the court today shows just the opposite. (Doc. # 47.)
Moreover, Plaintiff’s failure to file the motion until after the Magistrate Judge issued
his recommendation (Doc. # 46) does not warrant a denial of leave to amend. Cf.
Bank, 928 F.2d at 1112 (requiring that leave be granted “where the plaintiff does not
seek leave until after the district court renders final judgment . . . and even where the
plaintiff never seeks leave to amend in the district court, but instead appeals the
district court’s dismissal”) (citations omitted). Accordingly, Plaintiff’s motion for
leave to amend may only be denied if amendment would be futile. Carter, 622 F.
App’x at 786; see Foman v. Davis, 371 U.S. 178, 182 (1962).
Under the Bank standard, futility of amendment is a high bar. “Leave to
amend a complaint is futile when the complaint as amended would still be properly
1 Although Wagner overruled the Bank standard as applied to plaintiffs represented by
counsel, the court explicitly declined to extend its ruling to pro se litigants. 314 F.3d at 542 n.1
(“We decide and intimate nothing about a party proceeding pro se.”).
Case 3:15-cv-00942-WKW-WC Document 48 Filed 09/22/16 Page 2 of 5
3
dismissed.” Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007). Where “the
issue of futility . . . is close,” the court must “err on the side of generosity to the” pro
se plaintiff. O’Halloran v. First Union Nat’l Bank of Fla., 350 F.3d 1197, 1206
(11th Cir. 2003); see Bettencourt v. Owens, 542 F. App’x 730, 735–36 (11th Cir.
2013) (“In deciding whether a more carefully drafted pro se complaint might state a
claim, i.e., whether an amendment would be futile, we have placed a heavy thumb
on the scale in favor of answering that question in the affirmative.”). Thus, futility
of amendment only justifies denial of leave to amend where “a more carefully
drafted complaint could [not] conceivably state a valid claim,” O’Halloran, 350 F.3d
at 1206, or where it is “scarcely possible” that the pro se plaintiff’s amended
complaint would state a legally cognizable claim, Silva v. Bieluch, 351 F.3d 1045,
1049 (11th Cir. 2003).
In light of this forgiving standard of review, Plaintiff must get his second bite
at the apple. To be sure, Plaintiff’s complaint is rife with pleading deficiencies. (See
Doc. # 46 at 8–29 (pointing out the complaint’s various flaws).) But the majority of
Plaintiff’s claims are at least colorable, albeit insufficiently pleaded. For example,
take Plaintiff’s claim of “Retaliation,” which the Magistrate Judge construed as
“alleg[ing] causes of action for retaliation in violation of Title VII of the Civil Rights
Act of 1964 and the Americans with Disabilities Act.” (Docs. # 1 ¶ 21; 46 at 13.)
As written, the complaint fails to allege the elements of the respective causes of
Case 3:15-cv-00942-WKW-WC Document 48 Filed 09/22/16 Page 3 of 5
4
action, and therefore failsto state a claim. (See Doc. # 46 at 13–18.) But, conversely,
nothing in the complaint shows that a valid claim could not “conceivably” be stated.
O’Halloran, 350 F.3d at 1206. It very well may be that Plaintiff “participated in an
activity protected by Title VII,” “suffered an adverse employment action,” and can
show “a causal connection between participation in the protected activity and the
adverse action.” Pipkins v. City of Temple Terrace, 267 F.3d 1197, 1201 (11th Cir.
2001) (setting out the elements of a cause of action for Title VII retaliation).
Looking at the face of the complaint, we simply do not know. And even if the
complaint toes the line of “scarce[ ] possib[ility],” Silvia, 351 F.3d at 1049, we must
“err on the side of generosity” and grant Plaintiff leave to amend. O’Halloran, 350
F.3d at 1206.
In sum, the flaws in Plaintiff’s complaint are largely factual, rather than legal,
in nature. (See generally Doc. # 1.) Given the Eleventh Circuit’s mandate that “pro
se filings” are to be “liberally construe[d],” Winthrop-Redin, 767 F.3d at 1215, and
the “heavy thumb on the scale in favor of” granting leave to amend rather than
dismissing with prejudice, Bettencourt, 542 F. App’x at 736, it cannot be said that
leave to amend should be denied as futile. Thus, because Plaintiff has actively
sought to amend his complaint, neither exception to the Banks rule applies here. See
Carter, 622 F. App’x at 786. Plaintiff therefore must be given a chance to cure his
complaint’s deficiencies. Accordingly, it is ORDERED that Plaintiff’s motion for
Case 3:15-cv-00942-WKW-WC Document 48 Filed 09/22/16 Page 4 of 5
5
leave to file an amended complaint (Doc. # 47) is GRANTED. It is further
ORDERED as follows:
1. On or before October 7, 2016, Plaintiff shall file an amended complaint
that complies with the Middle District of Alabama’s Local Rule 15.1. See M.D. Ala.
LR 15.1 (“Any amendment to a pleading, document or other papers, whether filed
as a matter of course or upon a motion to amend, must, except by leave of court,
reproduce the entire pleading, document or other papers as amended, and may not
incorporate any prior pleading, document or other papers by reference.”);
2. The pending motions to dismiss (Docs. # 9, 11, 12, 15, 18) are DENIED
as moot; and
3. The recommendation of the Magistrate Judge (Doc. # 46) is moot.
DONE this 22nd day of September, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
Case 3:15-cv-00942-WKW-WC Document 48 Filed 09/22/16 Page 5 of 5 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ared-4_15-cv-00039/USCOURTS-ared-4_15-cv-00039-0/pdf.json | 380 | Other Personal Property Damage | 28:1332 Diversity-Personal Injury | UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION
IN RE: THE HOME DEPOT, INC., CUSTOMER
DATA SECURITY BREACH LITIGATION
(SEE ATTACHED SCHEDULE)
fl IN CLERK'S OFACE
U.S.D.C. Atlanta
FEB - 2 2015
MDL No. 2583
CONDITIONAL TRANSFER ORDER (CTO -5)
On December 11, 2014, the Panel transferred 7 civil action(s) to the United States District Court for
the Northern District of Georgia for coordinated or consolidated pretrial proceedings pursuant to 28
U.S.C. § 1407. See _F.Supp.2d_ (J.P.M.L. 2014). Since that time, 8 additional action(s) have been
transferred to the Northern District of Georgia. With the consent of that court, all such actions have
been assigned to the Honorable Thomas W Thrash, Jr.
It appears that the action(s) on this conditional transfer order involve questions of fact that are
common to the actions previously transferred to the Northern District of Georgia and assigned to
Judge Thrash.
Pursuant to Rule 7 .1 of the Rules of Procedure of the United States Judicial Panel on Multidistrict
Litigation, the action(s) on the attached schedule are transferred under 28 U.S.C. § 1407 to the
N orthem District of Georgia for the reasons stated in the order of December 11, 2014, and, with the
consent of that court, assigned to the Honorable Thomas W Thrash, Jr.
This order does not become effective until it is filed in the Office of the Clerk of the United States
District Court for the Northern District of Georgia. The transmittal of this order to said Clerk shall
be stayed 7 days from the entry thereof. If any party files a notice of opposition with the Clerk of the
Panel within this 7-day period, the stay will be continued until further order of the Panel.
Inasmuch as no objection is
pending at this time, the
stay is lifted.
I Feb 02, 201s I
CLERK'S OFFICE
UNITED STATES
JUDICIAL PANEL ON
MULTIDISTRICT LITIGATION �
FOR THE PANEL:
Jeffery N. Luthi
Clerk of the Panel
� .. ' . � . "
- � -
=-.: - = : ffB - 2 -20f5- .
Case 4:15-cv-00039-BRW Document 2 Filed 02/02/15 Page 1 of 2
IN RE: THE HOME DEPOT, INC., CUSTOMER
DATA SECURITY BREACH LITIGATION
SCHEDULE CT0-5 -TAG-ALONG ACTIONS
C.A.NO. CASE CAPTION
ARKANSAS EASTERN
MDL No. 2583
ARE 4 15-00039 Alcoa Community Federal Credit Union v. Home Depot
Inc
Case 4:15-cv-00039-BRW Document 2 Filed 02/02/15 Page 2 of 2 |
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UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
Steven Christopher Crawley,
Plaintiff
-vsCity of Phoenix, et al.,
Defendants.
CV-16-4307-PHX-JJT (JFM)
Report and Recommendation
on Screening of Amended Complaint
BACKGROUND
Issues – Plaintiff has filed a first, of-right Amended Complaint (Doc. 10) prior to
service of an answer pursuant to Federal Rule of Civil Procedure 15(a). The Court is
required to screen complaints brought by prisoners seeking relief against a governmental
entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The
Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are
legally frivolous or malicious, that fail to state a claim upon which relief may be granted,
or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 1915A(b)(1)–(2). The undersigned concludes that Plaintiff’s Amended Complaint fails
to adequately state a claim against some defendants, and therefore those defendants must
be dismissed. This matter is heard by the undersigned on referral, and the conclusions
reached herein would be dispositive as to those defendants. Accordingly, the
undersigned makes this Report and Recommendation with regard to the Amended
Complaint.
Original Complaint - On December 8, 2016, Plaintiff filed his original
Complaint (Doc. 1) suing Maricopa County, the City of Phoenix, and City of Phoenix
Police Officers Luis Mcanany, Henry Smith, Holeman, Morrissey, Conklin, Nealson,
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Michael Naegelt, Holloway, Jane Does A-G, and John Does A-G. Count One alleged
excessive force, and claims for various state law torts. Count Two alleged an Eight
Amendment violation regarding medical care by Maricopa County in the care of his
injuries received from the incident in Count One. In Count Three, Plaintiff alleged Eight
and Fourteenth Amendment violations regarding medical care, asserting a policy and
practice of denying medical care. The Court screened that Complaint and dismissed
Count One and the various city and officer defendants because Plaintiff failed to identify
specific defendants their specific conduct, and thus failed to adequately state a claim, and
therefore the supplemental jurisdiction over the state law claims was declined.
Defendant Maricopa County was ordered to respond to Counts Two and Three. Plaintiff
was ordered to provide service packets for service on Defendant Maricopa County.
AMENDED COMPLAINT
On February 13, 2017, Plaintiff filed his first, of-right Amended Complaint (Doc.
10). See Fed. R. Civ. P. 15(a). This Amended Complaint consists of a single count
alleging claims of excessive use of force in violation of the Eighth and Fourteenth
Amendments. The named defendants are limited to: (1) the City of Phoenix, Arizona;
(2) the Phoenix Police Department; and Officers (3) Louis McAnany; (4) Henry Smith;
(5) Holman; (6) Conklin; (7) Nelson; and (8) Morrissey.
Effect on Omitted Claims/Defendants - Plaintiff does not include in his
Amended Complaint Defendant Maricopa County or the claims in his prior Counts Two
and Three. “It is hornbook law that an amended pleading supersedes the original, the
latter being treated thereafter as non-existent.” Bullen v. De Bretteville, 239 F.2d 824,
833 (9th Cir. 1956), overruled on other grounds by Lacey v. Maricopa County, 693 F.3d
896 (9th Cir. 2012). . Thus, causes of action alleged in an original complaint which are
not alleged in an amended complaint are waived. King v. Atiyeh, 814 F.2d 565, 567 (9th
Cir. 1987). Accordingly, Plaintiff’s Amended Complaint effectively disposes of his
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claims in his prior Counts Two and Three, and terminates Defendant Maricopa County
from this action. Accordingly, the Clerk should be directed to not forward service on
Defendant Maricopa County to the U.S. Marshals Service.
Standard on Screening – A pleading must contain a “short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2)
(emphasis added). While Rule 8 does not demand detailed factual allegations, “it
demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id.
“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for
relief [is] . . . a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific
factual allegations may be consistent with a constitutional claim, a court must assess
whether there are other “more likely explanations” for a defendant’s conduct. Id. at 681.
But as the United States Court of Appeals for the Ninth Circuit has instructed,
courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338,
342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less
stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam)).
Revised Count One - With regard to the revised Count One in the Amended
Complaint, the Court observes that Plaintiff does not again include his state law claims,
but only makes claims based on constitutional violations for excessive use of force. In
disposing of this claim from the original Complaint, the Court concluded that “Plaintiff
has only made vague and conclusory allegations against a group of Defendants, without
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any factual specificity as to what any particular Defendant did or failed to do.” (Order
2/2/17, Doc. 8 at 6.) Plaintiff now makes specific allegations as follows: While
Plaintiff was handcuffed, controlled, and cooperating in his arrest, Defendants McAnany
and Smith acted to “forcefully slam, shove, push and violently position [Plaintiff] against
the patrol car” (Doc. 10 at 5); Defendant Holman joined in the assault, “kicking
[Plaintiff’s] feet and legs and throwing punches to the Plaintiff’s upper body, shoulder
and head area as he was handcuffed” and “did a standing knee drop onto the Plaintiff’s
chest” (id. at 6); Officers Conklin, Nelson and Morrissey “observed the beating and did
nothing to stop it” (id. at 6); the failure to intervene “encouraged the violence toward the
Plaintiff.”
Claims of excessive force in the course of an authorized arrest or detention
“should be analyzed under the Fourth Amendment and its ‘reasonableness' standard.”
Graham v. Connor, 490 U.S. 386, 395 (1989). Whether a particular seizure is reasonable
must be “judged from the perspective of a reasonable officer on the scene,” id. at 396,
and “requires careful attention to the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight,” id.
“[P]olice officers have a duty to intercede when their fellow officers violate the
constitutional right of a suspect or other citizen.” Cunningham v. Gates, 229 F.3d 1271,
1289 (9th Cir.2000). “[T]he constitutional right violated by the passive defendant is
analytically the same as the right violated by the person who strikes the blows.” United
States v. Koon, 34 F.3d 1416, 1447 n. 25 (9th Cir.1994) aff'd in part, rev'd in part, 518
U.S. 81 .(1996). An officer who fails to intervene when his fellow officers use excessive
force to effect a seizure would be responsible, like his colleagues, for violating the
Fourth Amendment. Id. However, officers are liable for a breach of this duty only if they
had “a realistic opportunity” to intercede. Cunningham, 229 F.3d at 1289.
Here, Plaintiff alleges sufficient facts to show that the forced used against him
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was unreasonable. Plaintiff alleges facts suggesting that he posed no immediate threat,
was not actively assisting resisting arrest, or attempting to flee, and was instead already
peacefully in custody when the assault occurred. . The alleged conduct and the
seriousness of Plaintiff's alleged injuries, if taken as true, suggest that the quantum of
force Defendants McAnany, Smith and Holman used was beyond that which was
reasonable. And, Plaintiff sufficiently alleges that Defendants Conklin, Nelson and
Morrissey observed the use of excessive force, had a realistic opportunity to intervene at
the scene, but failed to do so.
On the other hand, Plaintiff fails allege sufficient facts to adequately state a claim
against Defendants City of Phoenix and Phoenix Police Department. For each claim
Plaintiff alleges, he must state the following: (1) the specific constitutional right which
he believes was violated; (2) the individual Defendant whose conduct violated that right;
(3) the specific conduct which violated the right; and (4) the connection between the
Defendant=s conduct and a specific injury Plaintiff suffered as a result of the conduct.
Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). A local governmental unit may not
be held responsible for the acts of its employees under a respondeat superior theory of
liability. See Bd. of County Comm’rs v. Brown, 520 U.S. 397, 403 (1997); Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); and Fogel v. Collins, 531 F.3d 824, 834
(9th Cir. 2008). Therefore, a plaintiff must go beyond the respondeat superior theory of
liability and demonstrate that the alleged constitutional deprivation was the product of a
policy or custom of the local governmental unit, because municipal liability must rest on
the actions of the municipality, and not the actions of the employees of the municipality.
See Brown, 520 U.S. at 403; Monell, 436 U.S. at 690-91; and Fogel, 531 F.3d at 834.
Here, Plaintiff makes no allegations that his injuries resulted from a policy or custom of
the municipal defendants. Accordingly, Defendants City of Phoenix and Phoenix Police
Department must be dismissed.
Conclusions – Based upon the foregoing, the undersigned concludes that
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Defendants City of Phoenix and Phoenix Police Department must be dismissed for
failure to adequately state a claim, and that service of the Complaint on and an answer
from Defendants McAnany, Smith, Holman, Conklin, Nelson and Morissey should be
required. Further, service of the now moot original Complaint should be quashed.
RECOMMENDATIONS
IT IS THEREFORE RECOMMENDED that Defendants City of Phoenix and
Phoenix Police Department be DISMISSED WITHOUT PREJUDICE for failure to
state a claims.
IT IS FURTHER RECOMMENDED that service of the original Complaint and
service on Defendant Maricopa County be QUASHED.
IT IS FURTHER RECOMMENDED that service of the Amended Complaint
(Doc. 10) on Defendants McAnany, Smith, Holman, Conklin, Nelson and Morrissey be
ordered, and they be required to respond to the Amended Complaint by entry of an order
that provides as follows:.
(1) The Clerk of the Court shall send Plaintiff a service packet including both
summons and request for waiver forms for said Defendants.
(2) Plaintiff shall complete and return the service packet to the Clerk of the Court
within 20 days of the date of the filing of this Order. The United States Marshal will not
provide service of process if Plaintiff fails to comply with this Order.
(3) The United States Marshal shall retain the Summons, a copy of such amended
complaint, and a copy of this Order for future use.
(4) The United States Marshal shall notify said Defendants of the commencement
of this action and request waiver of service of the summons pursuant to Rule 4(d) of the
Federal Rules of Civil Procedure. The notice to Defendants shall include a copy of this
Order. The Marshal shall file waivers of service of the summons or requests for waivers
that were returned as undeliverable as soon as they are received. If a waiver of service of
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summons is not returned by Defendants within thirty days from the date the request for
waiver was sent by the Marshal, the Marshal shall: (a) Personally serve copies of the
Summons, such amended Complaint and this Order upon Defendants pursuant to Rule
4(e)(2) of the Federal Rules of Civil Procedure. (b) Within ten days after personal
service is effected, file the return of service for the Defendants, along with evidence of
the attempt to secure a waiver of service of the summons and of the costs subsequently
incurred in effecting service upon the Defendants. The costs of service shall be
enumerated on the return of service form (USM-285) and shall include the costs incurred
by the Marshal for photocopying additional copies of the Summons, such amended
complaint, or this Order and for preparing new process receipt and return forms (USM285), if required. Costs of service will be taxed against the personally served Defendant
pursuant to Rule 4(d)(2) and (5) of the Federal Rules of Civil Procedure, unless
otherwise ordered by the Court.
(5) Defendants who agree to waive service of the Summons and such amended
complaint shall return signed waiver forms to the United State Marshal, and not to
Plaintiff.
(6) Said Defendants shall answer such amended complaint or otherwise respond
by appropriate motion within the time provided by the applicable provisions of Rule
12(a) of the Federal Rules of Civil Procedure.
(7) Any answer or responsive pleading shall state the specific Defendant(s) by
name on whose behalf it is filed. The Court may strike any answer, responsive pleading,
or other motion or paper that does not identify the specific Defendant(s) by name on
whose behalf it is filed.
EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules
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of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have
fourteen (14) days from the date of service of a copy of this recommendation within
which to file specific written objections with the Court. Thereafter, the parties have
fourteen (14) days within which to file a response to the objections. Failure to timely file
objections to any findings or recommendations of the Magistrate Judge will be
considered a waiver of a party's right to de novo consideration of the issues, see United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute
a waiver of a party's right to appellate review of the findings of fact in an order or
judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v.
Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
Dated: February 17, 2017
16-4307o Order 17 02 14 re MAmend.docx
James F. Metcalf
United States Magistrate Judge
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Case No. 5:14-cv-03750-PSG
PRELIMINARY JURY INSTRUCTIONS
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United States District Court
For the Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
CORNING OPTICAL
COMMUNICATIONS WIRELESS LTD.,
Plaintiff,
v.
SOLID, INC., et al.,
Defendants.
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Case No. 5:14-cv-03750-PSG
PRELIMINARY JURY
INSTRUCTIONS
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United States District Court
For the Northern District of California
1. DUTY OF JURY
Ladies and gentlemen: You are now the jury in this case. It is my duty to instruct you on the law.
These instructions are preliminary instructions to help you understand the principles that apply to
civil trials and to help you understand the evidence as you listen to it. You will be allowed to keep
this set throughout the trial to which to refer. This set of instructions is not to be taken home and
must remain in the jury room when you leave in the evenings. At the end of the trial, I will give
you a final set of instructions. It is the final set of instructions which will govern your
deliberations.
You must not infer from these instructions or from anything I may say or do as indicating that I
have an opinion regarding the evidence or what your verdict should be.
It is your duty to find the facts from all the evidence in the case. To those facts you will apply the
law as I give it to you. You must follow the law as I give it to you whether you agree with it or
not. And you must not be influenced by any personal likes or dislikes, opinions, prejudices, or
sympathy. That means that you must decide the case solely on the evidence before you. You will
recall that you took an oath to do so.
In following my instructions, you must follow all of them and not single out some and ignore
others; they are all important.
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United States District Court
For the Northern District of California
2. BACKGROUND
This is a case alleging infringement of a single patent.
Plaintiff Corning Optical Communications Wireless, Ltd. develops and sells distributed antenna
systems. Corning owns United States Patent No. 5,969,837. The ’837 patent teaches a DAS that
uses a single optical fiber “simultaneously for a number of wireless communications systems.”
Defendant SOLiD, Inc. manufactures ALLIANCE Multi-Carrier DAS products, and Defendant
Reach Holdings, LLC distributes these products in the United States.
Corning alleges that the Alliance DAS products infringe Claims 1 through 8 of the ’837 patent and
that SOLiD and Reach have made, used, sold, offered to sell and/or imported these products in the
United States. Corning also alleges that SOLiD and Reach have induced or contributed to others’
infringement of the patent and that the infringement was willful. SOLiD and Reach deny that they
have infringed the ’837 patent and also argue that these claims of the ’837 patent are invalid.
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United States District Court
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3. WHAT IS EVIDENCE
The evidence you are to consider in deciding what the facts are consists of:
1. the sworn testimony of any witness;
2. the exhibits which are received into evidence; and
3. any facts to which the lawyers have agreed.
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United States District Court
For the Northern District of California
4. WHAT IS NOT EVIDENCE
In reaching your verdict, you may consider only the testimony and exhibits received into evidence.
Certain things are not evidence, and you may not consider them in deciding what the facts are.
I will list them for you:
(1) Arguments and statements by lawyers are not evidence. The lawyers are not witnesses.
What they have said in their opening statements, will say in their closing arguments, and at
other times is intended to help you interpret the evidence, but it is not evidence. If the facts
as you remember them differ from the way the lawyers have stated them, your memory of
them controls.
(2) Questions and objections by lawyers are not evidence. Attorneys have a duty to their
clients to object when they believe a question is improper under the rules of evidence. You
should not be influenced by the objection or by the court’s ruling on it.
(3) Testimony that has been excluded or stricken, or that you have been instructed to disregard,
is not evidence and must not be considered. In addition sometimes testimony and exhibits
are received only for a limited purpose; when I give a limiting instruction, you must follow
it.
(4) Anything you may have seen or heard when the court was not in session is not evidence.
You are to decide the case solely on the evidence received at the trial.
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United States District Court
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5. DIRECT AND CIRCUMSTANTIAL EVIDENCE
Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as
testimony by a witness about what that witness personally saw or heard or did. Circumstantial
evidence is proof of one or more facts from which you could find another fact. You should
consider both kinds of evidence. The law makes no distinction between the weight to be given to
either direct or circumstantial evidence. It is for you to decide how much weight to give to any
evidence.
By way of example, if you wake up in the morning and see that the sidewalk is wet, you may find
from that fact that it rained during the night. However, other evidence, such as a turned on garden
hose, may provide a different explanation for the presence of water on the sidewalk. Therefore,
before you decide that a fact has been proved by circumstantial evidence, you must consider all the
evidence in the light of reason, experience, and common sense.
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United States District Court
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6. RULING ON OBJECTIONS
What are rules of evidence that control what can be received into evidence? When a lawyer asks a
question or offers an exhibit into evidence and a lawyer on the other side thinks that it is not
permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question
may be answered or the exhibit received. If I sustain the objection, the question cannot be
answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, you
must ignore the question and must not guess what the answer might have been.
Sometimes I may order that evidence be stricken from the record and that you disregard or ignore
the evidence. That means that when you are deciding the case, you must not consider the evidence
that I told you to disregard.
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United States District Court
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7. CREDIBILITY OF WITNESSES
In deciding the facts in this case, you may have to decide which testimony to believe and which
testimony not to believe. You may believe everything a witness says, or part of it, or none of it.
Proof of a fact does not necessarily depend on the number of witnesses who testify about it.
In considering the testimony of any witness, you may take into account:
(1) the opportunity and ability of the witness to see or hear or know the things testified to;
(2) the witness’s memory;
(3) the witness’s manner while testifying;
(4) the witness’s interest in the outcome of the case and any bias or prejudice;
(5) whether other evidence contradicted the witness’s testimony;
(6) the reasonableness of the witness’s testimony in light of all the evidence; and
(7) any other factors that bear on believability.
The weight of the evidence as to a fact does not necessarily depend on the number of witnesses
who testify about it.
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United States District Court
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8. CONDUCT OF THE JURY
I will now say a few words about your conduct as jurors.
First, keep an open mind throughout the trial, and do not decide what the verdict should be until
you and your fellow jurors have completed your deliberations at the end of the case.
Second, because you must decide this case based only on the evidence received in the case and on
my instructions as to the law that applies, you must not be exposed to any other information about
the case or to the issues it involves during the course of your jury duty. Thus, until the end of the
case or unless I tell you otherwise:
Do not communicate with anyone in any way and do not let anyone else communicate with you in
any way about the merits of the case or anything to do with it. This includes discussing the case in
person, in writing, by phone or electronic means, via e-mail, text messaging, or any Internet chat
room, blog, Web site or other feature. This applies to communicating with your fellow jurors until
I give you the case for deliberation, and it applies to communicating with everyone else including
your family members, your employer, the media or press, and the people involved in the trial,
although you may notify your family and your employer that you have been seated as a juror in the
case.
But, if you are asked or approached in any way about your jury service or anything about this case,
you must respond that you have been ordered not to discuss the matter and to report the contact to
the court.
Because you will receive all the evidence and legal instruction you properly may consider to return
a verdict: do not read, watch, or listen to any news or media accounts or commentary about the
case or anything to do with it; do not do any research, such as consulting dictionaries, searching the
Internet or using other reference materials; and do not make any investigation or in any other way
try to learn about the case on your own.
The law requires these restrictions to ensure the parties have a fair trial based on the same evidence
that each party has had an opportunity to address. A juror who violates these restrictions
jeopardizes the fairness of these proceedings, and a mistrial could result that would require the
entire trial process to start over. If any juror is exposed to any outside information, please notify
the court immediately.
Case 5:14-cv-03750-PSG Document 396 Filed 10/07/15 Page 9 of 14
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9. NO TRANSCRIPT AVAILABLE TO JURY
During deliberations, you will have to make your decision based on what you recall of the
evidence. You will not have a transcript of the trial. I urge you to pay close attention to the
testimony as it is given.
If at any time you cannot hear or see the testimony, evidence, questions or arguments, let me know
so that I can correct the problem.
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10. TAKING NOTES
If you wish, you may take notes to help you remember the evidence. If you do take notes, please
keep them to yourself until you and your fellow jurors go to the jury room to decide the case. Do
not let note-taking distract you. When you leave, your notes should be left in the jury room. No
one will read your notes. They will be destroyed at the conclusion of the case.
Whether or not you take notes, you should rely on your own memory of the evidence. Notes are
only to assist your memory. You should not be overly influenced by your notes or those of your
fellow jurors.
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11. QUESTIONS TO WITNESSES BY JURORS
You will be allowed to propose written questions to witnesses after the lawyers have completed
their questioning of each witness. You may propose questions in order to clarify the testimony, but
you are not to express any opinion about the testimony or argue with a witness. If you propose any
questions, remember that your role is that of a neutral fact finder, not an advocate.
Before I excuse each witness, I will offer you the opportunity to write out a question on a form
provided by the court. Do not sign the question. I will review the question with the attorneys to
determine if it is legally proper.
There are some proposed questions that I will not permit, or will not ask in the wording submitted
by the juror. This might happen either due to the rules of evidence or other legal reasons, or
because the question is expected to be answered later in the case. If I do not ask a proposed
question, or if I rephrase it, do not speculate as to the reasons. Do not give undue weight to
questions you or other jurors propose. You should evaluate the answers to those questions in the
same manner you evaluate all of the other evidence.
By giving you the opportunity to propose questions, I am not requesting or suggesting that you do
so. It will often be the case that a lawyer has not asked a question because it is legally
objectionable or because a later witness may be addressing that subject.
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12. BENCH CONFERENCES AND RECESSES
From time to time during the trial, it may become necessary for me to talk with the attorneys out of
the hearing of the jury, either by having a conference at the bench when the jury is present in the
courtroom, or by calling a recess. Please understand that while you are waiting, we are working.
The purpose of these conferences is not to keep relevant information from you, but to decide how
certain evidence is to be treated under the rules of evidence and to avoid confusion and error.
Of course, we will do what we can to keep the number and length of these conferences to a
minimum. I may not always grant an attorney’s request for a conference. Do not consider my
granting or denying a request for a conference as any indication of my opinion of the case or of
what your verdict should be.
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SHEPPARD, WAYTE &
CARRUTH LLP
CENTRE PLAZA OFFICE TOWER
1150 NINTH STREET, SUITE 1200
MODESTO, CA 95354
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48525/00046-1075714.v1
W.N., ET AL. V. RIPON USD, ET AL. 2:07-CV-00166-GEB-EFB
Jeffrey R. Olson, # 120945
McCormick, Barstow, Sheppard,
Wayte & Carruth LLP
Centre Plaza Office Tower
1150 Ninth Street, Suite 1200
Modesto, CA 95354
Telephone: (209) 524-1100
Facsimile: (209) 524-1188
Attorneys for Defendants
Ripon Unified School District, Leo Zuber, Carla
Travaille, Larry Stewart, David Whithycombe, Frank
Ferral, Claudia Nepote, San Joaquin County Office of
Education, and Punkin Legris
(SPACE BELOW FOR FILING STAMP ONLY)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT
W.N., a minor, by and through his parents,
S.N. and J.N., and S.N. and J.N.,
individually,
Plaintiffs,
v.
RIPON UNIFIED SCHOOL DISTRICT,
and LEO ZUBER, individually and in his
official capacity as superintendent for
RIPON UNIFIED SCHOOL DISTRICT,
and RIPON UNIFIED SCHOOL BOARD
MEMBERS: CARLA TRAVAILLE,
LARRY STEWART, DAVID
WHITHYCOMBE, FRANK FERRAL, and
CLAUDIA NEPOTE, each in his or her
official capacity as a member of the Ripon
Unified School District Board, and SAN
JOAQUIN COUNTY OFFICE OF
EDUCATION and STONE SOUP CHILD
CARE PROGRAMS and PUNKIN
LEGRIS, Manager of the Ripon School
District Stone Soup Program in her official
capacity,
Defendants.
Case No. 2:07-CV-00166-GEB-EFB
STIPULATION EXTENDING TIME TO
ANSWER COMPLAINT; [PROPOSED]
ORDER THEREON (Local Rule 6-144(a))
NOW COMES Plaintiffs, W.N. S.N., and J.N., by and through their counsel, Tamara L.
Loughrey, Jeffrey R. Olson of McCormick, Barstow, Sheppard, Wayte & Carruth, counsel for
Defendants, RIPON UNIFIED SCHOOL DISTRICT, LEO ZUBER, CARLA TRAVAILLE,
Case 2:07-cv-00166-GEB-EFB Document 15 Filed 03/22/07 Page 1 of 4
MCCORMICK, BARSTOW,
SHEPPARD, WAYTE &
CARRUTH LLP
CENTRE PLAZA OFFICE TOWER
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MODESTO, CA 95354
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48525/00046-1075714.v1 2
W.N., ET AL. V. RIPON USD, ET AL. 2:07-CV-00166-GEB-EFB
LARRY STEWART, DAVID WHITHYCOMBE, FRANK FERRAL, CLAUDIA NEPOTE,
SAN JOAQUIN COUNTY OFFICE OF EDUCATION, AND PUNKIN LEGRIS, and Timothy
M. Blaine of Porter, Scott, Weiberg & Delehant, counsel for Defendant, STONE SOUP CHILD
CARE PROGRAMS, in this action. This is the second request for an extension to respond to the
complaint by Defendants, RIPON UNIFIED SCHOOL DISTRICT, LEO ZUBER, CARLA
TRAVAILLE, LARRY STEWART, DAVID WHITHYCOMBE, FRANK FERRAL, CLAUDIA
NEPOTE, SAN JOAQUIN COUNTY OFFICE OF EDUCATION, AND PUNKIN LEGRIS.
These Defendants were granted an extension of 30 days past the time to file a responsive
pleading, from February 19, 2007 to March 22, 2007. (See Document No. 13 filed in this case.)
These Defendants now seek approval of the Court for this second extension to file an answer only
to the complaint based upon the grounds set forth in the Declaration of Jeffrey R. Olson to follow
here.
IT IS SO STIPULATED.
Dated: March 22, 2007 LAW OFFICES OF TAMARA L. LOUGHREY
AND CHRISTOPHER IDE-DON
By: /s/Tamara L. Loughrey
Tamara L. Loughrey
State Bar No. 227001
Attorneys for Plaintiffs, W.N., S.N., and J.N.
Dated: March 22, 2007 PORTER, SCOTT, WEIBERG & DELEHANT
By: /s/ Timothy M. Blaine
Timothy M. Blaine
State Bar No. 124176
Attorneys for Defendant Stone Soup Child
Care Programs
. . .
Case 2:07-cv-00166-GEB-EFB Document 15 Filed 03/22/07 Page 2 of 4
MCCORMICK, BARSTOW,
SHEPPARD, WAYTE &
CARRUTH LLP
CENTRE PLAZA OFFICE TOWER
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48525/00046-1075714.v1 3
W.N., ET AL. V. RIPON USD, ET AL. 2:07-CV-00166-GEB-EFB
Dated: March 22, 2007 McCORMICK, BARSTOW, SHEPPARD,
WAYTE & CARRUTH LLP
By: /s/ Jeffrey R. Olson
Jeffrey R. Olson
Attorneys for Defendants
Ripon Unified School District, Leo Zuber,
Carla Travaille, Larry Stewart, David
Whithycombe, Frank Ferral, Claudia
Nepote, San Joaquin County Office of
Education, and Punkin Legris
DECLARATION OF JEFFREY R. OLSON
I, JEFFREY R. OLSON, declare:
1. I am an attorney at law duly admitted to practice before all the courts of the State
of California, and a partner of McCormick, Barstow, Sheppard, Wayte & Carruth.
2. I was not notified until March 19, 2007 by the claims administrator for
Defendants, RIPON UNIFIED SCHOOL DISTRICT and SAN JOAQUIN COUNTY OFFICE
OF EDUCATION, that I would be representing each of the following Defendants in this action:
RIPON UNIFIED SCHOOL DISTRICT, LEO ZUBER, CARLA TRAVAILLE, LARRY
STEWART, DAVID WHITHYCOMBE, FRANK FERRAL, CLAUDIA NEPOTE, SAN
JOAQUIN COUNTY OFFICE OF EDUCATION, AND PUNKIN LEGRIS. The delay in such
notification of representation was to resolve coverage issues.
3. I, with the assistance of other attorneys in my firm, was not able to complete an
evaluation of the allegations in the complaint to determine what type of pleading would be filed
in this case for these Defendants until the afternoon of March 20, 2007. I have determined that
these Defendants will file an answer to the complaint as their responsive pleading.
4. My mother was hospitalized on March 21, 2007 at Memorial Hospital in Modesto
for a life-threatening intestinal blockage and is being scheduled for surgery sometime today. My
mother faces significant health risks as she is already in very poor health. I have not been able to
devote the time I had scheduled to work on this case since my mother was hospitalized yesterday
Case 2:07-cv-00166-GEB-EFB Document 15 Filed 03/22/07 Page 3 of 4
MCCORMICK, BARSTOW,
SHEPPARD, WAYTE &
CARRUTH LLP
CENTRE PLAZA OFFICE TOWER
1150 NINTH STREET, SUITE 1200
MODESTO, CA 95354
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W.N., ET AL. V. RIPON USD, ET AL. 2:07-CV-00166-GEB-EFB
morning.
5. I will need time to meet with each of these individually named Defendants in order
to fully prepare the answer to the complaint on behalf of each of these Defendants. I anticipate
that it will take me at least until April 4, 2007 in which to file an answer to the complaint on
behalf of each of these Defendants.
I declare under penalty of perjury under the laws of the State of California that this
Declaration was executed on March 22, 2007, at Modesto, California, and that the foregoing is
true and correct of my own personal knowledge
/s/ Jeffrey R. Olson ___________________
JEFFREY R. OLSON
ORDER
Upon reviewing the Stipulation Extending Time to Answer the Complaint entered into by
and between Plaintiffs, W.N. S.N., and J.N., and Defendants, RIPON UNIFIED SCHOOL
DISTRICT, LEO ZUBER, CARLA TRAVAILLE, LARRY STEWART, DAVID
WHITHYCOMBE, FRANK FERRAL, CLAUDIA NEPOTE, SAN JOAQUIN COUNTY
OFFICE OF EDUCATION, PUNKIN LEGRIS, and STONE SOUP CHILD CARE
PROGRAMS, the accompanying Declaration of Jeffrey R. Olson, and good cause appearing
therefore, it is hereby ORDERED as follows:
That Defendants, RIPON UNIFIED SCHOOL DISTRICT, LEO ZUBER, CARLA
TRAVAILLE, LARRY STEWART, DAVID WHITHYCOMBE, FRANK FERRAL, CLAUDIA
NEPOTE, SAN JOAQUIN COUNTY OFFICE OF EDUCATION, AND PUNKIN LEGRIS, are
hereby granted an extension up to and including April 4, 2007 in which to file an answer to the
complaint.
DATED: March 22, 2007
Case 2:07-cv-00166-GEB-EFB Document 15 Filed 03/22/07 Page 4 of 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-5_06-cv-04414/USCOURTS-cand-5_06-cv-04414-16/pdf.json | 470 | Civil (Rico) | 18:1962 Racketeering (RICO) Act | UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORN
I
A
IT IS SO ORDERED
Judge James Ware
Case 5:06-cv-04414-JW Document 87 Filed 07/30/07 Page 1 of 3
Case 5:06-cv-04414-JW Document 87 Filed 07/30/07 Page 2 of 3
2007 is continued to September 24, 2007 at 10 a.m. The parties shall file a Joint Case
Management Conference statement by September 14, 2007. This is the parties' final
continuance.
30
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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ared-3_07-cv-00105/USCOURTS-ared-3_07-cv-00105-0/pdf.json | 190 | Other Contract Actions | 28:1441 Petition For Removal--Other Contract | IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
OLD ST. PAUL BAPTIST CHURCH PLAINTIFF
v. 3:07CV00105-WRW
BOAZ HOME IMPROVEMENT
COMPANY, L.L.C., et al. DEFENDANTS
ORDER
Pending is Defendants’ unopposed Motion to Remand to state court (Doc. No. 15).
Plaintiff has responded (Doc. No. 17) and requests the award of attorney’s fees, costs, and
expenses incurred in connection with the removal of this action. Plaintiff’s request is DENIED.
Defendants’ Motion to Remand is GRANTED and this case is REMANDED to the
Circuit Court of Crittenden County, Arkansas.
This Order renders all other pending motions in this case moot (Doc. Nos. 6 and 7).
IT IS SO ORDERED THIS 5th day of October, 2007.
/s/ Wm. R. Wilson, Jr.
UNITED STATES DISTRICT JUDGE
Case 3:07-cv-00105-BRW Document 18 Filed 10/05/07 Page 1 of 1 |
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The Court notes that although Defendant McCoy’s first name appears as “Mathew” on the
Plaintiffs’ FAC, the Defendants spell it as “Matthew” in their pleadings.
- 1 - 09cv1672
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
TERRY RONDBERG, D.C. and THE
CHIROPRACTIC JOURNAL AND
JOURNAL OF VERTEBRAL
SUBLUXATION,
Plaintiffs,
CASE NO. 09-CV-1672-H (CAB)
ORDER GRANTING
DEFENDANT MCCOY’S
MOTION TO DISMISS WITH
LEAVE TO AMEND
vs.
MATHEW MCCOY a.k.a. MATT
MCCOY a.k.a. DR. MATT MCCOY and
DOES 1 to 100, inclusive,
Defendants.
On March 4, 2009, Plaintiffs Terry Rondberg, D.C. and the Chiropractic Journal and
Journal of Vertebral Subfluxation filed their First Amended Complaint (“FAC”) against
Defendants Mathew1
McCoy and Does 1 through 100 in the San Diego Superior Court. (Doc.
No. 1.) The FAC alleged seventeen causes of action: (1) breach of contract, (2) RICO
violations, (3) violations of Cal. Bus. & Prof. Code § 17200 et seq., (4) conversion and
misappropriation of funds, (5) breach of fiduciary duty, (6) fraud, (7) negligent
misrepresentation, (8) accounting, (9) money had and received, (10) libel, (11) slander, (12)
invasion of privacy, (13) violation of statutory and common law unfair competition by
Case 3:09-cv-01672-H-CAB Document 7 Filed 09/21/09 Page 1 of 15
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Additionally, Defendant claims that this Court has original jurisdiction based on diversity,
28 U.S.C. § 1332. (Doc. No. 1 at 2.)
- 2 - 09cv1672
infringement of common-law trademark rights, unfair and deceptive conduct, (14) false
designation, (15) dilution, (16) intentional interference with business relationships, and (17)
negligent interference with business relationships. (Id.) On August 3, 2009, Defendant
McCoy removed the action to this Court pursuant to 28 U.S.C. § 1441(b), because this Court
has original jurisdiction over the RICO violation claim.2
(Id.) On August 10, 2009,
Defendants filed a motion to dismiss the FAC pursuant to the Federal Rule of Civil Procedure
12(b)(6) or, in the alternative, for a more definite statement of the claims pursuant to the
Federal Rule of Civil Procedure 12(e). (Doc. No. 3.) Plaintiffs filed a response in opposition
on September 4, 2009. (Doc. No. 5.) Defendants filed their reply to Plaintiffs’ opposition on
September 14, 2009. (Doc. No. 6.) For the following reasons, the Court GRANTS
Defendants’ motion to dismiss Plaintiffs’ FAC.
Background
Plaintiffs allege that Defendant Terry Rondberg, D.C. (“Rondberg”) and Cynthia
Rondberg are owners and sole shareholders of The Chiropractic Journal, Inc. (FAC ¶ 12.)
Plaintiffs allege that Rondberg founded the Journal of Vertebral Subluxation Research
(“JVSR”), a peer-reviewed scientific journal. (FAC ¶¶ 14-15.) Plaintiffs allege that JVSR
operated a website, www.jvsr.com, and received revenue from advertising on the internet and
through its publications. (Id.) Plaintiffs allege that on or about April 1, 2000, JVSR, through
Rondberg, “engaged Defendant, Matthew McCoy, D.C. to act as the JVSR editor.” (FAC ¶
18.)
Plaintiffs further allege that JVSR’s revenue from credit card merchant accounts was
processed through the Chiropractic Journal until on or about until April 24, 2006, when
Defendant McCoy (“McCoy”) reorganized the merchant account to direct charges to JSVR,
as part of a scheme to divert JSVR property and money for McCoy’s personal benefit. (Id. ¶¶
22-23.) Plaintiffs allege that since mid-2008, McCoy assumed control of the JSVR’s
operations and engaged in a “series of unauthorized, un-consented and illegal actions,”
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including: changing the registration of the JVSR’s domain name to himself, “absconding and
diverting funds of JVSR” for his personal benefit, excluding the Chiropractic Journal and
Rondberg from JVSR operations, falsely disseminating statements that McCoy is the owner
of JVSR, undermining the operation of JVSR, promoting and operating own projects and
business entities on JVSR’s website, blocking the Chiropractic Journal and Rondberg from
accessing JVSR’s books, records, and bank accounts, holding oneself out as the owner/sole
director/officer of JVSR, contacting JVSR customers to divert them to bank accounts
established by McCoy, abetting unnamed co-conspirators to carry out a common plan to
defraud Plaintiffs, engaging in a campaign to disparage and destroy Rondberg and diminish
his reputation in the chiropractic community, establishing an enterprise calculated to engage
in illegal conduct, including mail fraud and embezzlement, to the detriment of the Plaintiffs,
intentionally publishing false statements, private facts and disparaging comments concerning
Plaintiffs. (FAC at 6-7.)
Plaintiffs allege that McCoy engaged in malicious and illegal conduct to undermine
Plaintiffs’ operations and affiliations within the chiropractic community, misappropriated
JVSR’s trade secrets and customer lists for his own use, and engaged in competitive conduct
against JVSR and Plaintiffs. (Id. at 7.) Plaintiffs allege that McCoy hijacked JVSR’s website,
internet operations, merchant accounts, and internet-related operations. (Id.) Plaintiffs allege
that McCoy used JVSR’s resources to operate a personal business known as “Glass Houses.”
(Id.) Plaintiffs allege that McCoy intentionally disseminated false, offensive, private and
confidential information and statements in order to cast Plaintiffs in a false light. (Id.)
Plaintiffs allege that since approximately December 2008, McCoy and Does 1 through
50 engaged in a pattern and scheme to embezzle and convert the funds and property of JVSR
and the Chiropractic Journal. (Id.) Finally, Plaintiffs allege that they have suffered damages
in an amount to be determined, but believed to be in excess of $1 million, as a result of
McCoy’s and Does’ 1 through 50, common plan, scheme, defamation, and illegal conduct. (Id.
at 8.)
///
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Discussion
I. Motion to Dismiss Pursuant to 12(b)(6)
A motion to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) tests
the legal sufficiency of the claims asserted in the complaint. Navarro v. Black, 250 F.3d 729,
731 (9th Cir. 2001). A complaint generally must satisfy only the minimal notice pleading
requirements of Federal Rule of Civil Procedure 8(a)(2) to evade dismissal under a Rule
12(b)(6) motion. Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). Rule 8(a)(2) requires that
a pleading stating a claim for relief contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” The function of this pleading requirement is to “give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Conley v.
Gibson, 355 U.S. 41, 47 (1957). “While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the
‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A complaint does not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
(2009) (quoting id. at 556). “Factual allegations must be enough to raise a right to relief above
the speculative level.” Twombly, 127 S.Ct. at 1965 (citing 5 C. Wright & A. Miller, Federal
Practice and Procedure § 1216, pp. 235–36 (3d ed. 2004)). “All allegations of material fact
are taken as true and construed in the light most favorable to plaintiff. However, conclusory
allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for
failure to state a claim.” Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir.1996); see
also Twombly, 127 S.Ct. at 1964–65.
“Generally, a district court may not consider any material beyond the pleadings in ruling
on a Rule 12(b)(6) motion.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542,
1555 n.19 (9th Cir.1990). The court may, however, consider the contents of documents
specifically referred to and incorporated into the complaint. Branch v. Tunnell, 14 F.3d 449,
454 (9th Cir.1994).
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A. Breach of Contract, Breach of Fiduciary Duty and Accounting
Plaintiffs’ first cause of action is for breach of contract. In a breach of contract claim
under California law, a plaintiff must allege (1) a contract, (2) plaintiff’s performance, (3)
defendant’s breach, and (4) damages. McDonald v. John P. Scripps Newspaper, 210
Cal.App.3d 100, 104 (1989).
Plaintiffs’ fifth cause of action is for breach of fiduciary duty. The elements of a claim
for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) its breach, and
(3) damage proximately caused by that breach. Amtower v. Photon Dynamics, Inc., 158 Cal.
App.4th 1582, 1599 (2008). “Whether a fiduciary duty exists is generally a question of law.”
Id. (citation omitted). “Whether the defendant breached that duty towards the plaintiff is a
question of fact.” Id. (citation omitted).
Plaintiffs’ eighth cause of action is for accounting. (FAC ¶¶ 76-79.) To state a claim
for accounting under California law, a plaintiff must allege a fiduciary relationship or other
circumstances appropriate to the remedy and a balance due from the defendant to the plaintiff
that can only be ascertained by an accounting. See Glue-Fold, Inc. v. Slautterback Corp., 82
Cal.App.4th 1018, 1023 n.3 (2000); 5 Witkin, Cal. Proc. (4th ed. 1997) Pleading, §§ 775-77,
pp. 233-35.
Plaintiffs do not allege the existence of a contract, only that Plaintiffs engaged McCoy
“to act as the JVSR editor.” (FAC ¶18.) Plaintiffs do not allege facts giving rise to any duty
between the parties. Instead, Plaintiffs make a conclusory allegation that because McCoy had
a duty to manage JVSR, he was required to act as a fiduciary to Plaintiffs. (FAC ¶ 78.)
Likewise, Plaintiffs have not established the elements of the claim for breach of fiduciary duty.
Plaintiffs only make legally conclusory allegations that McCoy materially breached
agreements attached to the complaint as exhibits. (Id. ¶¶ 30-31.) However, Plaintiffs did not
attach any agreements to the FAC and do not enhance their allegations concerning the alleged
agreements with facts that make their allegations plausible. The Court concludes that Plaintiffs
fail to state claims for breach of contract, breach of fiduciary duty, and accounting.
Accordingly, the Court GRANTS Defendant McCoy’s motion to dismiss Plaintiffs’
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first, fifth and eighth causes of action as Plaintiffs fail to allege essential elements.
B. RICO
Plaintiffs allege that McCoy, “acting in unison with other and on behalf of the other coventuring Defendants,” violated 18 U.S.C. § 1962. (FAC ¶ 35.) “To state a claim under 18
U.S.C. § 1962(c), a plaintiff must allege ‘(1) conduct (2) of an enterprise (3) through a pattern
(4) of racketeering activity.’” Odom v. Microsoft Corp., 486 F.3d 541, 547 (9th Cir. 2007)
(quoting Sedima, S.P.R.L. v. Imprex Co., 473 U.S. 479, 496 (1985)). A claim under RICO
must satisfy Rule 9(b)’s particularity requirements.
Plaintiffs have failed to plead the existence of an associated-in-fact enterprise. RICO
defines the term “enterprise” to include (1) “any individual, partnership, corporation,
association, or other legal entity,” and (2) “any union or group of individuals associated in fact
although not a legal entity.” 18 U.S.C. § 1961(4). “[E]stablishing the existence of an
associated-in-fact enterprise requires proof (1) of an ongoing organization, formal or informal,
and (2) that the various associates function as a continuing unit.” Chang v. Chen, 80 F.3d
1293, 1297 (9th Cir.1996) (citing United States v. Turkette, 452 U.S. 576, 583 (1981)).
Additionally, in order to establish liability under § 1962, one must allege and prove “the
existence of two distinct entities: (1) a “person”; and (2) an “enterprise” that is not simply the
same “person” referred to by a different name.” Cedric Kushner Promotions, Ltd. v. King, 533
U.S. 158, 161 (2001.) Here, Plaintiffs allege that McCoy participated in an enterprise
“commonly known as GLASS HOUSE and/or JVSR, or an unknown yet undetermined
Association.” (FAC ¶ 36.) Plaintiffs have not provided sufficient details to identify the
alleged “co-venturing enterprise,” or to establish that the “enterprise” and McCoy were two
different entities, and not the same person.
Likewise, Plaintiffs failed to plead with sufficient particularity their allegations of
McCoy’s racketeering conduct. Plaintiffs allege that on or about April 2006, McCoy “seized
and carried away Plaintiff’s funds with the intent to retain such funds and permanently deprive
Plaintiffs of the same.” (FAC ¶ 37.) Plaintiffs also allege that McCoy made phone calls, sent
email, and letters through the United States Mail to Plaintiff, making misrepresentations,
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fraudulent statements, and false and deceptive communications with intent to deprive Plaintiffs
of their money. (Id.) However, Plaintiffs fail to specify what the alleged fraudulent and
deceptive statements were, or provide factual support for their contentions that these statements
were allegedly illegal.
Plaintiffs also have not alleged sufficient facts to support a claim that Defendant
engaged in a pattern of racketeering activity. A pattern requires at least two acts of
racketeering activity. Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 497 n.14 (1985)
(citing 18 U.S.C. § 1961(5)). However, “while two acts are necessary, they may not be
sufficient.” (Id.) To constitute a pattern, the alleged racketeering acts must be related, and
they must also “amount to or pose a threat of continued criminal activity.” H.J. Inc. v.
Northwestern Bell Telephone Co., 492 U.S. 229, 239 (1989). Here, Plaintiffs allege that
McCoy “engaged in at least two incidents of unlawful predicate acts.” (FAC ¶ 42.) While
Plaintiffs recite the requisite elements to plead a RICO claim, they fail to support their
allegations with sufficient facts. Plaintiffs’ legally conclusory allegations that McCoy violated
the RICO statute cannot survive a motion to dismiss. Accordingly, the Court GRANTS
Defendant’s motion to dismiss Plaintiffs’ RICO claim.
C. Unfair Competition Law
Plaintiffs’ third cause of action is for violation of California’s Unfair Competition Law
(“UCL”), Cal. Bus. & Prof. Code §17200, et seq. (FAC. ¶¶ 45-48.) The UCL prohibits “any
unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or
misleading advertising.” Cal. Bus. & Prof. Code §17200. Under the UCL, conduct is
deceptive or misleading if it is likely to deceive an ordinary consumer. Williams v. Gerber
Products Co., 552 F.3d 924, 938 (9th Cir. 2008). In order to assert a claim under the UCL, a
person must have ““has suffered injury in fact and has lost money or property as a result of
such unfair competition.” Cal. Bus. & Prof. Code §§17204 & 17535. Therefore, reliance is
required to have standing to sue under the UCL. See Cattie v. Wal-Mart Stores, Inc., 504 F.
Supp.2d 939, 947–49 (S.D. Cal. 2007) (holding reliance is required); Laster v. T-Mobile USA,
Inc., 407 F. Supp.2d 1181,1194 (S.D. Cal. 2005) (same); Stickrath v. Globalstar, Inc., 527 F.
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Supp.2d 992, 996 (N.D. Cal. 2007) (same).
Plaintiffs fail to state a claim against McCoy under the UCL. Plaintiffs allege that
Defendants “used fraudulent representations in order to gain funds from Plaintiff for improper
purposes . . . and . . . that Defendants’ fraudulent acts and omissions are likely to deceive the
public.” (FAC ¶ 47.) These allegations are insufficient to state a claim against McCoy for a
violation of the UCL. Plaintiff does not allege what unlawful, unfair, or fraudulent business
acts or practices McCoy committed, and Plaintiffs fail to allege their reliance on alleged
fraudulent representations. Plaintiff also does not sufficiently allege facts entitling him to
relief under the UCL’s fraudulent prong, as Plaintiff fails to plead fraudulent representations
with particularity and makes no allegations concerning how members of the public are likely
to be deceived by the alleged conduct. See Williams v. Gerber Products Co., 552 F.3d 934,
938 (9th Cir. 2008). Accordingly, the Court dismisses Plaintiffs’ cause of action for a violation
of the UCL against McCoy.
D. Conversion, Misappropriation of Funds and Money Had and Received
Plaintiffs’ fourth cause of action is for conversion and misappropriation of funds. “The
elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the
property; (2) the defendant’s conversion by a wrongful act or disposition of property rights;
and (3) damages.” Mendoza v. Rast Produce Co., Inc., 140 Cal. App.4th 1395, 1405 (2006)
(internal quotations omitted). Plaintiffs allege that McCoy retains “remittances on Plaintiffs’
accounts, and other funds,” and that McCoy’s refusal to turn over remittances, accounts and
funds constitutes conversion. (FAC ¶¶ 50-52.)
Plaintiffs fail to allege an actual interference with their ownership or right of possession.
“Where plaintiff neither has title to the property alleged to have been converted, nor possession
thereof, he cannot maintain an action for conversion.” Fischer v. Machado, 50 Cal. App.4th
1069, 1072 (Ct. App. 1996) (citation omitted). Here, Plaintiffs have not established which
specific property McCoy allegedly retained. If Plaintiffs are attempting to allege conversion
of the JVSR accounts, then Plaintiffs have not established that they have the right to such
accounts and revenue. The Court finds that Plaintiffs’ pleadings are insufficient to state a
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claim for conversion. Accordingly, the Court dismisses Plaintiffs’ causes of action for
conversion and misappropriation of funds against McCoy.
Plaintiffs’ ninth cause of action is for money had and received. “The count for money
had and received states in substance that the defendant is indebted to the plaintiff in a certain
sum ‘for money had and received by the defendant for the use of the plaintiff.’” 4 Witkin, Cal.
Proc. (5th ed. 2008) Pleading, § 561, p. 688. “The foundation of an action for conversion on
a money had and received count is the unjust enrichment of the wrongdoer, and in order for
plaintiff to recover in such action she must show that a definite sum, to which she is justly
entitled, has been received by defendant.” Bastanchury v. Times-Mirror Co., 68 Cal. App.2d
217, 236 (Ct. App. 1945). Here, Plaintiffs allege that prior to approximately April 24, 2006,
McCoy asked Plaintiffs for access to the JVSR merchant account, and thereafter “received said
funds” (FAC ¶ 81.)
Plaintiffs failed to establish the elements of a claim for money had and received. First,
Plaintiffs do not allege a definite sum that McCoy received from Plaintiffs. Furthermore,
Plaintiffs have not alleged that they are justly entitled to the sums in the JVSR merchant
account. Accordingly, the Court dismisses Plaintiffs’ cause of action for money had and
received against McCoy.
E. Fraud and Negligent Misrepresentation
Plaintiffs’ sixths and seventh causes of action are for fraud and negligent
misrepresentation. Under California law, the elements of fraud are “false representation,
knowledge of its falsity, intent to defraud, justifiable reliance, and damages.” Moore v.
Brewster, 96 F.3d 1240, 1245 (9th Cir.1996) (quotations omitted). Under Federal Rule of Civil
Procedure 9, a Plaintiff must plead fraud with particularity. “Rule 9(b)’s particularity
requirement applies to state-law causes of action.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d
1097, 1103 (9th Cir. 2003). “Averments of fraud must be accompanied by ‘the who, what,
when, where, and how’ of the misconduct charged.” Id. at 1106 (quoting Cooper v. Pickett,
137 F.3d 616, 627 (9th Cir.1997)). “‘[A] plaintiff must set forth more than the neutral facts
necessary to identify the transaction. The plaintiff must set forth what is false or misleading
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about a statement, and why it is false.’” Id. at 1106 (quoting Decker v. GlenFed, Inc. (In re
GlenFed, Inc. Sec. Litig.), 42 F.3d 1541, 1548 (9th Cir.1994)). “While statements of the time,
place and nature of the alleged fraudulent activities are sufficient, mere conclusory allegations
of fraud” are not. Moore v. Kayport Package Express, Inc., 885 F.2d 531, 540 (9th Cir. 1989).
Further, Rule 9(b) requires a plaintiff to attribute particular fraudulent statements or acts to
individual defendants. Id.
“The elements of negligent misrepresentation are ‘(1) the misrepresentation of a past
or existing material fact, (2) without reasonable ground for believing it to be true, (3) with
intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the
misrepresentation, and (5) resulting damage.’” Nat’l Union Fire Ins. Co. v. Cambridge
Integrated Servs. Group, Inc., 171 Cal. App. 4th 35, 50 (Ct. App. 2009) (citation omitted).
Plaintiffs fail to establish the elements of fraud or negligent misrepresentation.
Although Plaintiffs allege that McCoy made “false statements,” the alleged statements were
made to the recipients of the JVSR emailing system, and not to the Plaintiffs. (FAC ¶ 66.)
Plaintiffs also fail to allege that they relied on the alleged fraudulent statements. Accordingly,
the Court dismisses Plaintiffs’ causes of action for fraud and negligent misrepresentation
against McCoy.
F. Libel and Slander
Plaintiffs’ tenth and eleventh causes of action are for libel and slander. (FAC ¶¶ 83-98.)
California Civil Code section 45 defines libel as “a false and unprivileged publication by
writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any
person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or
avoided, or which has a tendency to injure him in his occupation.” Cal. Civ. Code § 45. Under
California Civil Code section 47, a privileged publication is one made “[i]n a communication,
without malice, to a person interested therein, (1) by one who is also interested, or (2) by one
who stands in such a relation to the person interested as to afford a reasonable ground for
supposing the motive for the communication to be innocent, or (3) who is requested by the
person interested to give the information.” Cal. Civ. Code § 47.
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“Slander is a false and unprivileged publication, orally uttered . . . which . . . (3) [t]ends
directly to injure him in respect to his office, profession, trade or business, either by imputing
to him general disqualification in those respects which the office or other occupation peculiarly
requires, or by imputing something with reference to his office, profession, trade, or business
that has a natural tendency to lessen its profits; . . . or (5) which, by natural consequence,
causes actual damage.” Cal. Civ. Code § 46.
Under California law, the defamatory statement must be specifically identified, and the
plaintiff must plead the substance of the statement. Okun v. Superior Court, 29 Cal.3d 442,
458 (1981). “General allegations of the defamatory statements” that do not identify the
substance of what was said are insufficient. See Silicon Knights, Inc. v. Crystal Dynamics,
Inc., 983 F. Supp. 1303, 1314 (N.D. Cal.1997) (holding that “the words constituting a libel or
slander must be specifically identified, if not pleaded verbatim”). Here, Plaintiffs allege that
McCoy “published statements to third parties ... in order to create hatred, contempt, ridicule
and obloquy against Plaintiffs,” and that the statements were “defamatory per se.” Plaintiffs
neither identify nor plead the substance of the alleged statements.
Plaintiffs’ allegations are nothing more than “formulaic recitation of the elements of a
cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). As such, and
absent further factual enhancement, they cannot survive a motion to dismiss. Accordingly, the
Court dismisses Plaintiffs’ causes of action for slander and libel.
G. Invasion of Privacy
The elements of the tort of invasion of privacy through public disclosure of private facts
are: “(1) public disclosure (2) of a private fact (3) which would be offensive and objectionable
to the reasonable person and (4) which is not of legitimate public concern.” Moreno v.
Hanford Sentinel, Inc., 172 Cal. App.4th 1125, 1129-30 (Ct. App. 2009) (internal quotations
omitted). A matter that is already public or that has previously become part of the public
domain is not private. (Id.)
Plaintiffs make a conclusory allegation that McCoy “invaded Plaintiffs’ privacy, by
publishing and disseminating private and confidential facts and information in order to cause
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harm and injury to Plaintiffs.” (FAC ¶ 100.) The FAC does not state what private facts were
allegedly disclosed by McCoy, or what expectation of privacy Plaintiffs had regarding the
allegedly disclosed facts. Absent additional facts, Plaintiffs fail to sufficiently plead a cause
of action for invasion of privacy. Accordingly, the Court dismisses Plaintiff’s invasion of
privacy claim.
H. Trademark Infringement, False Designation, and Dilution
Plaintiffs allege Defendant infringed Plaintiffs’ common law and statutory trademark
rights. To prevail on a claim of trademark infringement or unfair competition under the
Lanham Act, the “ultimate test” is “whether the public is likely to be deceived or confused by
the similarity of the marks.” Century 21 Real Estate Corp. v. Sandlin, 846 F.2d 1175 (9th
Cir.1988) (quoting New West Corp. v. NYM Co. of California, 595 F.2d 1194, 1201 (9th
Cir.1979)). The “likelihood of confusion” test also applies to trademark infringement claims
under California law. See M2 Software, Inc. v. Madacy Entertainment, 421 F.3d 1073, 1080
(9th Cir.2005).
Plaintiffs also allege a claim of dilution against McCoy. (FAC ¶¶ 118-121.) A federal
dilution claim is “‘a cause of action invented and reserved for a select class of marks--those
marks with such powerful consumer associations that even non-competing uses can impinge
their value.’” Perfumebay.com Inc. v. EBAY, Inc., 506 F.3d 1165, 1179-80 (9th Cir. 2007)
(quoting Thane Int’l, Inc. v. Trek Bicycle Corp., 305 F.3d 894, 907 (9th Cir.2002)).
California’s dilution cause of action is similar, and it provides relief if “the plaintiff can
demonstrate a likelihood of injury to business reputation or of dilution of the distinctive quality
of a mark notwithstanding the absence of competition between the parties or the absence of
confusion as to the source of goods or services.” (Id. at 1180.) “The mark used by the alleged
diluter must be identical, or nearly identical, to the protected mark for a dilution claim to
succeed.” (Id.) (quoting Nissan Motor Co. v. Nissan Computer Corp., 378 F.3d 1002, 1011
(9th Cir.2004)).
Finally, Plaintiffs bring a false designation claim against McCoy. (FAC ¶¶ 113-117.)
A claim for false designation of origin is one in the nature of a claim for infringement of an
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unregistered mark. 15 U.S.C. § 1125(a). To prove a false designation of origin claim, a
plaintiff must show that defendant (1) uses a false designation of origin; (2) in interstate
commerce; (3) and in connection with goods or services; (4) when the designation is likely to
cause confusion, mistake, or deception as to the origin, sponsorship, or approval of defendant's
goods, services, or commercial activities by another person; and (5) plaintiff has been or is
likely to be damaged by these acts. 5 McCarthy on Trademarks and Unfair Competition, §
27:13 (4th ed.).
Plaintiffs allege that on or about December 1995, they adopted and used the trademark
“Journal or Vertebral Subluxation Research” and “JVSR.” (FAC ¶ 106.) Plaintiffs also allege
that on or about April 1, 2000, JVSR, through Rondberg, engaged McCoy “to act as the JVSR
editor.” (FAC ¶ 18.) Plaintiffs fail to allege that McCoy at any time used a mark similar to
Plaintiffs’ in interstate commerce, or otherwise, and that the public was confused by similarity
of the JVSR and another mark. Plaintiffs failed to plead sufficient facts to support the elements
of trademark infringement, trademark dilution, or false designation. Accordingly, the Court
dismisses Plaintiffs’ thirteenth, fourteenth, and fifteenth causes of action.
I. Intentional and Negligent Interference with Business Relationships
Plaintiffs’ sixteenth cause of action is for intentional interference with business
relationships. (FAC ¶¶ 122-127.) The elements of the tort of intentional interference with
prospective economic advantage are as follows: “(1) an economic relationship between the
plaintiff and some third party, with the probability of future economic benefit to the plaintiff;
(2) the defendant’s knowledge of the relationship; (3) intentional wrongful acts on the
defendant’s part designed to disrupt the relationship; (4) actual disruption of the relationship;
and (5) economic harm to the plaintiff proximately caused by the defendant’s acts.” Korea
Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1153 (2003) (internal quotations
omitted). Plaintiff must plead that “the defendant’s conduct was ‘wrongful by some legal
measure other than the fact of interference itself.’” Id. (citing Della Penna v. Toyota Motor
Sales, U.S.A., Inc.,11 Cal. 4th 376, 393 (1995).
Plaintiffs allege that they have an advantageous business relationship with the JVSR
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subscribers. (FAC ¶ 123.) However, Plaintiffs fail to allege any facts supporting their claim
of actual disruption of this relationship by any of McCoy’s alleged acts. The FAC provides
merely a “formulaic recitation” of the elements of intentional interference with business
relationships. The Court concludes that Plaintiffs have not made out a claim for intentional
interference with business relationships.
Plaintiffs’ seventeenth cause of action is for negligent interference with business
relationships. (FAC ¶¶ 128-131.) The elements for a cause of action for negligent interference
with prospective economic advantage are: (1) an economic relationship existed between the
plaintiff and a third party that contained a reasonably probable future economic benefit or
advantage to plaintiff; (2) the defendant knew of the existence of the relationship and was
aware or should have been aware that if it did not act with due care its actions would interfere
with this relationship and cause plaintiff to lose in whole or in part the probable future
economic benefit or advantage of the relationship; (3) the defendant was negligent; and (4) that
negligence caused damage to the plaintiff in that the relationship was actually interfered with
or disrupted and the plaintiff lost in whole or in part the economic benefits or advantage
reasonably expected from the relationship. See North American Chemical Co. v. Superior
Court, 59 Cal. App. 4th 764, 787 (1997).
Plaintiffs allege they enjoy an advantageous business relationship with their “Clients,
and Chiropractic Community.” (Id. ¶ 129.) Once again, Plaintiffs fail to allege any facts
supporting their claim of actual disruption of their relationship with their client, or the
Chiropractic community, by any of McCoy’s alleged acts. Accordingly, the Court dismisses
Plaintiffs’ causes of action for intentional and negligent interference with business
relationships.
///
///
///
///
///
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Conclusion
For the reasons set forth above, the Court GRANTS Defendant McCoy’s motion to
dismiss the First Amended Complaint. Plaintiffs may file an amended complaint curing the
noted deficiencies within thirty (30) days of the date of this Order.
IT IS SO ORDERED.
DATED: September 21, 2009
______________________________
MARILYN L. HUFF, District Judge
UNITED STATES DISTRICT COURT
Case 3:09-cv-01672-H-CAB Document 7 Filed 09/21/09 Page 15 of 15 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca2-13-04792/USCOURTS-ca2-13-04792-0/pdf.json | 443 | Civil Rights Accommodations | null | 13‐4792‐cv
Rodriguez v. Village Green Realty, Inc.
1 In the
2 United States Court of Appeals
3 For the Second Circuit
4
5 August Term, 2014
6 No. 13‐4792‐cv
7 HEIDI RODRIGUEZ, individually and as parent and natural guardian
8 of the minor child, A.R., and JUAN RODRIGUEZ, individually and as
9 parent and natural guardian of the minor child, A.R.,
10 Plaintiffs‐Appellants,
11 v.
12 VILLAGE GREEN REALTY, INC., d/b/a Coldwell Banker Village Green
13 Realty, and BLANCA APONTE,
Defendants‐Appellees.
14
15
16 Appeal from the United States District Court
17 for the Northern District of New York.
18 No. 11‐cv‐1068 ― Thomas J. McAvoy, Judge.
19
20
21 ARGUED: SEPTEMBER 12, 2014
22 DECIDED: JUNE 2, 2015
23
24
The Clerk of the Court is directed to amend the official caption to conform to
the above.
Case 13-4792, Document 95-1, 06/02/2015, 1522119, Page1 of 64
‐2‐
1 Before: LIVINGSTON and DRONEY, Circuit Judges, and NATHAN,
District Judge.
2
3
4
5 Heidi and Juan Rodriguez, parents of minor child A.R.,
6 brought suit for disability discrimination under the Fair Housing
7 Act, 42 U.S.C. § 3601 et seq. (“FHA”), against Village Green Realty,
8 Inc., a real estate agency, and Blanca Aponte, its agent. The United
9 States District Court for the Northern District of New York
10 (McAvoy, J.) granted summary judgment for the defendants. We
11 hold that the district court erred because there was sufficient
12 evidence presented that A.R. qualifies as disabled under the FHA.
13 We also hold that the FHA’s prohibition against statements that
14 “indicate[ ] any preference, limitation, or discrimination based on . . .
15 handicap,” 42 U.S.C. § 3604(c), may be violated even if the subject of
16 those statements does not qualify as disabled under the FHA.
17 Finally, we hold that the “ordinary listener” standard is not
18 applicable to claims under 42 U.S.C. § 3604(d) for misrepresenting
19 the availability of housing.
20
21 Accordingly, we VACATE the judgment of the United States
22 District Court for the Northern District of New York and REMAND.
23
24
25 SASHA M. SAMBERG‐CHAMPION (Michael G. Allen
26 and Timothy M. Smyth, on the brief), Relman,
27 Dane & Colfax PLLC, Washington, DC, for
28 Plaintiffs‐Appellants.
29
The Honorable Alison J. Nathan, of the Southern District of New York, sitting
by designation.
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1 ARI I. BAUER (Paul S. Ernenwein, on the brief),
2 Catania, Mahon, Milligram & Rider, PLLC,
3 Newburgh, NY, for Defendants‐Appellees.
4
5 Cathy A. Simon and Thomas H. Prouty,
6 Troutman Sanders LLP, Washington, DC; Megan
7 K. Whyte de Vasquez, Washington Lawyers’
8 Committee for Civil Rights and Urban Affairs,
9 Washington, DC, for the Epilepsy Foundation,
10 Autism National Committee, the State of Connecticut
11 Office of Protection and Advocacy for Persons with
12 Disabilities, National Council on Independent Living,
13 Judge David L. Bazelon Center for Mental Health
14 Law, the Disability Rights Education & Defense Fund,
15 National Disability Rights Network, and AARP as
16 amici curiae in support of Plaintiffs‐Appellants.
17
18 DRONEY, Circuit Judge:
19 Plaintiffs‐Appellants Heidi and Juan Rodriguez, parents of
20 minor child A.R., brought suit for disability discrimination under
21 the Fair Housing Act, 42 U.S.C. § 3601 et seq. (“FHA”), against
22 Defendants‐Appellees Village Green Realty, Inc., a real estate
23 agency, and Blanca Aponte, its agent. The plaintiffs allege, inter alia,
24 that the defendants (1) made housing unavailable on the basis of
25 disability in violation of 42 U.S.C. § 3604(f)(1); (2) provided different
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1 terms, conditions, and privileges of rental housing on the basis of
2 disability in violation of 42 U.S.C. § 3604(f)(2); (3) expressed a
3 preference on the basis of disability in violation of 42 U.S.C. §
4 3604(c); and (4) misrepresented the availability of rental housing on
5 the basis of disability in violation of 42 U.S.C. § 3604(d). The United
6 States District Court for the Northern District of New York
7 (McAvoy, J.) granted summary judgment for the defendants on
8 these claims. This appeal followed.
9 We hold that the district court erred because there was
10 sufficient evidence presented that A.R. qualifies as disabled under
11 the FHA. We also hold that the FHA’s prohibition against
12 statements that “indicate[ ] any preference, limitation, or
13 discrimination based on . . . handicap,” 42 U.S.C. § 3604(c), may be
14 violated even if the subject of those statements does not qualify as
15 disabled under the FHA. Finally, we hold that the “ordinary
16 listener” standard is not applicable to claims under 42 U.S.C. §
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1 3604(d) for misrepresenting the availability of housing. Accordingly,
2 we VACATE the judgment of the district court and REMAND.
3 BACKGROUND
4 I. Factual Background
5 Plaintiffs Heidi and Juan Rodriguez are the parents of minor
child A.R. 6 1 who has Autism Spectrum Disorder and epilepsy. This
7 suit under the Fair Housing Act arose from text messages about A.R.
8 sent to Heidi Rodriguez by defendant Blanca Aponte, a real estate
9 agent.
10 The Rodriguez family had rented a single family home on a
11 month‐to‐month basis for two years on property located in
12 Saugerties, New York. The property was owned by Donnie Morelli
13 and included two single family homes and twenty‐eight acres. Some
14 time in 2010, the property was listed for sale with defendant real
1 The parties have referred to the minor child by her initials since the initiation of
this lawsuit. We will continue to do the same. Heidi and Juan Rodriguez are
proceeding in this action individually and also as the parents and guardians of
A.R. on her behalf.
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1 estate agency Village Green Realty, Inc. Defendant Aponte served as
2 the listing agent.
3 On January 20, 2011, Aponte left a letter at the Rodriguez
4 home informing them of Morelli’s intention to sell the property to
5 Mansour Farhandian. The letter stated that Farhandian would be
6 willing to continue to rent to the Rodriguez family, but under certain
7 modified terms, including an increased rent, and asked the
8 Rodriguezes to inform Aponte whether they agreed to the new
9 terms. If not, the letter stated, they would have to vacate the
10 premises by March 15, 2011. The Rodriguezes did not immediately
11 inform Aponte as to whether they accepted the new terms.
12 On January 23, 2011, Morelli entered into a purchase
13 agreement with Farhandian; the agreement anticipated a closing in
14 early March. In order to facilitate the anticipated sale, Aponte
15 continued to try to contact the Rodriguezes to determine whether
16 they intended to accept the new lease terms. She texted Ms.
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1 Rodriguez on January 25 and February 4 inquiring about a response
2 to the letter, but Ms. Rodriguez did not respond.
On February 6, 2011, A.R. suffered two grand mal seizures. 3 2
4 Ms. Rodriguez called Morelli from the hospital to inform him about
5 the seizures and tell him that it was “not the time” for her and Mr.
6 Rodriguez to be negotiating with Aponte. J.A. 146. The next day,
Aponte texted Ms. Rodriguez: 7 3 “Hi Please respond to my notices! If
8 you have an attorney please have them get in touch w me,” J.A. 230,
9 to which Ms. Rodriguez replied: “Please call Donnie [Morelli] for an
update.” Id. Aponte wrote back: “Will do.” Id. 10 4
11 This began the exchange of text messages from February 7 to
12 23 that are the principal subject of this action. On February 7,
13 Aponte wrote to Ms. Rodriguez that she had “[j]ust spoke[n] w[ith]
2 A grand mal seizure is described later in the text.
3 Excerpts from the text messages between Aponte and Ms. Rodriguez quote the
actual language of the messages, including typographical errors, except where
otherwise indicated.
4 During this period, Ms. Rodriguez was communicating directly with Morelli
about A.R.’s condition.
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1 Donnie [Morelli]” and that, “[w]hile [they were] both sympathetic to
2 [Ms. Rodriguez’s] situation,” Morelli was selling the property and
3 Aponte would “be proceeding with legal action to remove you from
4 [the] premises.” Id. After several exchanges regarding scheduling a
5 time for Aponte to inspect the Rodriguezes’ home, Ms. Rodriguez
6 stated,
7 We are not leaving. Where do you want us
8 to go with a sick child? . . . Why do you
9 keep on harassing and insisting that we
10 move? . . . When you were told of my
11 daughter being sick we werenʹt asking for
12 free rent or anything of the sort. Just to be
13 understood and left alone to deal with her
14 medical issues without being bothered by
15 you asking us to leave our home.
16 J.A. 231. Aponte replied that she had “not asked you to leave” but
17 that she had received no response from the Rodriguezes about the
18 new owner’s rental terms. Id. In reply, Ms. Rodriguez complained
19 about the “poorly maintained icy road” near the home and
20 questioned how vehicles could get up the road “[o]r better yet an
21 ambulance for my daughter if needed.” Id. Aponte responded,
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1 This has nothing to do with what we were
2 just speaking about[.] Fact is that if I can
3 get up and down emergency vehicles
4 should be able to as well. This has been an
5 unusually cold and snow filled Winter.
6 So maybe you should consider relocating to
7 a better and more easily accessible
8 Location.
9
10 Id.
11 A few days later, on February 16, Ms. Rodriguez sent a text
12 message to Aponte stating that she needed to reschedule the
13 inspection because A.R. had suffered the second seizure and needed
14 to return to the hospital for testing. J.A. 232. This led to the following
15 exchange:
16 [Aponte (February 16, 7:42 p.m.):] Just
17 spoke w my lawyer for management
18 company.. We will accept your
19 rescheduling appointment for Friday if you
20 provide verification of medical
21 appointment for your daughter. The
22 prospective new owner is very concerned
23 about continuing your lease with you
24 Childs medical situation and will probably
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not want to rent to you.5 1 I think we need to
2 let you know that we will not be renting to
3 you! Please plan on rel Please make plans
4 to relocate. We will give you Until end of
5 March. Respond to me. . Not to mr Morelli
6 Blanca
7 [Ms. Rodriguez (February 16, 8:16 p.m.):]
8 What are you talking about?
9 [Aponte (February 16, 8:42 p.m.):] Exactly
10 what I said. You have cancelled our
11 appointment because of issues with your
12 daughterʹs illness. We want verification of
13 your appointment.. That being said. . . The
14 new owner has decided not to continue to
15 rent to you because your daughter should
16 be in a more convenient location to medical
17 treatment
18 [Ms. Rodriguez (February 16, 9:04 p.m.):]
19 You spoke to the new owner that fast and
20 he made a decision not to rent to us
21 because my daughter has seizures? Or is
22 this you decision?
23 I am confused.
24 [Aponte (February 17, 7:11 a.m.):] The new
25 owner is concerned by your statement that
5 Aponte admitted that she never communicated with the prospective buyer,
Farhandian, concerning A.R’s medical condition and that she fabricated this and
the following statements that purported to represent Farhandian’s view of A.R.’s
conditions.
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1 emergency vehicles cannot reach you
2 should your daughter be at risk. Also
3 concerned about you not making place
4 readily available for inspection and thinks I
5 should have a key that is the right of a
6 landlord and his representative. For me, I
7 only have your statement that your
8 daughter us sick Do u have verification?
9 J.A. 232‐33.
10 On February 23, Aponte reiterated that the new owner was
11 concerned about renting to the Rodriguezes because of Ms.
12 Rodriguez’s statement that the home was not “readily accessible to
13 emergency vehicles,” which Aponte stated was a “major concern as
14 to liability.” J.A. 234‐35. She further stated, “I think that your
15 tenancy is over. Will verify after speaking to both Donnie [Morelli]
16 and buyer.” J.A. 235.
17 In addition to learning of A.R.’s medical problems from the
18 text messages from Ms. Rodriguez, Aponte obtained information
19 around the same time about A.R. from the Rodriguezes’ neighbor,
20 Tammy Drost. Drost, who lived in the second house on the property
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1 that was being sold, was a special education aide at A.R.’s
2 elementary school, and A.R.’s “personal assistant” at the school.
3 Drost had frequent contact with Aponte and told Aponte that A.R.
4 was autistic, may be epileptic and was placed in a special class at
5 school. Ms. Rodriguez testified at her deposition that she believed
6 that Morelli, who was also aware of A.R.’s diagnoses, seizures, and
7 special educational services, had also told Aponte this information.
8 Although the sale between Morelli and Farhandian was not
9 completed, Plaintiffs began looking for new housing in late January
10 or early February of 2011, when it became “very apparent that [they]
11 were not wanted,” and they moved to another home in September of
12 that year. J.A. 196. In the interim, the Rodriguezes complied with
13 Aponte’s request for higher rent beginning in March.
14 II. Proceedings in District Court
15 In September 2011, plaintiffs filed this action, alleging that the
16 defendants had violated the Fair Housing Act, 42 U.S.C. § 3601 et
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1 seq. (“FHA”). In their amended complaint, the plaintiffs claimed that
2 the real estate agency and Aponte had (1) made housing unavailable
3 on the basis of disability in violation of 42 U.S.C. § 3604(f)(1); (2)
4 provided different terms, conditions, and privileges of rental
5 housing on the basis of disability in violation of 42 U.S.C. §
6 3604(f)(2); (3) expressed a preference on the basis of disability in
7 violation of 42 U.S.C. § 3604(c); and (4) misrepresented the
8 availability of rental housing on the basis of disability in violation of
42 U.S.C. § 3604(d).6 9
10 The plaintiffs and defendants cross‐moved for summary
judgment. 11 7 On October 10, 2013, the district court granted
12 defendants’ motion with respect to the claims at issue here, holding
13 that the plaintiffs had not come forward with sufficient admissible
6 Plaintiffs also brought a claim under 42 U.S.C. § 3617, which has been
voluntarily dismissed and is not at issue in this appeal.
7 The plaintiffs sought only partial summary judgment. The district court granted
that motion solely on the question of whether Village Green Realty was
vicariously liable for Aponte’s actions, which is not at issue in this appeal. The
plaintiffs’ motion was denied in all other respects.
Case 13-4792, Document 95-1, 06/02/2015, 1522119, Page13 of 64
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1 evidence to allow a reasonable factfinder to conclude that A.R. was
disabled as defined by the FHA. 2 8 Rodriguez v. Vill. Green Realty, Inc.,
3 No. 1:11‐cv‐1068, 2013 WL 5592703, at *9‐10 (N.D.N.Y. Oct. 10, 2013)
4 (“Rodriguez I”). The plaintiffs moved for reconsideration of the
5 district court’s dismissal of their claims under 42 U.S.C. § 3604(c)
6 and (d), arguing that for those claims it is irrelevant whether A.R. is
7 disabled, because these FHA provisions apply to any person
8 aggrieved by a statement indicating a preference or discrimination
9 based on handicap or a misrepresentation of availability because of
10 handicap. Although the district court agreed upon reconsideration
11 that subsections (c) and (d) apply more broadly than subsection (f)
8 The FHA uses the term “handicap” rather than “disability.” See 42 U.S.C. §§
3602(h), 3604. The FHA definition of “handicap,” though, historically was
virtually identical to the definition of “disability” in the Americans with
Disabilities Act of 1990 (“ADA”), Pub. L. No. 101‐336, 104 Stat. 327 (codified as
amended at 42 U.S.C. § 12101 et seq. (2008)), and disability scholars tend to prefer
the term “disability.” We will therefore treat the two terms interchangeably and
use “disability” in this opinion. See Bhogaita v. Altamonte Heights Condo. Assʹn,
Inc., 765 F.3d 1277, 1285 n.2 (11th Cir. 2014) (using the terms interchangeably for
similar reasons); see also Robert G. Schwemm, Housing Discrimination Law and
Litigation § 11D:1 n.* (database updated 2014) (discussing the near identity of the
statutory definitions under the FHA and ADA).
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1 as to standing to bring a claim, the court still dismissed these claims,
2 finding that there was insufficient evidence that Aponte’s statements
3 about A.R. indicated a preference, limitation or discrimination based
4 on handicap, or that a dwelling was not available because of
5 handicap. Rodriguez v. Vill. Green Realty, Inc., No. 1:11‐cv‐1068, 2013
6 WL 6058577, at *3 (N.D.N.Y. Nov. 15, 2013) (“Rodriguez II”).
7 This appeal followed.
8 DISCUSSION
9 Plaintiffs contend that the district court erred in dismissing
10 their claims on the basis of lack of disability. Plaintiffs assert that
11 A.R. meets the FHA’s definition of disabled because her epilepsy
12 and autism substantially limit her ability to learn. See 42 U.S.C. §
13 3602(h)(1); 24 C.F.R. § 100.201. They also argue, in the alternative,
14 that regardless of whether A.R. is actually disabled under the Act,
15 Aponte “regarded” her as having an impairment that substantially
16 limited her in a major life activity. See 42 U.S.C. § 3602(h)(3); 24
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1 C.F.R. § 100.201. Finally, the plaintiffs argue that the district court
2 erroneously concluded that an ordinary listener could not have
3 interpreted Aponte’s statements as reflecting disability‐based
4 discrimination.
5 I. Standard of Review
6 This Court reviews the district courtʹs grant of summary
7 judgment de novo. Regʹl Econ. Cmty. Action Program, Inc. v. City of
8 Middletown, 294 F.3d 35, 45 (2d Cir. 2002) (“RECAP”), superseded by
9 statute on other grounds, ADA Amendments Act of 2008, Pub. L. No.
10 110‐325, 122 Stat. 3553 (“ADAAA”). Summary judgment is required
11 where “the movant shows that there is no genuine dispute as to any
12 material fact and the movant is entitled to judgment as a matter of
13 law.” Fed. R. Civ. P. 56(a). “In assessing the record to determine
14 whether there is a genuine issue to be tried as to any material fact,
15 the court is required to resolve all ambiguities and draw all
16 permissible factual inferences in favor of the party against whom
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1 summary judgment is sought.”9 Stone v. City of Mount Vernon, 118
2 F.3d 92, 99 (2d Cir. 1997). A fact is “material” for these purposes if it
3 “might affect the outcome of the suit under the governing law.”
4 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of
5 fact is “genuine” if “the evidence is such that a reasonable jury could
6 return a verdict for the nonmoving party.” Id.
7 II. Statutory Framework
8 This appeal requires us to address the 1988 Amendments to
9 the FHA, which extended the Fair Housing Act’s protections against
10 housing discrimination to disabled individuals. See Fair Housing
11 Amendments Act of 1988, Pub. L. No. 100‐430, 102 Stat. 1619
12 (codified at 42 U.S.C. § 3601 et seq.). We are guided by our decisions
13 interpreting similar language that appeared in the Americans with
9 We note that the 2010 amendments to the Federal Rules of Civil Procedure
replaced “issue” with “dispute” because “‘[d]ispute’ better reflects the focus of a
summary‐judgment determination.” See Fed. R. Civ. 56(a) advisory committee’s
note to 2010 amendment.
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1 Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., prior to the
ADA’s amendment in 2008. 10 2
3 A. Definition of “Handicapped”
4 The FHA makes it unlawful “[t]o discriminate in the sale or
5 rental, or to otherwise make unavailable or deny, a dwelling to any
6 buyer or renter because of a handicap” or “[t]o discriminate against
7 any person in the terms, conditions, or privileges of sale or rental of
8 a dwelling, or in the provision of services or facilities in connection
9 with such dwelling, because of a handicap.” 42 U.S.C. § 3604(f). The
10 Act also forbids the representation “to any person because of . . .
11 handicap . . . that any dwelling is not available for inspection, sale,
12 or rental when such dwelling is in fact so available.” Id. § 3604(d).
10 Until 2008, the ADA definition of “disability” was virtually identical to the
FHA definition of “handicap,” and so the Court’s interpretation of the ADA was
frequently applied to the FHA. Compare 42 U.S.C. § 3602(h), with the ADA, § 3,
104 Stat. at 329‐30. Congress amended the ADA, including its definition of
“disability,” in 2008. See ADAAA, § 4, 122 Stat. at 3555‐57. The FHA, however,
was not similarly amended and so our FHA interpretation is still guided by pre‐
ADAAA cases. See Bhogaita, 765 F.3d at 1288 (holding that the FHA should still
be interpreted in line with the preamendment ADA).
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1 Both provisions prohibit action taken “because of . . . handicap,”
2 and, as such, require that plaintiffs show the existence of a disability
3 within the meaning of the FHA in order to state a claim under these
subsections. 4 11
5 To demonstrate a disability under the FHA, a plaintiff must
6 show: (1) “a physical or mental impairment which substantially
7 limits one or more . . . major life activities”; (2) “a record of having
8 such an impairment”; or (3) that he or she is “regarded as having
9 such an impairment.” 42 U.S.C. § 3602(h); see RECAP, 294 F.3d at 46.
10 Prongs 1 and 3, which we will refer to as the “actually disabled” test
11 We evaluate claims that a defendant discriminated “because of” a disability
under the burden‐shifting framework established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under that framework, the plaintiff must first establish
a prima facie case of housing discrimination by showing, among other things,
that a relevant person is a member of a protected class – in this case, that the
plaintiffs’ child is disabled. See Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003).
Once the plaintiff establishes “a prima facie case of discrimination, the burden
shifts to the defendant to assert a legitimate, nondiscriminatory rationale for the
challenged decision. If the defendant makes such a showing, the burden shifts
back to the plaintiff to demonstrate that discrimination was the real reason for
the defendant’s action.” Id. (citation omitted).
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1 and the “regarded as” test, respectively, are the two definitions
2 relevant here.
3 B. Subsection 3604(c)
4 Subsection 3604(c) of the FHA prohibits “mak[ing], print[ing],
5 or publish[ing], or caus[ing] to be made, printed, or published any
6 notice, statement, or advertisement, with respect to the sale or rental
7 of a dwelling that indicates any preference, limitation, or
8 discrimination based on . . . handicap . . . , or an intention to make
9 any such preference, limitation, or discrimination.” 42 U.S.C. §
10 3604(c). This Court has interpreted this provision in the context of
11 racial discrimination to mean that “a plaintiff could bring an action
12 . . . if the defendant’s [statements] ‘suggest[ed] to an ordinary reader
13 that a particular race [was] preferred or dispreferred for the housing
14 in question,’ regardless of the defendant’s intent.” Ragin v. Harry
15 Macklowe Real Estate Co., 6 F.3d 898, 905 (2d Cir. 1993) (“Ragin II”)
16 (third and fourth alterations in original) (emphasis added) (quoting
17 Ragin v. N.Y. Times Co., 923 F.2d 995, 999 (2d Cir. 1991) (“Ragin I”)).
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1 III. Whether A.R. is Disabled
2 The plaintiffs argue that A.R. is disabled under the FHA
3 because her impairments substantially limit the major life activity of
4 learning or, in the alternative, because Aponte treated A.R.’s
impairments as if they substantially limited a major life activity. 5 12
6 We hold that the district court erred in granting summary judgment
7 to defendants on the ground that A.R. did not have a disability
12 The defendants, on appeal, challenge the plaintiffs’ standing to bring this suit.
Although the plaintiffs contend this issue is not properly before the Court due to
the defendants’ lack of cross appeal, standing is necessary to our jurisdiction.
RECAP, 294 F.3d at 46 n.2. That said, the plaintiffs’ allegation that Aponte forced
them to leave their home because of their daughter’s disability and the emotional
harm they suffered as a result of Aponte’s statements concerning A.R. are
sufficient to satisfy the “injury in fact” requirement. See Leibovitz v. N.Y.C. Transit
Auth., 252 F.3d 179, 184‐85 (2d Cir. 2001); see also LeBlanc‐Sternberg v. Fletcher, 67
F.3d 412, 424‐25 (2d Cir. 1995) (“The FHA confers standing to challenge such
discriminatory practices on any ‘aggrieved person,’ 42 U.S.C. §
3613(a)(1)(A). . . . This definition requires only that a private plaintiff allege
‘injury in fact’ within the meaning of Article III of the Constitution, that is, that
he allege ‘distinct and palpable injuries that are “fairly traceable” to [defendants’]
actions.’ An injury need not be economic or tangible in order to confer standing.”
(quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 375–76 (1982))); cf. Ragin II,
6 F.3d at 904 (holding that plaintiffs “confronted by advertisements indicating a
preference based on race” had standing to raise a claim under section 3604(c) of
the FHA). Defendants also argue that the plaintiffs lack standing because A.R. is
not disabled within the meaning of the FHA and therefore the plaintiffs’ injuries
do not bear a sufficient nexus to discrimination based on disability; we need not
reach this argument, though, because – as will be discussed – we find that the
plaintiffs have raised a genuine dispute as to whether A.R. is disabled.
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1 within the meaning of the FHA because there is sufficient evidence
2 from which a reasonable jury could conclude that A.R. was either
3 substantially limited in the major life activity of learning or that
4 Aponte regarded A.R. as substantially limited in the major life
5 activities of learning or obtaining housing.
6 A. “Actually Disabled” Under Section 3602(h)(1)
7 “[A]n individual is considered disabled [under 42 U.S.C.
8 § 3602(h)(1)] if he or she: (1) suffers from a physical or mental
9 impairment, that (2) affects a major life activity, and (3) the effect is
10 ‘substantial.’” RECAP, 294 F.3d at 46. “Major life activities include
11 ‘functions such as caring for one’s self, performing manual tasks,
12 walking, seeing, hearing, speaking, breathing, learning, and
13 working.’” Id. at 47 (quoting, inter alia, 24 C.F.R. § 100.201(b)).
14 The applicable regulations define a “[p]hysical or mental
15 impairment” to include epilepsy and autism. 24 C.F.R.
16 § 100.201(a)(2). Epilepsy is a brain disorder that causes recurring
17 seizures. U.S. Nat’l Library of Med., Epilepsy, MedlinePlus,
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1 http://www.nlm.nih.gov/medlineplus/epilepsy.html (last updated
2 Apr. 14, 2015). People with epilepsy can experience different types
3 of seizures, including grand mal and petit mal seizures. U.S. Nat’l
4 Library of Med., Absence Seizure, MedlinePlus,
5 http://www.nlm.nih.gov/medlineplus/ency/article/000696.htm (last
6 updated May 12, 2015). Grand mal seizures typically result in rigid
7 muscles, followed by violent muscle contractions and loss of
8 consciousness. U.S. Nat’l Library of Med., Generalized Tonic‐Clonic
9 Seizure, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/
10 article/000695.htm (last updated May 12, 2015). Petit mal seizures,
11 also known as absence seizures, generally involve staring episodes
12 lasting fewer than 15 seconds. U.S. Nat’l Library of Med., Absence
13 Seizure, supra. People experiencing this type of seizure undergo a
14 change in consciousness or alertness. Id.
15 Autism spectrum disorder is a neurological and
16 developmental disorder that “affects how a person acts and interacts
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1 with others, communicates, and learns.” U.S. Nat’l Library of Med.,
2 Autism Spectrum Disorder, MedlinePlus,
3 http://www.nlm.nih.gov/medlineplus/autismspectrumdisorder.html
4 (last updated May 26, 2015). The “essential features” of the disorder
5 are “persistent impairment in . . . social interaction” and “restricted,
6 repetitive patterns of behavior, interests, or activities.” Am.
7 Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders
8 53 (5th ed. 2013) (“DSM‐5”). “Manifestations of the disorder . . . vary
9 greatly.” Id. Deficits in social communication can range from
10 abnormalities in eye contact to failure to initiate or respond to social
11 interactions. Id. at 50. One example of characteristic repetitive
12 behavior is “[h]ighly restricted, fixated interests that are abnormal in
13 intensity.” Id. A diagnosis of autism spectrum disorder requires that
14 these symptoms “limit or impair everyday functioning.” Id. at 53.
15 “In young children with autism spectrum disorder, lack of social
16 and communication abilities may hamper learning, especially
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1 learning through social interaction or in settings with peers. . . .
2 Extreme difficulties in planning, organization, and coping with
3 change negatively impact academic achievement, even for students
4 with above‐average intelligence.” Id. at 57.
5 The first question is whether the plaintiffs have provided
6 sufficient evidence to create a genuine dispute that A.R. suffers from
7 an impairment. The plaintiffs’ evidence includes a sworn declaration
8 from A.R.’s pediatrician, Dr. Irene Flatau, which states:
9 A.R.’s medical history shows that she has
10 been diagnosed with epilepsy since 2010.
11 This causes her to experience grand mal
12 seizures, the most intense type of seizure,
13 during which she loses consciousness and
14 suffers violent muscle contractions, as well
15 as petit mal seizures, also known as
16 “absence” seizures, during which a person
17 briefly and suddenly lapses into
18 unconsciousness.
19
20 . . . In addition, A.R. has been diagnosed
21 with Autism Spectrum Disorder[.]
22 J.A. 229. Ms. Rodriguez also testified that A.R. has been diagnosed
23 with autism, suffers from petit and grand mal seizures, and receives
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1 medical treatment and special services in school for these conditions.
2 This evidence is sufficient to create a genuine dispute as to whether
3 A.R. has a “physical or mental impairment” under the FHA. See 24
4 C.F.R. § 100.201(a)(2).
5 We must then determine whether the district court erred in
6 holding that there was insufficient evidence from which a
7 reasonable jury could conclude that A.R.’s impairments substantially
8 limited her ability to learn. In Toyota Motor Manufacturing, Kentucky,
9 Inc. v. Williams, 534 U.S. 184 (2002), superseded by statute ADAAA, § 4,
10 122 Stat. at 3554, the Supreme Court decided that “substantially
11 limit[s]” in the ADA’s definition of “disability” required that an
12 impairment “prevent[] or severely restrict[]” an individual’s major
13 life activity. Toyota Motor, 534 U.S. at 198; accord Capobianco v. City of
14 N.Y., 422 F.3d 47, 57 (2d Cir. 2005) (“[T]he mere fact that an
15 impairment requires an individual to perform a task differently
16 from the average person does not mean that she is disabled within
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1 the meaning of the ADA . . . .”). “The impairment’s impact must . . .
2 be permanent or long term,” Toyota Motor, 534 U.S. at 198, and it
3 must be evaluated “with reference to measures that mitigate the
4 individual’s impairment,” Sutton v. United Air Lines, Inc. 527 U.S.
471, 475 (1999), superseded by statute, ADAAA, § 4, 122 Stat. at 3556. 5 13
6 Defendants argue that this Circuit requires the submission of
7 medical evidence to establish a disability under the FHA and that
8 plaintiffs’ claims fail for their failure to present admissible medical
9 evidence concerning how A.R.’s epilepsy and autism affected her
10 learning. However, medical evidence as to the extent of an
11 individual’s impairment is not always required to survive summary
12 judgment. Neither the ADA or the FHA’s text, nor the respective
13 Congress amended the ADA in 2008 “to reject the standards enunciated by the
Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534
U.S. 184 (2002),” and “to reject the requirement enunciated by the Supreme Court
in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases
that whether an impairment substantially limits a major life activity is to be
determined with reference to the ameliorative effects of mitigating measures.”
ADAAA, § 2(b)(2), (4), 122 Stat. at 3554. As mentioned previously, though, the
FHA was not similarly amended and so our FHA interpretation is still guided by
pre‐ADAAA cases, including Toyota Motor and Sutton. See Bhogaita, 765 F.3d at
1288.
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1 implementing regulations require medical evidence to establish a
2 genuine dispute of material fact regarding the impairment of a
3 major life activity at the summary judgment stage. Instead, Toyota
4 Motor requires “[a]n individualized assessment” to determine the
5 existence of a disability. Toyota Motor, 534 U.S. at 199. Medical
6 testimony may be helpful to show that an impairment is
7 substantially limiting, but it is not always necessary. See E.E.O.C. v.
8 AutoZone, Inc., 630 F.3d 635, 643‐44 (7th Cir. 2010); Head v. Glacier
9 Nw., Inc., 413 F.3d 1053, 1058‐59 (9th Cir. 2005).
10 Our decision in Heilweil v. Mount Sinai Hospital, 32 F.3d 718
11 (2d Cir. 1994), is not to the contrary, as defendants contend. The
12 statement in Heilweil that “[n]o medical proof substantiate[d]” the
13 plaintiff’s disability claim under the Rehabilitation Act was limited
14 to the context of that case. Id. at 723. In Heilweil, the issue that
15 required such proof was the extent to which the conceded
16 impairment of asthma limited the plaintiff in the major life activity
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1 of working. Id. at 722‐23. The plaintiff claimed that her asthma
2 prevented her from working in the hospital where she had been
3 employed. Id. at 723. Both the plaintiff’s own statements and those of
4 her doctor showed, however, that her asthma was only exacerbated
5 in a particular unventilated area in the hospital, and not at different
6 locations with different air quality. Id. It was in this context that we
7 dismissed the plaintiff’s contrary contention that she was unable to
8 work in the general environment of the hospital as mere speculation
9 given the absence of corroborating medical evidence. Id. Thus,
10 because the plaintiff only showed that she was unable to work in
11 one particular area of the hospital due to her asthma, she did not
12 raise a genuine issue of material fact as to whether she was
13 substantially limited in the major life activity of working. Id. at 723‐
14 24.
15 As the outcome of Heilweil reflects, conclusory declarations
16 are insufficient to raise a question of material fact. See Davis v. New
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1 York, 316 F.3d 93, 100 (2d Cir. 2002). However, non‐medical evidence
2 that conveys, in detail, the substantially limiting nature of an
3 impairment may be sufficient to survive summary judgment.
4 Here, the plaintiffs have presented sufficient evidence to
5 create a genuine dispute of material fact as to whether A.R.’s ability
6 to learn was substantially limited by her impairments. The district
7 court concluded that the plaintiffs’ testimony “does not explain how
8 A.R.’s condition may have substantially limited a major life
9 activity,” Rodriguez I, 2013 WL 5592703, at *6, and that there was “no
10 objective assessment or indication of the degree of any [e]ffect of
11 A.R.’s impairments on her school work or learning ability such that
12 it can reasonably be said that any limitation is substantial,” id. at *8.
13 This summary of the evidence fails “to resolve all ambiguities [or]
14 draw all permissible factual inferences” in favor of the plaintiffs. See
15 Stone, 118 F.3d at 99.
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1 In reaching its conclusion, the district court did not note
2 relevant deposition testimony from Ms. Rodriguez. For example,
3 Ms. Rodriguez testified that A.R. was provided with an
Individualized Education Plan (“IEP”) 4 14 at school since summer 2009
and was classified as “OHI.” 5 15 According to Ms. Rodriguez, A.R. had
6 been diagnosed with autism at the beginning of 2009. As a result of
7 her classification as OHI and the provisions of her IEP, A.R. received
8 at her school “counsel[]ing, individual, group counsel[]ing, . . .
14 “A state receiving federal funds under the [Individuals with Disabilities
Education Act (‘the IDEA’), 20 U.S.C. § 1400 et seq.] must provide disabled
children with a free and appropriate public education . . . .” R.E. v. N.Y.C. Dep’t of
Educ., 694 F.3d 167, 174‐75 (2d Cir. 2012). To ensure compliance, a school district
must create an IEP for each qualifying child. Id. at 175. “The IEP is a written
statement that sets out the child’s present educational performance, establishes
annual and short‐term objectives for improvements in that performance, and
describes the specially designed instruction and services that will enable the
child to meet those objectives.” Id. (internal quotation marks and citation
omitted); see also 20 U.S.C. § 1414(d) (setting forth the information to be included
in an IEP).
15 “OHI” stands for “other health impairments” and is one of the categories used
to define a “child with a disability” under the IDEA. See 20 U.S.C. § 1401(3)(A)(i).
“Other health impairment means having limited strength, vitality, or alertness,
including a heightened alertness to environmental stimuli, that results in limited
alertness with respect to the educational environment, that . . . [a]dversely affects
a childʹs educational performance.” 34 C.F.R. § 300.8(c)(9)(ii).
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1 [occupational therapy], speech and physical therapy . . . different
2 testing accommodation[s], note takers, various things being read to
3 her, extra time to complete tasks, extra time to take tests, [and]
4 homework modifications.” J.A. 165‐66. Defendants argue that the
5 receipt of special education services is not, by itself, determinative as
6 to whether a child qualifies as disabled. We agree. A child receiving
7 services under the IDEA “need not be ‘substantially limit[ed]’ in the
8 major life activity of learning,” so “one may therefore qualify as
9 ‘disabled’ under the IDEA for purposes of that statute without
10 demonstrating a ‘substantially limit[ing]’ impairment.” Ellenberg v.
11 N.M. Military Inst., 572 F.3d 815, 821 (10th Cir. 2009) (alterations in
12 original). Here, however, it is not just that A.R. qualified for an IEP
13 that is dispositive in determining whether she qualifies as disabled.
14 Rather, the nature of the specific services she requires shows the
15 extent to which her impairments affect her ability to learn, and the
16 additional evidence of how she has struggled notwithstanding her
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1 IEP and the support she receives at school create a triable question
2 of fact precluding summary judgment. Cf. id. at 821 n.6 (noting that
3 the plaintiff “could have used her particular individualized
4 education program to show specific evidence of substantial
5 impairment, but did not”).
6 Ms. Rodriguez also testified that A.R.’s petit mal seizures
7 cause her to “blink[] off” for short periods of time. J.A. 177. For
8 example, when experiencing these seizures, A.R. will stop mid‐
9 sentence, having forgotten what she was saying, or she will miss
10 part of a program when watching television and not recall what
11 happened. According to Ms. Rodriguez, A.R. began experiencing
12 petit mal seizures in August or September 2010, when A.R. was
13 entering fifth grade. Ms. Rodriguez testified that A.R. received
14 special academic services throughout fifth grade, and that her
15 grades in sixth grade – while initially good – “kept going
16 considerably lower.” J.A. 172. By the time A.R. reached seventh
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1 grade in September 2012, she was still having petit mal seizures and
2 still struggling with school. This testimony therefore also
3 demonstrates the magnitude of A.R.’s impairment in the area of
4 learning. See Hanneke M. de Boer et al., The Global Burden and Stigma
5 of Epilepsy, 12 Epilepsy & Behav. 540, 542 (2008) (stating that “[o]ne
6 major area of cognitive malfunctioning in people with epilepsy is
7 memory impairment” and that frequent seizures can “impair
8 learning of new information because of the amount of time the
9 person is unaware of the environment”).
10 In addition, on February 6, 2011 – during the time of the text
11 message exchange with Aponte – A.R. had her first of two grand
12 mal seizures. She was taken to the hospital and then suffered the
13 second grand mal seizure on the way home. She was again taken to
14 the hospital. Shortly following these seizures, A.R. was removed
15 from her school because her medications were causing her to have
16 “outbursts” and the school was “not able to provide her with a one‐
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1 on‐one aide,” making it “more of a safety risk to have her there.”16
2 J.A. 166‐67. She was then home schooled by a tutor (provided by the
3 school system), who had to “double [her] time because they could
4 not even get through the stuff with her.” J.A. 167‐68. She did not
5 return to school until the last week of June and did not finish her
6 fifth grade course work until August 2011. Although the defendants
7 are correct in observing that A.R.’s grand mal seizures have
8 apparently not recurred since February 2011, it is the impact of her
9 impairment, not its most severe physical manifestations, that must
10 be “permanent or long term.” See Toyota Motor, 534 U.S. at 198. Ms.
11 Rodriguez testified that A.R. was continuing to struggle to keep up
12 in school as late as September 2012. There is therefore at least a
13 question of fact as to the long‐term impact of the grand mal seizures
14 alone and in combination with her other conditions on A.R.’s ability
16 See Sutton, 527 U.S. at 482 (“[I]f a person is taking measures to correct for, or
mitigate, a physical or mental impairment, the effects of those measures – both
positive and negative – must be taken into account when judging whether that
person is ‘substantially limited’ in a major life activity and thus ‘disabled.’”).
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1 to learn. Cf. Joan K. Austin et al., Does Academic Achievement in
2 Children with Epilepsy Change over Time?, 41 Developmental Med. &
3 Child Neurology 473, 478 (1999) (finding no trend of improved
4 academic achievement among children “whose seizure conditions
5 changed from high to low severity,” and hypothesizing that “[o]ne
6 possible explanation for this finding . . . is that these children missed
7 out on learning information during the period when their seizure
8 conditions were severe and [they] were not able to catch up”).
9 In addition to this evidence, the plaintiffs also submitted
10 medical evidence to demonstrate the extent of A.R.’s limitations,
11 including a May 2009 developmental‐behavioral evaluation, a June
12 2009 occupational therapy initial evaluation, and progress notes and
13 reports from A.R.’s pediatric neurologists in 2010 and 2011. The
14 plaintiffs offered these documents in opposition to defendants’
15 motion for summary judgment. The documents were cited in
16 plaintiffs’ opposition brief, quoted in plaintiffs’ response to
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1 defendants’ Local Rule 56.1 statement, and presented as attachments
2 to the declaration of plaintiffs’ attorney, who attested that they are
3 true and accurate copies, and were produced under a protective
4 order for A.R.’s medical records.
5 The defendants first raised an objection to the admissibility of
6 these records in their reply brief in support of their motion for
7 summary judgment, which was filed on October 4, 2013. On October
8 7, 2013, the district court noted on the docket that the parties’ cross‐
9 motions for summary judgment would be decided without oral
10 argument. On October 10, 2013 – just six days after defendants first
11 objected to the admissibility of the medical records – the district
12 court issued its opinion in Rodriguez I, in which it found that the
13 records were inadmissible because they were unauthenticated and
14 there was no indication that they were complete and accurate copies
15 of A.R.’s medical records. See Rodriguez I, 2013 WL 5592703, at *6. It
16 therefore does not appear that the plaintiffs had an opportunity to
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1 respond to the defendants’ objections or to supplement the record
2 with additional documentation to authenticate and certify the
3 records prior to the district court’s ruling. See Fed. R. Civ. P. 56(c)(2)
4 advisory committee’s note to 2010 amendment (“[A] party may
5 object that material cited to support or dispute a fact cannot be
6 presented in a form that would be admissible in evidence. The
7 objection functions much as an objection at trial, adjusted for the
8 pretrial setting. The burden is on the proponent to show that the
9 material is admissible as presented or to explain the admissible form
10 that is anticipated.”); cf. H. Sand & Co. v. Airtemp Corp., 934 F.2d 450,
11 454 (2d Cir. 1991) (stating that Fed. R. Civ. P. 56 “does not . . . require
12 that parties authenticate documents where [the non‐offering party]
13 did not challenge the authenticity of the documents”).
14 Having reviewed these medical records, we note that their
15 appearance, contents, and substance are what one would expect of
16 such records and support plaintiffs’ claim that they are what they
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1 appear to be. Cf. Fed. R. Evid. 901(b)(4) (stating that the
2 authentication requirement can be satisfied by “[t]he appearance,
3 contents, substance, . . . or other distinctive characteristics of the
4 item, taken together with all the circumstances”); United States v.
5 Pluta, 176 F.3d 43, 49 (2d Cir. 1999) (“[T]he burden of authentication
6 does not require the proponent of the evidence to . . . prove beyond
7 any doubt that the evidence is what it purports to be. Rather, the
8 standard for authentication, and hence for admissibility, is one of
9 reasonable likelihood.” (alteration in original) (internal quotation
10 marks and citation omitted)); United States v. Bagaric, 706 F.2d 42, 67
11 (2d Cir. 1983) (“The requirement of authentication is satisfied by
12 evidence sufficient to support a finding that the matter is what its
13 proponent claims. This finding may be based entirely on
14 circumstantial evidence, including [a]ppearance, contents,
15 substance . . . and other distinctive characteristics of the writing.”
16 (alterations in original) (internal quotation marks and citations
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1 omitted)), abrogated on other grounds by Natʹl Org. for Women, Inc. v.
2 Scheidler, 510 U.S. 249 (1994). The record also indicates that these
3 records were produced by the medical providers themselves. See
4 Smyth Decl., App’x A, Tab 5 at 2 (facsimile transmittal page from
5 eRiver Neurology); id., App’x A, Tab 8 at 2 (HIPAA authorization
6 signed by Ms. Rodriguez authorizing release of A.R.’s records to
7 plaintiffs’ counsel); id., App’x A, Tab 9 at 2 (cover letter to plaintiffs’
8 counsel describing photocopying fee from school district where
9 A.R.’s evaluating occupational therapist was employed). These
10 documents therefore seem like the type that likely could have been
11 authenticated and certified, had plaintiffs had the opportunity to
12 respond.
13 Moreover, although the district court stated that these records
14 were “inadmissible,” the court still considered them, reviewed them
15 in some detail, and concluded that they were “insufficient to
16 establish a medical condition that substantially limits one or more
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1 major life activities.” Rodriguez I, 2013 WL 5592703, at *6‐8.
2 Accordingly, although we conclude that the non‐medical evidence
3 discussed above is sufficient to raise a genuine dispute as to the
4 extent of A.R.’s limitations, we will consider these medical records
5 as well. Cf. Sony Corp. v. Elm State Elecs., Inc., 800 F.2d 317, 320 (2d
6 Cir. 1986) (describing the Second Circuit’s “strong preference for
7 resolution of disputes on their merits” and “preference for resolving
8 doubts in favor of a trial on the merits”); Cargill, Inc. v. Sears
9 Petroleum & Transp. Corp., 334 F. Supp. 2d 197, 247 (N.D.N.Y. 2004)
10 (“Because of the preference to have issues and claims decided on
11 their merits, rather than on the basis of a procedural shortcoming,
12 the exclusion of otherwise relevant evidence on technical grounds is
13 generally not favored . . . .”).
14 We find that the medical records submitted by the plaintiffs
15 further support plaintiffs’ claims of how severely A.R.’s
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impairments affect her ability to learn.17 1 In May 2009, at the
2 recommendation of A.R.’s school, the Rodriguezes took A.R. to see
3 pediatrician Dr. Monica R. Meyer for a developmental‐behavioral
4 evaluation. Dr. Meyer recorded the Rodriguezes’ concern that A.R.’s
5 “anxieties . . . have led to a plateauing in her school work and her no
6 longer performing well in school.” J.A. 250. She diagnosed A.R. as
7 having “pervasive developmental disorder” and noted that this
8 condition, along with A.R.’s anxiety, “impact[s] her life in general,
9 her performance at school and her peer interactions.” J.A. 254‐55. Dr.
10 Meyer found that “[a]t school, [A.R.] belongs in an integrated class
11 with a special education teacher who has experience working with
12 children on the autistic spectrum.” J.A. 255. Dr. Meyer also
13 recommended counseling, social skills training, occupational
17 These records include progress notes from A.R.’s pediatric neurologists, Drs.
Glenn Y. Castaneda and Faith Goring‐Britton; a developmental‐behavioral
evaluation by Dr. Monica R. Meyer, a developmental‐behavioral pediatrician;
and an occupational therapy initial evaluation by Meg Simmons‐Jackson, a
licensed and registered occupational therapist.
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1 therapy, and “accommodations that lessen the impact of [A.R.’s]
2 anxiety on her academic performance.” Id.
3 An occupational therapy initial evaluation conducted by
4 A.R.’s school system in 2009 following A.R.’s autism diagnosis
5 found that she had “difficulty registering visual and movement
6 input” and “misses written/demonstrated directions.” J.A. 260. The
7 evaluation also noted that A.R. “requires more external supports
8 than her peers to participate in learning,” “is currently not
9 registering input that will help her attend to the task at hand,” “[has]
10 [t]olerance within the learning environment [that] is less than that of
11 her peers,” and “[has] [a]vailability for learning within the learning
12 environment [that] is less than that of her peers.” J.A. 259.
13 In November 2010, shortly before the events of February 2011,
14 pediatric neurologist Dr. Glenn Castaneda diagnosed and treated
15 A.R.’s epilepsy. His notes confirm that the Rodriguezes observed
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1 that A.R.’s petit mal seizures were “beginning to affect her school
2 work as her grades [were] deteriorating.” J.A. 247.
3 Finally, Dr. Castaneda’s records from March 2011 state that
4 Ms. Rodriguez reported that A.R.’s conditions were “causing a lot of
5 distress for [A.R.] . . . and [that] she ha[d] been off of school for at
6 least a couple of weeks.” J.A. 241. At the time of Ms. Rodriguez’s
7 deposition in September 2012, A.R. was in her first week of seventh
8 grade, and she was still experiencing petit mal seizures and was
9 “having struggles [with school] already.” J.A. 172, 176‐77.
10 Whether just considering the non‐medical evidence, or also
11 considering this medical evidence, the evidence as to the severity of
12 A.R.’s learning limitations is sufficient to survive summary
13 judgment. A jury could reasonably infer from the extensive
14 educational support A.R. receives that she is significantly limited in
15 her ability to independently register and process information, pay
16 attention to educators, take notes, read, and complete her
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1 homework. See Gummo v. Vill. of Depew, N.Y., 75 F.3d 98, 107 (2d Cir.
2 1996) (“If, as to the issue on which summary judgment is sought,
3 there is any evidence in the record from which a reasonable
4 inference could be drawn in favor of the opposing party, summary
5 judgment is improper.”). These skills are fundamental to learning, as
6 are the ability to remember information and to follow written or
7 demonstrated directions — abilities that may also be substantially
8 limited by A.R.’s petit mal seizures and autism, according to
9 plaintiffs’ evidence. Where these skills are limited, it follows that
10 A.R.’s ability to learn may be substantially limited. See Emory v.
11 AstraZeneca Pharm. LP, 401 F.3d 174, 181‐82 (3d Cir. 2005) (reversing
12 a grant of summary judgment because evidence that plaintiff’s
13 “limitations interfere with his ability to read and process
14 information, as well as basic math skills or the filling out of
15 paperwork,” was sufficient to create a genuine issue as to whether
16 he was substantially limited in the major life activity of learning); cf.
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1 Branham v. Snow, 392 F.3d 896, 903‐04 (7th Cir. 2004) (holding that a
2 reasonable juror could find the plaintiff substantially limited in the
3 activity of eating based on his diabetes, his limitations after
4 receiving treatment, and the side effects of that treatment).
5 Significantly, this conclusion is supported by the fact that, despite
6 the extra help A.R. receives at school, her grades began deteriorating
7 in fifth grade and she has continued to struggle in sixth and seventh
8 grade. See Sutton, 527 U.S. at 482. Drawing all permissible inferences
9 in favor of the plaintiffs, they have presented sufficient evidence at
10 this stage of the litigation to create a genuine dispute as to whether
11 A.R.’s ability to learn is substantially limited.
12 B. “Regarded as” Disabled Under Section 3602(h)(3)
13 Plaintiffs also challenge the district court’s conclusion that
14 “there is insufficient evidence upon which a fair minded trier of fact
15 could reasonably conclude that Aponte regarded A.R. as having a
16 handicap.” Rodriguez I, 2013 WL 5592703, at *9. According to the
17 regulations issued by the Department of Housing and Urban
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1 Development, one is regarded as having an impairment if, inter alia,
2 she “[h]as a physical or mental impairment that does not
3 substantially limit one or more major life activities but that is treated
4 by another person as constituting such a limitation.” 24 C.F.R.
5 § 100.201(d)(1). Prior to the 2008 enactment of the ADAAA, the
6 regulations implementing the ADA contained a substantially
7 identical provision, which we held required a plaintiff to “show that
8 defendants perceived [the plaintiff’s] impairment as substantially
9 limiting the exercise of a major life activity.” Reeves v. Johnson
Controls World Servs., Inc., 140 F.3d 144, 153 (2d Cir. 1998). 10 18
18 Following the enactment of the ADAAA,
[a]n individual meets the requirement of “being
regarded as having such an impairment” [under
the ADA] if the individual establishes that he or
she has been subjected to an action prohibited
under this chapter because of an actual or
perceived physical or mental impairment whether
or not the impairment limits or is perceived to limit
a major life activity.
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1 “Proving that a[] [plaintiff] is regarded as disabled . . . is a
2 question embedded almost entirely in the [defendant’s] subjective
3 state of mind.” Ross v. Campbell Soup Co., 237 F.3d 701, 709 (6th Cir.
4 2001).
5 This Court has consistently held where
6 subjective issues regarding a litigantʹs state
7 of mind . . . are squarely implicated,
8 summary judgment would appear to be
9 inappropriate and a trial indispensable. . . .
10 Furthermore, a sojourn into an adherentʹs
11 mind‐set will inevitably trigger myriad
12 factual inferences, as to which reasonable
13 persons might differ in their resolution.
14 Traditionally, this function has been
15 entrusted to the jury.
16 Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir. 1984) (citations omitted).
17 The first step of our analysis is to determine the major life
18 activity at issue. Cf. Reeves, 140 F.3d at 153‐54. The plaintiffs
19 primarily contend that Aponte’s text messages show that she
20 perceived A.R.’s epilepsy as substantially limiting her in the major
42 U.S.C. § 12102(3)(A); see also Hilton v. Wright, 673 F.3d 120, 128‐29 (2d Cir.
2012) (per curiam) (discussing the amendment to the ADA’s “regarded as”
provision). As noted above, the FHA was not similarly amended.
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1 life activity of obtaining housing. They also argue that she regarded
2 A.R. as substantially limited in her ability to learn.
3 This Court has not determined whether “obtaining housing”
4 is a major life activity, but the Fourth Circuit has held that it is.
5 United States v. S. Mgmt. Corp., 955 F.2d 914, 919 (4th Cir. 1992). We
6 agree. “Major life activities means functions such as caring for oneʹs
7 self, performing manual tasks, walking, seeing, hearing, speaking,
8 breathing, learning and working.” 24 C.F.R. § 100.201(b). But this list
9 is “not exclusive.” Reeves, 140 F.3d at 150; see also Bartlett v. N.Y. State
10 Bd. of Law Exam’rs, 226 F.3d 69, 79‐80 (2d Cir. 2000). Major life
11 activities are “those activities that are of central importance to daily
12 life,” Toyota Motor, 534 U.S. at 197, including reading, Bartlett, 226
13 F.3d at 80, and interacting with others, Jacques v. DiMarzio, Inc., 386
14 F.3d 192, 202‐04 (2d Cir. 2004). On the other end of the spectrum are
15 those activities that are “insufficiently fundamental,” such as
16 performing housework and shopping. Colwell v. Suffolk Cnty. Police
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1 Dep’t, 158 F.3d 635, 642‐43 (2d Cir. 1998). The ability to obtain shelter
2 is among the most basic of human needs and thus is a “major life
3 activity” for purposes of the FHA. We note that a person is not
4 substantially limited in the major life activity of obtaining housing
5 simply because she is unable to, or regarded as unable to, live in a
6 particular dwelling. Rather, a person is substantially limited if, due
7 to her impairment, she cannot live or is regarded as unable to live in
8 a broad class of housing that would otherwise be accessible to her.
9 Cf. Sutton, 527 U.S. at 491‐92.
10 We now turn to whether the plaintiffs’ evidence is sufficient
11 for a reasonable juror to conclude that Aponte perceived A.R.’s
12 impairments as substantially limiting her in the activities of learning
13 or obtaining housing. The district court concluded that “the only
14 limitations expressed” by these messages were with respect to the
15 ability of an ambulance to reach the property, “not whether A.R.
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1 was limited with respect to a major life activity.” Rodriguez I, 2013
2 WL 5592703, at *9. We disagree.
3 First, there is sufficient evidence to create a genuine dispute as
4 to whether Aponte perceived A.R. as substantially limited in her
5 ability to learn. Aponte knew from Drost – the Rodriguezes’
6 neighbor and A.R.’s aide at school – that A.R. was autistic and
7 received special education services at school. Aponte learned from
8 Ms. Rodriguez, and likely from Morelli as well, that A.R. is epileptic.
9 Although Aponte’s statement in her text messages that “[t]he
10 prospective new owner is very concerned about continuing your
11 lease with you Childs medical situation and will probably not want
12 to rent to you,” J.A. 232, does not illuminate what medical condition
13 is at issue or why she thought the condition would be of concern,
14 answering those questions and determining Aponte’s mental state
15 should be left to the jury. See LeFevre, 745 F.2d at 159.
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1 Second, there is also evidence that Aponte perceived A.R. as
2 substantially limited in her ability to obtain housing. Aponte wrote
3 in her text messages to Ms. Rodriguez:
4 “The new owner has decided not to
5 continue to rent to you because your
6 daughter should be in a more convenient
7 location to medical treatment[.]” J.A. 233.
8 “The new owner is concerned by your
9 statement that emergency vehicles cannot
10 reach you should your daughter be at risk.”
11 Id.
12 “When all these concerns came up about
13 your daughter being seriously ill and
14 emergency vehicles not being able to get to
15 her! That is of major concern as to liability
16 which you raised!!” Id. at 235.
17 Arguably, Aponte expresses through these messages a belief
18 that, because of her epilepsy, A.R. could only live close to facilities
19 providing medical treatment. If true, this could certainly be a
20 perceived substantial limitation on A.R.’s ability to obtain housing.
21 By including in the definition of “handicap” “not only those who are
22 actually physically impaired, but also those who are regarded as
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1 impaired . . . , Congress acknowledged that society’s accumulated
2 myths and fears about disability and disease are as handicapping as
3 are the physical limitations that flow from actual impairment.” Sch.
4 Bd. of Nassau Cnty., Fla. v. Arline, 480 U.S. 273, 284 (1987) (referring to
5 section 504 of the Rehabilitation Act of 1973, Pub. L. No. 93‐112, 87
6 Stat. 355 (1973) (codified as amended at 29 U.S.C. § 701 et seq.)). The
7 1988 Amendments to the FHA, which extended coverage of the Act
8 to disabled individuals, were specifically aimed at rejecting
9 “[g]eneralized perceptions about disabilities and unfounded
10 speculations about threats to safety . . . as grounds to justify
11 exclusion.” H.R. Rep. No. 100‐711, at 18 (1988), reprinted in 1988
12 U.S.C.C.A.N. 2173, 2179. A conclusion that one with epilepsy can
13 only safely live in a property close to medical care is the sort of
14 “unfounded speculation” about a disability against which the FHA
15 is designed to protect, and any denial of housing resulting from such
16 speculation would be “as handicapping as . . . the physical
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1 limitations that flow from [A.R.’s] actual impairment.” Arline, 480
2 U.S. at 284.
3 Aponte’s text messages can also be read to suggest that she
4 believed the new owner would find A.R.’s medical needs, in her
5 words, a “liability” and a “risk.” In extending coverage to those
6 individuals who are “regarded as” having a physical or mental
7 disability, Congress was concerned with impairments that “might
8 not diminish a person’s physical or mental capabilities, but could
9 nevertheless substantially limit that person[ ] . . . as a result of the
10 negative reactions of others to the impairment.” Id. at 282‐83 & n.10.
11 One reasonable interpretation of Aponte’s texts is that she believed
12 A.R.’s impairment made her an undesirable tenant, restricted in her
13 ability to obtain housing because property owners would not wish
to rent to her.19 14
19 As mentioned above, any such concerns would have originated with Aponte
herself, as she had no basis to believe that the prospective purchaser of the
property felt this way.
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1 Because there is sufficient evidence to create a genuine
2 dispute as to whether A.R. qualifies as disabled for purposes of the
3 FHA, we vacate the district court’s grant of summary judgment on
plaintiffs’ claims under 42 U.S.C. § 3604(f) and remand. 4 20
5 C. Subsection 3604(d)
6 The district court also dismissed the plaintiffs’ subsection
7 3604(d) claim. The court found that
8 for the § 3604(c) claim, Plaintiffs must
9 demonstrate that an ordinary listener
10 would believe that, in light of all the
11 circumstances, Aponteʹs statements
12 indicated a preference, limitation or
13 discrimination based on “handicap,” as
14 defined by statute. Similarly, for the
15 § 3604(d) claim, Plaintiffs must
16 demonstrate that Aponte represented that
17 the apartment was not for rent because of
18 “handicap,” as defined by the statute.
20 Defendants urge that we affirm the district court on the ground that Aponte’s
alleged conduct was insufficient “to qualify as rendering a house unavailable
and/or imposing discriminatory terms and conditions for continued renting”
under 42 U.S.C. § 3604(f)(1) and (2). As the district court did not reach this
question, we decline to address it in the first instance on appeal. See Hartford
Courant Co. v. Pellegrino, 380 F.3d 83, 90 (2d Cir. 2004) (“In general, we refrain
from analyzing issues not decided below . . . .”).
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1 Rodriguez II, 2013 WL 6058577, at *3. The court – discussing and
2 dismissing both claims together – concluded that Aponte’s
3 statements were not “based on handicap” as defined in the FHA
4 because there was insufficient evidence (1) that A.R. was disabled
5 within the meaning of the FHA or (2) that “Aponte expressed a
6 preference, limitations, or discrimination against disabled persons
7 generally or persons whom she regarded as disabled or had a record
8 of disability.” Id. In doing so, the district court conflated subsection
9 (c) with subsection (d). This was also error.
10 Subsection (d) makes it unlawful “[t]o represent to any person
11 because of . . . handicap . . . that any dwelling is not available for
12 inspection, sale or rental when such dwelling is in fact so available.”
13 42 U.S.C. § 3604(d) (emphasis added). The italicized language
14 mirrors subsection 3604(f), which prohibits discrimination “because
15 of a handicap.” Id. § 3604(f). It is not the same as subsection 3604(c),
16 which prohibits statements that “indicate[] any preference . . . based
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1 on” disability. See Ragin I, 923 F.2d at 999 (relying on the “critical . . .
2 verb ‘indicates’” to support adoption of the “ordinary reader”
3 standard). It is the “actually disabled” or “regarded as disabled”
4 standards – not the ordinary listener standard – that is applied to
5 subsection 3604(d). Because the “ordinary listener” standard does
6 not apply and there is sufficient evidence to show that A.R. is
7 disabled, we also vacate and remand the district court’s dismissal of
8 plaintiffs’ subsection 3604(d) claim.
9 IV. Subsection 3604(c)
10 In dismissing plaintiffs’ claim under subsection 3604(c), the
11 district court held on reconsideration that an “ordinary listener”
12 could not have understood Aponte’s statements concerning A.R. to
13 indicate a preference based on disability. The court based its
14 determination on the fact that Aponte’s statements were aimed
15 exclusively at A.R., and that the court had already determined that
16 the evidence was insufficient to establish that A.R. was in fact
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1 disabled under the FHA definition. Rodriguez II, 2013 WL 6058577, at
2 *3. However, regardless of whether A.R. is disabled under the FHA
3 definition, the “ordinary listener” could understand Aponte’s
4 statements to A.R.’s mother as classifying A.R. as such and
5 expressing discrimination on that basis. For the reasons that follow,
6 we hold that section 3604(c) can be violated by statements targeted
7 at an individual that convey to an ordinary listener that the
8 individual is disabled. In other words, it is not determinative that
9 the individual being addressed is or is not disabled under the FHA;
10 what matters is whether the ordinary listener would understand the
11 statements as considering her as such and expressing discrimination
or a preference against her on that basis. 12 21
21 This analysis of our “ordinary listener” standard is necessitated by the unique
circumstances of a case alleging discriminatory statements targeted at an
individual based on disability. While the “ordinary listener” standard is well
established in the context of racial discrimination, disability is often a much more
contested classification that requires a fact intensive, case‐by‐case inquiry. See
Toyota Motor, 534 U.S. at 198‐99. The determination becomes even more
complicated when applying the “ordinary listener” standard to statements made
directly to an individual.
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1 This approach is supported by our decisions that have
2 emphasized that subsection 3604(c) “‘protect[s] against [the] psychic
3 injury’ caused by discriminatory statements made in connection
4 with the housing market.” United States v. Space Hunters, Inc., 429
5 F.3d 416, 424‐25 (2d Cir. 2005) (alterations in original) (quoting
6 Robert G. Schwemm, Discriminatory Housing Statements and § 3604(c):
7 A New Look at the Fair Housing Act’s Most Intriguing Provision, 29
8 Fordham Urb. L.J. 187, 250 (2001)); see also Schwemm, supra, at 249
9 (noting that courts have ruled that section 3604(c)’s goals include
10 reducing the market‐limiting effect of discriminatory statements and
11 protecting “home seekers from suffering insult, emotional distress,
12 and other intangible injuries”).
13 We believe this approach alleviates the difficulty in applying
14 section 3602(h)’s definition of “handicap . . . with respect to a
15 person” to subsection 3604(c), the only prohibition in section 3604
16 that does not refer to a “person” or “buyer or renter.” In Toyota
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1 Motor, the Supreme Court pointed out that the “the [ADA] defines
2 ‘disability’ with respect to an individual.” Toyota Motor, 534 U.S. at
3 198. The same is true of the FHA’s definition of handicap. See 42
4 U.S.C. § 3602(h). According to the Court, this language in the ADA
5 “ma[de] clear that Congress intended the existence of a disability to
6 be determined in . . . a case‐by‐case manner,” requiring “[a]n
7 individualized assessment of the effect of an impairment.” Toyota
8 Motor, 534 U.S. at 198‐99. The Toyota Motor Court, however, was
9 considering a pre‐amendment version of a section of the ADA that
10 prohibited “not making reasonable accommodations to the known
11 physical or mental limitations of an otherwise qualified individual
12 with a disability who is an applicant or employee . . . .” ADA, §
13 102(b)(5)(A), 104 Stat. at 332 (emphasis added). In referring to an
14 “individual,” this provision of the pre‐amendment ADA is similar to
15 42 U.S.C. § 3604(a)‐(b), (d)‐(f), all of which refer to a “person” or
16 “buyer or renter.” But subsection 3604(c) of the FHA – as noted
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1 above – is different. Subsection 3604(c) does not refer to attributing a
2 disability to a particular person, making the definition of
3 “handicap . . . with respect to a person” and Toyota’s individualized
4 analysis inapt. Indeed, a statement implicating subsection 3604(c)
5 need not be targeted at a single, identifiable individual at all. Thus,
6 holding that a statement, even when targeted at a non‐disabled
7 individual, can still violate subsection 3604(c) – as long as it conveys,
8 to the ordinary listener, a preference against those who are disabled
9 as defined by the FHA – accomplishes the goal of subsection 3604(c).
10 This view of subsection 3604(c) also recognizes that subsection
11 3604(c) “prohibits all ads that indicate a [disallowed] . . . preference
12 to an ordinary reader whatever the advertiser’s intent.” Ragin I, 923
13 F.2d at 1000; cf. Soules v. U.S. Dep’t of Hous. & Urban Dev., 967 F.2d
14 817, 825 (2d Cir. 1992) (“[F]actfinders may examine [the speaker’s]
15 intent, not because a lack of design constitutes an affirmative
16 defense to an FHA violation, but because it helps determine the
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1 manner in which a statement was made and the way an ordinary
2 listener would have interpreted it.”). It would contradict the
3 language of subsection 3604(c) to hold that what matters is whether
4 a person was “regarded as” disabled by the speaker, an inquiry that
5 depends on the speaker’s state of mind. See Reeves, 140 F.3d at 153.
6 Under subsection 3604(c), the speaker’s subjective belief is not
7 determinative. What matters is whether the challenged statements
8 convey a prohibited preference or discrimination to the ordinary
listener.22 9
10 In the end, the “touchstone” of the inquiry is the message
11 conveyed. Ragin I, 923 F.2d at 1000. Aponte responded to learning
12 that A.R. had autism and epileptic seizures with a series of text
13 messages stating concerns about renting to the Rodriguez family,
14 including fear that their tenancy would be a “liability.” The district
22 This discussion addresses the particular issues raised by the “regarded as”
definition of disability under subsection 3602(h)(3), but a statement directed at an
individual can also violate subsection 3604(c) when it conveys to the ordinary
listener that the individual is actually disabled under subsection 3602(h)(1).
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1 court acknowledged that Aponte’s “statements superficially appear
2 to be discriminatory on their face because they indicate a desire not
3 to rent to Plaintiffs on account of A.R.’s ‘illness,’ ‘medical condition,’
4 ‘situation,’ or proximity to medical treatment.” Rodriguez II, 2013 WL
5 6058577, at *3. The ordinary listener, who “is neither the most
6 suspicious nor the most insensitive of our citizenry,” Ragin I, 923
7 F.2d at 1002, very well could have interpreted these messages as
8 stating a desire not to rent to anyone with such limitations. This
9 preference could cover many people who qualify as disabled under
10 the FHA, and thus Aponte’s statements conveying this preference
11 would violate subsection 3604(c).
12 CONCLUSION
13 We hold that the district court erred in granting defendants
14 summary judgment because there is sufficient evidence that A.R. is
15 disabled under the FHA. Furthermore, we hold that the “ordinary
16 listener” standard is not applicable to claims under 42 U.S.C. §
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1 3604(d). Therefore, this claim also survives summary judgment
2 based on the evidence that A.R. was either actually disabled or
3 regarded as such. Finally, we hold that statements directed at an
4 individual may violate the FHA’s prohibition against statements
5 that indicate a preference or discrimination based on handicap, 42
6 U.S.C. § 3604(c), even if that individual is not disabled under the
7 FHA. Here, the ordinary listener could understand Aponte’s
8 statements as classifying A.R. as disabled under the FHA and
9 indicating discrimination or a preference against her on that basis.
10 Accordingly, we VACATE the judgment of the district court
11 and REMAND.
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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_08-cv-00842/USCOURTS-caed-2_08-cv-00842-1/pdf.json | 864 | Social Security - SSID Title XVI | 42:416 Denial of Social Security Benefits | 1
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BESS M. BREWER, #100364
LAW OFFICE OF
BESS M. BREWER & ASSOCIATES
P.O. Box 5088
Sacramento, CA 95817
Telephone: (916) 454-3111
Facsimile: (916) 454-3131
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DAMIKO L. GREEN )
) Case No. CIV-08-842 KJM
)
) STIPULATION AND ORDER
Plaintiff, ) EXTENDING PLAINTIFF’S TIME TO
) FILE MEMORANDUM IN SUPPORT
v. ) OF SUMMARY JUDGMENT
)
MICHAEL J. ASTRUE )
Commissioner of Social Security )
of the United States of America, )
)
Defendant. )
)
)
IT IS HEREBY STIPULATED by and between the parties, through their attorneys, and with
the permission of the Court as evidenced below, that the Plaintiff’s time to file the summary judgment
in this case is hereby extended from September 29, 2008, to December 12, 2008. This is Plaintiff’s
first extension and is required due to Plaintiff’s counsel’s extremely heavy briefing schedule through
November 2008.
/ / / /
/ / / /
/ / / /
Case 2:08-cv-00842-KJM Document 15 Filed 09/30/08 Page 1 of 2
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Dated: September 25, 2008 /s/Bess M. Brewer
BESS M. BREWER
Attorney at Law
Attorney for Plaintiff
Dated: September 29, 2008 McGregor W. Scott
United States Attorney
/s/ Gina Shin
GINA SHIN
Special Assistant U.S. Attorney
Social Security Administration
Attorney for Defendant
ORDER
APPROVED AND SO ORDERED.
DATED: September 29, 2008.
Case 2:08-cv-00842-KJM Document 15 Filed 09/30/08 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-alnd-6_14-cv-01556/USCOURTS-alnd-6_14-cv-01556-0/pdf.json | 864 | Social Security - SSID Title XVI | 42:405 Review of HHS Decision (SSID) | IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
VICKIE MICHELE HAMILTON, )
)
Claimant, )
)
v. ) CIVIL ACTION NO.
) 6:14-CV-01556-KOB
CAROLYN W. COLVIN, )
ACTING COMMISSIONER OF )
SOCIAL SECURITY, )
)
Respondent. )
MEMORANDUM OPINION
I. INTRODUCTION
On January 22, 2009, the claimant, Vickie Hamilton, protectively applied for disability
insurance benefits and Supplemental Security Income alleging that she became disabled on
January 9, 2009 because of arthritis in both knees, spurs in her neck, and back problems. (R. 202-
11, 228). The claimant’s claims were denied initially. (R. 90, 91, 97-103). The Administrative
Law Judge (ALJ) held a hearing on October 21, 2010. (R. 63-83). Thereafter, the ALJ found the
claimant not disabled in a decision dated February 2, 2011. (R. 447-57). The claimant requested
review of the hearing decision, and the Appeals Council remanded the case to an ALJ on July 6,
2012. (R. 92-95, 150).
The ALJ held a new hearing on December 3, 2012. (R. 28-45). The ALJ then issued a
decision dated April 8, 2013, finding the claimant not disabled. (R. 10-23). The claimant
requested review of the decision, and the Appeals Council denied the claimant’s request for
review. (R. 1-6, 8-9). Consequently, the ALJ’s April 2013 decision became the final decision of
1
FILED
2016 Feb-16 AM 11:39
U.S. DISTRICT COURT
N.D. OF ALABAMA
Case 6:14-cv-01556-KOB Document 13 Filed 02/16/16 Page 1 of 22
the Commissioner of the Social Security Administration. (R. 1-6). The claimant has exhausted
her administrative remedies, and this court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3). For the reasons stated below, this court AFFIRMS the decision of the Commissioner.
II. ISSUES PRESENTED
The claimant presents the following issues for review:
1. whether the ALJ properly applied the pain standard to the claimant’s subjective complaints;
2. whether the ALJ’s step two determination was sufficient when the ALJ did not find the
claimant’s cervical degenerative disc disease to be a severe impairment; and
3. whether the ALJ properly assessed the claimant’s residual functional capacity (“RFC”),
including the “function-by-function” assessment.
III. STANDARD OF REVIEW
The standard for reviewing the Commissioner’s decision is limited. This court must
affirm the Commissioner’s decision if she applied the correct legal standards and if substantial
evidence supports her factual conclusions. See 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d
1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
“No . . . presumption of validity attaches to the [Commissioner’s] legal conclusions,
including determination of the proper standards to be applied in evaluating claims.” Walker, 826
F.2d at 999. This court does not review the Commissioner’s factual determinations de novo. The
court will affirm those factual determinations that are supported by substantial evidence.
“Substantial evidence” is “more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 402 (1971).
The court must keep in mind that opinions such as whether a claimant is disabled, the
2
Case 6:14-cv-01556-KOB Document 13 Filed 02/16/16 Page 2 of 22
nature and extent of a claimant’s residual functional capacity, and the application of vocational
factors “are not medical opinions, . . . but are, instead, opinions on issues reserved to the
Commissioner because they are administrative findings that are dispositive of a case; i.e., that
would direct the determination or decision of disability.” 20 C.F.R. §§ 404.1527(d), 416.927(d).
Whether the claimant meets the listing and is qualified for Social Security disability benefits is a
question reserved for the ALJ, and the court “may not decide facts anew, reweigh the evidence,
or substitute [its] judgment for that of the Commissioner.” Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005). Thus, even if the court were to disagree with the ALJ about the
significance of certain facts, the court has no power to reverse that finding as long as substantial
evidence in the record supports it.
The court must “scrutinize the record in its entirety to determine the reasonableness of the
[Commissioner]'s factual findings.” Walker, 826 F.2d at 999. A reviewing court must not only
look to those parts of the record that support the decision of the ALJ, but also must view the
record in its entirety and take account of evidence that detracts from the evidence relied on by the
ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).
IV. LEGAL STANDARD
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the
person is unable to “engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12 months . . . .” 42
U.S.C. § 423(d)(1)(A). To make this determination the Commissioner employs a five-step,
sequential evaluation process:
3
Case 6:14-cv-01556-KOB Document 13 Filed 02/16/16 Page 3 of 22
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the
economy?
An affirmative answer to any of the above questions leads either to
the next question, or, on steps three and five, to a finding of
disability. A negative answer to any question, other than step three,
leads to a determination of “not disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986)1; 20 C.F.R. §§ 404.1520, 416.920.
In evaluating pain and other subjective complaints, the Commissioner must consider
whether the claimant demonstrated an underlying medical condition, and either (1) objective
medical evidence that confirms the severity of the alleged pain arising from that condition or (2)
that the objectively determined medical condition is of such a severity that it can reasonably be
expected to give rise to the alleged pain. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991).
The ALJ may consider the claimant’s daily activities in evaluating and discrediting complaints of
disabling pain. Harwell v. Heckler, 735 F.2d 1292, 1293 (11th Cir. 1984).
If the ALJ decides to discredit the claimant’s testimony as to her pain, he must articulate
explicit and adequate reasons for that decision; failure to articulate reasons for discrediting the
claimant’s testimony requires that the court accept the claimant’s testimony as true. Foote v.
Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995). A reviewing court will not disturb a clearly
articulated credibility finding supported by substantial evidence in the record. Id. at 1562.
1McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) was a supplemental security income case
(SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are
appropriately cited as authority in Title XVI cases. See, e.g., Ware v. Schweiker, 651 F.2d 408 (5th Cir.
1981) (Unit A).
4
Case 6:14-cv-01556-KOB Document 13 Filed 02/16/16 Page 4 of 22
Under step two of the sequential process, the ALJ must determine whether a claimant has
a “severe” impairment or combination of impairments that causes more than a minimal limitation
on a claimant’s ability to function. Davis v. Shalala, 985 F.2d 528, 532 (11th Cir. 1993). When a
claimant has alleged several impairments, the ALJ has a duty to consider the impairments in
combination and to determine whether the combined impairments render the claimant disabled.
Jones v. Dep’t of Health & Human Servs., 941 F.2d 1529, 1533 (11th Cir. 1991). The claimant
bears the burden at the second step of the sequential evaluation of proving that she has a severe
impairment or combination of impairments. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.
1999). Under Eleventh Circuit analysis “an impairment or combination of impairments is not
severe if it does not significantly limit [the claimant’s] physical or mental ability to do basic work
activities.” Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997).
In addition, the Eleventh Circuit has stated that “‘the ALJ could not have committed any
error at step two because he found that [the claimant] had a severe impairment or combination of
impairments and moved on to the next step in the evaluation, which is all that is required at step
two.’” Farrington v. Astrue, No. 2:09-CV-94-J-TEM, 2010 WL 1252684, *4 (M.D. Fla. March
29, 210) (quoting Council v. Barnhart, No. 04-13128, 127 F. App’x 473 (Table), at *4 (11th Cir.
Dec. 28, 2004)); see Perry v. Astrue, 280 F. App’x 887, 894 (11th Cir. 2008) (ALJ’s failure to
not specifically identify severe impairments at step two “did not deprive [the appellate court] of
the ability to evaluate the ALJ’s legal reasoning based on the record”); see also Maziarz v. Sec’y
of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987) (noting that a failure to find a
particular impairment severe was not reversible error because the ALJ found other severe
impairments).
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The ALJ must complete an RFC assessment of each claimant. Social Security Ruling
96–8p regarding RFC assessment provides:
The RFC assessment must first identify the individual's functional
limitations or restrictions and assess his or her work-related
abilities on a function-by-function basis, including the functions in
paragraphs (b), (c), and (d) of 20 CFR 404.1545 and 416.945. Only
after that may RFC be expressed in terms of the exertional levels of
work, sedentary, light, medium, heavy, and very heavy.
SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996). The ALJ must first assess the claimant's
functional limitations and restrictions and then express his functional limitations in terms of
exertional levels. See Castel v. Comm'r of Soc. Sec., 355 F. App'x 260, 263 (11th Cir.2009);
Freeman v. Barnhart, 220 F. App'x 957, 959–60 (11th Cir.2007); see also Bailey v. Astrue,
5:11–CV–3583–LSC, 2013 WL 531075 (N.D. Ala. Feb. 11, 2013).
The ALJ must consider all of the relevant evidence in assessing the claimant’s functional
limitations, including
medical history, medical signs and laboratory findings, the effects of
treatment, including limitations or restrictions imposed by the
mechanics of treatment (e.g., frequency of treatment, duration,
disruption to routine, side effects of medication), reports of daily
activities, lay evidence, recorded observations, medical source
statements, effects of symptoms, including pain, that are
reasonably attributed to a medically determinable impairment,
evidence from attempts to work, need for a structured living
environment, and work evaluations, if available.
SSR 96–8p at *4–*5.
V. FACTS
The claimant was forty-four years old with two years of college when the ALJ rendered
her decision. (R. 23, 202, 233). The claimant reported that she was disabled because of arthritis
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in both knees, spurs in the neck, and back problems. (R. 228). The claimant had past relevant
work as a certified nurse’s assistant, receptionist, laborer, and salesperson. (R. 229). The claimant
alleged she was disabled beginning January 19, 2009. (R. 202, 205, 228).
Physical Impairments
The claimant sought medical treatment at Jasper Family Practice Center from March 1,
2005 to April 30, 2010. On March 30, 2006, the claimant began to complain of pain in her right
knee caused by a baker’s cyst. (R. 306).
On August 24, 2007, she complained of upper and lower back pain to CRNP Dee Kizziah
at the Jasper Family Practice Center. The claimant also reported to Ms. Kizziah that her knee
pain was worse after standing for prolonged periods and after lying down. X-rays revealed
significant osteoarthritis, as well as bone spurs. Ms. Kizziah described the claimant as morbidly
obese and encouraged the claimant to lose weight to protect from further degeneration. Ms.
Kizziah also prescribed the claimant Ultram for pain; Naprosyn and Prevacid to protect her
gastric lining; Lortab to take sparingly; Topamax for migraine headaches; and Avapro for
hypertension. (R. 316-17).
During a visit to Dr. Derrick Bowling on November 14, 2007 at the Jasper Family
Practice Center, the claimant reported being upset about being denied disability and requested a
letter stating that she is unable to work. Dr. Bowling agreed and wrote a letter stating that she
was unable to work until she was cleared by orthopedics. (R. 322-23).
On February 11, 2008, at the SSA’s request, the claimant presented for a medical
disability determination examination with Dr. Alexandra Leigh. The claimant told Dr. Leigh that
her knee pain normally rates a three out of ten on a ten-point scale, but can go as high as eight out
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of ten. She also complained of neck pain that is normally two out of ten, but can sometimes rate
as much as six out of ten. At the time, the claimant’s activities of daily living included assisting a
friend who had recently had surgery, cooking, and doing light housework. (R. 368-73).
Dr. Leigh also noted that the claimant had a slightly antalgic walk; favored her left side;
could not toe walk; could walk; could squat and bend over; had normal range of motion except
for some decrease in her cervical and dorsolumbar spine; had some pain in her knees with
crepitus. She also had some tenderness to palpation along C3 and C6. (Id.).
Dr. Leigh diagnosed the claimant with likely osteoarthritis in bilateral knees and likely
early degenerative disease in her neck. Dr. Leigh opined that the claimant could stand or walk for
four hours in an eight-hour day with breaks every hour; could sit for eight hours with breaks
every one to two hours; could frequently lift and carry ten pounds; could occasionally lift and
carry twenty pounds; should not bend, climb, kneel, balance, or crawl; and should only
minimally stoop, crouch, and pull. (Id.).
During her visit to Ms. Kizziah at the Jasper Family Practice Center on March 18, 2008,
the claimant reported that she underwent surgery approximately two weeks prior for a severely
dislocated knee cap, as well as arthritis under her knees. The claimant also reported to Ms.
Kizziah at a later visit on April 17, 2008, that the doctor performed surgery on her right knee first
and planned to perform surgery on the left knee when the right knee healed. By May 16, 2008,
her knee pain was much improved, and the claimant told Dr. Kizziah that she planned to have
her left knee surgery soon. (R. 328-32).
On June 16, 2008, the claimant continued to complain of neck pain, but when Ms.
Kizziah referred her to Dr. Carter Harsh for an evaluation, she never went. (R. 334-35).
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On August 8, 2008, the claimant continued to complain of neck pain, although Ms.
Kizziah assessed that she had good range of motion. The claimant admitted to Ms. Kizziah that
she had been under a great deal of stress, and Ms. Kizziah suggested that her pain was most
likely stress related. On November 24, 2008, the claimant continued to complain of knee pain, so
Ms. Kizziah told her to take Lortab four times per day. (R. 338-39, 348-49).
On December 19, 2008, Ms. Kizziah again counseled the claimant regarding weight loss.
The claimant explained that she planned on returning to work in January 2009, and that she
hoped her weight loss would improve at that time. (R. 350-51).
On January 15, 2009, the claimant reported to Ms. Kizziah that she was doing well, but
that the cold weather caused some more pain, as expected. During another visit to Ms. Kizziah
on February 19, 2009, the claimant complained of weight gain, but she admitted that she had
been overeating and that she was going to start exercising. (R. 352-55).
On April 15, 2009, the claimant visited Dr. Muhammad Ali at Walker Rural Health
Services, complaining of neck pain, paraesthesia, numbness, lower back pain, and headaches.
The claimant rated her neck pain an eight out of ten and her back pain a six out of ten. Dr. Ali ran
a few tests and ordered an MRI of the claimant’s neck and LS area. (R. 423-25).
On June 18, 2009, the claimant reported to Ms. Mizziah at Jasper Family Practice Center
that she was doing well under pain management with Dr. Ali. (R. 378-79).
Thereafter on June 26, 2009, Dr. Ali diagnosed the claimant with bilateral sensory
neuropathy, which caused paraesthesia, numbness, degeneration of lumbar or lumbosacral
intervertebral disc, cervicobrachial syndrome, and headaches. (R. 420-22).
The claimant returned to Ms. Kizziah on November 25, 2009, complaining again about
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severe back pain; but the claimant felt like the weight of her breasts caused a great majority of
her pain. She was interested in a breast reduction, but Ms. Mizziah explained that she would have
to lose weight first. The claimant said that she was willing to go through a program and to do
what she had to do to get her weight off and to make her back feel better. At that time, the
claimant had almost constant neck pain and muscle tightness between her shoulder blades and
down to her lower back related to her breasts. (R. 376-77).
A few month later on February 9, 2010, Ms. Kizziah noted that the claimant gained
twelve pounds; admitted to stress eating; and weighed 319 pounds. On April 30, 2010, the
claimant reported to Ms. Kizziah that, overall, she was doing very well; that her current pain
medications were working well; and that her blood pressure was stable. She reported taking care
of her grandson, which she claimed had a relaxing effect on her. (R. 393-99). The claimant
sought no medical treatment after this visit.
On November 4, 2010, the claimant presented for a psychiatric evaluation with Dr. Omar
Mohabbat at West Alabama Psychiatric Associates at the SSA’s request. The claimant reported
poor relationships with her parents and with the father of her two children. She admitted that her
daughter was in jail for selling drugs, which had taken a toll on the claimant. The claimant
reported that she does not do anything socially; that she has low energy; and that she cries a lot.
The claimant reported that pain and not being able to do things on a regular basis because of the
pain have been enormous stressors. (R. 402-08).
Dr. Mohabbat noted that the claimant could recall names after a delay; name five major
cities; do serial 3s and 7s; and name five presidents in a row backwards. Dr. Mohabbat diagnosed
the claimant with major depression, which is chronic and recurrent, and with a pain disorder. He
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also completed a medical source statement in which he noted mild problems, except for a
moderate rating in carrying out complex instructions, interacting appropriately with supervisors,
and responding appropriately to usual work situations and to changes in a routine work setting.
(Id.).
A few years later, on January 22, 2013, the claimant presented for a consultative
examination with Dr. Bruce Romeo at Alabama Center for Occupational Medicine & Prevention
at the SSA’s request. The claimant reported that she has pain in her head, neck, back, and legs, as
well as a lot of swelling in her legs. The claimant reported that she was independent with her
activities of daily living. She stated that she last worked in 2009 as a sitter but lost her job
because the patient died. At the time of the consultation, the claimant weighed 313 pounds. (R.
429-41).
Upon examination, Dr. Romeo noted that the claimant’s joint revealed no deformity or
tenderness; her gait was normal; she could stoop, kneel, crouch, tandem walk, and walk on her
heels and toes; she had negative straight leg raises; and she had five out of five grip strength.
Dr. Romeo diagnosed the claimant with bilateral knee pain, neck pain with underlying mild
cervical vertebral spondylosis, and morbid obesity. Overall, Dr. Romeo found that the claimant
had normal range of motion except for some small limitation in her knees. (Id.)
Dr. Romeo completed a medical source statement indicating that the claimant could
occasionally lift up to fifty pounds; could continuously lift up to ten pounds; could sit, stand, or
walk for a total of eight hours each in an eight-hour workday; had no limitation with use of hands
or feet; and had no postural or environmental limitations. (Id.).
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The ALJ Hearing
After the Commissioner denied the claimant’s request for disability insurance benefits
and supplemental security income, the claimant requested and received a hearing before an ALJ
on December 3, 2012. At the hearing, the claimant testified that she has not worked anywhere
since January 19, 2009. When questioned why she could no longer work a full time job, the
claimant testified that she suffers from severe headaches, hypertension, and arthritis. (R. 30, 32-
33).
The claimant further testified that she experiences constant pain in her neck, back, and
knees. The claimant stated that standing makes her pain worse, and that she takes Tylenol and
Excedrin for her pain. On a scale from one to ten with ten being the worst pain, the claimant
testified that her pain was a seven. (R. 33-34).
The claimant then testified that she props her legs as high as they can go for fifteen
minutes at one time for a total of six hours during the day. In addition, the claimant testified that
she can stand for three minutes or less before she has to sit down because of the pain in her back
and legs; she can walk for twelve feet before she experiences fatigue because of shortness of
breath and pain in her knees; she can lift about five pounds; she experiences difficulties using her
hands because of pain and swelling; and she has difficulties grasping, lifting, and opening jars.
(R. 34-36).
The claimant testified that she has migraine headaches on and off for about two weeks out
of a month. The claimant also testified that her headaches can last anywhere from a couple of
days to a week. The claimant further testified that, during a headache, she sits down, turns off the
lights, and “tries to be in a flat place.” The claimant stated that she suffers from depression with
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symptoms including crying spells daily; loss of energy; nightmares; and difficulties
concentrating, sleeping, completing a task, and being around other people. (R. 37- 38).
Furthermore, the claimant testified that she needs assistance from her daughter to bathe,
open jars, and complete household chores; that her daughter stays with her all day every day
except for an hour during the day; that she uses a microwave by herself; and that she has no
medical insurance. (R. 36-37, 39).
A vocational expert, Dr. David W. Head, testified concerning the type and availability of
jobs that the claimant could perform. Dr. Head stated that Ms. Hamilton’s past work consisted of
a certified nurse assistant (medium, semiskilled, SVP4); front desk clerk (light, semiskilled,
SVP4); and retail sales clerk (light, semiskilled, SVP3). (R.39-41).
During the administrative hearing, the ALJ proposed a hypothetical scenario to Dr. Head
that supposed an individual with the following limitations: has sedentary level of exertion; must
be in a temperature controlled environment without exposure to hazards; can understand,
remember, and carry out simple instructions; must have non-confrontational supervision; and
must have infrequent and gradually introduced changes in the workplace. Dr. Head testified that
the hypothetical individual would be able to perform the jobs of surveillance system monitor
(sedentary, unskilled, SVP2), with 1,300 jobs in Alabama and 16,000 nationally; bench and table
worker (sedentary, unskilled, SVP2), with 1,750 jobs in Alabama and 85,000 nationally; and
telephone order salesperson (sedentary, unskilled, SVP2), with 1,100 jobs in Alabama and
65,000 nationally. (R. 39-42).
The ALJ proposed another hypothetical scenario to Dr. Head that supposed an individual
with the following limitations: can stand and/or walk for four hours in an eight-hour day with
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breaks every hour; can sit for eight hours in an eight-hour day with breaks every one to two
hours; can lift and/or carry frequently ten pounds, and occasionally twenty pounds; cannot bend,
climb, kneel, balance, or crawl; requires minimal stooping, crouching; pulling should be within
her abilities; must have no visual, communicative, temperature, noise, heights, or driving. Dr.
Head testified that such an individual could perform the above jobs as long as the individual did
not require more than three other breaks a day for more than five to ten minutes. (R. 42-43, 373).
The ALJ proposed to Dr. Head the following mild limitations: understand and remember
simple instructions; carry out simple instructions; make judgments on simple work-related
decisions; understand and remember complex instructions; make judgments on complex workrelated decisions; interact appropriately with the public; and interact appropriately with coworkers. The ALJ also proposed the following moderate limitations: carry out complex
instructions; interact appropriately with supervisor(s); and respond appropriately to usual work
situations and to changes in a routine work setting. When asked whether these additional mild
and moderate limitations would prevent the above hypothetical individual from performing the
above jobs, Dr. Head testified that such an individual could perform the above jobs. (R. 43).
Lastly, when questioned whether a hypothetical individual who “needs to elevate their
legs and feet for most of the day, throughout the day, for a total of about six hours” would be able
to perform any job, Dr. Head testified that such a hypothetical individual would be unable to
perform any job. (R. 44).
The ALJ Decision
On April 8, 2013, the ALJ issued a decision finding that the claimant was not disabled
under the Social Security Act. First, the ALJ found that the claimant met the insured status
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requirements of the Social Security Act through December 31, 2012 and had not engaged in
substantial gainful activity since the alleged onset date of January 19, 2009. (R. 10, 15).
Next, the ALJ found that the claimant had the severe impairments of osteoarthritis,
lumbar degenerative disc disease, morbid obesity, bilateral sensory neuropathy, major depression,
and pain disorder. However, the ALJ did not find the claimant’s cervical degenerative disc
disease a severe impairment. (R. 15).
The ALJ next found that the claimant did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. (R. 16-17).
The ALJ found that the evidence only supported a finding that the claimant had mild
restrictions in activities of daily living; moderate difficulties in social functioning; moderate
limitations in concentration, persistence or pace; and no episodes of decompensation that had
been of extended duration. Therefore, the ALJ concluded that the claimant’s mental impairment
did not cause at least two “marked” limitations or one “marked” limitation and “repeated”
episodes of decompensation, each of extended duration. The ALJ determined that based on the
claimant’s medical history, her mental impairment did not satisfy the “paragraph B” criteria.
(Id.).
The ALJ also found that the evidence failed to establish the presence of the “paragraph
C” criteria, because the claimant did not have a medically documented history of a chronic
affective disorder of at least two years’ duration that had caused more than minimal limitation of
ability to do basic work activities. (R. 17).
Next, the ALJ determined that the claimant had the residual functional capacity to
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perform sedentary work as defined in 20 C.F.R. 404.1567(a) and 416.967(a), with the following
limitations: must have a temperature controlled environment without exposure to hazards; can
understand, remember, and carry out simple instructions; must have non-confrontational
supervision; and limited to infrequent and gradually introduced changes in the workplace. (Id.).
In making this finding, the ALJ considered the claimant’s symptoms and the extent to
which these symptoms were reasonably consistent with the objective medical evidence and other
evidence. The ALJ found that the claimant could work at a reduced range of the sedentary
exertional level. (Id.).
The ALJ also evaluated the claimant’s obesity and accompanying impairments in
accordance with Social Security Ruling 02-1p, which provides that the ALJ must assess the
effect that obesity has on the claimant’s ability to perform routine movement and necessary
physical activity within the work environment. The ALJ found no evidence that the claimant’s
obesity prevented her from performing work at the sedentary level of exertion. (R. 20).
The ALJ found that Dr. Mohabbat’s opinions and limitations regarding supervision and
changes in the workplace were reasonable in light of the claimant’s allegations and examination,
and gave them great weight. (R. 20-21).
The ALJ gave no weight to Dr. Romeo’s opinions, considering that Dr. Romeo ignored
the impact that the claimant’s obesity and subjective complaints would have on the claimant’s
ability to work. The ALJ gave some weight to the medical source statement completed by Dr.
Leigh, because the ALJ found that the opinion was created well before the claimant’s alleged
onset date of disability and well before the claimant’s knee surgeries, which according to the
claimant, alleviated some of her pain. (R. 21).
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Finally, the ALJ found that the claimant was unable to perform any past relevant work.
Considering the claimant’s age, education, work experience, and residual functional capacity, the
ALJ found that jobs existed in significant numbers in the national economy that the claimant
could perform, such as surveillance system monitor, bench and table worker, and telephone order
sales. Therefore, the ALJ concluded that the claimant was not disabled as defined in the Social
Security Act. (R. 22-23).
VI. DISCUSSION
The claimant argues that the ALJ failed to properly apply the pain standards, that the ALJ
failed to follow the “slight abnormality” standard in finding that the claimant’s cervical
degenerative disc disease is non-severe, and that the ALJ’s RFC findings failed to comply with
SSR 96-8p in that she failed to include the required “function-by-function” assessment. To the
contrary, this court finds that the ALJ applied the appropriate legal standards to her evaluation of
the claimant’s subjective complaints and the opinions of her physicians, and that substantial
evidence supports the ALJ’s decision.
Issue 1: The ALJ’s Application of the Pain Standard
The claimant argues that the ALJ did not properly apply the Eleventh Circuit pain
standard. More precisely, the claimant argues that her underlying medical conditions could
reasonably be expected to give rise to the claimed pain and that she, therefore, meets the second
prong of the pain standard. This court finds that the ALJ properly applied the pain standard and
that substantial evidence supports her decision.
An ALJ evaluating pain and other subjective complaints must first consider whether the
claimant demonstrated an underlying medical condition. Holt v. Sullivan, 921 F.2d 1221, 1223
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(11th Cir. 1991); see also Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002); 20 C.F.R. §
404.1529. If the claimant demonstrated an underlying medical condition, the ALJ must then
examine whether any objective medical evidence confirms the severity of the alleged pain, or
“that the objectively determined medical evidence is of such a severity that it can be reasonably
expected to give rise to the alleged pain.” Holt, 921 F.2d at 1223. Subjective testimony can
satisfy the pain standard if it is supported by medical evidence. Foote v. Chater, 67 F.3d 1553,
1561 (11th Cir. 1995). In applying the pain standard, if the ALJ decides not to credit a
claimant’s subjective testimony of pain, she must discredit it explicitly and articulate his reasons
for doing so. Brown, 921 F.2d at 1236.
In this case, the ALJ noted that the claimant “has severe impairments” but found that the
evidence, including statements by the claimant, did not show that she was unable to work
because of her impairments. The ALJ concluded that the claimant’s records did not include
indications of severe, disabling pain or impairments that could likely cause that degree of pain.
(R. 20).
In discrediting the claimant’s subjective complaints, the ALJ articulated specific grounds
for doing so. The ALJ noted that, at the medical disability determination examination with Dr.
Leigh, the claimant reported that her knee pain is normally a three out of ten and her neck pain is
normally a two out of ten. However, at the hearing, the claimant testified that her pain averages
seven out of ten. (R. 20, 34, 369-70).
The ALJ also noted several inconsistencies in the claimant’s statements. First, she
claimed that she sought no medical treatment because of a lack of insurance, when she had
previously obtained treatment with no insurance. The ALJ also noted that, although the claimant
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discussed the need to reduce her weight to relieve her back pain and indicated a willingness to do
so after discussing plans with her doctor in November 2009, three months later the claimant had
gained fifteen pounds. Finally, the ALJ noted that, while the claimant testified that she was only
capable of lifting five pounds, she also reported that since her alleged onset date of disability, she
was taking care of her grandson and wanted to return to work after January 2009. (R. 20, 38-39,
350, 316, 376, 395, 398).
Based on the explicit findings of the ALJ, this court concludes that she properly applied
the Eleventh Circuit’s pain standard and that substantial evidence supports her decision.
Issue 2: The ALJ’s Step Two Determination
The claimant next argues that the ALJ erred in not finding her cervical degenerative disc
disease to be a severe impairment at step two of the sequential evaluation. Specifically, the
claimant argues that her cervical degenerative disc disease created more than a slight
abnormality.
The Eleventh Circuit has stated that the ALJ could not have committed any error at step
two if she found that the claimant had a severe impairment or combination of impairments and
moved on to the next step in the evaluation, which is all that is required at step two. Council v.
Barnhart, No.04-13128, at *4 (11th Cir. Dec. 28, 2004). In other words, the ALJ’s failure to find
a particular impairment severe is not a reversible error if the ALJ found other severe
impairments. See Maziarz. v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir.
1987).
In this case, the ALJ found that the claimant did not provide any medical evidence that
demonstrates that the claimant had any abnormality as a result of her cervical degenerative disc
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disease. Even though the claimant argues that she received treatment and had symptoms as a
result of cervical degenerative disc disease, the ALJ found that the claimant failed to identify any
medical source who reported a limitation in the claimant’s functional ability as a result of her
cervical degenerative disc disease.
The ALJ based her findings on the following evidence: in February 2008, the claimant
reported to Dr. Leigh that her neck pain was at best one to two out of ten and reported no
associated symptoms of her neck pain; Dr. Leigh noted that the claimant had only mildly
decreased range of motion and was tender in her neck; in August 2008, the claimant complained
of neck pain but had a good range of motion; and the January 2013 consultative examination by
Dr. Romeo noted normal range of motion in all categories for the cervical spine. (R. 338, 370,
373, 434). Based on the above evidence, the ALJ found that the claimant did not identify any
limitations supported by the record that indicated severe cervical degenerative disc disease. This
court thus finds that the ALJ correctly concluded that the claimant’s cervical degenerative disc
disease was not severe.
Nonetheless, the ALJ found that the claimant had severe impairments of osteoarthritis,
lumbar degenerative disc disease, morbid obesity, bilateral sensory neuropathy, major depression,
and pain disorder at step two and proceeded with the sequential evaluation process. Despite the
ALJ’s finding that the claimant’s cervical degenerative disc disease was non-severe, the ALJ
considered that impairment during the RFC assessment. (R. 15).
Therefore, this court finds that the ALJ’s step two determination was sufficient, even
though the ALJ did not find the claimant’s cervical degenerative disc disease to be severe
impairment and that she considered it during the RFC assessment. See Council v. Barnhart,
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No.04-13128, at *4.
Issue 3: The ALJ’s Assessment of the Claimant’s RFC
Lastly, the claimant argues that the ALJ’s RFC determination is insufficient because it did
not include an assessment of her ability to sit, walk, lift, carry, stoop, bend, squat, balance, or
perform fine or gross manipulation on a regular and continuing basis. However, to the contrary,
the ALJ did discuss the claimant’s specific functional limitations prior to assessing her RFC in
terms of exertional level.
According to Social Security Ruling 96-8p, the ALJ must first assess the claimant’s
functional limitations and restrictions and then express her functional limitations in terms of
exertional levels. However, the ALJ's decision does not have to reference every specific piece of
evidence that the ALJ evaluated, as long as the decision shows that she considered the claimant's
medical condition as a whole. Castel v. Comm’r of Soc. Sec., 355 F. App’x 260, 263 (11th Cir.
2009).
After thoroughly reviewing the relevant evidence in the record, as discussed above, the
ALJ articulated that the claimant was capable of performing sedentary work as defined in 20
C.F.R. §§ 404.1567(a) and 416.927(a) in a temperature controlled environment without exposure
to hazards. The ALJ specifically noted that she gave no weight to Dr. Romeo’s finding that the
claimant could perform medium-exertion sitting, standing, walking, and lifting, because Dr.
Romeo failed to consider the claimant’s subjective pain complaints or obesity. In addition, the
ALJ restricted the claimant to a temperature controlled environment with no hazards because of
cold exacerbating her pain and her use of narcotic pain medications. (R. 10-27). Therefore, the
ALJ fulfilled the requirement because she assessed the claimant’s functional ability and
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incorporated the limitations that were supported by the medical evidence. The ALJ’s RFC
assessment reflects a thorough consideration of all relevant evidence in the record.
This court concludes that the ALJ properly performed a function-by-function assessment
prior to expressing the claimant’s RFC and that substantial evidence supports her decision.
Therefore, combined with the other issues discussed above, this court affirms the decision of the
Commissioner.
VII. CONCLUSION
For the reasons stated above, this court concludes that the Commissioner applied the
correct legal standards and that substantial evidence supports the Commissioner’s decision.
Accordingly, this court AFFIRMS the decision of the Commissioner. The court will enter a
separate Order to that effect simultaneously.
DONE and ORDERED this 16th day of February, 2016.
____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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Case 6:14-cv-01556-KOB Document 13 Filed 02/16/16 Page 22 of 22 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_23-cv-02984/USCOURTS-caed-2_23-cv-02984-0/pdf.json | 350 | Motor Vehicle Personal Injury | 28:1391 Personal Injury | 1
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STIPULATION AND PROPOSED ORDER FOR
RULE 35 PHYSICAL EXAMINATION
CHRISTOPHER W. WOOD, ESQ. / SBN: 193955
KELSEY J. FISCHER, ESQ. / SBN: 292262
DREYER BABICH BUCCOLA WOOD CAMPORA, LLP
20 Bicentennial Circle
Sacramento, CA 95826
Telephone: (916) 379-3500
Facsimile: (916) 379-3599
Attorneys for Plaintiff
MICHELE BECKWITH
Acting United States Attorney
JOSEPH B. FRUEH
Assistant United States Attorney
501 I Street, Suite 10-100
Sacramento, CA 95814
E-mail:[email protected]
Telephone: (916) 554-2702
Facsimile: (916) 554-2900
Attorneys for Defendant
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
STEPHANIE HAMMOND,
PLAINTIFF,
V.
UNITED STATES OF AMERICA,
Defendant.
No. 2:23-cv-02984-JAM-JDP
STIPULATION AND PROPOSED ORDER
FOR RULE 35 PHYSICAL EXAMINATION
IT IS HEREBY STIPULATED, by and between the parties through their undersigned counsel,
as follows:
1. Plaintiff Stephanie Hammond will undergo a physical examination conducted by
Dr. Michael Hembd, M.D., at 2 Scripps Drive, Suite 310, Sacramento, CA 95825. The examination will
occur on February 14, 2025, at 1:00 p.m. The examination will take approximately one hour to
complete.
Case 2:23-cv-02984-JAM-JDP Document 14 Filed 01/15/25 Page 1 of 2
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STIPULATION AND PROPOSED ORDER FOR
RULE 35 PHYSICAL EXAMINATION
2. Dr. Hembd will conduct a standard musculoskeletal examination to assess the injuries
that Plaintiff attributes to the accident that occurred on March 14, 2023, to include her head, jaw, neck,
and upper/middle/lower back. The examination will include a detailed medical history.
3. Plaintiff shall answer relevant and appropriate inquiries made by Dr. Hembd so that he
can medically evaluate the nature, extent, and cause of Plaintiff’s condition as well as her prognosis.
Dr. Hembd’s inquiries shall be reasonably calculated to elicit information about the nature, extent,
cause, and prognosis of Plaintiff’s injuries.
4. Plaintiff will not be required to perform movements or exercises that cause her pain.
Plaintiff shall inform Dr. Hembd and stop any movements or exercises that cause her pain.
5. Other than Dr. Hembd, Plaintiff, and Plaintiff’s mother, no other observers will be
permitted in the examination. No audiovisual recording of the examination will be permitted.
6. Dr. Hembd shall receive a copy of this executed Stipulation.
7. Defendant shall provide Plaintiff’s counsel with a report of the examination consistent
with Federal Rules of Civil Procedure 35(b) and 26(a)(2) and the Court’s Scheduling Order.
8. The cost of the examination shall be borne by the Defendant.
Dated: January 14, 2025 DREYER BABICH BUCCOLA WOOD CAMPORA, LLP
By: /s/ Kelsey J. Fischer (authorized 1/14/2025)
KELSEY J. FISCHER
Attorneys for Plaintiff
MICHELE BECKWITH
Acting United States Attorney
Dated: January 14, 2025 By: /s/ Joseph B. Frueh
JOSEPH B. FRUEH
Assistant United States Attorney
Attorneys for Defendant
IT IS SO ORDERED
Dated: January 15, 2025
HON. JEREMY D. PETERSON
United States Magistrate Judge
Case 2:23-cv-02984-JAM-JDP Document 14 Filed 01/15/25 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca11-19-11390/USCOURTS-ca11-19-11390-0/pdf.json | 320 | Assault, Libel, and Slander | null | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11390
Non-Argument Calendar
________________________
D.C. Docket No. 1:19-cv-00543-ELR
EARNEST MARSALIS, JR.,
Plaintiff - Appellant,
versus
STM READER, LLC,
STM MEDIA, LLC, and
SUN-TIMES MEDIA GROUP, LLC,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 23, 2020)
Before MARTIN, HULL, and MARCUS, Circuit Judges.
PER CURIAM:
USCA11 Case: 19-11390 Date Filed: 03/23/2020 Page: 1 of 9
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On August 30, 2001, the Chicago Reader, a weekly newspaper in Chicago,
Illinois, reported on a police misconduct lawsuit against then-officer Earnest
Marsalis and the City of Chicago. Nearly seventeen years later, Marsalis,
proceeding pro se, sued the Reader and the Chicago Sun-Times in the Northern
District of Georgia alleging a variety of state torts. In response to a motion to
dismiss, the district court dismissed the case for lack of personal jurisdiction.
Marsalis, still proceeding pro se, then filed an amended lawsuit, alleging some of
the same tort claims under state law as well as new constitutional torts and a claim
for racial discrimination.1
The magistrate judge announced Marsalis’s new
complaint2 would be subjected to a frivolity determination under 28 U.S.C.
§ 1915(e)(2)(B) and, on April 9, 2019, the district court sua sponte dismissed the
complaint. The district court based its dismissal on Marsalis’s failure to state a
claim under his federal causes of action, his failure to rectify the previously
identified defects in personal jurisdiction, and the court’s determination that
Marsalis’s complaint was an impermissible shotgun pleading. This is Marsalis’s
appeal.
1 We refer to the first case, No. 18-CV-1555 (N.D. Ga.), as “Marsalis I,” and the second
case, No. 19-CV-543 (N.D. Ga.), as “Marsalis II”. We also note that at the time of dismissal in
Marsalis I, Marsalis was proceeding against the Reader and the Sun-Times; while, in Marsalis II,
the defendants are the Reader, the Sun-Times, and Sun-Times Media Group, LLC. Either way,
we refer to the defendants collectively as the “Chicago Newspapers.”
2 For ease, we refer to the complaint filed in Marsalis II as the “complaint.”
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Following careful review, we affirm the dismissal of Marsalis’s complaint
and remand with instructions that the district court amend its April 9, 2019 order to
state that its dismissal is without prejudice.
I.
District courts must dismiss an action brought in forma pauperis if the action
(i) “is frivolous or malicious” or (ii) “fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2)(B). Dismissal for frivolity is intended for
“indisputably meritless legal theor[ies]” and “those claims whose factual
contentions are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327, 109 S.
Ct. 1827, 1833 (1989). Sua sponte dismissal for failure to state a claim under
§ 1915(e)(2)(B), meanwhile, is interpreted conterminously with dismissal under
Federal Rule of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483,
1490 (11th Cir. 1997). We review a sua sponte frivolity dismissal for abuse of
discretion and review de novo a sua sponte dismissal for failure to state a claim.
Hughes v. Lott, 350 F.3d 1157, 1159–60 (11th Cir. 2003).
II.
A.
Regardless of whether federal jurisdiction is based on diversity between the
parties or the presence of a federal question, the plaintiff bears the burden of
establishing that the court’s exercise of jurisdiction over the defendant comports
USCA11 Case: 19-11390 Date Filed: 03/23/2020 Page: 3 of 9
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with the forum state’s long-arm statute. Sculptchair, Inc. v. Century Arts, Ltd., 94
F.3d 623, 626–27 (11th Cir. 1996). Under Georgia law, personal jurisdiction over
a nonresident may be established if the defendant (1) transacted business within the
state, giving rise to the plaintiff’s claim; (2) committed a tortious act within the
state; or (3) committed a tortious act outside the state but the defendant regularly
does business or derives substantial revenue from goods used or services rendered
in the state. O.C.G.A. § 9-10-91(1)–(3); Diamond Crystal Brands, Inc. v. Food
Movers Int’l, Inc., 593 F.3d 1249, 1258–60, 1264 (11th Cir. 2010). We interpret
and apply Georgia's long-arm statute “in the same way as would the Georgia
Supreme Court.” Diamond Crystal Brands, 693 F.3d at 1258.
B.
Marsalis asserts claims for “assault, intentional inflection of emotional
distress, misrepresentation, 5th Amend[ment] due process clause v[iol]ation,[]
invasion of privacy,” and racial discrimination. These torts were allegedly caused
by the Chicago Newspapers’ 2001 publication of the Article. Marsalis does not
assert that any of the Chicago Newspapers are Georgia residents. Instead, Marsalis
alleges that jurisdiction is proper because the Chicago Newspapers “used the
telephone, Internet, and Emails in order to perpetuate a Fraud, Misrepresentation
and other offenses.” The relevant question, then, is whether publication of the
USCA11 Case: 19-11390 Date Filed: 03/23/2020 Page: 4 of 9
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Article subjects the Chicago Newspapers to personal jurisdiction in Georgia under
any of the bases in the long-arm statute.
It does not. First, Marsalis cannot satisfy subsection (1) because his claims
do not arise out of any business transaction in Georgia. Jurisdiction exists on the
basis of transacting business in Georgia if “(1) the nonresident defendant has
purposefully done some act or consummated some transaction in this state, (2) if
the cause of action arises from or is connected with such act or transaction, and
(3) if the exercise of jurisdiction by the courts of this state does not offend
traditional fairness and substantial justice.” Amerireach.com, LLC v. Walker, 719
S.E.2d 489, 496 (Ga. 2011) (quotation marks omitted). Without reaching the
second and third aspects, we conclude that Marsalis has failed to satisfy this
inquiry. This Court has previously stated that the publication of a single news
article does not constitute the transaction of business under Georgia’s long-arm
statute. See Henriquez v. El Pais Q’Hubocali.com, 500 F. App’x 824, 828 (11th
Cir. 2012) (per curiam) (unpublished) (citing Aero Toy Store, LLC v. Grieves, 631
S.E.2d 734, 737 (Ga. Ct. App. 2006)). Because Marsalis has not alleged that the
Chicago Newspapers have committed any acts or omissions other than the online
publication of the Article, his claims cannot proceed under this prong of the longarm statute.
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Nor can Marsalis proceed under the second prong of the long-arm statute.
Under Georgia law, where a claim is based on a communication sent through the
internet or telephone, the conduct “occurs” at the physical place of transmission.
See LABMD, Inc. v. Tiversa, Inc., 509 F. App’x 842, 844 (11th Cir. 2013) (per
curiam) (unpublished); Huggins v. Boyd, 697 S.E.2d 253, 255 (Ga. Ct. App. 2010).
Marsalis does not allege that the Chicago Newspapers published the Article within
Georgia. Indeed, the Chicago Newspapers submitted an affidavit to the district
court stating that the Reader published the Article in Chicago, Illinois. As a result,
Marsalis’s claims cannot succeed under subsection (2) because he does not allege
the Chicago Newspapers committed any tort within Georgia.
Finally, Marsalis has not established jurisdiction under subsection (3)
because he does not allege that the Chicago Newspapers regularly conduct or
solicit business in Georgia, or that they have derived substantial revenue from
goods used or services rendered in Georgia. See Henriquez, 500 F. App’x at 828–
29. Much like with subsection (1), the mere publication of an online article is not
enough to satisfy this jurisdictional basis. See id. at 829 (holding that the third
prong of the long-arm statute is not satisfied based on “[t]he fact that a particular
website displays an advertisement that is viewable in Georgia or shows a company
that does business in Georgia” (citing Smith v. Air Ambulance Network, Inc., 427
S.E.2d 305, 305 (Ga. Ct. App. 1993)).
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Marsalis’s only response is to point to Evans v. Chicago Reader, No. 09-CV368 (CAP) (N.D. Ga. filed Feb. 11, 2009), which he claims shows that personal
jurisdiction in Georgia against the Reader has “long been established in previous
litigation.” Marsalis is mistaken. The Evans court never found that personal
jurisdiction against the Reader was proper in Georgia. In fact, the district court
never issued any merits decisions in that case: the action was dismissed with
prejudice on joint stipulation of the parties while a motion to dismiss was pending.
Stipulation for Dismissal with Prejudice, Evans, No. 09-CV-368 (CAP) (N.D. Ga.
Mar. 12, 2009) (ECF 9). Even accepting as true Marsalis’s allegation that Evans
was resolved through “a cash settlement made to the defendant,” that is irrelevant
because Marsalis’s claims have nothing to do with the facts at issue in Evans. Cf.
Meetings & Expositions, Inc. v. Tandy Corp., 490 F.2d 714, 717 (2d Cir. 1974)
(stating that a settlement agreement in the action at issue may constitute transaction
of business for long-arm statute); Lee v. Hunt, 483 F. Supp. 826, 832 (W.D. La.
1979) (“The negotiation and execution of a settlement agreement constitutes
transaction of business and, when that agreement is the subject of a lawsuit,
justifies resort to the long-arm statute.”), aff’d, 631 F.2d 1171 (5th Cir. 1980).
Evans does not establish that the Chicago Newspapers are subject to personal
USCA11 Case: 19-11390 Date Filed: 03/23/2020 Page: 7 of 9
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jurisdiction in Georgia. As a result, the district court did not err in dismissing the
complaint in Marsalis II for want of personal jurisdiction.3
III.
Although the district court dismissed the complaint in Marsalis II with
prejudice, we will remand with instructions that the district court amend its April 9,
2019 order to state that its dismissal is without prejudice. This is necessary for
several reasons.
First, a dismissal on jurisdictional grounds, as opposed to a merits dismissal,
cannot form the basis for a dismissal with prejudice. See Republic of Panama v.
BCCI Holdings (Lux.) S.A., 119 F.3d 935, 940 (11th Cir. 1997) (citing Madara v.
Hall, 916 F.2d 1510, 1514 n.1 (11th Cir. 1990)).
Second, while the district court’s dismissal order did reach the merits of the
claims in the complaint, this was error because “[a] defendant that is not subject to
the jurisdiction of the court cannot be bound by its rulings.” Id. In other words,
3 Although no party raised this issue, we note that district courts may not normally sua
sponte dismiss a complaint for lack of personal jurisdiction “without first giving the parties an
opportunity to present their views on the issue.” Lipofsky v. N.Y. State Workers Comp. Bd.,
861 F.2d 1257, 1258 (11th Cir. 1988). However, Lipofsky did not limit the district court here.
The Chicago Newspapers already objected to the complaint in Marsalis I on grounds of personal
jurisdiction. There is no reason to expect they would have waived this defense when faced with
an amended complaint with nearly identical jurisdictional allegations (and, by that same token,
defects). Furthermore, the Chicago Newspapers had the chance to litigate the issue of personal
jurisdiction in Marsalis II through this appeal. It is plain from their briefing—which urges
affirmance of the district court’s jurisdictional ruling—that they do not wish to waive this
defense. These facts lead us to conclude that Lipofsky did not prevent the district court from sua
sponte dismissing the complaint in Marsalis II on jurisdictional grounds.
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once the district court concluded that personal jurisdiction over the Chicago
Newspapers was improper in this forum, it should have ended its analysis rather
than reach the merits of Marsalis’s claims. See Madara, 916 F.2d at 1514. While
courts can “bypass the issue of personal jurisdiction if a decision on the merits
would favor the party challenging jurisdiction and the jurisdictional issue is
difficult,” Panama, 119 F.3d at 941, such a step would be improper in this case
given the relative ease of the jurisdictional issue. And given the relative ease of
the jurisdictional issue, we too need not, and do not, reach any merits issues.
IV.
For these reasons, we AFFIRM the district court’s dismissal of the
complaint in Marsalis II for lack of personal jurisdiction. We REMAND the case
to the district court for the limited purpose of amending its order to state that the
dismissal is without prejudice.
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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_16-cv-05887/USCOURTS-cand-3_16-cv-05887-4/pdf.json | 365 | Personal Injury - Product Liability | 28:1331 Fed. Question: Personal Injury | UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
IN RE: ROUNDUP PRODUCTS
LIABILITY LITIGATION
This document relates to:
Stevick v. Monsanto Co., 16-cv-2341
Giglio v. Monsanto Co., 16-cv-5658
I. Hernandez v. Monsanto Co., 16-cv-5750
Sanders v. Monsanto Co., 16-cv-5752
Domina v. Monsanto Co., 16-cv-5887
Russo v. Monsanto Co., 16-cv-6024
Perkins v. Monsanto Co., 16-cv-6025
Mendoza v. Monsanto Co., 16-cv-6046
Harris v. Monsanto Co., 17-cv-3199
Alvarez Calderon v. Monsanto Co., 19-cv-1630
Tanner v. Monsanto Co., 19-cv-4099
Pollard v. Monsanto Co., 19-cv-4100
Dickey v. Monsanto Co., 19-cv-4102
Janzen v. Monsanto Co., 19-cv-4103
MDL No. 2741
Case No. 16-md-02741-VC
AMENDED PRETRIAL ORDER NO.
201: ORDER RE MOTION TO
EXCLUDE TESTIMONY OF DR.
SAWYER
(WAVE 1 CASES)
Re: Dkt. Nos. 8010, 8572, 8573
The bulk of Monsanto’s motions to exclude testimony from Sawyer is moot, because the
plaintiffs have clarified that Sawyer does not intend to offer many of the opinions to which
Monsanto objects. For example, the plaintiffs clarify that Sawyer will not offer an opinion on
general causation, nor will he offer a differential diagnosis opinion as to any individual plaintiff.
The plaintiffs assert that Sawyer should nonetheless be permitted to opine that a
plaintiff’s “exposure to Roundup was sufficient to cause NHL.” Thus, this aspect of Monsanto’s
Case 3:16-cv-05887-VC Document 93 Filed 01/22/20 Page 1 of 2
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motions is not moot. Because Sawyer will not offer an opinion on general causation or
differential diagnosis, it follows that he may not opine that a plaintiff’s “exposure to Roundup
was sufficient to cause NHL.” On the other hand, to the extent Sawyer has offered an opinion on
a particular plaintiff’s level of exposure or rate of absorption, it would be permissible for that
plaintiff’s counsel to ask Sawyer to assume that a particular exposure or absorption level creates
an NHL risk based on other experts’ testimony, and then asked if the particular plaintiff
exceeded that exposure or absorption level.
IT IS SO ORDERED.
Dated: January 22, 2020
______________________________________
VINCE CHHABRIA
United States District Judge
Case 3:16-cv-05887-VC Document 93 Filed 01/22/20 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_07-cv-00457/USCOURTS-cand-3_07-cv-00457-0/pdf.json | 410 | Antitrust | 15:1 Antitrust Litigation | United States District Court
For the Northern District of California
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United States District Court
For the Northern District of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
IN RE: TFT-LCD (FLAT PANEL) ANTITRUST
LITIGATION
/
This Order Relates to:
ALL CASES
/
No. M 07-1827 SI
MDL. No. 1827
PRETRIAL ORDER #1 AND AGENDA
FOR JULY 10, 2007 STATUS
CONFERENCE
The Judicial Panel on Multidistrict Litigation (JPML) has transferred to this Court for
coordinated pretrial proceedings certain antitrust actions relating to an alleged conspiracy to fix the
prices for thin film transistor-liquid crystal display (TFT-LCD) panels, which are used in computer
monitors, flat panel television sets, and other electronic devices. As the number and complexity of these
actions warrant holding a single, coordinated initial status conference for all actions in In Re: TFT-LCD
(Flat Panel) Antitrust Litigation, MDL No. 1827, the Court ORDERS as follows:
1. APPLICABILITY OF ORDER: Prior to the initial conference and entry of a
comprehensive order governing all further proceedings in this case, the provisions of this Order shall
govern the practice and procedure in those actions that were transferred to this Court by the JPML. This
Order also applies to all related actions filed in all divisions of the Northern District of California and
all “tag-along actions” later filed in, removed to, or transferred to this Court.
2. CONSOLIDATION: The civil actions transferred to this Court or related to the actions
already pending before this Court are consolidated for pretrial purposes only. Any “tag-along actions”
Case 3:07-cv-00457-SI Document 10 Filed 07/09/07 Page 1 of 7
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For the Northern District of California
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later filed in, removed to, or transferred to this Court, or directly filed in the Northern District of
California, will automatically be consolidated with this action without the necessity of future motions
or orders. This consolidation does not constitute a determination that the actions should be consolidated
for trial, nor does it have the effect of making any entity a party to any action in which he, she or it has
not been named, served or added in accordance with the Federal Rules of Civil Procedure.
3. DATE OF INITIAL STATUS CONFERENCE AND AGENDA FOR CONFERENCE:
Matters relating to pretrial and discovery proceedings in these cases will be addressed at an initial status
conference to be held on Tuesday, July 10, 2007 at 10:00 a.m. before Judge Susan Illston in the
Ceremonial Courtroom, 19th Floor, United States Courthouse, 450 Golden Gate Avenue, San Francisco,
California. Counsel are expected to familiarize themselves with the Manual for Complex Litigation,
Fourth (“MCL 4th”) and be prepared at the conference to suggest procedures that will facilitate the
expeditious, economical and just resolution of this litigation. The agenda for the July 10, 2007
conference is included at paragraph 12, below.
4. INITIAL CONFERENCE APPEARANCES: Each party represented by counsel shall
appear at the initial status conference through the party’s attorney who will have primary responsibility
for the party’s interest in this litigation. Parties not represented by counsel may appear in person or
through an authorized and responsible agent. To minimize costs and facilitate a manageable conference,
parties with similar interests may agree, to the extent practicable, to have an attending attorney represent
the party’s interest at the conference. A party will not by designating an attorney to represent the party’s
interest at the conference be precluded from other representation during the litigation, nor will
attendance at the conference waive objections to jurisdiction, venue or service.
5. RESPONSE EXTENSION AND STAY: Defendants are granted an extension of time
for responding by motion or answer to the complaint(s) until a date to be set by this Court. Pending the
initial conference and further orders of this Court, all outstanding discovery proceedings are stayed, and
no further discovery shall be initiated. Moreover, all pending motions must be renoticed for resolution
Case 3:07-cv-00457-SI Document 10 Filed 07/09/07 Page 2 of 7
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For the Northern District of California
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on a motion day or days after the initial case management conference.
6. MASTER DOCKET FILE: The Clerk of the Court will maintain a master docket case
file under the style “In Re: TFT-LCD (Flat Panel) Antitrust Litigation,” No. M 07-1827 SI, and the
identification of “MDL No. 1827.” When a pleading is intended to apply to all actions, this shall be
indicated by the words: “This Document Relates to All Cases.” When a pleading is intended to apply
to fewer than all cases, this Court’s docket number of each individual case to which the document relates
shall appear immediately after the words “This Document Relates to.”
7. FILING: This case is subject to Electronic Case Filing (“ECF”), pursuant to General
Order 45, Section VI of which requires that all documents in such a case be filed electronically. General
Order 45 provides at Section IV(A) that “Each attorney of record is obligated to become an ECF User
and be assigned a user ID and password for access to the system upon designation of the action as being
subject to ECF.” If she or she has not already done so, counsel shall register forthwith as an ECF user
and be issued an ECF user ID and password. Forms and instructions can be found on the Court’s web
site at ecf.cand.uscourts.gov.
All documents shall be e-filed in the master file, No. M 07-1827 SI. Documents that pertain to
one or only some of the pending actions shall also be e-filed in the individual case(s) to which the
documents pertain.
8. DOCKETING NEW CASES: When an action that properly belongs as part of In Re:
TFT-LCD (Flat Panel) Antitrust Litigation is filed after the date of this Order in the Northern District
of California or transferred here from another court, the Clerk of this Court shall:
a. File a copy of this Order in the separate file for such action;
b. Make an appropriate entry on the master docket sheet;
c. Mail to the attorneys for the plaintiff in the newly filed or transferred case a copy of this
Order; and
d. Upon the first appearance of any new defendant, mail to the attorneys for the defendant
Case 3:07-cv-00457-SI Document 10 Filed 07/09/07 Page 3 of 7
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in such newly filed or transferred cases a copy of this Order.
9. APPEARANCES: Counsel who appeared in a transferor court prior to transfer need not
enter an additional appearance before this Court. Moreover, attorneys admitted to practice and in good
standing in any United States District Court are admitted pro hac vice in this litigation, and the
requirements of Northern District of California Local Rule 11-3 are waived. Association of local
counsel is not required.
10. PRESERVATION OF EVIDENCE: All parties and their counsel are reminded of their
duty to preserve evidence that may be relevant to this action. The duty extends to documents, data and
tangible things in the possession, custody and control of the parties to this action, and any employees,
agents, contractors, carriers, bailees, or other non-parties who possess materials reasonably anticipated
to be subject to discovery in this action. “Documents, data and tangible things” shall be interpreted
broadly to include writings, records, files, correspondence, reports, memoranda, calendars, diaries,
minutes, electronic messages, voice mail, e-mail, telephone message records or logs, computer and
network activity logs, hard drives, backup data, removable computer storage media such as tapes, discs
and cards, printouts, document image files, Web pages, databases, spreadsheets, software, books,
ledgers, journals, orders, invoices, bills, vouchers, checks statements, worksheets, summaries,
compilations, computations, charts, diagrams, graphic presentations, drawings, films, charts, digital or
chemical process photographs, video, phonographic, tape or digital recordings, or transcripts thereof,
drafts, jottings and notes, studies or drafts of studies or other similar such material. Information that
serves to identify, locate or link such material, such as file inventories, file folders, indices, and
metadata, is also included in this definition. Until the parties agree on a preservation plan or the Court
orders otherwise, each party shall take reasonable steps to preserve all documents, data and tangible
things containing information potentially relevant to the subject matter of this litigation. Counsel is
under an obligation to the Court to exercise all reasonable efforts to identify and notify parties and nonparties, including employees of corporate or institutional parties.
Case 3:07-cv-00457-SI Document 10 Filed 07/09/07 Page 4 of 7
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For the Northern District of California
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11. FILING OF DISCOVERY REQUESTS: In accordance with Rule 5(d) of the Federal
Rules of Civil Procedure, discovery requests and responses are not to be filed with the Clerk nor sent
to the Judge’s Chambers, except to the extent needed in connection with a motion.
12. AGENDA FOR JULY 10, 2007 STATUS CONFERENCE: The items listed in MCL
4th Sections 22.61, 22.62 and 22.63 will be addressed generally at the conference. In addition, the
Court intends to address the following specific items at the initial status conference:
a. Liaison Counsel: The Court intends to appoint Liaison Counsel, who will be charged
with administrative responsibilities arising from the pretrial coordination of these multiple actions,
including communication with the Court. The Court anticipates appointing at least one Liaison Counsel
for the direct purchaser plaintiffs, one for the indirect purchaser plaintiffs, one for the defendants and,
if ultimately necessary, one for governmental/parens patriae parties. Liaison Counsel may or may not
be among such interim co-lead counsel as are appointed hereafter, but the Liaison responsibilities shall
be primarily administrative in nature. Prior to the initial conference, counsel for the plaintiffs and
counsel for the defendants shall, to the extent they have not already done so, confer and seek consensus
on the selection of a candidate for the position of Liaison Counsel for each group mentioned above.
Liaison Counsel shall be required to maintain complete files with copies of all documents served upon
them and shall make such files available to parties within their liaison group upon request. Liaison
Counsel will also be authorized to receive orders and notices from the Judicial Panel on Multi District
Litigation pursuant to Rule 5.2(e) of the JPML’s Rules of Procedure or from the transferee court on
behalf of all parties within their liaison group and shall be responsible for the preparation and transmittal
of copies of such orders and notices to the parties in their liaison group. The expenses incurred in
performing the services of Liaison Counsel shall be shared equally by all members of the liaison group
in a manner agreeable to the parties or set by the Court failing such agreement. Appointment of Liaison
Counsel shall be subject to the approval of the Court.
b. Interim Lead Counsel: By separate order after the July 10, 2007 status conference, the
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Court will appoint Interim Lead Class Counsel for the direct purchaser plaintiffs and the indirect
purchaser plaintiffs. The Court anticipates appointing two Interim Co-Lead Counsel for the direct
purchaser group and two for the indirect purchaser group. Subject to Court approval, Interim Co-Lead
Counsel for each group will be asked to suggest a workable, efficient and economical organization
structure for their groups, taking into account the geographical and technical needs of the litigation.
Each lawyer seeking appointment as Lead Counsel shall file by July 9, 2007, a statement listing (1) all
of the TFT-LCD cases in which his/her law firm is counsel of record, (2) for each of those cases, the
name and address of each plaintiff as well as a brief description of the plaintiff’s business and general
volume of purchases of TFT-LCD products, and (3) whether the law firm represents both direct and
indirect purchasers.
c. Substantive groupings of cases: Counsel shall be prepared to discuss the different
substantive groups that these cases fall into (direct purchasers versus indirect purchasers, whether there
are any foreign purchaser plaintiffs, possible parens patriae actions, etc.), how many cases are in each
group, and what different state antitrust laws are involved. The Court is also interested in the status, to
the extent known, of any government investigations of the TFT-LCD industry, in the United States or
elsewhere.
d. Status of service of process: Counsel shall report on the status of service of process on
all defendants.
e. Bell Atlantic v. Twombly, 127 S. Ct. 1955 (May 21, 2007): Counsel are instructed to
familiarize themselves with this recent Supreme Court case and be prepared to discuss what impact, if
any, it is expected to have on the preparation of any consolidated amended pleadings.
f. Monthly statements regarding time spent and costs advanced: All attorneys who may
ever seek the award of fees or reimbursement of costs in connection with this litigation shall keep files
contemporaneously documenting all time spent, including tasks performed, and expenses incurred. The
Case 3:07-cv-00457-SI Document 10 Filed 07/09/07 Page 6 of 7
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For the Northern District of California
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Court will consult with Interim Co-Lead Counsel and Liaison Counsel concerning how and where these
files shall be preserved pending completion of the litigation.
g. Discovery and Protective Order: Counsel should be prepared to discuss mechanisms for
coordinating discovery between the direct and indirect purchaser actions, and the effect, if any, of the
government investigations of the TFT-LCD industry on the discovery process. Counsel shall also be
prepared to discuss a stipulated protective order and, if possible, present one to the Court for its
consideration. In the event a stipulation cannot be reached, the Court will execute a protective order
generally in the form to the Northern District of California’s model stipulated protective order
unless/until the parties present the Court with a joint submission.
h. Appointment of Judge Fern Smith as Special Master: Pursuant to Federal Rule of Civil
Procedure 53(b)(1), the Court hereby provides all parties notice that it is considering appointing the
Honorable Fern Smith, United States District Judge (Retired), as a Special Master to assist the Court
in this litigation. The Court anticipates that Judge Smith would assist the Court with matters such as
case management, discovery organization and structuring, prioritization of class considerations, case
resolution procedures, and other matters in which the large scale of this litigation will make Special
Master assistance prudent and economical. Counsel shall be prepared at the July 10, 2007 status
conference to discuss this matter.
IT IS SO ORDERED.
Dated: July 3, 2007
SUSAN ILLSTON
United States District Judge
Case 3:07-cv-00457-SI Document 10 Filed 07/09/07 Page 7 of 7 |
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JOINT STIPULATION AND [] ORDER TO EXTEND TIME TO SUBMIT EVIDENCE ISO PLAINTIFF CISCO SYSTEMS,
INC.’S MOTION TO SEAL PURSUANT TO LOCAL RULE 79-5(e) – CASE NO. 5:14-CV-03236-RMW-HRL
Winston & Strawn LLP
101 California Street
San Francisco, CA 94111-5802
Krista M. Enns (SBN: 206430)
[email protected]
WINSTON & STRAWN LLP
101 California Street
San Francisco, CA 94111-5802
Telephone: (415) 591-1000
Facsimile: (415) 591-1400
Dan K. Webb (pro hac vice)
[email protected]
J. Erik Connolly (pro hac vice)
[email protected]
WINSTON & STRAWN LLP
35 West Wacker Drive
Chicago, IL 60601
Telephone: (312) 558-5600
Facsimile: (312) 558-5700
Attorneys for Plaintiff
CISCO SYSTEMS, INC.
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
CISCO SYSTEMS, INC.,
Plaintiff,
v.
STMICROELECTRONICS, INC. and
STMICROELECTRONICS, S.r.l.,
Defendant.
Case No. 5:14-cv-03236-RMW-HRL
JOINT STIPULATION AND []
ORDER TO EXTEND TIME TO SUBMIT
EVIDENCE IN SUPPORT OF PLAINTIFF
CISCO SYSTEMS, INC.’S MOTION TO
SEAL PURSUANT TO LOCAL RULE
79-5(e)
(),/('
Case 3:14-cv-03236-RS Document 112 Filed 07/24/15 Page 1 of 4
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JOINT STIPULATION AND [] ORDER TO EXTEND TIME TO SUBMIT EVIDENCE ISO PLAINTIFF CISCO SYSTEMS,
INC.’S MOTION TO SEAL PURSUANT TO LOCAL RULE 79-5(e) – CASE NO. 5:14-CV-03236-RMW-HRL
Winston & Strawn LLP
101 California Street
San Francisco, CA 94111-5802
Plaintiff Cisco Systems, Inc. (“Cisco”) and Defendants STMicroelectronics, Inc. (“STMicroUS”) and STMicroelectronics, S.r.l. (“STMicro-Italy,” and collectively, “Defendants”), by and
through their undersigned counsel, hereby stipulate as follows:
WHEREAS, on July 14, 2015, Cisco filed its opposition to STMicro-Italy’s motion to
dismiss for lack of personal jurisdiction (the “Opposition,” ECF No. 106);
WHEREAS, the Opposition includes various exhibits, including seven with respect to which
Cisco believes STMicro-US and/or STMicro-Italy will take the position that they should be filed
under seal, specifically:
1. ECF No. 105-3 – Exhibit B to DECLARATION OF THIERRY SOLOMON IN
SUPPORT OF PLAINTIFF CISCO SYSTEMS, INC.’S OPPOSITION TO
STMICROELECTRONICS, S.R.L.’S MOTION TO DISMISS FOR LACK OF
PERSONAL JURISDICTION. UNREDACTED VERSION OF DOCUMENT(S)
SOUGHT TO BE SEALED.
2. ECF No. 105-5 – Exhibit C to DECLARATION OF THIERRY SOLOMON IN
SUPPORT OF PLAINTIFF CISCO SYSTEMS, INC.’S OPPOSITION TO
STMICROELECTRONICS, S.R.L.’S MOTION TO DISMISS FOR LACK OF
PERSONAL JURISDICTION. UNREDACTED VERSION OF DOCUMENT(S)
SOUGHT TO BE SEALED.
3. ECF No. 105-7 – Exhibit D to DECLARATION OF THIERRY SOLOMON IN
SUPPORT OF PLAINTIFF CISCO SYSTEMS, INC.’S OPPOSITION TO
STMICROELECTRONICS, S.R.L.’S MOTION TO DISMISS FOR LACK OF
PERSONAL JURISDICTION. UNREDACTED VERSION OF DOCUMENT(S)
SOUGHT TO BE SEALED.
4. ECF No. 105-9 – Exhibit E to DECLARATION OF THIERRY SOLOMON IN
SUPPORT OF PLAINTIFF CISCO SYSTEMS, INC.’S OPPOSITION TO
STMICROELECTRONICS, S.R.L.’S MOTION TO DISMISS FOR LACK OF
PERSONAL JURISDICTION. UNREDACTED VERSION OF DOCUMENT(S)
SOUGHT TO BE SEALED.
5. ECF No. 105-11 – Exhibit F to DECLARATION OF THIERRY SOLOMON IN
SUPPORT OF PLAINTIFF CISCO SYSTEMS, INC.’S OPPOSITION TO
STMICROELECTRONICS, S.R.L.’S MOTION TO DISMISS FOR LACK OF
PERSONAL JURISDICTION. UNREDACTED VERSION OF DOCUMENT(S)
SOUGHT TO BE SEALED.
6. ECF No. 105-13 – Exhibit A to DECLARATION OF ARDAVAN POURHAMZEH IN
SUPPORT OF PLAINTIFF CISCO SYSTEMS, INC.'S OPPOSITION TO
STMICROELECTRONICS, S.R.L.'S MOTION TO DISMISS FOR LACK OF
PERSONAL JURISDICTION. UNREDACTED VERSION OF DOCUMENT(S)
SOUGHT TO BE SEALED.
7. ECF No. 105-15 – Exhibit A to DECLARATION OF RICHARD MARSZALIK IN
SUPPORT OF PLAINTIFF CISCO SYSTEMS, INC.'S OPPOSITION TO
STMICROELECTRONICS, S.R.L.'S MOTION TO DISMISS FOR LACK OF
Case 3:14-cv-03236-RS Document 112 Filed 07/24/15 Page 2 of 4
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JOINT STIPULATION AND [] ORDER TO EXTEND TIME TO SUBMIT EVIDENCE ISO PLAINTIFF CISCO SYSTEMS,
INC.’S MOTION TO SEAL PURSUANT TO LOCAL RULE 79-5(e) – CASE NO. 5:14-CV-03236-RMW-HRL
Winston & Strawn LLP
101 California Street
San Francisco, CA 94111-5802
PERSONAL JURISDICTION. UNREDACTED VERSION OF DOCUMENT(S)
SOUGHT TO BE SEALED.
WHEREAS, Cisco filed an administrative motion to seal each of these exhibits (ECF No.
105);
WHEREAS, pursuant to Local Rule 79-5(e), Defendants have until July 20, 2015 (because
the fourth day from Cisco’s July 14, 2015 filing falls on a weekend day) to file a declaration to
support the sealing;
WHEREAS, the parties have agreed to extend Defendants’ time to file a declaration as
required by Local Rule 79-5(e) to July 30, 2015;
NOW THEREFORE, Cisco and Defendants stipulate as follows, subject to the Court’s
approval:
Defendants shall have until July 30, 2015, to file and serve a declaration in support of
sealing pursuant to Local Rule 79-5(e).
IT IS SO STIPULATED.
Dated: July 17, 2015 WINSTON & STRAWN LLP
By: /s/Krista M. Enns
Krista M. Enns
Attorneys for Plaintiff
CISCO SYSTEMS, INC.
Dated: July 17, 2015 SIDLEY AUSTIN LLP
By: /s/ Nicole Ryan Nicole Ryan
Attorneys for Defendant
STMICROELECTRONICS, INC.
Dated: July 17, 2015 SIDLEY AUSTIN LLP
By: /s/ Nicole Ryan
Nicole Ryan
Attorneys for Defendant
STMICROELECTRONICS, S.r.l.
Case 3:14-cv-03236-RS Document 112 Filed 07/24/15 Page 3 of 4
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JOINT STIPULATION AND [] ORDER TO EXTEND TIME TO SUBMIT EVIDENCE ISO PLAINTIFF CISCO SYSTEMS,
INC.’S MOTION TO SEAL PURSUANT TO LOCAL RULE 79-5(e) – CASE NO. 5:14-CV-03236-RMW-HRL
Winston & Strawn LLP
101 California Street
San Francisco, CA 94111-5802
PURSUANT TO STIPULATION, IT IS SO ORDERED.
Dated: July __, 2015
Ronald M. Whyte
United States District Judge
LOCAL RULE 5-1 ATTESTATION
I, Krista M. Enns, am the ECF User whose ID and password was used to file this JOINT
STIPULATION AND [PROPOSED] ORDER TO EXTEND TIME TO SUBMIT EVIDENCE IN
SUPPORT OF PLAINTIFF CISCO SYSTEMS, INC.’S MOTION TO SEAL PURSUANT TO
LOCAL RULE 79-5(e). In compliance with Local Rule 5-1(i)(3), I hereby attest that, counsel for
Defendants, concurred in this filing.
Dated: July 17, 2015 By: /s/Krista M. Enns
Krista M. Enns
Case 3:14-cv-03236-RS Document 112 Filed 07/24/15 Page 4 of 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ared-3_15-cv-00246/USCOURTS-ared-3_15-cv-00246-5/pdf.json | 555 | Prisoner - Prison Condition | 42:1983 Prisoner Civil Rights | IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
BOBBY RAY OSBY
v. No. 3:15-cv-246-DPM
PLAINTIFF
CRAIGHEAD COUNTY SHERIFF'S
DEPARTMENT; DOES, Medical Staff,
Craighead County; MATT HALL, Jail
Administrator, Craighead County Detention
Center; MARTY BOYD, Sheriff, Craighead
County Detention Center; CHASSITY
JACKSON, Nurse, Craighead County
Detention Center; and TODD HARRELL,
Assistant Jail Administrator, Craighead
County Detention Center DEFENDANTS
JUDGMENT
Osby' s claims against the Craighead County Sheriff's Department are
dismissed with prejudice. Osby' s official-capacity claims against Hall, Boyd,
Jackson, and Harrell are dismissed without prejudice. Osby's individualcapacity claims against Hall, Boyd, Jackson, and Harrell are dismissed with
prejudice.
D.P. Marshall JrP
United States District Judge
Case 3:15-cv-00246-DPM Document 46 Filed 09/30/16 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_07-cv-00077/USCOURTS-caed-1_07-cv-00077-0/pdf.json | 864 | Social Security - SSID Title XVI | 42:416 Denial of Social Security Benefits | 1
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the Honorable Oliver W. Wanger reassigned the case to the undersigned for all purposes.
1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
RAYMUNDO V. REYNA, )
)
)
)
Plaintiff, )
)
v. )
)
MICHAEL J. ASTRUE, Commissioner )
of Social Security, )
)
)
)
Defendant. )
)
1:07-cv-00077 GSA
ORDER REGARDING PLAINTIFF’S
SOCIAL SECURITY COMPLAINT
BACKGROUND
Plaintiff Raymundo V. Reyna (“Plaintiff”) seeks judicial review of a final decision of the
Commissioner of Social Security (“Commissioner”) ending his period of disability and disability
insurance benefits pursuant to Title II of the Social Security Act (“Act”). The matter is currently
before the Court on the parties’ briefs, which were submitted, without oral argument, to the
Honorable Gary S. Austin, United States Magistrate Judge.1
FACTS AND PRIOR PROCEEDINGS
Plaintiff filed his initial application for disability insurance benefits under Title II of the
Act on December 19, 2000. AR 81-83. Plaintiff alleged that he had been unable to work since
Case 1:07-cv-00077-GSA Document 21 Filed 01/16/08 Page 1 of 18
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October 15, 2000, due to leukemia. AR 108. The Social Security Administration found him
disabled due to leukemia, and awarded him disability insurance. AR 24.
On June 24, 2004, the Social Security Administration determined that Plaintiff’s health
had improved and that he was able to work. The Social Security Administration ceased
Plaintiff’s benefits. AR 31-34. Plaintiff requested reconsideration and appeared before a
disability hearing officer, who also found that Plaintiff was no longer disabled. AR 35-36, 41-53.
Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”). AR 54-55. On
July 19, 2006, ALJ Michael Haubner held a hearing and on September 21, 2006, determined that
Plaintiff’s disability ceased on August 31, 2004. AR 15-23, 415-438. The Appeals Council
denied review on November 22, 2006. AR 10-12. Thereafter, the Appeals Council set aside its
November 22, 2006, denial to consider additional information. AR 6-9. The Appeals Council
again denied review. AR 6-9.
Hearing Testimony
On July 19, 2006, ALJ Haubner held a hearing in Fresno, California. AR 415-438.
Plaintiff appeared with his attorney, Robert Christenson. AR 417. A Spanish interpreter also
was present at the hearing. AR 417.
Plaintiff was born on December 16, 1950. AR 423-424. He testified that the last date he
worked was in 2000 and the last time he looked for work was in early 2006. AR 424. He was
looking for field work. AR 425. He would not have taken a job if they gave it to him because it
was picking and he cannot carry the bag. AR 425. He has not had any alcohol or beer since
1997. AR 425.
Plaintiff lives with his wife and his 14-year-old son. AR 425. His wife sometimes works
outside the home. AR 425. At the time of the hearing, she was not working outside the home.
AR 425. She is receiving food stamps. AR 425-426. She is not on any kind of disability. AR
426. His son is not on any disability. AR 426.
Plaintiff testified that he drives an automatic car. AR 426. On average, he drives two
times a day. AR 426-427. He takes his son and his grandchild to and from school. AR 427.
Case 1:07-cv-00077-GSA Document 21 Filed 01/16/08 Page 2 of 18
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The grandchild does not live with him. AR 427. No one else lives in his house besides him, his
wife and his son. AR 427.
Plaintiff testified that he goes to church once every month. AR 427. He goes out to eat
once a month. AR 427. Plaintiff testified that he does not go shopping at the market for
groceries. AR 427. He does not go shopping for other items for personal needs, clothes or
anything. AR 427-428. Plaintiff subsequently testified that he has been shopping at a store. AR
428. The last time he went shopping was the day before the hearing. AR 428. He went
shopping for soda. AR 428. On average, he goes shopping about three times a week. AR 428-
429.
Plaintiff testified that he does not go to visit with family or friends outside of his home.
AR 429. They come to visit him. AR 429. He does not talk with neighbors when he is outside.
AR 429. He does not visit any family members at their homes. AR 429. They come to visit
him. AR 429. His children come every day. AR 429. He has other children besides his fifteenyear-old son. AR 429. He has more than one grandchild. AR 429. He sees those other
grandchildren every day. AR 429. He does not see them or watch them when there is no other
adult in the house. AR 429. When his wife is working, his kids do not come over and leave their
kids. AR 429.
Plaintiff testified that he does not have any pets. AR 429. He does not do any yard work.
AR 429. He lives in an apartment. AR 430. He is able to care for his own personal needs, brush
his teeth, shave, comb his hair, dress, and shower. AR 430. He does not cook or prepare meals.
AR 430. He will get himself a sandwich every three days. AR 430. He does not wash dishes.
AR 431. He washed dishes years ago. AR 431. He does not do the laundry, take out the trash or
make his bed. AR 431. He does not do anything. AR 431. He does not change the sheets on his
bed. AR 431. He does not sweep or vacuum inside the house. AR 431. There is nothing that he
can do. AR 432.
Plaintiff testified that he does not do any exercise. AR 432. He can lift and carry 15
pounds with both hands. AR 432. He can stand about 30 minutes before he has to sit down and
rest. AR 432. He can walk two blocks, but gets tired. AR 432. He can sit in a chair for 15
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minutes at one time. AR 432. He has fatigue. AR 432. The longest he can pay attention at one
time is 15, 20 minutes. AR 432. He has to lie down three times during daylight hours for an
average of twenty minutes each time. AR 432-433. He does not lie down at the same time every
day. AR 433. It varies. AR 433.
Plaintiff testified that he does not speak or understand any English. AR 433. He took his
driver’s license test in Spanish. AR 433. He can read and understand the road signs in English.
AR 433. He cannot read a newspaper headline in English. AR 433. He cannot read a lot in
Spanish. AR 433. He does not have “much school.” AR 433. The highest grade he completed
in school was second. AR 433.
Plaintiff testified that he does not have any hobbies. AR 433. He watches the news. AR
433. On an average day, he watches TV for two hours. AR 433-434. When his family is over,
he spends three hours, on average, visiting. AR 434. He does not have a savings or a checking
account. AR 434. He pays bills in cash. AR 434. He does not receive any income other than
the food stamps. AR 434. When his wife works, he gets her income. AR 434.
Plaintiff testified that he is fully compliant with all his treatment recommendations and
medications. AR 434. He weighs 225. AR 434. He did not remember how tall he is. AR 434.
He testified that he is about 5'11". AR 434. His driver’s license says 5'8", which sounded right
to him. AR 434-435. The doctor has told him to lose weight. AR 435. The doctor has not told
him to stick to a low fat diet. AR 435. He does not follow any kind of diet to lose weight. AR
435.
Plaintiff testified that his disabling conditions are myeloid leukemia, obesity, fibrosis,
hemochromatosis, early cirrhosis of the liver, history of diabetes, lower back pain, arthritis and
pain in his hand and left shoulder. AR 436. He told his cancer doctor, “Dr. Pari,” about the left
shoulder pain about a month and a half prior to the hearing. AR 436. He told the doctor about
his low back pain about a month prior to the hearing. AR 436.
Plaintiff takes pills for his diabetes. AR 436. He always takes his diabetes pills when he
is supposed to take them. AR 436.
Case 1:07-cv-00077-GSA Document 21 Filed 01/16/08 Page 4 of 18
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Medical Evidence
On October 13, 2000, Plaintiff sought treatment at Kaweah Delta District Hospital for
complaints of a fever for approximately one month. AR 212-216. On physical examination, it
was noted the Plaintiff was obese and had extremely swollen gingiva. AR 214. He was
diagnosed with acute gingivitis and fever. AR 215, 217.
On October 19, 2000, Plaintiff was admitted to Kaweah Delta District Hospital for
complaints of chronic fevers. AR 194. An US Abdominal Echogram Survey completed on
October 19, 2000, was normal. AR 210. A bone marrow biopsy was completed and Plaintiff
was diagnosed with acute myelogenous leukemia and thrombocytopenia. AR 194-195, 201-202.
Plaintiff was transferred to Stanford University Hospital for ongoing care. AR 195.
A chest view taken on October 22, 2000, showed no active cardiopulmonary disease. AR
200. Laboratory data reviewed by Joan Etzell, M.D., at UCSF Stanford Health Care revealed
acute myelomonocytic leukemia with easinophilia. AR 205.
On December 28, 2000, Rabia Parveez, M.D., of Cancer Care Associates of Fresno, Inc.,
conducted a hematology consultation. AR 250-254. Dr. Parveez reported that Plaintiff had
received induction chemotherapy and was hospitalized from October 25, 2000 through
November 17, 2000. AR 250. A bone marrow performed on November 28, 2000, was
normocellular. AR 250. Dr. Parveez recommended four cycles of consolidation chemotherapy.
AR 254.
On February 8, 2001, Plaintiff saw Dr. Parveez for a follow-up examination. AR 248.
Dr. Parveez indicated that Plaintiff recently had been discharged from the hospital following
chemotherapy. AR 248. Dr. Parveez opined that Plaintiff’s acute myeloid leukemia was in
complete remission. AR 248.
On February 19, 2003, Plaintiff sought medical treatment at Kaweah Delta Health Care
District for complaints of chest pain. AR 305, 306-309. Plaintiff reported intense pulling of the
upper right chest “like a bolt of lightening.” AR 307. Chest X-rays were normal. AR 310. An
ECG suggested “consider left atrial enlargement,” but was otherwise normal. AR 311. The
treating doctor was not sure why Plaintiff was having lacinating pains. AR 308.
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On June 3, 2003, Plaintiff saw William Barreto, PA-C, at Family Healthcare Network for
follow-up on his diabetes and bilateral low back pain. AR 229. On examination, Plaintiff had
minimal bilateral lumbar spasm and tenderness to palpation. AR 229. PA Barreto diagnosed
Plaintiff with stable diabetes mellitus, acute myelogenous leukemia and osteoarthritis. AR 229.
On June 26, 2003, Plaintiff saw Dr. Parveez at the California Cancer Center for a medical
oncology follow-up examination. AR 244. Plaintiff denied any complaints. AR 244. Dr.
Parveez reported that the laboratory data showed a white blood cell count of 4.8, hemoglobin of
13.9 and platelets of 142. AR 244. Dr. Parveez opined that Plaintiff’s acute myeloid leukemia
was in “complete remission.” AR 244.
On July 2, 2003, Plaintiff saw PA Barreto for a follow-up on his diabetes mellitus. AR
227. PA Barreto diagnosed Plaintiff with stable diabetes mellitus, elevated liver function tests,
osteoarthritis and acute monocytic leukemia. AR 227. Plaintiff reported that Naprosyn helped
his arthritis pain and he used it sparingly. AR 227.
On September 24, 2003, Plaintiff sought treatment from Rogelio Ortega, M.D., at Family
Health Care. AR 225. Dr. Ortega opined that Plaintiff’s diabetes was “very well controlled” and
agreed with discontinuing Plaintiff’s Glucovance provided that Plaintiff followed a strict diet,
exercised daily and checked his blood sugars. AR 225.
On October 6, 2003, Plaintiff saw Dr. Parveez at the California Cancer Center for a
medical oncology follow-up examination. AR 241. Plaintiff denied any complaints. AR 241.
Dr. Parveez opined that Plaintiff had acute myeloid leukemia in remission. AR 241.
On November 25, 2003, Plaintiff sought treatment from Dr. Ortega at Family Health Care
for complaints of upper back pain. AR 221, 222. Plaintiff was assessed with mild discomfort to
the intrascapular region to his thoracic back with no overt abnormalities. AR 222. His plan of
treatment included Advil, a CBC to check his platelet count and a WBC count for monitoring.
AR 221, 222.
On December 2, 2003, Plaintiff visited Family Health Care for his CBC lab results
because of his history of leukemia. AR 220. Plaintiff had no complaints. AR 220.
An acute hepatitis panel completed on January 26, 2004, was negative. AR 238.
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A February 5, 2004, abdominal ultrasound of Plaintiff revealed fatty liver changes. AR
237. The remainder of the ultrasound examination was negative. AR 237.
On February 6, 2004, Plaintiff saw Alvin Y. Au, M.D., F.A.C.G., for a gastroenterology
evaluation. AR 261-262. Following examination, Dr. Au differentially diagnosed Plaintiff with
nonalcoholic hepatitis, history of diabetes mellitus, obesity and rule out chronic hepatitis
infection. AR 262. Dr. Au recommended additional liver tests. AR 262.
On February 19, 2004, Plaintiff saw Dr. Parveez at the California Cancer Center for
follow-up. AR 234. Plaintiff complained of occasional abdominal pain, but had no other
complaints. AR 234. Dr. Parveez reported that Plaintiff’s acute myeloid leukemia was in
remission. AR 234. Plaintiff had elevated liver enzymes. AR 234. A hepatitis work-up was
negative and an abdominal ultrasound showed fatty liver changes. AR 234. Dr. Parveez
indicated that they would continue to monitor Plaintiff. AR 234.
On May 6, 2004, Plaintiff underwent a CT of his abdomen. AR 260. The CT revealed a
normal liver and biliary tract, with no evidence of a liver parenchymal lesion or obstruction, and
“probably benign adenomas.” AR 260, 278.
On May 18, 2004, Plaintiff saw Dr. Parveez for an oncology follow-up. AR 403. Dr.
Parveez assessed Plaintiff with elevated liver enzymes and abdominal pain. AR 403. He was
referred to a gastroenterologist. AR 403.
In June 2004, Plaintiff underwent needle core biopsies of his liver. AR 257. Plaintiff
was diagnosed with grade 3/4 periportal lymphocytic inflammation and stage II-III fibrosis. AR
257. He had extensive macrovesicular fatty change. AR 257.
On July 1, 2004, Plaintiff saw Sandra Soares, FNP, at Family Healthcare Network for
complaints of back pain in his upper shoulder and generalized body aches. AR 332. On
examination, Plaintiff had pain to palpation in the lower back, greater near the liver area. AR
332. FNP Soares diagnosed Plaintiff with pain, history of acute monocytic leukemia, obesity and
diabetes. AR 332. She ordered a CBC with a peripheral smear and a chest x-ray. AR 333-334.
Plaintiff was given a Vicodin prescription for his pain. AR 333.
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On July 2, 2004, Plaintiff sought treatment at Kaweah Delta Health Care District. AR
266. Chest views taken that day showed no active pulmonary disease or acute abnormality. AR
270.
On July 9, 2004, Plaintiff sought treatment Family Healthcare Network. AR 322.
Plaintiff complained of back pain, which was helped with Vicodin. AR 322. Plaintiff had
increased liver enzymes. AR 322.
On July 15, 2004, Plaintiff sought treatment from Christopher Rodarte, M.D., following a
liver biopsy and iron studies. AR 320. Dr. Rodarte diagnosed Plaintiff with hemochromatosis,
which is a problem with over storage of iron and is treated by phlebotomy. AR 320.
On July 21, 2004, Plaintiff underwent an abdominal ultrasound. AR 325. The study was
viewed as “somewhat suboptimal due to patient’s size and some gas interference.” AR 325.
Plaintiff had a normal general survey of the abdomen by ultrasound. AR 325.
On August 6, 2004, Plaintiff was Dr. Rodarte for follow-up of his hemochromatosis. AR
316. Plaintiff denied any significant complications from a recent phlebotomy. AR 316.
On August 25, 2004, Plaintiff again saw Dr. Rodarte. AR 313, 314. Dr. Rodarte
indicated that Plaintiff had a history of hemochromatosis, diabetes and hyperlipidemia. AR 314.
Plaintiff was taking Glucovance and was getting phlebotomies. AR 314. Dr. Rodarte opined
that Plaintiff’s diabetes and hyperlipidemia were stable. AR 314. Plaintiff was not on any
medications for his hyperlipidemia. AR 314. Dr. Rodarte assessed Plaintiff with
hemochromatosis and recommended continued phlebotomies until Plaintiff’s ferritin was normal.
AR 314.
On November 4, 2004, Plaintiff saw Dr. Parveez for a medical oncology follow-up visit.
AR 397. Dr. Parveez opined that Plaintiff’s acute myeloid leukemia seemed to be in complete
remission. AR 397.
On January 17, 2005, Plaintiff saw Dr. Parveez for medical oncology follow-up
treatment. AR 394. Plaintiff complained of upper right quadrant pain. AR 394. He was
following up with a GI doctor for the pain. AR 394.
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On March 17, 2005, Plaintiff saw Monica Manga, M.D., at Family Healthcare Network
for follow-up. AR 363. Plaintiff complained of “increased fatigability.” AR 363. He was
assessed with hemochromatosis and diabetes. AR 363.
On April 13, 2005, Plaintiff saw Dr. Rodarte for a follow-up visit. AR 359. Dr. Rodarte
opined that Plaintiff had excellent control of his diabetes and his hemochromatosis was
improving. AR 359.
On April 26, 2005, Plaintiff underwent needle biopsies of his liver. AR 366. He was
diagnosed with grade 2-3 chronic hepatitis, grade 2-3 fibrosis, periportal fibrosis and portal-toportal septa without obvious cirrhosis. AR 366. There was no evidence of hemachromatosis.
AR 366.
On May 4, 2005, Plaintiff saw Dr. Parveez for medical oncology follow-up treatment.
AR 391. Plaintiff reported one episode of night sweats, but was doing and feeling fine. AR 391.
Dr. Parveez indicated the Plaintiff’s counts were normal. AR 391.
On August 24, 2005, Plaintiff saw Dr. Parveez for follow-up treatment. AR 388.
Plaintiff reported right upper quadrant pain. AR 388. Dr. Parveez recommended follow-up with
Plaintiff’s gastroenterologist. AR 388.
On September 7, 2005, Plaintiff saw Matthew Kosel, PA, at Family Healthcare Network.
AR 356-357. PA Kosel assessed Plaintiff with diabetes mellitus type 2 and hemochromatosis.
AR 356.
On September 19, 2005, Plaintiff saw Dr. Rodarte. AR 354. Dr. Rodarte noted that
Plaintiff was doing extremely well and had no complaints. AR 354. Dr. Rodarte assessed
Plaintiff with hemochromatosis and diabetes. AR 354. Dr. Rodarte opined that Plaintiff’s
diabetes was “slightly worse.” AR 354.
On September 29, 2005, Plaintiff underwent a CT scan of his liver. AR 353. The scan
revealed probable “benign adenomas,” but no other significant abnormality. AR 353.
On October 27, 2005, Plaintiff saw Dr. Rodarte for follow-up of his hemochromatosis.
AR 352. There were no labs for review. AR 352.
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On November 28, 2005, Plaintiff saw Dr. Rodarte for his hemochromatosis. AR 350.
Dr. Rodarte noted that Plaintiff’s hemochromatosis was “slightly better.” AR 350. Dr. Rodarte
thought Plaintiff needed “to continue to be on disability for his acute myeloleukemia, but [he
thought] it was in remission for his diabetes and for his hemochromatosis and weakness.” AR
350. Plaintiff had new onset high blood pressure. AR 340.
On November 28, 2005, a prescription note from Family HealthCare included a
handwritten statement that Plaintiff “[n]eeds to be on disability for hemochromatosis, acute
myeloid leukemia [and] possible early cirrhosis.” AR 340.
On February 15, 2006, Plaintiff saw Dr. Rodarte and reported no significant complaints.
AR 349. Dr. Rodarte noted that Plaintiff was “[o]verall doing extremely well.” AR 349. Dr.
Rodarte assessed Plaintiff with diabetes with questionable control and hypertension. AR 349.
On February 16, 2006, Plaintiff saw Dr. Parveez for a follow-up visit. AR 382-383. Dr.
Parveez indicated that Plaintiff was in complete remission from his leukemia, but had nonalcoholic liver cirrhosis. AR 383.
On March 8, 2006, Plaintiff saw Dr. Rodarte for a follow-up appointment. AR 345.
Plaintiff had no significant complaints. AR 345. Dr. Rodarte noted that Plaintiff was
“[e]ssentially doing very well.” AR 345. Plaintiff’s liver enzymes and total iron body were
normal and his ferritin was significantly decreasing. AR 345.
On March 28, 2006, Todd Frederick, M.D., of the Physician Foundation at California
Pacific Medical Center evaluated Plaintiff. AR 341-343. Dr. Frederick noted that Plaintiff had
chronic hepatitis C with elevated iron saturation levels and elevated ferritins. AR 341. Testing
following a therapeutic phlebotomy program confirmed normalization of Plaintiff’s ferritin. AR
343. Dr. Frederick recommended a repeat liver biopsy, iron measurements, screening for liver
cancer, PPI therapy for Plaintiff’s symptoms of dyspepsia, full abdominal ultrasound and weight
loss with a low-fat diet. AR 343.
On March 29, 2006, Plaintiff saw Dr. Rodarte for follow-up. AR 344. Plaintiff reported
he was “overall doing extremely well except occasionally some left shoulder pain with certain
movement.” AR 344. Dr. Rodarte assessed Plaintiff with stable diabetes, a history of
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hemochromatosis, which was stable, a history of scute myeloleukemia in remission and possible
left AC arthritis. AR 344. Dr. Rodarte planned to try Plaintiff on Naprosyn. AR 344.
On April 5, 2006, ALJ Haubner requested additional information Dr. Rodarte regarding a
prescription pad note stating that Plaintiff needed to be on disability. AR 184. ALJ Haubner
sought information, including the bases for Dr. Rodarte’s conclusions, Plaintiff’s specific
limitations, and whether Dr. Rodarte’s opinions regarding functional capacity were based on
Plaintiff’s subjective limitations. AR 184.
On April 13, 2006, Plaintiff saw Dr. Parveez for follow-up. AR 378-379. Dr. Parveez
noted that Plaintiff had increased ferritin because of liver cirrhosis secondary to non-alcoholic
hepatitis and was getting a phlebotomy every month. AR 378. Plaintiff complained of a cough
and left shoulder pain. AR 378.
On April 14, 2006, views were taken of Plaintiff’s left shoulder and chest. AR 375. His
heart, lungs and left shoulder were negative. AR 375.
On April 20, 2006, Plaintiff sought follow-up treatment from Dr. Parveez. AR 373-374.
Following examination, Dr. Parveez assessed Plaintiff with acute myeloid leukemia in remission,
liver cirrhosis and left shoulder pain. AR 374. An x-ray of his shoulder was “fine.” AR 374.
On June 6, 2006, Plaintiff saw Dr. Frederick in the liver clinic. AR 404-406. Plaintiff
complained of headaches and feeling tired much of the time. AR 404-405. Dr. Frederick opined
that Plaintiff’s fatigue was “very likely related to his hemachromatosis and his advanced fibrosis”
and his headaches may “be related to his lack of phlebotomy. AR 405. Dr. Frederick
recommended life-long, continuing maintenance phlebotomy for Plaintiff. AR 405. He also
recommended efforts to improve fatty liver disease, ongoing liver cancer screening, and checks
for hepatitis A, B and C. AR 406.
ALJ’s Findings
The ALJ determined that since February 6, 2001, the time of Plaintiff’s most recent
favorable medical decision, his medical impairment (leukemia) had improved. AR 20-21. The
ALJ also determined that, as of August 31, 2004, the claimaint had medically determinable
impairments of a history of myeloid leukemia in complete remission, a history of diabetes
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mellitus, fibrosis, a history of hemochromatosis, obesity and rule out early cirrhosis. AR 20.
The ALJ concluded that, as of August 31, 2004, Plaintiff did not have an impairment or
combination of impairments that met or medically equaled one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. AR 20. The medical improvement of Plaintiff’s
leukemia was related to the ability to work and, as of August 31, 2004, Plaintiffs impairments did
not cause more than a minimal impact on his ability to perform basic work activities. AR 21.
Accordingly, the ALJ found that Plaintiff’s disability ceased on August 31, 2004. AR 21.
SCOPE OF REVIEW
Congress has provided a limited scope of judicial review of the Commissioner’s decision
to deny benefits under the Act. In reviewing findings of fact with respect to such determinations,
the Court must determine whether the decision of the Commissioner is supported by substantial
evidence. 42 U.S.C. § 405(g). Substantial evidence means more than a mere scintilla,
Richardson v. Perales, 402 U.S. 389, 401 (1971), but less than a preponderance. Sorenson v.
Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401
(internal quotation marks and citation omitted). The record as a whole must be considered,
weighing both the evidence that supports and the evidence that detracts from the Commissioner’s
conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the evidence and
making findings, the Commissioner must apply the proper legal standards. E.g., Burkhart v.
Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s
determination that the claimant is not disabled if the Commissioner applied the correct legal
standards, and if the Commissioner’s findings are supported by substantial evidence. See
Sanchez v. Sec’y of Health and Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).
REVIEW
The ALJ must follow an eight-step analysis in determining whether a claimant continues
to be disabled. 20 C.F.R. §§ 404.1594(f). Benefits cannot be terminated without evidence of
medical improvement. Murray v. Heckler, 722 F.2d 499, 500 (9th Cir. 1983). Medical
improvement is any decrease in the medical severity of an impairment and is determined by a
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comparison or prior and current medical evidence that shows improvement in the symptoms,
signs, or laboratory findings associated with the impairment. 20 C.F.R. §§ 404.1594(b)(1),
416.994(b)(1)(i). The improvement must be related to the ability to do work. 20 C.F.R. §§
404.1594(b)(2), 416.994(b)(1)(ii). When the Commissioner decides to terminate benefits, the
burden of establishing a continuing disability lies with the claimant. Brown v. Heckler, 713 F.2d
441, 442 (9th Cir. 1983). However, an earlier finding of disability gives rise to the presumption
that the condition still exists. Id.
In applying this analysis to Plaintiff’s claim, the ALJ found that: (1) Plaintiff has not
engaged in substantial gainful activity between February 6, 2001, when he was found to be
disabled, and August 31, 2004, the date claimant’s disability ended; (2) Plaintiff has a history of
myeloid leukemia in complete remission, a history of diabetes mellitus, fibrosis, a history of
hemochromatosis, obesity and rule out early cirrhosis, but these impairments do no meet or
medically equal the severity of an impairment listed in Appendix 1, Subpart P, Regulations No.
4; (3) the medical evidence establishes that there has been improvement in Plaintiff’s medical
condition since August 31, 2004; (4) the medical improvement is related to Plaintiff’s ability to
work; and (5) Plaintiff does not have an impairment or combination of impairments that is
severe. The ALJ therefore found Plaintiff no longer disabled as of August 31, 2004, and
terminated benefits. AR 20-23.
Plaintiff argues that (1) the ALJ failed to consider the assessment of Dr. Todd Frederick;
(2) the ALJ failed to find that his advanced fibrosis secondary to hemochromatosis, as well as
concomitant fatty liver disease and associated fatigue, were severe impairments; and (3) the ALJ
failed to find that Plaintiff’s fatigue precluded work.
DISCUSSION
A. Assessment of Dr. Frederick
Plaintiff contends that the ALJ erred by failing to consider or to give reasons for rejecting
the June 2006 assessment completed by Dr. Todd Frederick. Contrary to Plaintiff’s contention,
the ALJ considered Dr. Frederick’s June 2006 report and cited it when assessing Plaintiff’s
medically determinable impairments to include a history of hemochromatosis. AR 20.
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Plaintiff also argues that Dr. Frederick’s assessment supports the claimant’s contention
that fatigue precludes work. Plaintiff’s argument is without merit. There is no indication in the
record that Dr. Frederick considered Plaintiff’s fatigue to preclude work. Instead, Dr. Frederick
opined that Plaintiff’s “fatigue is very likely related to his hemachromatosis and his advanced
fibrosis.” AR 405. As pointed out by the Commissioner, the mere existence of a condition or
limitation is not per se disabling. 42 U.S.C. § 1382c(a)(3)(A) (an individual is considered
disabled only if he is unable to engage in any substantial gainful activity by reason of a physical
or mental impairment); Sample v. Schweiker, 694 F.2d 639, 642-43 (9th Cir. 1982). Further, the
ALJ rejected Plaintiff’s symptom testimony as “not entirely credible.” AR 21. As discussed
more fully below, the ALJ made specific findings related to Plaintiff’s credibility, including his
evasiveness at hearing, his inconsistent testimony and his testimony regarding daily activities.
AR 22-23.
Insofar as Plaintiff relies on the Rules promulgated by the Commissioner for the
proposition that adjudicators must consider medical source statements as to an individual’s
residual functional capacity, this reliance is inapplicable to the present case. Dr. Frederick did
not provide an assessment of any work restrictions that Plaintiff might have or render an opinion
regarding Plaintiff’s functional capacity or ability to work. Dr. Frederick merely assessed the
possible source of Plaintiff’s alleged fatigue.
Plaintiff also asserts that the ALJ failed to mention and to discuss Plaintiff’s April 2006
biopsy, which revealed chronic hepatitis, fibrosis, peripheral fibrosis and portal-to-portal septa
without obvious cirrhosis. As previously noted, the mere diagnosis of an impairment is not
sufficient to sustain a finding of disability. Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).
Further, the ALJ determined that Plaintiff’s period of disability ended as of August 2004. AR 23.
Plaintiff originally was found disabled based on his myelocytic leukemia. AR 20. The record
reflects that Plaintiff’s leukemia is in remission and has been since February 2001. AR 248.
Plaintiff does not appear to contest the determination that his leukemia was in complete
remission as of August 2004. Instead, Plaintiff relies on medical evidence related to diagnoses
and assessments that took place in 2006, i.e., Dr. Frederick’s June 2006 assessment and an April
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2006 liver biopsy. If Plaintiff’s condition deteriorated in 2006, well after the August 31, 2004,
cessation date, then he arguably could file a new application for disability.
B. Severity of Impairments
Plaintiff next argues that the ALJ erred by failing to find that his advanced fibrosis and
concomitant fatty liver disease were severe. Plaintiff bears the burden of proving that he is
disabled. Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999); 20 C.F.R. § 404.1512. A person
is disabled if his impairments are severe and meet the durational requirement of twelve months.
20 C.F.R. §§ 404.1505, 404,1520(a). A severe impairment is one that significantly limits the
physical or mental ability to perform basic work activities. 20 C.F.R. § 404.1520(c). Examples
of basic work activities include carrying out simple instructions, responding appropriately to
usual work situations, dealing with changes in a routine work setting, and performing ordinary
physical functions like walking and sitting. 20 C.F.R. § 404.1521(b).
An impairment or combination of impairments is found “not severe” if the medical
evidence establishes only a slight abnormality or a combination of slight abnormalities which
would have no more than a minimal effect on an individual’s ability to work, even if the
individual’s age, education, or work experience were specifically considered (i.e., the person’s
impairment(s) has no more than a minimal effect on his or her physical or mental ability(ies) to
perform basic work activities). SSR 85-28. In determining whether an impairment or
combination of impairments is “severe,” an ALJ should carefully examine the medical findings
that describe the impairments and make an “informed judgment” about the limitations and
restrictions the impairment and related symptoms impose on the person’s physical and mental
ability to do basis work activities. SSR 96-3p.
Here, the record is devoid of evidence demonstrating that Plaintiff’s diagnoses of fatty
liver disease or advanced fibrosis limited his ability to work or perform basic work activities.
The ALJ considered whether Plaintiff’s impairments caused a significant limitation in his ability
to perform basic work activities. AR 21. In so doing, the ALJ reviewed Plaintiff’s fibrosis liver,
but also noted that Plaintiff had normal liver function. AR 21. Additionally, the record reflects
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that Plaintiff appeared to have been successfully phlebotomized. AR 343. And, in 2006,
reported feeling “reasonably well” and experiencing only a “little trouble with fatigue. AR 342.
C. Plaintiff’s Fatigue
Finally, Plaintiff argues that the ALJ erred by failing to find that Plaintiff’s fatigue from
his advanced fibrosis and concomittant fatty liver disease precluded work. To support his
argument, Plaintiff contends that the ALJ improperly discredited the claimant’s subjective
allegations. Plaintiff’s argument is without merit.
First, there are numerous notations throughout the record between 2004 and 2006
regarding Plaintiff’s overall well-being. For instance, in 2004, Plaintiff reported occasional
abdominal pain, but no other complaints, despite having fatty liver changes. AR 234. In July
2004, after being diagnosed with hemochromatosis, Plaintiff denied any significant
complications from a phlebotomy. AR 316. In April 2005, his hemochromatosis was improving.
AR 359. In May 2005, Plaintiff saw Dr. Parveez for medical oncology follow-up treatment and
was doing and feeling fine. AR 391. In September 2005, Dr. Rodarte noted that Plaintiff was
doing extremely well and had no complaints, despite having hemochromatosis and diabetes. AR
354. Although an opinion was rendered in November 2005 that Plaintiff needed to be on
disability for hemochromatosis, acute myeloid leukemia and possible early cirrhosis, a few
months later, in February 2006, Plaintiff saw Dr. Rodarte and reported no significant complaints.
Further, Dr. Rodarte opined that Plaintiff was “[o]verall doing extremely well.” AR 349.
According to the record, Plaintiff continued to do well in 2006. On March 8, 2006, Plaintiff
again saw Dr. Rodarte for a follow-up appointment and had no significant complaints. AR 345.
Dr. Rodarte indicated that Plaintiff was “[e]ssentially doing very well.” AR 345. Later in March
2006, Plaintiff reported to Dr. Rodarte that he was “overall doing extremely well except
occasionally some left shoulder pain with certain movement.” AR 344. Additionally, Plaintiff
himself testified that he was looking for field work in 2006. AR 424.
Second, the ALJ made specific findings related to Plaintiff’s credibility. An ALJ is
required to make specific findings assessing the credibility of plaintiff's subjective complaints.
Ceguerra v. Secretary of Health and Human Services, 933 F.2d 735 (9th Cir. 1991). “An ALJ is
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not ‘required to believe every allegation of disabling pain’ or other non-exertional impairment.”
Orn v. Astrue,495 F.3d 625, 635 (9th Cir. 2007) (citation omitted). In rejecting the
complainant’s testimony, “the ALJ must identify what testimony is not credible and what
evidence undermines the claimant’s complaints.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir.
1996). Pursuant to Ninth Circuit law, if the ALJ finds that the claimant’s testimony is unreliable,
the ALJ must make a credibility determination with findings sufficiently specific to permit the
court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony. Thomas v.
Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). “The ALJ may consider at least the following
factors when weighing the claimant’s credibility: ‘[claimant’s] reputation for truthfulness,
inconsistencies either in [claimant’s] testimony or between [his] testimony and [his] conduct,
[claimant’s] daily activities, [his] work record, and testimony from physicians and third parties
concerning the nature, severity, and effect of the symptoms of which [claimant] complains.” Id.
(citing Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). “If the ALJ’s credibility
finding is supported by substantial evidence in the record, we may not engage in
second-guessing.” Id.
Here, the ALJ made specific findings related to Plaintiff’s credibility. First, the ALJ
noted that Plaintiff had a “dismal work history” with only two full substantial gainful years of
employment during his lifetime. Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002)
(“extremely poor work history” supported credibility determination). Next, the ALJ noted that
Plaintiff was “extremely evasive at the hearing” and cited a number of examples demonstrating
Plaintiff’s inconsistent testimony. AR 22. For instance, the ALJ referenced Plaintiff’s initial
denial that he went shopping, but his later admission, after multiple follow-up questions from the
ALJ, that he went shopping for small items three times a week. AR 22. In addition, the ALJ
referenced inconsistencies in Plaintiff’s testimony regarding his level of education, his ability to
understand English and his ability to concentrate. AR 22. Finally, the ALJ considered Plaintiff’s
“fairly wide range of activities of daily living,” which included driving a car every day, attending
church, eating out, visiting with others every day for three hours a day, seeing his grandchildren
every day and looking for work in January 2006. AR 23. If a claimant is able to spend a
Case 1:07-cv-00077-GSA Document 21 Filed 01/16/08 Page 17 of 18
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substantial part of his day engaged in pursuits involving the performance of physical functions
that are transferable to a work setting, a specific finding as to this fact may be sufficient to
discredit a claimant's allegations. Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595,
600 (9th Cir. 1999).
CONCLUSION
Based on the foregoing, the Court finds that the ALJ’s decision is supported by
substantial evidence in the record as a whole and is based on proper legal standards.
Accordingly, this Court DENIES Plaintiff’s appeal from the administrative decision of the
Commissioner of Social Security. The clerk of this Court is DIRECTED to enter judgment in
favor of Defendant Michael J. Astrue, Commissioner of Social Security, and against Plaintiff
Raymundo Reyna.
IT IS SO ORDERED.
Dated: January 16, 2008 /s/ Gary S. Austin
60kij UNI 8 TED STATES MAGISTRATE JUDGE
Case 1:07-cv-00077-GSA Document 21 Filed 01/16/08 Page 18 of 18 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-4_10-cv-01812/USCOURTS-cand-4_10-cv-01812-0/pdf.json | 110 | Insurance | 28:1332 Diversity-Other Contract | United States District Court
For the Northern District of California
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United States District Court
For the Northern District of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
NATIONAL UNION FIRE COMPANY OF
PITTSBURGH, PA,
Plaintiff,
v.
NVIDIA CORPORATION,
Defendant. /
No. 09-02046 CW
No. 10-01812 CW
ORDER ON RELATED
CASES
On May 24, 2010, NVIDIA Corporation filed an Administrative
Motion to Consider Whether Cases Should Be Related and on May 28,
2010, National Union Fire Insurance Company of Pittsburgh, PA filed
an opposition to the motion. Having reviewed the papers, the Court
stands by its decision to relate National Union Fire Insurance
Company of Pittsburgh, PA v. NVIDIA Corporation, C 09-02046 and
National Union Fire Insurance Company of Pittsburgh, PA v. Nvidia
Corporation, C 10-01812.
IT IS SO ORDERED.
Dated: 06/02/10
CLAUDIA WILKEN
United States District Judge
Case 4:10-cv-01812-CW Document 11 Filed 06/02/10 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-almd-3_05-cv-00850/USCOURTS-almd-3_05-cv-00850-1/pdf.json | 555 | Prisoner - Prison Condition | 42:1983 Prisoner Civil Rights | IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
JOHN DERRICK JOHNSON, )
)
Plaintiff, )
)
v. ) CIVIL ACTION NO. 3:05-CV-850-F
) [WO]
)
DEBBIE BURT, et al., )
)
Defendants. )
RECOMMENDATION OF THE MAGISTRATE JUDGE
On September 13, 2005, John Derrick Johnson [“Johnson], a county inmate, filed this
42 U.S.C. § 1983 action. Subsequently, and prior to the defendants filing a response to the
complaint, Johnson filed a motion to dismiss this case.
Upon consideration of Johnson’s motion to dismiss, the court concludes that the
motion is due to be granted. Furthermore, since the defendants have filed no response
addressing the claims raised in the plaintiff's complaint, the court discerns that this case
should be dismissed without prejudice. See Rule 41(a)(1), Federal Rules of Civil Procedure.
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that Johnson’s
motion to dismiss be granted and that this case be dismissed without prejudice. It is further
ORDERED that on or before December 27, 2005 the parties may file objections to the
Recommendation. Any objections filed must specifically identify the findings in the
Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive
Case 3:05-cv-00850-MEF-CSC Document 16 Filed 12/13/05 Page 1 of 2
2
or general objections will not be considered by the District Court. The parties are advised
that this Recommendation is not a final order of the court and, therefore, it is not appealable.
Failure to file written objections to the proposed findings and advisements in the
Magistrate Judge's Recommendation shall bar the party from a de novo determination by the
District Court of issues covered in the Recommendation and shall bar the party from
attacking on appeal factual findings in the Recommendation accepted or adopted by the
District Court except upon grounds of plain error or manifest injustice. Nettles v.
Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d
33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en
banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed
down prior to the close of business on September 30, 1981.
Done this 13 day of December, 2005. th
/s/Charles S. Coody
CHARLES S. COODY
CHIEF UNITED STATES MAGISTRATE JUDGE
Case 3:05-cv-00850-MEF-CSC Document 16 Filed 12/13/05 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_06-cv-01106/USCOURTS-caed-2_06-cv-01106-12/pdf.json | 530 | Prisoner Petitions - Habeas Corpus | 28:2254 Petition for Writ of Habeas Corpus (State) | Accessible at 2005 WL 3196518. 1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
TONY JACKIE HERNANDEZ,
Petitioner,
vs.
PEOPLE OF THE STATE OF
CALIFORNIA and JAMES YATES,
Warden,
Respondents.
No. 2:06-cv-01106-JKS
MEMORANDUM DECISION
Petitioner Tony Jackie Hernandez, a state prisoner appearing through counsel, filed a
petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Hernandez is presently in the
custody of the California Department of Corrections and Rehabilitation, incarcerated in the
Pleasant Valley State Prison.
I. BACKGROUND/PRIOR PROCEEDINGS
Following the denial of his motion to suppress evidence, a Sacramento County Superior
Court jury convicted Hernandez of possession of heroin (Cal. Health & Saf. Code § 11350(a))
and possession of ammunition by a convicted felon (Cal. Pen. Code § 12316(b)(1)). In a
bifurcated proceeding, the trial court thereafter found that defendant had suffered three prior
convictions (which were also strikes) resulting in prison terms. (Cal. Pen. Code §§ 667(b)-(i),
667.5(b), 1170.12.) After denying his motion to strike the priors, the court sentenced Hernandez
to two concurrent terms of 25 years to life in state prison.
Hernandez timely appealed to the California Court of Appeal, which affirmed his
conviction in a unpublished written decision on November 29, 2005. The California Supreme 1
Case 2:06-cv-01106-JKS Document 41 Filed 09/26/08 Page 1 of 12
Hernandez, appearing pro se, also filed a petition for habeas relief in the California Supreme 2
Court on May 22, 2006, which was summarily denied December 20, 2006. The issues raised in that
habeas proceeding are not relevant or germane to the habeas petition pending before this Court.
MEMORANDUM DECISION
Hernandez v Yates, 2:06-cv-01106-JKS 2
Court summarily denied review without opinion or citation to authority on March 22, 2006.2
Hernandez timely filed his petition for habeas relief in this Court on May 15, 2006 (file stamped
May 22, 2006).
II. GROUNDS RAISED/DEFENSES
In his original pro se petition Hernandez raised six grounds: (1) Failure to suppress the
evidence based upon an illegal traffic stop was erroneous; (2) ineffective assistance of counsel
for failure to present the appropriate vehicle code section when arguing the motion to suppress;
(3) trial court erred in failing to impose sanctions for failure to preserve evidence; (4) ineffective
assistance of counsel for failure to raise the issue of failure to preserve evidence; (5) trial court
abused its discretion in failing to strike the priors; and (6) ineffective assistance of counsel for
failure to move to reduce his conviction as to the possession of bullets to a misdemeanor.
This Court appointed counsel and an Amended Petition was filed. In his Amended
Petition, Hernandez abandoned all the grounds raised in his original petition except the second
ground, ineffective assistance of counsel for failure to present the appropriate vehicle code
section to the trial court at the suppression hearing, and, to the extent applicable by way of the
second ground, the first, error in failing to suppress the evidence based on an illegal traffic stop.
Respondent concedes that Hernandez has exhausted his available state court remedies as to the
remaining grounds.
III. STANDARD OF REVIEW
Because Hernandez filed his petition after April 24, 1996, it is governed by the standard
of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28
U.S.C. § 2254(d). Consequently, this Court cannot grant relief unless the decision of the state
court was “contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States” at the time the state court renders
its decision or “was based on an unreasonable determination of the facts in light of the evidence
Case 2:06-cv-01106-JKS Document 41 Filed 09/26/08 Page 2 of 12
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 405–406 (2000); see Lockyer v. 3
Andrade, 538 U.S. 63, 70-73 (2003) (explaining this standard).
Williams v. Taylor, 529 U.S. at 412. 4
Carey v. Musladin, 549 U.S. 70, ___, 127 S.Ct. 649, 654 (2006) (alterations by the Court); see 5
Wright v. Van Patten, 552 U.S. ___, ___, 128 S.Ct. 743, 746-47 (2008) (per curiam).
Wiggins v. Smith, 539 U.S. 510, 520–21 (2003). 6
Schriro v. Landrigan, 550 U.S. ___, ___, 127 S.Ct. 1933, 1939 (2007).
7
Fry v. Pliler, 551 U.S. ___, ___, 127 S.Ct. 2321, 2328 (2007) (adopting the standard set forth in 8
Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993)).
Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) 9
28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 10
MEMORANDUM DECISION
Hernandez v Yates, 2:06-cv-01106-JKS 3
presented in the State court proceeding.” The Supreme Court has explained that “clearly
3
established Federal law” in § 2254(d)(1) “refers to the holdings, as opposed to the dicta, of [the
Supreme Court] as of the time of the relevant state-court decision.” Thus, where holdings of the 4
Supreme Court regarding the issue presented on habeas review are lacking, “it cannot be said that
the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’” When a claim falls 5
under the “unreasonable application” prong, a state court’s application of the Supreme Court
precedent must be “objectively unreasonable, “not just incorrect.” The Supreme Court has made 6
clear that the objectively unreasonable standard is a substantially higher threshold than simply
believing the state court determination was incorrect. Finally, in a federal habeas proceeding, 7
the standard under which this Court must assess the prejudicial impact of constitutional error in a
state-court criminal trial is whether the error had a substantial and injurious effect or influence in
determining the jury’s verdict.8
In applying this standard, this Court reviews the last reasoned decision by the state court,
9
which in this case was that of the California Court of Appeal. In addition, the state court’s
findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear
and convincing evidence.
10
To the extent that Petitioner raises issues of the proper application of State law, they are
beyond the purview of this Court in a federal habeas proceeding. It is a fundamental precept of
Case 2:06-cv-01106-JKS Document 41 Filed 09/26/08 Page 3 of 12
See Engle v. Isaac, 456 U.S. 107, 128 (1982). 11
Bell v. Cone, 543 U.S. 447, 455 (2005); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)
12
(a federal habeas court cannot reexamine a state court's interpretation and application of state law);
Walton v. Arizona, 497 U.S. 639, 653 (1990) (it is presumed that the state court knew and correctly
applied state law) overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).
Bradshaw v. Richey, 546 U.S. 74, 76, (2005); see also West v. AT & T, 311 U.S. 223, 236 13
(1940) (“[T]he highest court of the state is the final arbiter of what is state law. When it has spoken, its
pronouncement is to be accepted by federal courts as defining state law....”).
See Bradshaw, 546 U.S. at 76-78 (“Because the Sixth Circuit disregarded the Ohio Supreme 14
Court’s authoritative interpretation of Ohio law, its ruling on sufficiency of the evidence was
erroneous.”).
See Hicks v. Feiock, 485 U.S. 624, 629-30, 630 n. (1988) (noting state appellate court’s 15
determination of state law is binding and must be given deference).
Id.; see also West, 311 U.S. at 237 (“This is the more so where, as in this case, the highest 16
court has refused to review the lower court’s decision rendered in one phase of the very litigation which
is now prosecuted by the same parties before the federal court.”).
Findings that this Court must accept unless shown to be incorrect by clear and convincing 17
evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, supra. A burden Hernandez has failed to carry.
MEMORANDUM DECISION
Hernandez v Yates, 2:06-cv-01106-JKS 4
dual federalism that the States possess primary authority for defining and enforcing the criminal
law. A federal court must accept that state courts correctly applied state laws. A fundamental 11 12
principle of our federal system is “that a state court's interpretation of state law, including one
announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas
corpus.” A federal court errs if it interprets a state legal doctrine in a manner that directly 13
conflicts with the state supreme court’s interpretation of the law.14
A determination of state law by a state appellate court is also binding in a federal habeas
action. This is especially true where the highest court in the state has denied review of the 15
lower court’s decision.16
IV. DISCUSSION
Prior to trial, Hernandez moved to exclude certain evidence challenging the legality of the
traffic stop. The facts surrounding the traffic stop are set forth in the Court of Appeal’s
opinion.17
The trial court heard the following evidence and argument on the motion to
suppress:
Case 2:06-cv-01106-JKS Document 41 Filed 09/26/08 Page 4 of 12
MEMORANDUM DECISION
Hernandez v Yates, 2:06-cv-01106-JKS 5
Sacramento Police Detectives Jeff Wright and Joe Helfrick testified that while
patrolling on Stockton Boulevard in an unmarked vehicle about 11:00 a.m. on
October 8, 2002, they saw defendant’s Ford pickup truck ahead of them come to
an abrupt stop in the number two lane for no apparent reason. Helfrick observed
that defendant's “left rear tail lamp began flickering intermittently as if a bulb was
loose or something.” As defendant braked again and turned right onto 37th
Avenue, the left stoplamp flickered again. Wright characterized it as looking the
way a bulb “might flicker real quick before it’s going out sometimes. Maybe as if
it had a short.” It struck him as “clearly defective.” The right stoplamp light was
steady. The officers decided to pull over defendant to advise him of the
apparently defective light, and to inquire whether he had arrest warrants or was on
parole. (Defendant admitted that Detective Wright advised him of a defective
taillamp.)
Answering Detective Wright’s questions, defendant said he did not have a driver’s
license and he was on parole. The officers asked for and received permission to
search defendant. They found four .40-caliber rounds of ammunition in
defendant’s pants pocket and arrested him; they then found a substance later
determined to be heroin in a leather jacket in the truck’s passenger compartment.
Defendant testified he had checked the rear lamps a day or two before and had
found no defects. Defendant's employer, Steven Ellerman, picked up the truck
from the location of the traffic stop after defendant’s arrest and drove it back to
Ellerman's place of business, followed for several miles by a coworker. The
coworker testified that he did not see any flickering in the rear lights.
Defense counsel argued that the officers’ claim of a flickering taillight was not
credible and the light was in good working order. In any event, according to
counsel, a flickering taillight would not violate Vehicle Code section 24603,
which merely requires vehicles to possess rear stoplamps that emit a red light
“plainly visible and understandable from a distance of 300 feet to the rear both
during normal sunlight and at nighttime . . . .” (Veh.Code, § 24603, subd. (e).)
Counsel noted that the Vehicle Code does not define the terms “defect,” “working
order,” and “good working order.” Thus, according to counsel, the officers did
not have a reasonable suspicion that defendant was violating any provision of the
Vehicle Code.
The trial court disagreed, ruling that the flickering taillight was an apparent defect
that authorized the officers to stop defendant’s vehicle.
Hernandez argues that trial counsel was ineffective for failing to raise before the trial
court the application of California Vehicle Code § 25251.5(c), which provides: “Any stoplamp
or supplemental stoplamp required or permitted by Section 24603 may be equipped so as to flash
not more than four times within the first four seconds after actuation by application of the
Case 2:06-cv-01106-JKS Document 41 Filed 09/26/08 Page 5 of 12
Strickland v. Washington, 466 U.S. 668, 687 (1984). 18
Id.
19
Id.; Hill v. Lockhart, 474 U.S. 52, 57 (1985). 20
466 U.S. at 689 (internal citations and quotation marks omitted).
21
MEMORANDUM DECISION
Hernandez v Yates, 2:06-cv-01106-JKS 6
brakes.” Trial counsel is criticized in two particulars: (1) a failure to cite § 25251.5(c) to the
trial court; and (2) failure to question the arresting officers concerning their observations as to the
number of times the stoplamp flickered during the specified four-second interval.
Under the Supreme Court standard in Strickland, to demonstrate ineffective assistance 18
of counsel, Petitioner must show both that his counsel's performance was deficient and that the
deficient performance prejudiced his defense. A deficient performance is one in which counsel
made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth
Amendment. Petitioner must show that defense counsel’s representation was not within the 19
range of competence demanded of attorneys in criminal cases and that there is a reasonable
probability that, but for counsel’s ineffectiveness, the result would have been different.20
Strickland and its progeny do not mandate this court act as a “Monday morning quarterback” in
reviewing tactical decisions. Indeed, the Supreme Court admonished in Strickland,
21
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel’s assistance after conviction or
adverse sentence, and it is all too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable. A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.
There are countless ways to provide effective assistance in any given case. Even
the best criminal defense attorneys would not defend a particular client in the
same way.
In rejecting Hernandez’s claim on direct appeal, the California Court of Appeal held:
Case 2:06-cv-01106-JKS Document 41 Filed 09/26/08 Page 6 of 12
MEMORANDUM DECISION
Hernandez v Yates, 2:06-cv-01106-JKS 7
Defendant contends the trial court erred by denying his motion to suppress
because a Vehicle Code provision that trial counsel failed to cite showed
defendant’s “flickering” taillight was lawful. Alternatively, defendant contends
trial counsel provided ineffective assistance by failing to discover and cite this
provision. We reject both contentions.
In reviewing a trial court’s ruling denying a motion to suppress, all presumptions
are in favor of the trial court’s factual findings, whether express or implied, if
supported by substantial evidence. However, we decide independently whether
the officer’s conduct in performing the traffic stop and conducting the search was
constitutionally reasonable. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
To justify an investigative stop or detention, an officer must have specific and
articulable facts causing him to entertain a reasonably objective suspicion that
some activity relating to crime has occurred or is about to occur and the person to
be detained is involved in that activity. (People v. Aldridge (1984) 35 Cal.3d 473,
478.) The reasonable suspicion standard applies to vehicle stops. (People v.
White (2003) 107 Cal.App.4th 636, 641;U.S. v. Lopez-Soto (9th Cir.2000) 205
F.3d 1101, 1104.) Thus, a reasonable suspicion that a driver is violating the
Vehicle Code justifies an investigative traffic stop. (Veh.Code, § 2806; In re
Justin K. (2002) 98 Cal.App.4th 695, 700 (Justin K.).)
It is immaterial that the officers relied on the wrong Vehicle Code section, so long
as their suspicions of a Vehicle Code violation were objectively reasonable.
(Justin K., supra, 98 Cal.App.4th at p. 700.) However, if an officer makes a stop
based on objective facts that could not constitute a violation, the officer’s
suspicions cannot be considered reasonable. (Ibid.)
Defendant asserts that in light of Vehicle Code section 25251.5, subdivision (c)
(hereafter Veh.Code, § 25251.5(c)), the officers’ account proves they observed
nothing illegal. Section 25251.5(c) provides: “Any stoplamp or supplemental
stoplamp required or permitted by Section 24603 may be equipped so as to flash
not more than four times within the first four seconds after actuation by
application of the brakes.” According to defendant, the flickering of his taillight
as observed by the officers constituted “flash [ing]” within the meaning of section
25251.5(c), because they did not testify that they saw his taillight “flickering” or
“flashing” more than four times in four seconds. Furthermore, the officers must
have been unaware of this provision, as they did not mention it in their testimony.
Thus, in defendant’s view, the officers stopped him under a mistake of law after
having observed only legal activity. Because they lacked objectively reasonable
suspicion of a Vehicle Code violation, the traffic stop was unlawful.
We may not consider defendant’s argument directly because he did not raise it in
the trial court. On a motion to suppress evidence, the defendant must state the
grounds for suppression with appropriate specificity. (Pen.Code, § 1538.5, subd.
Case 2:06-cv-01106-JKS Document 41 Filed 09/26/08 Page 7 of 12
MEMORANDUM DECISION
Hernandez v Yates, 2:06-cv-01106-JKS 8
(a)(2); People v. Williams (1999) 20 Cal.4th 119, 130-131(Williams).) He may
not raise a new ground for suppression on appeal. (Williams, at p. 131.) And
because defendant had the burden to show why the evidence was illegally
obtained, we may not find the trial court erred by failing to consider an argument
that was not made.
Anticipating our conclusion, defendant argues in the alternative that by failing to
cite Vehicle Code section 25251.5(c), trial counsel provided ineffective
assistance.
“ ‘[I]n order to demonstrate ineffective assistance of counsel, a defendant must
first show counsel’s performance was “deficient” because his “representation fell
below an objective standard of reasonableness . . . under prevailing professional
norms.” (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed .2d
674, 693-694, 104 S.Ct. 2052]; Ledesma, supra, 43 Cal.3d at pp. 215-216.)
Second, he must also show prejudice flowing from counsel’s performance or lack
thereof. (Strickland, supra, at pp. 691-692 [80 L.Ed.2d at pp. 695-696]; Ledesma,
supra, at pp. 217-218.) Prejudice is shown when there is a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” (In re Sixto (1989) 48 Cal.3d
1247, 1257 [259 Cal .Rptr. 491, 774 P.2d 164]; Strickland, supra, at p. 694 [80
L.Ed.2d at pp. 697-698].)’ (People v. Jennings (1991) 53 Cal.3d 334, 357 [279
Cal.Rptr. 780, 807 P.2d 1009].)” (In re Avena (1996) 12 Cal.4th 694, 721
(Avena), followed in People v. Weaver (2001) 26 Cal.4th 876, 925 (Weaver ).) If
the record discloses that counsel was asked to explain the tactical purpose of his
conduct and failed, or that there simply could be no reasonable tactical purpose
for counsel’s conduct, a claim of ineffective assistance is cognizable on direct
appeal. (See People v. Jones (2003) 29 Cal.4th 1229, 1254; Avena, supra, 12
Cal.4th at p. 722 .)
We are not persuaded that counsel’s performance was deficient. Moreover, even
assuming for argument’s sake that a competent attorney would have raised
Vehicle Code section 25251.5(c) as controlling authority, it is not reasonably
probable that defendant would have obtained a more favorable outcome. (See
People v. Williams (1988) 44 Cal.3d 883, 937.)
Defense counsel was only obliged to cite Vehicle Code section 25251.5(c) if the
statute applied. Section 25251.5 concerns the design and operation of vehicle
stoplamps. Stoplamps must ordinarily emit a steady glow. However, section FN3
25251.5 provides an exception for stoplamps that are “equipped” to flash if the
flash duration falls within prescribed parameters; such lamps may flash “not more
than four times within the first four seconds after actuation by application of the
brakes.” (§ 25251.5(c).) As described in the record, the stoplamp here at issue
does not fall within the terms of the section. While section 25251.5(c) refers to a
Case 2:06-cv-01106-JKS Document 41 Filed 09/26/08 Page 8 of 12
Stone v. Powell, 428 U.S. 465. 489–93 (1976).
22
Kimmelman v. Morrison, 477 U.S. 365, 380–81 (1986).
23
Id., 477 U.S. at 382. 24
MEMORANDUM DECISION
Hernandez v Yates, 2:06-cv-01106-JKS 9
light that flashes within a prescribed interval, the officers described a light that
flickered, i.e., “burn[ed] unsteadily or fitfully.” (American Heritage Dict. (2d
college ed.1985) p. 513.) Moreover, it flickered not because it was “equipped” to
do so, but because it was defective, unlike the right stoplamp, which operated
properly. The officers testified that while the right stoplamp was steady, it
appeared that the left stoplamp was about to go out. “It was clearly defective.” It
flickered “on and off real quickly. Like a light bulb, an indoor bulb might flicker
real quick before it's going out . . . as if it had a short.”
Under federal motor vehicle safety standards, made applicable to the Vehicle FN3.
Code by section 26103, subdivision (b), vehicle lamps, except for signal lamps
and other specified exceptions, must be “wired to be steady-burning.” (49
C.F.R. § 571.108.)
Vehicle Code section 24252, subdivision (a) provides that “[a]ll lighting
equipment of a required type installed on a vehicle shall at all times be maintained
in good working order.” Vehicle Code section 25251.5(c) cannot plausibly be
read to legalize defective, flickering stoplamps that are about ready to go out, and
the trailing officers were not compelled to time the flickering before making a
stop to further investigate. The flickering and apparently defective condition of
the stoplamp constituted reasonable suspicion. Counsel was not ineffective for
failing to raise as a defense an inapplicable statute that would not have affected
the outcome of the motion to suppress.
As Hernandez acknowledges, where, as here, the state affords a defendant the opportunity
for a full and fair consideration of Fourth Amendment search and seizure claims, this Court is
precluded from reviewing those claims in a federal habeas proceeding. As Hernandez correctly 22
argues, however, the Supreme Court has carved out an exception to this rule: where, as here, an
ineffective assistance of counsel claim is based on the incompetence of counsel in litigating a
Fourth Amendment issue. In that case, the Court must not only weigh the merits of the Fourth
23
Amendment claim, it must apply the Strickland standard as well, which creates a more
significant hurdle. As the Supreme Court noted:24
As is obvious, Strickland’s standard, although by no means
insurmountable, is highly demanding. More importantly, it differs significantly
from the elements of proof applicable to a straightforward Fourth Amendment
Case 2:06-cv-01106-JKS Document 41 Filed 09/26/08 Page 9 of 12
See Jackson v. Virginia, 443 U.S. 307, 318–19 (1979) 25
28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, supra.
26
MEMORANDUM DECISION
Hernandez v Yates, 2:06-cv-01106-JKS 10
claim. Although a meritorious Fourth Amendment issue is necessary to the
success of a Sixth Amendment claim like respondent’s, a good Fourth
Amendment claim alone will not earn a prisoner federal habeas relief. Only those
habeas petitioners who can prove under Strickland that they have been denied a
fair trial by the gross incompetence of their attorneys will be granted the writ and
will be entitled to retrial without the challenged evidence.
The major portion of Hernandez’s argument is directed to the sufficiency of the evidence
to justify the stop, i.e., (1) there was no testimony that the arresting officers had witnessed the
stoplamp for four seconds or the number of times it “flickered” (limited observation); (2) there
was no evidence that the officers were aware of the applicable Vehicle Code section that
permitted flashing; (3) there was no evidence that the stoplamp did not comply with Vehicle
Code § 25251.5(c); and (4) the trial court and the majority of the Court of Appeals erroneously
accepted the testimony of the arresting officers as to the “flickering.” These arguments fall wide
of the mark and misconstrue the issue before this Court.
First, Hernandez misperceives the role of a federal court in a habeas proceeding
challenging a state-court conviction. This Court is precluded from either re-weighing the
evidence or assessing the credibility of witnesses. The role of this Court is to simply determine
whether there is any evidence, if accepted as credible by the trier of fact, sufficient to sustain the
result. That such evidence exists with respect to the denial of the suppression motion is clearly
25
established by the record in this case. Hernandez bears the burden of establishing by clear and
convincing evidence that the factual findings were erroneous; a burden Hernandez has failed to 26
carry.
Second, the issue before this Court is not whether the trial court correctly ruled on the
motion to suppress based upon the evidence presented. The issue before this Court is whether
counsel was ineffective in failing to bring Vehicle Code § 25251.1(c) to the attention of the court
and question the arresting officers concerning the elements of that section, and, if so, did that
failure prejudice Hernandez; i.e., had it been properly presented Hernandez would have received
a favorable decision. Hernandez fails on both prongs of the Strickland standard.
Case 2:06-cv-01106-JKS Document 41 Filed 09/26/08 Page 10 of 12
See, e.g., Williams v. Taylor, 529 U.S. at 393, 399; Mayfield v. Woodford, 270 F.3d 915, 927
27
(9th Cir. 2001) (en banc).
Strickland, 466 U.S. at 690–91.
28
Wiggins v. Smith, supra.
29
Schriro v. Landrigan, supra.
30
MEMORANDUM DECISION
Hernandez v Yates, 2:06-cv-01106-JKS 11
The Court agrees that counsel must conduct sufficient investigation and engage in
sufficient preparation to be able to present and explain the significance of all available evidence
that may plausibly exculpate a defendant. “[S]trategic choices made after thorough 27
investigation of law and facts relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on investigation.” In this 28
case, the only evidence was the testimony that no one, other than the arresting officers, noted any
“flickering” by the stoplamps. There is no evidence in the record that the stoplamps of the
vehicle Hernandez was operating “flashed” as permitted by § 25251.1(c). Trial counsel made an
obvious strategic decision to present the strongest, indeed, under the evidence, the only plausible,
defense—the stoplamps did not “flicker” as described by the arresting officers. Contrary to
Hernandez’s arguments, in the context of this proceeding, the issue is not whether there was no
evidence that the stoplamps did not comply with § 25251.5(c), the critical point is there was no
evidence that they did. In the absence of some evidence that the stoplamps fell within the scope
of § 25251.5(c) counsel was not deficient in failing to cite that section to the trial court. Nor, for
that matter, is there is any reasonable probability that citing § 25251.5(c) could have changed the
outcome at the suppression hearing.
This Court, as did the majority of the California Court of Appeal, must conclude that,
even if counsel erred, that error did not rise to the level of incompetence or have the prejudicial
effect of sufficient magnitude to satisfy the Strickland standard. Even if this Court were to agree
with the dissenting opinion, that would not suffice. As noted above, the test is not whether this
Court in a federal habeas proceeding believes the decision is incorrect, it must be must be
“objectively unreasonable,” a substantially higher threshold. The Court cannot say that the 29 30
decision of the California Court of Appeal was “contrary to, or involved an unreasonable
Case 2:06-cv-01106-JKS Document 41 Filed 09/26/08 Page 11 of 12
28 U.S.C. § 2254(d). 31
Lockyer–Williams–Schriro.
32
28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (a COA should be granted 33
where the applicant has made “a substantial showing of the denial of a constitutional right,” i.e., when
“reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to deserve encouragement to
proceed further” (internal quotation marks and citations omitted)).
MEMORANDUM DECISION
Hernandez v Yates, 2:06-cv-01106-JKS 12
application of, clearly established Federal law, as determined by the Supreme Court of the United
States” or was “based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” This Court cannot find that the decision of the 31
California Court of Appeal was more than incorrect or erroneous, but that its application of
clearly established law was objectively unreasonable. Hernandez is not entitled to relief. 32
V. CONCLUSION AND ORDER
Accordingly, because Hernandez is not entitled to relief under the ground asserted,
IT IS THEREFORE ORDERED THAT the Petition Under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the court declines to issue a Certificate of
Appealability. All federal constitutional issues were addressed by the California Court of 33
Appeal and deemed addressed by the California Supreme Court on petition for review, and no
reasonable jurist could find that those decisions were “objectively unreasonable.”
The Clerk of the Court shall enter final judgment accordingly.
Dated: September 26, 2008.
s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
United States District Judge
Case 2:06-cv-01106-JKS Document 41 Filed 09/26/08 Page 12 of 12 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-alnd-4_14-cv-00459/USCOURTS-alnd-4_14-cv-00459-0/pdf.json | 442 | Civil Rights Employment | 28:1331 Fed. Question: Employment Discrimination | IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
BILLY RAY IRVIN,
Plaintiff,
v.
GADSDEN STATE
COMMUNITY COLLEGE,
Defendant.
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Case No.: 4:14-cv-459-KOB
MEMORANDUM OPINION
This matter comes before the court on defendant Gadsden State Community College’s
“Motion for Summary Judgment,” (Doc. 17), and plaintiff Bill Ray Irvin’s “Motion to Strike
Material Presented in Defendant’s Motion for Summary Judgment,” (Doc. 25).
Irvin, a maintenance employee at Gadsden State, applied for a supervisor position in
Gadsden State’s maintenance department. Gadsden State awarded the position to another
maintenance employee, Cory Carter. Irvin alleges that Gadsden State did not award him the
position because he is disabled and in retaliation for asking for reasonable accommodations of
his job responsibilities under the Americans with Disabilities Act.
The court finds that Gadsden State had legitimate, non-discriminatory, non-pretextual
reasons for promoting Carter instead of Irvin and, thus, will grant Gadsden State’s motion for
summary judgment.
1
FILED
2015 Apr-24 AM 11:39
U.S. DISTRICT COURT
N.D. OF ALABAMA
Case 4:14-cv-00459-KOB Document 32 Filed 04/24/15 Page 1 of 24
I. Motion for Summary Judgment
A. Facts
The facts below, for purposes of summary judgment, are taken in the light most favorable
to Plaintiff Bill Ray Irvin. These facts may not be the true facts proved at trial.
1. Before April 16, 2012
Irvin injured his feet while in the Army when a tank grill door fell on and crushed Irvin’s
feet. Irvin eventually required surgery on his feet. Irvin also has gout and back problems and has
used a cane on an as-needed basis for more than 20 years. Additionally, Irvin has panic attacks.
Irvin earned two associate’s degrees from Harry M. Ayers State Technical College, a twoyear community college, in 1993 and 2004 respectively. Irvin also holds an ESCO universal
refrigeration certificate.
Irvin began working at Ayers Technical in 1993 in the maintenance department. Ayers
Technical eventually promoted Irvin to supervisor in the maintenance department. In 2000 or
2001, Irvin moved from the maintenance department to the bus repair shop at Ayers Technical. In
July 2003, Ayers Technical merged with Defendant Gadsden State Community College, another
two-year community college. Irvin moved to Gadsden State with other Ayers Technical staff.
Stewart Davis, Gadsden State’s Director of Maintenance and Grounds until 2012,
supervised Irvin from 2005 through 2011. Davis reports to Dr. Jim Prucnal. Dr. Prucnal has
served as the Dean of Financial and Administrative Services at Gadsden State since the late
1990s. Dr. Prucnal reports to the president of Gadsden State. Dr. Raymond Staats served as
president of Gadsden State in 2012.
On September 1, 2005, Gadsden State re-assigned Irvin to work in the maintenance
2
Case 4:14-cv-00459-KOB Document 32 Filed 04/24/15 Page 2 of 24
department as the sole maintenance technician at Gadsden State’s Valley Street campus. On
October 24, 2005, Irvin sent a letter to Dr. Prucnal, which discussed Irvin’s panic attacks. Dr.
Prucnal had known of Irvin’s panic attacks since 2005. Davis has also been aware of Irvin’s foot
problems, back problems, and panic attacks since he met Irvin in 2005. (Doc. 19-10, 20).
Irvin has received a salary increase and favorable employment evaluations from his
supervisors every year since 2005.
2. April 16, 2012
On April 16, 2012, Irvin came to work using a cane because of his disability. Davis saw
Irvin and called him into his office. Davis, at Dr. Prucnal’s direction, told Irvin “you know we
don’t have light duty and you need to go on home.” (Doc. 19-10, 21-22). Davis and Dr. Prucnal
thought a maintenance department policy existed that an employee had to be at full strength to
work. Irvin objected because he had never seen the policy. Davis and Irvin called Kimberly
Cobb, Director of Human Resources at Gadsden State. Cobb told Davis that Gadsden State did
not have a policy requiring its employees to be at full strength to work. Davis acknowledged his
mistake and asked Irvin to return to work. However, Irvin “took the rest of the day off anyway
because [he] wanted to check his [ADA] packet.” (Doc. 19-12, 6).
Later that day, Irvin visited Cobb and reviewed his personnel file. “And there was nothing
in there [from Ayers Technical] about any of [his] disabilities or anything.” (Doc. 19-12, 6). Irvin
then went to the Ayers campus to see if Ayers Technical transferred his personnel file when the
two colleges merged in 2005. Irvin spoke with the records keeper at the Ayers campus, who
confirmed that Ayers Technical transferred Irvin’s file to Cobb when the two colleges merged.
3
Case 4:14-cv-00459-KOB Document 32 Filed 04/24/15 Page 3 of 24
3. Request for Accommodation
Irvin then asked Cobb what he should do about his missing disability paperwork. Cobb
told Irvin to file a Request for Accommodation with Gadsden State, which Irvin did on May 2,
2012. Irvin described his disability as “Panic characterized by shortness of breath, [increased]
anxiety, [increased] pulse, sense of impending doom, and withdrawal.” (Doc. 19-14, 24). On
May 3, 2012, Irvin filed another Request for Accommodation with Gadsden State. Irvin
described his additional disability as “Multiple torn disks in lower back causing pain in lower
back, legs, and feet.” (Doc. 19-15, 1). Irvin requested several accommodations.
Gadsden State formed a committee to reviewed the requests. Dr. Prucnal and Davis
considered the process of determining what accommodations to offer Irvin an “investigation.” On
June 27, 2012, Cobb; Danny Wilborn, the ADA Coordinator; and Michele Bradford, the Title IX
Coordinator and Director of Legal Affairs, evaluated Irvin’s requests. On July 9, 2012, Cobb
spoke with Davis regarding Irvin’s accommodations.
On July 12, 2012, Cobb discussed the accommodations with Irvin. Gadsden State agreed
to all of Irvin’s requests including the following accommodations: (1) Irvin did not have to work
above ground level outside until Gadsden State purchased a new 40-foot lift; (2) Irvin could use a
walking cane as needed; (3) Gadsden State purchased movable steps for Irvin to work above
ground level inside; and (4) Irvin could take sick leave when experiencing symptoms of panic
disorder. On July 16, 2012, Cobb memorialized the accommodations in a letter and Dr. Prucnal
and Davis received a copy of the letter.
4. Supervisor - Facility Maintenance I Position
In June, 2012, Dr. Staats asked the Chancellor of the Alabama Department of
4
Case 4:14-cv-00459-KOB Document 32 Filed 04/24/15 Page 4 of 24
Postsecondary Education to approve two reorganizations within the Gadsden State maintenance
department. First, Gadsden State asked to combine Davis’s position, Director of Facility
Maintenance, with the duties of the Director of Safety and Security and to rename the position
Director of Physical Plant. Second, Gadsden State asked to reassign the duties of coordinating
daily building maintenance and custodial services to an existing maintenance technician position
and to rename the position Supervisor - Facility Maintenance I. Gadsden State classified the
Supervisor - Facility Maintenance I position as a Salary Schedule E position. On July 19, 2012,
Gadsden State received approval to implement the reorganization.
On August 6, 2012, Gadsden State advertised the Supervisor - Facility Maintenance I
position and left the position posted internally for 14 days. On August 20, 2012, Gadsden State
stopped accepting application packets. Only Irvin and Cory Carter, another maintenance
technician, applied for the Supervisor - Facility Maintenance I position. Carter is not disabled.
Cobb certified that both Irvin and Carter met the minimum requirements for the position. Cobb
then set up interviews for Irvin and Carter with Davis and Dr. Prucnal.
On August 21, 2012, Dr. Prucnal and Davis each interviewed Irvin and Carter separately
for 15 minutes each. Irvin interviewed with Dr. Prucnal at 9:00 a.m. and with Davis at 9:15 a.m;
Carter interviewed with Dr. Prucnal at 9:15 a.m. and with Davis at 9:30 a.m. Dr. Prucnal told
Irvin to keep his responses brief and Irvin felt that Dr. Prucnal did not give him an opportunity to
discuss his accomplishments because of the brevity of the interview. Irvin saw Carter and Davis
talking in a conference room at 9:15 a.m. after he finished his interview with Dr. Prucnal. Dr.
Prucnal and Davis asked each candidate the same interview questions and both took detailed
notes. However, regarding one question Davis found Irvin answered incorrectly and Carter
5
Case 4:14-cv-00459-KOB Document 32 Filed 04/24/15 Page 5 of 24
answered correctly; Davis told Irvin “[w]ell me and Cory [Carter], the guy we used to work for
. . . used to ask people that [question] all the time. . . . Me and Cory [Carter] were the only two, I
think, that had worked for that particular guy.” (Doc. 19-12, 17).
Dr. Prucnal found that Carter performed better during the interview. Dr. Prucnal thought
“[Carter] had better qualifications” such as his HVAC contractor’s license and work as a
journeyman sheet metal worker. (Doc. 19-16, 29). Dr. Prucnal found these qualifications
important because “it tells me that [Carter is] able to complete a series of or parts of education
and then take exams and then do the work of a contractor, which involves a lot of diagnostics, a
lot of installations, a lot of design, recommendations, all of which he would face on the job. . . . I
consider that very valuable.” (Doc. 19-16, 30-31). Dr. Prucnal also thought “[Carter had] better
communication skills” because Carter “described projects in-depth. He described work
experiences, what he had accomplished in-depth. He discussed team leadership.” (Doc. 19-16,
29). In contrast, Irvin gave short, often one word answers. Finally, Dr. Prucnal thought “[Carter
had] a wide range of experience.” (Doc. 19-16, 29).
Davis also thought Carter the better candidate. Davis considered Carter a good manager
because Carter had served as an informal point of contact in Davis’s absence from the
maintenance department for several years. Davis also considered favorably that Carter had
overseen major projects for Gadsden State including the installation of a boiler system that
“saved probably six hundred thousand dollars.” (Doc. 19-10, 13). Further, Davis thought that
Irvin answered two technical interview questions incorrectly that Carter answered correctly.
Davis also believed Carter had a better rapport with the other maintenance technicians.
Dr. Prucnal and Davis discussed their separate interviews of Irvin and Carter immediately
6
Case 4:14-cv-00459-KOB Document 32 Filed 04/24/15 Page 6 of 24
after the interviews and agreed to recommend Carter to Dr. Staats for the Supervisor - Facility
Maintenance I position. Dr. Staats stated in a July 16, 2012 email that he planned to interview the
applicants for the position, but ultimately he did not interview anyone. Instead, on August 23, Dr.
Staats chose Carter for the Supervisor - Facility Maintenance I position and Cobb notified Carter
and Irvin.
5. Hiring Polices
Gadsden State has polices against unlawful employment practices including ADA
discrimination.
The Uniform Guidelines For Compliance and Monitoring of Recruitment and Selection
of ACCS Institutions governs hiring by Gadsden State. The Uniform Guidelines contain “a
uniform procedure for the selection of faculty, administrative, and supervisory personnel on State
Salary Schedules B, C, and D.” (Doc. 19-16, 54). “The Chancellor [of the Alabama community
college system] also requires similar process to fill positions on Salary Schedule E.” (Doc. 19-16,
54 (emphasis added). The Uniform guidelines generally require Gadsden State to form a search
committee to rank candidates for Schedule B, C, and D positions. Gadsden State’s president is
required to interview the top three candidates from the search committee and choose the best
candidate for each Schedule B, C, and D position.
Generally, a search committee is also used by Gadsden State for Schedule E positions.
Supervisors generally interview candidates for Schedule E positions and submit a
recommendation to the president. The president generally does not interview for Schedule E
positions.
7
Case 4:14-cv-00459-KOB Document 32 Filed 04/24/15 Page 7 of 24
6. Litigation
On August 31, 2012, Irvin filed a grievance with Gadsden State. On October 18, 2012,
Irvin filed a Charge of Discrimination with the Equal Employment Opportunity Commission. In
its response to Irvin’s EEOC charge, Gadsden State said it selected Carter instead of Irvin
because “[b]ased on personal observation in the work environment, Mr. Carter was deemed to
have better leadership abilities, and communication and organization skills.” (Doc. 19-7, 5). On
March 14, 2014, Irvin filed his complaint. (Doc. 1). On January 20, 2015, Gadsden State moved
for summary judgment. (Doc. 17).
B. Standard of Review
Summary judgment is an integral part of the Federal Rules of Civil Procedure. Summary
judgment allows a trial court to decide cases when no genuine issues of material fact are present
and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56. When a
district court reviews a motion for summary judgment, it must determine two things: (1) whether
any genuine issues of material fact exist; and if not, (2) whether the moving party is entitled to
judgment as a matter of law. Id. at 56(c).
The moving party “always bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56).
Once the moving party meets its burden of showing the district court that no genuine
issues of material fact exist, the burden then shifts to the non-moving party “to demonstrate that
8
Case 4:14-cv-00459-KOB Document 32 Filed 04/24/15 Page 8 of 24
there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Disagreement between the parties is not
significant unless the disagreement presents a “genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986).
In responding to a motion for summary judgment, the non-moving party “must do more
than simply show that there is some metaphysical doubt as to the material fact.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party must “go
beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine
issue for trial.’” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)) (emphasis added). If the
evidence is “merely colorable, or is not significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 249–50 (citations omitted).
In reviewing the evidence submitted, the court must “view the evidence presented
through the prism of the substantive evidentiary burden,” to determine whether the nonmoving
party presented sufficient evidence on which a jury could reasonably find for the nonmoving
party. Anderson, 477 U.S. at 254. The court must refrain from weighing the evidence and making
credibility determinations, because these decisions fall to the province of the jury. Id. at 255.
Furthermore, all evidence and inferences drawn from the underlying facts must be viewed
in the light most favorable to the non-moving party. See Graham v. State Farm Mut. Ins. Co.,
193 F.3d 1274,1282 (11th Cir. 1999). The nonmoving party “need not be given the benefit of
every inference but only of every reasonable inference.” Id. The evidence of the non-moving
party “is to be believed and all justifiable inferences are to be drawn in [its] favor.” Anderson,
9
Case 4:14-cv-00459-KOB Document 32 Filed 04/24/15 Page 9 of 24
477 U.S. at 255. After both parties have addressed the motion for summary judgment, the court
must grant the motion only if no genuine issues of material fact exist and if the moving party is
entitled to judgment as a matter of law. See Fed. R. Civ. P. 56.
C. Analysis
Irvin sued Gadsden State under the ADA and the Rehabilitation Act.1
Irvin claims that
Gadsden State discriminated against him because of his disability by failing to promote Irvin to
the Supervisor - Facility Maintenance I position. Further, Irvin claims that Gadsden State
retaliated against him for requesting an accommodation under the ADA by failing to promote
him.
Retaliation and disability discrimination claims are analyzed under the McDonnell
Douglas burden shifting framework. See Cleveland v. Home Shopping Network, Inc., 369 F.3d
1189, 1193 (11th Cir. 2004); accord Collado v. United Parcel Serv., Co., 419 F.3d 1143, 1149
(11th Cir. 2005); see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The plaintiff
must first establish a prima facie case of retaliation or disability discrimination. See Cleveland,
369 F.3d at 1193. The defendant may then rebut the prima facie case by showing legitimate, nondiscriminatory reasons for the adverse employment action. Id. Finally, the plaintiff must show
that the defendant’s reasons are pretext. Id.
Irvin’s prima facie case of retaliation is discussed first. Irvin’s prima facie case of
disability discrimination is discussed second. Gadsden State’s legitimate, non-discriminatory
reasons for choosing Carter are discussed third. Irvin’s pretext arguments are discussed fourth.
1
“Cases decided under the Rehabilitation Act are precedent for cases under the ADA, and
vice-versa.” Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000); See 29 U.S.C. § 794(d). All
discussion of Irvin’s ADA claim also applies to his Rehabilitation Act claim.
10
Case 4:14-cv-00459-KOB Document 32 Filed 04/24/15 Page 10 of 24
1. Retaliation Prima Facie Case
“[T]o prove [a prima facie case for] an ADA retaliation claim, a plaintiff must show that:
(1) he engaged in conduct protected by the ADA; (2) he was subjected to an adverse employment
action at the time, or after the protected conduct took place; and (3) the defendant took an
adverse employment action against [him] because of [his] protected conduct.” Collado, 419 F.3d
at 1158 (internal quotation marks omitted). Gadsden State argues that Irvin fails to establish the
third element because Irvin’s statutorily protected conduct and adverse employment action
occurred too far apart in time.
“A plaintiff may prove causation by showing a close temporal proximity between the
statutorily-protected activity and the adverse employment action.” Bailey v. City of Huntsville,
517 Fed. App’x 857, 861 (11th Cir. 2013). “However, mere temporal proximity, without more,
must be very close to establish causation.” Id. (internal quotation marks omitted). Generally, “a
three-to-four month disparity is not considered sufficiently close under our precedent.” Id.
Conversely, a seven-week gap is not too long for close temporal proximity causation in an ADA
case. See Farley v. Nationwide Mutl. Ins. Co., 197 F. 3d 1322, 1337 (11th Cir. 1999); see Curtis
v. Broward Cnty., 292 Fed. App’x 882, 885 (11th Cir. 2008) (same).
The period of time for close temporal proximity causation is measured from the first date
an employer is aware of the statutorily protected conduct. See Adams v. City of Montgomery, 569
Fed. App’x 769, 773 (11th Cir. 2014) (date employer became aware of employees’ filing of
EEOC charge begins period of time for close temporal proximity causation analysis); see Farley,
197 F. 3d at 1337 (same); see Jiles v. United Parcel Serv., Inc., 360 F. App'x 61, 66 (11th Cir.
2010) (filing of race discrimination grievance with employer begins period of time for close
11
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temporal proximity causation analysis and intervening “series of events” irrelevant); see Thomas
v. Cooper Lighting, Inc., 506 F. 3d 1361, 1361 (11th Cir. 2007) (presenting written complaint of
sexual harassment to HR begins period of time for close temporal proximity causation analysis);
see Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) (attorney sending formal complaint
letter to state agency begins period of time for close temporal proximity causation analysis); see
Lowe v. Cardinal Health, Inc., --- F. Supp. 3d ---, 2014 WL 5148455, at *8 (N.D. Ala. Oct. 14,
2014) (reporting supervisor’s misconduct to employer begins period of time for close temporal
proximity causation analysis).
However, “temporal proximity alone is insufficient to create a genuine issue of fact as to
a causal connection when there is unrebutted evidence that the decision maker did not have
knowledge that the employee engaged in protected conduct.” Brungart v. BellSouth Telecomm.,
Inc., 231 F. 3d 791, 799 (11th Cir. 2000); see Higdon, 393 F. 3d at 1220 (applying rule to ADA
context). Knowledge of the protected expression cannot be “imputed” to the decision maker
based on the knowledge of colleagues, but can be based on circumstantial evidence. See
Brungart, 231 F. 3d at 799-800.
Here, Davis and Dr. Prucnal have known about Irvin’s disability since 2005 when Irvin
moved to Gadsden State from Ayers Technical. Davis and Dr. Prucnal mistakenly tried to send
Irvin home because of his disability on April 16, 2012. Later that day, Irvin and Cobb discussed
how Irvin could file a Request for Accommodation and Irvin filed requests with Gadsden State
on May 2, 2012 and May 3, 2012. On July 9, 2012, Cobb spoke to Davis about Irvin’s Requests
for Accommodations and on July 16, 2012, Davis and Dr. Prucnal received a letter from Cobb
outlining Irvin’s accommodations. Dr. Staats chose Carter instead of Irvin for the Supervisor -
12
Case 4:14-cv-00459-KOB Document 32 Filed 04/24/15 Page 12 of 24
Facility Maintenance I position, based on Davis and Dr. Prucnal’s recommendation, on August
23, 2012.
Irvin’s statutorily protected conduct for purposes of his retaliation claim is not his
notification to Davis and Dr. Prucnal of his disability, which occurred in 2005. Rather, Irvin’s
statutorily protected conduct is notification to Davis and Dr. Prucnal of his Requests for
Accommodations. See Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 191 (3d Cir. 2003)
(“The right to request an accommodation in good faith is no less a guarantee under the ADA than
the right to file a complaint with the EEOC.”).
Davis and Dr. Prucnal, the decision makers, did not know about Irvin’s requests until July
9, 2012 at the earliest. One month and 14 days elapsed between notice of the statutorily protected
conduct and the adverse employment action. This six-to-seven week gap is sufficient to establish
causation based on close temporal proximity. See Farley, 197 F. 3d at 1337.
Thus, Irvin has established a prima facie case of retaliation.
2. Disability Discrimination Prima Facie Case
“Under this [McDonnell Douglas] burden-shifting analysis, [the plaintiff has] the initial
burden of establishing a prima facie case of disability discrimination.” Cleveland, 369 F.3d at
1193. “To establish a prima facie case of ADA discrimination, [the plaintiff has] to show (1) a
disability, (2) that [he] was otherwise qualified to perform the job, and (3) that [he] was
discriminated against based upon the disability.” Id. Gadsden State argues that Irvin failed to
establish the third element of his prima facie case because Irvin’s notification to Gadsden State
of his disability and the adverse employment action are too far apart in time. (Doc. 18, 24).
To establish the third element of his prima facie case, Irvin must establish that Gadsden
13
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State failed to promote Irvin because of his disabilities. Under the ADA, an employer may not
“discriminate against a qualified individual on the basis of disability in regard to . . .
advancement.” 42 U.S.C. § 12112(a). For purposes of Irvin’s prima facie case, this element is
satisfied by showing that Gadsden State awarded the position to a similarly situated employee
who did not have a disability.
2
Gadsden State promoted Carter instead of Irvin. Carter does not
have a disability, but does have similar qualifications to Irvin. Thus, Irvin satisfies the third
element of his prima facie case of ADA discrimination.
Gadsden State argues that Irvin fails to establish the third element because “[t]his is not a
‘close temporal proximity case.’” (Doc. 18, 24). However, close temporal proximity is not
required to prove causation on Irvin’s disability claim. Instead, Irvin can rely on comparator
analysis to establish his prima facie case.
3. Legitimate, Nondiscriminatory Reasons
“Once [the plaintiff] put[s] forth a prima facie case, which establishes a presumption of
discrimination, the burden then shift[s] to [the defendant] to articulate a legitimate,
non-discriminatory reason for [the adverse employment action].” Cleveland, 369 F.3d at 1193.
“[The defendant’s] burden of rebuttal is exceedingly light. . . . At this stage of the inquiry, the
defendant need not persuade the court that its proffered reasons are legitimate; the defendant’s
burden is merely one of production, not proof.” Gray v. City of Jacksonville, Fla., 492 Fed.
2Most Eleventh Circuit cases discuss the third element of an ADA disability
discrimination claim in the context of an employer’s failure to provide reasonable
accommodations to an employee. E.g. Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1263
(11th Cir. 2007). Here, however, Irvin does not allege that Gadsden State failed to provide
accommodations. Instead, Irvin alleges that Davis and Dr. Prucnal chose Carter instead of Irvin
for the Supervisor - Facility Maintenance I position because of Irvin’s disability, separate from
the reasonable accommodations provided to Irvin.
14
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App’x 1, 7 (11th Cir. 2012). “The role of this Court is to prevent unlawful hiring practices, not to
act as a super personnel department that second-guesses employers’ business judgments” and
“[t]his court does not sit in judgment over whether the defendants made the right employment
decision.” Id. at 7-8.
Because Irvin has established prima facie cases of retaliation and disability
discrimination, Gadsden State must proffer legitimate, non-discriminatory reasons for promoting
Carter instead of Irvin. Gadsden State proffers multiple reasons that Davis and Dr. Prucnal
recommended Irvin for the Supervisor - Facility Maintenance I position after Carter and Irvin’s
interviews.
First, Dr. Prucnal and Davis thought Carter had better qualifications than Irvin. Dr.
Prucnal thought Carter’s HVAC contractor’s license and work as a journeyman sheet metal
worker important because “it tells me that he’s able to complete a series of or parts of education
and then take exams and then do the work of a contractor which involves a lot of diagnostics, a
lot of installations, a lot of design, recommendations, all of which he would face on the job. . . . I
consider that very valuable.” (Doc. 19-16, 30-31). Davis thought that Irvin answered two
technical interview questions incorrectly that Carter correctly answered.
Second, Dr. Prucnal and Davis also thought Carter had better leadership qualities and
communication skills. During Dr. Prucnal’s interview, Carter “described projects in-depth. He
described work experiences, what he had accomplished in-depth. He discussed team leadership.”
(Doc. 19-16, 29). In contrast, “Mr. Irvin’s interview was short, in some cases one word answers,
and did not – there was no elaboration on any question that was asked.” (Doc. 19-16, 29). Davis
thought Carter had “better leadership qualities” and “a better rapport with employees.” (Doc. 19-
15
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10, 28).
Third, Dr. Prucnal and Davis also thought Carter had a better range of experience. Carter
served as a contact person in the maintenance department for the past ten years whenever Davis
was out. Carter had also overseen major projects for Gadsden State, such as installation of a new
boiler system that “saved probably six hundred thousand dollars.” (Doc. 19-10, 13). While Irvin
may have had similar experience, he did not mention it in his interview.
Gadsden State has proffered legitimate, non-discriminatory reasons for choosing Carter
and not choosing Irvin.
4. Pretext
“After the articulated reason [is] given, the inferential presumption of discrimination [is]
eliminated, the McDonnell Douglas framework disappear[s], and [the plaintiff is] left with the
ultimate burden of proving that [the defendant] intentionally discriminated against [the plaintiff]
because of [the plaintiff’s] disability.” Cleveland, 369 F.3d at 1193. “[T]o prove this intentional
discrimination, [the plaintiff is] allowed to show [the defendant’s] reason [is] unworthy of
credence and a pretext for discrimination.” Id. (internal quotation marks omitted).
Irvin argues that Gadsden State’s proffered reasons for choosing Carter and not choosing
Irvin for the Supervisor - Facility Maintenance I position are pretext. None of his arguments are
sufficient to establish pretext, however.
First, Irvin argues that Gadsden State’s failure to follow its internal hiring policies when
filling the Supervisor - Facility Maintenance I position indicates pretext.
“The mere fact that an employer failed to follow its own internal procedures does not
necessarily suggest that the employer was motivated by illegal discriminatory intent or that the
16
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substantive reasons given by the employer for its employment decision were pretextual.”
Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F. 3d 1344, 1350 (11th Cir. 2007); see
Mitchell v. USBI Co., 186 F.3d 1352, 1355-56 (11th Cir. 1999) (“Standing alone, deviation from
a company policy does not demonstrate discriminatory animus.”). However, “[a]n employer’s
violation of its own normal hiring procedure may be evidence of pretext . . . when an employer
disregards all but one of the factors and qualifications generally taken into consideration and
relies solely on a factor which is designed to create ‘leeway’ for the promotion of [certain]
people.” Adams v. Fulton County, Ga., 397 Fed. App’x 611, 613 (11th Cir. 2010) (emphasis
added).
Minor changes to internal procedures are generally not evidence of pretext. See Keaton v.
Cobb County, Ga., No. 08-11220, 2009 WL 212097, at *5 (11th Cir. Jan. 30, 2009) (finding
“minimal” deviation from procedure is not evidence of pretext). Further, exercising discretion in
following internal hiring guidelines is not evidence of pretext. See Walker v. Prudential Property
and Cas. Ins. Co., 286 F.3d 1270, 1273 (11th Cir. 2002) (finding discretionary choices by HR
personnel about whether to internally post a job opening is not evidence of pretext).
Even substantive changes to hiring procedures are generally not evidence of pretext. See
Adams, 397 Fed. App’x at 613 (finding adding a second round of interviews is not a sufficient
deviation from normal policy to show pretext when alteration did not create leeway to hire a
certain candidate); see Conner v. Lafarge North America, Inc., 343 Fed. App’x 537, 542 (11th
Cir. 2009) (finding consideration of matrix factors in addition to interviews is not evidence of
pretext even if employer exclusively used interviews to fill positions in the past); see Springer,
509 F.3d at 1346, 1350 (finding failure to post a job position internally for three days and pre17
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selecting candidate is not evidence of pretext); but see Hurlbert v. St. Mary’s Health Care
System, Inc., 439 F.3d 1286, 1299 (11th Cir. 2006) (finding that deviation from normal policy,
when employer sent separation notice six to twelve times later than normal, when coupled with
other evidence, establishes pretext).
Irvin alleges that Gadsden State deviated from its internal hiring procedures by failing to
follow the procedures in the Uniform Guidelines. Before hiring certain positions, the Uniform
Guidelines require interviews by a search committee and Gadsden State’s president. Here,
instead, Gadsden State required the only two candidates to interview with Davis and Dr. Prucnal,
who then recommended a candidate to Dr. Staats, who did not interview anyone.
However, as Gadsden State points out, the Uniform Guidelines do not apply to the
Supervisor - Facility Maintenance I position because the position is a Schedule E position. The
Uniform Guidelines are “a uniform procedure for the selection of faculty, administrative, and
supervisory personnel on State Salary Schedules B, C, and D.” (Doc. 19-16, 54). “The
Chancellor [of the Alabama community college system] also requires similar process to fill
positions on Salary Schedule E.” (Doc. 19-16, 54 (emphasis added). In the past, Gadsden State
has followed a procedure where Schedule E position candidates are interviewed by a search
committee and then the supervisor. Here, Gadsden State followed a procedure where Schedule E
position candidates were interviewed by two supervisors. The Uniform Guidelines do not require
Gadsden State to follow any exact procedure for Schedule E positions.
Further, even if Gadsden State substantivally deviated from the Uniform Guidelines,
those deviations are not evidence of pretext unless the deviations created “‘leeway’ for the
promotion of [certain] people.” Adams, 397 Fed. App’x at 613. For example, in Adams, the
18
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Eleventh Circuit found that an employer’s addition of a completely new step in the hiring
process, a second round of interviews with the allegedly discriminatory supervisor, did not show
pretext because the additional step did not cause the supervisor to “disregard[] any factors or
qualifications” of the candidates. Id.
Here, Gadsden State made minor deviations from its hiring policy at most. Gadsden State
did not add any additional steps to the hiring process and only changed the type of interviews it
generally required. Even if this change to Gadsden State’s hiring process was substantive, just
like in Adams the change does not matter because no evidence suggests that changing the type of
interviews caused Gadsden State to disregard any factors or qualifications in choosing Carter
over Irvin.
Further, Gadsden State’s process did not create leeway to hire Carter. Gadsden State used
a formal hiring process. Gadsden State developed minimum qualifications for the position and
collected application packets for two weeks. Cobb certified that only Irvin and Carter met the
minimum requirements. Both Irvin and Carter interviewed with the same Gadsden State officials
(Davis and Dr. Prucnal), interviewed for the same amount of time (15 minutes each), and
answered the same questions. Davis and Dr. Prucnal immediately conferred and unanimously
recommended Carter to Dr. Staats. No evidence exists that Gadsden State created leeway to
choose Carter.
Irvin argues that putting Davis and Dr. Prucnal in charge of the interview process instead
of a search committee tilts the playing field in Carter’s favor because Davis and Dr. Prucnal tried
to send Irvin home on April 16, 2012 and because Gadsden State recently accommodated Irvin.
However, Davis and Dr. Prucnal did not send Irvin home on April 16, 2012 and, instead, Irvin
19
Case 4:14-cv-00459-KOB Document 32 Filed 04/24/15 Page 19 of 24
left work voluntarily to check on the status of his ADA accommodations. Further, whether
Gadsden State recently accommodated Irvin’s disability cannot be evidence that Davis and Dr.
Prucnal harbored ill will toward Irvin because both fully cooperated with Irvin’s
accommodations.
In short, whether Gadsden State followed the Uniform Guidelines to the letter, or whether
they are even mandatory, is irrelevant.
Second, in addition to Gadsden State’s alleged deviation from internal guidelines, Irvin
argues that Gadsden State has, over time, shifted its reasons for choosing Carter instead of Irvin.
Gadsden State proffers multiple reasons it chose Carter over Irvin in its summary judgment brief.
(Doc. 18, 26-29). However, the only reason Gadsden State gave in its EEOC response for
choosing Carter was because “[b]ased on personal observation in the work environment, Mr.
Carter was deemed to have better leadership abilities, and communication and organization
skills.” (Doc. 19-7, 5). Irvin argues that the additional reasons proffered by Gadsden State in its
summary judgment brief are evidence of pretext.
“[A]n additional, but previously undisclosed, reason for an employment decision does not
itself establish pretext.” Turner v. Georgia Sec’y of State, 848 F. Supp. 2d 1361, 1376 (M.D. Ga.
2012) citing Tidwell v. Carter Products, 135 F.3d 1422, 1428 (11th Cir. 1998). Further, a later
elaboration or “explanation of a general reason is insufficient to show pretext.” Standard v.
A.B.E.L. Servs., Inc., 161 F.3d 1318, 1332 (11th Cir. 1998). However, discrepancies and
inconsistencies may establish pretext by casting doubt on the employer’s credibility. See
Chapman v. AI Transp., 229 F.3d 1012, 1058 (11th Cir. 2000).
Gadsden State has not shifted over time its rationale for choosing Carter. Although it only
20
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included one sentence in its EEOC response highlighting Carter’s superior leadership abilities,
communication skills, and organization skills, the other reasons proffered in its summary
judgment brief are not new or inconsistent. The multiple reasons in the summary judgment brief
are both elaborations on the EEOC response and are other reasons from the notes Davis and Dr.
Prucnal took directly after Irvin and Carter’s interviews and from Davis and Dr. Prucnal’s
deposition testimony. These additional reasons proffered by Gadsden State do not show pretext.
As a third basis for pretext, Irvin argues that the interview process was unfair. Irvin
suggests Dr. Prucnal did not give Irvin time to respond to questions during Irvin’s interview with
Dr. Prucnal. Irvin also suggests Carter may have known the answers to Davis’s questions before
the interview began.
“[P]oor interview performance [] can be as legitimate as any other reason.” Bass v. Bd. of
County Comm’rs, 256 F.3d 1095, 1105 (11th Cir. 2001). “This is because traits such as common
sense, good judgment, originality, ambition, loyalty, and tact often must be assessed primarily in
a subjective fashion.” Id. at 1106 (internal quotation marks omitted). In Chapman, the Eleventh
Circuit found that an interviewer’s conclusion that a candidate was not the best suited for the
position was supported by a “reasonably specific factual basis,” because the interviewer noted
that the candidate provided inarticulate answers and was unable to communicate his answers
concisely as the job would require. 229 F.3d at 1034-35.
Here, Carter and Irvin each had 15 minutes to convince Davis and Dr. Prucnal that they
were the best candidate. Irvin complains that Dr. Prucnal instructed Irvin to keep his answers
brief and did not ask Irvin follow up questions about his experiences. However, Carter and Irvin
received the same amount of time to interview and no evidence exists that Dr. Prucnal or Davis
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followed a different procedure when interviewing Carter. Carter took advantage of his time while
Irvin did not.
Further, Irvin’s suggestion that Davis may have given Carter the answers to the questions
Irvin answered incorrectly because Irvin saw Davis and Carter together before the interview is
not supported by evidence. Davis and Carter work together daily and just because Irvin saw
Davis and Carter together before their interview, even in the light most favorable to Irvin, proves
nothing. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)
(finding non-moving party “must do more than simply show that there is some metaphysical
doubt as to the material fact.”). No evidence indicates that Davis stacked the deck against Irvin
by supplying Carter with answers before the interview.
Fourth, Irvin argues that Gadsden State’s reasons are pretext because he had better
qualifications than Carter. Irvin held a formal maintenance supervisor position previously while
Carter had only been an informal “lead man” or point of communication for Davis in the
maintenance department. Further, Irvin received excellent performance reviews.
“In the context of a promotion ‘[a] plaintiff cannot prove pretext by simply arguing or
even by showing that he was better qualified than the [person] who received the position he
coveted.’” Springer, 509 F.3d at 1349. “[A] plaintiff must show that the disparities between the
successful applicant’s and his own qualifications were ‘of such weight and significance that no
reasonable person, in the exercise of impartial judgment, could have chosen the candidate
selected over the plaintiff.’” Id. “It is not the Court’s place to question the wisdom of the panel
members who scored an applicant with less experience higher than an applicant with more
experience.” Robinson v. Orange County, Fla., No. 6:05-CV-717-ORL-31DAB, 2006 WL
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1678967, at *31 n.33 (M.D. Fla. June 16, 2008).
Here, Irvin’s qualifications are not overwhelmingly better than Carter’s qualifications
such that no reasonable person would have chosen Carter. Whether Irvin had more formal
supervisory experience than Carter is irrelevant when Carter interviewed better than Irvin and
when Carter had other credentials that Dr. Prucnal and Davis considered valuable, such as
Carter’s HVAC certification.
D. Summary
In summary, Irvin has shown a prima facie case of retaliation and disability
discrimination. However, Irvin fails to show that Gadsden State’s legitimate, non-discriminatory
reasons for choosing Carter instead of him are pretext for discrimination. Thus, the court will
grant Gadsden State’s motion for summary judgment.
II. Motion to Strike
Irvin asks the court to strike one footnote of Gadsden State’s brief and related evidentiary
material. According to Irvin, Gadsden State cites inadmissible hearsay related to instructions
Cobb received about the procedures to use to fill the Supervisor - Facility Maintenance I position
and whether the procedure Gadsden State used to fill the position was correct under the Uniform
Guidelines.
Whether to grant a motion to strike is an evidentiary ruling within the court’s discretion.
See United States v. Stout, 667 F.2d 1347, 1353 (11th Cir. 1982) (“A trial court’s ruling as to the
materiality, relevancy or competency of testimony or exhibits will ordinarily not warrant reversal
unless constituting an abuse of discretion.” (internal citations omitted)).
Here, determination of Irvin’s motion to strike is unnecessary because, as discussed
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above, deviation from the Uniform Guidelines is not evidence of pretext. Springer, 509 F.3d at
1350. Further, the court does not rely on any of the evidence Irvin asks the court to strike and,
thus, the court need not consider this motion in determining whether to grant summary judgment
to Gadsden State. Put another way, it does not matter how the court rules on this motion. The
result is the same. Thus, the court will deny as moot Irvin’s motion to strike.
III. Conclusion
For the reasons explained above, the court GRANTS summary judgment for Gadsden
State. Further, the court DENIES AS MOOT Irvin’s motion to strike as resolution of the motion
to strike is irrelevant to the court’s determination.
DONE and ORDERED this 24th day of April, 2015.
____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
DANIEL STEVE DIXON,
Plaintiff, No. 2:10-cv-1441 GEB KJN P
vs.
S. LAROSA, et al.,
Defendants. ORDER
/
Plaintiff, a state prisoner, is proceeding without counsel or pro se, with a civil
rights action pursuant to 42 U.S.C. § 1983. By an order filed March 9, 2011, this court ordered
plaintiff to complete and return to the court, within thirty days, the two USM-285 forms which
are required to effect service on the defendants. On April 4, 2011, plaintiff submitted a notice of
submission of documents but no completed USM-285 forms.
On April 4, 2011, plaintiff also filed a request for public information in order to
serve defendants Gamez and Hodges Wilkins. (Dkt. No. 43.) However, service on defendant
Hodges Wilkins was returned executed and, on April 7, 2011, defendant Hodges Wilkins filed a
motion to dismiss. Accordingly, plaintiff’s request as to defendant Hodges Wilkins is denied.
With respect to defendant Gamez, service on defendant Gamez was returned unexecuted.
Defendant V. Gamez was not employed at Mule Creek State Prison, and was not listed in the
Case 2:10-cv-01441-TLN-KJN Document 49 Filed 05/18/11 Page 1 of 2
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locator database for the California Department of Corrections and Rehabilitation. (Dkt. No. 34.)
Plaintiff is advised that no court order is required to seek discovery of defendant V. Gamez’s
present location from other defendants who have appeared in this action, or to seek release of this
information through the California Public Records Act from the California Department of
Corrections and Rehabilitation. Thus, plaintiff’s motion is denied without prejudice. However,
plaintiff is cautioned that it appears from the notations provided by the U.S. Marshal on the
unexecuted return of service that defendant V. Gamez may no longer be employed with the
Department of Corrections.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff’s April 4, 2011 motion (dkt. no. 43) is denied without prejudice;
2. The Clerk of the Court is directed to send plaintiff one blank USM-285 form;
and
3. Within sixty days, plaintiff shall submit to the court the completed
USM-285 form required to effect service on defendant Gamez. Failure to return the completed
USM-285 form within the specified time period will result in a recommendation that defendant
Gamez be dismissed from this action.
DATED: May 16, 2011
_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
dixo1441.8f
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
JAMES WHITNEY,
Plaintiff,
v.
CLIFF ALLENBY, et al.,
Defendants.
No. 2:14-cv-2526 KJN P
ORDER
Plaintiff, a civil detainee proceeding without counsel, has filed a civil rights action
pursuant to 42 U.S.C. § 1983, together with a request to proceed in forma pauperis. Plaintiff is
housed at the Coalinga State Hospital. In his complaint, plaintiff alleges violations of his civil
rights by defendants. The alleged violations took place in Kern County, which is part of the
Fresno Division of the United States District Court for the Eastern District of California. See
Local Rule 120(d).
Pursuant to Local Rule 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. In light of
1996 amendments to 28 U.S.C. § 1915, this court will not rule on plaintiff’s request to proceed in
forma pauperis.
////
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Good cause appearing, IT IS HEREBY ORDERED that:
1. This court has not ruled on plaintiff’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: November 12, 2014
whit2526.22
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• FI LED
OHITBD S'l'ATES COURT OF APPEALS United States Court of Appeals
Tench Ci!'ruir
FOR THE TENTH CIRCUIT
FEB 2 2 1991
.ROBERT L. HOECKER
Clerk
ROBERT H. KETCHUM,
Plaintiff-Appellant,
v.
IDAHO SPRINGS POLICE
DEPARTMENT,
Defendant-Appellee.
)
)
)
) No. 90-1285
) (D.C. No. 90-F-1626)
) (D. Colorado)
)
)
)
)
ORDER DD JUDGNElff*
Before LOGAN, IIOORE, and BALDOCK, Circuit Judges.
IIOORE, Circuit Judge.
After examining the briefs and appellate record, this panel
has determined unanimously that oral argument would not materially
assist the determination of this appeal. See Fed. R. App. P.
*This order and judgment has no precedential value and shall not
be cited, or used by any court within the Tenth Circuit, except
for purposes of establishing the doctrines of the law of the case,
res judicata, or collateral estoppal. 10th Cir. R. 36.3.
Appellate Case: 90-1285 Document: 010110103844 Date Filed: 02/22/1991 Page: 1
34(a): 10th Cir. R. 34.1.9. The cause is therefore ordered
submitted without oral argument.
This is an appeal from the dismissal of a complaint filed
under 28 u.s.c. S 1983. Mr. Ketchum complains that he was
harassed by officers of the Idaho Springs Police Department. The
district court dismissed his claims for failure to state a claim
upon which relief can be granted. We affirm.
Keeping in mind that a prose complaint is held to a less
stringent standard than a complaint drafted by a lawyer,
Estelle v. Gamble, 429 U.S. 97, 106 (1976), we have reviewed Mr.
Ketchum's arguments to determine whether he could prove any set of
facts that would entitle him to relief. Conley v. Gibson, 355
U.S. 41, 45-46 (1957).
Mr. Ketchum alleges that he has been the victim of "an
endless conspiracy of police harassment from city to city," and
was threatened by Idaho Springs police officers "while waiting for
a ride to Denver one day." Even if we were to find that these
actions if accepted as true could give rise to constitutional
violations, an issue we do not reach, Mr. Ketchum fails to allege
any facts that could be construed as establishing a custom or
policy adopted by the Idaho Springs Police Department abridging
his constitutional rights. While he does pay lip service to this
requirement in his brief, he does not support this claim with any
facts. He also appears to allege some kind of due process
violation, but this claim is incomprehensible.
It is well established that to state a claim under S 1983 the
plaintiff must allege that the defendant has adopted an
-2-
Appellate Case: 90-1285 Document: 010110103844 Date Filed: 02/22/1991 Page: 2
unconstitutional custom or policy, and cannot state a claim for
relief under S 1983 by pointing to isolated incidents. Monell v.
Department of Social Servs., 436 U.S. 658, 694 (1978).
Furthermore, the Idaho Springs Police Department cannot be held
liable under S 1983 on a theory of respondeat superior. Id.
Because Mr. Ketchum fails to allege an unconstitutional
custom or practice, he also fails to establish the required causal
nexus between this established custom or policy and the particular
acts alleged. In Rizzo v. Goode, 423 U.S. 362 (1976), the Supreme
Court stated that a municipality cannot be held liable under
S 1983 for civil rights violations caused by individual police
officers unless the plaintiff can show an "affirmative link
between the occurrence of the various incidents of police
misconduct and the adoption of any plan or policy. showing
their [the municipal policymaker's] authorization or approval of
such misconduct." Id. at 371. As this court has stated
previously, "it is the obligation of the plaintiff to prove that
there exists a direct nexus between the constitutional
torts ... and the [policymaker's] authorization or approval
thereof . by the adoption of any plan or policy." D.T. by
M.T. v. Independent School Dist. No. 16, 894 F.2d 1176, 1187 (10th
Cir.), cert. denied, 111 S. Ct. 213 (1990).
In the present case, Mr. Ketchum fails to allege any facts
that could even suggest the Idaho Springs Police Department has
adopted a custom or policy that deprived him of a constitutional
right. Neither has he alleged a causal link between a policy
-3-
Appellate Case: 90-1285 Document: 010110103844 Date Filed: 02/22/1991 Page: 3
•
,, decision made by the Idaho Springs Police Department and the
purported abusive behavior of the individual policemen.
Therefore, on these grounds we AFFIRM the district court's
dismissal of Mr. Ketchum's claims under Fed. R. Civ. P. 12(b)(6).
The mandate sh.ill issue forthwith.
-4-
Entered for the Court
John P. Moore
Circuit Judge
Appellate Case: 90-1285 Document: 010110103844 Date Filed: 02/22/1991 Page: 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_16-cv-00548/USCOURTS-caed-2_16-cv-00548-2/pdf.json | 530 | Prisoner Petitions - Habeas Corpus | 28:2254 Petition for Writ of Habeas Corpus (State) | 1
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
RANDALL R. POWELL,
Petitioner,
v.
W.L. MONTGOMERY,
Respondent.
No. 2:16-cv-0548-MCE-EFB P
ORDER
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28
U.S.C. § 2254. On May 4, 2016, respondent filed a motion to dismiss on the ground that the
petition is barred by the statute of limitations. Petitioner has not filed an opposition or a
statement of no opposition to respondent’s motion to dismiss.
A responding party’s failure “to file written opposition or to file a statement of no
opposition may be deemed a waiver of any opposition to the granting of the motion and may
result in the imposition of sanctions.” L. R. 230(l). Failure to comply with any order or with the
Local Rules “may be grounds for imposition of any and all sanctions authorized by statute or
Rule or within the inherent power of the Court.” L. R. 110. The court may dismiss this action
with or without prejudice, as appropriate, if a party disobeys an order or the Local Rules. See
Ferdik v. Bonzelet, 963 F.2d 1258, 1263 (9th Cir. 1992) (district court did not abuse discretion in
dismissing pro se plaintiff’s complaint for failing to obey an order to re-file an amended
Case 2:16-cv-00548-MCE-EFB Document 24 Filed 06/09/16 Page 1 of 2
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complaint to comply with Federal Rules of Civil Procedure); Carey v. King, 856 F.2d 1439,
1440-41 (9th Cir. 1988) (dismissal for pro se plaintiff’s failure to comply with local rule
regarding notice of change of address affirmed).
Accordingly, it is hereby ORDERED that, within 21 days of the date of this order,
petitioner shall file either an opposition to the motion to dismiss or a statement of no opposition.
Failure to comply with this order will result in a recommendation that this action be dismissed
without prejudice.
Dated: June 9, 2016.
Case 2:16-cv-00548-MCE-EFB Document 24 Filed 06/09/16 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_08-cv-01877/USCOURTS-cand-3_08-cv-01877-1/pdf.json | 446 | Americans with Disabilities Act - Other | 42:12101 Americans w/ Disabilities Act (ADA) | Case 3:08-cv-01877-WHA Document 9 Filed 06/12/08 Page 1 of 2
U
NITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
IT IS SO ORDERED
Judge William Alsup
June 12, 2008.
Case 3:08-cv-01877-WHA Document 9 Filed 06/12/08 Page 2 of 2 |
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