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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-88-01659/USCOURTS-ca10-88-01659-0/pdf.json | [
[
"American Mining Congress",
"Amicus Curiae"
],
[
"Emery Mining Corporation",
"Petitioner"
],
[
"Federal Mine Safety and Health Review Commission",
"Respondent"
],
[
"Secretary of Labor",
"Respondent"
],
[
"United Mine Workers of America",
"Intervenor"
]
] | PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UTAH POWER & LIGHT COMPANY, Substituted)
for Emery Mining Corporation, )
)
Petitioner, )
)
FI LED
U!litcd Srntes 0:>Urt of Appeals
'teorh Ci ····,,,;t
FEB 2 G 1990
ROBERT L. HOECKER
Clerk
V • )
)
SECRETARY OF LABOR, FEDERAL MINE & )
Nos. 88-1655
&
88-1659
SAFETY. REVIEW COMMISSION, )
)
Respondents, )
) '
UNITED MINE WORKERS OF AMERICA, )
)
Intervenor, )
)
)
AMERICAN MINING CONGRESS, )
)
Amicus Curiae. )
ON PETITION FOR REVIEW OF AN ORDER
OF THE FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION
(Nos. West 86-126-~,
West 86-131-R,
West 86-140-R, and
West 86-141-R)
Submitted on the briefs:
John A. Macleod, Thomas C. Means, and Ellen B. Moran, Crowell &
Moring, Washington, D.C., for Petitioner.
George R. Salem, Solicitor of Labor, Edward P. Clair, Associate
Solicitor, Dennis D. Clark, Counsel, Appellate Litigation, and
Barry F. Wisor, Attorney, United States Department of Labor,
Arlington, Virginia, for Respondent.
Michael H. Holland, and Mary Lu Jordan, Washington, D.C., for
Intervenor.
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 1
Charles w. Newcom, and Susan K. Grebeldinger, Sherman & Howard,
Denver, Colorado, Edward M. Green, and Mark G. Ellis, American
Mining Congress, Washington, D.C., filed an Amicus Curiae Brief
for American Mining Congress.
Before TACHA, BALDOCK, and BRORBY, Circuit Judges.
PER CURIAM.
After examining the briefs and appellate record, this panel
has determined unanimously that oral argument would not materially
assist the determination of these appeals. See Fed. R. App. P.
34(a); 10th Cir. R. 34.1.9.
submitted without oral argument.
The cases are therefore ordered
These cases present two issues of first impression in this
circuit:
1. Whether walkaround rights established in§ 103(f)
of the Federal Mine Health and Safety Act of 1977 (Act),
30 u.s.c. § 813(f), extend to miners' representatives
who are not employees of the mine operator?
2. Whether a miners' representative seeking to
exercise walkaround rights under § 103(f) of the· Act
must first comply with the requirements of 30 C.F.R.,
Part 40?
The Federal Mine Safety and Health Review Commission (Commission)
answered the first question in the affirmative and the second in
the negative.
second.
We affirm on the first issue and reverse on the
2
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 2
On the morning of April 15, 1986, Vern Boston, a Mine Safety
and Health Administration (MSHA) inspector, arrived at the Deer
Creek Mine, an underground coal mine in Utah, to conduct an
inspection. Deer Creek Mine was owned by Utah Power & Light Co.
(.UPL} and operated by Emery Mining Corporation (Emery). Inspector
Boston was met at the gates of the mine by Tom Rabbitt, a member
of the International Health and Safety Department of the United
Mine Workers of America (UMWA), who introduced himself to the
inspector and asked to accompany him on the inspection.
Boston agreed that Rabbitt could accompany him on the
inspection, and he and Rabbitt entered the premises to get
clearance for Rabbitt. The mine manager, Earl White, met with
Rabbitt and told him he could enter the mine pursuant to the
collective bargaining agreement with the UMWA but for the fact
that he had not given the twenty-four hour advance notice re·quired
by Emery. Rabbitt then said he was seeking entrance under
§ 103(f) of the Act, which provides for walkaround rights. 1
1 Section 103(f) of the Act provides:
Participation of representatives of operators and
miners in inspections
Subject to regulations issued by the Secretary, a
representative of the operator and a representative
authorized by his miners shall be given an opportunity
to accompany the Secretary or his authorized
representative during the physical inspection of any
coal or other mine made pursuant to the provisions of
subsection (a) of this section, for the purpose of
aiding such inspection and to participate in
pre- or post-inspection conferences held at the mine.
Where there is no authorized miner representative, the
Secretary or his authorized representative shall consult
with a reasonable number of miners concerning matters of
health and safety in such mine. Such representative of
(Continued on next page.)
3
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 3
White, Rabbitt, and Boston discussed the scope of walkaround
rights under§ 103(f). White was of the opinion that since
Rabbitt was not an Emery employee, he had no walkaround rights
under the Act. Boston disagreed, saying that Rabbitt had
walka~ound rights because he was a member of the UMWA
International. Boston then wrote White a citation under § 104(a)
of the Act, 30 U.S.C. § 814(a), for violating§ 103(f). He gave
White ten minutes to abate the violation.
White, fearing that Boston might issue a withdrawal order if
White did not abate the violation, agreed to let Rabbitt
participate in the inspection, but said he must first sign a
hazard recognition and waiver of liability form that Emery
required nonemployees to sign before entering the mine. Rabbitt
refused to sign the form. Boston then called his supervisor, who
was not familiar with Emery's waiver form. Based on his belief
that a representative of the UMWA International had an unlimited
right of access to a mine under § 103(f), the supervisor
(Continued from previous page.)
miners who is also an employee of .the operator shall
suffer no loss of pay during the period of his
participation in the inspection made under this
subsection. To the extent that the Secretary or
authorized representative of the Secretary determines
that more than one representative from each party would
further aid the inspection, he can permit each party to
have an equal number of such additional representatives.
However, only one such representative of miners who is
an employee of the operator shall be entitled to suffer
no loss of pay during the period of such participation
under the provisions of this subsection. Compliance
with this subsection shall not be a jurisdictional
prerequisite to the enforcement of any provision of this
chapter.
4
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 4
instructed Boston to proceed with Rabbitt on the inspection.
Boston then informed White that his refusal to permit Rabbitt to
participate in the inspection unless Rabbitt signed a waiver of
liability was in violation of§ 103(f). Boston added a second
violation of§ 103(f) to the original citation.
Thereafter, White agreed to abate the alleged violation by
allowing Rabbitt to accompany the inspector without signing the
waiver of liability. The inspection party, consisting of Boston,
Rabbitt, Mark Larsen, a representative of miners from the safety
committee, and Terry Jordan and Dixon Peacock, representatives of
Emery, then proceeded underground.
On April 17, 1986, pursuant to § 105(d) of the Act,
30 u.s.c. § 815(d), Emery filed a notice of contest of the
citation issued April 15, 1986. Shortly thereafter, the UMWA
moved to intervene in the proceedings. On April 24, 1986, Emery's
contract with UPL was terminated and UPL took over the operation
of its mines, including the Deer Creek Mine. UPL subsequently
received three more citations from the MSHA for violations of
§ 103(f) ~imilar to Emery's. UPL filed a timely notice pf contest
with respect to each citation. The parties agreed to try the
citation issued to Emery and to have the administrative law
judge's (ALJ) ruling on that citation control the disposition of
the three citations issued to UPL.
The ALJ held an evidentiary hearing on May 14 and 15, 1986.
The issues before him were the two under consideration in this
appeal, as well as a third, concerning whether an operator can
require a nonemployee representative of miners to sign a waiver of
5
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 5
liability before exercising walkaround rights. On August 7, 1986,
the ALJ ruled against Emery on all three issues. Emery Mining
Corp., 8 F.M.S.H.R.C. 1192 (1986).
Thereafter, the Commission granted discretionary review of
the ALJ's decision-.pursuant to 30 u.s.c. § 823(d)(2)(A)(i). After
briefing and oral arguments, the Commission issued its decision on
Emery's citation on March 29, 1988. Emery Mining Corp., 10
F.M.S.H.R.C. 276 (1988). The Commission also issued a
consolidated summary opinion on UPL's three citations the same
day. Utah Power & Light Co., 10 F.M.S.H.R.C. 302 (1988). The
Commission affirmed the ALJ on the first two issues and reversed
him on the third issue concerning the waiver of liability.
Emery and UPL petitioned this court for review of the
Commission's decisions pursuant to § 106(a) of the Act,
30 u.s.c. § 816(a). They challenge the Commission's rulings with
respect to nonemployee walkaround rights and compliance with the
requirements of 30 C.F.R., Part 40. We consolidated the petitions
under the caption Utah Power & Light Co. v. Secretary of Labor.
Since UPL has been substituted for Emery on appeal, we will refer
to the arguments of UPL hereinafter.
I.
We first address UPL's contention that § 103(f) walkaround
rights do not extend to nonemployee representatives of miners. In
reviewing the interpretation of§ 103(f) asserted by the Secretary
of Labor (Secretary) and the Commission, we are mindful of the
6
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 6
United States Supreme Court's directions in Chevron, U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
When a court reviews an agency's construction of
the statute which it administers, it is confronted with
two questions. First, always, is the question whether
Congress has directly spoken to the precise question at
.issue. If the intent of Congress is clear, that is the
end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent
of Congress. If, however, the court determines Congress
has not directly addressed the precise question at
issue, the court does not simply impose its own
construction on the statute, as would be necessary in
the absence of an aoministrative interpretation.
Rather, if the statute is silent or ambiguous with
respect to the specific issue, the question for the
court is whether the agency's answer is based on a
permissible construction of the statute.
Id. at 842-43 (footnotes omitted).
We have held that an agency's interpretation of a statute
entrusted to that agency for administration should be accepted if
it is a reasonable one, even if another interpretation may exist
that is equally reasonable. Jones v. Federal Deposit Ins. Corp.,
748 F.2d 1400, 1405 (10th Cir. 1984); Brennan v. Occupational
Safety and Health Comm'n, 513 F.2d 553, 554 (10th Cir. 1975),
Congress did not speak to the precise issue before us when it
drafted § 103(f) of the· Act. Nonetheless, we, like the
Commission, find the language of § 103(f) dispositive. See
Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102,
108 (1980)("[T]he starting point for interpreting a statute is the
language of the statute itself. Absent a clearly expressed
legislative intention to the contrary, that language must
ordinarily be regarded as conclusive."); Colorado Property
Acquisitions, Inc. v. United States, No. 87-2564, slip op. at 4
7
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 7
(10th Cir. Jan. 24, 1990)("When the meaning of a statute is clear
from its face, resort to rules of statutory construction or
legislative intent is unnecessary.").
The first sentence of § 103(f) provides that "a
representative authorized by [the operator's] miners shall be
given an opportunity to accompany the Secretary or his authorized
representative during the physical inspection of any coal or other
mine made pursuant to the provisions of subsection (a) of this
section." This sentence confers upon the miners the right to
authorize a representative for walkaround purposes without any
limitation on the employment status of the representative. See
Council of s. Mountains, Inc. v. Federal Mine Safety and Health
Review Comm'n, 751 F.2d 1418, 1421 n.18 (D.C. Cir. 1985)("The Mine
Act, however, merely refers
articulate any distinction
to 'repre~entatives' and does not
between the rights of employee and
nonemployee :r:epresentatives.").
The third sentence of § 103(f) provides that "[s]uch
representative of miners who is also an employee of the operator
shall suffer no loss of pay during the period of his participation
in the inspection ·made under this subsection." (Emphasis added.)
As noted by the Commission, "also" means "in addition," "as well,"
"besid.es," and "too." Emery Mining Corp., 10 F.M.S.H.R.C. at 284
(quoting Webster's Third Int'l Dictionary 62 (Unabridged ed.
1971)). Put in other words, the third sentence of§ 103(f) reads:
"A representative of miners who, in addition to being a
representative, is an employee of the operator shall suffer no
8
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 8
loss of pay during the period of his participation in the
inspection • II
By creating a subclass of representatives who are entitled to
compensation while exercising walkaround rights under § 103(f),
.Congress clearly recognized that some miners.' representatives may
be employees of the operator and some may not. Those who are
employees are entitled to compensation. Those who are not
employees may participate in the inspection, but are not entitled
to compensation from the operator under § 103(f) for their
participation.
UPL argues that the Commission ignored other reasonable
interpretations of the third sentence of§ 103(f). Specifically,
UPL contends that the third ,sentence represents a congressional
recognition that
there would be situations in which mine operators might
consent to walkarounds by non-employee representatives
of miners, or in which non-employee representatives had
contractual rights to enter upon mine property for the
purpose of accompanying inspectors. [Congress] simply
wanted to be clear that the compensation right under
§ 103(f) did not attach in those circumstances.
Brief of Petitioner Utah. Power & Light Co. at 19-20.
We are not persuaded by UPL's argument. UPL would have us
read a limitation into the statute that has no basis in the
statutory language. Furthermore, if a nonemployee representative
could exercise walkaround rights only if the operator so consented
or the parties' contractual rights so provided, and could not
exercise walkaround rights under§ 103(f), Congress would have no
reason to clarify that a nonemployee representative is not
entitled to compensation from the operator under§ 103(f).
9
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 9
UPL asserts that selected excerpts from the Act's legislative
history support its theory that Congress did not intend to extend
walkaround rights to nonemployee representatives. In particular,
UPL cites to a debate between Senator Javits, who was a sponsor of
the Senate bill that eventually became the Act, and Senator Helms.
See 123 Cong. Rec. 20,019-20 (1977).
While we agree with UPL that the Senators' debate focused on
the importance of miners participating in inspections of the mines
in which they work, 2 that focus is explained by the context of the
Senators' debate. Senator Helms had introduced an amendment that
would strike the third and fifth sentences of the present
§ 103(f), thereby deleting the provisions concerning compensation
for employee representatives. Senator Javits opposed the
amendment. See 123 Cong. Rec. 20,019 (1977). The two Senators,
therefore, were debating the merits of compensating employee
representatives. They were not concerned with whether
2 For instance,
participation in
essential in order
health problems
(1977).
Senator Javits remarked: "[G]reater miner
health and safety matters, we believe, is
to increase miner awareness of the safety and
in the mine " 123 Cong. Rec. 20,019
Senator Javits also said:
If miners are going to accompany inspectors, they are
going to learn a lot about mine safety, and that will be
helpful to other employees and to the mine operator.
In addition, if the worker is along he knows a lot
about the premises upon which he works and, therefore,
the inspection can be much more thorough. We want to
encourage that because we want to avoid, not incur,
accidents.
123 Cong. Rec. 20,020 (1977).
10
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 10
nonemployees, who would not be compensated by the operator, could
be miners' representatives for purposes of walkaround rights. 3
UPL also argues that the purposes of§ 103(f), which include
encouraging miners to participate in inspections and enhancing
miners' understanding and awareness of the health and safety
requirements of the Act, 4 will not be furthered by allowing
nonemployees to act as miners' representatives under§ 103(f). We
disagree. A congressional desire to increase miners' knowledge
about health and safety issues does not require the exclusion of
nonemployees as miners' representatives for walkaround purposes.
Miners may benefit in a number of ways from nonemployee
representatives participating in walkarounds. For instance, the
ALJ in this case found that Rabbitt had held virtually every job
in a coal mine and had received special t~aining in health and
safety matters, including seminars sponsored by the MSHA that are
given to federal inspectors. Furthermore, Rabbitt had
investigated "accidents, disasters, fires, and explosions'' in
various mines. Emery Mining Corp., 8 F.M.S.H.R.C. at 1186. These
findings. illustrate that a nonemployee representative may have
greater expertise in health and safety matters than an employee
representative.
3 Senator Helms, himself, appeared to recognize that a
representative of miners might not be an employee of the operator.
In arguing for the adoption of his amendment, the Senator said:
"As written, the act states that the representative of the miners,
if he 'is also an employee of the operator shall suffer no loss of
pay as a result of his participation in the inspection."' 123
Cong. Rec. 20,019 (1977) (emphasis added).
4 See S. Rep. No. 181, 95th Cong., 1st Sess. 28,
1977 U.S. Code Cong. & Admin. News 3401, 3428.
11
reprinted in
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 11
In addition, if a nonemployee representative has inspected
other mines, his knowledge of those mines may increase his ability
to spot problems and to suggest solutions in the mine under
consideration. Furthermore, a nonemployee representative is not
subject to the same pressures that can be exerted by an operator
on an employee representative. Therefore, the underlying purposes
of § 103(f), and the Act in general, can be furthered by allowing
both employees and nonemployees to act.as miners' representatives
for walkaround purposes.
UPL contends that statements in an interpretive bulleti~
issued by the Secretary in April of 1978 support its position that
walkaround rights were not intended to extend to nonemployee
representatives. 5 While isolated comments in the bulletin may
support, UPL's position, other comments support the present
position·of the Secretary, that walkaround rights do extend to
nonemployee representatives. The interpretive bulletin is
inconclusive on the issue before us. Neither the ·bulletin nor the
legislative history .convince us that the interpretation accorded
the statute by the agency is unreasonable or unsupportable.
Finally, UPL argues that permitting nonemployees to exercise
walkaround rights under § 103(f) impermissibly infringes on an
operator's property rights. UPL relies on a number of fourth
amendment cases which express the United States Supreme Court's
concern with the infringement of property rights by federal
inspections. In particular, UPL cites Donovan v. Dewey, 452 U.S.
594, 605 (1981), in which the Court held that warrantless
5 See 43 Fed. Reg. 17,546 (1978).
12
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 12
inspections of mines by federal inspectors under the Federal Mine
Safety and Health Act are not unreasonable.
UPL contends that although the Act ''establishes a predictable
and guided federal regulatory presence" so that "the operator of a
mine 'is not left. to wonder. about the purposes· .of the inspector or
the limits of his task,'" id. at 604 (quoting United States v.
Biswell, 406 U.S. 311, 316 (1972)), the same cannot be said of a
nonemployee miners' representative. UPL cautions that "[t]he Mine
Act presents an inherent temptation for abuse by non-employee
union representatives," and cites as an example a case in which
the UMWA acknowledged that "its designation of walkaround
representatives 'was made for purposes unrelated to the Act's
safety objectives and thereby constituted an inappropriate
exercise of the UMWA's de~ignatio_n right under § 103(f). '" Brief
of Petitioner Utah Power & Light Co. at 35 n.21 (quoting Nacco
Mining Co., 6 F.M.S.H.R.C. 2734, 2738 (1984)).
UPL's argument ignores the fact that, as with a federal
inspector, the Act clearly spells out the purpose of a miners'
representative's participation in an inspection. Section 103(f)
provides that an authorized miners' representative shall have the
opportunity to accompany a federal inspector during the inspection
0£ a mine "for the purpose of aiding such inspection." While we
recognize UPL's concern that walkaround rights may be abused by
nonemployee representatives, the potential for abuse does not
require a construction of the Act that would exclude nonemployee
representatives from exercising walkaround rights altogether. The
13
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 13
solution is for the operator to take action against individual
instances of abuse when it discovers them.
In sum, we conclude that the Secretary's and the Commission's
interpretation of the Act is both reasonable and supportable, and
we hold that miners may authorize nonemployees to act as their
representatives under§ 103(f) of the Act.
II.
The second issue we must address concerns the Commission's
holding that "an operator may not refuse a miner's (sic)
representative access to a mine for walkaround purposes solely
because the representative has not filed identifying information
under [30 C.F.R.,] Part 40." Emery Mining Corp., 10 F.M.S.H.R.C.
at 279.
The regulations set forth in 30 C.F.R., Part 40 provide as
follows:
S 40.1 Definitions.
As used in this Part 40:
(a) "Act" means the Federal Mine Safety and Health
Act of 1977.
(b) "Representative of miners" means:
(1) Any person or organization which represents
two or more miners at a coal or other mine for the
purposes of the Act, and
(2) "Representatives authorized by the miners",
"miners or their representative", "authorized miner
representative", and other similar terms as they appear
in the Act.
S 40.2 Requirements.
(a) A representative of miners shall file with the
Mine Safety and Health Administration District Manager
for the district in which the mine is located the
14
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 14
information required by
Concurrently, a copy of
provided to the operator.
representative of miners.
§ 40.3 of this part.
this information shall be
of the mine by the
(b} Miners or their representative organization
may appoint or designate different persons to represent
them under various sections of the act relating to
representatives of miners.
(-c) All information filed pursuant to this part
shall be maintained by the appropriate Mine Safety and
Health Administration District Office and shall be made
available for public inspection.
S 40.3 Filing procedures.
(a) The following information shall be filed by a
representative of miners with the appropriate District
Manager, with copies to· the operators of the affected
mines. This information shall be kept current:
(1) The name, address, and telephone number of the
representative of miners. If the representative is an
organization, the name, address, and telephone number of
the organization and the title of the official or
position, who is to serve as the representative and his
or her telephone number.
(2) The name and address of the operator of the
mine where the represented miners work and the name,
addre~s, and· Mine Safety and Health Administration
identification number, if known, of the mine.
(3) A copy of the document evidencing the
designation of the representative of miners.
(4) A statement that the person or position named
as the representative of miners is the representative
for all purposes of the Act; or if the representative's
authority is limited, a statement of the limitation.
(5) The names, addresses, and telephone numbers,
of any representative to serve in his absence.
(6) A statement that copies of all information
filed pursuant to this section have been delivered to
the operator of the affected mine, prior to or
concurrently with the filing of this statement.
(7) A statement certifying that all information
filed is true and correct followed by the signature of
the representative of miners.
- ( b) The representative of miners shall be
responsible for ensuring that the appropriate District
Manager and operator have received all of the
information required by this part and informing such
District Manager. and operator of any subsequent changes
in the information.
15
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 15
S 40.4 Posting at mine.
A copy of the information provided the operator
pursuant to§ 40.3 of this part shall be posted upon
receipt by the operator on the mine bulletin board and
maintained in a current status.
S 40.5 Termination of designation as representative of
miners.
(a) A representative of miners who becomes unable
to comply with the requirements of this part shall file
a statement with the appropriate District Manager
terminating his ·or her designation.
(b) The Mine Safety and Health Administration
shall terminate and remove from its files all
designations of representatives of miners which have
been terminated pursuant to paragraph (a) of this
section or which are not_ in compliance with the
requirements of this part. The Mine Safety and Health
Administration shall notify the operator of such
termination.
The Commission, in holding that Emery could not refuse
Rabbitt admission to the mine for walkatound purposes just because
neither he nor his position were listed on .the documents filed
with Emery pursuant to Part 40, 6 relied on its holding in
Consolidation Coal· Co., 3 F.M.S.H.R.C. 617 (1981), which it found
"to represent a sound interpretation of section 103(f) and to
accurately reflect the Secretary's clearly expressed intent in
promulgating his Part 40 regulations." Emery Mining Corp., 10
F.M.S.H.R.C. at 287.
6 The information submitted to Emery under Part 40 listed Frank
Fitzek as the selected representative of miners and listed
thirteen other people, including Mark Larsen, as selected multiple
representatives. In the space provided for listing the
organization, if any, with which the representative is associated,
the document listed the UMWA and reflected that Frank Fitzek,
safety chairman, was the representative associated with that
organization.
16
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 16
The "Secretary's clearly expressed intent" to which the
Commission referred, arose from the preamble to the final Part 40
regulations which stated in part: "However, it should be noted
that miners and.their representatives do not lose their statutory
rights under section 103(f) by their failure to file as
representatives of miners under this part.'' 43 Fed. Reg~ 29,508
(1978). The Secretary argues on appeal that the foregoing
language "is dispositive of the Secretary's intent in promulgating
the Part 40 regulations." Brief for the Secretary of Labor at 26.
In reviewing the Secretary's interpretation of the Part 40
regulations, we are mindful of two rules. First, an agency's
regulation "is entitled to deference unless it can be said not to
be a reasoned and supportable interpretation of the Act."
Whirlpool Corp. v. Marshall, 445 u.s~ 1, 11 (1980). Second, " ' a
regulation must be interpreted so as to harmonize with and further
and not to conflict with the objective of the statute it
implements.'" Emery Mining Corp. v. Secretary of Labor, 744 F.2d
1411, 1414 (10th Cir. 1984)(quoting Trustees of Ind. Univ. v.
United States, 618 F.2d 736, 739 (Ct. Cl. 1980)).
The Part 40 regulations themselves do not make any exception
for representatives of miners who desire to be authorized
representatives for § 103(f) purposes. The only place such an
exception is set forth is in the aforementioned preamble to the
regulations, which is not part of the regulations as published in
the Code of Federal Regulations. Neither the preamble nor the
Secretary's interpretive bulletin to which it refers, 7 cite any
7 43 Fed. Reg. 17,546 (1978). ' ., ... '
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 17
reasons for making an exception to the regulations for purposes .of
§ 103(f). Likewise, the Secretary, here, gives no explanation for
such an exception.
Section 103(f) of the Act provides that "[s]ubject to
regulations issued by the Secretary, ••• a representative
authorized by [the] miners shall be given the opportunity to
accompany the Secretary or his authorized representative during
the physical inspection of any coal or other mine." (Emphasis
added.) As both the Secretary and the Commission have
acknowledged, the Part 40 regulations were implemented pursuant to
the authority delegated to the Secretary in§ 103(f) of the Act.
See Brief for Secretary of Labor at 15-16; Emery Mining Corp., 10
F.M.S.H.R.C. at 285. On their face, the regulations apply to all
representatives of miners for all purposes under the Act. Thus,
the Secretary's interpretation of the regulations is at odds with
both the Act and the plain language of the regulations themselves.
Furthermore, valid reasons exist for requiring compliance
with the Part 40 regulations for§ 103(f) purposes. As Chairman
Ford pointed out in his dissent below, the information required to
be filed by Part 40 establishes the identity and bona fides of
each miners' representative, as well as the scope of his
authority. See Emery Mining Corp., 10 F.M.S.H.R.C. at 294-95; __
30 C.F.R. § 40.3. The information must be provided to both the
MSHA district manager and the operator of the affected mine. 30
C.F.R. § 40.3(a). The operator, in turn, is required to post a
copy of the information filed on the mine bulletin board, and to
keep the information current. Id. at§ 40.4.
18
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 18
The Secretary has explained the importance of posting the
Part 40 information on the mine bulletin board. as follows:
The posting of "Representative of Min~r'' information
will keep the miners abreast of who their.
representatives are, and for what purpose under the act
their representatives serve. This knowledge will better
acquaint the miner with MSHA's health and safety
programs which will further promote an awareness among
the miners of the importance of health and safety at the
mine.
43 Fed. Reg. 29,508, 29,509 (1978).
The Secretary and the Commission have stressed the importance
walkaround rights throughout this litigation, and the
legislative history of the Act reflects that Congress, too,
thought walkaround rights to be important in increasing miner
awareness and knowledge of health and safety ·conditions and
requirements. See s. Rep. No. 181, 95th Cong., 1st Sess. 28,
reprinted in 1977 U.S •. Code Cong. & Ad. News 3401, 3428; ·secretary
of Labor ex rel. 1Truex, 8 F.M.S.H.R.C. 1293,· 1299 (1986).
Every miner cannot participate in a federal inspection.
Therefore, § 103(f) provides that miners may authorize
representatives who will participate in the inspection on their
behalf. Pursuant to 30 C.F.R. § 40.l(b), any person or
organization who represents two or more miners is considered a
"miners' representative.''· The regulatory scheme contemplates that
the miners at a mine may have more than one representative for
walkaround purposes and may have different representatives for
other purposes under the Act. See id. at§ 40.2(b).
Under such a scheme, it is imperative that both the miners
and the operator know who the miners' representatives are and the
19
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 19
scope of their authority. As the Secretary has said, knowledge on
the part of the miners of the identity, whereabouts, and scope of
responsibility of their representatives promotes the purposes of
the Act. See 43 Fed. Reg. 29,508, 29,509 (1978). Allowing people
~o act .as representatives of miners unde~ § 103(f) does little to
further the purposes of the Act unless the miners know who their
§ 103(f) representatives are so that they may communicate with
them regarding health and safety issues related to the
inspections.
Furthermore, since a person need only represent two miners to
qualify as a "miners' representative," compliance with the
requirements of Part 40 is necessary to ensure that a person who
attempts to exercise walkaround rights on behalf of miners is in
fact ''authorized" by the miners to do so, as required by•§ 103(f)
of the Act.
In addition, the Secretary's interpretation of the Part 40
regulations places the operator in a precarious and untenable
position. If an operator cannot rely on the Part 40 information
to determine whether someone is an authorized representative of
miners for walkaround purposes, he has no settled criteria· by
which to judge an alleged representative's authority.
As the Secretary has recognized, an operator's refusal to
permit an authorized miners' representative to exercise the
walkaround rights provided in§ 103(f) is a violation of the Act
for which the operator is subject to a citation under§ 104 and a
civil penalty under § 105 of the Act. See 43 Fed. Reg. 17,546,
17,547 (1978). Furthermore, if the operator fails to abate the
20
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 20
violation of § 103(f), not only will it be subject to additional
civil penalties for each day of nonabatement, but the inspector
may issue a withdrawal order pursuant to§ 104(b) of the Act. See
43 Fed. Reg. 17,546, 17,547 (1978).
Thus, the consequences of an operator's refusal to permit an
authorized miners' representative to exercise walkaround rights
under§ 103(f) are quite severe. This severity requires that an
operator have a sure and settled method by which to determine who
is an authorized miners' representative for walkaround purposes.
Under the method adopted by the Commission in Consolidation
Coal Co., and reaffirmed below, whether an operator is justified
in denying a purported miners' representative walkaround rights
depends on the circumstances of the particular case. See
Consolidation Coal Co., 3 F.M.S.H.R.C. at 619. If the inspector
does not agree with the operator's determination that someone is
not an authorized miners' representative for§ 103(f) purposes, as
happened in the present case, the operator must risk the issuance
of a citation, the assessment of civil penalties, and the possible
closure of a portion of the mine before it can get a determination
from the Commission whether it was justified in refusing to allow
the purported representative to exercise walkaround rights. 8
8 In contrast, if an operator. refuses to allow a federal
inspector to inspect a mine, the inspector cannot gain immediate
access. Instead, the Secretary must bring a civil suit against
the operator to enjoin future refusals of admission. See
30 u.s.c. § 818(a)(l). Thus, the operator is furnished a forum
prior to the inspection in which "to show that a specific search
is outside the federal regulatory authority, or to seek from the
district court an order accommodating any unusual privacy
interests that the mineowner might have." Donovan, 452 U.S. at
605.
21
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 21
The interpretation of the Part 40 regulations asserted by the
Secretary and adopted.by the Commission is contrary to the plain
language of the regulations, fails to further the purposes of the
Act, and puts the operator in an untenable position. We therefore
reject the Secretary's interpretation and hold that the mandatory
requirements of the Part 40 regulations apply to miners'
representatives for § 103(f) purposes. Thus, a miners'
representative's failure to comply with the regulations entitles
an operator to refuse the representative access to the mine for
walkaround purposes. Our holding will not work a great hardship
on the miners since the requirements of Part 40 are
straightforward, and if a miners' representative fails to comply
with them and, therefore, cannot exercise walkaround rights, the
Act requires the federal inspector to "consult with a reasonable
number of miners concerning matters of health and safety in such
mine." 30 U.S.C. § 813(f).
In the present case, the parties do not dispute that on
April 15, 1986, Rabbitt was not listed as an authorized miners'
representative for walkaround purposes on the documents filed with
Emery pursuant to Part 40. Therefore, Emery.did not violate the
Act by refusing Rabbitt access to the mine for walkaround purposes
under§ 103(f).
22
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 22
The Corru:nission's
F.M.S.H.R.C. 276 (1988),
III.
decisions in _E_m_e_r..._y __ M_i_n_i_n_g..___c_o_r_p_. ,
and Utah Power & Light Co.,
10
10
F.M.S.H.R.C. 302 (1988), are AFFIRMED in part and REVERSED in
part. The.citations at issue in those cases are hereby VACATED.
23
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 23 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca4-07-04453/USCOURTS-ca4-07-04453-0/pdf.json | [
[
"Randall Eugene Hillian",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4453
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RANDALL EUGENE HILLIAN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:04-cr-00041-WLO)
Submitted: January 9, 2008 Decided: January 24, 2008
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ames C. Chamberlin, THE LAW OFFICES OF AMES C. CHAMBERLIN, PLLC,
Greensboro, North Carolina, for Appellant. Robert Albert Jamison
Lang, OFFICE OF THE UNITED STATES ATTORNEY, Winston-Salem, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
Appeal: 07-4453 Doc: 34 Filed: 01/24/2008 Pg: 1 of 4
- 2 -
PER CURIAM:
Randall Eugene Hillian appeals his sentence imposed
following this court’s remand for resentencing. See United
States v. Hillian, 210 F. App’x 251 (4th Cir. 2006) (unpublished).
Finding no error, we affirm.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting there are no meritorious
grounds for appeal, but questioning whether the sentence is
reasonable. In his pro se supplemental brief, Hillian joins his
counsel in arguing that the sentence is unreasonable. Hillian
additionally contends that 18 U.S.C. § 3553(a) (2000), as applied
to him, is unconstitutional. The Government elected not to file a
responding brief.
Initially, Hillian contends that his sentence is
unreasonable. However, the district court appropriately treated
the Sentencing Guidelines as advisory, properly calculated and
considered the advisory guideline range, and weighed the relevant
18 U.S.C. § 3553(a) factors. See United States v. Hughes, 401 F.3d
540, 546-47 (4th Cir. 2005). As Hillian’s applicable advisory
guideline range of 120 to 150 months was greater than the statutory
maximum of 120 months’ imprisonment, see 18 U.S.C. § 924(a)(2)
(2000), the court properly determined that the statutory maximum
was the advisory guideline sentence. See U.S. Sentencing
Guidelines Manual § 5G1.1(c)(1) (2003). Thus, Hillian’s 120-month
Appeal: 07-4453 Doc: 34 Filed: 01/24/2008 Pg: 2 of 4
- 3 -
sentence is presumptively reasonable. See United States v. Green,
436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006);
see also Rita v. United States, 127 S. Ct. 2456, 2462-65 (2007)
(approving presumption of reasonableness accorded sentences within
properly calculated guideline range).
Hillian additionally contends that § 3553(a), as applied
to him, is unconstitutional. He argues that “[t]his must be so,
because the factors lead to nothing more than a guideline
sentence.” However, the mere fact that Hillian received the
advisory guideline sentence does not render § 3553(a)
unconstitutional. Rather, it reflects that the district court
found the Sentencing Commission’s view of the appropriate
application of § 3553(a) factors suitable. Therefore, we discern
no basis in the record to conclude that the presumption of
reasonableness has been overcome.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm Hillian’s sentence. This court
requires that counsel inform his client, in writing, of his right
to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
Appeal: 07-4453 Doc: 34 Filed: 01/24/2008 Pg: 3 of 4
- 4 -
was served on the client. 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 in the
decisional process.
AFFIRMED
Appeal: 07-4453 Doc: 34 Filed: 01/24/2008 Pg: 4 of 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_13-cv-01357/USCOURTS-caed-1_13-cv-01357-5/pdf.json | [
[
"Abdul Alrowhany",
"Defendant"
],
[
"Mohammed Alrowhany",
"Defendant"
],
[
"Hifdhuulah A. Alrowhany",
"Defendant"
],
[
"Debra Anglin",
"Plaintiff"
],
[
"The Cell Phone Store",
"Defendant"
]
] | 1
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CENTER FOR DISABILITY ACCESS
MARK D. POTTER, ESQ., SBN 166317
PHYL GRACE, ESQ., SBN 171771
Mail: P.O. Box 262490
San Diego, CA 92196-2490
Deliveries: 9845 Erma Road, Suite 300
San Diego, CA 92131
Phone: (858) 375-7385
Fax: (888) 422-5191
[email protected]
Attorney for Plaintiff DEBRA ANGLIN
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DEBRA ANGLIN,
Plaintiff,
v.
HIFDHUULAH A. ALROWHANY;
ABDUL ALROWHANY, DBA THE CELL
PHONE STORE;
MOHAMMED ALROWHANY, DBA THE
CELL PHONE STORE; and Does 1-10,
Defendants.
)
)
)
)
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)
)
Case No.: 1:13-CV-01357-LJO-JLT
JOINT STIPULATION OF FACT
REGARDING DEFENDANTS’ FINANCIAL
WHEREWITHAL AND READILY
ACHIEVABLE BARRIER REMOVAL AND
[PROPOSED] ORDER THEREON
(Doc. 38)
JOINT STIPULATION
The following terms, phrases, and definitions will be applied in this stipulation and are
intended to conform to the usage given in the Americans with Disabilities Act Accessibility
Guidelines:
ADAAG: Americans with Disabilities Act Accessibility Guidelines found
at 28 C.F.R. Part 36.
ACCESSIBLE: Complying with the technical requirements of the ADAAG.
Case 1:13-cv-01357-LJO-JLT Document 39 Filed 04/07/15 Page 1 of 4
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SUBJECT PROPERTY: Strip mall located at or about 514 Finley Drive, Taft, California.
READILY ACHIEVABLE: Shall have the same definition as that found at 42 U.S.C. §
12181(9).
BARRIER: Any architectural or configuration element of the subject
property that does not comply with the technical provisions
found in the Americans With Disabilities Act Accessibility
Guidelines and/or Title 24 of the California Code of
Regulations, and which is identified in the Plaintiff’s complaint.
VAN ACCESSIBLE PARKING
SPACE: A striped and reserved handicap parking space that has a
separate access aisle measuring 96 inches in width.
PLAINTIFF DEBRA ANGLIN AND DEFENDANT HIFDHUULAH A. ALROWHANY,
BY AND THROUGH THEIR ATTORNEYS OF RECORD, HEREBY STIPULATE:
WHEREAS Plaintiff has propounded written discovery to assist him in determining the
ability of the Stipulating Defendants to undergo “readily achievable” barrier removal and to support
Plaintiff’s damages assessment; and
WHEREAS such discovery information is of a personal and confidential nature and,
therefore, the Stipulating Defendants have a legitimate concern about unnecessarily producing such
information;
The Plaintiff and the Stipulating Defendants enter into the following stipulation:
Plaintiff: Plaintiff will currently forbear from propounding any discovery that seeks information
concerning the financial status, ability, or wherewithal of the Stipulating Defendants. Plaintiff also
withdraws all discovery already propounded concerning this information.
Case 1:13-cv-01357-LJO-JLT Document 39 Filed 04/07/15 Page 2 of 4
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Stipulating Defendants: The Stipulating Defendants hereby declare that in determining whether the
removal of a BARRIER is READILY ACHIEVABLE, factors such as the (1) Stipulating Defendant’s
financial resources; (2) the facility’s financial resources; (3) the “effect on expenses and resources”;
and (4) impact on finances, shall NOT be raised by STIPULATING DEFENDANTS as a defense as
to why the Stipulating Defendant cannot remedy and/or remove those alleged BARRIERS.
Furthermore, Defendants hereby stipulate that it is READILY ACHIEVABLE for the defendants to
provide (1) a VAN ACCESSIBLE parking space; (2) an ACCESSIBLE path of travel into the stores
at the SUBJECT PROPERTY; (3) an ACCESSIBLE path of travel to the Boost Mobil store the
SUBJECT PROPERTY.
NOTE: Stipulating Defendants are not stipulating (A) liability to the Plaintiff; (B) that the above
identified barrier removals are required by law; or (C) that they are subject to the ADA or related state
disability access laws.
NOTE: The parties understand that the Plaintiff reserves his right to seek financial information in
support of a claim for punitive damages. However, Plaintiff will forbear from seeking that information
until Plaintiff believes that further discovery information warrants the prosecution of a punitive
damages claim against the Stipulating Defendants. Even if Plaintiff reaches a decision that a punitive
damages claim should be prosecuted, Plaintiff will, nonetheless, wait until the end of the discovery
window to request such information so as to allow maximum opportunity for resolution of the case.
IT IS SO STIPULATED.
Dated: March 10, 2015 CENTER FOR DISABILITY ACCESS
By: /s/ Isabel Masanque
ISABEL MASANQUE
Attorney for Plaintiff
Case 1:13-cv-01357-LJO-JLT Document 39 Filed 04/07/15 Page 3 of 4
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Dated: April 6, 2015 Lewis Brisbois Bisgaard & Smith LLP
By:/s/ Shane Singh
As authorized on 4/6/15 (original on file with counsel)
SHANE SINGH
Attorney for Defendants
ORDER
IT IS SO ORDERED.
Dated: April 7, 2015 /s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
Case 1:13-cv-01357-LJO-JLT Document 39 Filed 04/07/15 Page 4 of 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca5-09-10469/USCOURTS-ca5-09-10469-0/pdf.json | [
[
"United States of America",
"Appellee"
],
[
"Angel Zavala-Alonso",
"Appellant"
]
] | Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 09-10469
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGEL ZAVALA-ALONSO,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
No. 3:08-CR-237-1
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Angel Zavala-Alonso pleaded guilty of illegal reentry. He unsuccessfully
objected to the presentence report (“PSR”), arguing that a 16-level enhancement
United States Court of Appeals
Fifth Circuit
F I L E D
March 9, 2010
Charles R. Fulbruge III
Clerk
Case: 09-10469 Document: 00511045641 Page: 1 Date Filed: 03/09/2010
No. 09-10469
2
under U.S.S.G. § 2L1.2(b)(1)(A)(i) was improperly applied because “there ha[d]
been no showing with competent evidence that he was convicted of an offense
that qualifies as a drug trafficking offense.”
Zavala-Alonso contends in his initial brief that the documents available
to the district court were inadequate to demonstrate that he received at least one
sentence under California Health and Safety Code § 11351 or § 11351.5, each of
which he admits states a drug trafficking offense. See United States v. PalaciosQuinonez, 431 F.3d 471, 474 (5th Cir. 2005). Zavala-Alonso argues that the
court erred in determining that the California abstract of judgment and the
criminal information are sufficiently reliable competent evidence.
In his reply brief, however, Zavala-Alonso concedes that he was deported
after three qualifying drug trafficking offenses, his convictions under §§ 11351
and 11351.5. For the first time in his reply brief, he argues “that the record was
inconsistent regarding which statutory offenses produced a sentence . . . in excess of 13 months,” and he describes, as the critical issue on appeal, “which
counts of conviction produced a qualifying sentence” to support the 16-level enhancement. If Zavala-Alonso had been deported following a drug trafficking offense for which he was sentenced to 13 months or less, he would have received
a 12-level rather than 16-level enhancement. § 2L1.2(b)(1)(B).
We do not entertain arguments made for the first time in a reply brief
where the same issue has not been raised by the appellee. See United States v.
Ramirez, 557 F.3d 200, 203 (5th Cir. 2009). We note, moreover, that no evidence
presented to the district court indicates that Zavala-Alonso received a sentence
of 13 months or less for his three drug trafficking offenses. The PSR reported
two five-year sentences, at least one of which was for a drug trafficking offense,
and the abstract of conviction reflects concurrent sentences of five, four, and
three years, the four- and three-year sentences being imposed for a qualifying
drug trafficking crime. The judgment is AFFIRMED.
Case: 09-10469 Document: 00511045641 Page: 2 Date Filed: 03/09/2010 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ared-4_16-cv-00744/USCOURTS-ared-4_16-cv-00744-2/pdf.json | [
[
"Faulkner County Sheriff Office",
"Defendant"
],
[
"Scott Allen Taylor",
"Plaintiff"
]
] | IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
LITTLE ROCK DIVISION
SCOTT ALLEN TAYLOR, ADC #147779 PLAINTIFF
v. NO: 4:16CV00744 JLH
FAULKNER COUNTY SHERIFF OFFICE DEFENDANT
JUDGMENT
Pursuant to the order filed this date, judgment is entered dismissing this case without
prejudice; the relief sought is denied. The Court certifies that an in forma pauperis appeal is
considered frivolous and not in good faith.
DATED this 28th day of December, 2016.
__________________________________
UNITED STATES DISTRICT JUDGE
Case 4:16-cv-00744-JLH Document 8 Filed 12/28/16 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca11-14-10729/USCOURTS-ca11-14-10729-0/pdf.json | [
[
"Robinson Calixte",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10729
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cr-20683-DLG-1
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
versus
ROBINSON CALIXTE,
Defendant – Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 30, 2015)
Before TJOFLAT, WILSON and BLACK, Circuit Judges.
PER CURIAM:
USCA11 Case: 14-10729 Date Filed: 01/30/2015 Page: 1 of 4
2
Robinson Calixte appeals his convictions for possession of 15 or more
unauthorized access devices with intent to defraud, in violation of 18 U.S.C. §
1029(a)(3), and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1).
Calixte raises two issues on appeal. First, he argues the district court erred in
denying his motion to suppress the evidence obtained from the initial search of one
document on his flash drive because the search exceeded the scope of his consent.
Second, he contends the district court erred in denying his motion to suppress
evidence obtained from a subsequent forensic search because the 11-month delay
between the seizure of his flash drive and the application for a warrant rendered
the search unreasonable. After careful review, we affirm.1
We conclude the initial search of the flash drive did not exceed the scope of
Calixte’s consent. The scope of a reasonable search is limited to “what a police
officer could reasonably interpret the consent to encompass.” United States v.
Strickland, 902 F.2d 937, 941 (11th Cir. 1990). Assuming arguendo the
conversation between Calixte and Detective George Festa limited the scope of the
search to looking for homework, Special Agent Katherine Litras’s search of the
most recently opened file did not exceed the scope of this consent. To confirm the
1
When reviewing a denial of a motion to suppress, we examine the district court’s
factual findings for clear error and its application of the law to those facts de novo. United States
v. Anderton, 136 F.3d 747, 749 (11th Cir. 1998). We construe the facts in the light most
favorable to the party that prevailed in the district court. United States v. Santa, 236 F.3d 662,
668 (11th Cir. 2000). We may affirm the denial of a motion to suppress on any ground
supported by the record. United States v. Caraballo, 595 F.3d 1214, 1222 (11th Cir. 2010).
USCA11 Case: 14-10729 Date Filed: 01/30/2015 Page: 2 of 4
3
flash drive contained homework, Litras needed to open at least one file, and
nothing in the record suggests the most recently opened file was an unreasonable
place to begin. Furthermore, Calixte was physically present for the search and
neither revoked his consent nor attempted to limit the search to specific files.
Under the totality of the circumstances, Litras’s search of the file was reasonable.
See United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989) (“[W]hether there
were any limitations placed on the consent given and whether the search
conformed to those limitations is to be determined by the totality of the
circumstances.”).
We also conclude the 11-month delay in obtaining a warrant did not render
unreasonable the Government’s subsequent search of Calixte’s flash drive. Calixte
argues our decision in United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009),
establishes the authorities’ delay between the seizure and search of the flash drive
was unreasonable. In Mitchell, we held the government’s 21-day delay in
obtaining a warrant was unreasonable. Id. at 1351-52. Mitchell, however, is
inapposite. The Fourth Amendment does not require a warrant in this case because
Calixte gave Litras consent to search the flash drive. See United States v. Stabile,
633 F.3d 219, 235 (3d Cir. 2011) (“Where a person consents to search and seizure,
no possessory interest has been infringed because valid consent, by definition,
requires voluntary tender of property.”).
USCA11 Case: 14-10729 Date Filed: 01/30/2015 Page: 3 of 4
4
For the foregoing reasons, the district court did not err in denying the motion
to suppress, and we affirm Calixte’s convictions.
AFFIRMED.
USCA11 Case: 14-10729 Date Filed: 01/30/2015 Page: 4 of 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-19-01485/USCOURTS-ca10-19-01485-0/pdf.json | [
[
"Joanne Delgado",
"Appellee"
],
[
"Cedric Greene",
"Appellant"
]
] | UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
CEDRIC GREENE,
Plaintiff - Appellant,
v.
JOANNE DELGADO,
Defendant - Appellee.
No. 19-1485
(D.C. No. 1:19-CV-03287-LTB)
_________________________________
ORDER
_________________________________
Before MATHESON, BACHARACH, and PHILLIPS, Circuit Judges.
_________________________________
This matter is before the court on the appellant’s Certified Response to the U.S.
Court of Appeals for the Tenth Circuit and Entry of Appearance (the “Response”). The
Response was filed to answer the question posed in our December 27, 2019 order to show
cause, which was whether this appeal should be dismissed as prohibited by the filing
restrictions stated in Greene v. Sprint Nextel Corporation, 750 F. App’x 661, 666-67
(10th Cir. Sept. 20, 2018). Upon consideration, we have determined that the issues
presented in this appeal are covered by the filing restrictions entered against Mr. Greene
and that this appeal should be dismissed.
Mr. Greene has been enjoined “from filing an appeal in this court that. . .argues or
asserts a federal district court or this court should waive subject-matter jurisdiction.”
Sprint Nextel, 750 F. App’x at 666-67. In his Motion for Leave to File a Civil Complaint
FILED
United States Court of Appeals
Tenth Circuit
January 16, 2020
Christopher M. Wolpert
Clerk of Court
Appellate Case: 19-1485 Document: 010110289993 Date Filed: 01/16/2020 Page: 1
in the District of Colorado that was filed as the initial document in the case below, Mr.
Greene asserts claims against a defendant who is not subject to the jurisdiction of, and
about events not having any material connection to, the State of Colorado. See Dist. Ct.
Case No. 19-CV-3287, Docket No. 1 (discussing “Federal Caseworker” located in and
events occurring in California). In the Response, Mr. Greene contends that that
jurisdiction is proper in the District of Colorado because the state where the “Federal
Official” is located is an “untrustworthy state” and because he learned about the federal
official’s alleged malfeasance while visiting Colorado. Neither of these arguments is
valid basis for the District of Colorado to waive the jurisdictional limitations on the
federal district courts.
In light of the foregoing, we have concluded that Mr. Greene’s appeal falls
squarely within the filing restrictions provided in Sprint Nextel. Therefore, this appeal is
dismissed. This dismissal is the appellant’s third in January 2020 based on the filing
restrictions, so we again caution Mr. Greene that the court may consider imposing
additional filing restrictions on his ability to litigate in this court if he persists in filing
cases outside the federal courts’ jurisdictional limitations. The mandate shall issue
forthwith.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
by: Lara Smith
Counsel to the Clerk
Appellate Case: 19-1485 Document: 010110289993 Date Filed: 01/16/2020 Page: 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_07-cv-00573/USCOURTS-caed-2_07-cv-00573-0/pdf.json | [
[
"Willie D. Pace",
"Petitioner"
],
[
"D.K. Sisto",
"Respondent"
]
] | 1
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
WILLIE D. PACE,
Petitioner, No. CIV S-07-0573 DFL GGH P
vs.
D.K. SISTO, Warden,
Respondent. 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. Petitioner has not, however, filed an in forma
pauperis affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a).
Petitioner will be provided the opportunity to either submit the appropriate affidavit in support of
a request to proceed in forma pauperis or submit the appropriate filing fee.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner shall submit, within thirty days from the date of this order, an
affidavit in support of his request to proceed in forma pauperis or the appropriate filing fee;
petitioner's failure to comply with this order will result in the dismissal of this action; and
/////
/////
Case 2:07-cv-00573-RRB-GGH Document 3 Filed 04/25/07 Page 1 of 2
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2. The Clerk of the Court is directed to send petitioner a copy of the in forma
pauperis form used by this district.
DATED: 4/25/07 /s/ Gregory G. Hollows
GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE
GGH:bb
pace0573.101a
Case 2:07-cv-00573-RRB-GGH Document 3 Filed 04/25/07 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_16-cv-01291/USCOURTS-caed-2_16-cv-01291-0/pdf.json | [
[
"James Hudson",
"Plaintiff"
],
[
"Swift Transportation Co. of Arizona, LLC",
"Defendant"
]
] | S0519001/4831-0918-6870-1 No. 2:16-CV-01291-MCE-DB
ORDER GRANTING JOINT STIPULATION TO AMEND PRETRIAL SCHEDULING ORDER
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Derek H. Lim (Bar No. 209496)
Chad D. Greeson (Bar No. 251928)
ARCHER NORRIS
A Professional Law Corporation
2033 North Main Street, Suite 800
Walnut Creek, California 94596-3759
Telephone: 925.930.6600
Facsimile: 925.930.6620
[email protected]
[email protected]
Attorneys for Defendant
SWIFT TRANSPORTATION CO. OF ARIZONA,
LLC
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION
JAMES HUDSON,
Plaintiff,
v.
SWIFT TRANSPORTATION CO. OF
ARIZONA, LLC, and DOES 1 through 50,
inclusive,
Defendant.
Fed. Case No. 2:16-CV-01291-MCE-DB
[Honorable Morrison C. England, Jr.]
ORDER GRANTING JOINT
STIPULATION TO AMEND PRETRIAL
SCHEDULING ORDER
GOOD CAUSE APPEARING, IT IS HEREBY ORDERED that “all discovery, with the
exception of expert discovery, shall be completed no later than three hundred sixty-five (365)
days from the date of removal of this action to federal court.” All of other the dates are to remain
as set forth in the Court’s Initial Pretrial Scheduling Order.
IT IS SO ORDERED.
Dated: August 10, 2016
Case 2:16-cv-01291-MCE-DB Document 10 Filed 08/11/16 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca7-08-03226/USCOURTS-ca7-08-03226-0/pdf.json | [
[
"Bogdan Ganescu",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-2378, 08-3226 & 08-3238
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AIDA SALEM, BOGDAN GANESCU,
and GIANINA SIMON,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 923—John W. Darrah, Judge.
ARGUED NOVEMBER 3, 2009—DECIDED MARCH 9, 2010
Before EASTERBROOK, Chief Judge, and WOOD and
TINDER, Circuit Judges.
TINDER, Circuit Judge. In these appeals we consider
the application of the relevant conduct guideline,
U.S.S.G. § 1B1.3(a)(1)(B), in a case of a jointly undertaken
criminal activity. Aida Salem pled guilty to one count of
wire fraud and was sentenced to 97 months’ imprisonment. Bogdan Ganescu and Gianina Simon pled guilty
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
2 Nos. 08-2378, 08-3226 & 08-3238
to several counts of wire fraud and two counts of receipt
of stolen funds. They were sentenced to 78 months and
52 months, respectively. The defendants appeal their
sentences, challenging the district court’s relevant
conduct findings. For the reasons that follow, we
remand the sentences for further findings concerning
the jointly undertaken criminal activity under U.S.S.G.
§ 1B1.3(a)(1)(B) and, if necessary, for further findings
regarding the amount of the loss and the number of
victims under U.S.S.G. § 2B1.1(b)(1) and (2).
I. Background
A superseding indictment charged that Aida Salem,
Bogdan Ganescu, Gianina Simon, eleven codefendants,
and others in the United States and abroad knowingly
devised and participated in a scheme to defraud. Beginning in approximately November 2003 through at least
August 2006, more than 2000 victims of the scheme
were tricked into believing that they were purchasing
items listed for sale on Internet sites and wired funds to
the defendants and other co-schemers in amounts in
excess of $6 million. The victims never received the items.
As part of the scheme, individuals located outside the
United States, principally in Romania (the “foreign coschemers”), posed as sellers of items and lured victims
through fraudulent advertisements on Internet sites,
typically eBay. When a victim agreed to purchase an
item, he or she was instructed to send payment by
wire transfer, typically through Western Union. The
foreign co-schemers believed that victims in the United
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 3
States would be more likely to transmit their money if
the foreign co-schemers posed as sellers in the United
States. Therefore, the foreign co-schemers developed a
network of individuals in the United States, including
all fourteen defendants and other co-schemers, who were
willing to repeatedly pick up the funds/fraud proceeds
from a Western Union agent. After retaining a portion
(typically 20% to 40%) of the fraud proceeds received,
the defendants and other co-schemers transmitted the
balance of the proceeds to Romania.
In order to reduce the risk of apprehension by law
enforcement, the co-schemers obtained and used false
identification documents when picking up the fraud
proceeds from a Western Union agent. This required
ongoing communication between the persons who managed the receipt of fraud proceeds in the United
States—schemers such as Adrian Fechete, Raimondoray
Cerna, and Gabriel Constantin—and the foreign coschemers. The co-schemers communicated their changing
aliases to the foreign co-schemers, and the foreign
co-schemers incorporated the alias names into their
Internet communications with potential victims, usually
as the “seller,” “seller’s agent,” or “eBay agent” of the
item offered for sale. Once someone agreed to purchase
an item, he or she was instructed to send the funds
via Western Union to the alias name provided by a defendant to the foreign co-schemers. The victim provided
funds via Western Union in payment for the item.
The foreign co-schemers gave the appropriate coschemer the information necessary to complete the
wire transfer that had been provided by the victim. Then
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
4 Nos. 08-2378, 08-3226 & 08-3238
the co-schemer presented himself or herself, using the
matching alias identification documents at a Western
Union, representing himself or herself as the authorized
payee for the wire transfer of funds and received the funds.
Aida Salem
Salem pled guilty pursuant to a written plea agreement to one count of wire fraud, 18 U.S.C. § 1343. The
agreement described the fraud scheme and stated that
Salem learned about the scheme from codefendant
Raimondoray Cerna in approximately November 2003
and participated in the scheme from then until approximately January 2006. Salem admitted that as part of the
scheme, he and his co-schemers took and received
money from the victims with no intent of ever giving
them the items they believed they were purchasing.
He admitted that he used alias identification documents
to present himself to Western Union agents and provided them with the information relayed from the
foreign co-schemers that enabled him to receive the victims’ funds.
Salem’s plea agreement stated that “[w]hile participating in the scheme, [Salem] shared a common source of
false identification documents with a number of his codefendants.” The agreement provided one example from
late March through late April 2004 involving Salem and
codefendants Cerna, Gabriel Constantin, Adrian Ianc,
Muszka Ladislau, and Radu Rizescu. Then it gave
another example for various occasions in 2005 involving
Salem, Ianc, Ladislau, Simon, and Ganescu. The agreeCase: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 5
ment stated that Salem also shared with his co-schemers
“information on currency exchanges . . . such as which
to avoid and which were favorable,” “used common
currency exchanges . . . to receive fraud proceeds, and
shared rides to currency exchanges when receiving victims’ wire transfers.” It gave several examples
involving Salem and Fechete, Mihai Panaitescu,
Constantin, and Ianc. It also stated that Salem and Cerna
were arrested together when officers discovered they
were in possession of counterfeit identification. The
agreement added that for several months Salem and Ianc
resided in the same apartment complex and that they
also “shared a common source of Western Union transaction information” and “occasionally traveled together . . .
when receiving fraud proceeds from Western Union
agents.”
Furthermore, Salem admitted in his plea agreement
that on some occasions, he and other co-schemers
provided “common false addresses and phone number[s]
when completing the Western Union . . . form[s].” The
agreement provided several examples involving Salem,
Ianc, Constantin, Cerna, Marian Alexandru, Fechete,
and Ioan Moloman. Cell phone records revealed that
during the time period that Salem participated in the
scheme, he was in frequent contact with co-schemers,
including Panaitescu, Fechete, Constantin, Moloman,
Ianc, and Cerna. Salem admitted that at Cerna’s direction, he and other co-schemers, including Panaitescu,
Moloman, Stefan Dumitru, Lucian Nanau, Alexandru,
and Mihail Hann, transmitted funds owed to the foreign
co-schemers. Salem further admitted that he personally
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
6 Nos. 08-2378, 08-3226 & 08-3238
received wire transfers of funds from victims of the
scheme in an amount in excess of $400,000. The
Presentence Investigation Report (“PSR”) indicated that
during the time of Salem’s participation in the
scheme, approximately 2100 victims lost more than
$5.3 million. Salem also admitted in his plea agreement
that he was aware that his codefendants such as
Fechete, Ianc, Constantin, Mihai Bledea, Moloman, Hann,
Alexandru, Panaitescu, Constantin Lucan, Dumitru, and
Nanau were also receiving wire transfers from the
scheme to defraud.
Based on this, the government’s position before sentencing was that Salem was responsible for between
$2.5 million and $7 million in losses and over 250 victims—numbers that would result in Guidelines enhancements under U.S.S.G. § 2B1.1(b). Salem, however, contended the loss was more than $200,000 but not more
than $400,000, and that the offense involved more than
50 but less than 250 victims. In his Objections to PSR
and Sentencing Memorandum, Salem acknowledged that
“he undertook and participated in criminal activity
with and as directed by co-defendant managers Cerna
and Ianc” and argued that the government failed to
prove that he “should be held responsible for the losses
caused by the other participants beyond Cerna and Ianc.”
And at the sentencing hearing, Salem’s counsel stated
that Salem was accepting responsibility not only for
his own actions but also for “the reasonably foreseeable
actions of co-participants in the scheme, specifically
individuals such as Mr. Cerna, Mr. [Ianc], the
gentlem[e]n who recruited my client, and also managed
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 7
The transcript reads “Young,” but we believe it should be
1
“Ianc,” based on the context, Salem’s sentencing memorandum, and subsequent comments by Salem’s counsel at the
hearing. In addition, we note that Salem acknowledged that he
was recruited, managed, and supervised by both Cerna and
Ianc.
The district court did not mention Bledea’s name at this 2
point, but it had just mentioned him as one of the codefendants
of whom Salem was aware was receiving wire transfers in
the scheme. With the laundry list of names of co-schemers,
this oversight is understandable.
and supervised him.” At the sentencing hearing on
1
May 22, 2008, the government conceded a total loss
of greater than $1 million but less than $2.5 million.
The district court found by a preponderance of the
evidence that:
Cerna, Fechete, Ianc, Constantin, Moloman, Hann,
Alexandru, Panaitescu, Lucan, Dumitru, and
Nanau participated in the scheme, and it was 2
reasonably foreseeable to [Salem] then that because of the known conduct or reasonably foreseeable conduct of these other persons to [him], that
over a thousand victims would suffer losses of
$1 million but less than $2.5 million.
The court found that under U.S.S.G. § 2B1.1(a)(1) Salem’s
base offense level was seven and added sixteen levels
based on the amount of the loss, U.S.S.G. § 2B1.1(b)(1)(I),
and added six levels based on the number of victims,
U.S.S.G. § 2B1.1(b)(2)(c). The resulting Guidelines range
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
8 Nos. 08-2378, 08-3226 & 08-3238
was 97 to 121 months. The court sentenced Salem to
97 months, at the bottom of the range, and ordered him
to pay $404,091 in restitution.
Bogdan Ganescu and Gianina Simon
On September 4, 2007, Ganescu and Simon pled guilty,
without plea agreements, to several wire fraud counts,
18 U.S.C. § 1343, and two counts of receipt of stolen
funds, 18 U.S.C. § 2315. In their plea declarations, Ganescu
and Simon admitted to participating in a scheme to
defraud users of Internet auction sites such as eBay, and
to obtaining money by means of materially false and
fraudulent pretenses. They admitted that not later than
August 2004, they learned about the scheme and how it
worked from codefendant Gabriel Constantin. They also
admitted that in order to participate in the scheme, they
obtained and used a series of alias identification documents that falsely identified them as the persons to
whom the victims should send their money and that
they ultimately received the victims’ funds from
Western Union agents.
The Government’s Version of the Offense (“Government’s Version”), which was attached to the defendants’
PSRs, indicated that photographs obtained during the
investigation of the scheme demonstrated Ganescu’s
and Simon’s close association with several codefendants,
including Constantin, Ianc, Bledea, and Rizescu. The
photos included pictures of Ganescu and Simon at
Rizescu’s staged wedding, which was part of a fraudulent
application for permanent United States residency. Also
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 9
according to the Government’s Version, phone records
showed frequent call activity between Ganescu’s and
Simon’s cell phones and those of Constantin, Ianc, and
Bledea. The Government’s Version stated that Simon
used the same attorney that Ianc and Bledea used following their arrests on charges arising out of the scheme
to defraud. On appeal, Ganescu and Simon do not
dispute the accuracy of these factual assertions, but
argue about what inferences may reasonably be drawn
from them.
Ganescu admitted in his plea declaration that between
approximately October 2004 and June 2005, he received
wire transfers of fraud proceeds of approximately
$174,000 from at least 90 victims of the scheme. (The
government later learned that his participation continued into December 2006 and that he received fraud
proceeds from approximately 129 victims.) Simon
admitted in her plea declaration that between approximately September 2004 and August 2005, she received
wire transfers of fraud proceeds of approximately
$63,000 from at least 29 victims. Ganescu and Simon also
admitted that they retained a portion of the fraud
proceeds for themselves and caused the remainder—
more than $126,000—to be transmitted to the foreign coschemers in Romania. Each admitted an awareness that
the other was participating in the scheme and receiving
fraud proceeds from additional victims. They also admitted to sharing common sources of false identification documents between themselves and with several
codefendants: Ianc, Salem, and an individual identified
as “SB.” Ganescu admitted to sharing common sources
with Bledea and Ladislau as well.
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
10 Nos. 08-2378, 08-3226 & 08-3238
According to the Government’s Version, during the
time that Ganescu and Simon participated in the scheme,
more than 2000 victims suffered losses in excess of $5.4
million. The government asserted that Ganescu received
wire transfers of fraud proceeds in amounts totaling
about $239,000 and that together Ganescu and Simon
received about $313,000 from approximately 163 victims.
The principal issue at Ganescu and Simon’s sentencing hearing was whether the conduct of other
codefendants was reasonably foreseeable to Ganescu and
Simon for purposes of the loss amount and number of
victims for which they should be held accountable as
relevant conduct under U.S.S.G. § 1B1.3(a)(1)(B). The
government argued that much of the conduct of others
involved in the scheme was foreseeable to Ganescu and
Simon based on their close relationship with significant
participants in the scheme such as Ianc and Constantin.
The government asserted that a conservative estimate
of the loss foreseeable to Ganescu and Simon would be
the losses caused during the time they participated in
the scheme and traceable to Ganescu, Simon, and the coschemers with whom they were most closely associated,
namely Constantin, Bledea, Ianc, “Individual EM,” and
Cristian Bentan. According to the government’s spreadsheet detailing Western Union transactions, the transactions received directly by these co-schemers totaled
$1,176,967.81 and represented losses to approximately
500 victims of the scheme.
The district court identified the crux of the matter as
whether the actions of co-schemers Ianc, Constantin,
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 11
3 The loss amount and number of victims was taken from
Government’s Exhibit 018. The exhibit attributes approximately $9800 of the total loss and four victims to the conduct
of codefendant Cristian Bentan. The district court did not
find that Bentan’s conduct was reasonably foreseeable to
either Ganescu or Simon. If the loss amount were adjusted
accordingly, a $9800 reduction in the loss and subtraction of
four victims would not affect the increase in offense levels
under § 2B1.1(b)(1)(I) (loss more than $1,000,000 but no more
than $2,500,000) and § 2B1.1(b)(2)(C) (more than 250 victims).
Bledea, and EM were reasonably foreseeable to Simon
and Ganescu. The court found by a preponderance of the
evidence that the conduct of Ianc, Constantin, Bledea, and
EM was reasonably foreseeable to Ganescu. It found
that the conduct of Ganescu, Ianc, Constantin, Bledea
and EM was reasonably foreseeable to Simon. These
findings led the court to find a loss amount of $1,176,967.81
and a total number of victims in excess of 250, with a
corresponding sixteen-level increase to Ganescu’s and
Simon’s base offense level under U.S.S.G. § 2B1.1(b)(1)(I)
and a six-level increase under § 2B1.1(b)(2)(C).3
Ganescu and Simon had an identical Guidelines range
of 78 to 97 months. The district court sentenced Ganescu
to a within-Guidelines sentence of 78 months and
ordered him to pay $229,000 in restitution. After considering the § 3553(a) factors, including Simon’s overall
culpability, and finding that she had been deterred and
recidivism was not a factor in her case, the court sentenced
Simon to a below-Guidelines sentence of 52 months. The
court also ordered her to pay $62,000 in restitution.
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
12 Nos. 08-2378, 08-3226 & 08-3238
II. Discussion
The defendants contend that the district court erred in
its relevant conduct findings. They argue that under
United States v. Soto-Piedra, 525 F.3d 527, 531 (7th Cir.),
cert. denied, 129 S. Ct. 261 (2008), the evidence must show
that a defendant assisted or agreed to promote a
coconspirator’s conduct for such conduct to be within
the scope of jointly undertaken activity under U.S.S.G.
§ 1B1.3(a)(1)(B). They claim that the evidence failed to
show that they assisted or agreed to promote conduct
of their co-schemers and that the enhancements based
on the amount of loss and number of victims were therefore unwarranted. Salem also argues that the acts of his coschemers were not acts in which he joined or which
he furthered. Finally, the defendants argue that the
district court erred because it neglected to make a
finding of jointly undertaken criminal activity before
addressing whether their codefendants’ conduct was
foreseeable to them.
Ganescu and Simon acknowledge that when a party
fails to raise an issue in the trial court, we generally
review for plain error. See United States v. Garrett, 528
F.3d 525, 527 (7th Cir. 2008). However, the government
asserts that in this case we review the district court’s
determinations of the amount of the loss and number
of victims for which the defendants should be held accountable for clear error. It therefore has waived its right
to rely on plain error review. See United States v. Murphy,
406 F.3d 857, 860 (7th Cir. 2005) (concluding that the
government “waived waiver” by asserting the plain
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 13
error standard applied); United States v. Cotnam, 88 F.3d
487, 498 n.12 (7th Cir. 1996) (noting that since defense
counsel failed to object at trial, the court would
normally review for plain error, but because the government did not argue for the plain error standard, it
waived the right to invoke that standard). Hence, we
review the district court’s relevant conduct determinations for clear error. United States v. Rollins, 544 F.3d
820, 838 (7th Cir. 2008). Under this standard, we will
uphold the district court’s findings “unless, after considering all of the evidence, we are left with a definite
and firm conviction” that a mistake has been made.
Id. (quotation omitted). We review the district court’s
application of the Guidelines de novo. Garrett, 528 F.3d
at 527.
As part of its determination of a defendant’s offense
level under the Guidelines, a court determines the base
offense level and applies appropriate specific offense
characteristics. U.S.S.G. § 1B1.1(b). Specific offense characteristics depend not only on the offense of conviction
but also on relevant conduct. United States v. Alldredge,
551 F.3d 645, 646 (7th Cir. 2008); U.S.S.G. § 1B1.3(a). In the
case of a jointly undertaken criminal activity, relevant
conduct is determined on the basis of “ ‘all reasonably
foreseeable acts and omissions of others in furtherance
of the jointly undertaken criminal activity.’ ” Soto-Piedra,
525 F.3d at 531 (quoting U.S.S.G. § 1B1.3(a)(1)(B)).
A criminal scheme “ ‘undertaken by the defendant in
concert with others’ ” is included within the definition of
a “jointly undertaken criminal activity.” Id. (quoting
U.S.S.G. 1B1.3(a)(1)(B)). Thus, a defendant may be held
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
14 Nos. 08-2378, 08-3226 & 08-3238
accountable for the conduct of others “if that conduct
was in furtherance of a jointly undertaken criminal
activity and reasonably foreseeable in connection with
that criminal activity.” United States v. Fouse, 578 F.3d
643, 653 (7th Cir. 2009).
In addressing a jointly undertaken criminal activity in
Soto-Piedra, we said that the “[a]ctions of coconspirators
that a particular defendant does not assist or agree to
promote are generally not within the scope of that defendant’s jointly undertaken activity.” 525 F.3d at 533 (citing
U.S.S.G. § 1B1.3 cmt. n.2). The defendants seize upon
this language, arguing that it heightened the standard
for determining the scope of a jointly undertaken
criminal activity. We do not read Soto-Piedra in this way.
Instead, the “assist or agree to promote” language is
simply another way of stating the requirement that the
conduct of others for which a defendant is accountable
must be in furtherance of the joint criminal activity that
the defendant in question undertook. This is another
way of saying that the mere foreseeability of another’s
conduct is not sufficient to bring that conduct within
the scope of a defendant’s jointly undertaken criminal
activity. In Soto-Piedra, the defendant objected to the
conclusion that he was responsible for 14 to 15 kilograms
of crack, which affected his base offense level. The defendant had not sold crack to anyone, so we said that in
order to determine his base offense level based on a
substantial amount of crack, the government had to
prove he had reached an agreement to sell powder
cocaine intending that it be converted into crack. Id. at
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 15
531. We said that the defendant agreed to supply his
coconspirator with an unknown grade of powder
cocaine, to be provided to an unknown customer with
an unknown intention. We used the “assist or agree to
promote” language in concluding that the government
offered no evidence to suggest “that converting the
powder cocaine to crack was within the scope of [the
defendant’s] contemplated undertaking.” Id. at 533.
The authorities Soto-Piedra cited for the “assist or agree
to promote” language bolster the conclusion that the
case did not impose a heightened standard. See United
States v. Bustamante, 493 F.3d 879, 887-88 (7th Cir. 2007)
(noting § 1B1.3’s requirement that relevant conduct be
“in furtherance of the jointly undertaken criminal activity” and concluding that the evidence was insufficient
to prove that the defendant furthered the conspiracy
alleged in the indictment); United States v. Melton, 131
F.3d 1400, 1405 (10th Cir. 1997) (indicating that reasonable foreseeability is not enough to establish liability
for coconspirators’ acts under § 1B1.3; such acts must
also be in furtherance of jointly undertaken criminal
activity); United States v. Studley, 47 F.3d 569, 576 (2d
Cir. 1995) (remanding where the record supported the
conclusion that the defendant’s agreement to participate
in the fraudulent scheme was limited to his own
fraudulent activity and he did nothing to further the
overall scheme); U.S.S.G. § 1B1.3 cmt. n.2 (illustration
(c)(1)). And this court has not understood Soto-Piedra as
altering the standard for the scope of jointly undertaken
criminal activity. See United States v. Dean, 574 F.3d 836,
844-45 (7th Cir. 2009) (quoting the “assist or agree to
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
16 Nos. 08-2378, 08-3226 & 08-3238
promote” language when stating the proposition that “a
defendant may be held liable only for those acts or omissions that were both made in furtherance of the conspiracy and foreseeable to the defendant”). Therefore, SotoPiedra did not impose a heightened standard for determining the scope of a jointly undertaken criminal activity.
So we consider the sufficiency of the district court’s
findings in this case.
In applying U.S.S.G. § 1B1.3(a)(1)(B), the district court
must make a preliminary determination of the scope of
the criminal activity the defendant agreed to jointly
undertake. United States v. Fox, 548 F.3d 523, 531-32 (7th
Cir. 2008); United States v. Thomas, 199 F.3d 950, 953
(7th Cir. 1999); U.S.S.G. § 1B1.3 cmt. n.2 (“In order to
determine the defendant’s accountability for the conduct
of others under subsection (a)(1)(B), the court must
first determine the scope of the criminal activity the
particular defendant agreed to jointly undertake (i.e., the
scope of the specific conduct and objectives embraced
by the defendant’s agreement).”). Then the court must
make a two-part determination of whether the conduct
of others was both in furtherance of that joint criminal
activity and reasonably foreseeable to the defendant
in connection with the joint criminal activity. Fox,
548 F.3d at 532; Thomas, 199 F.3d at 953; U.S.S.G.
§ 1B1.3(a)(1)(B). “[A]n absence of findings on key
elements of the [relevant conduct] analysis” cannot be
cured by a deferential clear error standard of review. Fox,
548 F.3d at 532; see also Dean, 574 F.3d at 846 (vacating
and remanding sentence for a specific finding as to the
reasonable foreseeability to the defendant of the
quantity of drugs).
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 17
In Fox, for example, two codefendants were convicted
of a crack cocaine conspiracy. One challenged the
drug quantity that the district court found as part of his
relevant conduct under U.S.S.G. § 1B1.3(a)(1)(B). He
argued that the court erred in focusing exclusively on
the foreseeability requirement of relevant conduct, ignoring its other requirements. We agreed, finding
several problems with the relevant conduct analysis. Fox,
548 F.3d at 531. First, the district court did not determine
the scope of the defendant’s jointly undertaken criminal
activity. Id. at 531-32. Second, although the district court
considered whether the codefendant’s possession of
crack cocaine was foreseeable to the defendant, it
did not consider whether that possession was foreseeable
in connection with the joint criminal activity. Id. We
therefore concluded that the district court’s relevant
conduct findings were insufficient and vacated and
remanded for resentencing. Id. at 533.
Here, the district court made findings as to the reasonable foreseeability of the co-schemers’ acts only; it made
no finding as to the scope of the jointly undertaken criminal activity. The government argues that, given the
record and circumstances of this case, the lack of an
express finding by the district court does not warrant
setting aside the finding that Salem, Ganescu, and Simon
are accountable for the conduct of certain of their coschemers that occurred during the time period in which
Salem, Ganescu, and Simon participated in the scheme.
The government asserts that it is clear from the record
that the district court considered the Government’s
Version and the defendants’ PSRs, which contained great
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
18 Nos. 08-2378, 08-3226 & 08-3238
detail about the nature of the criminal activity that
Salem, Ganescu, and Simon agreed to jointly undertake.
This case is quite different from the cases cited by the
government to support its argument. See United States
v. Wilson, 502 F.3d 718, 722-23 (7th Cir. 2007); United States
v. Acosta, 85 F.3d 275, 279-80 (7th Cir. 1996). In Acosta,
the defendant, who had been convicted of possession
of heroin with the intent to distribute, challenged the
district court’s determination that a series of cocaine
sales he had made to another individual were relevant
conduct. 85 F.3d at 277, 279. The district court did not
find that those cocaine sales were relevant conduct;
however, before sentencing the defendant, the court
expressly adopted the factual findings in the PSR. Facts
recited in the PSR provided the necessary connection
between the cocaine sales and the defendant’s offense
of conviction to treat the sales as relevant conduct under
§ 1B1.3(a)(2). Id. at 279-80. We stated that the court
should “explicitly state and support” its finding that
uncharged conduct had the necessary relationship to
the offense of conviction to support a relevant conduct finding. Id. at 280 (quotation omitted). However,
we added:
[W]here it is clear from the record that the district
court considered and adopted the facts recited in the
presentence report, as well as the government’s reasoning concerning the significance of those facts in
establishing the defendant’s responsibility for uncharged conduct, we have upheld the court’s decision
to treat the uncharged activities as relevant conduct
despite the lack of an express finding . . . .
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 19
Acosta and Wilson are also distinguishable because the 4
courts in those cases considered whether the defendant’s own
conduct was relevant conduct under U.S.S.G. § 1B1.3(a)(2).
Here, the district court considered whether the defendants
should be held accountable not only for their own acts but
also for the acts of others under § 1B1.3(a)(1)(B). Different
standards apply to these subsections of the Guideline.
Id. (citations omitted). Because it was clear that the court
considered the cocaine sales to be relevant conduct, we
upheld its implicit relevant conduct determination
despite the absence of an express finding that the sales
were part of the same course of conduct as the heroin
offense. Id.
Similarly, in Wilson the district court failed to make
an explicit finding that other drug transactions in which
the defendant had participated were part of the same
course of conduct or common scheme as the offense of
conviction. Yet we understood from the court’s specific
findings at sentencing that it clearly believed that the
defendant’s drug trafficking was a common scheme
and part of the same course of conduct as his offense of
conviction. Wilson, 502 F.3d at 723. We therefore held
that the court did not clearly err in finding that the defendant’s prior drug transactions constituted relevant conduct. Id. at 724.4
Here, the district court did not adopt the findings in
the PSRs at the sentencings. Thus, the judge’s oral explanation of the reasons for the sentences imposed falls
short of the requirement that “[t]he court, at the time of
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
20 Nos. 08-2378, 08-3226 & 08-3238
sentencing, shall state in open court the reasons for its
imposition of the particular sentence . . . .” 18 U.S.C.
§ 3553(c); see also United States v. Harris, 567 F.3d 846, 854-
55 (7th Cir.) (suggesting court’s explanation was insufficient where court merely said it considered the information in the presentence report, including the
Guideline computations and the sentencing factors, but
failed to state the reasons for its sentence), cert. denied, 130
S. Ct. 1032 (2009); United States v. Molina, 356 F.3d 269, 277
(2d Cir. 2004) (holding that district court did not satisfy
§ 3553(c)’s “open court” requirement with a statement
of reasons in a later written judgment where the court
made no specific factual findings and did not expressly
adopt the PSR at the sentencing hearing).
The district court did adopt the factual findings in the
defendants’ PSRs in its “Statement of Reasons” attachment
to the Judgment in a Criminal Case, AO Form 245B, see
h tt p :// w w w .u s c o u rt s . g o v /f o r m s /u s c f o rm s . c f m ?
StartRow=61 (last visited Feb. 19, 2010), but this was
inadequate for several reasons. In some circumstances,
the adoption of a PSR’s findings could constitute
sufficient factual findings. For example, the adoption of
such findings at a sentencing hearing can be sufficient.
See, e.g., Acosta, 85 F.3d at 279-80 (upholding district
court’s relevant conduct finding where at sentencing the
court adopted the facts recited in the presentence report
as well as the government’s argument about the significance of those facts). And a district court is authorized
and even encouraged to file a later written memorandum
explaining its reasoning for the sentence imposed, provided the memorandum does not change the ultimate
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 21
judgment. United States v. Burton, 543 F.3d 950, 953 (7th Cir.
2008); United States v. Duarte, 950 F.2d 1255, 1263 (7th Cir.
1991).
But in this case, the court’s adoption of the PSRs’ findings was only a pro forma checking of a box on a preprinted form. And the judge signed the “Statements of
Reasons” a few days after he imposed the sentences.
Although the adoption of a PSR’s findings in this
manner may suffice under a plain error standard of
review, it is inadequate when reviewed for clear error.
Compare United States v. Panaigua-Verdugo, 537 F.3d 722,
726-27 (7th Cir. 2008) (holding court did not plainly err
in finding that other drug transactions were relevant
conduct in absence of an explicit finding at sentencing
where court in its written statement of reasons adopted
the PSR and noted that the other acts were part of the
same conduct as the convicted offense), and United States
v. Arroyo, 406 F.3d 881, 889-90 (7th Cir. 2005) (finding
no plain error in court’s failure to make specific findings
connecting uncharged drug transactions with offense
of conviction where record could support the conclusion
that offenses were related), with United States v. Ortiz,
431 F.3d 1035, 1042-43 (7th Cir. 2005) (holding court
clearly erred when it failed to make specific findings
on whether additional cocaine involved relevant conduct), and United States v. Bacallao, 149 F.3d 717, 720-21
(7th Cir. 1998) (holding court clearly erred in not
making independent relevant conduct finding and
instead relying entirely on the presentence report which
failed to establish necessary relationship between offense
of conviction and other drug transactions). The clear
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
22 Nos. 08-2378, 08-3226 & 08-3238
error standard of review demands more of sentencing
courts in terms of factual findings. See Wilson, 502 F.3d
at 723 (relevant conduct finding not clearly erroneous
where court found at sentencing that defendant had
been regularly dealing cocaine and was part of an ongoing
circle of dealers).
Moreover, even if the court had adopted the findings
in the PSRs in this case at the time of sentencing, the
court’s factual findings would still be deficient on a key
element of the relevant conduct analysis: the scope of the
jointly undertaken criminal activity. If the court relies
entirely on the PSR to make a finding as to the scope of
the jointly undertaken criminal activity, the PSR must
define the scope of that activity. Cf. United States v. Singleton, 548 F.3d 589, 590-93 (7th Cir. 2008) (upholding
implicit relevant conduct finding under clear error
review where court adopted the PSR’s findings that
detailed the defendant’s regular history of drug sales
over a six-year span); Bacallao, 149 F.3d at 720-21 (finding
clear error where court failed to make independent relevant conduct finding and relied entirely on presentence
report that contained insufficient factual findings). Although the PSRs in this case contain a wealth of information, their focus on the foreseeability of the conduct
of others virtually ignored the scope of the joint criminal
activity undertaken by each of these defendants. As
stated earlier, a district court must first determine the
scope of the criminal activity the defendant agreed to
jointly undertake, and then determine whether the
conduct of others was in furtherance of, and reasonably
foreseeable to the defendant in connection with, that
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 23
activity. Fox, 548 F.3d at 531-32; Thomas, 199 F.3d at 953.
Neither the PSRs nor the judge’s statements at sentencing define the scope of each defendant’s jointly undertaken criminal activity with sufficient clarity and specificity. A district judge may draw reasonable inferences
from information in a PSR to make a finding as to the
scope of the joint criminal activity undertaken by a defendant. But unstated inferences do not provide an
adequate relevant conduct analysis so as to allow for
meaningful appellate review. See Harris, 567 F.3d at 853-
54 (“An appellate court’s review of a sentence is for
reasonableness, and the more explanation we have, the
better equipped we are to assess whether an imposed
sentence meets that standard.”).
The government argues that the district court’s findings
that a group of co-schemers participated in the scheme
and that their conduct was reasonably foreseeable to
Salem and thus attributable to him were sufficient
findings as to the scope of Salem’s agreement to
participate in the fraud scheme. Given the standard of
review—clear rather than plain error—we cannot
agree. The scope of the jointly undertaken criminal activity
“is not necessarily the same as the scope of the entire
[scheme].” U.S.S.G. § 1B1.3 cmt. n.2; see also Fox, 548 F.3d
at 531-32 & n.7; Soto-Piedra, 525 F.3d at 531-32. The
district court did not clearly define the scope of “the
scheme” in which that group of co-schemers participated.
The entire Internet fraud scheme was wide-ranging, with
international dimensions, and it occurred over the
course of several years and resulted in total losses to
victims of approximately $6 million. The superseding
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
24 Nos. 08-2378, 08-3226 & 08-3238
indictment alleged that the scheme involved not only
the foreign co-schemers and the fourteen defendants in
this case, but also “other co-schemers” who played a
role like that of the defendants. The district court did not
hold the defendants accountable for the full $6 million,
presumably based in part on a limitation of jointly undertaken criminal activity. The finding that co-schemers
participated in “the scheme” and that their conduct was
reasonably foreseeable to Salem does not equate with
a finding that Salem agreed to a joint undertaking that
embraced the entire fraud scheme. And it is unclear
whether the court’s reference to “the scheme” meant
the entire fraud scheme or some subset of that scheme.
The government seems to equate awareness with criminal accountability. Knowledge is not sufficient to
establish the scope of the jointly undertaken criminal
activity. “Even if the defendant was perfectly aware of
the breadth of the scheme, if he was not part of all of it,
his sentence could not be based on more than the part
to which he had agreed.” Thomas, 199 F.3d at 953. It does
not necessarily follow from the fact that a co-schemer’s
criminal activity was reasonably foreseeable to a
defendant that the defendant joined in that co-schemer’s
criminal activity.
We take this opportunity to remind the district courts
that even where, as here, the focus at sentencing is on the
reasonable foreseeability of the conduct of others, the
district court still must make the necessary preliminary
finding of the scope of the criminal activity that the
defendant agreed to jointly undertake. The district court
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 25
neglected to make that finding in this case. And if a
district court omits a finding on a key element during
the § 1B1.3(a)(1)(B) analysis, the effort of an appeal could
be avoided if counsel would bring such an omission to
the sentencing judge’s attention before the analysis is
completed.
Accordingly, on remand, the district court must first
determine the scope of the criminal activity that Salem,
Ganescu, and Simon agreed to jointly undertake. Then,
with respect to Salem, the court must determine whether
the acts of Fechete, Constantin, Moloman, Hann,
Alexandru, Panaitescu, Lucan, Dumitru, and Nanau
were in furtherance of that jointly undertaken criminal
activity. Salem has not challenged the district court’s
finding that these co-schemers’ acts were reasonably
foreseeable to him. So, if the district court finds
that the acts of these co-schemers were in furtherance
of Salem’s jointly undertaken criminal activity, then the
relevant conduct findings and Salem’s sentence shall
stand, provided appropriate findings are made with
respect to Bledea. Otherwise, the district court must reassess its relevant conduct findings and Salem’s sentence.
The government asserts that Salem waived any objection to being held accountable for the conduct of Cerna
and Ianc because Salem conceded in the district court
that he should be held responsible for their conduct.
Salem’s attorney stated at Salem’s sentencing hearing
that Salem was “accepting responsibility for all of the
actions that he personally took part in and also [for] . . . the
reasonably foreseeable actions of co-participants in the
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
26 Nos. 08-2378, 08-3226 & 08-3238
scheme, specifically individuals such as Mr. Cerna,
Mr. [Ianc]” When directly asked whether he conceded
that “reasonably foreseeable conduct of others would
reach to Mr. Cerna and Mr. Ianc,” Salem’s attorney said,
“Yes.” Salem cannot undo these concessions.
So, Salem argues this wasn’t waiver, but forfeiture,
claiming there was no strategic reason for his attorney
to concede that Salem could be held accountable for
Cerna’s and Ianc’s acts and the losses they caused. This
argument is not persuasive. In United States v. Garcia, 580
F.3d 528, 541 (7th Cir. 2009), cert. denied, No. 09-8459, 2010
WL 85929 (U.S. Feb. 22, 2010), we reiterated: “Waiver is the
intentional relinquishment of a known right, and it precludes appellate review altogether.” “Forfeiture . . . is the
failure to timely assert a right,” which is reviewed for plain
error. Id. We draw a distinction between waiver and
forfeiture by considering whether the defendant made
a strategic choice not to present an argument. Id. In Garcia
we found waiver where defense counsel did not merely
fail to object to the PSR’s drug quantity calculation, but
affirmatively stated that he knew the defendant could
be sentenced for drugs trafficked by the whole conspiracy and he was not challenging drug quantity for a
strategic reason. Id. at 542. This, we said, was “precisely
what the waiver doctrine contemplates.” Id.
Salem’s counsel did not merely fail to object to the
inclusion of Cerna’s and Ianc’s acts as relevant conduct.
Instead, his counsel specifically stated that Salem was
accepting responsibility for their actions. And Salem’s
decision to make such a concession appears to have been
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 27
strategic. See, e.g., United States v. Rosenberg, 585 F.3d 355,
358 (7th Cir. 2009) (concluding that the defendant waived
any challenge to inclusion of certain acts as relevant
conduct where she chose not to object to the district court
for the strategic reason that she sought a reduction for
acceptance of responsibility). Salem was anticipating a
reduction in his offense level for acceptance of responsibility. Had he disputed his accountability for Cerna’s
and Ianc’s conduct, that reduction may have been in
jeopardy. Thus, Salem waived the right to challenge
the district court’s decision to hold him accountable for
the acts of Cerna and Ianc.
And after determining the scope of the criminal activity
jointly undertaken by Ganescu and Simon, the district
court must determine whether the acts of Ianc, Constantin,
Bledea, and EM (Emanuel Matula) were in furtherance of
Ganescu’s and Simon’s jointly undertaken criminal activity. Like Salem, Ganescu and Simon do not contest the
district court’s findings regarding the reasonable
foreseeability to them of the acts of these co-schemers.
Therefore, if the court finds that the acts of these coschemers were in furtherance of Ganescu’s and Simon’s
jointly undertaken criminal activity, then Ganescu’s and
Simon’s sentences shall stand. Otherwise, the district
court must reevaluate its relevant conduct findings and
their sentences, with one qualification. The qualification
is this: Ganescu conceded in his reply brief that he is liable
“for Simon’s conduct, Emanuel Matula’s conduct and
for whatever amounts were obtained from the currency
exchanges of which Ganescu advised his co-conspirators.”
The district court need not reevaluate Ganescu’s accountability for Simon’s and Matula’s conduct, but it is
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
28 Nos. 08-2378, 08-3226 & 08-3238
unclear just what conduct is encompassed by the last
phrase.
III. Conclusion
For the foregoing reasons, we REMAND Salem’s,
Ganescu’s, and Simon’s sentences for further findings
concerning the jointly undertaken criminal activity
under U.S.S.G. § 1B1.3(a)(1)(B) and, if necessary, for
further findings regarding the amount of the loss and the
number of victims under U.S.S.G. § 2B1.1(b)(1) and (2).
3-9-10
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_05-cv-00247/USCOURTS-caed-1_05-cv-00247-1/pdf.json | [
[
"Thomas R. Bearden",
"Defendant"
],
[
"United States of America",
"Plaintiff"
]
] | 1
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[proposed] Order Modifying Scheduling Conference
Order Pursuant to Stipulation 1
[proposed] ORDER MODIFYING
SCHEDULING CONFERENCE ORDER
PURSUANT TO STIPULATION
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, ) Case No. 1:05-CV-00247-OWW-DLB
)
Plaintiff, )
)
v. )
)
THOMAS R. BEARDEN, )
)
Defendant. )
____________________________________)
Pursuant to the stipulation of the parties electronically filed herein on March 15, 2006,
and good cause having been shown, the pretrial deadlines set forth in the Scheduling Conference
Order filed June 3, 2005, shall be modified (extended) as follows:
Disclosure of experts and reports due: April 28, 2006
Disclosure of supplemental experts and reports due: May 15, 2006
Discovery cut-off: June 16, 2006
Non-dispositive law and motion cut-off date: to be filed by: June 26, 2006
to be heard by: July 28, 2006
Dispositive law and motion cut-off date: to be filed by: July 10, 2006
to be heard by: August 14, 2006
Final Pretrial Conference: September 25, 2006, at 11:00 a.m. (joint pretrial statement
due 5 court days before)
Trial: November 14, 2006, at 9:00 a.m.
Case 1:05-cv-00247-OWW -DLB Document 36 Filed 03/17/06 Page 1 of 3
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[proposed] Order Modifying Scheduling Conference
Order Pursuant to Stipulation 2
In all other respects, the June 3, 2005 Scheduling Conference Order shall remain in effect
except as otherwise already modified by the Court.
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[proposed] Order Modifying Scheduling Conference
Order Pursuant to Stipulation
CERTIFICATE OF SERVICE
The undersigned hereby certifies that she is an employee in the office of the United States
Attorney for the Eastern District of California and is a person of such age and discretion as to be
competent to serve papers.
That on March 15, 2006, she served a copy of:
[proposed] ORDER MODIFYING SCHEDULING
CONFERENCE ORDER PURSUANT TO
STIPULATION
by placing said document(s) in postage paid envelope(s) addressed to the persons listed below,
which are the last known addressees, and deposited said envelope(s) in the United States mail in
Sacramento, California.
ADDRESSEE(S):
Thomas R. Bearden
P.O. Box 1172
Westport, WA 98595
/s/ Jocelyn M. Trujillo
(original signature retained by attorney)
_____________________________
JOCELYN M. TRUJILLO
Legal AssistantIT IS SO ORDERED.
Dated: March 16, 2006 /s/ Oliver W. Wanger
emm0d6 UNITED STATES DISTRICT JUDGE
Case 1:05-cv-00247-OWW -DLB Document 36 Filed 03/17/06 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-15-02077/USCOURTS-ca10-15-02077-0/pdf.json | [
[
"Richard S. Currier",
"Appellant"
],
[
"Taos County Magistrate Court",
"Appellee"
]
] | UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
TAOS COUNTY MAGISTRATE
COURT,
Plaintiff - Appellee,
v.
RICHARD S. CURRIER,
Defendant - Appellant.
No. 15-2077
(D.C. No. 1:14-CR-04345-MCA-1)
(D.N.M.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, LUCERO, and McHUGH, Circuit Judges.
_________________________________
Richard Currier appeals following the district court’s remand of his criminal
case to state court. Exercising jurisdiction under 28 U.S.C. § 1447(d), we affirm.
I
Currier was charged in New Mexico state court with one count of resisting,
evading, or obstructing an officer; one count of disorderly conduct; and five counts of
assault. The charges stem from an incident at the Taos Visitor’s Center. After being
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
August 31, 2015
Elisabeth A. Shumaker
Clerk of Court
Appellate Case: 15-2077 Document: 01019483079 Date Filed: 08/31/2015 Page: 1
-2-
questioned about the presence of his service dog, Currier became upset and an
argument apparently ensued. Currier was subsequently arrested.
Currier removed his state criminal case to federal district court. The district
court observed that removal was inappropriate under 28 U.S.C. § 1443(1) because
that section applies only if a state proceeding would deny a removal petitioner
specific federal civil rights stated in terms of racial equality. Although Currier
claimed that his case implicated the Americans with Disabilities Act (“ADA”), he did
not allege a deprivation of racial equality. The district court remanded the case back
to state court. It also denied Currier’s motion to reconsider. Currier now appeals
those rulings.
II
As a general matter, “[a]n order remanding a case to the State court from which it
was removed is not reviewable on appeal or otherwise.” 28 U.S.C. § 1447(d). However,
the bar on appellate review of remand orders contains an exception for cases removed
pursuant to § 1443. § 1447(d). Section 1443(1) provides that a criminal prosecution may
be removed to federal court if the action is “[a]gainst any person who is denied or cannot
enforce in the courts of such State a right under any law providing for the equal civil
rights of citizens of the United States, or of all persons within the jurisdiction thereof.”
Id. Although Currier did not cite § 1443(1) in his Notice of Removal, he did allege that
the state disregarded his rights under federal disability statutes. Construing his pro se
filings liberally, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), we agree
with the district court that Currier’s references to federal disability rights are
Appellate Case: 15-2077 Document: 01019483079 Date Filed: 08/31/2015 Page: 2
-3-
sufficient to raise § 1443(1) as a basis for removal. We accordingly possess jurisdiction
to review the district court’s remand order under § 1447(d). See Colorado v. Lopez, 919
F.2d 131, 132 (10th Cir. 1990) (reviewing remand order of action removed under §
1443).
We also possess jurisdiction to consider the district court’s denial of Currier’s
motion for reconsideration. Under 28 U.S.C. § 1455(a), criminal defendants must adhere
to Rule 11 of the Federal Rules of Civil Procedure in filing a Notice of Removal. Id.
Whether we apply civil or criminal rules, Currier’s timely motion to reconsider, which
was filed eight days after the remand order, tolled his notice-of-appeal deadline. See Fed.
R. App. P. 4(a)(4)(A) (civil); United States v. Randall, 666 F.3d 1238, 1242 (10th Cir.
2011) (criminal). And although he filed a notice of appeal before that motion was ruled
upon, he filed a timely supplemental notice designating both the remand order and the
order denying reconsideration as the subjects of this appeal.
III
Although the plain text of § 1443(1) could be read as providing removal to protect
equal rights for individuals with disabilities, the Supreme Court has firmly held
otherwise. The Court established a two part test for § 1443(1) removal petitions in
Johnson v. Mississippi, 421 U.S. 213 (1975). “First, it must appear that the right
allegedly denied the removal petitioner arises under a federal law providing for specific
civil rights stated in terms of racial equality.” Id. at 219 (quotation omitted). Second, it
must appear “that the removal petitioner is denied or cannot enforce the specified federal
rights in the courts of the State.” Id. (quotation omitted).
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We agree with the district court that Currier’s claim fails the first prong of the
Johnson test. Currier did not allege violation of a federal law stated in terms of racial
equality. Rather, he claimed that the state refused to enforce his rights under the ADA.
“Claims that prosecution and conviction will violate rights under constitutional or
statutory provisions of general applicability or under statutes not protecting against racial
discrimination, will not suffice.” Id. Because the ADA protects against discrimination
due to disability, and not due to race, a denial of ADA rights does not support § 1443(1)
removal. See 42 U.S.C. § 12101(b) (purpose of the ADA is “elimination of
discrimination against individuals with disabilities”); §12101(a)(4) (distinguishing
disability discrimination from racial discrimination).
On appeal, Currier argues for the first time that his prosecution is driven by
racial bias against Caucasians. Because Currier did not raise this issue in his notice of
removal, it is waived. 28 U.S.C. § 1455(b)(2) (“A failure to state grounds that exist at the
time of the filing of the notice shall constitute a waiver of such grounds . . . .”). And in
any event, Currier’s belated allegation would be insufficient to trigger §1443(1). Under
the second prong of the Johnson test, “it [is] not enough to support removal to allege that
federal equal civil rights have been illegally and corruptly denied by state
administrative officials in advance of trial, that the charges against the defendant are
false, or that the defendant is unable to obtain a fair trial in a particular state court.”
Johnson, 421 U.S. at 222 (quotation omitted). Instead, a removal petitioner must show
that “it can be clearly predicted by reason of the operation of a pervasive and explicit
state or federal law that those rights will inevitably be denied by the very act of
Appellate Case: 15-2077 Document: 01019483079 Date Filed: 08/31/2015 Page: 4
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bringing the defendant to trial in the state court.” City of Greenwood v. Peacock, 384
U.S. 808, 828 (1966). Because Currier’s conclusory allegations of racial bias do not
refer to an explicit state or federal law that would deny him civil rights in state court,
they are insufficient to support removal.
Finally, Currier alleges that the prosecution is driven by systematic harassment
and abuse of power by law enforcement. However, allegations that “the prosecution is
assertedly a sham, corrupt, or without evidentiary basis does not, standing alone, satisfy
the requirements of § 1443(1).” Johnson, 421 U.S. at 219.1
IV
AFFIRMED. Currier’s motion to proceed in forma pauperis is GRANTED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
1
Currier also cites § 1455 as a basis for removal. However, that statute merely
describes the procedural requirements for removing criminal cases; it does not
provide a substantive entitlement for removal. See City of North Las Vegas v. Davis,
No. 13-156, 2013 WL 2394930 at *2 (D. Nev. May 30, 2012) (unpublished).
As noted supra, Currier appeals both the denial of his motion for
reconsideration as well as the district court’s remand. Our analysis applies equally to
both orders.
Appellate Case: 15-2077 Document: 01019483079 Date Filed: 08/31/2015 Page: 5 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_13-cv-01404/USCOURTS-caed-2_13-cv-01404-5/pdf.json | [
[
"Bank of America, N.A.",
"Defendant"
],
[
"Carthel Dennis Boring",
"Plaintiff"
],
[
"Nationstar Mortgage, LLC",
"Defendant"
]
] | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CARTHEL DENNIS BORING, an
individual,
Plaintiff,
v.
NATIONSTAR MORTGAGE, LLC, a
limited liability company;
BANK OF AMERICA, N.A., a
national business
association; and DOES 1-50,
inclusive,
Defendants.
No. 2:13-CV-01404-GEB-CMK
ORDER DENYING VOLUNTARY
DISMISSAL WITH PREJUDICE
Plaintiff filed a joint stipulation voluntarily
dismissing Defendant Bank of America, N.A. under Federal Rule of
Civil Procedure (“Rule”) 41(a)(1)(A)(ii), which states “the
plaintiff may dismiss an action without a court order by filing a
stipulation of dismissal signed by all parties who have
appeared.” (emphasis added.) However, the filed stipulation is
ineffective since it was not signed by all parties.
Dated: July 29, 2015
Case 2:13-cv-01404-GEB-CMK Document 78 Filed 07/30/15 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_15-cv-00208/USCOURTS-caed-2_15-cv-00208-4/pdf.json | [
[
"Barton",
"Defendant"
],
[
"Richard Joseph Crane",
"Plaintiff"
],
[
"Davey",
"Defendant"
],
[
"Probst",
"Defendant"
],
[
"Robinette",
"Defendant"
],
[
"Rodriguez",
"Defendant"
],
[
"Weeks",
"Defendant"
]
] | 1
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
RICHARD JOSEPH CRANE,
Plaintiff,
v.
RODRIGUEZ, et al.,
Defendants.
No. 2:15-cv-0208 TLN KJN P
ORDER AND FINDINGS AND
RECOMMENDATIONS
I. Introduction
Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis. Plaintiff’s
civil rights action, filed pursuant to 42 U.S.C. § 1983, is proceeding on the second amended
complaint against defendants Davey, Rodriguez, Robinette, Weeks, Barton, Probst, and Madrigal,
correctional officers, and two parole commissioners, all located at High Desert State Prison
(“HDSP”). Plaintiff alleges that these defendants retaliated against him for exercising his rights
to access the courts and practice his religion, and failed to protect plaintiff, based on incidents that
occurred at HDSP between February 12, 2009, and March 8, 2013. On September 11, 2015,
plaintiff filed a notice of change of address indicating that he was transferred to the California
State Prison in Lancaster, California (“LAC”). (ECF No. 19.) Pending before the court is
plaintiff’s request for injunctive relief filed September 14, 2015. As set forth below, plaintiff’s
motion should be denied.
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II. Standards
The party requesting preliminary injunctive relief must show that “he is likely to succeed
on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that
the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.
Natural Resources Defense Council, 555 U.S. 7, 20 (2008); Stormans, Inc. v. Selecky, 586 F.3d
1109, 1127 (9th Cir. 2009) (quoting Winter). The propriety of a request for injunctive relief
hinges on a significant threat of irreparable injury that must be imminent in nature. Caribbean
Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988).
Alternatively, under the so-called sliding scale approach, as long as the plaintiff
demonstrates the requisite likelihood of irreparable harm and can show that an injunction is in the
public interest, a preliminary injunction may issue so long as serious questions going to the merits
of the case are raised and the balance of hardships tips sharply in plaintiff’s favor. Alliance for
Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-36 (9th Cir. 2011) (concluding that the “serious
questions” version of the sliding scale test for preliminary injunctions remains viable after
Winter).
The principal purpose of preliminary injunctive relief is to preserve the court’s power to
render a meaningful decision after a trial on the merits. See 11A Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure, § 2947 (2d ed. 2010). As noted above, in addition to
demonstrating that he will suffer irreparable harm if the court fails to grant the preliminary
injunction, plaintiff must show a “fair chance of success on the merits” of his claim. Sports
Form, Inc. v. United Press International, Inc., 686 F.2d 750, 754 (9th Cir. 1982) (internal citation
omitted). Implicit in this required showing is that the relief awarded is only temporary and there
will be a full hearing on the merits of the claims raised in the injunction when the action is
brought to trial. In cases brought by prisoners involving conditions of confinement, any
preliminary injunction “must be narrowly drawn, extend no further than necessary to correct the
harm the court finds requires preliminary relief, and be the least intrusive means necessary to
correct the harm.” 18 U.S.C. § 3626(a)(2).
////
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III. Plaintiff’s Motion
In his motion for injunctive relief, signed August 30, 2015, plaintiff alleges the following:
Prison staff at RJD are “deliberately depriving him of his Eighth Amendment rights to
protection from violence, and are subjecting him to cruel and unusual punishment because of his
litigation in violation of the First Amendment.” (ECF No. 21 at 7.) Officer Cruz refused to
deliver plaintiff to an attorney visit on March 27, 2015. (ECF No. 21 at 4.) Officer Mendoza
wrote a false 128 (counseling chrono) against plaintiff claiming he was out of bounds, which he
claims will be used by the Parole Board to punish him. (ECF No. 21 at 9.) From March 27,
2015, to August of 2015, various correctional officers at RJD refused to provide plaintiff with
lower bunk cell housing. In July of 2015, plaintiff was placed on loss of privilege (“LOP”) status
without a CDCR 115 (rules violation report or “RVR”) or a hearing. Plaintiff claims that
defendants “and agents of CDCR [California Department of Corrections and Rehabilitation] are
clearly acting in a conspiracy to punish plaintiff without cause for his litigation against CDCR
Officials.” (ECF No. 21 at 9.)
Plaintiff supports his request for injunctive relief by including incidents that occurred
prior to plaintiff’s housing at RJD, such as his claims that while housed at Salinas Valley State
Prison (“SVSP”) in 2008, Officers Ambriz and Yee wrote and allegedly backdated a false RVR
for conduct conducive to violence (threats against staff) to support his placement in ad seg and in
retaliation for plaintiff suing them. (ECF No. 21 at 6, 43, 45-46.) Plaintiff also references claims
from the instant action: the parole commissioners relied on the allegedly false August 30, 2003
“Smoking in a State Building” CDC 128A (counseling chrono) (ECF No. 21 at 11), and
repeatedly referred to an allegedly false 2010 RVR for fighting1and a 2010 RVR for misuse of
state property (ECF No. 21 at 80), and the 2008 allegedly false RVR, in denying plaintiff parole
(ECF No. 21 at 6, 11-12). Plaintiff contends that the “current falsification of the LOP and 128A
for allegedly being out-of-bounds proves an ongoing pattern of retaliation with false allegations
by CDCR guards.” (ECF No. 21 at 12, 32.)
1
Plaintiff did not provide a copy of the Board’s transcript in which they allegedly referred to the
2010 RVR for fighting, and did not provide a copy of such RVR.
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IV. Discussion
No defendants are located at RJD, where plaintiff was housed at the time of the
underlying allegations. Thus, the pending motion seeks injunctive relief against individuals who
are not named as defendants. This court is unable to issue an order against individuals who are
not parties to a suit pending before it. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395
U.S. 100, 112 (1969). If plaintiff wishes to challenge the actions of prison staff at RJD, he must
file an action in the Southern District of California.
In addition, plaintiff has now been transferred to LAC, so any threat of imminent physical
harm related to plaintiff’s inappropriate cell housing at RJD or imminent harm related to RJD
prison staff’s alleged retaliation is now moot. See Preiser v. Newkirk, 422 U.S. 395 (1975)
(inmate’s request for declaratory judgment rendered moot by his transfer to another prison).
When an inmate is transferred to another prison and there is no reasonable expectation or
demonstrated probability that he will again be subjected to the conditions from which he seeks
injunctive relief, his claim for injunctive relief should be dismissed as moot. See Dilley v. Gunn,
64 F.3d 1365, 1368-69 (9th Cir. 1995). The possibility that an inmate might be transferred back
to the prison where the injury occurred is too speculative to overcome mootness. Id.; see also
Wiggins v. Rushen, 760 F.2d 1009 (9th Cir. 1985).
Plaintiff’s vague claim that CDCR prison staff are engaged in a pattern and practice of
retaliating against plaintiff by issuing false charges, 128As, and RVRs, without more, is
insufficient to demonstrate that he would be subject to such alleged conditions at LAC. Plaintiff
attempts to connect the LOP and 128A issued in 2015 at RJD with a 128A that issued in 2003 at
Pleasant Valley State Prison (“PVSP”), and with allegedly false RVRs that issued in 2008 at
SVSP for conduct conducive to violence, and in 2010 for misuse of state property at HDSP.
These various charges issued over a wide span of years and thus are remote in time as well as
geography, involve different prison staff, and are unrelated in subject matter. Plaintiff sets forth
no factual allegations demonstrating any connection between the prison staff at RJD and those at
PVSP, SVSP or HDSP. Rather, plaintiff simply alleges that there is a “conspiracy” without
sufficient factual support. Plaintiff’s conclusory claims that all of these RVRs and the 128A were
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false and issued in retaliation for plaintiff exercising his First Amendment rights, standing alone,
fail to demonstrate a pattern or practice. The undersigned finds plaintiff’s alleged conspiracy
claim too attenuated and vague to support an injunctive relief claim.2 If plaintiff challenges the
issuance of the LOP or 128A at RJD, he must file an action in the Southern District of California
after exhausting his administrative remedies.
For all of these reasons, plaintiff’s motion for injunctive relief should be denied.
V. Request for Extension of Time
On September 1, 2015, plaintiff signed a motion for sixty day extension of time to receive
his property, and to secure his change of address and legal property in light of his impending
transfer to LAC. (ECF No. 20 at 1.) However, plaintiff signed a change of address on September
3, 2015 (ECF No. 19). At the time of plaintiff’s filing, there were no pending court deadlines that
required a response. Thus, plaintiff’s motion for extension of time is denied without prejudice.
In an abundance of caution, plaintiff will be granted thirty days in which to file objections to
these findings and recommendations.
VI. Conclusion
Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for extension of time
(ECF No. 20) is denied without prejudice; and
IT IS RECOMMENDED that plaintiff’s request for injunctive relief (ECF No. 21) be
denied.
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 thirty days 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.” Any response to the objections shall be
filed and served within fourteen days after service of the objections. The parties are advised that
2
Plaintiff’s allegations concerning the March 27, 2015 attorney visit are unavailing because he
concedes that his attorney cancelled the appointment without plaintiff’s knowledge. (ECF No. 21
at 3:13-15.) Prison staff cannot be held liable for failing to deliver plaintiff to meet with an
attorney who was not there.
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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: September 22, 2015
/cran0208.pi
Case 2:15-cv-00208-TLN-CSK Document 22 Filed 09/22/15 Page 6 of 6 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca6-19-03151/USCOURTS-ca6-19-03151-0/pdf.json | [
[
"William P. Barr",
"Respondent"
],
[
"Ariel Luna-Romero",
"Petitioner"
]
] | RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0043p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ARIEL LUNA-ROMERO,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
┐
│
│
│
│
│
│
│
┘
No. 19-3151
On Petition for Review from the Board of Immigration Appeals;
No. A 205 486 033.
Decided and Filed: February 11, 2020
Before: BATCHELDER, LARSEN, and MURPHY, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Scott E. Bratton, MARGARET WONG & ASSOCIATES LLC, Cleveland, Ohio,
for Petitioner. Annette M. Wietecha, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
_________________
OPINION
_________________
MURPHY, Circuit Judge. Ariel Luna-Romero, a citizen of Argentina, entered the United
States illegally. When the government sought to remove him, he applied for asylum, 8 U.S.C.
§ 1158(b), withholding of removal, id. § 1231(b)(3)(A), and protection under the Convention
Against Torture (“CAT”), 8 C.F.R. § 1208.16(c). The Board of Immigration Appeals dismissed
his appeal from the denial of these applications. We deny his petition for review.
>
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No. 19-3151 Luna v. Barr Page 2
Luna asserts three well-known claims. Immigrants may seek asylum if they are
“refugees”: those who cannot return to their home country “because of persecution or a wellfounded fear of persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). Immigrants may
also seek the withholding of their removal to a country if their “life or freedom would be
threatened in that country because of [their] race, religion, nationality, membership in a
particular social group, or political opinion.” Id. § 1231(b)(3)(A). And they may seek relief
under the Convention Against Torture if they will be “tortured” in the country to which they will
be removed. 8 C.F.R. § 1208.16(c)(2).
Luna alleges that he would suffer harm in Argentina because of his race (he is
indigenous) and his political opinion (he has advocated for indigenous rights). To support this
claim at his immigration hearing, he testified about past abuses in Argentina. He noted, among
other things, that during the 1990s he became the spokesperson for an indigenous group and
organized about ten protests on its behalf. The police harassed him during these protests, beating
him up “half of the time” and detaining him “three or five times.” On one occasion, an officer
struck him with a police baton, resulting in eight stitches in his eyebrow. And, apart from the
protests, Luna testified that the police had detained him some “57 times” over the years.
An immigration judge denied Luna’s application on the ground that he had not testified
credibly, concluding that he had provided inconsistent and evasive answers. While conceding
that the immigration judge “may have over-emphasized” some of the “apparent discrepancies” in
Luna’s testimony, the Board of Immigration Appeals upheld the adverse credibility finding as
not clearly erroneous. The Board added that Luna’s other evidence could not “independently
establish” any of his three claims for relief.
In his petition for review, Luna asks us to grant him relief despite this adverse credibility
finding. His request faces a high bar. “An adverse credibility finding is usually fatal to an
applicant’s ability to prove entitlement to asylum, withholding of removal, or protection under
the Convention Against Torture.” Rubio-Mauricio v. Barr, 782 F. App’x 444, 446 (6th Cir.
2019). That is so for a combination of reasons.
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No. 19-3151 Luna v. Barr Page 3
Start with the burden of proof: For asylum, “[t]he burden of proof is on the applicant to
establish that the applicant is a refugee,” 8 U.S.C. § 1158(b)(1)(B)(i), which requires at least a
“well-founded fear of persecution,” id. § 1101(a)(42)(A); INS v. Cardoza-Fonseca, 480 U.S.
421, 431 (1987). Applicants seeking withholding of removal or CAT relief likewise bear the
burden of proof. 8 U.S.C. §§ 1229a(c)(4)(A), 1231(b)(3)(C); 8 C.F.R. § 1208.16(c)(2). But they
must make an even more demanding showing of persecution or torture. See Cardoza-Fonseca,
480 U.S. at 423; 8 C.F.R. § 1208.16(b)(1)–(2), (c)(2).
Next consider the evidence that applicants use to meet this burden: In many cases, their
testimony is their primary or even sole evidence. Perlaska v. Holder, 361 F. App’x 655, 661 n.6
(6th Cir. 2010). When an immigration judge finds an applicant’s testimony not credible under
those circumstances, the claim will fail because the applicant has no evidence (or insufficient
evidence) apart from the discredited testimony. See, e.g., Rubio-Mauricio, 782 F. App’x at 446;
Masiko v. Holder, 562 F. App’x 469, 473 (6th Cir. 2014); Ngam v. Holder, 557 F. App’x 511,
513–15 (6th Cir. 2014); Yan Chen v. Holder, 423 F. App’x 557, 562 (6th Cir. 2011); El-Moussa
v. Holder, 569 F.3d 250, 256–57 (6th Cir. 2009). The law contemplates this result. The asylum
statute says that an applicant’s testimony alone can meet the applicant’s burden, “but only if the
applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and
refers to specific facts sufficient to demonstrate that the applicant is a refugee.” 8 U.S.C.
§ 1158(b)(1)(B)(ii). The withholding-of-removal statute incorporates that standard. Id.
§ 1231(b)(3)(C). And CAT regulations likewise note: “The testimony of the applicant,
if credible, may be sufficient to sustain the burden of proof without corroboration.” 8 C.F.R.
§ 1208.16(c)(2) (emphasis added).
Lastly consider our standard of review: Courts must treat “findings of fact,” including
credibility findings, as “conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Rubio-Mauricio, 782 F. App’x at 446.
Since 2005, moreover, the asylum statute has given immigration judges wide latitude to find
testimony not credible. Contrary to pre-2005 standards, an immigration judge may now base an
adverse credibility finding on an inconsistency, inaccuracy, or falsehood “without regard to
whether [the] inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s
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No. 19-3151 Luna v. Barr Page 4
claim[.]” 8 U.S.C. § 1158(b)(1)(B)(iii); El-Moussa, 569 F.3d at 256. So “even ancillary
inconsistencies” may “support adverse credibility determinations.” Sylusar v. Holder, 740 F.3d
1068, 1073 (6th Cir. 2014). These standards also apply to requests for withholding of removal or
for relief under the CAT. 8 U.S.C. §§ 1229a(c)(4)(C), 1231(b)(3)(C); El-Moussa, 569 F.3d at
256.
This case offers a textbook example why adverse credibility findings are “usually fatal.”
Rubio-Mauricio, 782 F. App’x at 446. Only Luna testified at his hearing. He presented little
other evidence, most significantly two letters from friends in Argentina and reports about the
treatment of indigenous people there. On appeal, Luna nowhere suggests that, without his own
testimony, this other evidence would suffice to establish the elements for any of his three claims.
So Luna’s request for judicial relief hinges on our overturning the adverse credibility finding.
Yet the standard of review prevents us from doing so. While not all of the inconsistencies found
by the immigration judge are “beyond debate,” El-Moussa, 569 F.3d at 255, the record does not
“compel[]” the conclusion that Luna was credible, 8 U.S.C. § 1252(b)(4)(B).
We see at least three valid evidentiary grounds for the Board’s decision to uphold the
credibility finding. First, the Board could reasonably find inadequate Luna’s explanation for
failing to initially disclose his criminal history. Luna’s original application said that he had
never been “arrested, charged, convicted, or sentenced for any crimes in the United States[.]” He
later corrected his application to reflect several arrests and traffic citations. Even then, his
amended list of crimes did not include a Tennessee arrest for violating a protective order
obtained by his fiancée. And when asked why he had not listed his arrests in his initial
application, Luna responded that “all I did, I paid for under the law. I’m in good standing with
the law. I paid for the things that I did.” Yet at the time of Luna’s hearing he had an outstanding
New York arrest warrant. The Board could find that Luna’s explanation—that he did not report
the arrests because he deemed himself in “good standing with the law”—showed that he might
shade the truth on other matters too. “Falsus in uno, falsus in omnibus—false in one, false in
all.” Masiko, 562 F. App’x at 473.
Second, the Board could reasonably find many of Luna’s answers “vague and evasive.”
To list a few examples: When asked why he feared that he would be imprisoned if he returned to
Case: 19-3151 Document: 25-2 Filed: 02/11/2020 Page: 4
No. 19-3151 Luna v. Barr Page 5
Argentina, Luna responded: “Because now I’m 46 . . . years old. And I understand that to live—
it’s very important to be—to have equal rights. It’s something very important. And if I were to
return, nobody is going to take away from me that, indeed, we’re equal. We’re all equal.”
Similarly, Luna admitted that several members of his family lived in the United States and knew
about his problems in Argentina. When asked why they had not written letters for him, Luna
answered only that he was “not on speaking terms” with one of them. He did not explain why
the others could not write letters. Likewise, when referring to an incident in which Luna had
fought an Argentine police officer, Luna’s counsel asked him: “What were you charged with?”
Luna responded: “Because I locked the doors using my keys. I said, ‘Let’s talk.’” Luna’s many
non-answers support the Board’s decision that he intentionally gave vague and evasive
testimony.
Third, the Board could reasonably find that Luna “was not accurate and forthcoming”
about his whereabouts over the years. His application stated that he lived in Texas from 2000 to
2004. Yet he admitted at his hearing that he had lived in New York for a month in 2001. His
application stated that he had never “applied for or received any lawful status in any country
other than” Argentina. Yet he admitted at his hearing that he had received temporary residency
in Chile in 2010. His application required him to list the countries in which he had resided or
traveled after leaving Argentina. As corrected, his application reported that he had lived in Chile
from 2009 to 2011. Yet he said at his hearing that he was in Chile for “[j]ust a few months” in
2010. Luna also testified that he had lived in Mexico from 2011 to 2012 because it had taken
him “almost a year to get” to the United States. But his application nowhere mentions a yearlong stay in Mexico.
Luna’s contrary arguments do not change things. He begins by discussing some other
inconsistencies found by the immigration judge that we agree were questionable. The judge, for
example, noted a typographical error about Luna’s birthdate. The Board, however, disavowed
reliance “on inconsistencies that are not supported by the record.” And the Board identified
plenty of irregularities that undoubtedly are supported by the record. “[G]iven the other bases
underpinning the adverse credibility finding,” we need not decide whether some of the more
Case: 19-3151 Document: 25-2 Filed: 02/11/2020 Page: 5
No. 19-3151 Luna v. Barr Page 6
questionable conclusions, “standing alone, would be sufficient to sustain” that finding.
Thayaparan v. Sessions, 688 F. App’x 359, 365 (6th Cir. 2017).
Luna also challenges the characterization of his testimony as evasive. He claims that he
was “providing context” in some of his longer windups, and that the immigration judge failed to
recognize “the complexity” involved. Such an explanation might be “plausible,” but a plausible
explanation is not “enough on appeal to overcome an adverse credibility determination.”
Nolasco-Gonzalez v. Barr, 769 F. App’x 318, 320–21 (6th Cir. 2019).
Luna next argues that the Board wrongly faulted him for correcting his application to
account for his criminal history. The Board did no such thing. It explained that the corrections
themselves did not “support[ ] a negative inference.” Instead, the Board faulted him for his
inadequate explanations for the initial omissions. That “lack of persuasive explanation” is
relevant. Lizhi Shi v. Sessions, 751 F. App’x 684, 690 (6th Cir. 2018). The Board could
conclude that Luna’s own view that he had “paid for all of the things that [he] did” is not a good
reason to give false responses on an asylum application.
As for his inconsistent testimony about his whereabouts over the years, Luna says the
discrepancies were minor and unrelated to his persecution in Argentina. Since 2005, however,
courts may no longer require that inconsistencies “bear on the heart of [an applicant’s] claim” to
support an adverse credibility finding. El-Moussa, 569 F.3d at 256.
Lastly, Luna argues that the Board ignored the other evidence that corroborated his story.
Not so. The Board, for example, did acknowledge the evidence about Argentina’s treatment of
indigenous people generally, but considered it insufficient to establish persecution against Luna
specifically. Luna also cites two letters from friends who described Luna’s experiences in
Argentina. These letters do complement his testimony to some extent. They do not, however,
compel the conclusion that Luna was credible, particularly in light of the lack of testimony from
sources such as family members here in the United States.
“Some of these inconsistencies, in isolation, may seem like small potatoes. What counts,
however, is that their cumulative effect is great.” Pan v. Gonzales, 489 F.3d 80, 86 (1st Cir.
2007). The Board reasonably upheld the adverse credibility determination. That decision,
Case: 19-3151 Document: 25-2 Filed: 02/11/2020 Page: 6
No. 19-3151 Luna v. Barr Page 7
combined with a lack of independent evidence, bars Luna from obtaining the three types of relief
that he seeks.
We deny the petition for review.
Case: 19-3151 Document: 25-2 Filed: 02/11/2020 Page: 7 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-14-05155/USCOURTS-ca10-14-05155-0/pdf.json | [
[
"David A. Abston",
"Petitioner"
]
] | UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
In re: DAVID A. ABSTON,
Petitioner.
No. 14-5155
(D.C. No. 4:09-CV-00643-JHP-PJC)
_________________________________
ORDER
_________________________________
This matter is before the court on David A. Abston’s Motion to Voluntarily
Dismiss Appeal. Upon consideration, the motion is granted and this matter is closed.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
by: Jane K. Castro
Counsel to the Clerk
FILED
United States Court of Appeals
Tenth Circuit
January 27, 2015
Elisabeth A. Shumaker
Clerk of Court
Appellate Case: 14-5155 Document: 01019376710 Date Filed: 01/27/2015 Page: 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca13-15-07096/USCOURTS-ca13-15-07096-0/pdf.json | [
[
"Robert A. McDonald",
"Appellee"
],
[
"Pamela Melvin",
"Appellant"
]
] | NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit ______________________
PAMELA MELVIN,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7096
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-2986, Judge Robert N. Davis.
______________________
Decided: December 14, 2015
______________________
PAMELA MELVIN, Fayetteville, NC, pro se.
MARTIN M. TOMLINSON, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by SCOTT D. AUSTIN, ROBERT E. KIRSCHMAN,
JR., BENJAMIN C. MIZER; CHRISTINA LYNN GREGG, Y. KEN
Case: 15-7096 Document: 20-2 Page: 1 Filed: 12/14/2015
2 MELVIN v. MCDONALD
LEE, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
______________________
Before PROST, Chief Judge, DYK, and CHEN, Circuit
Judges.
PER CURIAM
Pamela Melvin appeals from a decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) dismissing Ms. Melvin’s appeal in part as timebarred. We conclude that the decision of the Veterans
Court was in this respect erroneous as the appeal was not
time-barred. However, as Ms. Melvin argues, the Board
decision was non-final, and thus Ms. Melvin’s appeal was
premature. On this ground we affirm the dismissal of her
appeal in the Veterans Court.
BACKGROUND
In 2001, Ms. Melvin submitted to the VA a serviceconnected disability claim for post-traumatic stress disorder (PTSD). In a decision dated January 6, 2010, the
Board of Veterans Appeals (“the Board”) denied the claim.
The Board decision was initially mailed to an incorrect
address, but Ms. Melvin acknowledges receiving a copy on
March 6, 2012. By statute, Ms. Melvin had 120 days from
receipt of the decision to appeal, that is, until July 4,
2012. Within the 120-day appeal period, on April 13,
2012, Ms. Melvin submitted a filing with the Board that
the Board construed as two separate motions: (1) a motion
to vacate the Board decision based on alleged substantive
errors; and (2) a motion to vacate pursuant to 38 C.F.R.
§ 20.904(a) based on an alleged violation of Ms. Melvin’s
procedural due process rights. The filing of a motion to
vacate rendered the Board decision non-final, and thus
non-appealable.
Case: 15-7096 Document: 20-2 Page: 2 Filed: 12/14/2015
MELVIN v. MCDONALD 3
In an October 4, 2012, letter, the Board purported to
deny Ms. Melvin’s motion to vacate based on alleged
procedural due process violations. The letter informed
Ms. Melvin that it had construed her arguments based on
alleged substantive errors in the Board’s decision as a
CUE motion, which it was going to address separately. A
subsequent October 11, 2012, letter from the Board informed Ms. Melvin that the motion to vacate (construed
as a CUE motion) could not be considered until the Board
decision became final.
On October 11, 2013, Ms. Melvin filed a notice of appeal with the Veterans Court. The court held that because the Board never took action on the substantive
motion to vacate, the Board decision in that respect
remained non-final, and Ms. Melvin’s appeal based on
substantive challenges was unripe. The court therefore
dismissed the appeal on this ground. As for Ms. Melvin’s
procedural due process arguments, the Veterans Court
found that the Board had rejected them in its October 4,
2012, letter to her, and thus the appeal in this respect
was untimely, requiring dismissal of her appeal on this
ground.
Ms. Melvin appeals only the Veterans Court’s dismissal of her due process arguments. We have jurisdiction
under 38 U.S.C. § 7292. See Beasley v. Shinseki, 709 F.3d
1154, 1157 (Fed. Cir. 2013), cert. denied, 134 S. Ct. 679
(2013); Lamb v. Principi, 284 F.3d 1378, 1381–82 (Fed.
Cir. 2002). We review questions of law de novo. Smith v.
Brown, 35 F.3d 1516, 1517 (Fed. Cir. 1994). We may not
review factual determinations or applications of law to
fact. Conway v. Principi, 353 F.3d 1369, 1372 (Fed. Cir.
2004).
DISCUSSION
On appeal, the government commendably agrees that
the Veterans Court erred in treating Ms. Melvin as havCase: 15-7096 Document: 20-2 Page: 3 Filed: 12/14/2015
4 MELVIN v. MCDONALD
ing filed two separate motions and two appeals and in
dismissing her procedural appeal as untimely. The two
motions should have been treated as one single motion
arguing on two separate grounds. The filing of the motion
within 120 days of receipt of the Board decision rendered
that decision non-final until the motion was denied. See
Linville v. West, 165 F.3d 1382, 1385 (Fed. Cir. 1999);
Browne v. Principi, 16 Vet. App. 278, 283 (Vet. App.
2002). Because the substantive challenge (as opposed to
the procedural challenge) has not yet been resolved by the
Board, Ms. Melvin’s appeal was premature, as she argues.
Section 7266(a) of title 38 provides that a person must
file a notice of appeal with the Veterans Court within 120
days after receiving “a final decision of the Board.” The
Board’s October 4, 2012, letter was not a final decision
within the meaning of the statute. When multiple theories are raised with respect to a single claim, as here, the
Veterans Court has explained that “the 120-day requirement for filing a Notice of Appeal will not begin to run
until the Board has denied all theories in support of the
claim that it has identified for consideration.” Roebuck v.
Nicholson, 20 Vet. App. 307, 315–316 (Vet. App. 2006).
Here, both parties agree that Ms. Melvin has raised
only one claim: that she should receive benefits for PTSD.
That Ms. Melvin’s April 13, 2012, filing raised both procedural and substantive theories to challenge the Board
Decision does not change the number of underlying
claims. The Board has yet to deny Ms. Melvin’s substantive challenges. Accordingly, the 120-day requirement for
appealing Ms. Melvin’s claim did not begin to run on her
receipt of the October 4, 2012, letter, and the Veterans
Court erred in holding that her procedural challenge was
untimely.
Because the Veterans Court should have dismissed
Ms. Melvin’s appeal as premature, we affirm the dismisCase: 15-7096 Document: 20-2 Page: 4 Filed: 12/14/2015
MELVIN v. MCDONALD 5
sal of her appeal solely on that ground. Once the Board
addresses Ms. Melvin’s motion to vacate based on substantive arguments, which we assume that it will do
promptly, and the Board decision becomes final, Ms.
Melvin will have 120 days to appeal the Board decision
based on both procedural and substantive theories.
Finally, we reject Ms. Melvin’s argument for sanctions
with respect to the case before the Veterans Court.
Whether sanctions are appropriate is a factual matter
outside the jurisdiction of this court. El Malik v. McDonald, No. 2015-7060, 2015 WL 4080155, *4 (Fed. Cir. July
7, 2015) (unpublished).
AFFIRMED
Costs to appellant.
Case: 15-7096 Document: 20-2 Page: 5 Filed: 12/14/2015 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caDC-15-07071/USCOURTS-caDC-15-07071-0/pdf.json | [
[
"Embassy of Bangladesh",
"Appellee"
],
[
"Serajul Haque",
"Appellant"
]
] | United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 15-7071 September Term, 2015
1:15-cv-00943-UNA
Filed On: December 7, 2015
Serajul Haque,
Appellant
v.
Embassy of Bangladesh, in Washington, DC,
Appellee
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BEFORE: Brown and Wilkins, Circuit Judges; Ginsburg, Senior Circuit Judge
J U D G M E N T
This appeal was considered on the record from the United States District Court
for the District of Columbia and on the brief filed by appellant. See Fed. R. App. P.
34(a)(2); D.C. Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed June 19, 2015,
be affirmed. The district court correctly determined appellant’s complaint failed to
comply with Federal Rule of Civil Procedure 8(a), which, among other things, requires a
complaint to contain a “short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662, 677-78
(2009).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk
is directed to withhold issuance of the mandate herein until seven days after resolution
of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App.
P. 41(b); D.C. Cir. Rule 41.
Per Curiam
USCA Case #15-7071 Document #1587069 Filed: 12/07/2015 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-almd-2_15-cv-00665/USCOURTS-almd-2_15-cv-00665-0/pdf.json | [
[
"Katrina Caver",
"Defendant"
],
[
"Sadaka Davis",
"Plaintiff"
]
] | IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
SADAKA DAVIS, )
)
Plaintiff, )
)
v. ) CIVIL ACTION NO. 2:15CV665-MHT
)
KATRINA CAVER, )
)
Defendants. )
ORDER and RECOMMENDATION OF THE MAGISTRATE JUDGE
By order entered on September 17, 2015, the District Judge has referred this case to the
undersigned for action or recommendation on all pretrial matters. (Doc. # 6). Plaintiff Sadaka Davis,
proceeding pro se, has filed a motion for leave to proceed in forma pauperis in this action (Doc. #
2). Upon consideration of the motion, it is
ORDERED that the motion is GRANTED.
However, upon review of the complaint, the court concludes that dismissal of plaintiff’s
claims pursuant to 28 U.S.C. § 1915(e)(2)(B) is appropriate. Thus, it is further 1
ORDERED that service of process is STAYED pending further order of the court.
The complaint and its attachments – along with the court’s record in other lawsuits that
plaintiff has commenced in this court – reveal that this action arises from an incident that occurred
on September 16, 2014, when William Roebuck (not a party in this action) attempted to repossess
plaintiff’s girlfriend’s car. On September 17, 2014, plaintiff swore out a complaint against Roebuck
The statute provides, in pertinent part: “[T]he court shall dismiss the case at any time if the 1
court determines that . . . the action or appeal– (i) is frivolous or malicious, (ii) fails to state a claim
on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B).
Case 2:15-cv-00665-MHT-SRW Document 7 Filed 09/23/15 Page 1 of 6
in the Clanton municipal court and, the next day, Roebuck swore out a complaint against the
plaintiff. Plaintiff was arrested on a warrant issued byClanton municipal court clerk Velma Tinsley
on a charge of harassment and, on October 28, 2014, he was tried and acquitted by the municipal
court judge. (Complaint and attachments; see also Doc. #13-1 in Civil Action No. 2:14cv1064-
MHT; Complaint and Doc. # 25-1 in Civil Action No. 2:14cv986-WKW).
The present lawsuit is the fifth that plaintiff has filed in this court arising from the
repossession incident and its immediate aftermath. Counting the lawsuit he filed in state court, this 2
is the third complaint that plaintiff has filed against defendant KatrinaCaver. In the previously-filed
lawsuits, plaintiff sued Caver for her actions as the municipal court magistrate in filing “only assault
3rd” charges against Roebuck instead of allowing plaintiff to “press all [of his] charges” against
Roebuck. (See Civil Action No. 2:14cv986-WKW, Docs. # 1, # 47-1 at p. 3, and # 61-1). In this 3
action, plaintiff sues Caver for her “actions of signing (Notorized)[sic] the unlawful paper
instrument” which “resulted in the violation of civil rights and procedures and deprived Sadaka
Davis [of] his (personal) Freedom. (Jailed).” (Complaint, ¶¶ 5, 6). Plaintiff alleges that this
deprivation of his civil rights occurred on September 18, 2014. (Id., ¶ 4). Plaintiff further asserts:
I Sadaka Davis was unlawfully arrested on by Daniel eric Smitherman without a
See Civil Action Nos. 2:14cv986-WKW (against the Clanton police department, Clanton 2
police officer Daniel Eric Smitherman, and Katrina Caver (for her acts as magistrate with regard to
the charges against Roebuck)); 2:14cv1001-MHT (against Roebuck); 2:14cv1064-MHT (against
municipal court judge Jackson); 2: 15cv664-MHT-TFM (against municipal court magistrate Velma
Tinsley). Plaintiff also sued the police department, Smitherman and Caver in state court. See Doc.
# 61-1 and # 61-3 in Civil Action No. 2:14cv986-WKW (Complaint and Order of Dismissal in Case
No. CV-2014-000048.00 in the Circuit Court of Chilton County).
The case filed previously in this court remains pending as to Officer Smitherman. The court 3
dismissed plaintiff’s claims against Caver on November 26, 2014, on the basis of judicial immunity.
(See Docs. ## 9, 16 in Civil Action No. 2:14cv986-WKW).
2
Case 2:15-cv-00665-MHT-SRW Document 7 Filed 09/23/15 Page 2 of 6
Legal warrant of arrest. Due to improper procedures of law KatrinaCaver (notarized
Velma tinsley) Signed in a Magistrate/Judge position on an unlawful arrest warrant
Leading/causing the arrest of Sadaka Davis.
(Complaint at Doc. # 1-1 (separate page styled “Claim + Relief”)(errors in original). Plaintiff alleges
that Caver “signed and produced this Document on her own behalf/reason” during discovery in his
lawsuit against Smitherman, and that Caver’s action resulted in the violation of plaintiff’s civil rights
and deprived him of his freedom. (Complaint, ¶ 5). Plaintiff attaches to his complaint the “unlawful
paper instrument” that bears Caver’s signature and gives rise to plaintiff’s claims against her.
(Complaint at Doc. # 1-2)(arrest warrant).
While Caver’s role in the alleged violation of plaintiff’s constitutional and statutory rights
is difficult to decipher from the allegations in the body of the complaint, but the arrest warrant
plaintiff has attached to the complaint makes clear that plaintiff now sues Caver because of her
conduct on November 12, 2014, in signing as “Municipal Court Clerk,” to certify as “true according
to Clanton Municipal Court records” a copy of the arrest warrant issued by Velma Tinsley. See
Doc. 1-2 (Caver’s signature in stamped certification); cf. Civil Action No. 2:15cv664-MHT,
Complaint at ¶ 5 (plaintiff’s lawsuit against Velma Tinsley for “signing a warrant of arrest in a
Judge/Magistrat[e] position on the paperinstrument resulting in the unlawful arrest of Sadaka Davis
resulting to Jail”); id. at Doc. # 1-1 (attaching to the complaint against Tinsley a duplicate of the
warrant attached to the present complaint, bearing Tinsley’s signature, dated September 18, 2014,
as “Judge/Magistrate/Clerk[,]” and Caver’s November 2014 certification)).
In short, plaintiff alleges that Caver violated his constitutional and statutoryrights and caused
him to be arrested unlawfully on September 18, 2014, by – nearly two months thereafter – certifying
a copy of the arrest warrant as a true copy of the municipal court’s record. For this allegedly
3
Case 2:15-cv-00665-MHT-SRW Document 7 Filed 09/23/15 Page 3 of 6
unlawful conduct, plaintiff seeks judgment against Caver for monetary damages in the amount of
$1,000,000.00. The court concludes that plaintiff has failed to allege a plausible claim for relief
against Caver and, accordingly, that this action is due to be dismissed. In assessing whether a
4
complaint states a claim for relief, the court does not consider “allegations ... that are merely legal
conclusions.” American Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)(citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Instead, the court considers only the allegations of fact
to determine whether the complaint includes “either direct or inferential allegations respecting all
the material elements necessary to sustain a recovery under some viable legal theory.” Randall v.
Scott, 610 F.3d 701, 707 n. 2 (11th Cir. 2010)(internal quotation marks omitted); see Bell Atlantic
Corp v. Twombly, 550 U.S. 544, 555-56 (2007). The complaint must contain allegations of fact
adequate to “nudge[] the[] claim across the line from conceivable to plausible.” Id. at 570.
“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to
relief.’” Iqbal, 556 U.S. at 679 (quoting Rule 8(a)(2))(second alteration in Iqbal).
The underlying basis for plaintiff’s claims is his contention that he was arrested pursuant to
an unlawful warrant. Caver did not issue the warrant; she merely certified a copy of it two months
thereafter. Plaintiff’s allegations of fact fail to suggest even the “mere possibility of misconduct” by
Caver in connection with her certification of the municipal court’s record – even assuming that
In assessing plaintiff’s complaint to determine whether it states a claim, the court may 4
consider the attachments to the complaint. Cf. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.
308, 322 (2007)(in ruling on Rule 12(b)(6) motions to dismiss, courts “ordinarily examine ...
documents incorporated into the complaint by reference”); Thaeter v. Palm Beach County Sheriff’s
Office, 449 F.3d 1342, 1352 (11th Cir. 2006)(in assessing a complaint pursuant to Rule 12(b)(6), the
court considers the complaint and its attached exhibits).
4
Case 2:15-cv-00665-MHT-SRW Document 7 Filed 09/23/15 Page 4 of 6
Tinsley issued the arrest warrant unlawfully – nor do those factual allegations suggest any viable
legal theory under which plaintiff could be entitled to relief. Thus, plaintiff’s complaint fails to state
a claim for relief. Additionally, the complaint is frivolous because it lacks an arguable basis in fact:
Caver’s November 2014 certification of the Clanton municipal court’s record of the arrest warrant
cannot, as a matter of fact, have caused or contributed to the injury of which plaintiff complains –
i.e., the deprivation of his liberty in September 2014. See Neitzke v. Williams, 490 U.S. 319, 325
(1989)(“[A] complaint ... is frivolous where it lacks an arguable basis either in law or in fact.”).
Plaintiff cannot cure this chronological defect in his allegations by amendment.
CONCLUSION
For the foregoing reasons, it is the RECOMMENDATION of the Magistrate Judge that
plaintiff’s claims be DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).
The Clerk of the Court is ORDERED to file the Recommendation of the Magistrate Judge
and to serve a copy on the plaintiff. Plaintiff is DIRECTED to file any objections to this
Recommendation on or before October 7, 2015. Any objections filed must specifically identify the
factual findings and legal conclusions in the Magistrate Judge’s Recommendation to which the
plaintiff objects. Frivolous, conclusive or general objections will not be considered by the District
Court.
Failure to file written objections to the proposed findings and recommendations in the
Magistrate Judge’s report shall bar a party from a de novo determination by the District Court of
factual findings and legal issues covered in the report and shall “waive the right to challenge on
appeal the district court’s order based on unobjected-to factual and legal conclusions” except upon
grounds of plain error if necessary in the interests of justice. 11th Cir. R. 3-1; see Resolution Trust
5
Case 2:15-cv-00665-MHT-SRW Document 7 Filed 09/23/15 Page 5 of 6
Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); Henley v. Johnson, 885 F.2d
790, 794 (11th Cir. 1989).
DONE, this 23 day of September, 2015. rd
/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE
6
Case 2:15-cv-00665-MHT-SRW Document 7 Filed 09/23/15 Page 6 of 6 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_12-cv-01360/USCOURTS-caed-1_12-cv-01360-1/pdf.json | [
[
"Yvonne Hilton",
"Plaintiff"
],
[
"Twain Harte Community Services District",
"Defendant"
]
] | STIPULATION OF THE PARTIES AND ORDER - 1
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JAMES K. WARD, ESQ. (SBN 117639)
DANIEL P. JAY, ESQ. (SBN 215860)
EVANS, WIECKOWSKI & WARD, LLP
745 University Avenue
Sacramento, CA 95825
Telephone: (916)923-1600
Facsimile: (916)923-1616
Attorneys for Defendant
TWAIN HARTE COMMUNITY SERVICES DISTRICT
PUBLIC ENTITY-FILING FEE WAIVED
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
YVONNE HILTON ,
Plaintiff,
vs.
TWAIN HARTE COMMUNITY
SERVICES DISTRICT, and DOES ONE
THROUGH TWENTY, Inclusive,
Defendants,
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 1:12-CV-01360-LJO-SMS
STIPULATION AND DECLARATION;
ORDER RE DISCOVERY CUTOFF
IT IS HEREBY STIPULATED by Plaintiff, YVONNE HILTON, by and through her
attorneys, and Defendant, TWAIN HARTE COMMUNITY SERVICES DISTRICT, by and
through its attorneys, that the September 20, 2013 discovery cut-off date set forth in the Court’s
December 7, 2012 scheduling conference order be continued to November 20, 2013 in order to
allow the parties sufficient time to complete depositions in this matter. This stipulation is based
upon the following facts which the parties submit show good cause to continue the discovery
cut-off date:
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1. That on December 7, 2012 the Court established a non-expert discovery cut-off
date of September 20, 2013.
2. Since the initiation of this case the parties have engaged in extensive written
discovery including exchanges of written special interrogatories and requests for production of
documents. As a result, it is submitted that the parties have been diligent in regard to discovery
in this matter.
3. That Plaintiff’s counsel’s office is located in Redwood City, California.
Defendant’s counsel’s office is located in Sacramento, California. The majority of witnesses in
this case (including the Plaintiff and percipient witnesses) are located in Twain Harte, California.
As a result, each deposition entails a significant amount of travel for both counsel and the
witnesses depending upon the location of the deposition. The parties have endeavored to take
depositions in Stockton, California which is a central location but the depositions in this matter
have entailed a significant amount of logistical wrangling.
4. The Plaintiff’s deposition was started on July 16, 2013 in Sacramento, California.
However, the Plaintiff’s deposition was not completed and counsel for the parties agreed to
finish the Plaintiff’s deposition on another date due to defense counsel’s inability to arrange for
childcare in the evening.
5. Mr. Scot Moody’s deposition (noticed by the Plaintiff) was started on July 24,
2013. However, Mr. Moody’s deposition was not completed on that date due to the witnesses’
inability to stay at the deposition into the evening. As a result, counsel for the parties agreed to
continue his deposition to a mutually agreeable date. Mr. Moody is an important witness to this
case because he is Defendant’s former general manager and made the decision to terminate
Plaintiff’s employment.
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6. The Plaintiff has noticed the deposition of Dennis Timoney for September 25,
2013. The parties agreed to a date outside the September 20, 2013 discovery cutoff in order to
accommodate Mr. Timoney’s (and his attorney’s) schedule and availability. Mr. Timoney is not
available for his deposition any earlier. Mr. Timoney is a chief risk officer for Special District
Risk Management Authority which is the Defendant’s Joint Powers Authority for insurance
purposes. Mr. Timoney investigated certain aspects of Plaintiff’s claim of gender discrimination
prior to the initiation of this lawsuit. Given Mr. Timoney’s importance to the case, the parties
agreed to take his deposition outside the discovery cut-off in order to accommodate Mr.
Timoney’s schedule.
7. The parties have not completed the above-referenced depositions due to the press
of business of counsel and witness availability. Furthermore, Plaintiff’s counsel has just
informed defense counsel that Plaintiff’s counsel is about to undergo a major surgery which
could complicate the process of completing the above-described depositions.
8. Richard Koss, co-counsel for Plaintiff, must undergo major surgery on October 2,
2013. He has been away from his office for the past several weeks due to testing related to the
upcoming surgery and will be unavailable for the next several weeks.
Based upon the foregoing, the parties submit that good cause exists to continue the
discovery cutoff to November 20, 2013 because the above-described witnesses are crucial to
both parties’ preparation of their case; because an amendment to the scheduling order will cause
no prejudice to either party since both parties have agreed to the continuance; and because the
adjustment of the discovery cutoff will not affect the other dates set by this Court and the trial
date will not need to be continued.
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Thus, the parties to this case have stipulated to continue the discovery cut-off of
September 20, 2013 to November 20, 2013.
IT IS SO STIPULATED.
Dated: September 20, 2013 EVANS, WIECKOWSKI & WARD, LLP
/s/ Daniel Jay
___________________________________
JAMES K. WARD
DANIEL JAY
Attorneys for Defendant TWAIN HARTE
COMMUNITY SERVICES DISTRICT
Dated: September 20, 2013 LAW OFFICES OF RICHARD N. KOSS
/s/ Richard N. Koss
___________________________________
RICHARD N. KOSS
Attorney for Plaintiff YVONNE HILTON
DECLARATION OF DANIEL JAY
I, Daniel Jay, do hereby declare and say the following:
1. I am one of the attorneys of record for Defendant in the above-entitled action. I
have prepared this Declaration as evidence in support of the parties’ stipulation and request to
this Court to continue the discovery cutoff date to November 20, 2013. The facts stated in the
stipulation set forth above are true and correct and based upon my personal knowledge.
I declare under the penalty of perjury under the laws of the United States of America that
the facts stated above in the stipulation of the parties is true and correct. This Declaration was
executed on September 20, 2013 in Sacramento, California.
/s/ Daniel Jay
_____________________________
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DECLARATION OF RICHARD KOSS
I, Richard Koss, do hereby declare and say the following:
1. I am one of the attorneys of record for Plaintiff in the above-entitled action. I
have prepared this Declaration as evidence in support of the parties’ stipulation and request to
this Court to continue the discovery cutoff date to November 20, 2013. The facts stated in the
stipulation set forth above are true and correct and based upon my personal knowledge.
2. On September 9, 2013, I was diagnosed with a malignant tumor in my kidney.
Since that time, I have spent many hours in doctors’ offices and undergoing testing to prepare for
my surgery on October 2. I have been told that I will be unavailable for work until at least the
middle of November. My co-counsel, Rand Stephens, will have to undertake our workload by
himself during my absence.
I declare under the penalty of perjury under the laws of the United States of America that
the facts stated above in the stipulation of the parties is true and correct. This Declaration was
executed on September 20, 2013 in Redwood City, California.
/s/ Richard Koss
_____________________________
ORDER
Based upon the stipulation of the parties and good cause appearing, the Court orders that
the discovery cutoff of September 20, 2013 is hereby moved to November 20, 2013.
IT IS SO ORDERED.
Dated: September 23, 2013 /s/ SANDRA M. SNYDER
UNITED STATES MAGISTRATE JUDGE
Case 1:12-cv-01360-SMS Document 17 Filed 09/23/13 Page 5 of 5 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_16-cv-00180/USCOURTS-caed-2_16-cv-00180-0/pdf.json | [
[
"Commissioner of Social Security",
"Defendant"
],
[
"Nannette Ann Tosh-Robb",
"Plaintiff"
]
] | Stip. and Prop. Order to Extend; 2:16-cv-00180-TLN-CMK 1
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BENJAMIN B. WAGNER
United States Attorney
DEBORAH LEE STACHEL
Regional Chief Counsel, Region IX
Social Security Administration
HEATHER M. MOSS, DCBN 995773
Special Assistant United States Attorney
160 Spear Street, Suite 800
San Francisco, CA 94105
Phone: 415-977-8826
Fax: 415-744-0134
Email: [email protected]
Attorneys for Defendant
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
SACRAMENTO DIVISION
NANNETTE ANN TOSH-ROBB,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
)
)
)
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Case No.: 2:16-cv-00180-TLN-CMK
STIPULATION AND ORDER
FOR AN EXTENSION OF TIME
Defendant CAROLYN W. COLVIN, Acting Commissioner of Social Security, through
her counsel of record, hereby moves the Court to extend the time from August 31, 2016, to
September 30, 2016, for Defendant to file her opposition, and to extend the remaining case
deadlines accordingly.
There is good cause for extending the case deadlines because Counsel has an unusually
robust caseload, which includes over 30 active U.S. District Court cases in various stages of
briefing, as well as employment litigation and legal opinion assignments. Additional time is
needed to responsibly respond to Plaintiff’s contentions. Counsel apologizes to the Court for any
Case 2:16-cv-00180-TLN-CMK Document 14 Filed 08/31/16 Page 1 of 2
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inconvenience that this may cause and assures all parties that she has taken every action to
minimize it.
Respectfully submitted,
Dated: August 23, 2016 BENJAMIN B. WAGNER
United States Attorney
DEBORAH LEE STACHEL
Regional Chief Counsel, Region IX
Social Security Administration
By /s/ Heather M. Moss
HEATHER M. MOSS
Special Assistant U.S. Attorney
Attorneys for Defendant
Date: August 23, 2016 SHELLIE LOTT
Cerney Kreuze & Lott, LLP
/s/ Shellie Lott*
SHELLIE LOTT
[*By email authorization]
Attorney for Plaintiff
ORDER
APPROVED AND SO ORDERED:
Dated: August 30, 2016
Case 2:16-cv-00180-TLN-CMK Document 14 Filed 08/31/16 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-4_18-cv-06510/USCOURTS-cand-4_18-cv-06510-2/pdf.json | [
[
"Billy Alabsi",
"Plaintiff"
],
[
"Savoya, LLC",
"Defendant"
]
] | 1
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
BILLY ALABSI,
Plaintiff,
v.
SAVOYA, LLC,
Defendant.
Case No. 18-cv-06510-KAW
ORDER GRANTING MOTION FOR
PRELIMINARY APPROVAL
Re: Dkt. No. 62
Plaintiff Billy Alabsi filed the instant putative class and collective against Defendant
Savoya, LLC, alleging violations of the Fair Labor Standards Act (“FLSA”) and various state
labor laws. (See First Am. Compl. (“FAC”), Dkt. No. 29.) Pending before the Court is Plaintiff’s
motion for preliminary approval of a settlement agreement between the parties. (Pl.’s Mot., Dkt.
No. 62.) Having considered the parties’ filings and the arguments presented at the January 16,
2020 motion hearing, and for the reasons set forth below, the Court GRANTS Plaintiff’s motion
for preliminary approval.
I. BACKGROUND
A. Factual Background
Defendant operates a chauffeured limousine and luxury car transportation service. (FAC ¶
15.) Plaintiff and the putative class worked for Defendant as drivers. (FAC ¶ 1.)
Plaintiff alleges that Defendant misclassified its drivers as independent contractors, rather
than employees. (FAC ¶¶ 15, 29.) For example, Plaintiff asserts that Defendant has and exercises
extensive control over its drivers, assigning specific customers, locations, pickup times, and
destinations. (FAC ¶ 18.) Further, while drivers have the right to decline assignments, they are
penalized for declining jobs by not receiving future jobs from Defendant. (FAC ¶ 19.) Defendant
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requires drivers to provide their own vehicles, which must usually be black, less than three years
old, free of any visible damage, and be on Defendant's list of approved vehicles. (FAC ¶ 20.)
Defendant requires drivers to use environmentally responsible maintenance procedures. (FAC ¶
20.) Vehicles must be stocked with an umbrella, bottled water, newspapers, maps, GPS device,
and a detailing kit. (FAC ¶ 21.) They must also be free of magazines, tissues, candy, promotional
materials, or items hanging from the rearview mirror. Vehicles must be non-smoking and have a
neutral odor, and not contain visible air fresheners. (FAC ¶ 21.) Drivers must use tablets with
computer-generated signage, cannot speak unless spoken to, confirm radio and temperature
preferences with passengers during the first five minutes of the trip, and never discuss rates with
passengers. (FAC ¶ 22.)
Defendant monitors its drivers by requiring that they keep Defendant's app on and use
status update buttons to indicate when they are onsite, when the passenger is onboard, and when
the passenger is dropped off. (FAC ¶ 23.) Drivers must arrive at jobs fifteen minutes early, or
"spot time," and attend meetings, which they are not compensated for. (FAC ¶¶ 32-33.)
Defendant also requires that drivers have liability insurance in a minimum amount set by
Defendant, that Defendant is listed as an Additional Insured on the insurance policy, and that the
policy come from an insurance carrier with an A.M. Best rating of A-VII. (FAC ¶ 24.) Finally,
Defendant has the right to terminate drivers without cause with 30 days' notice. (FAC ¶ 25.)
Plaintiff asserts that by misclassifying drivers as independent contractors, Defendant fails
to reimburse drivers for expenses including vehicle costs and other operation costs such as
garaging, fuel, maintenance, repair, cleaning, licensing, insurance premiums, cell phone and
tablets services, and stocking the vehicle with Defendant-required items. (FAC ¶ 29.) Plaintiff
further alleges that after taking into account these expenses, drivers may earn less than minimum
wage. (FAC ¶ 67.) Plaintiff also points to the failure to pay for spot time and the mandatory
meetings. (FAC ¶ 68.) Finally, Plaintiff alleges that Defendant failed to pay overtime because
Defendant compensated its drivers at the same rate schedule for all hours worked, including
overtime. (FAC ¶ 76.)
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B. Procedural History
On October 24, 2018, Plaintiff filed the instant putative class and collective action against
Defendant. (Compl., Dkt. No. 1.) On January 9, 2019, Plaintiff filed his amended complaint,
bringing claims for: (1) failure to pay minimum wage in violation of the FLSA; (2) failure to pay
overtime in violation of the FLSA; (3) failure to pay minimum wage compensation in violation of
California Labor Code §§ 1194 and 1197, and Industrial Welfare Commission ("IWC") wage
orders; (4) failure to pay overtime in violation of California Labor Code §§ 510, 1194, and 1198,
and IWC wage orders; (5) failure to reimburse business expenses in violation of California Labor
Code § 2802; (6) failure to provide and/or authorize meal and rest periods in violation of
California Labor Code §§ 226.7 and 512, and IWC wage orders; (7) failure to provide accurate
itemized wage statements in violation of California Labor Code § 226; (8) waiting time penalties
in violation of California Labor Code §§ 201-203; (9) unfair business practices in violation of
California Business & Professions Code § 17200 et seq.; and (10) civil penalties pursuant to the
Private Attorneys General Act. (FAC at 12-26.)
Defendant filed a motion to transfer and a motion to dismiss. (Dkt. Nos. 22, 34.) On
March 25, 2019, the Court denied the motion to transfer and granted in part and denied in part the
motion to dismiss. (Dkt. No. 52.) Plaintiff was ordered to file an amended complaint within
ninety days. The parties subsequently requested that the Court stay all deadlines in order to attend
private mediation. (Dkt. No. 56.)
On September 17, 2019, the Court was informed that the parties had successfully mediated
the case on August 29, 2019. (Dkt. No. 60.) On October 23, 2019, Plaintiff filed the instant
motion for preliminary approval of the class settlement. On November 8, 2019, Defendant filed a
statement of non-opposition. (Dkt. No. 64.) On November 13, 2019, the Court requested
supplemental briefing. (Dkt. No. 65.) On December 2, 2019, the parties submitted a supplemental
brief in response. (Supp. Brief., Dkt. No. 67.) On January 16, 2020, the Court held a hearing on
the matter, in which changes were requested. (See Dkt. No. 74.) On January 22, 2020, the parties
filed a declaration regarding the requested changes. (Chin Decl., Dkt. No. 76.) On January 30,
2020, the Court requested additional supplemental briefing. (Dkt. No. 77.) On January 31, 2020,
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the parties filed a supplemental declaration in response. (Supp. Chin Decl., Dkt. No. 78.)
C. Settlement Agreement
Under the terms of the settlement agreement, Defendant agrees to pay a “Total Settlement
Amount” of $750,000 to settle the claims of the 44 drivers who worked for Defendant in
California. (Schwartz Decl., Exh. 1(“Settlement Agreement”) ¶ 35, Dkt. No. 62-2; Pl.’s Mot. at
1.) Of the Total Settlement Amount, Plaintiff’s counsel intends to seek an award of 25%, or
$187,500 for attorney’s fees and $6,000 in costs.1 (Pl.’s Mot. at 4.) The Total Settlement Amount
also includes a $7,500 incentive payment for the named Plaintiff, and an estimated $10,000 for
administration costs.2 (Id.; Settlement Agreement ¶¶ 45, 56.) Finally, the Maximum Settlement
Amount includes $10,000 in penalties under California’s Private Attorneys General Act
(“PAGA”); $7,500 shall be paid to the California Labor and Workforce Development Agency
(“LWDA”) and $2,500 will be part of the Net Settlement Amount for distribution to the
participating class members. (Settlement Agreement ¶ 61; Supp. Brief at 6.) This leaves a Net
Settlement Amount of $531,500 for the 44 class members. (Pl.’s Mot. at 4.)
The Settlement will be distributed to the class members based on the number of
workweeks completed during the relevant class period. (Settlement Agreement ¶¶ 25, 47.)
Additionally, 5% of the Net Settlement Amount will be allotted to waiting time penalties, as the
waiting time penalties represent approximately 5% of the total damages estimate. (Supp. Chin
Decl. ¶ 6.) This amount will be divided between former drivers, based on their average weekly
earnings. (Supp. Chin Decl. ¶ 7.) The claims being released by the Settlement are the causes of
action asserted in the Action, as well as any additional wage and hour claims that could have been
asserted in the Action based on the facts and transactions pled in the complaint. (Pl.’s Mot. at 12;
Settlement Agreement ¶ 8.)
1 At the hearing, Plaintiff’s counsel stated that the 25% attorney’s fees does not in fact include
litigation costs, but that costs were expected to be $6,000. Thus, the net settlement fund was
reduced to $531,500.
2
In its supplemental briefing, the parties stated the expected settlement administration costs were
$7,892.00.
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Once the Court grants preliminary approval, the Settlement Administrator is responsible
for mailing a Class Notice to the class members. (Settlement Agreement ¶¶ 62(d), 63(a).) The
Settlement Administrator shall use the most current mailing address from Defendant’s records or
any more current address discovered from an address search. (Settlement Agreement ¶ 63(a).) If
a Class Notice is returned with a forwarding address, the Settlement Administrator shall re-mail
the Class Notice. If a Class Notice is returned without a forwarding address, the Settlement
Administrator will conduct address searches using skip tracing methods, and re-mail the Class
Notice. (Settlement Agreement ¶ 63(b).)
The class is bound by the settlement unless they timely submit an exclusion letter.
(Settlement Agreement ¶ 64(b).) Participating class members may also file a dispute, and
Defendant shall work with the Settlement Administrator to provide available information
necessary to resolve the issue. (Settlement Agreement ¶ 66.)
Individuals who do not opt out will receive a settlement check. The settlement check will
state: “By cashing this check, you are agreeing to release all claims covered by this settlement.
You will be opting into the Fair Labor Standards Act (‘FLSA’) settlement, and you will also be
exercising and releasing your claims under the FLSA.” (Settlement Agreement ¶ 68(c).) Payment
will be made in three installments, as Defendant will be delivering the Total Settlement Amount in
three equal payments, every six months, to the Settlement Administrator. (Settlement Agreement
¶¶ 69, 70; Schwartz Decl. ¶ 11.) Defendant is also required to submit a Standby Letter of Credit
from a commercial bank, providing a guarantee to satisfy the settlement amount. (Settlement
Agreement ¶ 69.)
Class members will have 180 days to cash the settlement check. (Settlement Agreement ¶
48; Chin Decl., Exh. 2.) If the first and second installment checks are not cashed, they will be
voided and distributed in the next installment pro rata to the class members who did cash their
checks. Subsequent checks will not be sent to class members who could not be located and/or did
not cash their prior checks. (Settlement Agreement ¶ 48.) Any third installment checks not
cashed will be voided; if the amount is over $20,000, the amount will be re-distributed to drivers
who cashed their third installment check. If it is under $20,000, the amount will be paid to the cy
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pres beneficiary, Legal Aid at Work. (Settlement Agreement ¶ 48; Chin Decl., Exh. 2.)
II. LEGAL STANDARD
Per Federal Rule of Civil Procedure 23(e), "[t]he claims, issues, or defenses of a certified
class may be settled, voluntarily dismissed, or compromised only with the court's approval." The
purpose of requiring court approval "is to protect the unnamed members of the class from unjust
or unfair settlements affecting their rights." In re Syncor ERISA Litig., 516 F.3d 1095, 1100 (9th
Cir. 2008). Thus, before approving a settlement, the Court must conclude that the settlement is
"fundamentally fair, adequate, and reasonable." Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026
(9th Cir. 1998). This inquiry:
requires the district court to balance a number of factors: the
strength of the plaintiff's case; the risk, expense, complexity, and
likely duration of further litigation; the risk of maintaining class
action status throughout the trial; the amount offered in settlement;
the extent of discovery completed and the stage of the proceedings;
the experience and views of counsel; the presence of a government
participant; and the reaction of the class members to the proposed
settlement.
Id.; see also Churchill Vill. L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004) (same).
Furthermore, the Ninth Circuit has recognized that where no class has been formally
certified, "there is an even greater potential for a breach of fiduciary duty owed the class during
settlement. Accordingly, such agreements must withstand an even higher level of scrutiny for
evidence of collusion or other conflicts of interest than is ordinarily required under Rule 23(e)
before securing the court's approval as fair." In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d
935, 947 (9th Cir. 2011); see also Lane v. Facebook, Inc., 696 F.3d 811, 819 (9th Cir. 2012)
("when . . . the settlement takes place before formal class certification, settlement approval
requires a 'higher standard of fairness'"). This more "exacting review" is required "to ensure that
class representatives and their counsel do not secure a disproportionate benefit at the expense of
the unnamed plaintiffs who class counsel had a duty to represent." Lane, 696 F.3d at 819 (internal
quotation omitted); see also Hanlon, 150 F.3d at 1026 ("The dangers of collusion between class
counsel and the defendant, as well as the need for additional protections when the settlement is not
negotiated by a court[-]designated class representative, weigh in favor of a more probing inquiry
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than may normally be required under Rule 23(e)").
When applying Rule 23(e), the courts use a two-step process for the approval of class
action settlements. First, the Court decides whether the class action settlement deserves
preliminary approval. Second, after notice is given to class members, the Court determines
whether final approval is warranted. See O'Connor v. Uber Techs., Inc., 201 F. Supp. 3d 1110,
1121-22 (N.D. Cal. 2016). At the preliminary approval stage, courts in this district "have stated
that the relevant inquiry is whether the settlement falls within the range of possible approval or
within the range of reasonableness." Cotter v. Lyft, 176 F. Supp. 3d 930, 935 (N.D. Cal. 2016)
(internal quotation omitted). "In determining whether the proposed settlement falls within the
range of reasonableness, perhaps the most important factor to consider is plaintiff's expected
recovery balanced against the value of the settlement offer." Id.; see also O'Connor, 201 F. Supp.
3d at 1122. This determination "requires evaluating the relative strengths and weaknesses of the
plaintiffs' case; it may be reasonable to settle a weak claim for relatively little, while it is not
reasonable to settle a strong claim for the same amount." Cotter, 176 F. Supp. at 936 (citing In re
High-Tech Emp. Antitrust Litig., Case No: 11-cv-2509-LHK, 2014 WL 3917126, at *4 (N.D. Cal.
Aug. 8, 2014).
In addition to considering whether the settlement falls within the range of reasonableness,
courts in this district also consider whether the settlement: "(1) appears to be the product of
serious, informed, non-collusive negotiations; (2) has no obvious deficiencies; [and] (3) does not
improperly grant preferential treatment to class representatives or segments of the class." In re
Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1079 (N.D. Cal. 2007) (internal quotation
omitted). With respect to the level of scrutiny applied to this determination, "district courts often
state or imply that scrutiny should be more lax." Cotter, 193 F. Supp. 3d at 1035-36. Several
courts in this district have begun to question that "lax review" as "mak[ing] little practical sense."
Id. at 1036. Instead, these courts suggest that "scrutinizing the agreement carefully at the initial
stage and identifying any flaws that can be identified . . . allows the parties to decide how to
respond to those flaws (whether by fixing them or opting not to settle) before they waste a great
deal of time and money in the notice and opt-out process." Id.
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III. DISCUSSION
A. Class Certification
Before determining the fairness of a class action settlement, the Court must as a threshold
matter "ascertain whether the proposed settlement class satisfies the requirements of Rule 23(a) of
the Federal Rules of Civil Procedure applicable to all class actions, namely: (1) numerosity, (2)
commonality, (3) typicality, and (4) adequacy of representation." Hanlon, 150 F.3d at 1019. The
Court must also find that at least one requirement of Rule 23(b) is satisfied. Id. at 1022.
The Court finds that for the purposes of approval of the class action settlement, the Rule
23(a) requirements are satisfied. First, numerosity exists because the settlement class includes 44
class members. Ries v. Ariz. Beverages USA LLC, 287 F.R.D. 523, 536 (N.D. Cal. 2012) ("While
there is no fixed number that satisfies the numerosity requirement, as a general matter, a class
greater than forty often satisfies the requirement, while one less than twenty-one does not").
Second, commonality exists because there are "questions of fact and law which are common to the
class," namely whether Defendant misclassified its drivers as independent contractors. Fed. R.
Civ. P. 23(a)(2); see also Hanlon, 150 F.3d at 1019-20 (noting that the commonality requirement
is "permissive" and "has been construed permissively"). Third, typicality exists because the
named Plaintiff's claims are "reasonably co-extensive with those of absent class members," as
Plaintiff was a driver for Defendant during the relevant time, and was subject to the same practices
of misclassification and failure to pay overtime, minimum wage, and expenses. See Hanlon, 150
F.3d at 1020. Finally, adequacy exists because there is no evidence that Plaintiff and Plaintiff's
counsel have any conflicts of interest with the proposed class, or that Plaintiff and Plaintiff's
counsel will not vigorously prosecute the case on behalf of the class. See id. ("Resolution of two
questions determines legal adequacy: (1) do the named plaintiffs and their counsel have any
conflicts of interest with other class members and (2) will the named plaintiffs and their counsel
prosecute the action vigorously on behalf of the class?").
The Court also concludes that the Rule 23(b)(3) requirement is satisfied. Under Rule
23(b)(3), the Court must find that "the questions of law or fact common to class members
predominate over any questions affecting only individual members, and that a class action is
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superior to other available methods for fairly and efficiently adjudicating the controversy." Here,
the Court finds that predominance is satisfied because Plaintiff's claims arise from Defendant's
alleged policy of misclassifying its drivers. Further, the Court finds that superiority is satisfied
because the alternative method to a class action likely involves "individual claims for a small
amount of . . . damages," resulting in most cases involving "litigation costs [that] dwarf potential
recovery." Hanlon, 150 F.3d at 1023.
The Court therefore provisionally certifies the class for settlement purposes.
B. Preliminary Approval Factors
i. Range of Reasonableness
In considering whether the Settlement Agreement falls within the range of possible
approval, the Court "primarily consider[s] plaintiffs' expected recovery balanced against the value
of the settlement offer." Viceral v. Mistras Grp., Inc., Case No. 15-cv-2198-EMC, 2016 WL
5907869, at *7 (N.D. Cal. Oct. 11, 2016). Here, Plaintiff estimates the miscalculation of overtime
at $27,283.84, missed meal breaks at $231,218.83, missed rest periods at $336,120.19, unpaid
minimum wages at $44,685.27, expense reimbursements at $672,742.50, inaccurate wage
statements at $59,900, and waiting time penalties at $68,801.92, for a total of $1,440,752.55.
(Supp. Brief at 3-4.) Plaintiff also estimates PAGA penalties at $1,042,000. (Id. at 4-5.) The
Gross Settlement Amount of $750,000 represents 52% of the value of the non-PAGA claims, and
30.2% of all claims. Courts in this district have approved settlements with similar discounts,
depending on the strength of the plaintiff's case and the risks in pursuing further litigation. See
Viceral, 2016 WL 5907869, at *7 (approving case which represented 8.1% of the total verdict
value).
Plaintiff identifies a number of risks that make the proposed settlement fall within a range
of reasonableness. First, there is a risk that Plaintiff will not be able to establish that drivers were
misclassified as independent contractors. For example, under the FLSA, “employees are those
who as a matter of economic reality are dependent upon the business to which they render
service.” Real v. Driscoll Strawberry Assocs., Inc., 603 F.2d 748, 754 (9th Cir. 1979) (internal
quotation omitted). In turn, California applies the Borello right-to-control test, which considers
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“whether the person to whom service is rendered has the right to control the manner and means of
accomplishing the result desired.” Alexander v. FedEx Ground Package Sys., Inc., 765 F.3d 981,
988 (9th Cir. 2014) (internal quotation omitted). Under these tests, courts have found drivers for
Uber and Grubhub to be independent contractors, rather than employees. See Razak v. Uber
Techs., Inc., Civil Action 16-573, 2018 WL 1744467 (E.D. Penn. Apr. 11, 2018) (finding on
summary judgment that UberBlack drivers were independent contractors); Lawson v. Grubhub,
Inc., 302 F. Supp. 3d 1071 (N.D. Cal. 2018) (finding after a bench trial that the plaintiff did not
establish a right to control).
Alternatively, under the “ABC” test, an employer must prove: (A) a worker is free from
the control and direction of the hiring entity with respect to performance of the work, (B) the
worker performs work outside the usual course of the hiring entity’s business, and (C) the worker
is customarily engaged in an independently established trade, occupation, or business. Dynamex
Operations W. v. Superior Court, 4 Cal. 5th 903, 955-56 (2018). If the employer fails to prove
any factor, a worker is an employee. In denying Defendant’s motion to dismiss, the Court found
Defendant had not established Part B. (Dkt. No. 52 at 25-26.) Plaintiff, however, points out that it
is not clear the ABC test applies “in every instance where a worker must be classified as either an
independent contractor or an employee for purposes of enforcing California’s labor protections.”
Cal. Trucking Ass’n v. Su, 903 F.3d 953, 959 n.5 (9th Cir. 2018); see Dynamex, 4 Cal. 5th at 956-
57 (finding that the ABC test applies to claims arising from an IWC order). Moreover, it is not
clear if Dynamex applies retroactively, and the Ninth Circuit has recently certified that question to
the California Supreme Court. Vazquez v. Jan-Pro Franchising Int’l, Inc., 939 F.3d 1045, 1048
(9th Cir. 2019). Thus, there is a risk that the ABC test would not apply to many of the claims in
this case, including all claims that do not arise from an IWC wage order.
Second, Plaintiff points to the risk that he would not have been able to prove that
Defendant’s violations were willful, which would also reduce the damages. (Pl.’s St. at 8-9.) For
example, if Plaintiff did not establish willfulness, the FLSA statute of limitations would be
reduced to two years. See 29 U.S.C. §255(a). If Defendant established a good faith defense,
Plaintiff’s claims under Labor Code § 203 and 226 could be barred, and liquidated damages could
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be eliminated for the FLSA claims. 29 U.S.C. § 260. Finally, Plaintiff asserts that its PAGA
claim for violations of § 226.8 (willful misclassification) would have been reduced because §
226.8(i)(4) requires voluntarily and knowing misclassification. (Pl.’s Mot. at 8.) This claim alone
is worth an estimated $420,000. (Supp. Brief at 5.)
Finally, separate from the legal challenges, Plaintiff also points to the risk of non-payment
due to Defendant’s financial concerns. (Pl.’s Mot. at 5-6.) At mediation, Defendant presented
Plaintiff with information showing there was a significant risk of non-payment. (Schwartz Decl.
¶18.) Defendant’s counsel has also presented evidence for the Court’s in camera review regarding
its financials. Such risk of non-payment, even if Plaintiff prevails on the merits, makes the
proposed settlement more reasonable.
Given the numerous legal risks and the risk of Defendant’s inability to pay, the Court finds
that the proposed settlement falls within the range of reasonableness. This factor thus weighs in
favor of preliminary approval.
ii. Serious, Informed Negotiations
Next, the Court considers how the parties arrived at the settlement, specifically whether the
settlement was "the product of an arms-length, non-collusive, negotiated resolution." Rodriguez v.
W. Publ'g Co., 563 F.3d 948, 965 (9th Cir. 2009). Here, Plaintiff initiated formal discovery and
obtained tens of thousands of pages of documents, and also conducted extensive mediation-related
discovery concerning damages. (Schwartz Decl. ¶ 2.) The parties then attended mediation with
Cynthia Remmers. (Schwartz Decl. ¶ 5.) After a full day of mediation, the parties executed a
memorandum of understanding. (Schwartz Decl. ¶ 6.) In agreeing to the Settlement Agreement,
Plaintiff relied on the information, documents, and data provided by Defendant. (Schwartz Decl. ¶
8.) Plaintiff’s counsel was able to calculate the class members’ theoretical damages. (Schwartz
Decl. ¶ 10; Supp. Schwartz Decl. ¶¶ 6-13, Dkt. No. 67-1.) The Court finds that the parties reached
the settlement via an arms-length, non-collusive, negotiated resolution, and that this factor weighs
in favor of preliminary approval.
iii. No Obvious Deficiencies
The Court finds no obvious deficiencies at this time. With respect to the $7,500 incentive
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payment, however, the Court will review the class representative service payment at the final
approval stage. The Court notes that "[s]everal courts in this District have indicated that incentive
payments of $10,000 or $25,000 are quite high and/or that, as a general matter, $5,000 is a
reasonable amount." Harris v. Vector Mktg. Corp., Case No. 08-cv-5198-EMC, 2012 WL
381202, at *6 (N.D. Cal. Feb. 6, 2012) (internal quotation omitted). When moving for final
approval, Plaintiff must be prepared to explain why he is entitled to more than the $5,000
benchmark amount, citing to specific cases with similar facts as to the amount of time spent by
Plaintiff.
At the hearing, Plaintiff also confirmed that Plaintiff had submitted a copy of the
settlement to the LWDA, and had not received any comments. Likewise, the Court requested
information as to whether notice under the Class Action Fairness Act (“CAFA”) was required.
(Dkt. No. 65 at 3.) The parties explained that CAFA notice was not required because the case was
not brought under CAFA jurisdiction but federal question jurisdiction, as there are not at least 100
plaintiffs in the class and the amount in controversy does not exceed $5 million. 28 U.S.C. §§
1332(d)(2), (d)(5).
Finally, the Court requested changes to the Class Notice and procedures for objecting to
the settlement, which the parties have modified accordingly. At the hearing, the Court required
additional changes, including adding a $10,000 maximum to Paragraph 10(a)(i) and removing “up
to” in Paragraph 10. The parties have submitted a new notice, and the Court has reviewed it. The
Court finds that the parties' changes have addressed most of the Court's concerns, and thus this
factor weighs in favor of preliminary approval.
iv. Preferential Treatment
Finally, the Court considers whether the Settlement provides preferential treatment to any
class members. The Court concludes that the Settlement does not. The Settlement provides that
each class member’s share will be based on their number of work weeks. Additionally, while
former drivers are receiving an additional amount, this is to account for their waiting time
penalties claim. This factor weighs in favor of preliminary approval.
v. Notice Procedure
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The Court has reviewed the content of the proposed notice, including the revised draft
submitted on January 22, 2020, and finds that they are adequate to inform the putative class and
collective action members of the terms of the Settlement Agreement and their ability to object.
Accordingly, the Court approves the proposed notice procedures.
IV. CONCLUSION
The Court finds that based on the above factors, preliminary approval is warranted, subject
to the additional changes to the notices being made. The Court therefore GRANTS preliminary
approval of the parties' proposed Settlement Agreement, including the provisional certification of
the class action. The Court APPOINTS, for settlement purposes only, Billy Alabsi as class
representative; Bryan Schwartz Law as class counsel; and Rust Consulting as Settlement
Administrator. The Court APPROVES the revised notice provided by the parties on January 22,
2020. The Court sets the following schedule:
Action: Date:
Defendants to provide Class Member list to
Settlement Administrator
10 days from the date of this order
Settlement Administrator to mail Notice
Packets
20 days from the date of this order
Class Counsel to file Motion for Attorney's
fees, costs, and class representative service
awards
35 days before the Final Approval Hearing
Deadline for Class Members to opt-out and/or
object to the Settlement Agreement
40 days after mailing of Notice Packets
Plaintiffs to file Motion for Final Settlement
Approval
35 days before the Final Approval Hearing
Final Approval Hearing May 21, 2020 at 1:30 p.m.
IT IS SO ORDERED.
Dated: February 6, 2020
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge
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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_15-cv-04388/USCOURTS-cand-3_15-cv-04388-0/pdf.json | [
[
"Crespin Lieselotte",
"Defendant"
],
[
"Los Molcajetes",
"Defendant"
],
[
"Francisca Moralez",
"Plaintiff"
]
] | 1
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United States District Court
Northern District of Californi
a
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
FRANCISCA MORALEZ,
Plaintiff,
v.
CRESPIN LIESELOTTE,
Defendant.
Case No. 15-cv-04388-EDL
ORDER TO FILE MOTION FOR
DEFAULT JUDGMENT
Plaintiff filed this suit for violation of the Americans With Disabilities Act against
Defendants Los Molcajetes and Crespin Lieselotte on September 24, 2015. Plaintiff then
voluntarily dismissed Los Molcajetes and the Clerk of Court entered default against Crespin
Lieselotte, the only remaining defendant. Plaintiff is hereby Ordered to either dismiss the action
in its entirety or file a motion for default judgment by no later than June 1, 2016. If Plaintiff does
not make the required filing, the action may be dismissed for failure to prosecute.
IT IS SO ORDERED.
Dated: May 16, 2016
ELIZABETH D. LAPORTE
United States Magistrate Judge
Case 3:15-cv-04388-CRB Document 15 Filed 05/16/16 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_06-cv-00739/USCOURTS-caed-1_06-cv-00739-1/pdf.json | [
[
"Michelle L. Joe",
"Petitioner"
],
[
"Gwendolyn Mitchell",
"Respondent"
]
] | 1
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The Federal Rules of Civil Procedure are “applicable to habeas corpus proceedings to the extent that the 1
practice in such proceedings are not set forth in the statutes of the United States and has heretofore conformed to the
practice of civil actions.” Fed.R.Civ.P. 81(a)(2). Rule 11 also provides “the Federal Rules of Civil Procedure, to the
extent that they are not inconsistent with these rules, may be applied, when appropriate, to the petitions filed under
these rules.” Rule 11, Rules Governing Section 2254 Cases.
1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
MICHELLE L. JOE,
Petitioner,
v.
GWENDOLYN MITCHELL,
Respondent.
/
CV F 06-00739 OWW DLB HC
ORDER DIRECTING RESPONDENT TO
SUBMIT RESPONSIVE PLEADING
ORDER SETTING BRIEFING SCHEDULE
ORDER DIRECTING CLERK OF COURT TO
SERVE ORDER ON ATTORNEY GENERAL
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
The Court has conducted a preliminary review of the Petition. Accordingly, pursuant to
Rule 4 of the Rules Governing Section 2254 Cases and Rule 16 of the Federal Rules of Civil
Procedure, the Court HEREBY ORDERS: 1
1. Respondent SHALL SUBMIT a RESPONSIVE pleading by filing one of the
following:
A. AN ANSWER addressing the merits of the Petition and due within
NINETY (90) days of the date of service of this order. Rule 4, Rules
Governing Section 2254 Cases; Cluchette v. Rushen, 770 F.2d 1469,
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Rule 4 of the Rules Governing Section 2254 Cases provides that upon the court’s determination that 2
summary dismissal is inappropriate, the “judge shall order the respondent to file an answer or other pleading . . . or
to take such other action as the judge deems appropriate.” Rule 4, Rules Governing Section 2254 Cases (emphasis
added); see, also, Advisory Committee Notes to Rule 4 and 5 of Rules Governing Section 2254 Cases (stating that a
dismissal may obviate the need for filing an answer on the substantive merits of the petition and that the Attorney
General may file a Motion to Dismiss for failure to exhaust.); also, White v. Lewis, 874 F.2d 599, 60203 (9th
Cir.1989) (providing that Motions to Dismiss pursuant to Rule 4 are proper in a federal habeas proceeding.)
2
1473-1474 (9 Cir. 1985) (court has discretion to fix time for filing an th
Answer.).
S Respondent SHALL INCLUDE with the Answer any and all
transcripts or other documents necessary for the resolution of the
issues presented in the Petition. Rule 5 of the Rules Governing
Section 2254 Cases.
S Any argument by Respondent that Petitioner has procedurally
defaulted a claim(s) SHALL BE MADE in an ANSWER that also
addresses the merits of the claims asserted. This is to enable the
Court to determine whether Petitioner meets an exception to
procedural default. See, Paradis v. Arave, 130 F.3d 385, 396 (9th
Cir. 1997) (Procedurally defaulted claims may be reviewed on the
merits to serve the ends of justice); Jones v. Delo, 56 F.3d 878 (8th
Cir. 1995) (the answer to the question that it is more likely than not
that no reasonable juror fairly considering all the evidence,
including the new evidence, would have found Petitioner guilty
beyond a reasonable doubt necessarily requires a review of the
merits).
S Petitioner’s TRAVERSE, if any, is due THIRTY (30) days from
the date Respondent’s Answer is filed with the Court.
B. A MOTION TO DISMISS due within SIXTY(60) days of the date of
service of this order based on the following grounds:
2
i. EXHAUSTION - 28 U.S.C. § 2254(b)(1). A Motion to Dismiss
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3
for Petitioner’s failure to exhaust state court remedies SHALL
INCLUDE copies of all the Petitioner’s state court filings and
dispositive rulings relevant to the examination of the statute
limitations issue as required by Ford v. Hubbard, 330 F.3d 1086
(9 Cir. 2003) and Kelly v. Small, 315 F.3d 1063 (9 Cir. 2003); th th
ii. STATUTE OF LIMITATIONS - 28 U.S.C. § 2244(d)(1). A
Motion to Dismiss the Petition as filed beyond the one year
limitations period SHALL INCLUDE copies of all Petitioner’s
state court filings and dispositive rulings.
iii. SECOND OR SUCCESSIVE Petitions - 28 U.S.C. § 2244(b). A
Motion to Dismiss the Petition on the basis of § 2244(b) SHALL
include a copy of the previously filed federal Petition and
disposition thereof.
2. OPPOSITIONS to Motions to Dismiss SHALL be served and filed within
EIGHTEEN (18) days, plus three days for mailing. All other Oppositions SHALL
be served and filed within EIGHT (8) days, plus three days for mailing. REPLIES
to Oppositions to Motions to Dismiss SHALL be served and filed within eight (8)
days, plus three days for mailing. Replies to Oppositions to all other Motions
SHALL be served and filed within eight (8) days, plus three days for mailing. If
no opposition is filed, all motions are deemed submitted at the expiration of the
opposition period.
3. Unless already submitted, both Respondent and Petitioner SHALL COMPLETE
and RETURN to the Court along with the Response or Motion to Dismiss, a
Consent form indicating whether the party consents or declines to consent to the
jurisdiction of a the United States Magistrate Judge pursuant to Title 28 U.S.C.
§ 636(c)(1).
4. RESPONDENT SHALL submit a Notice of Appearance as attorney of record
within SIXTY (60) days of the date of service of this order for purposes of service
Case 1:06-cv-00739-LJO -DLB Document 4 Filed 07/24/06 Page 3 of 4
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If, however, the Petition was filed on January 3, 2005, or thereafter, the Clerk of the Court need not serve a
3
copy of the Petition on the Attorney General or his representative. A scanned copy of the Petition is available in the
Court’s electronic case filing system (“CM/ECF”).
4
of court orders. See, Local Rule 83-182(a), 5-135(c).
5. The Clerk of the Court is DIRECTED to SERVE a copy of this order along with a
copy of the PETITION and any exhibits/attachments, on the Attorney General or
his representative.3
All motions shall be submitted on the record and briefs filed without oral argument unless
otherwise ordered by the Court. Local Rule 78-230(h). All provisions of Local Rule 11-110 are
applicable to this order.
IT IS SO ORDERED.
Dated: July 22, 2006 /s/ Dennis L. Beck
3b142a UNITED STATES MAGISTRATE JUDGE
Case 1:06-cv-00739-LJO -DLB Document 4 Filed 07/24/06 Page 4 of 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_16-cv-01505/USCOURTS-caed-1_16-cv-01505-2/pdf.json | [
[
"Bhagat Bhavesh",
"Defendant"
],
[
"Theresa Brooke",
"Plaintiff"
],
[
"Rodeway Inn Fresno",
"Defendant"
]
] | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
On October 27, 2016, the plaintiff notified the Court that the parties have settled the action.
(Doc. 6) Thus, the Court ORDERS:
1. The stipulation to dismiss the action SHALL be filed no later than November 25, 2016;
2. All pending dates, conferences and hearings are VACATED.
The parties are advised that failure to comply with this order may result in the Court
imposing sanctions, including the dismissal of the action.
IT IS SO ORDERED.
Dated: October 28, 2016 /s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
THERESA BROOKE,
Plaintiff,
v.
BHAGAT BHAVESH, an individual dba
Rodeway Inn Fresno,,
Defendant.
Case No.: 1:16-cv-1505-DAD- JLT
ORDER AFTER NOTICE OF SETTLEMENT
(Doc. 6)
Case 1:16-cv-01505-DAD-JLT Document 7 Filed 10/28/16 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca6-15-05404/USCOURTS-ca6-15-05404-0/pdf.json | [
[
"Demario Centel Maxie",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0236n.06
No. 15-5404
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEMARIO CENTEL MAXIE,
Defendant-Appellant.
)
)
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF KENTUCKY
BEFORE: DAUGHTREY, CLAY, and STRANCH, Circuit Judges.
MARTHA CRAIG DAUGHTREY, Circuit Judge. Defendant Demario Centel Maxie
was convicted on two counts of being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). According to the presentence report, Maxie’s offense level and criminal history
category resulted in a Sentencing Guidelines range of 235 to 293 months. At his sentencing
hearing, the district court found that Maxie was also subject to a 180-month mandatory minimum
sentence because he qualified as an armed career criminal under 18 U.S.C. § 924(e). Despite the
lengthier Guidelines range, the district court sentenced Maxie to the mandatory minimum of
180 months on each count, those counts to run concurrently. However, the court also ordered the
federal sentence to run consecutively to a ten-year undischarged state sentence that Maxie had
begun serving for a different (and unrelated) crime. As the reasons for the sentence, the district
court explicitly considered Maxie’s age, prior criminal convictions, and the specifics of his state
Case: 15-5404 Document: 35-2 Filed: 05/04/2016 Page: 1
No. 15-5404
United States v. Maxie
-2-
sentence, as well as the need to avoid a disparity between Maxie and Maxie’s co-defendant,
Charles Motley, Jr., who already had been sentenced to 151 months.
On appeal, the defendant challenges the district court’s imposition of a consecutive
sentence, arguing that the court must have thought that consecutive sentencing was mandatory,
because the court did not adequately explain its rationale for ordering a consecutive rather than a
concurrent sentence. We find no error and affirm the sentencing order and the judgment.
Maxie was convicted of being a felon in possession of a firearm after making two sales of
a total of seven firearms to a confidential informant working with the Bureau of Alcohol,
Tobacco, Firearms and Explosives. In view of Maxie’s ten-year sentence in Kentucky state
prison for a drug-trafficking conviction, the presentence report noted that, “[p]ursuant to Section
5G1.3(d), in any other case involving an undischarged term of imprisonment, the sentence for
the instant offense may be imposed to run concurrently, partially concurrently, or consecutively
to the prior undischarged term of imprisonment to achieve a reasonable punishment for the
instant offense.” Moreover, during Maxie’s sentencing hearing, the government also brought
attention to Maxie’s state sentence, reminding the district court of its discretion to impose either
a concurrent or consecutive sentence for the federal conviction.
At sentencing, the government asked the district court to impose a sentence within the
applicable Guidelines range of 235 to 293 months. Because Maxie had at least three prior drug
or violent felony convictions, the district court noted that he qualified as an armed-career
criminal under 18 U.S.C. § 924(e), which carries a mandatory-minimum sentence of 180 months.
The court then observed that it had considered the advisory sentencing guidelines and the factors
set out in 18 U.S.C. § 3553(a) and said:
It is the judgment of the Court that defendant is committed to the custody of
Bureau of Prisons for a term of 180 months as to each of Counts 7 and 8 in the
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United States v. Maxie
-3-
indictment, which shall be served concurrently, for a total term of 180 months’
imprisonment. The term of imprisonment imposed herein shall run consecutively
to the sentence of imprisonment defendant is presently serving [that was imposed
by Kentucky state court] . . . .
Having considered 18, United States Code, 3553(a) and the advisory guidelines,
which produce an offense level of 33 and a criminal history category of VI, the
advisory guideline ranges are 235 months’ to 293 months’ custody, a fine of
$17,500 to $1 million, and 2 to 5 years of supervised release.
A sentence of 180 months’ custody to run consecutively to [the Kentucky state
court sentence] followed by 5 years’ supervised release the Court finds is the
appropriate and reasonable sentence in this matter considering all the factors and
the consecutiveness and the relative conduct of the parties and is sufficient, but
not greater than necessary, to comply with the purposes set forth in Section
3553(a)(2), satisfies any statutory provisions.
In adopting the presentence report, the district court gave as reasons for the sentence “the
defendant’s age, the conduct of all of the parties in this case regarding the offenses of conviction,
and the length of the total imprisonment that would result in running the defendant’s federal
sentence consecutively with the term of undischarged imprisonment with the state of Kentucky.”
The district court specifically elaborated on the various § 3553(a) factors in deciding to impose a
below-guideline sentence.
Finally, the district court asked if there were “[a]ny objections to the sentence
pronounced or special conditions imposed” that had not been previously raised. The government
objected “only to the extent that [the sentence] falls below the guideline.” Maxie did not raise
any objections. He nevertheless challenges the district court’s imposition of consecutive
sentences, arguing for the first time on appeal that the district court should have ordered his
federal sentences to run concurrently with the undischarged portion of his state sentence.
Generally, sentencing determinations are subject to an abuse-of-discretion standard of
review. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Harmon, 607 F.3d 233,
239 (6th Cir. 2010). Here, however, the defendant did not raise his objection before the district
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No. 15-5404
United States v. Maxie
-4-
court, and he concedes that our review is for plain error only. See Harmon, 607 F.3d at 237-38;
see also United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc). Under a plainerror standard of review, “a defendant must demonstrate that the district court’s error was
obvious or clear, affected his substantial rights, and affected the fairness, integrity, or public
reputation of the judicial proceedings.” Harmon, 607 F.3d at 238; see also Vonner, 516 F.3d at
386.
When a defendant is subject to an undischarged sentence, the district court has the
discretion to impose a sentence for the current offense that runs concurrently with or
consecutively to the prior undischarged sentence. 18 U.S.C. § 3584(a). The district court’s
exercise of this authority, however, “is predicated on the district court’s consideration of the
factors listed in 18 U.S.C. § 3553(a), including any applicable Guidelines or policy statements
issued by the Sentencing Commission.” United States v. Johnson, 640 F.3d 195, 208 (6th Cir.
2011) (citing 18 U.S.C. § 3584(b)). One such applicable policy is Section 5G1.3(d) of the
Sentencing Guidelines, which provides that “the sentence for the instant offense may be imposed
to run concurrently, partially concurrently, or consecutively to the prior undischarged term of
imprisonment to achieve a reasonable punishment for the instant offense.” U.S. SENTENCING
GUIDELINES MANUAL § 5G1.3(d) (U.S. SENTENCING COMM’N 2014). The commentary
accompanying § 5G1.3(d) n.4(A) provides:
In order to achieve a reasonable incremental punishment for the instant offense
and avoid unwarranted disparity, the court should consider the following: (i) the
factors set forth in 18 U.S.C. § 3584 (referencing 18 U.S.C. § 3553(a)); (ii) the
type (e.g., determinate, indeterminate/parolable) and length of the prior
undischarged sentence; (iii) the time served on the undischarged sentence and the
time likely to be served before release; (iv) the fact that the prior undischarged
sentence may have been imposed in state court rather than federal court, or at a
different time before the same or different federal court; and (v) any other
circumstance relevant to the determination of an appropriate sentence for the
instant offense.
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United States v. Maxie
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The district court’s discretion to award a concurrent, partially concurrent, or consecutive
sentence is “not unfettered” and, accordingly, “[t]he record on appeal should show that the
district court turned its attention to § 5G1.3 and the relevant commentary in its determination of
whether to impose a concurrent or consecutive sentence.” United States v. Hall, 632 F.3d 331,
335 (6th Cir. 2011) (internal citation and quotation marks omitted). Although the district court
need not state explicitly its basis for a consecutive sentence, the district court must “make
generally clear the rationale under which it imposed the consecutive sentence.” United States v.
Cochrane, 702 F.3d 334, 346 (6th Cir. 2012) (internal citations and quotation marks omitted).
The district court may, for example, “incorporate by reference a discussion of the relevant
considerations in another document such as the Presentence Report” or “make clear that its
reasons for choosing a substantive sentence and for running two sentences consecutively are the
same.” Id. “When deciding to impose consecutive sentences . . . a district court must indicate on
the record its rationale, either expressly or by reference to a discussion of relevant considerations
contained elsewhere.” Id. Requiring the district court to indicate its rationale on the record
allows us later to conduct “meaningful appellate review.” Id.
In this appeal, Maxie argues that the district court failed to provide an adequate
explanation for its decision to impose a consecutive sentence because the district court failed to
“tether[] its consecutive-sentence decision to its application of the 3553(a) factors” and, further,
that “the district court’s motivation for ordering a consecutive sentence is not apparent from the
record.” Maxie insists that the option of imposing a concurrent sentence “apparently never
entered the district judge’s mind” and postulates that if the district court had been aware of that
option, it would have imposed a concurrent sentence. Maxie’s arguments, however, are not
persuasive, particularly under a plain-error standard of review.
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No. 15-5404
United States v. Maxie
-6-
The record reflects that the district court considered the § 3553(a) factors in exercising its
discretion to impose a consecutive sentence. For example, the district court explained that it was
imposing a 180-month sentence that “would run consecutive to” Maxie’s state sentence because
of Maxie’s age and prior criminal history, in order to avoid a sentencing disparity between Maxie
and Motley, and because the district court believed that a 180-month sentence would “make its
point” to Maxie. In the same discussion, the district court indicated that it was “considering the
underlying state conviction that [Maxie’s 180-month sentence] would run consecutive to.”
Indeed, the district court expressly incorporated § 3553(a) into its rationale for the sentence,
stating that it was “the appropriate and reasonable sentence in this matter considering all the
factors and the consecutiveness and the relative conduct of the parties and also that it was
“sufficient, but not greater than necessary, to comply with the purposes set forth in Section
3553(a)(2) . . . .” Thus, the record indicates clearly that the district court considered the
§ 3553(a) factors in imposing a consecutive sentence, as required by 18 U.S.C. § 3584(b). As we
found in Johnson, “[t]he district court’s determination of the length of Johnson’s sentence and
his decision to impose the sentence consecutively to the undischarged state sentence were
intertwined.” 640 F.3d at 208; see also Harmon, 607 F.3d at 239. Although the defendant seems
to imply otherwise, “[t]here is no requirement that the district court state a ‘specific reason’ for a
consecutive sentence. . . .” Johnson, 640 F.3d at 208-09.
The district court did not elaborate on the § 5G1.3 factors explicitly but, again, it is not
required to do so under our precedent. Hall, 632 F.3d at 336; see also United States v. Berry,
565 F.3d 332, 343 (6th Cir. 2009). Pursuant to the commentary for § 5G1.3, a district court
“should consider the type and length of the prior undischarged sentence, the time likely to be
served on the undischarged sentence before release, and whether the undischarged sentence
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No. 15-5404
United States v. Maxie
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originated in state rather than federal court.” Hall, 632 F.3d at 336. The totality of the record
demonstrates that the district court “turned its attention to § 5G1.3[d] and the relevant
commentary in its determination of whether to impose a concurrent or consecutive sentence.” Id.
at 335 (internal citations omitted).
Maxie relies on several cases as support for his position that the district court’s rationale
for a consecutive sentence was inadequate, but they are distinguishable from his case.
In Cochrane, for example, we concluded that the district court abused its discretion in imposing
a consecutive sentence without adequate explanation. 702 F.3d at 347. But there we applied an
abuse-of-discretion standard of review; here, a plain-error standard of review applies.
Moreover, in Cochrane, we found that “the district court provided no rationale whatsoever for
its decision to impose a consecutive sentence.” Id. (emphasis added). Here, by contrast, the
district court considered the § 3553(a) factors and Maxie’s “underlying state conviction” in
deciding to impose a consecutive sentence. The totality of the record thus demonstrates that the
district court in Maxie’s case, unlike the district court in Cochrane, did “make generally clear”
its rationale for imposing a consecutive sentence.
Lastly, Maxie’s contention that the option of imposing a concurrent sentence “apparently
never entered the district court’s mind” simply has no basis in the record, which—as previously
noted—reveals that the district court was fully aware of its discretion to impose a concurrent
sentence, both from the presentence report and from the government’s acknowledgment of the
district court’s discretion during the sentencing hearing. Moreover, Maxie’s argument that the
district court would have imposed a concurrent sentence “had it been thinking about the subject”
is based on nothing more than mere speculation.
For the reasons set out above, we AFFIRM the district court’s judgment.
Case: 15-5404 Document: 35-2 Filed: 05/04/2016 Page: 7 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca6-15-04406/USCOURTS-ca6-15-04406-0/pdf.json | [
[
"Leatra Harper",
"Appellant"
],
[
"Leslie Harper",
"Appellant"
],
[
"Steven Jansto",
"Appellant"
],
[
"Muskingum Watershed Conservancy District",
"Appellee"
],
[
"United States of America",
null
]
] | 1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0277p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA ex rel. LEATRA
HARPER, STEVEN JANSTO, and LESLIE HARPER,
Relators-Appellants,
v.
MUSKINGUM WATERSHED CONSERVANCY DISTRICT,
Defendant-Appellee.
┐
│
│
│
│
│
│
│
│
┘
No. 15-4406
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 5:13-cv-02145—Sara E. Lioi, District Judge.
Decided and Filed: November 21, 2016
Before: GUY, BOGGS, and MOORE, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Thomas W. Connors, BLACK, MCCUSKEY, SOUERS & ARBAUGH, Canton,
Ohio, Warner Mendenhall, Akron, Ohio, for Appellants. Peter D. Welin, O. Judson Scheaf III,
MCDONALD HOPKINS LLC, Columbus, Ohio, for Appellee.
BOGGS, J., delivered the opinion of the court in which GUY, J., joined. MOORE, J. (pp.
14–15), delivered a separate dissenting opinion.
_________________
OPINION
_________________
BOGGS, Circuit Judge. In 1949, the United States deeded a large parcel of land in Ohio
to the Muskingum Watershed Conservancy District (“MWCD”), a state entity responsible for
controlling flooding in eastern Ohio. The deed provided that the land would revert to the United
>
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No. 15-4406 United States ex rel. Harper, et al. v. Muskingum Watershed Page 2
States if MWCD alienated or attempted to alienate it, or if MWCD stopped using the land for
recreation, conservation, or reservoir-development purposes. MWCD subsequently sold rights to
conduct hydraulic fracturing (“fracking”) operations on the land. Three Ohio residents opposed
to fracking discovered the deed restrictions and, operating on the theory that MWCD’s sale of
fracking rights triggered the reversion clause in the deed, filed an action against MWCD under
the False Claims Act, alleging that MWCD was knowingly withholding United States property
from the federal government. The district court granted MWCD’s motion to dismiss. The
relators appealed. For the reasons given below, we affirm the judgment of the district court.
I
The False Claims Act (“FCA”), 31 U.S.C. § 3729, imposes civil liability on any person
who fraudulently—or, under certain circumstances, knowingly—deprives the United States of
property. Id. § 3729(a)(1). As the Act’s name suggests, liability under the Act often arises for
the submission of false claims to the government. Id. § 3729(a)(1)(A)–(B); United States ex rel.
Matheny v. Medco Health Sols., Inc., 671 F.3d 1217, 1222 (11th Cir. 2012). But two of the
Act’s provisions also penalize the improper retention of government property: First, the
“reverse-false-claim” provision of the FCA provides for fines and treble damages against anyone
who “knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay
or transmit money or property to the Government.” 31 U.S.C. § 3729(a)(1)(G), (a)(2). Second,
under the FCA’s “conversion” provision, those same penalties also apply to anyone who “has
possession, custody, or control of property or money used, or to be used, by the Government and
knowingly delivers, or causes to be delivered, less than all of that money or property.” Id.
§ 3729(a)(1)(D).
In order to promote enforcement of the FCA, Congress created a qui tam provision, under
which whistleblowers—called “relators”—may bring civil actions on behalf of the government
for alleged FCA violations. Id. § 3730(b); Walburn v. Lockheed Martin Corp., 431 F.3d 966,
970 (6th Cir. 2005). If a relator is successful in recovering money for the government, she may
retain up to twenty-five percent of the proceeds, as well as reasonable expenses, attorney’s fees,
and costs. 31 U.S.C. § 3730(d)(1). However, Congress was aware that the qui tam provision
could encourage “opportunistic plaintiffs” to bring “parasitic lawsuits whereby would-be relators
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merely feed off a previous disclosure of fraud.” Walburn, 431 F.3d at 970. In an effort to stop
such “opportunistic suits, on the one hand, and encourage citizens to act as whistleblowers, on
the other,” United States ex rel. LaCorte v. SmithKline Beecham Clinical Labs., Inc., 149 F.3d
227, 233 (3d Cir. 1998), Congress placed a number of limitations on qui tam actions under the
FCA, among which is the public-disclosure bar, a requirement that courts “shall dismiss an[y]
[qui tam] action or claim” under the FCA if:
substantially the same allegations or transactions as alleged in the action or claim
were publicly disclosed—
(i) in a Federal criminal, civil, or administrative hearing in which the
Government or its agent is a party;
(ii) in a congressional, Government Accountability Office, or other
Federal report, hearing, audit, or investigation; or
(iii) from the news media,
unless the . . . person bringing the action is an original source of the information.
31 U.S.C. § 3730(e)(4)(A).
This qui tam action arises under the FCA’s reverse-false-claim and conversion
provisions. In 1933, the State of Ohio organized the Muskingum Watershed Conservancy
District and empowered it to control flooding in Ohio’s Muskingum River Watershed. Sixteen
years later, the federal government granted MWCD several large parcels of land in central and
southeastern Ohio. The deed to the land provided that if MWCD “shall cease using said lands”
for recreation, conservation, and reservoir development, or if MWCD “alienate[s] or attempt[s]
to alienate any part or parts thereof, the title to said lands shall revert to and revest in the United
States.”
Five years ago, MWCD began negotiating several lease agreements to grant private firms
the right to develop subsurface oil and gas reserves on the land that it received from the United
States in 1949. MWCD issued several press releases and held public hearings about the
proposed leases, which local newspapers covered extensively. MWCD also posted the lease
documents to its website, and ultimately executed several leases between 2011 and 2014.
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Relators Leatra Harper, Leslie Harper, and Steven Jansto, who opposed MWCD’s plans
to allow fracking in the Muskingum River Watershed, discovered the restrictions in MWCD’s
deed. Reasoning that MWCD’s efforts to lease fracking rights represented an “attempt to
alienate” the land that triggered the reverter clause in the deed or, in the alternative, that the land
was no longer being used for “recreation, conservation, and reservoir development” as the deed
required, the relators concluded that MWCD was improperly in possession of United States
property and filed a suit on behalf of the United States under the FCA’s reverse-false-claim and
conversion provisions.
After considering whether to involve itself in the action, the United States declined to
intervene. The relators then amended their complaint, and MWCD moved to dismiss. In
addition to filing a motion in opposition, the relators moved the court for leave to amend their
complaint for a second time “to add allegations relevant to issues raised by [MWCD] in [its]
motion to dismiss.” The relators attached a proposed third complaint that they hoped to file if
granted leave.
The district court denied the relators’ motion for leave to amend their complaint as futile
and granted MWCD’s motion to dismiss. The district court took judicial notice of local media
coverage of the MWCD leases, as well as MWCD’s own press releases on the subject, and
concluded that the relators’ action was barred by the FCA’s public-disclosure provision. The
district court explained that “[t]here can be no doubt that the pivotal allegations in the [proposed
amended complaint] are substantially the same as the factual underpinnings of the news stories
and press releases” and, because the relators did not allege facts showing that they were original
sources of the information, they could not maintain an FCA claim based on MWCD’s leases.
The district court went on to conclude that “[e]ven if relators were not barred from
bringing a qui tam [action] by prior public disclosur[e], their claims would not survive MWCD’s
Rule 12(b)(6) attack.” After holding that Federal Rule of Civil Procedure 9(b), which requires
complainants to plead fraud with “particularity,” applied to the relators’ claims, the district court
determined that the relators could not maintain a claim under the FCA’s reverse-false-claim
provision. The court explained that the relators had not shown that MWCD had taken any action
to “avoid” an obligation to the United States, or that it had done so “knowingly.” “At most,” the
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district court concluded, the complaint “allege[s] a breach of the [d]eed, and it is well settled that
‘a mere breach of contract does not give rise to liability under the [FCA].’” United States ex rel.
Harper v. Muskingum Watershed Conservancy Dist., 2015 WL 7575937, at *3 (N.D. Ohio Nov.
25, 2015) (quoting United States ex rel. Yannacopoulos v. Gen. Dynamics, 652 F.3d 818, 824
(7th Cir. 2011)).
Because the relators’ conversion claim “rel[ied] on the same allegations that MWCD
violated the terms of the [d]eed to suggest that [MWCD] is now in possession of government
property,” the district court dismissed the relators’ complaint in its entirety. The court concluded
that because the relators’ proposed amended complaint did nothing to address the deficiencies
the court had found, “it would be futile to permit any further amendment of the pleadings.” This
appeal followed.
II
Before addressing the merits of the relators’ appeal, this court must first establish the
appropriate standard of review. Prior to 2010, the FCA’s public-disclosure bar provided that
“[n]o court shall have jurisdiction over an action . . . based upon . . . public disclosure.”
31 U.S.C. § 3730(e)(4)(A) (2006). This explicit reference to jurisdiction led courts to treat the
public-disclosure bar as jurisdictional. See Rockwell Int’l Corp. v. United States, 549 U.S. 457,
460 (2007). But in 2010, Congress amended the FCA’s public-disclosure provision and removed
the jurisdictional language, replacing it with a requirement that a court “shall dismiss [any]
action or claim” subject to the bar. 31 U.S.C. § 3730(e)(4)(A). Uncertain of whether the
amended public-disclosure bar continued to deprive federal courts of jurisdiction, MWCD
moved to dismiss this action both for lack of subject-matter jurisdiction under Federal Rule of
Civil Procedure 12(b)(1) and for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). Citing conflicting case law from other federal courts, the district court analyzed the
motion to dismiss under both provisions.
While this appeal was pending, the Sixth Circuit ruled that in light of Congress’s 2010
amendment to the FCA, “[t]he public disclosure bar is no longer jurisdictional” and instead may
be pleaded as an affirmative defense. United States ex rel. Advocates for Basic Legal Equal.,
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No. 15-4406 United States ex rel. Harper, et al. v. Muskingum Watershed Page 6
Inc. v. U.S. Bank, N.A., 816 F.3d 428, 433 (6th Cir. 2016). For this reason, the standard
applicable to Rule 12(b)(6) motions governs here. Under that standard, a plaintiff’s complaint
must allege facts that “‘state a claim to relief that is plausible on its face’ and that, if accepted as
true, are sufficient to ‘raise a right to relief above the speculative level.’” Wesley v. Campbell,
779 F.3d 421, 427 (6th Cir. 2015) (quoting Handy-Clay v. City of Memphis, 695 F.3d 531, 538
(6th Cir. 2012)). However, courts need not accept “conclusory allegations or legal conclusions
masquerading as factual allegations.” D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014)
(quoting Terry v. Tyson Farms, Inc., 604 F.3d 272, 275–76 (6th Cir. 2010)). On appeal, this
court reviews de novo the district court’s decision to grant a defendant’s motion to dismiss.
Laborers’ Local 265 Pension Fund v. iShares Tr., 769 F.3d 399, 403 (6th Cir. 2014). This court
may affirm on any grounds supported by the record, even those not relied on by the district court.
Angel v. Kentucky, 314 F.3d 262, 264 (6th Cir. 2002).
III
On appeal, the relators challenge the district court’s determination that they failed to state
claims under the FCA’s reverse-false-claim and conversion provisions. Appellant Br. 23, 34. In
doing so, they also challenge the district court’s conclusions that the public-disclosure bar and
Rule 9(b)’s heightened pleading requirements apply to their FCA claims. Id. at 9–10, 12, 16, 20.
This court need not address the relators’ arguments concerning the public-disclosure bar or the
applicability of Rule 9(b): Because the relators have failed to state facts from which MWCD’s
awareness of the alleged FCA violations may be inferred even under the more liberal pleading
standard set forth in Federal Rule of Civil Procedure 8(a), see Ashcroft v. Iqbal, 556 U.S. 662,
686–87 (2009) (explaining that nothing in Rule 9 gives a plaintiff “license to evade the less
rigid—though still operative—strictures of Rule 8”), and because such awareness is a requisite
element of the two FCA claims before the court, the relators have failed to state a claim for relief
irrespective of whether the public-disclosure bar or Rule 9(b) apply here.
A
The relators first argue that MWCD violated the reverse-false-claim provision of the
FCA. As mentioned above, this provision imposes civil liability on anyone who “knowingly
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conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit
money or property to the Government.” 31 U.S.C. § 3729(a)(1)(G). Nowhere in the relators’
complaint or proposed amended complaint do they allege that MWCD concealed an obligation to
transmit property to the United States. Accordingly, the relators’ complaint can only survive
MWCD’s motion to dismiss if they have shown that MWCD (1) had “an obligation to . . .
transmit . . . property” to the United States; (2) “improperly avoid[ed]” this obligation; and
(3) did so “knowingly.” Ibid. (emphasis added). Although there is little established case law,
given that Congress only recently amended the reverse-false-claim provision, the term
“knowingly” must be interpreted to refer to a defendant’s awareness of both an obligation to the
United States and his violation of that obligation. Because the relators have not pleaded facts
that show such awareness, the district court properly dismissed their “reverse” false claim.
Before 2009, the reverse-false-claim provision of the FCA imposed civil liability on
those who “knowingly mak[e], us[e], or caus[e] to be made or used, a false record or statement to
conceal, avoid, or decrease an obligation to pay or transmit money or property to the
Government.” 31 U.S.C. § 3729(a)(7) (2006). The provision’s reference to the “knowin[g]” use
of a “false record or statement” made clear that only those defendants who knowingly
perpetrated fraud against the government could be held liable. See United States ex rel. A+
Homecare, Inc. v. Medshares Mgmt. Grp, Inc., 400 F.3d 428, 443 (6th Cir. 2005). In 2009,
Congress passed the Fraud Enforcement and Recovery Act (“FERA”), Pub. L. No. 111-21, 123
Stat. 1617 (2009), which omitted the requirement that a defendant “mak[e], us[e], or caus[e] to
be made or used, a false record or statement” from the relevant part of the reverse-false-claim
provision. Under the current version of the FCA, anyone who “knowingly and improperly
avoids or decreases an obligation to pay or transmit money or property to the Government” is
civilly liable. 31 U.S.C. § 3729(a)(1)(G).
Although none of our sister circuits have applied 31 U.S.C. § 3729(a)(1)(G)’s new
scienter requirement, the requirement should be interpreted to apply to both the existence of a
relevant obligation and the defendant’s own avoidance of that obligation. “In ordinary English,
where a transitive verb has an object, listeners in most contexts assume that an adverb (such as
knowingly) that modifies the transitive verb tells the listener how the subject performed the
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entire action, including the object as set forth in the sentence.” Flores-Figueroa v. United States,
556 U.S. 646, 650 (2009). If, for example, “we say that someone knowingly ate a sandwich with
cheese, we normally assume that the person knew both that he was eating a sandwich and that it
contained cheese.” Id. at 651. That same principle would suggest that, to most readers, the
phrase “Smith knowingly avoided an obligation to the United States,” would mean that Smith
knew that he had an obligation to the United States and knew that he was avoiding the
obligation.
Though in apparent agreement with this premise, the relators argue that a defendant acts
“knowingly” when he has notice of a legal obligation, even if the defendant believes that the
obligation does not apply under the circumstances. Appellant Br. 28–29. But the FCA requires
plaintiffs to show far more. The Act defines the term “knowingly” as follows:
(1) [T]he terms “knowing” and “knowingly” —
(A) mean that a person, with respect to information—
(i) has actual knowledge of the information;
(ii) acts in deliberate ignorance of the truth or falsity of the information; or
(iii) acts in reckless disregard of the truth or falsity of the information . . . .
31 U.S.C. § 3729(b). Accordingly, unless the circumstances of a case show that a defendant
knows of, or “acts in deliberate ignorance” or “reckless disregard” of, the fact that he is involved
in conduct that violates a legal obligation to the United States, the defendant cannot be held
liable under the FCA.
Any other interpretation would make “the punitive treble damages and penalties afforded
by civil FCA actions . . . interchangeable with remedies for ordinary breaches” of contract or
property-law obligations. United States v. Southland Mgmt. Corp., 326 F.3d 669, 684 (5th Cir.
2003). Assume, for example, a party who has notice of a legal obligation to return park land to
the government if she stops using the property for “public-recreation purposes.” Under the
relators’ reading of the FCA’s scienter requirement, if the party constructs a theme park on the
land with the reasonable but ultimately mistaken belief that such use comports with the
government’s use restriction, she would be liable under the FCA. But the FCA is aimed at
stopping fraud against the United States and does not create “a vehicle to police technical
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compliance with” federal obligations. United States ex rel. Williams v. Renal Care Grp., Inc.,
696 F.3d 518, 531 (6th Cir. 2012); see also United States v. Sci. Applications Int’l Corp.,
626 F.3d 1257, 1271 (D.C. Cir. 2010) (explaining that “[s]trict enforcement of the FCA’s
scienter requirement” is necessary to “ensure that ordinary breaches of contract are not converted
into FCA liability”). For this reason, “[e]stablishing knowledge under” FCA provisions that use
knowledge as scienter requires plaintiffs to “prove that the defendant knows . . . that [he]
violated a[n] . . . obligation,” not simply that he mistakenly interpreted a legal obligation. Sci.
Applications Int’l Corp., 626 F.3d at 1271.
All of this means that the relators’ complaint must allege facts that create the inference
that MWCD knew that the relevant deed restrictions required it to deliver property to the United
States, or that it “act[ed] in deliberate ignorance” or in “reckless disregard” of this fact.
31 U.S.C. § 3729(b)(1)(A); Weisbarth v. Geauga Park Dist., 499 F.3d 538, 541 (6th Cir. 2007).
The relators have failed to satisfy this burden. In this case, neither the relators’ complaint nor
their proposed amended complaint includes facts that show how MWCD would have known that
the fracking leases violated the deed restrictions or how MWCD “act[ed] in deliberate
ignorance” or in “reckless disregard” of that fact. In the absence of such facts, the relators have
failed to show anything more than a possibility that MWCD acted unlawfully. Iqbal, 556 U.S. at
679. As the Supreme Court has explained, this failure is fatal to the relators’ claim: “[W]here
the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to
relief.” Ibid. (quoting Fed. R. Civ. P. 8(a)(2)).
The relators’ complaint and proposed amended complaint do recount the restrictions in
the 1949 deed that MWCD received from the United States, and also recount MCWD’s decision
to sign leases of subsurface mineral rights on the land it received pursuant to the 1949 deed.
These facts could create the inference that MCWD knew about the deed restrictions when it
signed the leases, and such an inference would be consistent with the theoretical possibility that
MCWD in fact believed that the restrictions forbade it from executing the oil and gas leases. But
again, Rule 8’s “plausibility standard . . . asks for more than a sheer possibility that a defendant
has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with’ a
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defendant’s liability, ‘it stops short of the line between possibility and plausibility of entitlement
to relief.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557
(2007)).
In short, the relators’ first claim can succeed only if the court “make[s] inference upon
inferences to provide the” facts missing from their complaint. Mitchell v. Proctor & Gamble,
No. 2:09-CV-426, 2010 WL 728222, at *5 (S.D. Ohio Mar. 1, 2010). Because Rule 8 does not
obligate the court to engage in such speculation, see Iqbal, 556 U.S. at 678–79, the district court
properly granted MWCD’s motion to dismiss the relators’ first claim.
B
The relators’ second claim is that MCWD is liable under the FCA’s conversion provision,
which imposes civil liability on anyone who “has possession, custody, or control of property or
money used, or to be used, by the Government and knowingly delivers, or causes to be delivered,
less than all of that money or property.” 31 U.S.C. § 3729(a)(1)(D). The district court dismissed
this claim on the ground that “allegations of breach of contract—without some factual
contentions setting forth fraudulent conduct—stop short of establishing a[n] FCA claim.”
Although the district court’s analysis would have been sound if the allegations in this case
described conduct occurring in or before 2009, in passing FERA, Congress amended the FCA’s
conversion provision to eliminate a fraud requirement. See United States ex rel. Holbrook v.
Brink’s Co., No. 2:13-CV-873, 2015 WL 196424, at *9 (S.D. Ohio Jan. 15, 2015). Nonetheless,
the district court arrived at the correct result because the relators’ failure to allege facts showing
that MWCD knew that it possessed property now belonging to the government means that they
cannot maintain their conversion claim against MWCD.
There is little doubt that the plaintiffs’ complaints, which do not allege fraud, would not
have survived a motion to dismiss if the pre-FERA conversion provision governed this case; that
provision imposed liability only against those who possessed United States property and,
“intending to defraud the Government . . . , deliver[ed], or cause[d] to be delivered, less property
than the amount for which the person receive[d] a certificate or receipt.” 31 U.S.C. § 3729(a)(4)
(2006). But in addition to removing the “receipt” requirement, see S. Rep. No. 111-10, at 13
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(2009), FERA also replaced the “inten[t] to defraud” requirement with a knowledge requirement,
see 31 U.S.C. § 3729(a)(1)(D) (imposing liability on anyone who “knowingly delivers, or causes
to be delivered, less than all of” United States property that he or she holds). As with the FCA’s
amended reverse-false-claim provision, no court aside from the district court in this litigation
appears to have considered the FCA’s conversion provision as it applies after FERA.
Notwithstanding the dearth of relevant precedent, the text of the amended conversion
provision suggests that the relators have failed to state a claim under the post-FERA scienter
requirement. As described above, ordinary rules of grammar suggest that the word “knowingly”
modifies not only the verbs “delive[r]” or “caus[e],” but also the phrase “less than all of that
money or property.” See Flores-Figueroa, 556 U.S. at 650–51. For a defendant to “know” that
he is delivering or causing to be delivered “less than all” of certain property “used, or to be used,
by the Government,” he must necessarily also know that the property belongs to the government.
31 U.S.C. § 3729(a)(1)(D). In their appellate brief, the relators claim that they have “pled that
the subject property is government property,” “that [MWCD] has failed to deliver such property
to the government,” and that MWCD knew that it failed to deliver the property. Appellant Br.
36. But that is not enough: Under the text of the conversion provision, the relators must also
show that MWCD either had “actual knowledge” that title to the relevant land had reverted to the
United States, or that MWCD acted in “deliberate ignorance” or “reckless disregard” of that fact.
31 U.S.C. § 3729(b)(1)(A).
As described above, aside from the conclusory allegation that MWCD “knowingly
caused to be delivered less than all” of the United States property that it possessed, the relators’
complaints do not mention whether or how MWCD knew or should have known that it was in
violation of the deed restrictions, such it knew or should have known that title to the property
reverted to the United States. For this reason, the relators failed to properly plead a conversion
claim, and the district court’s dismissal of that claim was not in error.
IV
Lastly, the relators claim that even if their complaint is defective, “the district court
should have allowed [them] [leave] to amend to cure [any] pleading deficiencies.” Appellant Br.
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36. Federal Rule of Civil Procedure 15(a) states that leave to amend a complaint “shall be freely
given when justice so requires.” Fed. R. Civ. P. 15(a)(2). Though district courts have discretion
to permit or deny amendment after a defendant files an answer to a plaintiff’s complaint, Gen.
Elec. Co. v. Sargent & Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990), “[t]he thrust of Rule 15
is . . . that cases should be tried on their merits rather than the technicalities of pleadings,” Jet,
Inc. v. Sewage Aeration Sys., 165 F.3d 419, 425 (6th Cir. 1999) (quoting Tefft v. Seward,
689 F.2d 637, 639 (6th Cir. 1982)). Although this court ordinarily reviews a district court’s
denial of a motion for leave to amend for abuse of discretion, Evans v. Pearson Enters., 434 F.3d
839, 853 (6th Cir. 2006), where, as here, the district court denies such leave on the ground that
amendment would be futile, this court reviews the district court’s decision de novo, Yuhasz v.
Brush Wellman, Inc., 341 F.3d 559, 569 (6th Cir. 2003).
“A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6)
motion to dismiss.” Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000).
In this case, the relators amended their complaint once before MWCD filed an answer. After
MWCD filed a motion to dismiss the amended complaint, the relators filed a motion to amend
their amended complaint to respond to MWCD’s motion. Because, as discussed above, the
relators’ proposed amended complaint also fails to satisfy the requirements of Rule 12(b)(6), the
district court properly denied the relators’ motion as futile. See Ibid.
Although the relators argue that they should have had yet another opportunity to amend
their complaint after the district court issued its opinion because they lacked “sufficient notice of
pleading deficiencies or adequate opportunity to cure them,” the relators are not “entitled to an
advisory opinion from the [district court] informing them of the deficiencies of the complaint and
then an opportunity to cure those deficiencies.” Strayhorn v. Wyeth Pharm., Inc., 737 F.3d 378,
400 (6th Cir. 2013) (quoting Winget v. JP Morgan Chase Bank, N.A., 537 F.3d 565, 573 (6th Cir.
2008)). This argument thus does not provide the court with grounds to vacate the district court’s
order granting MWCD’s motion to dismiss.
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V
In this action concerning title to land in Ohio, the relators creatively attempt to take
advantage of recent legislative amendments that replace a fraudulent-intent requirement in two
FCA provisions with a requirement that the defendant acted “knowingly.” However, the relators
fail to properly state a claim even under the more lenient scienter requirement. In particular, the
relators fail to plead facts showing that MWCD knowingly violated a deed restriction applicable
to land that it holds. This failure means that the relators cannot show that MWCD violated the
FCA’s reverse-false-claim and conversion provisions by knowingly withholding the land from
the United States. For this reason, we AFFIRM the district court’s dismissal of MWCD’s
claims.
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_________________
DISSENT
_________________
KAREN NELSON MOORE, Circuit Judge, dissenting. I agree with the majority’s
interpretation of the statutory language of 31 U.S.C. § 3729(a)(1)(G) and (D). I disagree with the
majority, however, that the relators’ complaint fails to satisfy the pleading standards of Rule 8 of
the Federal Rules of Civil Procedure in alleging violations of these statutes.
The relators alleged that the United States deeded land to the Muskingum Watershed
Conservancy District (“MWCD”) in 1949 and that this deed granted “a determinable fee simple
estate, subject to a possibility of reverter interest retained by the United States” if the land was
not used for its specified purpose. R. 15-1 (Second Am. Compl. at 2–3) (Page ID #362–63); see
also R. 8 (First Am. Compl. at 2) (Page ID #102). The relators alleged that MWCD entered into
several subleases for the purpose of oil, gas, and mineral-resource extraction on the governmentdeeded land, that these subleases violated restrictions in the 1949 deed, and that “the United
States was entitled to immediate possession of said lands.” R. 15-1 (Second Am. Compl. at 4–5)
(Page ID #364–65); R. 8 (First Am. Compl. at 3–4) (Page ID #103–04). The complaint further
states that “[s]ubsequent to the above-described leases, MWCD failed to return possession of
said lands to the United States,” and that MWCD “retained income derived from said lands, and
failed to deliver it to the United States.” R. 15-1 (Second Am. Compl. at 6) (Page ID #366).
The majority insists that the relators have not shown that MWCD acted with the requisite
degree of scienter. But determining whether a complaint meets Rule 8’s requirements is “a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “If a reasonable court can draw
the necessary inference from the factual material stated in the complaint, the plausibility standard
has been satisfied.” Keys v. Humana, Inc., 684 F.3d 605, 610 (6th Cir. 2012). Here, given the
relative simplicity of the factual basis underlying the relators’ claim, I believe that the complaint
sets forth sufficient factual allegations such that we can “draw the reasonable inference,” Iqbal,
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556 U.S. at 678, that MWCD knowingly avoided an obligation to the government and knowingly
converted government money or property. For this reason, I dissent.
Case: 15-4406 Document: 28-2 Filed: 11/21/2016 Page: 15 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca5-16-40412/USCOURTS-ca5-16-40412-0/pdf.json | [
[
"Evodio Torres-Ibarra",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-40412
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EVODIO TORRES-IBARRA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:14-CR-943-1
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:*
The Federal Public Defender appointed to represent Evodio TorresIbarra has moved for leave to withdraw and has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d
229 (5th Cir. 2011). Torres-Ibarra has not filed a response. We have reviewed
counsel’s brief and the relevant portions of the record reflected therein. We
concur with counsel’s assessment that the appeal presents no nonfrivolous
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
December 1, 2016
Lyle W. Cayce
Clerk
Case: 16-40412 Document: 00513780508 Page: 1 Date Filed: 12/01/2016
No. 16-40412
2
issue for appellate review. Accordingly, counsel’s motion for leave to withdraw
is GRANTED, counsel is excused from further responsibilities herein, and the
APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.
Case: 16-40412 Document: 00513780508 Page: 2 Date Filed: 12/01/2016 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-4_15-cv-01424/USCOURTS-cand-4_15-cv-01424-2/pdf.json | [
[
"Jack Buckhorn",
"Plaintiff"
],
[
"Steiny and Company Inc",
"Defendant"
],
[
"Anisa M. Thomsen",
"Plaintiff"
]
] | 1
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
JACK BUCKHORN, et al.,
Plaintiffs,
v.
STEINY AND COMPANY INC,
Defendant.
Case No. 15-cv-01424-JCS
REPORT AND RECOMMENDATION
REGARDING MOTION FOR DEFAULT
JUDGMENT
Re: Dkt. No. 17
I. INTRODUCTION
In this ERISA enforcement action, Plaintiffs1bring a Motion for Default Judgment (dkt.
17) seeking entry of default judgment against Defendant Steiny and Company, Inc. (“Steiny”)
following the Clerk’s entry of default. Plaintiffs initially asked the Court to award unpaid fringe
benefits, interest, liquidated damages, attorneys’ fees, and costs. After the undersigned magistrate
judge held a hearing and ordered supplemental declarations to resolve gaps in the record, Steiny
paid its past-due benefits, and Plaintiffs withdrew their request for all but liquidated damages,
attorneys’ fees, and costs. See Campbell Supp’l Decl. (dkt. 22) ¶ 3; Proposed Judgment (dkt. 25).
For the reasons stated below, the undersigned recommends that the Motion be GRANTED IN
PART as to those categories of damages.
Because Steiny has not appeared in this action and has not consented to the jurisdiction of
the undersigned magistrate judge, this action will be reassigned to a United States district judge
for all further proceedings, including action on the recommendations of this Report. The
undersigned recommends that, although not compelled by statute, the Court require Plaintiffs to
1
Plaintiffs are Jack Buckhorn and Anisa M. Thomsen as trustees of: (1) the Redwood Empire
Electrical Workers Health and Welfare Trust Fund; (2) the Redwood Empire Electrical Workers
Pension Trust; (3) the Joint Electrical Industry Training Program; (4) the National Employees
Benefit Fund; and (4) the Redwood Empire Electrical Workers Work Recovery Fund.
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serve a copy of this Report on Steiny in a manner consistent with Rule 5(b) of the Federal Rules of
Civil Procedure, such as service by mail. Any party may file objections to these recommendations
no later than fourteen days after being served with a copy of this Report. See 28 U.S.C.
§ 636(b)(1).
II. BACKGROUND
Plaintiffs are trustees of several employee benefit funds for electrical workers, all of which
are Taft-Hartley funds as defined by 29 U.S.C. § 186 and employee pension benefit plans as
defined by 29 U.S.C. § 1002(1)−(2). Compl. (dkt. 1) ¶¶ 2−3. Steiny is an employer operating in
Solano County, California. Id. ¶ 4. In 1978, Steiny signed a letter of assent agreeing to be bound
by the “Inside” labor agreement (the “Inside Agreement”) between the Redwood Empire Chapter
of the National Electrical Contractors Association and IBEW Local 551. See id. ¶ 5 & Ex. 1. The
Complaint alleged that Steiny owed contributions that were due December of 2014 through
February of 2015, as well as interest and liquidated damages for those months, and also liquidated
damages for untimely contributions for the months of June, July, and October of 2014. Id. ¶ 10.
The Complaint also alleged on information and belief that addition funds were due for the period
from March 1, 2015, to the filing of the Complaint on March 27, 2015, and stated Plaintiffs’ intent
to “amend the complaint at or before the time of judgment” to set forth additional damages
resulting from Steiny’s continued breach of its obligations. Id. ¶¶ 12−13. Two versions of the
Inside Agreement govern the months at issue: one valid from June 1, 2011 through May 31, 2015
(the “2011 Agreement”), and the other valid from June 1, 2015 through May 31, 2017 (the “2015
Agreement”).2
Plaintiffs’ Motion sought unpaid contributions and interest for only the months of June and
September of 2015. Mot. (dkt. 17-1) at 2; Marshall Decl. (dkt. 17-2) ¶ 6. The Motion also sought
liquidated damages for untimely or unpaid contributions for June, July, and October through
December of 2014 and January through September of 2015. Marshall Decl. Ex. D; Thomsen
2
The 2011 and 2015 versions of the Inside Agreement appear in multiple places in the record,
including as Exhibits A and B, respectively, of the Supplemental Declarations of Sue Campbell
(dkt. 22), Anisa Thomsen (dkt. 23), and Alice Marshal (dkt. 24).
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Decl. (dkt. 17-3) Ex. C. The Motion did not clearly identify the trusts to which Steiny owed
contributions and damages. See generally Mot. The undersigned noted at the hearing that some
of the trusts identified in the supporting documentation did not appear to correspond to any
plaintiff in this action, and instructed Plaintiffs to file supplemental materials addressing that and
other issues.
Plaintiffs filed three supplemental declarations after the hearing, withdrawing their request
for contributions (as Steiny has now paid them) and interest, and seeking only liquidated damages,
attorneys’ fees, and costs. Campbell Supp’l Decl. ¶ 3. Plaintiffs also no longer seek damages
related to vacation benefits because there is no provision for liquidated damages based on those
contributions. Id. ¶ 4. Anisa Thomsen’s supplemental declaration discusses Labor-Management
Cooperation Committee (“LMCC”) contributions and National Employees Benefit Fund
(“NEBF”) contributions, primarily focusing on the former. Thomsen Supp’l Decl. ¶¶ 4−5. Alice
Marshall’s supplemental declaration discusses health and welfare contributions, pension
contributions, Local Joint Apprenticeship Training contributions, and NEBF contributions.
Marshall Supp’l Decl. ¶¶ 4−9.
In assenting to the Inside Agreement, Steiny agreed to contribute to a number of employee
benefit funds and to comply with their corresponding trust agreements. First, Steiny committed to
make contributions to the NEBF and to be bound by the Restated Employees Benefit Agreement
and Trust (the “NEBF Agreement”). See 2011 Agreement § 6.01 (“The individual Employer
hereby accepts, and agrees to be bound by, the Restated Employees Benefit Agreement and
Trust.”); 2015 Agreement § 6.01 (same). The NEBF Agreement provides for liquidated damages
of “up to twenty percent (20%) of the amount found to be delinquent” to compensate Plaintiffs for
collection costs related to delinquent NEBF contributions. Marshall Supp’l Decl. Ex. D (excerpt
of the NEBF Agreement) § 6.9.2.3
For health and welfare benefits, Steiny agreed to make contributions to the Redwood
3
Some of the liquidated damages provisions at issue also provide for interest as a component
of liquidated damages. See, e.g., Marshall Supp’l Decl. Ex. D § 6.9.3. Because Plaintiffs neither
include such interest in their supplemental calculations (Marshall Decl. Ex. I) nor seek it in their
most recent proposed judgment (dkt. 25), this Report does not address those provisions in detail.
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Empire Electrical Workers’ Health and Welfare Trust Fund and to be bound by the Redwood
Empire Electrical Workers’ Health and Welfare Agreement and Trust (the “H&W Agreement”).
See 2011 Agreement § 6.02; 2015 Agreement § 6.02. That agreement calls for 20% liquidated
damages if the trust sues an employer to recover delinquent contributions. Marshall Supp’l Decl.
Ex. E (excerpt of the H&W Agreement) § 47. The H&W Agreement also includes a separate
liquidated damages provision, not specific to recovery through a lawsuit, which calls for the
greater of $350 or 10% of the amount due, with the 10% option only available for contributions
that are more than five days late. Id. § 46.
For pension benefits, Steiny agreed to make contributions to the Redwood Empire
Electrical Workers’ Pension Trust Fund and to be bound by the Redwood Empire Electrical
Workers’ Pension Agreement and Trust (the “Pension Agreement”), which includes dual
liquidated damages provisions substantially similar to those of the H&W Agreement discussed
above. 2011 Agreement § 6.03 (agreeing to be bound by the Pension Agreement); 2015
Agreement § 6.03 (same); Marshall Supp’l Decl. Ex. F (excerpt of the Pension Agreement)
§§ 5.22, 5.23.
For apprenticeship training funds, Steiny agreed to make contributions to a Local Joint
Apprenticeship Training Trust and to be bound by the Local Joint Apprenticeship Training Trust
Fund Agreement (the “JAT Agreement”). 2011 Agreement §§ 5.15−5.16; 2015 Agreement
§§ 5.15−5.16. The JAT Agreement provides for liquidated damages of the greater of $10 per
delinquency or 20% of the amount due. Marshall Supp’l Decl. Ex. G (excerpt of the JAT
Agreement) art. III § 6.
The Administrative Office for the Redwood Empire Electrical Workers collects health and
welfare, pension, and JAT contributions, as well as liquidated damages for delinquent NEBF
contributions. Marshall Supp’l Decl. ¶ 5. Based on the various default provisions discussed
above, and because employers generally pay either all or none of the four contributions owed for a
given month, the administrative office conservatively assesses liquidated damages at the greater of
$350 or 10% of the amount due per month—the former being authorized for delinquent health and
welfare or pension payments, and the latter being the lowest percentage allowed by any of the
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trusts at issue (specifically, the percentage allowed for health and welfare or pension benefits, and
within the 20% allowed for NEBF or JAT benefits). See id. ¶ 9. Plaintiffs therefore seek
$6,261.02 in liquidated damages for delinquent contributions to these funds, based on eight
months assessed at $350 each and six months assessed at 10% of the amount due. Id. ¶ 10 &
Ex. I.
Steiny also “agree[d] to participate in a [local] Labor-Management Cooperation Fund,” and
to abide by its “Agreement and Declaration of Trust.” 2011 Agreement §§ 8.01−8.03; 2015
Agreement §§ 8.01−8.03. The Agreement and Declaration of Trust (“LMCC Agreement”)
provides for liquidated damages of the greater of 7% of the amount due or $10 for delinquent
contributions. Thomsen Supp’l Decl. Ex. D (excerpt of the LMCC Agreement) art. III § 3.
Plaintiffs currently seek $100 in liquidated damages for untimely LMCC contributions, at $10 per
month for ten delinquent months. Thomsen Supp’l Decl. ¶ 6 & Ex. F.
Plaintiffs also seek $4,543.50 in attorneys’ fees for 23.3 hours of work by their counsel
Sue Campbell at a rate of $195 per hour. Campbell Decl. (dkt. 17-4) ¶¶ 1−2. Campbell’s
declaration attributes six hours of work to filing the present Motion and includes itemized billing
statements for the remainder of the work claimed. Id. ¶ 2 & Ex. A. Plaintiffs do not claim
additional attorneys’ fees for work undertaken to remedy the defects identified at the hearing
through the submission of supplemental declarations. See id. Plaintiffs request $420 in costs,
consisting of the $400 filing fee and $20 for service of process. Id. ¶ 3 & Ex. A.
III. ANALYSIS
A. Adequacy of Service of Process
As a preliminary matter, where entry of default judgment is requested, the Court must
determine whether service of process was adequate. Bank of the West v. RMA Lumber Inc., No.
C 07-06469 JSW, 2008 WL 2474650, at *2 (N.D. Cal. June 17, 2008). A party may serve a
corporation “following state law for serving a summons in an action brought in courts of general
jurisdiction in the state where the district court is located or where service is made.” Fed. R. Civ.
P. 4(e)(1); see also Fed. R. Civ. P. 4(h)(1)(A) (authorizing service of process on corporations “in
the manner prescribed by Rule 4(e)(1) for serving an individual”). Under California law, a
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summons can be served on a corporation by delivering a copy of the summons and complaint to
the person designated as agent for service of process. Cal. Code Civ. Proc. § 416.10(a). The
proof of service indicates that Plaintiffs properly served the summons and complaint on Steiny by
personal service. See Certificate of Service (dkt. 10).
B. Entry of Default Judgment
Plaintiffs have applied for a default judgment in this action on the basis that Steiny has
failed to plead or otherwise defend or appear after valid service. Under Rule 55(b)(2) of the
Federal Rules of Civil Procedure, the Court may enter a default judgment once the Clerk, under
Rule 55(a), has entered the party’s default based upon a failure to plead or otherwise defend the
action. The Court is free to consider a wide range of factors in deciding whether to enter a default
judgment, including: “(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 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.” Eitel v. McCool, 782 F.2d 1470, 1471−72 (9th Cir. 1986); see
also Wright & Miller, Federal Practice and Procedure, Civil § 2685.
Here, where Steiny has failed to respond to Plaintiffs’ Complaint and Summons, the
principal concerns are whether Plaintiffs have pled a valid claim and whether they are entitled to
the amount of damages they seek.4 “The general rule of law is that upon default the factual
allegations of the complaint, except those relating to the amount of damages, will be taken as
true.” Power Tech. Ltd. v. S.P.C. Tech., 627 F. Supp. 2d 1083, 1088 (N.D. Cal. 2008) (quoting
Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)). This Report addresses only the
claims remaining after Plaintiffs’ post-hearing submissions.
4
Several of the other factors are satisfied by reason of Steiny’s failure to appear. Plaintiff
would be prejudiced by a decision not to grant default judgment because Plaintiff has no other
remedy. Steiny has made no showing of excusable neglect or of a dispute as to material facts.
And although policy favors a decision on the merits, that is not possible where, as here, Steiny has
not appeared and there is no indication that he intends to.
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1. Liquidated Damages Addressed in Anisa Thomsen’s Supplemental
Declaration
Anisa Thomsen’s supplemental declaration addresses Plaintiffs’ claim for $100 in
liquidated damages related to Steiny’s untimely Labor-Management Cooperation Committee
(“LMCC”) contributions. See Thomsen Supp’l Decl. ¶¶ 4−6 & Exs. D−F.
The undersigned advised Plaintiffs at the hearing that they must explain how each fund for
which they seek damages relates to a plaintiff in this action. As discussed above, Steiny
committed to pay those contributions to the “Labor-Management Cooperation Fund.” 2011
Agreement §§ 8.01−8.03; 2015 Agreement §§ 8.01−8.03. The named plaintiffs in this action are
identified as trustees of a number of trusts, but not as trustees of a “Labor-Management
Cooperation Fund” or anything that could be inferred to meet that description. See footnote 1,
supra. According to Thomsen, “[t]he Redwood Chapter of the National Electrical Contractor’s
Association (NECA) collects [the LMCC] benefits.” Thomsen Supp’l Decl. ¶ 4. But even
assuming for the sake of argument that NECA has a substantive right to recover those
contributions and related liquidated damages, rather than merely an administrative role in
collecting them, NECA is also not a plaintiff in this action. None of Plaintiffs’ initial or
supplemental submissions address this issue in any way.5 Because Plaintiffs have not met their
burden to show a right to recover liquidated damages related to LMCC contributions, the
undersigned recommends that their Motion be DENIED as to those damages.
2. Liquidated Damages Addressed in Alice Marshall’s Supplemental
Declaration
Alice Marshall’s supplemental declaration addresses liquidated damages for NEBF, health
and welfare, pension, and joint apprenticeship training contributions. The first three of those
categories correspond to trusts for which the named plaintiffs are identified as trustees. Although
less clear than the others, and not directly addressed in Plaintiffs’ filings, it also reasonable to infer
in the present context that the Joint Electrical Industry Training Program—one of the entities for
which Plaintiffs are designated as trustees—is the “Local Joint Apprenticeship Training Trust”
5 At the hearing, Plaintiffs’ counsel suggested that certain plans had been designated as the
“collection plans” for all of the others. The undersigned instructed Plaintiffs to address that issue
in their supplemental filings, but Plaintiffs failed to do so.
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referenced at sections 5.15 and 5.16 of both the 2011 and 2015 versions of the Inside Agreement.
The undersigned therefore finds that Plaintiffs are entitled to collect each category of liquidated
damages addressed in Marshall’s supplemental declaration.
For eight of the months at issue—June, November, and December of 2014, and January,
February, March, April, and September of 2015—Plaintiffs seek a flat damages rate of $350 per
month. Marshall Supp’l Decl. Ex. I. That rate is authorized by both the H&W Agreement and the
Pension Agreement as liquidated damages for untimely contributions. H&W Agreement § 46;
Pension Agreement § 5.22(b).6 Plaintiffs have submitted transmittals for each of those months
showing contributions due to the health and welfare and pension funds. Marshall Supp’l Decl.
Ex. H. Marshall’s supplemental declaration and an attached spreadsheet also state that Steiny did
not pay the contributions for the months at issue on time. Id. ¶ 10 & Ex. I. The undersigned
therefore concludes that the H&W Agreement and the Pension Agreement authorize the damages
claimed for those months.
For the six remaining months—July and October of 2014, and May through August of
2015—Plaintiffs claim 10% of the amount owed, which exceeds $350 for each month. See id. Ex.
I. The undersigned has reviewed the transmittals at issue and confirmed that the contributions
assessed conform to the rates set by the Inside Agreement and relevant wage schedules. See 2011
Agreement sched. A; 2015 Agreement sched. A ;Campbell Supp’l Decl. Ex. C (wage schedules
showing rates effective for the year-long periods beginning June 1, 2014 and June 1, 2015);
Marshall Supp’l Decl. Ex. H (transmittals). Each agreement at issue authorizes liquidated
damages of at least 10%. See NEBF Agreement § 6.9.2 (liquidated damages of “up to twenty
percent” of the amount due); JAT Agreement (greater of $10 or 20% of the amount due); H&W
Agreement § 46 (greater of $350 or 10% of the amount due); Pension Agreement § 5.22 (same).7
6
The NEBF Agreement and the JAT Agreement do not provide for a $350 flat rate of
liquidated damages. For these months, Plaintiffs essentially seek recovery under only the H&W
Agreement and the Pension Agreement, forgoing any remedies they might have under the NEBF
Agreement and the JAT Agreement. Further, although the H&W Agreement and the Pension
Agreement could perhaps be construed as each separately authorizing $350 per month, for a total
of $700 per month, Plaintiffs seek only a single $350 assessment for each month of untimely
payments.
7 As discussed in the following paragraph, the H&W Agreement and the Pension Agreement
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Marshall’s supplemental declaration and an attached spreadsheet state that Steiny did not pay the
contributions for the months at issue on time. Id. ¶ 10 & Ex. I. The undersigned therefore
concludes that the agreements authorize the damages claimed for those months.
Plaintiffs have not addressed the interplay between the flat $350 rate for certain months
and either (a) the provisions of the H&W Agreement and the Pension Agreement calling for 20%
liquidated damages if those plans sue to recover delinquent contributions, see H&W Agreement
§ 47; Pension Agreement § 5.23; or (b) the ERISA provision authorizing liquidated damages
“equal to the greater of— (i) interest on the unpaid contributions, or (ii) liquidated damages
provided for under the plan in an amount not in excess of 20 percent (or such higher percentage as
may be permitted under Federal or State law),” 29 U.S.C § 1132(g)(2)(C).8 The Court need not
resolve this tension, because even assuming for the sake of argument that Plaintiffs are limited to
liquidated damages equaling 20% of the untimely contributions, the total amount that Plaintiffs
seek is well below that threshold. Setting aside the LMCC contributions that Plaintiffs have not
demonstrated any right to recover, the untimely contributions at issue total $52,465.66. See
Marshall Supp’l Decl. Ex. I. Twenty percent of that sum is $10,493.13—significantly more than
the $6,261.02 that Plaintiffs seek for these contributions. See id. The undersigned therefore
concludes that even if these statutory or contractual provisions limit Plaintiffs’ liquidated damages
to 20% of the untimely contributions, Plaintiffs are still entitled to recover the amount they seek.
One final issue is that several of the months for which Plaintiffs now seek damages were
not mentioned in the Complaint, specifically November of 2014 and June through September of
2015. Compare Compl. ¶¶ 10, 12, with Campbell Supp’l Decl. Ex. I. The Complaint did,
however, explicitly contemplate that Plaintiffs would seek to amend their pleading to account for
additional damages incurred after filing the Complaint in March of 2015. Compl. ¶ 13. Although
Plaintiffs have not actually sought leave to amend, courts often allow damages incurred after the
initiation of an action to be included in a default judgment, which would account for all but
also include provisions authorizing liquidated damages of 20% of the amount due if the plans sue
to collect a debt.
8
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November of 2014. See, e.g., Bd. of Trs. of the Sheet Metal Workers Health Care Tr. of N. Cal. v.
B.D. Bridon, Inc., No. C-95-1240 MHP, 1995 WL 573701, *3 (N.D. Cal. Sept. 19, 1995)
(explaining that denying “liquidated damages for contributions that became delinquent after suit
was filed and remained unpaid” would “force trust funds to file successive lawsuits for each new
delinquent contribution and would frustrate ERISA’s goals of deterring violations and
compensating funds for such violations”). Here, for the reasons stated in B.D. Bridon, and taking
into account that the Complaint put Steiny on notice of Plaintiffs’ intent to amend to seek
additional damages, that Plaintiffs served their present Motion seeking damages for those months
on Steiny (see dkt. 18), Plaintiffs’ evidence demonstrating their right to recover for those months,
and the undersigned’s recommendation that Plaintiffs be required to serve this Report on Steiny to
allow a final opportunity to respond, the undersigned concludes that requiring formal amendment
of the Complaint to add the months not initially included therein would not serve any practical
purpose. The undersigned therefore recommends that the Court deem the Complaint amended to
seek liquidated damages for all of the months discussed above, including both November of 2014
and the months after Plaintiffs initiated this action.
3. Attorneys’ Fees
Attorneys’ fees incurred in actions brought to recover unpaid contributions are available
under 29 U.S.C. § 1132(g)(2)(D). Federal courts have adopted the “lodestar” method for
calculating the amount of reasonable attorneys’ fees. Hensley v. Eckerhart, 461 U.S. 424, 433
(1983). The lodestar figure is the product of the hours counsel reasonably spent on the case and a
reasonable hourly rate. Id. To determine whether Plaintiffs’ claimed hours are reasonable, the
Court must review attorneys’ time records to determine whether the hours are adequately
documented in a manner that can be properly billed directly to clients. Id. at 434. The Court must
assess whether the hours claimed are vague, block-billed, excessive and/or duplicative, or whether
the hours in their entirety must be reduced because of limited success in the action. See Navarro
v. General Nutrition Corp., 2005 WL 2333803, at *4 (N.D. Cal. Sept. 22, 2005). Decisions by
other courts regarding the reasonableness of the rate sought may provide evidence to support a
finding of reasonableness. See Widrig v. Apfel, 140 F.3d 1207, 1210 (9th Cir. 1998) (holding that
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rate set by district court based, in part, on the rate awarded to same attorney in another case, was
reasonable).
Plaintiffs submitted a declaration by their counsel Sue Campbell detailing her time spent
seeking to recover the contributions at issue and associated interest and damages. See generally
Campbell Decl. Plaintiffs seek $4,543.50 in attorneys’ fees for 23.3 hours of work at a rate of
$195 per hour. See id. ¶¶ 1−2. Campbell states that she spent six hours preparing and filing the
present Motion, and details the remainder of her time on the case in billing records broken down
in 0.05-hour intervals. Id. ¶ 2 & Ex. A. Plaintiffs do not seek attorneys’ fees for time spent
preparing supplemental filings to remedy the deficiencies of their original submission.
The billing records include time spent seeking to collect the debt outside the context of the
present action. See, e.g., id. Ex. A at ECF p. 5 (entries for time spent in January of 2015 filing
liens on Steiny’s bonds). Although ERISA itself does not authorize recovery of such fees, see,
e.g., Emp. Painters’ Tr. v. Cascade Coatings, No. C12-0101 JLR, 2014 WL 526776, at *10 (W.D.
Wash. Feb. 10, 2014) (limiting statutory attorneys’ fees to those incurred in the course of the
ERISA enforcement action, excluding fees associated with “state law bond claims”), the
agreements at issue here include broader attorneys’ fees provisions that encompass all of the fees
Plaintiffs seek. See, e.g., NEBF Agreement § 6.9.5 (authorizing the plan to recover “all costs,
audit expenses, actuarial expenses, and attorneys’ fees incurred by the Trustees in enforcing the
provisions hereof, whether by litigation or otherwise”).
The undersigned has reviewed Campbell’s billing records and finds her time expended on
the matter to be reasonable. Campbell’s billing rate of $195 per hour also falls well within the
range that courts have approved in similar cases. See, e.g., Carpenters Pension Trust Fund for N.
Cal. v. Lindquist, No. 10-3386 SC, 2011 WL 4543079, at *2 (N.D. Cal. Sept. 29, 2011) (finding
“an hourly rate of between $225 and $275 for attorney time” to be reasonable); Bd. of Trs. of
Boilermaker Vacation Trust v. Skelly, Inc., 389 F. Supp. 2d 1222, 1227−28 (N.D. Cal. 2005)
(finding hourly rates of $210 and $345 to be reasonable). The undersigned therefore recommends
awarding Plaintiffs’ their requested attorneys’ fees in full.
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4. Costs
Plaintiffs seek $420 in costs. Campbell’s billing records reflect that Plaintiffs paid a $400
filing fee and $20 for service of process. See Campbell Decl. Ex. A at ECF pp. 6, 9.
ERISA authorizes an award of reasonable costs in an action to recover unpaid
contributions. 29 U.S.C. § 1132(g)(2)(D). Civil Local Rule 54-3(a)(1) provides that an award of
the clerk’s filing fee is “allowable if paid by the claimant.” The docket and the evidence that
Plaintiffs have submitted reflect that the filing fee was paid. Plaintiffs’ costs for service of process
are also reasonable, and courts have routinely awarded costs of service in actions brought under
§ 1132(g). See, e.g., Central. Cal. IBEW/NECA Pension Trust v. Ozzimo Electric, Inc., No. C
13-03800 JSW, 2014 WL 1245059, at *5 (N.D. Cal. Mar. 25, 2014). The undersigned therefore
recommends that Plaintiffs recover the full $420 that they request for costs.
IV. CONCLUSION
For the reasons stated above, the undersigned recommends that Plaintiffs’ Motion for
Default Judgment be GRANTED IN PART, that Plaintiffs be awarded $6,261.02 in liquidated
damages, $4,543.50 in attorneys’ fees, and $420 in costs, for a total judgment against Steiny of
$11,224.52.
The undersigned further recommends that the Court require Plaintiffs to serve a copy of
this Report on Steiny, and withhold judgment until fourteen days after service to allow Steiny a
final opportunity to respond. See Automattic Inc. v. Steiner, 82 F. Supp. 3d 1011, 1016 (N.D. Cal.
2015) (noting that although 28 U.S.C. § 636(b) includes “no clear requirement” for such service,
“the court normally requests that the moving party do so,” but in that case would not require
further expenditure of resources to complete international service before entering judgment). Any
party may file objections to the recommendations of this Report within fourteen days of being
served with a copy. See 28 U.S.C. § 636(b).
Dated: May 6, 2016
______________________________________
JOSEPH C. SPERO
Chief Magistrate Judge
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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_14-cv-01391/USCOURTS-caed-1_14-cv-01391-1/pdf.json | [
[
"Commissioner of Social Security",
"Defendant"
],
[
"Benito Randy Dungan",
"Plaintiff"
]
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1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
BENITO RANDY DUNGAN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
Case No. 1:14-cv-01391-EPG
ORDER REGARDING PLAINTIFF’S
SOCIAL SECURITY COMPLAINT
I. INTRODUCTION
Plaintiff Benito Randy Dungan (“Plaintiff”) seeks judicial review of the final decision of the
Commissioner of Social Security (“Commissioner” or “Defendant”) denying his applications for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and
XVI of the Social Security Act. The matter is before the Court on the parties’ briefs, which were
submitted without oral argument to Magistrate Judge Erica P. Grosjean.
1
Upon a review of the
entire record, the Court finds the ALJ’s decision is proper and is supported by substantial evidence
in the record as a whole. Accordingly, this Court affirms the agency’s determination to deny
benefits and denies Plaintiff’s appeal.
1 The parties consented to the jurisdiction of the Magistrate Judge. (Docs. 7 and 8).
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II. BACKGROUND AND PRIOR PROCEEDINGS2
Plaintiff was 48 years old at the time of his hearing before the Social Security
Administration. AR 46-47. He has a GED, has never held a full-time job, and most recently worked
in 2010. AR 47-48. Plaintiff’s alleged physical conditions include post-traumatic stress disorder
(“PTSD”), depression, anxiety, paranoia, and carpal tunnel on both hands. AR 281. In May 2011,
Plaintiff filed applications for DIB and SSI alleging disability beginning November 4, 2010. AR
213-216, 217-225. Plaintiff’s applications were denied initially and on reconsideration. AR 142-
151, 160-164. Subsequently, ALJ John Cusker held a hearing on December 19, 2012 (AR 43-68),
and issued an order denying benefits on March 5, 2013. AR 25-36. The ALJ’s decision became the
Commissioner’s final decision when the Appeals Council denied Plaintiff’s request for review. AR
7-12.
Plaintiff now challenges that decision, arguing that the ALJ failed to provide specific and
legitimate reasons to reject Dr. Michael S. Barnett’s medical source statement. Defendant argues
that the ALJ provided specific and legitimate reasons to reject Dr. Barnett’s medical source
statement. Specifically, the statement is not supported by Dr. Barnett’s treatment notes, is
contradicted by Dr. Swanson’s consulting examination, and is inconsistent with Plaintiff’s daily
activities. Defendant contends these were all specific and legitimate reasons that were supported by
substantial evidence in the record.
III.THE DISABILITY DETERMINATION PROCESS
To qualify for benefits under the Social Security Act, a plaintiff must establish that he or she
is unable to engage in substantial gainful activity due to a medically determinable physical or mental
impairment that has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if:
. . . his physical or mental impairment or impairments are of such severity that he is
not only unable to do his previous work, but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work which
exists in the national economy, regardless of whether such work exists in the
2 References to the Administrative Record will be designated as “AR,” followed by the appropriate page number.
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immediate area in which he lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
To achieve uniformity in the decision-making process, the Commissioner has established a
sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 404.1520(a),
416.920(a). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that
the claimant is or is not disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The ALJ must
consider objective medical evidence and opinion testimony. 20 C.F.R. §§ 404.1513, 416.913.
Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial
gainful activity during the period of alleged disability; (2) whether the claimant had medicallydeterminable “severe” impairments; (3) whether these impairments meet or are medically equivalent
to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1; (4) whether the
claimant retained the residual functional capacity (“RFC”) to perform his past relevant work; and
(5) whether the claimant had the ability to perform other jobs existing in significant numbers at the
regional and national level. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
A. The ALJ’s Decision
Using the Social Security Administration’s five-step sequential evaluation process, the ALJ
determined that Plaintiff did not meet the disability standard. AR 25-36. More particularly, the ALJ
found that Plaintiff met the insured status requirements through March 31, 2011, and that he had not
engaged in any substantial gainful activity since November 4, 2010, the alleged disability onset date.
AR 27. Further, the ALJ identified antisocial personality disorder, borderline intellectual
functioning, and history of polysubstance dependence as severe impairments. AR 27. Nonetheless,
the ALJ determined that the severity of the Plaintiff’s impairments did not meet or exceed any of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. AR 28.
Based on his review of the entire record, the ALJ determined that Plaintiff retained the
residual functional capacity (“RFC”) to perform a full range of work at all exertional levels, with the
following non-exertional limitations: “he can understand, carry out and remember simple
instructions, and is able to respond appropriately to usual work situations such as safety and the like.
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Changes in the routine will not be very problematic; he has no substantial restriction in daily
activities, and difficulty maintaining social functioning does not appear to be present.” AR 30.
After considering the testimony of a vocational expert, the ALJ determined that Plaintiff could
not perform any past relevant work. AR 34. He also determined Plaintiff could perform jobs that
exist in significant numbers in the national economy, including poultry worker, packager, or packing
line worker. AR 35. As a result, Plaintiff was not disabled under the Social Security Act. AR 36.
IV.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, this
Court must determine whether the decision of the Commissioner is supported by substantial
evidence. 42 U.S.C. § 405(g). Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's
decision to determine whether: (1) it is supported by substantial evidence; and (2) it applies the
correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008);
Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007).
“Substantial evidence means more than a scintilla but less than a preponderance.” Thomas v.
Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). It is “relevant evidence which, considering the record
as a whole, a reasonable person might accept as adequate to support a conclusion.” Id. “Where the
evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's
decision, the ALJ's conclusion must be upheld.” Id.
V. DISCUSSION
A. Medical Record
The medical evidence that relates to the issues raised in this appeal is summarized below.
i. Therapy Sessions
On March 16, 2010, Plaintiff began regularly participating in therapy sessions with Chery
McCarter, L.M.F.T. AR 597. In April 2010, Plaintiff’s therapist referred him to a psychiatrist for
mental treatment. AR 506. In May 2011, Plaintiff entered a residential program at a WestCare
treatment facility. AR 632. During therapy sessions Plaintiff reported experiencing auditory
hallucinations, feeling depressed and irritable, and being abused as a child by his father. AR 624,
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628, 631. Plaintiff also reported feeling anxious around others and experiencing “panic-like
symptoms” when attending a meeting at Fresno City College. AR 611, 614. At the treatment
facility, Plaintiff wrote poetry, mentored others, facilitated recovery group discussions, and
participated in staff meetings. AR 619-627. In October 2011, Plaintiff moved into a sober living
home and spoke at a substance abuse class at Fresno Pacific University. AR 608, 612. Plaintiff
graduated from the WestCare program in November 2011, but continued to attend therapy sessions.
AR 606. Plaintiff was homeless for a period of time when his ability to stay at the sober living home
expired. He reentered the WestCare residential program in September 2012. AR 414, 476, 481.
ii. Dr. Barnett, M.D., Treating Physician
Dr. Barnett began seeing Plaintiff on April 13, 2010. AR 506. Plaintiff reported that he had
been in and out of prison since 1984, abused cocaine and heroin, has trouble sleeping, becomes
paranoid in crowds, is sensitive to loud noises, and was abused as a child. AR 506. Upon
evaluation, Dr. Barnett found Plaintiff cooperative, in no acute psychiatric distress, and able to make
relevant, organized and coherent responses. AR 507. During the initial examination, Plaintiff
appeared tired, had a depressed mood, but did not display any psychotic symptoms. AR 507. In
addition, Plaintiff exhibited good insight and judgment, had an intact memory, and was fully
oriented to time, place, and situation. AR 507. Dr. Barnett diagnosed Plaintiff with severe PTSD;
personality disorder, not otherwise specified; and polysubstance abuse in remission. AR 507. On
May 17, 2011, Plaintiff met Dr. Barnett for a second time. AR 550. Plaintiff appeared irritable and
more withdrawn, had a difficult time enjoying activities, and reported auditory hallucinations. AR
550. Plaintiff was cooperative and was in no acute distress. AR 551. He was oriented times three,
had good insight and judgment, and had an intact memory. Dr. Barnett further diagnosed Plaintiff
with chronic depression. AR 551.
On December 12, 2012, Dr. Barnett completed a medical source statement and opined that
Plaintiff has a mild to moderate impairment in relating to supervisors and co-workers; a mild
impairment in performing a simple one or two step tasks and handling funds; a moderate impairment
maintaining concentration for at least two hour increments; and a marked impairment in dealing with
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the public and dealing with the stress and pressures associated with an eight-hour workday and day
to day work activity. AR 686.
iii. Dr. Swanson, Ph.D., Consultative Examiner
On August 12, 2011, Steven C. Swanson, Ph.D., performed a psychological examination on
Plaintiff. AR 532-538. Dr. Swanson reviewed Plaintiff’s background information, administered
tests measuring Plaintiff’s cognitive function, and conducted a clinical interview. AR 533. Dr.
Swanson noted that Plaintiff was friendly, cooperative, oriented, had a full range of affect, and
ambulated independently. AR 534. Dr. Swanson opined that Plaintiff’s appearance reflected
excellent concern for personal hygiene and grooming. AR 534. Dr. Swanson found Plaintiff’s
memory function intact and mental and emotional functioning within normal limits. AR 534.
Plaintiff reported a disorder of perception and feeling “irritated around people.” AR 534. However,
Dr. Swanson opined that there was no clear indication of ongoing psychotic process and that the
vegetative signs of depression were mostly absent. In addition, Plaintiff’s concentration and ability
to maintain attention was adequate, his insight and judgment were intact, and his general fund of
knowledge fell within normal limits. AR 534. Upon formal testing, Dr. Swanson noted signs of
possible malingering. AR 537.
Dr. Swanson diagnosed Plaintiff with polysubstance dependence, antisocial personality
disorder, and borderline intellectual functioning. AR 537. Dr. Swanson opined that Plaintiff is able
to maintain concentration and relate appropriately to others in a job setting; is able to handle funds in
his own best interest; is expected to understand, carry out and remember simple instructions; could
respond appropriately to usual work situations; and could adapt to changes in routine. AR 537-538.
Dr. Swanson further opined that Plaintiff did not experience substantial restrictions in daily activities
or difficulty maintaining social relationships. AR 538.
B. Legal Standard
The weight given to medical opinions depends in part on whether they are offered by
treating, examining, or non-examining (reviewing) professionals. Holohan v. Massanari, 246 F.3d
1195, 1201 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), as amended (Apr. 9,
1996). Ordinarily, more weight is given to the opinion of a treating professional, who has a greater
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opportunity to know and observe the patient as an individual. Id; Smolen v. Chater, 80 F.3d 1273,
1285 (9th Cir. 1996).
An ALJ may reject an uncontradicted opinion of a treating or examining medical
professional only for “clear and convincing” reasons. Lester, 81 F.3d at 831. In contrast, a
contradicted opinion of a treating or examining professional may be rejected for “specific and
legitimate” reasons. Lester, 81 F.3d at 830. While a treating professional's opinion is generally
accorded superior weight, if it is contradicted by an examining professional's opinion (when
supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews v.
Shalala, 53 F.3d 1035, 1041 (9th Cir.1995), citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th
Cir.1989). The regulations require the ALJ to weigh the contradicted treating physician opinion,
Edlund v. Massanari, 253 F.3d 1152 (9th Cir. 2001), except that the ALJ need not give it any weight
if it is conclusory and supported by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, 1113
(9th Cir. 1999) (rejecting a treating physician's conclusory, minimally-supported opinion); see also
Magallanes, 881 F.2d at 751.
The opinion of an examining physician is, in turn, entitled to greater weight than the opinion
of a non-examining physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990); Gallant v.
Heckler, 753 F.2d 1450 (9th Cir. 1984). As is the case with the opinion of a treating physician, the
Commissioner must provide “clear and convincing” reasons for rejecting the uncontradicted opinion
of an examining physician. And like the opinion of a treating doctor, the opinion of an examining
doctor, even if contradicted by another doctor, can only be rejected for specific and legitimate
reasons that are supported by substantial evidence in the record. Lester, 81 F.3d at 830.
The opinion of a non-examining physician may constitute substantial evidence when it is
“consistent with independent clinical findings or other evidence in the record.” Thomas, 278 F.3d at
957. Such independent reasons may include laboratory test results or contrary reports from
examining physicians, and plaintiff's testimony when it conflicts with the treating physician's
opinion. Lester, 81 F.3d at 831, citing Magallanes, 881 F.2d at 751–55.
///
///
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C. Analysis
Dr. Barnett’s ultimate findings regarding the extent of Plaintiff’s limitations are contradicted
by the findings of Dr. Swanson.
3
Consequently, the ALJ only needed to provide specific and
legitimate reasons supported by substantial evidence to reject Dr. Barnett’s medical source
statement. Lester, 81 F.3d at 830-831.
In his decision, the ALJ gave little weight to Dr. Barnett’s medical source statement,
explaining that:
I give little weight to Dr. Barnett’s medical source statement, because it is not
supported by objective findings in the treatment record, and not consistent with Dr.
Swanson’s findings and opinion. And, Dr. Barnett’s opinion is not consistent with the
claimant’s admitted activities of daily living. The claimant previously admitted that
he shops for groceries and he went to classes. The claimant testified that he had
stopped attending classes, but admitted using public transportation. He prepares his
own meals.
AR 32 (internal citations omitted)
The ALJ thus gave Dr. Barnett’s medical source statement reduced weight because: (1) it is
not supported by objective findings in the treatment record; (2) it is not consistent with Dr.
Swanson’s findings and opinions; and (3) Plaintiff’s daily activities are inconsistent with the
statement’s conclusion. These reasons all constitute specific and legitimate reasons to reject Dr.
Barnett’s opinion. Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (conflict between medical
opinion and daily activities “may justify rejecting a treating provider’s opinion”); Tomasetti v.
Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (upholding rejection of physician’s opinion where
“ultimate conclusions . . . did not mesh with her objective data or history”); Bayliss v. Barnhart, 427
F.3d 1211, 1216 (9th Cir. 2005) (rejecting physician opinion where physician’s “other recorded
observations and opinions” contradicted his ultimate conclusions); Magallanes, 881 F. 2d at 751-52
(conflicting clinical evidence from non-treating physician may justify rejecting a treating provider’s
opinion); Chaudhry v. Astrue, 688 F. 3d 661, 671 (9th Cir. 2012) (“The ALJ need not accept the
opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and
3 Dr. Swanson concluded in his report that there was no mental impairment present that that would limit the Plaintiff’s
ability to work. AR 539. Dr. Swanson opined that Plaintiff could carry out simple instructions, maintain concentration,
respond appropriately to usual work situations, and adapt to changes in routine. AR 537-538. These findings contradict
the limitations imposed by Dr. Barnett’s medical source statement.
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inadequately supported by clinical findings”), quoting Bray v. Astrue, 544 F. 3d 1219,1228 (9th Cir.
2009).
All three reasons are supported by substantial evidence. Dr. Barnett’s treatment notes
indicated Plaintiff was depressed, had a blunted affect, and exhibited psychotic symptoms. AR 551.
However, these notes also indicate that Plaintiff showed no acute psychic distress, was properly
oriented, demonstrated good judgment and insight, and had coherent, relevant, and organized
thoughts. AR 551, 559. None of Dr. Barnett’s findings in his treatment notes support an ultimate
conclusion that Plaintiff was disabled by his mental impairments or precluded from performing any
substantial work activity.
Moreover, Dr. Swanson reviewed Plaintiff’s medical history, interviewed Plaintiff, and
administered tests that measured Plaintiff’s cognitive function. AR 532-533. Dr. Swanson found
Plaintiff’s memory and concentration intact, and his mental and emotional function within normal
limitations. AR 537. Dr. Swanson opined that Plaintiff could carry out simple instructions, maintain
concentration, handle funds appropriately, and respond appropriately to others and usual work
situations. AR 537-538. Dr. Swanson also noted that changes in routine would not be problematic
for Plaintiff. AR 538. Dr. Swanson concluded that there was no mental impairment present that
would limit Plaintiff’s ability to work. AR 539.
Plaintiff argues that Dr. Swanson’s opinion does not rest on substantial evidence because he
did not review any medical records and did not have a longitudinal picture of Plaintiff’s psychiatric
profile. (Plaintiff’s Opening Brief 8:23-26, ECF No. 12). However, the administrative record
reveals that Dr. Swanson reviewed Plaintiff’s background information and Dr. Barnett’s medical
note from April 13, 2010. AR 533. Moreover, Dr. Swanson conducted an in-person examination of
Plaintiff and the ALJ properly relied on Dr. Swanson’s clinical findings. Thomas, 278 F.3d at 957
(the opinions of non-treating examining physicians may serve as substantial evidence when the
evidence is consistent with independent clinical findings or other evidence in the record). The Court
is also not persuaded by Plaintiff’s reliance on Reddick v. Chater, 157 F.3d 715 (9th Cir. 1998). In
Reddick, the ALJ rejected the medical opinions of a treating physician and consultative examiner,
because the opinions were based on the claimant’s subjective complaints. Id at 721. Instead, the
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ALJ relied on the assessments of two Social Security consultative examiners, whom he deemed to be
more objective. Id. The Ninth Circuit Court of Appeal found that the ALJ’s rejection of the medical
opinions was improper, because the ALJ’s reasoning was counter to the published framework for
evaluating and diagnosing the claimant’s disorder. Id at 725-726. The Court noted that the Social
Security consultative examiners assessed the claimant on a one-time basis and one of the examiners
did not have access to key medical records. Id at 727. The Ninth Circuit concluded that there was
no basis for the ALJ’s finding that the Social Security consulting examiners were more objective
than the opinions of the physicians the ALJ rejected. Id at 726-727. The Court’s holding does not
suggest that a medical examiner’s opinion based on a one-time examination without a review of
medical records is of questionable value. Id at 725-727.
Finally, Plaintiff appears to enjoy a full range of daily activities that do not support a finding
that he was disabled. The ALJ noted that Plaintiff does his own laundry, shops, prepares his own
meals, uses public transportation, and does housework. AR 32, 342-343, 365-366. In addition, Ms.
McCarter’s counseling notes indicated Plaintiff attended and actively participated in therapy
sessions, served as a mentor, attended staff meetings, and attended a substance abuse class at Fresno
Pacific University. AR 597-632. While the record demonstrates that Plaintiff often feels depressed,
feels anxious around people, and experiences psychotic symptoms, Plaintiff’s daily activities are
inconsistent with the limitations imposed by Dr. Barnett’s medical source statement.
The ALJ could have reasonably determined that Plaintiff was not disabled based on any of
these reasons and did not err in his treatment of Dr. Barnett’s medical source statement.
VI.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.
\\\
\\\
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The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Carolyn W.
Colvin, Acting Commissioner of Social Security and against Plaintiff, Benito Randy Dugan.
IT IS SO ORDERED.
Dated: February 17, 2016 /s/
UNITED STATES MAGISTRATE JUDGE
Case 1:14-cv-01391-EPG Document 16 Filed 02/17/16 Page 11 of 11 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_05-cv-01260/USCOURTS-cand-3_05-cv-01260-0/pdf.json | [
[
"Furnace Brook, LLC",
"Defendant"
],
[
"Sharper Image Corporation",
"Plaintiff"
]
] | 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
SHARPER IMAGE CORPORATION,
Plaintiff,
v.
FURNACE BROOK, LLC,
Defendant.
/
No. C 05-01260 JSW
ORDER DENYING STIPULATED
MOTION TO SHORTEN TIME
FOR HEARING ON MOTION TO
DISMISS
Now before the Court is the parties’ stipulated motion to shorten time on which Furnace
Brook, LLC’s motion to dismiss is heard. Following review of the parties’ request, the request
is DENIED. The Court will conduct the hearing on Furnace Brook, LLC’s motion to dismiss on
September 2, 2005, as originally noticed.
IT IS SO ORDERED.
Dated: May 5, 2005 /s/ Jeffrey S. White
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE
Case 3:05-cv-01260-JSW Document 23 Filed 05/05/05 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca8-04-02247/USCOURTS-ca8-04-02247-1/pdf.json | [
[
"Solomon L. Coffey",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-2176
___________
United States of America, *
*
Appellee, *
*
v. *
*
Solomon L. Coffey, also known as *
Solomon Murray, also known as Box, *
*
Appellant. *
___________
Appeals from the United States
No. 04-2247 District Court for the
___________ District of Nebraska.
United States of America, *
*
Appellee, *
*
v. *
*
Solomon L. Coffey, also known as *
Levell Coffey, also known as *
Levell Murray, *
*
Appellant. *
___________
Submitted: June 22, 2005
Filed: July 25, 2005
___________
Appellate Case: 04-2247 Page: 1 Date Filed: 07/25/2005 Entry ID: 1932039
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
2
The district court also sentenced Coffey to 30 months’ imprisonment for
violating the conditions of supervised release following the completion of his
sentence for an earlier conviction. We need not consider the thirty-month sentence
in our analysis because it runs concurrently with the longer sentence for the
conspiracy conviction.
-2-
Before WOLLMAN, HEANEY, and FAGG, Circuit Judges.
___________
WOLLMAN, Circuit Judge.
Solomon L. Coffey appeals from the sentence imposed on him following his
conviction for conspiracy to distribute and possess with intent to distribute more than
50 grams of cocaine base, a violation of 21 U.S.C. §§ 841(a)(1) and (b)(1) and 846.
We affirm.
I.
The district court1
found by a preponderance of the evidence that Coffey was
responsible for 2.7 kilograms of crack cocaine. This finding increased Coffey’s
offense level from 32 (with a sentencing range of 168-210 months) to 38 (with a
sentencing range of 324-405 months). The district court sentenced him to 324
months’ imprisonment, a five-year term of supervised release, and a $100 special
assessment.2
We affirmed Coffey’s conviction but remanded for resentencing after
concluding that his objection at sentencing to the sufficiency of the government’s
evidence of drug quantity was sufficient to preserve a constitutional claim that his
sentence violated United States v. Booker, 125 S. Ct. 738 (2005). See United States
v. Coffey, 395 F.3d 856 (8th Cir. 2005). Thereafter, our court granted the
government’s petition for rehearing en banc and vacated the opinion and judgment.
Appellate Case: 04-2247 Page: 2 Date Filed: 07/25/2005 Entry ID: 1932039
3
Pirani makes clear that Coffey’s objection to the sufficiency of the evidence
was insufficient to preserve a Booker claim. See Pirani, 406 F.3d at 550.
-3-
The en banc court has now remanded Coffey’s appeal to this panel for plain error
review of his sentencing challenge in the light of United States v. Pirani, 406 F.3d
543 (8th Cir. 2005) (en banc).3
II.
We conduct plain error review under the four-part test of United States v.
Olano, 507 U.S. 725 (1993). Pursuant to that test, before we can correct an error not
raised at trial, “there must be (1) error, (2) that is plain, and (3) that affects substantial
rights. Johnson v. United States, 520 U.S. 461, 466-67 (1997). If all three conditions
are met, we may remedy the error only if it “seriously affects the fairness, integrity,
or public reputation of judicial proceedings.” Id.
The district court’s enhancement based on drug quantity was erroneous in light
of Booker because it was imposed on the basis of judge-found facts in a mandatory
guidelines regime. In these circumstances, the first two Olano factors are satisfied.
See Pirani, 406 F.3d at 550. Whether the error affected Coffey’s substantial rights is
another matter. To satisfy this factor, “the defendant must show a ‘reasonable
probability,’ based on the appellate record as a whole, that but for the error he would
have received a more favorable sentence.” Id. at 552. Although the district court
sentenced Coffey at the low end of the sentencing range, that is “the norm for many
judges” and “is insufficient, without more, to demonstrate a reasonable probability
that the court would have imposed a lesser sentence absent the Booker error.” Id. at
553. Coffey argues in his supplemental brief that his personal circumstances (which
he contends include parenthood, engagement, and efforts toward rehabilitation)
suggest that the district court would have imposed a lesser sentence. This argument
is unavailing, particularly given the absence of any discussion of Coffey’s personal
Appellate Case: 04-2247 Page: 3 Date Filed: 07/25/2005 Entry ID: 1932039
4
United States v. Booker, 125 S. Ct. 738 (2005).
-4-
circumstances by the district court. Accordingly, we conclude that Coffey has not
demonstrated prejudicial plain error.
The judgment of conviction is reinstated and the sentence is affirmed.
HEANEY, Circuit Judge, concurring.
I recognize we are bound by our circuit’s en banc decision in United States v.
Pirani, 406 F.3d 543 (8th Cir. 2005), and therefore concur in the majority’s opinion.
I write separately to underscore my view, as stated in my dissent in Pirani, that
Coffey’s sentencing objection was sufficient to preserve his Sixth Amendment
sentencing challenge. See Pirani, 406 F.3d at 555-62.
The Pirani majority opined that only specific objections, those in which the
defendant explicitly mentions either the Sixth Amendment, Apprendi v. New Jersey,
530 U.S. 466 (2000), or Blakely v. Washington, 542 U.S. 296 (2004), preserve a
Booker4
claim for appellate review. Pirani, 406 F.3d at 549. Obviously, Coffey could
not have objected on the basis of Blakely; that decision was not issued at the time of
his sentencing. Thus, as I understand the Pirani majority, Coffey could only save his
Booker issue for appeal by asserting that the district court could not increase his
guidelines sentence due to drug quantities not proven to a jury beyond a reasonable
doubt, because Apprendi and/or the Sixth Amendment prohibited such action. But
soon after Apprendi was issued, our circuit was quick to “squarely reject[]” the view
that Apprendi rendered guideline enhancements based on judge-found facts
unconstitutional. United States v. Alvarez, 320 F.3d 765, 766-67 (8th Cir. 2002)
(citing United States v. Diaz, 296 F.3d 680 (8th Cir. 2002) (en banc)).
Appellate Case: 04-2247 Page: 4 Date Filed: 07/25/2005 Entry ID: 1932039
-5-
In this case, Coffey objected to the district court increasing his mandatory
guidelines sentence on the basis of the evidence before it, asserting that it was
insufficient to establish any drug quantity. This is precisely what Justice Stevens’s
majority opinion in Booker found to be problematic with the guidelines: that it was
a system of mandatory sentencing in which a defendant’s sentence increased based
on evidence never proven to a constitutionally acceptable standard of proof. Booker,
125 S. Ct. at 756. Still, according to the Pirani majority and the en banc court which
returned Coffey’s case for plain error review, this type of objection is not enough.
So Coffey challenged his mandatory guidelines sentence in district court for
essentially the same reason that the Booker court found the guidelines
unconstitutional, yet that objection was not specific enough to preserve his Booker
claim. Instead, the Pirani majority required Coffey to either cite a case–Blakely–that
was not yet law, or rely on Apprendi or the Sixth Amendment, which had been held
by our court en banc to have no application to the guidelines. Where could such an
absurd result stand? Justice Scalia might reply, “Only in Wonderland.” Booker, 125
S. Ct. at 793 (Scalia, J., dissenting).
Coffey did everything reasonably necessary to preserve his Sixth Amendment
sentencing claim for our review. If not for our court’s decision in Pirani, I would
adhere to our initial panel determination on this issue and allow the district court the
opportunity to resentence Coffey under a constitutional sentencing regime.
_____________________________
Appellate Case: 04-2247 Page: 5 Date Filed: 07/25/2005 Entry ID: 1932039 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_15-cv-00084/USCOURTS-caed-2_15-cv-00084-0/pdf.json | [
[
"Brenda Pickern",
"Plaintiff"
],
[
"Safeway #1954",
"Defendant"
],
[
"Safeway, Inc.",
"Defendant"
]
] | Joint Stipulation for Dismissal and Pickern v. Safeway, Inc.
Order Thereon Case No. 2:15-cv-00084-JAM-EFB
Page 1
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THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
Brenda Pickern,
Plaintiff,
vs.
Safeway, Inc. dba Safeway #1954,
Defendant.
______________________________/
Case No. 2:15-cv-00084-JAM-EFB
Joint Stipulation for Dismissal and
Order Thereon
Stephanie L. Ross, SBN 297840
DISABLED ADVOCACY GROUP, APLC
12 Williamsburg Lane
Chico, CA 95926
Telephone: (530) 895-3252
Facsimile: (530) 894-8244
Email: [email protected]
Attorney for Plaintiff
Stephen Q. Rowell, SBN 098228
E-mail: [email protected]
Theodore K. Bell #184289
E-mail: [email protected]
SAFEWAY INC.
5918 Stoneridge Mall Road
Pleasanton, CA 94588-3229
Telephone: (925) 467-3936
Facsimile: (925) 467-3214
Attorneys for Defendant Safeway, Inc.
Case 2:15-cv-00084-JAM-EFB Document 9 Filed 04/08/15 Page 1 of 2
Joint Stipulation for Dismissal and Pickern v. Safeway, Inc.
Order Thereon Case No. 2:15-cv-00084-JAM-EFB
Page 2
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TO THE COURT AND ALL PARTIES:
Plaintiff Brenda Pickern and defendant Safeway, Inc. dba Safeway #1954
stipulate to and jointly request that this Court enter a dismissal with prejudice of
plaintiff’s complaint in the above-entitled action in its entirety pursuant to Fed. R. Civ.
P. 41(a)(2).
Dated: April 7, 2015 DISABLED ADVOCACY GROUP, APLC
/s/ Stephanie L. Ross
Stephanie L. Ross
Attorney for Plaintiff Brenda Pickern
Dated: April 7, 2015 SAFEWAY INC.
/s/ Stephen Q. Rowell
Stephen Q. Rowell
Attorney for Defendant Safeway, Inc.
ORDER
IT IS HEREBY ORDERED that the complaint of plaintiff, USDC Case No.
2:15-cv-00084-JAM-EFB, is dismissed with prejudice in its entirety.
Dated: 4/7/2015
/s/ John A. Mendez____________
United States District Court Judge
Case 2:15-cv-00084-JAM-EFB Document 9 Filed 04/08/15 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca9-13-30199/USCOURTS-ca9-13-30199-0/pdf.json | [
[
"Santiago Contreras Orozco",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SANTIAGO CONTRERAS OROZCO,
Defendant-Appellant.
No. 13-30199
D.C. No.
2:11-cr-00150-
FVS-1
OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, Senior District Judge, Presiding
Argued and Submitted
June 5, 2014—Seattle, Washington
Filed August 13, 2014
Before: Alfred T. Goodwin, M. Margaret McKeown,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Goodwin
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2 UNITED STATES V. OROZCO
SUMMARY*
Criminal Law
Affirmingconvictionsformanufacturingmarijuana plants
and carrying a firearm during a drug trafficking crime, the
panel held that the district court did not abuse its discretion in
denying the defendant’s motion for a mistrial on the basis of
a government witness’s testimony, nor in refusing to reopen
the evidence to allow the defendant to testify.
The panel held that the district court did not abuse its
discretion in denying a mistrial and a new trial on the basis of
testimony that the defendant was advised of “his right to a
consulate.” The panel concluded that this single reference did
not convey anything about the defendant’s legal status in the
United States because all foreign nationals are entitled to
consular notification.
The panel held that the district court did not abuse its
discretion in refusing to reopen the evidence to allow the
defendant to testify. Joining other circuits, the panel held that
a defendant must generally invoke the right to testify before
the close of evidence. The panel held that the following
factors are considered to determine whether a district court
abused its discretion in denying a motion to reopen to allow
a defendant to testify: (1) the timeliness of the defendant’s
motion, (2) the character of the proposed testimony, (3) the
disruptive effect of granting the motion, and (4) whether the
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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UNITED STATES V. OROZCO 3
defendant offered a reasonable excuse for his or her untimely
request to testify.
COUNSEL
Dan B. Johnson (argued), Spokane, Washington, for
Defendant-Appellant.
Earl A. Hicks (argued), Assistant United States Attorney,
Michael C. Ormsby, United States Attorney, Spokane,
Washington, for Plaintiff-Appellee.
OPINION
GOODWIN, Circuit Judge:
Santiago Contreras Orozco was convicted of
manufacturing 1,000 or more marijuana plants, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(A)(vii), and 18 U.S.C. § 2, and
carrying a firearm during a drug trafficking crime, in
violation of 23 U.S.C. § 541(a)(1) and 18 U.S.C.
§ 924(c)(1)(A)(i). Orozco appeals his convictions,
challenging two rulings made by the district court. First, he
assigns error to the district court’s denial of his motion for a
mistrial because a government witness testified that Orozco
was advised of “his right to a consulate.” Orozco, a citizen of
Mexico, argues that the consulate reference was “highly
prejudicial” because it amounted to a disclosure that he was
illegally in the United States. Second, Orozco claims that his
constitutional rights were violated when the district court
refused to reopen the evidence to allow him to testify—a
request Orozco made during the closing-argument phase of
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4 UNITED STATES V. OROZCO
trial. Because Orozco fails to establish that either of the
district court’s decisions was an abuse of discretion, we
affirm the judgment.
I
In late 2010, an elk hunter reported to the United States
Forest Service a potential marijuana grow in the Wenaha
Tucannon Wilderness in Eastern Washington. Delayed by
weather conditions, Forest Service agents investigated the
area in July 2011 and arrested Orozco, who was armed with
a loaded .380 caliber weapon. A search of the surrounding
area revealed marijuana plants and evidence linking Orozco
to the grow operation, including, two .380 caliber
ammunition clips, and a cell phone containing pictures of
marijuana plants and a phone call history showing that the
cell phone had been used to call members of Orozco’s family.
Orozco was charged, and the case proceeded to trial. A
number of government witnesses testified, including Joseph
Helm, Chief Deputyof the Columbia CountySheriff’s Office,
who testified about transferring Orozco from the marijuana
grow to the Columbia County Jail. Helm testified that he
spoke fluent Spanish, that he asked Orozco whether he spoke
English, and that after being informed that Orozco spoke only
Spanish, he read Orozco his Miranda rights in Spanish. After
a series of questions and answers describing the constitutional
guarantees provided by Miranda, Helm testified as follows:
I, with the assistance of Fish and Wildlife
Officer Ryan John, we took [Orozco] out of
the restraints that were currently on him, pat
searched him, put him in the restraints from
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UNITED STATES V. OROZCO 5
. . . my department . . . for transport and I also
advised him of a right to a consulate.
After a brief sidebar, Orozco’s trial counsel moved for a
mistrial, arguing that the deputy’s testimony amounted to a
“disclosure that [Orozco] has illegal status.” The district
court disagreed. Denying the motion, the court reasoned:
I’m mindful that [consular notification] is
something that is done for people who speak
Spanish and in some occasions for, there’s an
indication there’s someone unlawfully in the
country. But just using the words, “also
advised him of a right to a consulate” doesn’t
mean much. It doesn’t carry much in the way
of information to, frankly, the average juror
and average person. . . .
* * *
It’s a very small comment made in the
testimony. I’m not persuaded that it creates
prejudice that would require a mistrial. I
think that the defendant will continue to have
a fair trial.
Although neither party requested a curative instruction, the
court concluded that “the best remedy is no comment,” since
instructing the jury would be prejudicial to Orozco by
bringing the jurors’ attention to something they probably did
not understand.
The trial continued, and the government concluded its
case-in-chief. Defense counsel requested a short recess to
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6 UNITED STATES V. OROZCO
meet with Orozco, and after doing so, informed the court that
Orozco had decided to exercise his right to remain silent and
would not testify. The defense then rested its case without
calling any witnesses. The parties finalized jury instructions,
and the government presented its closing argument to the
jury. Outside the presence of the jury, Orozco’s counsel
informed the court that “after hearing [the government’s]
closing, [Orozco] tells me he’s changed his mind” about
testifying. The district court denied Orozco’s request to
testify, reasoning that the jury had been instructed that trials
move in stages, and despite Orozco being given a fair chance
to testify during the evidence-gathering phase of trial, he had
chosen not to do so.
The jury found Orozco guilty on both counts. Orozco
filed a timely motion for a new trial based, in part, on the
allegation that Helm’s consulate reference deprived him of a
fair trial. The court denied the motion. After finding that
Orozco was not competent for sentencing under 18 U.S.C.
§ 4244(d),1entered a provisional sentence of life in prison
and remanded Orozco to the custody of the Attorney General
for treatment in a suitable facility. Orozco appeals.
II
Orozco argues that the district court erred by denying his
motion for a mistrial and his motion for a new trial under
Federal Rule of Criminal Procedure 33 because Helm’s
reference to consular notification informed the jury that
1 At sentencing, the government stipulated that Orozco was not
competent for sentencing. Nothing in the record indicates that Orozco
was not competent to stand trial. When asked during oral argument,
Orozco’s appellate counsel conceded this point.
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UNITED STATES V. OROZCO 7
Orozco was illegally in the United States. We affirm because
the district court did not abuse its discretion in denying the
motions. See United States v. Allen, 341 F.3d 870, 891 (9th
Cir. 2003) (mistrial); United States v. Sarno, 73 F.3d 1470,
1507 (9th Cir. 1995) (motion for new trial).
Contrary to Orozco’s contention, the deputy’s single
reference to a consulate did not convey anything about
Orozco’s legal status. It is unlikely that any juror divined
meaning from the brief reference to the right to a consulate.
In any event, because all foreign nationals, regardless of their
legal status, are entitled to consular notification, the
testimony conveyed only that Orozco was a citizen of another
country. See Vienna Convention on Consular Relations, art.
36, April 24, 1963, [1970], 21 U.S.T. 77, T.I.A.S. No. 6820;
see also 28 C.F.R. § 50.5. Moreover, we agree with the
district court that the testimony was a solitary,
inconsequential comment made during Helm’s testimony.
Under the circumstances, the district court was well within its
broad discretion when it determined that Orozco had failed to
establish that a mistrial was warranted. See Renico v. Lett,
559 U.S. 766, 774 (2010) (noting that the “decision to declare
a mistrial is left to the sound discretion of the judge, but the
power ought to be used with the greatest caution, under
urgent circumstances, and for very plain and obvious causes.”
(citations and internal quotation marks omitted)).
In the summary of argument, Orozco “contends that he
did not receive a fair trial due to the introduction into
evidence of the issue of his illegal status in the United States,
and the lack of a curative instruction.” He does not further
discuss the failure to give a curative instruction, nor did he
request such an instruction at trial. Although we have no
obligation to address the failure to give a sua sponte curative
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8 UNITED STATES V. OROZCO
instruction, the argument is without merit in any event. See
Retlaw Broad. Co. v. N.L.R.B., 53 F.3d 1002, 1005 (9th Cir.
1995) (declining to address an argument “summarily
mentioned in [the] opening brief”). Helm’s fleeting reference
to the right to a consulate was essentially meaningless.
Because a cautionary instruction would have needlessly
brought the jurors’ attention to Helm’s irrelevant testimony,
it was not an abuse of discretion for the district court to
continue the trial and forgo instructing the jury to disregard
the consulate reference. See United States v. McCown,
711 F.2d 1441, 1454 (9th Cir. 1983).
We likewise reject the argument that Helm’s testimony
regarding the right to a consulate was undisclosed 404(b)
evidence because the testimony did not reveal anything, let
alone the defendant’s status as illegally present in the United
States. The testimony was therefore not “[e]vidence of a
crime, wrong, or other act.” See Fed. R. Evid. 404(b).
III
Orozco next argues that his constitutional rights were
violated when the district court refused to reopen the
evidence to allow him to testify. We review de novo a
defendant’s claim that he was deprived of his constitutional
right to testify, however, we review for an abuse of discretion
a district court’s decision not to reopen evidence to permit a
defendant to testify. See United States v. Pino-Noriega,
189 F.3d 1089, 1094 (9th Cir. 1999). At oral argument,
counsel for Orozco urged us to adopt a broad categorical rule
that would permit a defendant to invoke his or her
constitutional right to testify at any time before the case is
turned over to the jury for deliberations. We decline the
invitation. Instead, we join our sister circuits in holding that
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UNITED STATES V. OROZCO 9
a defendant must generally invoke the right to testify before
the close of evidence and we consider the following factors
(the “Walker factors”) to determine whether a district court
abused its discretion in denying a motion to reopen to allow
a defendant to testify: (1) the timeliness of the defendant’s
motion, (2) the character of the proposed testimony, (3) the
disruptive effect of granting the motion, and (4) whether the
defendant offered a reasonable excuse for his or her untimely
request to testify. See United States v. Byrd, 403 F.3d 1278,
1284, 1287 (11th Cir. 2005) (citing United States v. Walker,
772 F.2d 1172, 1177 (5th Cir. 1985)); United States v.
Peterson, 233 F.3d 101, 106 (1st Cir. 2000).
“The right of an accused to testify in his own defense is
well established, and is a ‘constitutional right of fundamental
dimension.’” Pino-Noriega, 189 F.3d at 1094 (quoting
United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993)).
The right to testify, however, does not include an option to
listen to the prosecution’s final argument and then engage in
a rebuttal argument. See Rock v. Arkansas, 483 U.S. 44, 55
(1987) (noting that the right to testify must, at times, “bow to
accommodate other legitimate interests in the criminal trial
process”) (quoting Chambers v. Mississippi, 410 U.S. 284,
295 (1987)); Pino-Noriega, 189 F.3d at 1095–96 (holding
that a defendant waives his right by failing “to assert his right
to testify before he discovers that the jury has returned a
guilty verdict”); Neuman v. Rivers, 125 F.3d 315, 318–19
(6th Cir. 1997) (holding that a defendant was not deprived of
his right to testify, but instead waived the right by waiting to
make the request to testify until just before jury instructions).
Indeed, procedural and evidentiary rules controlling the
presentation of evidence “do not offend the defendant’s right
to testify” unless such rules are “arbitrary or disproportionate
to the purposes they are designed to serve.” See Rock,
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10 UNITED STATES V. OROZCO
483 U.S. at 55 & n.11, 56; see also Chambers, 410 U.S. at
302 (“In the exercise of this right, the accused, as is required
of the State, must comply with established rules of procedure
and evidence designed to assure both fairness and reliability
in the ascertainment of guilt and innocence.”).
Applying the Walker factors here, the district court did
not abuse its discretion by refusing to reopen the evidence to
allow Orozco’s testimony. First, Orozco’s motion to reopen
the evidence after the government’s closing argument was
clearly untimely, although not as untimely as the request
made in Pino-Noriega, 189 F.3d at 1095 (after the jury had
reached but not yet delivered its verdict). Second, as to the
character of his proposed testimony, the record is silent.
While a defendant’s first-hand account of the events leading
to his accusation has some inherent value, see Peterson,
233 F.3d at 107, Orozco did not explain what he hoped to say
or how he planned to bolster his defense. Third, granting
Orozco’s untimely request to testifywould likely have caused
at least some disruption to the trial process, but we have no
way of evaluating the extent of that disruption because
Orozco made no record concerning the character of his
proposed testimony. Finally, and perhaps most significantly,
Orozco failed to offer any excuse for his late request to
testify, let alone a reasonable one. As we have previously
held, a district court “may refuse to permit an accused to
reopen his case, and present additional evidence, where there
is insufficient reason for the accused’s failure to offer
evidence at the proper time.” Kelm, 827 F.2d at 1323 (citing
United States v. Ramirez, 608 F.2d 1261, 1267 (9th Cir.
1979)).
A defendant seeking to testify after the close of proof is
best situated to make a record explaining the reasons
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UNITED STATES V. OROZCO 11
justifying the untimely request to testify and the character of
his or her proposed testimony. Doing so enables the
government to better assess whether it will seek to introduce
rebuttal evidence, and in turn, allows the district court to
better assess the potential disruption the proposed testimony
will create. Considering each of the Walker factors in light of
the record in this case, we cannot say the district court abused
its discretion.
AFFIRMED.
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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_15-cv-03398/USCOURTS-cand-3_15-cv-03398-1/pdf.json | [
[
"COSCO Container Lines Americas, Inc.",
"Defendant"
],
[
"COSCO Container Lines Co., Ltd.",
"Defendant"
],
[
"China Ocean Shipping Company Americas, Inc.",
"Defendant"
],
[
"Great American Insurance Company of New York",
"Plaintiff"
],
[
"Sea Trade Enterprises Canada, Inc.",
"Defendant"
],
[
"Sea Trade International, Inc.",
"Defendant"
],
[
"Sea Trade International, Inc. (Canada)",
"Defendant"
],
[
"Sea Trade International, Inc. (Shanghai)",
"Defendant"
]
] | 1
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JOSHUA E. KIRSCH (179110)
KONSTANTIN SAVRANSKY (267707)
GIBSON ROBB & LINDH LLP
201 Mission Street, Suite 2700
San Francisco, California 94105
Telephone: (415) 348-6000
Facsimile: (415) 348-6001
Email: [email protected]
[email protected]
Attorneys for Plaintiff
GREAT AMERICAN INSURANCE
COMPANY OF NEW YORK
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
GREAT AMERICAN INSURANCE
COMPANY OF NEW YORK, a
corporation;
Plaintiff,
v.
CHINA OCEAN SHIPPING COMPANY
AMERICAS, INC., a corporation; COSCO
CONTAINER LINES CO., LTD., an entity
of unknown form; COSCO CONTAINER
LINES AMERICAS, INC., a corporation;
SEA TRADE INTERNATIONAL, INC., a
foreign corporation; SEA TRADE
INTERNATIONAL, INC. (SHANGHAI),
an entity of unknown form; SEA TRADE
ENTERPRISES CANADA, INC.,an entity
of unknown form; and SEA TRADE
INTERNATIONAL, INC. (CANADA), an
entity of unknown form;
Defendants.
)
)
)
)
)
)
)
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)
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)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 3:15-CV-03398-MEJ
[PROPOSED] ORDER VACATING
INITIAL CASE MANAGEMENT
CONFERENCE
______________________________________
Date: October 29, 2015
Time: 10:00 a.m.
Dept.: Courtroom B, 15th Floor
450 Golden Gate Ave.
San Francisco, CA 94105
Judge: Hon. Maria-Elena James
/ / /
[PROPOSED] ORDER VACATING INITIAL CASE MANAGEMENT CONFERENCE
Case No.: 3:15-CV-03398-MEJ; Our File No. 5475.83
Case 3:15-cv-03398-MEJ Document 15 Filed 10/22/15 Page 1 of 2
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On October 22, 2015, Plaintiff GREAT AMERICAN INSURANCE COMPANY OF
NEW YORK filed a Notice of Settlement in Lieu of FRCP 26 Report and Request to Vacate
Initial Case Management Conference in the above-captioned matter. Having reviewed the Notice
of Settlement and Request to Vacate Initial Case Management Conference, the Court hereby
vacates the Initial Case Management Conference currently scheduled for October 29, 2015, at
10:00 a.m., in Courtroom B, 15th Floor, at the Phillip Burton Federal Building, 450 Golden Gate
Avenue, San Francisco, CA 94102.
IT IS SO ORDERED.
Dated: ____________________, 2015 ___________________________________
Judge Maria-Elena James
United States Magistrate Judge
[PROPOSED] ORDER VACATING INITIAL CASE MANAGEMENT CONFERENCE
Case No.: 3:15-CV-03398-MEJ; Our File No. 5475.83 - 2 -
October 22
Case 3:15-cv-03398-MEJ Document 15 Filed 10/22/15 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_07-cv-01029/USCOURTS-caed-2_07-cv-01029-0/pdf.json | [
[
"Eagle Advanced Systems Engineering, Inc.",
"Counter Defendant"
],
[
"Sentech Medical Systems, Inc.",
"Counter Claimant"
]
] | 1
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868963.1 1
STIPULATION AND [PROPOSED] ORDER
LAW OFFICES OF JOHN P. COSTELLO
JOHN P. COSTELLO (Bar No. 161511)
PAMELA W. BERTANI (Bar No. 182672)
331 J Street, Suite 200
Sacramento, CA 95814
Telephone: (916) 441-2234
Facsimile: (916) 441-4254
DOWNEY BRAND LLP
MICHAEL J. THOMAS (Bar No. 172326)
MEGHAN M. BAKER (Bar No. 243765)
555 Capitol Mall, Tenth Floor
Sacramento, CA 95814-4686
Telephone: (916) 444-1000
Facsimile: (916) 444-2100
Attorneys for Plaintiff
Eagle Advanced Systems Engineering, Inc.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
EAGLE ADVANCED SYSTEMS
ENGINEERING, INC., a California
Corporation,
Plaintiff,
v.
SENTECH MEDICAL SYSTEMS, INC., a
Florida Corporation; and DOES 1 through
10, inclusive,
Defendants.
___________________________________
SENTECH MEDICAL SYSMEMS, INC.,
a Florida Corporation,
Counterclaimant,
v.
EAGLE ADVANCED SYSTEMS
ENGINEERING, INC., a California
Corporation,
Counterdefendant.
Case No. 2:07-CV-01029-LKK-GGH
STIPULATION AND ORDER TO FILE
FIRST AMENDED COMPLAINT
Case 2:07-cv-01029-LKK -GGH Document 24 Filed 08/14/07 Page 1 of 3
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868963.1 2
STIPULATION AND [PROPOSED] ORDER
Plaintiff/Counter-Defendant EAGLE ADVANCED SYSTEMS ENGINEERING, INC.
(“EASE”) and Defendant/Counter-Claimant SENTECH MEDICAL SYSTEMS, INC.
(“SENTECH”) hereby agree and stipulate as follows:
Whereas, on May 29, 2007, EASE filed its initial Complaint in this matter. In that
Complaint Ease alleged, among other things, that the patents in suit were invalid under 35 USC §
112.
On June 22, 2007, SENTECH filed its Answer to Complaint and Counterclaims against
EASE denying the allegations in the initial Complaint, and alleging, among other things, that
EASE infringed the patents in suit.
In response to SENTECH's counterclaim, EASE filed an Answer denying the allegations
in SENTECH's Counterclaim, and asserted a Counterclaim against SENTECH, alleging that the
patents in suit were also invalid under 35 USC § 103.
In response, SENTECH has denied the allegations in EASE's Counterclaim, and has
asserted that EASE's Counterclaim is improper in that the allegation that the patents in suit are
invalid under 35 USC § 103 should have been asserted in EASE's initial complaint.
Whereas the parties disagree as to the appropriateness of EASE's Counterclaim, and the
parties wish to resolve that disagreement and to simplify the number of pleadings in this action by
allowing EASE to amend its initial Complaint to include EASE's allegation that the patents in suit
are invalid under 35 USC § 103, so as to consolidate EASE's invalidity claims in a single
pleading.
Whereas, discovery has not yet commenced, and no scheduling order has been entered as
of the date of this Stipulation, the parties agree and stipulate that:
1. EASE should be allowed leave of Court to file its Amended Complaint, a copy of
which is attached hereto as Exhibit A;
2. The Amended Complaint will be deemed filed and served as of the date the Court
signs this stipulation; and,
3. The Answer filed by SENTECH to the initial Complaint may serve as its Answer
to the First Amended Complaint, thereby requiring no further response from SENTECH.;
Case 2:07-cv-01029-LKK -GGH Document 24 Filed 08/14/07 Page 2 of 3
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868963.1 3
STIPULATION AND [PROPOSED] ORDER
4. Upon filing the Amended Complaint, EASE's Counterclaim (but not its Answer to
SENTECH's Counterclaim) shall be dismissed without prejudice.
5. In so stipulating, SENTECH does not admit the truth of any of the allegations set
forth in the Amended Complaint.
DATED: August 9, 2007 DOWNEY BRAND LLP
By:________/s/Michael J. Thomas_______________ MICHAEL J. THOMAS
Attorney for Plaintiff/Counterdefendant
Eagle Advanced Systems Engineering, Inc.
DATED: August 9, 2007 WEINTRAUB GENSHLEA CHEDIAK
By:________/s/Dale C. Campbell_________________
DALE C. CAMPBELL
Attorney for Defendant/Counterclaimant
Sentech Medical Systems, Inc.
PURSUANT TO THE STIPULATION, IT IS SO ORDERED.
DATED: August 14, 2007
Case 2:07-cv-01029-LKK -GGH Document 24 Filed 08/14/07 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca8-09-01916/USCOURTS-ca8-09-01916-0/pdf.json | [
[
"Todd Dewaine Freier",
"Appellee"
],
[
"R&R Ready Mix",
"Appellant"
]
] | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-1916
___________
In re: Todd Dewaine Freier, *
*
Debtor. *
__________________ * Appeal from the United States
* Bankruptcy Appellate Panel
R&R Ready Mix, * for the Eighth Circuit.
*
Appellant, *
*
v. *
*
Todd Dewaine Freier, *
*
Appellee. *
___________
Submitted: February 10, 2010
Filed: May 10, 2010
___________
Before WOLLMAN, HANSEN, and MELLOY, Circuit Judges.
___________
MELLOY, Circuit Judge.
R&R Ready Mix, Inc. ("R&R") brought this adversary action against debtor
Todd Dewaine Freier to obtain a determination that Freier is personally liable for a
state-court money judgment rendered in favor of R&R and against T.F. Concrete, Inc.
Appellate Case: 09-1916 Page: 1 Date Filed: 05/10/2010 Entry ID: 3662847
1
The Honorable Dennis D. O'Brien, United States Bankruptcy Judge for the
District of Minnesota.
-2-
("T.F."), a corporation wholly owned by Freier. The bankruptcy court1 pierced T.F.'s
corporate veil and held that Freier's debt to R&R was a non-dischargeable debt under
11 U.S.C. §§ 523(a)(2)(A), 523(a)(2)(B), and 523(a)(4). The Bankruptcy Appellate
Panel ("BAP") reversed, holding that the bankruptcy court's findings with regard to
the non-dischargeability of Freier's debt were clearly erroneous. Exercising
jurisdiction pursuant to 28 U.S.C. § 158(d), we reverse the judgment of the BAP.
I.
Freier was the sole shareholder, officer, and director of T.F., a Minnesota
corporation. T.F. was a contracting company that performed concrete work, masonry,
and construction of residential building foundations. Freier was the only T.F.
employee, and he operated the business on a part-time basis. He prepared all bids for
work performed by T.F., and his bids regularly included the cost of materials and a
100 percent mark-up for his labor and profit. T.F. collected nearly all of its payments
due and had no accounts receivable.
R&R supplied T.F. with concrete and related services on a credit basis in
exchange for T.F.'s promise to pay for all materials and services provided by R&R.
Despite receiving payment from its customers, T.F. failed to pay R&R for a
substantial amount of materials and services. By November 2004, T.F. owed R&R
approximately $160,000. R&R notified Freier that it would stop extending credit to
T.F. and would pursue collection on T.F.'s account. Freier responded that T.F. would
declare bankruptcy if R&R would not allow T.F. to purchase on credit. In late
December 2004, Freier promised R&R's president, David Luedeke, that T.F. would
pay the outstanding debt. R&R agreed to a reduced payment schedule for the winter
months. Nonetheless, T.F. immediately failed to make a payment.
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-3-
In February 2005, R&R commenced legal action against T.F. in state court
seeking judgment for the unpaid materials and services. Freier contacted Luedeke to
resolve the legal action and outstanding debt and to ask R&R to continue supplying
materials to T.F. on credit. As part of the ensuing settlement negotiations, Freier said
that he had the financial ability to pay $500 per month for February and March and
$5000 or $6000 for the months thereafter. Freier also provided R&R with a
"Corporate Financial Statement" for T.F. It is undisputed that the Corporate Financial
Statement was inaccurate, as it did not include the debt owed to R&R and at least
$20,000 in debts T.F. owed to other creditors.
Also during the discussions in December 2004 and February/March 2005,
according to R&R, Freier stated that he was not taking any funds from T.F.'s accounts
for himself personally. Freier assured Luebeke that he was putting the company first
and paying off T.F.'s debts before paying himself. Freier does not recall making such
representations.
R&R and T.F. executed a settlement agreement on March 31, 2005. They
acknowledged that T.F. owed $159,961.07 with interest and finance charges accruing
from and after January 31, 2005. The settlement agreement obligated T.F. to pay
$1,000 upon execution and established a monthly payment schedule from April 2005
through December 2006. If T.F. failed to make the required payments, R&R was
entitled to default judgment. In exchange, R&R abandoned its collection efforts and
agreed to continue supplying materials to T.F. on an ongoing credit basis provided
T.F. was not in default under the terms of the settlement agreement.
In 2005, T.F. paid R&R $25,500, which included $9,078.10 toward debt
reduction and $16,421.90 toward new purchases. However, in August 2005, T.F.
failed to make a monthly payment of $7,000 as per the settlement agreement. R&R
sent T.F. a notice of default, which identified T.F.'s failure to make the monthly
payment and also identified T.F.'s failure to pay $30,135.27 for materials supplied
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-4-
during summer 2005. Thus, less than five months after signing the settlement
agreement, T.F. defaulted and increased its overall debt owed to R&R.
Contrary to his alleged representation to Luedeke, Freier admitted at trial that
he used corporate assets for his personal benefit throughout 2005. In January 2005,
one week after representing he was taking no money from the corporation, Freier
purchased a Yamaha snowmobile by charging $3,774.94 to T.F.'s credit card accounts.
Freier also used corporate money to pay for a portion of the cost of constructing a
large detached garage/building at his residential property. Between March 31, 2005
and September 16, 2005, Freier paid himself $27,250 cash from T.F.'s accounts. He
also used corporate assets to pay personal expenditures such as his personal credit
card, personal phone, cell phone plans for his family, personal travel expenses,
personal dining, insurance premiums for personal assets, and other in-kind income that
totaled several thousand dollars. On September 20, 2005, Freier caused T.F. to
purchase a new 2006 Chevrolet Pickup for $40,000, even though T.F. already owned
a 2004 Chevrolet Pickup and Freier was the sole employee of T.F. Freier used the
2006 pickup for personal use even though T.F. paid for all of the financing payments,
insurance, gas, and maintenance for the vehicle. In total, Freier withdrew at least
$70,000 from T.F. for his personal use in 2005.
Default judgment was entered against T.F. on September 8, 2005, in the amount
of $150,882.97. R&R was unsuccessful in collecting the judgment through
garnishment and renegotiation of the debt, despite the fact that Freier deposited
$228,605 into T.F.'s checking accounts in 2006. In July 2006, Freier shut down
operation of T.F. because no one was willing to supply T.F. materials on credit and
because T.F. could not pay for materials in advance. He formed a new corporation
under the name Concrete Productions, Inc. Freier was also the sole owner, officer,
and employee of the new corporation, which performed the exact same work and
services as T.F. Freier did not contribute any consideration or capital to Concrete
Productions, but he conducted business using all of the tools, machinery, equipment,
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-5-
and assets belonging to T.F. without payment or consideration to T.F. Freier opened
separate bank accounts in the name of Concrete Productions, and he deposited all
income from the concrete construction business after approximately September 15,
2006, into the Concrete Productions accounts.
R&R ultimately sued T.F., Freier, and Concrete Productions in state court
requesting that the court pierce the corporate veils of T.F. and Concrete Productions.
R&R alleged both companies were Freier's alter egos and T.F. was a facade through
which Freier obtained personal benefits. Freier then filed for bankruptcy relief under
Chapter 7.
R&R filed a complaint in the bankruptcy court requesting a judgment of nondischargeability as to Freier's debt to R&R in the amount of $150,882.97. On August
25, 2008, after a trial on the merits, the bankruptcy court held that piercing T.F.'s
corporate veil was appropriate because Freier operated T.F. in a fraudulent manner,
and therefore T.F.'s debt to R&R was also the personal debt of Freier. Further, the
bankruptcy court held the debt owed to R&R non-dischargeable under 11 U.S.C. §§
523(a)(2)(A) (false representation or actual fraud), 523(a)(2)(B) (materially false
financial statement), and 523(a)(4) (fraud while acting in a fiduciary capacity).
Accordingly, the court ordered that the debt was not discharged in Freier's bankruptcy,
but remains his personal liability, subject to collection pursuant to state law.
On March 20, 2009, the BAP reversed. It held that the bankruptcy court's
factual findings under the subsections of § 523(a)(2) were clearly erroneous and that
the bankruptcy court erred as a matter of law in finding a fiduciary relationship
between R&R and Freier/T.F. under § 523(a)(4) . R&R appealed the BAP's decision.
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II.
We apply the same standard of review as the BAP regarding R&R's claim under
11 U.S.C. § 523(a)(2)(A). In re Vote, 276 F.3d 1024, 1026 (8th Cir. 2002). Whether
a requisite element of a claim under § 523(a)(2)(A) has been satisfied is a factual
determination, which we review for clear error. See First Nat'l Bank v. Pontow, 111
F.3d 604, 609 (8th Cir. 1997). A finding is clearly erroneous if, after reviewing the
entire evidence, we are "left with the definite and firm conviction that a mistake has
been committed." Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (quotation
omitted).
"Section 523(a)(2)(A) of the Bankruptcy Code prevents persons from
committing actual fraud and then wiping away their resulting debt." In re Miller, 276
F.3d 424, 429 (8th Cir. 2002). To obtain a determination that debt is nondischargeable under 11 U.S.C. § 523(a)(2)(A), a creditor must prove the following
elements by a preponderance of the evidence:
1. The debtor made a representation.
2. The debtor knew the representation was false at the time it was
made.
3. The representation was deliberately made for the purpose of
deceiving the creditor.
4. The creditor justifiably relied on the representation.
5. The creditor sustained the alleged loss as the proximate result of
the representation having been made.
Burt v. Maurer (In re Mauer), 256 B.R. 495, 500 (B.A.P. 8th Cir. 2000); see also In
re Ophaug, 827 F.2d 340, 343 (8th Cir. 1987), as modified by Field v. Mans, 516 U.S.
59, 74–75 (1995) (requiring justifiable reliance).
Having heard testimony from Freier and Luedeke, the bankruptcy court
concluded that Freier's assurance to R&R during negotiations "that he was taking no
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2
We note that the elements of fraud under § 523(a)(2)(A) are determined by
reference to "the dominant consensus of common-law jurisdictions, rather than the law
of any particular State." Field, 516 U.S. at 70 n.9; see also In re Dallam, 850 F.2d
446, 449 (8th Cir. 1988) (Section 523(a)(2)(A) “has been construed to incorporate the
elements of common law fraud . . . .”). The parties erroneously assume that
Minnesota law applies. Nonetheless, Minnesota law is consistent with the consensus
of common-law jurisdictions. See, e.g., 37 Am. Jur. 2d Fraud and Deceit § 90 ("The
prevailing rule followed by most of the courts is that fraud may be predicated on
promises made with a present intention not to perform them or, as the rule is
frequently expressed, on promises made without an intention of performance . . . .").
-7-
draws from T.F. Concrete was an intentional misrepresentation of a material fact made
to induce [R&R] to forebear collection efforts and to continue to supply [Freier] with
concrete product and services on credit." In re Freier, 392 B.R. 779, 786 (Bankr. D.
Minn. 2008). Freier challenges the bankruptcy court's holding in several ways.
First, Freier argues that his statements did not constitute actionable fraud
because they did not relate to a matter of present or past fact. We disagree. Based on
the trial testimony, the district court found that Freier misrepresented a present
fact—"Freier represented to Luedeke that he wasn't taking any funds from T.F.
Concrete for himself personally, reassuring the plaintiff that he was doing everything
he could to pay the outstanding debt." Id. at 783 (emphasis added). It was not clear
error for the bankruptcy court to interpret the trial testimony as relating to past or
present actions.
Even if the court should have construed the evidence as though Freier
represented his intent not to use corporate assets for his personal benefit in the future,
such a misrepresentation may still be actionable fraud. A material promise to perform
in the future "made with the intent to defraud and without the intent to perform . . .
constitutes actionable fraud." McDonald v. Johnson & Johnson, 722 F.2d 1370, 1379
(8th Cir. 1983) (applying Minnesota law); see also Vandeputte v. Soderholm, 216
N.W.2d 144, 147 (Minn. 1974).2
The evidence at trial showed that Freier used a
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-8-
substantial amount of corporate assets for his personal benefit throughout 2005,
including during the time period that he negotiated the settlement agreement with
R&R. Thus, the evidence supports a conclusion that Freier's representation was false
regardless of whether he spoke in the present or future tense.
Freier also argues that he intended to make payments to R&R, and thus his
promise to pay the debt was not false when it was made. The BAP agreed with Freier
on this point, emphasizing that Freier reduced his outstanding debt by thousands of
dollars by complying with the settlement agreement through July 2005. According
to the BAP, such payments are inconsistent with a finding that Freier had no intent to
pay the debt. However, R&R's claim under § 523(a)(2)(A) is not dependent on
Freier's representation that he intended to make payments. Instead, R&R's claim is
premised on Freier's false representation that he was paying off T.F.'s debts before he
was taking personal draws. The bankruptcy court found that Freier knew the
statement about drawing funds from T.F. was false, which, for the reasons stated
previously, was not clearly erroneous.
Freier also maintains that R&R did not justifiably rely on his representation
about not drawing funds. Justifiable reliance is an intermediate standard between
actual reliance and reasonable reliance. See Field, 516 U.S. at 70–73. Reliance can
be justifiable even though an investigation would have revealed the falsity of a
representation. Id. at 74–75. However, a creditor "cannot recover if he blindly relies
upon a misrepresentation the falsity of which would be patent to him if he had utilized
his opportunity to make a cursory examination or investigation." Id. at 71 (quoting
Restatement (Second) of Torts § 541 cmt. a (1976)).
The bankruptcy court found that R&R relied on Freier's representation about
not taking draws from T.F. by forgoing collection efforts, signing the settlement
agreement, and continuing to supply T.F. with materials and services on credit. R&R
knew that Freier's method for bidding jobs included at least a 100 percent mark-up
from the cost of materials. From those figures, R&R concluded that T.F. should have
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-9-
been able to pay for the materials used and make payments on the debt owed to R&R,
so long as Freier did not use corporate funds for personal use and did not take a profit.
Thus, the evidence supports the bankruptcy court's finding that R&R relied on Freier's
representation about taking draws.
Freier argues that reliance on his representation about putting the corporation
first was "patently absurd" because T.F. was nearly $160,000 in debt to R&R already.
Essentially, Freier argues T.F.'s debt was a warning sign that Freier was misusing
corporate assets, and R&R should not have trusted Freier's representations to the
contrary. This argument, however, is one for the trier of fact. Although the
bankruptcy court was permitted to accept Freier's argument, we decline to hold that
it was required to do so. As such, the bankruptcy court's finding was not clearly
erroneous. See Anderson, 470 U.S. at 574 ("Where there are two permissible views
of the evidence, the factfinder's choice between them cannot be clearly erroneous.").
We affirm the bankruptcy court's determination that Freier's debt was nondischargeable under 11 U.S.C. § 523(a)(2)(A). We also affirm the bankruptcy court's
decision to pierce T.F.'s corporate veil and to treat T.F.'s debt as Freier's personal debt.
See Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997) (test for piercing the
corporate veil). Accordingly, we need not reach the bankruptcy court's alternative
bases for holding Freier's debt non-dischargeable.
III.
For the foregoing reasons, we reverse the judgment of the Bankruptcy Appellate
Panel.
______________________________
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[
"Timothy Crayton",
"Plaintiff"
],
[
"Rochester Medical Corporation",
"Defendant"
]
] | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
TIMOTHY CRAYTON,
Plaintiff,
v.
ROCHESTER MEDICAL CORPORATION, a
Minnesota corporation; and JOHN
DOE DISTRIBUTOR,
Defendants.
)
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1:07-cv-1318 OWW GSA
ORDER RE: REQUEST FOR
AMENDMENT TO ORDER SETTING
MANDATORY SCHEDULING
CONFERENCE
Pursuant to Defendant, Rochester Medical Corporation’s,
February 19, 2008, Request for Amendment to Order Setting
Mandatory Scheduling Conference, and good cause appearing
therefore:
IT IS ORDERED that the filing of individual scheduling
reports, as opposed to a Joint Scheduling Report, may be made in
this case at the time when a Scheduling Conference is rescheduled.
The parties will take notice of the minute order on the
docket in this case that removes the Scheduling Conference
///
///
Case 1:07-cv-01318-OWW-GSA Document 29 Filed 02/26/08 Page 1 of 2
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previously set for March 14, 2008, due to the pending motion to
dismiss.
IT IS SO ORDERED.
Dated: February 25, 2008 /s/ Oliver W. Wanger
emm0d6 UNITED STATES DISTRICT JUDGE
Case 1:07-cv-01318-OWW-GSA Document 29 Filed 02/26/08 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_07-cv-04146/USCOURTS-cand-3_07-cv-04146-1/pdf.json | [
[
"Central Contra Costa Transit Authority",
"Defendant"
],
[
"Wanda Nicks",
"Plaintiff"
]
] | 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
WANDA NICKS,
Plaintiff,
v.
CENTRAL CONTRA COSTA TRANSIT
AUTHORITY,
Defendant. /
No. C 07-04146 CRB
ORDER
Proceeding pro se, Plaintiff Wanda Nicks filed this action against her employer, the
Central Costra County Transit Authority (“CCCTA”), alleging discrimination on the basis of
disability and gender, harassment, and breach of company policy. Plaintiff’s complaint in
this case is similar to the complaint she filed in a related case, Nicks v. Central Contra Costa
Transit Authority, No. C 07-01808, which this Court dismissed without prejudice on July 9,
2007 for failure to exhaust administrative remedies.
According to Nicks’ complaint in this case, Nicks filed charges with the Federal Equal
Opportunity Commission on or about June 2007. See Compl. at 3. Presumably, Nicks now
believes that she has adequately exhausted her administrative remedies and may proceed on
the merits of her claims.
Nonetheless, the defendant has moved to dismiss Nicks’ complaint on four grounds.
First, CCCTA argues that the complaint should be dismissed pursuant to Federal Rule of
Civil Procedure 12(b)(5) because service was insufficient. The plaintiff must execute proper
Case 3:07-cv-04146-CRB Document 48 Filed 12/07/07 Page 1 of 5
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For the Northern District of California
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service of the summons and complaint on the defendant within 120 days after the filing of the
complaint. See Fed. R. Civ. P. 4(m). Because the defendant is a local governmental entity,
service must be effectuated by delivering a copy of the summons and complaint to the
defendant’s chief executive officer or by serving the summons and complaint in the manner
prescribed by California law. See Fed. R. Civ. P. 4(j)(2). California law provides that a
summons may be served on a local governmental entity “by delivering a copy of the
summons and of the complaint to the clerk, secretary, president, presiding officer, or other
head of its governing body.” Cal. Code Civ. P. § 416.50.
The defendant argues that it received insufficient service when the United States
Marshal delivered the summons to a human resources assistant who was sitting at the
reception desk at CCCTA, rather than to CCCTA’s General Manager. However, the record
reflects that a summons was subsequently delivered to the Chair of CCCTA’s Board of
Directors. The defendant does not dispute that this subsequent service – executed within 120
days of the filing of plaintiff’s complaint – was proper under § 416.50.
Second, CCCTA moves to dismiss the complaint under Federal Rule of Civil
Procedure 12(b)(6) because the action is barred by the doctrine of res judicata and is
duplicative of Nicks’ prior complaint in 07-01808. Defendant’s res judicata argument is
misguided because this Court dismissed Nicks’ first action without prejudice. It is well
established that a dismissal without prejudice does not operate as adjudication upon the
merits, and thus does not have a res judicata effect. See Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384, 396 (1990).
Similarly, the doctrine of duplicative litigation holds little sway under the
circumstances. That doctrine is intended to conserve judicial resources where a plaintiff files
two actions involving the same parties and same claims. See Pacesetter Systems, Inc. v.
Medtronic, Inc., 678 F.2d 93, 95 (9th Cir. 1982). When two identical actions are filed in
courts of concurrent jurisdiction, “the court which first acquired jurisdiction should try the
lawsuit and no purpose would be served by proceeding with a second action.” Id. But here
there is no risk that judicial resources will be wasted by two simultaneous trials on identical
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actions. Based upon the advice of the clerk’s office, the plaintiff – proceeding pro se – has
elected to file a second complaint, opening a new case, rather than simply file an amended
complaint in the first-filed action. While perhaps unusual, filing a second complaint raises
no risk of duplicative trials unless and until the plaintiff also files an amended complaint in
the 07-01808 case. Accordingly, a dismissal pursuant to the duplicative litigation doctrine
would be inappropriate.
Third, CCCTA moves to dismiss plaintiff’s employment discrimination and
harassment claims as untimely under Title VII and the Americans with Disabilities Act
(“ADA”). In Title VII cases, an aggrieved employee has 180 days “after the alleged
unlawful employment practice occurred” to file a charge with the EEOC. 42 U.S.C. § 2000e5(e)(1). Charges brought under Title I of the ADA are subject to identical time requirements.
See 42 U.S.C. § 12117(a).
The defendant argues that dismissal is appropriate because the plaintiff has failed to
allege that any unlawful employment practices occurred within 180 days of June 2007, when
the plaintiff allegedly filed a complaint with the EEOC. See Compl. at 3. To be sure, the
plaintiff’s complaint appears to be based, in part, on an altercation that occurred on April 1,
2005. To the extent that plaintiff’s complaint is based on that event, her claims of
discrimination are untimely because that act of alleged discrimination occurred more than
180 days before June of 2007. See Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S.Ct.
2162, 2166-67 (2007) (holding that “if the employee does not submit a timely EEOC charge,
the employee may not challenge that practice in court”). However, the plaintiff also alleges
that the defendant’s discrimination continued into 2007. See Compl. at 2. To the extent that
the defendant committed new and discrete unlawful practices of discrimination and
retaliation, these “fresh violation[s]” re-triggered the EEOC charging period, and therefore
may be timely depending on precisely when the practices occurred. See Ledbetter, 127 S.Ct.
at 2169.
Unfortunately, the complaint is too vague and incoherent for the Court to determine
whether the plaintiff seeks relief for allegedly unlawful practices that occurred within the
Case 3:07-cv-04146-CRB Document 48 Filed 12/07/07 Page 3 of 5
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time period set forth in §§ 2000e-5 and 12117(a). In order to make this determination – and
in order for the defendant to be reasonably able to frame a responsive pleading – a more
definite statement is required. See Fed. R. Civ. P. 12(e). Because the plaintiff is proceeding
pro se, the Court will provide some guidance on the kind of information that should be
included in an amended complaint. In an amended complaint, the plaintiff must identify:
1. The precise date on which the plaintiff filed charges with the EEOC;
2. The discrete unlawful practices committed by the defendant that plaintiff
believes were discriminatory, harassing, and/or retaliatory;
3. The date on which those allegedly unlawful practices occurred;
4. The individuals or parties who committed those allegedly unlawful practices;
5. The disability that forms the basis of plaintiff’s claim of discrimination on the
basis of disability.
The defendant’s fourth argument is that dismissal is appropriate because the plaintiff
has not stated a cause of action upon which relief can be granted. See Fed. R. Civ. P.
12(b)(6). The Court is sympathetic to the defendant’s concern that the plaintiff’s complaint
does not, at this time, identify the allegedly discriminatory and harassing conduct that forms
the basis of her claims. However, in light of the fact that the plaintiff is proceeding pro se,
the most prudent course of action is to provide the plaintiff with an opportunity to amend her
complaint with a more definite statement. The defendant can then move to dismiss the
amended complaint, if it believes that the amended complaint does not satisfy the dictates of
Rule 12(b)(6).
///
Case 3:07-cv-04146-CRB Document 48 Filed 12/07/07 Page 4 of 5
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For the Northern District of California
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In sum, the defendant’s motion to dismiss is DENIED. The defendant’s motion to
strike is DENIED. The defendant’s motion for a more definite statement is GRANTED. The
plaintiff shall file an amended complaint setting forth the information identified in this order
by Friday, December 28, 2007.
IT IS SO ORDERED.
Dated: December 7, 2007
CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE
Case 3:07-cv-04146-CRB Document 48 Filed 12/07/07 Page 5 of 5 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_23-cv-01906/USCOURTS-caed-2_23-cv-01906-8/pdf.json | [
[
"BlendJet, Inc.",
"Defendant"
],
[
"Linda Gage",
"Plaintiff"
],
[
"Gregory Rittenhouse",
"Plaintiff"
]
] | 1
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STIPULATION AND ORDER TO EXTEND TIME
SMITH, GAMBRELL
&
RUSSELL, LLP
444 SOUTH FLOWER STREET, SUITE 1700
LOS ANGELES, CALIFORNIA 90071
TELEPHONE: 213-358-7200
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
WHEREAS, Plaintiff Gregory Rittenhouse, individually and on behalf of all others similarly
situated (the “Plaintiff”), filed his First Amended Class Action Complaint on (“FAC”) on July 22,
2024. See FAC (ECF 25);
ANNE K. EDWARDS (SBN 110424)
SMITH, GAMBRELL & RUSSELL, LLP
444 South Flower Street Suite 1700
Los Angeles, California 90071
Telephone: 213-358-7200
Facsimile: 213-358-7300
Email: [email protected]
Jeremy Richardson (admitted pro hac vice)
[email protected]
SMITH, GAMBRELL & RUSSELL, LLP
1301 Avenue of the Americas, 21st Floor
New York, NY 10019
Telephone: (212) 907-9700
Attorneys for Defendant,
BLENDJET, INC.
GREGORY RITTENHOUSE and LINDA GAGE,
individually and on behalf of all others similar
situated ,
Plaintiff,
vs.
BLENDJET, INC., and RYAN PAMPLIN,
Defendant.
Case No. 2:23-cv-01906-WBS-DB
STIPULATION AND ORDER TO
EXTEND TIME FOR DEFENDANT
BLENDJET, INC., TO SERVE AND
FILE ITS REPLY PAPERS IN
FURTHER SUPPORT OF ITS MOTION
TO DISMISS THE FIRST AMENDED
COMPLAINT
[LOCAL RULES 143 AND 144]
Opposition Served: September 9, 2024
Current Reply Date: September 19, 2024
Proposed New Reply Date: October 3,
2024
Case 2:23-cv-01906-WBS-SCR Document 39 Filed 09/18/24 Page 1 of 3
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STIPULATION AND ORDER TO EXTEND TIME
SMITH, GAMBRELL
&
RUSSELL, LLP
444 SOUTH FLOWER STREET, SUITE 1700
LOS ANGELES, CALIFORNIA 90071
TELEPHONE: 213-358-7200
WHEREAS, Defendant BlendJet, Inc. (“BlendJet”), filed its Motion to Dismiss the FAC on
August 5, 2024. See ECF 28;
WHEREAS, on August 13, 2024, Plaintiffs’ filed an ex parte Motion seeking an extension of
time to file their opposition to the Motion to Dismiss the FAC. See ECF 31;
WHEREAS, by order dated August 16, 2024, the Court granted Plaintiffs’ request for an
extension of time, and in its order stated “that defendant is free to request an extension of time for its
reply ....” See ECF 33 at p. 2
WHEREAS, absent an extension, BlendJet’s reply papers will be due September 19, 2024;
and
WHEREAS, counsel who is now principally handling the drafting of BlendJet’s reply papers
is ill;
WHEREAS, Defendant BlendJet has not previously requested an extension of time to serve
and file its reply papers in further support of the Motion to Dismiss the FAC;
IT IS HEREBY STIPULATED by and between Plaintiffs and Defendant BlendJet that
Defendant BlendJet’s time to serve and file its reply papers in further support of the Motion to
Dismiss the FAC be and hereby is extended up to and including October 3, 2024.
Case 2:23-cv-01906-WBS-SCR Document 39 Filed 09/18/24 Page 2 of 3
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STIPULATION AND ORDER TO EXTEND TIME
SMITH, GAMBRELL
&
RUSSELL, LLP
444 SOUTH FLOWER STREET, SUITE 1700
LOS ANGELES, CALIFORNIA 90071
TELEPHONE: 213-358-7200
By: /s/ Zachary Arbitman
Zachary Arbitman*
FELDMAN SHEPHERD WOHLGELERNTER
TANNER WEINSTOCK & DODIG, LLP
1845 Walnut Street, 21st Floor
Philadelphia, PA 19103
T: (215) 567-8300
F: (215) 567-8333
[email protected]
Simon Franzini (Cal. Bar No. 287631)
DOVEL & LUNER, LLP
201 Santa Monica Blvd., Suite 600
Santa Monica, California 90401
Telephone: (310) 656-7066
Facsimile: (310) 656-7069
[email protected]
[email protected]
Attorneys for Plaintiffs
*Admitted Pro Hac Vice
IT IS SO ORDERED.
Dated: September 18, 2024
DATED: September 17, 2024 SMITH, GAMBRELL & RUSSELL, LLP
By: /s/ Jeremy Richardson*
Anne K. Edwards
Jeremy Richardson
Attorneys for Defendant
BLENDJET, INC.
SGR/71595378.1
Case 2:23-cv-01906-WBS-SCR Document 39 Filed 09/18/24 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca13-19-01463/USCOURTS-ca13-19-01463-0/pdf.json | [
[
"Bishop Hill Energy LLC",
"Appellant"
],
[
"California Ridge Wind Energy LLC",
"Appellant"
],
[
"Invenergy Wind LLC",
"Appellant"
],
[
"United States",
"Appellee"
]
] | United States Court of Appeals
for the Federal Circuit ______________________
CALIFORNIA RIDGE WIND ENERGY LLC,
INVENERGY WIND LLC, BISHOP HILL ENERGY
LLC,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2019-1463, 2019-1465
______________________
Appeals from the United States Court of Federal
Claims in Nos. 1:14-cv-00250-RHH, 1:14-cv-00251-RHH,
Senior Judge Robert H. Hodges, Jr.
______________________
Decided: May 21, 2020
______________________
JOHN C. HAYES, JR., Nixon Peabody LLP, Washington,
DC, argued for plaintiffs-appellants. Also represented by
BRIAN P. DONNELLY.
CLINT CARPENTER, Tax Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by BRUCE R. ELLISEN, RICHARD E.
ZUCKERMAN.
______________________
Case: 19-1463 Document: 58 Page: 1 Filed: 05/21/2020
2 CALIFORNIA RIDGE WIND ENERGY v. UNITED STATES
Before PROST, Chief Judge, MAYER and TARANTO, Circuit
Judges.
TARANTO, Circuit Judge.
California Ridge Wind Energy LLC and Bishop Hill
Energy LLC each own a windfarm that was put into service
in 2012. Thereafter, each company applied for a cash grant
from the federal government, based on specified energyproject costs, under section 1603 of the American Recovery
and Reinvestment Tax Act of 2009, Pub. L. No. 111-5, 123
Stat. 306, 364. The United States Department of the
Treasury awarded California Ridge and Bishop Hill less
than the amounts they had requested, rejecting as unjustified the full amounts of certain development fees included
in the submitted cost bases. Each windfarm owner sued
the United States in the Court of Federal Claims for the
difference between the amounts they had been paid and the
amounts allegedly mandated by section 1603. The government counterclaimed, alleging that it had actually overpaid the two firms.
The Court of Federal Claims ruled in favor of the government. California Ridge Wind Energy, LLC v. United
States, 143 Fed. Cl. 757, 763 (2019); Bishop Hill Energy,
LLC v. United States, 143 Fed. Cl. 540, 545 (2019).1 The
sole issue on appeal is whether the two firms proved that
their proposed development fees, in the amounts asserted,
were properly included in their cost bases. The trial court
held that they did not. California Ridge, 143 Fed. Cl. at
762–63. California Ridge and Bishop Hill appeal on that
issue, making no separate argument about the amount of
development fees ultimately included in the cost basis if
1 The two cases were consolidated for trial, and the
two opinions are materially identical. California Ridge,
143 Fed. Cl. at 759 n.1; Bishop Hill, 143 Fed. Cl. at 541 n.1.
For simplicity, we generally cite only California Ridge.
Case: 19-1463 Document: 58 Page: 2 Filed: 05/21/2020
CALIFORNIA RIDGE WIND ENERGY v. UNITED STATES 3
the trial court properly rejected their proposed amounts.
We affirm.
I
Section 1603 requires the Secretary of the Treasury to
“provide a grant to each person who places in service specified energy property to reimburse such person for a portion of the expense of such property . . . .” Pub. L. No. 111-
5, § 1603(a). The amount of the grant is the “applicable
percentage of the basis of such property,” id., § 1603(b)(1),
which is the cost of the property, 26 U.S.C. § 1012(a). For
“qualified small wind energy property,” the applicable percentage is thirty percent. Pub. L. No. 111-5,
§ 1603(b)(2)(A), (d)(4).
California Ridge and Bishop Hill belong to a family of
related entities, which we refer to generally as “Invenergy.”
Invenergy is in the business of creating windfarms. Generally, Invenergy determines what type of facility will be
built, acquires the legal entitlements to construct that facility, and ensures that the facility is properly constructed.
Invenergy uses various subsidiaries to perform different
functions in the creation task; relevant to this appeal are
Invenergy Wind North America LLC (IWNA) and Invenergy Wind Development North America LLC (IWDNA). Invenergy also partly or wholly owns or controls, through
various subsidiaries, some of the completed windfarms.
California Ridge and Bishop Hill each own a namesake
windfarm located in central Illinois. Each firm is controlled by Invenergy and owned through a partnership between Invenergy and Firstar Development (USBank).
Development of the Bishop Hill windfarm began in
2005. Development of the California Ridge windfarm began in 2008. Bishop Hill LLC and California Ridge Wind
Energy LLC were formed on August 1, 2006, and September 26, 2008, respectively.
Case: 19-1463 Document: 58 Page: 3 Filed: 05/21/2020
4 CALIFORNIA RIDGE WIND ENERGY v. UNITED STATES
On July 18, 2011, years after development work began,
Bishop Hill entered into a development agreement with
IWNA. J.A. 14783. The agreement states that “IWNA has
provided development services to [Bishop Hill] to assist it
in developing the Project,” including “negotiating construction financing terms, negotiating the project and operational documents necessary or appropriate for the Project,
obtaining permits and performing other services relating
to the Project.” Id. In exchange for those services, Bishop
Hill was obligated to pay IWNA $60 million. Id. California
Ridge entered a similar development agreement with
IWDNA on February 29, 2012, also long after development
of its windfarm began. J.A. 14780. The California Ridge
agreement states that “IWDNA has provided and hereby
agrees to provide further development services” identical
to those listed in the Bishop Hill agreement. Id. In exchange, California Ridge was obligated to pay IWDNA
$50 million. Id.
Payment under the Bishop Hill agreement occurred on
July 5, 2012—involving a round trip of funds starting and
ending with IWDNA. On that day, IWDNA transferred
$60 million to Bishop Hill, which then wired $60 million to
IWNA—the entity owed the money under the agreement.
The same day, IWNA wired $60 million to IWDNA.
Payment under the California Ridge agreement occurred on November 19, 2012—also involving a round trip
of funds starting and ending with IWDNA. On that day,
IWDNA transferred $50 million to California Ridge, which
then wired $50 million back to IWDNA—the entity owed
the money under the agreement.
On August 13, 2012, Bishop Hill applied to Treasury
for a section 1603 grant totaling $129,923,109. To support
its request, Bishop Hill submitted a breakdown of its direct
and indirect costs. Bishop Hill included the $60 million development fee in the indirect costs of its windfarm and, of
Case: 19-1463 Document: 58 Page: 4 Filed: 05/21/2020
CALIFORNIA RIDGE WIND ENERGY v. UNITED STATES 5
that $60 million, allocated $56,956,837 to section-1603-
qualified property. J.A. 1266.
On November 19, 2012, the same day that it paid
IWDNA the development fee, California Ridge applied for
a section 1603 grant totaling $136,858,980. To support its
request, California Ridge submitted a cost breakdown similar to Bishop Hill’s. Of the $50 million development fee,
California Ridge allocated $49,315,067 to section-1603-
qualified property. J.A. 1270.
On October 9, 2012, Treasury awarded Bishop Hill
$117,216,098—which was $12,707,011 less than the
amount Bishop Hill sought. Treasury explained:
The amount requested was reduced because the
presented cost basis was higher than open market
expectations for projects of this size and in this location and the transaction involved related parties
and/or related transactions. The cost basis has
been adjusted to allow for base costs plus an appropriate markup (to include reasonable overhead,
profit, and, if appropriate, development fees) resulting in a total that more closely reflects the
amount that would have been paid in an arms’
length transaction between parties with adverse
interests.
J.A. 6525.
On December 5, 2012, Treasury awarded California
Ridge $127,699,997—which was $9,158,983 less than the
amount California Ridge sought. Treasury’s explanation
for the reduction was identical to that given to Bishop Hill.
J.A. 6523.
On March 28, 2014, California Ridge and Bishop Hill
each filed a complaint against the United States in the
Court of Federal Claims, alleging that Treasury had unlawfully withheld payment mandated by section 1603.
Each sought damages in the amount that Treasury had
Case: 19-1463 Document: 58 Page: 5 Filed: 05/21/2020
6 CALIFORNIA RIDGE WIND ENERGY v. UNITED STATES
reduced its requested awards. The government counterclaimed, alleging the “development fees” specified in the
two development agreements were not includable as eligible costs given the circumstances and characteristics of
those non-arm’s-length agreements—which the government characterized as “sham” transactions. The government sought to recover the amounts of the awards
attributable to the development fees—$5,635,537 from California Ridge and $4,380,039 from Bishop Hill.
The trial court ruled in favor of the government. The
court determined that California Ridge and Bishop Hill
failed to show that the development agreements had economic substance and concluded that the agreements were
sham transactions. California Ridge, 143 Fed. Cl. at 761–
62. The court determined that California Ridge’s evidence—in particular, the “independent certification” of the
development fees proffered by California Ridge and Bishop
Hill’s accounting firm, Deloitte; the development agreement “without quantifiable services”; and the “round-trip
wire transfer that began and ended in the same bank account, on the same day”—fell “well short” of showing that
the development agreements were not shams and, more
generally, that the development-fee amounts stated in
those agreements were eligible costs. Id. at 762. Accordingly, the court dismissed California Ridge’s and Bishop
Hill’s complaints and entered judgment for the government
in the amounts it sought. Id. at 763; see J.A. 1–2.
California Ridge and Bishop Hill timely appealed, and
we consolidated the appeals. We have appellate jurisdiction under 28 U.S.C. § 1295(a)(3). The Court of Federal
Claims had jurisdiction over the claims under the Tucker
Act, 28 U.S.C. § 1491(a)(1); as is undisputed, section 1603
is a money-mandating statute. The trial court also had jurisdiction over the overpayment-based counterclaims.
28 U.S.C. §§ 1503, 2508.
Case: 19-1463 Document: 58 Page: 6 Filed: 05/21/2020
CALIFORNIA RIDGE WIND ENERGY v. UNITED STATES 7
II
On appeal, California Ridge2 argues that the Court of
Federal Claims failed to make sufficient findings of fact to
allow this court to meaningfully review its decision, that
the facts it did find are clearly erroneous, and that its conclusion that the development agreements were sham transactions is a legal error. If those errors are corrected,
California Ridge argues, it is entitled to the amount of the
section 1603 grants disallowed by Treasury. California
Ridge presents no separate challenge to the court’s award
if the development fee amounts were properly disregarded.
As the Court of Federal Claims concluded, and California Ridge has not meaningfully disputed on appeal, it was
California Ridge’s burden to justify the amount of the development fee it claimed in support of the grant amount
(30% of the eligible costs) it sought. See California Ridge,
143 Fed. Cl. at 760; see WestRock Virginia Corp. v. United
States, 941 F.3d 1315, 1318 (Fed. Cir. 2019) (invoking for
section 1603 the established burden rule for tax deductions); cf. Alt. Carbon Resources, LLC v. United States, 939
F.3d 1320, 1328 (Fed. Cir. 2019); WMI Holdings Corp. v.
United States, 891 F.3d 1016, 1021–22 (Fed. Cir. 2018).
The trial court found that California Ridge had not carried
that burden. Thus, the question before us is whether the
Court of Federal Claims committed reversible error in so
finding.
“The characterization of a transaction for tax purposes
is a question of law that is subject to de novo review, while
the underlying facts are reviewable for clear error.” Salem
Financial, Inc. v. United States, 786 F.3d 932, 940
2 On appeal, there is no material distinction between
California Ridge and Bishop Hill. For simplicity we use
“California Ridge” to refer to both parties, unless otherwise
noted.
Case: 19-1463 Document: 58 Page: 7 Filed: 05/21/2020
8 CALIFORNIA RIDGE WIND ENERGY v. UNITED STATES
(Fed. Cir. 2015). “A finding is ‘clearly erroneous’ when[,]
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.”
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).
Whether the trial court made sufficient factual findings is
reviewed for abuse of discretion. See Medtronic, Inc. v.
Daig Corp., 789 F.2d 903, 906 (Fed. Cir. 1986).
III
Section 1603 provides for government reimbursement
to qualified applicants of a portion of the “expense” of putting certain energy-generating property into service.
Pub. L. No. 111-5, § 1603(a). That expense is measured by
the “basis” of such a property, id., § 1603(b)(1), and “basis”
is defined as “the cost of such property,” 26 U.S.C.
§ 1012(a). Accordingly, California Ridge, to support its
claim, was required to prove that the dollar amounts of the
development fees claimed—stated in the development
agreements and paid to IWNA and IWDNA out of IWDNA’s
own funds—reliably measured the actual development
costs for the windfarms.
We read the Court of Federal Claims opinion as finding
that the amounts stated in the development agreements do
not reliably indicate the development costs. That finding
is not clearly erroneous. It is sufficiently supported by at
least the round-trip nature of the payments; the absence in
the agreements of any meaningful description of the development services to be provided; and the fact that all, or
nearly all, of the development services had been completed
by the time the agreements were executed.
California Ridge argues primarily that the development agreements had economic purpose and that, therefore, the court’s holding that those agreements were sham
transactions was error. But that argument does not establish that the trial court erred on the distinct question
whether the dollar amounts of those agreements are a
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CALIFORNIA RIDGE WIND ENERGY v. UNITED STATES 9
reliable indicator of the true development costs. Because
we see no clear error in the trial court’s finding on that issue, California Ridge cannot prevail regardless of whether
additional proof would be needed to characterize the transactions as shams, an issue we need not address.
A
Three aspects of the development agreements support
the trial court’s finding that the agreement-specified development fees do not reliably establish the actual development costs.
First, California Ridge paid the development fees with
funds it obtained from another Invenergy subsidiary, resulting in a round-trip transaction in which the funds left
from and returned to the same pocket on the same day. As
noted by relevant Treasury guidance, “in certain circumstances, a taxpayer’s stated cost for an asset does not reflect the true economic cost of that asset to the taxpayer
and will be ignored for purposes of determining the basis of
the asset.” U.S. Dep’t of the Treasury, Evaluating Cost Basis for Solar Photovoltaic Properties 1 (2011) (Cost Basis
Guidance) (quoting Bryant v. Comm’r, 790 F.2d 1463, 1466
(9th Cir. 1986)). This may be the case when “a transaction
is not conducted at arm’s-length by two economically selfinterested parties or where a transaction is based upon peculiar circumstances.” Id. (quotation marks omitted) (quoting Lemmen v. Comm’r, 77 T.C. 1326, 1348 (1981)). Here,
not only was the amount of the development fee negotiated
between related entities, the fee was paid in a round-trip
transaction such that neither the payor nor the payee was
materially affected by the transaction. Such circumstances
are “peculiar.” And substantively, the trial court could reasonably view the agreed amount as not reliably indicating
the actual value transferred, since the economic impact on
payee or payor of the round-trip movement of money was,
if not zero or negligible, wholly unrelated to the dollar figures written into the agreements.
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10 CALIFORNIA RIDGE WIND ENERGY v. UNITED STATES
California Ridge contends that the characterization of
the payments as nothing more than “round-trip” wire
transfers ignores the complicated treatment featured in Invenergy’s accounting books. As to the specific California
Ridge development fee (as opposed to the Bishop Hill fee):
there is evidence that payment was meant to be funded by
Invenergy Wind Global—yet another Invenergy entity—
but at the time that payment was due, IWDNA happened
to be holding the money. J.A. 3387–88. Thus, California
Ridge posits that moving the money directly from IWDNA
to California Ridge was a transactional shortcut, which left
out intermediate steps of moving money up one side of the
Invenergy organizational chain and then back down another. J.A. 3314–15. But even if Invenergy intended for
the money to come from the pocket of one Invenergy subsidiary and end in the pocket of another, both pockets still
are Invenergy’s. The trial court could readily find that the
transaction, despite any characterization in Invenergy’s accounting books, did not change the economic positions of
IWDNA or California Ridge in anything like the amount
stated in the agreement. See Frank Lyon Co. v. United
States, 435 U.S. 561, 573 (1978) (“The Court has never regarded the simple expedient of drawing up papers as controlling for tax purposes when the objective economic
realities are to the contrary.” (internal citation omitted)).
As to the specific Bishop Hill fee: there is evidence that the
initial payment from IWDNA to Bishop Hill was treated as
a loan to IWNA, which IWNA paid back later that day after
receiving payment from Bishop Hill, using the money
IWDNA gave it. J.A. 3321–22. But even so characterized,
the transaction did not change the economic position of any
party in anything like the amount stated in the agreement.
Therefore, Invenergy’s accounting treatment does not undermine the Court of Federal Claims’ determination that
the development fees are not a reliable indicator of value.
Second, the development agreements lack any meaningful description of the services provided. The
Case: 19-1463 Document: 58 Page: 10 Filed: 05/21/2020
CALIFORNIA RIDGE WIND ENERGY v. UNITED STATES 11
development agreements obligate Invenergy to perform
only generic development services: “[n]egotiat[e] construction financing terms, negotiat[e] the project and operational documents necessary or appropriate for the Project,
obtain[] permits and perform[] other services relating to
the Project.” J.A. 14780, 14783. There is no concrete specification of services that, if examined, might lend support
to the amount set in the agreement for a premium on those
services. And the choice to include only a highly generic
description may reasonably be taken to suggest that the fee
was not the result of a careful determination of what premium was justified for the particular work done.
It is no answer to say, as California Ridge does, that
there is extensive evidence that services were performed
that come within the generic descriptions in the agreements. Development services certainly were provided to
California Ridge. In its cost-breakdown submitted to
Treasury, California Ridge described several categories of
indirect costs separately included in the grant request,
such as “Development legal,” “Internal Development,” and
“Misc Site Development.” J.A. 6530, 6569. And trial testimony provides some further details. See, e.g., J.A. 3288–
89 (outside counsel work, for “any number of development
activities,” including “zoning and permitting”; payroll and
travel costs for Invenergy’s employees). But the generic
character of the service description in the agreement
makes it reasonable to find unproven the assertion that the
fee amounts set in those agreements were a reliable indicator of the value of the development work.
Third, the development agreements were executed after the development services were substantially completed.
The Bishop Hill agreement states that Invenergy “has provided development services,” J.A. 14783 (emphasis added),
while the California Ridge agreement states that Invenergy “has provided and hereby agrees to provide further
development services,” J.A. 14780 (emphasis added). Because the services were already rendered, in full or in large
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12 CALIFORNIA RIDGE WIND ENERGY v. UNITED STATES
part, the negotiated price for a premium as part of those
services was not part of a pre-acquisition market transaction that would lend the price reliability as an indicator of
market value.
The facts we have summarized provide a strong basis
for the Court of Federal Claims’ determination that California Ridge did not prove that the development fees stated
in the agreements were reliable indicators of the development costs. And we see no clear error when we consider
the foregoing facts together with California Ridge’s additional arguments, discussed next.
B
California Ridge argues that the Court of Federal
Claims erred because its sham-transaction determination
effectively denies Invenergy the ability to transfer value to
California Ridge by selling its services to California Ridge
at fair market value. That contention is incorrect. In this
case, the trial court could reasonably find, on the particular
facts, that the agreement-stated figures do not accurately
value eligible costs. That is hardly a general bar to
properly valued transactions within the Invenergy family.
California Ridge also argues that the development
agreements had economic substance because the economic
position of third-party USBank was affected by the roundtrip fee payments. But California Ridge forfeited this argument by not raising it below. We may deem an argument
forfeited when a party raises it for the first time on appeal.
Personal Audio, LLC v. CBS Corp., 946 F.3d 1348, 1354
(Fed. Cir. 2020); Sage Products, Inc. v. Devon Industries,
Inc., 126 F.3d 1420, 1426 (Fed. Cir. 1997). California Ridge
cites a portion of its closing statement to show that it raised
the point to the trial court, Appellants’ Reply Br. 15, but
those statements were made to explain how USBank would
be affected if the development fees were not included in the
windfarms’ bases, J.A. 3579–80. The cited statements do
not show that California Ridge previously argued that the
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CALIFORNIA RIDGE WIND ENERGY v. UNITED STATES 13
payment of the development fees affected USBank. Therefore, California Ridge has forfeited the argument.
California Ridge further argues that the development
agreements had economic substance because they created
a positive net cash flow to Invenergy. The argument that
there is some positive net cash flow to Invenergy does not
undermine the essential finding on the only issue on appeal—that the agreement-specified figures themselves
were not proved to be accurate values for the costs at issue.
Indeed, this argument is premised on faulty calculations.
At trial, California Ridge’s witness Mr. Murphy determined the net cash flow to Invenergy by subtracting Invenergy’s equity contribution to each windfarm from the
respective development fee. J.A. 3016–26. In turn, Mr.
Murphy determined Invenergy’s equity contribution by
subtracting the amount of third-party funding from the total cost of the windfarm. J.A. 3019–22. When performing
this calculation, however, Mr. Murphy used a total facility
cost that included the cost of the development fee. Compare J.A. 3020 with J.A. 6568. The implication of Mr. Murphy’s own testimony, it appears, is that the net cash to
Invenergy is independent of the amount of the development
fee. Such an implication undermines, rather than supports, any inference that the amounts of the development
fees are a reasonable indication of the development costs.
In addition, California Ridge argues that the independent attestation of its accounting firm, Deloitte, shows that
the development agreements have economic substance.
But those attestations do not prove that the fees are a reliable indication of cost. In its memo to California Ridge,
Deloitte indicated that its examination was “primarily concerned with the potential errors of classification of assets
as eligible property and determination of eligible basis
. . . .” J.A. 14690. Deloitte’s examination of the development fees appears to have been focused on whether the development fees were allocable to grant-eligible costs. And
it concluded that Invenergy’s assertions that “the full
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14 CALIFORNIA RIDGE WIND ENERGY v. UNITED STATES
amount of the development fee is capitalizable to the project assets and that the allocation to basis eligible for Section 1603 grants is appropriate” were reasonable.
J.A. 14701. Deloitte did not independently examine and
determine whether the dollar amounts of the development
fees accurately reflected the value of the premium on development work, as California Ridge claims. Although
Deloitte stated that “the amount of the fee is consistent
with the amounts paid by other third[-]party investors in
other Invenergy projects,” it did not aver that the amount
of the fee was an accurate measure of cost in this particular
circumstance. Id.
Lastly, California Ridge argues that the testimony of
its expert Mr. Gross shows that the development fees are
reliable measures of the value Invenergy provided to the
windfarms. In particular, California Ridge argues that Mr.
Gross’s testimony shows that the amount of the fees was
within the range of “appropriate markups” identified by
Treasury in certain published guidance. That guidance describes three approaches to determining the appropriate
costs basis for purposes of section 1603. Cost Basis Guidance, at 3–4. Under the “cost approach,” an applicant
“should clearly show the cost buildup, including hard costs,
soft costs, and profit.” Id. at 4. The guidance further provides that an applicant may include a “markup” in its cost
basis and that “appropriate markups typically fall in the
range of 10 to 20 percent.” Id. California Ridge argues that
the amounts of the development fees fall in that range,
when measured as a percent of the other grant-eligible
costs. But California Ridge has not established that this is
an appropriate reading of the guidance, which specifies
that markups are appropriate only when they are consistent with the “scope of the work for which the markup is
received.” Id. That language suggests using a percentage
of the cost of the development work provided, rather than
of all grant-eligible costs. And, as discussed above, the services in the development agreements are described so
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CALIFORNIA RIDGE WIND ENERGY v. UNITED STATES 15
generically as to make it difficult to determine what specific work the development-fee “markups” are tethered to.
Therefore, Mr. Gross’s testimony that the amounts of the
development fees comply with Treasury’s guidance does
not establish clear error on the trial court’s behalf.
We need not decide whether Mr. Gross’s testimony—
regarding the cost approach or the other approaches for determining basis—might have supported a finding in California Ridge’s favor regarding the development fees. The
question on appeal is whether we are left with a definite
and firm conviction that the trial court erred in finding to
the contrary. We are not.
IV
California Ridge argues that the Court of Federal
Claims clearly erred in two findings of fact.
First, it disputes the trial court’s finding that Mr.
Schueler “did not give testimony specific[ally] related to
the development services outlined in the three-page development agreement[s].” Appellants’ Br. 18 (quoting California Ridge, 143 Fed. Cl. at 761). We conclude, however, that
the court’s finding is not clearly erroneous in light of the
record. The court noted that Mr. Schueler testified that he
was “not immediately familiar” with the development
agreements. California Ridge, 143 Fed. Cl. at 761 (citing
J.A. 2911). California Ridge cites many portions of Mr.
Schueler’s testimony as purportedly showing the extensive
development work that he and his team did at the windfarms. Appellants’ Br. 18–19. But much of that testimony
is about the type of development work that Mr. Schueler
did for Invenergy windfarms generally, see, e.g., J.A. 2805–
06, 2815–17, and the rest of his testimony, while focused
on development work done at the Bishop Hill or California
Ridge windfarms, does not indicate any relation between
the work done and the development agreements, see, e.g.,
J.A. 2837–39, 2849–60. Additionally, the documents that
California Ridge cites as evidence of the development work
Case: 19-1463 Document: 58 Page: 15 Filed: 05/21/2020
16 CALIFORNIA RIDGE WIND ENERGY v. UNITED STATES
done are all dated earlier than the relevant development
agreement, see, e.g., J.A. 12982–92 (dated May 3, 2011),
J.A. 13034–35 (dated June 20, 2011); thus, these documents do not show that the work documented was specifically related to the services outlined in the development
agreements. Therefore, the Court of Federal Claims’ finding that Mr. Schueler did not give testimony specifically
related to the development agreements is not clear error.
Second, California Ridge challenges the court’s finding
that the developers did not quantify the services provided
under the agreements. Appellants’ Br. 22–23 (citing California Ridge, 143 Fed. Cl. at 762). California Ridge argues
that the services to be provided were clearly defined, it was
possible to objectively verify whether the services were performed, and the services were quantified by the $50- and
$60-million development fees. We understand the challenged trial-court finding, however, as meaning that California Ridge failed to provide any specificity as to what,
concretely, was done under the development agreements
that would warrant the development-fee premiums in the
amounts stated in the agreements. So understood, the
finding is not clearly erroneous.
As discussed above, the development agreements obligate Invenergy to perform development services identified
only at a very high level of generality. And California
Ridge’s provided method for determining whether those
tasks have been completed is equivalent to a determination
that the project has been completed. Such a determination
does not show that the development agreements were independently valuable and necessary when there are many
other costs—all necessary to the completion of the projects—also accounted for in California Ridge’s evidence.
Lastly, although California Ridge did provide evidence as
to how it arrived at the $50- and $60-million figures, see
J.A. 2964–78, that evidence does not show that the valuations were reliable. Therefore, the Court of Federal Claims
did not clearly err when it found that the development
Case: 19-1463 Document: 58 Page: 16 Filed: 05/21/2020
CALIFORNIA RIDGE WIND ENERGY v. UNITED STATES 17
agreements provide only a general valuation of non-specific
services—in its terminology: the services are not “quantifiable.” California Ridge, 143 Fed. Cl. at 762.
V
For the foregoing reasons, we affirm the judgment of
the Court of Federal Claims.
Costs awarded to the appellee.
AFFIRMED
Case: 19-1463 Document: 58 Page: 17 Filed: 05/21/2020 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-4_07-cv-04249/USCOURTS-cand-4_07-cv-04249-1/pdf.json | [
[
"Adam McDonald",
"Plaintiff"
],
[
"San Francisco Unified School District",
"Defendant"
]
] | United States District Court
For the Northern District of California
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United States District Court
For the Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ADAM MCDONALD,
Plaintiff, No. C 07-04249 PJH
v. ORDER
SAN FRANCISCO UNIFIED SCHOOL
DISTRICT,
Defendant.
_______________________________/
The court is in receipt of a declaration filed by plaintiff on October 29, 2007, in
response to the court’s order of October 24, 2007.
Unfortunately, the court cannot consider the declaration because plaintiff failed to file
a certificate of service showing that the defendant was served with a copy of the
declaration. See Civil L.R. 5-6. If plaintiff intends for the court to consider the declaration,
he must serve defendants and file a certificate of service.
In the future, any documents plaintiff files with the court must be served on
defendants, and plaintiff must file a certificate of service to that effect.
IT IS SO ORDERED.
Dated: October 29, 2007 ______________________________
PHYLLIS J. HAMILTON
United States District Judge
Case 4:07-cv-04249-PJH Document 10 Filed 10/29/07 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-almd-2_14-cv-00868/USCOURTS-almd-2_14-cv-00868-0/pdf.json | [
[
"Great American Insurance Company",
"Defendant"
],
[
"W. L. Petrey Wholesale Co., Inc.",
"Plaintiff"
]
] | IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
W. L. PETREY WHOLESALE CO., INC., )
)
Plaintiff, )
)
v. ) CIVIL ACT. NO. 2:14-CV-868-CSC
) (WO)
GREAT AMERICAN INSURANCE )
COMPANY, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
Before the court are the motions to dismiss, or, alternatively, motions for summary
judgment (Doc. 9 & Doc. 18) filed by the Defendant, Great American Insurance Company.
The claims in this case arise under the laws of the State of Alabama and concern a dispute
over insurance coverage for employee theft. The parties are diverse and the amount in
controversy exceeds $75,000.00; accordingly, the court has jurisdiction over this case
pursuant to 28 U.S.C. § 1332(a). Pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1,
the parties have consented to a United States Magistrate Judge conducting all proceedings
in this case and ordering the entry of final judgment. For the reasons stated in this
memorandum opinion, the court concludes that summary judgment is due to be granted and
that the Plaintiff's claims are due to be dismissed with prejudice.
I. 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
Case 2:14-cv-00868-CSC Document 22 Filed 01/29/15 Page 1 of 22
genuine [dispute ] as to any material fact and that the moving party is entitled to judgment
1
as a matter of law.’” Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th
Cir. 2007) (per curiam) (citation omitted); Fed. R. Civ. P. 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 party moving for
summary judgment “always bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of the [record, including pleadings,
discovery materials and affidavits], which it believes demonstrate the absence of a genuine
[dispute] of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant
may meet this burden by presenting evidence which would be admissible at trial 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.
Once the movant meets his evidentiary burden and demonstrates the absence of a
genuine dispute of material fact, the burden shifts to the non-moving party to establish, with
appropriate evidence beyond the pleadings, that a genuine dispute material to his case exists.
Celotex, 477 U.S. at 324; Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991);
see also Fed. R. Civ. P. 56(c) (“A party asserting that a fact cannot be or is genuinely
Effective December 1, 2010, the language of Rule 56(a) was amended. The word “dispute” replaced 1
the word “issue” to “better reflect [ ] the focus of a summary-judgment determination.” Fed. R. Civ. P. 56(a),
Advisory Committee Notes, 2010 Amendments.
2
Case 2:14-cv-00868-CSC Document 22 Filed 01/29/15 Page 2 of 22
disputed must support the assertion by: (A) citing to particular parts of materials in the
record, including depositions, documents, electronically stored information, affidavits or
declarations,stipulations(including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or (B) 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.”). A genuine dispute of material fact exists
when the nonmoving party produces evidence that would allow a reasonable fact-finder to
return a verdict in its favor. Greenberg, 498 F.3d at 1263.
To survive the movant’s properly supported motion for summary judgment, a party
is required to produce “sufficient [favorable] evidence” “that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49
(1986). “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.” Walker
v. Darby, 911 F.2d 1573, 1576–1577 (11th Cir. 1990) (quoting Anderson, supra).
Conclusory allegations based on subjective beliefs are likewise insufficient to create a
genuine dispute of material fact and, therefore, do not suffice to oppose a motion for
summary judgment. Waddell v. Valley Forge Dental Assocs., Inc., 276 F.3d 1275, 1279 (11th
Cir. 2001). Hence, when a nonmoving party fails to set forth specific facts supported by
3
Case 2:14-cv-00868-CSC Document 22 Filed 01/29/15 Page 3 of 22
appropriate evidence sufficient to establish the existence of an element essential to its case
and on which the nonmovant 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.”).
For summary judgment purposes, only disputes involving material facts are relevant.
United States v. 5800 SW 74th Ave., 363 F.3d 1099, 1101 (11th Cir. 2004). What is material
is determined by the substantive law applicable to the case. Anderson, 477 U.S. at 248;
Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 809 (11th Cir. 2004)
(“Only 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 (11th Cir.
2003) (citation omitted). To demonstrate a genuine dispute of material fact, the 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, Ltd., 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 indicates that there is no genuine dispute of material fact and that
4
Case 2:14-cv-00868-CSC Document 22 Filed 01/29/15 Page 4 of 22
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 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). However, if there is a conflict in the
evidence, “the evidence of the non-movant is to be believed, and all justifiable inferences are
to be drawn in his favor.” Anderson, 477 U.S. at 255; Ruiz de Molina v. Merritt & Furman
Ins. Agency, 207 F.3d 1351, 1356 (11th Cir. 2000).
II. Facts
A. Petrey Wholesale’s Business Operations
Petrey Wholesale, Inc., is a wholesale distributor of goods and supplies to
convenience stores. (Doc. 21-1 p. 24). One of the products Petrey Wholesale distributes is
a drink called “5-Hour Energy.” “5–hour ENERGY is an ‘energy shot.’ The drink is 1.93
to 2 ounces and is sold in retail stores across the country in a number of fruit flavors, and
regular, extra strength, and decaffeinated varieties.” Podobedov v. Living Essentials, LLC,
2012 WL 2513458 (C.D. Cal. 2012).
Petrey Wholesale hires sales persons for its delivery routes, and each sales person is
provided with a delivery truck. (Doc. 21-1 p. 24). The sales person leases a storage unit in
which to store goods from Petrey Wholesale prior to delivery. Id. Each sales person orders
5
Case 2:14-cv-00868-CSC Document 22 Filed 01/29/15 Page 5 of 22
goods from Petrey Wholesale according to each customer’s need, Petrey Wholesale delivers
the goods to the storage unit, and the sales person delivers the goods to the customers and
accounts for the deliveries by entering the relevant data in a computer system. Id. Excess
stock or return merchandise is shipped back to the warehouse when necessary. (Doc. 21-1
p. 25). At least twice per year, a physical inventory is conducted for each route salesman’s
truck and storage facility. Id.
B. Petrey Wholesale’s Employee Dishonesty Insurance Policy
From July 1, 2010 to July 11, 2011, Petrey Wholesale held a business insurance and
crime protection policy from Great American Insurance Company (“Great American”).
(Doc. 21-1 p. 138). That policy was subsequently renewed and was in force through July 1
2013. (Doc. 21-1 p. 142; Doc. 21-1 p. 42). The insurance policy provided:
Employee Dishonesty
We will pay for loss of, and loss from damage to, money, securities, and other
property resulting directly from dishonest acts committed by an employee,
whether identified or not, acting alone or in collusion with other persons, with
the manifest intent to:
a. cause you to sustain loss; and also
b. obtain financial benefit (other than employee benefits earned in the
normal course of employment, including: salaries, commissions, fees,
bonuses, promotions, awards, profit sharing or pensions) for:
(1) the employee; or
(2) any person or organization intended by the employee to receive that
benefit.
EXCLUSIONS:
. . . .We will not pay for loss as specified below:
. . . Inventory Shortages:
6
Case 2:14-cv-00868-CSC Document 22 Filed 01/29/15 Page 6 of 22
Loss, or that part of any loss, the proof of which as to its existence or amount
is dependent upon:
a.) an inventory computation; or
b.) a profit and loss computation.
(Doc. 21-1 pp. 46, 51, 116, 121).
C. Jason McKean
From March 15, 2010, to June 6, 2011, Jason McKean was a route delivery driver for
Petrey Wholesale in Shreveport, Louisianna. (Doc. 21-1 p. 71). On June 6, 2011, McKean’s
supervisor, Bill Ashworth, could not reach him by telephone, so he drove to Shreveport and
found that McKean had abandoned the job. Id. Ashworth immediately noticed that there
appeared to be a shortage of remaining merchandise in McKean’s truck and storage unit, so
he began to take a physical inventory of the items. Id. After the physical inventory was
taken of the remaining items from McKean’s truck and storage facility, the number of
missing items were subtracted from the computer’s records of the number of items that
should have been in McKean’s possession. (Doc. 21-1 p. 72). This price comparison
revealed a shortage of items totaling $122,899 in value based on inventory cost. Id. The vast
majority of the missing inventory consisted of 5-Hour Energy drinks. Id.
In addition, a complete reconstruction of all transactions for McKean’s route was
performed, beginning with a physical inventory performed on December 15, 2010. Id. All
shipments and transfers of product to McKean were added to that figure, and returned
merchandise was subtracted from the figure to determine the amount of inventory thatshould
have been in McKean’s possession on June 9, 2011. Id. Petrey Wholesale filed a police
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Case 2:14-cv-00868-CSC Document 22 Filed 01/29/15 Page 7 of 22
report about the theft. (Doc. 21-1 p. 110). In response to a letter from Petrey Wholesale,
Jason McKean telephoned Petrey Wholesale and denied stealing inventory. (Doc. 21-1 p.
73).
Petrey Wholesale submitted a claim for loss of the missing inventory to Great
American. (Doc. 21-1 p. 171). Petrey Wholesale’s proof of loss was primarily based on its
calculations comparing sales and inventory records with the results of the physical inventory
of the remaining merchandise from McKean’s route. Id. After confirming that McKean was
the only person who had access to the missing inventory, Great American paid the claim.
(Doc. 21-1 pp. 109-110, 171).
D. Justin Bree
Justin Bree was a route delivery driver for Petrey Wholesale from August 16, 2007
to May 24, 2013. (Doc. 21-1 p. 32). On May 24, 2013, his employment was terminated after
one of Petrey Wholesale’s customers requested that Bree no longer service its store. (Doc.
21-1 p. 33). At the time of his termination, Petrey Wholesale took from Bree his truck, its
contents, and the computer equipment used on his route. (Doc. 21-1 p. 25). Bree’s truck was
turned over to a relief driver to finish the route, and Bree’s supervisors went to Bree’s storage
unit and changed the locks on it. (Doc. 21-1 pp. 25-26).
On June 26, 2013, Steve Carter, a general manager at Petrey Wholesale, was
reviewing route inventory reports when he noticed that the inventory numbers for 5-Hour
Energy products on Bree’s route were exceptionally high. (Doc. 21-1 p. 26). He
8
Case 2:14-cv-00868-CSC Document 22 Filed 01/29/15 Page 8 of 22
immediately ordered an audit of the records and a physical inventory of Bree’s remaining
route inventory. Id. A physical inventory was performed on June 28, 2013. Id. Scott
Rayburn, who is responsible for inventory accounting at Petrey Wholesale, compared Petrey
Wholesale’s computer-generated inventory records with the results of the physical inventory,
and the results of this calculation indicated an inventory shortage of 82,510 bottles of 5-Hour
Energy drinks valued at $111,415.35. (Doc. 21-1 pp. 25-26). Rayburn also compared the
results of the June 28, 2013, physical inventory with a physical inventory conducted on
January 15, 2013, which, after accounting for Bree’s sales and all interim shipments of
merchandise to and from Bree, confirmed that 82,510 bottles of 5-Hour Energy drinks were
missing from Bree’s final inventory. (Doc. 21-1 p. 26).
Petrey Wholesale filed a police report and attempted unsuccessfully to locate Bree and
inquire about the inventory shortage. (Doc. 21-1 pp. 26, 38, 40).
Petrey Wholesale submitted an insurance claim to Great American showing, based on
Rayburn’s calculations, that 82,510 bottles of 5-Hour Energy drinks were missing from
Bree’s inventory. (Doc. 21-1 pp. 35-36). Great American denied the claim, relying in part
on the inventory shortage exclusion in the policy. (Doc. 21-1 pp. 46, 51, 172, 186-87).
III. Procedural History
On August 14, 2014, based on Great American’s refusal to pay the insurance claim
stemming from theft of Bree’s route inventory, Petrey Wholesale filed a complaint against
Great American for breach of contract. (Doc. 1). On September 11, 2014, Great American
9
Case 2:14-cv-00868-CSC Document 22 Filed 01/29/15 Page 9 of 22
filed a motion to dismiss, or, in the alternative, motion for summary judgment, arguing that,
under the inventory shortage exclusion, it was not obligated to pay the claim. (Doc. 9).
On September 24, 2014, prior to responding to the motion for summary judgment,
Petrey Wholesale filed an amended complaint against Great American alleging breach of
contract and bad faith failure to pay a claim. (Doc. 16). On October 8, 2014, Great
American filed a motion to dismiss the amended complaint and motion for summary
judgment, again arguing that it was not obligated to pay the loss under the inventory shortage
exclusion. (Doc. 18). The motions to dismiss and motions for summary judgment are now
under submission.
IV. Discussion
A. Applicability of the Inventory Shortage Exclusion
This is a diversity case involving an Alabama insurance contract; therefore, Alabama
law governs the claims in this case. See Hartford Fire Ins. Co. v. Mitchell Co., Inc., 440
Fed. Appx. 759, 760 (11th Cir. 2011); Dempsey v. Auto Owners Ins. Co., 717 F.2d 556, 559
(11th Cir. 1983). Under Alabama law, Great American cannot be liable for Petrey
Wholesale’s bad faith or breach of contract claims unless the loss at issue is covered under
the crime protection policy. See State Farm Fire & Cas. Co. v. Brechbill, 144 So. 3d 248,
258 (Ala. 2013) (holding that breach of an insurance contract is one of the elements of a bad
faith claim for failure to pay a claim).
Under Alabama law, when analyzing an insurance policy to determine whether
10
Case 2:14-cv-00868-CSC Document 22 Filed 01/29/15 Page 10 of 22
coverage exists, “a court gives words used in the policy their common, everyday meaning and
interprets them as a reasonable person in the insured’s position would have understood
them.’” State Farm Mut. Auto. Ins. Co. v. Brown, 26 So. 3d 1167, 1170 (Ala. 2009) (quoting
Crossett v. St. Louis Fire & Marine Ins. Co., 289 Ala. 598, 603 (1972)). “‘If, under this
standard, they are reasonably certain in their meaning, they are not ambiguous as a matter of
law and the rule of construction in favor of the insured does not apply.’” Id. (quoting
Crosset, 289 Ala. at 603).
In this case, the employee dishonesty policy covers loss of property “resulting directly
from dishonest acts committed by an employee, whether identified or not, acting alone or in
collusion with other persons, with the manifest intent” to cause the employer to sustain loss,
and also to obtain financial benefit for the employee or some other person that the employee
intends to receive financial benefit. (Doc. 21-1 p. 46). However, as Great American points
out, the employee dishonesty policy contains an exclusion which provides that Great
American
will not pay for . . . [l]oss, or that part of any loss, the proof of which as to its
existence or amount is dependent upon: a.) an inventory computation; or b.)
a profit and loss computation.
(Doc. 21-1 pp. 46, 51).
Here, as proof of the existence and amount of the loss of 82,510 bottles of 5-Hour
Energy Drinks, Petrey Wholesale offers a calculation based on comparing the results of the
January 15, 2013 and June 28, 2013 physical inventories of items in Bree’s truck and storage
11
Case 2:14-cv-00868-CSC Document 22 Filed 01/29/15 Page 11 of 22
unit after accounting for all interim shipments, recorded sales, and return merchandise
shipments. (Doc. 21-1 p. 36). Petrey Wholesale also “ran a complete item comparison of
the June 28th physical inventory count with the computer generated perpetual count, then
extend[ed] the differences at unit inventory cost,” which “revealed [a] shortage of 82,510
bottles of 5-Hour Energy product with a cost of $11,415.35. Id. Neither party has cited (and
the court has not found) an Alabama case defining the term “inventory computation” as used
in the inventory shortage exclusion at issue. However, Petrey Wholesale appears to concede
that these calculations are “inventory computations” within the meaning of the exclusion, and
the court concludes that they are. Cf. Fid. & Deposit Co. of Md. v. So. Utils., Inc., 726 F.2d
692, 695 (11th Cir. 1984) (“An inventory computation is ‘“an inventory arrived at by taking
a beginning inventory, adding purchases and deducting the cost of merchandise sold.”’”
(quoting Chenoweth-Chapman Corp. v. Amer. Ins. Co., 553 S.W.2d 872, 876 (Mo. App.
1977, quoting in turn Fort Smith Tobacco & Candy Co. v. Amer. Guar. & Liab. Ins. Co., 208
F. Supp. 244, 254 (W.D. Ark. 1962)); Russell G. Donaldson, J.D., Construction and Effect
of Clause in Fidelity Bond or Insurance Policy Excluding from Coverage Losses Proved by
“Inventory Computation” or “Profit and Loss Computation,” 45 A.L.R.4th 1049 § 3[a]
(Westlaw 2011) (collecting cases holding that “an ‘inventory computation’ [is] a figure
arrived at by taking a beginning inventory, adding purchases, and deducting the cost of
merchandise sold, so that a computed inventory loss would therefor be the difference arrived
at by deducting an actual inventory from the inventory computation”); 11 Steven Plitt, et al.,
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Couch on Ins. 3d § 161.12 (Westlaw 2014) (“The exclusion does not bar an inventory made
upon a unit basis, but does bar inventory which requires computation to reduce them to some
other basis, or where, when one inventory is compared with a later one, it is necessary to
compute and allow for sales and purchases made in the interim.”).
Although Petrey Wholesale concedes that its proof of loss is dependent upon
inventory calculations, it argues that the phrase “dependent upon,” as used in the inventory
shortage exclusion, applies only when proof of loss is wholly dependent upon, but not
partially dependent upon, inventory calculations. In support of this contention, Petrey
Wholesale cites American Fire & Casualty Co. v. Burchfield, 232 So. 2d 606 (Ala. 1970).
In Burchfield, the Alabama Supreme Court concluded that a similar inventory exclusion did
not preclude “use of inventory calculations to show the amount of the loss” after the insured
offered other “evidence without conflict that it has suffered loss by reason of theft by . . . its
employees, and has offered further evidence that no other basis exists to explain the loss.”
232 So. 2d at 609. Thus, in Burchfield, the court permitted the use of inventory calculations
to show the amount of a loss where the insured offered evidence that it had discovered its
employees stealing from its warehouse and the employees admitted to the theft.
Petrey Wholesale argues that, in addition to inventory calculations, it has provided
other evidence of the existence of a loss due to employee dishonesty in the form of an
affidavit of its chief financial officer, Norman Parks. (Doc. 21-1 p. 19). In his affidavit,
Parks states that “the proof of the existence of the loss is the missing items themselves,” but
13
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Parks relies on nothing other than inventory calculations as the basis of his knowledge that
items were missing. (Doc. 21-1 pp. 26, 28). Thus, Parks’s affidavit does not provide any
independent corroboration of the existence of a loss apart from inventory calculations.
The court notes that Parks’s affidavit indicates that, according to company policy,
inventory in Bree’s care was supposed to be kept locked in an offsite storage unit and in his
truck, and that Petrey Wholesale’s employees changed the locks on Bree’s storage unit on
the day he was fired. (Doc. 21-1 pp. 24-26). However, evidence suggesting that only Great
American’s employees could have been responsible for the disappearance of inventory in
Bree’s care is not independent evidence of a loss due to dishonesty or theft. The existence
of the loss is presupposed on the basis of inventory records alone, and the manner of the loss,
if one existed, is a matter of speculation. Even if Great American’s employees were the only
ones who could have stolen Bree’s inventory, there is no evidence, apart from inventory
calculations, that any inventory was in fact stolen by anybody. Moreover, there is no
independent evidence that employee dishonesty was responsible for any loss of inventory,
rather than, for example (among a number of possibilities), employee negligence in following
company policies for securing the goods. See Doc. 21-1 p. 46 (employee dishonesty
provision in the Great American policy providing coverage for loss due to “dishonest acts
committed by an employee . . . acting alone or in collusion with other persons, with the
manifest intent” to cause the employer to sustain loss, and also to with the employee’s intent
to obtain financial benefit for himself or some other person); see also Burchfield, 232 So. 2d
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at 609 (recognizing that the purpose of an inventory shortage exclusion is to limit the
coverage of employee dishonesty policies to claims that are in fact due to employee
dishonesty rather than to negligence, bookkeeping errors, waste, inexactness, pilferage by
nonemployees, or dishonesty inherent in a claim “‘built upon self-created inventory
records.’” (quoting Hoboken Camera Center v. Hartford Accident & Indem. Co., 93 N.J.
Super. 484, 499 (1967)). Cf. Dunlop Tire & Rubber Corp. v. Fid. & Deposit Co. of Md., 479
F.2d 1243, 1247 (2d Cir. 1973) (holding that, where inventory calculations indicated a
shortage of goods stored in a locked wire cage accessible only to employees, the insured had
provided “circumstantial evidence that, if a loss in fact was sustained, [the insured’s]
employees were the perpetrators. But this so-called evidence of employee dishonesty
presupposes the factual existence of the loss. The evidence merely tends to foreclose the
possibility of theft by persons other than employees. It does not prove the existence of any
loss. There are no confessions, actual or implied, from employees who had been stealing
goods. Dunlop has not shown suspicious circumstances indicating that employees were
pilfering goods. The only evidence that a loss occurred at all is the inventory computations.
Such computations alone are insufficient to prove the existence of the loss in light of the
prohibition of the inventory exclusion clause.”).
Thus, Petrey Wholesale’s reliance on Burchfield is misplaced because inventory
calculations are the only evidence Petrey Wholesale has offered as proof of the existence of
a loss due to employee dishonesty as defined by the policy. Accordingly, the court concludes
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that Petrey Wholesale’s loss is not insured under terms of the policy.
B. The Inventory Shortage Exclusion Does Not Render Coverage Illusory
Citing Burchfield, Petrey Wholesale argues that the inventory coverage exclusion
renders coverage for employee dishonesty illusory because, according to Petrey Wholesale,
inventory calculations are the only available means to prove the existence of a loss of
inventory due to employee dishonesty. In Burchfield, the Alabama Supreme Court noted
with approval that a New Jersey court had indicated that the exclusion would “nullify to a
considerable extent” the benefits of an employee dishonesty policy if the exclusion was
interpreted according to its literal meaning without allowing use of inventory calculations
alongside some other wholly separate evidence proving the existence of a loss due to
employee dishonesty. Burchfield, 232 So. 2d at 609 (citing Hoboken Camera Center v.
Hartford Accident & Indem. Co., 93 N.J. Super. 484, 496 (1967)).
Contrary to Petrey Wholesale’s interpretation of Burchfield, however, this is far from
a holding that the exclusion renders coverage illusory if it excludes coverage in cases where,
as here, inventory calculations are the sole proof of loss due to employee dishonesty. The
purpose of any exclusion in an insurance policy is to “nullify” the availability of coverage
to some extent, and insurers “have the same right as individuals. . . to impose whatever
conditionsthey please upon their obligations not inconsistent with public policy.” Ala. Farm
Bureau Mut. Cas. Ins. Co. v. Goodman, 279 Ala. 538, 541 (Ala. 1966). Under Alabama law,
an exclusion renders coverage illusory, and is unenforceable as against public policy, only
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when it “‘completely contradict[s] the insuring provision.’” Shrader v. Emp’rs Mut. Cas.
Co., 907 So. 2d 1026, 1033 (Ala. 2005) (quoting Indus. Chem. & Fiberglass Corp. v.
Hartford Accident & Indem. Co., 475 So.2d 472, 479 (Ala. 1985) (emphasis added)).
Nullifying coverage “to a considerable extent,” Burchfield, 232 So. 2d at 609, is not the same
thing as “completely contradicting” an insuring provision and thus rendering it illusory,
Shrader, 907 So. 2d at 1033.
The inventory shortage exclusion is “a standard clause that appears in virtually every
employee dishonesty policy” and “has been construed by a number of courts,” including in
numerous cases where coverage was found to exist. Burchfield, 232 So. 2d at 609; see also
Coleman Cable, Inc. v. Travelers Indem. Co., 790 F. Supp. 2d 742, 755-56 (N.D. Ill. 2011)
(“The type of exclusion upon which Federal relies, known as an inventory shortage
exclusion, is hardly new to the insurance industry.”). As noted in part IV. A. of this opinion,
the purpose of the inventory shortage exclusion is widely recognized not (as Petrey
Wholesale contends) to serve as a surreptitious and complete contradiction of the coverage
provided in employee dishonesty policies, but to protect insurers from the dangers of
negligence, bookkeeping errors, waste, inexactness, pilferage by nonemployees, or
dishonesty inherent in a claim “built upon self-created inventory records.” Burchfield, 232
So. 2d at 609; see also, e.g. Coleman Cable, Inc. v. Travelers Indem. Co., 790 F. Supp. 2d
742, 755-56 (N.D. Ill. 2011) (“[I]nventory shortage exclusions have long been used to curb
abuses by employersinsured against employee dishonesty where covered losses were claimed
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on the basis of mere estimates, but where the losses might actually be the result of
bookkeeping errors, waste, or negligence.” (citations and internal quotation marks omitted));
Donaldson, 45 A.L.R.4th 1049 § 2[a] (discussing the purpose of inventory shortage
exclusions); Carleton Burch, et al., 15 Fidelity L.J. 309 (Oct. 2009) (“Over time, the most
commonly used fidelity forms have developed exclusions to limit or prohibit the introduction
of proof of lossthrough inventory computations. These forms have recognized that inventory
shrinkage, as shown in such calculations, can arise from any number of sources, some or all
of which may or may not bear any direct relation [to dishonesty] by an employee.”).
Contrary to Petrey Wholesale’s contention, inventory calculations are not the only
means available for proving the existence of a loss of inventory due to employee dishonesty.
Other calculations based on regularly kept business records are permissible as proof so long
as they are not inventory calculations. E.g., Atlanta Coca-Cola Bottling Co. v. Transamerica
Ins. Co., 61 F.R.D. 120 (N.D. Ga. 1973) (holding that the exclusion did not preclude an
insured from relying on the daily records of allegedly dishonest routemen who serviced soft
drink machines). For example, it has been held that an “inventory calculation” does not
occur when items in a store or warehouse are individually marked and accounted for when
sold so that the insured could show from its records that individually-identifiable items are
missing. See, e.g., Hoboken Camera, 93 N.J. Super. at 491 n.2 (one of two cases that the
Alabama Supreme Court expressly followed in Burchfield); see also, e.g., Sun Ins. Co. v.
Cullum’s Men Shop, 331 F.2d 988, 991 (5th Cir. 1964) (“[P]roof of the amount of the loss
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did not depend upon an inventory computation . . . but on the contrary consisted of an
enumeration of each missing item . . . based upon a check of the stock record . . . against the
stock actually on hand”); Ace Wire & Cable Co., Inc. v. Aetna Cas. & Sur. Co., 60 N.Y.2d
390, 659 (N.Y. 1983) (holding that it was not an “inventory computation” to prove “the fact
or amount of loss through inventory records (whether perpetual or periodically made)
detailing the actual physical count of individually identifiable units,” such as stock records
of the reels of wire in which “each reel is separately listed with a notation of the exact
footage on the reel[,] and on many items a specific control number is assigned to the reel”).
Further, as Petrey Wholesale itself recognizes, evidence other than business records
can be used to prove a loss due to employee dishonesty, such as security camera footage,
evidence that an employee destroyed records and abandoned his job when he became aware
that a theft was about to be discovered, eyewitness statements that an employee removed
items from a warehouse, confessions of dishonest employees, evidence that a dishonest
employee sold the items for personal gain, and records of deliveries of items that were in fact
never delivered. Cf., e.g., So. Utils., Inc., 726 F.2d at 695-97; Burchfield, 232 So. 2d at 607.
Moreover, in light of the plain language of the policy, the fact that inventory shortage
exclusions have long been the industry standard in employee dishonesty policies, Burchfield,
232 So. 2d at 609, and Petrey Wholesale’s statement that it obtained the employee dishonesty
policy precisely because of the potential for inventory theft by route salesmen (Doc. 21-1
pp. 13, 27), the court is particularly unconvinced by Petrey Wholesale’s argument that
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coverage is illusory because it could not reasonably have foreseen the need to implement
security measures or record-keeping procedures that would allow for proof of loss
independent of an inventory calculation in accordance with the requirements of the exclusion.
In short, the inventory shortage exclusion by no means “completely contradicts” the
coverage provided by the employee dishonesty policy. Because the inventory shortage
exclusion does not “completely contradict” the insurance coverage provided by the employee
dishonesty policy, the exclusion does not render the coverage illusory. Shrader, 907 So. 2d
at 1033 (defining “illusory coverage”).
C. Waiver
Petrey Wholesale points out that, under similar circumstances, Great American paid
2
a claim for theft by Jason McKean in 2011 after Petrey Wholesale provided a proof of loss
that involved inventory computations. Petrey Wholesale argues that, by paying the claim for
theft by McKean, Great American waived itsright to rely on the inventory shortage exclusion
to deny coverage for the claim for theft by Justin Bree. However, Petrey Wholesale cites no
The circumstances of the two claims were similar in that inventory calculations were submitted as 2
proof of loss. However, McKean abandoned his job and his truck shortly before the time that a physical
inventory would have been expected to take place, and Petrey Wholesale discovered the disappearance of
inventory at the same time it discovered McKean’s disappearance, prior to conducting an inventory
calculation. (Doc. 21-1 p. 71). Bree did not leave his employment under suspicious circumstances; his
employment was terminated for reasons unrelated to theft, and he was not suspected of theft until inventory
calculations conducted a month after his termination indicated an inventory shortage. See So. Utils., Inc.,
726 F.2d at 695-97 (holding that an inventory exclusion did not preclude coverage where, in addition to
inventory calculations, the insured provided evidence of loss due to theft by providing evidence of the
suspected employee’s “actions that were consistent with dishonesty, such as . . . clearing out his desk and
leaving his job several hours after being told by his superior to explain discrepancies in the construction
records”).
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legal authority in support of this contention.
Moreover, under Alabama law, “the doctrine [of waiver] is not available to bring
within the coverage of a policy risks not covered by its terms or risks expressly excluded
therefrom.” Home Indem. Co. v. Reed Equip. Co., 381 So. 2d 45, 50-51 (Ala. 1980); see
also Woodall v. Alfa Mut. Ins. Co., 658 So. 2d 369, 372 (Ala. 1995) (“If a coverage provision
or an exclusion is unambiguous, it is not subject to waiver or estoppel.”). Therefore, Great
American’s payment of the claim for theft by Jason McKean does not operate as a waiver of
the inventory shortage exclusion in this case. Cf. Payne v. Mutual Sav. Life Ins. Co., 58 So.
3d 108 (Ala. 2010) (holding that, “regardless of the reason” the insurer paid claims in excess
of $8,000 for the insured’s chemotherapy drugs in 2007 and 2008, the doctrine of waiver did
not preclude the insurer from denying coverage in 2009 based on an unambiguous policy
provision that placed an $8,000 maximum yearly limit on prescription drug coverage).
V. Conclusion
Accordingly, it is
ORDERED as follows:
1. that the motion to dismiss and for summary judgment (Doc. 18) filed by Great
American be and is hereby GRANTED;
2. that Great American’s motion to dismiss and for summary judgment (Doc. 9) be and
is hereby DENIED as moot;
3. that judgment on all claims in the amended complaint be and is hereby entered in
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favor of Great American and against Petrey Wholesale and that Petrey Wholesale’s
claims be and are hereby DISMISSED with prejudice;
4. that all pending deadlines are terminated and all other pending motions are hereby
DENIED as moot; and
5. that the costs of this proceeding be and are hereby taxed against the Plaintiff.
A separate final judgment will be entered.
Done this 29th day of January, 2015.
/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE
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[
"Timothy Wayne Arnett",
"Defendant"
],
[
"USA",
"Plaintiff"
]
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
TIMOTHY WAYNE ARNETT,
Petitioner.
CASE NO. 1:95-CR-005287-LJO
MEMORANDUM DECISION AND ORDER
DENYING PETITIONER’S MOTION TO
COMPEL A RULE 35(B) MOTION FOR
SENTENCE REDUCTION
(ECF Nos. 689, 690)
Before the Court are Petitioner Timothy Wayne Arnett’s pro se “Motion Requesting Court to
Hold Evidentiary Hearing Compelling Third-Party Rule 35(b) Sentence Reduction” (ECF No. 689),
and “Motion to Compel Production of United States Attorney’s Office Policies Regarding ThirdParty Substantial Assistance Motions” (ECF No. 690). The Government filed its Opposition to the
motions on Mary 4, 2016 (ECF No. 692). Upon review of the parties’ briefing, the extensive record
in the case, and the relevant law, the Court DENIES Petitioner’s motions.
I. BACKGROUND1
In February of 1997, Defendant pleaded not guilty (ECF No. 8) to a fourteen-count indictment
(ECF No. 1), seven counts of Armed Bank Robbery (18 U.S.C. 2113(a) and (d)) (Counts 1, 3, 5, 7, 9,
11, 13); and seven counts of Use of a Firearm During a Crime of Violence (18 U.S.C. 924(c)(1))
1 While this background is meant to review the procedural history in this case, it is not exhaustive.
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(Counts 2, 4, 6, 8, 10, 12, 14). After a delay due to Defendant’s transfer between jurisdictions (see
ECF Nos. 2-4), Judge Robert Coyle held that a period in late 1997 was excludable time for the
purposes of the speedy trial act (ECF No. 47). In July 1997, Defendant moved that he be appointed
as co-counsel (ECF Nos. 22, 24), which Judge Coyle initially Denied (ECF No. 23). Subsequent to
a hearing on August 11, 1997, Judge Coyle granted Defendant’s request to be appointed co-counsel
in his case (ECF No. 29) and relieved counsel John Garland (ECF No. 30). Defendant filed multiple
motions to dismiss the indictment (ECF Nos. 39), which the court denied (ECF No. 46). Trial was
set for March 1998 (ECF No. 56). The Court denied Defendant’s motions in limine. (ECF Nos. 62,
76, 82, 83).
First Trial
On March 4, 1998, subsequent to a jury trial, the jury returned a guilty verdict on all
fourteen counts (ECF Nos. 113, 116). Defendant filed various post-trial motions, which the Court
denied (ECF Nos. 121-123, 129; 126, 127, 131). Defendant moved for reconsideration of discovery
motions, which the Court denied (ECF Nos. 135, 139). Upon Defendant’s request, the Court
appointed attorney Kevin Little to appear and later as counsel for Defendant for all purposes (ECF
Nos. 136, 137, 146). In August 1998, Defendant twice moved for the judge’s recusal and for a stay
in proceedings, which the Court denied. (ECF Nos. 177 & 178; 179 & 181).
First Sentencing
On August 24, 1998, Judge Coyle sentenced Defendant Arnett to serve 235 months
imprisonment as to counts 1, 3, 5, 7, 9, 11, and 13, and as to count 1 in the District of Oregon; 240
months each as to counts 2, 4, 6, 8, 10, 12, 14, consecutive to each other and consecutive to count
two of District of Oregon, for a total of 1,915 months custody); 60 months supervised release; $700
penalty assessment; and $101,859.78 restitution. See ECF No. 183, 186 (Judgment and
Commitment).
First Appeal
On September 3, 1998, Arnett filed a notice of appeal (ECF No. 190, “the first appeal”), and
the Ninth Circuit subsequently issued the case number 98-10397 (ECF No. 201). The district court
granted Arnett’s application to proceed in forma pauperis (ECF Nos. 191, 196).
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On August 27, 1998, Arnett filed a first motion for a new trial and also requested a hearing
on the motion (ECF Nos. 184, 187), which the Court denied on September 9, 1998 (ECF No. 197).
On September 16, 1998, Arnett again requested a new trial (ECF No. 198), which the district court
again denied (ECF No. 203).
Second Appeal
On September 29, 1998, Defendant filed a notice of appeal (ECF No. 204, “the second
appeal”) of the Court’s September 9, 1998 Order (ECF No. 197) denying his motion for a new trial.
In this second appeal, the Ninth Circuit issued case number 98-10445 (ECF No. 215). The Ninth
Circuit ordered the defendant-appellant to retain counsel, file a motion for appointment of counsel,
or inform the court of his intention to represent himself (ECF No. 214).
Resolution of the First Appeal
On February 22, 2000, the Ninth Circuit vacated the district court’s judgment (ECF No.
237); insert CITE United States v. Arnett, -- F.2d -- (9th Cir. 2000).On February 25, 2000, Judge
Coyle rendered an Order in which he denied Defendant’s motion for a new trial and set sentencing
for March 27, 2000 (ECF No. 239).
On February 28, 2000, Defendant filed the following motions: to dismiss the indictment
(ECF No. 240); for a new trial pursuant to Rule 33 based on grounds that false evidence was
presented at trial (ECF No. 241); for a new trial based on an invalid Miranda waiver (ECF No.
242); for a new trial pursuant to Rule 33 on the grounds of improper jury instructions (ECF No.
244); and, for reconsideration of the Court’s Order denying a motion for a new trial (ECF No. 245),
which the district court denied (ECF Nos. 246-249).
Second Sentencing
On March 27, 2000, Judge Coyle sentenced Defendant Arnett to be imprisoned for a total
term of 1,915 months, consisting of: 235 months on Counts 1, 3, 5, 7, 9, 11, 13 (to be served
concurrently with each other and concurrently with Count 1 of Case No. CR-95-60120-1 in the D.
of Oregon); terms of 240 months on Counts 2, 4, 6, 8, 10, 12, 14 (to be served consecutively to the
terms imposed in the odd-numbered counts); and further ordered that the terms imposed in the
even-numbered counts be served consecutively to the 120 months terms imposed in Count 2 of the
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Oregon case; a $700 special assessment; and, $101,859.78 restitution. See ECF No. 250 (Judgment
and Commitment issued March 29, 2000).
Third Appeal
On March 30, 2000, Arnett filed a notice of appeal (ECF No. 251), and, on April 28, 2000,
filed a second notice of appeal to the Ninth Circuit (ECF No. 258), which issued case number 00-
10170 (ECF No. 260) (“the third appeal”). The district court granted Arnett’s request to proceed in
forma pauperis (ECF No. 256). About this third appeal, the Ninth Circuit affirmed in part, reversed
in part, and remanded to the district court (ECF No. 279). See INSERT CITE TO 9TH CIRCUIT
CASE.
At a hearing held February 2, 2004, the district court acknowledged the Ninth Circuit’s
decision reversing and remanding for retrial the seven 924(c) counts, and set a new trial for
February 17, 2004 before Judge Coyle (ECF No. 276).
Without filing a notice, in February and again in May 2004, Arnett moved to dismiss the
indictment (ECF No. 277) or, alternatively, transfer the case to the District of Oregon (ECF No.
283). The district court ordered Defendant to comply with the court’s notice requirement (ECF Nos.
285, 289), and Arnett filed an amended notice of his motion and a motion to dismiss the indictment
based on the double jeopardy clause of the U.S. Constitution, or, in the alternative, transfer the case
to the District of Oregon (ECF No. 292), which the government opposed (ECF No. 295).
Subsequent to a hearing held September 27, 2004, Judge Coyle granted Defendant’s motion for
self-representation (ECF No. 302).
Subsequent to a hearing held October 4, 2004 (ECF No. 303), on Defendant’s motion to
dismiss the indictment or, alternatively, to transfer the case to the District of Oregon (ECF No.
292), and also on Defendant’s motion requesting that the Clerk of Court date, sign, and file his
interlocutory notice of appeal (ECF No. 291), Judge Coyle rendered an Order denying Defendant’s
motions (ECF No. 304).
Fourth Appeal
On October 14, 2004, Defendant filed a notice of appeal to the Ninth Circuit of the district
court’s order denying his motion to dismiss the indictment (ECF No. 306, “the fourth appeal”),
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relative to which the Ninth Circuit issued case number 04-10575 (ECF No. 313). In November
2004, Defendant filed a notice of motion and motion to dismiss the indictment on the grounds that
it failed to state a Section 924 (c)(1) offense, as well as a notice of motion and motion to stay the
trial pending the outcome of his application for a stay from the Ninth Circuit (ECF Nos. 309, 310).
The Ninth Circuit denied these motions (ECF No. 321).
As such, on November 22, 2004, Judge Coyle denied Defendant’s motion to stay the trial
pending the outcome of the Ninth Circuit’s review of that motion (ECF No. 324); to dismiss the
indictment (ECF No. 325); and, his request for the return of the collected assessments and court
costs (ECF No. 323).
Fifth Appeal
About the latter (ECF No. 323), Defendant filed a notice of appeal to the Ninth Circuit (ECF
No. 328, “the fifth appeal”), about which the circuit court issued case number 04-10650 (ECF No.
335).
On November 29, 2004, Defendant Arnett again filed a notice of motion and motion to
dismiss the indictment on the grounds that it failed to allege the requisite mens rea (ECF No. 326),
which the district court denied (ECF No. 336). Judge Coyle ordered that the Federal Defender’s
Office (“FDO”) appoint stand-by counsel to assist defendant for a limited purpose (ECF No. 339),
and attorney Robert Rainwater was added as stand-by counsel (ECF No. 352). At a status
conference on February 28, 2005, a jury trial was set for April 25, 2005 (ECF No. 356).
On March 4, 2005, Defendant Arnett moved for new stand-by counsel (ECF No. 358), and
on that motion the Court held a hearing on March 14, 2005 (ECF No. 363). Also, on March 9,
2005, Defendant moved to dismiss the indictment on the grounds of a violation of his Fourth
Amendment Rights, and requested the court’s permission to be heard on two more pretrial motions
(ECF No. 359, 360). Next, on March 15, 2005, Arnett moved to suppress his confession (ECF No.
364). The next day, Arnett moved to allow independent inspection of the shotgun and to postpone
trial (ECF No. 366). On March 21, 2005, Judge Coyle held a hearing on the motions to dismiss and
to inspect the firearm (ECF Nos.359, 366), and subsequently continued the jury trial to June1, 2005
(ECF No. 372). On March 28, 2005, Judge Coyle held a hearing on the motion to suppress Arnett’s
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confession (ECF No. 379), and the following day relieved the FDO as advisory counsel (ECF No.
377).
Case Transferred to Judge Wanger
On March 30, 2005, the Clerk of Court transferred the action from Senior Judge Coyle’s
docket to the docket of Judge Oliver W. Wanger, and Judge Coyle subsequently rendered an Order
transferring the action to Judge Wanger’s docket for all further proceedings (ECF Nos. 378, 384).
On April 14, 2005, Defendant Arnett filed a notice of Writ and Petition for Writ of Mandamus
(ECF No. 380). On May 11, 2005, Judge Wanger rendered an Order denying Defendant’s motion to
dismiss the indictment (ECF Nos. 359, 388). At a motions hearing before Judge Wanger held on
May 16, 2005, the Court granted the motion to continue the jury trial, set a motions hearing and
trial confirmation hearing for July 11, 2005, and set trial for August 2, 2005 (ECF No. 392).
On May 20, 2005, Defendant filed a supplemental motion to suppress his confession (ECF
No. 396), about which he filed a response four days later (ECF No. 397). In June and July 2005,
Defendant filed various motions in limine, which the Court denied (ECF Nos. 447, 448, 451, 453-
455). At the status conference held June 30, 2005, Defendant moved to continue the trial, which the
Court denied (ECF No. 418). On July 7, 2005, Defendant again moved to dismiss the indictment
(ECF No. 430), which the Court denied (ECF No. 454). Judge Wanger held a motions hearing on
July 11 and 12, 2005, and subsequently set the jury trial for August 3, 2005. (ECF Nos. 441, 445).
On July 29, 2005, Defendant filed a notice of motion and motion to vacate under 28 U.S.C.
2255, and related motions (ECF Nos. 464-467), which the Court dismissed as premature (ECF No.
504). At a hearing on August 2, 2005 regarding Defendant’s motion to suppress, Defendant
withdrew those motions (ECF No. 469).
Second Trial
On August 3, 2005, a jury trial commenced and ultimately spanned five days before Judge
Wanger (ECF Nos. 472; 512-517, Transcripts of Jury Trial Days one through five). On August 8,
2005, Judge Wanger rendered an Order (ECF No. 477) in which the Court denied Defendant’s
motions to suppress (ECF No. 364, 396), and denied the two remaining motions in limine (ECF No.
398, 407). The jury began deliberations on August 9, 2005, and the matter continued to August 10,
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2005 (ECF No. 479, 480). On August 10, 2005, the jury returned a guilty verdict as to Counts 2, 4,
6, 8, 10, 12, 14—all seven counts—and sentencing was set for October 24, 2005 (ECF No. 480,
485-489, 492).
On August 16, 2005, Defendant moved for appointment of counsel and a new trial (ECF
No. 494). The district court granted Arnett’s request for counsel in preparation of the motion for
new trial, and set a status conference for August 29, 2005 (ECF No. 497, 498). On September 13,
2005, the district court entered judgment as to Defendant Arnett (ECF No. 505).
Resolution of Third Appeal
On September 28, 2005, the Court of Appeals for the Ninth Circuit affirmed the district
court as to the third appeal (Case No. 00-10170). See ECF No. 509.
On December 5, 2005, Defendant moved for a new trial pursuant to Rule 33 (ECF No. 521);
a notice of motion and application for personal subpoena and subpoena duces tecum to be served
(ECF No. 523); and a notice of motion and demand for a speedy trial, or, alternatively, to dismiss
the indictment with prejudice for noncompliance with the speedy trial act, appointment of counsel
for this purpose, and an evidentiary hearing (ECF No. 524). On February 3, 2006, Defendant
moved to vacate his motion to withdraw substitution (ECF No. 535), and three days later he filed a
motion to withdraw his motion for substitution of counsel (ECF No. 539).
On February 16, 2006, Defendant filed a notice and ex parte application for an immediate
order to the Fresno County Jail to provide him with 8 hours of library time, and access to a
typewriter (ECF No. 541), which the Court granted (ECF No. 540). Also on February 16, 2006,
Defendant filed a notice of motion and “Defendant’s Objections” to Judge Wanger’s authority to
preside over the proceedings (ECF No. 542). On February 27, 2006, Defendant filed the following:
a notice and ex parte “renewed application for the tools necessary, in the 21st century, to perfect
Defendant’s appeal to the Ninth Circuit” (ECF No. 550); and a notice and “Defendant’s motion to
stay any further proceedings until the Court of Appeals rules on his petition to modify and/or recall
mandate” (ECF No. 551). On March 1, 2006, Defendant filed the following: a notice and “appellate
record supporting Defendant’s prior motions to dismiss indictment” (ECF No. 552); and, a notice
and supporting exhibits regarding objections to his presentence report (ECF No. 555). On March 2,
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2006, Defendant filed a notice and ex part declaration in support of Defendant’s request that the
court recommend U.S.P. Lompoc for Defendant’s incarceration and for the resources necessary for
a perfect [sic] an appeal” (ECF No. 553); and a notice and Defendant’s objection to his presentence
report (ECF No. 554).
The Court held a status conference before Judge Wanger on March 3, 2006, setting
deadlines and a date for a motions hearing (ECF No. 556). On March 7, 2006, the Court denied
Defendant’s application for an order to the Bureau of Prisons (ECF Nos. 500, 559).
On March 10, 2006, Defendant filed a motion for a new trial (ECF No. 561).
Third Appeal: No Recalled Mandate
On March 20, 2006, the Court of Appeals for the Ninth Circuit denied Defendant’s motion
to recall the mandate in Case No. 00-10170. See ECF No. 563.
On April 6, 2006, Defendant filed a notice of motion and a request for discovery (ECF No.
564). On April 25, 2006, Defendant filed a notice and amended objection to the presentence report
(ECF No. 565). On April 28, 2006, Defendant filed various notices and applications (ECF Nos.
564-571), including a notice and Defendant’s additional declarations in support of his motion to
dismiss the indictment (ECF No. 569). On May 5, 2006, Defendant filed a notice and application to
be released on his own recognizance (ECF No. 570). On May 18, 2006, Defendant filed a motion
for leave of the Court to file another sentencing objection (ECF No. 578). On May 23, 2006,
Defendant filed a supplemental motion for a new trial (ECF No. 584). On May 24, 2006, Defendant
filed a notice and additional documents in support of his motion to dismiss the indictment (ECF No.
587).
Resolution of the Fourth Appeal
About the fourth appeal (Case No. 04-10575), the Court of Appeals for the Ninth Circuit on
May 22, 2006, affirmed the district court’s denial (see ECF Nos. 304) of Defendant’s motion to
dismiss the indictment based on the double jeopardy clause. See ECF No. 646.
On May 24, 2006, Judge Wanger continued the previously set hearings to June 8, 2006
(ECF No. 585). Due to an ongoing, unrelated trial, the Court vacated the motions hearing and
advised that a new date would be forthcoming (ECF No. 589).
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On July 5, 2006, the Court denied Defendant’s motion objecting to Judge Wanger’s
authority to preside over proceedings (ECF No. 593). The Court held a motions hearing on July 7,
2006, at which Judge Wanger denied Defendant’s motions to dismiss the indictment, denied the
motion for case assignment, and continue oral argument on the motion for a new trial to July 20,
2006, and set sentencing for that same date (ECF No. 595). The Court held the motions hearing as
scheduled on July 20, 2006 (ECF No. 600). On July 17, 2006, Judge Wanger denied Defendant’s
motion to be released on his own recognizance (ECF No. 601).
On July 17, 2006, Defendant filed the following: an ex parte application for an order
direction the U.S. Marshals to transport or ship Defendant’s legal documents to his place of
incarceration (ECF No. 606); and, an application for Judge Wanger to depose Deputy Clerk R. Balli
on the record regarding Defendant’s motion to dismiss the indictment (ECF No. 607). On July 18,
2006, the Court: denied Defendant’s application to be free from shackling during all judicial
proceedings (ECF Nos. 566, 602); and, denied Defendant’s ex parte renewed application “for tools
necessary in the 21st century” (ECF Nos. 550, 604).
On July 19. 2006, Defendant filed a notice and “Motion to Vacate the Jury’s Verdict for
Failure to Find Section 924 (c)(1)’s Jurisdictional Element at Trial” (ECF No. 605).
On July 20, 2006, the Court rendered an Order (ECF No. 608) denying the following:
Defendant’s motion for a speedy trial or to dismiss the indictment (ECF No. 524); his request for
discovery (ECF No. 564); requests for subpoenas (ECF Nos. 523, 575, 577); and his application to
publish a prior decision (ECF No. 536).
Sentencing After Guilty Verdict on All Counts Subsequent to Second Jury Trial
On July 20, 2006, Judge Wanger sentenced Defendant Arnett to be imprisoned for a total
term of 1,772 months, consisting of: 109 months on seven counts of Armed Bank Robbery (18
U.S.C. 2113(a) and (d)) (Counts 1, 3, 5, 7, 9, 11, 13) (to be served concurrently with each other);
terms of 240 months on seven counts of Use of a Firearm During a Crime of Violence (18 U.S.C.
924(c)(1)) (Counts 2, 4, 6, 8, 10, 12, 14) (to be served consecutively to each other and consecutive
to the terms imposed in the odd-numbered counts); the sentence imposed to be served concurrently
with the terms imposed in the District of Oregon; Defendant shall receive a 17 month credit for
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time served; a $700 special assessment; 60 months supervised release on Counts 1, 3, 5, 7, 8, 11,
13, to be served concurrently; and, $101,859.78 restitution. See ECF No. 611; 613 (Judgment and
Commitment).
On July 21, 2006, the Court denied Defendant’s motion for a new trial (ECF Nos. 561, 610).
On July 25, 2006, Defendant filed a motion for reconsideration (ECF No. 614), which the
Court denied (ECF No. 618). On July 26, 2006, Defendant filed a notice and application for the
Court to correct his sentence for clear error (ECF No. 616), which the Court denied (ECF No. 625).
On July 31, 2006, Defendant filed the following: a notice and application for reconsideration of the
Court’s order denying his motion to vacate his conviction (ECF No. 619); and, a notice and
application for reconsideration of the Court’s order denying him 21st century tools (ECF No. 620).
On August 4, 2006, the Court rendered orders (ECF Nos. 624, 626, 627) denying a number of
Defendant’s previous motions, notices, and applications (ECF Nos. 599, 607, 607).
Sixth Appeal
On July 31, 2006, Defendant filed a notice of appeal of the judgment and commitment (ECF
Nos. 621, 622, “the sixth appeal”). As to this sixth appeal, the Ninth Circuit assigned case number
06-10483 (ECF No. 629). The circuit court ordered Defendant and his counsel to clarify issues
related to appointment of counsel (ECF No. 631). Arnett again requested leave to represent himself
on appeal, and Arnett’s appointed advisory counsel at the FDO moved to withdraw. See ECF No.
650. On November 1, 2006, the Court of Appeals for the Ninth Circuit granted counsel’s motion to
withdraw and Arnett’s request to represent himself. Id.
On October 30, 2006, Defendant filed a motion to dismiss the indictment based on the
government’s noncompliance with the speedy trial act (ECF No. 647), which the district court
denied (ECF No. 648). On June 14, 2007, the district court dismissed without prejudice Arnett’s
motion to vacate pursuant to 28 U.S.C. § 2255 as premature (ECF No. 654).
On August 27, 2007, the Court of Appeals for the Ninth Circuit granted the parties’ joint
motion to remand as to the sixth appeal, Case No. 06-10483 (ECF No. 657). The Ninth Circuit
vacated Defendant’s sentence, denied the motion to stay the appeal, and remanded to the district
court for the purpose of re-sentencing Defendant. Id.
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The government filed a Rule 35(b) motion for a reduction in sentence on the basis of
Petitioner’s substantial assistance. On August 30, 2007, Defendant filed a request for an
appointment of counsel (ECF No. 658), which the Court granted and added attorney David M.
Porter, at the FDO, as Arnett’s counsel for all future proceedings (ECF No. 660).
At re-sentencing on September 10, 2007, pursuant to the government’s Rule 35(b) motion,
Judge Wanger sentenced Defendant Arnett to be imprisoned for 180 months as to each of Counts
One through Fourteen, to be served concurrently with each other and concurrent to the 27-month
term imposed in Count One of Case No. CR-95-60120-1 in the District of Oregon, and consecutive
to the 120 months imposed in Count Two of Case No. CR-95-60120-1 in the District of Oregon—
for a total term of imprisonment of 300 months; 60 months supervised release; a $700 special
assessment; and, $101,859.78 restitution. See ECF No. 664 (Sentencing Minutes), No. 665 (Second
Amended Judgment and Commitment).
On January 9, 2009, Defendant filed a notice and a “Motion/Application for a Statement
from Court in Respect to Defendant’s Placement in a Residential Re-Entry Center” (ECF No. 666),
which the Court denied (ECF No. 667).
On July 7, 2009, Defendant filed a notice of motion to amend Defendant’s Second
Amended Judgment (ECF No. 668), which the government opposed (ECF No. 670). On August 19,
2009, the Court denied Defendant’s motion to amend the judgment (ECF No. 673).
Case Assigned to Judge Lawrence J. O’Neill
In January 2014, Defendant filed a letter to the Court, and the case was reassigned to the
undersigned (ECF No. 675, 676). Finding good cause absent, the Court denied Defendant’s request
(ECF No. 676). On September 18, 2014, Defendant filed a motion to modify the conditions of his
release (ECF No. 677). Where the government was not opposed, the Court modified a condition of
release (ECF No. 678). On December 16, 2014, attorney David Porter filed a request to be relieved
as counsel (ECF No. 679), which the Court denied as moot (ECF No. 680).
Seventh Appeal
On June 26, 2015, Defendant filed a notice of motion and motion to modify his conditions
of release (ECF No. 681), which the Court denied (ECF No. 682). On July 20, 2015, Defendant
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filed a notice of appeal (ECF No. 683, 685, “the seventh appeal”). He was granted leave to proceed
in forma pauperis (ECF No. 684, 687). The Ninth Circuit assigned case number 15-10379 (ECF
No. 686). On the basis of Arnett’s motion for voluntary dismissal, on March 7, 2016, the Ninth
Circuit dismissed the seventh appeal (ECF No. 688).
Before this Court
On April 8, 2016, Defendant filed the instant “Motion Requesting Court to Hold
Evidentiary hearing Compelling Third-Party Rule 35(b) Sentence Reduction” (ECF No. 689), and
“Motion to Compel Production of United States Attorney’s Office Policies Regarding Third-Party
Substantial Assistance Motions” (ECF No. 690). The government filed its Opposition on May 4,
2016 (ECF No. 692), to which Defendant replied on May 23, 2016 (ECF No. 693).
The matter is ripe for review.
II. LEGAL STANDARD
A district court “may modify an imposed term of imprisonment to the extent ... expressly
permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure [“Rule 35(b)”].” 18
U.S.C. § 3582(c)(1)(B). Based on a defendant providing post-sentencing substantial assistance to
the government, Rule 35(b) permits courts, upon a motion from the government, to reduce a
defendant’s sentence. Fed. R. Crim. P. 35(b); see United States v. Quach, 302 F.3d 1096, 1102 (9th
Cir. 2002).
Rule 35(b) has two enumerated provisions. The first provides that “[u]pon the government’s
motion made within one year of sentencing, the court may reduce a sentence if the defendant, after
sentencing, provided substantial assistance in investigating or prosecuting another person.” Fed. R.
Crim. P. 35(b)(1). Second, Rule 35(b)(2) provides that “[u]pon the government’s motion made
more than one year after sentencing, the court may reduce a sentence if the defendant’s substantial
assistance involved”:
(A) information not known to the defendant until one year or more after sentencing;
(B) information provided by the defendant to the government within one year of
sentencing, but which did not become useful to the government until more than one
year after sentencing; or
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(C) information the usefulness of which could not reasonably have been anticipated by
the defendant until more than one year after sentencing and which was promptly
provided to the government after its usefulness was reasonably apparent to the
defendant.
Fed. R. Crim. P. 35(b)(2).
Generally summarized, “Rule 35(b) permits a post-sentence reduction if the Government so
moves and if there is substantial assistance.” United States v. Tadio, 663 F.3d 1042, 1052 (9th Cir.
2011) (citation omitted) (emphasis in original).
III. DISCUSSION
Petitioner Arnett requests the Court to (1) compel the government to move for a sentence
reduction pursuant to Rule 35(b), see ECF No. 689, and to compel production of the United States
Attorney’s office policies regarding third-party substantial assistance motions, see ECF No. 690.
A. Hearing
Petitioner requests the Court “Hold [an] Evidentiary Hearing Compelling Third-Party Rule
35(b) Sentence Reduction.” ECF No. 689. However, the Court deems the matter appropriate for
resolution without an evidentiary hearing. No hearing is required for such motions. See, e.g., United
States v. Vangundy, 289 F.R.D. 498, 500 (S.D. Cal. 2013) (citing Tadio, 663 F.3d 1042)). To this
extent, Petitioner’s motion is DENIED.
B. Motion to Compel a Rule 35(b) Motion
Petitioner requests that the Court compel the government to file a Rule 35(b) motion.
Turning to the provisions of Rule 35(b)(2),2each of its articulated sections refer to a petitioning
defendant having provided post-sentencing “information” to the government. Here, however,
Petitioner Arnett does not claim to have done this. See, generally, ECF No. 689. Rather, he claims
to have influenced the cooperation of another defendant in a different case. Id. at 5. Petitioner
describes “explaining” to another defendant in prison “the difficult ... situation [the other
defendant] was in,” giving that defendant advice about “what the conspiracy laws meant,” and
opining that the other defendant “would be convicted if he proceeded to trial and would spend the
2
Because any Rule 35(b) motion filed by the government in this case would necessarily occur more than one year after
Petitioner’s sentencing on September 10, 2007, the Court finds that Rule 35(b)(1) is inapt, and only Rule 35(b)(2) could
apply. See, e.g., Sanchez-Beltran, 2015 WL 4481556, at *2-4.
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rest of his life in prison (unless he fully cooperated with [the government] in the investigation and
prosecution)” of the alleged crime in that case. ECF No. 689 at 7:4-10.
Notably absent from this factual scenario is a claim to have provided “information not
known to the defendant until one year or more after sentencing.” Fed. R. Crim. P. 35(b)(2)(A). Nor
does Petitioner allege that within one year of sentencing he provided “information ... which did not
become useful to the government until more than one year after sentencing.” Id. at (b)(2)(B).
Neither does Petitioner claim that he provided “information the usefulness of which could not
reasonably have been anticipated by the defendant until more than one year after sentencing and
which was promptly provided to the government after its usefulness was reasonably apparent to the
defendant.” Id. at (b)(2)(C).
The government in its opposition contends that Arnett did not provide substantial assistance
to the government, and “was not working for or acting at the direction of [any involved AUSA].”
Gov’t Response, ECF No. 692 at 1:25-26. The government characterizes Arnett’s actions as
“providing assistance to another inmate’s defense attorney ... for that inmate’s own benefit.” Id. at
1:23-24. The Court gives substantial weight to the government’s assessment that Petitioner did not
provide substantial assistance under Rule 35(b)(2). See U.S.S.G. § 5K1.1, comment (n.3)
(“[s]ubstantial weight should be given to the government’s evaluation of the extent of the
defendant’s assistance, particularly where the extent and value of the assistance are difficult to
ascertain.”); see also United States v. Awad, 371 F.3d 583, 586-87 (9th Cir. 2004) (acknowledging
the sentencing court has “wide latitude” to evaluate “the significance and usefulness of the
defendant’s assistance,” but directing sentencing judges “to give substantial weight to the
government’s evaluation of that assistance” (citing U.S.S.G. MANUAL § 5K1.1, (a)(1), cmt. 3,
cmt. background).
The Court concludes that it is fatal to Petitioner’s motion that, even accepting Petitioner’s
facts as true that he held sway over another defendant’s decision to cooperate with the government,
there is no evidence to indicate that he provided post-sentencing “information,” as Rule 35(b)(2)
requires. See Fed.R.Crim.P. 35(b)(2). There is no basis for compelling the government to file a
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Rule 35(b) motion where “[a] district court may not grant a Rule 35(b) motion unless a defendant
has provided substantial assistance to the government.” Tadio, 663 F.3d at 1047.
Notwithstanding that fatal flaw, Petitioner also alleges that he is entitled to a compelled
motion for a sentence reduction because the government “acted arbitrarily and in bad faith in failing
to file a Rule 35(b)(2)(A) motion,” ECF No. 689 at 2:9-11. Petitioner is not so entitled. See, e.g.,
United States v. Ramirez-Ortiz, 143 F. Supp. 3d 1062, 1062 (S.D. Cal. 2015). A downward
departure for substantial assistance is “never guaranteed.” United States v. Leonti, 326 F.3d 1111,
1119 (9th Cir. 2003) (citing Quach, 302 F.3d at 1103 n.3); see also Wade v. United States, 504 U.S.
181, 185 (1992) (The government has “a power, not a duty, to file a motion when a defendant has
substantially assisted.”). There are bounds to this discretion, and “the government may rightfully
decline to file a substantial assistance motion for any reason, so long as its decision is not arbitrary,
based on an unconstitutional motive, or made in bad faith. Leonti, 326 F.3d at 1119 (citing Quach,
302 F.3d at 1103 n. 3; United States v. Murphy, 65 F.3d 758, 762 (9th Cir. 1995)).
Moreover, even if a petitioner has provided substantial assistance—though here the Court
finds otherwise—that, and “additional but generalized allegations of improper motive,” does not
entitle him to relief. Wade, 504 U.S. at 186. Rather, a petitioner must make a “substantial threshold
showing” by stating a claim involving “evidence ‘that the Government refused to file a motion for
suspect reasons such as his race or his religion,’ or that ‘the prosecutor’s refusal to move was not
rationally related to any legitimate Government end.’” United States v. Treleaven, 35 F.3d 458, 461
(9th Cir. 1994) (citation omitted). In Treleaven, the Ninth Circuit articulated specific examples of a
“substantial threshold showing”:
Circuit courts have held that a defendant has made such a showing where the
government’s refusal to move for a substantial assistance departure was a
retaliation for his decision to exercise his constitutional right to a trial, United
States v. Paramo, 998 F.2d 1212, 1219-20 (3d Cir. 1993), cert. denied, 510
U.S. 1121 (1994); where the government’s refusal constituted a breach of its
plea agreement, United States v. De La Fuente, 8 F.3d 1333, 1340 (9th Cir.
1993) (allowing courts to order specific performance in such circumstances);
and where the government’s refusal was an attempt to ensure a defendant’s
continued cooperation, despite his presentence cooperation. United States v.
Drown, 942 F.2d 55, 59 (1st Cir. 1991).
Id.
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Petitioner makes no such showing. For his efforts undertaking an advisory relationship with
the other defendant, Petitioner admits he simply “believed” that the government would file a Rule
35(b) motion. See ECF No. 689 at 7:4-10. He concedes that he “was not told” this, and nowhere
does he allege that anyone promised him anything for his role influencing the other defendant. Id.
As the procedural history shows, the government decided to file a Rule 35(b) motion in
2007 even after Petitioner had exercised his right to trial, and brought various appeals. Petitioner
does not allege that the government is retaliating against him for exercising his constitutional right
to a trial. See, e.g., Paramo, 998 F.2d 1212; see also Murphy, 65 F.3d 758, 762-63 (9th Cir. 1995)
(finding the district court could not depart from the sentencing guidelines based only on an
unproved allegation of retaliation). Also, Petitioner does not allege that the government breached a
plea agreement, as in De La Fuente, 8 F.3d at 1335. Finally, because Petitioner admits that the
government never mentioned a Rule 35(b) motion to him, he concedes that the government could
not have used such a motion as incentive to garner his influence with the other defendant. In other
words, Petitioner does not allege that the government coerced his cooperation, as in Drown, 942
F.2d at 59.
To support his argument that the government makes arbitrary decisions on Rule 35(b)
matters, Petitioner attacks the government’s 2007 decision to file a Rule 35(b) motion, on the basis
of which the Court at re-sentencing imposed a significantly reduced sentence (to 300, down from
1,772 months). Despite the substantial benefit of a 1,472 month reduction in his sentence, Petitioner
argues that because the government had previously decided to move for a sentence reduction in
2007, but does not so move in 2016, these different outcomes somehow illustrate that the
government’s decision-making relative to Rule 35(b) motions is arbitrary.
This argument strains credulity. Petitioner emphasizes that the government’s decisions in
2007 and 2016 are both arbitrary, but does not ask to disturb the decision favorable to him. He only
asks that the Court second-guess the decision that he does not like. Rather than arbitrary, the Court
finds it rational for the government when faced with one set of facts to reach one conclusion, and
subsequently, on a different set of facts, to reach a different conclusion. Cf. United States v.
Phillips, 637 F. App’x 372, 373 (9th Cir. 2016) (finding that “[i]t was rational for the government
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to conclude that Defendant is not entitled to a further sentencing reduction,” when “in the interim,”
the government learned new facts).
Ultimately, Petitioner’s conclusory allegations of an improper motive are insufficient.
Petitioner has failed to make a “substantial threshold showing” that the government acted with an
improper motive not “rationally related to any legitimate Government end.” Treleaven, 35 F.3d at
461. Petitioner fails to demonstrate any evidence to establish that the government’s refusal to move
under Rule 35(b) is based on anything other than “its rational assessment of the cost and benefit
that would flow from moving.” Wade, 504 U.S. at 187; see, e.g., Sanchez-Beltran v. United States,
No. 07-CV-02098-JF (LHK), 2015 WL 4481556, at *2-4 (N.D. Cal. July 22, 2015) (finding that the
petitioner failed to meet his burden to provide any evidence establishing that the government’s
refusal to move under Rule 35(b) is based on anything other than “its rational assessment of the
cost and benefit that would flow from moving,” (citing Wade, 504 U.S. at 187), and denying the
petitioner’s motion to compel the government to move under Rule 35(b)); see also United States v.
Samuel, No. CR 06-295-R, 2008 WL 3978126, at *1 (C.D. Cal. Aug. 27, 2008) (“The Court will
not second-guess the government’s evaluation of defendant’s post-sentencing cooperation when, as
is the case here, there is no evidence that the government’s decision not to file a Rule 35(b) motion
was made arbitrarily or in bad faith.”)
In all his arguments that he is entitled to a sentence reduction, apparently lost on Petitioner
is the basis for the sentence he is serving: his convictions. Petitioner’s convictions are not lost on
the Court. Any analysis of the extent of an appropriate sentence reduction made under Rule 35(b)
must be made “against the backdrop of a defendant’s original sentence.” Tadio, 663 F.3d at 1053.
2011). Subsequent to a jury trial at which he pled not guilty, the jury found Petitioner Timothy
Wayne Arnett guilty of seven counts of Armed Bank Robbery (18 U.S.C. 2113(a) and (d)) (Counts
1, 3, 5, 7, 9, 11, 13); and seven counts of Use of a Firearm During a Crime of Violence (18 U.S.C.
924(c)(1)) (Counts 2, 4, 6, 8, 10, 12, 14); for which he was sentenced to 1,772 months. Upon the
government’s motion, the Court re-sentenced Arnett to a 300-month term of imprisonment.
The Court declines to compel the government to move for an additional reduction in
sentence.
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IV. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Petitioner’s motion to compel
the government to move under Rule 35(b) (ECF No. 689) is DENIED.
Therefore, IT IS FURTHER ORDERED that Petitioners motion to compel production of
the United States Attorney’s office policies regarding third-party substantial assistance motions
(ECF No. 690) is DENIED as moot.
The Clerk of Court is DIRECTED to TERMINATE the Petitioner Defendant and CLOSE
THE CASE.
IT IS SO ORDERED.
Dated: July 11, 2016 /s/ Lawrence J. O’Neill _____
UNITED STATES CHIEF DISTRICT JUDGE
Case 1:95-cr-05287-LJO Document 694 Filed 07/12/16 Page 18 of 18 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca4-15-01641/USCOURTS-ca4-15-01641-0/pdf.json | [
[
"Hephzibah Bates",
"Appellant"
],
[
"Valery Brown",
"Appellee"
],
[
"Virginia Credit Union, Inc.",
"Appellee"
]
] | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1640
HEPHZIBAH BATES, a/k/a Hattie Tea Jenkins Bates,
Plaintiff - Appellant,
v.
CHARLIE DICKENS; CHARLOTTE DICKENS,
Defendants – Appellees.
No. 15-1641
HEPHZIBAH BATES,
Plaintiff - Appellant,
v.
VALERY BROWN; VIRGINIA CREDIT UNION, INC.,
Defendants – Appellees.
No. 15-1642
HEPHZIBAH BATES,
Plaintiff - Appellant,
v.
Appeal: 15-1641 Doc: 10 Filed: 10/15/2015 Pg: 1 of 10
2
MELVIN HUGHES; BERNADETTE BATES THOMPSON,
Defendants – Appellees.
No. 15-1643
HEPHZIBAH BATES,
Plaintiff - Appellant,
and
IRENE ELIZABETH JENKI BATES,
Plaintiff,
v.
IRENE C. DICKENS; VALERY BROWN; FAY BATES; BEVERLY MONROE;
MARY JEFFERIES; ALVIN A. BATES, JR.; BERNADETTE THOMPSON;
BARBARA BATES; BRENDA BATES,
Defendants – Appellees.
No. 15-1644
HEPHZIBAH BATES,
Plaintiff - Appellant,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Investigators
Department,
Defendant – Appellee.
Appeal: 15-1641 Doc: 10 Filed: 10/15/2015 Pg: 2 of 10
3
No. 15-1645
HEPHZIBAH BATES,
Plaintiff - Appellant,
v.
UNITED STATES POST OFFICE,
Defendant – Appellee.
No. 15-1646
HEPHZIBAH BATES,
Plaintiff - Appellant,
v.
FAY DAMON; RICHMOND POLICE DEPARTMENT/OFFICER,
Defendants – Appellees.
No. 15-1647
HEPHZIBAH BATES,
Plaintiff - Appellant,
v.
CHADWICK BOSEMAN, a/k/a Charles Brown,
Defendant – Appellee.
Appeal: 15-1641 Doc: 10 Filed: 10/15/2015 Pg: 3 of 10
4
No. 15-1648
HEPHZIBAH BATES,
Plaintiff - Appellant,
v.
EQUIFAX CREDIT UNION; RICHMOND POLICE DEPARTMENT/OFFICER,
Defendants – Appellees.
No. 15-1649
HEPHZIBAH BATES,
Plaintiff - Appellant,
v.
MEDICAL COLLEGE OF VIRGINIA HOSPITALS,
Defendant – Appellee.
No. 15-1650
HEPHZIBAH BATES,
Plaintiff - Appellant,
v.
CLERK, SUPREME COURT OF VIRGINIA,
Defendant – Appellee.
Appeal: 15-1641 Doc: 10 Filed: 10/15/2015 Pg: 4 of 10
5
No. 15-1651
HEPHZIBAH BATES,
Plaintiff - Appellant,
v.
US MARSHALS,
Defendant – Appellee.
No. 15-1652
HEPHZIBAH BATES,
Plaintiff - Appellant,
v.
MR. JOHN L. NEWBY, II, Office of the Commissioner,
Department of Veterans Services,
Defendant – Appellee.
No. 15-1653
HEPHZIBAH BATES,
Plaintiff - Appellant,
v.
JEFFREY LACKER, President, The Federal Reserve Bank of
Richmond,
Defendant – Appellee.
Appeal: 15-1641 Doc: 10 Filed: 10/15/2015 Pg: 5 of 10
6
No. 15-1654
HEPHZIBAH BATES,
Plaintiff - Appellant,
v.
JEFFREY LACKER, President, The Federal Reserve Bank of
Richmond,
Defendant – Appellee.
No. 15-1655
HEPHZIBAH BATES,
Plaintiff - Appellant,
v.
EMPLOYEES, VIRGINIA CAPITOL POLICE DEPARTMENT,
Defendant - Appellee.
Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:14-cv-00680-REP; 3:14-cv-00756-REP; 3:14-cv00763-REP; 3:14-cv-00769-REP; 3:14-cv-00770-REP; 3:14-cv-00781-
REP; 3:14-cv-00842-REP; 3:14-cv-00843-REP; 3:14-cv-00844-REP;
3:15-cv-00063-REP; 3:15-cv-00095-REP; 3:15-cv-00109-REP; 3:15-
cv-00110-REP; 3:15-cv-00193-REP; 3:15-cv-00232-REP; 3:15-cv00233-REP)
Submitted: September 4, 2015 Decided: October 15, 2015
Appeal: 15-1641 Doc: 10 Filed: 10/15/2015 Pg: 6 of 10
7
Before WYNN and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Hephzibah Bates, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
Appeal: 15-1641 Doc: 10 Filed: 10/15/2015 Pg: 7 of 10
8
PER CURIAM:
Hephzibah Bates appeals the district court’s order issuing
a prefiling injunction, which was ordered in response to sixteen
consolidated complaints filed by Ms. Bates. The court
justifiably found those complaints to be frivolous, delusional,
and “untethered to reality.” (Ms. Bates alleges that she is the
“Fold” of the Queen of England and has been deprived of rights
due to the occupant of that fanciful position.) However, we find
that the district court’s order did not sufficiently consider
all factors necessary for the issuance of a prefiling
injunction, and that, in any case, that injunction – which
ordered the court clerk “to accept no filings from Hephzibah
Bates” – was overbroad.
We review a district court’s issuance of a prefiling
injunction for abuse of discretion. Cromer v. Kraft Foods N.
Am., Inc., 390 F.3d 812, 817 (4th Cir. 2004). Nevertheless, this
“drastic remedy” must be used in a manner “consistent with
constitutional guarantees of due process of law and access to
the courts.” Id. Accordingly,
[i]n determining whether a prefiling injunction is
substantively warranted, a court must weigh all the
relevant circumstances, including (1) the party's
history of litigation, in particular whether he has
filed vexatious, harassing, or duplicative lawsuits;
(2) whether the party had a good faith basis for
pursuing the litigation, or simply intended to
harass; (3) the extent of the burden on the courts
Appeal: 15-1641 Doc: 10 Filed: 10/15/2015 Pg: 8 of 10
9
and other parties resulting from the party's filings;
and (4) the adequacy of alternative sanctions.
Id. at 818. Furthermore, even where a prefiling injunction has
been deemed warranted pursuant to a consideration of all of the
above factors, “the judge must ensure that the injunction is
narrowly tailored to fit the specific circumstances at issue.
. . . Absent this narrowing, a prefiling injunction . . . will
not survive appellate review.” Id.
Here, although the district court appears to have
considered the first three of the above factors, it does not
appear to have considered the fourth – the adequacy of
alternative sanctions, such as a finding of contempt. Moreover,
the injunction is in no way narrowly tailored, as it aims to
prevent Ms. Bates from making any future filings, in related or
unrelated cases, in the Eastern District of Virginia. The
opinion states that “Bates has been forever enjoined from filing
further similar actions in this Court.” To the extent the word
“similar” is an attempt to limit the reach of the court’s
injunction, it is too vague to bring the injunction within the
bounds of due process. Moreover, this limiting language appears
nowhere in the text of the notice delivered to Ms. Bates, which
states that the court clerk has been ordered “to accept no
filings from Hephzibah Bates.”
Appeal: 15-1641 Doc: 10 Filed: 10/15/2015 Pg: 9 of 10
10
We vacate and remand for reconsideration in conformance
with the guidelines set forth in Cromer v. Kraft Foods N. Am.,
Inc., 390 F.3d 812 (4th Cir. 2004).
VACATED AND REMANDED
Appeal: 15-1641 Doc: 10 Filed: 10/15/2015 Pg: 10 of 10 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_05-cv-01220/USCOURTS-caed-2_05-cv-01220-0/pdf.json | [
[
"David Runnels",
"Respondent"
],
[
"Robert Jonathan White",
"Petitioner"
]
] | 1
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1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ROBERT JONATHAN WHITE,
Petitioner, No. CIV S-05-1220 MCE KJM P
vs.
DAVID RUNNELS, Warden, et al.,
Respondents. ORDER
/
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of
habeas corpus under 28 U.S.C. § 2254, together with a request to proceed in forma pauperis. In
his application, petitioner challenges a conviction issued by the Kern County Superior Court.
Kern County is part of the Fresno Division of the United States District Court for the Eastern
District of California. See Local Rule 3-120(b).
As provided by Local Rule 3-120(d), a civil action that 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 2:05-cv-01220-MCE -KJM Document 4 Filed 06/28/05 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
1130 “O” Street
Fresno, CA 93721
DATED: June 27, 2005.
______________________________________
UNITED STATES MAGISTRATE JUDGE
/bb
whit1220.109
Case 2:05-cv-01220-MCE -KJM Document 4 Filed 06/28/05 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca5-14-11197/USCOURTS-ca5-14-11197-0/pdf.json | [
[
"United States of America",
"Appellee"
],
[
"Miguel Zapata",
"Appellant"
]
] | IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-11197
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MIGUEL ZAPATA,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:10-CR-185-1
Before HIGGINBOTHAM, DENNIS, and HIGGINSON, Circuit Judges.
PER CURIAM:*
The Federal Public Defender appointed to represent Miguel Zapata has
moved for leave to withdraw and has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th
Cir. 2011). Zapata has not filed a response. We have reviewed counsel’s brief
and the relevant portions of the record reflected therein. We concur with
counsel’s assessment that the appeal presents no nonfrivolous issue for
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
October 22, 2015
Lyle W. Cayce
Clerk
Case: 14-11197 Document: 00513242005 Page: 1 Date Filed: 10/22/2015
No. 14-11197
2
appellate review. Accordingly, counsel’s motion for leave to withdraw is
GRANTED, counsel is excused from further responsibilities herein, and the
APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.
Case: 14-11197 Document: 00513242005 Page: 2 Date Filed: 10/22/2015 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_13-cv-00783/USCOURTS-caed-1_13-cv-00783-5/pdf.json | [
[
"County of Fresno",
"Defendant"
],
[
"Rex Garcia",
"Plaintiff"
]
] | 1
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STIPULATION FOR DISMISSAL WITH PREJUDICE, WAIVER OF RIGHTS OF APPEAL AND ORDER
APPROVING SETTLEMENT AND DISMISSING ACTION
MCCORMICK, BARSTOW,
SHEPPARD, WAYTE &
CARRUTH LLP
7647 N FRESNO STREET
FRESNO, CA 93720
McCormick, Barstow, Sheppard,
Wayte & Carruth LLP
Michael G. Woods, #58683
Christina C. Tillman, #258627
7647 N Fresno Street
Fresno, California 93720
Telephone: (559) 433-1300
Facsimile: (559) 433-2300
Attorneys for Defendant COUNTY OF FRESNO
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION
REX GARCIA,
Plaintiff,
v.
COUNTY OF FRESNO,
Defendant.
Case No. 1:13-CV-00783 BAM
STIPULATION FOR DISMISSAL WITH
PREJUDICE, WAIVER OF RIGHTS OF
APPEAL AND ORDER APPROVING
SETTLEMENT AND DISMISSING
ACTION
Case 1:13-cv-00783-BAM Document 57 Filed 11/01/16 Page 1 of 3
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STIPULATION FOR DISMISSAL WITH PREJUDICE, WAIVER OF RIGHTS OF APPEAL AND ORDER
APPROVING SETTLEMENT AND DISMISSING ACTION
MCCORMICK, BARSTOW,
SHEPPARD, WAYTE &
CARRUTH LLP
7647 N FRESNO STREET
FRESNO, CA 93720
IT IS HEREBY STIPULATED by and between Plaintiff REX GARCIA and Defendant
COUNTY OF FRESNO that the Complaint filed herein shall be dismissed with prejudice, that
Plaintiff REX GARCIA waives all rights of appeal in connection with this action and that all parties
shall bear their own costs and attorney’s fees.
Dated: September 22, 2016 McCORMICK, BARSTOW, SHEPPARD,
WAYTE & CARRUTH LLP
By: /s/ Christina C. Tillman
Michael G. Woods
Christina C. Tillman
Attorneys for Defendant COUNTY OF FRESNO
Dated: September 30, 2016 MESSING, ADAM & JASMINE, LLP
By: /s/ James W. Henderson, Jr.
James W. Henderson, Jr.
Attorneys for Plaintiff
REX GARCIA
Case 1:13-cv-00783-BAM Document 57 Filed 11/01/16 Page 2 of 3
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STIPULATION FOR DISMISSAL WITH PREJUDICE, WAIVER OF RIGHTS OF APPEAL AND ORDER
APPROVING SETTLEMENT AND DISMISSING ACTION
MCCORMICK, BARSTOW,
SHEPPARD, WAYTE &
CARRUTH LLP
7647 N FRESNO STREET
FRESNO, CA 93720
ORDER
Based on the Stipulation of the parties hereto, the Declaration of James W. Henderson,
Jr. Esq. in Support of Settlement, the Court’s review of the Settlement Agreement, the Court’s
knowledge of the case and good cause appearing therefor,
The Court hereby approves the settlement between the Defendant and the Plaintiff and
IT IS ORDERED that the Complaint of Plaintiff REX GARCIA, is dismissed with prejudice and that
Plaintiff REX GARCIA has waived any right of appeal in connection with this matter. The respective
parties shall each bear their own costs and attorney’s fees.
IT IS SO ORDERED.
Dated: November 1, 2016 /s/ Barbara A. McAuliffe _
UNITED STATES MAGISTRATE JUDGE
Case 1:13-cv-00783-BAM Document 57 Filed 11/01/16 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca8-05-03771/USCOURTS-ca8-05-03771-0/pdf.json | [
[
"Brian Robert Bruce",
"Appellant"
],
[
"City of Brooklyn Center",
"Appellant"
],
[
"Garrett Flesland",
"Appellant"
],
[
"Mike Reynolds",
"Appellant"
],
[
"Courtney Richmond",
"Appellee"
]
] | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
Nos. 05-3770/3771
___________
Courtney Richmond, *
*
Appellant/Cross-Appellee, *
*
v. *
*
City of Brooklyn Center, a municipal *
corporation; Brian Robert Bruce, * Appeals from the United States
individually and in his capacity as a * District Court for the
police officer in the Police Department * District of Minnesota.
of the City of Brooklyn Center; *
Garrett Flesland, individually and in *
his capacity as a police officer in the *
Police Department of the City of *
Brooklyn Center; Mike Reynolds, *
individually and in his capacity as a *
police officer in the Police Department *
of the City of Brooklyn Center, *
*
Appellees/Cross-Appellants. *
___________
Submitted: June 16, 2006
Filed: June 21, 2007
___________
Appellate Case: 05-3771 Page: 1 Date Filed: 06/21/2007 Entry ID: 3321529
1
The Honorable Gerald W. Heaney retired on August 31, 2006. This opinion
is filed by the remaining members of the panel and the Honorable Michael J. Melloy,
who was designated, pursuant to 8th Circuit Rule 47E, to replace Judge Heaney on the
panel.
-2-
Before MELLOY,1
SMITH and GRUENDER, Circuit Judges.
___________
GRUENDER, Circuit Judge.
Courtney Richmond sued the City of Brooklyn Center, Minnesota and three of
its police officers, Robert Bruce, Garrett Flesland and Mike Reynolds, for alleged civil
rights violations arising from a strip search of Richmond in his motel room. A jury
found that Officer Bruce conducted the strip search in an unreasonable manner but
that the search did not cause actual injury to Richmond. As a result, the district court
reduced the jury’s $35,000 “nominal” damages award to one dollar. Richmond
appeals the reduction of damages, while Officer Bruce cross-appeals the district
court’s denial of qualified immunity. For the reasons discussed below, we reverse the
district court’s denial of qualified immunity and direct entry of judgment for Officer
Bruce.
I. BACKGROUND
On April 29, 2001, Brooklyn Center police received an anonymous tip that
drugs were being sold from three identified rooms at a local Motel 6. Officers Bruce,
Flesland and Reynolds were dispatched to the Motel 6. The officers knocked at all
three rooms, but they received a response from only one room. The officers were
allowed entry into that room, where they smelled marijuana and observed marijuana
cigarettes. The officers then proceeded to the motel’s front desk and obtained a guest
list. Officer Bruce called one of the two remaining rooms on his cell phone, and
Richmond answered. Officer Bruce did not identify himself. According to
Richmond, Officer Bruce asked about buying drugs, and Richmond simply hung up
Appellate Case: 05-3771 Page: 2 Date Filed: 06/21/2007 Entry ID: 3321529
2
“Tear-offs” are the corners of plastic baggies tied off and torn away from the
rest of the baggie, used to package narcotics for sale.
-3-
the phone. Officer Bruce, on the other hand, claimed that he made no mention of drugs
and that he pretended he had dialed a wrong number.
After the phone call, the officers returned to Richmond’s motel room, and
Richmond came to the door. The officers spoke with Richmond through the partially
open door, informing him that they had received a report about possible narcotics
activity in his room. Richmond stated that his name was Tyrone Johnson and gave a
date of birth. The officers requested a computer check of the name and date of birth
and received a response of “not on file.” The officers informed Richmond that they
believed he had given a false name. Richmond soon told police that his real name was
Courtney Richmond and admitted that there was an outstanding warrant for his arrest.
The officers entered the room and arrested Richmond.
The ensuing search revealed a small amount of marijuana in Richmond’s shirt
pocket and over $1,300 in cash in Richmond’s pants, as well as cell phones, pagers
and “tear-offs.”2
The officers requested a computer check of Richmond’s real name
and learned that Richmond had several previous felony narcotic arrests. Officer Bruce
informed Richmond that he believed Richmond likely was concealing drugs on his
person and that Bruce was going to check his “crotch area.” Officer Flesland held
Richmond, who was handcuffed, above the elbow to prevent him from pulling away
or pivoting. Officer Bruce unbuckled Richmond’s belt and let Richmond’s pants fall
to the ground. Officer Bruce then lowered Richmond’s boxer shorts with two hands
and visually inspected, without touching, Richmond’s genitalia and buttocks. Officer
Bruce observed that Richmond was clenching his buttocks. Richmond testified that
Officer Flesland then forcibly bent him over a table, while Officers Bruce and
Flesland testified that Richmond leaned forward on his own at Officer Bruce’s request
and that there was no table in front of him. When Richmond was positioned forward,
Appellate Case: 05-3771 Page: 3 Date Filed: 06/21/2007 Entry ID: 3321529
-4-
Officer Bruce observed a piece of tissue protruding from Richmond’s buttocks.
Officer Bruce put on a latex glove and, according to Officer Bruce, grabbed the corner
of the tissue with a quick swiping motion, avoiding contact with Richmond’s skin, and
threw the tissue to the ground. According to Richmond, Officer Bruce penetrated
Richmond’s anus to retrieve the tissue and then reinserted two or three fingers into
Richmond’s anus and “moved them around.” Richmond yelled and swore during the
search and testified that he felt as though he was being raped. The tissue retrieved
from Richmond’s buttocks contained 3.7 grams of cocaine.
In Richmond’s state criminal prosecution, the state court suppressed the 3.7
grams of cocaine as the fruit of an illegal search, and the charges against Richmond
were dismissed. Richmond later filed the instant action against the City of Brooklyn
Center and Officers Bruce, Flesland and Reynolds, claiming damages under 42 U.S.C.
§ 1983 for an unreasonable search. The district court denied the defendants’ motion
for summary judgment based on qualified immunity, finding, inter alia, a disputed
question of material fact as to whether a body-cavity search occurred and concluding
that qualified immunity was not appropriate on the facts as set forth by Richmond.
The defendants did not pursue an interlocutory appeal.
The case proceeded to a four-day jury trial on Richmond’s claims that the
officers performed an unreasonable strip search or body-cavity search, used excessive
force, and committed assault and battery. The district court submitted to the jury a
special verdict form with 31 special interrogatories. The jury found that (1) no officer
used excessive force, assaulted or battered Richmond; (2) the alleged body cavity
search of Richmond did not occur; (3) exigent circumstances were present to justify
a body cavity search, had one occurred; (4) the officers had reasonable suspicion to
support the strip search; (5) Officer Bruce did not conduct the strip search in a
Appellate Case: 05-3771 Page: 4 Date Filed: 06/21/2007 Entry ID: 3321529
3
The jury found that Officer Flesland’s conduct during the strip search was
reasonable.
-5-
reasonable manner;3
and (6) the strip search was not a direct cause of injury to
Richmond. Despite the finding of no actual damages and a jury instruction stating
that, in the absence of damages, nominal damages should be $1, the jury awarded
nominal damages of $35,000.
Richmond moved for a new trial on the issues of whether the strip search
caused actual damages, whether the officers had reasonable suspicion to conduct a
strip search, whether Officer Flesland behaved reasonably and whether a body cavity
search occurred. Officer Bruce moved for judgment as a matter of law based on
qualified immunity and for a reduction of the nominal damages award to $1. The
district court denied all post-trial motions save Officer Bruce’s motion to reduce the
nominal damages to $1. Richmond now appeals the reduction of nominal damages
and the denial of his motion for a new trial on the issue of whether he suffered actual
damages, while Officer Bruce cross-appeals the denial of qualified immunity and the
exclusion of certain evidence.
II. DISCUSSION
We first address Officer Bruce’s cross-appeal of the denial of his post-trial
motion for judgment as a matter of law based on qualified immunity. “Qualified
immunity protects a government official from liability in a section 1983 action unless
the official’s conduct violated a clearly established constitutional or statutory right of
which a reasonable person would have known.” Henderson v. Munn, 439 F.3d 497,
501 (8th Cir. 2006). To determine whether an officer is entitled to qualified
immunity, we ask first whether the officer’s conduct violated a constitutional right,
and second whether that right was clearly established at the time of the deprivation “in
light of the specific context of the case.” Saucier v. Katz, 533 U.S. 194, 201 (2001).
Appellate Case: 05-3771 Page: 5 Date Filed: 06/21/2007 Entry ID: 3321529
-6-
We review the district court’s determination of qualified immunity de novo. Hill v.
McKinley, 311 F.3d 899, 902 (8th Cir. 2002). Where qualified immunity is asserted
in a motion for judgment as a matter of law, we view the facts in the light most
favorable to the prevailing party at trial. See id. In particular, we rely on the jury’s
factual findings on the special verdict form in making our qualified immunity ruling.
Littrell v. Franklin, 388 F.3d 578, 585 (8th Cir. 2004). On some of these special
findings Richmond prevailed at trial, while on others the defendants prevailed. To the
extent facts covered by a special interrogatory affect the qualified immunity analysis,
we must view those facts in the light most favorable to the jury’s special verdict.
The Fourth Amendment reasonableness of a strip search turns on “the scope of
the particular intrusion, the manner in which it is conducted, the justification for
initiating it, and the place in which it is conducted.” Bell v. Wolfish, 441 U.S. 520,
559 (1979). The facts regarding the location, justification and scope of the strip
search in the instant case are relatively well-defined. It is undisputed that the search
took place in Richmond’s motel room. With regard to justification, there is no
challenge on appeal to the jury’s finding that the officers had reasonable suspicion to
conduct a strip search. Cf. Jones v. Edwards, 770 F.2d 739, 741-42 (8th Cir. 1985)
(finding a strip search of an arrestee violated the Fourth Amendment where authorities
had no reasonable suspicion of concealed weapons or contraband). With regard to
scope, the jury rejected Richmond’s testimony that a body cavity search occurred.
The only other testimony regarding the scope of the search was that it consisted of a
visual-only inspection of Richmond’s genitals and buttocks, followed by the removal
of tissue from his clenched buttocks with a quick swiping motion.
The most difficult facts to resolve are those regarding the manner of the search.
It is undisputed that, while Richmond was handcuffed and held above the elbow by
Officer Flesland, Officer Bruce unbuckled Richmond’s belt, let Richmond’s pants fall
to the ground and then lowered Richmond’s boxer shorts with two hands. The jury
was not given a special interrogatory to resolve whether Officer Flesland then forcibly
Appellate Case: 05-3771 Page: 6 Date Filed: 06/21/2007 Entry ID: 3321529
4
Saucier instructs that in qualified immunity analyses at the summary judgment
stage, the court should address the first prong of the qualified immunity analysis and
expressly decide as a matter of law whether a constitutional violation occurred based
on the facts asserted by the plaintiff. See Hill, 311 F.3d at 903 (“This inquiry is made
first so that even if the right asserted is not clearly established, a determination that it
was violated might ‘set forth principles which will become the basis for a holding that
a right is clearly established.’” (quoting Saucier, 533 U.S. at 200)). However, Saucier
does not compel us to perform the first-prong analysis after a trial on the merits where
the parties have not raised the issue on appeal. We naturally have performed the postverdict first-prong analysis in a case where the defendants disputed on appeal the
jury’s finding that a constitutional violation occurred, see Hill, 311 F.3d at 902-03, but
we have declined to do so where, as here, the defendants did not challenge the
sufficiency of the evidence for the jury’s finding of a constitutional violation, see
Littrell, 388 F.3d at 584. Consequently, we need not determine whether the evidence
supported a finding of a constitutional violation in the instant case.
-7-
bent Richmond over a table, as Richmond alleged, or rather Richmond leaned forward
on his own at Officer Bruce’s request with no table in front of him. However, the jury
did find specifically that Officer Flesland’s conduct regarding the strip search of
Richmond was reasonable. Finally, it is undisputed that Officer Bruce was wearing
a latex glove when he retrieved the tissue from Richmond’s buttocks.
The defendants do not dispute on appeal the jury’s finding that Officer Bruce
conducted the strip search in an unreasonable manner in violation of Richmond’s
Fourth Amendment rights. Therefore, we proceed directly to the second prong of the
qualified immunity analysis, which asks whether the asserted constitutional right was
clearly established. See Littrell, 388 F.3d at 584.4
A right is clearly established only
if the contours of the right are so defined at the time of the incident that a reasonable
officer in the defendant’s position would have understood that what he was doing
violated the law. Parks v. Pomeroy, 387 F.3d 949, 957 (8th Cir. 2004). “Officials are
not liable for bad guesses in gray areas; they are liable for transgressing bright lines.”
Appellate Case: 05-3771 Page: 7 Date Filed: 06/21/2007 Entry ID: 3321529
5
The district court erred by leaving this question to the jury. In ruling on
Officer Bruce’s motion for judgment as a matter of law based on qualified immunity,
the district court stated that “the record . . . contains evidence sufficient for a jury to
conclude that the law prohibiting unreasonable searches—determined by the search’s
scope, manner, justification, and location—was clearly established at the time of the
search, and that the law’s application to Defendant’s actions was evident.” The
district court should have analyzed this question as a matter of law without regard to
the jury’s verdict. Littrell, 388 F.3d at 584-85 (“The issue of qualified immunity is
a question of law for the court, rather than the jury, to decide: ‘It is the province of the
jury to determine disputed predicate facts, the question of qualified immunity is one
of law for the court.’” (quoting Peterson v. City of Plymouth, 60 F.3d 469, 473 n.6
(8th Cir. 1995))).
-8-
Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004). Whether a right is clearly
established is a question of law that we review de novo. Hill, 311 F.3d at 902.5
We hold that a reasonable officer in the defendant’s position would not have
understood that the strip search of Richmond in his motel room would violate his
constitutional rights. The law in April 2001 was clear that strip searches should be
conducted in an area as removed from public view as possible without compromising
legitimate security concerns. See Franklin v. Lockhart, 883 F.2d 654, 656-57 (8th Cir.
1989) (holding that visual body cavity searches of prison inmates conducted within
view of four to six other inmates did not violate the Fourth Amendment because any
measures taken to increase privacy would implicate legitimate prison security
concerns); see also Hill v. Bogans, 735 F.2d 391, 393-94 (10th Cir. 1984) (finding the
manner of a strip search of an arrestee unreasonable where it was conducted in a
police station lobby area with “ten to twelve people . . . milling about”). The law was
also clear that strip searches should be conducted by officials of the same sex as the
individual to be searched. E.g., Roberts v. Rhode Island, 239 F.3d 107, 113 (1st Cir.
2001); see also Justice v. Peachtree City, 961 F.2d 188, 193 (11th Cir. 1992). Finally,
the law was clear that strip searches should be performed in a hygienic fashion and not
in a degrading, humiliating or abusive fashion. Cf. Seltzer-Bey v. Delo, 66 F.3d 961,
Appellate Case: 05-3771 Page: 8 Date Filed: 06/21/2007 Entry ID: 3321529
-9-
962-63 (8th Cir. 1995) (holding that a plaintiff stated a valid Fourth Amendment
search-and-seizure claim where he alleged that he was subjected to sexual comments
about his anatomy and rubbing of his buttocks with a nightstick during strip searches);
see also Bell, 441 U.S. at 560 (stating that it is unreasonable to conduct a strip search
“in an abusive fashion”); Bonitz v. Fair, 804 F.2d 164, 172-73 (1st Cir. 1986) (holding
body-cavity searches unreasonable where, inter alia, the searching officers wore a
single pair of gloves while searching multiple inmates), overruled on other grounds
by Unwin v. Campbell, 863 F.2d 124, 128 (1st Cir. 1988), abrogated by Johnson v.
Jones, 515 U.S. 304 (1995) (abrogating Unwin).
In this case, the standards for privacy and hygiene clearly were met because
only the officers and the arrestee were present for the strip search, the motel room was
isolated from public view, the officers were the same sex as Richmond, and Officer
Bruce wore a sanitary latex glove. Richmond claims that the search was performed
in a degrading, humiliating or abusive manner because he was restrained during the
search, he was not allowed to lower his own pants and boxer shorts, and Officer
Flesland forcibly bent him over a table for the search. First, while the special verdict
form did not ask the jury to make a specific finding as to whether Officer Flesland
forcibly bent Richmond over a table, the jury did find specifically that Officer
Flesland’s conduct during the search was reasonable. This indicates strongly that
when the jury rejected Richmond’s testimony that the search included a body cavity
search, it also rejected his concurrent testimony about Officer Flesland forcibly
bending him over a table during the search. Therefore, viewing the evidence in the
light most favorable to the verdict, we reject this aspect of Richmond’s allegation.
Next, we examine the law as of April 2001 to see if it would have put a
reasonable officer on notice that lowering a handcuffed arrestee’s pants and boxer
shorts for a strip search, while another officer held the arrestee’s upper arm, would be
held to be degrading, humiliating and abusive. As examples of an unreasonably
abusive search, Bell cited cases that involved the use of “insultingly suggestive
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-10-
remarks and banal but terrifying expressions of aggression like those of guards
threatening in the time of nakedness to ‘put [a] foot up [the] ass’ or merely to ‘kick the
ass’ of the humbled prisoner,” United States ex rel. Wolfish v. Levi, 439 F. Supp. 114,
147 (D.N.Y. 1977), rev’d on other grounds by Bell, 441 U.S. at 524, cited by Bell, 441
U.S. at 560, and the drawing of blood “by other than medical personnel or in other
than a medical environment—for example, if it were [done] by police in the privacy
of the stationhouse,” because such a search would “invite an unjustified element of
personal risk of infection and pain,” Schmerber v. California, 384 U.S. 757, 771-72
(1966), cited by Bell, 441 U.S. at 560. Strip searches had also been found to be
unreasonably degrading, humiliating and abusive where “beatings often accompany
these [visual-only body-cavity] searches, and . . . the correctional officers who
administer the searches frequently make insulting, abusive, humiliating and
intimidating comments and jokes during the course of the searches,” Arruda v.
Berman, 522 F. Supp. 766, 768 (D. Mass. 1981) (internal quotation marks omitted),
cited by Bonitz, 804 F.2d at 171. In the instant case, the jury specifically found no use
of excessive force, and apart from Richmond’s rejected testimony regarding a body
cavity search, there were no allegations that the officers attempted to inflict pain or
humiliation while conducting the search. Richmond does not cite any evidence of
insulting, intimidating or humiliating comments or jokes by the officers.
Richmond argues that it was unreasonably abusive or degrading to conduct the
strip search while he was restrained, and thus unable to lower his own pants and boxer
shorts, rather than to transport him to the police station for the strip search. However,
“[t]he Fourth Amendment does not require officers to use the least intrusive or less
intrusive means to effectuate a search but instead permits a range of objectively
reasonable conduct.” Shade v. City of Farmington, 309 F.3d 1054, 1061 (8th Cir.
2002). In this case, the officers had reasonable suspicion that Richmond was
concealing evidence on his person and were in a position to conduct a private,
hygienic and non-abusive strip search on the spot, rather than risk Richmond
disposing of the evidence during the course of his transportation to the police station.
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-11-
See United States v. Barrow, 287 F.3d 733, 735-36 (8th Cir. 2002) (addressing an
issue of proof of possession created where an arrestee with hands cuffed behind his
back managed to dispose of a bag of crack cocaine in the back seat of a patrol car).
Indeed, the jury in the instant case specifically found exigent circumstances to support
even a body cavity search, had one occurred. No clearly established legal standards
would have put a reasonable officer on notice that, in these particular circumstances,
it was objectively unreasonable to lower the handcuffed arrestee’s pants and boxer
shorts to accomplish the strip search, rather than to risk loss of evidence by waiting
until the arrestee was in an environment where handcuffs were not required. See
Malley v. Briggs, 475 U.S. 335, 341 (1986) (noting that qualified immunity protects
“all but the plainly incompetent or those who knowingly violate the law”). Therefore,
Officer Bruce is entitled to qualified immunity.
III. CONCLUSION
We conclude that Officer Bruce is entitled to qualified immunity. Accordingly,
we do not reach Officer Bruce’s arguments regarding the exclusion of certain
evidence or Richmond’s arguments on the reduction of nominal damages or a new
trial on actual damages. We remand to the district court with instructions to vacate
the entry of judgment for Richmond and to enter judgment for Officer Bruce
consistent with this opinion.
SMITH, Circuit Judge, dissenting.
I disagree with the majority's qualified immunity conclusion and therefore
respectfully dissent.
As stated by the majority, our qualified immunity analysis focuses on whether
Richmond possessed a clearly established right to be free from a forcible strip search
that took place in the field rather than in a controlled environment, such as a jailhouse.
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-12-
Whether a right is clearly established is a question of law that we review de novo. Hill
v. McKinley, 311 F.3d 899, 902 (8th Cir. 2002).
A person's right to be free from a strip search conducted in an unreasonable
manner is clearly established. See Bell v. Wolfish, 441 U.S. 520, 559–60 (1979).
However, our inquiry is more precise: Was it clearly established that the forcible strip
search of a suspect in the field for investigative purposes was unreasonable? Cf. Evans
v. Stephens, 407 F.3d 1272, 1283 (11th Cir. 2005) (en banc) ("Seldom does a general
standard such as 'to act reasonably' put officers on notice that certain conduct will
violate federal law: Fourth Amendment law is intensely fact specific.").
I believe that the right was clearly established. A strip search conducted with
the utmost courtesy is nonetheless inherently humiliating and degrading. Swain v.
Spinney, 117 F.3d 1, 6 (1st Cir. 1997); Mary Beth G. v. City of Chic., 723 F.2d 1263,
1272 (7th Cir. 1983) (recognizing the "magnitude of the invasion of personal rights"
that a strip search represents, characterizing it as "demeaning, dehumanizing,
undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying
degradation and submission . . . ." (citation and internal quotations omitted)).
Considering the nature of the strip search, courts have held that a constitutional strip
search should be conducted in private, e.g., Young v. City of Little Rock, 249 F.3d 730,
736 (8th Cir. 2001), and in a hygienic manner, e.g., Evans, 407 F.3d at 1277.
Although a strip search need not be conducted in the least intrusive manner, it must
be conducted in a non-abusive manner. Evans, 407 F.3d at 1281 (citing Bell, 441 U.S.
at 560 (noting that even corrections officers in a jail cannot conduct strip searches of
incarcerated inmates in "an abusive fashion")).
The officers subjected Richmond to an unnecessarily invasive and intimidating
search. Although the search was conducted in the relative privacy of a motel room by
male officers using sterile gloves, no urgency justified forcibly strip searching a
handcuffed arrestee. Officer Reynolds testified that no exigent circumstances existed,
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and the record lacks sufficient evidence to support the jury's finding that exigent
circumstances were present. Moreover, field strip searches are not common—all three
officers testified that they have never strip searched a suspect in the field before or
since the search of Richmond—and may excite increased fear and intimidation. See
Evans, 407 F.3d at 1281 (noting that plaintiffs were searched in "an abnormal place,"
a broom closet, rather than "a dedicated search cell, medical examination room, or
even a bathroom"). Investigative strip searches usually involve an officer's request to
the subject of a strip search to remove his or her own clothing. E.g., Way v. County of
Ventura, 445 F.3d 1157, 1159 (9th Cir. 2006); Evans, 407 F.3d at 1276–77; Swain,
117 F.3d at 4. Non-consensual and forcible field strip searches of restrained arrestees
are not a matter of routine law enforcement investigation incident to arrest. An
objectively reasonable police officer should have known that forcible removal of a
physically restrained person's clothing, coupled with inspection of his genitalia and
buttocks, involves a level of intrusion that requires more justification than the instant
facts establish.
I therefore respectfully dissent.
______________________________
Appellate Case: 05-3771 Page: 13 Date Filed: 06/21/2007 Entry ID: 3321529 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_15-cv-00943/USCOURTS-cand-3_15-cv-00943-0/pdf.json | [
[
"Robert William Creighton",
"Petitioner"
],
[
"Tim Perez",
"Respondent"
]
] | 1
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ROBERT WILLIAM CREIGHTON,
Petitioner,
v.
TIM PEREZ,
Respondent.
Case No. 15-cv-00943-JD
ORDER GRANTING MOTION TO
FILE UNDER SEAL
Re: Dkt. Nos. 12, 14, 15
Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Respondent has filed an answer and seeks to file petitioner’s Marin County
Probation Report under seal.
The Court may order a document filed under seal “upon a request that establishes that the
document, or portions thereof are privileged, protectable as a trade secret or otherwise entitled to
protection under the law (hereinafter referred to as ‘sealable’). The request must be narrowly
tailored to seek sealing only of sealable material.” N. D. Cal. Local Rule 79-5. There is a strong
presumption favoring the public’s right of access to court records which should be overridden only
for a compelling reason. Hagestad v. Tragesser, 49 F.3d 1430, 1433-34 (9th Cir. 1995).
“Counseling against such access would be the likelihood of an improper use, ‘including
publication of scandalous, libelous, pornographic, or trade secret materials; infringement of fair
trial rights of the defendants or third persons; and residual privacy rights.’” Valley Broadcasting
Co. v. United States District Court, 798 F.2d 1289, 1294 (9th Cir. 1986) (citation omitted).
In this instance there are compelling reasons to justify sealing the probation report. The
sealing of this information will protect details concerning petitioner’s family background, medical
and psychological condition, history of substance abuse, and other similar information. California
law has also found that this information should be sealed. People v. Connor, 115 Cal. App. 4th
669, 695 (2004); California Rules of Court 8.45-8.47; California Civil Code section 1798.24.
Accordingly, the motion to file the probation report under seal (Docket No. 14) is GRANTED.
Case 3:15-cv-00943-JD Document 16 Filed 11/17/15 Page 1 of 3
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United States District Court
Northern District of California
Respondent’s motion for an extension (Docket No. 12) is GRANTED and the answer is deemed
timely filed. Petitioner’s motion for an extension (Docket No. 15) is GRANTED and he may file
a traverse by November 20, 2015.
IT IS SO ORDERED.
Dated: November 17, 2015
________________________
JAMES DONATO
United States District Judge
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ROBERT WILLIAM CREIGHTON,
Plaintiff,
v.
TIM PEREZ,
Defendant.
Case No. 15-cv-00943-JD
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on November 17, 2015, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.
Robert William Creighton
P.O. Box 11
Fairfax, CA 94978
Dated: November 17, 2015
Susan Y. Soong
Clerk, United States District Court
By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO
Case 3:15-cv-00943-JD Document 16 Filed 11/17/15 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-14-01284/USCOURTS-ca10-14-01284-0/pdf.json | [
[
"Chris the Crazy Trader, Inc.",
"Appellee"
],
[
"Rafael Frias",
"Appellant"
],
[
"Patricia Mendez-Manriquez",
"Appellant"
]
] | UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
RAFAEL FRIAS; PATRICIA
MENDEZ-MANRIQUEZ,
Plaintiffs - Appellants,
v.
CHRIS THE CRAZY TRADER, INC.,
a Colorado corporation,
Defendant - Appellee.
No. 14-1284
(D.C. No. 1:13-CV-01240-MSK-KLM)
(D. Colo.)
ORDER AND JUDGMENT*
Before MORITZ, PORFILIO, and BALDOCK, Circuit Judges.
Plaintiffs Rafael Frias and Patricia Mendez-Manriquez appeal from the district
court’s July 2, 2014, opinion and order denying their motion to certify a question of
state law to the Colorado Supreme Court and granting partial summary judgment to
defendant on their claims alleging violations of the Colorado Consumer Protection
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
March 3, 2015
Elisabeth A. Shumaker
Clerk of Court
Appellate Case: 14-1284 Document: 01019392945 Date Filed: 03/03/2015 Page: 1
- 2 -
Act (CCPA), Colo. Rev. Stat. Ann. § 6-1-708(1)(a)(I) & (III), and civil theft under
Colo. Rev. Stat. Ann. § 18-4-405. They also renew their motion to certify a question
of state law to the Colorado Supreme Court. We have jurisdiction under 28 U.S.C.
§ 1291, deny certification, and affirm.
1. Background
The facts construed in plaintiffs’ favor are as follows. On March 30, 2013,
plaintiffs accepted delivery of a used car from defendant, believing that financing for
a loan was guaranteed. A month later, defendant called them and told them it had a
better deal for them. Plaintiffs signed a new contract for the same car on April 30,
still believing that financing was guaranteed. A few days later, however, defendant
told them that financing was denied, and they must bring the car back. When
plaintiffs returned the car, defendant retained more than half of their $1500 down
payment as payment for their temporary use of the car.
Plaintiffs filed this suit against defendant, asserting a federal claim under the
Truth in Lending Act (TILA), 15 U.S.C. §§ 1601-1667f, and state-law claims under
the CCPA and for civil theft. Defendant promptly mailed a check to plaintiffs to
refund the rest of their down payment, which plaintiffs apparently accepted.
Defendant then moved for partial summary judgment on plaintiffs’ state-law claims.
Plaintiffs filed a response and a motion to certify a question of state law on their
CCPA claim.
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On July 2, 2014, the district court entered its decision denying plaintiffs’
motion to certify a question of state law and granting partial summary judgment to
defendant on plaintiffs’ state-law claims. Although the court’s order did not mention
certifying its decision for immediate appeal under Fed. R. Civ. P. 54(b), the district
court clerk entered a judgment on a separate document styled “FINAL JUDGMENT
PURSUANT TO FED. R. CIV. P. 54(b).” D.C. No. 1:13-cv-01240-MSK-KLM,
Doc. 30. Plaintiffs filed their notice of appeal on July 23.
On October 24, plaintiffs filed a notice with the district court that they had
settled their TILA claim with defendant. A few days later, plaintiffs filed a motion
asking the court to retain jurisdiction over their CCPA claim, so that the July 2
judgment would be “final for purposes of appellate review.” Id., Doc. 45, at 2. On
December 18, 2014, the district court entered a minute order dismissing the TILA
claim with prejudice, in light of the parties’ settlement, and denying plaintiffs’
motion to retain jurisdiction over their CCPA claim as moot, because the court had
already entered judgment on the state-law claims. Id., Doc. 46. The court ordered
the clerk to close the case. Id. No other entries appear on the district court docket.
2. Appellate Jurisdiction
A question regarding our jurisdiction over this appeal arose from the sequence
of events in the case. Plaintiffs filed their notice of appeal under Rule 54(b) in July
2014, shortly after the district court entered both its decision granting partial
summary judgment to defendant on plaintiffs’ two state-law claims and a judgment
Appellate Case: 14-1284 Document: 01019392945 Date Filed: 03/03/2015 Page: 3
- 4 -
referencing Rule 54(b). Because the TILA claim had not yet been resolved, this
court promptly entered an order directing plaintiffs either to obtain a more detailed
order from the district court articulating its reasons for certifying its July 2 opinion
and order for immediate appeal, or to file a brief establishing that the July 2 judgment
entered by the district court clerk sufficiently addressed Rule 54(b) concerns to
confer appellate jurisdiction under Rule 54(b). See Stockman’s Water Co. v. Vaca
Partners, L.P., 425 F.3d 1263, 1265-66 (10th Cir. 2005) (discussing the factors the
district court should consider when certifying a nonfinal decision for immediate
appeal under Rule 54(b), in order to allow “a meaningful review” of its exercise of
discretion). Plaintiffs filed a brief, and this court entered an order referring the
jurisdictional question to the merits panel. The parties’ merits briefs in this court
both indicate that the case has not reached a final judgment in the district court, but
they filed their briefs here before the district court entered its December 18 order
disposing of the outstanding TILA claim and motion to retain jurisdiction.
We conclude that a Rule 54(b) certification is no longer required for this
appeal because all claims and motions were decided by the district court as of
December 18, 2014. We have previously held “that a notice of appeal filed before
the district court disposes of all claims is nevertheless effective if the appellant
obtains either certification pursuant to Fed. R. Civ. P. 54(b) or final adjudication
before the court of appeals considers the case on its merits.” Ruiz v. McDonnell,
299 F.3d 1173, 1179 (10th Cir. 2002). Our rule is that “the premature notice simply
Appellate Case: 14-1284 Document: 01019392945 Date Filed: 03/03/2015 Page: 4
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ripens on the date of certification or final adjudication, and the filing of a second
notice of appeal is unnecessary.” Id. Because the district court’s December 18,
2014, order has the requisite “indicia of finality,” plaintiffs’ notice of appeal, even if
premature when filed, ripened on December 18. Elm Ridge Exploration Co. v. Engle,
721 F.3d 1199, 1209 n.5 (10th Cir. 2013) (internal quotation marks omitted).
A second question regarding our jurisdiction arises from defendant’s assertion
in its brief on appeal that because it refunded the rest of plaintiffs’ down payment,
they had no injury in fact as of a few days after they filed suit. The assertion that
plaintiffs lacked an injury in fact raises questions as to whether they had standing to
sue, whether we could redress their alleged injury, and whether the case became
moot. See Oklahoma v. Hobia, 775 F.3d 1204, 1210 (10th Cir. 2014) (“A case
becomes constitutionally moot when the parties no longer have a legally recognizable
interest in the result.”); Kitchen v. Herbert, 755 F.3d 1193, 1201 (10th Cir.)
(addressing standing to sue and redressability), cert. denied, 135 S. Ct. 265 (2014).
We are obligated to raise and resolve such questions of Article III jurisdiction
sua sponte. Kitchen, 755 F.3d at 1201.
We conclude that even if plaintiffs accepted defendant’s full refund of their
down payment, the district court was not deprived of jurisdiction, and neither are we.
Plaintiffs did not sue for a refund, but for actual damages, statutory damages, costs,
and attorney’s fees. D.C. No. 1:13-cv-01240-MSK-KLM, Doc. 1, at 8. Even if they
could no longer prove that they suffered actual damages, because defendant repaid
Appellate Case: 14-1284 Document: 01019392945 Date Filed: 03/03/2015 Page: 5
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their down payment in full, all of the statutes under which they sued provide for
statutory damages as well. See 15 U.S.C. § 1640(a)(2)(A)(iv) (providing statutory
damages under TILA, “in the case of an individual action relating to a credit
transaction not under an open end credit plan that is secured by real property . . . , not
less than $400 or greater than $4,000”); Colo. Rev. Stat. Ann. § 6-1-113(2)(a)
(providing damages under the CCPA of “(a) The greater of: (I) The amount of actual
damages sustained; or (II) Five hundred dollars”); Colo. Rev. Stat. Ann. § 18-4-405
(providing in a case of civil theft that “the owner may recover two hundred dollars or
three times the amount of the actual damages sustained by him, whichever is
greater”). Plaintiffs asserted the requisite injury in fact, and we could have redressed
their asserted injury if they had shown that the district court erred. See Utah Animal
Rights Coal. v. Salt Lake Cnty., 566 F.3d 1236, 1240 (10th Cir. 2009) (noting that
“[t]he Supreme Court has defined ‘injury in fact’ as ‘an invasion of a legally
protected interest which is (a) concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical’”) (quoting Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992))). The case is not moot, we have jurisdiction over the appeal, and
we turn to the merits.
3. Discussion
Plaintiffs do not challenge the district court’s disposition of their claim for
civil theft, but only the court’s disposition of their CCPA claim. The court set out the
five elements of a CCPA claim for damages under Colo. Rev. Stat. Ann. § 6-1-113 as
Appellate Case: 14-1284 Document: 01019392945 Date Filed: 03/03/2015 Page: 6
- 7 -
established by the Colorado Supreme Court, including the requirement that plaintiffs
show that “the challenged practice significantly impacts the public as actual or
potential consumers of the defendant’s goods, services, or property.” Aplt. App.
at 57-58 (citing Hall v. Walter, 969 P.2d 224, 235 (Colo. 1998)). The court
acknowledged that no Colorado case explicitly addresses whether the “public impact”
element applies to an alleged violation of one of the “specific provisions” in Part 7 of
the CCPA, such as Colo. Rev. Stat. Ann. § 6-1-708(1)(a), which defines deceptive
trade practices in the sale of motor vehicles. Aplt. App. at 55, 58. The court
rejected, however, plaintiffs’ argument that the “public impact” element should not
apply to an alleged violation of § 6-1-708(1)(a), reasoning that “there is no indication
that Colorado intends to make such [a] distinction” in the elements of CCPA claims.
Aplt. App. at 58. The court also pointed out that the general definition of ‘deceptive
trade practice’ in the CCPA, Colo. Rev. Stat. Ann. § 6-1-105, “incorporates all
violations of the provisions found in part 7,” so “there is no need to make such a
distinction.” Aplt. App. at 58 (citing Colo. Rev. Stat. Ann. § 6-1-105(1)(x)). The
court denied plaintiffs’ motion to certify the state-law question to the Colorado
Supreme Court. Id.
The district court then determined as a matter of law that plaintiffs had failed
to show the required public impact for their CCPA claim. The court noted that their
evidence showed only that eleven other consumers were affected by defendant’s
alleged practice of retaining a portion of the down payment after financing was not
Appellate Case: 14-1284 Document: 01019392945 Date Filed: 03/03/2015 Page: 7
- 8 -
obtained, for a total of twelve instances out of 5739 car sales. Id. at 60-61. The court
pointed out that plaintiffs had presented no evidence “that the Defendant
‘guaranteed’ financing to or failed to advise potential purchasers that if financing was
not obtained, a car would have to be returned.” Id. at 60. The court observed that the
Colorado Supreme Court has found no public impact “where only 3 dealers, out of
550 worldwide, were affected by the alleged deceptive trade practices of a
manufacturer supplier.” Id. at 61 (citing Rhino Linings USA, Inc. v. Rocky Mountain
Rhino Lining, Inc., 62 P.3d 142, 150 (Colo. 2003)). The court rejected plaintiffs’
argument that a general declaration in Colo. Rev. Stat. Ann. § 12-6-101(1)(a)—that
“[t]he sale and distribution of motor vehicles affects the public interest”—is
sufficient to establish public impact under the CCPA. Aplt. App. at 61 (internal
quotation marks omitted). The court reasoned that “the Colorado Supreme Court has
emphasized that the public impact contemplated by the CCPA relates to the
challenged practice,” and the declaration in § 12-6-101(1)(a) “does not refer to the
practices that Plaintiffs challenge.” Aplt. App. at 61 (citing Brodeur v. Am. Home
Assur. Co., 169 P.3d 139, 156 (Colo. 2007)). Accordingly, the court granted
summary judgment to defendant on plaintiffs’ CCPA claim.
Plaintiffs argue that the district court erred: (1) in failing to find that a single
violation of Colo. Rev. Stat. Ann. § 6-1-708(1)(a) is a per se violation of the CCPA,
because “[t]he Specific Provisions portion of the CCPA does not contain a public
impact requirement,” Aplt. Br. at 15; and (2) in finding as a matter of law that twelve
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- 9 -
consumers affected by the same practice, out of 5739 car sales, was not enough to
show sufficient public impact, because there is no mathematical formula for that
determination and because public impact is a disputed question of fact. The question
of state law plaintiffs ask us to certify is “whether a deceptive trade practice
contained within the ‘Specific Provisions’ of the Colorado Consumer Protection Act
requires a separate showing of public impact.” Aplt. Mot. to Certify Question of Law
at 5.
“We review a district court’s grant of summary judgment de novo, applying
the same legal standard as the district court” under Fed. R. Civ. P. 56(a). Twigg v.
Hawker Beechcraft Corp., 659 F.3d 987, 997 (10th Cir. 2011). A summary judgment
should be entered “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “In applying this standard, we view the evidence and the
reasonable inferences to be drawn from the evidence in the light most favorable to
the nonmoving party.” Twigg, 659 F.3d at 997. “When exercising jurisdiction over
pendent state claims, we must apply the substantive law of the forum state and reach
the same decision we believe that state’s highest court would, just as we would if our
jurisdiction rested on diversity of citizenship.” Lytle v. City of Haysville, 138 F.3d
857, 868 (10th Cir. 1998) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 726
(1966)).
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- 10 -
We have carefully reviewed plaintiffs’ arguments in light of the district court
record and the governing law. We are not persuaded that the district court erred in
concluding that the element of significant public impact established by the Colorado
Supreme Court for CCPA claims applies to a claim brought under the specific
provision in § 6-1-708(a). We are also not persuaded that the court erred in
concluding that plaintiffs’ evidence was insufficient as a matter of law to show
significant public impact. Plaintiffs do not identify where they argued to the district
court that public impact is a disputed question of fact, so we do not address that
argument. See Fairchild v. Workman, 579 F.3d 1134, 1144 (10th Cir. 2009) (“[W]e
ordinarily do not decide issues raised for the first time on appeal.”). We affirm the
district court’s grant of summary judgment in favor of defendant on plaintiffs’ CCPA
claim for substantially the reasons set forth in its July 2, 2014, opinion and order.
Appellants’ motion to certify a question of law to the Colorado Supreme Court
is denied. The judgment of the district court is affirmed.
Entered for the Court
Bobby R. Baldock
Circuit Judge
Appellate Case: 14-1284 Document: 01019392945 Date Filed: 03/03/2015 Page: 10 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-alsd-1_14-cv-00112/USCOURTS-alsd-1_14-cv-00112-1/pdf.json | [
[
"Cynthia Steward",
"Respondent"
],
[
"Willie Arthur Sullen",
"Petitioner"
]
] | IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILLIE ARTHUR SULLEN, )
)
Petitioner, )
)
vs. ) CIVIL ACTION NO. 14-0112-CG-M
)
CYNTHIA STEWARD, )
)
Respondent. )
ORDER
After due and proper consideration of the issues raised, and a de novo determination of
those portions of the Recommendation to which objection is made, the Recommendation of the
Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) is adopted as the opinion of this Court.
It is ORDERED that this habeas petition be and is hereby DISMISSED as time-barred.
The petitioner’s Motion to Expand the Record (Doc. 15) is DENIED. Petitioner failed to attach
copies of the documents referenced. Moreover, the Report and Recommendation noted that even
if petitioner paid the filing fee on December 12, 2012, the AEDPA clock’s one-year limitation
period had already run.
It is further ORDERED that any certificate of appealability filed by Petitioner be
DENIED as he is not entitled to appeal in forma pauperis.
DONE and ORDERED this 8th day of August, 2014.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE
Case 1:14-cv-00112-CG-M Document 16 Filed 08/08/14 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_06-cv-02790/USCOURTS-caed-2_06-cv-02790-0/pdf.json | [
[
"Shawn Houston Hern",
"Petitioner"
],
[
"John C. Marshall",
"Respondent"
]
] | 1
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
SHAWN HOUSTON HERN, 1:06-CV-01582-AWI-LJO-HC
Petitioner,
vs.
JOHN C. MARSHALL,
Respondent. ORDER OF TRANSFER
/
Petitioner, a state prisoner proceeding pro se, has filed a habeas corpus action pursuant to
28 U.S.C. § 2254, together with a request to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915.
The petitioner is challenging a conviction from Tehema County, which is part of the
Sacramento Division of the United States District Court for the Eastern District of California.
Therefore, the petition should have been filed in the Sacramento Division.
Pursuant to Local Rule 3-120(b), a civil action which has not been commenced in the
Case 2:06-cv-02790-JAM -JFM Document 5 Filed 12/08/06 Page 1 of 2
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proper court may, on the court’s own motion, be transferred to the proper court. Therefore, this
action will be transferred to the Sacramento Division. This court will not rule on petitioner's
request to proceed in forma pauperis.
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 Sacramento; and
3. All future filings shall reference the new Sacramento case number assigned and shall
be filed at:
United States District Court
Eastern District of California
501 "I" Street, Suite 4-200
Sacramento, CA 95814
IT IS SO ORDERED.
Dated: December 7, 2006 /s/ Lawrence J. O'Neill
23ehd0 UNITED STATES MAGISTRATE JUDGE
Case 2:06-cv-02790-JAM -JFM Document 5 Filed 12/08/06 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca6-08-02340/USCOURTS-ca6-08-02340-0/pdf.json | [
[
"Martin Gubb",
"Appellee"
],
[
"P & M Services, Inc",
"Appellant"
]
] | The Honorable Paul L. Maloney, United States Chief District Judge for the Western District of Michigan,
*
sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0223n.06
Case No. 08-2340
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
P & M SERVICES, INC.,
Plaintiff-Appellant,
v.
MARTIN GUBB,
Defendant-Appellee.
_______________________________________
)
)
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
BEFORE: BATCHELDER, Chief Judge; GIBBONS, Circuit Judge; MALONEY , Chief *
District Judge.
ALICE M. BATCHELDER, Chief Judge. Plaintiff-Appellant P&M Services (“P&M”)
and Defendant-Appellee Martin Gubb (“Gubb”) are participants in a competitive industry that
salvages damaged rolls of paper for resale by resizing them by cutting off the damaged ends. The
two parties have a long history of litigation concerning P&M’s “Papersizer” machine and Gubb’s
“Precision Paper Saw.” In their most recent litigation, P&M sued Gubb on July 7, 2007, claiming
that he had violated the Sherman Act, engaged in unfair competition, and attempted to monopolize
the relevant market by fraudulently obtaining the patent for the Precision Paper Saw and engaging
in sham litigation based on it. The district court granted summary judgment to Gubb, holding that
Case: 08-2340 Document: 006110168783 Filed: 04/09/2010 Page: 1
2
while P&M’s claims are not barred by res judicata, as Gubb had claimed in his motion for summary
judgment, the claims are barred by the statute of limitations. In this appeal, P&M argues only that
the district court erred in holding that its antitrust claims are barred by the statute of limitations, and
that Gubb should be equitably estopped from raising a statute of limitations defense.
After carefully reviewing the record, the applicable law, the parties’ briefs and counsels’
arguments, we are convinced that the district court did not err in its conclusions. Because the district
court’s opinion carefully and correctly sets out the law governing the issues raised, and clearly
articulates the reasons underlying its decision, issuance of a full written opinion by this court would
serve no useful purpose. We note in passing that P&M’s claim here that Gubb should be equitably
estopped from raising the statute of limitations defense is somewhat different from the claim P&M
raised before the district court, namely, that Gubb was judicially estopped from raising the res
judicata defense. Regardless, the district court’s reasoning in finding no merit to the claim before
it applies as well to the estoppel claim raised on appeal.
Accordingly, for the reasons stated in the district court’s opinion, we AFFIRM.
Case: 08-2340 Document: 006110168783 Filed: 04/09/2010 Page: 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_06-cv-01217/USCOURTS-caed-1_06-cv-01217-1/pdf.json | [
[
"Michael P. Monroe",
"Petitioner"
],
[
"Jeff Wrigley",
"Respondent"
]
] | 1
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U.S. District Court
E. D. California cd 1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
MICHAEL P. MONROE, )
)
Petitioner, )
)
v. )
)
JEFF WRIGLEY, Warden, )
)
Respondent. )
____________________________________)
1:06-CV-01217 OWW SMS HC
ORDER VACATING ORDER TO RESPOND
ISSUED ON SEPTEMBER 15, 2006
[Doc. #5]
ORDER DISMISSING PETITIONER’S
MOTION TO SHORTEN TIME
[Doc. #7]
On September 15, 2006, this Court issued an Order directing Respondent to file a response to
the Petition. At this time, the Court hereby VACATES the Order directing Respondent to file a
response. A Findings and Recommendation will be issued contemporaneously with this order.
Because the Order to Respond has been vacated, Petitioner’s Motion to Shorten Time is now moot.
Accordingly, his motion is DISMISSED.
IT IS SO ORDERED.
Dated: October 17, 2006 /s/ Sandra M. Snyder
icido3 UNITED STATES MAGISTRATE JUDGE
Case 1:06-cv-01217-OWW -SMS Document 8 Filed 10/19/06 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca2-14-02120/USCOURTS-ca2-14-02120-0/pdf.json | [
[
"Gary Barnett",
"Appellee"
],
[
"Aviral Rai",
"Appellant"
],
[
"Sangeeta Rai",
"Appellant"
],
[
"WB Imico Lexington Fee, LLC",
"Appellee"
]
] | 14‐1916 (L)
Rai v. WB Imico Lexington Fee
1
2 UNITED STATES COURT OF APPEALS
3 FOR THE SECOND CIRCUIT
4
5
6 August Term, 2014
7
8 (Argued: May 4, 2015 Decided: September 21, 2015)
9
10 Docket Nos. 14‐1916, 14‐2120
11
12 ________________
13
14 AVIRAL RAI, SANGEETA RAI,
15
16 Plaintiffs‐Counter‐Defendants‐
17 Appellees‐Cross‐Appellants,
18
19 — v. —
20
21 WB IMICO LEXINGTON FEE, LLC, GARY BARNETT,
22
23 Defendants‐Counter‐Claimants‐
24 Appellants‐Cross Appellees.
25
26
27
28 B e f o r e:
29
30 WALKER, LYNCH, AND LOHIER, Circuit Judges
31
32 __________________
33
Case 14-2120, Document 59-1, 09/21/2015, 1602595, Page1 of 44
1
2 Defendants WB Imico Lexington Fee, LLC and Gary Barnett (collectively,
3 “Imico”) appeal from a judgment of the district court (Paul G. Gardephe, Judge)
4 granting partial summary judgment to plaintiffs Aviral and Sangeeta Rai (“the
5 Rais”), who had contracted to buy a Manhattan apartment from Imico. The
6 district court held that, by furnishing a copy of the property report required by
7 § 1703(a)(1)(B) of the Interstate Land Sales Full Disclosure Act, 15 U.S.C. §§ 1701
8 et seq. (“ILSA”), to the Rais’ attorney, rather than directly to the Rais, prior to
9 execution of the purchase agreement, Imico violated ILSA and the Rais were
10 therefore entitled to rescind the purchase agreement pursuant to § 1703(c) of that
11 statute. We disagree, and hold that furnishing the required property report to a
12 represented purchaser’s attorney is sufficient to meet a developer’s obligations
13 under that provision, and that the Rais therefore breached their contract.
14
15 On the Rais’ cross‐appeal, we agree with the district court’s holding that,
16 under our decision in Bacolitsas v. 86th & 3rd Owner, LLC, 702 F.3d 673 (2d Cir.
17 2012), Imico’s failure to include a tax lot number in the purchase agreement did
18 not violate § 1703(d)(1) of ILSA. We also hold that, pursuant to the liquidated
19 damages provision in the parties’ purchase agreement and § 1703(d)(3) of the
20 same statute, Imico is entitled to the interest earned in escrow on the Rais’
21 deposit, in addition to the deposit itself, as a remedy for the Rais’ breach of the
22 purchase agreement.
23
24 Accordingly, we AFFIRM the judgment of the district court insofar as it
25 denied summary judgment to the Rais on their breach of contract claim based on
26 Imico’s failure to include a tax lot number in the purchase agreement, and
27 REVERSE the judgment insofar as it granted summary judgment to the Rais
28 based on Imico’s failure to deliver the property report directly to them prior to
29 executing the purchase agreement.
30
31 AFFIRMED IN PART; REVERSED IN PART.
32
33
34
35
2
Case 14-2120, Document 59-1, 09/21/2015, 1602595, Page2 of 44
1
2
3 LAWRENCE C. WEINER, Wilentz, Goldman & Spitzer, P.A.,
4 Woodbridge, NJ, for Plaintiffs‐Counter‐Defendants‐Appellees‐Cross‐
5 Appellants.
6
7 RICHARD H. DOLAN (Thomas A. Kissane, on the brief), Schlam Stone
8 & Dolan LLP, New York, NY, for Defendants‐Counter‐Claimants‐
9 Appellants‐Cross‐Appellees.
10
11 Meredith Fuchs, General Counsel, To‐Quyen Truong, Deputy General
12 Counsel, John R. Coleman, Assistant General Counsel, Nandan M.
13 Joshi and Jessica Rank Divine, Litigation Counsel, Consumer Financial
14 Protection Bureau, Washington, D.C., for Amicus Curiae Consumer
15 Financial Protection Bureau.
16
17
18
19 GERARD E. LYNCH, Circuit Judge:
20
21 This appeal requires us to interpret several provisions of the Interstate
22 Land Sales Full Disclosure Act, 15 U.S.C. §§ 1701 et seq. (“ILSA”). ILSA was
23 enacted in 1968 to combat fraudulent practices in the sale of undeveloped
24 subdivided land to vulnerable consumers misled about the value of the land that
25 they were purchasing, often sight unseen. See Bodansky v. Fifth on Park Condo,
26 LLC, 635 F.3d 75, 79 (2d Cir. 2011); Ronald J. Coffey & James d’A. Welch, Federal
27 Regulation of Land Sales: Full Disclosure Comes Down to Earth, 21 Case W. Res.
28 L. Rev. 5, 6‐10 (1969) (“Coffey & Welch, Full Disclosure”). The Act sought to
3
Case 14-2120, Document 59-1, 09/21/2015, 1602595, Page3 of 44
1 protect purchasers by adopting extensive disclosure provisions resembling the
2 provisions of the Securities Act of 1933. See Coffey & Welch, Full Disclosure 17‐
3 21; see also Flint Ridge Dev. Co. v. Scenic Rivers Ass’n of Okla., 426 U.S. 776, 778
4 (1976).
5 Plaintiffs‐Counter‐Defendants‐Appellees‐Cross‐Appellants Aviral and
6 Sangeeta Rai (“the Rais”) argue that Defendants‐Counter‐Claimants‐Appellants‐
7 Cross‐Appellees WB Imico Lexington Fee, LLC, a real estate developer, and Gary
8 Barnett, a principal of that company (collectively, “Imico”), failed to comply with
9 two such disclosure provisions in connection with the Rais’ attempt to purchase a
10 condominium apartment: § 1703(a)(1)(B), which requires a developer to furnish a
11 purchaser of any non‐exempt lot of land with a property report prior to executing
12 any contract to purchase that land, and § 1703(d)(1), which requires that any
13 contract for the purchase of a non‐exempt lot of land include “a description of the
14 lot which makes such lot clearly identifiable.” The Rais contend that, as a result
15 of such violations by Imico, ILSA’s § 1703(c) entitles them to rescind their
contract with Imico to purchase the apartment.1 16
1 1 We held in Berlin v. Renaissance Rental Partners, LLC that ILSA applied to
2 condominium units in multi‐story buildings, like the one at issue here. 723 F.3d
3 119, 127, 129 (2d Cir. 2013). ILSA was amended in September 2014, however,
4
Case 14-2120, Document 59-1, 09/21/2015, 1602595, Page4 of 44
1 The Rais further contend that Imico violated § 1703(d)(1) of ILSA by failing
2 to include the tax lot number of the apartment in the Purchase Agreement. The
3 parties also disagree about the interpretation of § 1703(d)(3) of ILSA, which
4 provides that, in the case of a purchaser’s default, a seller is entitled to retain
5 from the purchaser’s deposit fifteen percent of the total purchase price of the lot
6 (or the amount of damages incurred by the seller as a result of the default, if
7 greater).
8 We conclude that: (1) Imico complied with § 1703(a)(1)(B) by providing the
9 property report to the Rais’ designated attorney; (2) Imico’s description of the lot
10 was sufficient to meet the requirements of § 1703(d)(1); and (3) Imico is entitled to
11 any interest that accrued on the Rais’ fifteen‐percent down payment while the
12 deposit was in escrow. Accordingly, we affirm the judgment of the district court
13 insofar as it held that Imico did not violate § 1703(d)(1), but reverse the judgment
1 after the district court’s decision in this case and after Imico had submitted its
2 opening brief, to exempt condominium apartments from its disclosure
3 requirements. See An Act to amend the Interstate Land Sales Full Disclosure Act
4 to clarify how the Act applies to condominiums, Pub. L. No. 113‐167, 128 Stat.
5 1882 (2014). We have not yet had occasion to decide whether that amendment
6 has retroactive effect. Cf. Beaver v. Tarsadia Hotels, 29 F. Supp. 3d 1323 (S.D.
7 Cal. 2014) (holding that the amendment does not apply retroactively), appeal
8 filed, No. 14‐80161 (9th Cir. Nov. 7, 2014). We need not consider that issue here,
9 however, in light of our holding that Imico did not violate ILSA in any event.
5
Case 14-2120, Document 59-1, 09/21/2015, 1602595, Page5 of 44
1 insofar as it held that the Rais were entitled to rescind their contract due to
2 Imico’s alleged failure to comply with § 1703(a)(1)(B).
3 BACKGROUND
4
5 The facts relevant to this appeal are largely undisputed. In October 2007,
6 the Rais decided to purchase an apartment in a condominium building, called
7 “The Lucida,” then being erected on East 85th Street in Manhattan. Imico was
8 The Lucida’s developer and sponsor.
9 The Rais identified their attorney on the transaction, John Lewin, to Imico.
10 On October 29, 2007, a legal assistant working for Imico hand‐delivered to Lewin
11 a packet of documents including the property report required by § 1703(a)(1)(B)
12 (the “Property Report” or “Report”) and the condominium’s Offering Plan. The
13 packet was accompanied by a cover letter, which asked Lewin to review the
14 enclosed documents with the Rais and to return a receipt, signed by the Rais,
15 acknowledging their receipt of the documents. The receipt included a notice that
16 Imico was required to provide purchasers with the Property Report before
17 entering into any contract, and that the Rais’ signatures would indicate their
18 acknowledgment that they had received a copy of the Property Report. No
19 signed copy of that receipt has been produced. Although the Rais do not dispute
6
Case 14-2120, Document 59-1, 09/21/2015, 1602595, Page6 of 44
1 that their attorney received the Property Report, they allege that they themselves
2 never saw or received a copy.
3 On November 12, 2007, the Rais entered into a contract with Imico (the
4 “Purchase Agreement”) to purchase Apartment 8C in The Lucida for a price of
5 $4,287,466. The Purchase Agreement required the Rais to make a down payment
6 of fifteen percent of the total purchase price of the apartment, or $643,119.90. The
7 Agreement included the following notice:
8 IF YOU DID NOT RECEIVE A PROPERTY REPORT
9 PREPARED PURSUANT TO THE REGULATIONS OF
10 THE OFFICE OF INTERSTATE LAND SALES
11 REGULATION,U.S.DEPARTMENTOFHOUSINGAND
12 URBAN DEVELOPMENT, IN ADVANCE OF YOUR
13 SIGNING THE CONTRACT OR AGREEMENT, THE
14 CONTRACTORAGREEMENTMAYBE CANCELEDAT
15 YOUR OPTION FOR TWO YEARS FROM THE DATE OF
16 SIGNING.
17
18 Joint App’x 39.
19 On November 9, 2009, after construction on The Lucida was completed, the
20 Rais’ new attorney, Alan Wasserman, sent a letter to Imico informing it that the
21 Rais had not received the Property Report and were exercising their right to
22 rescind the Purchase Agreement. The letter also requested the return of the Rais’
23 down payment plus all accrued interest.
7
Case 14-2120, Document 59-1, 09/21/2015, 1602595, Page7 of 44
1 Disputing the Rais’ claim that they were entitled to rescind the Purchase
2 Agreement, Imico proceeded to set a date scheduled for the closing on
3 Apartment 8C. The Rais did not attend the closing. On July 16, 2010, Imico
4 informed the Rais by letter that they were terminating the Purchase Agreement
5 for default, and that the Rais’ default entitled Imico to retain their deposit and
6 any accrued interest.
7 PROCEDURAL HISTORY
8 On November 18, 2009, the Rais filed suit, alleging that Imico had violated
9 ILSA’s § 1703(a)(1)(B) by failing to furnish the Property Report to them in
10 advance of the execution of the Purchase Agreement, and arguing that such
11 failure entitled the Rais to “rescission and revocation of the Purchase Agreement,
12 return of the deposits pursuant to 15 U.S.C. § 1703(e) and other damages.” Joint
13 App’x 22. The Rais also sought attorneys’ fees, costs, and pre‐ and post‐
14 judgment interest.
15 The Rais subsequently amended their complaint to include two additional
16 counts – also brought in separate actions by other purchasers of apartments in
17 The Lucida – that Imico had violated §§ 1703(d)(1) and 1703(d)(3) of ILSA by,
18 respectively, (1) failing to provide an adequate description of the unit in the
8
Case 14-2120, Document 59-1, 09/21/2015, 1602595, Page8 of 44
1 Purchase Agreement by omitting a tax lot number, and (2) including in the
2 Purchase Agreement a liquidated damages clause that did not comply with
3 § 1703(d)(3). Imico counterclaimed for breach of contract.
4 On March 19, 2012, in a decision addressing the Rais’ claims along with
5 those of the other Lucida plaintiffs, the district court granted summary judgment
6 to all plaintiffs on the ground that Imico had violated ILSA § 1703(d)(1) by not
7 providing tax lot numbers in the plaintiffs’ purchase agreements. Accordingly,
8 the court denied summary judgment to Imico on their breach of contract
9 counterclaim and held that plaintiffs were entitled to rescind their purchase
10 agreements and recover their deposits. Because the court granted summary
11 judgment on that claim, it declined to reach the Rais’ claims under
12 § 1703(a)(1)(B), regarding the Property Report, and § 1703(d)(3), regarding the
13 liquidated damages provision in the Purchase Agreement.
14 Subsequently, this Court issued a decision interpreting § 1703(d)(1) of
15 ILSA. See Bacolitsas v. 86th & 3rd Owner, LLC, 702 F.3d 673 (2d Cir. 2012). In
16 light of that decision, on February 8, 2013, Imico moved the district court to
17 vacate its previous order, arguing that Bacolitsas foreclosed plaintiffs’ claim that
18 failure to include tax lot numbers in the purchase agreements rendered their
9
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1 “description[s] of the lot[s]” deficient under § 1703(d)(1). The district court
2 agreed and therefore vacated its award of summary judgment to all plaintiffs on
3 their claims based on that provision. The court also held that Bacolitsas similarly
4 foreclosed plaintiffs’ argument that the Agreement’s liquidated damages
5 provision violated § 1703(d)(3). Having held that Imico had complied with §§
6 1703(d)(1) and 1703(d)(3) of ILSA, the court granted summary judgment to Imico
7 on its breach of contract counterclaims against nearly all the plaintiffs and held
8 that Imico was entitled to retain those plaintiffs’ deposits, less any interest earned
9 in escrow.
10 As to the Rais, however, the district court again concluded that Imico had
11 violated ILSA. Now having to reach the Rais’ claim under § 1703(a)(1)(B), the
12 district court held that Imico’s failure to furnish the Property Report directly to
13 the Rais prior to executing the Purchase Agreement violated that provision. The
14 Rais, the court held, were therefore still entitled to rescission of the Purchase
15 Agreement and the return of their deposit.
16 On May 12, 2014, the district court denied the Rais’ motion for attorneys’
17 fees and costs but granted them pre‐judgment interest on their deposit at the
18
10
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1 post‐judgment statutory rate set forth in 28 U.S.C. § 1961(a), less any interest that
2 deposit accrued while in escrow.
3 Imico appealed the judgment of the district court, and the Rais cross‐
4 appealed.
5 DISCUSSION
6 We review de novo the district court’s conclusions of law interpreting
7 ILSA, including its grant of summary judgment to the Rais based on
8 § 1703(a)(1)(B) of ILSA, its ruling that Imico’s failure to provide a tax lot number
9 in the Rais’ Purchase Agreement did not violate ILSA § 1703(d)(1), and its
10 interpretation of § 1703(d)(3) of ILSA to require Imico to return any interest
earned on the Rais’ deposit while in escrow.2 11 See Bacolitsas, 702 F.3d at 678;
12 Bodansky, 635 F.3d at 82.
13 I. § 1703(a)(1)(B): The Property Report
14 The Rais’ claim that Imico violated § 1703(a)(1)(B) rests on a strict
15 interpretation of that provision’s use of the word “purchaser.” The Rais maintain
2 1 Because we reverse the district court’s holding that Imico violated
2 § 1703(a)(1)(B) of ILSA, we need not address whether the district court abused its
3 discretion in awarding pre‐judgment interest to the Rais. Imico concedes that,
4 should we reverse the district court’s liability finding, that issue is moot.
11
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1 that the statute requires delivery of the Property Report directly into the hands of
2 the purchaser himself or herself, and that delivery to an attorney representing the
3 purchaser in the transaction therefore does not suffice. They argue that their
4 interpretation is supported by the statute’s plain meaning, canons of statutory
5 construction, the statute’s overall remedial purpose, and the administrative
6 regulations promulgated under ILSA. We address those arguments in turn.
7 A. Plain Meaning and Canons of Interpretation
8 Among the “[r]equirements respecting [the] sale or lease of lots” that ILSA
9 enumerates in the following:
10 It shall be unlawful for any developer or agent, directly
11 or indirectly, to make use of any means or instruments
12 of transportation or communication in interstate
13 commerce, or of the mails . . . to sell or lease any lot
14 unless a printed property report, meeting the
15 requirements of section 1707 of this title, has been
16 furnished to the purchaser or lessee in advance of the
17 signing of any contract or agreement by such purchaser
18 or lessee . . . .
19
20 15 U.S.C. § 1703(a)(1)(B).
21 The Rais emphasize that ILSA requires the report to be furnished to the
22 purchaser, and that the statute defines a “purchaser” as “an actual or prospective
23 purchaser or lessee of any lot in a subdivision,” see id. § 1701(10) – a definition
12
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1 that makes no reference to any agent. ILSA nowhere uses the term “agent” in
2 connection with a purchaser; that term, however, is used throughout the statute
3 in connection with developers. Indeed, the statute defines an “agent” as “any
4 person who represents, or acts for or on behalf of, a developer in selling or leasing,
5 or offering to sell or lease, any lot or lots in a subdivision.” Id. § 1701(6)
6 (emphasis added). Moreover, the Rais note, attorneys are expressly excluded
7 from ILSA’s definition of “agent” when their “representation of another person
8 consists solely of rendering legal services.” See id.
9 The Rais argue that “purchaser” in § 1703(a)(1)(B) must be interpreted to
10 exclude any agent or attorney acting on a purchaser’s behalf. First, they argue
11 that their construction is required by the statute’s plain meaning. Indeed, “when
12 [a] statute’s language is plain, the sole function of the courts – at least where the
13 disposition required by the text is not absurd – is to enforce it according to its
14 terms.” Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004); see also Lee v. Bankers
15 Trust Co., 166 F.3d 540, 544 (2d Cir. 1999) (“It is axiomatic that the plain meaning
16 of a statute controls its interpretation, and that judicial review must end at the
17 statute’s unambiguous terms.”) (internal citation omitted). Second, the Rais
18 invoke the interpretive canon of expressio unius est exclusio alterius to argue that
13
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1 the statute’s express inclusion of the term “agent” with respect to developers, and
2 its precise definition of “agent,” confirms its drafters’ intention to exclude from
3 any definition of “agent” any attorney or other agent of a purchaser.
4 The district court agreed with the Rais that those arguments “indicate[]
5 that Congress was cognizant of agency principles when drafting ILSA; chose to
6 define the term ‘agent’ in a highly restrictive fashion that relates only to
7 developers and not to purchasers; and – in excluding attorneys – adopted a
8 definition that is not consistent with common law principles.” Rai v. WB Imico
9 Lexington Fee, LLC, No. 09 Civ. 9586, 2013 WL 5420940, at *9 (S.D.N.Y. Sept. 27,
10 2013). According to the district court, “[i]t would be anomalous to conclude that
11 Congress intended ‘purchaser’ to include agents when Congress chose to define
12 ‘agent’ as a ‘person who represents, or acts for or on behalf of, a developer.” Id.
13 (emphasis in original).
14 In our view, however, neither the word “purchaser” specifically nor
15 § 1703(a)(1)(B) more generally warrants such a restrictive interpretation. At the
16 outset, we are unpersuaded by the Rais’ plain meaning argument. The terms of
17 the statute do not plainly compel their interpretation. The language to be
18 interpreted is not the word “purchaser” in isolation – we have no doubt that it
14
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1 refers to the party actually purchasing the property – but rather the full phrase of
2 which it forms a part. ILSA requires that a copy of the Property Report be
3 “furnished to the purchaser.” The Rais argue that they, the “purchaser[s],” were
4 not “furnished” with a copy of the Report, because one was not delivered to
5 them. But the language of the statute is at least equally consistent with Imico’s
6 claim that it “furnished” the Rais with a copy of the report by delivering one to
7 the attorney who was acting on their behalf in connection with the transaction.
8 Since the meaning of the language of the provision is not plain, we must look
9 beyond “plain meaning” to interpret it.
10 Ambiguous language in statutes should be interpreted in light of
11 background legal concepts and ordinary commercial practice. See Viacom Int’l,
12 Inc. v. YouTube, Inc., 676 F.3d 19, 35 (2d Cir. 2012) (“As a general matter, we
13 interpret a statute to abrogate a common law principle only if the statute speaks
14 directly to the question addressed by the common law.”) (internal quotation
15 marks omitted). As the district court, notwithstanding its ultimate conclusion,
16 recognized, Rai, 2013 WL 5420940, at *9, the Rais’ interpretation defies traditional
17 common law principles of agency and conflicts with the usual course of dealing
18 in transactions in which parties are represented by attorneys. These established
15
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1 common law principles of agency support the interpretation urged by Imico: that
2 delivery of a Property Report to a purchaser’s designated attorney constitutes
“furnish[ing]” a copy of the Report to the purchaser and complies with ILSA.3 3
4 We begin with a proposition fundamental to the law of agency. “For most
5 purposes, a person can properly create a power in an agent to achieve the same
6 legal consequences by the performance of an act as if he himself had personally
7 acted.” American Law Institute, Restatement (Second) of Agency § 17, cmt. a
8 (1958). More specifically, “[a] person has notice of a fact if his agent has
9 knowledge of the fact, reason to know it or should know it, or has been given a
10 notification of it.” Id. § 9(3). See also Restatement (Third) of Agency § 5.02 (“A
11 notification given to an agent is effective as notice to the principal if the agent has
3 1 The Consumer Financial Protection Bureau (“CFPB”), which is now responsible
2 for administering ILSA, see the Dodd‐Frank Wall Street Reform and Consumer
3 Protection Act, Pub. L. No. 111‐203, sections 1061(b)(7) and 1098A, 124 Stat. 1376,
4 2038, 2105 (2010), codified at 12 U.S.C. § 5581(b)(7) and 15 U.S.C. §§ 1715, 1718
5 (2012), and whose views on the question the Court solicited, concurs in this
6 conclusion, advising that in its view ILSA “permit[s] a developer to comply with
7 § 1703 by delivering the property report to the purchaser’s designated agent.”
8 CFPB Amicus Br. 12‐13. We afford the CFPB’s interpretation Skidmore deference
9 “on account of the specialized experience and information available to the
10 agency,” and because the “reasonable determination . . . advanced in [its] amicus
11 brief . . . is not a post hoc rationalization.” See Conn. Office of Prot. and
12 Advocacy For Pers. With Disabilities v. Hartford Bd. of Educ., 464 F.3d 229, 239
13 (2d Cir. 2006) (citing Skidmore v. Swift & Co., 323 U.S. 134, 139 (1944)).
16
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1 actual or apparent authority to receive the notification . . . .”); id. § 5.03 (“[N]otice
2 of a fact that an agent knows or has reason to know is imputed to the principal if
3 knowledge of the fact is material to the agent’s duties to the principal . . . .”).
4 Where, as here, a third party has no reason to believe that an agent will shirk his
5 duties to the principal, that party’s provision of a document to a clearly
6 designated agent, particularly with instructions to review the document with the
7 principal, satisfies any duty of notification under ordinary circumstances. See id.
8 § 5.02; see also Corporacion de Mercadeo Agricola v. Mellon Bank Int’l, 608 F.2d
9 43, 46 (2d Cir. 1979) (where revocation notice was sent to corporation, knowledge
10 of revocation was imputed to corporation, even where sent to the wrong bureau,
11 because “[n]otice to the agent . . . is notice to the principal, unless the person
12 giving notice has reason to know that the agent has no duty to or will not
13 transmit the message to the principal.”).
14 It is well established, moreover, that an attorney retained either for
15 litigation or to represent a party in the course of a transaction is that party’s
16 agent. “The relationship between an attorney and the client he or she represents
17 in a lawsuit is one of agent and principal.” Veal v. Geraci, 23 F.3d 722, 725 (2d
18 Cir. 1994). In connection with a transaction, “it is an agent’s duty to
17
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1 communicate to his principal the knowledge he has concerning the subject of
2 negotiation and there is a presumption that he will perform that duty. . . . The
3 rational explanation . . . is that common justice requires that one who puts
4 forward an agent to do his business should not escape the consequences of notice
5 to, or knowledge of, his agent.” Munroe v. Harriman, 85 F.2d 493, 495 (2d Cir.
6 1936). The proper course of dealing in both litigation and transactions in which
7 parties are represented by counsel is to direct all legal documents through
8 counsel. See, e.g., Fed. R. Civ. P. 5(b)(1) (“If a party is represented by an attorney,
9 service . . . must be made on the attorney unless the court orders service on the
10 party.”).
11 In contrast, the Rais have not pointed us to a single instance where delivery
12 of a document required by statute or rule to a represented party’s attorney has
13 been held insufficient to meet a disclosure obligation. Absent a clear expression
14 to the contrary in ILSA, then, Imico’s provision of the Property Report to the
15 Rais’ attorney was sufficient to meet ILSA’s mandate that the Property Report be
16 “furnished” or “given” to the purchaser. See 15 U.S.C. § 1703(a)(1)(B), 1703(c).
17
18 There is no such contrary indication in ILSA. First, the statute nowhere
18
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1 states that the Property Report must be given directly to a purchaser, rather than
2 to the purchaser’s attorney. The use of the passive verbs “furnished” and
3 “given” indicates that the purchaser must be provided with a copy of the Report.
4 Neither provision states, however, that the developer must hand the Report
5 directly to the purchaser, and not to the purchaser’s attorney, who likely handles
6 all other documents relevant to the transaction. Indeed, even where an attorney
7 is not involved in the transaction, it would be peculiar to interpret the statute as
8 forbidding the developer to satisfy its obligation to furnish the Report to a
9 purchaser by providing a copy to the purchaser’s agent. Has a developer not
10 “furnished” the purchaser with a copy of the Report if he hands it to a messenger
11 dispatched by the purchaser to receive it? Or if he leaves it with the purchaser’s
secretary or receptionist?4 12
13 Nor are we persuaded by the Rais’ argument that the ordinary rules of
14 agency do not apply under ILSA because the statute expressly defines “agents”
15 as persons acting on behalf of developers, and excludes attorneys from the
16 definition of “agent.” 15 U.S.C. § 1701(6). The statute defines “agent” as that
4 1 Indeed, as the CFPB notes, if the purchaser is a corporation, it can only be
2 furnished a document by supplying the document to one of its human agents.
3 CFPB Amicus Br. 12.
19
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1 term is used in ILSA itself; it does not purport to overturn ordinary legal
2 principles or trump normal business practices in interpreting provisions of ILSA
3 that do not use that term. ILSA uses the term “agent” only in reference to
4 developers, and only in making clear that the obligations on developers also
apply to their agents (but not to attorneys acting on their behalf).5 5 See, e.g., 15
6 U.S.C. § 1703(a) (making it “unlawful for any developer or agent” to engage in
7 certain activities); § 1706(e) (authorizing the Bureau to access the books and
8 papers of “the developer, any agents, or any other person”); § 1709(a)
9 (authorizing private actions against “a developer or agent”). That Congress was
10 silent as to the role of attorneys representing purchasers in such transactions is
1 5 We agree with Imico’s suggestion that the exclusion of attorneys in this context
2 is intended “to avoid intruding on the attorney‐client relationship, or to impose
3 on an attorney a disclosure obligation that could possibly conflict with the
4 attorney‐client privilege.” Appellants’ Br. 23. There is no reason to believe that,
5 in connection with the notice obligation in § 1703(a)(1)(B), which does not refer to
6 “agents” at all, the exclusion of attorneys from the definition of “agent” is
7 somehow meant to provide that handing the Property Report to an employee of a
8 purchaser such as a receptionist or messenger counts as furnishing the Report to
9 the purchaser, while giving one to the purchaser’s attorney does not. The CFPB
10 also agrees, noting that “the exclusion of attorneys from ILSA’s definition of
11 ‘agent’ has no relevance. The exclusion simply means that attorneys will not
12 be held liable as ‘agents’ under ILSA; it does not suggest that attorneys cannot act
13 as a purchaser’s agent with respect to the receipt of property reports from a
14 developer.” CFPB Amicus Br. 17 n.8 (internal citation omitted).
20
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1 unsurprising, since Congress did not seek to impose any new obligations on
2 purchasers or on those acting on their behalf. Such silence does not evince a
3 specific intent to overturn ordinary principles of the law of agency, or to require
4 delivery of required documents personally to purchasers rather than to their
5 agents, including attorneys. As the Supreme Court has recently reminded us, in
6 interpreting acts of Congress, a court’s “duty . . . is to construe statutes, not
7 isolated provisions.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (internal
8 quotation marks omitted). The statute’s overall scheme aims to combat
9 unscrupulous practices on the part of developers, not to upend the usual
10 mechanics of real estate transactions for both developers and purchasers.
11 The Rais’ argument that the expressio unius canon of statutory construction
12 further demonstrates that the statute excludes altogether attorneys acting on
13 behalf of purchasers is similarly unpersuasive. That canon “has force only when
14 the items expressed are members of an associated group or series, justifying the
15 inference that items not mentioned were excluded by deliberate choice, not
16 inadvertence.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (internal
17 quotation marks omitted). Rather than setting forth a “series of two or more
18 terms or things that should be understood to go hand in hand, thus raising the
21
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1 inference that a similar unlisted term was deliberately excluded,” Frank G. v. Bd.
2 of Educ. of Hyde Park, 459 F.3d 356, 370 (2d Cir. 2006) (internal quotation marks
3 omitted), ILSA simply defines “agent,” as that term is specifically used in various
4 provisions of the statute in connection with developers, and fails to reference
5 agency in connection to purchasers in other provisions. Such an approach does
6 not present an “associated group or series” that calls to mind a conspicuously
7 absent item. On both a conceptual and a linguistic level, then, there is no
8 indication that ILSA’s drafters “considered the unnamed possibility and meant to
9 say no to it.” Barnhart, 537 U.S. at 168. Under these circumstances, the statute’s
silence does not warrant an expressio unius inference.6 10
11 Neither the text of ILSA nor any applicable canon of interpretation
12 suggests an intent on the part of Congress to deviate from ordinary common law
13 agency principles in connection with the provision of notices, or to disrupt the
14 ordinary industry practice in real estate transactions of providing documents to a
15 party’s attorney where that party has designated one. Nor have the Rais pointed
1 6 Moreover, even if the canon were applicable, we are not to treat “as conclusive
2 the inference that Congress intended to exclude that which it did not explicitly
3 include,” but rather to view the canon “as but an aid to construction.” Frank G.,
4 459 F.3d at 370.
22
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1 to any legislative history suggesting such an intent.
2 B. ILSA’s Purpose
3 The Rais also cite ILSA’s overall remedial purpose in support of their
4 interpretation of § 1701(a)(1)(B). They argue that requiring delivery of a property
5 report to purchasers directly, rather than to their attorneys, furthers ILSA’s
6 comprehensive disclosure goals by making it more likely that buyers will
7 actually receive the required information, and will receive it sufficiently in
8 advance of their execution of a contract.
9 But permitting delivery of a property report through an attorney – where a
10 party has opted to be represented by an attorney for purposes of the transaction –
11 is equally consistent with ILSA’s consumer protection purpose. Here, the Rais
12 notified Imico that they had retained an attorney, and under such circumstances,
13 consumer protection interests are unlikely to be furthered by requiring the
14 developer to disregard the purchasers’ preference for representation by counsel
15 and to deliver the Property Report, unlike the other offering documents, directly
16 to the purchaser. As Imico notes, it is precisely for consumer protection purposes
17 that parties choose to retain counsel to provide them with advice and assistance,
18 especially in the case of large transactions such as the Rais’ purchase here in
23
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1 excess of four million dollars. It is of no moment that “at the inception of the
2 transaction and before a purchase agreement is signed – the point at which the
3 Act mandates that the Property Report be supplied – purchasers often are not
4 even represented by counsel.” Appellees’ Br. 26. Imico merely argues that, in the
5 instances in which they are so represented, ILSA’s consumer protection goal is
6 furthered by heeding, not ignoring, purchasers’ desire to conduct the transaction
through counsel. We agree.7 7 Where parties to large commercial transactions are
8 represented by lawyers, the vast majority of documents will be reviewed by
9 counsel in the first instance, and we see no reason why the Property Report
10 should not be entrusted to counsel in accordance with a purchaser’s wishes. As
11 with other documents, where the developer has provided a copy to the party’s
12 designated attorney, the developer has fulfilled his obligations under
13 § 1703(a)(1)(B).
14 Practical considerations also militate in favor of Imico’s interpretation of
7 1 So does the CFPB, the agency tasked not only specifically with administering
2 ILSA, but more generally with protecting the interests of consumers in financial
3 transactions: “[A]llowing purchasers the flexibility to appoint agents to manage
4 their ILSA‐covered transactions is consistent with ILSA’s statutory purpose. . . .
5 None of [its] purposes are undermined if, instead of reviewing the property
6 report directly, the consumer elects to hire counsel to receive and review the
7 relevant materials.” CFPB Amicus Br. 20‐21.
24
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1 the statute. For example, delivery directly to a purchaser may prove difficult in
2 some instances, and a developer or the developer’s agent might, for example,
3 leave a copy with a purchaser’s assistant, a messenger, or a receptionist. We find
4 it difficult to believe that Congress intended to forbid any such method of
5 delivery, yet the Rais’ interpretation would demand delivery directly into the
6 hands of a purchaser, excluding any agent at all – whether messenger, attorney,
7 or assistant – on pain of rescission of the entire contract. Additionally, the
8 common practice of forming a corporation, limited liability company, or family
9 trust for the purpose of purchasing real estate would present perplexing
10 questions were we to adopt the Rais’ interpretation. Where the purchaser has
11 done so, it makes even more sense to assume that relevant documents will, and
12 should, be routed through the relevant entity’s attorney. As noted above, in the
13 case of a corporation, the only way to furnish notice of a fact is through an agent.
14 Nothing in ILSA suggests that Congress intended to foreclose or complicate that
15 manner of conducting real estate transactions.
16
17
18 C. Administrative Regulations
25
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1 Finally, the Rais point to the administrative regulations promulgated
2 under ILSA by the U.S. Department of Housing and Urban Development
(“HUD”), and subsequently reissued by the CFPB,8 3 which require that several
4 cautionary statements be incorporated, jot‐for‐jot, in the Property Report. For
5 example, the cover page must contain the exhortation: “READ THIS PROPERTY
6 REPORT BEFORE SIGNING ANYTHING,” 12 C.F.R. § 1010.105(b), and the next
7 page must remind the purchaser to “read all warnings carefully before signing
8 any contract or agreement,” id. § 1010.107. Finally, the receipt must state: “We
9 must give you a copy of this Property Report and give you an opportunity to
10 read it before you sign any contract or agreement. By signing this receipt, you
11 acknowledge that you have received a copy of our Property Report.” Id.
12 § 1010.118, Appendix; see also Joint App’x 318 (unsigned receipt form provided
13 to the Rais’ attorney). According to the Rais, the cautionary statements and use
14 of the second‐person pronoun in this required document further demonstrate
15 that the report must be given to the actual purchaser, rather than to the
16 purchaser’s agent.
17 But these requirements tell us nothing more than is inherent in the
8 1 As noted above, the CFPB is now entrusted with the rulemaking authority
2 under ILSA that was formerly granted to HUD. See 12 U.S.C. § 5581(b)(7).
26
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1 statutory provision itself: that the Property Report is intended to be “furnish[ed]
2 to the purchaser.” 15 U.S.C. § 1703(a)(1)(b). Its content is addressed to the
3 purchaser, and the developer is required to make it available to the purchaser.
4 Neither the overall wording of the Report and receipt nor the use of the second
5 person, however, suggests that the delivery of the Property Report to the
6 purchaser through an agent such as the purchaser’s attorney violates the statute.
7 The CFPB confirms this conclusion, advising that its regulations “do not purport
8 to address the method by which a property report must be delivered to
purchasers who have hired an attorney to represent them.” CFPB Amicus Br. 13.9 9
10 In sum, we conclude, based on the provision’s text as informed by
11 principles of statutory construction, the purpose of the statute, and the
12 administrative regulations promulgated under the statute, that delivery of a
13 Property Report to a party’s designated attorney complies with § 1703(a)(1)(B) of
14 ILSA. Imico therefore acted in accordance with that provision, and the Rais are
15 not entitled to rescind the Purchase Agreement on the basis of that provision.
9 1 The Rais have not contended that the Imico’s apparent failure to secure and
2 retain a signed copy of the receipt violates ILSA or warrants the extreme remedy
3 of rescission. We therefore do not consider whether such an argument would
4 have merit.
27
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1 II. § 1703(d)(1): Tax Lot Numbers
2 In their cross‐appeal, the Rais argue that the district court erred in
3 vacating, in light of this Court’s decision in Bacolitsas, its previous decision that
4 Imico’s failure to include tax lot numbers for the individual units in the Lucida
5 plaintiffs’ purchase agreements violated a different provision of ILSA,
6 § 1703(d)(1). We reject the Rais’ argument that the failure to provide a tax lot
7 number renders Imico’s “description of the[ir] lot” under § 1703(d)(1) deficient,
8 and agree with the district court that Bacolitsas forecloses such a claim.
9 ILSA provides that a purchaser may revoke, within two years of the date of
10 signing, “[a]ny contract or agreement which is for the sale or lease of a
11 lot . . . which does not provide . . . a description of the lot which makes such lot
12 clearly identifiable and which is in a form acceptable for recording by the
13 appropriate public official responsible for maintaining land records in the
14 jurisdiction in which the lot is located.” 15 U.S.C. § 1703(d)(1). According to the
15 Rais, that provision required that the tax lot number of the unit they were
16 purchasing be included in the Purchase Agreement, both because that
17 information would be required in a deed conveying the unit in order for it to be
18 acceptable to the Office of the City Register in Manhattan – the “appropriate
28
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1 public official for maintaining land records in the jurisdiction” in which The
2 Lucida is located [Pl. Br. 32‐33] – and because the tax lot number is a useful and
3 commonly employed method of identifying property [Pl. Br. 34]. The Rais’ unit,
4 however, was identified only as “the unit (‘Unit’) to be designated as Unit 8C in
the [Condominium Offering] Plan.” Joint App’x 26.10 5
6 In Bacolitsas, plaintiffs sought to revoke a purchase agreement for
7 defendants’ failure to comply with § 1703(d)(1). In that case, as here, plaintiffs
8 had entered into an agreement to purchase a unit in a condominium building still
9 under construction. 702 F.3d at 677. They sought to revoke the agreement, inter
10 alia, on the grounds that the purchase agreement’s description of the property
11 was inadequate to satisfy § 1703(d)(1). Id. at 679. The district court held for
12 plaintiffs, on the basis that the statute requires that the purchase agreement itself
13 be recordable – which it was not, because it had not been “acknowledged or
10 1 At oral argument, the Rais contended that Imico’s apparent failure to secure
2 and retain a signed copy of the receipt violated ILSA and warranted the extreme
3 remedy of recission. Oral Arg. Tr. at 17:1‐3. They acknowledged, however, that
4 there may be other methods of proving the purchaser received the Report. Id. At
5 11:25‐12:6. One such method is proving that the Property Report was given to
6 the purchaser’s agent. To the extent that the Rais argue that a developer
7 necessarily violates ILSA if it cannot produce such a receipt, we reject that
8 argument.
29
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1 proved.” Id.
2 We reversed, however, in an opinion that elaborated on the requirements
3 set forth in § 1703(d)(1). First, we held that the contract or agreement itself need
4 not be in a form acceptable for recording, so long as the document includes a
5 description of the lot that “(1) makes such lot clearly identifiable and (2) is in a
6 form acceptable for recording.” Id. at 679‐80 (emphasis in original) (internal
7 quotation marks omitted). “[I]nterpreting the statute to require that the contract
8 or agreement satisfy the technical requirements for recordability in the applicable
9 local jurisdiction” did not, we held, further ILSA’s purpose. Id. at 680.
10 Bacolitsas went on to address whether the description of the unit contained
11 in the agreement in that case satisfied ILSA. See id. at 680‐85. Plaintiffs there
12 contended that, because a condominium unit deed in New York must include
13 “the liber, page and date of recording of the [condominium] declaration,” N.Y.
14 Real Prop. L. § 339‐o, the description of the lot in a purchase agreement, if it is to
15 be in a “form acceptable for recording,” must likewise contain those items. 702
16 F.3d at 681. We disagreed, however, explaining that “nothing in § 1703(d)(1)
17 suggests that Congress intended the description of the lot mandated under ILSA
18 be coextensive with what is required for conveyance of an individual unit in the
30
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1 relevant jurisdiction.” Id. A contrary ruling, moreover, would have prohibited
2 the “common and long‐standing” practice of executing purchase agreements
3 before a development has been completed, because only once construction is
4 finished can a declaration be recorded, and can the “liber, page and date of [its]
5 recording” be provided. Id. at 682, citing N.Y. Real Prop. L. § 339‐o. Other
6 provisions of ILSA demonstrate that Congress was aware of that practice and did
7 not intend to foreclose it; Congress necessarily contemplated, therefore, “that the
8 description of a unit required under § 1703(d)(1) m[ight] not be adequate for
9 conveyance.” Id. Bacolitsas accordingly held that “[b]y its plain language, the
10 description of the lot [required by § 1703(d)(1)] need not be equivalent to the type
11 of description required to convey the unit.” Id. at 683. Defendants’ failure to
12 include the “liber, page and date of recording” did not, therefore, render the
13 description of the lot in Bacolitsas deficient under § 1703(d)(1).
14 The Rais argue that the Bacolitsas holding is inapposite, because they
15 contend neither that the Purchase Agreement itself must be recordable under
16 § 1703(d)(1), as the district court held in Bacolitsas, nor that the description of
17 their unit was inadequate for lacking the “liber, page and date of recording.”
18 Instead, as discussed above, they argue that it is the absence of a tax lot number
31
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1 that renders the description of the unit here deficient, because under New York
2 law, a recording officer is prohibited from recording “any conveyance of real
3 property . . . unless accompanied by a transfer report form . . . [containing] . . . the
4 appropriate tax map designation, if any.” N.Y. Real Prop. L. § 333(1‐e)(i), (ii)(3).
5 In further support of their argument, the Rais emphasize that, unlike the
6 developer in Bacolitsas, Imico had already sold enough units for tax lot numbers
7 to be designated, and therefore could conceivably have supplied tax lot numbers
8 for the individual units in their purchase agreements. Finally, they employ
9 Imico’s own words regarding the necessity of tax lot numbers for proper
10 identification and recordation of a unit to suggest that Imico has conceded that
11 the Purchase Agreement did not comply with § 1703(d)(1).
12 To be sure, the absence of tax lot numbers was not the specific subject of
13 the Bacolitsas plaintiffs’ argument. But we agree with the district court that our
14 “reasoning [in Bacolitsas] as to ‘liber, page and date of recording of the
15 declaration’ applies with equal force to unit‐specific tax lot numbers.” Rai, 2013
16 WL 5420940, at *5. Bacolitsas held that the test for sufficiency of a lot description
17 under § 1703(d)(1) was not coextensive with what is required for conveyance,
18 because in drafting ILSA, “Congress was concerned with disclosure, not
32
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1 conveyance.” Bacolitsas, 702 F.3d at 681 (emphasis in original). And our
2 reasoning in Bacolitsas explicitly contemplated that a description could be
3 sufficient under § 1703(d)(1) even without a tax lot number, observing that “it is
4 common in New York for sponsors to offer units for sale and to enter into
5 purchase agreements for those units prior to the filing of the condominium
6 declaration. . . . [B]ecause a condominium declaration ordinarily cannot be filed
7 until new tax lot numbers are assigned to each unit, which can only occur once
8 construction is complete, buyers often will execute purchase agreements before
9 the declaration is recorded, i.e., prior to completion of the development.” Id. at
10 682 (internal citation omitted). In other words, acknowledging that no tax lot
11 number had been provided to the Bacolitsas plaintiffs, we held that the purchase
12 agreement nevertheless complied with § 1703(d)(1).
13 The Rais attempt to distinguish this case from Bacolitsas by highlighting
14 that, at the time they entered into the Purchase Agreement, purchase agreements
15 had been signed for at least fifteen percent of the units being offered for sale,
16 which meant that the Condominium Offering Plan could be declared effective
17 and that tax lot numbers could therefore have been obtained, pursuant to 13
18 N.Y.C.R.R. § 20.3(q). But they point us to no provision or case law that obligates
33
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1 a developer to obtain tax lot numbers as soon as that fifteen percent mark is
2 reached, or that ILSA allows rescission of a purchase agreement where the
3 developer could have acquired and disclosed a tax lot number but failed to do so
4 (while not allowing such rescission when the purchase agreement is for one
5 within the first fifteen percent of units sold). By pointing to the frequent practice
6 of purchasers executing contracts prior to the point at which a developer can
7 obtain those numbers in support of the conclusion that § 1703(d)(1)’s intent was
8 not to mandate the inclusion of all information – including tax lot numbers –
9 required for conveyance in a purchase agreement, see Bacolitsas, 702 F.3d at 682,
10 Bacolitsas did not limit its holding only to circumstances in which tax lot
11 numbers could not conceivably be provided in a purchase agreement. The
12 absence of a tax lot number did not render the Purchase Agreement deficient
13 under § 1703(d)(1), regardless of the stage of The Lucida’s completion at the time
14 the Purchase Agreement was executed. The Rais do not contend that any of the
15 information that we held to be sufficient to satisfy § 1703(d)(1) in Bacolitsas, see
16 id. at 684 n.6, was withheld from them in this case. See Rai, 2013 WL 5420940, at
17 *6.
18 Finally, the Rais attempt to bolster their argument with Imico’s own words,
34
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1 in the Declaration of Condominium, to the effect that a tax lot number is
2 “necessary for the proper identification” of a unit. Joint App’x 224. That
3 statement directs the purchaser to “Exhibit B” of the Declaration for that
4 “necessary” information. Id. But Exhibit B, the Rais protest, provides a chart
5 with space to list each unit and its corresponding tax lot number, along with
6 other information, that remains blank and contains the header “TO BE
7 COMPLETED PRIOR TO RECORDATION OF CONDOMINIUM
8 DECLARATION.” Rai v. WB Imico, No. 09 Civ. 9586 (PGG), ECF No. 18, Ex. 12
9 at 972. The Rais characterize these statements as concessions by Imico that a
10 unit’s tax lot number must be included in its purchase agreement in order for that
11 agreement to meet § 1703(d)(1)’s requirement that the description be in a “form
12 acceptable for recording.”
13 But neither statement constitutes such a concession. That Imico described
14 a number of attributes as “necessary for the identification” of each unit does not
15 mean that each attribute is required to provide a legally adequate description of
16 the unit for purposes of ILSA. That information was to be filled in “prior to
17 recordation” of the Condominium Declaration; its absence, however, does not
18 demonstrate that the description of the unit given to the Rais in their Purchase
35
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1 Agreement was inadequate – it merely restates the fact that that description did
2 not include all of the information required to legally convey the unit. Per the
3 foregoing discussion, that does not mean the description violated § 1703(d)(1).
4 Accordingly, we affirm the district court’s conclusion that Imico complied
5 with ILSA § 1703(d)(1).
6 III. § 1703(d)(3): Interest
7 Because Imico did not violate either ILSA § 1701(a)(1)(B) or § 1703(d)(1), it
8 follows that the Rais were not entitled to rescind the Purchase Agreement, and
9 that they therefore breached their contract with Imico by failing to close on the
10 transaction. That breach necessarily raises the question of the remedy to which
11 Imico is entitled.
12 In this case, that remedy is set out in both the Purchase Agreement and in
13 ILSA. The Purchase Agreement contains a liquidated damages provision that
14 states:
15 [I]f and only to the extent that the sale of the unit is not
16 exempt from the provisions of [ILSA], the amount of the
17 Deposit to be retained by [Imico] upon Purchaser’s
18 failure to cure a default . . . will be the greater of (i)
19 fifteen percent (15%) of the Purchase Price (excluding
20 any interest owed) or (ii) the amount of damages
21 incurred by [Imico] due to the default.
22
36
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1 Joint App’x 32. That provision complies with ILSA’s requirement that a contract
2 provide
3 that, if the purchaser . . . loses rights . . . in the lot as a
4 result of a default or breach of the contract or agreement
5 which occurs after the purchaser . . . has paid 15 per
6 centum of the purchase price of the lot, excluding any
7 interest owed under the contract or agreement, the
8 seller . . . shall refund to such purchaser . . . any amount
9 which remains after subtracting (A) 15 per centum of
10 the purchase price of the lot, excluding any interest
11 owed under the contract or agreement, or the amount of
12 damages incurred by the seller . . . as a result of such
13 breach, whichever is greater, from (B) the amount paid
14 by the purchaser . . . , excluding any interest paid under
15 the contract or agreement.
16
17 15 U.S.C. § 1703(d)(3).
18 Imico argues that both the text of these provisions and standard practice in
19 the real estate industry compel a finding that they are entitled to retain any
20 interest earned on the Rais’ fifteen percent deposit while it was in escrow, along
21 with the deposit itself. The Rais contend that, should they be found to have
22 breached the contract, Imico is entitled only to the statutorily mandated fifteen
23 percent deposit, and no more, requiring that Imico refund to them any interest
24 earned on that deposit. They argue first, however, that the issue of who is
25 entitled to any interest earned on the deposit is not even properly before us,
37
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1 because the district court, having ruled in favor of the Rais on the liability issues,
2 did not reach the issue of any damages due on Imico’s counterclaim.
3 The Rais’ argument would have us ignore the fact that the issue of
4 entitlement to interest on the deposit was raised and briefed before the district
5 court, and indeed decided by that court. The district court addressed that issue
6 with respect to the other Lucida apartment purchasers, whom it held to be in
7 breach of their contracts when it found that Imico had not violated § 1703(d)(1),
8 and who are therefore situated identically to the Rais in light of our decision
9 today. The district court held that, because those other plaintiffs’ deposits all
10 amounted to exactly fifteen percent of the purchase price, and Imico had not pled
11 any damages, any interest earned on those deposits was to be returned to
12 plaintiffs. Rai, 2013 WL 5420940, at *11 n.23.
13 Although we generally do not consider arguments not addressed by the
14 district court, as we noted in Bacolitsas, that “is a prudential rule we apply at our
15 discretion,” and “[i]n determining whether to consider such issues, we rely on a
16 number of factors, including the interests of judicial economy, and whether the
17 unaddressed issues present pure questions of law.” Bacolitsas, 702 F.3d at 681
18 (internal citations omitted); see also Booking v. Gen. Star Mgmt. Co., 254 F.3d
38
Case 14-2120, Document 59-1, 09/21/2015, 1602595, Page38 of 44
1 414, 418‐19 (2d Cir. 2001) (noting that we have “broad discretion to consider
2 issues not raised in the District Court,” and that it therefore “follows . . . that we
3 have discretion to consider issues that were raised, briefed, and argued in the
4 District Court, but that were not reached there.”). Those factors militate in favor
5 of reaching the issue of the accrued interest here. The question of entitlement to
6 that interest, which is governed by statutory and contractual provisions, presents
7 a purely legal issue. Confronting the question now would also further the
8 interest of judicial economy. Were we to remand this case to the district court to
9 determine which party should retain the interest, there is no reason to think that
10 the district court would arrive at a different conclusion than it reached as to all of
11 the other plaintiffs whom it found to be in breach of their contracts with Imico.
12 Doing so would therefore only result in delay and in additional, and
13 unnecessary, expenditure of time and resources by the parties, by the district
14 court, and eventually by this Court on a subsequent appeal. In light of the Rais’
15 failure to point to any material difference between their own position and that of
16 the other Lucida plaintiffs – despite their having been on notice, from at least the
17 filing of Imico’s opening brief, that Imico was asking the Court to address the
18 issue of interest on their down payment – we see no reason not to decide that
39
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1 question. See Bacolitsas, 702 F.3d at 681; Petrosino v. Bell Atl., 385 F.3d 210, 224
2 (2d Cir. 2004).
3 We conclude that the relevant provisions of ILSA and the Purchase
4 Agreement do not undermine the standard rule that a party entitled to a payment
5 is also entitled to interest earned on that payment during the time the party was
6 deprived thereof. Section 1703(d)(3) “exclud[es] any interest” at each stage of the
7 calculation of damages it prescribes. In calculating fifteen percent of the
8 purchase price of the lot, “any interest owed” is to be excluded; in calculating the
9 total amount paid by the purchaser, “any interest paid” is to be excluded. The
10 former is to be retained by the seller, and any amount which remains after
11 subtracting the former from the latter – that is, if the purchaser previously put
12 down a deposit greater than fifteen percent – is to be returned to the purchaser.
13 Consistent with ILSA, the parties’ Purchase Agreement instructs that Imico is to
14 retain fifteen percent of the purchase price, also “excluding any interest owed”
15 (unless the damages they have incurred exceeds that amount). While these
16 provisions are hardly models of clarity, they indicate that interest is not to factor
17 into the liquidated damages calculation.
18
40
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1 That a developer must refund an amount that is calculated by excluding
2 any interest owed or paid under the contract, and may retain an amount that
3 likewise excludes any consideration of interest owed or paid under the contract,
4 does not speak either way, in our view, to which party is entitled to the interest
5 earned on a deposit held in escrow. And in the absence of any statutory mandate
6 as to that interest, we find no reason to deviate from the common law rule, well
7 established in New York and elsewhere, that “interest follows principal” and
8 therefore is the “property of the owner of the principal.” Phillips v. Wash. Legal
9 Found., 524 U.S. 156, 165, 172 (1998) (internal quotation marks omitted)
10 (collecting cases); see also Stuarco, Inc. v. Slafbro Realty Corp., 289 N.Y.S.2d 883,
11 885 (2d Dep’t 1968) (tenant was entitled to the interest accrued on a security
12 deposit, even in the absence of a provision in the lease regarding interest,
13 because, under New York’s General Obligations Law, deposit and interest
14 accrued thereon continued to belong to tenant and was merely being “held in
15 trust” by landlord); Havender v. Brodbeck, 144 N.Y.S. 418, 419 (1st Dep’t 1913)
16 (“Ordinarily interest follows the principal, as the shadow does the substance.”)
17 (internal quotation marks omitted); cf. Webb’s Fabulous Pharmacies, Inc. v.
18 Beckwith, 449 U.S. 155, 162 (1980) (“The usual and general rule is that any
41
Case 14-2120, Document 59-1, 09/21/2015, 1602595, Page41 of 44
1 interest on an interpleaded and deposited fund follows the principal and is to be
2 allocated to those who are ultimately to be the owners of that principal.”).
3 That rule is premised on basic principles of fairness, which are fully
4 applicable to this case. If A and B dispute whether A owes a sum of money to B,
5 the parties agree to put the disputed sum into an interest‐bearing escrow account
6 pending resolution of the dispute, and it is ultimately determined that the money
7 should indeed be paid to B, B is entitled to the interest, because if the money had
8 been paid when due, B would have had the use of the money; if it is determined
9 that there was no debt, the money has always belonged to A, who would also
10 receive the interest. The same is true here. If the Rais were entitled to rescind the
11 contract, the deposit would be returned to them, along with the interest it earned
12 in the meantime. But they are not, so the deposit belongs to Imico, along with the
13 interest it has earned. Nothing in the quoted provisions of ILSA, which concern
14 only the calculation of the principal amount of the deposit that the developer may
15 demand and, in the event of breach by the purchaser, retain, has any bearing on
this basic legal principle.11 16
11 1 In addition to the lack of guidance from ILSA and the backdrop of common
2 law, another provision in the Purchase Agreement further suggests that the
3 parties expected that the interest earned on the Rais’ deposit would go to Imico if
42
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1 We therefore hold that, because Imico is rightfully entitled to retain the
2 Rais’ fifteen percent down payment, it is likewise entitled to the interest earned
3 on that money.
4 CONCLUSION
5 We fully recognize that ILSA is a “strict‐liability” statute that relies, to
6 some extent, on technicalities in ensuring its foremost goal of consumer
7 protection. See Bodansky, 635 F.3d at 86. But it does not require us to read into
8 the statute requirements that it does not contain, thereby expanding liability for
9 developers at the behest of parties wishing to back out of contracts into which
10 they entered knowingly and armed with full disclosure.
11 For the foregoing reasons, we AFFIRM the judgment of the district court
12 that Imico complied with ILSA § 1703(d)(1), notwithstanding that the description
13 of the property did not contain the tax lot number, and REVERSE the judgment
14 of the district court that Imico violated ILSA § 1703(a)(1)(B) by delivering the
1 they defaulted. That provision states that, if the purchaser defaults, Imico “may
2 retain all sums deposited by Purchaser . . . , together with interest earned thereon
3 . . . .” Joint App’x 32, § 15.2. While such a contractual provision cannot trump
4 any limits imposed by ILSA (as the contract itself acknowledges, see id.), the
5 provision serves as further evidence that the ordinary practice, in the absence of
6 any statutory indication to the contrary, is to award accrued interest to the party
7 entitled to the principal.
43
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1 Property Report to the Rais’ attorney and not to the Rais directly. We also hold
2 that, pursuant to ILSA § 1703(d)(3) and the parties’ Purchase Agreement, Imico is
3 entitled to retain the Rais’ fifteen percent down payment, as well as any interest
4 accrued thereon, as a result of the Rais’ breach of the Purchase Agreement in
5 failing to close on their unit. The case is REMANDED to the district court for
6 further proceedings consistent with this opinion.
44
Case 14-2120, Document 59-1, 09/21/2015, 1602595, Page44 of 44 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca4-19-04135/USCOURTS-ca4-19-04135-0/pdf.json | [
[
"Ronnell Melvin",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4135
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RONNELL MELVIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Louise W. Flanagan, District Judge. (7:18-cr-00127-FL-1)
Submitted: December 30, 2019 Decided: January 9, 2020
Before DIAZ, THACKER, and RUSHING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Geoffrey Wuensch Hosford, HOSFORD & HOSFORD, PC, Wilmington, North Carolina,
for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 19-4135 Doc: 30 Filed: 01/09/2020 Pg: 1 of 3
2
PER CURIAM:
Ronnell Melvin appeals the 83-month upward variant sentence imposed by the
district court after he pled guilty, without a plea agreement, to possessing with intent to
distribute a quantity of heroin and cocaine base, in violation of 21 U.S.C. § 841(a)(1)
(2018), and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
(2018). He argues on appeal that his sentence is substantively unreasonable, given that he
had a full-time job when he was indicted, had moved away from where he committed the
offenses, has a family, and had no other recent criminal conduct. We affirm.
This court reviews a “sentence[]—whether inside, just outside, or significantly
outside the [Sentencing] Guidelines range—under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This court first examines the
sentence for “significant procedural error,” such as improperly calculating the Guidelines
range, insufficiently considering the 18 U.S.C. § 3553(a) (2018) factors, or inadequately
explaining the chosen sentence. Id. at 51. If a sentence is free of “significant procedural
error,” then this court reviews it for substantive reasonableness, “tak[ing] into account the
totality of the circumstances.” Id.
To be substantively reasonable, the sentence must be “sufficient, but not greater
than necessary,” to satisfy the statutory purposes of sentencing. 18 U.S.C. § 3553(a).
“While a district court’s explanation for the sentence must support the degree of [any]
variance, it need not find extraordinary circumstances to justify a deviation from the
Guidelines. . . . [A]ll sentencing decisions . . . are entitled to due deference.” United
States v. Spencer, 848 F.3d 324, 327 (4th Cir. 2017) (internal quotation marks omitted).
USCA4 Appeal: 19-4135 Doc: 30 Filed: 01/09/2020 Pg: 2 of 3
3
Indeed, [w]e “must defer to the district court and affirm a reasonable sentence, even if we
would have imposed something different.” United States v. Bolton, 858 F.3d 905, 915 (4th
Cir. 2017) (internal quotation marks omitted). Although Melvin does not challenge on
appeal the procedural reasonableness of his sentence, we have reviewed that aspect of his
sentence and conclude that the sentence is procedurally sound. See United States v.
Provance, 944 F.3d 213, 218 (4th Cir. 2019) (holding that appellate court must review
sentence’s procedural reasonableness before discussing substantive reasonableness).
We further conclude that Melvin’s sentence is substantively reasonable. While
Melvin put forth several arguments in favor of a within-Guidelines sentence, the district
court decided that Melvin’s criminal history, the need to deter others and promote respect
for the law, and the need to protect the public required an upward variance. Such a
conclusion is not an abuse of discretion.
We therefore affirm the district court’s judgment. 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.
AFFIRMED
USCA4 Appeal: 19-4135 Doc: 30 Filed: 01/09/2020 Pg: 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-alsd-1_06-cr-00278/USCOURTS-alsd-1_06-cr-00278-6/pdf.json | [
[
"Timothy Cox",
"Defendant"
],
[
"USA",
"Plaintiff"
],
[
"David Mark Young",
"Defendant"
]
] | 1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
UNITED STATES OF AMERICA, )
)
v. ) CRIMINAL NO. 06-00278-KD
) (Civil Action No. 11-00463-KD-N)
DAVID MARK YOUNG, )
)
Defendant. )
REPORT AND RECOMMENDATION
This action is before the Court on Defendant/Petitioner David Mark Young’s second
motion1 to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (doc. 159), as
amended (doc. 163).2 This matter has been referred to the undersigned Magistrate Judge for entry
of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Upon consideration of
the petitioner’s § 2255 motion and all other pertinent portions of the record, it is the
recommendation of the undersigned that the § 2255 motion be DENIED.
I. BACKGROUND
A. Procedural History.
On December 27, 2006, Young and co-defendant Timothy Cox were charged in a three
count indictment with conspiracy to distribute over 100 kilograms of marijuana (Count One) and
possession of marijuana with the intent to distribute (Counts Two and Three), in violation of 18
U.S.C. §§846 and 841(a)(1). (Doc. 1). Young was arraigned on October 7, 2009, nearly three
years after he was indicted, and appeared with his retained counsel, Joseph Carl “Buzz” Jordan.
1 Young’s first § 2255 motion (doc. 141) was dismissed, without prejudice, as premature on
September 6, 2011 (docs. 145-146).
2 Young has also filed a motion (doc. 171) to amend his § 2255 motion by adding a new issue
that his appellate counsel, Andrew Jones, was “innefective due to failing to raise the Rule 44(c) issue on
appeal.” For the reasons stated in the body of this Report and Recommendation, this motion to amend is
MOOT.
Case 1:06-cr-00278-KD-B Document 172 Filed 01/16/14 Page 1 of 30
2
(Doc. 25). On October 28, 2009, the United states filed a notice pursuant to 21 U.S.C. § 851(a)
that, due to Young’s 1991 federal drug conviction, the mandatory minimum term of
imprisonment for Counts One and Two was increased from five years to ten. (Doc. 32).
On December 22, 2009, Young pleaded guilty to the conspiracy count pursuant to a
written plea agreement. In bold lettering, the plea agreement stated that by virtue of the
enhancement notice filed on October 28, 2009 (doc. 32), Young would be facing a minimum
mandatory sentence of 10 years rather than five. (Doc. 43 at 3)(“However, based upon the
Enhancement Information, filed by the United states in the case, the defendant is subject to
a minimum mandatory ten years confinement to life in prison, on Count One. . .”)(emphasis
in original). In the factual resume, Young agreed that during the time frame of the conspiracy he
stored shipments of marijuana on his property that his nephew, Norman Young, had procured.
(Id. at 2). Further, Young agreed that he and co-defendant Cox sold five pound of marijuana to
an informant during a controlled buy, and officers recovered 738 marijuana plants and empty
wrappings for approximately 500 pounds of marijuana during a search of his property. (Id.).
Finally, Young admitted “his responsibility for the above stated marijuana and marijuana plant
amounts and for in excess of 100 kilograms of marijuana as being involved in the conspiracy for
purposes of relevant conduct.” (Id. at 2-3.
During the plea colloquy, Young stated that he had read the plea agreement and discussed
it with his attorney. (Doc. 116 at 3-4). Young was fully aware that he faced a mandatory
minimum sentence of ten years, as the following exchange between he and the Court
demonstrates:
Q. Now, your penalties in this case, because of the prior conviction, 10 years to
life, $4 million fine, 8 years supervised release and a hundred dollar special
assessment. Were you aware that it was a 10-year minimum mandatory in your
case?
A. Yes, ma’am.
Case 1:06-cr-00278-KD-B Document 172 Filed 01/16/14 Page 2 of 30
3
Q. Okay. And you understand when I say ‘10-year minimum mandatory,’ I am
required to give you 10 years, unless the United States attorney’s office files a
motion asking that I go below that. Do you understand that?
A. Yes, ma’am, I do.
(Id. at 5). Young agreed that no one had forced him to plead guilty. (Id. at 6). He further agreed
that the United States could prove everything set out in the factual resume he signed, including
his responsibility for more than 100 kilograms of marijuana. (Id. at 7-9).
On October 29. 2010, Young filed a motion seeking to set aside his plea on the grounds
that his attorney, Jordan, had a conflict of interest based on his previous representation of
Tammy Young, who Young alleges had provided information against him to the government.
(Doc. 62 at 1-2). This conflict, according to Young, led Jordan to “manipulate” him into
involuntarily pleading guilty. (Id. at 2).
Before Young’s scheduled sentencing on November 10, 2010, the Court conducted an in
camera hearing regarding his complaints about Jordan. (Doc. 126). The Court explained that
Young had retained Jordan, and he had the option to hire another attorney if he so wished. (Id. at
2-3). The Court then asked Young if he wanted to move forward with Jordan as his attorney. (Id.
at 4). In response, Young initially claimed that he was “at a loss as to what to do. . . .” (Id. at 4).
The Court proposed that Young either move forward with Jordan, or it would give him a week to
retain another attorney. (Id. 10). In response to the Court’s proposal, Young declared, “I’m
ready. I will just keep Mr. Jordan.” (Id.). Young’s sentencing was continued until a later date so
that he could participate in a proffer and the United States could evaluate his attempted
assistance. (Id. at 13-14).
Prior to his re-scheduled sentencing, Young filed motions notifying the Court that he had
terminated Jordan and seeking the appointment of new counsel. (Docs. 67, 69). These motions
were granted and Andrew Jones was appointed by the Court to represent Young. (Doc. 74).
Among the motions thereafter filed by Young’s new attorney was a motion seeking to withdraw
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4
Young’s guilty plea because the United States had reneged on its agreement to file a U.S.S.G. §
5K1.1 departure motion at his sentencing. (Doc. 79). Jones also filed a motion to dismiss,
arguing that the United States’ prosecution of Young for a marijuana offense, despite the fact
that several states had legalized the drug for medicinal purposes, amounted to selective
prosecution and violated his equal protection rights. (Docs. 81, 85, 91). Jones also filed a
separate motion to dismiss on the grounds that the drug amounts associated with dismissed
counts two and three, and included as relevant conduct, could not be used to determine the
maximum statutory penalty under 21 U.S.C. § 841, as well as a separate amended position
regarding the sentencing factors. (Docs. 86-87). In a subsequent sentencing memorandum, Jones
argued that the Court should treat marijuana as a Schedule V controlled substance for sentencing
purposes. (Doc. 96). The Court denied these motions. (Docs. 94, 98).
Young’s presentence investigative report (“PSR”) determined his base offense level to be
26 due to his admitted accountability for the distribution of at least 100 kilograms of marijuana.
(Doc. 97 at ¶ 21). Young’s base offense level was reduced by three points for acceptance of
responsibility, giving him a total offense level of 23. (Id. at ¶¶ 27-29). During Young’s
sentencing, Jones objected to the sentencing guideline determination based on the same the
arguments previously raised in the motions to dismiss and the Court summarily overruled these
objections. (Doc. 177 at 2–7, 15-16). The Court found that Young was responsible for a
minimum of 100 kilograms of marijuana because that was the amount involved according to
Young’s acknowledgment in his plea agreement (Id. 4-5, 8-9, 16). The Court sentenced Young to
the mandatory minimum 10-year term of imprisonment on April 15, 2011 and entered judgment
on May 5, 2011. (Doc. 106).
On April 22, 2011, a motion to reconsider the sentence was prepared by Young pro se
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5
and filed on his behalf by Jones. (Docs. 99, 100)3. The Court denied Young’s motion on April
28, 2011, by endorsement (doc. 102).
Young filed a Notice of appeal on April 28, 2011 (doc. 104). Jones was appointed by the
Eleventh Circuit to represent Young on appeal. (Doc. 114). The only issue raised on appeal was
whether the district court properly denied Young’s motion to withdraw his guilty plea. (Doc.
152). On June 27, 2012, the Eleventh Circuit affirmed the District court’s denial of Young’s
motion to withdraw his guilty plea. (Id.). The mandate issued on January 18, 2013. (Doc. 153).
A petition for rehearing was denied on January 9, 2013. (Doc. 159 at 105).
B. Habeas Petition.
Young filed the present § 2255 motion on July 8, 2013 (doc. 159), seeking to have his
conviction and sentence set aside on the following four grounds:4 (1) the violation of his equal
protection rights and the unconstitutionality of 21 U.S.C. §§ 812(b) and 841(b)(1)(B)(vii), as
applied;5 (2) ineffective assistance of plea, sentencing and appellate counsels;6 (3) the Court’s
3 According to Jones, he advised Young not to file this motion but his client insisted. (Doc. 100 at
¶ 1).
4 Young initially sets forth in his “STATEMENT OF ISSUES” these four general grounds (doc.
159 at iii), but then subsequently divides his argument into eight, often overlapping, issues (id. at 1-29).
The undersigned will address the issues as they relate to the four general grounds.
5 Young argues, in sum, that, in view of the many States that have legalized marijuana for
medical use or otherwise, “[t]he continued prosecution of citizens in any state for violation of federal drug
laws in connection with the possession & distribution of marijuana under any federal substance schedule
is discrimination of civil rights & intentional violation of the Ninth & Fourteenth Amendment[s] for
purposely failing to ensure the Equal Protection of the Law for all citizens as a whole.” (Doc. 159 at 8).
Young thus challenges the constitutionality of 21 U.S.C. §§ 812(b) and 841(b)(1)(B)(vii) as applied and,
specifically the classification of marijuana as a Schedule I substance. (Docs. 159 at 5, 170 at 1-5).
6 Young concedes that sentencing counsel filed a motion to dismiss and opposed the guideline
calculations based on the argument he asserts in “Issue 1” (see n. 4, supra), but argues that counsel failed
to pursue the issue on appeal. (Doc. 150 at 4-5).
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6
failure to conduct a hearing pursuant to Fed. R. Crim.P. 44(c) to determine if Young’s guilty plea
was a product of coercion;7 and (4) a Fifth Amendment double jeopardy violation and a Sixth
Amendment substantive due process violation have occurred by virtue of the retroactive
application of Alleyne v. United States, 113 S.Ct. 2151 (2013).8
On October 10, 2013, the United States responded in opposition to Young’s motion to
vacate, set aside, or correct sentence. (Doc. 167). The government contends that Young’s §2255
motion should be summarily denied or dismissed, in sum, because Young’s plea “not only
waives any collateral attack of the plea itself, but also any pre-plea matters” and he has, in any
event, procedurally defaulted on his current constitutional challenge. (Id. at 7-8). The United
States further argues that Young fails to show that his counsel, either plea, sentencing or
appellate, was deficient or that the result of the proceedings would have been different but for his
counsel’s allegedly deficient performance. (Id. at 8-12, 15-16). The government also asserts
that Young has failed to establish that an actual conflict of interest existed at the time of his plea
due to his counsel’s past representation of Tammy Young in a different, although related, case
(id. at 12-15), and that any claim of error for failure to conduct a Rule 44(c) hearing is not only
procedurally barred but without merit (id. at 16-17). The government further argues that Alleyne
has not been retroactively applied to cases on collateral review and, in any event, is not
7 Young argues, in sum, that his retained counsel, Joe Jordan, coerced him to plead guilty to
avoid exposure of unethical conduct by Mr. Jordan in accepting Young’s retainer when there existed a
conflict of interest because mr. Jordan had represented Tammy Forbes Young, a potential witness against
Young if he went to trial. (Doc. 159 at 6-11).
8 Young argues, in sum, that his Fifth Amendment rights were violated when the Court held him
accountable for less than 100 kilograms of marijuana in connection with the Count I conspiracy charge
but continued to hold him accountable for the 400 kg at issue in the counts dismissed under the plea
agreement (doc. 159 at 19); and that his Sixth Amendment rights were violated by plea counsel’s
withholding information that would have “barred the evidence in the factual resume to impose the penalty
of 841(b)(1)(B) mandatory penalty” (Id. at 31).
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7
applicable to Young because he admitted in his plea agreement and colloquy to a prior drug
conviction and to the drug amount giving rise to his mandatory ten year sentence (id. at 17-21).
The issues have been fully briefed and are ripe for adjudication. There is no need for an
evidentiary hearing because Young’s claims can be resolved based on the existing record.
Schultz v. Wainwright, 701 F.2d 900, 901 (11th Cir. 1983)(“ An evidentiary hearing is not
required where, as here, the district court can determine the merits of the ineffectiveness claim
based on the existing record.”); see also Aron v. United States, 291 F.3d 708, 715 (11th Cir.
2002)(“[D]istrict court is not required to hold an evidentiary hearing where the petitioner's
allegations are affirmatively contradicted by the record, or the claims are patently frivolous.”);
United States v. Mobley, 2013 WL 4166553, *22 (S.D. Ala., August 15, 2013)(“There is no need
for an evidentiary hearing [because] [o]n the existing record, Mobely has not presented nonconclusory facts that, if true, would entitle her to relief.”).
II. STATEMENT OF THE LAW
A. Habeas Standard.
The limited scope of habeas relief is well established, as this Court has recognized:
Collateral relief is an extraordinary remedy which “may not do service for a []
[direct] appeal.” United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71
L.Ed.2d 816 (1982); see also Lynn v. United States, 365 F.3d 1225, 1232 (11th
Cir. 2004) (“Courts have long and consistently affirmed that a collateral
challenge, such as a § 2255 motion, may not be a surrogate for a direct appeal.”).
A defendant who has waived or exhausted his right to appeal is presumed to stand
“fairly and finally convicted.” Frady, 456 U.S. at 164. Unless a claim alleges a
lack of jurisdiction or constitutional error, the scope of the collateral attack has
remained extremely limited. United States v. Addonizio, 442 U.S. 178, 185, 99
S.Ct. 2235, 60 L.Ed.2d 805 (1979). Consequently, ‘[i]f issues are raised and
considered on direct appeal, a defendant is thereafter precluded from urging the
same issues in a later collateral attack. . . . A defendant is, of course, entitled to a
hearing of his claims, but not to duplicate hearings. The appellate process does
not permit reruns.” Moore v. United States, 598 F.2d 439, 441 (5th Cir. 1979).
United States v. Evans, 2008 WL 3200694 at *3 (S.D. Ala. 2008).
B. Procedural Default.
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8
A habeas petitioner is generally barred from raising a claim in a § 2255 motion that he
did not raise on direct appeal. The Eleventh Circuit Court of Appeals has summarized this
principle as follows:
Generally, if a challenge to a conviction or sentence is not made on direct appeal,
it will be procedurally barred in a § 2255 challenge. Mills v. United States, 36
F.3d 1052, 1055 (11th Cir. 1994). A defendant cannot overcome this procedural
bar unless he can demonstrate a cause for this default and show actual prejudice
suffered as a result of this alleged error. Id. In the alternative, a defendant can
also overcome this procedural bar created by the failure to appeal if he could
show a fundamental miscarriage of justice; ‘in an extraordinary case, where a
constitutional violation has probably resulted in the conviction of one who is
actually innocent, a federal habeas court may grant the writ even in the absence of
showing of cause for the procedural default.” Id. (quoting Murray v. Carrier, 477
U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d. 397 (1986)).
United States v. Montano, 398 F.3d 1276, 1279-80 (11th Cir. 2005). However, claims of
ineffective assistance of counsel fall outside the procedural default rule and, in most cases
are properly raised for the first time in a habeas petition. Massaro v. United States, 538
U.S. 500, 504 (2003).
C. Strickland v. Washington Standard.
A two-fold analysis must be applied to claims of ineffective assistance of counsel, as set
forth by the Supreme Court and the Eleventh Circuit:
To succeed on a claim of ineffective assistance, a habeas petitioner must satisfy
both prongs of the test set out by the Supreme Court in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The performance prong
requires a petitioner to establish that counsel performed outside the wide range of
reasonable professional assistance and made errors so serious that he failed to
function as the kind of counsel guaranteed by the Sixth Amendment. Id. at 687-
89, 104 S.Ct. at 2064-65. The prejudice prong requires a petitioner to
demonstrate that seriously deficient performance of his attorney prejudiced the
defense. Id. at 687, 104 S.Ct. at 2064.
Unless a petitioner satisfies the showings required on both prongs, relief is due to
be denied. Id. As a result, once a court decides that one of the requisite showings
has not been made it need not decide whether the other one has been. Id. at 697,
104 S.Ct. 2069 (A court need not “address both components of the inquiry if the
[petitioner] makes an insufficient showing on one.”); Duren v. Hopper, 161 F.3d
Case 1:06-cr-00278-KD-B Document 172 Filed 01/16/14 Page 8 of 30
9
655, 660 (11th Cir. 1998) (“if a defendant cannot satisfy the prejudice prong, the
court need not address the performance prong”). . . .
To establish prejudice, a petitioner must show “there is a reasonable probability
that, but for the counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. A
“reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. [P]etitioners must affirmatively prove prejudice because
‘[a]ttorney errors come in an infinite variety and are as likely to be utterly
harmless in a particular case as they are to be prejudicial. [T]hat the errors had
some conceivable effect of the outcome of the proceeding’ is insufficient to show
prejudice.” Gilreath v. Head, 234 F.3d 547, 551 (11th Cir. 2000) (alteration in
original) (quoting Strickland, 466 U.S. at 693, 104 S.Ct. at 2067).
United States v. Butcher, 368 F.3d 1290, 1293-94 (11th Cir. 2004). In making the performance
determination, conduct must be evaluated from the attorney’s perspective at the time in order to
avoid the distorting effects of hindsight. Strickland, 466 U.S. at 689; see also Payne v. United
States, 566 F.3d 1276, 1277 (11th Cir. 2009)(“ a court must avoid ‘the distorting effects of
hindsight’ and must ‘evaluate the conduct from counsel's perspective at the time’.”). In guilty
plea cases, the prejudice showing requires a defendant to demonstrate that, but for alleged
ineffective assistance of counsel, the defendant would not have pleaded guilty. Hill v. Lockhart,
472 U.S. 52, 59 (1985). Given the petitioner’s exacting burden, “the cases in which habeas
petitioners can properly prevail . . . are few and far between.” Waters v. Thomas, 46 F.3d 1506,
1511 (11th Cir. 1995) (en banc).
D. Rule 44(c) Inquiry.
Rule 44(c) of the Federal Rules of Criminal Procedure9 establishes a procedures for
avoiding the occurrence of events which might give rise to a plausible post-conviction claim that
9 See Fed. R. Crim. P. 44(c) (“Whenever two or more defendants have been jointly charged ... or
have been joined for trial ... and are represented by the same retained or assigned counsel ..., the court
shall promptly inquire with respect to such joint representation and shall personally advise each defendant
of the right to the effective assistance of counsel, including separate representation. Unless it appears that
(Continued)
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10
the joined defendants in a criminal case were deprived of their Sixth Amendment right to
effective assistance of counsel because they were jointly represented by the same attorney. Rule
44(c) has been held to be “confined to conflicts arising from joint representation” and not to
conflicts alleged to arise from counsel’s former representation of a witness. United States v.
Morris, 1998 WL 738546, *2 (4th Cir. 1998), citing Cerro v. United States, 872 F.2d 780, 786-87
(7th Cir.1989); and United States v. Pungitore, 910 F.2d 1084, 1140-41 (3d Cir.1990) (refusing
to expand application of Rule 44(c) beyond its plain meaning). But see, United States v.
Gallegos, in which the court held:
A defendant's right to the effective assistance of counsel includes a right
to “ ‘representation that is free from conflicts of interest.’ ” United States
v. Cook, 45 F.3d 388, 393 (10th Cir.1995)(quoting Wood v. Georgia, 450
U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981)). This right to
conflict-free representation “ ‘extends to any situation in which a
defendant's counsel owes conflicting duties to that defendant and some
other third person.’ ” Id. (quoting United States v. Soto Hernandez, 849
F.2d 1325, 1328 (10th Cir. 1988)).
108 F.3d 1272, 1280 (10th Cir. 1997). Regardless of the view about whether Rule 44(c) applies
only to joint representation of co-defendants, it is clear that Rule 44(c) requires the existence of
an actual conflict of interest. “Where an ineffective assistance claim is based on a conflict of
interest, a petitioner ‘must show first, that his attorney had an actual conflict of interest, and
second, that the conflict adversely affected counsel's performance’.” United States v. Mobley,
2013 WL 4166553, *10 (S.D. Ala., August 15, 2013), quoting Pegg v. United States, 253 F.3d
1274, 1277 (11th Cir. 2001); and Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). The Eleventh
Circuit has described the requisite showing as follows:
“An ‘actual conflict’ of interest occurs when a lawyer has ‘inconsistent
interests.’ ” Freund v. Butterworth, 165 F.3d 839, 859 (11th Cir.1999)(en
there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as
may be appropriate to protect each defendant's right to counsel.”).
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11
banc)(citation omitted). The inquiry into the existence of an actual conflict
is “fact-specific.” United States v. Novaton, 271 F.3d 968, 1011 (11th Cir.
2001). The petitioner must show an “actual conflict,” because a
speculative or merely hypothetical conflict of interest does not yield a
Sixth Amendment violation. Reynolds [v. Chapman], 253 F.3d [1337],
1342–43 [(11th Cir. 2001)]. To prove adverse effect, a petitioner must
demonstrate three elements: (1) “that the defense attorney could have
pursued a plausible alternative strategy”; (2) “that this alternative was
reasonable”; and (3) “that the alternative strategy was not followed
because it conflicted with the attorney's external loyalties.” Id. at 1343. “If
there is a guilty plea involved, this Court looks at whether the attorney's
actual conflict adversely affected the defendant's decision to plead guilty.”
Pegg, 253 F.3d at 1278.
Aguilar-Garcia v. United States, 517 Fed.Appx. 880, 882 (11th Cir., April 26, 2013) (emphasis
added). See also, McCorkle v. United States, 325 Fed.Appx. 804, 808 (11th Cir. 2009)(To
establish an actual conflict of interest, a defendant “must make a factual showing of inconsistent
interests and must demonstrate that the attorney made a choice between possible alternative
causes of action, such as eliciting (or failing to elicit) evidence helpful to one client but harmful
to [himself].”). The Supreme Court also addressed the conflict of interest issue as it relates to a
guilty plea as follows:
Dukes v. Warden, 406 U.S. 250, 92 S.Ct. 1551, 32 L.Ed.2d 45 (1972),
presented a contrasting situation. Dukes pleaded guilty on the advice of
two lawyers, one of whom also represented Dukes' codefendants on an
unrelated charge. Dukes later learned that this lawyer had sought leniency
for the codefendants by arguing that their cooperation with the police
induced Dukes to plead guilty. Dukes argued in this Court that his lawyer's
conflict of interest had infected his plea. We found “ ‘nothing in the
record . . . which would indicate that the alleged conflict resulted in
ineffective assistance of counsel and did in fact render the plea in
question involuntary and unintelligent.’ ” Id., at 256, 92 S.Ct., at 1554,
quoting Dukes v. Warden, 161 Conn. 337, 344, 288 A.2d 58, 62 (1971).
Since Dukes did not identify an actual lapse in representation, we affirmed
the denial of the habeas corpus relief.
Cuyler v. Sullivan, 446 U.S. 335, 349 (1980)(emphasis added).
III. ANALYSIS.
A. Equal Protection Claim and Constitutionality of §§ 812(b) and 841(b)(1)(B)(vii).
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Young first contends that his equal protection rights have been violated and that 21
U.S.C. §§ 812(b) and 841(b)(1)(B)(vii) are unconstitutional as applied. Young argues, in sum,
that it is unconstitutional for the government to continue to classify marijuana as a Schedule I
controlled substance and to prosecute the distributors of this drug because several States have
legalized its dispensing for medical purposes. (Docs. 159 at 7-11, 170 at 1-5). Young raised this
contention for the first time after pleading guilty, firing his counsel and obtaining new counsel.
(Docs. 43, 45, 67, 69, 72, 74, 81). Young’s ability to collaterally attack his guilty plea is
greatly limited. The Supreme Court has declared:
We have strictly limited the circumstances under which a guilty plea may be
attacked on collateral review. “It is well settled that a voluntary and intelligent
plea of guilty made by an accused person, who has been advised by competent
counsel, may not be collaterally attacked. Mabry v. Johnson, 467 U.S. 504, 508,
104 S. Ct. 2543, 2546-2547, 81 L.Ed.2d 437 (1984) (footnote omitted). And even
the voluntariness and intelligence of a guilty plea can be attacked on collateral
review only if first challenged on direct review. Habeas review is an extraordinary
remedy and “ ‘will not be allowed to do service for an appeal.’ ” Reed v. Farley,
512 U.S. 339, 354, 114 S.Ct. 2291, 2300, 129 L.Ed.2d 277 (1994) (quoting Sunal
v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 1590-1591, 91 L.Ed. 1982 (1947)).
Indeed, “the concern with finality served by the limitation on collateral attack has
special force with respect to convictions based on guilty pleas.” United States v.
Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979).
Where a defendant has procedurally defaulted a claim by failing to raise it on
direct review, the claim may be raised in habeas only if the defendant can first
demonstrate either “cause” and actual “prejudice,” Murray v. Carrier, 477 U.S.
478, 485, 106 S.Ct. 2639, 2643-2644, 91 L.Ed.2d 397 (1986); Wainwright v.
Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-2507, 53 L.Ed.2d 594 (1977), or that
he is “actually innocent,” Murray, supra, at 496, 106 S.Ct., at 2649-2650; Smith
v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 2667-2668, 91 L.Ed.2d 434 (1986).
Bousley v. United States, 523 U.S. 614, 621 (1998)(emphasis added). See also United States v.
Boce, 488 U.S. 563, 569 (1989)(“[J]ust as the guilty pleas in the Brady trilogy10 were found to
10 The “Brady trilogy” referred to in Boce, includes Brady v. United States, 397 U.S. 742, 750
(1970); McMann v. Richardson, 397 U.S. 759, 770 (1970), and Parker v. North Carolina, 397 U.S. 790
(1970). In each of these cases, the Supreme Court refused to address the merits of the claimed
constitutional deprivations that occurred prior to the guilty plea. Instead, it concluded in each case that the
issue was not the merits of these constitutional claims as such, but rather whether the guilty plea had been
(Continued)
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13
foreclose direct inquiry into the merits of claimed antecedent constitutional violations there, we
conclude that respondent's guilty plea here alike forecloses independent inquiry into the claim of
discrimination in the selection of the grand jury.”), quoting Tollett v. Henderson, 411 U.S. 258,
266 (1973). “A defendant's [unconditional] plea of guilty, made knowingly, voluntarily, and
with the benefit of competent counsel, waives all non-jurisdictional defects in that defendant's
court proceedings.” United States v. Pierre, 120 F.3d 1153, 1155 (11th Cir. 1997), quoting
United States v. Yunis, 723 F.2d 795, 796 (11th Cir.1984).
“[T]here is a strong presumption that statements made during the plea colloquy are true.”
See United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). Despite Young’s present
contention that his plea was coerced, he pleaded guilty and confirmed under oath and in writing
both his willingness to plead and his guilt. (Doc. 116.) In his guilty plea, Young declared that
he understood he had the right to be represented by an attorney and the right to plead not guilty.
Id. at 6. The plea agreement was explicitly clear and unambiguous. Young attested in his guilty
plea that:
“[Young] has had the benefit of legal counsel in negotiating this plea agreement.
He has discussed the facts of the case with his attorney and his attorney has
explained to [Young] the essential legal elements of the criminal charge(s) which
has been brought against him. [Young’s] attorney has also explained to [Young]
his understanding of the United States’ evidence.”
(Doc. 43 at 2). Young further declared he was giving his guilty plea freely and voluntarily,
and that he was pleading guilty because he was guilty. Id. at 3. Young does not contend that his
guilty plea was conditional. Consequently, Young’s present constitutional challenge, which is
non-jurisdictional, was waived by his guilty plea.
made intelligently and voluntarily with the advice of competent counsel. Tollett v. Henderson, 411 U.S.
258, 266 (1973).
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In United States v. Brown, 424 Fed. Appx. 909, 910 (11th Cir. 2011), the defendant
pleaded guilty and was sentenced to a mandatory 60-month term of imprisonment, pursuant to 21
U.S.C. § 841(b)(1)(B)(vii), for possessing with intent to distribute 100 or more marijuana plants.
Before his sentencing, the
defendant filed a motion seeking a declaration from the district court that 21 U.S.C.
§ 841(b)(1)(B)(vii) was unconstitutional because, among other things, “individuals who were
similarly situated to him but who were located in states that had deregulated marijuana were not
being prosecuted under the Controlled Substances Act. . . .” 424 Fed.Appx. at 911. The district
court rejected the defendant’s equal protection and selective prosecution claims on the grounds
that he had waived those arguments by pleading guilty. (Id.) The Eleventh Circuit affirmed
on appeal, holding that the district court correctly concluded that the defendant waived the
argument when he entered his guilty plea. (Id. at 912). See also United States v. James, 424 Fed.
Appx 856, 860 (11th Cir. 2011)(companion decision holding same). Likewise, in this case,
Young’s guilty plea, which was knowing, voluntary and counseled as per Broce, similarly
forecloses his equal protection claim. See Thompson v. Wainwright, 787 F.2d 1447, 1460 (11th
Cir. 1986) (“[T]he representations of the defendant as well as any findings made by the judge
accepting the plea, constitute a formidable barrier in any subsequent collateral proceeding.”).
Additionally, while Young asserted his equal protection and selective prosecution claims
to the District Court, the claim was not pursued on appeal. Young acknowledges that he is
procedurally barred from asserting this claim by the failure to pursue the matter on direct appeal.
(Doc. 159 at 33-35). However, Young contends that he has overcome the procedural bar by
showing that his appellate counsel was “objectively unreasonable in failing to raise [this] issue
on appeal.” Id. at 34, citing Smith v. Robbins, 528 U.S. 259, 285 (2000). In order to overcome
the procedural bar in this case, however, Young must do more than show that “his counsel was
objectively unreasonable.” Smith, 528 U.S. at 285, citing Strickland v. Washington, 466 U.S.
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15
668, 687-691 (1984). Young must “show a reasonable probability that, but for his counsel's
unreasonable failure to file a merits brief, he would have prevailed on his appeal.” Id., citing
Strickland, 466 U.S. at 694. For the reasons set forth more fully below, Young has failed to
show that, but for appellate counsel’s failure to brief the equal protection and selective
prosecution issues, he would have prevailed on his appeal. Young’s knowing and voluntary
guilty plea precluded these issues.11
B. Ineffective Assistance of Counsel Claims.
1. Sentencing and Appellate Counsel, Andrew Jones.
Young asserts that his appellate counsel, Andrew Jones, was ineffective because he failed
to raise his equal protection claim on appeal regarding the United States’ continued prosecution
of marijuana as a Schedule I substance instead of a Schedule V substance in the face of its
legalization by several states. (Doc. 159 at 10-11, 31-35). Although not clearly stated, Young
also appears to argue that, as his sentencing counsel, Jones was ineffective because he failed to
challenge the District Court’s conclusion that “only Congress had the authority to rewrite the
11 Young argues that his “waiver & procedural default . . . has no effect on [his] constitutional
challenge issue & limited effect on the Selective prosecution issue” because the issues did not become
ripe until he pled guilty and was sentenced. (Doc. 170 at 3, citing United States v. Bogle, 689 F.Supp.
1121 (S.D. Fla. 1988). In contrast to this case, however, Bogle addressed the constitutionality of the
sentencing guidelines, not the underlying prosecution and challenge to a criminal statute. Consequently,
the Bogle court held that “[t]he issue of the constitutionality of the Guidelines is ripe with respect to those
defendants who have pleaded or have been found guilty [because] . . .[e]ach of these defendants has a
sufficient stake in the outcome of this controversy so as to assure ‘that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions’.” 689 F.Supp at 1127, quoting Baker v. Carr, 369 U.S. 186 (1962). The court
also explained that “[t]he ripeness doctrine, then, prevents ‘the courts, through avoidance of premature
adjudication, from entangling themselves in abstract disagreements’.” Id. at 1126-27, quoting Abbott
Laboratories v. Gardner, 387 U.S. 136 (1967). Young’s challenge to the constitutionality of the very
criminal statute charged in the indictment was ripe at the time of his arrest and prosecution.
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16
code.” (Doc. 159 at 10). Young argues that, because the Attorney General was vested by
Congress “with the authority to add drugs to, remove drugs from, or transfer drugs between the
five schedules,” he can be ordered by the Court “to remove marijuana from the federal lists of
schedules in its entirety.” (Id. at 10-11). For this proposition, Young relies on United States v.
Schrock, 855 F.2d 327 (6th Cir. 1988), and United States v. Allison, 953 F.2d 870 (5th Cir. 1992).
Young misconstrues both the Attorney General’s and this Court’s authority relative to the
reclassification of controlled substances.
In Allison, the Fifth Circuit held that the procedure utilized when methamphetamine was
rescheduled from a Schedule III to a Schedule II controlled substance was adequate. The Court
described the procedure as follows:
In 1970, Congress passed the Comprehensive Drug Abuse Prevention and Control
Act, which delegated to the Attorney General authority to reclassify controlled
substances, 21 U.S.C. § 811.
Notice was published in the Federal Register at 36 Fed.Reg. 9563 by the Director
of the Bureau of Narcotics and Dangerous Drugs (BNDD) proposing the transfer,
among other things, of methamphetamine, from Schedule III to Schedule II of the
1970 Act. Later that reclassification was accomplished on July 7, 1971. See 36
Fed.Reg. 12734 (1971). Appellant contends that the Attorney General never
delegated his authority to reclassify methamphetamine from a Schedule III to
Schedule II to the Director of BNDD. In 1973, the Attorney General properly
delegated his authority to the Drug Enforcement Administration (DEA). See
Fed.Reg. 18380; 28 C.F.R. § 0.100. After the 1973 delegation, the Director of the
DEA republished the result of the Director of the Bureau's acts in the Federal
Register in 1974. See 39 Fed.Reg. 22142. Appellant contends that because the
director of the DEA did not adhere to the required provisions of the 1970 Act
when he republished the BNDD findings in 1974, methamphetamine has never
been lawfully transferred from Schedule III to Schedule II.
Whether or not DEA followed the procedures and made the findings required to
reschedule methamphetamine, BNDD did so in 1971. See Fed.Reg. 9563 (1971)
(notice of hearing regarding proposed rescheduling) 36 Fed.Reg. 12734 (1971)
(report of hearing and findings, order rescheduling methamphetamine).
The 1971 delegation provides:
“Subject to the general supervision of the Attorney General, the exercise
of the powers and performance of the functions vested in the Attorney
General by the Comprehensive Drug Abuse Prevention and Control Act of
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17
1970 are assigned to, and shall be conducted, handled, or supervised by
the Director of the Bureau of Narcotics and Dangerous Drugs.” 28 C.F.R.
§ 0.100
We find that this delegation to BNDD was sufficient, and coupled with DEA's
later republication of the results, properly classified methamphetamine as a
schedule II controlled substance. United States v. Kendall, 887 F.2d 240 (9th Cir.
1989), United States v. Alexander, 673 F.2d 287 (9th Cir. 1982), cert. denied, 459
U.S. 876, 103 S.Ct. 168, 74 L.Ed.2d 139 (1982), United States v. Durham, 941
F.2d 886 (9th Cir. 1991).
Allison, 953 F.2d at 873-74. The Sixth Circuit in Schrock similarly held that “Congress vested
the Attorney General with the authority to . . . alter the statutory schedules, so long as the change
is effected in conformity with the rulemaking procedures of the Administrative Procedure Act, 5
U.S.C. §§ 551- 559, and in accordance with the factual findings required under [21 U.S.C. §]
812(b). Schrock, 855 F.2d at 331. Neither of these decisions authorizes the District Court in a
criminal case to enjoin the Attorney General to remove marijuana from the statutory schedules of
controlled substances or even to transfer it from one schedule to another.12
The Eleventh Circuit and various other courts have also consistently rejected arguments
similar to Young’s equal protection argument. See e.g., Americans for Safe Access v. Drug
12 Young also contends that the District Court should “give notice to the U.S. Attorney General
under 28 U.S.C. 2403(a) which requires “ALL” federal courts to give notice to the Attorney General, if an
act of Congress is challenged in public interest & to rule on the Constitution [sic] challenge.” (Doc. 159
at 7). Young relies on Pleasant-El v. Oil Recovery Co., Inc., 148 F.3d 1300, 1302 (11th Cir. 1998), a civil
case involving constitutional challenges to the standards and procedures employed in imposing and
enforcing the penalty for late payment under the Longshore and Harbor Workers Compensation Act
(“LHWCA”) 33 U.S.C. §§ 901-950. However, the United States was not a party to that civil action, one
of the prerequisites to 28 U.S.C. § 2403(a), which provides:
In any action, suit or proceeding in a court of the United States to which the United States or any
agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of
Congress affecting the public interest is drawn in question, the court shall certify such fact to the
Attorney General, and shall permit the United States to intervene for presentation of evidence, if
evidence is otherwise admissible in the case, and for argument on the question of
constitutionality.
28 U.S.C. § 2403(a) (emphasis added). Consequently, Young’s reliance on §2403(a) is unavailing.
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Enforcement Admin., 706 F.3d 438, 453 (D.C. Cir. 2013) (finding DEA’s denial of petition to
reclassify marijuana as a Schedule III, IV or V drug was not arbitrary or capricious); Brown,
supra, 424 Fed. App’x at 911-912 (rejecting defendant’s equal protection/selective prosecution
claim, reasoning “Brown is not ‘similarly situated’ to people who have never been prosecuted for
violating § 841(a) [and] [a]t a minimum, Brown needed to compare himself to other defendants
convicted under § 841(a) for possessing at least 100 marijuana plants but were not subject [to the
mandatory minimum sentence].”); United States v. Ernst, 857 F. Supp. 2d 1098, 1103-04 (D.
Ore. 2012) (rejecting defendant’s claim that continued classification of marijuana as Schedule I
substance violated his due process and equal protection rights) (citing Gonzales v. Raich, 545
U.S. 1, 27 (2005)); Cracker v. Drug Enforcement Admin., 714 F.3d 17, 19 (1st Cir. 2013)
(“Although considerable efforts have been made to reschedule marijuana, it remains a Schedule I
substance.”). Consequently, in this case, appellate counsel committed no error by failing to
challenge the District Court’s conclusion that only Congress had the authority to rewrite the
criminal code as applied to Young, either during the sentencing or on appeal.13
2. Plea Counsel, Joe Jordan.
Young further argues that Joe Jordan, his counsel at the time of his plea, was ineffective
because there existed a conflict of interest due to Jordan’s past representation of Tammy Young
in a different, although related, case. (Docs. 159 at 12-15, 170 at 7-8). Tammy Young was the
wife of Young’s nephew, Norman Young, and Tammy’s co-defendant in the related case. (Doc.
13 In this case, Young’s appellate attorney, Jones, initially filed an Anders brief, but later filed a
merits brief raising only one issue, the District Court’s refusal to set aside Young’s guilty plea. As stated
previously, Young waived the right to appeal his equal protection claim because he pleaded guilty.
Jones’s performance could not, therefore, have been deficient in failing to pursue a claim that had been
rendered meritless due to Young’s waiver. Ferguson v. Sec’y for Dept. of Corrections, 580 F.3d 1183,
1201 (11th Cir. 2009) (appellate counsel not ineffective for failing to raise an issue on appeal that had
been waived).
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69 at2; Doc. 167 at 2, 5-6). The Eleventh Circuit has explained the burden a petitioner must
meet to successfully establish an ineffective assistance of counsel claim based on a conflict of
interest:
Where an ineffective assistance of counsel claim is based on a conflict of interest,
a petitioner ‘must show first, that his attorney had an actual conflict of interest,
and second, that the conflict adversely affected counsel’s performance. . . ‘An
actual conflict’ of interest occurs when a lawyer has inconsistent interests.’. . The
conflict cannot be merely possible, speculative, or hypothetical. . .
To distinguish between actual and possible conflicts of interest, we ‘will not find
an actual conflict of interest unless the defendant can point to specific instances in
the record to suggest an actual conflict or impairment of his interests. . .. The
defendant ‘must make a factual showing of inconsistent interests and must
demonstrate that the attorney made a choice between possible alternative causes
of action, such as eliciting (or failing to elicit) evidence helpful to one client but
harmful to himself. If he did not make such a choice, the conflict remains
hypothetical. . . To prove adverse effect, a defendant needs to demonstrate: (a)
that the defense attorney could have pursued a plausible alternative strategy, (b)
that this alternative strategy was reasonable, and (c) that the alternative strategy
was not followed because it conflicted with the attorney’s external loyalties.
McCorkle v. United States, 325 Fed.App’x 804, 808 (11th Cir. 2009)(internal citations,
punctuation and brackets omitted). Also, “[i]f there is a guilty plea involved, this Court looks at
whether the attorney’s actual conflict adversely affected the defendant’s decision to plead
guilty.” Pegg v. United States, 253 F.3d 1274, 1277 (11th Cir. 2001).
Young now contends that Jordan coerced him to plead guilty (doc. 159 at 12-14), but
there is no evidence in the record to support this contention.14 Young concedes that Jordan’s
14 Young first sought to remove Jordan as his counsel in a “motion to reject plea agreement” filed
on October 29, 2010 (doc. 62), shortly after the Court had postponed his sentencing from October 21,
2010 to November 10, 2010 (doc. 61). The matter came on for hearing on November 10, 2010, and, after
being reminded that Jordan was privately retained by him, Young declined the Court’s invitation to hire
another attorney who could seek a continuance of his sentencing. (Doc. 126 at 2-3,10). Although Young
generally contended that “I know I’ve got a conflict of interest, because my niece was represented by
him” (id. at 3-4), the only thing Young thereafter discussed during the hearing was whether his sentence
could go below the minimum mandatory 10 year sentence based on his contention that he has “done
everything in my power to [cooperate with the government]” (Id. at 6). The Court reiterated what Young
had been told twice at his plea, namely that “[t]he only person that controls the [sentencing Judge] going
below 10 years is Mr. May [i]f he files a 5(k) motion saying you substantially cooperated” (id. at 6).
Young next sought to remove Jordan by motion filed November 24, 2010 (doc. 67), which came on for
(Continued)
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representation of Tammy Young in a separate case ended 15 months before he pleaded guilty
(doc. 170 at 7).15 Young merely speculates that, if he had gone to trial, Tammy Young would
have been called as a witness against him because her plea agreement required her to cooperate
with the government (docs. 159 at 12, 170 at 7). Although Tammy Young was named as a coconspirator in the factual resume executed by David Young in connection with his plea
agreement (doc. 43 at 1), she was not named as a co-defendant in his case and her only mention
of David Young in either case is in the following paragraph contained in a lengthy interview
form completed by Drug Enforcement Administration agents on March 27, 2007, prior to her
guilty plea and nearly two and a half years before Young was arrested:16
Tammy identified Tim Cox via a photograph, # 30, showed to her by Agents.
She stated that she did not know his name, but that Cox was a close associate of
David Young, Norman’s uncle. She said that about two years ago, Cox had come
to her property with David on at least one occasion, and had purchased 2 horses
from Tammy. She said that David was in trouble for marijuana dealings and that
he was hiding from law enforcement. (Agent’s Note: Tammy identified David
Young via a photograph, # 31, in a set of photographs shown to her by Agents.)
She said David’s wife, Cherie, lives with her sister in the Atlanta, GA area and
may be involved in the “Blooming Lollipops” franchise.
hearing on January 24, 2011, at which Jordan orally requested leave to withdraw due to “a breakdown in
communication” (doc. 137). The Court granted both motions (Id. at 2-3). The Court then granted
Young’s motion to appoint counsel and appointed Jones (id. at 7-9). Young’s newly appointed counsel
attempted to have the guilty plea set aside on the grounds that the government had reneged on its
agreement to file a § 5K1.1 departure motion (doc. 79). No contention or evidence of impropriety by
Jordan was asserted.
15 See United States v. Tammy Forbes Young, Criminal No. 06-00277-WS. Tammy Young pled
guilty on September 18, 2007 (doc. 110), and was sentenced on September 15, 2008 to 18 months
incarceration (doc. 188). The United States never filed a § 5K1.1 or Rule 35 motion on her behalf for a
reduction in sentence but did allow her to plead to an information charging her with conspiring with
unknown individuals with the intent to distribute an unspecified quantity of marijuana. Doc. 167 at 5-6.
16 David Young was not arrested on the indictment in this case until August 26, 2009. (Doc. 21).
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21
(Doc. 167-1 at ¶ 12)(emphasis in original). Young has not made a sufficient showing of
inconsistent interests to support the existence of an actual conflict.17 He has failed to establish
that by formerly representing Tammy Young, Jordan “made a choice between possible
alternative causes of action, such as eliciting (or failing to elicit) evidence helpful to one client
that Jordan could have pursued a plausible alternative strategy, that this alternative strategy was
but harmful” to Young. McCorkle, 325 Fed.App’x at 808. Nor has Young offered any evidence
of the existence of an alternate strategy, or that the alternative strategy was not followed because
it conflicted with Jordan’s external loyalties.18 Id. Young has, therefore, failed to establish that
he is entitled to habeas relief on the ground that his plea counsel, Jordan, was ineffective.
Young also appears to contend that Jordan was ineffective because he failed to secure
certain terms in Young’s plea agreement. (Doc. 159 at 19, 60-62). Young, in sum, challenges
the fact that he was found responsible for a minimum of 100 kilograms of marijuana, the
predicate for the Court’s imposition of a 10-year mandatory minimum sentence. Young argues:
Under the plea agreement, the government agreed to dismiss count 2 & 3 for a
plea of guilt to count 1 of the indictment - conspiracy. This denied the
government to use [sic] the statutory penalties under the dismissed counts. The
government used the factual resume as a means to satisfy the statutory penalty of
841(b)(1)(B) using wrappings from marijuana commensurate to 500 lbs of
marijuana (EXHIBIT N). The government tried to use the overall amount of the
conspiracy that included the conspiracy of Norman Young, beginning in 2004.
The court made the determination that the first acts committed by Petitioner began
in 2005 (EXHIBIT O), because the government did not produce the witness,
Timothy Cox, to provide corroborating testimony to acts prior to 2005. The 500
17 Young contends that, if a letter (doc. 159 at 78-79) from the United States to his counsel dated
October 15, 2009, setting forth “the ground rules” for an “off-the-record proffer or discussion” that
Young was interested in having with the investigative agents had been signed by Young and his counsel,
“the factual resume would not contained [sic] the information including evidence from [Tammy Young’s]
plea of guilt of another conspiracy, separate from Petitioners [sic]” (doc. 159 at 15). Young has not
identified what specific information would have been excluded from his factual resume had the subject
letter been signed and has given no evidence that he ever made an “off-the-record proffer” to agents as
discussed in the letter.
18 Technically, the Court need not reach this prong because Young failed to establish the first
prong, evidence that Jordan had an actual conflict of interest.
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22
lbs alleged in the factual resume was part of the Norman young conspiracy.
Therefore, Petitioner could only be held accountable for his part of the 500 lbs,
which would have been less than 100 lbs, & below the required trigger of
841(b)(1)(B).
(Doc. 159 at 19-20).19 The Court, however, properly based its determination that Young was
accountable for at least 100 kilograms of marijuana in connection with his conspiracy upon
Young’s own admission as set forth in the factual resume he executed and affirmed on the record
when he pled guilty.20 (Doc. 117 at 5; Doc. 43 at 13-14). Neither Young, nor Jordan as his
attorney at the time of his plea, “[had] the right to obtain a plea agreement with terms tailored to
his liking.” Hernandez v. United States, 2012 WL 728208, *2 (M.D. Fla. March 6, 2012). This
is because “the decision whether to offer a plea agreement and what terms to include in that
agreement are matters of prosecutorial discretion.” Id., citing Weatherford v. Bursey, 429 U.S.
545, 561 (1977)(“[T]here is no constitutional right to plea bargain; the prosecutor need not do so
if he prefers to go to trial.”). In addition to the government’s discretion regarding the terms of
the plea agreement, Young was clearly on notice before he entered his plea that he was facing a
mandatory 10 year sentence based on the agreed facts concerning his participation in the
conspiracy, which was subject only to the government’s willingness, in its sole discretion, to file
a 5k1.1 motion for a reduction in sentence. (See, Doc. 116 at 4-5, 8). Young’s challenge is,
therefore, no more than a speculative and unsupported claim that Jordan should have bargained
19 Young’s attorney at sentencing, Andrew Jones, presented Young’s argument after the Court
refused to allow Young to present the argument himself. (Doc. 117 at 2). Jones was unable to present any
authority for this position beyond the statute itself, namely 21 U.S.C. § 841(h). (Id. at 3).
20 Young also contends that Jordan failed to protect him “from allegations that could have been
proven false at a jury trial exonerating Petitioner.” (Doc. 159 at 30). In support of this proposition,
Young refers to an investigative report and “the fact that the [marijuana] plants were not found on
Petitioners property, but were found 2 miles from that property on Larson & McGowen timber co. land &
the wrappings for the alleged 500 lb. was also recovered from property owned by the Mobile City Water
Board, not on Petitioner personal property.” (Id., citing “exhibit F”)(“[A] supplemental report dated
September 6, 2005” which only discusses evidence concerning the owner of “two Honda Water pumps”
and gives no further information.). Young’s unsupported allegations do not establish that he would have
been exonerated had he gone to trial, particularly in view of his admissions of guilt on the record.
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23
for more favorable terms, and cannot support an ineffective assistance of counsel claim. See
Hernandez, 2012 WL 728208 at *2 (“Vague, conclusory, speculative, or unsupported claims
cannot support an ineffective assistance of counsel claim); Williams v. United States, 2011 WL
3268308, *5 (M.D. Fla. Aug. 1, 2011) (same); Chavez v. Secretary Fla. Dep’t of Corrections,
647 F.3d 1057, 1061 (11th Cir. 2011) (“The allegations must be factual and specific, not
conclusory.”). Young has, therefore, failed to establish either prong of the Strickland test as to
this particular ineffectiveness claim.
C. Hearing pursuant to Rule 44(c).
For the reasons set forth above, Young has failed to establish that any Rule 44(c) conflict
hearing was required. Although Jordan represented Tammy Young 15 months prior to his
representation of David Young, Tammy Young was not a co-defendant and Jordan’s
representation of David Young did not constitute an actual conflict of interest. Young bore the
burden to “show an ‘actual conflict,’ because a speculative or merely hypothetical conflict of
interest does not yield a Sixth Amendment violation.” Aguilar-Garcia, supra, 517 Fed.Appx. at
882, citing Reynolds, 253 F.3d at 1342–43. This he failed to do. The cases relied upon by
Young are inapposite. See e.g., Oliver v. Wainwright, 782 F.2d 1521, 1524 (11th Cir.
1986)(“Joint representation of co-defendants is not a per se violation of the sixth amendment
right to effective assistance of counsel [and] [i]n order to establish a sixth amendment violation,
a defendant . . . ‘must demonstrate that an actual conflict of interest adversely affected his
lawyer's performance’.”); Porter v. Wainwright, 805 F.2d 930, 939 (11th Cir. 1986)(Evidentiary
hearing required because counsel’s former client actually testified against counsel’s present
client and counsel failed to cross-examine the former client regarding the consideration received
for the testimony); United States v. Mari, 526 F.2d 117, 119 (2nd Cir. 1975)(Petitioner, who
pleaded guilty voluntarily after being fully informed of consequences and after determinations by
trial judge that no conflict of interest existed because of joint representation of petitioner and
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24
codefendant and that parties had no valid objection to joint representation, failed to show actual
prejudice resulting from attorney's joint representation and thus was not denied effective
assistance of counsel by such representation.). The District Court did not, therefore, err by
failing to conduct a Rule 44(c) hearing. The en camera hearing conducted by the District Court
on November 10, 2010 (doc. 126) when Young first sought to remove Jordan and set aside his
plea illustrates the lack of evidence regarding any conflict.
D. Retroactive Application of Alleyne v. United States.
Young further argues that his conviction and sentence should be vacated and set aside
based on a retroactive application of Alleyne v. United States, --- U.S. ---, 133 S. Ct. 2151
(2013). In Alleyne, the rule in Apprendi v. New Jersey, 530 U.S. 466, 483 (2000)(“Any fact
that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury
and found beyond a reasonable doubt”), was extended to facts that not only increase the statutory
maximum punishment for a crime, but also increase the statutory minimum. 133 S.Ct. at 2155.
Consequently, by extending Apprendi, any fact (other than the fact of a prior conviction) that
increases a statutory minimum sentence must now be considered “an ‘element’ that must be
submitted to the jury and found beyond a reasonable doubt.” Id. The Supreme Court thus
overruled Harris v. United States, 536 U.S. 545 (2002), in which it had held that Apprendi did
not preclude the use of facts found by a judge at sentencing to increase a defendant’s mandatory
minimum sentence.
Young specifically argues that his conviction and sentence should be overturned in
accordance with Alleyne because the amount of marijuana attributed to him, as well as his
previous conviction giving rise to the § 851 enhancement, were elements of his offense that
should have been proven to a jury. (Docs. 159 at 16-21; 162 at 2-3). Young’s position is without
merit. First, Alleyne is not retroactive to cases on collateral review. This decision does not
represent a right that “has been newly recognized by the Supreme Court and made retroactively
Case 1:06-cr-00278-KD-B Document 172 Filed 01/16/14 Page 24 of 30
25
applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3). The Supreme Court did not
expressly declare that Alleyne is to be retroactively applied to cases on collateral review. See
Tyler v. Cain, 533 U.S. 656, 663 (2001)(“the Supreme Court is the only entity that can ‘ma[k]e’
a new rule retroactive [and] [t]he new rule becomes retroactive, not by the decisions of the lower
court or by the combined action of the Supreme Court and the lower courts, but simply by the
action of the Supreme Court.”); see also Dodd v. United States, 545 U.S. 353, 357 (2005)
(limitations period under § 2255(f)(3) runs from the date of the Supreme Court decision “initially
recogniz[ing]” the right in question). The Supreme Court did not apply Alleyne retroactively for
purposes of collateral review because, in that decision, the Court was not adopting a substantive
rule which “alters the range of conduct or the class of persons that the law punishes[,]” but,
instead, merely adopted a procedural rule that “regulate[s] only the manner of determining the
defendant’s culpability.” Schiro v. Summerlin, 542 U.S. 348, 353 (2004) (emphasis in original),
citing Bousley v. United States, 523 U.S. 614, 620-621 (1998); Saffle v. Parks, 494 U.S. 484,
494-495 (1990). New procedural rules do not apply retroactively to cases on collateral review
unless they qualify as “watershed rules of criminal procedure” implicating “the fundamental
fairness and accuracy of the criminal proceeding.” Saffle , 494 U.S. at 495; see also Summerlin,
542 U.S. at 352 (a “watershed” rule must be one that “necessarily carry a significant risk that a
defendant stands convicted of ‘an act that the law does not make criminal’ ” or faces a
punishment that the law cannot impose upon him” and must be a rule “without which the
likelihood of an accurate conviction is seriously diminished”) (emphasis in original).
The Supreme Court has already determined that rules based on Apprendi do not apply
retroactively. See generally Summerlin, 542 U.S. at 348; see also McCoy v. United States, 266
F.3d 1245, 1258 (11th Cir. 2001)(“[T]he new constitutional rule of criminal procedure announced
in Apprendi does not apply retroactively on collateral review.”). Similarly, several federal courts
have now determined that Alleyne does not retroactively apply to cases on collateral review. See
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Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013) (The fact that Alleyne is merely an
“extension of Apprendi . . . implies that the Court will not declare Alleyne to be retroactive”);
Dilbert v. United States, 2013 WL 540844, *3 (M.D. Fla. Sept. 25, 2013) (“[T]he rule announced
in Alleyne is not retroactive to cases on collateral review.”); Light v. Martin, 2013 WL 4804889,
*4 (S.D. Miss. Sept. 9, 2013) (“[S]ince Apprendi is not retroactive on collateral review, it is
doubtful that Alleyne will be.”); United States v. Springs, 2013 WL 4042642, *4 (W.D.N.C.
Aug. 9, 2013)(holding that petitioner was not entitled to collateral relief under Alleyne); United
States v. Eziolisa, 2013 WL 3812087, *3 (S.D. Ohio July 22, 2013) (holding that Alleyne does
not apply retroactively because it does not adopt a “watershed” rule); Luney v. Quintana, 2013
WL 3779172, *3 (E.D. Ky. July 18, 2013) (noting that “there is no indication in . . . Alleyne that
the Supreme Court made [that] holding [] retroactive to cases on collateral review.”).
Even if Alleyne could be applied retroactively, it nevertheless does not provide relief to
Young because he has admitted in the plea agreement and colloquy to the previous drug
conviction as well as to the drug amount, which required the imposition of his mandatory 10-
year sentence. See United States v. Wimberly, 2013 WL 3214988, *1 (6th Cir. June 26,
2013)(“[T]he holding of Alleyne is irrelevant to this case because Wimberly entered a guilty plea
and specifically admitted discharging a firearm during the credit-union robbery, the fact used to
support his mandatory minimum sentence.”); Dilbert, 2013 WL 540844 at *3 (“[E]ven if Alleyne
can be applied retroactively to cases on collateral review, it is irrelevant to Petitioner’s case
[because,] [d]uring his plea colloquy, Petitioner admitted to the fact used to support his ten-year
minimum mandatory sentence . . . , i.e., smuggling five kilograms or more of cocaine.”); United
States v. Fredriksen, 2013 WL 4776314, *2 n. 4 (S.D. Ala. Sept. 5, 2013) (“[I]t is doubtful that
Alleyne affords Fredriksen any relief [because, in part,] she chose not to proceed to trial before a
jury and, instead, entered a counseled plea of guilty.”).
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For this reason, the assistance provided to Young by his sentencing and appellate
counsel, Jones, was not ineffective. Young is, therefore, not entitled to habeas relief on this
ground and his motion for such is due to be denied.
E. Department of Justice Policy Change.
On August 21, 2013, Young sought to amend his § 2255 motion by asserting a new claim
predicated on an alleged “proclamation” of the United States Attorney General.
21 (Doc. 164).
Although this motion was denied (doc. 165), the United States has elected to address it in its
opposition brief. (Doc. 167 at 21-22). Young has also replied (doc. 170 at 23-24, 33), objecting
to the undersigned’s denial of his motion to amend on the grounds that Young “failed to
establish, among other things, that this alleged ‘change in notice’ pertaining to future
indictments, even if implemented, could have any impact on the conviction and sentence he
challenges in this case” (doc. 165). Young relies on an undated newspaper clipping reporting:
Last month, [Eric] Holder said certain low-level, non-violent drug offenders –
those without ties to large-scale organizations, gangs or cartels – no longer will be
charged with offenses that impose severe mandatory minimum sentences.
(Doc. 170 at 33).
Young has failed to establish that this alleged change in policy could have any impact on
his conviction and sentence.22 See United States v. Addonizio, 442 U.S. 178, 185-87 (1979)
(petitioner’s allegation that post-sentencing change in policy of the United States Parole
Commission prolonged his imprisonment beyond the period intended by the sentencing judge did
21 According to the Defendant, “Attorney General, Eric Holder, has issued a proclamation to his
U.S. Attorney’s to refrain from alleging drug quantities or penalty statutes in the indictments for current
& future prosecutions, which in turn, leave the drug amount & penalty to be imposed solely in the Federal
Judges discretionary authority.” (Doc. 164 at 1).
22 By his own admissions, Young’s ties to his nephew’s extensive marijuana operation make it
questionable that he would fall within the class of drug offenders referred to by Holder in the
aforementioned newspaper clipping. (Doc. 170 at 33).
Case 1:06-cr-00278-KD-B Document 172 Filed 01/16/14 Page 27 of 30
28
not support a collateral attack of the sentence under § 2255); United States v. Roy, 2010 WL
391825, *2 (W.D. Va. Feb. 3, 2010) (change in DOJ policy regarding sentencing disparity in
crack cocaine and powder cocaine cases was not a ground for § 2255 relief); Campbell v. United
States, 2009 WL 3415162, *2 (E.D. Tenn. Oct. 19, 2009) (same and noting that “the recent
changes in the Department of Justice policy regarding sentencing disparity between crack
cocaine and powder cocaine cases [do not] create a new and constitutional right for criminal
defendants to file a § 2255 motion.”). Consequently, Young has failed to establish a right to seek
resentencing based on the alleged change in the Department of Justice’s policy regarding
mandatory minimum drug sentences, or even that such a claim is cognizable in a collateral attack
under § 2255.
Petitioner is not entitled to a Certificate of Appealability.
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, the undersigned
recommends that a certificate of appealability in this case be denied. 28 U.S.C. § 2255; Rule
11(a) ("The district court must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant."). The habeas corpus statute makes clear that an applicant is
entitled to appeal a district court's denial of his habeas corpus petition only where a circuit justice
or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of
appealability may issue only where "the applicant has made a substantial showing of the denial
of a constitutional right." 28 U.S.C. § 2253(c)(2). “[A] COA should issue [only] when the
prisoner shows . . . that jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,
484, (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“Under the controlling
standard, a petitioner must ‘sho[w] that 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
Case 1:06-cr-00278-KD-B Document 172 Filed 01/16/14 Page 28 of 30
29
presented were "adequate to deserve encouragement to proceed further’.”). Inasmuch as it is
clear that Young’s claim for relief made pursuant to § 2255 is without merit, a reasonable jurist
could not conclude either that this Court is in error in dismissing the instant petition or that the
petitioner should be allowed to proceed further. See Slack, 529 U.S. at 484 ("Where a plain
procedural bar is present and the district court is correct to invoke it to dispose of the case, a
reasonable jurist could not conclude either that the district court erred in dismissing the petition
or that the petitioner should be allowed to proceed further.").
In the instant case, Petitioner's claims do not warrant the issuance of a Certificate of
Appealability. Petitioner's claims are without merit. Therefore, no reasonable jurist could differ
on the appropriate disposition of the petition on the record presented. It is thus recommended that
the Court deny any request for a Certificate of Appealability. Because Petitioner is not entitled to
a Certificate of Appealability, any request for leave to appeal in forma pauperis is also due to be
denied.
CONCLUSION
For the reasons stated above, it is the recommendation of the undersigned Magistrate
Judge that Young’s § 2255 motion be DENIED. It is further recommended that any motion for a
Certificate of Appealability or for permission to appeal in forma pauperis be DENIED.
Notice of Right to File Objections
A copy of this report and recommendation shall be served on all parties in the manner
provided by law. Any party who objects to this recommendation or anything in it must, within
fourteen (14) days of the date of service of this document, file specific written objections with
the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); S.D. Ala. L.R. 72.4. In
order to be specific, an objection must identify the specific finding or recommendation to which
objection is made, state the basis for the objection, and specify the place in the Magistrate
Judge’s report and recommendation where the disputed determination is found. An objection
Case 1:06-cr-00278-KD-B Document 172 Filed 01/16/14 Page 29 of 30
30
that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not
specific.
DONE this 16th day of January 2014.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
Case 1:06-cr-00278-KD-B Document 172 Filed 01/16/14 Page 30 of 30 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-15-01349/USCOURTS-ca10-15-01349-0/pdf.json | [
[
"APEX",
"Appellee"
],
[
"Larry Black",
"Appellee"
],
[
"Dean Carbajal",
"Appellant"
],
[
"Steven Carter",
"Appellee"
],
[
"Centura Health",
"Appellee"
],
[
"Chuang",
"Appellee"
],
[
"City and County of Denver",
"Appellee"
],
[
"Gregory J. Englund",
"Appellee"
],
[
"Marci L. Hansue",
"Appellee"
],
[
"Jay Lopez",
"Appellee"
],
[
"Gilberto Lucio",
"Appellee"
],
[
"Michael O'Neill",
"Appellee"
],
[
"St. Anthony Central Hospital",
"Appellee"
],
[
"Stephan M. Swan",
"Appellee"
],
[
"Thomas",
"Appellee"
]
] | UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
DEAN CARBAJAL,
Plaintiff - Appellant,
v.
STEPHAN M. SWAN, Physician
Assistant, in his official capacity;
MICHAEL O'NEILL, Police Officer for
the Denver Police Department, in his
individual and official capacity; JAY
LOPEZ, Police Officer for the Denver
Police Department, in his individual and
official capacity; LARRY BLACK, Police
Officer for the Denver Police Department,
in his individual and official capacity; ST.
ANTHONY CENTRAL HOSPITAL, a
corporation; CENTURA HEALTH, a
corporation; APEX, a corporation;
CHUANG, Dr., Supervising Physician, in
his individual and official capacity;
THOMAS, Lieutenant, Lieutenant for the
Denver Police Department, in his
individual and official capacity; STEVEN
CARTER, Captain for the Denver Police
Department, in his individual and official
capacity; GILBERTO LUCIO, Police
Officer for the Denver Police Department,
in his individual and official capacity;
CITY AND COUNTY OF DENVER, a
political subdivision of the State of
Colorado; GREGORY J. ENGLUND;
MARCI L. HANSUE,
Defendants - Appellees.
No. 15-1349
(D.C. No. 1:12-CV-02257-PAB-KLM)
(D. Colo.)
_________________________________
ORDER
FILED
United States Court of Appeals
Tenth Circuit
November 3, 2016
Elisabeth A. Shumaker
Clerk of Court
Appellate Case: 15-1349 Document: 01019715135 Date Filed: 09/26/2016 Page: 1
2
_________________________________
Before TYMKOVICH, Chief Judge, HARTZ and PHILLIPS, Circuit Judges.
_________________________________
Appellant has filed a Motion for Rehearing with Suggestion of Rehearing
En Banc, and has also submitted a supplement to that Motion. We have construed the
original motion as a petition for panel rehearing with a suggestion for rehearing en banc.
The petition for panel rehearing is denied on the merits by the original panel. The
petition and supplement were also circulated to all the judges of the court who are in
regular active service in accordance with Rule 35(b) of the Federal Rules of Appellate
Procedure. No judge in regular active service called for a poll, so the suggestion for
rehearing en banc is denied.
The panel has sua sponte modified the Order issued on September 26, 2016; the
modified Order is attached. The Order dated September 26, 2016 is hereby withdrawn,
and the Clerk is directed to file the attached modified order nunc pro tunc to the filing
date of the original order, September 26, 2016.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
Appellate Case: 15-1349 Document: 01019715135 Date Filed: 09/26/2016 Page: 2
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
DEAN CARBAJAL,
Plaintiff - Appellant,
v.
STEPHAN M. SWAN, Physician
Assistant, in his official capacity;
MICHAEL O'NEILL, Police Officer for
the Denver Police Department, in his
individual and official capacity; JAY
LOPEZ, Police Officer for the Denver
Police Department, in his individual and
official capacity; LARRY BLACK, Police
Officer for the Denver Police Department,
in his individual and official capacity; ST.
ANTHONY CENTRAL HOSPITAL, a
corporation; CENTURA HEALTH, a
corporation; APEX, a corporation;
CHUANG, Dr., Supervising Physician, in
his individual and official capacity;
THOMAS, Lieutenant, Lieutenant for the
Denver Police Department, in his
individual and official capacity; STEVEN
CARTER, Captain for the Denver Police
Department, in his individual and official
capacity; GILBERTO LUCIO, Police
Officer for the Denver Police Department,
in his individual and official capacity;
CITY AND COUNTY OF DENVER, a
political subdivision of the State of
Colorado; GREGORY J. ENGLUND;
MARCI L. HANSUE,
Defendants - Appellees.
No. 15-1349
(D.C. No. 1:12-CV-02257-PAB-KLM)
(D. Colo.)
_________________________________
ORDER
FILED
United States Court of Appeals
Tenth Circuit
September 26, 2016
Elisabeth A. Shumaker
Clerk of Court
Appellate Case: 15-1349 Document: 01019715135 Date Filed: 09/26/2016 Page: 3
2
_________________________________
Before TYMKOVICH, Chief Judge, HARTZ and PHILLIPS, Circuit Judges.
_________________________________
This court ordered Mr. Carbajal to show cause why his appeal should not be
dismissed because his notice of appeal was untimely filed. The parties have fully briefed
the issue. We conclude that the notice of appeal was untimely and we therefore lack
jurisdiction to hear this appeal.
Mr. Carbajal, a Colorado state prisoner at the Arkansas Valley Correctional
Facility (“AVCF”), appears pro se. He was arrested in Denver in August 2010.
According to Mr. Carbajal, he was roughed up by members of the Denver Police
Department during the arrest and endured forced catheterization during treatment at
St. Anthony Central Hospital. In his subsequent suit under 42 U.S.C. § 1983,
Mr. Carbajal alleged numerous violations of his constitutional rights by law enforcement
officers and hospital personnel.
Eventually, nearly all of Mr. Carbajal’s claims were dismissed with the exception
of excessive force claims against three law enforcement officers. Mr. Carbajal went to
trial on these claims in August 2015. On August 18, 2015, the jury returned unanimous
verdicts in favor of the defendants. Judgment on the verdicts was entered on August 20,
2015. Mr. Carbajal’s notice of appeal was due 30 days after the entry of judgment—or
September 19, 2015. See Fed. R. App. P. 4(a)(1)(A). However, because September 19,
2015, fell on a Saturday, the notice of appeal was not due until Monday, September 21,
2015. See Fed. R. App. P. 26(a)(1)(C).
Appellate Case: 15-1349 Document: 01019715135 Date Filed: 09/26/2016 Page: 4
3
The AVCF has a legal mail system. Nonetheless, sometime after 4 p.m. on
Friday, September 18, 2015, Mr. Carbajal deposited the notice of appeal in AVCF’s
regular mail system, with a certificate of mailing to the district court and defendants’
counsel. The notice was docketed as filed on September 24, 2015—three days beyond
the September 21, 2015 deadline.
The question is whether Mr. Carbajal’s notice of appeal should be determined to
have been filed on September 18, 2015, under the prison mailbox rule—the judicially
created rule in Fed. R. App. P. 4(c)(1), which provides that
[i]f an inmate confined in an institution files a notice of appeal in . . .
a civil . . . case, the notice is timely if it is deposited in the institution’s
internal mail system on or before the last day for filing. If an institution has
a system designed for legal mail, the inmate must use that system to receive
the benefit of this rule. Timely filing may be shown by a declaration in
compliance with 28 U.S.C. § 1746 or by a notarized statement, either of
which must set forth the date of deposit and state that first-class postage has
been prepaid.
In interpreting Rule 4(c)(1), this court held that “[a]n inmate can establish the date
on which he . . . gave the papers to be filed with the court to a prison official in one of
two ways.” Price v. Philpot, 420 F.3d 1158, 1165 (10th Cir. 2005). “[I]f the prison has a
legal mail system, then the prisoner must use it as the means of proving compliance with
the mailbox rule.” Id. (internal quotation marks omitted). Alternatively, “if the inmate
does not have access to a legal mail system—or if the existing legal mail system is
inadequate to satisfy the mailbox rule,” the inmate must “submit a declaration in
compliance with 28 U.S.C. § 1746 or notarized statement setting forth the notice’s date of
Appellate Case: 15-1349 Document: 01019715135 Date Filed: 09/26/2016 Page: 5
4
deposit with prison officials and attest that first-class postage was pre-paid.”
Id. (brackets and internal quotation marks omitted).
It is undisputed that AVCF has a legal mail system, but Mr. Carbajal failed to use
it. In the declaration he filed with this Court in response to the order to show cause,
Mr. Carbajal stated that he placed the notice of appeal in the regular mail on September
18, 2015, first-class postage prepaid. He eventually developed an argument that AVCF’s
legal mail system was inadequate on September 18. Mr. Carbajal “has the burden of
proof on this issue.” Price, 420 F.3d at 1165. He has not met this burden.
Prisoners have access to AVCF’s mailroom for 30 minutes each day on Monday
through Friday afternoons, between either 3:00 to 3:30 or 3:30 to 4:00. Mr. Carbajal does
not dispute this fact, but argues that on Friday, September 18, 2015, two correction
officers, out of spite, refused to let him go to the mailroom. At the same time,
Mr. Carbajal says that he did not receive the materials he needed to file the notice of
appeal until sometime after 4:00 p.m., when the mailroom was already closed. He also
argues that prisoners do not have access to the mailroom when the facility is on
lockdown, and in any event, AVCF’s legal mail system is inadequate because it closes at
4 p.m. and is not open on weekends. But defendants produced evidence that other
prisoners used the legal mail system on September 18, and there is no evidence that the
facility was on lockdown at any time during the day. Moreover, we agree with
defendants that a prison is not required to have a system that is available 24-hours-a-day,
seven days a week. Here, it is enough that Mr. Carbajal had access to the system for
some portion of the day on which his court papers were due. Moreover, Mr. Carbajal
Appellate Case: 15-1349 Document: 01019715135 Date Filed: 09/26/2016 Page: 6
5
does not suggest, nor is there any evidence that he was denied access by the guards to
AVCF’s legal mail system or that the system was closed on Monday, September 21,
2015—the day the notice of appeal was due.
“The filing of a timely notice of appeal is an absolute prerequisite to our
jurisdiction.” Parker v. Bd. of Pub. Utils., 77 F.3d 1289, 1290 (10th Cir. 1996).
Mr. Carbajal’s notice was untimely and as a consequence this appeal is dismissed for lack
of jurisdiction.1
Entered for the Court
Gregory A. Phillips
Circuit Judge
1
The order assessing fees entered by the clerk’s office on March 8, 2016, is
vacated.
Appellate Case: 15-1349 Document: 01019715135 Date Filed: 09/26/2016 Page: 7 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca8-09-02314/USCOURTS-ca8-09-02314-0/pdf.json | [
[
"Robert E. Aspleaf",
"Appellee"
],
[
"Lisa Lambert",
"Appellant"
],
[
"Lori Mathes",
"Appellant"
],
[
"Glenn J. Parrett",
"Appellee"
],
[
"Maureen Rattray",
"Appellant"
],
[
"Woodbury County",
"Appellee"
]
] | 1
The Honorable Raymond C. Clevenger, III, Judge of the United States Court
of Appeals for the Federal Circuit, sitting by designation.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-2314
___________
Maureen Rattray; Lisa Lambert; *
Lori Mathes, *
*
Appellants, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Woodbury County, IA; Glenn J. Parrett, *
Individually and as Sheriff of *
Woodbury County; Robert E. Aspleaf, *
individually and as Assistant Chief/ *
Deputy of Woodbury County, *
*
Appellees. *
___________
Submitted: June 15, 2010
Filed: August 5, 2010
___________
Before RILEY, Chief Judge, CLEVENGER,1
and COLLOTON, Circuit Judges.
___________
COLLOTON, Circuit Judge.
Maureen Rattray filed a lawsuit against Woodbury County, Iowa (“the
County”), alleging that she was strip searched illegally as part of the booking process
Appellate Case: 09-2314 Page: 1 Date Filed: 08/05/2010 Entry ID: 3690587
2
The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
-2-
at the Woodbury County Jail. Rattray subsequently moved to certify a class action.
The district court2
denied Rattray’s motion, ruling that Rattray failed to convince the
court that she would adequately represent the interests of the class, as required by
Federal Rule of Civil Procedure 23(a)(4), and that she did not satisfy any of the
prerequisites of Federal Rule of Civil Procedure 23(b) for maintenance of a class
action. Rattray brought this interlocutory appeal, and we affirm.
I.
On February 13, 2007, Rattray filed a complaint against the County and made
the following factual allegations. At around 2:05 a.m. on August 19, 2006, Sioux City
police officers arrested Rattray for first-offense driving under the influence, which is
a serious misdemeanor in Iowa punishable by a minimum of forty-eight hours in jail.
Iowa Code § 321J.2. The officers took Rattray to the Woodbury County Jail for
booking. Before placing Rattray in a holding cell, two female jailers ordered Rattray
to remove her clothes for a strip search, and Rattray complied. The jailers performed
a cavity search of Rattray’s vaginal and genital area. While still naked, Rattray was
escorted to a holding cell. Inside the holding cell, the jailers performed a second
cavity search before permitting Rattray to dress in a jail uniform.
Rattray’s initial complaint alleged that the strip search and cavity search were
conducted without reasonable suspicion to believe that she possessed a weapon or
contraband, and thus constituted a violation of her Fourth Amendment right against
unreasonable searches. In addition, paragraph 40 of the complaint asserted that “[t]he
Woodbury County Sherriff’s [sic] Department’s policy, regulation, official decision,
custom, or usage for strip/cavity searching those arrested for offenses other than
scheduled violations (code section) or simple misdemeanors is that arrestees can be
Appellate Case: 09-2314 Page: 2 Date Filed: 08/05/2010 Entry ID: 3690587
-3-
and are strip/cavity searched, as was [Rattray,] without at least a reasonable suspicion”
that the arrestee possessed a weapon or contraband. Paragraph 41 continued that the
County “thus has a policy, regulation, official decision, custom, or usage for those
arrested for anything other than a scheduled violation (code citation) or simple
misdemeanor that violates such arrestees’ fourth amendment rights.”
On October 15, 2007, Rattray moved for leave to amend her complaint to assert
a class action. Rattray asserted in the motion that she had learned through discovery
in August 2007 that the County had a policy requiring strip searches for all arrestees
who were accused of a serious misdemeanor. Under the policy, the existence of which
the County admitted, an individual arrested for a serious misdemeanor was strip
searched without regard to whether jailers reasonably suspected that the arrestee
possessed a weapon or contraband. Rattray sought to represent a class of “[a]ll
persons arrested for a serious misdemeanor and strip searched pursuant to defendant
jail’s across-the-board strip search policy.” On October 31, a magistrate judge granted
Rattray’s motion for leave to amend, ruling that Rattray had shown good cause for not
amending her complaint as a matter of right within the time limits of Federal Rule of
Civil Procedure 15(a).
Rattray filed her amended complaint on October 31. The new complaint added
factual allegations that pertained to the proposed class, and asserted that the claims of
the potential class members “are all based on a single, unwritten, across-the-board
strip search policy.” Rattray sought damages on behalf of the class, attorneys’ fees,
interest and costs, and other relief deemed appropriate. The amended complaint also
requested declaratory and injunctive relief that would prohibit the County from strip
searching, without reasonable suspicion, arrestees booked into the jail.
On April 28, 2008, nearly six months after filing her amended complaint,
Rattray moved to certify the class. Rattray’s brief in support of her motion alleged
that the proposed class consisted of an estimated 1757 individuals arrested on serious
Appellate Case: 09-2314 Page: 3 Date Filed: 08/05/2010 Entry ID: 3690587
3
After moving to certify a class, Rattray consolidated her case with those of Lisa
Lambert and Lori Mathes, who also alleged that they were strip searched at the
Woodbury County Jail after arrests for serious misdemeanors. She also added
Woodbury County Sheriff Glenn Parrett and Assistant Chief/Deputy Robert Aspleaf
as defendants.
-4-
misdemeanor charges from February 13, 2005, to October 15, 2007, the date on which
the County discontinued the strip search requirement for arrestees accused of serious
misdemeanors. Rattray asserted that the class action could be brought under Federal
Rule of Civil Procedure 23(b)(3), which allows certification when common questions
of law or fact “predominate” over individual questions and a class action is “superior”
to other methods of adjudicating the controversy, or under Rule 23(b)(1)(A), which
permits certification when actions by individual class members create the risk of
“inconsistent or varying adjudications” that would establish “incompatible standards
of conduct” for the defendant.3
The County resisted the motion to certify. The County challenged Rattray’s
assertion that she did not move for class certification earlier because she did not learn
of the blanket strip search policy until discovery. Paragraph 40 of Rattray’s initial
complaint, according to the County, showed that Rattray was aware of the policy
when she filed the complaint. While not questioning the capabilities of Rattray’s
counsel, the County argued that the delay in moving for class certification suggested
that Rattray did not meet Rule 23(a)(4)’s requirement that the class representative
would “fairly and adequately protect the interests of the class.”
The County also contended that the class action could not be maintained under
Rule 23(b)(3), because with respect to each member of the class, the court would be
required to determine whether jailers had an objective basis for reasonable suspicion
to support the strip search. The County argued that the question whether jailers had
an objective basis for reasonable suspicion was specific to the facts of each case. In
the County’s view, the adjudication of an individual class member’s claim would not
Appellate Case: 09-2314 Page: 4 Date Filed: 08/05/2010 Entry ID: 3690587
-5-
affect any other individual claim, and thus certification under Rule 23(b)(1) also
would be inappropriate.
The district court denied Rattray’s motion to certify the class. Rattray v.
Woodbury County, 253 F.R.D. 444 (N.D. Iowa 2008). The court determined that
Rattray met the requirements of Rule 23(a)(1) through (3), but it was “not convinced”
that Rattray would adequately represent the class, as required by Rule 23(a)(4). Id.
at 457. In light of paragraph 40 of the initial complaint, the court found Rattray’s
claim “that she only recognized the potential for class litigation in August 2007 [to be]
seriously suspect,” suggesting that Rattray could have filed a complaint on behalf of
the class well before October 2007. Id. at 456. But “even more disturbing,” the court
believed, was that nearly six months elapsed between the filing of the amended
complaint and the filing of the motion to certify the class action in April 2008. Id.
While opining that Rattray’s attorneys were “otherwise very capable and
experienced,” the court concluded that the course of litigation to that point evinced
Rattray’s “apparent lack of zeal to represent a class,” and the inexperience of Rattray’s
counsel in class action litigation. Id. at 456-57.
The district court then assumed for the sake of argument that Rattray satisfied
Rule 23(a)(4), and proceeded to consider whether the class action could have been
brought under one of the subsections of Rule 23(b). With respect to Rule 23(b)(3),
the court rejected Rattray’s argument that because class members were strip searched
pursuant to the blanket jail policy, common questions predominated over individual
ones. The court concluded that the predominant question was whether reasonable
suspicion existed to justify strip searches of putative class members, and that the timeconsuming review of each class member’s arrest and jail records would “dwarf[] every
other issue” in the case. Id. at 462-63. For the same reason, the district court ruled
that a class action was not superior to other methods of adjudicating the dispute. Id.
at 464-65. As to Rule 23(b)(1)(A), the court cited Rattray’s concession in her
certification motion that there was little risk of inconsistent judgments, and therefore
Appellate Case: 09-2314 Page: 5 Date Filed: 08/05/2010 Entry ID: 3690587
-6-
rejected Rattray’s argument that certification was proper under this subsection. Id. at
458-59.
Rattray petitioned this court, pursuant to Federal Rule of Civil Procedure 23(f),
to permit an interlocutory appeal of the district court’s ruling. An administrative panel
of the court granted the petition, and the case was assigned to this panel for decision.
II.
The district court may grant a motion to certify a class action only if the
putative class representative satisfies all four of the requirements set forth in Federal
Rule of Civil Procedure 23(a), and the class action satisfies one of the three
subsections of Federal Rule of Civil Procedure 23(b). Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 613-14 (1997). In common shorthand, the requirements for
class actions under Rule 23(a) are (1) numerosity, (2) commonality, (3) typicality, and
(4) adequacy of representation. Id. at 613. The district court ruled that Rattray
satisfied the first three Rule 23(a) requirements, but that she failed to convince the
court on the fourth.
Rule 23(a)(4) permits certification of a class action only if the representative
“will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4).
The party moving for certification bears the burden to prove that she will adequately
represent the class. Bishop v. Comm. on Prof’l Ethics & Conduct, 686 F.2d 1278,
1288 (8th Cir. 1982). The district court must decide whether Rule 23(a)(4) is satisfied
through balancing “the convenience of maintaining a class action and the need to
guarantee adequate representation to the class members.” Wright v. Stone Container
Corp., 524 F.2d 1058, 1061 (8th Cir. 1975). The district court is accorded broad
discretion to decide whether certification is appropriate, and we will reverse only for
abuse of that discretion. In re Milk Prods. Antitrust Litig., 195 F.3d 430, 436 (8th Cir.
1999); Bishop, 686 F.2d at 1287.
Appellate Case: 09-2314 Page: 6 Date Filed: 08/05/2010 Entry ID: 3690587
4
Rattray asserts that the district court did not explicitly identify Rule 23(a)(4)
as a basis for denying her motion for class certification. Rattray, however, bore the
burden to prove adequacy of representation, and the district court stated plainly that
it was “not convinced” that Rattray was an adequate representative.
-7-
Rattray contests the district court’s determination that she failed to prove that
she would be an adequate representative for the class.4
She argues that the district
court ignored the earlier ruling of the magistrate judge granting her leave to amend the
complaint, in which the court found that Rattray had good cause for not asserting a
class action at an earlier date. Rattray also points to the “many depositions” and
“hundreds of pages of documents, including the records of those arrested for serious
misdemeanors” as evidence of her adequacy as class representative. In sum, Rattray
contends that the district court’s concerns about her adequacy as class representative
were unfounded, and that the district court abused its discretion.
We respectfully disagree. The magistrate judge’s determination that Rattray
had good cause for not asserting a class action before October 2007 did not dictate the
conclusion on the separate motion to certify a class. Whereas courts should “freely
give leave” to amend pleadings, Fed. R. Civ. P. 15(a)(2); see Foman v. Davis, 371
U.S. 178, 182 (1962), they must conduct a “rigorous analysis” to determine whether
the prerequisites for a class action under Rule 23(a) are satisfied. Gen. Tel. Co. of Sw.
v. Falcon, 457 U.S. 147, 161 (1982). The inquiry into adequacy of representation, in
particular, requires the district court’s close scrutiny, because the purpose of Rule
23(a)(4) is to ensure due process for absent class members, who generally are bound
by a judgment rendered in a class action. See Hansberry v. Lee, 311 U.S. 32, 41
(1940).
We agree with the district court’s conclusion that Rattray’s initial complaint,
at a minimum, forecasts that a broad strip search policy was in effect at the county jail.
Paragraph 40 specifically alleged that the “policy, regulation, official decision,
custom, or usage” of the Sheriff’s Department was to conduct strip searches and
Appellate Case: 09-2314 Page: 7 Date Filed: 08/05/2010 Entry ID: 3690587
-8-
cavity searches without reasonable suspicion. Paragraph 41 alleged that this policy
or practice violated the Fourth Amendment rights of arrestees at the jail. Accepting
that these allegations were made in good faith, Rattray and her counsel knew when she
filed the complaint in February 2007 that a potential class existed, or at least that there
was reason to investigate the matter promptly. Yet Rattray did not amend her
complaint to assert a class action on behalf of other arrestees until October 2007.
Even beyond that lapse in time, the district court was most concerned about the
nearly six-month period from the filing of the amended complaint to the filing of the
motion to certify the class. Including this delay, over fourteen months passed between
the filing of the initial complaint and the motion to certify. Rattray’s failure to move
to certify with alacrity undermines confidence in the zeal with which she would
represent the interests of absent class members. See E. Texas Motor Freight Sys. Inc.
v. Rodriguez, 431 U.S. 395, 405 (1977). A failure of the putative class representative
to assure the court that it will vigorously pursue the interests of class members is a
sufficient basis to deny certification. Monroe v. City of Charlottesville, 579 F.3d 380,
385 (4th Cir. 2009), cert. denied, 130 S. Ct. 1740 (2010); see 7A Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1766, at 373
(3d ed. 2005) (“[T]he failure of the representative to move for class certification in a
timely fashion or otherwise to prosecute the action is a clear indication that the named
party is not an adequate representative.”).
We also cannot quarrel with the district court’s suggestion that “counsel with
any experience litigating class actions could reasonably be expected to assess pertinent
evidence and to file a motion to certify a class in much less than six months after filing
a class claim.” Rattray, 253 F.R.D. at 456. The experience and capability of the
representative’s counsel bears upon the adequacy of the representative. E.g., Amchem,
521 U.S. at 626 n.20; Fendler v. Westgate-Cal. Corp., 527 F.2d 1168, 1170 (9th Cir.
1975); see 7A Wright, Miller & Kane, supra, § 1769.1, at 448-53. Our review of the
record does not reveal any explanation for the substantial delay between the filing of
the amended complaint and the filing of the certification motion. Having worked with
Appellate Case: 09-2314 Page: 8 Date Filed: 08/05/2010 Entry ID: 3690587
5
Although we think the district court appropriately questioned the failure of
Rattray’s counsel to move for certification within a reasonable time, the court’s
unqualified statement that Rattray failed to show that her counsel had “any experience
with litigating class actions” is not supported by the record. One of Rattray’s counsel
did aver that she served as co-counsel in a class action that resulted in a settlement and
was associated with another attorney in a class action that was not certified. (R. Doc.
18, at 29-30).
-9-
counsel for more than a year in this case, the district court has a better vantage point
from which to determine whether the delay in moving for certification suggests that
Rattray’s counsel would not effectively pursue the interests of absent class members.
See McCarthy v. Kleindienst, 741 F.2d 1406, 1410 (D.C. Cir. 1984) (“[T]rial courts,
charged with the orderly management of litigation, are uniquely well situated to make
class certification decisions.”).5
We conclude that there were sufficient grounds for the district court to decide
that Rattray failed to meet her burden to prove that she “will fairly and adequately
protect the interests of the class,” as required by Federal Rule of Civil Procedure
23(a)(4). The district court did not abuse its broad discretion in denying the motion
for class certification on that basis. Because we affirm the district court’s ruling as to
adequacy of representation under Rule 23(a)(4), we need not address the district
court’s alternative conclusions regarding Rule 23(b).
* * *
The district court’s order denying Rattray’s motion to certify a class is affirmed.
_____________________________
Appellate Case: 09-2314 Page: 9 Date Filed: 08/05/2010 Entry ID: 3690587 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-almd-2_06-cv-00039/USCOURTS-almd-2_06-cv-00039-0/pdf.json | [
[
"Mike Johanns",
"Defendant"
],
[
"Lisa McCall",
"Plaintiff"
]
] | IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
LISA McCALL, )
)
Plaintiff, )
) CIVIL ACTION NO.
v. ) 2:06cv39-MHT
) (WO)
MIKE JOHANNS, Secretary, )
U.S. Department of )
Agriculture, )
)
Defendant. )
OPINION
Plaintiff Lisa McCall brought this suit against
defendant Secretary of the United States Department of
Agriculture (USDA), relying on Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. §§ 1981a, 2000e
to 2000e-17, and claiming that she was discriminated
against on the basis of her race and retaliated against
for complaining of discrimination. Specifically, she
alleges that, because she is black, she was treated
differently, fired, and not rehired; she also alleges
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 1 of 29
2
that she was fired or not rehired because she wrote
numerous letters complaining of discrimination to various
USDA officials. Jurisdiction over the case is invoked
under 42 U.S.C. §§ 2000e-5(f)(3) and 2000e-16.
The case is currently before the court the USDA’s
motion for summary judgment. For the reasons that
follow, the motion will be granted.
I. APPLICABLE STANDARDS AND PROCEDURES
A. Summary-Judgment Standard
Summary judgment is appropriate “if the pleadings,
the discovery and disclosure materials on file, and any
affidavits 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). The court's
role at the summary-judgment stage is not to weigh the
evidence or to determine the truth of the matter, but
rather to determine only whether a genuine issue exists
for trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 2 of 29
3
242, 249 (1986). In doing so, the court must view the
evidence in the light most favorable to the non-moving
party and draw all reasonable inferences in favor of that
party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
B. Title VII Standard
In order to prevail on a Title VII claim, McCall must
make the showing set forth in forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). In order to survive
summary judgment under this approach, McCall must first
set forth a prima-facie case of illegal discrimination or
retaliation, and, once satisfied, a presumption of
illegal discrimination or retaliation arises. If she
establishes a prima-facie case, the burden then shifts to
the USDA to rebut the presumption by articulating a
legitimate, non-discriminatory and non-retaliatory reason
for its employment action. Chapman v. AI Transport, 229
F.3d 1012, 1024 (11th Cir.2000). The USDA has the burden
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 3 of 29
4
of production, not of persuasion, and thus does not have
to persuade the court that it was actually motivated by
the reason advanced. Texas Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253-55 (1981).
Once the USDA satisfies this burden of production,
the presumption of discrimination or retaliation is
eliminated and McCall has the opportunity to come forward
with evidence, including the previously produced evidence
establishing the prima-facie case, sufficient to permit
a reasonable factfinder to conclude that the reason given
by the USDA was not the real reason for the adverseemployment decision. Chapman, 229 F.3d at 1024. McCall
may meet this burden by persuading the court that a
discriminatory or retaliatory reason more than likely
motivated the USDA or by demonstrating that the proffered
reason for the employment decision is not worthy of
belief. Burdine, 450 U.S. at 256.
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 4 of 29
5
C. Administrative Procedures
Finally, it is helpful in understanding this case to
understand the administrative procedures applicable to
McCall in pursuing her Title VII claims before the Merit
Systems Protection Board (MSPB) and the Equal Employment
Opportunity Commission (EEOC). The District of Columbia
Court of Appeals has explained the procedures succinctly
and clearly:
“An employee who intends to pursue a
mixed case [--that is, an adversepersonnel action subject to appeal to
the MSPB coupled with a claim that the
action was motivated by
discrimination--] has several paths
available to her. At the outset, the
aggrieved party can choose between
filing a ‘mixed case complaint’ with her
agency's EEO [Equal Employment
Opportunity] office and filing a ‘mixed
case appeal’ directly with the MSPB. By
statute, the relevant agency EEO office
and the MSPB can and must address both
the discrimination claim and the
appealable personnel action. Should she
elect the agency EEO route, within
thirty days of a final decision she can
file an appeal with the MSPB or a civil
discrimination action in federal
district court. If 120 days pass
without a final decision from the
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 5 of 29
6
agency's EEO office, the same avenues of
appeal again become available: the
complainant can file either a mixed case
appeal with the MSPB or a civil action
in district court.
“When a complainant appeals to the MSPB,
either directly or after pursuing her
claim with the agency EEO office, the
matter is assigned to an Administrative
Judge who takes evidence and eventually
makes findings of fact and conclusions
of law. The AJ's initial decision
becomes a final decision if neither
party, nor the MSPB on its own motion,
seeks further review within thirty-five
days. However, both the complainant and
the agency can petition the full Board
to review an initial decision. Should
the Board deny the petition for review,
the initial decision becomes final; if
the Board grants the petition, its
decision is final when issued. At this
point, the complainant again has a
choice: within thirty days of receiving
a final decision from the MSPB, she can
either appeal the discrimination claim
to the EEOC, or appeal the entire claim
(or any parts thereof) to the
appropriate district court. Finally, if
the MSPB fails to render a judicially
reviewable decision within 120 days from
the filing of a mixed case appeal, the
aggrieved party can pursue her claim in
federal district court.”
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 6 of 29
7
Butler v. West, 164 F.3d 634, 638-39 (D.C. Cir. 1999)
(citations omitted).
II. FACTS
A. McCall’s Employment with the USDA
McCall worked for the USDA’s Rural Development Bureau
from 1990 until 1997. The USDA consolidated some of its
offices in 1996. This consolidation is, for the most
part, at the root of what led to this lawsuit.
For most of her employment with the USDA, McCall
worked in the office in Hayneville, Alabama. However, in
the course of a statewide consolidation, the department
closed the Hayneville office, and, in November or
December 1996, the operations of this office, along with
McCall, were transferred to the Luverne, Alabama office.
In the Luverne office, McCall was first under the
supervision of Quinton X. Harris; then, starting in early
1997, she was under the supervision of Arthur Powers.
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 7 of 29
8
There were two black employees in the Luverne office,
McCall and another black woman. Powers sometimes
referred to McCall as “you people”; spoke to McCall and
the other black woman in the office in an angry way; and
asked them to move and integrate files, a task the white
employees did not have to do. The two black employees in
the office did not have phones or computers at their
desks, while the white employees of the office did. In
addition, a white woman replaced McCall as timekeeper for
the office.
As a result of the restructuring and consolidation
plan, which was approved in July 1996 and pursuant to
which McCall was transferred, the USDA determined that
some employees would have to be let go. In November
1996, around the time of her move to the Luverne office,
McCall was identified as person most likely to be
released from her position. She continued, however,
working in the Luverne office until April 1997, when she
was let go. At the time McCall was let go, she was a
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 8 of 29
9
Community Development Assistant, at a General Schedule
level 4/4.
USDA Human Resources Manager Barbara Price maintained
a “reemployment priority list” (RPL), a register of those
employees terminated during the reduction in force who
had opted into the list through the filing of paperwork;
certain government agencies gave these employees priority
in subsequent hiring. McCall was not added to the list
until May 1998, long after she was let go.
B. McCall’s Race-discrimination
Administrative-complaints
Toward the end of her employment and after the plan
of consolidation had been approved, McCall began to write
letters complaining of Powers’s behavior, which she felt
was discriminatory. In October 1996, she wrote a letter
to the USDA State Director; in December 1996 and February
1997, letters to the USDA Office of Civil Rights; in
April 1997 and April 1998, letters to the Secretary of
Agriculture; in August 1999, a letter to the USDA
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 9 of 29
10
Employment Complaints Division; and, in August 2000, a
letter to the Assistant Secretary of Agriculture.
Eventually, an investigation into discrimination in her
employment and termination was initiated.
McCall initially brought her race-discrimination
complaints in the USDA’s Office of Civil Rights. The
USDA reviewed her allegations of discrimination in
termination, harassment, and hiring and found that there
was insufficient evidence to establish a finding of
discrimination. McCall appealed the agency’s finding in
the MSPB. The MSPB split her complaints into two
separate cases: one having to do with her termination and
the other her claims of harassment and discriminatory
failure to reemploy. The MSPB found that it did not have
jurisdiction over the portion of her complaints having to
do with her reemployment claim, and set her termination
claim for hearing.
On January 8, 2002, McCall filed a motion for
voluntary dismissal with prejudice of the termination
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 10 of 29
11
claim, and the appeal was dismissed with prejudice.
There was no further appeal of this decision.
McCall appealed the lack-of-jurisdiction dismissal of
her reemployment appeal, and that decision was vacated
and remanded. She also appealed the substance of the
USDA’s resolution of her claims to the Equal Opportunity
Commission (EEOC), which considered and rejected them.
The EEOC rejected her termination appeal because it had
been, pursuant to her motion before the MSPB, dismissed
with prejudice; the EEOC rejected her harassment and
reemployment appeals because it found that they lacked
merit.
III. DISCUSSION
McCall makes three Title VII claims. First, she
claims that she was terminated because of her race and
because she filed complaints of discrimination; second,
she claims that she was not placed on the reemployment
list because of her race and because she filed complaints
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 11 of 29
12
of discrimination; and, finally she claims that she was
discriminated against in certain aspects of her
workplace. The court will address each claim in turn.
A. Termination
The USDA argues that, because McCall voluntarily
dismissed her termination appeal before the MSPB and
allowed her termination claim to lapse, she is precluded
from litigating her termination claim in this court.
This court agrees.
The preclusive effect of a judgment issued by an
administrative agency can differ from that of a judgment
issued by a court. As an initial matter, not all
administrative proceedings that produce judgments are
judicial; only where an administrative procedure is
judicial in nature will it have preclusive effect.
“Although administrative estoppel is favored as a matter
of general policy, its suitability may vary according to
the specific context of the rights at stake, the power of
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13
the agency, and the relative adequacy of agency
procedures.” Astoria Federal Savings and Loan Ass’n v.
Solimino, 501 U.S. 104, 109-110 (1991); see also United
States v. Utah Construction & Mining Co., 384 U.S. 394,
421-22 (1966); 18B Wright & Miller Fed. Prac. & Proc.
§ 4475. MSPB proceedings like the ones at issue here are
quasi-judicial, adversarial proceedings such that they
may have preclusive effect. See Carson v. Department of
Energy, 398 F.3d 1369 (Fed. Cir. 2005); Thomas v. General
Services Admin., 794 F.2d 661 (Fed. Cir. 1986).
In addition to the requirement that proceedings be
sufficiently judicial in nature, the substantive
statutory scheme must support, or at least not prohibit,
the application of preclusive effect. Astoria, 501 U.S.
at 108. The relevant statutes here do not prohibit claim
preclusion. There is no obvious purpose or effect of
Title VII or its implementing procedures that is not
served by claim preclusion; to the contrary, as other
courts have pointed out, to allow plaintiffs to bring
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 13 of 29
14
claims that they have abandoned in the administrative
context would allow them to perform an end-run around
exhaustion requirements set forth in the governing
statues. See, e.g., Vinieratos v. U.S., Dept. of Air
Force Through Aldridge, 939 F.2d 762, 774 (9th Cir.
1991). Whatever the merits of allowing issue preclusion
in the context of this statutory scheme, this court is
convinced that claim preclusion is allowed.
Turning to the application of preclusion in this
case, where claim preclusion is used as a defense, four
conditions must be met. First, the prior judgment must
have been rendered by a court of competent jurisdiction
and in accordance with the requirements of due process;
second, the judgment must be final and on the merits;
third, there must be identity of both parties; and,
fourth, the later proceeding must involve the same cause
of action as involved in the earlier proceeding. In Re
Atlanta Retail, 456 F.3d 1277, 1285 (11th Cir. 2006).
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 14 of 29
15
McCall disputes only the third requirement. First,
she points to the MSPB’s order vacating its earlier
decision that it did not have jurisdiction over McCall’s
reemployment claim, presumably as a way of indicating
that the MSPB’s dismissal with prejudice of her
termination claim was not final. However, this order had
no effect on the order relating to her termination claim.
As discussed, the MSPB separated the claims into two
separate cases and vacated its judgment only as to the
reemployment claim. The board’s order remanded only
McCall’s “reemployment priority rights appeal” and its
opinion indicates that it meant to address only that in
its remand order. Further, the board notes, in its order
vacating its earlier decision, that “The appellant
petitions for review from the initial decision that
dismissed this appeal for lack of jurisdiction.” Thus,
the record is perfectly clear that only McCall’s
reemployment was addressed by the order vacating the
prior decision. Her termination claim was voluntarily
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 15 of 29
16
dismissed with prejudice and was not addressed by the
order.
Second, McCall points out that the MSPB never
considered the merits of her case. This is true, but it
is true only because she terminated the process. The
order itself is final, and on the merits. “Dismissal of
a complaint with prejudice satisfies the requirement that
there be a final judgment on the merits. The phrases
‘with prejudice’ and ‘on the merits’ are synonymous
terms, both of which invoke the doctrine of claim
preclusion.” Citibank, N.A. v. Data Lease Financial
Corp., 904 F.2d 1498, 1501 (11th Cir. 1990). McCall
could have requested a dismissal of the claims without
prejudice in order to pursue her EEOC case, see, e.g.,
Vinieratos, 939 F.2d at 774, but she did not.
Thus, McCall, through her request for dismissal with
prejudice and subsequent abandonment of MSPB proceedings,
allowed the MSPB proceedings to become final and
preclusive. While she attempted to challenge the
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17
agency’s decision on her termination before the EEOC,
having requested that the matter be dismissed before the
MSPB and failing to appeal, she closed that avenue to
herself. She is precluded from collaterally challenging
the agency’s holding on the merits here.
Even if this were not so, however, McCall could not
prevail on the merits of her termination claim. Even
assuming that she could establish a prima-facie case of
race discrimination, the court would still have to
conclude that McCall has failed to call into question the
USDA’s reason for her termination by showing that the
reason is pretextual or unworthy of belief and thus the
result of racial animus. USDA states that McCall was
terminated because the agency was suffering financial
constraint; that certain offices had to be consolidated
in order to resolve the financial constraint; and that
McCall was the lowest ranked employee competing for the
position that remained open after the offices were
consolidated. McCall has not offered any reason to doubt
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 17 of 29
18
this explanation for her termination; she does not appear
to defend her race-discrimination contention at all,
other than to say that contention is not precluded.
McCall has not met her burden of showing pretext.
For example, she does not introduce any evidence that
supervisor Arthur Powers (who allegedly created a
discriminatory working environment and made
discriminatory comments) was involved in the decision to
terminate her; She does not even argue that Powers was
involved. Further, McCall does not argue that Powers was
involved in performance evaluations that might have
affected her ranking, and, in turn, her eligibility for
termination or retention.
Further, with respect to her retaliation complaints,
McCall cannot establish either a prima-facie case or
pretext. In order to establish a prima-facie case of
retaliation, McCall must show that (1) she engaged in
protected activity; (2) she suffered an adverseemployment action; and (3) there was a causal link
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 18 of 29
19
between her protected activity and the adverse employment
action. See Bass v. Board of County Commissioners, 256
F.3d 1095, 1117 (11th Cir. 2001). The plan for the
reduction in force, which McCall concedes she was fired
in accordance with, was approved before any of her
retaliation complaints was lodged. In order to establish
that there was a causal link between the expression and
the employment action, McCall must show that the person
taking the adverse action was aware of the protected
expression. Id. at 1119.
In this case, the court could imagine McCall doing so
by claiming that the actual decisionmaker was not the
group that formulated the plan for reductions but rather
was some other party who, for example, manipulated her
service rating or discretionarily selected her for
termination; however, the undisputed evidence is that she
was selected for termination as a result of a decision
made before she initiated her complaints. Even if this
were not so, McCall has made no effort to demonstrate
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 19 of 29
20
that the proffered reason for her termination is
pretextual, and the court can find nothing in the record
that would call the USDA’s proffered reason into doubt.
B. Failure to Reemploy
McCall argues that, because of her race and because
she complained of race discrimination, she was not placed
on the RPL. McCall, however, fails to present evidence
that would call into question the USDA’s stated reason
for not placing her on the RPL: she did not submit the
necessary paperwork in a timely manner.
1. Race Discrimination
The USDA does not challenge the contention that the
fact of having been excluded from the RPL without more,
an adverse employment action for the purposes of the
McDonnell Douglas analysis, but instead challenges that
its proffered reason for not placing McCall on the RPL is
pretextual. Again, however, assuming that McCall could
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21
establish a prima-facie case, she has failed to
demonstrate that the USDA’s proffered reason for not
placing McCall on the list is pretextual. The department
claims that it did not put her on the RPL because she did
not submit the forms necessary for placement on the list.
McCall does not deny this. Rather, she contends that
pretext is evident in this rationale for three other
reasons.
First, McCall argues that USDA Human Resources
Manager Price’s deposition testimony shows that she
“informally” placed employees on the RPL list. This is
a distortion of Price’s testimony and not supported by
the record. Price testified that she informally helped
workers who had been terminated, but she never indicated
that she placed employees on the RPL in the absence of
the forms that McCall failed to submit. To the contrary,
Price stated that she maintained an informal list
separate from the RPL. Price confirmed, however, that,
as to the RPL, “in order for a former RIF’d employee to
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 21 of 29
22
be on [the] RPL, they had to ensure that they filled out
the appropriate form that’s been identified in the
record.” She further confirmed that the RPL was
constituted by, and subject to, regulation, including the
requirement that the eligible employee “complete an
application prescribed by the employing agency.” 5
C.F.R. § 330.202. Thus, McCall’s reading of Price’s
testimony is not accurate, and she has presented no
evidence that anyone was placed on the RPL without
submitting the needed forms.
Second, McCall argues that there is evidence of
pretext because she was the only black person to be
included on the list. This does not demonstrate pretext;
McCall has not shown that she was not the only eligible
black person who submitted the forms, albeit belatedly,
to be so included.
Third, McCall cites the USDA EEO investigator’s
conclusion that his investigation suggested pretext. The
investigator’s conclusion is not only irrelevant, it is
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 22 of 29
23
not compelling. First, this court must make its own
independent and uninfluenced (by the investigator or
anyone else) assessment of the record. Second, the
investigator draws her conclusion essentially from the
fact that those placed on the RPL were white until McCall
was placed on it. The court has already stated that this
fact, standing alone, is not indicative of pretext. In
addition, the investigator points to the fact that
another black employee, although she was “accorded a lot
of time and explanation,” did not submit an RPL
application. However, the investigator does not note
whether this employee ever attempted to submit an
application; without this evidence no inferences can be
drawn. The investigator also points to the fact that
some white employees were not terminated. This is not
compelling evidence of pretext for the same reason that
it is not compelling evidence that McCall was
discriminatorily selected for termination: there is
nothing to suggest that the USDA’s stated reason for
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 23 of 29
24
terminating any employee had to do with anything but
their rankings. Indeed, white employees were terminated
as a result of this reduction in force. Finally, the
investigator points to the fact that a white employee had
forms missing from her Reduction-in-Force packet and that
this suggests that McCall may not have gotten the
application. However, this does not suggest that the
reason stated by the USDA is pretextual. As with
disciplinary infractions that lead to termination, the
employer need not be correct in believing that an event
that leads to a job action occurred; the employer need
only have a good-faith belief that the event occurred.
Damon v. Fleming Supermarkets Of Florida, Inc., 196 F.3d
1354, 1363 n. 3 (11th Cir. 1999). McCall does not
quarrel with the USDA’s premise that she did not, in
fact, submit her application and that the USDA so
believed. Thus, McCall does not succeed on her
contention that she was not placed on the RPL on the
basis of her race.
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 24 of 29
25
2. Retaliation
McCall argues that she was not placed on the RPL in
retaliation for complaining about racial discrimination.
Again, and for the same reasons, assuming that she can
demonstrate a prima-facie case of retaliation, she has
not produced sufficient evidence that the USDA’s
proffered reason for not placing her on the RPL is not
worthy of belief; there is no indication that there was
any reason for Price’s failure to place McCall on the RPL
other than that McCall did not submit the necessary
forms.
C. Racially Discriminatory Work Conditions
McCall asserts that a variety of acts during her
tenure with the USDA were racially discriminatory:
first, that her supervisor, Powers, did not give her and
another black employee their own desks or computers;
second, that he referred to her as “you people”; third,
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 25 of 29
26
that he spoke to her and the other black employee in an
angry tone; fourth, that he assigned to her duties that
white employees did not want; and, fifth, that he took
away her responsibilities as a timekeeper.
Title VII bars prohibited discrimination that alters
the terms and conditions of employment. The forbidden
alteration can be brought about in either of two ways:
one is through a tangible employment action, such as a
pay decrease, demotion or termination; the other way is
through creation of a hostile-work environment caused by
prohibited harassment that is sufficiently severe or
pervasive to alter the terms and conditions of work. See
Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d
1287, 1300 (11th Cir. 2007). Surprisingly, McCall
concedes here that the actions challenged here, taken
together, do not constitute a hostile-work environment,
for it is those types of actions, if severe and pervasive
enough, that usually are challenged as creating a hostile
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 26 of 29
1. Indeed, McCall’s complaint that Powers referred
to her “you people” would be particularly more
appropriately analyzed under the harassment framework,
because the core of her complaint is not that there was
a tangible employment action, but rather that there was
a more intangible effect on the terms and conditions of
her employment. See Baldwin 480 F.3d at 1300. This
effect has been addressed under the rubric of harassment,
as a way of targeting that behavior that does, indeed,
affect the terms and conditions of employment without
leading to, for example, a decrease in pay. See Meritor,
477 U.S. at 67 (“Of course ... not all workplace conduct
that may be described as ‘harassment’ affects a ‘term,
condition, or privilege’ of employment within the meaning
of Title VII. ... For ... harassment to be actionable, it
must be sufficiently severe or pervasive ‘to alter the
conditions of the victim's employment and create an
abusive working environment.’”).
2. Indeed, it is hard to see how acts that McCall
concedes together do not change the terms and conditions
of employment could individually do so.
27
environment.1
Instead, she contends that, individually,
they are barred by Title VII, and, it is thus,
individually, that the court will assess them.2
As stated, Title VII bars tangible-employment
actions. A tangible-employment action is an employment
decision “such as discharge or failure to hire, or other
conduct that alters the employee's compensation, terms,
conditions, or privileges of employment, deprives him or
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 27 of 29
28
her of employment opportunities, or adversely affects his
or her status as an employee.” Gupta v. Florida Board of
Regents, 212 F.3d 571, 587 (11th Cir. 2000). In
addition, while a tangible-employment action need not be
an ultimate employment action, like firing or failing to
hire, “some threshold level of substantiality ... must be
met for unlawful discrimination to be cognizable under
the anti-retaliation clause.” Wideman v. Wal-Mart
Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998).
Although the Eleventh Circuit Court of Appeals has
declined to establish a bright-line rule, “it is clear
that to support a claim under Title VII's antidiscrimination clause the employer's action must impact
the ‘terms, conditions, or privileges’ of the plaintiff's
job in a real and demonstrable way ... the asserted
impact cannot be speculative and must at least have a
tangible adverse effect on the plaintiff's employment.
... [A]n employee must show a serious and material change
in the terms, conditions, or privileges of employment.”
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 28 of 29
Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239
(11th Cir. 2001) (emphasis in original). Here the
actions about which McCall complains fall far short of
meeting this standard.
***
As stated, McCall makes three Title VII claims: that
she was terminated because of her race and because she
filed complaints of discrimination; that she was not
placed on the reemployment list because of her race and
because she filed complaints of discrimination; and,
finally, that she was discriminated against in certain
aspects of her workplace. As demonstrated above, the
evidence does not warrant any of these claims going to
trial. An appropriate summary judgment in favor of the
USDA will be entered.
DONE this the 28th day of March, 2008.
_____________________________ /s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
Case 2:06-cv-00039-MHT-SRW Document 58 Filed 03/28/08 Page 29 of 29 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_05-cv-02957/USCOURTS-cand-3_05-cv-02957-0/pdf.json | [
[
"Intel Corporation",
"Defendant"
],
[
"Lawrence Lang",
"Plaintiff"
]
] | 1
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STIPULATION AND [PROPOSED] ORDER TO CONTINUE RESPONSE DATE
SF/21630891.1
Bingham McCutchen LLP
DAVID M. BALABANIAN (SBN 37368)
CHRISTOPHER B. HOCKETT (SBN 121539)
JOY K. FUYUNO (SBN 193890)
Three Embarcadero Center
San Francisco, CA 94111-4067
Telephone: (415) 393-2000
Facsimile: (415) 393-2286
Attorneys for Defendant
Intel Corporation
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
LAWRENCE LANG, on behalf of himself and
all others similarly situated,
Plaintiff,
v.
INTEL CORPORATION, a Delaware
corporation,
Defendant.
No. C-05-2957-MHP
STIPULATION AND [PROPOSED]
ORDER TO CONTINUE FILING DATE
FOR DEFENDANT’S RESPONSE TO
PLAINTIFF’S COMPLAINT
IT IS STIPULATED BY AND BETWEEN THE PARTIES, THROUGH THEIR
COUNSEL AS FOLLOWS:
Pursuant to Civil Local Rule 6-2, Plaintiff Lawrence Lang and Defendant Intel
Corporation hereby stipulate that Intel Corporation’s response to Plaintiff’s complaint shall be
due either 60 days after transfer of the above captioned case pursuant to any motion to coordinate
or consolidate pre-trial proceedings per 28 U.S.C. Section 1407 or, in the alternative, 45 days
after any such motion has been denied. The parties request this extension of time to answer or
otherwise respond because the plaintiffs in Brauch, et al. v. Intel Corp., No. C 05-2743 (BZ)
Case 3:05-cv-02957-MHP Document 6 Filed 08/19/05 Page 1 of 3
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STIPULATION AND [PROPOSED] ORDER TO CONTINUE RESPONSE DATE
SF/21630891.1
(N.D. Cal., filed July 5, 2005), a related matter, have filed a petition to coordinate or consolidate
pre-trial proceedings per 28 U.S.C. Section 1407, and the above-styled action has been identified
as a related action to that petition. As a result the outcome of the pending petition will impact
significantly the schedule of this case.
This is the first stipulation between the parties. Because this litigation has just
begun, granting such a stipulation will not have any negative impact on the schedule of this case.
IT IS HEREBY STIPULATED.
DATED: August 11, 2005
Bingham McCutchen LLP
By: /s/ Joy K. Fuyuno
JOY K. FUYUNO
Attorneys for Defendant
Intel Corporation
DATED: August 16, 2005
Trump, Alioto, Trump and Prescott
By: /s/ Mario N. Alioto
MARIO N. ALIOTO
Attorneys for Plaintiff
Lawrence Lang
Case 3:05-cv-02957-MHP Document 6 Filed 08/19/05 Page 2 of 3
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STIPULATION AND [PROPOSED] ORDER TO CONTINUE RESPONSE DATE
SF/21630891.1
[PROPOSED] ORDER TO CONTINUE DEFENDANT’S RESPONSE DATE
IT IS HEREBY ORDERED that Defendant Intel Corporation’s response to
Plaintiff’s complaint shall be due either 60 days after transfer of the above captioned case
pursuant to any motion to coordinate or consolidate pre-trial proceedings per 28 U.S.C. Section
1407, or, in the alternative, 45 days after any such motion has been denied.
PURSUANT TO STIPULATION, IT IS SO ORDERED.
Dated: August ___, 2005
_________________________
Honorable Marilyn H. Patel
United States District Judge
19
U
NITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
IT IS SO ORDERED
Judge Marilyn H. Patel
Case 3:05-cv-02957-MHP Document 6 Filed 08/19/05 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_16-cv-01126/USCOURTS-caed-2_16-cv-01126-0/pdf.json | [
[
"Commissioner of Social Security",
"Defendant"
],
[
"Ray Jachin Winkelman",
"Plaintiff"
]
] | 1
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1
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
RAY JACHIN WINKELMAN,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
No. 2:16-cv-1126 AC
ORDER
Plaintiff has requested authority under 28 U.S.C. § 1915 to proceed in forma pauperis.
Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is unable to
prepay fees and costs or give security for them. Accordingly, the request to proceed in forma
pauperis will be granted. 28 U.S.C. § 1915(a).
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's request to proceed in forma pauperis (ECF No. 2), is GRANTED.
2. The Clerk of the Court is directed to serve the undersigned’s scheduling order in social
security cases.
3. The Clerk of the Court is further directed to serve a copy of this order on the United
States Marshal.
4. Within fourteen days from the date of this order, plaintiff shall submit to the United
States Marshal a completed summons and copies of the complaint and file a statement with the
Case 2:16-cv-01126-AC Document 3 Filed 06/07/16 Page 1 of 2
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2
court that said documents have been submitted to the United States Marshal.
5. The United States Marshal is directed to serve all process without prepayment of costs
not later than sixty days from the date of this order. Service of process shall be completed by
delivering a copy of the summons and complaint to the United States Attorney for the Eastern
District of California, and by sending a copy of the summons and complaint by registered or
certified mail to the Attorney General of the United States at Washington, D.C. See Fed. R. Civ.
P. 4(i)(1)(A) & (B). The Marshal shall also send a copy of the summons and complaint by
registered or certified mail to the Commissioner of Social Security, c/o Office of General
Counsel, Region IX, 160 Spear Street, Suite 800, San Francisco, CA 94105-1545. See Fed. R.
Civ. P. 4(i)(2).
DATED: June 7, 2016
Case 2:16-cv-01126-AC Document 3 Filed 06/07/16 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca8-05-03850/USCOURTS-ca8-05-03850-0/pdf.json | [
[
"Green Tree Servicing",
"Appellant"
],
[
"Elsie Sadler",
"Appellee"
],
[
"Terry Sadler",
"Appellee"
]
] | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3850
___________
Elsie Sadler, Terry Sadler, *
*
Appellees, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Green Tree Servicing, LLC, *
*
Appellant. *
___________
Submitted: May 19, 2006
Filed: October 17, 2006
___________
Before WOLLMAN, BOWMAN, and RILEY, Circuit Judges.
___________
BOWMAN, Circuit Judge.
Green Tree Servicing appeals from the District Court's denial of its motion to
compel arbitration of claims made by plaintiffs Elsie and Terry Sadler in this lawsuit.
Our jurisdiction over the appeal from the arbitrability determination is invoked under
the Federal Arbitration Act, 9 U.S.C. § 16(a)(1)(C) (2000) ("An appeal may be taken
from . . . an order . . . denying an application . . . to compel arbitration . . . ."). We
reverse and remand.
The genesis of this case is a thirty-year loan on a mobile home that
BankAmerica Housing Services made to Elsie Sadler (then Smith) in 1997. She
Appellate Case: 05-3850 Page: 1 Date Filed: 10/17/2006 Entry ID: 2100022
1
The Agreement is actually captioned "RETAIL INSTALLMENT
CONTRACT, SECURITY AGREEMENT, WAIVER OF TRIAL BY JURY AND
AGREEMENT TO ARBITRATION OR REFERENCE OR TRIAL BY JUDGE
ALONE." For obvious reasons, we have abbreviated that title for this opinion.
-2-
executed a Retail Installment Contract and Security Agreement1
that included
provisions for arbitration of disputes and waiver of jury trial. In December 2004,
Green Tree took over servicing the loan. At that time, Elsie and Terry Sadler lived
together in the mobile home and had made all required monthly payments.
Nevertheless, in January 2005, Green Tree sent a notice of default and in April 2005,
a notice of foreclosure. Unable to resolve the dispute, the Sadlers removed their
possessions from the mobile home. In June 2005, Green Tree sent notice that the
mobile home had been sold with a deficiency of over $18,000. Counsel for the
Sadlers has represented to this Court that the couple never missed a payment before
the foreclosure. In fact, at oral argument, counsel said that the Sadlers continued to
make post-foreclosure monthly payments according to the terms of the Agreement.
The Sadlers filed a diversity suit in the District Court alleging conversion,
negligent infliction of emotional distress (as to Elsie Sadler only), and violations of
Missouri statutory law resulting from Green Tree's handling of the foreclosure. The
complaint also included claims for punitive damages and attorney fees and a request
for a jury trial.
Green Tree moved to dismiss the complaint or, in the alternative, to compel
arbitration pursuant to the terms of the Agreement executed by Elsie Sadler. The
District Court held, inter alia, that Terry Sadler could not be compelled to arbitrate the
dispute because he was not a party to the Agreement. The court also concluded that
the Sadlers' claims were not otherwise subject to arbitration because they were based
on Green Tree's "self-help" remedy, that is, the foreclosure. In the court's view,
because Green Tree exercised this remedy, which is allowed under the terms of the
Appellate Case: 05-3850 Page: 2 Date Filed: 10/17/2006 Entry ID: 2100022
-3-
Agreement without first resorting to arbitration, it would be unconscionable to require
the Sadlers to arbitrate claims that arise out of Green Tree's "self-help."
After briefing was completed in this case but before oral argument, we
requested supplemental letter briefs from both parties. In our order, we noted that the
Agreement's section on arbitration of disputes included this language: "Any
controversy concerning whether an issue is arbitrable shall be determined by the
arbitrator(s)." Order of April 26, 2006 (quoting Retail Installment Contract and
Security Agreement at 5 (Arbitration of Disputes and Waiver of Jury Trial
subpara. b)). We asked, "Does that provision require that the arbitrability vel non of
the Appellees' claims be determined in the first instance by arbitrators rather than the
court?" Id. Having studied the terms of the Agreement and considered the parties'
supplemental briefs and arguments on the question, we conclude that the answer must
be "yes."
Lack of subject-matter jurisdiction of a lawsuit cannot be waived by the
parties—or ignored by the courts—at any stage of the litigation. Hunter v.
Underwood, 362 F.3d 468, 476 (8th Cir. 2004). We are therefore obligated to assure
ourselves that the District Court, by holding that the claims were not arbitrable,
properly asserted subject-matter jurisdiction, regardless of whether the parties raised
the question themselves. In this case, we took the further step of requesting
supplemental briefing on the issue, giving the parties an opportunity to tell us their
views before we addressed the question.
"Just as the arbitrability of the merits of a dispute depends upon whether the
parties agreed to arbitrate that dispute, so the question 'who has the primary power to
decide arbitrability' turns upon what the parties agreed about that matter." First
Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995) (citations omitted).
That is, we look to the Agreement to see if the parties affirmatively addressed the
question of who decides arbitrability. The presumption is that disputes about
Appellate Case: 05-3850 Page: 3 Date Filed: 10/17/2006 Entry ID: 2100022
2
In GreenPoint Credit, L.L.C. v. Reynolds, 151 S.W.3d at 875, the court held
that it would be unconscionable to compel arbitration of a borrower's counterclaims
that were made in responsive pleadings to the lender's replevin case filed in state
court—when the replevin action itself was excepted from arbitration by agreement of
the parties. In this case, however, Green Tree does not seek to compel arbitration for
counterclaims the Sadlers made in Green Tree's foreclosure action, but for claims
lodged by the Sadlers in a separate, post-foreclosure lawsuit. In any event, the
question of who should determine the arbitrability of the counterclaims was not at
issue in GreenPoint.
-4-
arbitrability are for the court to resolve unless there is clear and unmistakable evidence
that the parties agreed to have the arbitrator determine arbitrability. Id. at 944–45.
The section of the Agreement addressing arbitration and waiver of jury trial has
four subparagraphs: "a. Dispute Resolution," "b. Arbitration," "c. Judicial Reference
or Trial by a Judge," and "d. Self-Help, Foreclosure, and Provisional Remedies." The
unequivocal agreement to have the arbitrator resolve "[a]ny controversy concerning
whether an issue is arbitrable" is found in subparagraph b. The Sadlers point out,
however, that their claims go to the remedies invoked by Green Tree, and those
remedies are enumerated in subparagraph d. The language in that subparagraph
allows the parties "to exercise self-help remedies," including foreclosure, "before,
after or during the pendency of any arbitration under subparagraph (b) above." It is
the Sadlers' position that "subparagraph d carves out an exception to the paragraph's
general arbitration requirement," so "the requirement to arbitrate disputes about
arbitrability [found in subparagraph b] does not apply to those cases described in
subparagraph d." Letter Brief of Appellees at 2–3. They base this assertion on the
construction of the Agreement's arbitration provision, with the four separate
subparagraphs; their gloss on the interrelation of the subparagraphs; and the opinion
of the Missouri Court of Appeals in GreenPoint Credit, L.L.C. v. Reynolds, 151
S.W.3d 868 (Mo. Ct. App. 2004).2
Because their claims arise from Green Tree's
subparagraph d actions, which could be (and were) taken without first resorting to
arbitration, the Sadlers contend that the arbitrability agreement in subparagraph b
Appellate Case: 05-3850 Page: 4 Date Filed: 10/17/2006 Entry ID: 2100022
3
We have taken with the case the Sadlers' motion to modify the record. The
evidence that they would have us consider is irrelevant to the jurisdictional issue and
to our decision that the arbitrability of the claims should be decided by an arbitrator.
We therefore deny the motion as moot.
-5-
should not apply. But the Sadlers' argument founders on the final sentence of
subparagraph d (emphasis added): "Neither the obtaining nor the exercise of any such
[self-help] remedy shall serve as a waiver of the right of either you or me to demand
that the related or any other dispute or controversy be determined by arbitration as
provided above." We hold that the questions of arbitrability in this case are indeed
for the arbitrator and that the District Court erred in deciding that the Sadlers' claims
were not subject to arbitration.
We vacate the District Court's order and remand to that court with instructions
to grant Green Tree's motion to compel arbitration, leaving the disputes about
arbitrability to the arbitrator.3
______________________________
Appellate Case: 05-3850 Page: 5 Date Filed: 10/17/2006 Entry ID: 2100022 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_16-cv-01591/USCOURTS-caed-2_16-cv-01591-2/pdf.json | [
[
"Commissioner of Social Security",
"Defendant"
],
[
"Carrie Ruth Savage",
"Plaintiff"
]
] | -1-
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Steven G. Rosales
Attorney at Law: 222224
Law Offices of Lawrence D. Rohlfing
12631 East Imperial Highway, Suite C-115
Santa Fe Springs, CA 90670
Tel.: (562)868-5886
Fax: (562)868-5491
E-mail [email protected]
Attorneys for Plaintiff CARRIE RUTH SAVAGE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CARRIE RUTH SAVAGE,
Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant
)
)
)
)
)
)
)
)
)
)
)
)
Case No.: 2:16-CV-01591 AC
STIPULATION TO EXTEND
BRIEFING SCHEDULE
TO THE HONORABLE ALLISON CLAIRE, MAGISTRATE JUDGE OF
THE DISTRICT COURT:
Plaintiff Carrie Ruth Savage (“Plaintiff”) and defendant Nancy A. Berryhill,
Acting Commissioner of Social Security (“Defendant”), through their undersigned
counsel of record, hereby stipulate, subject to the approval of the Court, to extend
the time for Plaintiff to file Plaintiff’s Motion for Summary Judgment to April 12,
2017; and that Defendant shall have until May 12, 2017, to file her opposition.
Any reply by plaintiff will be due June 2, 2017.
Case 2:16-cv-01591-AC Document 15 Filed 03/28/17 Page 1 of 4
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As the Court is aware, after a 5 year battle with terminal stage 4 cancer
Plaintiff’s Spouse passed away on September 30, 2016. The aftermath of this
traumatic event on both Counsel and his 9 year old son and 7 year old daughter was
immeasurable. Compounding the impact of this loss is the fact that Counsel’s
spouse was a former employee at Counsel’s Law Firm and her death was far
reaching in its impact on Counsel’s professional life as well. Due to the death, the
subsequent holiday period, and the need to find a permanent caregiver and the
required time to acclimate his children to that presence during his absence to meet
his professional obligations, Counsel requires the additional time to prepare and
file Plaintiff’s Motion for Summary Judgment.
Counsel for plaintiff does not anticipate this extraordinary request for more
time to become the rule and recognizes it is the extraordinary exception and
sincerely apologizes to the court for any inconvenience this may have had upon it
or its staff.
Counsel sincerely apologizes to the court for any inconvenience this may
have had upon it or its staff.
///
///
///
///
///
///
///
///
///
///
Case 2:16-cv-01591-AC Document 15 Filed 03/28/17 Page 2 of 4
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DATE: March 3, 2017 Respectfully submitted,
LAW OFFICES OF LAWRENCE D. ROHLFING
/s/ Steven G. Rosales
BY: _________________________ Steven G. Rosales Attorney for plaintiff CARRIE RUTH SAVAGE
DATED: March 3, 2017 PHILLIP A. TALBERT
United States Attorney
*/S/- Jennifer Lee Tarn
_________________________________
Jennifer Lee Tarn
Special Assistant United States Attorney
Attorney for Defendant
[*Via email authorization]
Case 2:16-cv-01591-AC Document 15 Filed 03/28/17 Page 3 of 4
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IT IS HEREBY ORDERED that plaintiff may have an extension of time, to
and including April 12, 2017, in which to file Plaintiff’s Motion for Summary
Judgment; Defendant may have an extension of time to May 12, 2017 to file her
opposition, if any is forthcoming. Any reply by plaintiff will be due June 2, 2017.
IT IS SO ORDERED.
DATE: March 27, 2017
Case 2:16-cv-01591-AC Document 15 Filed 03/28/17 Page 4 of 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_07-cv-00368/USCOURTS-caed-2_07-cv-00368-4/pdf.json | [
[
"People of the State of California",
"Respondent"
],
[
"Angelo Searcy",
"Petitioner"
]
] | 1
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1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ANGELO SEARCY,
Petitioner, No. CIV S-07-0368 GEB KJM P
vs.
PEOPLE OF THE STATE OF
CALIFORNIA, ORDER AND
Respondent. FINDINGS AND RECOMMENDATIONS
/
Petitioner, a state prisoner proceeding pro se, has filed this application for a writ
of habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On August 3, 2007, respondent filed a motion to dismiss on the ground that the
claims in the petition have not been exhausted.
On October 15, 2007, the court issued an order to show cause, directing petitioner
to demonstrate why the motion should not be granted and warning petitioner that the case would
be dismissed should he fail to respond.
On December 17, 2007, this court recommended that the case be dismissed as a
result of petitioner’s failure to prosecute.
/////
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A petition may be denied on the merits without exhaustion of state court remedies. 28 1
U.S.C. § 2254(b)(2).
2
On January 17, 2008, petitioner filed objections to the findings and
recommendations. He does not address his earlier failure to respond to the motion or to the
court’s order, but rather asks for a stay of the proceedings to enable him to exhaust state
remedies.
The exhaustion of state court remedies is a prerequisite to the granting of a
petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must
be waived explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, 1
thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by
providing the highest state court with a full and fair opportunity to consider all claims before
presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v.
Cupp, 768 F.2d 1083, 1086 (9th Cir. 1986).
The state court has had an opportunity to rule on the merits when the petitioner
has fairly presented the claim to that court. The fair presentation requirement is met where the
petitioner has described the operative facts and legal theory on which his claim is based. Picard,
404 U.S. at 277-78. Generally, it is “not enough that all the facts necessary to support the federal
claim were before the state courts . . . or that a somewhat similar state-law claim was made.”
Anderson v. Harless, 459 U.S. 4, 6 (1982). Instead,
[i]f state courts are to be given the opportunity to correct alleged
violations of prisoners’ federal rights, they must surely be alerted
to the fact that the prisoners are asserting claims under the United
States Constitution. If a habeas petitioner wishes to claim that an
evidentiary ruling at a state court trial denied him the due process
of law guaranteed by the Fourteenth Amendment, he must say so,
not only in federal court, but in state court.
Duncan v. Henry, 513 U.S. 364, 365 (1995). Accordingly, “a claim for relief in habeas corpus
must include reference to a specific federal constitutional guarantee, as well as a statement of the
facts which entitle the petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 116 S. Ct. 2074,
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2081 (1996). The United States Supreme Court has held that a federal district court may not
entertain a petition for habeas corpus unless the petitioner has exhausted state remedies with
respect to each of the claims raised. Rose v. Lundy, 455 U.S. 509 (1982).
Petitioner raises one claim with several subparts and one additional claim in his
petition. In his first ground for relief, petitioner asserts there were no fingerprint comparisons or
DNA tests conducted on the evidence and that the trial court instructed the jury with CALJIC No.
2.62. In his second ground for relief, petitioner argues that the trial court abused its discretion in
instructing the jury to continue to deliberate after it declared a deadlock.
After reviewing the record in this action, the court finds petitioner has failed to
exhaust state court remedies as to any of the claims raised in his federal petition. In the Petition
for Review filed in the California Supreme Court, petitioner argued that the instruction given to
the deadlocked jury was coercive and urged the court to consider the propriety of the instruction
approved in an earlier Court of Appeal case. Lodged Document 5 at 5. Petitioner did not cite
any federal constitutional provisions or case law or even couch the argument in terms of
constitutional due process or the right to a fair trial. Moreover, petitioner did not raise the
additional grounds included in the federal petition in the California Supreme Court. The petition
is completely unexhausted.
Petitioner has asked for a stay, however, to allow him to exhaust state remedies.
In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court recognized that a
district court has the discretion to stay a “mixed” petition containing both exhausted and
unexhausted claims in order to allow a petitioner to exhaust state court remedies:
[I]t likely would be an abuse of discretion for a district court to
deny a stay ... if the petitioner had good cause for his failure to
exhaust, his unexhausted claims are potentially meritorious, and
there is no indication that the petitioner engaged in intentionally
dilatory litigation tactics.
Id. at 278. In Dolis v. Chambers, 454 F.3d 721, 725 (7th Cir. 2006), the Court of Appeals
remanded a completely unexhausted petition so the district court could consider whether a stay
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was appropriate under the Rhines factors. The appellate court's determination was based, in part,
on its recognition that a dismissal of Dolis's unexhausted petition “would effectively end any
chance at federal habeas review.” Id.; see also Akins v. Kenney, 410 F.3d 451, 456 n.1 (8th Cir.
2005) (remanding so the district court could consider a stay even though Court of Appeal was not
convinced any of the claims were exhausted).
In this case, however, petitioner has not made a sufficient showing under Rhines
to justify the stay. The petition should be dismissed as unexhausted.
Accordingly, IT IS HEREBY ORDERED that the findings and recommendations
of December 17, 2007 are hereby vacated.
IT IS HEREBY RECOMMENDED that:
1. Petitioner’s January 17, 2008 request for a stay be denied; and
2. The petition for a writ of habeas corpus be dismissed for failure to exhaust
state remedies.
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 twenty
days 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.” Any reply to the objections
shall be served and filed within ten days after service of the objections. The parties are advised
that 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: February 5, 2008.
2/sear0368.57
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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_14-cv-02019/USCOURTS-caed-1_14-cv-02019-2/pdf.json | [
[
"Pam Ahlin",
"Defendant"
],
[
"Cliff Allenby",
"Defendant"
],
[
"Heath Dobias",
"Plaintiff"
],
[
"Audrey King",
"Defendant"
],
[
"Stephen Mayberg",
"Defendant"
],
[
"Tom Voss",
"Defendant"
]
] | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
HEATH DOBIAS,
Plaintiff,
v.
CLIFF ALLENBY, et al.,
Defendants.
CASE NO. 1:14-cv-02019-LJO-MJS (PC)
FINDINGS AND RECOMMENDATIONS
TO:
(1) DISMISS COMPLAINT FOR FAILURE
TO STATE A CLAIM,
(2) DIRECT CLERK’S OFFICE TO SEND
HABEAS PETITION FORM, AND
(3) REQUIRE PLAINTIFF TO FILE
HABEAS PETITION OR NOTICE OF
VOLUNTARY DISMISSAL WITHIN
THIRTY DAYS
(ECF NO. 1)
FOURTEEN (14) DAY OBJECTION
DEADLINE
Plaintiff is a civil detainee proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983. His complaint is before the Court for
screening.
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I. SCREENING REQUIREMENT
The in forma pauperis statute provides, “Notwithstanding any filing fee, or any
portion thereof, that may have been paid, the court shall dismiss the case at any time if
the court determines that . . . the action or appeal . . . fails to state a claim upon which
relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
II. PLEADING STANDARD
Section 1983 “provides a cause of action for the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws of the United States.”
Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).
Section 1983 is not itself a source of substantive rights, but merely provides a method for
vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94
(1989).
To state a claim under § 1983, a plaintiff must allege two essential elements:
(1) that a right secured by the Constitution or laws of the United States was violated and
(2) that the alleged violation was committed by a person acting under the color of state
law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d
1243, 1245 (9th Cir. 1987).
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). Detailed factual allegations
are not required, but “[t]hreadbare recitals of the 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)).
Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Id. Facial plausibility demands more than the mere
possibility that a defendant committed misconduct and, while factual allegations are
accepted as true, legal conclusions are not. Id. at 677-78.
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III. PLAINTIFF’S ALLEGATIONS
Plaintiff is detained at Coalinga State Hospital (“CSH”). He names as Defendants
the following persons in their official capacities: (1) Audrey King, Executive Director of
CSH, (2) Cliff Allenby, Director of California Department of State Hospitals, (3) Tom
Voss, Former Executive Director of CSH, (4) Pam Ahlin, Former Executive Director of
CSH, and (5) Stephen Mayberg, former Director of California Department of Mental
Health.
Plaintiff’s allegations may be summarized essentially as follows.
The Butte County District Attorney filed a petition pursuant to California’s Sexually
Violent Predator Act (“SVPA”) alleging that Plaintiff required mental health treatment in
an inpatient setting because Plaintiff was likely to commit sexually violent predatorial
offenses if released into the community. The Butte County Superior Court adjudicated
the petition and ordered Plaintiff be prohibited from taking part in outpatient treatment.
Plaintiff is detained at Coalinga State Hospital pursuant to the Superior Court’s order.
Plaintiff has been in Defendants’ custody pursuant to this order since 2009.
Plaintiff alleges that Defendants are aware his confinement is excessively
restrictive in relation to the purposes of the SVPA and that he has been irrationally
denied the benefits of outpatient treatment. Plaintiff contends that Defendants’
assessments of whether Plaintiff was likely to commit sexually violent predatorial
offenses if released into the community were based on an irrational and fraudulent
assessment scheme. He points to various research studies and other articles purporting
to demonstrate that recidivism rates for sexually violent predators are lower than
perceived, that the assessment tools used by the State of California are unreliable, and
that supervised release and outpatient treatment of sex offenders are as effective as, if
not more effective than, civil detention in ensuring such offenders do not recidivate.
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Plaintiff alleges that the assessment scheme and denial of outpatient treatment
violate his Fourteenth Amendment rights to procedural and substantive due process,
adequate treatment, equal protection, and to be free from conditions that are excessively
restrictive in relation to their purported purposes.
Plaintiff seeks preliminary and permanent injunctive relief preventing Defendants
from maintaining custody of individuals detained pursuant to the SVPA until Defendants
are able to provide them with outpatient treatment, as well as a declaration that the
assessment methodology used is “irrational contrary to the Procedural Due Process
rights within the Constitution’s Fourteenth Amendment.”
IV. ANALYSIS
A. Overview of Sexually Violent Predator Act
The SVPA, Cal. Welf. & Inst. Code §§ 6600 et seq., provides for the civil
commitment of “a person who has been convicted of a sexually violent offense against
one or more victims and who has a diagnosed mental disorder that makes the person a
danger to the health and safety of others in that it is likely that he or she will engage in
sexually violent criminal behavior.” Cal. Welf. & Inst. Code § 6600(a)(1). The SVPA
codifies a process involving several administrative and judicial stages to determine
whether an individual meets the requirements for civil commitment.
First, the California Department of Corrections and Rehabilitation (CDCR) and
Board of Parole Hearings (BPH) screens inmates who may be sexually violent predators
at least six months prior to their scheduled release dates. Cal. Welf. & Inst. Code
§ 6601(a)(1), (b). The screening is conducted in accordance with a structured screening
instrument developed by the State Department of State Hospitals (“SDSH”). Cal. Welf. &
Inst. Code § 6601(b). If CDCR and BPH determine that an individual “is likely to be a
sexually violent predator,” CDCR refers the individual to the SDSH for a full evaluation.
Id.
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The SDSH employs a standardized assessment protocol to determine whether a
person is a sexually violent predator under Cal. Welf. & Inst. Code § 6601(c). If two
SDSH evaluators, or in some circumstances, two independent evaluators, determine that
the person has “a diagnosed mental disorder so that he or she is likely to engage in acts
of sexual violence without appropriate treatment and custody,” the Director of SDSH
forwards a request for a petition for commitment to the applicable county. Cal. Welf. &
Inst. Code § 6601(d)-(h).
If the county’s designated counsel agrees with the request, a petition for
commitment is filed in Superior Court. Cal. Welf. & Inst. Code § 6601(i). “The filing of the
petition triggers a new round of proceedings” under the SVPA. People v. Superior Court
(Ghilotti), 27 Cal. 4th 888, 904 (Cal. 2002). The petition is reviewed by a superior court
judge to determine whether the petition “states or contains sufficient facts that, if true,
would constitute probable cause to believe that the individual named in the petition is
likely to engage in sexually violent predatory criminal behavior upon his or her release.”
Cal. Welf. & Inst. Code § 6601.5. If so found, a probable cause hearing is conducted, at
which the alleged predator is entitled to the assistance of counsel. Cal. Welf. & Inst.
Code §§ 6601.5, 6602(a). If, at the hearing, no probable cause is found, the petition is
dismissed. Id. However, if probable cause is found, a trial is conducted. Id.
At trial, the individual is entitled to the assistance of counsel, to retain experts or
other professionals to perform an examination on his or her behalf, and to access all
relevant medical and psychological records and reports. Cal. Welf. & Inst. Code
§ 6603(a). Either party may demand a jury trial. Cal. Welf. & Inst. Code § 6603(a)-(b).
The trier of fact must determine whether the person is a sexually violent predator beyond
a reasonable doubt. Cal. Welf. & Inst. Code § 6604. “If the court or jury determines that
the person is a sexually violent predator, the person shall be committed for an
indeterminate term to the custody of [SDSH] for appropriate treatment and confinement
in a secure facility designated by the Director of State Hospitals.” Id.
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Once committed, sexually violent predators must be reevaluated at least annually.
Cal. Welf. & Inst. Code § 6604.9(a). The annual report must include consideration of
whether the person “currently meets the definition of a sexually violent predator and
whether conditional release to a less restrictive alternative, pursuant to Section 6608, or
an unconditional discharge, pursuant to 6605, is in the best interest of the person and
conditions can be imposed that would adequately protect the community.” Cal. Welf. &
Inst. Code § 6604.9(b). If SDSH has reason to believe the person is no longer a sexually
violent predator, it shall seek judicial review of the commitment. Cal. Welf. & Inst. Code
§ 6605(c). If SDSH determines that conditional release or unconditional discharge is
appropriate, it shall authorize the committed person to petition the court for conditional
release or unconditional discharge. Cal. Welf. & Inst. Code § 6604.9(d). The committed
person also may petition the court for conditional release without the recommendation or
concurrence of SDSH. Cal. Welf. & Inst. Code § 6608(a).
The court may deny a petition for conditional release without a hearing if it is
based on frivolous grounds. Cal. Welf. & Inst. Code § 6608(a). If the petition is not based
on frivolous grounds, the court shall hold a hearing to determine “whether the person
committed would be a danger to the health and safety of others in that it is likely that he
or she will engage in sexually violent criminal behavior due to his or her diagnosed
mental disorder if under supervision and treatment in the community.” Cal. Welf. & Inst.
Code § 6608(g). The committed person has the right to counsel and the appointment of
experts for the hearing. Cal. Welf. & Inst. Code § 6608(a), (g). The committed person
bears the burden of proof by a preponderance of the evidence, unless the SDSH’s
annual reevaluation determines that conditional release is appropriate, in which case the
State bears the burden of proof. Cal. Welf. & Inst. Code § 6608(k). If the court
determines that the committed person would not be a danger while under supervision
and treatment, the person shall be placed in a conditional release program for one year.
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Cal. Welf. & Inst. Code § 6608(g). Thereafter, the committed person may petition the
court for unconditional discharge. Cal. Welf. & Inst. Code § 6608(m).
If, upon receiving a petition for unconditional discharge, the court finds probable
cause to believe that the committed person is not a danger to the health and safety of
others and is not likely to engage in sexually violent criminal behavior if discharged, a
hearing is conducted. Cal. Welf. & Inst. Code § 6605(a)(2). At the hearing, the committed
person is entitled to the same constitutional protections afforded at the initial trial. Cal.
Welf. & Inst. Code § 6605(a)(3). Either party may demand a jury trial. Id. The state bears
the burden of proving, beyond a reasonable doubt, that the committed person remains a
danger to the health and safety of others and is likely to engage in sexually violent
criminal behavior if discharged. Id. If the petition is resolved in the committed person’s
favor, he is unconditionally released and unconditionally discharged. Cal. Welf. & Inst.
Code § 6605(b).
B. Claims Cognizable Only in Habeas Corpus
The exclusive method for challenging the fact or duration of Plaintiff’s confinement
is by filing a petition for a writ of habeas corpus. Wilkinson v. Dotson, 544 U.S. 74, 78
(2005). See 28 U.S.C. § 2254(a). Such claims may not be brought in a section 1983
action. Nor may Plaintiff seek to invalidate the fact or duration of his confinement
indirectly through a judicial determination that necessarily implies the unlawfulness of the
State’s custody. Wilkinson, 544 U.S. at 81. A section 1983 action is barred, no matter the
relief sought, if success in that action would necessarily demonstrate the invalidity of
confinement or its duration. Id. at 81-82; Heck v. Humphrey, 512 U.S. 477, 489 (1994)
(unless and until favorable termination of the conviction or sentence, no cause of action
under section 1983 exists); Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1140 (9th Cir.
2005) (applying Heck to SVPA detainees with access to habeas relief).
Plaintiff’s claims for injunctive relief seek his release from custody so that he may
participate in outpatient treatment in lieu of civil detention. While a claim for prospective
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relief often does not call into question the validity of a plaintiff’s confinement, see
Edwards v. Balisok, 520 U.S. 641, 648 (1997), Plaintiff’s claims here directly challenge
his custody. He may not bring these claims in a section 1983 action. Wilkinson, 544 U.S.
at 78.
Plaintiff’s claim that he is subjected to excessively restrictive conditions in
violation of the Due Process clause also is barred. The excessively restrictive condition
he challenges is his confinement itself. He cannot be granted relief on this claim without
invalidating his detention. Thus, he may not bring this claim in a section 1983 action.
Wilkinson, 544 U.S. at 81-82.
Likewise, Plaintiff’s allegation that he was denied outpatient treatment in violation
of the Due Process and Equal Protection clauses clearly implicates the validity of his
confinement. He does not seek outpatient treatment as a stand-alone mental health care
claim; rather, he seeks outpatient treatment in lieu of civil detention. Again, success on
this claim would invalidate Plaintiff’s confinement, and the claim therefore may not be
brought in a section 1983 action. Id.
Finally, Plaintiff’s claim that the assessment methodology violated his Due
Process rights, and his request for a declaration to that effect, are barred on the same
ground. See Huftile, 410 F.3d at 1141 (concluding that challenge to SVPA assessments
would imply invalidity of civil commitment and therefore could only be brought in habeas
corpus). To the extent his claims are based on the use of the assessments in his civil
commitment proceedings, they present a direct challenge to the validity of his
confinement, and may not be brought in this action. Wilkinson, 544 U.S. at 81. To the
extent he attempts to assert due process rights in this assessment process itself, any
claim as to the propriety of the assessments is so related to the civil commitment
proceeding that success thereon would imply the invalidity of Plaintiff’s confinement:
absent the allegedly deficient assessments, no petition for commitment would have been
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filed, and there would have been no basis for the Superior Court to proceed on the
petition to civilly commit Plaintiff under the SVPA. Huftile, 410 F.3d at 1141.
In sum, until Plaintiff’s civil detention 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 of
habeas corpus,” Plaintiff is barred from bringing his claims under section 1983. Heck,
512 U.S. at 487.
C. Prospective Relief from Future Assessments
Edwards leaves open the possibility for Plaintiff to seek prospective relief in a
section 1983 action to prevent future injury caused by future assessments. 520 U.S. at
648. However, Plaintiff has not specifically articulated such a claim. Moreover, even if he
wishes to do so, his allegations would fail to state a cognizable claim.
Plaintiff alleges the assessments violated his procedural and substantive Due
Process rights. However, Plaintiff does not identify any process due to him, under the
SVPA or otherwise, that was denied in the assessment process. Significantly, the
assessments are not determinative of whether Plaintiff’s detention should continue.
Rather, Plaintiff may petition the court for conditional release without the
recommendation or concurrence of SDSH. Cal. Welf. & Inst. Code § 6608(a). Plaintiff’s
continued detention is determined by a judge at a hearing in which Plaintiff has the right
to counsel and to retain experts to rebut the State’s assessments. Cal. Welf. & Inst.
Code § 6608. His ultimate release from commitment is determined by a judge or jury in a
proceeding in which Plaintiff maintains the right to counsel and to retain experts, and the
State bears the burden of proof beyond a reasonable doubt. Cal. Welf. & Inst. Code
§ 6605. The SVPA provides sufficient procedural mechanisms for Plaintiff to challenge
the assessments, and to demonstrate that he no longer qualifies for civil detention.
These protections are such that any flaws in the assessment process do not rise to a
due process violation.
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V. CONCLUSION AND RECOMMENDATION
Plaintiff’s claims, either directly or indirectly, challenge the validity of his
confinement, a challenge which may be brought only in a petition for a writ of habeas
corpus. Thus, Plaintiff has failed to state any claims that are cognizable under section
1983. To the extent Plaintiff could amend to seek relief that is not no so barred, his
allegations fail to state a cognizable claim for the reason stated. These deficiencies are
not capable of being cured through amendment. Akhtar v. Mesa, 698 F.3d 1202, 1212-
13 (9th Cir. 2012). Plaintiff should not be given leave to amend his section 1983 claims.
It is recommended that the Court direct the Clerk’s Office to provide Plaintiff with a
habeas petition form, and that Plaintiff be permitted to file a habeas petition setting forth
facts supporting his challenge to the fact and/or the duration of his confinement.
Alternatively, if Plaintiff no longer wishes to pursue this action, he may file a notice of
voluntary dismissal. Fed. R. Civ. P. 41(a)(1)(A)(i).
Based on the foregoing, it is HEREBY RECOMMENDED that:
1. Plaintiff’s complaint (ECF No. 1) be dismissed for failure to state a claim
upon which relief can be granted;
2. The Clerk’s Office be directed to send Plaintiff a habeas petition form; and
3. Plaintiff be required to file a habeas petition or a notice of voluntary
dismissal within thirty (30) days of the date of service of the order adopting
these findings and 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)(1). Within
fourteen (14) days 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.” Any reply to the objections shall be served and filed within fourteen
(14) days after service of the objections. The parties are advised that failure to file
Case 1:14-cv-02019-LJO-MJS Document 18 Filed 02/06/15 Page 10 of 11
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objections within the specified time may result in the waiver of rights on appeal.
Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923
F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.
Dated: February 6, 2015 /s/Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
Case 1:14-cv-02019-LJO-MJS Document 18 Filed 02/06/15 Page 11 of 11 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ared-3_05-cv-00287/USCOURTS-ared-3_05-cv-00287-0/pdf.json | [
[
"Mark Mink",
"Plaintiff"
],
[
"Social Security Administration",
"Defendant"
]
] | IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
MARK MINK PLAINTIFF
V. NO. 3:05CV00287-JFF
JO ANNE B. BARNHART, DEFENDANT
Commissioner, Social
Security Administration
JUDGMENT
Pursuant to the Order filed in this matter this date, it is Considered, Ordered and Adjudged
that the decision of the Commissioner is reversed and remanded for calculation and continued
payment of benefits. 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).
IT IS SO ORDERED
DATED this 5st day of March, 2007.
______________________________________
UNITED STATES MAGISTRATE JUDGE
Case 3:05-cv-00287-JFF Document 13 Filed 03/05/07 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_16-cv-01629/USCOURTS-caed-2_16-cv-01629-0/pdf.json | [
[
"Attorney General of California",
"Respondent"
],
[
"Robert Alan Gibbs",
"Petitioner"
]
] | 1
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ROBERT ALAN GIBBS,
Petitioner,
v.
ATTORNEY GENERAL OF
CALIFORNIA,
Respondent.
No. 2:16-cv-1629 JAM DB P
ORDER
Petitioner, a county inmate proceeding in pro per, has filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges proceedings in the Shasta County
Superior Court, Case NO. 15F5736, as they relate to charges against him for making criminal
threats in violation of California Penal Code § 422. (See ECF No. 1 at 3.)
Since this action was initiated, petitioner filed four additional petitions for writ of habeas
corpus premised on the proceedings in the Shasta County Superior Court. See Gibbs v. Shasta
County, 2:16-cv-1668 AC (E.D. Cal.); Gibbs v. Flynn, 2:16-cv-1670 AC (E.D. Cal.); Gibbs v.
Shasta County, 2:16-cv-1868 EFB (E.D. Cal.); Gibbs v. Shasta County, 2:16-cv-1869 JAM KJN
(E.D. Cal.). It is well-established that if a new petition is filed when a previous habeas petition is
still pending before the district court without a decision having been rendered, then the new
petition should be construed as a motion to amend the pending petition. Woods v. Carey, 525
Case 2:16-cv-01629-JAM-DB Document 14 Filed 11/10/16 Page 1 of 2
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F.3d 886, 888 (9th Cir. 2008). Pursuant to this authority, each of those additional actions has now
been closed and petitioner’s filings construed as motions to amend the petition in this case.
When a district court construes a new petition as a motion to amend, that court’s
obligation is to rule on the motion in accordance with the standards for permitting amendment
established by Federal Rule of Civil Procedure 15. See 28 U.S.C. § 2242; Woods, 525 F.3d at
890. Under Rule 15(a), a party may generally amend its pleading once as a matter of course;
otherwise, written consent from the opposing party or leave of court must be obtained. Leave to
amend shall be given freely when justice requires. In deciding whether justice requires granting
leave to amend, factors to be considered include the presence or absence of undue delay, bad
faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, undue
prejudice to the opposing party and futility of the proposed amendment. Forman v. Davis, 371
U.S. 178, 182 (1962). Since petitioner may amend his petition once as a matter of course, leave to
amend is unnecessary.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner’s motions to amend (ECF Nos. 7, 8, 9, 10) are denied as moot; and
2. Petitioner’s August 8, 2016 petition for writ of habeas corpus (ECF No. 10) is deemed
the operative petition in this case.
Dated: November 9, 2016
/DLB7;gibb1629.mta
Case 2:16-cv-01629-JAM-DB Document 14 Filed 11/10/16 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ared-5_05-cv-00099/USCOURTS-ared-5_05-cv-00099-1/pdf.json | [
[
"Carmen Hendrickson-Atkinson",
"Plaintiff"
],
[
"Larry Norris",
"Defendant"
]
] | IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
CARMEN HENDRICKSON-ATKINSON PETITIONER
VS. CASE NO. 5:05CV00099 JMM
LARRY NORRIS RESPONDENT
ORDER
Before the Court are Petitioner Carmen Hendrickson-Atkinson’s objections to the
Magistrate Judge’s Proposed Findings and Recommended Disposition in which she raises the
defense of actual innocence based upon a faulty information.
Because this issue has not been previously addressed by respondent, he is directed to filed
a response to the issue of the faulty information on, or before, August 6, 2007.
IT IS SO ORDERED this 19 day of July , 2007.
James M. Moody
United States District Judge
Case 5:05-cv-00099-JMM Document 32 Filed 07/19/07 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_08-cv-00182/USCOURTS-caed-1_08-cv-00182-0/pdf.json | [
[
"Jesus M. Cortez",
"Petitioner"
],
[
"D. Dexter",
"Respondent"
]
] | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
JESUS M. CORTEZ,
Petitioner,
vs.
D. DEXTER,
Respondent.
/
1:08-cv-00182 LJO GSA (HC)
ORDER AUTHORIZING
IN FORMA PAUPERIS STATUS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 1915, petitioner is hereby AUTHORIZED to
proceed in forma pauperis. The petition will be screened in due course.
IT IS SO ORDERED.
Dated: February 27, 2008 /s/ Gary S. Austin
23ehd0 UNITED STATES MAGISTRATE JUDGE
Case 1:08-cv-00182-LJO-GSA Document 4 Filed 02/27/08 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_09-cv-03083/USCOURTS-caed-2_09-cv-03083-0/pdf.json | [
[
"Barbara J. Baer",
"Plaintiff"
],
[
"Commissioner of Social Security",
"Defendant"
]
] | 1
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
BARBARA J. BAER,
Plaintiff, CIV S- 09-3083 GGH
vs.
MICHAEL J. ASTRUE, ORDER
Commissioner of Social Security,
Defendant.
__________________________________/
Plaintiff has requested authority under 28 U.S.C. § 1915 to proceed in forma
pauperis. Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is
unable to prepay fees and costs or give security for them. Accordingly, the request to proceed in
forma pauperis will be granted. 28 U.S.C. § 1915(a).
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff’s request to proceed in forma pauperis is granted.
2. The Clerk of the Court is directed to serve the undersigned’s scheduling order
in social security cases.
3. The Clerk of the Court is further directed to serve a copy of this order on the
United States Marshal.
4. Within fifteen days from the date of this order, plaintiff shall submit to the
Case 2:09-cv-03083-GGH Document 4 Filed 04/29/10 Page 1 of 2
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United States Marshal an original and five copies of the completed summons, five copies of the
complaint, five copies of the scheduling order and a completed USM-285 form and shall file a
statement with the court that said documents have been submitted to the United States Marshal.
5. The United States Marshal is directed to serve all process without prepayment
of costs not later than sixty days from the date of this order. Service of process shall be
completed by delivering a copy of the summons, complaint, and scheduling order to the United
States Attorney for the Eastern District of California, and by sending two copies of the summons,
complaint, and scheduling order by registered or certified mail to the Attorney General of the
United States at Washington, D.C. See Fed. R. Civ. P. 4(i)(1)(A) & (B). The Marshal shall also
send a copy of the summons, complaint, and scheduling order by registered or certified mail to
the Commissioner of Social Security, c/o Office of General Counsel, 6401 Security Blvd., Room
611, Altmeyer Blvd., Baltimore, MD, 21235. See Fed. R. Civ. P. 4(i)(2).
Dated: April 29, 2010
/s/ Gregory G. Hollows
______________________________________
UNITED STATES MAGISTRATE JUDGE
GGH:076/Baer3083.ifp.wpd
Case 2:09-cv-03083-GGH Document 4 Filed 04/29/10 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_05-cv-01229/USCOURTS-cand-3_05-cv-01229-9/pdf.json | [
[
"Blue Shield of California",
"Defendant"
],
[
"California Physicians' Service",
"Defendant"
],
[
"Richard P. Wells",
"Plaintiff"
]
] | MANATT, PHELPS &
PHILLIPS, LLP
ATTORNEYS AT LAW
LOS ANGELES
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STIPULATION TO CONTINUE CASE MANAGEMENT CONFERENCE - CASE NO. C05 1229 CRB
MANATT, PHELPS & PHILLIPS, LLP
GREGORY N. PIMSTONE (BAR NO. CA 150203)
ANDREW L. SATENBERG (BAR. NO. CA 174840)
TRAVIS A. CORDER (BAR NO. CA 237575)
11355 West Olympic Boulevard
Los Angeles, CA 90064-1614
Telephone: (310) 312-4000
Facsimile: (310) 312-4224
Attorneys for Defendant
California Physicians' Service,
dba Blue Shield Of California
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA
RICHARD P. WELLS, For Himself And
In His Representative Capacity As
Administrator of the Estate of Marilyn
Wells, Decedent, and As Guardian of His
Minor Children,
Plaintiff,
vs.
CALIFORNIA PHYSICIANS' SERVICE,
dba BLUE SHIELD OF CALIFORNIA,
Defendants.
Case No. C 05 1229 CRB
STIPULATION TO CONTINUE CASE
MANAGEMENT CONFERENCE;
[PROPOSED] ORDER THEREON
Case 3:05-cv-01229-CRB Document 44 Filed 03/28/06 Page 1 of 3
MANATT, PHELPS &
PHILLIPS, LLP
ATTORNEYS AT LAW
LOS ANGELES
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STIPULATION TO CONTINUE CASE MANAGEMENT CONFERENCE - CASE NO. C05 1229 CRB
WHEREAS, a Case Management Conference in the above-captioned matter is currently
set for April 6, 2006.
WHEREAS, a Settlement Conference in this matter was previously set for March 27,
2006, before Magistrate Judge Spero.
WHEREAS, due to a conflict arising in another matter, Judge Spero rescheduled the
Settlement Conference for May 22, 2006, at 9:30 a.m., with updated Settlement Conference
Statements to be lodged with Judge Spero no later than May 9, 2006.
WHEREAS the parties believe that the Case Management Conference in this matter will
be most productive following the Settlement Conference.
NOW, THEREFORE, IT IS HEREBY STIPULATED and agreed by Plaintiff and
Defendant, through their respective attorneys of record, that the Case Management Conference in
this action, currently set for April 6, 2006, be continued to June 2, 2006, or as soon thereafter as
the Court may deem appropriate.
Plaintiff and Defendant further stipulate and agree that this Stipulation may be signed in
counterparts, and facsimile signatures shall have the same force and effect as originals.
This request is not being made for the purposes of delay.
Case 3:05-cv-01229-CRB Document 44 Filed 03/28/06 Page 2 of 3
MANATT, PHELPS &
PHILLIPS, LLP
ATTORNEYS AT LAW
LOS ANGELES
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STIPULATION TO CONTINUE CASE MANAGEMENT CONFERENCE - CASE NO. C05 1229 CRB
IT IS SO STIPULATED.
MANATT, PHELPS & PHILLIPS, LLP
GREGORY N. PIMSTONE
ANDREW L. SATENBERG
TRAVIS A. CORDER
Dated: March 24, 2006 By: s/ Travis A. Corder
Travis A. Corder
Attorneys for Defendant
CALIFORNIA PHYSICIANS' SERVICE,
dba BLUE SHIELD OF CALIFORNIA
BENJAMIN FRANKLIN LEGAL
FOUNDATION
Dated: March 24, 2006 By: s/ James B. Rhoads
James B. Rhoads
Attorney for Plaintiff
RICHARD P. WELLS
Filer’s Attestation: Pursuant to General Order No. 45, Section X(B) regarding signatures, Travis
A. Corder hereby attests that concurrence in the filing of this document has been obtained.
ORDER
Having reviewed the Stipulation of the parties, and good cause appearing:
IT IS HEREBY ORDERED THAT the Case Management Conference in this action,
currently set for April 6, 2006, be continued to _____________________ at ________.
Date:
HONORABLE CHARLES R. BREYER
40984436.1
June 16, 2006 8:30 a.m. March 28, 2006
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORN
I
A
DENIED
Judge Charles R. Breyer
Case 3:05-cv-01229-CRB Document 44 Filed 03/28/06 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_09-cv-01856/USCOURTS-caed-1_09-cv-01856-8/pdf.json | [
[
"D. I. Doria",
"Defendant"
],
[
"R. Fisher",
"Defendant"
],
[
"C. Jose",
"Defendant"
],
[
"H. Ortiz",
"Defendant"
],
[
"Alvaro Quezada",
"Plaintiff"
],
[
"C. Scott",
"Defendant"
]
] | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
Plaintiff Alvaro Quezada (“Plaintiff”) is a state prisoner proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On July 21, 2015, Defendant D. I.
Doria filed a motion to join in the then-and-currently pending motion for summary judgment filed by
Defendants R. Fisher, C. Scott, H. Ortiz, and C. Jose on April 24, 2015. (ECF. No. 63.) In that
motion, Defendant Doria explained that she was not originally included in the motion for summary
judgment because at the time it was filed she had not been served with Plaintiff’s complaint and was
not represented by the Attorney General’s Office, who represents the other Defendants. (Id. at p.1).
She further explained that she was served with Plaintiff’s complaint on or about July 14, 2015, and is
now represented by the Attorney General’s Office. (Id.) Defendant Doria subsequently filed an
answer to Plaintiff’s complaint on July 30, 2015. (ECF. No. 64.)
ALVARA QUEZADA,
Plaintiff,
v.
FISHER, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
Case No.: 1:09-cv-01856-LJO-BAM (PC)
ORDER EXTENDING APPLICATION OF
DISCOVERY AND SCHEDULING ORDER TO
DEFENDANT DORIA
Amended Exhaustion Motion Deadline: November 2, 2015
Deadline to Amend Pleadings: October 02, 2015
Discovery Deadline: December 02, 2015
Dispositive Motion Deadline: February 11, 2016
Case 1:09-cv-01856-LJO-BAM Document 68 Filed 08/05/15 Page 1 of 2
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Accordingly, application of the discovery and scheduling order filed on April 2, 2015, (ECF
No. 52), is HEREBY EXTENDED to Defendant D. I. Doria, including the deadline to amend
pleadings of October 02, 2015, the discovery deadline of December 02, 2015, and the dispositive
motion deadline of February 11, 2016. Additionally, the exhaustion motion filing deadline is
EXTENDED to November 2, 2015, with respect to Defendant D. I. Doria.
IT IS SO ORDERED.
Dated: August 5, 2015 /s/ Barbara A. McAuliffe _
UNITED STATES MAGISTRATE JUDGE
Case 1:09-cv-01856-LJO-BAM Document 68 Filed 08/05/15 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca13-16-01800/USCOURTS-ca13-16-01800-0/pdf.json | [
[
"Probatter Sports, LLC",
"Appellee"
],
[
"Sports Tutor, Inc",
"Appellant"
]
] | NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit ______________________
PROBATTER SPORTS, LLC,
Plaintiff-Appellee
v.
SPORTS TUTOR, INC,
Defendant-Appellant
______________________
2016-1800
______________________
Appeal from the United States District Court for the
District of Connecticut in No. 3:05-cv-01975-VLB, Judge
Vanessa Lynne Bryant.
______________________
Decided: March 1, 2017
______________________
JOHN RICHARD HORVACK, JR., Carmody Torrance Sandak & Hennessey LLP, New Haven, CT, argued for plaintiff-appellee. Also represented by FATIMA LAHNIN, JOHN
LOUIS CORDANI.
BLAKE ROBERT HARTZ, Woodard, Emhardt, Moriarty,
McNett & Henry LLP, Indianapolis, IN, argued for defendant-appellant. Also represented by JOHN C. MCNETT,
QUENTIN G. CANTRELL.
______________________
Case: 16-1800 Document: 34-2 Page: 1 Filed: 03/01/2017
2 PROBATTER SPORTS, LLC v. SPORTS TUTOR, INC
Before DYK, CLEVENGER, and STOLL, Circuit Judges.
STOLL, Circuit Judge.
The district court in this case entered summary
judgment that Sports Tutor, Inc., infringes two of ProBatter Sports, LLC’s, patents relating to pitching machines.
Sports Tutor appeals the district court’s determination
that those patents were not invalid as obvious. Because
Sports Tutor did not meet its burden of establishing
obviousness before the district court, we affirm.
BACKGROUND
ProBatter and Sports Tutor both sell programmable
pitching machines meant to simulate real-life pitching
situations. ProBatter’s mechanical pitching machine
stands behind a video projection of an actual pitcher
winding up and pitching. A ball thrust from the pitching
machine emerges from a hole in the video screen towards
a batter and/or catcher. Probatter’s product synchronizes
the ball release with the video so that the batter and/or
catcher experience something similar to a live pitcher’s
pitch. The machine can throw a wide variety of pitch
types at varying speeds and can alternate between righthanded and left-handed pitcher simulation. Major league
and collegiate baseball programs have purchased ProBatter’s system.
The ProBatter system practices ProBatter’s U.S.
Patent No. 6,182,649 and its continuation patent, U.S.
Patent No. 6,546,924. These patents describe a ballthrowing machine “able to interchangeably deliver pitches
of different types to different locations at different speeds
with less than ten-second intervals between pitches.” ’649
patent abstract. The claimed machine is also capable of
changing pitch type, speed, and delivery location “without
the need to manually readjust the machine between
pitches.” Id. at col. 3 ll. 43–46. The patents allege that
Case: 16-1800 Document: 34-2 Page: 2 Filed: 03/01/2017
PROBATTER SPORTS, LLC v. SPORTS TUTOR, INC 3
this was not possible in prior art machines because of the
difficulty in quickly changing motor speed. The patents
explain that the claimed machine is able to rapidly decelerate its motors by incorporating a dynamic braking
mechanism.
By way of example, independent claim 27 of the ’649
patent recites:
27. A ball-throwing machine of the type having a power head including at least two coacting
wheels for propelling a ball toward a batter to
simulate a pitch, said power head being pivotably
mounted on a base at a center pivot about which
the power head may be pivoted in both a horizontal and a vertical direction, said machine including:
means for causing the power head to rotate
about said center pivot to assume a predetermined horizontal position, said means for causing
comprising at least one horizontal linear actuator;
and
means for causing the power head to rotate
about said center pivot to assume a predetermined vertical position, said means for causing
comprising at least one vertical linear actuator;
and
dynamic braking means for powering motors
for the said coacting wheels, said means comprising a dynamic or regenerative braking circuit.
’649 patent reexamination certificate col. 3 ll. 12–28.
Probatter sued Sports Tutor in the District of Connecticut, alleging that Sports Tutor’s HomePlate machine
infringed ’649 patent claims 1–12, 25–27, and 31, as well
as ’924 patent claim 1. Sports Tutor then challenged the
patents in a series of ex parte reexaminations, two on
Case: 16-1800 Document: 34-2 Page: 3 Filed: 03/01/2017
4 PROBATTER SPORTS, LLC v. SPORTS TUTOR, INC
each patent, during which the district court stayed the
litigation. In the first round of reexaminations, the
examiner rejected many of the claims as obvious in view
of the prior art, but the Board of Patent Appeals and
Interferences reversed those rejections and allowed the
claims. The Board reasoned that the dynamic braking
limitation was not disclosed in any of the allegedly anticipatory references and that there was no motivation to
combine the prior art ball-throwing machine references
with the prior art dynamic braking reference, U.S. Patent
No. 5,187,419 (“DeLange”), drawn generally to an electric
motor. The examiner rejected Sports Tutor’s invalidity
challenges in the second round of reexaminations and
allowed the asserted claims.
Following reexamination, the district court lifted the
stay and entered summary judgment of infringement,
which Sports Tutor does not appeal. The district court
denied motions seeking to determine validity on summary
judgment and held a bench trial on that issue, after which
the parties filed post-trial briefs. The court ruled that
Sports Tutor did not carry its clear and convincing burden
at trial or in its post-trial briefing to prove invalidity of
the asserted patent claims. The district court specifically
found that Sports Tutor did not satisfy its burden because
it never explicitly argued for a particular combination of
references or proffered a motivation to combine references. The court emphasized that it could not make
factual findings on the scope and content of the prior art
or the differences between the claims and the prior art
because Sports Tutor failed to identify any particular
prior art combinations.
Sports Tutor appeals the district court’s validity ruling, and we have jurisdiction under 28 U.S.C.
§ 1295(a)(1).
Case: 16-1800 Document: 34-2 Page: 4 Filed: 03/01/2017
PROBATTER SPORTS, LLC v. SPORTS TUTOR, INC 5
DISCUSSION
I.
A patent claim is unpatentable as obvious “if the differences between the subject matter sought to be patented
and the prior art are such that the subject matter as a
whole would have been obvious at the time the invention
was made to a person having ordinary skill in the art.”
35 U.S.C. § 103.1 “[P]atents are presumed to be valid and
overcoming this presumption requires clear and convincing evidence.” Alcon Research Ltd. v. Barr Labs., Inc.,
745 F.3d 1180, 1188 (Fed. Cir. 2014) (citing 35 U.S.C.
§ 282; Microsoft Corp. v. i4i Ltd., 564 U.S. 91, 95 (2011);
Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1354
(Fed. Cir. 2010) (en banc)).
“Obviousness is a question of law, based on underlying factual determinations including: ‘the scope and
content of the prior art’; ‘differences between the prior art
and the claims at issue’; ‘the level of ordinary skill in the
pertinent art’; and ‘[s]uch secondary considerations as
commercial success, long felt but unsolved needs, failure
of others, etc.’” Insite Vision Inc. v. Sandoz, Inc., 783 F.3d
853, 858 (Fed. Cir. 2015) (quoting Graham v. John Deere
Co., 383 U.S. 1, 17 (1966)). “Following a bench trial on
the issue of obviousness, we review the court’s ultimate
legal conclusions de novo and the underlying factual
findings for clear error.” Id. (quoting Tyco Healthcare
Grp. LP v. Ethicon Endo–Surgery, Inc., 774 F.3d 968, 974
(Fed. Cir. 2014)).
1 Given the effective filing date of the ’649 and ’924
patents’ claims, the version of 35 U.S.C. § 103 that applies
here is the one in force preceding the changes made by the
America Invents Act. See Leahy–Smith America Invents
Act, Pub. L. No. 112-29, § 3(n), 125 Stat. 284, 293 (2011).
Case: 16-1800 Document: 34-2 Page: 5 Filed: 03/01/2017
6 PROBATTER SPORTS, LLC v. SPORTS TUTOR, INC
II.
Sports Tutor argues that the district court erred by
holding that Sports Tutor failed to show that the claims
were invalid as obvious. As support, Sports Tutor directs
us to the examiner’s initial rejections of the claims during
reexamination and to the Board’s later reversal of those
rejections, both of which Sports Tutor placed into evidence
along with the underlying prior art references. Sports
Tutor reads the Board’s decision narrowly, interpreting
the Board as disagreeing with the examiner only on
whether a motivation to combine references existed. In
other words, Sports Tutor speculates that the Board’s
silence as to the examiner’s findings on scope and content
of the prior art and other Graham factors means that the
Board acquiesced in those findings. Therefore, according
to Sports Tutor, all it needed to do to prove obviousness
before the district court was to show dynamic braking in
the context of a ball-throwing machine. Sports Tutor thus
believes that, at the district court, it “cured the problem”
with the reexamination by introducing new prior art
references that teach dynamic braking in ball-throwing
machines, even though Sports Tutor nowhere addressed
any of the other claim limitations in its presentations to
the district court. See J.A. 1117. Sports Tutor argues
that by purportedly showing that the dynamic braking
limitation was in the prior art, taken with the examiner’s
rejection that the Board reversed, it met its burden of
proving obviousness by clear and convincing evidence
before the district court.
We disagree. The district court did not err in concluding that Sports Tutor’s showing was insufficient to establish obviousness. We emphasize that a defendant seeking
to overcome the statutory presumption of patent validity
must persuade the factfinder by clear and convincing
evidence. See i4i, 564 U.S. at 95. Sports Tutor did not
satisfy that burden here because it failed to articulate a
clear theory of obviousness.
Case: 16-1800 Document: 34-2 Page: 6 Filed: 03/01/2017
PROBATTER SPORTS, LLC v. SPORTS TUTOR, INC 7
We first note that Sports Tutor did not identify to the
district court a prior art obviousness combination on
which it relied. Indeed, neither its briefing nor its trial
presentation informed the district court of the specific
references that Sports Tutor proposed to combine with the
dynamic braking references, explained the content of
those references, or demonstrated how to combine them.
See Oral Arg. at 33:05–35:03, http://oralarguments.cafc.
uscourts.gov/default.aspx?fl=2016-1800.mp3 (showing
Sports Tutor unable to direct the court to any portion of
its trial presentation where it identified the references to
combine). Sports Tutor merely cited, without explanation, the examiner’s original—and ultimately reversed—
rejection, which spanned one-hundred pages and included
a slew of references in ten separate obviousness combinations, some of which combined as many as five different
references.
Our precedent affirms the district court’s ability to
demand greater specificity than Sports Tutor demonstrated here to meet its burden of proving invalidity by clear
and convincing evidence. For example, in Motorola Mobility, LLC v. International Trade Commission, Motorola, a
respondent to an International Trade Commission § 337
investigation, made obviousness arguments that the
administrative law judge rejected as “conclusory and
generalized sentences” in which “Motorola did not clearly
identify the scope and content of the prior art that it was
asserting, or provide any argument that certain prior art
references render a specific claim obvious.” 737 F.3d
1345, 1350 (Fed. Cir. 2013) (internal citations omitted).
In affirming, we explained:
The administrative law judge had no obligation to
guess about which prior art combinations
Motorola asserted, and how those references rendered the claims invalid. . . .
Case: 16-1800 Document: 34-2 Page: 7 Filed: 03/01/2017
8 PROBATTER SPORTS, LLC v. SPORTS TUTOR, INC
. . . Neither the administrative law judge, nor
the Commission, nor this court has the task of divining an invalidity defense from the record.
Id. (citing Schumer v. Lab. Comput. Sys., 308 F.3d 1304,
1316 (Fed. Cir. 2002)); see also In re Brimonidine Patent
Litig., 643 F.3d 1366, 1376 (Fed. Cir. 2011) (holding
district court did not abuse its discretion in refusing to
consider prior art references admitted into evidence “in
light of the absence of testimony explaining their relevance to the obviousness issue”); Koito Mfg. Co. v. TurnKey-Tech, LLC, 381 F.3d 1142, 1151–52 (Fed. Cir. 2004).2
Sports Tutor avers that ProBatter admitted that all
non-braking claim limitations existed in the prior art
when it stipulated that dynamic braking was “[t]he key
distinguishing factor in the ProBatter Patents, and the
primary issue at bar.” Appellant Br. 18–19 (quoting J.A.
197, 213). Even if we were to agree with Sports Tutor
that ProBatter’s recitation of the patents’ point of novelty
is a concession that all other elements existed in the prior
art, that would not be enough for Sports Tutor to prove its
obviousness case. The law is clear that “a patent composed of several elements is not proved obvious merely by
demonstrating that each of its elements was, independently, known in the prior art.” KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007). Indeed, “it can be
2 Sports Tutor’s appeal briefing attempts to explain
its proposed obviousness combinations, but we do not
consider this new argument raised for the first time on
appeal. See Sage Prods., Inc. v. Devon Indus., Inc., 126
F.3d 1420, 1426 (Fed. Cir. 1997) (“With a few notable
exceptions, such as some jurisdictional matters, appellate
courts do not consider a party’s new theories, lodged first
on appeal. If a litigant seeks to show error in a trial
court’s overlooking an argument, it must first present
that argument to the trial court.”).
Case: 16-1800 Document: 34-2 Page: 8 Filed: 03/01/2017
PROBATTER SPORTS, LLC v. SPORTS TUTOR, INC 9
important to identify a reason that would have prompted
a person of ordinary skill in the relevant field to combine
the elements in the way the claimed new invention does.”
Id. In the district court, Sports Tutor did not adduce
expert testimony or even present attorney argument on
why one of skill would have been motivated to combine
dynamic braking with the other prior art references
directed to pitching machines. Accepting Sports Tutor’s
argument would essentially eliminate the motivation to
combine requirement and essentially turn an obviousness
analysis into an anticipation analysis.
The same logic holds true with Sports Tutor’s argument that, in the reexaminations, the Board implicitly
agreed with the examiner that the other non-braking
elements existed in the prior art. Even if we accept this
factual predicate as true, Sports Tutor still presented no
motivation to combine the dynamic braking references
with the references the examiner relied on to teach the
remaining limitations. Indeed, the Board’s reasoning in
reversing the examiner was precisely that a motivation to
combine dynamic braking with prior art pitching machines had not been demonstrated. Ex Parte Probatter
Sports, LLC, Patent Owner & Appellant, 2011-008815,
2011 WL 6739397, at *10 (B.P.A.I. Dec. 21, 2011); Ex
Parte Probatter Sports, LLC, No. 2011-008816, 2011 WL
6739343, at *9 (B.P.A.I. Dec. 21, 2011). Again, on the
record before us, Sports Tutor’s showing that dynamic
braking existed in isolation is not enough to show that
one of ordinary skill would have combined that teaching
with prior art pitching machines absent some motivation
to combine supplied by Sports Tutor.
Because we conclude that Sports Tutor failed to establish obviousness by clear and convincing evidence even
without considering Probatter’s contrary evidence, we
need not address ProBatter’s evidence of objective indicia
of nonobviousness.
Case: 16-1800 Document: 34-2 Page: 9 Filed: 03/01/2017
10 PROBATTER SPORTS, LLC v. SPORTS TUTOR, INC
CONCLUSION
We have considered Sports Tutor’s remaining arguments and find them unpersuasive. We affirm the judgment of the district court that Sports Tutor did not meet
its burden to prove the asserted patents were invalid as
obvious.
AFFIRMED
COSTS
Costs to Appellee.
Case: 16-1800 Document: 34-2 Page: 10 Filed: 03/01/2017 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_09-cv-02715/USCOURTS-caed-2_09-cv-02715-2/pdf.json | [
[
"Focus Receivables Management, LLC.",
"Defendant"
],
[
"Carlos Rafanan",
"Plaintiff"
]
] | [PROPOSED] ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR
ATTORNEY’S FEES
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Michael S. Agruss (SBN: 259567)
Krohn & Moss, Ltd.
10474 Santa Monica Blvd., Suite 401
Los Angeles, CA 90025
Tel: 323-988-2400 x235
Fax: 866-620-2956
[email protected]
Attorneys for Plaintiff,
CARLOS RAFANAN
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CARLOS RAFANAN,
Plaintiff,
vs.
FOCUS RECEIVABLES MANAGEMENT,
LLC,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
Case No.: 09-CV-02715-JAM-KJM
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION FOR ATTORNEY’S FEES
Date: July 7, 2010
Time: 9:30 a.m.
Judge: Hon. John A. Mendez
I.
INTRODUCTION:
On April 16, 2010, Defendant, Focus Receivables Management, LLC (Defendant),
served a Rule 68 Offer of Judgment on Plaintiff, Carlo Rafanan (Plaintiff), for $1,000 in
statutory damages, and reasonable attorneys’ fees and costs incurred through and including the
10th day of the making of this offer as determined by the Court, unless the parties agree to such
amount otherwise. (Docket # 18, p. 3-4.) On April 20, 2010, Plaintiff accepted Defendant’s
Offer of Judgment. (Docket # 18.) On April 28, 2010, this Court entered Judgment in
accordance with the terms of the Parties Offer of Judgment. (Docket # 21.) On April 28, 2010,
Plaintiff filed this Motion for Attorney Fees and Costs. (Docket # 22.) Defendant opposed the
motion. (Docket # 38.)
PDF created with pdfFactory trial version www.pdffactory.com
Case 2:09-cv-02715-JAM -KJM Document 49 Filed 07/26/10 Page 1 of 5
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For the reasons more fully set forth below, the Court GRANTS in part, and DENIES in part,
Plaintiff’s Motion for Attorneys Fees’ and Costs in the amount of $2,405.00.
II.
DISCUSSION:
A. Evidentiary Rulings.
Defendant moved to strike numerous exhibits to Plaintiff’s Motion for Attorneys Fees’
and costs relative to the reasonableness of Plaintiff’s Counsel’s hourly rates. The Court is
familiar with what attorneys in the jurisdiction charge and finds that Plaintiff’s Counsel’s rate of
$290 an hour is reasonable. Thus, Defendant’s evidentiary objections are OVERRULED.
B. Plaintiff’s Miscalculations.
Plaintiff initially sought $6,302.09 in attorneys fees and $426.61 in costs. Defendant’s
Opposition correctly argued that the time entries in Plaintiff’s Statement of Services did not add
up to the requested fee amount. In Plaintiff’s Reply, he admits to this error and adjusted the
amount of fees sought by $1,333.99, to $4,968.10. Thus, Plaintiff’s motion only seeks $4,968.10
in fees and $426.61 in costs, for a total of $5,394.71.
C. Costs.
Plaintiff bears the initial burden of proof in his motion. (Gates v. Deukmejian, 987 F.2d
1392, 1397 (9th Cir. 1992)(citing Hensley v. Eckerhart, 461 U.S. 424, 433, 437 (1983).) Here,
Plaintiff seeks $426.61 in costs; $350 of which is the Plaintiff’s filing fee. Plaintiff has failed to
document the remaining $76.61. Thus, Plaintiff may only recover the $350 filing fee.
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D. Reasonableness of the Fees Sought.
1. Adam Krohn.
Plaintiff seeks 1.9 hours of time for Adam Krohn, at $394 an hour. Mr. Krohn is not
admitted to practice law in California. As a matter of law, Plaintiff is not entitled to recover Mr.
Krohn’s fees. (Taylor v. Chaing, 2009 WL 453050, * 7 (E.D. Cal. Feb. 23, 2009.)
2. Michael Agruss.
Plaintiff seeks 10.3 hours of time for Michael Agruss, at a rate of $290 an hour. As
indicated above, the Court finds that $290 an hour for Mr. Agruss is a reasonable rate for this
judicial district.
a. Time spent on the Motion for Attorneys Fees and Costs.
Turning to the hours requested, Plaintiff seeks 4.1 hours of time for Mr. Agruss’s work
on the pending Motion for Attorneys Fees and Costs. Here, the express terms of the Offer of
Judgment limit the recoverability of fees and costs to those reasonably incurred through and
including ten days after the Offer of Judgment was made. The time entries submitted indicate
that the time spent on the Motion for Attorneys Fees and Costs was incurred after the expiration
of the ten day time period agreed to in the Offer of Judgment. Acceptance of the Offer of
Judgment as worded operates as a Waiver to any attorney fees and costs incurred after the
expiration of the ten-day time period. (See Guerrero v. Cummings, 70 F.3d 1111, 1113 (9th Cir.
1995).) There are no policy reasons to preclude the cutting off of fees and costs at the point a
Rule 68 offer is made and accepted. (Guerrero, 70 F. 3d 1111 at 1114.). Therefore, Plaintiff
may not recover the 4.1 hours spent on this Motion for Attorneys’ Fees and Costs.
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Case 2:09-cv-02715-JAM -KJM Document 49 Filed 07/26/10 Page 3 of 5
[PROPOSED] ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR
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b. Remaining Time.
In light of the Waiver of the 4.1 hours, that leaves 6.2 hours sought by Mr. Agruss.
Based on the Court’s review of the materials submitted in this matter, and the time entries
relative to Mr. Agruss’s work in this matter, the Court reduces the amount of time to 5.0 hours.
3. Ryan Lee.
Plaintiff seeks 1.0 hour of time for Ryan Lee, at $290 an hour. None of Mr. Lee’s time
will be awarded.
4. Douglas Baek.
Plaintiff seeks 0.5 hours of time for Douglas Baek, at $185 an hour. The Court finds that
Mr. Baek’s time will be allowed, and the Court finds that $185 an hour is a reasonable hourly
rate.
5. Paralegals.
Plaintiff seeks 6.8 hours of time for the paralegals, at $125 an hour. The Court has
carefully reviewed all of the paralegal time entries and will not award any fees for work that is
secretarial in nature. For example, paralegals billed for: filing proofs of service; serving a
complaint; preparing a civil case cover sheet; etc. These are all tasks that a secretary can do, and
will not be allowed. Therefore, the Court reduces the amount of time sought for the paralegals’
efforts to 4.1 hours.
III.
CONCLUSION:
The Court GRANTS in part and DENIES in part Plaintiff’s Motion for Attorney Fees’
and Costs as follows:
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[PROPOSED] ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR
ATTORNEY’S FEES
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As a matter of law, Mr. Krohn’s attorney fees are not recoverable.
Mr. Agruss’s time is reduced from 10.3 hours, to 5.0 hours at an hourly rate of $290,
which equals to an award of $1,450.00.
Mr. Lee’s time will not be allowed.
Mr. Baek’s time and hourly rate are both reasonable, which equals to an award of $92.50.
The Paralegals’ time is reduced from 6.8 hours, to 4.1 hours at an hourly rate of $125,
which equals to an award of $512.00.
Costs of $350 for the filing fee will be allowed, the remaining $76.61 in costs have not
been adequately documented and will not be allowed.
THEREFORE, the Court awards $2,055.00 in fees, and $350.00 in costs, for a total of
$2,405.00. The Court Clerk is ordered to amend the Judgment in accordance with this Order.
IT IS SO ORDERED.
Dated: July 23, 2010 /s/ John A. Mendez____________
Hon. John A. Mendez
U.S. DISTRICT COURT JUDGE
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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_24-cv-02351/USCOURTS-caed-2_24-cv-02351-0/pdf.json | [
[
"Commissioner of Social Security",
"Defendant"
],
[
"Samuel Joseph Ortiz",
"Plaintiff"
]
] | 1
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1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
SAMUEL JOSEPH ORTIZ,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
No. 2:24-CV-2351-DMC
ORDER
Plaintiff, who is proceeding with retained counsel, brings this action for judicial
review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g).
Pending before the Court is Plaintiff’s motion for leave to proceed in forma pauperis, ECF No. 2.
Plaintiff has submitted the affidavit required by § 1915(a) showing that Plaintiff is
unable to prepay fees and costs or give security therefor. The request to proceed in forma
pauperis will, therefore, be granted. See 28 U.S.C. § 1915(a).
Accordingly, IT IS HEREBY ORDERED as follows:
1. Plaintiff's request to proceed in forma pauperis, ECF No. 2, is granted.
2. The Clerk of the Court is directed to issue a summons for this case.
/ / /
/ / /
Case 2:24-cv-02351-DC-DMC Document 3 Filed 09/03/24 Page 1 of 2
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2
3. Service on Defendant shall proceed under the Court’s E-Service program
as follows: once a summons is issued, the Clerk of the Court shall deliver to the Commissioner of
Social Security and the United States Attorney’s Office at their designated email addresses a
notice of electronic filing of the action along with the summons and complaint; the Commissioner
has agreed not to raise a defense of insufficient service of process if provided with notice of a
complaint as detailed in this order; this order is not intended to prevent parties from making any
other motions that are appropriate under the Federal Rules of Civil Procedure.
4. The Clerk of the Court is directed to serve on Plaintiff the undersigned’s
scheduling order in social security cases.
Dated: August 30, 2024
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE
Case 2:24-cv-02351-DC-DMC Document 3 Filed 09/03/24 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_04-cv-05005/USCOURTS-cand-3_04-cv-05005-0/pdf.json | [
[
"American Guild of Musical Artists, AFL-CIO",
"Plaintiff"
],
[
"San Francisco Opera Association",
"Defendant"
]
] | 1
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-1-
KAUFF, MCC LAIN
& MCGUIRE LLP
ONE POST STREET,
SUITE 2600
SAN FRANCISCO, CA 94104
TELEPHONE (415) 421-3111
STIPULATION AND REQUEST FOR ORDER CONTINUING
CASE MANAGEMENT CONFERENCE
CASE NO. C 04-05005 JCS
JEFFREY D. POLSKY (State Bar No. 120975)
KAUFF McCLAIN & McGUIRE LLP
One Post Street, Suite 2600
San Francisco, California 94104
Telephone: (415) 421-3111
Facsimile: (415) 421-0938
Attorneys for Plaintiff
AMERICAN GUILD OF MUSICAL ARTISTS, AFLCIO
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
AMERICAN GUILD OF MUSICAL ARTISTS,
AFL-CIO,
Plaintiff,
v.
SAN FRANCISCO OPERA ASSOCIATION,
Defendant.
CASE NO. C 04-05005 JCS
STIPULATION AND REQUEST
FOR FURTHER ORDER
CONTINUING CASE
MANAGEMENT CONFERENCE
Date of Conference: June 23, 2005
Subject to the approval of this Court, the parties, through their attorneys,
stipulate as follows:
1. Plaintiff American Guild of Musical Artists, AFL-CIO (“plaintiff” or
“AGMA”) and defendant San Francisco Opera Association (“defendant” or “San
Francisco Opera”) are parties to a collective bargaining agreement. AGMA filed this
action on November 24, 2004 to compel defendant San Francisco Opera to arbitrate
certain disputes pursuant to the grievance procedures specified in that collective
bargaining agreement.
2. Since this action was filed, plaintiff and defendant, through their
attorneys, have arranged to process the pending grievances. The parties have met on
six separate occasions. Tom Angelo, an arbitrator and mediator retained by the parties,
and the parties’ counsel, were present for four of those meetings (most recently on June
Case 3:04-cv-05005-JCS Document 20 Filed 06/21/2005 Page 1 of 3 Case 3:04-cv-05005-JCS Document 21 Filed 06/21/05 Page 1 of 3
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KAUFF, MCC LAIN
& MCGUIRE LLP
ONE POST STREET,
SUITE 2600
SAN FRANCISCO, CA 94104
TELEPHONE (415) 421-3111
STIPULATION AND REQUEST FOR ORDER CONTINUING
CASE MANAGEMENT CONFERENCE
CASE NO. C 04-05005 JCS
15, 2005). Through these meetings and related negotiations, the parties have resolved
the vast majority of the outstanding grievances. They hope to resolve the remaining
issues in this same manner or, if necessary, through the arbitration procedures provided
in the collective bargaining agreement, without substantial further involvement by this
Court.
3. Pursuant to Rule 26(f) of the Federal Rules of Civil Procedure and
paragraph 4 of Magistrate Judge Spero’s Case Management Order, the parties
respectfully request that the Case Management Conference scheduled for June 23,
2005 be continued for 90 days to September 23, 2005, or to such other date as the
Court deems appropriate. They further request that the deadlines for completing initial
disclosures or stating objections in the Rule 26(f) Report, filing and serving a Case
Management Statement, and filing and serving a Rule 26(f) Report be continued to a
date one week before the rescheduled Case Management Conference.
4. The parties made a similar request concerning the Case
Management Conference initially scheduled for March 25, 2005. Since they continue to
make progress in resolving the underlying disputes, the parties respectfully request that
the Court grant this further continuance.
5. Counsel for plaintiff is filing this stipulation electronically and hereby
attests, pursuant to General Order 45, Section X(B), that defendant concurs in the filing.
DATED: June 21, 2005 KAUFF McCLAIN & McGUIRE LLP
/s/ Jeffrey D. Polsky
Attorneys for Plaintiff
AMERICAN GUILD OF MUSICAL
ARTISTS, AFL-CIO
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KAUFF, MCC LAIN
& MCGUIRE LLP
ONE POST STREET,
SUITE 2600
SAN FRANCISCO, CA 94104
TELEPHONE (415) 421-3111
STIPULATION AND REQUEST FOR ORDER CONTINUING
CASE MANAGEMENT CONFERENCE
CASE NO. C 04-05005 JCS
DATED: June 21, 2005 FOLGER LEVIN & KAHN LLP
/s/ Susan W. Ansberry
Attorneys for Defendant
SAN FRANCISCO OPERA ASSOCIATION
PROPOSED ORDER
The Case Management Conference in this matter is hereby continued to
July 15, 2005 in Courtroom A, 15th Floor at 1:30 p.m. The last day to complete initial
disclosures or state objection in Rule 26(f) Report, file and serve a Case Management
Statement, and file and serve a Rule 26(f) Report is hereby continued to July 8, 2005.
IT IS SO ORDERED.
Dated: ______________ ______________________________
JOSEPH C. SPERO
United States Magistrate Judge
Case 3:04-cv-05005-JCS Document 20 Filed 06/21/2005 Page 3 of 3
June 21, 2005 /s/ Joseph C. Spero
Case 3:04-cv-05005-JCS Document 21 Filed 06/21/05 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-16-02017/USCOURTS-ca10-16-02017-0/pdf.json | [
[
"Benito Martinez-Rodriguez",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BENITO MARTINEZ-RODRIGUEZ,
a/k/a Oscar Martinez-Rodriguez, a/k/a
Roberto Guzman, a/k/a Fred A. Lopez,
a/k/a Agapito Flores, a/k/a Ruben Galvan,
a/k/a Rueben Galvan, a/k/a Ruben GalvanDelgado, a/k/a Benito Rodriguez-Martinez,
Defendant - Appellant.
No. 16-2017
(D.C. No. 2:14-CR-00122-KG-1)
(D. N.M.)
_________________________________
ORDER
_________________________________
Before BACHARACH, PHILLIPS, and MORITZ, Circuit Judges.
_________________________________
Benito Martinez-Rodriguez, proceeding pro se, appeals the judgment entered in
his criminal case on June 11, 2015. Mr. Martinez-Rodriguez filed his notice of appeal on
January 22, 2016.
In a criminal case, a defendant’s notice of appeal must be filed in the district court
within 14 days after entry of the judgment. Fed. R. App. P. 4(b)(1)(A). The timely filing
of a notice of appeal by the defendant is an inflexible claim-processing rule that may be
forfeited if not properly raised by the government. United States v. Garduño, 506 F.3d
1287, 1290-91 (10th Cir. 2007). However, because Rule 4(b) implicates important
FILED
United States Court of Appeals
Tenth Circuit
January 27, 2016
Elisabeth A. Shumaker
Clerk of Court
Appellate Case: 16-2017 Document: 01019561272 Date Filed: 01/27/2016 Page: 1
2
judicial interests beyond those of the parties, the court may raise the time bar sua sponte
in certain circumstances. United States v. Mitchell, 518 F.3d 740, 750 (10th Cir 2008).
This power is limited and should not be invoked unless judicial resources and
administration are implicated and the delay has been inordinate. Id.
Under the circumstances of this case, dismissal of this appeal as untimely is
appropriate. Mr. Martinez-Rodriguez’s notice of appeal, filed more than seven months
after judgment was entered, was inordinately late. Accordingly, this appeal is dismissed.
A copy of this order shall stand as and for the mandate of the court.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
by: Jane K. Castro
Counsel to the Clerk
Appellate Case: 16-2017 Document: 01019561272 Date Filed: 01/27/2016 Page: 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca9-14-15848/USCOURTS-ca9-14-15848-0/pdf.json | [
[
"General Re Corporation",
"Appellee"
],
[
"ING Employee Benefits Disability Management Services",
"Appellee"
],
[
"ING Groep, N.V.",
"Appellee"
],
[
"ING Investment Management, LLC",
"Appellee"
],
[
"ING North America Insurance Corporation",
"Appellee"
],
[
"Curtis F. Lee",
"Appellant"
],
[
"Reliastar Life Insurance Company",
"Appellee"
],
[
"Kimberly Shattuck",
"Appellee"
]
] | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CURTIS F. LEE,
Plaintiff-Appellant,
v.
ING GROEP, N.V., a Dutch
entity; RELIASTAR LIFE
INSURANCE COMPANY, a
Minnesota corporation; ING
EMPLOYEE BENEFITS DISABILITY
MANAGEMENT SERVICES, a
Minnesota corporation; ING
NORTH AMERICA INSURANCE
CORPORATION, a Delaware
corporation; ING INVESTMENT
MANAGEMENT, LLC, a Delaware
limited liability company;
KIMBERLY SHATTUCK; GENERAL
RE CORPORATION, a Delaware
corporation,
Defendants-Appellees.
No. 14-15848
D.C. No.
2:12-cv-00042-ROS
Case: 14-15848, 07/25/2016, ID: 10060953, DktEntry: 78-1, Page 1 of 11
2 LEE V. ING GROEP
CURTIS F. LEE,
Plaintiff-Appellee,
v.
ING NORTH AMERICA
INSURANCE CORPORATION, a
Delaware corporation,
Defendant-Appellant,
and
GENERAL RE CORPORATION, a
Delaware corporation; ING
GROEP, N.V., a Dutch entity;
RELIASTAR LIFE INSURANCE
COMPANY, a Minnesota
corporation; ING EMPLOYEE
BENEFITS DISABILITY
MANAGEMENT SERVICES, a
Minnesota corporation; ING
INVESTMENT MANAGEMENT,
LLC, a Delaware limited liability
company; KIMBERLY SHATTUCK,
Defendants.
No. 14-15936
D.C. No.
2:12-cv-00042-ROS
OPINION
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Senior District Judge, Presiding
Argued and Submitted May 9, 2016
San Francisco, California
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LEE V. ING GROEP 3
Filed July 25, 2016
Before: Jerome Farris, Diarmuid F. O’Scannlain,
and Morgan Christen, Circuit Judges.
Opinion by Judge Farris
SUMMARY*
Employee Retirement Income Security Act
The panel affirmed in part and reversed in part the district
court’s summary judgment in favor of the defendants in an
action under the Employee Retirement Income Security Act,
vacated an award of statutory penalties in favor of the
plaintiff, and remanded.
Affirming in part, the panel held that the district court
properly imposed a penalty under 29 US.C. § 1132(c)(1) on
the ERISA plan administrator for failing to produce the Plan
Document within 30 days of the plaintiff’s request.
The panel reversed the district court’s decision to impose
a penalty based on the plan administrator’s failure to timely
produce emails. Following other circuits, the panel held that
29 C.F.R. § 2560.503-1(h)(2)(iii) imposes requirements on
benefits plans, not plan administrators. Accordingly, a failure
to comply with this regulation cannot give rise to a penalty
under § 1132(c)(1), which applies only to documents that
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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4 LEE V. ING GROEP
plan administrators are required to produce. The panel
concluded that it was not bound by dicta in Sgro v. Danone
Waters of N. Am., Inc., 532 F.3d 940 (9th Cir. 2008). The
panel remanded for the district court to assess a penalty based
solely on the failure to timely produce the Plan Document.
COUNSEL
Thomas A. Connelly (argued) and Leo R. Beus, Beus Gilbert
PLLC, Phoenix, Arizona, for Plaintiff-Appellant/CrossAppellee.
Gregory A. Bromen (argued) and William D. Hittler, Nilan
Johnson Lewis PA, Minneapolis, Minnesota; Ann-Martha
Andrews and Lawrence A. Kasten, Lewis & Roca LLP,
Phoenix, Arizona; for Defendant-Appellees ReliaStar Life
Insurance Company, ING Investment Management, LLC,
and Kimberley Shattuck, and Defendant-Appellee/CrossAppellant ING North America Insurance Corporation.
Larry P. Schiffer (argued), Squire Patton Boggs (US) LLP,
New York, New York; Aaron A. Boschee, Squire Patton
Boggs (US) LLP, Denver, Colorado; for Defendant-Appellee
General Re Life Corporation.
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LEE V. ING GROEP 5
OPINION
FARRIS, Senior Circuit Judge:
Curtis Lee is a former employee of ING Investment
Management, LLC. Through his employment, Lee
participated in a long term disability plan that is governed by
the Employee Retirement Income Security Act of 1974. See
29 U.S.C. § 1001 et seq. ING North America Insurance
Corporation was the plan administrator for this long term
disability plan. Lee applied for long term disability benefits
under the plan, which he received for a while, but then his
benefits were terminated. Lee filed a lawsuit against ING
Investment Management, ING North America, and others,
seeking inter alia, statutory penalties against ING North
America for failing to timely produce documents he had
requested. See 29 U.S.C. § 1132(c)(1). The district court
granted summary judgment to Lee on this claim and imposed
a penalty of $27,475. Lee appealed other aspects of the
district court’s decision, and ING North America crossappealed on this issue.1 We have jurisdiction under 28 U.S.C.
§ 1291. We affirm in part, reverse in part, vacate the penalty
award, and remand.
I.
On January 20, 2010, ReliaStar Life Insurance Company,
the claims administrator for Lee’s long term disability plan,
indicated that ReliaStar had insufficient evidence of Lee’s
continuing disability to approve further disability benefits. In
1 We address the other issues in this case in a memorandum disposition
filed concurrently with this opinion.
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6 LEE V. ING GROEP
response, on February 5, 2010, Lee’s attorney wrote two
letters requesting documents.
The first letter was sent to Yoon Kim, counsel for ING
North America. This letter stated that Lee was entitled to a
broad range of documents and requested “copies of all
relevant communications . . . concerning Curtis Lee and his
claims for disability benefits” and specifically referenced
email communications. Kim interpreted this letter as a
request for “all documents relevant to Curtis’ claim for
benefits.”
The second letter was sent to James Kochinski, counsel
for ReliaStar, the claims administrator. This letter explicitly
requested all documents relevant to Lee’s claim. Kochinski
informed Kim about this letter.
On November 9, 2011, ING North America produced the
requested emails. On March 11, 2013, ING North America
produced a copy of the Plan Document.
II.
We review a district court’s grant of summary judgment
de novo, to determine whether, viewing the evidence in the
light most favorable to the non-moving party, any genuine
issue of material fact exists, and whether the district court
correctly applied the relevant law. Ashton v. Cory, 780 F.2d
816, 818 (9th Cir. 1986).
III.
Under 29 U.S.C. § 1132(c)(1), a plan administrator who
“fails or refuses to comply with a request for any information
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LEE V. ING GROEP 7
which such administrator is required by this subchapter to
furnish . . . within 30 days after such request may in the
court’s discretion be personally liable to such participant or
beneficiary in the amount of up to $100 a day from the date
of such failure or refusal.” The district court found that ING
North America was liable under this statute for failing to
timely produce both the Plan Document and the emails.
ING North America does not dispute that this statute
authorizes penaltiesfor failing to produce the Plan Document.
However, ING North America argues that Lee never actually
requested the Plan Document in his February 5, 2010 letter to
Kim. Instead, the letter only asked for copies of email
communications, and ING North America argues that failing
to produce emails cannot give rise to penalties under
29 U.S.C. § 1132(c)(1).
A. Plan Document
The district court correctly found that no genuine issue of
material fact exists as to whether Lee requested the Plan
Document from ING North America. Lee sent a document
request to ING North America’s counsel on February 5, 2010.
Regardless of the exact wording of this letter, ING North
America’s counsel interpreted it as a request for all
documents relevant to Lee’s claim. In addition, ING North
America was aware of the letter sent to ReliaStar that
explicitly requested all relevant documents.
ING North America did not dispute that the Plan
Document was a relevant document, or that it did not produce
the Plan Document within 30 days of February 5, 2010. No
genuine issue of material fact remained. We therefore affirm
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8 LEE V. ING GROEP
the district court’s decision to impose a penalty on ING North
America for its failure to timely produce the Plan Document.
B. Emails
Lee argued to the district court that a statutory penalty for
failing to timely produce the requested emails was
appropriate because 29 C.F.R. § 2560.503-1(h)(2)(iii)
requires employee benefits plans to “[p]rovide that a claimant
shall be provided, upon request and free of charge, reasonable
access to, and copies of, all documents, records, and other
information relevant to the claimant’s claim for benefits.”
Lee argued that the emails were relevant to his claim for
benefits and so the failure to timely produce them warranted
a penalty under 29 U.S.C. § 1132(c)(1).
ING North America admitted that Lee requested the
emails, and ING North America did not produce them within
30 days. However, ING North America argued that failure to
produce documents required to be produced under 29 C.F.R.
§ 2560.503-1(h)(2)(iii) cannot give rise to a penalty under
29 U.S.C. § 1132(c)(1) because 29 C.F.R. § 2560.503-1(h)
imposes requirements on benefits plans not on plan
administrators and 29 U.S.C. § 1132(c)(1) only applies to
documents that plan administrators are required to produce.
The First, Second, Third, Sixth, Seventh, Eighth, and
Tenth Circuits, as well as several district courts in the Ninth
Circuit, have all agreed with ING North America’s position,
and found that a failure to follow claims procedures imposed
on benefits plans, as outlined in 29 U.S.C. § 1133 and
29 C.F.R. § 2560.503-1, cannot give rise to a penalty under
29 U.S.C. § 1132(c)(1). See Halo v. Yale Health Plan, Dir.
of Benefits &Records Yale Univ., 819 F.3d 42, 58, 60–61 (2d.
Case: 14-15848, 07/25/2016, ID: 10060953, DktEntry: 78-1, Page 8 of 11
LEE V. ING GROEP 9
Cir. 2016); Medina v. Metro. Life Ins. Co., 588 F.3d 41, 48
(1st Cir. 2009); Brown v. J.B. Hunt Transport Servs., Inc.,
586 F.3d 1079, 1089 (8th Cir. 2009); Wilczynski v.
Lumbermens Mut. Cas. Co., 93 F.3d 397, 405–07 (7th Cir.
1996); VanderKlok v. Provident Life and Accident Ins. Co.,
956 F.2d 610, 618 (6th Cir. 1992); Walter v. Int’l Ass’n of
Machinists Pension Fund, 949 F.2d 310, 315–16 (10th Cir.
1991); Groves v. Modified Ret. Plan for Hourly Paid Emps.
of the Johns Manville Corp. and Subsidiaries, 803 F.2d 109,
116 (3d Cir. 1986); Care First Surgical Ctr. v. ILWU-PMA
Welfare Plan, No. CV14-01480 MMM (AGRx), 2014 WL
6603761, at *20–23 (C.D. Cal. July 28, 2014); Streit v.
Matrix Absence Mgmt., Inc., No. 3:12-CV-01797-AC, 2014
WL 667535, at *3–7 (D. Or. Feb 18, 2014); Bielenberg v.
ODS Health Plan, Inc., 744 F. Supp. 2d 1130, 1143–44 (D.
Or. 2010).
The district court agreed with our sister circuits that ING
North America’s reading of the penalty statute was the better
reading, but found that it was bound by this Court’s precedent
in Sgro v. Danone Waters of North America, Inc., 532 F.3d
940 (9th Cir. 2008), to side with Lee.
In Sgro, this Court was confronted with a claim for
statutory penalties based on a failure to produce notes kept by
claims personnel. See id. at 942. The plaintiff had alleged
that a penalty under 29 U.S.C. § 1132(c)(1) was appropriate
because the notes were relevant to his claim for benefits, and
so had to be produced under 29 C.F.R. § 2560.503-
1(h)(2)(iii). See id. at 945. The district court dismissed this
claim without prejudice. Id. at 942.
This Court affirmed that decision, based on the plaintiff’s
failure to sufficiently plead that he had requested the notes
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10 LEE V. ING GROEP
from the plan administrator, as opposed to the claims
administrator. See id. at 945. In so doing, we appeared to
assume that, if properly plead, a penalty could be imposed
under 29 U.S.C. § 1132(c)(1) for failing to produce
documents required to be produced under 29 C.F.R.
§ 2560.503-1(h)(2)(iii). See id. However, we did not
explicitly so hold, and we did not address the distinction
between requirements imposed on plans and requirements
imposed on plan administrators. See id. Nor did we cite any
of the holdings of our sister circuits on the issue. See id.
The language in Sgro is non-binding dicta. We now join
our sister circuits and hold that a failure to follow claims
procedures imposed on benefits plans, such as outlined in
29 C.F.R. § 2560.503-1(h)(2)(iii) does not give rise to
penalties under 29 U.S.C. § 1132(c)(1). “Plans” and “plan
administrators” are separate entities with separate definitions
under ERISA. See 29 U.S.C. § 1002(1), (2)(A), (3), (16)(A).
Penalties under 29 U.S.C. § 1132(c)(1) can only be assessed
against “plan administrators” for failing to produce
documents that they are required to produce as plan
administrators. 29 C.F.R. § 2560.503-1(h)(2)(iii) does not
impose any requirements on plan administrators, and so
cannot form the basis for a penalty under 29 U.S.C.
§ 1132(c)(1). We therefore reverse the district court’s
decision to impose a penalty based on ING North America’s
failure to timely produce the emails.
IV.
ING North America is not liable for statutory penalties
based on its failure to produce the requested emails. It is,
however, liable for its failure to produce the Plan Document.
The district court stated that its penalty of $25 per day for
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LEE V. ING GROEP 11
both failures would be the same even if it was only
considering the failure to produce the Plan Document. But
this statement is in tension with the district court’s finding
that, while the failure to produce the Plan Document was
inadvertent, the failure to produce the emails was intentional
and “[t]he fact that ING North America knowingly ignored
the regulation counsels in favor of a larger penalty.” We
therefore vacate the penalty award and remand to the district
court to assess a penalty based solely on the failure to timely
produce the Plan Document.
AFFIRMED in part; REVERSED in part; VACATED;
and REMANDED.
Each party shall bear their own costs on this appeal.
Case: 14-15848, 07/25/2016, ID: 10060953, DktEntry: 78-1, Page 11 of 11 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca5-15-30657/USCOURTS-ca5-15-30657-0/pdf.json | [
[
"Dekerion Drashard Lewis",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-30657
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DEKERION DRASHARD LEWIS,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:11-CR-322
Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Dekerion Drashard Lewis appeals the 24-month above-guidelines
sentence imposed upon the mandatory revocation of his supervised release in
relation to his conviction for possession of cocaine with intent to distribute.
Lewis contends that the district court failed to adequately explain its
sentencing decision. See United States v. Davis, 602 F.3d 643, 646 (5th Cir.
2010); 18 U.S.C. § 3583(c). Because Lewis did not object to the sentence at the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
April 12, 2016
Lyle W. Cayce
Clerk
Case: 15-30657 Document: 00513461534 Page: 1 Date Filed: 04/12/2016
No. 15-30657
2
time it was imposed, we review the district court’s sentencing determination
for plain error. See United States v. Jones, 484 F.3d 783, 792 (5th Cir. 2007).
“A district court may impose any sentence upon revocation of supervised
release that falls within the statutory maximum term allowed for the
revocation sentence, but must consider the factors enumerated in 18 U.S.C.
§ 3553(a) and the policy statements before doing so.” Davis, 602 F.3d at 646.
If the court imposes a revocation sentence outside the advisory guidelines
range, it must provide “some explanation” for its decision. United States v.
Whitelaw, 580 F.3d 256, 261-62 (5th Cir. 2009) A court’s explanation for its
sentencing decision is sufficient so long as it “satisf[ies] the appellate court that
[it] has considered the parties’ arguments and has a reasoned basis for
exercising [its] own legal decisionmaking authority.” Rita v. United States, 551
U.S. 338, 356 (2007).
At his revocation hearing, Lewis admitted that he had violated the
conditions of his supervised release by failing multiple drug tests, attempting
to cheat drug tests, associating with an active drug dealer, and deceiving his
probation officer. The district court admonished Lewis that its revocation and
sentencing decisions were based on his continued inability to stay away from
drugs. In choosing a sentence, the district court expressly noted that it had
“considered the Guidelines” and reviewed the record. Contained within the
record were documents listing the applicable guidelines range, as well as the
probation officer’s note that an above-guidelines sentence might be warranted
based on Lewis’s continued noncompliance with the conditions of his release.
Based on the record before it, the district court evidently agreed that the
circumstances of this case called for an above-guidelines sentence, and Lewis
did not offer any argument to the contrary.
Case: 15-30657 Document: 00513461534 Page: 2 Date Filed: 04/12/2016
No. 15-30657
3
While the district court “might have said more,” Rita, 551 U.S. at 359,
its explanation nonetheless “ma[de] clear both the reasons for the sentence and
their adequacy as a matter of law.” United States v. Bonilla, 524 F.3d 647, 659
(5th Cir. 2008). Accordingly, Lewis fails to show that the district court
committed clear or obvious error in explaining its reasons for imposing an
above-guidelines revocation sentence. See Puckett v. United States, 556 U.S.
129, 135 (2009). Even assuming there was error, however, Lewis does not meet
his burden of showing that, “but for the error, he would have received a lesser
sentence.” United States v. Hebron, 684 F.3d 554, 559 (5th Cir. 2012).
Moreover, the district court’s error does not impair Lewis’s ability to seek
meaningful appellate review because “the record reveals the reasons for [the
defendant’s] sentence, even if not explicitly stated by the district court.”
Whitelaw, 580 F.3d at 263.
Accordingly, we AFFIRM the judgment of the district court.
Case: 15-30657 Document: 00513461534 Page: 3 Date Filed: 04/12/2016 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_14-cv-03530/USCOURTS-cand-3_14-cv-03530-4/pdf.json | [
[
"Douglas Ladore",
"Plaintiff"
],
[
"Sony Computer Entertainment America, LLC",
"Defendant"
]
] | 00035950.DOCX - 1
_____________________________________________________________________________________________
STIPULATION TO EXTEND TIME FOR DEFENDANT TO RESPOND TO CLASS ACTION
COMPLAINT
CASE NO. 14-03530-EMC
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SAMUEL LASSER (SBN 252754) LUANNE SACKS (SBN 120811)
[email protected] [email protected]
LAW OFFICES OF SAMUEL LASSER MICHELE D. FLOYD (SBN 163031)
1934 Divisadero Street [email protected]
San Francisco, CA 94115 SACKS, RICKETTS & CASE LLP
Telephone: 415-994-9930 177 Post Street, Suite 650
Facsimile: 415-776-8047 San Francisco, CA 94108
Telephone: 415-549-0580
JAY EDELSON (Pro Hac Vice) Facsimile: 415-549-0640
[email protected]
RAFEY S. BALABANIAN (Pro Hac Vice) Attorneys for Defendant
[email protected] SONY COMPUTER ENTERTAINMENT
BENJAMIN S. THOMASSEN (Pro Hac Vice) AMERICA, LLC
[email protected]
ALICIA E. HWANG (Pro Hac Vice)
[email protected]
EDELSON PC
350 North LaSalle Street, Suite 1300
Chicago, IL 60654
Telephone: 312-589-6370
Facsimile: 312-589-6378
Attorneys for Plaintiff and Putative Class
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
DOUGLAS LADORE, an individually and on
behalf of all others similarly situated,
Plaintiff,
vs.
SONY COMPUTER ENTERTAINMENT
AMERICA, LLC, a Delaware limited liability
company,
Defendant
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No.: 3:14-cv-03530-EMC
STIPULATION TO EXTEND TIME FOR
DEFENDANT TO RESPOND TO CLASS
ACTION COMPLAINT
[LOCAL RULE 6-1]
Case 3:14-cv-03530-EMC Document 53 Filed 02/06/15 Page 1 of 2
00035950.DOCX - 1 - 1 -
_____________________________________________________________________________________________
STIPULATION TO EXTEND TIME FOR DEFENDANT TO RESPOND TO CLASS ACTION
COMPLAINT
CASE NO. 14-03530-EMC
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IT IS HEREBY STIPULATED by and between the parties hereto, through their respective
counsel of record, as follows:
1. Plaintiff does not intend to amend his claim for Negligent Misrepresentation [Dkt. 1, ¶¶
123-132].
2. Defendant SCEA shall have up to and including March 27, 2015 to answer or otherwise
respond to Plaintiff’s Class Action Complaint [Dkt. 1].
Dated: February 5, 2015
SACKS, RICKETTS & CASE LLP
By: /s/ Michele Floyd
LUANNE SACKS
MICHELE FLOYD
Attorneys for Defendant
SONY COMPUTER ENTERTAINMENT
AMERICA LLC
Dated: February 5, 2015 LAW OFFICE OF SAMUEL LASSER
By: /s/ Alicia E. Hwang
Alicia E. Hwang
Counsel for Plaintiff DOUGLAS LADORE and
the putative class
ATTESTATION CLAUSE
I, Michele Floyd, am the ECF user whose identification and password are being used to
file the foregoing Stipulation to Extend Time for Defendant to Respond to Class Action
Complaint. I hereby attest that the above-referenced signatories to this stipulation have
concurred in this filing.
Dated: February 5, 2015 SACKS, RICKETTS & CASE LLP
Signed: /s/ Michele Floyd .
LUANNE SACKS
MICHELE D. FLOYD
Attorneys for Defendant
SONY COMPUTER
ENTERTAINMENT AMERICA,
LLC
IT IS SO ORDERED:
____________________
Edward M. Chen
U.S. District Judge
U
NITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
IT IS SO ORDERED
Judge Edward M. Chen
Case 3:14-cv-03530-EMC Document 53 Filed 02/06/15 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca4-15-06942/USCOURTS-ca4-15-06942-0/pdf.json | [
[
"Roy Cooper",
"Appellee"
],
[
"Saquan Devel Hussey",
"Appellant"
]
] | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6942
SAQUAN DEVEL HUSSEY,
Petitioner - Appellant,
v.
ROY COOPER,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:14-hc-02075-FL)
Submitted: October 15, 2015 Decided: October 20, 2015
Before WILKINSON, AGEE, and HARRIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Saquan Devel Hussey, Appellant Pro Se. Clarence Joe DelForge,
III, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
Appeal: 15-6942 Doc: 7 Filed: 10/20/2015 Pg: 1 of 3
2
PER CURIAM:
Saquan Devel Hussey seeks to appeal the district court’s
order dismissing as untimely his 28 U.S.C. § 2254 (2012)
petition. The order is not appealable unless a circuit justice
or judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(A) (2012). 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) (2012). When the
district court denies relief on the merits, a prisoner satisfies
this standard by demonstrating that reasonable jurists would
find that the district court’s assessment of the constitutional
claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003). When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the petition states a
debatable claim of the denial of a constitutional right. Slack,
529 U.S. at 484-85.
We have independently reviewed the record and conclude that
Hussey 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
Appeal: 15-6942 Doc: 7 Filed: 10/20/2015 Pg: 2 of 3
3
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
Appeal: 15-6942 Doc: 7 Filed: 10/20/2015 Pg: 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca7-08-02638/USCOURTS-ca7-08-02638-0/pdf.json | [
[
"City of Rockford, Illinois",
"Appellee"
],
[
"Alex Woods",
"Appellant"
],
[
"Jennie M. Woods",
"Appellant"
],
[
"Mary L. Woods",
"Appellant"
]
] | *
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 3, 2010*
Decided March 1, 2010
Before
KENNETH F. RIPPLE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐2638
ALEX WOODS, MARY L. WOODS and
JENNIE M. WOODS,
Plaintiffs‐Appellants,
v.
CITY OF ROCKFORD, ILLINOIS,
Defendant‐Appellee.
Appeal from the United States District
Court for the Northern District of Illinois,
Western Division.
No. 3:06‐cv‐50148
Frederick J. Kapala,
Judge.
O R D E R
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
Case: 08-2638 Document: 48 Filed: 03/01/2010 Pages: 5
No. 08‐2638 Page 2
In November 2006, Alex, Mary and Jennie Woods filed a lawsuit under 42 U.S.C.
§ 1983 claiming that the City of Rockford, Illinois, had deprived them of due process by
declining to renew, without a predeprivation hearing, the liquor license for their nightclub.
They also claimed that the City had denied them equal protection by imposing racially
motivated restrictions that hampered their use of the license before it was lost. The district
court dismissed the case at summary judgment after accepting the City’s contention that
both claims were barred by the applicable statute of limitations. We affirm.
The evidence at summary judgment, viewed in the light most favorable to the
plaintiffs, see Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009), establishes the following.
From 1995 to 2004, the plaintiffs operated Lamont’s Restaurant and Lounge, a Rockford
nightclub that catered primarily to African Americans. Lamont’s was incorporated but did
not have its own liquor license. Instead, Mary and Jennie Woods had acquired a liquor
license in their own names and sold liquor at Lamont’s under the authority of that license.
Until 2004, those two plaintiffs, themselves African American, were permitted to renew
their license despite ongoing disputes with the City concerning the operation of Lamont’s.
By the time they lost their liquor license for good, the two license holders had received
citations due to the presence of minors on the premises, the sale of alcohol to minors and
violence at the establishment. The license had also been suspended for 14 days in 2003 for
the sale of alcohol to a minor. On at least one occasion, Mary and Jennie Woods had
consented to restrictions imposed by the City on Lamont’s operations, apparently as a
condition to permit the continued use of the liquor license.
On April 28, 2004, Jennifer Cacciapaglia, an assistant city attorney, wrote Mary and
Jennie Woods and informed them that their liquor license would expire at 11:59 p.m. on
Friday, April 30, 2004, and would not be renewed. The recipients, who already had applied
for renewal and paid the renewal fee, were ordered to cease selling liquor at Lamont’s at the
stated time. They were also told that they could contest the decision and request a hearing
by notifying the City in writing within 10 days. The City asserts that its action was taken in
response to a history of violence at Lamont’s, as evidenced by more than 90 calls to police
during a relatively short period, culminating in a shooting in April 2004.
Police showed up to enforce the nonrenewal, and Lamont’s did not operate again
after April 30. The evidence in the record is sparse concerning the subsequent
communications between the plaintiffs and the City, but the parties continued to
contemplate a “liquor hearing” for several months. On August 25, 2004, Ms. Cacciapaglia
wrote counsel for the plaintiffs advising them that a hearing had been scheduled for
December 9, 2004. In August 2004, the City also offered to revive the license on the
condition that the plaintiffs sell Lamont’s. The plaintiffs did not appear at the December
Case: 08-2638 Document: 48 Filed: 03/01/2010 Pages: 5
No. 08‐2638 Page 3
hearing, nor did counsel appear on their behalf. On December 14, 2004, Ms. Cacciapaglia
wrote Mary and Jennie Woods advising that she perceived no further need for a hearing.
What happened between the parties after December 14 is not disclosed by the record.
Decisions of a local liquor commissioner (in Rockford the mayor serves in that capacity)
may be appealed to the Illinois Liquor Control Commission, but Mary and Jennie Woods
did not appeal to the Commission. Instead, in November 2005, the corporation filed a
lawsuit raising the same claims asserted by the plaintiffs in this litigation. Lamont’s Rest. &
Lounge, Inc. v. City of Rockford, No. 05‐CV‐50225 (N.D. Ill. Aug. 30, 2006). None of the
plaintiffs joined that suit individually. The suit was filed by counsel on behalf of the
corporation, but counsel withdrew early in the litigation, and despite multiple continuances
to permit the corporation to find a replacement, no other attorney made an appearance. The
district court, after denying a motion from these plaintiffs to join the corporation’s suit as
co‐plaintiffs, dismissed the corporation’s lawsuit on August 30, 2006, for want of
prosecution.
Meanwhile, on August 7, 2006, the plaintiffs had taken the initial steps to commence
this lawsuit. They tendered a complaint naming themselves as plaintiffs, filed an
application to proceed in forma pauperis and moved for appointment of counsel. The
district court denied their request for pauper status on the same day that the corporation’s
suit was dismissed. The plaintiffs then waited two months before paying the filing fee and
thus their complaint was not filed until November 7, 2006. The corporation is not a party to
the second lawsuit, but the plaintiffs’ complaint is nearly identical to the corporation’s.
After discovery, the plaintiffs moved for summary judgment. The City filed a cross‐
motion for summary judgment. In its motion, the City argued in part that the plaintiffs’
claims were barred by the two‐year statute of limitations that governs § 1983 suits in Illinois.
See 725 ILCS 5/13‐202; Wilson v. Garcia, 471 U.S. 261, 276 (1985); Savory v. Lyons, 469 F.3d 667,
672 (7th Cir. 2006). According to the City, the injuries alleged by the plaintiffs occurred, at
the latest, on May 1, 2004, the day that Lamont’s was first prohibited from selling liquor.
The district court agreed and granted summary judgment for the City.
As an initial matter, the City has argued, both in the district court and on appeal, that
Alex Woods lacks standing in this matter. The City correctly notes, in order to have
standing, Mr. Woods must have a cognizable injury that is causally connected to the alleged
conduct—here a constitutional violation—and is amenable to redress. See Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992); Sierra Club v. Franklin County Power of Ill., L.L.C., 546 F.3d
918, 925 (7th Cir. 2008). Mr. Woods meets this threshold only with respect to the equal
protection claim. He has an ownership interest in the corporation and apparently managed
Lamont’s, but the liquor license was issued not to Mr. Woods or to the corporation; rather, it
Case: 08-2638 Document: 48 Filed: 03/01/2010 Pages: 5
No. 08‐2638 Page 4
was issued to Mr. Woods’s wife and mother, Mary and Jennie Woods, as individuals. Mr.
Woods asserts that he personally applied for the renewals, but this representation is not
supported in the record and, in any event, does not alter the fact that the license was not in
his name. Mr. Woods cannot seek relief for the alleged due process violation on behalf of
his wife or mother. See Barber v. Overton, 496 F.3d 449, 457‐58 (6th Cir. 2007); Siebert v.
Severino, 256 F.3d 648, 659 n.8 (7th Cir. 2001). On the other hand, the plaintiffs’ equal
protection claim is not moored only to the license but to the City’s alleged pattern of
conduct toward Lamont’s, in which Mr. Woods played an important role. Therefore, Mr.
Woods has standing to press that claim.
On the merits, the plaintiffs principally argue that their claims were timely because
they did not accrue until December 14, 2004, when Ms. Cacciapaglia notified them that a
hearing would not be conducted. The City responds that the plaintiffs’ claims accrued
when the liquor license was not renewed at the end of April 2004, a date more than two
years before they filed this suit.
As a threshold matter, the plaintiffs arguably waived their theory about the date of
accrual because they did not raise the argument at summary judgment. See Domka v. Portage
County, Wis., 523 F.3d 776, 783 (7th Cir. 2008); Econ. Folding Box Corp. v. Anchor Frozen Foods
Corp., 515 F.3d 718, 720 (7th Cir. 2008). In the district court, the plaintiffs relied on their
theory that the corporation’s November 2005 lawsuit was, in their view, dismissed only
temporarily and was enough to bridge the gap between the date of accrual asserted by the
City and their November 2006 lawsuit. Although they did not cite it, the plaintiffs
apparently relied on the Illinois savings statute, see 735 ILCS 5/13‐217, which permits
plaintiffs to refile an action within one year of a voluntary dismissal, which Illinois defines
to include dismissals for lack of prosecution. See S.C. Vaughan Oil Co. v. Caldwell, Troutt, &
Alexander, 693 N.E.2d 338, 342 (Ill. 1998). The district court correctly held that the
corporation’s lawsuit, to which the plaintiffs were not parties and the dismissal of which the
corporation did not appeal, did not toll the statute of limitations for their individual claims.
Nevertheless, we may address the plaintiffs’ new accrual theory because the City has
not asserted waiver in its brief before us. Indeed, it has briefed the statute‐of‐limitations
argument without mentioning the plaintiffs’ argument in favor of a December 2004 accrual.
See Riemer v. Ill. Dep’t of Trans., 148 F.3d 800, 805 n.4 (7th Cir. 1998).
The district court was correct to find the plaintiffs’ claims time‐barred. A § 1983
claim accrues when a plaintiff knows or should know that his constitutional rights have
been violated. See Savory, 469 F.3d 672; Kelly v. City of Chi., 4 F.3d 509, 511 (7th Cir. 1993).
Although the plaintiffs now argue that December 14, 2004—the date the City first
announced that it no longer saw a need for the contemplated liquor hearing—was the date
Case: 08-2638 Document: 48 Filed: 03/01/2010 Pages: 5
No. 08‐2638 Page 5
their claims accrued, May 1 bears all the markers of the date of accrual. Under Illinois law,
a municipal liquor authority may not revoke or decline to renew a liquor license without
giving the licensee three days’ written notice and the opportunity to appear and defend.
235 ILCS 5/7‐5. We have interpreted this directive to grant a licensee a due process right to
a hearing prior to the loss of a liquor license, including a loss by nonrenewal. See Proʹs
Sports Bar & Grill, Inc. v. City of Country Club Hills, 589 F.3d 865 (7th Cir. 2009); Kelly, 4 F.3d
at 511; Reed v. Shorewood, 704 F.2d 943, 949 (7th Cir. 1983). Accordingly, on May 1, Mary
and Jennie Woods knew that the City had failed to renew their license in violation of their
right to due process. Moreover, the harm attendant to the nonrenewal began to accrue
immediately on May 1 when the City raided Lamont’s and shut it down. The discussions
between the license holders and the City, after May 1, may be characterized as the City’s
attempt at post‐deprivation process or as an offer to consider reinstating the license. The
license was finally revoked on May 1 and the alleged due process violation had been
committed.
Similarly, the plaintiffs’ equal protection claim concerns events before May 1 that
culminate in the nonrenewal of the liquor license. The plaintiffs primarily point to what
they contend was the Cityʹs “racial profiling” of themselves and their clientele. They focus
on several nuisance citations, the City’s February 2003 order imposing dress‐code
limitations on Lamontʹs, including rules apparently meant to discourage gang presence
(including gang colors), and on their liquor license problems to support this claim. All of
these actions occurred before the license was lost in May 2004, and these claims therefore
accrued, at the latest, when Lamont’s closed.
The judgment of the district court is AFFIRMED.
Case: 08-2638 Document: 48 Filed: 03/01/2010 Pages: 5 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_12-cv-03721/USCOURTS-cand-3_12-cv-03721-3/pdf.json | [
[
"Audrey King",
"Defendant"
],
[
"Sammy L. Page",
"Petitioner"
]
] | 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
SAMMY L. PAGE,
Petitioner,
v.
AUDREY KING, Acting Executive
Director California Department of
Mental Health,
Respondent. /
No. C 12-3721 WHA (PR)
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Petitioner filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C.
2241 challenging his civil commitment to a California mental health institution pursuant to
California's Sexually Violent Predators Act. See Cal. Welf. & Inst. Code 6600, et seq.
("SVPA"). The petition was dismissed without prejudice and a certificate of appealability was
denied. Petitioner appealed, and the United States Court of Appeals subsequently dismissed his
appeal because it was “so insubstantial as to warrant further review.” Petitioner filed a motion
for reconsideration. The motion was denied and he has appealed that decision. Pursuant to the
referral by the Court of Appeals, the appeal has been reviewed and petitioner has failed to make
a substantial showing that a reasonable jurist would find this court’s denial of his motion or
Case 3:12-cv-03721-WHA Document 37 Filed 01/07/14 Page 1 of 2
United States District Court
For the Northern District of California
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dismissal of his underlying petition debatable or wrong. See Slack v. McDaniel, 529 U.S. 473,
484 (2000). Consequently, no certificate of appealability is warranted.
IT IS SO ORDERED.
Dated: January 7 , 2014.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
Case 3:12-cv-03721-WHA Document 37 Filed 01/07/14 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_15-cv-00570/USCOURTS-cand-3_15-cv-00570-2/pdf.json | [
[
"National Marrow Donor Program",
"Defendant"
],
[
"Kimberlli Walker",
"Plaintiff"
]
] | 1
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
KIMBERLLI WALKER,
Plaintiff,
v.
NATIONAL MARROW DONOR
PROGRAM,
Defendant.
Case No. 15-cv-00570-JST
SCHEDULING ORDER
The Court hereby sets the following case deadlines pursuant to Federal Rule of Civil
Procedure 16 and Civil Local Rule 16-10:
Event Deadline
Deadline to add parties or amend the pleadings 5/8/151
Mediation deadline 10/30/15
Fact discovery cut-off 1/8/16
Expert disclosures 1/29/16
Expert rebuttal 2/19/16
Expert discovery cut-off 3/4/16
Deadline to file dispositive motions 3/25/16
Pretrial conference statement due 6/7/16
1
This deadline having already passed, any amendment of the pleadings will require a showing of
good cause.
Case 3:15-cv-00570-JST Document 14 Filed 05/29/15 Page 1 of 2
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United States District Court
Northern District of California
Event Deadline
Pretrial conference 6/17/16 at 2:00 p.m.
Trial 7/11/16 at 8:30 a.m.
Estimate of trial length (in days) Five
This case will be tried to a jury.
Counsel may not modify these dates without leave of court. The parties shall comply with
the Court’s standing orders, which are available at cand.uscourts.gov/jstorders.
The parties must take all necessary steps to conduct discovery, compel discovery, hire
counsel, retain experts, and manage their calendars so that they can complete discovery in a timely
manner and appear at trial on the noticed and scheduled dates. All counsel must arrange their
calendars to accommodate these dates, or arrange to substitute or associate in counsel who can.
Trial dates set by this Court should be regarded as firm. Requests for continuance are
disfavored. The Court will not consider any event subsequently scheduled by a party, partycontrolled witness, expert or attorney that conflicts with the above trial date as good cause to grant
a continuance. The Court will not consider the pendency of settlement discussions as good cause
to grant a continuance.
The Case Management Conference set for June 3, 2015 is vacated.
IT IS SO ORDERED.
Dated: May 29, 2015
_______________________________________
JON S. TIGAR
United States District Judge
Case 3:15-cv-00570-JST Document 14 Filed 05/29/15 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca11-14-13365/USCOURTS-ca11-14-13365-0/pdf.json | [
[
"Kenneth Bullard",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13365
Non-Argument Calendar
________________________
D.C. Docket No. 9:14-cr-80020-JIC-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KENNETH BULLARD,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 22, 2015)
Before MARTIN, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
USCA11 Case: 14-13365 Date Filed: 05/22/2015 Page: 1 of 6
2
Kenneth Anthony Bullard appeals his 180-month sentence, imposed after he
pled guilty to possession of a firearm by a convicted felon. Mr. Bullard argues that
the district court erred in (1) finding that his prior conviction for possession of
cocaine with intent to sell under Fla. Stat. § 893.13(1)(a) qualified as a “serious
drug offense” under the Armed Career Criminal Act, 18 U.S.C. § 924(e); (2)
increasing his offense level under § 4B1.4(b)(3)(A) for possessing a firearm in
connection with a controlled substance offense; and (3) sentencing him above the
ten-year statutory maximum for his offense based on prior convictions that were
not alleged in the indictment. Having reviewed the record and the parties’ briefs,
and finding no reversible error, we affirm.
I
The district court sentenced Mr. Bullard as an armed career criminal under
the ACCA based on three qualifying predicate convictions: (1) a 1989 Florida
conviction for possession of cocaine with intent to sell, in violation of Fla. Stat. §
893.13(1)(a); (2) a 1991 Florida conviction for aggravated battery and battery on a
police officer, in violation of Fla. Stat. §§ 784.045 and 784.07; and (3) a 1999
federal conviction for possession of cocaine with intent to distribute. On appeal,
Mr. Bullard contends that his Florida conviction for possession of cocaine with
intent to sell under Fla. Stat. § 893.13(1)(a), is not a “serious drug offense” within
the meaning of the ACCA.
USCA11 Case: 14-13365 Date Filed: 05/22/2015 Page: 2 of 6
3
We review de novo whether a prior conviction qualifies as a “serious drug
offense” under the ACCA to enhance a defendant’s sentence. See United States v.
Robinson, 583 F.3d 1292, 1294 (11th Cir. 2009). Under the ACCA, any person
who violates 18 U.S.C. § 922(g) and has at least three prior convictions from any
court “for a violent felony or a serious drug offense, or both, committed on
occasions different from one another” receives a mandatory minimum sentence of
15 years. 18 U.S.C. § 924(e)(1). A “serious drug offense” is defined, in pertinent
part, as follows:
(ii) an offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture or
distribute, a controlled substance . . . , for which a
maximum term of imprisonment of then years or more is
prescribed by law.
18 U.S.C. § 922(e)(2)(A)(ii).
In United States v. Smith, 775 F.3d 1262, 1268 (11th Cir. 2014), we held that
a conviction under Fla. Stat. § 893.13(1) is a “serious drug offense” under the
ACCA. Accordingly, we hold, for the reasons substantially stated in our opinion
in Smith, that the district court did not err in concluding that Mr. Bullard’s prior
conviction under § 893.13(1)(a) for possession of cocaine with intent to sell
qualified as a “serious drug offense” under the ACCA.
USCA11 Case: 14-13365 Date Filed: 05/22/2015 Page: 3 of 6
4
II
Mr. Bullard also argues that the trial court erred in enhancing his sentence
under § 4B1.4(b)(3)(A) because there was insufficient evidence to establish that he
possessed a firearm “in connection with . . . a controlled substance offense.”
U.S.S.G. § 4B1.4(b)(3)(A).
The pertinent facts of the offense are as follows. Riviera Beach police
officers obtained a search warrant to search Mr. Bullard’s residence after a
confidential source made two purchases of drugs from Mr. Bullard at the
residence. Mr. Bullard resided in the sole upper-floor apartment of a two-story
building. A search of the apartment yielded five grams of cocaine in two plastic
baggies in the master bedroom, as well as a digital scale in the kitchen. During
execution of the search warrant, officers observed a firearm in plain view on the
front passenger seat of a car parked in a parking stall in front of the apartment
complex. Mr. Bullard acknowledged that the car belonged to his mother and
admitted that the firearm belonged to him. Based on these facts, the district court
found “by a preponderance of the evidence that [Mr. Bullard] did possess a firearm
and ammunition in connection with a controlled substance offense.”
“We review a sentencing court’s findings of fact for clear error and review
its application of the law to the facts de novo.” United States v. Young, 115 F.3d
834, 836 (11th Cir. 1997). Under the Sentencing Guidelines, a defendant who
USCA11 Case: 14-13365 Date Filed: 05/22/2015 Page: 4 of 6
5
qualifies as an armed career criminal receives an offense level of “34, if the
defendant used or possessed the firearm or ammunition in connection with . . . a
controlled substance offense.” U.S.S.G. § 4B1.4(b)(3)(A). The Guidelines define
a “controlled substance offense” as “an offense . . . that prohibits the manufacture,
import, export, distribution, or dispensing of a controlled substance . . . or the
possession of a controlled substance . . . with intent to manufacture, import, export,
distribute, or dispense.” U.S.S.G. § 4B1.2(b).
Even if Mr. Bullard could demonstrate that the district court erred in finding
that he “possess[ed] a firearm and ammunition in connection with a controlled
substance offense,” any such error would be harmless. Mr. Bullard qualified as an
armed career criminal under the ACCA, and as such, he was subject to a
mandatory minimum sentence of 180 months. Even if Mr. Bullard had not
possessed the firearm at issue in connection with a controlled substance offense,
thereby reducing his advisory guideline range to 135-168 months, the district court
nevertheless would have been required to impose a sentence of at least 180
months—the exact sentence that Mr. Bullard received. Accordingly, no reversible
error has been shown.
III
Finally, Mr. Bullard contends that his sentence is unconstitutional because
the trial court relied on prior convictions not alleged in his indictment to increase
USCA11 Case: 14-13365 Date Filed: 05/22/2015 Page: 5 of 6
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his sentence above the ten-year statutory maximum. We review such
constitutional sentencing issues de novo. See United States v. Steed, 548 F.3d 961,
968 (11th Cir. 2008). Because prior precedent forecloses Mr. Bullard’s argument,
we conclude that the district court’s imposition of the ACCA enhancement did not
violate Mr. Bullard’s constitutional rights. See, e.g., Smith, 775 F.3d at 1266 (“The
Constitution does not require that the government allege in its indictment and
prove beyond a reasonable doubt that [a defendant] had prior convictions for a
district court to use those convictions for purposes of enhancing a sentence.”)
(internal quotation marks omitted).
IV
Based on the foregoing, we affirm Mr. Bullard’s sentence.
AFFIRMED.
USCA11 Case: 14-13365 Date Filed: 05/22/2015 Page: 6 of 6 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_14-cv-00141/USCOURTS-caed-1_14-cv-00141-3/pdf.json | [
[
"Bren Sarver",
"Plaintiff"
],
[
"The City of Bakersfield",
"Defendant"
]
] | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
On January 9, 2015, the Court granted Plaintiff’s former attorneys’ motion to withdraw from
his representation. (Doc. 23) In addition, the Court ordered Plaintiff to show cause within 21 days
why the matter should not be dismissed for his failure to prosecute this action. Id. at 3.
On January 29, 2015, Plaintiff filed a letter disputing that he had failed to maintain contact
with his lawyers though he provided no explanation for why, if this was the case, he failed to respond
to the requests of counsel to allow them to substitute off the case or why he failed to respond to their
motion to withdraw. (Doc. 24) In any event, Plaintiff asserts that he has consulted a new lawyer who
is “actively reviewing” his case and that he intends to prosecute this action. Id. Thus, the order to
show case is DISCHARGED.
However, Plaintiff is ORDERED to either substitute counsel into this case to represent him or
to take action all necessary steps to prosecute this case on his own. He is advised that the longer he
waits to bring in new counsel, the less likely it is that the Court will be willing to extend the deadlines
BREN SARVER,
Plaintiff,
v.
THE CITY OF BAKERSFIELD,
Defendant.
)
)
)
)
)
)
)
)
)
Case No.: 1:14-cv-00141- JLT
ORDER DISCHARGING ORDER TO SHOW
CAUSE
(Doc. 24)
Case 1:14-cv-00141-JLT Document 25 Filed 02/02/15 Page 1 of 2
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set forth in the case schedule. Indeed, due to Plaintiff’s failure to allow his previous counsel to
withdraw without the need for a motion, the case has been at a virtual standstill since early December;
no further unnecessary delays will be tolerated.
Failure to comply with the Court’s order will result in the imposition of sanctions up to
and including dismissal of this action.
IT IS SO ORDERED.
Dated: February 2, 2015 /s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
Case 1:14-cv-00141-JLT Document 25 Filed 02/02/15 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_09-cv-03547/USCOURTS-caed-2_09-cv-03547-1/pdf.json | [
[
"Randy Grounds",
"Defendant"
],
[
"Marco Anthony Talamantes",
"Petitioner"
]
] | 1
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
MARCO ANTHONY TALAMANTES, No. CIV S-09-3547-CMK-P
Petitioner,
vs. ORDER
RANDY GROUNDS,
Respondent.
/
Petitioner, a state prisoner proceeding with retained counsel, brings this petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The parties are informed that they may, if all consent in writing, have this case
assigned to a United States Magistrate Judge for all purposes while preserving their right to
appeal any final judgment directly to the United States Court of Appeals for the Ninth Circuit or,
where appropriate, to the United States Court of Appeals for the Federal Circuit. See 28 U.S.C.
§ 636(c)(1), (3); see also Fed. R. Civ. P. 73(b)(1); E.D. Cal. Local Rule 305(a), (c). The parties
are advised that they are free to withhold consent and that doing so shall not result in any adverse
substantive consequences. See § 636(c)(2). If all parties consent to Magistrate Judge
jurisdiction, the action will be reassigned to the undersigned for all purposes, including entry of
Case 2:09-cv-03547-LKK -CMK Document 13 Filed 05/12/10 Page 1 of 2
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2
final judgment. See Local Rule 301 and Local Rule 305(b).
A review of the record reflects that all parties to this action have not filed a
written election regarding consent to the exercise of full jurisdiction by a Magistrate Judge.
Specifically, while respondent has consented (see Doc. 10), petitioner has not made any election.
The Clerk of the Court will be directed to provide petitioner with the appropriate form which the
parties shall then complete, indicating either consent or non-consent as he may choose, and file
with the court.
Accordingly, IT IS HEREBY ORDERED that:
1. The Clerk of the Court is directed to petitioner the court’s “Notice of
Availability of a Magistrate Judge to Exercise Jurisdiction and Appeal Instructions” along with
the accompanying consent election form; and
2. Petitioner shall complete and file the consent election form within 30 days
of the date of this order.
DATED: May 12, 2010
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
Case 2:09-cv-03547-LKK -CMK Document 13 Filed 05/12/10 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_10-cv-00156/USCOURTS-caed-1_10-cv-00156-3/pdf.json | [
[
"Loadholt",
"Defendant"
],
[
"Claudell Earl Martin",
"Plaintiff"
]
] | 1
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The Court is required to screen complaints brought by prisoners seeking relief against a 1
governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court
must dismiss a complaint or portion thereof if the prisoner 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).
-1-
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CLAUDELL EARL MARTIN,
Plaintiff,
v.
LOADHOLT,
Defendant.
/
CASE NO. 1:10-CV-00156-LJO-MJS PC
ORDER DENYING AS MOOT PLAINTIFF’S
MOTION TO HAVE PLEADINGS
SCREENED
(ECF No. 17)
On February 1, 2010, Plaintiff Claudell Earl Martin, a state prisoner proceeding pro
se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF
No. 1.)
Before the Court is Plaintiff’s February 27, 2012 Motion to Have Pleadings Screened
(ECF No. 17.) Plaintiff alleges that he filed this action 2 years ago and has not received 1
any notice as to whether Defendants are to be served.
Case 1:10-cv-00156-LJO-MJS Document 18 Filed 02/29/12 Page 1 of 2
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-2-
On February 16, 2012, the Court issued its Order Dismissing Plaintiff’s Complaint
with Leave to Amend. (ECF No. 15.)
Plaintiff’s instant Motion appears to duplicate his January 13, 2012 Motion for Status
which the Court denied as moot on February 17, 2012 (ECF No. 16.)
The Court will not direct service by the United States Marshal absent a pleading
containing cognizable claims for relief against the named Defendants.
Plaintiff’s Motion to Have Pleadings Screened is moot.
Accordingly, for the foregoing reasons, it is ORDERED that Plaintiff’s Motion to Have
Pleadings Screened (Doc. 17), is DENIED.
IT IS SO ORDERED.
Dated: February 29, 2012 /s/Michael J. Seng
ci4d6 UNITED STATES MAGISTRATE JUDGE
Case 1:10-cv-00156-LJO-MJS Document 18 Filed 02/29/12 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-4_14-cv-03610/USCOURTS-cand-4_14-cv-03610-2/pdf.json | [
[
"Louis Sanders",
"Petitioner"
],
[
"Gary Swarthout",
"Respondent"
]
] | 1
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
LOUIS SANDERS,
Petitioner,
v.
GARY SWARTHOUT,
Respondent.
Case No. 14-cv-03610-YGR (PR)
ORDER LIFTING STAY AND
DIRECTING RESPONDENT TO SHOW
CAUSE WHY THE WRIT SHOULD
NOT BE GRANTED
Petitioner, a state prisoner, has filed this pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
On August 29, 2014, the Court issued an Order granting Petitioner’s request for a stay of
proceedings while he returned to state court to exhaust his administrative remedies. Petitioner has
since informed the Court that his state proceedings had concluded. On April 10, 2015, he filed a
first amended habeas petition containing his exhausted claims.
Before the Court are Petitioner’s motion to lift the stay and his implied motion for leave to
file his first amended petition. Dkt. 8.
Good cause appearing, Petitioner’s motion to lift the stay is GRANTED. Petitioner is also
GRANTED leave to file his first amended petition. The Clerk of the Court is directed to mark
Petitioner’s first amended petition as filed on April 10, 2015, the date it was received.
The Clerk of the Court shall REOPEN this case and serve a copy of this Order and the first
amended petition and all attachments thereto (dkt. 10) 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 at his most current address.
Respondent shall file with this Court and serve upon Petitioner, within sixty (60) days of
the issuance of this Order, an Answer conforming in all respects to Rule 5 of the Rules Governing
Case 4:14-cv-03610-YGR Document 11 Filed 04/17/15 Page 1 of 2
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United States District Court
Northern District of California
Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondent
shall file with the Answer a copy of all portions of the relevant state records that have been
transcribed previously and that are relevant to a determination of the issues presented by the
petition.
If Petitioner wishes to respond to the Answer, he shall do so by filing a Traverse with the
Court and serving it on Respondent within sixty (60) days of his receipt of the Answer. Should
Petitioner fail to do so, the petition will be deemed submitted and ready for decision sixty (60)
days after the date Petitioner is served with Respondent’s Answer.
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 without prejudice a
complaint 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.
Extensions of time are not favored, though reasonable extensions will be granted. Any
motion for an extension of time must be filed no later than fourteen (14) days prior to the
deadline sought to be extended.
This Order terminates Docket No. 8.
IT IS SO ORDERED.
Dated:
______________________________________
YVONNE GONZALEZ ROGERS
United States District Judge
April 17, 2015
Case 4:14-cv-03610-YGR Document 11 Filed 04/17/15 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_06-cv-02190/USCOURTS-caed-2_06-cv-02190-2/pdf.json | [
[
"Robert Heidelbach",
"Respondent"
],
[
"Wayne Osborg",
"Petitioner"
]
] | 1
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Order
1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
WAYNE OSBORG,
Petitioner,
v.
ROBERT HEIDELBACH, Sheriff,
Respondent.
2:06-cv-02190-FCD-KJM
ORDER
Good cause appearing, IT IS HEREBY ORDERED THAT Respondent's response to
Petitioner's Petition for Writ of Habeas Corpus be filed on or before January 19, 2007.
Dated: December 19, 2006.
Case 2:06-cv-02190-FCD-KJM Document 13 Filed 12/20/06 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_13-cv-01406/USCOURTS-caed-2_13-cv-01406-1/pdf.json | [
[
"Brian L. Brown",
"Petitioner"
],
[
"Gary Swarthout",
"Respondent"
]
] | 1
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
BRIAN L. BROWN,
Petitioner,
v.
GARY SWARTHOUT,
Respondent.
No. 2:13-cv-1406 TLN CKD P
ORDER
Petitioner, a state prisoner proceeding pro se, has filed a request to proceed in forma
pauperis on appeal.
Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford
the costs of suit. Accordingly, IT IS HEREBY ORDERED that the request for leave to proceed
in forma pauperis on appeal is granted. See 28 U.S.C. § 1915(a).
Dated: August 5, 2014
2 / brow1406.4a
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
Case 2:13-cv-01406-TLN-CKD Document 25 Filed 08/05/14 Page 1 of 1 |
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[
"R. Anderson",
"Defendant"
],
[
"Sylester Williams",
"Plaintiff"
]
] | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
Plaintiff Sylester Williams is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
On June 30, 2014, Defendant filed a motion to modify the Scheduling Order and extend the
time in which Defendant may file a dispositive motion.
Good cause having been presented to the Court,
IT IS HEREBY ORDERED that Defendant is granted up to and including July 24, 2014, in
which to file a motion for summary judgment.
IT IS SO ORDERED.
Dated: June 30, 2014
UNITED STATES MAGISTRATE JUDGE
SYLESTER WILLIAMS,
Plaintiff,
v.
SERGEANT R. ANDERSON, et al.,
Defendant.
)
)
)
)
)
)
)
)
)
)
Case No.: 1:10-cv-01250-SAB (PC)
ORDER GRANTING DEFENDANT’S
REQUEST TO MODIFY SCHEDULING
ORDER
[ECF No. 53]
Case 1:10-cv-01250-SAB Document 54 Filed 06/30/14 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-15-02068/USCOURTS-ca10-15-02068-0/pdf.json | [
[
"Juan Manuel Carbajal-Moreno",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN MANUEL
CARBAJAL-MORENO,
Defendant - Appellant.
No. 15-2068
(D.C. Nos. 1:14-CV-00437-MV-KK &
2:99-CR-00777-MV-3)
(D. N.M.)
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before KELLY, LUCERO, and HARTZ, Circuit Judges.
Juan Manuel Carbajal-Moreno, a federal prisoner proceeding pro se, seeks to
appeal the district court’s dismissal for lack of jurisdiction of his motion filed
pursuant to 28 U.S.C. § 2255. We deny a certificate of appealability (“COA”) and
dismiss this proceeding.
Carbajal-Moreno was convicted on eight counts related to drug possession and
distribution. See United States v. Carbajal-Moreno, 87 F. App’x 700, 702 (10th Cir.
2004). On appeal, we remanded to the district court to vacate his conspiracy
* This order is not binding precedent except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
August 7, 2015
Elisabeth A. Shumaker
Clerk of Court
Appellate Case: 15-2068 Document: 01019472152 Date Filed: 08/07/2015 Page: 1
- 2 -
conviction. Id. at 706. On remand, the district court entered an amended judgment
in August 2004. See United States v. Carbajal-Moreno, 332 F. App’x 472, 473
(10th Cir. 2009). Carbajal-Moreno appealed the amended judgment, and we
affirmed. See id. at 474.
Carbajal-Moreno filed a pro se motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255 in April 2006, asserting violations of his Sixth
Amendment right to constitutionally effective counsel. See id. He claimed, inter
alia, that he had learned after his trial that his counsel, John Hedderman, had
surrendered his California Bar license before the trial. See United States v.
Carbajal-Moreno, 395 F. App’x 505, 509 (10th Cir. 2010). The district court denied
relief on the merits, and we denied a certificate of appealability (“COA”). See id.
at 511-12.
In May 2014, Carbajal-Moreno filed a second § 2255 motion, alleging that he
had newly discovered evidence supporting a new claim. He said he had recently
discovered that, before his trial began, his local New Mexico counsel had informed
the district court of Hedderman’s unlicensed status. Yet no one at that time—neither
the court, the prosecutor, nor his local counsel—had shared that information with
Carbajal-Moreno. And he was allowed to proceed to trial with unlicensed counsel.
In his motion, he asserted a violation of his right to counsel of his choice. The
district court construed the motion as second or successive and unauthorized, and
dismissed it for lack of jurisdiction.
Appellate Case: 15-2068 Document: 01019472152 Date Filed: 08/07/2015 Page: 2
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Carbajal-Moreno must obtain a COA to pursue an appeal. See United States v.
Harper, 545 F.3d 1230, 1233 (10th Cir. 2008). We liberally construe his pro se
application for a COA. See Hall v. Scott, 292 F.3d 1264, 1266 (10th Cir. 2002).
Because the district court’s ruling rests on procedural grounds, he must show both
“that jurists of reason would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). He fails to satisfy the latter requirement.
The district court lacks jurisdiction to address the merits of an unauthorized
second or successive § 2255 motion. See In re Cline, 531 F.3d 1249, 1251 (10th Cir.
2008). Carbajal-Moreno does not dispute that he previously filed a first § 2255
motion and that he has not sought authorization from this court to file a second
§ 2255 motion. He claims that his motion is not a second § 2255 motion because
(1) it raises a claim he did not assert in his first motion filed in 2006; and (2) it was
timely filed under 28 U.S.C. § 2255(f)(4). Neither of these contentions demonstrates
that the district court’s procedural ruling was debatable.1
1
Carbajal-Moreno also argues that his claim is meritorious under United States
v. Collins, 920 F.2d 619, 625 (10th Cir. 1990), in which we held that “[w]hen a court
unreasonably or arbitrarily interferes with an accused[’s] right to retain counsel of his
choice, a conviction attained under such circumstances cannot stand, irrespective of
whether the defendant has been prejudiced.” But the question before the district
court was whether it lacked jurisdiction because Carbajal-Moreno’s motion was
second or successive and unauthorized.
Appellate Case: 15-2068 Document: 01019472152 Date Filed: 08/07/2015 Page: 3
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“[A] prisoner generally is entitled to only one adequate and effective
opportunity to test the legality of his detention, in his initial § 2255 motion.” Prost v.
Anderson, 636 F.3d 578, 586 (10th Cir. 2011). And “Congress has specified that
only certain claims it has deemed particularly important—those based on newly
discovered evidence suggestive of innocence, or on retroactively applicable
constitutional decisions—may be brought in a second or successive motion.” Id.
at 583-84. Thus, § 2255(h) does not authorize a prisoner to file a second motion
because it asserts a claim that he failed to raise in his first motion. See id. at 589
(“[I]n subsection (h) Congress identified the excuses it finds acceptable for having
neglected to raise an argument in an initial § 2255 motion.”).
Carbajal-Moreno’s first § 2255 motion was decided on the merits. His second
motion once again asserts error in his convictions. It is therefore subject to the
authorization requirements of 28 U.S.C. § 2255(h). See United States v. Baker,
718 F.3d 1204, 1206 (10th Cir. 2013) (explaining that motions asserting or
reasserting claims of error in a prisoner’s conviction are subject to the § 2255(h)
authorization requirements). To the extent that Carbajal-Moreno contends his new
claim is based on newly discovered evidence, he must seek this court’s authorization
to file a second § 2255 motion in the district court. See 28 U.S.C. § 2255(h);
28 U.S.C. § 2244(b)(3).
Nor is the timeliness of a claim under § 2255(f)(4) a substitute for satisfying
the requirements of § 2255(h). Subsection (f)(4) provides that the one-year period of
Appellate Case: 15-2068 Document: 01019472152 Date Filed: 08/07/2015 Page: 4
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limitation for a § 2255 motion may begin to run from “the date on which the facts
supporting the claim or claims presented could have been discovered through the
exercise of due diligence.” But a second § 2255 motion must be both timely under
subsection (f) and authorized under subsection (h). See Dodd v. United States,
545 U.S. 353, 359 (2005) (stating that the limitations period in former ¶ 6(3) of
§ 2255 (now codified at § 2255(f)(3)) applies to all motions under § 2255, initial as
well as second or successive motions, and noting the potential difficulty of
complying with the restrictions on second or successive motions and the one-year
limitations period).
The district court concluded that Carbajal-Moreno’s § 2255 motion was a
second motion under that section and had not been authorized by this court. It
therefore dismissed the motion for lack of jurisdiction. He fails to show that
reasonable jurists would debate the correctness of the district court’s procedural
ruling. Accordingly, we deny Carbajal-Moreno’s application for a COA and dismiss
the appeal.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
Appellate Case: 15-2068 Document: 01019472152 Date Filed: 08/07/2015 Page: 5 |
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[
"Commissioner of Social Security",
"Defendant"
],
[
"Tommy Troy Gutierrez",
"Plaintiff"
]
] | 1
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
TOMMY TROY GUTIERREZ,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
No. 2:14-cv-1968-KJN
ORDER
Plaintiff seeks judicial review of a final decision by the Commissioner of Social Security
(“Commissioner”) denying plaintiff’s application for Disability Insurance Benefits (“DIB”) under
Title II of the Social Security Act (“Act”).1 In his motion for summary judgment, plaintiff
principally contends that the Commissioner erred by finding that plaintiff was not disabled from
January 8, 2008, plaintiff’s alleged disability onset date, through October 26, 2012, the date of the
final administrative decision. (ECF No. 14.) The Commissioner filed an opposition to plaintiff’s
motion and a cross-motion for summary judgment. (ECF No. 15.) No optional reply brief was
filed by plaintiff.
1
This action was initially referred to the undersigned pursuant to E.D. Cal. L.R. 302(c)(15), and
both parties voluntarily consented to proceed before a United States Magistrate Judge for all
purposes. (ECF Nos. 8, 11.)
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2
For the reasons discussed below, the court GRANTS IN PART plaintiff’s motion for
summary judgment, DENIES the Commissioner’s cross-motion for summary judgment, and
remands the action for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
I. BACKGROUND
Plaintiff was born on June 2, 1961, has an eighth grade education, is able to communicate
in English, and previously worked primarily as a crane operator.
2
(Administrative Transcript
(“AT”) 16, 21, 32-33, 122, 242, 491.) On February 23, 2011, plaintiff applied for DIB, alleging
that his disability began on January 8, 2008, and that he was disabled primarily due to a back
injury. (AT 13, 58-59, 149.) After plaintiff’s application was initially partially approved and
then denied on reconsideration, plaintiff requested a hearing before an administrative law judge
(“ALJ”), which took place on October 2, 2012, and at which plaintiff, represented by an attorney,
and a vocational expert (“VE”) testified. (AT 28-56.) In a decision dated October 26, 2012, the
ALJ determined that plaintiff had not been disabled, as defined in the Act, from January 8, 2008,
plaintiff’s alleged disability onset date, through the date of the ALJ’s decision. (AT 13-22.) The
ALJ’s decision became the final decision of the Commissioner when the Appeals Council denied
plaintiff’s request for review on July 21, 2014. (AT 1-4.) Thereafter, plaintiff filed this action in
federal district court on August 22, 2014, to obtain judicial review of the Commissioner’s final
decision. (ECF No. 1.)
II. ISSUES PRESENTED
On appeal, plaintiff contends that the ALJ improperly evaluated the medical opinion
evidence.
III. LEGAL STANDARD
The court reviews the Commissioner’s decision to determine whether (1) it is based on
proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record
as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial
2 Because the parties are familiar with the factual background of this case, including plaintiff’s
medical history, the court does not exhaustively relate those facts in this order. The facts related
to plaintiff’s impairments and treatment will be addressed insofar as they are relevant to the issues
presented by the parties’ respective motions.
Case 2:14-cv-01968-KJN Document 16 Filed 10/15/15 Page 2 of 10
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3
evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340
F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th
Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is
responsible for determining credibility, resolving conflicts in medical testimony, and resolving
ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citation omitted). “The
court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational
interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).
IV. DISCUSSION
A. Summary of the ALJ’s Findings
The ALJ evaluated plaintiff’s entitlement to DIB pursuant to the Commissioner’s standard
five-step analytical framework.3 As an initial matter, the ALJ noted that plaintiff met the insured
3 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social
Security program. 42 U.S.C. §§ 401 et seq. Supplemental Security Income is paid to disabled
persons with low income. 42 U.S.C. §§ 1382 et seq. Both provisions define disability, in part, as
an “inability to engage in any substantial gainful activity” due to “a medically determinable
physical or mental impairment. . . .” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A parallel
five-step sequential evaluation governs eligibility for benefits under both programs. See 20
C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-
42 (1987). The following summarizes the sequential evaluation:
Step one: Is the claimant engaging in substantial gainful activity? If so, the
claimant is found not disabled. If not, proceed to step two.
Step two: Does the claimant have a “severe” impairment? If so, proceed to step
three. If not, then a finding of not disabled is appropriate.
Step three: Does the claimant’s impairment or combination of impairments meet or
equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the
claimant is automatically determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past relevant work? If so, the
claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to perform any
other work? If so, the claimant is not disabled. If not, the claimant is disabled.
Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).
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status requirements of the Act for purposes of DIB through June 30, 2013. (AT 15.) At the first
step, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since January
8, 2008, plaintiff’s alleged disability onset date. (Id.) At step two, the ALJ found that plaintiff
had the following severe impairments: degenerative disc disease and heart impairment. (Id.)
However, at step three, the ALJ determined that plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of an impairment listed in
20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.)
Before proceeding to step four, the ALJ assessed plaintiff’s residual functional capacity
(“RFC”) as follows:
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) as follows:
simple, routine, repetitive tasks; could sit six hours; stand/walk six
hours each with normal breaks; lift/carry 20 pounds occasionally
and ten pounds frequently; could occasionally climb ladders, ropes
and scaffolds; could occasionally stoop, kneel, crouch or crawl.
(AT 16.)
At step four, the ALJ found that plaintiff was unable to perform any past relevant work.
(AT 20.) However, at step five, the ALJ determined, based on the VE’s testimony, that,
considering plaintiff’s age, education, work experience, and RFC, there were jobs that existed in
significant numbers in the national economy that plaintiff could perform. (AT 21-22.)
Accordingly, the ALJ concluded that plaintiff had not been under a disability, as defined
in the Act, from January 8, 2008, plaintiff’s alleged disability onset date, through October 26,
2012, the date of the ALJ’s decision. (AT 22.)
B. Plaintiff’s Substantive Challenges to the Commissioner’s Determinations
In this case, plaintiff injured his back at work while lifting heavy equipment on January 8,
2008. (AT 242.) An MRI study showed a large disc protrusion at level L4-L5 with severe nerve
recompression and a transitional vertebral body, and plaintiff ultimately underwent a discectomy
The claimant bears the burden of proof in the first four steps of the sequential evaluation
process. Bowen, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential
evaluation process proceeds to step five. Id.
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back surgery in April 2008. (AT 242, 734.) Plaintiff testified that his back pain improved after
the surgery, but that the improvement was short-lived before the pain became worse again around
the end of 2008. (AT 47.) All parties agree that plaintiff suffers from a back impairment, but the
pertinent question is the degree of plaintiff’s symptoms and functional limitations resulting from
that impairment.4 As noted above, plaintiff contends that the ALJ improperly evaluated the
medical opinion evidence in that regard.
The weight given to medical opinions depends in part on whether they are proffered by
treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195,
1201-02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Ordinarily, more
weight is given to the opinion of a treating professional, who has a greater opportunity to know
and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir.
1996).
To evaluate whether an ALJ properly rejected a medical opinion, in addition to
considering its source, the court considers whether (1) contradictory opinions are in the record;
and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a
treating or examining medical professional only for “clear and convincing” reasons. Lester, 81
F.3d at 830-31. In contrast, a contradicted opinion of a treating or examining professional may be
rejected for “specific and legitimate” reasons. Lester, 81 F.3d at 830. While a treating
professional’s opinion generally is accorded superior weight, if it is contradicted by a supported
examining professional’s opinion (supported by different independent clinical findings), the ALJ
may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing
Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The regulations require the ALJ to
weigh the contradicted treating physician opinion, Edlund, 253 F.3d at 1157,5except that the ALJ
4
Plaintiff also had heart valve replacement surgery in 2000, but testified at the hearing that he did
not experience any known heart problems after the surgery, that he was not on any heart
medications at the time of the hearing, and that a cardiologist told plaintiff in 2008 that he did not
see any ongoing trouble with plaintiff’s heart. (AT 35-36.)
5
The factors include: (1) length of the treatment relationship; (2) frequency of examination; (3)
nature and extent of the treatment relationship; (4) supportability of diagnosis; (5) consistency;
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in any event need not give it any weight if it is conclusory and supported by minimal clinical
findings. Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (treating physician’s conclusory,
minimally supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a
non-examining professional, without other evidence, is insufficient to reject the opinion of a
treating or examining professional. Lester, 81 F.3d at 831.
In this case, the ALJ reasonably rejected the September 27, 2012 opinion by plaintiff’s
treating physician, Dr. Douglas Abeles, indicating that plaintiff is completely disabled and unable
to work even in a sedentary position, because it consists of a conclusory check-the-box form
unsupported by any meaningful clinical findings and medical rationale. (AT 860-62.) The brief
letter accompanying the form likewise fails to provide adequate support and reasoning for the
extreme limitations suggested by Dr. Abeles. (AT 863-64.) To be sure, the record also contains
copious treatment notes by Dr. Abeles, but those treatment notes are in large respects inconsistent
with Dr. Abeles’s severe September 27, 2012 assessment, which found, inter alia, that plaintiff,
as of January 8, 2008, could only sit for 3 hours and stand for 2 hours total in an 8-hour work day.
(AT 860-62.) Notably, during numerous visits in the relevant period, Dr. Abeles stated that
plaintiff was capable of desk work and/or that plaintiff had no limitations on the total number of
hours he could sit, stand, or walk, as long as he had a sit-stand option. (See, e.g., AT 511, 525,
535, 541, 547, 554, 561, 564, 569, 579, 582, 585, 621.)6 Additionally, the September 27, 2012
assessment’s restriction to only 3 hours of sitting is inconsistent with plaintiff’s own testimony
that he watches about 12-16 hours of television a day, plays online poker, and took a road trip
with his parents to Las Vegas in 2010 to play poker. (AT 42-45.) Furthermore, although Dr.
Abeles opined that plaintiff could only occasionally lift 10 pounds, plaintiff himself thought he
could lift 15-20 pounds. (AT 18, 162, 861.) Therefore, the ALJ properly discounted Dr. Abeles’s
opinion.
(6) specialization. 20 C.F.R. § 404.1527.
6
Plaintiff also appears to contend that the ALJ failed to properly consider Dr. Abeles’s treatment
notes and the various assessments contained therein. That argument lacks merit, because even if
the ALJ did not discuss each and every treatment visit on an individual basis, the ALJ fairly
summarized the treatment notes and clearly considered them in his analysis.
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However, for the reasons discussed below, the court concludes that the ALJ failed to
provide specific and legitimate reasons for discounting the opinion of consultative examiner Dr.
Satish Sharma. (AT 273-77.) Dr. Sharma personally examined plaintiff on July 14, 2011. (AT
273.) Plaintiff complained of persistent low back pain, which at times radiated to his lower
extremities, as well as intermittent numbness of the lower extremities. (Id.) Upon a physical
examination, Dr. Sharma noted tenderness to palpation of the lumbar spine and paravertebral
region; pain on forward flexion at 60 degrees and extension at 20 degrees; and a positive straightleg raising test on the left, with pain and numbness of the left lower extremity at 60 degrees. (AT
275.) Dr. Sharma also documented decreased strength and sensation in the L4-5 distribution of
the left lower extremity. (AT 276.) Plaintiff was observed to walk with a limp on the left lower
extremity and could not do toe walking or heel walking. (Id.) Based on his examination, Dr.
Sharma diagnosed plaintiff with low back pain consistent with L5-S1 radiculopathy, status post
discectomy. (Id.) He opined that plaintiff could lift 20 pounds occasionally and 10 pounds
frequently; stand and walk for 4 hours per day with normal breaks; sit for 6 hours per day; and
bend/stoop occasionally. (Id.)
In discussing Dr. Sharma’s opinion, the ALJ stated:
I give this assessment substantial weight. However, the part of the
assessment restricting the claimant to four hours of standing and
walking is given little weight. This is not consistent with the
evidence in the record. During the claimant’s interview with the
Social Security Administration, the interviewer noted that the
claimant had no problem sitting, standing or walking. The
interviewer indicated that the claimant had no obvious physical
difficulties (Exhibit 8E3).
(AT 17.) The observation of a layperson, made during a relatively brief interview with the
claimant, is insufficient, by itself, to discount the opinion of a medical provider. To be sure, in
other portions of the decision, the ALJ also references plaintiff’s 5/5 motor strength at certain
treatment visits and his ability to go shopping and drive a car. (AT 17.) But the ALJ does not
explain why a finding of full motor strength is necessarily inconsistent with a 4-hour per day
walking restriction, which may be necessitated by symptoms unrelated to strength, such as pain
and numbness. Also, the ALJ did not make any specific findings regarding the amount of time
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plaintiff spent shopping and driving, and it is not implausible that a person limited to four hours
of standing/walking would be able to accomplish some driving and shopping. Finally, the ALJ
could not rely solely on the opinion of Dr. Linder, a non-examining state agency physician who
opined that plaintiff could stand/walk for 6 hours per day with normal breaks, to discount Dr.
Sharma’s opinion, particularly given that another state agency physician, Dr. Woodcock, assessed
plaintiff as capable of standing/walking about 2 hours per day with normal breaks. (AT 300,
659.)
The court cannot find the ALJ’s error to be harmless, because the ALJ found plaintiff
capable of light work with an ability to stand/walk six hours per day with normal breaks, and
never solicited testimony from the VE regarding plaintiff’s ability to perform other work with a
hypothetical limitation of 4 hours of standing/walking per day. See SSR 83-10, at *6 (“the full
range of light work requires standing or walking, off and on, for a total of approximately 6 hours
of an 8-hour workday”).
Nevertheless, the court declines plaintiff’s invitation to remand the case for an award of
benefits. Generally, if the court finds that the ALJ’s decision was erroneous or not supported by
substantial evidence, the court must follow the “ordinary remand rule,” meaning that “the proper
course, except in rare circumstances, is to remand to the agency for additional investigation or
explanation.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). A
remand for an award of benefits is inappropriate where the record has not been fully developed or
there is a need to resolve conflicts, ambiguities, or other outstanding issues. Id. at 1101.
As an initial matter, even if Dr. Sharma’s opinion is fully credited, the record does not
permit the court, as a matter of law, to conclude that plaintiff would necessarily be disabled
during all or part of the relevant period. Further development of the record, such as supplemental
vocational expert testimony, would be necessary.
Moreover, although the ALJ’s decision provided insufficient reasons for discounting Dr.
Sharma’s opinion, there is evidence in the record that may plausibly suggest that plaintiff is
capable of standing/walking more than four hours per day. By way of example, a post-surgery
May 11, 2009 EMG study was normal with no evidence of radiculopathy. (AT 259-61.) At an
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August 2, 2011 consultative psychiatric examination, plaintiff’s posture and gait were also found
to be within normal limits, and one of plaintiff’s other treating physicians noted on December 22,
2011, that plaintiff had a normal posture and gait; had normal reflexes and no sensory deficits;
walked without any external support or devices; could walk on his heels and toes; and further
observed that plaintiff’s subjective symptoms were moderately in excess of the objective findings.
(AT 280, 326.) Because Dr. Sharma’s standing/walking restriction appeared to rely in large part
on plaintiff’s gait and symptoms of radiculopathy, the above-mentioned evidence at least
arguably undermines Dr. Sharma’s assessment. Although the Commissioner pointed to some of
that evidence in its cross-motion for summary judgment on appeal, the fact remains that the ALJ
did not rely on such evidence to discount Dr. Sharma’s opinion. See Pinto v. Massanari, 249 F.3d
840, 847-48 (9th Cir. 2001) (court may generally not affirm the denial of benefits on a ground not
invoked by the ALJ).
Therefore, in light of the ambiguities, conflicts, and outstanding issues in the record, the
court finds it appropriate to follow the ordinary remand rule and remand for further proceedings –
more specifically, for further consideration of Dr. Sharma’s opinion in conjunction with the other
evidence in the record. The ALJ may also further develop the record evidence, as deemed
appropriate. Importantly, the court expresses no opinion regarding how the evidence should
ultimately be weighed, and any ambiguities or inconsistencies resolved, on remand. The court
also does not instruct the ALJ to credit any particular opinion or testimony. The ALJ may adopt
Dr. Sharma’s opinion in full, in part, or not at all, provided that the ALJ’s decision complies with
applicable law and is supported by substantial evidence in the record as a whole.
V. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that:
1. Plaintiff’s motion for summary judgment (ECF No. 14) is GRANTED IN PART.
2. The Commissioner’s cross-motion for summary judgment (ECF No. 15) is DENIED.
3. The action is remanded for further administrative proceedings consistent with this
order pursuant to sentence four of 42 U.S.C. § 405(g).
4. Judgment is entered for plaintiff.
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5. The Clerk of Court shall close this case.
IT IS SO ORDERED.
Dated: October 15, 2015
Case 2:14-cv-01968-KJN Document 16 Filed 10/15/15 Page 10 of 10 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-alnd-5_02-cv-08019/USCOURTS-alnd-5_02-cv-08019-0/pdf.json | [
[
"Joey Lynn Stephens",
"Petitioner"
],
[
"United States of America",
"Respondent"
]
] | IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JOEY LYNN STEPHENS, )
)
Petitioner, )
) Civil Action Number
vs. ) 5:02-8019-cv-UWC-RRA
)
THE UNITED STATES OF AMERICA, )
)
Respondent. )
MEMORANDUM OPINION
The magistrate judge filed a Report and Recommendation on March 15, 2005,
recommending that Petitioner’s motion to vacate or set aside the conviction or sentence under
28 U.S.C. § 2255 be denied, because the U.S. did not breach its plea agreement by declining
to file a Rule 35 Motion, because the plea agreement gave the U.S. the sole discretion in
determining whether to file a Rule 35 motion. Petitioner did not file objections to the
Magistrate’s Report and Recommendation.
Having carefully reviewed the record, the Court is of the opinion that the magistrate
judge's Report and Recommendation is due to be and is hereby ADOPTED and the
recommendation is ACCEPTED. Accordingly, Petitioner’s motion to vacate or set aside
FILED
2005 Mar-31 PM 04:50
U.S. DISTRICT COURT
N.D. OF ALABAMA
Case 5:02-cv-08019-UWC Document 3 Filed 03/31/05 Page 1 of 2
2
the conviction or sentence under 28 U.S.C. § 2255 will be DENIED, by separate order.
Done this 31st day of March, 2005.
______________________________
U.W. Clemon
Chief United States District Judge
Case 5:02-cv-08019-UWC Document 3 Filed 03/31/05 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_06-cv-06493/USCOURTS-cand-3_06-cv-06493-23/pdf.json | [
[
"Gennady Brin",
"Plaintiff"
],
[
"Ranjiv Jain",
"Plaintiff"
],
[
"Madhav Kakani",
"Plaintiff"
],
[
"Oracle Corporation",
"Defendant"
]
] | 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
MADHAV KAKANI, GENNADY BRIN
and RANJIV JAIN, on behalf of themselves
and all others similarly situated,
Plaintiffs,
v.
ORACLE CORPORATION,
Defendant. /
No. C 06-06493 WHA
ORDER RE ATTORNEY’S FEES
ON CLASS ACTION
SETTLEMENT
INTRODUCTION
In this action alleging violations of California labor laws and the federal Fair Labor
Standards Act, plaintiffs move for approval of award of attorney’s fees and costs as set forth in
the second amended settlement agreement. The excessive amount of attorney’s fees requested,
however, cannot be justified. Accordingly, the motion for attorney’s fees and costs is approved
in the lower amount of $664,000 for fees and $75,000 for costs.
STATEMENT
This wage-and-hour action, filed on October 17, 2006, alleged a FLSA opt-in collective
action and California state-law claims on behalf of a class of current and former California
workers. Plaintiffs Madhav Kakani, Ranjiv Jain, and Gennady Brin, three former employees of
defendant Oracle Corporation, sued for unpaid overtime and meal and rest periods due to
alleged misclassification of “sales consultants” as exempt employees. Plaintiffs filed their
motion for class certification on May 3, 2007.
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While that motion was pending, parties filed their first joint motion for preliminary
approval of settlement on May 30. A hearing on the motion was held on June 19. By that time,
the proposal settlement had expanded to include a nationwide class of about ten job
classifications (although the complaint remained unchanged and narrower). Nationwide, the
proposal would have extinguished all wage-and-hour claim rights of putative class members
regardless of whether they had filed a claim or even received notice of the suit. Surprisingly,
there was no meeting of the minds as to the scope of the release — defendants contended that it
would bar all future state-law claims throughout America, while plaintiffs contended that it
would only bar California and FLSA claims. The settlement also was on a “claims-made”
basis. Oracle would make available a pool of nine million dollars from which all claims would
be paid. Any residue would revert to Oracle. Regardless of the claims paid, however,
plaintiffs’ counsel would have received $2.25 million in fees (25% of the total amount
theoretically “available”). Notice to class members would have been inadequate under the first
settlement, and the period given to putative class members to learn about the case and to opt
out or file claims was far too short. The settlement allowed only 35 days from the date of
mailing of notice to file objections and opt-out notices, and 45 days to submit claims. The
proposed notice was nearly incomprehensible, with its tangle of subclasses, inattention to the
serious jurisdictional issues in the state-law claims, and general legalese rhetoric. Even class
members who received no notice at all or received late notices because of delivery problems
would lose everything and recover nothing.
Under the original agreement, California claimants would have received at least twice as
much as non-California claimants. No cogent reason was given to justify the disparity in
treatment between Californian claimants and Non-Californian claimants. In addition, class
members would forfeit about 87.7% of their maximum claims, settling for nine million dollars,
while the maximum recovery was about $52.7 million.
In short, the proposal was collusive. Oracle would have wiped out its national wageand-hour liabilities off its books, counsel would have received a bonanza, and a vast number of
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absent class members would have received little or nothing in exchange for forfeiture of their
actions. The proposal was rejected at the threshold by an order dated June 19.
An amended settlement agreement was submitted on June 29, and a further hearing was
held on July 5. Some of the Court’s concerns had been addressed, but others remained. The
parties agreed to submit a further amended settlement agreement, which was received on July
16. An order dated August 2 found that the parties had remedied many of the problems outlined
above and had reached a settlement that was sufficiently fair and reasonable to warrant
preliminary approval. Preliminary approval of the three subclasses was granted. For settlement
purposes the following three subclasses were certified: (1) the California overtime class
comprised of all employees who worked at Oracle in California between October 17, 2002, and
the time their job codes were made eligible for overtime who were denied overtime and waiting
time penalties; (2) the California penalties class comprised of all employees who worked at
Oracle in California between October 17, 2002, and the date of preliminary approval of this
settlement who were denied meals and rest periods; and (3) the FLSA collective action class
comprised of all employees who were employed by Oracle nationwide outside of California
between October 17, 2003, and the dates Oracle made those individuals eligible for overtime.
The August 2 order also informed the parties that since the attorney’s fees would be
uncertain until the total amount of claims were known, that any motion for attorney’s fees
should be filed with the motion for final approval for settlement. Plaintiffs’ counsel submitted
its motion for attorney’s fees along with the motion for final approval accordingly. The instant
order resolves that motion.
ANALYSIS
1. LEGAL STANDARD.
The district court has discretion in common-fund cases to award attorney’s fees in the
amount of a percentage of the common-fund or using the lodestar method. No matter which
route is chosen by the district court, the award “must be supported by findings that take into
account all of the circumstances of the case.” The lodestar method gives a measure of counsel’s
time and investment in the case and may provide “a check of the reasonableness of [a]
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In Vizcaino, the Ninth Circuit found that of 24 common-fund cases, 83% ranged between 1.0-4.0,
while 54% ranged between 1.5-3.0.
2
All internal citations are omitted in this order.
4
percentage award.” The risks involved in the case and the length of the litigation are proper
issues to consider when determining a multiplier under the lodestar method. Although the range
of multipliers used by district courts in common-fund cases varies widely, an overwhelming
majority of district courts have used between 1.0-4.0 as the multiplier.1 Vizcaino v. Microsoft
Corp., 290 F.3d 1043, 1047–1051 (9th Cir. 2002).2
In the Ninth Circuit, a district court should consider the following factors that are not
subsumed in the initial lodestar calculation when considering a proper multiplier:
(1) the time and labor required; (2) the novelty and
difficulty of the questions involved; (3) the skill requisite to
perform the legal service properly; (4) the preclusion of
other employment by the attorney due to acceptance of the
case; (5) the customary fee; (6) whether the fee is fixed or
contingent; (7) time limitations imposed by the client or the
circumstances; (8) the amount involved and the results
obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the “undesirability” of the case; (11) the
nature and length of the professional relationship with the
client; and (12) awards in similar cases.
The factors that are presumably subsumed in the initial lodestar calculation include: (a) the
novelty and complexity of the issues; (b) the quality of representation; (c) the special skill of
counsel; and (d) the results obtained. Although a district court need not mechanically go
through each of the factors, it should consider those factors not subsumed in the initial lodestar
calculation when determining a multiplier. Morales v. City of San Rafael, 96 F.3d 359, n.8, n.9,
and n.10 (9th Cir. 1996). A brief explanation of how the district court arrived at its lodestar
calculation should be given, but an “elaborately reasoned, calculated, or worded order” is
unnecessary. Cunningham v. County of Los Angeles, 96 F.3d 359, 484 (9th Cir. 1988). This
order will review those factors for which a proper record has been submitted by counsel.
2. COUNSEL’S FEES AND COSTS.
Plaintiffs’ counsel request an award of attorney’s fees in the amount of $1,858,497.03,
or 25% of the value of the claims actually made, plus costs in the amount of $75,000. Counsel
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also point out that, due to their inadvertence, the methodology used to calculate the 25% of
claims made was incorrectly portrayed in an example formula set forth in the second amended
agreement (Br. n.1). If the formula in the agreement were actually used, plaintiffs’ counsel
would receive $1,531,529.02, or 20.6% of the value of the claims actually made. Counsel
requests the Court overlook this mistake and award the full 25% of the claims actually made.
There are additional inconsistencies. In their motion for attorney’s fees, plaintiffs state:
Plaintiffs’ counsel’s lodestar currently is $399,745.50, and
Plaintiffs’ counsel incurred costs in the amount of
$85,002.78. Plaintiffs’ counsel estimates that the lodestar
will exceed $500,000 by the time of the final approval
hearing, due to the need to work with the settlement
administrator, to be available to communicate with class
members, and to prepare for and attend the hearings on this
Motion and on final approval (Br. 8).
The declaration of counsel Todd Schneider, however, states:
Exhibit 1 shows that Plaintiff’s counsel current lodestar is
$282,295.50. Exhibit 2 is a true and correct accounting of
Schneider & Wallace’s costs in this action. The costs
incurred by our firm in bringing this case totaled
$80,150.07. . . .Plaintiffs’ counsel estimated that the
lodestar will exceed $332,000 by the time of the final
approval hearing, due to the need to work with the
settlement administrator, be available to communicate with
class members, and prepare for and appear at the hearing
on this Motion and final approval (Schneider Decl. ¶ 6).
Both Exhibits support Schneider’s declaration. Given the pattern of alleged inadvertence in the
paperwork in this case, dating back to the collusive agreement that supposedly did not mean
what it said, this order finds the discrepancy between the numbers quoted in counsel’s brief and
Schneider’s declaration disturbing. No explanation is given for the difference, and the fees and
costs in both the declaration and brief seem to cover the same dates. This order will hold
counsel to the lodestar sworn to in Attorney Schneider’s declaration.
Plaintiffs’ counsel claim that the attorney’s fees requested are commensurate with the
amount of work and risk associated with representing plaintiffs in this action. They also
contend that the lodestar method supports an award of $1,858,497.03, or 25% of the value of
the total claims made. This order finds otherwise.
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The estimated lodestar of $332,000, given in Schneider’s declaration, would yield a
multiplier of 5.6 for an award of $1,858,497.03. This number is unjustifiably high given the
circumstances surrounding this case and the risk taken on by counsel in representing the class.
We must remember that the award sought by plaintiffs’ counsel is ultimately money that
belongs to the class members. Any unwarranted amount awarded to plaintiffs’ counsel comes
directly out of their pockets. Counsel’s request is simply unfair to the individuals whose injury
led to the present settlement.
For the following reasons, this order finds that a multiplier of 2.0 is commensurate with
the circumstances surrounding this case. Accordingly, using a multiplier of 2.0 with the
$332,000 lodestar given in Attorney Schneider’s declaration yields an amount of $664,000.
A. Awards In Similar Cases.
Plaintiffs’ counsel request for a multiplier of 5.6 is entirely out of line with analogous
multipliers awarded in other common-fund cases. In Vizcaino, the Ninth Circuit found that in
only three of the twenty-four cases analyzed (i.e. 12.5% of the cases), was a multiplier beyond
4.0 even awarded. Conversely, a multiplier of 2.0 falls within the range of 1.0 to 4.0 typically
awarded in common-fund cases. See Vizcaino, 290 F.3d. at 1051. Additionally, for the reasons
set forth below, the present action does not qualify as on one of the extraordinary situations
where a multiplier greater than 4.0 should be used.
Plaintiffs’ counsel contends that had the instant action been brought by an individual
plaintiff, counsel would likely have been entitled to one third of any recovery. The instant
action, though, is not an individual action, it is a class action. Therefore, there are monumental
economies of scale that result in increased efficiencies in counsel’s expense of time and
resources. This is an important advantage of a class action suit.
B. Risk Associated With Case.
In common-fund cases, a lodestar may be enhanced to reflect the risk of non-payment.
Attorneys should be properly incentivized to take on worthwhile cases where the probability of
payment is low or uncertain. The riskiness of a case has a direct correlation on its
“undesirability,” one of the factors highlighted by the Ninth Circuit when determining a proper
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multiplier. The facts in this case, however, do not justify the multiplier requested by plaintiffs’
counsel. Wage and hour cases are populace in our courts and are far from being undesirable.
Many practitioners would have taken on the present case. Unlike other actions, such as
consumer fraud or securities fraud, the present action centers around a relatively predicable set
of parameters involving employee classifications.
The claims in this suit may readily be evaluated by determining whether the job
specifications of the class members meet the requirements set forth in the relevant statute (i.e.
FLSA or the California Labor Code). Plaintiffs’ counsel was most likely well informed of any
potential difficulties and obstacles that laid in the path to obtaining a favorable and anticipated
settlement. Such circumstances are much less risky than the situation where counsel is in the
dark regarding the likelihood of ultimately prevailing.
C. Time and Labor Required.
Generally, a lawyer’s investment of time and labor in a suit is more limited in the case
of early settlement. See Vizcaino, 290 F.3d at 1050. The primary work conducted by plaintiffs’
counsel includes: (a) twelve depositions of Oracle employees; (b) review of 20,000 pages of
documents; and (c) review of pay and time records for the class (Br. 1). Although plaintiff’s
counsel maintains that significant time and effort was exhausted conducting this discovery, the
first preliminary hearing motion for the original settlement agreement was filed before any
order was even issued regarding class certification. No motion to dismiss or motion for
summary judgment was made. In addition, plaintiffs’ counsel contend that they “obtained this
settlement efficiently, affording redress to the class member swiftly,” (Br. 9) nonetheless, had it
not been for the parties’ unacceptable settlement terms outlined above, this case may have
concluded long before its current course. Thus, counsel could have spent significantly less time
than the 762.9 hours (billed out at a rate of $450.00 per hour) detailed in Attorney Schneider’s
declaration on this action, thereby saving the class members a considerable amount of money.
D. Results Obtained.
Plaintiffs’ counsel also argue that a high multiplier is appropriate because they were
“able to settle this case for a substantial amount under the circumstances” and because their firm
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is “one of the leading plaintiffs’ wage and hour firms in California consisting of “experienced
class action attorneys” (Br. 9). These arguments, however, are expressly considered subsumed
in the initial lodestar calculation. It is inappropriate to adjust the lodestar for “‘quality of
representation’” in the absence of “specific evidence to show that the quality of service
rendered was superior to that one reasonably should expect in light of the hourly rates charged
and that the success was ‘exceptional.’ ” Cunningham, 879 F.2d at 488. Counsel may not seek
a higher multiplier on the premise that superior advocacy skills led to a more favorable
settlement without first showing how their representation was exceptional, and why such
exceptional representation was not factored into the initial lodestar calculation. Absent such
evidence, any increase in the multiplier is uncalled for.
CONCLUSION
For all of the above-stated reasons, a multiplier of 2.0 is the most that should be allowed.
The parties’ motion for attorney’s fees and costs is approved in the amount of $664,000 for fees
and $75,000 for costs. Half of this amount shall be paid now. The other half shall be paid when
counsel certify that all funds have been properly distributed and the file can be completely
closed. The parties should submit a revised proposed order finally approving second amended
settlement agreement accordingly.
IT IS SO ORDERED.
Dated: December 21, 2007.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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[
"Gabriel Jasper",
"Defendant"
],
[
"United States of America",
"Plaintiff"
]
] | 1
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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
United States of America,
Plaintiff,
vs.
Gabriel Jasper,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
CR 02-01212-01-PCT-SMM
DETENTION ORDER
A detention hearing and a preliminary revocation hearing on the Petition on
Supervised Release were held on April 8, 2011.
THE COURT FINDS that the Defendant has knowingly, intelligently, and
voluntarily waived his right to a detention hearing and a preliminary revocation hearing and
has consented to the issue of detention being made based upon the allegations in the Petition.
THE COURT FURTHER FINDS that the Defendant has failed to sustain his burden
of proof by clear and convincing evidence pursuant to Rule 32.1(a)(6), FED.R.CRIM.P., that
he is not a danger to the community. United States v. Loya, 23 F.3d 1529 (9th Cir. 1994).
IT IS ORDERED that the Defendant shall be detained pending further order of the
court.
DATED this 11th day of April, 2011.
Case 3:02-cr-01212-SMM Document 68 Filed 04/11/11 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-07-03220/USCOURTS-ca10-07-03220-0/pdf.json | [
[
"Scott James Huckins",
"Appellee"
],
[
"United States of America",
"Appellant"
]
] | *
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. 34(a); 10th Cir. R. 34.1 (G). The cause therefore
is ordered submitted without oral argument.
FILED
United States Court of Appeals
Tenth Circuit
June 25, 2008
Elisabeth A. Shumaker
Clerk of Court
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
SCOTT JAMES HUCKINS,
Defendant - Appellee.
No. 07-3220
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS - WICHITA
(D.C. No. 06-CR-10245-JTM)
Submitted on the briefs:*
Eric F. Melgren, United States Attorney; Alan G. Metzer, Assistant United States
Attorney, Wichita, Kansas, for Plaintiff - Appellant.
Charles A. O’Hara, O’Hara & O’Hara, Wichita, Kansas, for Defendant -
Appellee.
Before KELLY, HOLLOWAY, and GORSUCH, Circuit Judges.
KELLY, Circuit Judge.
Appellate Case: 07-3220 Document: 01011756499 Date Filed: 06/25/2008 Page: 1
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Defendant-Appellee Scott James Huckins pleaded guilty to one count of
possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), and
one count of criminal forfeiture, 18 U.S.C. § 2253(a)(3). Although the applicable
United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) (2006) range
was 78 to 97 months, the district court, after weighing the factors set forth in 18
U.S.C. § 3553(a), sentenced Mr. Huckins to 18 months’ imprisonment and 3
years’ supervised release, fined him $1,000, and required him to forfeit his
computer equipment. The government appeals, arguing that it was substantively
unreasonable for the district court to grant a downward variance. Our jurisdiction
arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b), and we affirm.
Background
On April 6, 2005, agents of the Federal Bureau of Investigation went to Mr.
Huckins’s residence in Wichita, Kansas. Mr. Huckins was not home but his
father was present. The agents informed Mr. Huckins’s father that Mr. Huckins’s
credit card had been used to purchase a membership to a website that hosted child
pornography. Mr. Huckins’s father gave the agents verbal consent to search for
child pornography on Mr. Huckins’s computer, which was located in Mr.
Huckins’s bedroom. Mr. Huckins was contacted by telephone and gave the agents
verbal consent to search his computer.
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The agents executed a “pre-search” computer utility program on Mr.
Huckins’s computer and uncovered images of child pornography. The images
were of real children and had been shipped in interstate commerce via the
internet. Mr. Huckins’s computer was seized and sent to the Heart of America
Regional Computer Forensics Laboratory for forensic examination. That
examination uncovered images of child pornography, pictures of known child
pornography victims, a file sharing program, and an internet history displaying
child pornography sites visited. [Aplt. App. at 10]
Mr. Huckins was indicted for possession of child pornography and criminal
forfeiture on November 14, 2006. He pleaded guilty to both charges by way of a
plea agreement on March 7, 2007. Following Mr. Huckins’s guilty plea, a
presentence investigation report (“PSR”) was prepared. The PSR calculated a
total offense level of 28, which included a base offense level of 18 pursuant to
U.S.S.G. § 2G2.2(a)(1), a 2-level enhancement pursuant to § 2G2.2(b)(2) because
the offense involved material containing prepubescent minors or minors who had
not attained the age of 12 years, a 4-level enhancement pursuant to § 2G2.2(b)(4)
because the offense involved material portraying sadistic or masochistic conduct,
a 2-level enhancement pursuant to § 2G2.2(b)(6) because a computer or
interactive computer service was used for the possession, transmission, receipt or
distribution of the material, a 5-level enhancement pursuant to § 2G2.2(b)(7)(D)
because the offense involved over 600 images containing child pornography,
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including 14 videos, a 2-level reduction pursuant to § 3E1.1(a) for acceptance of
responsibility, and a 1-level reduction pursuant to § 3E1.1(b) for entering a timely
guilty plea. The offense level of 28, together with a criminal history category of
I, resulted in a Guidelines imprisonment range of 78 to 97 months.
Mr. Huckins initially objected to three of the PSR’s offense-level
enhancements but later withdrew those objections. He also filed a motion for a
downward variance pursuant to 18 U.S.C. § 3553(a). In his motion, Mr. Huckins
argued that, among other things, he was 20 years old at the time of the crime and
22 at the time of sentencing, he had virtually no criminal record, had been
employed, cooperated with law enforcement and consented to the search, was not
indicted until a year and a half after the FBI seized his computer, he pleaded
guilty, immediately sought psychotherapy once charged, and made efforts to
correct his life, such as becoming involved in relationships and stopping
excessive drinking. He also noted that, as a result of pleading guilty, he will be a
registered sex offender for the remainder of his life. [Aplt. App. at 25-28]
The government opposed Mr. Huckins’s motion, arguing that a sentence
within the Guidelines range was appropriate. The government explained that Mr.
Huckins’s age was irrelevant, his cooperation was already accounted for in the 3-
level reduction for his acceptance of responsibility and timely guilty plea, and he
did not seek medical treatment until after his unlawful activity was discovered.
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At Mr. Huckins’s sentencing, the district court initially indicated that it
intended to impose a sentence of 78 months, which represented the low end of the
Guidelines range, but then expressed concerns about the length of such a
sentence. Although the court recognized the nature and seriousness of the
offense, it found Mr. Huckins’s case distinguishable from other child pornography
cases over which it had previously presided, and stated that it was considering a
downward variance to a range of 36 to 48 months. The government advised the
court that it would not oppose a downward variance down to 48 months. Aplt.
App. at 73.
The parties then presented their arguments, and Mr. Huckins made his
allocution. After, the court responded that it was not ready to impose sentence.
The court discussed that it was troubled by this case because Mr. Huckins did not
fit the characteristics of the typical defendant who possesses child pornography
and that he was not prosecuted until a year and a half after the seizure of his
computer. The court also noted that Mr. Huckins was very cooperative with law
enforcement, and it referenced the letters it received on behalf of Mr. Huckins.
While recognizing the nature and seriousness of the offense, the court explained
that “the history and circumstances of the defendant seem to me to weigh every
bit as heavily as the nature and seriousness of the offense. I think that the
sentence, I would hope, if it’s to be a just sentence, has to fit not only the crime
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but the offender.” Id. at 67. With that, the court continued sentencing for one
week.
When sentencing resumed, the court announced it intended to impose a
sentence of 18 months. The court began its explanation of Mr. Huckins’s
sentence by indicating that it took a significant amount of time in deciding what
constituted an appropriate sentence in this case. As a starting point, the court
discussed that it recognized the nature and seriousness of possessing child
pornography as well as the serious penalties Congress has imposed for that
offense. The court expressed that it did not want to “downplay the significance of
the problem or Congressional action in anyway.” Id. at 69. Indeed, the court
expressly rejected a probationary sentence “given Congress’s clear statement
reflecting the attitudes of the people of this country with respect to possession of
child pornography.” Id. at 71. In so doing, the court noted that
there are over 100 children that are involved in these videos and stills
who have been victimized and whose lives have been wrecked
beyond almost anyone’s ability to find redemption. And that is what
Congress was concerned about in enacting the penalty provisions for
this law. The idea is if you can dry up the market, then there will not
be a need for the product, and perhaps the industry will dry up.
Whether that’s a wise course or not is not my call to make. It is
Congress’s, and it is what it’s done. I think that to put Mr. Huckins
on probation, given the offense, would minimize the significance of
the offense itself. So I don’t think that’s appropriate.
Id. at 71-72.
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However, the court explained that once it got “past the offense itself and
the penalties that are possible, [i.e.,] the guidelines,” and examined the
“individual and the type of offense that he actually committed,” a different kind
of picture emerged. Id. at 69. The court stated that Mr. Huckins had no real
criminal record; he was going through a difficult period in his life and
experiencing significant depression at the time he committed the offense; the
offense was committed over a short period of time and there had been no repeat of
the offense; during the time that the government waited to prosecute him, he
obtained licenses for employment and, through his own and his family’s efforts,
made significant improvements in his life; he did not occupy a position of trust
with children; and he displayed exceptional responsibility and remorse for his
actions. Balancing these findings against the seriousness of the offense, the court
imposed a sentence of 18 months’ imprisonment followed by 3 years’ supervised
release.
Final judgment was entered on July 2, 2007, and the government timely
appealed. On appeal, the government argues that the district court’s findings did
not justify granting Mr. Huckins’s request for a downward variance and that the
sentence is substantively unreasonable.
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1
Neither the government nor Mr. Huckins claims procedural error, and we
find none. The district court correctly calculated the applicable Guidelines range
and properly considered the § 3553(a) factors.
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Discussion
After United States v. Booker, 543 U.S. 220 (2005), we review the
reasonableness of sentencing decisions, “whether inside, just outside, or
significantly outside the Guidelines range[,] under a deferential abuse-ofdiscretion standard.” Gall v. United States, 128 S. Ct. 586, 591, 594 (2007). “A
district court abuses its discretion when it renders a judgment that is arbitrary,
capricious, whimsical, or manifestly unreasonable.” United States v. MuñozNava, 524 F.3d 1137, 1146 (10th Cir. 2008) (internal quotations omitted).
Reasonableness review is comprised of a procedural component and a substantive
component. United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008).
Procedural reasonableness addresses whether the district court incorrectly
calculated or failed to calculate the Guidelines sentence, treated the Guidelines as
mandatory, failed to consider the § 3553(a) factors, relied on clearly erroneous
facts, or failed to adequately explain the sentence. Gall, 128 S. Ct. at 597.
Relevant here,1
substantive reasonableness addresses “whether the length of the
sentence is reasonable given all the circumstances of the case in light of the
factors set forth in 18 U.S.C. § 3553(a).” United States v. Verdin-Garcia, 516
F.3d 884, 895 (10th Cir. 2008) (internal quotations omitted).
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Although sentences imposed within the correctly calculated Guidelines
range may be presumed reasonable on appeal, sentences imposed outside the
Guidelines range may not be presumed unreasonable. Gall, 128 S. Ct. at 597. In
reviewing a district court’s decision to deviate from the Guidelines, we “consider
the extent of the deviation” but give “due deference to the district court’s decision
that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. We
cannot reverse simply because we might have reasonably arrived at a different
sentence. Id. We afford the district court this level of deference because it has an
unquestionable institutional advantage over an appellate court to consider whether
the facts of an individual case justify a variance under § 3553(a). Id. at 597-98.
The district court is required to provide a “specific reason” for deviating
from the Guidelines. 18 U.S.C. § 3553(c)(2); United States v. Angel-Guzman,
506 F.3d 1007, 1016 (10th Cir. 2007). An adequate explanation of the chosen
sentence allows for meaningful appellate review and promotes the perception of
fair sentencing. Gall, 128 S. Ct. at 597. “[A] district judge must give serious
consideration to the extent of any departure from the Guidelines and must explain
his conclusion that an unusually lenient or an unusually harsh sentence is
appropriate in a particular case with sufficient justifications.” Id. at 594.
Although “a major departure should be supported by a more significant
justification than a minor one,” id. at 597, we no longer require that
“extraordinary” circumstances justify a sentence outside the Guidelines range nor
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do we mathematically calculate the percentage variance from the Guidelines and
use that percentage “as the standard for determining the strength of the
justifications required,” id. at 595; see Smart, 518 F.3d at 807. As noted, the
parties do not claim the district court procedurally erred in its explanation, so we
proceed to qualitatively assess the substantive reasonableness of the sentence
under the totality of the circumstances. Gall, 128 S. Ct. at 597.
After calculating the Guidelines range of 78 to 97 months, the district court
initially indicated that the § 3553(a) factors justified a downward variance to a
range of 36 to 48 months, but ultimately imposed a sentence of 18 months. The
government challenges the substantive reasonableness of this sentence, arguing
that the district court’s justification for granting a downward variance of 60 to 79
months from the Guidelines range was not sufficiently compelling or supported
by extraordinary facts. We disagree.
As an initial matter, the government conceded to the district court that
some variance was appropriate. At sentencing, the government advised the court
that it was unopposed to a downward variance to 48 months. Aplt. App. at 73.
Therefore, despite the government’s argument on appeal that a variance of 60 to
79 months is inappropriate, a variance of 30 months separated the parties’
positions before the district court.
In addition, it is evident from the government’s argument that the
government filed its opening brief in this case before the United States Supreme
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Court decided Gall v. United States, 128 S. Ct. 586 (2007), which we are bound
to apply. Notwithstanding having the opportunity to do so, the government did
not file a reply brief, request supplemental briefing, or file a Rule 28(j) letter after
Gall was decided. See Fed. R. App. P. 28(j) (party may file letter to court
addressing pertinent and significant authority that come to party’s attention after
briefs have been filed). The government primarily relies on United States v.
Cage, 451 F.3d 585, 594-96 (10th Cir. 2006), for the proposition that the district
court’s justification was not sufficiently compelling or dramatic, or supported by
extraordinary facts to warrant the extreme downward variance. See Aplt. Br. at 7-
9. After Gall, this standard of review no longer applies, and consequently, Cage
does not control this case. See Smart, 518 F.3d at 808; see also United States v.
Akers, 261 F. App’x 110, 114 (10th Cir. 2008) (unpublished) (explaining that
Cage has been overruled by Gall).
The government also argues that it was inappropriate for the district court
to justify its variance, in part, on the fact that Mr. Huckins had no real criminal
record since he had already been placed in a criminal history category of I. Even
if this were improper, we note that the court weighed a number of factors in
addition to Mr. Huckins’s lack of a criminal record to arrive at its sentencing
decision. In any event, the court’s consideration of this factor was appropriate.
Although the Guidelines discourage granting a downward departure based upon
criminal history when the defendant has been placed in a criminal history
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category of I, U.S.S.G. § 4A1.3(b)(2)(A), this is a not a departure case, it is a
variance case. See United States v. Atencio, 476 F.3d 1099, 1101 n.1 (10th Cir.
2007) (explaining deviation from recommended Guidelines range through
application of Chapters 4 or 5 of Guidelines is a “departure” while deviation
through application of § 3553(a) factors is a “variance”). And, after Gall and
Kimbrough, a factor’s disfavor by the Guidelines no longer excludes it from
consideration under § 3553(a). Muñoz-Nava, 524 F.3d at 1148 & n.6; see Gall,
128 S. Ct. at 602; Kimbrough v. United States, 128 S. Ct. 558, 575 (2007).
Therefore, a district court may weigh a defendant’s lack of a criminal record,
even when the defendant has been placed into a criminal history category of I, in
its § 3553(a) analysis. See Muñoz-Nava, 524 F.3d at 1142, 1148.
Applying the appropriate deferential standard of review announced in Gall
to this case, we hold that the district court did not abuse its discretion in granting
the downward variance and that Mr. Huckins’s sentence was substantively
reasonable. To reach its sentencing decision, the district court took significant
time to carefully balance the nature and seriousness of the offense, the need for
deterrence and the need to protect the public, with the history and characteristics
of the defendant. In so doing, the court clearly appreciated the nature and
seriousness of the offense, discussing Congress’s decision to enhance penalties
associated with possession of child pornography, and expressly rejecting a
probationary sentence. We too recognize the importance of these factors and the
Appellate Case: 07-3220 Document: 01011756499 Date Filed: 06/25/2008 Page: 12
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need for deterrence. See 18 U.S.C. § 3553(a)(2); United States v. Goldberg, 491
F.3d 668, 672 (7th Cir. 2007), cert. denied, 128 S. Ct. 666 (2007) (“The logic of
deterrence suggests that the lighter the punishment for downloading and
uploading child pornography, the greater the customer demand for it and so the
more will be produced.”). However, as the district court correctly understood, the
history and characteristics of the defendant must be factored into the final
sentencing calculus. See 18 U.S.C. § 3553(a)(1).
Here, the court considered a number of factors pertaining to the history and
characteristics of Mr. Huckins that counterbalanced the nature and seriousness of
the offense, namely that he (1) had no real criminal record prior to these offenses;
(2) was going through a difficult time with significant depression when he
committed the offenses; (3) committed the offenses over a short period of time;
(4) has not repeated the offenses—the activity stopped without legal intervention;
(5) obtained licenses for employment and maintained steady employment prior to
being charged; (6) has consistently improved his life through his own efforts and
those of his family; (7) did not occupy a position of trust with children; and (8)
has demonstrated repeated remorse and an exceptional understanding of how his
conduct has affected his life and the lives of his family. Aplt. App. at 69-72. The
court also considered the many letters of support it received on behalf of Mr.
Huckins.
Appellate Case: 07-3220 Document: 01011756499 Date Filed: 06/25/2008 Page: 13
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This approach is clearly consistent with Gall’s instruction that district
courts should “consider every convicted person as an individual and every case as
a unique study in the human failings that sometimes mitigate, sometimes magnify,
the crime and the punishment to ensue.” Gall, 128 S. Ct. at 598 (internal
quotations omitted). It is also consistent with approaches approved by our sister
circuits in similar post-Gall cases, some of which involved larger downward
variances. See, e.g., United States v. Smith, No. 06-4885, 2008 WL 1816564, *4
(4th Cir. Apr. 23, 2008) (unpublished) (affirming downward variance to 24
months from Guidelines range of 78 to 97 months for 18 U.S.C. § 2252(a)
conviction because district court properly counterbalanced seriousness of offense
against defendant’s personal characteristics); see also United States v. Grossman,
513 F.3d 592, 598 (6th Cir. 2008) (affirming downward variance to 66 months
from recommended Guidelines sentence of 120 months for § 2252(a) conviction);
United States v. White, 506 F.3d 635, 645-49 (8th Cir. 2007) (affirming
downward variance to 72 months from Guidelines range of 108 to 135 months for
two § 2252(a) convictions); but see United States v. Pugh, 515 F.3d 1179, 1194
(11th Cir. 2008) (vacating non-custodial sentence for §§ 2252(a), 2256(8)(A)
convictions where Guidelines range was 97 to 120 months).
That is not to say that deviations from the Guidelines do not require
appropriate justification. For example, sentences that vary from the Guidelines
“based solely on the judge’s view that the Guidelines range fails properly to
Appellate Case: 07-3220 Document: 01011756499 Date Filed: 06/25/2008 Page: 14
- 15 -
reflect § 3553(a) considerations” will require close scrutiny. See Kimbrough, 128
S. Ct. at 575 (internal quotations omitted). But where, as here, the court decides
to vary from the Guidelines after a careful, reasoned, and reasonable
consideration of the § 3553(a) factors, we cannot say the court abuses its
discretion.
Accordingly, while this court could conclude a different sentence was
reasonable, we cannot exercise the discretion of the district court and “decide de
novo whether the justification for a variance is sufficient or the sentence
reasonable.” Gall, 128 S. Ct. at 602; Muñoz-Nava, 524 F.3d at 1149. Affording
the district court due deference on its determination that the § 3553(a) factors, as
a whole, justify the variance, we find that the district court’s decision was
“reasoned and reasonable,” not an abuse of discretion. Gall, 128 S. Ct. at 602;
Muñoz-Nava, 524 F.3d at 1149.
AFFIRMED.
Appellate Case: 07-3220 Document: 01011756499 Date Filed: 06/25/2008 Page: 15
07-3220, United States v. Huckins
GORSUCH, Circuit Judge, concurring.
I write separately to emphasize the narrowness of our holding. As the court
explains, the government filed its opening brief in this appeal before Gall v.
United States, __ U.S. __, 128 S.Ct. 586 (2007), was decided. In its brief, the
government argued that, under our then-controlling precedent, the district court
was obliged, but failed, to offer “compelling reasons” for its sentence given how
far it varied from the advisory Guidelines range. Gall, however, repudiated the
sort of exacting appellate scrutiny advocated in the government’s opening brief
and once required by our case law. See United States v. Smart, 518 F.3d 800, 807
(10th Cir. 2008) (holding that, after Gall, “sentencing review may not be based on
a rigid mathematical formula that uses the percentage of a departure as the
standard for determining the strength of the justifications required for a specific
sentence” (internal quotation omitted)). In his response brief, Mr. Huckins seized
on this fact and argued that, under the more forgiving abuse of discretion standard
of review announced in Gall, we should affirm the district court. After that, the
government did, literally, nothing. It did not file a reply brief, it did not submit a
Rule 28(j) letter, it did not seek supplemental briefing. The government even
waived oral argument. As a result, the government has advanced before us no
argument why this case should be reversed under Gall, and the government’s
failure to contest this appeal under governing legal authority leaves us with no
Appellate Case: 07-3220 Document: 01011756499 Date Filed: 06/25/2008 Page: 16
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choice but to affirm. See United States v. Int’l Bus. Machs. Corp., 517 U.S. 843,
855 (1996) (“It would be inappropriate for us to []examine . . . without the benefit
of the parties’ briefing,” matters that a party has chosen not to contest.); Sally
Beauty Co., Inc. v. Beautyco, Inc., 304 F.3d 964, 976 n.2 (10th Cir. 2002)
(concluding the court must reverse because the defendant did not contest
plaintiff’s argument or offer any other basis for the court to affirm). For this
same reason, we have no occasion to pass on the question whether, under Gall,
factors like those presented in this case would be sufficient to sustain a variance
of this magnitude in a contested appeal.
Appellate Case: 07-3220 Document: 01011756499 Date Filed: 06/25/2008 Page: 17 |
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